In the Int. of: A.M., Appeal of: S.M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.M., MOTHER :
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: No. 2578 EDA 2021
Appeal from the Order Entered November 9, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at CP-51-DP-0001591-2019
IN THE INTEREST OF: A.Y.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.M., MOTHER :
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: No. 2579 EDA 2021
Appeal from the Decree Entered November 9, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at CP-51-AP-0000364-2021
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 13, 2022
Appellant, S.M. (Mother), appeals from the decree terminating her
parental rights to her daughter, (A.M. a/k/a A.Y.M.), and the order changing
A.M.’s permanency goal to adoption. Upon review, we affirm.
A.M. was born in October 2019. When A.M. was two days old and still
at Temple University Hospital, the hospital requested the Philadelphia
Department of Human Services (DHS) authorize A.M.’s discharge with Mother,
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who had been involved with DHS since 2011.1 Trial Court Opinion, 2/23/22,
at 1. DHS caseworker Tiffany Tillman went to the hospital and met with
Mother on October 7, 2019. At that time, Mother did not have stable housing,
which Ms. Tillman described as “up and down.” N.T., 11/3/21, at 74. Mother
had been living with her sister (Maternal Aunt), who offered to be a placement
source, but Maternal Aunt “did not pass the clearance process.” Trial Court
Opinion, 2/23/22, at 3. Maternal Aunt offered her son and step-daughter as
possible placement resources, but their home “was not appropriate due to
structural damages and needed repairs.” Id. Consequently, DHS declined to
authorize A.M.’s discharge with Mother, and sought to place A.M. in foster
care. DHS obtained an order of protective custody on October 8, 2019. After
a hearing on October 18, 2019, the court adjudicated A.M. dependent.
DHS recommended the same parenting objectives Mother had with her
other children, i.e., maintain supervised visitation with her child; participate
in drug and alcohol screening/treatment, attend parenting classes and mental
health treatment; and obtain stable housing and proof of employment. In
subsequent permanency review hearings, the court found Mother to be
minimally or moderately compliant with her parenting objectives. On July 8,
2021, DHS filed a petition to involuntarily terminate Mother’s parental rights
and change A.M.’s permanency goal to adoption. The trial court held hearings
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1Mother did not have custody of her six older children. See Trial Court
Opinion, 2/23/22, at 2.
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on August 13, November 3, and November 9, 2021.2 On November 9, 2021,
the court entered the termination decree and order changing A.M.’s
permanency goal to adoption.3 Mother timely appealed.
Mother presents two issues for our review:
1. Whether the trial court committed error by involuntarily
terminating [Mother’s] parental rights where such determination
was not supported by clear and convincing evidence establishing
grounds for termination under the Adoption Act, 23 Pa.C.S.A. §§
2511 (a)(1), (a)(2), (a)(5) and (a)(8)?
2. Whether the trial court committed error by changing A.M.’s
permanency goal from reunification with [Mother] to adoption
without giving primary consideration to the developmental,
physical, and emotional needs and welfare of the child as required
by the Adoption Act, 23 Pa.C.S.A. § 2511(b)?
Mother’s Brief at 5.
In considering Mother’s issues,
our standard of review requires [us to] accept the findings of fact
and credibility determinations of the trial court if they are
supported by the record. If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. As has been often stated, an
abuse of discretion does not result merely because the reviewing
court might have reached a different conclusion. Instead, a
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2 At the initial permanency review hearing on January 10, 2020, the court
made of a finding of aggravated circumstances based on the termination of
Mother’s parental rights to her other children. See 42 Pa.C.S.A. § 6302
(definitions). The court took judicial notice of aggravated circumstances
during termination proceedings. N.T., 11/3/21, at 89.
3 The court also terminated the parental rights of A.M.’s father, K.I., who
appealed from the termination and goal change at 2510 EDA 2021 and 2509
EDA 2021.
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decision may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
As [the Supreme Court] discussed in In re: R.J.T., [9 A.3d 1179,
1190 (Pa. 2010)], there are clear reasons for applying an abuse
of discretion standard of review in these cases. [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. 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 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 817, 826-27 (Pa. 2012) (some citations
omitted).
Here, DHS had the burden to prove by clear and convincing evidence
that its asserted grounds for termination were valid. In re R.N.J., 985 A.2d
273, 276 (Pa. Super. 2009). “[T]he standard of clear and convincing evidence
is defined as testimony that 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.” Id. (citation omitted).
In her first issue, Mother argues she “made significant and consistent
progress in meeting her established goals and objectives,” and emphasizes
the “global Covid 19 pandemic that shutdown many offices and services
available” to her. Mother’s Brief at 19. Mother claims DHS failed to provide
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her with assistance and services to achieve her objectives. Id. at 20. Mother
also claims she was “involved with her daughter from the onset.” Id. For
these reasons, Mother asserts the court erred in finding DHS presented clear
and convincing evidence of grounds for termination under 23 Pa.C.S.A. §
2511(a)(1), (2), (5), and (8).
