In the Interest of: S.N.V.B., a Minor ( 2017 )

J-S44001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.N.V.B., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: S.M., MOTHER
No. 366 EDA 2017
Appeal from the Decree Entered January 6, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000636-2016
CP-51-DP-0000826-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 29, 2017
S.M. (“Mother”) appeals from the decree entered January 6, 2017,
that granted the petition filed by the Philadelphia County Department of
Human Services, Children and Youth Division (“DHS”) to involuntarily
terminate her parental rights to her minor child, S.N.V.B. (“Child”) (born in
December of 2014), pursuant to sections 2511(a)(1), (2), (5), (8), and (b)
of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.1, 2 After careful review of the
record and applicable law, we affirm.
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1
The parental rights of Child’s father, N.B. (“Father”), were terminated by a
separate decree entered on the same date; however, Father is not a party to
this appeal.
2
A permanency review order was also entered on January 6, 2017, changing
the permanency goal for Child to adoption. As noted by the trial court in its
Pa.R.A.P. 1925(a) opinion, Mother did not challenge the change of
permanency goal to adoption in her Rule 1925(b) concise statement of
errors complained of on appeal; thus, she has waived that issue on appeal.
Trial Court Opinion (“TCO”), 3/8/17, at 4 (citing Krebs v. United Refining
(Footnote Continued Next Page)
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The trial court provided the following factual and procedural
background of this case:
The family in this case became known to DHS on March 6, 2015,
when DHS received a General Protective Services (“GPS”) report
alleging that Mother had untreated mental health issues,
appeared developmentally delayed, and had inadequate housing.
The report alleged that Child, born [in] December [of] 2014,
weighed 1 pound and 6 ounces at birth, and Child was presently
3 pounds and 12 ounces. Child needed to weigh 4 pounds,
receive bottle feeding by mouth, and show continuous weight
gain before Child could be discharged from the hospital. The
report also alleged that Mother had difficulty demonstrating basic
breast-feeding techniques and use of a breast pump. Mother
was unemployed, had failed to apply for Women, Infants, and
Children benefits (“WIC”), and resided in a home lacking utilities
with Child’s father. Father also appeared mentally delayed. On
March 31, 2015, DHS obtained an Order for Protective Custody
(“OPC”) for Child, who was ready for discharge from the hospital.
Child was placed in the kinship care with paternal aunt through
the Community Umbrella Agency (“CUA”) Jewish Children’s
Services. On April 2, 2015, the OPC was lifted and the
temporary commitment to DHS was ordered to stand. On April
14, 2015, Child was adjudicated dependent and Child was fully
committed to DHS. The case management was then transferred
to CUA Wordsworth which developed a Single Case Plan (“SCP”)
with objectives for Mother. The initial objectives on May 1,
2015, were for Mother to maintain a positive relationship with
Child; to attend supervised visits with Child twice each week; to
demonstrate emotional and physical support for Child; to
complete parenting classes and participate in housing and
domestic abuse programs at the Achieving Reunification Center
(“ARC”). Mother was also referred to NHS Human Services
(“NHS”) for mental health treatment.[3] Family school was later
added to Mother’s SCP objectives. These objectives remained
_______________________
(Footnote Continued)
Co., 893 A.2d 776, 797 (Pa. Super. 2006) (holding any issue not raised in a
Rule 1925(b) statement is deemed waived)).
3
Mother was diagnosed with bipolar disorder and schizophrenia. TCO at 3.
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the same throughout the life of the case. At the March 23, 2016
permanency hearing, the court noted that Mother had been
minimally compliant with the permanency plan. Mother never
completed her SCP objectives. At all permanency reviews, the
trial court found reasonable efforts on the part of DHS.
TCO at 1-2 (citations to record omitted).
On July 18, 2016, DHS filed petitions for goal change and involuntary
termination of Mother’s parental rights to Child. After hearing testimony
from DHS at the termination hearing on January 6, 2017, the trial court
issued final decrees, changing the goal to adoption and terminating Mother’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).
On January 18, 2017, Mother timely filed a notice of appeal, along with
a timely Rule 1925(b) concise statement of errors complained of on appeal.
In her brief, Mother presents the following issues for our review:
A. Whether the trial court erred in involuntarily terminating []
Mother’s parental rights pursuant to [§] 2511(a)(1), [(2), (5),
and (8)] where it was not supported by clear and convincing
evidence when [] Mother completed a substantial portion of
her [Family Service Plan (“FSP”)]/SCP goals?
B. Whether the trial court erred in involuntarily terminating []
Mother’s parental rights where [] Mother had visited her child
and there was a bond between [] Mother and Child and the
termination of parental rights would have a negative effect on
the developmental, physical[,] and emotional needs of []
Child?
Mother’s Brief at 5 (unnecessary capitalization omitted).
We review an appeal from the termination of parental rights under the
following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
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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., …
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 opinion)]. 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
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
Atencio, … 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
In termination cases, the burden is upon the petitioner to prove by
clear and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid. In re S.H., 879 A.2d 802, 806 (Pa.
Super. 2005). We have previously stated:
The standard of clear and convincing evidence is defined as
testimony that is so clear, direct, weighty and convincing as to
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enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.
In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation
marks omitted).
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
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 interest 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. § 2511;
other citations omitted).
