August 28, 2013
IN RE: ADOPTION OF: I.M.P.
IN RE: ADOPTION OF: J. V. P., JR. APPEAL OF: M.S., MOTHER APPEAL OF: M.S., MOTHER IN RE: ADOPTION OF: X.D.P. APPEAL OF: M.S., MOTHER IN RE: ADOPTION OF: J.P., JR., A MINOR APPEAL OF: M.S., MOTHER IN THE INTEREST OF: I.P., A MINOR APPEAL OF: M.S., MOTHER IN THE INTEREST OF: X.D.P. APPEAL OF: M.S., MOTHER IN THE ADOPTION OF: J.V.P., JR. APPEAL OF: J.P., NATURAL FATHER IN THE ADOPTION OF: X.D.P. APPEAL OF: J.P., NATURAL FATHER IN THE ADOPTION OF: I.M.P. APPEAL OF: J.P., NATURAL FATHER IN RE: X.P. APPEAL OF: J.P., NATURAL FATHER IN RE: I.M.P. APPEAL OF: J.P., NATURAL FATHER IN RE: J.P., JR. APPEAL OF: J.P., NATURAL FATHER
Appeal from the Order entered on October 16, 2012, in the Court of Common Pleas of Butler County, Orphans’ Court at No(s): OA No. 72a of 2011, 73a of 2011, 74a of 2011, DP-90-2010, 73 of 2011, 74 of 2011, 72 of 2011
Appeal from the Order entered on November 6, 2012, in the Court of Common Pleas of Butler County, Domestic Relations Division at No(s): DP No. 91 of 2010, DP-92-2010, 92 of 2010, 91 of 2010, 90-2010
BEFORE: DONOHUE, OLSON, and MUSMANNO, JJ.
Mother, M.S., and Father, J.P., appeal the orders dated and entered on October 16, 2012, which granted the petitions filed by the Butler County Children and Youth Services ("CYS") to terminate their parental rights to their three minor children, J.V.P., a male born in September of 2005, I.M.P., a male born in June of 2007, and X.D.P., a female born in May of 2008 (collectively, "Children"). The trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b), and terminated Father's rights pursuant to those same subsections as well as 23 Pa.C.S.A. § 2511(a)(1). Moreover, Mother and Father appeal the orders entered by the trial court on November 6, 2012, changing the permanency goals for the Children to adoption pursuant to 42 Pa.C.S.A. § 6351. We affirm.
On December 22, 2011, CYS filed petitions seeking the termination of the parental rights of Mother and Father to the Children, and a change of their permanency goals to adoption. The trial court held hearings on all of the petitions on July 9, 11, and 20, 2012. At the hearings, numerous witnesses were called to testify by the parties and numerous exhibits were introduced into evidence.
The trial court set forth the factual background and procedural history as follows.
[CYS] initially became involved with the family in October of 2009. The assigned caseworker subsequently received a report from the Butler [City] Police that on April 1 [sic], 2010[, ] Father was arrested for assaulting Mother. [N.T., 7/9/2012, at 9, 15-16, 35.]
At the time of the assault, Mother and Father were living together with their five children. All of the children were home at the time of the attack. The two older children fled through a window and ran to Maternal Grandparents['] home to get help and the police were summoned. Mother was subsequently taken to the hospital where her injuries were documented. Mother had injuries to both eyes, her neck, stomach, arm, forearm, side, and knee. The injuries consisted of both bruising and severe bite marks, as well as significant injury to her left eye. Mother indicated that the injuries were caused by Father and that he had been beating her for the past 14 years. Father has an extensive criminal history of being abusive and assaultive. Mother subsequently obtained a PFA [Protection from Abuse ("PFA") order] against Father, wherein Father was prohibited from having any contact whatsoever with Mother for a period of three years. All five children remained in Mother's custody and Father's visitation with Children was strictly limited to supervised visitation through CYS.
Although the caseworker received numerous reports that Mother and Father were maintaining contact with one another, in violation of the PFA, Mother continued to deny such contact. However, on September 2, 2010, the caseworker was at Wal-Mart when she personally observed Mother and Father together, with two of the younger children. All five children were immediately detained and subsequently adjudicated dependent pursuant to 42 Pa.C.S.A. § 6302(1). Children were adjudicated dependent specifically because the conduct of the parent[s] placed the health, safety and welfare of Children at risk. The older siblings were placed with Maternal Grandparents and Children were ultimately placed in the kinship home of Maternal Uncle. From the time of the initial placement, Maternal Uncle indicated that he could only provide for Children on a temporary basis, that he would not adopt Children in the event they could not be returned to Mother, and that he was acting as a kinship placement strictly because he did not want Children to be shuffled from foster home to foster home. Maternal Uncle was willing to act as a Kinship Placement only until such time as Children were returned to Mother or a pre-adoptive foster home was established.