In contrast, A.M.’s advocate states:
At the time of the hearing, by her own admission, [Mother] was
not ready to reunify with A.M., even though she was given over
two years to achieve her objectives. Mother demonstrated a
settled purpose to relinquish her rights and a distinct failure to
perform parental duties, as well as continued incapacity to parent
A.M., under Subsections 2511(a)(1) and (a)(2). Mother also failed
to remedy the conditions that brought A.M. into care, despite the
ample time she received to complete these objectives; therefore,
termination was proper under Subsections 2511(a)(5) and (a)(8).
The Trial Court made a finding of aggravated circumstances and
found that DHS did not need to make reasonable efforts to reunify
the family early in the case, so Mother’s argument that DHS did
not adequately assist Mother with meeting her objectives is
entirely beside the point. In any event, DHS made efforts to assist
Mother, and Mother fails to identify any objective for which she
sought assistance from DHS and failed to receive it.
Participant’s Brief at 30.4
DHS agrees Mother failed to perform parental duties and “maintain a
presence in Child’s life.” DHS Brief at 8. DHS also argues that the conditions
which caused A.M. to be in DHS’s care “continued to exist: Mother continued
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4 A.M. was not quite two years old when termination proceedings began.
Consequently, the Child Advocate had no conflict representing A.M.’s best
interests and legal interests. See Trial Court Opinion, 2/23/22, at 32.
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to lack both stable and appropriate housing and could not show that she was
addressing her significant mental health issue.” Id.
The trial court found grounds for termination under 23 Pa.C.S.A. §
2511(a)(1), (2), (5), and (8). We need only agree “as to any one subsection
in order to affirm the termination of parental rights.” In re A.S., 11 A.3d 473,
478 (Pa. Super. 2010) (citation omitted). Therefore, we focus on the second
subsection, which provides for termination when
(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.
23 Pa.C.S.A. § 2511(a)(2).
Subsection (a)(2) “emphasizes the child’s present and future need for
‘essential parental care, control or subsistence necessary for his physical or
mental well-being.’” In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008)
(citations omitted). Grounds for termination under subsection (a)(2) are not
limited to affirmative misconduct. Id. “Where the parent does not exercise
reasonable firmness in declining to yield to obstacles, h[er parental] rights
may be forfeited.” Id. at 83 (citation omitted).
At the time of termination, A.M. had been “in continuous DHS care for
[the] twenty-five months” since her birth. Trial Court Opinion, 2/23/22, at
14. The DHS caseworker, Ms. Tillman, testified that Mother never progressed
beyond supervised visitation with A.M. N.T., 11/3/21, at 102. Also, Mother’s
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compliance with her other objectives. For example, Mother failed to provide
clean drug test results to demonstrate her sobriety. Id. at 90, 97. Although
Mother was diagnosed with persistent depressive disorder, she claimed she
did not require treatment, but failed to provide confirmation. See Trial Court
Opinion, 2/23/22, at 17 (trial court stating “Mother claimed she asked for
documentation to be sent and the request was denied.”). The trial court
provided a detailed account of Mother’s actions relative to her parenting goals.
See id. at 13-20. The court found:
This is not Mother’s first involvement with DHS. She has had her
rights to several other children involuntarily terminated. The
same parenting concerns for Mother at the time her parental
rights were previously terminated for her other children are still
present today. Mother had ample opportunity to put herself in a
position to adequately parent and care for [A.M.], but her
repeated and continued incapacity has not been mitigated.
Mother is unable to meet [A.M.]’s basic needs. Mother shows a
passive interest in [A.M.] and does not utilize all available
resources to enhance her parenting[.] The testimony of the DHS
Social Workers was credible. The record established that Mother
has demonstrated an unwillingness to acknowledge or remedy the
causes of her incapacity to parent in order to provide [A.M.] with
the parental care, control, or subsistence necessary for her
physical and mental well-being. Mother admitted that she “would
rather [Child] be with her father right now, since he’s more
stable.” (N.T., 11/9/21, pgs. 128-129, 153). However, Father
had previously reported that he is not able to care for [A.M.].
(N.T., 11/3/21, pgs. 77-78).
Id. at 20.
The record supports the trial court’s findings, and we discern no error in
its conclusion that termination was proper under Section 2511(a)(2). Thus,
Mother’s first issue does not merit relief.
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In her second issue, Mother argues the record does not support
termination under Section 2511(b), which requires that the trial court “give
primary consideration to the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S.A. § 2511(b). When the trial court
considers a child’s needs and welfare, the “extent of any bond analysis . . .
necessarily depends on the circumstances of the particular case.” In re
K.Z.S., 946 A.2d 753, 763 (Pa. 2008).
[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, this
Court stated that the trial court should consider the importance of
continuity of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the child.
