In Re: S.D.P., a Minor Appeal of: GAL (memorandum)
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J-S13044-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: S.D.P., A MINOR APPEAL OF: GAL : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 40 MDA 2022 Appeal from the Decree Entered November 30, 2021 In the Court of Common Pleas of Lancaster County Orphans' Court at No(s): 2020-02383 BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: FILED: MAY 11, 2022 Appellant, Guardian Ad Litem (“GAL”), appeals from the November 30, 2021 decree denying the petition filed by the Lancaster Country Children and Youth Social Service Agency (“Agency”) to involuntarily terminate the parental rights of Appellees, L.R. (“Mother”) and M.P. (“Father”), to their minor female child, S.D.P. (“Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) and (b). After careful review, we affirm.1 The orphans’ court summarized the extensive factual background of this case as follows: [Child] is a minor female child born [in 2019]. On December 17, 2019, the Agency received a report on [Appellees’] family. The report was that [Mother] had ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 The record reflects that Agency has not filed an appeal in this matter. J-S13044-22 given birth to her sixth child. At that time, the household consisted of Mother [] and [Child]. Father of [Child] is reported to be [M.P.] The Agency’s concerns were for the drug use by both parents, including [Mother] while pregnant. Upon [Child’s] birth, the Agency took [Child] into custody at the hospital. The Agency has a history of reports dating back to 2005 for four other previous children of Mother, all of whom are not currently in Mother’s custody and reside with their respective fathers, and four other previous Children of Father, who are not in Father’s custody, and for whom Father’s parental rights were involuntarily terminated on February 1, 2017. Both Mother and Father have an additional previous child together, [L.P.], who was born on June 23, 2018, and of whom the Agency currently has custody. [L.P.] was placed in the Agency’s custody at five days old after [Mother] tested positive for methamphetamines and amphetamines, and [L.P.’s] meconium test had also been positive for methamphetamines and amphetamines. The Agency attempted to implement a Safety Plan with the family, however, when that failed, [L.P.] was taken into protective custody by the Ephrata Borough Police and then released to the Agency. On July 2, 2018, [L.P.] was adjudicated dependent, and the court approved a Child Permanency Plan with objectives for [Mother] to complete for reunification with [L.P.]. The court also found aggravated circumstances against [Father] and ordered no plan for reunification for Father and ordered no further efforts to reunify. The child permanency plan created for Mother for reunification with [L.P.] included the following objectives: mental health, drug and alcohol, parenting, income, housing, and commitment. [Mother] attempted but did not complete any of her objectives for reunification with [L.P.] On August 19, 2019, [Mother] signed consents to Adoption for [L.P.]. On September 26, 2019, [Father] signed Consents for Adoption for [L.P.]. As of the Termination of Parental Rights hearing on September 27, 2021, for [Child], [L.P.] had been adopted. -2- J-S13044-22 Both Mother and Father have criminal histories. In 2006, Mother pleaded guilty to felony Theft by Unlawful Taking, and in 2007, she pleaded guilty to felony Forgery, Theft by Unlawful Taking, Receiving Stolen Property, and Unsworn False Authorization Forged Document. In 2019, Father pleaded guilty to two counts felony Manufacture, Delivery, or Possession with Intent, False Identification to Law Enforcement, Retail Theft, Possession of Marijuana, two counts Use/Possession of Drug Paraphernalia, Intentional Possession of Controlled Substance, and two counts of Driving with a Suspended/Revoked License. Father also pleaded to crimes committed in 2018 including Intentional Possession of a Controlled Substance. In 2016, Father pleaded guilty to Marijuana – Small Amount, Driving Without a License, Retail Theft, and Disorderly Conduct. In 2015, Father pleaded guilty to felony Burglary, felony Access Device Issued to Another Not Authorized, felony Conspiracy Access Device Issued to Another, Theft by Deception, Theft from a Motor Vehicle, four counts misdemeanor Access Device Issued to Another, two counts Theft by Unlawful Taking – Moveable Property, and Retail Theft. Father was incarcerated at the Lancaster County Prison from June 18, 2018 [to] February 19, 2019, from March 28 [to] April 11, 2019, and from September 19 [to] November 7, 2019. Father is currently on probation. Mother is currently receiving treatment for opioid addiction, ADHD, and anxiety. Mother’s last positive drug screen for an illegal substance occurred on June 19, 2020, for methamphetamines. Mother did not initially have, but now does have, as of April 2021, a valid medical marijuana card for the treatment of her anxiety. Mother also receives medication management for her mental health from T.W. Ponessa, which she began in 2018 and then restarted treatment in 2021. Mother is currently attending mental health and drug and alcohol counseling through Advanced Counseling and Testing Solutions, and that treatment began in February of 2021. Prior to her treatment at Advanced Counseling and Testing Solutions, Mother had admitted herself to Blueprints -3- J-S13044-22 Rehab inpatient program on April 26, 2020, which she completed successfully and was discharged on May 22, 2020. Mother transferred to Blueprints Intensive Outpatient in May of 2020. Because of a positive drug test on June 19, 2020, the provider recommended that Mother do inpatient treatment again. However, Mother was not able to do that because she would lose her employment and her home. Therefore, Mother was unsuccessfully discharged from the Blueprints Intensive Outpatient program. Mother then reported going