At the time of the May 3, 2011 Permanency Review hearing, CYS recommended Children be returned to Mother upon the stabilization of her VOICe housing. Mother was participating in all of her services, had allegedly ceased all communication with Father, and, in fact, would be prohibited from any such contact with Father through VOICe regulations. Additionally, the PFA remained in effect, prohibiting Father from contacting Mother as well. Father was not participating in services and had indicated to the caseworker that he intended to give up his rights to Children. The recommendation to return Children to Mother was based upon the belief that Mother had finally resolved to put Children before Father and remove Father from her life, thus eliminating the safety threat to Children. Unfortunately, on May 4, 2011, before the VOICe housing could be obtained and Children were returned to Mother, there was a second incident of domestic violence between Mother and Father which resulted in police involvement.
The May 4, 2011 incident occurred outside of the home of Mother's friend. Mother and Father had continued to operate a business arrangement where they would travel to New York City to purchase purses and transport the purses back to Butler to resell them. A disagreement arose after Mother refused to provide Father with money that he believed was owed to him. Father approached Mother outside of the home, Mother called to her friend to dial 911, and Mother ultimately escaped into the home.
Throughout this time period until the time of the September 2011 Permanency Review Hearing, Mother was adamant that she had not had any contact with Father after the September 2, 2010 PFA violation. However, after [m]onths of direct lies to both [c]aseworker and the [c]ourt, Mother later recanted her testimony and claimed that she had not had any contact with Father after the May 4, 2011 PFA violation. Telephone records have since proven that Mother had maintained substantial contact with Father until late April of 2011, when Mother changed her phone number and her phone could no longer be tracked. Specifically, from February 25, 2011 until April 21, 2011, Mother placed 1, 628 phone calls to Father and received 247 from him. It was also subsequently established that not only had Mother maintained contact with Father, but that she had rented an apartment for him to occupy in October of 2011. Mother was also observed at the apartment with Father.
Trial Court Opinion, 10/16/2012, at 1-4 (footnotes omitted).
On October 16, 2012, the trial court entered the termination orders, and, on November 6, 2012, the goal change orders. On November 14, 2012, Mother filed notices of appeal from the termination orders, along with concise statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), and, on December 6, 2012, she filed notices of appeal from the goal change orders, along with Rule 1925 concise statements. On November 15, 2012, Father filed notices of appeal from the termination orders, along with Rule 1925 concise statements, and, on December 5, 2012, he filed notices of appeal from the goal change orders, along with Rule 1925 concise statements.
On appeal, Mother raises the following issues for our review:
Did the lower court commit an error of law in failing to follow the case of In re: K.C.W. et al., 456 Pa. Super. 1, 689 a.2d [sic] 294 (1996) in that Father's incarceration removed the possibility that the Children would be placed in danger from his continued presence?
Did the Children and Youth Agency fail to present clear and convincing evidence that safety concerns which led to the removal of Mother's three children continued to exist; thus, the trial court abused its discretion in terminating the parental rights of Mother and changing the goal from reunification to adoption?
Mother's Brief, at 3.
Father raises three issues, as follows:
Whether the [trial court] erred in granting the termination of the parental rights of natural [M]other for the reasons raised in natural [M]other's Concise Statement? [Appellant did not restate those issues in his appeal so as not to "muddy the water" in the appeal.]
Whether the Orphan's Court erred in finding that Butler County CYS presented clear and convincing evidence to change the goal from reunification to placement for adoption, where, even conceding a history of domestic violence and continued contact between [M]other and [F]ather, [M]other maintained a separate residence, there were no further reports of domestic violence, and [F]ather was incarcerated with the prospect of a lengthy jail sentence?
If the Superior Court reverses the termination of natural [M]other's rights, whether the termination of natural [F]ather's rights should also be reversed in accordance with Pennsylvania's public policy against creating legal orphans?
Father's Brief, at 3 (bracketed statement in original).
We review an appeal from the termination of parental rights and a dependency order in accordance with 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.; 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., 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 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 judge 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, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
In a termination case, the burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). Further, the burden of proof is on the agency seeking the goal change. In re R.J.T., 9 A.3d 1179, 1185 (Pa. 2010).
Moreover, we have explained that:
[t]he standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue."