In re A.S., 11 A.3d at 483 (citations omitted).
Mother claims DHS presented “minimal, inconclusive, and superficial
non-expert testimony” regarding A.M.’s needs and welfare. Mother’s Brief at
21. Mother references her testimony that she “loves her daughter A.M. and
wants to be reunified with her.” Id. at 33. Mother also asserts that her
witness from Tabor Children’s Services, Jerry Riddick, “testified credibly” to
A.M. having a “loving and appropriate parental bond” with Mother, and
termination causing “irreparable harm” to A.M. Id. at 21.
A.M.’s advocate argues otherwise, citing Mother’s “failure to meet her
objectives and move beyond supervised visits” as the basis for Mother and
A.M. not having a parent-child relationship. Participant’s Brief at 31. A.M.’s
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advocate emphasizes that A.M. “developed a parental bond with her foster
mother, who met all of A.M.’s physical, medical, developmental, and emotional
needs.” Id. Similarly, DHS argues:
Testimony also showed that the needs and welfare of [A.M.] would
be served by terminating Mother’s parental rights. Mother had
inconsistent contact with [A.M.] over her life, and did not take
steps to develop a nurturing parental bond with [A.M.], who
formed healthy attachments with her foster family while placed.
[A.M.] would not be irreparably harmed by terminating Mother’s
rights.
DHS Brief at 8.
We are not persuaded by Mother’s argument. Mother’s witness, Mr.
Reddick, testified to being employed by Tabor Children’s Services as a
Resource Parent Support Worker. N.T., 11/9/21, at 62. Mr. Reddick was not
assigned to Mother’s case until June 25, 2021. Id. at 63. He testified that
visits between Mother and A.M. “went really well,” and “it’s definitely a
bonding, connected experience between [M]other and child.” Id. at 74. He
also described the relationship between Mother and A.M. as becoming
“stronger and more consistent,” and “getting better and better with each
visit.” Id. at 76, 81. However, Mr. Reddick admitted this was his first case
as a visitation supervisor, and described Mother’s visitation as “erratic.” See
id. at 109-111, 185.
As noted above, the trial court found the testimony of the DHS
caseworkers to be credible. Ms. Tillman, Mother’s DHS caseworker until April
2021, and Ms. Koslosky, the DHS caseworker who succeeded Ms. Tillman,
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both testified that termination served A.M.’s needs and welfare. For example,
Ms. Koslosky testified that it would be “traumatic” for A.M. to be removed
from the care of Foster Mother, who is the only parent A.M. has known. N.T.,
11/3/21, at 182.
In addressing A.M.’s needs and welfare, the trial court observed that
Mother “never graduated beyond supervised visitation. Mother was
inconsistent in her visitation. Mother’s visits were twice weekly in the
beginning of the case and were reduced to once weekly due to Mother not
availing for consistent visits.” Trial Court Opinion, 2/23/22, at 28-29 (citations
omitted) (noting Mother’s testimony “that all her absences throughout the
case were because ‘nobody wanted to work with [her]" and blam[ing her]
absences on other people.”); see also id. at 29 (DHS did not recommend
unsupervised visits due to Mother’s inconsistency with visits, lack of drug
screens, and noncompliance with mental health treatment).
Relying on the testimony from the two DHS caseworkers, the court
found A.M. has “a parental bond” with Foster Mother, “does not have a parent-
child bond with Mother,” and termination “would not cause irreparable harm
to sever whatever relationship [A.M.] may have with Mother.” Id. at 30. The
court explained,
[A.M.] does not depend on Mother as an essential caregiver, in
large part due to Mother’s inconsistency in visits. A.M is bonded
with [Foster Mother], not Mother. [A.M.] has been in placement
with [Foster Mother] for “pretty much her entire life,” since she
was an infant of less than one month old. [A.M.] is more strongly
bonded to [Foster Mother] than Mother[, and Foster Mother] is the
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one who takes [A.M.] to appointments, meets her needs and
provides [A.M.] “with everything she needed.” Mother did not do
anything outside of visitation to provide for or meet [A.M.]’s
needs. Mother inquires about [A.M.’s] care and well-being on
occasion but not consistently. Mother also did not attend
appointments for [A.M.]. [A.M.]’s relationship with [Foster
Mother] is “very loving” and [Foster Mother] is very attentive to
A.M.’s] needs, provides [A.M.] with everything that she needs."
[Foster Mother’s] life “revolves around” [A.M.].
Id. at 30 (citations to notes of testimony omitted).
The trial court concluded A.M. “may recognize Mother, but there is no
healthy beneficial necessary bond to preserve. It is in [A.M.]’s best interest
to terminate Mother’s parental rights and be freed for adoption.” Id. at 32.
The record supports the court’s conclusion.
For the above reasons, we discern no error or abuse of discretion by the
trial court in terminating Mother’s parental rights and changing A.M.’s
permanency goal to adoption.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2022
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