D.I.N. v. L.N.

IN THE INTEREST OF: D.I.N., A MINOR v. APPEAL OF: L.N., A MOTHER

J.S45045/14

No. 796 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

AUGUST 29, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree Entered February 4, 2014

In the Court of Common Pleas of Philadelphia County

Family Court No(s).: CP-51-AP-0000026-2014 CP-51-DP-0000537-2012, FID: 51-FN-000988-2012

BEFORE: BOWES, ALLEN, and FITZGERALD,^* JJ.

MEMORANDUM BY FITZGERALD, J.:

L.N. ("Mother") appeals from the decree entered in the Philadelphia County Court of Common Pleas involuntarily terminating her parental rights to her son, D.I.N. ("Child"), and changing Child's goal to adoption. We hold the court properly terminated Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and (b) of the Adoption Act and affirm.

Child was born in February of 2011. The father of the child is D.W.¹ ("Father.") The trial court set forth the factual and procedural history as follows.

On March 22, 2012, DHS received a General ProtectiveServices (GPS) report alleging that Child[, who was then thirteen months old,] had a small bruise on his forehead, and that [Mother] stated that Child had fallen and hit his head while at a friend's home on March 17, 2012. The report also alleged that Mother did not take Child to be examined by a doctor[, was] diagnosed as suffering from schizophrenia[,] stopped taking her medication when she became pregnant[,] did not take her medication after giving birth to Child[,] and stated that her doctor had recommended that she not take her medication. This report was substantiated.

DHS learned that Mother reside[d] in a dual diagnosis program at Rowan House through Project Home. On March 27, 2012, DHS visited Mother and Child at Rowan House. The staff stated to DHS that Child had unexplained injuries and Mother was at risk of losing her housing due to her non-compliance with house rules. DHS observed that Mother appeared to be incoherent and she was unable to answer questions. Mother admitted that she was not seeing a therapist and that she had not taken her medication for a year. During the visit, DHS also observed that Mother was not properly supervising Child and Child had a bruise and scratch on the left side of his forehead. Mother could not explain when or where the injuries had occurred. DHS learned that Mother stopped attending Health Start which offered support to her regarding proper care of Child. Mother refused to provide DHS with her family's information in order to identify an appropriate caregiver for Child. The police were called due to Mother's erratic behavior.

On March 27, 2012, DHS obtained an Order of Protective Custody (OPC) for Child and placed him at Baring House. The identity and whereabouts of Child's father were unknown to DHS at that time. At the shelter care hearing, held on March 29, 2012, the OPC was lifted and the temporary commitment to DHS was ordered to stand. The [c]ourt ordered that Mother be referred to the Behavioral Health System (BHS) for consultation.

On March 29, 2012, DHS placed Child in foster care through the Juvenile Justice Center (JJC). On April 5, 2012, the [c]ourt adjudicated Child dependent and fully

committed him to DHS. Mother was offered supervised visits at the agency twice per week. Mother was referred to BHS for outpatient services.

On July 3, 2012, the [c]ourt took notice that D.W. had been identified as Child's father. DHS learned that Mother had been visiting Child on a weekly basis; however, she did not seem to connect well with [Child] during the visits. It was noted that Mother had a tendency to yell at Child during the visits for no apparent reason.

On August 6, 2012, Mother and Father attended a hearing for Child. Mother was offered supervised visits at the agency twice weekly and Father was offered biweekly supervised visits at the agency. The [c]ourt took notice that Mother attended the Achieving Reunification Center (ARC). The [c]ourt ordered Mother to sign releases of mental health participation and ordered her to participate in a parenting capacity evaluation. . . . DHS was ordered to refer Mother and Father for Family School. The [c]ourt took notice that Child received special instruction and occupational therapy through ChildLink.

On October 9, 2012, a Family Service Plan (FSP) meeting was held. [Child's] permanency goal was return to parent. The FSP parental objectives were: to attend parenting classes as scheduled; to participate in mental health evaluations; to comply with all treatment recommendations including therapy and/or medication as prescribed; that Mother will attend a feeding clinic; to attend Family School on a weekly basis; to attend scheduled visits; and that Mother will attend a parenting capacity evaluation. Mother attended the meeting. . . .

On November 5, 2012, the [c]ourt took notice that Mother was moderately compliant with the permanency plan [and] that Mother attended mental health counseling and Family School. . . . The [c]ourt noted that Child was a medically needy child, and Mother was to receive training for his medical needs.

