NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.M.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.F.C., MOTHER No. 563 MDA 2017
Appeal from the Decree February 27, 2017 in the Court of Common Pleas of Berks County Orphans' Court at No.: 85284
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED MARCH 08, 2018 In these related appeals,1 C.F.C. (Mother) appeals the decrees of the Court of Common Pleas of Berks County (trial court), entered on February 27, 2017, that terminated her parental rights to her daughter, C.M.C., born in September of 2013, and her other daughter, also C.M.C., born in February of 2015 (Children). We affirm.2
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* Retired Senior Judge assigned to the Superior Court. 1 This case is a companion case to No. 562 MDA 2017.
2 The Children’s father, J.M.E. (Father), voluntarily relinquished his parental rights on December 20, 2016. He did not appeal that termination and he is not a party to this appeal.
Berks County Children and Youth Services (BCCYS) filed their petitions to involuntarily terminate Mother’s parental rights on February 7, 2017. The trial court held a hearing on that petition on February 27, 2017. When Mother failed to appear, counsel for BCCYS, Jennifer Grimes, and the guardian ad litem, Cathy Badal, moved for the admission of 38 exhibits that supported the petition and rested. The trial court admitted the exhibits.
This family has been known to BCCYS since 2016 for inappropriate parenting skills, physical abuse by Father, domestic violence between Mother and Father, Mother’s unstable mental health, and Mother’s ongoing alcohol and drug use. Notes of Testimony, February 27, 2017 (N.T.) at 481; Exhibit 38. On January 21, 2016, BCCYS received a report that the Children had welts on their buttocks and severe diaper rash. The same day, Father admitted to the Pottstown Police Department that he hit the Children daily. Pottstown Code Enforcement closed Father’s home because it lacked heat. On January 22, 2016, Father voluntarily signed a safety plan that allowed the Children to reside with maternal cousins and permitted Father only supervised contact.
On February 1, 2016, BCCYS obtained an emergency court order placing the Children in foster care when the maternal cousins said they were no longer willing to care for the Children. When the Children came into care, both of them were delayed developmentally. The eleven-month-old was immobile and not able to sit or crawl, while the three-year-old was unsteady on her feet
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and at times would twitch when she got into trouble or got excited. N.T. at 494; Exhibit 38.
The trial court adjudicated the Children dependent on February 10, 2016, and transferred custody to BCCYS. The trial court ordered Mother to take parenting education classes; to undergo a drug and alcohol evaluation and follow any recommendations; to undergo random urinalyses; to secure a mental health evaluation and follow any recommendations; and to undergo a non-offending parent evaluation and follow any recommendations. The trial court also ordered Mother to establish and maintain stable housing and income and to keep BCCYS informed of any changes in her residence or income. Finally, she was to visit with the Children as scheduled and act in an appropriate manner.
Mother was minimally cooperative with services throughout the Children’s placement, and made little to no progress in any of the services ordered by the trial court. Mother was discharged from casework services on November 29, 2016, for non-compliance. Natalie Farst, Mother’s Signature Family Services Caseworker, opined that Mother’s barriers to progress continued to be deflections of responsibility, failure to begin therapy, failure to obtain insurance, as well as an inadequate monthly income. N.T. at 488; Exhibit 38. Mother failed to engage in any drug and alcohol evaluation and/or treatment. N.T. at 491; Exhibit 38. Mother participated in parenting education with Kathy Haag from Partners in Parenting and Morgan
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Daubenspeck from KidsPeace. BCCYS acknowledged that Mother was consistent with visitation from February 1, 2016 until July 16, 2016, however, Mother's attendance declined after this review period. During the review period dating from June 6, 2016 to September 19, 2016, Ms. Haag voiced concern that Mother needed, “continual direction and guidance to carry out the teachings; especially when it comes to discipline.” N.T. at 476; Exhibit 35. For the review period from September 20, 2016 until December 4, 2016, Ms. Haag opined, “[Mother] commonly struggles managing the [Children] even in a controlled, predictable environment.” Mother missed five out of eleven visits during this review period and Ms. Haag suggested that Mother’s visitation be decreased. N.T. at 479; exhibit 36. During this review period, Mother failed to attend any of the Children’s medical appointments and failed to attend the Children's surgery for bilateral myringotomy with insertion of tympanostomy tubes. N.T. at 493; Exhibit 38.