Id. quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
This Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). As we believe that termination of Mother's rights was proper under Section 2511(a)(5), we will focus on that subsection.
Section 2511 provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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:
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(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. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511.
Mother contests the termination of her parental rights, arguing that the situation in the present case is akin to that in In re K.C.W., supra, and that the trial court committed an error of law in failing to follow that decision here. Mother does not set forth any separate argument as to her second issue with regard to termination, but adopts her argument from her first issue. See Mother's Brief, at 30.
Father argues that the trial court should not have terminated Mother's parental rights, and that the Commonwealth has a policy against creating orphans. Father reasons as follows.
Termination of a parent's rights can only stand when the creation of a new family unit is being contemplated. If
Mother's termination does not stand, then an adoption will not proceed. Pennsylvania's policy against creating orphans would then require that [Father's] termination be vacated also. See In re Adoption of L.J.B., 610 Pa. 213, 230 (Pa. 2011), In re Male Infant B.E., 377 A.2d 153, 156 (Pa. 1977), and In re T.R., 465 A.2d 642 (Pa. 1983).
Father's Brief, at 7.
In In re K.C.W., the trial court terminated the parental rights of the mother therein to her four children pursuant to Section 2511(a)(1) and (5) on the basis that the mother was a willing participant who could have ended her relationship with the abusive father at any time. This Court disagreed finding that the competent evidence in the record demonstrated that the mother had made repeated efforts in an attempt to extricate herself from the father's influence, including obtaining PFA orders and filing a petition for contempt of one of those orders, but that she had not pursued the contempt petition because she feared retaliation from the father. Moreover, this Court found that, in light of the abusive nature of the relationship, the competent evidence in the record did not support the trial court's determination that the mother failed to exercise reasonable firmness in attempting to overcome the father's obstructive behavior.
With regard to Section 2511(a)(5), this Court found that the abusive father had been unequivocally removed from the children's environment when he was placed in jail. Importantly, the agency did not present any evidence regarding any continued contact between the mother and the father, nor did it present any evidence with regard to his expected release date. In re K.C.W., 689 A.2d at 300. This Court stated as follows:
[T]he agency acknowledged improved supervision [of the children by the mother]. Moreover, although [the] mother proved unable to extricate herself from her relationship with [the] father, by January of 1994, he was unequivocally removed from the children's environment when he was placed in jail. Again, we stress that [the] mother is free to live with either [the] great-grandmother or [the] grandmother. Only one other adult, the children's uncle, lives with [the] grandmother. Further, as stated, the main objection to that housing, its proximity to [the] father and [the] father's family, was no longer relevant at the time of the hearing. Accordingly, we cannot "come to a clear conviction, without hesitancy, " that the conditions leading to the removal of the children continue to exist.
In re K.C.W., 689 A.2d at 301.
This Court reversed the order terminating the mother's parental rights in In re K.C.W. on the basis that the agency had failed to sustain its burden of proof, by clear and convincing evidence, under Section 2511(a)(1) or (5). Id. at 301.
In the present case, as the trial court did not terminate Mother's parental rights with regard to section 2511(a)(1), Mother's argument with regard to In re K.C.W. is necessarily limited to the termination of her parental rights pursuant to Section 2511(a)(5).
The trial court made the following findings of fact with regard to the termination under Section 2511(a)(5).
Child[ren have] been removed from Mother's and Father's care since September of 2010 due to safety issues within the home. Specifically, the conditions which led to the removal of Children were Father's extreme acts of domestic violence and Mother's repeated inability and/or refusal to remove herself and Children from said abusive conditions which rendered the living conditions unsafe for Children's physical and mental well-being. After two years these conditions continue to exist. Father has still not participated in services, and rather is of the opinion that such domestic violence is appropriate. Although Father is presently incarcerated, there is every indication that he intends to continue with his pattern of abuse upon his release. Father continues to have contact with Mother in prison which is a violation of both the current PFA Order and the family service plan. Even though Father was offered services under the family service plan to assist him with his anger management and domestic violence, Father refused to participate in said services. Father's release date from incarceration is unknown. Even if Father began anger management classes immediately, there is no evidence to indicate that Father could remedy the conditions which led to Children's removal in a reasonable period of time. At trial, Father gave no indication that he was willing to participate in anger management counseling, quite the contrary. Due to the content of Father's outbursts at trial and his refusal to acknowledge the harm of domestic violence on his family, any services or assistance reasonably available to him are not likely to remedy his anger management within a reasonable period of time, especially considering more than two years has passed since the Children's removal. As the conditions which led to Children's [removal] will not be remedied, Children's needs and welfare are best served by terminating Father's parental rights, enabling them to become available for adoption and to achieve permanency. Accordingly, Butler County CYS has demonstrated by clear and convincing evidence that Father has satisfied the ground for involuntary termination of his parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(5).
