August 5, 2013
IN THE INTEREST OF: A.B.A.S., A MINOR APPEAL OF: R.P., MOTHER
Appeal from the Order Entered February 11, 2013 In the Court of Common Pleas of Philadelphia County Family Court at Nos.: CP-51-AP-0000249-2012, CP-51-DP-0000168-2010, CP-51-AP-0000250-2012, CP-51-DP-0000169-2010: CP-51-AR-0000251-2012, CP-51-DP-0000170-2010.
BEFORE: BENDER, J., BOWES, J. AND STRASSBURGER [*], J.
R.P. ("Mother") appeals from the decrees entered on February 11, 2013, in the Court of Common Pleas of Philadelphia County, terminating her parental rights to her daughter, A.B.A.S. (also known as A.A.R.S.), born in January of 2007, her son, A.I.A.R.S., born in November of 2007, and her daughter, A.B.A.R.S., born in November of 2008 ("the children"), pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). We affirm.
The trial court provided the following history of this case:
This case initially became known to the Department of Human Services ("DHS") in June 2010 when Mother took her three children, A.B.A.S (age three at the time), A.I.A.R.S. (age three at the time), and A.B.A.R.S. (age one at the time), to DHS and requested services from DHS, particularly housing services. N.T., 2/11/13 at 8; Statement of Facts in Dependency Petition, at ¶ b, attached as Court Exhibit "A." Mother and the children had been living in New York with the children's Father before coming to Philadelphia and had left New York because Mother was a victim of domestic violence by Father. Id. On July 9, 2010, an Order of Protective Custody ("OPC") was obtained when Mother went to DHS requesting that the children be placed. See Order of Protective Custody dated July 9, 2010, attached as Court Exhibit "B." Mother signed a Voluntary Placement Agreement to place the children into DHS's care. N.T., 2/11/13 at 8. The children were placed in a foster home through Children's Services, Inc., where they currently remain. Id. at 8, 44.
On May 24, 2012, DHS filed the instant Petitions for Involuntary Termination of Parental Rights. A hearing on the Petitions for Involuntary Termination of Parental Rights was held on February 11, 2013. Father was present at the hearing and was represented by counsel. Mother was incarcerated at the time of the termination hearing, but she participated in the hearing by phone and was represented by counsel.
At the hearing, the Court heard testimony from various witnesses, including DHS social worker April Coker-Elliot, agency social worker Jessica Faulk, Mother, and Father. DHS social worker April Coker-Elliot testified that Mother's Family Service Plan ("FSP") objectives in the case were to engage in domestic violence counseling, engage in mental health treatment, obtain her GED, engage in parenting classes, and attend supervised visitation with her children. N.T., 2/11/13 at 9-10. Ms. Coker-Elliot testified that Mother did not complete any of the FSP objectives outlined by DHS. Id. at 10, 28, 30. Specifically, Ms. Coker-Elliot testified that Mother never completed domestic violence counseling or parenting classes, did not attend mental health treatment, and did not obtain her GED. Id. Ms. Coker-Elliot also testified that Mother never sustained adequate housing during the lifetime of the case and refused to go into a homeless shelter. Id. at 17, 29, 30. Mother also had not made any outreach to DHS since her incarceration. Id. at 31.
Ms. Coker-Elliot further testified that Mother was not consistent with visiting the children. Id. at 16. Mother had unsupervised visits with the children at one point but the visits were changed to supervised because of Mother's "numerous inappropriate behaviors during the visitations." Id. Ms. Coker-Elliot testified that Mother was not consistent with visiting the children after the visits were changed to supervised and Mother's visits were eventually suspended by the Court on June 25, 2012. Id. at 16, 29; Court Order dated June 25, 2012, attached as Court Exhibit "C." Ms. Coker-Elliot stated that when she observed the visits, some of Mother's interactions with the children were inappropriate, such as calling the children names and making false promises that the children were going to live with her. Id. at 52-53. Ms. Coker-Elliot testified that there was not an appropriate parent-child bond between Mother and the children and that Mother "didn't have a real parental role with them." Id. at 52. She stated that Mother spoke to the children on their level at times. Id. Mother was also at times more preoccupied with her cell phone during the visits than with the children. Id. At 54.