On May 20, 2016, Mother submitted to a domestic violence and non-
offending parent evaluation with Andrea Karlunas, MSW, LCSW, CDVC, CSOTS. Ms. Karlunas opined:
Due to [Mother's] inability to maintain sobriety and use healthy coping skills, [Mother] is unable to protect herself and her children from violence. [Mother’s] lack of insight that her own behaviors escalate the circumstances and place her at further risk and [does] not resolve the matter . . . based on [Mother’s] own verbal report, she lacks the skills necessary to protect her children. Specifically, [Mother] lacks the skill necessary to identify abuse, characteristics of abusers and skills to protect children . .
. It is a concern that Mother lacks long-term sustainability to
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remain sober, refrain from abusive relationships, and demonstrate healthy coping and parenting skills.
N.T. at 235, 236; Exhibit 29.
Ms. Karlunas expressed further concern with Mother’s inability to recognize the abuse the Children suffered and does not have any confidence that Mother will be able to successfully parent the Children without first addressing the abuse, taking responsibility for not protecting them, and establishing trust with the Children. Ms. Karlunas also opined that Mother needed to understand the risks of reuniting with Father and demonstrate her role as a parent and protector. Ms. Karlunas recommended that Mother participate in non-offending parent psychoeducational sessions followed by non-offending parent treatment, a mental health evaluation, supervised visitation, parenting, and random urinalyses. N.T. at 236; Exhibit 29.
After Mother’s evaluation, Mother engaged in non-offending parent treatment with Julie Karaisz, LSW, of Commonwealth Clinical Group. Mother attended four out of eleven sessions, fewer than fifty percent. Ms. Karaisz opined that Mother was never committed to the treatment process and needed to be in order to be able to develop the skills necessary to identify abuse and acquire an understanding of the risks of reunification with her Children’s perpetrator. Mother was discharged from treatment in December of 2016 for non-compliance. N.T. at 491; Exhibit 38.
Mother submitted to a forensic evaluation by Richard F. Small, Ph.D., on May 24, 2016. Dr. Small diagnosed Mother with personality disorder with
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histrionic and dependent features, bipolar disorder, unspecified anxiety disorder, alcohol-related disorder, unspecified stimulant-related disorder, posttraumatic stress disorder, and attention deficit/hyperactivity disorder, primarily hyperactive and impulsive presentation. N.T. at 225; Exhibit 28. Dr. Small opined, “[Mother's] poor choices are likely to negatively affect her ability to parent her children. If [Mother] were in a relationship in which her children were at risk, one could not be assured that she would protect them.” Dr. Small further opined that Mother has a long-standing substance abuse disorder and that Mother’s current sobriety is tenuous. N.T. at 225; Exhibit 28. Dr. Small concluded,
Unfortunately, although [Mother] is aware that she has mental health problems, she has little insight into the seriousness of these problems, nor the consequences for her children. Long term intensive therapy would be necessary to make any significant change . . . [Mother] is unlikely to be able to be a safe caretaker for her children. Her psychological and relationship issues are so serious that they are likely to negate her ability to safely care for her children.
N.T. at 226; Exhibit 28 (brackets added here).
The trial court entered its decrees changing the Children’s goals to adoption and involuntarily terminating Mother’s parental rights on February 27, 2017. Mother filed her notices of appeal on March 29, 2017, and her concise statements of errors complained of on appeal on July 7, 2017.3
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3 When Mother failed to file her concise statements with her notices of appeal, this Court, on June 12, 2017, ordered Mother to file those statements. Mother
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Mother raises the following questions on appeal:
A. Whether the trial court provided [Mother] with proper notice pursuant to 23 [Pa.C.S.A.] §2513(b) and 15.6 of the Berks County Orphans [Court] Division procedural rules[?]
B. Whether the evidence presented at trial courts’ [sic] hearing supports a finding of the [trial] court granting termination of [Mother’s] parental rights[?]