The conditions which led to the removal of Children from Mother [were] her inability and/or refusal to provide a safe environment for Children by continuing to have contact with and allowing Children to have contact with Father[, ] who pled guilty to Terroristic Threats and Simple Assault on September 8, 2010, wherein Mother was the victim. Although Children were not [removed] until September of 2010, CYS first initiated services for Mother in October of 2009. After nearly three years of CYS offering Mother every service available to victims of domestic violence[, ] she continues to maintain a relationship with Father, her abuser. It was Father's domestic violence and Mother's inability to maintain a safe home for Children as a result of such abuse that initially lead [sic] to their [removal]. Almost two years later, and [sic] Mother has demonstrated no progress toward establishing a safe home environment and thereby remedying the conditions that led to the removal within a reasonable period of time. In fact, Mother does not demonstrate a fear of Father, [sic] she actually pursues Father[, ] which demonstrates that she is refusing to remedy the condition which led to the removal of Children from her home. Mother pursued Father while she had access to all available services from the County Victim's Advocate's Office, the power of the County's District Attorney, the services and support of Children and Youth Services, and the power of the [c]ourt at her disposal.
Despite numerous services provided and any which in the future may be reasonably available to Mother, they are not likely to remedy the conditions which led to Children's removal within a reasonable period of time, if ever. Furthermore, Mother does not even recognize the long[-]term negative impact that domestic violence may have on Children. Although it is acknowledged that Father is facing criminal charges which may result in a lengthy prison sentence, Mother's home remains unsafe for Children to return to due to both the likelihood that she will allow Father to remain a part of her and her Children's lives upon his release from prison, and Mother's guarded prognosis in regard to her ability to maintain a home free from domestic violence in the future. As discussed in Dr. [Jeffrey] Wolfe's report, Mother has repeatedly demonstrated poor judgment skills in her selection of people with whom she associates. Even in the event Mother would discontinue her relationship with Father, she lacks the skills necessary to prevent further instances of domestic violence by other potential partners. As Mother's inability to provide a safe home environment, which led to [removal] cannot be remedied, termination of her parental rights would allow Children to be in a safe home environment, be adopted, and achieve permanency, best serving their needs and welfare. Accordingly, Butler County CYS has demonstrated by clear and convincing evidence that Mother has satisfied the ground for involuntary termination of her parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(5).
Trial Court Opinion, 10/16/2012, at 19-22.
The trial court distinguished the facts in the instant case from those in In re K.C.W. Here, the trial court found that Mother professed to fear Father, but had continued to have contact with him while he was incarcerated, and, therefore, was not credible. Unlike the situation in In re K.C.W., the trial court found that Mother cannot maintain the safety of the Children, even in view of the possibility that Father might receive a lengthy sentence. As the trial court's 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, we will not disturb them. In re Adoption of S.P., 47 A.3d at 826-27.
After a careful review of the evidence, we find that the trial court's decision that CYS had proven the elements for Mother's termination of parental rights under Section 2511(a)(5) (removal of the child for at least six months, and the parent cannot or will not remedy the conditions within a reasonable period of time, and that the termination serves the needs and welfare of the child) by clear and convincing evidence. See In re S.P., 47 A.3d at 826-827.
After we determine that the requirements of Section 2511(a) are satisfied, we proceed to review whether the requirements Section 2511(b) have been met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc). This Court has stated that the focus in terminating parental rights under Section 2511(a) is on the parent, but it is on the child pursuant to Section 2511(b). Id. at 1008.
In reviewing the evidence in support of termination under Section 2511(b), our Supreme Court recently stated:
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], [our Supreme Court] held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791.
In re: T.S.M., ___A.3d ___; (Slip Op. Nos. 7-11 WAP 2013, filed July 22, 2013); 2013 Pa. Lexis 1568 (Pa. July 22, 2013).
With regard to Section 2511(b), the trial court stated as follows:
Father poses a direct threat to Children's physical and emotional well-being. Furthermore, Father has had no contact with Children for nearly eighteen months. Father's whereabouts were unknown at the time a bonding assessment was completed between Mother and Children. However, the threat to Children posed by Father far outweighs the potential harm of severing the relationship Children may or may not have with Father. Furthermore, any harm caused to Children by severing their relationship with Father would have occurred eighteen months ago when Father chose to stop communicating with them, rather than upon the present termination of his parental rights.