* * *
[Ms. Coker-Elliot] testified that Father was the perpetrator of domestic violence upon Mother and that the children were receiving trauma-focused therapy for witnessing the domestic violence by their Father. Id. at 32.
DHS next presented the testimony of Jessica Faulk, agency worker from Children's Services. Ms. Faulk testified that the children have been in their current foster home for nearly three years. Id. at 44. She stated that the children have a very close and loving relationship with their foster mother and look to their foster mother to take care of their needs. Id. at 44-46. Ms. Faulk testified that the foster home is a safe, stable, and loving home and is the only home that the children have known for the last couple of years. Id. at 46. She said that it would not be detrimental to the children if Mother's parental rights were terminated and that the children would not suffer any irreparable harm. Id. at 46-47. Ms. Faulk testified:
[I]n the four months that I have been with the kids, they have never once mentioned their Mom, to me. I don't think that they really have any connection to her anymore. They have one Mom, and that is their foster Mom.
Id. at 46.
Ms. Faulk similarly testified that it would not be detrimental to the children if Father's parental rights were terminated and that the children would not suffer any irreparable harm. Id. at 46-47. Ms. Faulk stated the children never once mentioned their Father to her. Id. at 46.
Mother testified at the termination hearing. She stated that she has been incarcerated since August 2012 and is serving an eighteen (18) month sentence for theft. Id. at 77. Mother stated that she left New York and came to Philadelphia because of a domestic violence situation. Id. at 77. She testified that she went to a homeless shelter but they didn't have any beds so she took her children to DHS until she could get into a shelter. Id. at 77-78. Mother stated that she then went back to New York until June 2011 when she returned to Philadelphia. Id. at 79-80. Mother admitted that she never completed parenting classes or mental health treatment. Id. at 82, 89. She also stated that she never attempted to contact DHS since her incarceration in August 2012. Id. At 85.
* * *
At the conclusion of testimony, this [c]ourt determined the testimony of Ms. Coker-Elliot and Ms. Faulk to be credible. Id. at 109. The [c]ourt found Father's testimony to be credible in part and incredible in part. Id. Specifically, the [c]ourt found credible only Father's testimony regarding the validity of the Protection Order and the fact that he was found guilty of domestic abuse. Id. The [c]ourt found that the rest of Father's testimony was not credible. Id. Lastly the [c]ourt determined that Mother's testimony was not credible. Id.
Trial Court Opinion, 4/18/13, at 1-5.
On February 11, 2013, the trial court entered its orders terminating Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). On February 20, 2013, Mother simultaneously filed her notices of appeal and concise statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother asserts two issues for our review:
1- The trial court erred and/or abused its discretion by entering an order on February 11, 2013 involuntarily terminating the parental rights of [Mother]. More specifically, the trial court abused its discretion as substantial, sufficient and credible evidence was presented at the time of trial which would have substantiated denying the Petition for Goal Change Termination. The City has failed to meet its burden for termination by clear and convincing evidence under 23 Pa.C.S.A. sections 2511 (a) (1), (2), (5) and (8) because mother presented evidence that she had the capacity to care for her children and had begun to met [sic] her FSP goals even though she was never provided with reasonable efforts for reunification with her children.
2- The trial court erred and/or abused its discretion by terminating the parental rights of [Mother] pursuant to 23 Pa.C.S.A. sections [sic] 2511(b) where DHS failed to prove by clear and convincing evidence that involuntary terminating her parental rights best served the emotional needs and welfare of her children. Evidence was presented that established the children have a bond with their mother and had lived with their mother for the first years of their lives.
Mother's Brief at 7.
We review appeals from the involuntary termination of parental rights according to the following standard:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; [In re] R.I.S., 36 A.3d [567, ] 572 [(Pa. 2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., Pa., 34 A.3d 1, 51 (2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
Section 2511 of the Adoption Act provides in pertinent part:
(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
* * *
(b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.
