J-A17041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: A.D.J., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: P.C.J. A.K.A P.J. A.K.A : P.K. A.K.A P.C. A.K.A P.S.C.J., : MOTHER : : : : No. 687 EDA 2021
Appeal from the Order Decree Entered March 11, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-000006-2021
IN THE INTEREST OF: A.J., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: P.C.J., MOTHER : : : : : : No. 689 EDA 2021
Appeal from the Order Entered March 11, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002785-2015
IN THE INTEREST OF: A.N.J., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: P.C.J. A.K.A P.J. A.K.A : P.K. A.K.A P.C. A.K.A P.S.C.J., : MOTHER : : : No. 690 EDA 2021
Appeal from the Order Decree Entered March 11, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000007-2021
IN THE INTEREST OF: A.J., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-A17041-21
: APPEAL OF: P.C.J., MOTHER : : : : : : No. 691 EDA 2021
Appeal from the Order Entered March 11, 2021 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002784-2015
BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2021
In these consolidated appeals, P.C.J. (Mother) challenges the decrees
entered by the Philadelphia County Court of Common Pleas (trial court)
terminating her parental rights over the two minor children, A.N.J. (age 8)
and A.D.J. (age 7). Mother also appeals the orders changing the permanent
placement goals from reunification to adoption. We affirm.
I.
On September 30, 2015, the Department of Human Services (DHS)
received a general protective services report alleging that Mother was unable
to provide stable housing for the children and that Mother had substance use
and mental health issues. DHS then filed dependency petitions as to both
children on October 22, 2015. Soon thereafter, on October 30, 2015, the trial
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* Retired Senior Judge assigned to the Superior Court.
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court adjudicated the children dependent and committed them to the custody
of DHS.
Mother was referred to the Clinical Evaluation Unit (CEU) for substance
use and mental health assessments, random drug screens, and to the
Achieving Reunification Center. Mother was granted supervised contact with
the children.
Over the next few years, the trial court held regular permanency
hearings for the children, and each time the trial court found that DHS made
reasonable efforts to finalize children’s permanency plan and that the
children’s placement was still necessary and appropriate. Mother was
continually referred to CEU for assessments, monitoring and drug tests.
On January 11, 2021, DHS filed petitions to involuntarily terminate
Mother's parental rights and to change the permanency goals from
reunification to adoption. The trial court held an evidentiary hearing on March
11, 2021. DHS presented the testimony of the assigned case manager,
Christina Cross, who worked with the Community Umbrella Agency (CUA).
The Child Advocate presented the testimony of an assigned social worker,
Roya Paller. Mother was present and represented by counsel and she testified
on her own behalf.
At the time of the hearing, the children had been in the custody of DHS
for over five years and in the care of a foster parent for approximately 18
months. Cross testified that throughout that time, Mother had received
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assistance in obtaining housing, employment and treatment for drug
addiction. Mother understood that in order to be reunified with her children,
she had to make progress in all of these areas; otherwise, her parental rights
could be terminated.
However, Cross testified that Mother had failed to keep in contact with
CUA, had not consistently visited her children, and had not made sufficient
progress with her substance use and mental health issues. Mother had most
recently reported that she was residing with her grandmother, but Cross had
documented a fraught history of past incidents in which Mother had been
evicted from her grandmother’s residence.
Furthermore, Mother had not complied with CEU assessments and
random drug tests. In a recent telephonic assessment, she hung up on the
CEU. Significantly, Mother only submitted to five random drug tests in the
past five years, and in all five drug tests, she tested positive for a controlled
substance, including marijuana, cocaine, PCP and benzodiazepines. At the
rehabilitation center Mother was assigned to (Interim House), she twice left
the facility without completing the program.
More recently, from October 27, 2020, to January 7, 2021, Mother was
admitted into the Pathways to Recovery (Pathways) partial hospitalization
program. While there, Mother tested positive for marijuana and
benzodiazepines on October 30, 2020; marijuana on November 5, 2020,
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November 11, 2020, and November 20, 2020; and marijuana and cocaine on
December 18, 2020.
Pathways then referred Mother to an intensive outpatient treatment
program (Wedge) to address her post-traumatic stress disorder, which had
been slowing down her progress at Pathways. She was enrolled with Wedge
at the time of the hearing, and it was reported that during her enrollment
there, Mother had tested positive for a controlled substance.