On the other hand, Children are well bonded to Mother. However, her inability to provide a protective home life, significant difficulty in expressing sympathy for Children's developmental and emotional needs, and inability to put Children's needs above her own render her incapable of adequately providing for Children's needs and welfare. Accordingly, the [trial court] finds that the potential harm to Children of returning to Mother's care far outweighs the potential harm of severing their bond with her.
Children have resided with the Foster Family since August 8, 2011 and have flourished since coming into their care. Children are extremely bonded to the Foster Family. They refer to the Foster Family as "Mommy" and "Daddy, " and consider the Foster Family "home." The relationship between Foster Family and Children is characterized by warmth, affection and trust; and Children look to the Foster Family for comfort and support. Children have been included in family picnics and holidays and are both treated as and considered a part of the family. The Foster Family is a pre-adoptive home and intends to adopt Children upon the termination of Mother's and Father's parental rights. Children need and deserve the comfort and safety which is provided to them by the Foster Family.
However, the [trial court] wishes to make it clear that it is not determining that Mother's parental rights should be terminated because Children are more strongly bonded to the Foster Family than to Mother. Rather, Children's strong bond with the Foster Family acts as a safety factor in mitigating the trauma of the termination of Mother's parental rights. Based upon the totality of the circumstances, including both Children's need for permanency and their respective bonds with Mother and the Foster Family, the [trial court] finds that it is in Children's best interest to terminate Mother's and Father's parental rights to allow for them to be adopted by the Foster Family and achieve safe, timely permanency.
Trial Court Opinion, 10/16/2012, at 23-24.
In In re: T.S.M., our Supreme Court pronounced:
[A]s discussed below, evaluation of a child's bonds is not always an easy task.
The Superior Court has emphasized that the mere existence of a bond or attachment of a child to a parent will not necessarily result in the denial of a termination petition. Instead, as Judge Tamilia eloquently observed while speaking for the court, it is "an immutable psychological truth" that "[e]ven the most abused of children will often harbor some positive emotion towards the abusive parent." In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, Judge Tamilia cautioned against denying termination of parental rights based solely on the fact that a child has an attachment to the parent: "The continued attachment to the natural parents, despite serious parental rejection through abuse and neglect, and failure to correct parenting and behavior disorder which are harming the children cannot be misconstrued as bonding." Id. at 535 (quoting In re Involuntary Termination of C.W.S.M., 839 A.2d 410, 418 (Tamilia, J., dissenting)[)].[fn]
Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents. See In re K.M., 53 A.3d at 791. Indeed in cases where the petitioner is a party standing in loco parentis, the statute requires the party to file a report of intention to adopt. 23 Pa.C.S. § 2512(a)(3). Likewise, [the Supreme Court] has noted that a petition to terminate parental rights filed by a biological parent "is only cognizable when it is accompanied by a prospective stepparent's intention to adopt the child, " noting that the public policy behind this provision is to prevent "state-created orphans." In re Adoption of L.J.B., 18 A.3d 1098, 1107-08 n.11 (Pa. 2011) (plurality). Notably, however, the Adoption Act specifically provides that a pending adoption is not a prerequisite to termination of parental rights involving agencies such as CYF [Allegheny County Office of Children, Youth and Families]: "If the petitioner is an agency it shall not be required to aver that an adoption is presently contemplated nor that a person with a present intention to adopt exists." 23 Pa.C.S. § 2512(b).
The Superior Court has rejected the suggestion that termination of parental rights is inappropriate when adoption is not imminent and has allowed termination even if it results in the child temporarily being without one or both parents. See In re C.W.U., Jr., 33 A.3d 1, 9 (Pa. Super. 2011). Additionally, the Superior Court has observed that termination may improve the likelihood of finding an adoptive home. See In the Matter of T.D., [949 A.2d 910, 922-23 (Pa. Super. 2008)].
Moreover, members of [the Supreme Court] have opined that the existence of a pre-adoptive home is "an important factor" in termination cases. In re R.I.S., 36 A.3d 567, 575 (Pa. 2011) (Saylor, J., concurring). We have questioned whether a grant of termination would require that an "agency must intend subsequent to termination to seek out an adoptive parent." In re Adoption of L.J.B., at 1107 n.8. Indeed, decades ago, we opined in obiter dictum that an agency may not terminate parental rights absent a contemplated adoption. In re B.E., 377 A.2d 153, 155 n.5 (Pa. 1977). The Office of Children and Family in the Courts, however, recently provided direction in the Dependency Benchbook, "While having an identified adoptive resource is not a prerequisite for [termination of parental rights], ideally there should be a strong likelihood of an eventual adoption." Administrative Office of Pennsylvania Court's Office of Children and Families in the Courts, Pennsylvania Dependency Benchbook § 12.1 at 126 (2010).
