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In re N.H.C.

Superior Court of Pennsylvania

November 6, 2013



Appeal from the Order Entered May 15, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-DP-000008-2011

Appeal from the Order Entered May 16, 2013 In the Court of Common Pleas of York County Orphans' Court at No(s): 2013-2009.




Appellant, B.L.C. (Mother) appeals from the May 15 and 16, 2013 orders[1] of the Court of Common Pleas of York County, terminating her parental rights to her son, N.H.C., born in February 2004, and changing the goal to adoption.[2] After careful review, we affirm.

The relevant factual and procedural history, as set forth in the trial court's findings of fact in support of its termination of parental rights and goal change orders, can be summarized as follows. See Trial Court Adjudication, 5/16/13, at 2-16. Mother placed N.H.C. outside the home voluntarily through the York-Adams Mental Health/Mental Retardation (MH/MR) agency in April of 2010. The York County Office of Children Youth and Families (CYF) filed a petition for dependency on February 14, 2011, when N.H.C.'s MH/MR medical assistance benefits expired. Mother was incarcerated in Adams County Prison when the trial court adjudicated N.H.C. dependent and awarded legal and physical custody to CYF, on March 2, 2011. At that time, Mother had not had any contact with N.H.C. in nearly a year.

Dr. Anthony Russo conducted a psychiatric evaluation of N.H.C. on March 6, 2011. Dr. Russo's diagnosis was Pervasive Developmental Disorder, NOS; Organic Mood Disorder; Intermittent Explosive Disorder; Conduct Disorder; Learning Disorder, NOS; Parent-Child Relationship Problems; Attention Deficit Hyperactivity Disorder by History; and Post-Traumatic Stress Disorder with Mood Disorder. Dr. Russo updated his diagnoses on four subsequent occasions over the course of eighteen months.

CYF established Mother's initial family service plan (FSP) on March 29, 2011. The objectives included: 1) cooperate with CYF by signing all necessary forms and notifying CYF of her release date and contact information; 2) work towards reunification with N.H.C. by maintaining mail contact with N.H.C., develop a support system of friends and family, and participate in a family group decision making conference upon her release; and, 3) complete parenting and mental health classes while incarcerated.

A status review hearing held on June 16, 2011, revealed that Mother remained at Adams County Prison, and that N.H.C. had completed second grade and enrolled in a summer program through the Lincoln Intermediate Unit.

At a permanency review hearing on August 16, 2011, Mother's appointed counsel reported an anticipated early release date for Mother of September of 2011, and that Mother had completed a relapse prevention program while incarcerated. N.H.C. had completed a partial hospitalization program and was participating in weekly equine and individual therapy. Prison authorities did not permit Mother to participate in these proceedings.

CYF added new objectives to the FSP on January 31, 2012; they were as follows. 1) meet N.H.C.'s mental health needs; 2) identify N.H.C.'s biological father; 3) participate in programs while incarcerated that will assist reunification; and, 4) provide CYF with the names of individuals who could be N.H.C.'s father.

Mother was released from prison in April 2012, and was residing at Atkins House, a halfway house. Subsequently, on July 3, 2012, CYF moved N.H.C. to a respite foster home at the request of his foster parents on July 3, 2012. A permanency review hearing was held on July 10, 2012, and revealed that Mother was seeking employment and continued in weekly counseling. She had attended two visits with N.H.C. and the visits had gone well. N.H.C. had completed the third grade and was attending the summer program at Paradise School for Boys. N.H.C. was engaging in aggressive behaviors in the foster home including threats against himself and others, breaking objects and cursing. N.H.C. continued in therapy.

On August 8, 2012, the Bureau of Corrections advised CYF that Mother had failed to comply with her terms of parole and that they had transferred her from her current halfway house to a program in Reading, Pennsylvania. Mother's violations included failing to show progress, failing to abide by house rules, engaging in a relationship with a male, failing to pay fines and costs, failing to actively seek or accept employment, and failing to develop a home plan.

CYF moved N.H.C. to another foster home on August 9, 2012, and from that home to yet another on August 22, 2012, after allegations that he had inappropriately touched the five-year-old daughter of the foster parent. Physical aggression continued to escalate between N.H.C. and a foster brother in the new foster home.

After he completed a psychiatric evaluation of N.H.C. on September 6, 2012, Dr. Russo recommended that CYF place N.H.C. in a residential facility. The trial court placed N.H.C. at Children's Home of York following a hearing on October 2, 2012, with the concurrence of Dr. Russo, CYF, N.H.C.'s guardian ad litem, N.H.C.'s educational advocate, and the court-appointed special advocate. Mother did not appear at the hearing in spite of assuring her caseworker that she would be there. Mother also failed to appear at the review hearing held on October 10, 2012, and had not visited with N.H.C. since July 24, 2012.