Although Mother was always observed to be acting appropriately with
the Children during visits, Cross believed that the children did not share
parent-child bonds with her. Accordingly, Cross concluded that the children
would not suffer irreparable harm due to the termination of Mother’s parental
rights.
Cross explained that both children are in the care of the same foster
parent, who offers them a safe and stable home environment suitable to meet
all of their needs. Cross stated her view that terminating Mother’s parental
rights would be in the children’s best interests. In support of that opinion,
Cross emphasized that Mother had not been successful in addressing her
substance use and mental health issues; in fact, Mother repeatedly tested
positive for controlled substances and she had not met any of the children’s
needs in the last five years. Between January 2020 and June 2020, Mother’s
whereabouts had been unknown, despite the requirement that she remain in
contact with CUA.
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Paller testified at the hearing that she met with both children on behalf
of the Child Advocate to discuss their understanding of adoption. According
to Paller, both children expressed a desire to be adopted by their current foster
parent.
Mother testified at the hearing on her own behalf. She described her
efforts to comply with the conditions of reunification with her children in the
past five years. According to Mother, her setbacks occurred in large part due
to inconsistent information on when her children would be returned to her, as
well as repeated substitutions of the case worker assigned to this matter.
Mother stated that she wants what is best for her children.
At the conclusion of the hearing, the trial judge summarized all of the
above facts. The trial judge then stated the reasons for its adjudication:
[T]he testimony is clear that the parent bond is with [their foster parent]. Again, they don’t know their father, and mother has been a visitation resource. However, nothing more. They love their foster mother who provides their daily needs. This Court finds that the children would not suffer irreparable harm if the parental rights are terminated. The Court finds that the developmental, physical, emotional needs and welfare of the children are being met by their foster parent. Mother has indicated that she wants her children to be happy, and it appears that they are happy in their current placement, which is a preadoptive home. Thus this Court finds that it is in the children’s best interests for the parental rights of both [M]other and [F]ather, . . . to be terminated under Sections 2511(a)(1),(2),(5), and (8) as well as Section 2511(b) of the Adoption Act.
Evidentiary Hearing Transcript, 3/11/2021, at pp. 53-54.
The trial judge then entered decrees as to both children involuntarily
terminating the parental rights of Mother. The trial judge also ordered the
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permanency goals to be changed to adoption. Mother timely appealed and in
her appellate brief, she raises two issues:
A. Whether [DHS] failed to prove by clear and convincing evidence that Mother’s parental rights should have been terminated pursuant to the Adoption Act, 23 Pa.C.S. §§ 2511(a) (1), (2), (5) and (8)?
B. Whether [DHS] failed to prove by clear and convincing evidence that the permanency goal should be changed to adoption where Mother had substantially completed her single case plan objectives?
Appellant’s Brief, at 4 (suggested answers omitted).1
II.
A.
We first consider Mother’s appellate claim that the trial court abused its
discretion in terminating her parental rights over her children, A.N.J. and
A.D.J.2
The termination of parental rights involves a two-step analysis. First,
“[t]he party seeking termination must prove by clear and convincing evidence
1 Mother’s appellate briefs are identical in both of the consolidated appeals.
2 The trial court’s decrees and orders are reviewed under an abuse of discretion standard. See In re G.M.S., 193 A.3d 395, 399 (Pa. Super. 2018) (citation omitted). “We give great deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.” In re Interest of D.F., 165 A.3d 960, 966 (Pa. Super. 2017). “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.” In re A.S., 11 A.3d 473, 477 (Pa. Super. 2010). “If competent evidence supports the trial court’s findings, we will affirm even if the record could also support the opposite result.” Id.
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that the parent’s conduct satisfies the statutory grounds for termination
delineated in [the subsections of 23 Pa.C.S. § 2511(a)].” In re Adoption of
J.N.M., 177 A.3d 937, 942 (Pa. Super. 2018) (quoting In re L.M., 923 A.2d
505, 511 (Pa. Super. 2007)). Clear and convincing evidence is that which 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 D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (quoting In re
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000)).
Second, once a trial court establishes that clear and convincing evidence
satisfies at least one of the subsections of 23 Pa.C.S. § 2511(a), the trial court
must then determine if involuntary termination is in the child’s best interest,
as outlined in Section 2511(b). Id. This requires the trial court to consider
“the developmental, physical and emotional needs and welfare of the child.”
