In the Interest of: M.N.L. Appeal of: Z.S.L.

• Court: Superior Court of Pennsylvania
• Decided: August 29, 2014
• Docket: 809 EDA 2014
• Status: Unpublished

Opinion

J-S49030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.N.L, A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: Z.S.L., MOTHER

No. 809 EDA 2014

Appeal from the Decree January 29, 2014 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000588-2013 CP-51-DP-0001627-2012 CP-51-FN-0002629-2011

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IN THE INTEREST OF: M.S.L, A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 811 EDA 2014

Appeal from the Decree January 29, 2014 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000587-2013 CP-51-DP-0001628-2012 CP-51-FN-0002629-2011 J-S49030-14

BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 29, 2014

2014, in the Court of Common Pleas of Philadelphia County, involuntarily

terminating her parental rights to her twin children, M.N.L., a female, and 1 M.S.L., a mal We

affirm.

In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court ably set

forth the factual and procedural history of this case, which we adopt herein.

See Trial Court Opinion, 4/2/14, at 1-5.2

On October 1, 2013, the Philadelphia Department of Human Services,

adoption. On January 29, 2014, the trial court held a hearing on the

petitions. Mother did not attend the hearing, but she was represented by

See N.T., 1/29/14, at 8-10. DHS presented the ____________________________________________

1 By separate decrees entered on the same date, the parental rights of the Chi appeal. 2 We note that the trial court opinion does not contain pagination. We have assigned each page a sequential number for ease of reference.

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testimony of its caseworker, Leah Allen, and the caseworker from the foster

care agency, Teyana Sawyer. In addition, DHS introduced into evidence

twenty-three exhibits, without objection. See id.

did not present any evidence.

By decrees dated and entered on January 29, 2014, the court

§ 2511(a)(1), (2), (5), (8), and (b). By orders the same date, the court

notices of appeal and concise statements of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated

sua sponte.

On appeal, Mother presents two issues:

1. Did the Court erroneously find that proper service was made on [Mother]?

2. Did the Court erroneously fail to find that [Mother] had made some compliance with the Family Service Plan? 3

In her first issue, Mother asserts that she did not receive notice of the

guarantee of due process of law under the Fourteenth Amendment to the

Un ____________________________________________

3 In her brief, Mother does not assert any error by the trial court with respect to the goal change orders. Therefore, we do not review them.

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adequate notice, an opportunity to be heard, and the chance to defend

In re

J.N.F., 887 A.2d 775, 781 (Pa. Super. 2005).

Section 2513(b) provides, in pertinent part:

(b) NOTICE.-- parent or parents, putative father, or parent of a minor parent whose rights are to be terminated, by personal service or by registered mail to his or their last known address or by such other means as the court may require. A copy of the notice shall be given in the same manner to the other parent, putative father or parent or guardian of a minor parent whose rights are to be terminated. . . .

23 Pa.C.S.A. § 2513(b).

At the beginning of the hearing, counsel for DHS introduced into

evidence the return of service with respect to Mother, dated January 7,

2014, which counsel and the court together read into the record. See N.T.,

1/29/14, at 4-6, Exhibit A. Thereafter, the following colloquy occurred:

[DHS counsel]: I would ask Your Honor to find on notice.

Id. at 5.4

we conclude t See MacNutt v. Temple ____________________________________________

4 Counsel for DHS also stated on the record in open court that this was the third time Mother received notice, as the termination hearing was scheduled for two prior dates, in October and December of 2013. See N.T., 1/29/14, at 4-6.

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Univ. Hosp., 932 A.2d 980, 992 (Pa. Super. 2007) (holding that in order to

preserve an issue for appellate review, litigants must make timely and

specific objections during trial); see also Pa.R.A.P. 302(a). To the extent

brief at 5. To preserve an issue for appellate review, it is necessary that the

litigant make a specific objection during trial. We have explained, as

follows:

In order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. 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

committed could have been corrected. In this jurisdiction . . . one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.

Thompson v. Thompson, 963 A.2d 474, 475-476 (Pa. Super. 2008)

(quoting Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000)

(emphasis added)). Based upon our review of the record, we conclude that

Mother has failed to preserve this issue for appeal. Accordingly, we proceed

Mother argues, in full, that if she

evidence[] regarding her compliance with the FSP [Family Service Plan]

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objections and the existence of dependency issues. There was a lack of

current evid

We review this issue according to the following standard:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court 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., 36 A.3d [567,] 572 [(Pa. 2011) (plurality)]. 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., 34 A.3d 1, 51 ([Pa.] 2011); Christianson v. Ely, 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., 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 clusions 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., 47 A.3d 817, 826 827 (Pa. 2012).

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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

statutory grounds for termination delineated in Section 2511(a).

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 on 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, we c

parental rights pursuant to Section 2511(a)(2) and (b), which provide as

follows:5

____________________________________________

5 See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc) (stating that this Court need only agree with any one subsection of 23 Pa.C.S.A. § 2511(a), in addition to Section 2511(b), in order to affirm the termination of parental rights).

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(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).

To satisfy the requirements of 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). The grounds for termination of parental

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rights under Section 2511(a)(2), due to parental incapacity that cannot be

remedied, are not limited to affirmative misconduct; to the contrary those

grounds may include acts of refusal as well as incapacity to perform parental

duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

With respect to Section 2511(b), the requisite analysis is 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, rt, security, and stability are

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 review, we conclude that the evidence supports the termination

repeated and continued incapacity, neglect, or refusal have caused the

Children to be without essential parental care, control or subsistence

necessary for their physical or mental well-being. Further, the record

demonstrates that the causes of the incapacity, neglect, or refusal cannot or

will not be remedied. Indeed, the record reveals that the Children were

placed in the custody of DHS in September of 2012. Leah Allen, the DHS

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caseworker, testifi

complete any of her FSP objectives. Id. at 14. As such, we discern no

abuse of discretion by the court with respect to Section 2511(a)(2).

In light of the requisite bifurcated analysis for the involuntary

termination of parental rights, we next review the decrees pursuant to

Section 2511(b). In In re T.S.M., 71 A.3d 251 (Pa. 2013), our Supreme

termination must also consider whether the children are in a pre-adoptive

Id. at 268.

Moreover, the Court directed that, in weighing the bond considerations

T.S.M.

young for a scant number of years, and we have an obligation to see to their

healthy development quickly. When courts fail . . . the result, all too often,

Id. at 269.

Instantly, Ms. Allen testified that the Children are in a pre-adoptive

home. N.T., 1/29/14, at 13. Furthermore, since December of 2012, when

the Children were one years old, to the time of the termination hearing,

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Opinion, 4/2/14, at 7 (citation to record omitted). The trial court made the

following findings, which the testimonial evidence supports:

The foster mother has a maternal bond with the [C]hildren. The [C]hildren seek foster mother to satisfy their needs. No maternal bond exists with the Mother, as [the C]hildren do not call her by any name. The [C]hildren play with their biological Mother as a friend. The [C]hildren do not exhibit any type of sadness when the Mother leaves [after supervised visits].

Trial Court Opinion, 4/2/14, at 8 (citations to record omitted).

Based upon our review of the record, we discern no abuse of discretion

§ 2511(b). We further observe that

the Child Advocate filed a brief in support of the termination decrees.

pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/2014

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