to Community Services Group for treatment. However, this treatment was not able to be confirmed by the Agency. Mother also reported going to treatment with Advanced Counseling & Research, but this treatment was not able to be confirmed by the Agency. Then, the Agency caseworker thought there may have been a miscommunication and reached out to Advanced Counseling and Testing Solutions but was not able to confirm that Mother was receiving treatment there. Mother then reported that she went to LGH Behavioral Health in September of 2020, and the Agency was able to confirm that Mother did start that program. Mother was discharged from the LGH program reportedly because of lack of cooperation or participation, and Mother reported at that time that she was struggling to be able to have appointments because of her work. Although there was a gap in treatment, Mother then followed that program with the program at Advanced Counseling and Testing Solutions, where she is currently receiving treatment for mental health and drug and alcohol, which began in February of 2021. Since March 15, 2021, the Agency was able to drug screen Mother, typically, twice a week. The drug screening performed by the Agency from March 15, 2021, onward continues to be valid and negative. Mother obtained employment at the United States Postal Service on September 26, 2020. Mother resigned from that job in June of 2021 to find a job that would allow her more flexibility to attend counseling appointments, be able to make visitation appointments with [Child], and to work on her plan for reunification. On September 27, 2021, Mother -4- J-S13044-22 reported that she was about to begin a new position on second shift at LSC Communications with a start date of September 28, 2021. Mother received unemployment compensation between the time she left the post office and until beginning her new position at LSC Communications. Although provided very sporadically to the Agency, Mother has submitted her income verification, proof of making rent payments, and provided utility bills. Father and Mother began living together circa November 2019. The lease for Mother’s current residence was entered into in May of 2020. The oneyear lease term expired in May of 2021, and the lease is now month to month. The Agency caseworker conducted a home visit to Mother’s current residence in July of 2021, and the caseworker reported that the home is appropriate. The Agency also acknowledged that some of Mother’s teenage children do have overnight visits at Mother’s house. The Agency did not express any concerns about these children being in Mother’s care during these visits. Visitation time for Mother with [Child] is twice a week for two hours at each session. Mother began exercising her visitation from the onset of the case. There was an interruption of in-person visitation due to the Covid-19 pandemic where parents were only offered virtual visits. Mother did not visit virtually. The Agency caseworker reported that Mother felt that she would not be able to connect with [Child] by participating virtually because her child was only five months old at the time of the virtual visits. Once inperson visits resumed on March 15, 2021, Mother began visiting again with [Child] regularly and was fairly consistent with those visits. Father’s visitation with [Child] was originally two hours per week, was subsequently reduced to one hour per week, but since the last hearing, has been increased to twice a week for two hours to coincide with Mother’s visitation. [Child] has also been able to have visitation with her closest-in-age sibling, and the Agency has allowed for maternal siblings to join -5- J-S13044-22 Mother during the parent/child visits. Mother and Father are appropriate during visits with [Child] and both are fairly consistent in making visits with [Child] with a few visits that needed to be rescheduled. The Agency would not provide a permanency plan for Father to complete unless and until Father filed an appeal for his recent criminal conviction(s) for which Father was already serving with probation. Father did not file an appeal of his conviction(s). An agency caseworker informed Father that if no plan was made, that Father was recommended to do similar objectives to Mother’s plan, try to make progress on his own, and then contact his lawyer and request a plan, and that any progress he would make would help towards achieving that goal. The Agency’s only expressed concern with Father living at Mother’s residence was that Father does not have a plan and hasn’t proven or shown that he would be appropriate in accordance with a plan. The Agency Caseworker reported that Father was receiving drug and alcohol and mental health services through his probation officer, and that, Father is regularly screened for drugs by probation and has been negative since. The Agency asked Father about his progress several times. Father reported to the Agency that he is no longer in the drug and alcohol [program] through his criminal probation plan, that Father did complete it, and that Father could have been discharged sooner but requested to continue with the program until his insurance would no longer cover it. Lastly, as of September 27, 2021, Father was reported to be working for the same company as he previously reported to the Agency in December of 2020. Orphans’ court opinion, 11/30/21 at 1-6. Child was adjudicated dependent pursuant to 42 Pa.C.S.A. § 6302(1) on January 6, 2020. As noted, on December 11, 2020, the Agency filed a petition to involuntarily terminate Mother’s and Father’s parental rights to Child, -6- J-S13044-22 pursuant to Sections 2511(a)(1), (2), (5) and (b). At the time the Agency filed the petition, Child had been in its custody for 11 months and 5 days. The orphans’ court conducted evidentiary hearings on August 9 and September 27, 2021. At the second hearing on September 27, 2021, Mother and Father were both present in person. The court found in its order that Mother had achieved moderate compliance with