This Court must agree with only one subsection of 2511(a), in addition
to section 2511(b), in order to affirm the termination of parental rights. See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we
review the decree pursuant to section 2511(a)(8) and (b), which provide as
follows:
(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:
…
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(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the date
of removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of 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. § 2511(a)(8) and (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(8).
To terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(8), the following factors must be demonstrated: (1) the
child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child. Section 2511(a)(8) sets a 12-month time
frame for a parent to remedy the conditions that led to the
[child’s] removal by the court. Once the 12-month period has
been established, the court must next determine whether the
conditions that led to the child’s removal continue to exist,
despite the reasonable good faith efforts of [the Agency]
supplied over a realistic time period. Termination under Section
2511(a)(8) does not require the court to evaluate a parent’s
current willingness or ability to remedy the conditions that
initially caused placement or the availability or efficacy of
[Agency] services.
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In re K.Z.S., 946 A.2d 753, 758-59 (Pa. Super. 2008).
Here, Mother avers that her parental rights should not have been
terminated where she had “substantially completed her Family Service Plan
goals and [DHS] failed to meet its burden pursuant to 23 Pa.C.S.[] § 2511.”
Mother’s Brief at 9. In support of her argument, Mother merely states that
she visited regularly with Child, re-engaged in parenting classes, started to
attend to her mental health, and was seeking housing at the time of the
termination hearing. Id. at 11-12. However, we deem Mother’s claim to be
unavailing.
As to the first element of section 2511(a)(8), concerning whether the
child has been removed from parental care for twelve months or more from
the date of removal, the trial court explained that “Child has been in DHS
custody since March 31, 2015, because Mother was unable to parent.” TCO
at 9. As to the second element of section 2511(a)(8), whether the
conditions which led to the removal or placement of the child continue to
exist, the court opined, as follows:
Since Child’s removal, Mother has not completed any of her SCP
objectives and has not placed herself in a position to parent
Child. Mother’s SCP objectives were to find adequate housing,
engage in mental health treatment, participate in supervised
visits with Child twice each week, attend parenting classes,
attend a domestic violence program, and attend family school.
Mother does not have permanent stable housing. DHS was
unable to assess whether Mother’s current home was ever
appropriate for reunification. Mother moves from home to
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home, living with relatives or friends. Mother began mental
health treatment at NHS, but stopped attending.[4] Mother
claimed she did not have identification and medical cards, but
Mother did not use the resources provided to her by the CUA
social worker to obtain the cards. Mother only recently re-
engaged with NHS to restart mental health treatment. Mother
was inconsistent with her supervised visits.[5] Mother did not
attend parenting classes, a domestic violence program, or family
school.
Id. (citations to record omitted).
Finally, as to the third element of section 2511(a)(8), concerning
whether termination of parental rights would best serve the needs and
welfare of the child, the trial court concluded:
Termination of Mother’s parental rights was in the best interest[]
of Child. Child has been in care for twenty-two months and
needs permanency. Child is currently placed with paternal aunt,
who has cared for Child for the full twenty-two months. Paternal
aunt has bonded with the Child and provides for all of Child’s
needs. Child calls paternal aunt “Mom.” The court heard
testimony that remaining with paternal aunt and adoption by
paternal aunt would be in the best interests of Child.
Id. After careful review, we discern that the court’s determinations are well
supported by the record.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to reviewing whether the requirements of subsection
(b) are met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
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4
Mother last attended NHS for mental health treatment on December 18,
2015. Id. at 2.
5
Despite being offered twice-a-week supervised visits, Mother had only
visited Child three times between the last court date of August 22, 2016,
and the termination hearing on January 16, 2017. Id. at 3.
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Super. 2008) (en banc). This Court has stated that the focus in terminating
parental rights under section 2511(a) is on the parent, but it is on the child
pursuant to section 2511(b). Id. at 1008.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “intangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
1992)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Here, Mother avers that she “maintained a continuous and bonded
relationship with her child … and it was not in [Child’s] best interest to
terminate that relationship.” Mother’s Brief at 13. However, the record
clearly belies Mother’s claim.
Based on the testimony and evidence produced at the termination
hearing, the trial court concluded:
Mother did not visit Child consistently. Mother’s visits were
always supervised. Child did not suffer any ill effects when
Mother missed visits. At a December 2016 visit, Child cried and
screamed when Mother tried to hug Child; Child reached and
went to foster parent for comfort. The CUA social worker
testified that Mother and Child do not have a parental bond and
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Child would not suffer permanent harm if Mother’s rights were
terminated. It is in Child’s best interest to be adopted by
paternal aunt, who has cared for Child for 22 months. The CUA
social worker who supervised Mother’s visits with Child testified
that Child views paternal aunt as the maternal figure, not …
Mother. Paternal aunt takes care of all Child’s needs. Child is
bonded with paternal aunt and calls her “Mom.” Child is in a
safe and permanent home. Consequently, the court did not
abuse its discretion when it found, by clear and convincing
evidence, that there was no parental bond and that termination
of Mother’s parental rights would not destroy an existing
beneficial relationship.
TCO at 10 (citations to record omitted).
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Child’s needs and
welfare, and the absence of any bond with Mother, we conclude that the
court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d
at 826-27. Accordingly, we affirm the decree terminating Mother’s parental
rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
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