In the Interest of: A.C.M.A. a/K/a A.A., a Minor

• Court: Superior Court of Pennsylvania
• Decided: July 19, 2018
• Docket: 46 EDA 2018
• Status: Unpublished

Opinion

J-S37017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.C.M.A., : IN THE SUPERIOR COURT OF A/K/A A.A, A MINOR : PENNSYLVANIA : : APPEAL OF: C.V.-B, MOTHER : : : : : No. 46 EDA 2018

Appeal from the Order November 8, 2017 In the Court of Common Pleas of Philadelphia County Family Court at No(s): 51-FN-383088-2009, CP-51-AP-0000622-2017, CP-51-DP-0000080-2016

BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 19, 2018

C.V.-B. (“Mother”) appeals from the order terminating her parental

rights to A.C.M.A. a/k/a A.A. (“Child”). We conclude the trial court did not err

or abuse its discretion in terminating Mother’s parental rights and, therefore,

affirm.

On January 12, 2016, the Philadelphia Department of Human Services

(“DHS”) filed a Dependency Petition for Child, alleging, among other things,

that from June 2015 through the filing of the Petition, Mother and Child lacked

stable housing, and, in December 2015, were residing in Maternal

Grandmother’s home, which lacked running water and had a tree protruding

from the basement window. On February 9, 2016, the court held that Child

was a dependent child, finding Child was “without proper care or control,

subsistence, education as required by law, or other care or control necessary

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for his physical, mental, or emotional health, or morals.” Order of Adjudication

and Disposition, 2/9/16.

Mother’s Single Case Plan Objectives have included, but have not been

limited to: obtain suitable housing, attend individual mental health therapy,

attend anger management classes, attend drug and alcohol treatment, and

attend visits with Child. N.T., 11/8/17, at 37.

On June 5, 2017, DHS filed a Petition for Involuntary Termination of

Parental Rights. DHS noted that in September 2016, Mother twice tested

positive for marijuana. Statement of Facts at ¶ at ¶ y-z.1 At the time DHS filed

the Petition, Mother had attended less than half of the visits offered, had not

participated in mental health treatment, and was homeless. Id. at ¶ ee.

Mother completed parenting classes, id. at ¶ bb, and attended NU-STOP

Recovery and Educational Center, id. at ¶ ee.

At the hearing on the Petition, Govenina Ruffin, the Community

Umbrella Agency (“CUA”) case manager, testified. She stated that, prior to

the filing of the Petition, Mother had not completed drug and alcohol treatment

and had not provided consistent negative drug screens. Id. at 37-38. She

stated that Mother started to attend The Wedge Recovery Centers (“Wedge”)

on September 21, 2017, that Mother attended 11 of the 22 groups offered to

her at Wedge, and that, on October 19, 2017, Mother spoke to a psychiatrist

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1 Mother stipulated that the social worker would testify to the facts contained in the Statement of Facts if requested to testify to such at the hearing. N.T., 11/8/17, at 31-32.

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there. Id. at 40. Ms. Ruffin further testified that Mother tested positive for

cannabis on September 22, 2017 and October 19, 2017, and negative on

November 2, 2017. N.T., 11/8/17, at 32. In addition, Mother had not

completed anger management classes. Id. at 44. In the six months since the

filing of the petition, Mother attended 16 of the 28 visits offered. Id. at 45.

Ms. Ruffin stated that Child is in a pre-adoptive foster home, Child

shares her primary parent-child bond with her foster mother, and Child’s

foster mother provides her with love, safety, stability, and support. Id. at 49.

She stated that, although Child did cry once following a visit with Mother, she

was generally okay when separating from Mother. Id. at 50. Ms. Ruffin did

not believe Child would suffer irreparable harm if Mother’s parental rights were

terminated. Id.

On cross-examination, Ms. Ruffin stated that, although requested by Ms.

Ruffin, Mother had not provided paystubs, a letter from her employer, or a

work schedule. Id. at 55. She further testified that Child and her foster family

moved to Lancaster in August 2017. Id. at 60, 62.

In addition, Ms. Ruffin visited Mother’s sister’s (“D.B.”) house. Id. at 64.