the permanency plan and was making moderate progress towards alleviating the circumstances that resulted in placement of [Child]. Specifically, the court observed Mother in a very composed manner, and who had appeared to have taken steps in improving her mental health and working towards her continuing sobriety. Additionally, [M]other had held stable employment with the United States Postal Service, subsequently found a new job that would better accommodate Mother’s ability to work on her plan and more regularly attend visitation with [Child]. Mother, on her own merits, signed up for and has been regularly attending counseling. With the assistance of her provider, Mother also reported progress in finding a good balance in her medication management. .... Both Mother and Father seem to enjoy their time visiting with [Child] showing a commitment to providing nurturing care for [Child]. Orphans’ court opinion, 11/30/21 at 9-10. Following the hearings, the orphans’ court entered a decree on November 30, 2021, finding that the Agency had failed to meet its burden of proving by clear and convincing evidence that termination was warranted in this matter and denying the Agency’s petition. On December 30, 2021, GAL -7- J-S13044-22 filed a timely, amended notice of appeal. Contemporaneously with this notice of appeal, GAL filed a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On January 25, 2022, the orphans’ court filed its Rule 1925(a) opinion. GAL raises the following issues for our review: 1. Whether the [orphans’] court committed an error of law and/or abused its discretion by determining that the Agency had not proven by clear and convincing evidence that involuntary termination of parental rights of Mother and Father was warranted pursuant to Pa. C.S.A. §2511(a)(1)? 2. Whether the [orphans’] court committed an error of law and/or abused its discretion by not analyzing the developmental, physical and emotional needs and welfare of the Child pursuant to 23 Pa. C.S.A. § 2511(b)? 3. Whether the [orphans’] court committed an error of law and/or abused its discretion by failing to properly consider the requirements of the Pennsylvania Adoption and Safe Families Act (ASFA) provisions of the Pennsylvania Juvenile Act[2] as it relates to permanency for the Child? GAL’s brief at 4 (footnote added). In matters involving involuntary termination of parental rights, our standard of review is as follows: The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the ____________________________________________ 2 See 42 Pa.C.S.A. §§ 6301-6375. -8- J-S13044-22 factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. [A] decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and internal quotation marks omitted). The termination of parental rights is governed by Section 2511 of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis of the grounds for termination followed by the needs and welfare of the child. 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) (citations omitted). -9- J-S13044-22 We have defined “clear and convincing evidence” as 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and quotation marks omitted). In this case, the Agency sought to terminate Mother’s and Father’s parental rights to Child pursuant to Sections 2511(a)(1), (2), (5), and (b), which provide as follows: § 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: (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. .... - 10 - J-S13044-22 (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. .... (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), and (b). Following a thorough review of the record, including the briefs of the parties, the applicable law, and the well-reasoned November 30, 2021 and January 25, 2022 opinions of the orphans’ court, it is our determination that - 11 - J-S13044-22 the GAL’s claims warrant no relief. The orphans’ court comprehensively discussed each of the GAL’s three issues on appeal and concluded that they were without merit. We find that the conclusions of the orphans’ court are supported by competent evidence and are clearly free of legal error. Specifically, we agree with the orphans’ court that its determination that the Agency did not prove by clear and convincing evidence that the involuntary termination of Mother’s and Father’s parental rights was warranted under Section 2511(a)(1) was supported by competent evidence. Orphans’ court Rule 1925(a) opinion, 1/25/22 at 3-12. We further agree that contrary to the GAL’s contention, the orphans’ court was not required to complete an analysis under Section 2511(b) because it did not find any statutory grounds for termination under Section 2511(a)(1), (2), or (5). Id. at 13-15. In any event, the record reveals that the orphans’ court did, in fact, conduct an evaluation of what would be in Child’s best interests. See id. Lastly, we agree with the orphans’ court that “it was not appropriate for [it] to consider ASFA because (1) this issue was not raised at the trial court level by the GAL or any other party, which waives the issue, and (2) in the alternative, the Agency had not finished making reasonable efforts in this case.” Id. at 16-18. Our standard of review requires us to accept the findings of fact and credibility determinations of the orphans’ court where, as here, they are - 12 - J-S13044-22 supported by the record. See In re T.S.M., 71 A.3d at 267. Based on the foregoing, we agree with the orphans’ court that it did not abuse its discretion by denying Agency’s petition to involuntarily terminate Mother’s and Father’s parental rights to Child. Accordingly, we adopt the comprehensive January 25, 2022 opinion of the Honorable David R. Workman as our own for purposes of this appellate review. The parties are directed to attach a copy of the orphans’ court’s January 25, 2022 opinion to all future filings relating to our disposition in this appeal. Decree affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 05/11/2022 - 13 -
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