C. Whether the trial court erred by not addressing the emotional bonds developed between [Mother and Child] prior to terminating [Mother’s] parental rights[?]
Mother’s Brief, at 3 (unnecessary capitalization omitted).
Our standard of review in the termination of parental rights 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).
Regarding out review of termination decrees, we have stated:
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.
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filed those statements with this Court on June 19, 2017, and with the trial court on July 7, 2017. Failure to file a concise statement with a notice of appeal can result in the waiver of the issues raised on appeal. However, as there was no objection or claim of prejudice from Appellee, we have accepted the late filings in these cases in reliance on our decision in In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009).
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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.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
Our standard of review of a change of a child’s 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. We are bound by the trial court’s findings of fact that have support in 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.
Int. of S.G., 922 A.2d 943, 946-47 (Pa. Super. 2007).
The trial court terminated Mother’s and Father’s parental rights pursuant to 23 Pa.C.S.A. §§2511(a)(1), (2), (5), (8), and (b). 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).
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Requests to have a natural parent’s parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent 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:
...
(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.
...
(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)(2), ((b).
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
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conviction, without hesitance, of the truth of the precise facts in issue.” In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,
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 parentchild 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) (internal citations omitted).
The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975). There the Pennsylvania Supreme Court announced under what is now Section 2511(a)(2), that the petitioner for involuntary termination must prove “[t]he 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.” Id. at 173.
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., 533 Pa. 115,
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620 A.2d 481 (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. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
In its opinion, the trial court notes, and we agree, that Mother has waived the issues she raises on appeal by failing to appear at the termination hearing on February 27, 2017. Mother claims, however, that she was not properly served with notice of that hearing. We disagree and quote the trial court’s analysis of this issue, with approval:
Mother has waived any issues she could have raised by failing to appear for her termination hearing. [See Fillmore v.
Hill, 665 A.2d 514, 516 (Pa. Super. 1995) (“Failure to timely object to a basic and fundamental error . . . will result in waiver of that issue. On appeal, the Superior Court will not consider a claim which was not called to the trial court’s attention at a time when any error committed could have been corrected.] Mother now asserts that it was trial court error by failing to adequately notify Mother of the time, date, and location of the termination hearing. Despite appearing before this [c]ourt, in person, on July 10, 2017, Mother did not raise this issue at the first available opportunity or attempt to offer this [c]ourt any good cause for her failure to appear on February 27, 2017. [See Fillmore, supra].
The preliminary order, entered February 10, 2017, set for termination [sic] for February 27, 2017 at 9:30 am [sic] in the courtroom assigned to the undersigned. Proof of notice was by sworn affidavit and filed in the official court file, the United States Postal Service delivery information was attached thereto and shows that Mother signed for the Petition, Preliminary Order and Notice on February 16, 2017 at 12:53 P.M. in Boyertown, PA, which was eleven days before the hearing. The record shows that notice of the termination hearing was also published in the Reading Eagle, a newspaper of general circulation for the area in which Mother resides, and that said notice was also mailed to Mother via regular mail. (Notes of Testimony 2/27/17, p. 3). . . .
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Trial Court Opinion, 7/24/17, at 6-7.
Our examination of the record discloses that it contains a Proof of Notice filed with the trial court on February 23, 2017, that states that BCCYS served notice of the hearing on Mother on February 13, 2017 by regular and certified mail. Attached to the Proof of Notice is the United States Postal Service receipt that demonstrates that Mother personally signed for that notice on February 16, 2017 at 12:53 p.m. at her address of record. Mother had proper notice of the petition and the date, time and place of the hearing. Mother’s first issue lacks merit.
In regard to Mother’s other two issues, we have carefully examined the opinion entered by the trial court on July 27, 2017, in light of the record in this matter and are satisfied that that opinion is a thorough and correct analysis of this case. Accordingly, we affirm the decrees of the Court of Common Pleas of Berks County that terminated Mother’s parental rights pursuant to 23 Pa.C.S.A. §2511(a)(2) and (b), and changed the Children’s goal to adoption, on the basis of the concise, thoughtful, and well-written opinion of the Honorable Jill Gehman Koestel.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/08/2018