October 4, 2013
IN RE: S.M.R. (1) APPEAL OF: Z.R., MOTHER IN RE: S.M.R. (2) APPEAL OF: Z.R., MOTHER IN RE: S.M.R. (3) APPEAL OF: Z.R., MOTHER IN RE: S.M.R. (4) APPEAL OF: Z.R., MOTHER
Appeal from the Order entered March 28, 2013, in the Court of Common Pleas of Philadelphia County, Family Court, at No(s): 51-FN-469709-2009, CP-51-AP-0000362-2012, CP-51-AP-0000363-2012, CP-51-AP-0000364-2012, CP-51-AP-0000365-2012, CP-51-DP-0082894-2009, CP-51-DP-0082896-2009, CP-51-DP-0082893-2009, CP-51-DP-0082895-2009
BEFORE: ALLEN, OTT, and COLVILLE[*], JJ.
Appellant, Z.R. ("Mother"), appeals from the orders dated March 28, 2013, granting the petitions filed by the Department of Human Services ("DHS"), which sought to involuntarily terminate Mother's parental rights to S.M.R. (1), S.M.R. (2), S.M.R. (3), and S.M.R. (4) (collectively "the Children"), pursuant to section 2511(a)(1), (2), (5), and (8), and (b). We affirm.
In its opinion entered on May 24, 2013, the trial court set forth the factual background and procedural history of this appeal, which we will not reiterate, except as necessary to understand our disposition of the appeal.
On August 5, 2009, DHS received a General Protective Services report that twenty-one-month-old S.R., Mother and Father's now deceased daughter, was taken to the hospital on August 4, 2009, and remained hospitalized in critical condition. Upon admission, the hospital found that S.R. had an elevated sodium chloride level, and suspected that the cause was non-accidental salt poisoning. The Children were also tested, and the results revealed that S.M.R. (1) and S.M.R. (2) also had elevated levels of sodium chloride. Mother has a history of several mental health diagnoses, including bipolar disorder, depression, post-traumatic stress disorder, dissociation disorder, and anxiety. On August 6, 2009, DHS obtained an order of protective custody for the Children and S.R., and all five were hospitalized at St. Christopher's Hospital. The shelter care hearing was held on August 7, 2009, and S.R. remained hospitalized in the Intensive Care Unit in a vegetative state. The trial court ordered that S.R. and the Children remain in the custody of DHS, and the parents were not to have contact with S.R. and the Children or hospital staff. On August 17, 2009, the trial court ordered that S.R. was to be taken off life support, and S.R. passed away within a few hours.
On February 17, 2010, DHS had a Family Service Plan ("FSP") meeting where the goals outlined for Mother were: (1) to participate in a forensic evaluation and comply with recommendations; (2) to participate in a bonding evaluation and comply with the recommendations; (3) to refrain from bringing gifts, candy, food, or drinks for the Children to the evaluation; (4) to refrain from physical contact with the Children during the evaluation unless initiated by the Children as per court order; and (5) to understand how and why the Children were injured and recognize why they came into care. On August 10, 2010, DHS added to Mother's FSP goals: (1) to participate in bi-weekly therapeutic agency visitations; and (2) to remain compliant with medication management, to attend individual therapy, and to seek supportive services.
On October 28, 2010, DHS referred Mother to the Achieving Reunification Center ("ARC"), and she completed an intake and orientation on November 2, 2010. ARC recommended that Mother complete parenting education, financial counseling, anger management, Women's Employment, and OCI job training to assist her in meeting her FSP goals.
On April 11, 2011, DHS added additional FSP objectives: (1) to participate in supervised biweekly visits with the Children; and (2) to locate and occupy suitable housing for the family.
At a permanency hearing on July 27, 2011, Mother was found to be compliant with the permanency plan after completing parenting and anger management programs. Mother was referred to the Philadelphia Housing Authority for housing assistance and ARC. Mother's visitation was modified to bi-weekly supervised visitation on alternate weeks since Mother and Father had separated. On July 27, 2011, at an aggravated circumstances hearing, the trial court found aggravated circumstances existed in the form of aggravated physical neglect of the Children, constituting abuse.
On July 5, 2012, DHS filed petitions for the involuntary termination of Mother's parental rights to the Children and to change the goals to adoption. On March 28, 2013, the trial court held a hearing on the termination petitions, and on that same day, the trial court entered its orders terminating Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b).
On April 25, 2013, Mother timely filed notices of appeal, along with concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated the cases sua sponte on May 30, 2013.
On appeal, Mother raises the following issue:
1. Did the trial court err in determining that it was in the best interest of the Children to terminate [M]other's parental rights given that [M]other had completed all of her FSP goals, had a strong bond with her children and had been receiving mental health treatment at the request of the [DHS]?
Mother's Brief at 5.
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., [ Pa., , 36 A.3d 567, 572 (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 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655], 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., 608 Pa. 9, 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.
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(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.A. § 2511(a)(1), (b). Although the trial court entered its order terminating Mother's parental rights under section 2511(a)(1), (2), (5) and (5), "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.
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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 at 91-92 (Pa. 1998).