On January 2, 2013, the [c]ourt took notice that the parents had substantially complied with the permanency plan. The [c]ourt ordered parents to sign the necessary

consents for Child to have tubes placed in his ears. The [c]ourt further ordered Mother to attend Family School. . . .

On February 7, 2013, Mother completed a parenting capacity evaluation with Dr. Stephen Miksic. Mother was diagnosed as suffering from paranoid schizophrenia. It was noted that Mother had difficulty with communication, that her words were slurred and difficult to understand at different periods of the evaluation, and that she had difficulty focusing attention or concentrating on the conversation. It was recommended that visits between Mother and Child be closely supervised and suspended or cancelled if Mother exhibits disorganized behavior or a response that is clearly disturbing or upsetting to Child. The recommendations further stated that if there was a pattern of disruptive unresponsive behavior from Mother, it would be in Child's best interest to cancel visits until she was able to seek treatment to improve her ability to respond in a coordinated and organized manner. Dr. Miksic noted that Mother needed more intensive involvement with psychiatric treatment and will likely not improve in her mental status without compliance involving psychotropic medication.

On March 11, 2013, a FSP meeting was held. [At this time, it had been a year since DHS first received the GPS regarding Child. Child was approximately two years and one month old. Child's] permanency goal was changed to adoption. The FSP parental objectives were: . . . that Mother will participate in mental health evaluation[,] comply with all treatment recommendations including therapy and/or medication as prescribed[,] attend the feeding clinic as needed[, and] attend Family School on a weekly basis; [and] that the parents will attend supervised visits[.] The parents failed to attend this meeting.

On April 4, 2013, the [c]ourt took notice that Mother was not attending Family School consistently and ordered that she re-engage with Family School and that a report be provided at Child's next dependen[cy] hearing. Mother was referred to BHS for psychiatric evaluation. . . . The court took notice that Mother was compliant with the permanency plan[.]

On June 10, 2013, the [c]ourt took notice that Mother was compliant with the permanency plan . . . . The court took notice that Child was diagnosed as suffering from a seizure disorder and received on-going medical care. The [c]ourt referred the parents to BHS[.]

. . . Mother failed to comply with objectives designed to facilitate reunification with [Child]. Mother failed to fully comply with her FSP objectives. Mother attended some programs but the quality of her understanding of the materials presented was minimal. She was unable to put in practice what she learned. Mother has a history of severe mental health issues and has failed to fully address these issues with proper treatment and medication. Mother also failed to attend Family School on a consistent basis.

Trial Ct. Op., 4/11/14, at 1-3 (some references to Father's goals omitted).

On January 16, 2014, DHS a filed petition to change the goal to adoption. Following a hearing on February 4, 2014, the trial court granted DHS's petition and changed Child's goal to adoption. Mother timely appealed on March 4, 2014.²

Preliminarily, we sua sponte review whether Mother had notice that DHS sought termination of her parental rights.³ In its opinion, the trial courtstated, "DHS filed termination petitions on January 16, 2014." Trial Ct. Op. at 4. The official trial court docket includes these separate entries for that date: "Notice of Filing of Petition to Terminate Parental Rights Re: N/M" and "Goal Change Petition Filed." Detailed Docket, printed 4/14/14, at 7 (emphasis added). However, the certified record includes only a petition for goal change.⁴ This petition, as well as the accompanying proposed "Findings of Facts and Conclusions of Law," discuss only a goal change to adoption. DHS' Pet. for Goal Change to Adoption, 1/16/14, at ¶¶ 6-7; DHS' Findings of Fact & Conclusions of Law, 1/16/14, at ¶¶ 3.

Nevertheless, at the beginning of the hearing nineteen days later, on February 4, 2014, DHS' counsel stated, "[P]reliminarily, if I may read the vital statistics as stated in the Involuntary Termination Petition . . . regarding [Child.]" N.T., 2/4/14, at 5 (emphasis added). Mother made no objection or any indication that she was not aware of DHS' intent to pursue termination. See id. at 5-6. Accordingly, and in light of the fact thatMother has raised no issue concerning notice before the trial court or this Court, we proceed to a review of her appellate claims.

Mother raises the following issues for our review:

1. Did the trial court commit an error of law and abuse of discretion by

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