In re Interest of D.F.

165 A.3d 960

IN the INTEREST OF D.F., a Minor

Appeal of: S.S., Natural Mother

No. 163 WDA 2017

Superior Court of Pennsylvania.

Submitted April 24, 2017

Filed June 07, 2017

Gina R. Force, Indiana, for appellant.

Thomas A. Kauffman, Indiana, for appellee.

Roberts F. Manzi, Jr., Indiana, for CYS, participating party.

BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:

S.S. ("Mother") appeals from the Order entered by the Indiana County Court of Common Pleas on October 6, 2016, terminating her parental rights with respect to D.F. (d/o/b August 2015) ("the Child").¹ After careful review, we affirm.

We have gleaned the following salient facts from the certified record. The day after the Child's birth, hospital staff contacted the Indiana County Children and Youth Services due to Mother's history with CYS and her hostile and uncooperative behavior with hospital personnel. When CYS arrived at the hospital, Mother admitted to the caseworker that she had used prescribed medications against doctor's recommendations throughout her pregnancy. She then refused to submit to a drug screening. A psychiatric evaluation conducted in the hospital revealed that Mother was at high risk for drug and alcohol addiction.

After the hospital discovered THC² in the Child's umbilical cord, CYS obtained a Protective Custody Order. The court granted custody of the Child to CYS on August 21, 2015, and CYS placed the Child in a licensed foster care home upon discharge from the hospital.

On September 3, 2015, the court adjudicated the Child dependent, with a goal of return to parent.³ See Trial Ct. Op., dated 11/7/16 at 1. The court developed a family service plan and ordered Mother to complete a parenting assessment, drug and alcohol assessments, and psychological and parental capacity evaluations, and to follow all recommendations from the service providers.

The court held permanency review hearings on December 10, 2015, April 14, 2016, and August 11, 2016. Mother attended the first hearing, but did not attend the subsequent hearings. While Mother did complete a parenting class, and some drug and alcohol treatment, her overall compliance with the Family Service Plan was inconsistent.

On August 29, 2016, CYS filed a Petition for Involuntary Termination of Parental Rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).

On October 6, 2016, the day of the hearing on the termination petition, Mother's counsel informed the Orphans' court that Maternal Grandmother had called counsel's office the day before to request a continuance due to Mother's allergies. Counsel thereafter unsuccessfully attempted to contact Mother on a phone number supplied by Maternal Grandmother. Counsel further informed the court that Mother had notice of the termination hearing, and that she and Mother had discussed the upcoming hearing "several times over the course of the last few weeks," but that Mother stopped communicating with counsel and the telephone number counsel had for Mother was disconnected as of two days prior to the hearing. N.T., 10/6/16, at 6. Counsel further stated that she had again attempted to contact Mother from chambers using a phone number supplied by the Maternal Grandmother prior to the hearing, but Mother had not responded.

CYS informed the court that it had sent a car to Mother's house that morning to take her to the termination hearing; however, the driver had knocked on the door for 20 minutes, but no one answered.

The guardian ad litem argued for the denial of counsel's continuance request in light of Mother's past non-appearances at important appointments, visits with the Child, and court hearings. See id. at 8.

The trial court denied the motion for the continuance "based upon the representations made with regard to notice to [Mother.]" The hearing proceeded. Id.

CYS presented testimony from, inter alia , an expert witness, psychologist Carol Hughes, and CYS caseworker Becky McAfoos. Ms. Hughes testified that she had conducted a bonding assessment, and concluded that the Child, while responding well to Mother's affection, has no significant attachment to Mother. Ms. Hughes opined that severing the bond with Mother would not harm the Child. She further testified that the Child is securely attached to his foster/pre-adoptive mother, who provides for his emotional, physical, and medical needs.