Mother argues that the trial court erred in granting the petitions to terminate Mother's parental rights because she had completed all of her FSP goals. Mother's Brief at 9. Mother argues she made every effort to comply with her FSP objectives, and thus, the trial court abused its discretion in granting the petition to involuntarily terminate her parental rights. We disagree. Compliance with a family service plan does not result in per se resolution of the conditions that led to a child's placement or equate to the genuine performance of parental duties. See generally In re: B., N.M., 856 A.2d at 855 (defining parental duties as measured by a holistic view of one's fervor and capacity to parent).
The trial court found:
Mother has failed to remedy the conditions that brought the Children into care and has failed to provide basic care for the Children or to demonstrate the ability or willingness to do so, demonstrated by her inability to acknowledge that her children were neglected and that her actions or inactions contributed to the death of S.R.
Trial Court Opinion, 5/24/13, at 21. The trial court relied on the testimony of Gillian Blair, Ph.D., which "specifically expressed her concerns about Mother's capacity to parent despite her compliance with the FSP objectives in her report and again during the termination hearing." Id. at 20-21. Additionally, Alda Vinson, a DHS caseworker, testified that Mother has not developed an understanding of why the Children came into care, and that Mother has not met that FSP objective to her satisfaction. N.T., 3/28/13, at 147, 149.
Our review of the record finds substantial support for the trial court's conclusion that Mother failed to perform her parental duties throughout the Children's placement. After concluding that Mother failed or refused to perform parental duties, the court must next consider (1) Mother's explanation for her conduct; (2) the post-abandonment contact between Mother and the Children; and (3) the effect of termination of parental rights on the Children pursuant to Section 2511(b). In the Matter of the Adoption of Charles E.D. M., II, 708 A.2d at 91-92.
Mother concedes that, at the aggravated circumstances hearing on July 27, 2011, the trial court determined that both parents were responsible for S.R.'s death. Mothers Brief, at 11. However, Mother asserts that she began to accept responsibility. Id. at 11. Mother argues that her visits remained biweekly and for two hours due to the geographic distance between the Children and her, explaining her failure to perform parental duties. Id. at 15. Additionally, Mother asserts that "the lower court failed to consider that it was the decision of DHS and Children's Choice to have the [C]hildren placed at a foster home so far from the city." Id. at 14. She argues that "it is almost as if DHS and the agency wanted this family to fail." Id. at 14.
Mother continued to blame fast food for the elevated sodium levels in three of her children and testified that the elevated sodium levels and S.R.'s choking led to the removal of all her children. Without an ability to appreciate the mistakes she made prior to the removal of her children, [the trial court] remains wholly unconvinced that mother has the capacity to parent her children and to avoid falling into a pattern of neglect.
Trial Court Opinion, 5/24/13, at 20.
After review of the record, the testimony adduced at the hearing, the trial court's opinion, and Mother's brief, we discern no abuse of discretion or error of law in the trial court's application of section 2511(a)(1), and we proceed to address the trial court's application of section 2511(b). See In the Matter of the Adoption of Charles E.D.M., II, 708 A.2d at 91-92.
Mother additionally argues that the trial court erred in terminating her parental rights to the Children because Mother had a strong bond with the Children pursuant to section 2511(b).
Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond. . . . The court must consider whether a natural parental bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. Most importantly, adequate consideration must be given to the needs and welfare of the child. In re K.Z.S., 946 A.2d 753, 760 (Pa.Super. 2008) (citations and formatting omitted). We have held that when evaluating a parental bond, the trial court is not required to use expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010). Moreover, "In 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 at 763.
In its analysis of section 2511(b), the trial court found that terminating Mother's parental rights would be in the best interest of the Children. Trial Court Opinion, 5/24/13, at 21. The trial court explained that "Mother has never been the sole provider of the Children, " and she was "minimally involved in their care due to her physical and psychiatric ailments." Id. at 21. Ms. Vinson, Erica Williams, M.D., and Ms. Tammie Edgroth, a foster care adoption agent, testified that termination of Mother's parental rights would be in the best interest of the Children, and that the Children would not suffer irreparable harm from termination of Mother's parental rights. N.T., 3/28/13, at 121-127, 153-156, 195-96. Ms. Vinson stated that Mother currently lives in a two-bedroom apartment, which would result in the Children being confined to their room for a majority of the day, and Mother still does not have an accurate understanding of what brought the Children into care. N.T., 3/28/13, at 153-156. Additionally, Dr. Williams testified that the Children demonstrated a positive relationship with Mother, but they did not view her as a caregiver. Id. at 122-124.
Furthermore, the trial court found that the evidence demonstrated the Children had a strong bond with their foster parents, and that the foster parents are willing and able to adopt all of the Children, who have been in their care since 2009. Trial Court Opinion, 5/24/13, at 23. Ms. Edgroth testified that the Children call their foster parents "Mom" and "Dad, " and that the Children are very comfortable around them. N.T., 3/28/13, at 193- 194. Ms. Edgroth opined that the Children would be harmed if they were removed from the foster parents. Id. at 208-209.
Accordingly, for the reasons stated above, we discern no abuse of discretion in the trial court's determination under section 2511(b), and affirm the trial court's orders directing the involuntary termination of Mother's parental rights to the Children pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b).