N.H.C. was hospitalized from November 1 to November 13, 2012, after acting out emotionally and physically at school because he had to attend a full day of school when some students had only a half day. At a permanency review held on December 19, 2012, Mother reported that she lost her job as a telemarketer, but was attending NA/AA meetings. Mother visited N.H.C. on November 14, 2012, for the first visit in nearly four months. Mother was late for visits on December 5, 2012 and December 12, 2012. Mother had not attended any meetings for N.H.C. or called to inquire what had occurred at any of the meetings. N.H.C. continued in therapy at Tindall House with his third therapist.

CYF filed petitions to change N.H.C.'s goal and to terminate Mother's and putative father's parental rights on January 29, 2013. A review hearing held on March 20, 2013, revealed that Mother's last visit with N.H.C. had been on January 2, 2013, and lasted only 45 minutes as Mother had arrived late and left early. Mother was hospitalized in Reading for mental health issues after she relapsed and tested positive for cocaine and THC on February 13, 2013. State parole authorities placed her in a twelve-month program at Guadenzia on the same date. N.H.C.'s behavioral issues were improving; he was doing well in therapy and continued to do well at Paradise School. N.H.C.'s family therapy sessions ended on January 2, 2013, due to a lack of contact with Mother.

At the time of the termination and goal change hearing in this matter, N.H.C. had been dependent since March 2011, and had not resided in Mother's custody since Easter 2008. Mother attended eight visits with N.H.C. from March 2011 until April 2013, all of which were supervised or were in a therapeutic setting. CYF sent notices to Mother of all treatment team meetings, medication checks, school meetings, and medical and dental appointments throughout the history of this case, and offered transportation assistance or the option of participation by phone. Mother, however, failed to attend any of these appointments or meetings, and she never inquired as to the results of any of them.

The trial court entered its orders terminating Mother's parental rights and changing N.H.C.'s goal to adoption on May 15 and May 16, 2013, respectively. Mother filed her notices of appeal together with her concise statements of errors complained of on appeal in accordance with Pa.R.A.P. 1925(a)(2)(i), on June 13, 2013.

On appeal, Mother raises the following questions for our review.

I. Whether the trial court erred in changing the goal from reunification to adoption and termination of parental rights without clear and convincing evidence that a change of goal would best serve the interests of [N.H.C.][?]
II. Whether the trial court erred in terminating [Mother's] parental rights without clear and convincing evidence that termination best served the emotional needs and welfare of [N.H.C.][?]
III. Whether [CFY] failed to present clear and convincing evidence that termination of [Mother's] parental rights best served the emotional needs and welfare of [N.H.C.][?]

Mother's Brief at 4.

Our standard of review for a termination order is as follows.

In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).

Further, regarding a termination order, we have stated the following. "Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result." In re M.G., 855 A.2d 68, 73 (Pa.Super. 2004) (citations omitted).

We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.

Id. at 74.

Additionally, we note our standard of review of a change of goal is as follows.

When we review a trial court's order to change the placement goal for a dependent child to adoption, our standard is abuse of discretion. In order to conclude that the trial court abused its discretion, we must determine that the court's judgment was manifestly unreasonable, that the court did not apply the law, or that the court's action was a result of partiality, prejudice, bias or ill will, as shown by the record. The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witnesses and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the trial court's findings are supported by competent evidence of record, we will affirm even if the record could also support an opposite result.

In the Interest of S.G., 922 A.2d 943, 946-947 (Pa.Super. 2007) (citations omitted).

In order to affirm the termination of parental rights, this Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).

Requests to have a natural parent's parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides the following, in relevant part.

§ 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:
(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. 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.

It is well settled that a party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence, " a standard which requires evidence 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." In re T.F., 847 A.2d 738, 742 (Pa.Super. 2004) (citation omitted).

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.

In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa.Super. 2008) (citations omitted).

To terminate parental rights pursuant to Section 2511(a)(1), the person or agency seeking termination must demonstrate through clear and convincing evidence that, for a period of at least six months prior to the filing of the petition, the parent's conduct demonstrates a settled purpose to relinquish parental rights or that the parent has refused or failed to perform parental duties. In Re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).

With respect to subsection 2511(a)(1), our Supreme Court has held.

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 re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Further,

the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.

In re N.M.B., 856 A.2d 847, 854-855 (Pa.Super. 2004) (citations omitted), appeal denied, 872 A.2d 1200 (Pa. 2005).

The Adoption Act provides that a trial court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. § 2511(b). The Act does not make specific reference to an evaluation of the bond between parent and child, but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super. 2008).

Our examination of the record reveals that the trial court's decision to terminate Mother's parental rights under Sections 2511(a)(1) and (b), and to change N.H.C.'s goal to adoption is supported by clear and convincing evidence, and that there was no abuse of the trial court's discretion. The trial court has authored a comprehensive 29-page opinion, thoroughly discussing each of Appellant's issues. Accordingly, we affirm the trial court's orders on the basis of the thoughtful, well-written May 16, 2013 opinion of the Honorable Maria Musti Cook, and adopt said opinion as our own.

Orders affirmed.


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