23 Pa.C.S. § 2511(b). Moreover, “[t]he rights of the 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.” Id.
Here, following an evidentiary hearing on DHS’s petitions, the trial court
ruled that termination was proper under subsections 2511(a)(1), (2), (5) and
(8) of the Adoption Act, which provide as follows:
(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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(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.
23 Pa.C.S. § 2511(a).
The trial court then found that termination was in the children’s best
interests pursuant to Section 2511(b) of the Adoption Act.
The record in this case supports the trial court’s rulings in their entirety.
As to subsection 2511(a)(1), the record shows that Mother neglected her
parental duties to the children over the previous five years. During the time
that the children were in the custody of DHS, Mother was unable to make
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significant progress towards reunification. She did not obtain stable housing
or complete her treatment programs for her substance use and mental health
issues. In fact, she repeatedly tested positive for controlled substances
throughout the five-year period.
In the six months preceding the filing of the petitions for termination,
Mother had not seen the children and her whereabouts were unknown. This
demonstrated a relinquishment of Mother’s parental claims and her failure to
perform parental duties. Thus, the evidence was sufficient to support the trial
court’s findings as to subsection 2511(a)(1). See In re: Z.P., 994 A.2d 1108,
1118 (Pa. Super. 2010); In re: Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).
As to subsection 2511(a)(2), clear and convincing evidence supports the
trial court’s determinations. This provision concerns the present and future
needs of the child. See In re S.C., 247 A.3d 1097, 1104-05 (Pa. Super.
2021). Termination may be warranted if three elements are met:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child to be without essential parental care, control or subsistence necessary for his [or her] physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.
In re: Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2000).
“[W]hen a parent has demonstrated a continued inability to conduct his
[or her] life in a fashion that would provide a safe environment for a child,
whether that child is living with the parent or not, and the behavior of the
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parent is irremediable as supported by clear and competent evidence, the
termination of parental rights is justified.” In re Z.P., 994 A.2d at 1116.
Here, the record demonstrates Mother’s inability to care for the children
on a full-time and permanent basis. As discussed above, Mother never fully
completed the objectives for reunification, which left the children without
parental care for over five years. Mother has attempted to address her
substance use and mental health issues, but she has not been able make
steady progress as shown by her repeated drug use, inability to provide a
stable environment for the children, and failure to complete the treatment
programs she had entered. Thus, as the trial court found, all three factors of
subsection 2511(a)(2) have been met.
Finally, as to subsections 2511(a)(5) and 2511(a)(8), again, clear and
convincing evidence supports the trial court’s determination. “Termination of
parental rights under [subsection] 2511(a)(5) requires that: (1) the child has
been removed from parental care for at least six months; (2) the conditions
which led to removal and placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and welfare of the
child.” Z.P., 994 A.2d at 1118. Similarly, termination is warranted under
subsection 2511(a)(8) if “(1) the child has been removed from parental care
for at least 12 months; (2) the conditions which led to removal continue to
exist; and (3) termination would best serve the welfare of the child.” Id.
(quoting M.E.P., 825 A.2d at 1275-76).
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In this case, the children have both been removed from Mother’s care
for several years. The conditions which led to the removal and placement of
the children – Mother’s substance use and mental health issues and unstable
housing – continue to exist. Multiple witnesses at the evidentiary hearing
testified that termination would be in the children’s best interests. The
children also indicated that they wished to remain permanently in the care of
their foster parent, who they consider to be their mother and who has seen to
all the children’s needs since 2019. Thus, the record supports the trial court’s
conclusion that termination is warranted as to both children.
Although Mother does not now dispute the trial court’s findings as to
subsection 2511(b), and issues omitted from briefing are considered waived,
see In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa. Super. 2017), we note that
we would find the issue to have no merit had it been raised. For subsection
2511(b) to be satisfied, the trial court must first find that at least one of the
grounds for termination enumerated in subsection 2511(a) have been met.
Then, the trial court must evaluate whether termination would destroy a
parental bond between Mother and the children. See 23 Pa.C.S. § 2511(b).
“The extent of any bond analysis . . . necessarily depends on the
circumstance of the particular case.” In the Interest of K.Z.S., 946 A.2d
753, 763 (Pa. Super. 2008). “In cases where there is no evidence of any bond
between the parent and the child, it is reasonable to infer that no bond exists.”