As the prior paragraphs reveal, contradictory considerations exist as to whether termination will benefit the needs and welfare of a child who has a strong but unhealthy bond to his biological parent, especially considering the existence or lack thereof of bonds to a pre-adoptive family. As with dependency determinations, we emphasize that the law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved. See, e.g., R.J.T., [608 Pa. 9, 9 A.3d 1179 (Pa. 2010)] (holding that statutory criteria of whether child has been in care for fifteen of the prior twenty-two months should not be viewed as a "litmus test" but rather as merely one of many factors in considering goal change). Obviously, attention must be paid to the pain that inevitably results from breaking a child's bond to a biological parent, even if that bond is unhealthy, and we must weigh that injury against the damage that bond may cause if left intact. Similarly, while termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home, termination may be necessary for the child's needs and welfare in cases where the child's parental bond is impeding the search and placement with a permanent adoptive home. In weighing the difficult factors discussed above, courts must keep the ticking clock of childhood ever in mind. Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly. When courts fail […] the result, all too often, is catastrophically maladjusted children. In recognition of this reality, over the past fifteen years, a substantial shift has occurred in our society's approach to dependent children, requiring vigilance to the need to expedite children's placement in permanent, safe, stable, and loving homes. [The Adoption and Safe Families Act of 1997, P.L. 105-89] ASFA[, ] was enacted to combat the problem of foster care drift, where children […] are shuttled from one foster home to another, waiting for their parents to demonstrate their ability to care for the children. See In re R.J.T., 9 A.3d at 1186; In re Adoption of S.E.G., [901 A.2d 1017 (Pa. 2006)], at 1019. This drift was the unfortunate byproduct of the system's focus on reuniting children with their biological parents, even in situations where it was clear that the parents would be unable to parent in any reasonable period of time. Following ASFA, Pennsylvania adopted a dual focus of reunification and adoption, with the goal of finding permanency for children in less than two years, absent compelling reasons. See, 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S. § 6351(f)(9) (requiring courts to determine whether an agency has filed a termination of parental rights petition if the child has been in placement for fifteen of the last twenty-two months).
[fn] We recognize, however, that the Superior Court in K.K.R.-S. addressed a situation where no clear bond between the mother and child was apparent, and thus rejected the mother's attempt to require CYS to prove the absence of a positive bond.
In re: T.S.M., __A.3d __; (Slip Op. Nos. 7-11 WAP 2013, filed July 22, 2013); 2013 Pa. Lexis 1568 (Pa. July 22, 2013).
In its Rule 1925(a) opinion, the trial court stated:
Mother's arguments present as if only Mother is the victim of the domestic violence, but Children are just as much, if not more so, the victims. The analysis is no different than if Mother were a drug addict, physical abuser, or had a mental health challenge, just because, in a domestic violence case[, ] Mother may appear more sympathetic painting herself as a victim. Not only were reasonable efforts made to reunify Mother and Children, but everything possible was done for or offered to Mother. At some point, the best interests, needs, and welfare of the Children have to be prioritized.
Trial Court Opinion, 1/18/2013, at 12.
We find that the trial court appropriately considered all of the factors to be assessed under Section 2511(b), and its discussion is consistent with our Supreme Court's decision in In re: T.S.M. Further, we find the trial court's conclusions are supported by competent evidence in the record. As such, we find no abuse of the trial court's discretion in terminating Mother's (and Father's) parental rights. See In re: Adoption of S.P., 47 A.3d at 826-27.
Next, we address the second issues raised in Mother's and Father's appeals regarding the change in permanency goal to adoption.
Our Supreme Court reiterated the appropriate standard of review of a juvenile court's permanency determination.
As the Superior Court stated [in In re R.J.T., 990 A.2d 777 (Pa. Super. 2010)], the standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.
In re R.J.T., 608 Pa. at 28-29, 9 A.3d at 1190.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—
(1) [t]he court shall conduct a permanency hearing for the purpose of determining or reviewing the permanency plan of the child, the date by which the goal of permanency for the child might be achieved and whether placement continues to be best suited to the safety, protection and physical, mental and moral welfare of the child. In any permanency hearing held with respect to the child, the court shall consult with the child regarding the child's permanency plan in a manner appropriate to the child's age and maturity. . . .
