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[U] In re Adoption of E.L.

Superior Court of Pennsylvania

January 7, 2014

IN RE: ADOPTION OF: E.L., A MINOR APPEAL OF: T.W., MOTHER IN RE: ADOPTION OF: E.L., A MINOR APPEAL OF: T.W., MOTHER IN THE INTEREST OF: E.L., A MINOR APPEAL OF: T.W., MOTHER IN THE INTEREST OF: E.L., A MINOR APPEAL OF: T.W., MOTHER IN RE: ADOPTION OF: E.L., A MINOR APPEAL OF: T.P.L., II, FATHER IN RE: ADOPTION OF: E.L., A MINOR APPEAL OF: T.P.L., II, FATHER IN THE INTEREST OF: E.L., A MINOR APPEAL OF: T.P.L., II, FATHER IN THE INTEREST OF: E.L., A MINOR APPEAL OF: T.P.L., II, FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered April 22, 2013, in the Court of Common Pleas of York County, Orphans' Court, at No(s): 2012-0107, 2012-0106, 2012-107, 2012-106

Appeal from the Order entered April 22, 2013, in the Court of Common Pleas of York County, Juvenile Division, at No(s): CP-67-DP-0000063-2011, CP-67-DP-0000062-2011

Appeal from the Order entered April 17, 2013, in the Court of Common Pleas of York County, Juvenile Division, at No(s): CP-67-DP-0000062-2011, CP-67-DP-0000063-2011

BEFORE: SHOGAN, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

T.W. ("Mother") and T.P.L., II ("Father") appeal from the decrees involuntarily terminating their parental rights and the orders changing the placement goals to adoption with respect to their daughter, E.L. (female), born in March of 2007, and their son, E.L. (male), born in July of 2005 (collectively, "the Children").[1] We affirm.

In its opinion that accompanied the subject orders, the trial court set forth thirty-two findings of fact, which the testimonial and documentary evidence supports. As such, we adopt them as the factual and procedural history of this case. See Trial Court Opinion, 4/22/13, at 3-14.

On November 27, 2012, the York County Office of Children, Youth and Families ("CYF") filed petitions for the involuntary termination of Mother's and Father's parental rights and petitions for change of goal with respect to the five biological children of Mother and Father. The trial court held a hearing on the petitions on February 1, 2013, and March 15, 2013. The following witnesses testified: Nicole Fisher, CYF caseworker; Hilary Maugham, program director at Justice Works Youth Center; Michael Breeland, family therapist at Pressley Ridge; Casey Holtzappel, family advocate at Pressley Ridge; Ellie Williams, equine therapist; Barry Hart, Ph.D., who performed a mental health evaluation for Mother; Father; and Mother. In addition, the court interviewed the Children in camera in the presence of their Guardians ad Litem ("GAL") and the Court Appointed Special Advocate ("CASA").

By decrees dated April 17, 2013, and entered on April 22, 2013, the trial court involuntarily terminated Mother's and Father's parental rights pursuant to 23 Pa.C.S.A § 2511(a)(1), (2), (5), (8), and (b). In addition, by orders dated April 17, 2013, and entered on April 22, 2013, the court granted CYF's petitions for goal change. Mother and Father timely filed separate 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 and Father raise identical issues for our review as follows:

I. Whether the trial court erred in changing the goal from reunification to adoption?
II. Whether the trial court erred in terminating the parental rights of Mother and Father pursuant to sections 2511(a)(1), (2), (5), and (8) of the Adoption Act?
III. Whether the trial court erred in concluding that termination of parental rights would best serve the needs and welfare of the Children pursuant to section 2511(b) of the Adoption Act?

Mother's Brief at 5; see also Father's Brief at 5.

We review Mother's and Father's first issue regarding the change of goal to adoption according to the following standard:

In cases involving a court's order changing the placement goal . . . to adoption, our standard of review is abuse of discretion. To hold that the trial court abused its discretion, we must determine its judgment was manifestly unreasonable, that the court disregarded the law, or that its action was a result of partiality, prejudice, bias or ill will. While this Court is bound by the facts determined in the trial court, we are not tied to the court's inferences, deductions and conclusions; we have a responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Therefore, our scope of review is broad.