Caseworker Ms. McAfoos testified that Mother has not been consistent with mental health services, drug and alcohol treatment, drug testing, or visits with the Child. With respect to Mother's mental health treatment, the court admitted documents showing Mother's failure to utilize the services made available to her as part of her family service plan. Community Guidance Center had discharged her for non-compliance, reporting that she had continued to use substances while in treatment along with medication and refused to follow recommendations. N.T., 10/6/16, at 29. A second provider, Family Counseling Center of Armstrong County, reported that Mother had failed to appear for all five scheduled appointments. Family Psychological Associates, a third provider, reported that Mother completed an evaluation with a psychologist, who determined that Mother has bi-polar disorder and cannabis use disorder in early remission. However, Mother cancelled all but one session with a therapist.

With respect to Mother's drug and alcohol treatment, Ms. McAfoos testified that after Mother's initial in-patient treatment in October 2015 and for 90 days thereafter, Mother's outpatient attendance at programs was consistent. Thereafter, her attendance dropped off, and she provided diluted urine samples or occasionally refused to provide samples as required by the family service plan. One sample tested positive for THC after the Child's placement. See id. at 33–37.

Ms. McAfoos also testified that Mother attended 32 out of 76 scheduled visits with the Child. Mother had reported that various physical ailments prevented her from attending visits. Ms. McAfoos stated that although Mother "had ‘moments of progress,’ ... her periods of consistency never lasted more than four weeks." Trial Ct. Op., dated 11/7/16, at 4; N.T. at 42, 48.

Regarding Mother's bond with the Child, Ms. McAfoos testified that the Child interacts with Mother as if Mother were one of Child's day care workers. She stated that the Child is emotionally bonded with the foster/pre-adoptive mother. Finally, she testified that Mother "is not able to take care of herself, let alone [the Child]." Id.

The Child's guardian ad litem stated that it would be in the Child's best interest to terminate Mother's parental rights as the record is "very clear that she has been given ample time and opportunity to try to become a better parent ... and she has failed multiple times to do that."Id. at 54.

The court granted the Petition and terminated Mother's parental rights on October 6, 2016. Mother timely appealed, and filed a Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) Opinion.

In her brief, Mother raises the following three issues:

A. Whether the trial court committed an abuse of discretion in denying Mother's oral motion for a continuance for medical reasons thereby preventing Mother from providing necessary testimony?

B. Did the trial court err in its determination that the Indiana County Children and Youth Social Service Agency sustained its burden of proof by clear and convincing evidence that the statutory standards set forth in 23 Pa.C.S. § 2511(a) had been met?

C. Whether the Indiana County Children and Youth Social Service Agency did not prove by clear and convincing evidence and therefore, the court could not find, that Mother is incapable of providing essential parental care, control, or subsistence necessary for the Child's physical and mental well-being under 23 Pa.C.S. § 2511(b) ?

Mother's Brief at 6 (reordered).

In her first issue, Mother asserts that the trial court abused its discretion in denying her request for a continuance because, based on "medical records produced to legal counsel at a later date following the Court's finding," Mother had had bronchial pneumonia on the date of the hearing. Id. at 25. She further argues that, had she been at the hearing, she would have "provided imperative and weighty evidence" to "negate or explain some of the allegations of the Agency." Id. at 26.

The matter of granting or denying a continuance is within the discretion of the trial court. Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013) (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) ); Matter of Adoption of S.B.B., 372 Pa.Super. 456, 539 A.2d 883, 884 (1988) (noting that in the absence of Adoption Act provision mandating parental attendance at termination hearings, the grant or denial of a continuance is within the discretion of the trial court). Appellate courts will not disturb a trial court's determination absent an abuse of discretion. "An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the results of partiality, prejudice, bias, or ill-will." In re J.K., 825 A.2d 1277, 1280 (Pa. Super. 2003) (citations omitted).

We note initially that neither the Adoption Act nor the cases interpreting it require that a parent must be present in order for a court to grant a Petition to Terminate Parental Rights. The Act merely requires that "[a]t least ten days' notice shall be given to the 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." 23 Pa.C.S. § 2513(b). See In re K.B., 763 A.2d 436, 440 (Pa. Super. 2000) (finding affidavits of service support trial court's finding that the parents received notice of parental rights...