23 Pa.C.S. § 2511(a)(1), (b). Although the trial court entered its order terminating Mother's parental rights under section 2511(a)(1), (2), (5), and (8), "we need only agree with [a trial court's] decision as to any one subsection [of 2511(a), along with 2511(b), ] in order to affirm the termination of parental rights." In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
We have interpreted section 2511(a)(1) as follows:
To satisfy the requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties.
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).
Regarding the definition of "parental duties, " this Court has stated the following:
[Our] Supreme Court has defined parental duty as follows:
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent 'exert himself to take and maintain a place of importance in the child's life.
' Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.
* * *
Although a parent is not required to perform the impossible, he must act affirmatively to maintain his relationship with his child, even in difficult circumstances. A parent has the duty to exert himself, to take and maintain a place of importance in the child's life.
Thus, a parent's basic constitutional right to the custody and rearing of his or her child is converted, upon the failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment. A parent cannot protect his parental rights by merely stating that he does not wish to have his rights terminated.
In re: B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quotation marks and citations omitted).
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).
In the Matter of the Adoption of Charles E.D. M., II, 708 A.2d 88, 91-92 (Pa. 1998).
Mother argues that the trial court erred or abused its discretion by terminating Mother's parental rights under section 2511(a)(1). She concludes, in her brief on appeal, that she has never evidenced a settled purpose of relinquishing her parental rights to the children, that she has cooperated with DHS and worked to meet her FSP goals, that she has secured housing, that she was taking parenting and GED classes in 2012, and that she has consistently visited with the children while they were in placement, at least until her incarceration in August of 2012. Mother argues, resultantly, that grounds do not exist to terminate her parental rights under section 2511(a). She concludes that she has never evidenced a settled purpose of relinquishing her parental rights nor refused to perform her parental duties. Mother's Brief at 15. Mother does not specifically deny that she failed to perform parental duties. But cf. 23 Pa.C.S. § 2511(a)(1) (" . . . settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.").
The trial court found that DHS presented testimony that demonstrated that the children have been in foster care for nearly three years, initially due to Mother's voluntary placement of the children with DHS. Trial Court Opinion, 4/18/13, at 9. The trial court found,
There was clear testimony on the record that Mother did not complete any of her FSP objectives. Specifically, Mother never completed domestic violence counseling or parenting classes, did not attend mental health treatment, did not obtain her GED, and never sustained adequate housing during the lifetime of the case. She also was inconsistent with visitation with the children and when she did visit, her interactions with the children were, at times, inappropriate. Visitation was, in fact, suspended by the Court on June 25, 2012. Mother also has not made any outreach to DHS since her incarceration in August 2012. In sum, the [c]ourt found that Mother has abandoned her children. Id. (emphasis in original).
Our review of the record reveals that the trial court's conclusions are supported by clear and convincing evidence. The trial court heard testimony from Ms. Coker-Elliot, the DHS social worker, that Mother was inconsistent with visitation. N.T., 2/11/13, at 16. Ms. Coker-Elliot testified that Mother found suitable housing, but was evicted from that housing, and never obtained suitable housing. Id. at 17. Additionally, she testified that Mother did not complete domestic violence counseling. Id. Ms. Coker-Elliot further testified that Mother took several parenting classes, but quit prior to completing the course. Id. at 28. The trial court found this testimony credible.
Mother testified that she was incarcerated from August of 2012, a period of six months at the time of her testimony. N.T., 2/11/13, at 77. She testified that she failed to complete the parenting class, due to non-attendance. Id. at 83. Mother testified that she has not attempted to call or reach out to anyone at DHS from the time of her incarceration. Id. at 85. Further, she testified that she notified DHS of participation in domestic violence classes, but testified that she failed to complete the course, due to non-attendance. Id. at 88-89.