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42 Pa.C.S.A. § 6351(e).
Regarding permanency, Section 6351 provides, in pertinent part:
(f) Matters to be determined at permanency hearing.— At each permanency hearing, a court shall determine all of the following:
(1) The continuing necessity for and appropriateness of the placement.
(2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current placement goal for the child.
(5) The likely date by which the placement goal for the child might be achieved.
(5.1) Whether reasonable efforts were made to finalize the permanency plan in effect.
(6) Whether the child is safe.
(9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the child's parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child; or
(iii) the child's family has not been provided with necessary services to achieve the safe return to the child's parent, guardian or custodian within the time frames set forth in the permanency plan.
(f.1) Additional determination. — Based upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:
(1) If and when the child will be returned to the child's parent, guardian or custodian in cases where the return of the child is best suited to the safety, protection and physical, mental and moral welfare of the child.
(2)If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the child's parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a legal custodian in cases where return to the child's parent, guardian or custodian or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(4) If and when the child will be placed with a fit and willing relative in cases where return to the child's parent, guardian or custodian, being placed for adoption or being placed with a legal custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(5) If and when the child will be placed in another living arrangement intended to be permanent in nature which is approved by the court in cases where the county agency has documented a compelling reason that it would not be best suited to the safety, protection and physical, mental and moral welfare of the child to be returned to the child's parent, guardian or custodian, to be placed for adoption, to be placed with a legal custodian or to be placed with a fit and willing relative.
(f.2) Evidence. – Evidence of conduct by the parent that places the health, safety or welfare of the child at risk, including evidence of the use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk, shall be presented to the court by the county agency or any other party at any disposition or permanency hearing whether or not the conduct was the basis for the determination of dependency.
(g) Court order.— On the basis of the determination made under subsection (f.1), the court shall order the continuation, modification or termination of placement or other disposition which is best suited to the safety, protection and physical, mental and moral welfare of the child.
* * *
42 Pa.C.S.A. § 6351 (emphasis added).
We observe that, in a change of goal proceeding under the Juvenile Act, 42 Pa.C.S.A. § 6351, the best interests of the child, and not the interests of the parent, must guide the trial court, and the parent's rights are secondary. In re A.K., 936 A.2d 528, 532-534 (Pa. Super. 2007).
Here, the trial court determined:
While it is Mother's choice to maintain a relationship with Father that renders it unsafe for Children to return home, Mother's active concealment of said relationship further prevents any safety nets from being put into place. Throughout the entire course of the CYS involvement, Mother has lied and withheld information from her friends and family, whom [sic] were willing to support her. Mother lied to manipulate people, including the people who would have been there to help. In the event that Mother was to cease communication with Father and Children were returned to her, there would be no safety net or support system available, as Mother admittedly conceals such contact from her family and friends.
Further rendering unsafe for Children to return home, [sic] is Mother's undermining effect on the services put into place by CYS. As an example, Children's older siblings had previously indicated an interest in participating in counseling. Due to the older siblings' ages and ability to protect themselves they were returned home to Mother. Upon their return home, Mother indicated that the older siblings no longer wished to participate in counseling. However, the siblings have since made it clear that they would like the opportunity to continue with counseling. Clearly, Mother is negatively influencing the older siblings['] participation in ongoing services. Everyone, including CYS, the caseworker, the [trial court], Mother's family[, ] and friends, has been on Mother's side and tried to help her; however, she chose to undermine the entire process.
The [trial court] wishes to emphasize that the fact that Children's older siblings were returned home does not alleviate the safety threat to the Children. The older siblings are fourteen[-] and sixteen[-]year[-]old teenage boys. The siblings have demonstrated an ability to escape from the home during Father's acts of domestic violence and to obtain assistance. However, Children are four, five, and six years old and are incapable of protecting themselves. The older siblings were not returned to Mother due to the [trial court's] confidence that she is capable of maintaining a safe household, but rather the [trial court's] confidence in the siblings that they are capable of protecting themselves.
Lastly, the [trial court] wishes to address the parental capacity and bonding assessment conducted by Dr. [ ] Wolfe [ ], the court[-]appointed expert witness. Dr. Wolfe was initially directed only to perform a bonding assessment between Mother and [C]hildren. However, after Dr. Wolfe reviewed the background information of the case, he determined that it was necessary to also conduct a parental capacity assessment. Dr. Wolfe determined to a reasonable degree of professional certainty that Mother has significant limitations in her parental-role capacities and that although Children are bonded to her, they are also bonded to the pre-adoptive foster family and that any trauma Children may experience as a result of a termination of Mother's parental rights is heavily outweighed by the positive relationship Children have with the [F]oster [F]amily.