She testified that the CUA could not proceed with the kindship care

investigation of D.B. because D.B. could not provide paystubs. Id. at 65. She

further noted the CUA was concerned because D.B. had a 2016 arrest for

prostitution. Id. at 65

Mother also testified. She testified that Child wants to be with Mother

and that Mother was trying to meet the objectives. Id. at 72. Mother believed

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there was tension between the requirement that she provide housing and,

therefore, work, and the time required to attend groups and therapy. Id. at

87-88. Mother further stated she worked full time for NHS Human Services,

caring for clients with intellectual disability and mental health issues. Id. at

88. Mother takes all shifts offered in an effort to earn money. Id. at 90. She

is also taking entrepreneur classes at Pierce College. Id. at 91. Mother stated

she requested help with housing. Id. at 88.

During Mother’s testimony, counsel began to ask her about the

investigation into D.B. as a possible placement. Id. at 84. DHS objected based

on relevance and noted Ms. Ruffin answered questions regarding the

investigation during cross-examination. Id. at 85. The trial court sustained

the objection. Id. Following the trial court’s findings of fact, Mother’s counsel

stated: “In your findings of facts, you said that my client couldn’t provide

housing. It is one piece of the evidence that was objected to and sustained

where I was trying to get in evidence about the room in D.B.’s house that is

available for Child.” Id. at 98. The trial court stated that he did not think,

based on Ms. Ruffin’s testimony and D.B.’s arrest for prostitution, that Child

belonged in the house at that time. Id. at 99.

The trial court found that DHS proved, by clear and convincing evidence,

that grounds for termination pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

and (b) existed. Id. at 97. The trial court noted Mother’s on-going marijuana

use, sporadic visitation history, and that there was no evidence of on-going

mental health or drug and alcohol treatment. Id. It further noted that Mother

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did not have housing for Child. Id. The court found that Mother’s recent efforts

were “too little too late.” Id. at 97-98. The trial court further found that

termination was in Child’s best interest, noting the foster mother was

performing the daily parental duties, and Child needed stability and continuity

in her life. Id. at 98. The trial court granted the Petition for Involuntary

Termination. Mother filed a timely notice of appeal.

Mother raises the following issues on appeal:

1. Did the Trial Court err in terminating [Mother’s] parental rights because [DHS] did not establish by clear and convincing evidence that [Mother’s] parental rights should be terminated pursuant to 23 Pa.C.S.A. [§§] 5211(a)(1), (2) and (5)?

2. Did the Trial Court err in terminating [Mother’s] parental rights by disallowing Mother the right to present evidence to the court of alternative housing that was available within the family at the home of [Mother’s] sister which could have remedied [Mother’s] homeless status.

Mother’s Br. at 5.

When reviewing orders terminating parental rights, we must “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.

2012). Where “the factual findings are supported,” we review the decision “to

determine if the trial court made an error of law or abused its discretion.” Id.

We will reverse a decision “for an abuse of discretion only upon demonstration

of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.

The Pennsylvania Supreme Court has explained the reason for applying

an abuse of discretion standard to termination decisions:

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[U]nlike 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. 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 S.P., 47 A.3d at 826-27 (citations omitted).

Although the trial court terminated Mother’s parental rights pursuant to

several subsections of 2511(a), we need only conclude that its decision was

proper under any one subsection of Section 2511(a), in addition to its finding

as to Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en

banc). Here, we conclude that the trial court properly terminated Mother’s

parental rights pursuant to Sections 2511(a)(2) and (b).

We will first review the trial court’s conclusion that termination was

proper under Section 2511(a)(2), which provides:

(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.

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23 Pa.C.S.A. § 2511(a)(2).

To terminate parental rights pursuant to Section 2511(a)(2), the moving

party must produce clear and convincing evidence of the following: “(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 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. 2003).

The trial court found termination proper under Section 2511(a)(2). The

court found Mother made “insufficient and inconsistent efforts to meet” her

objectives. Trial Court Opinion, filed Feb. 16, 2018, at 4 (“TCO”). The court

noted that Ms. Ruffin testified that Mother met only one objective, completion

of a parenting class. Id. at 5-6. Mother, however, did not complete drug and

alcohol treatment, and continued to test positive for drugs. Id. at 6. Mother

also failed to verify that she received mental health treatment or attended

anger management classes, was inconsistent with visitation, and lacked stable

housing. Id.