At the time of the filing of the termination petition, the children had been in placement and foster care for nearly twenty-three months. The testimony at the hearing, including Mother's own admissions, demonstrates a consistent pattern of Mother making some efforts to comply with her FSP goals, but ultimately failing to comply, and then repeating that failure, over numerous attempts. Indeed, as to both parenting classes and domestic violence classes, Mother testified that she continuously began the courses, failed, due to numerous absences, and restarted the courses. Id. at 83; id. at 88-89. Throughout the hearing, Mother was described as transient, and unable to provide a stable home for the children. The court heard that Mother's visitation was inconsistent, and was provided no testimony that Mother made any efforts to contact the children during her absences. While Mother's most recent incarceration began after the time of the filing of the termination petition, Mother admitted that she ceased attempting to contact DHS at that time, and, again, there was no evidence that Mother attempted to contact the children at any point. Mother remains incarcerated as of this writing.
We defer to a trial court's determination of credibility, absent an abuse of discretion, and discern no such abuse in its finding credible the testimony of Ms. Coker-Elliot. See In re Adoption of S.P., 47 A.3d at 826-27. Moreover, the record makes apparent that Mother has failed or refused to perform parental duties. See 23 Pa.C.S. § 2511(a)(1). Accordingly, we can discern no abuse of discretion or error of law in the trial court's conclusion. See id.
We proceed to the trial court's application of section 2511(b).
Once the statutory requirement for involuntary termination of parental rights has been established under subsection (a), the court must consider whether the child's needs and welfare will be met by termination pursuant to subsection (b). In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.
* * *
Above all else[, ] adequate consideration must be given to the needs and welfare of the child. A parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted).
In reviewing the evidence in support of termination under section 2511(b), the trial court must consider whether the termination of parental rights would serve the developmental, physical, and emotional needs and welfare of the child. In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id. at 1287. The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect of permanently severing that bond on the child. Id. Additionally, "[i]n cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists." In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
In her second issue, Mother argues that the trial court erred or abused its discretion in making its determination pursuant to section 2511(b). She argues that the children lived with Mother during the first years of their lives. Mother's Brief at 18. Mother asserts that she has maintained a strong bond with the children through her "continued visitation." Id. She concludes, "Mother visited with all the children together at once and testified that her bond was the same with all her children. Again, no testimony to the contrary was presented that denies the existence of a strong [bond] between Mother and all her children." Mother's Brief at 19 (citation omitted).
The trial court found, "There was unrefuted testimony that Mother and the children do not have a parent-child bond and that the children do not have a connection to her. . . . [T]here was competent testimony that indicated that the children have a close bond with their foster mother and look to their foster mother as their parent." Trial Court Opinion, 4/8/13, at 10-11. Additionally, the trial court noted that credible testimony demonstrated that the termination of Mother's parental rights would not be detrimental to the children, and that the children would not suffer any irreparable harm. Id. at 11.
Mother's argument on this issue asks this Court to re-find facts and re-weigh evidence in her favor. Her argument is that the children resided with her, prior to their placement, that this residence created a bond, and that she maintained that bond through continued visitation. She testified that the children know her as their mother, and asserts that this is evidence of the bond. As noted above, the trial court found that Mother's visitation with the children was inconsistent, and that Mother's testimony was not credible. We cannot disturb the trial court's finding of fact, as it was based on credible evidence in the record, and we may not, without cause, second-guess the credibility determinations of the trial court. See In re Adoption of S.P., 47 A.3d at 826-27. Mother presented no other evidence of a bond. In sum, she argues, the fact that she lived with the children in the past, the fact that she visited them sometimes, and her own testimony that the children know she is their Mother, suffice to demonstrate a bond. N.T., 2/11/13, at 85. The trial court did not find this evidence sufficient, and found Mother's testimony non-credible. In light of the absence of evidence of a bond between Mother and the children, and the trial court's finding that Mother and the children do not have a parent-child bond, we discern no error of law or abuse of discretion in the trial court's determination under section 2511(b). See In re Adoption of S.P., 47 A.3d at 826-27; In re K.Z.S., 946 A.2d at 763.
Accordingly, for the reasons stated above, we affirm the trial court's orders, terminating Mother's parental rights to the children, pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).