In regard to mother's parental capacity, she has significant limitations in her capacity to provide protections for herself from physical violence. Mother also has significant difficulty providing a home life characterized by protection [and] security. Mother continues to exhibit denial in her enabling role in the home life and [sic] she and Father had constructed and continues to deny the severity of Father's violence and acting out. Mother also minimizes the possible influence that the violence was having on Children. Mother actively enabled her relationship with Father to continue. Even with social services in place, Mother continued to go back to Father and there is no indication that Mother will break off the relationship. Mother has no sorrow or remorse for the effect that her tumultuous relationship with Father may have on Children.
Although her parental capacity is poor, Mother does have a positive emotional bond with Children. Mother is affectionate, playful, attentive, and supportive toward Children. However, she does have difficulty expressing empathy for Children and the long[-]term effect the domestic violence may have on them. Mother's capacity to provide protection for Children is severely compromised and she has difficulty placing Children's needs above her own. Mother also has difficulty in modeling and teaching Children how to manage conflict. At the time of Dr. Wolfe's report as well as his deposition, he was under the belief that Mother had no contact with Father since April of 2011. Even with this belief, he indicated that she had a guarded prognosis due to her lengthy history of relationships marked by domestic violence.
On the other hand, Children have an excellent bond with the Foster Family, which is characterized by warmth, affection, and trust. The Foster Family is sensitive to Children's emotional needs and is willing to place Children's needs above their own. Children are flourishing physically, intellectually, and emotionally in the Foster Family's care. Although Children refer to Mother as "Mommy" they also refer to the Foster Family [as] "Mommy" and "Daddy." Although Mother and Children express mutual affection for one another, the affection between the Foster Family and Children, particularly [X.D.P.], is greater.
At the time of the parental capacity and bonding assessment, Father's whereabouts where [sic] unknown to the [trial court], CYS, and the authorities, as there was an active warrant for his arrest. Since Father could not be located, he did not participate in the parental capacity and bonding assessment. However, Father has not had contact with Children in eighteen months, with his last contact being a supervised visit on January 19, 2011. As explained supra, Father is facing extensive criminal charges with the potential to remain incarcerated for an extensive period of time. Father also made it very clear to the [trial court] that he does not care whether Children are returned to Mother or are adopted and that[, ] should they be returned to Mother[, ] he has no intention of supporting them. Although the bond, if any, between Father and the Children was not assessed by Dr. Wolfe, the [trial court] is still able to determine by the totality of the circumstances that any potential trauma of terminating Father's parental rights will be far outweighed by the positive emotional bond Children have with the Foster Family.
Dr. Wolfe ultimately concludes that a termination of parental rights and subsequent adoption by the Foster Family is in Children's best interests. It is acknowledged that Children have a bond with Mother and may have a bond with Father, but that they are more strongly bonded to the Foster Family[, ] and the strength of this bond will far outweigh any potential trauma of a termination of Mother's and Father's parental rights. The Guardian Ad Litem also recommends that a termination of parental rights is in Children's best interests and welfare. Due to the tender age of Children and their confusion in going between two homes, the Guardian Ad Litem did not discuss Children's preference with them. Rather, the Guardian Ad Litem relied both on Dr. Wolfe's testimony and report as well as the totality of the circumstances to determine that Dr. Wolfe's recommendation is appropriate and in Children's best interests.
Trial Court Opinion, 11/6/2012, at 11-15.
The trial court found that the Children were not safe with Mother, as she could not provide them protective care. At the time of the hearings in July of 2012, the Children had been removed from the care of their parents and in placement since September of 2010, or twenty-six months. Further, the trial court found that, based upon the Children's need for permanency and their bonds developed with their pre-adoptive foster family, with whom they had been placed since August of 2011, it was in Children's best interests to be adopted by Foster Family and achieve safe, timely permanency. See Trial Court Opinion, 10/16/2012, at 23-24.
After a careful review of the record in this matter, we find that there is competent, clear and convincing evidence in the record to support the trial court's finding that CYS proved that a change in the permanency goals for the Children to adoption is in the Children's best interests. R.J.T., 608 Pa. at 19 n.7, 9 A.3d at 1185 n.7, 1190-91. See also In re A.K., 936 A.2d at 532-534. Accordingly, we affirm the trial court's orders changing the permanency goals for the Children to adoption as well as the orders terminating Mother's and Father's parental rights.