Id. at 762-63. “Common sense dictates that courts considering termination
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must also consider whether the children are in a pre-adoptive home and
whether they have a bond with their foster parents.” In re: T.S.M., 71 A.3d
251, 267 (Pa. 2013).
Here, there was ample evidence that Mother had minimal contact with
the children for over five years. There were long periods of time during that
span in which Mother never saw the children at all, and when visits did occur,
they were supervised. Importantly, the evidence showed that the children
have formed a strong bond with their foster parent. There was unrebutted
testimony by the case manager that the children would prefer to remain
permanently in their foster parent’s care. It appears that the foster parent is
able to meet all of the children’s needs.
The record, therefore, supports the trial court’s finding that termination
of Mother’s parental rights would not destroy a bond between she and the
children because no such bond presently exists. Thus, we affirm the decrees
of termination.
B.
Mother next argues that the trial court abused its discretion in changing
the goal of the dependency proceedings from reunification to adoption.
Because we have concluded that the trial court did not abuse its discretion in
terminating Mother's parental rights over the children, this issue is moot. See
In re Adoption of A.H., 247 A.3d 439, 446 (Pa. Super. 2021) (“[T]he effect
of our decision to affirm the orphans’ court’s termination decree necessarily
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renders moot the dependency court’s decision to change Child’s goal to
adoption.”).
Even if we were to reach the merits of this issue, we would conclude
that no relief is due. The purpose of the Juvenile Act is to “preserve the unity
of the family whenever possible or to provide another alternative permanent
family when the unity of the family cannot be maintained.” 42 Pa.C.S.
§ 6301(b)(1). The Act is additionally intended to “prevent children from
languishing indefinitely in foster care, with its inherent lack of permanency,
normalcy, and long-term parental commitment.” In re N.C., 909 A.2d 818,
823 (Pa. Super. 2006).
“An agency is also not required to offer services indefinitely, where a
parent is unable to properly apply the instruction provided. However, an
agency must redirect its efforts towards placing the child in an adoptive home
only after the child welfare agency has made reasonable efforts to return a
foster child to his or her biological parent, but those efforts have failed[.]” In
the Interest of T.M.W., 232 A.3d 937, 947 (Pa. Super. 2020).
When deciding whether to change the permanency goal in a dependency
action, subsection 6351(f) of the Juvenile Act requires the trial court to
consider:
(1) the continuing necessity for and appropriateness of the placement; (2) the extent of compliance with the family service plan; (3) the extent of progress made towards alleviating the circumstances which necessitated the original placement; (4) the appropriateness and feasibility of the current placement goal for the children; (5) a likely date by which the goal for the child might
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be achieved; (6) the child’s safety; and (7) whether the child has been in placement for at least fifteen of the last twenty-two months.
In Interest of L.T., 158 A.3d 1266, 1277 (Pa. Super. 2017) (quoting In re
A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011)).
Additionally, a court is required to provide compelling reasons why it is
not in the best interest of the child to return to his or her parents and to
instead be placed for adoption. See 42 Pa.C.S. § 6351(f.1)(5)(iv)(C). The
child’s best interest, safety, permanency and well-being must take precedence
over all other considerations in a goal change proceeding. In re R.M.G., 997
A.2d 339, 347 (Pa. Super. 2010). The parent’s rights are secondary and a
goal change to adoption may be appropriate, even under circumstances where
a parent substantially complies with a reunification plan. Id. A court cannot
“subordinate indefinitely a child’s need for permanence and stability to a
parent’s claim of progress and hope for the future.” Id. (quoting In re
Adoption of R.J.S.,901 A.2d 502, 513 (Pa. Super. 2006)).
In this case, there is clear and convincing evidence in the record to
support the trial court’s conclusion that a change in permanency was in the
best interests of the children. The trial judge recounted on the record that for
five years, Mother has demonstrated an inability to provide a safe environment
for the children, and she has not sufficiently progressed in treating her
substance use and mental health issues. See Evidentiary Hearing Transcript,
3/11/2021, at pp. 53-54. The case worker testified that it was not viable for
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children to be reunified with Mother, and that a permanent placement with
their current foster parent would be the best course. Accordingly, the trial
court committed no abuse of discretion in ordering the goal of the dependency
proceedings to change from reunification to adoption.
Decrees and orders affirmed.
Judge King joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/16/2021
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