In re S.B., 943 A.2d 973, 977 (Pa.Super. 2008) (citations omitted).

A goal change request is governed by the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., which was amended in 1998 to conform to the federal Adoption and Safe Families Act ("ASFA"), 42 U.S.C. § 671 et seq. In re M.S., 980 A.2d 612, 615 (Pa.Super. 2009). We have recognized that "[b]oth statutes are compatible pieces of legislation seeking to benefit the best interest of the child, not the parent. . . . ASFA promotes the reunification of foster care children with their natural parents when feasible. . . . Pennsylvania's Juvenile Act focuses upon reunification of the family, which means that the unity of the family shall be preserved 'whenever possible.'" Id. (citing 42 Pa.C.S.A. § 6301(b)(1)). As such, child welfare agencies are required to make reasonable efforts to return a foster child to his or her biological parent. In re N.C. , 909 A.2d 818, 823 (Pa.Super. 2006). When those efforts fail, the agency "must redirect its efforts toward placing the child in an adoptive home." Id. We have stated,

[W]hen a child is placed in foster care, after reasonable efforts have been made to reestablish the biological relationship, the needs and welfare of the child require [the child welfare agency] and foster care institutions to work toward termination of parental rights, placing the child with adoptive parents. It is contemplated [that] this process realistically should be completed within 18 months.

Id. at 824 (emphasis omitted) (citations omitted).

At permanency review hearings for dependent children removed from the parental home, a trial court must consider the following factors:

(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.

42 Pa.C.S.A. § 6351(f)(1)-(6), (9). "These statutory mandates clearly place the trial court's focus on the best interests of the child." In re S.B., 943 A.2d at 978 (citation omitted). We have stated "[s]afety, permanency, and well-being of the child must take precedence over all other considerations." Id. (citation omitted) (emphasis in original). Moreover, "the burden is on the child welfare agency . . . to prove that a change in goal would be in the child's best interest." In re R.I.S., 36 A.3d 567, 573 (Pa. 2011).

We review Mother's and Father's second and third issues regarding 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.; R.I.S., [ __Pa. __, __, 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 (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. at 28-30], 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, 165, ] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-326, 47 A.3d 817, 826-827 (2012).

Termination of parental rights is governed by Section 2511 of the Adoption Act, which requires a bifurcated analysis.

Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citing 23 Pa.C.S.A. § 2511). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).

Instantly, the relevant provisions of the Adoption Act are as follows:

(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.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(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.
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of 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(a)(1), (2), (5), (b).

With respect to Section 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., 550 Pa. 595, 602, 708 A.2d 88, 92 (Pa. 1998). 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).

To terminate parental rights pursuant to Section 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003). Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa.Super. 2002). A parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous. Id.

To terminate parental rights pursuant to Section 2511(a)(5), the following factors must be demonstrated: (1) the child has been removed from parental care for at least six months; (2) the conditions which led to the child's removal or placement continue to exist; (3) the parents cannot or will not remedy the conditions which led to removal or placement within a reasonable period of time; (4) the services reasonably available to the parents are unlikely to remedy the conditions which led to removal or placement within a reasonable period of time; and (5) termination of parental rights would best serve the needs and welfare of the child. See In re Adoption of M.E.P., 825 A.2d at 1273-1274.

To terminate parental rights pursuant to Section 2511(a)(8), the following factors must be demonstrated: "(1) the child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa.Super. 2003); 23 Pa.C.S.A. § 2511(a)(8).

With respect to Section 2511(b), we have explained the requisite analysis as follows:

Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In addition, we instructed that the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

Upon careful review of Mother's and Father's arguments in their appellate briefs in light of the applicable law, we conclude the record evidence overwhelmingly supports the trial court's involuntary termination and goal change decisions with respect to E.L. (female) and E.L. (male). Thus, we discern no abuse of discretion. Accordingly, we adopt the opinion accompanying the subject decrees and orders as dispositive of Mother's and Father's issues on appeal. See Trial Court Opinion, 4/22/13. The parties are directed to attach a redacted copy[2] of the trial court's opinion in the event of further proceedings.

Decrees affirmed. Orders affirmed.

Judgment Entered.

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