Mother maintains she was unable to attend visits due to her work

schedule and transportation issues. Mother’s Br. at 7. Mother, however, failed

to provide a work schedule to the CUA. N.T., 11/8/17, at 55. Further, to the

extent Mother argues that Child’s move to Lancaster inhibited her ability to

visit Child, Child did not move until August 2017, after DHS filed the Petition.

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Id. at 60. Further, to the extent Mother maintains she was unable to comply

with the objectives due to her employment, we cannot conclude that the trial

court, who heard the testimony, abused its discretion in finding termination

proper.

We conclude the record supports the factual findings and the trial court

did not err or abuse its discretion in terminating Mother’s parental rights under

Section 2511(a)(2). The evidence supported a finding that Mother had a

continued incapacity that caused the child to be without the essential parental

care, control or subsistence necessary for her physical or mental well-being,

and that the cause of the incapacity could not or would not be remedied.2 ____________________________________________

2 Mother does not argue on appeal that the trial court erred in finding that termination would best serve the Child’s developmental, physical and emotional needs and welfare under Section 2511(b). Further, even if she did raise this issue, we would conclude it is meritless. Section 2511(b) provides:

(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(b). Pursuant to Section 2511(b), the trial court must determine “whether termination of parental rights would best serve the developmental, physical and emotional needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1286 (Pa.Super. 2005).

The trial court concluded that terminating Mother’s rights would be in Child’s best interest. TCO at 5-7. The trial court noted that Ms. Ruffin testified Child was well-bonded with her foster mother, and that the foster mother met

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Mother next argues the trial court improperly “curtailed counsel’s

attempt to present evidence that [Mother’s] sister was in a position to provide

housing for [Child] until [Mother] could get on her feet.” Mother’s Br.at 8.

The admission or exclusion of evidence is within the discretion of the

trial court. In the Int. of H.K., 161 A.3d 331, 337 (Pa.Super. 2017) (quoting

In re Adoption of R.K.Y., 72 A.3d 669, 675 (Pa.Super. 2013)).

Mother claims that the court erroneously prevented her from presenting

evidence that D.B. had a room for Child. However, the court’s sustaining of

DHS’s objection to the relevance of Mother’s testimony on this issue was not

an abuse of discretion. Earlier in the proceedings, Ms. Ruffin had explained

that the CUA did not continue to investigate D.B. for kinship care because D.B.

was unable to provide paystubs. Ms. Ruffin also noted there was concern

because D.B. had a recent arrest for prostitution. In view of this testimony,

we do not think the trial court abused its discretion in sustaining the objection.

Indeed, when Mother’s counsel later argued that he had been attempting to

inform the court that D.B. would provide housing, the trial court responded

that the housing with D.B. was not proper at that time. Mother at no time

attempted to explain the testimony’s relevance or make an offer of proof of

Child’s medical and developmental needs. Id. at 6. Further, Ms. Ruffin had observed visits between Mother and Child and did not believe that termination of Mother’s rights would cause irreparable harm to Child. Id. The record supports the trial court’s findings of fact and the court did not err or abuse its discretion in finding that termination would best meet Child’s developmental, physical and emotional needs and welfare.

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the additional, relevant information Mother would provide on this issue. The

trial court did not abuse its discretion.

Moreover, even if this ruling were error, it would be harmless. The lack

of housing was not the sole basis for a finding of termination. Rather, as noted

above, the trial court found that Mother failed to meet almost all of her

objectives, including that she continued to test positive for marijuana and

failed to attend visitations.3

Order affirmed.

Judge Olson joins the Memorandum.

P.J.E. Stevens concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/19/18

3 At the conclusion of the hearing, Mother’s counsel noted that members of the family would file petitions for adoption. N.T., 11/8/18, at 100. The court noted that that was an issue for the adoption court, and it was not before the court at the hearing. Id.

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