In the Interest of: D.S.B., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE SUPERIOR COURT OF
IN THE INTEREST OF: D.S.B., A MINOR PENNSYLVANIA
A/K/A D.B.
APPEAL OF: K.D., MOTHER
No. 3705 EDA 2017
Appeal from the Decree Entered October 20, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000764-2017
CP-51-DP-0000367-2016
IN THE SUPERIOR COURT OF
IN THE INTEREST OF: D.A.B., A MINOR PENNSYLVANIA
A/K/A D.B.
APPEAL OF: K.D., MOTHER
No. 3707 EDA 2017
Appeal from the Decree Entered October 20, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000763-2017
CP-51-DP-0000368-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 03, 2018
K.D. (“Mother”) appeals from the decrees entered on October 20, 2017,
in the Court of Common Pleas of Philadelphia County, which involuntarily
terminated her parental rights to her minor children, D.A.B., born in April of
2014, and D.S.B., born in April of 2015, (collectively “Children”), and changed
the goals for both Children to adoption. Additionally, Mother’s counsel has
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filed a petition to withdraw and a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Upon review, we grant counsel’s petition to withdraw and affirm the
termination decrees.
The trial court summarized the factual and procedural history of this
matter as follows:
The Philadelphia Department of Human Services (“DHS”)
first became aware of this family in February 2016 when it
received a report regarding allegations that Mother was acting
belligerent and inappropriately disciplining the Children. The
report was determined to be valid, and based on the allegations
in the report, an Order of Protective Custody was obtained for the
Children. At the shelter care hearing for the Children on March
24, 2016, this [c]ourt granted temporary legal custody of the
Children to DHS and granted Mother supervised visits with the
Children at the agency. Following the shelter care hearing, DHS
filed dependency petitions for the Children based on the
information discussed supra. This [c]ourt subsequently held an
adjudicatory hearing on April 19, 2016[,] and adjudicated the
Children dependent based on Mother’s present inability. At the
adjudicatory hearing, this [c]ourt granted full legal custody of the
Children to DHS and placed the Children with their maternal
grandmother. An initial permanency review hearing was held on
July 20, 2016, at which time, the permanency goal for the Children
was identified as reunification.
On July 31, 2017, DHS filed petitions to change the
Children's permanency goal from reunification to adoption. A
contested goal change hearing (hereinafter the “TPR” hearing)
was held before this [c]ourt on October 20, 2017, at which time,
DHS petitioned to involuntarily terminate the parental rights of
Mother pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and
(b). At the TPR hearing, the CUA [(Community Umbrella Agency)]
social worker, Yasmin Carter, testified that the Children have been
in foster care since their initial placement in February 2016. Ms.
Carter testified that Mother’s single case plan objectives were as
follows: 1) to comply with the court and CUA’s recommendations,
2) participate in and complete drug and alcohol treatment, 3)
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participate in random drug screens, 4) participate in and complete
a mental health program, and 5) attend weekly supervised visits
with the Children. Mother’s single case plan objectives have been
consistent throughout the life of the case. According to Ms.
Carter, the single case plans were generated every three months
and Mother participated in those sessions. Mother, however,
refused to sign a single case plan indicating that she knew what
her objectives were. Mother also asked Ms. Carter to stop calling
her and stated that she will not comply with anything CUA asked
her to do.
In regards to Mother’s compliance with her objectives, Ms.
Carter testified that Mother was non-compliant. Specifically, Ms.
Carter testified that Mother never completed a drug and alcohol
program. Mother attended Sobriety Through Outpatient (“STOP”)
on a few occasions, but never completed a drug program at STOP.
Mother participated in random drug screens at the Clinical
Evaluation Unit (“CEU”) and at STOP. On May 11, 2017 and July
14, 2017, Mother took random screens at the CEU and tested
positive for Phencyclidine (“PCP”). Mother also tested positive for
PCP and Benzodiazepines on August 4, 2017.1 On September 11,
2017, Mother took a random screen at STOP and tested positive
for Oxycontin. Ms. Carter testified that Mother was called for
additional drug screens but did not attend those screenings.
1The record also indicated that Mother tested positive
for PCP on June 19, 2016, July 11, 2016, and July 19,
2016.
With respect to Mother’s mental health status, Mother was
diagnosed with Bipolar Schizophrenia Disorder, but has never
engaged in or completed a mental health program. Ms. Carter
indicated that she had concerns about Mother’s mental instability.
Ms. Carter testified that the Children initially resided with their
maternal grandmother, but were removed as a result of Mother’s
belligerent behavior. Specifically, in April 2016, Mother attempted
to forcibly gain access to maternal grandmother’s home, which
resulted in Mother[’s] being arrested and incarcerated for eight
days. This [c]ourt subsequently issued a stay-away order as to
maternal grandmother’s home; however, Mother continued to go
to maternal grandmother’s home, despite the stay-away order.
As a result, the Children were removed from maternal
grandmother’s home and placed in a general foster home. Ms.
Carter subsequently testified that Mother threatened to physically
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assault anyone who adopted the Children and that Mother’s
supervised visits were moved from the agency to DHS because
Mother threatened to physically attack Ms. Carter.
When asked about Mother’s visitation with the Children, Ms.
Carter testified that Mother was to attend supervised weekly visits
with the Children at [the] agency. Since August 2016, Mother has
been offered 58 supervised visits with the Children and only
attended 36 of those visits. Mother reported that many of the
visits were missed because she had other obligations. Ms. Carter
also testified that Mother forcibly grabs the Children during visits
and gets upset when she is redirected by the visitation coach.
Ms. Carter indicated that it would be in the Children’s best
interest to terminate Mother’s parental rights because she has not
completed a drug and alcohol program, consistently tests positive
for PCP, has never addressed her mental health needs, has not
cared for the Children for approximately eighteen months and is
not bonded with the Children. Ms. Carter further testified that the
Children have a strong bond with their foster parent and look to
their foster parent to meet their daily needs.
Ms. Nicole Langford, the visitation coach, also testified at
the TPR hearing. According to Ms. Langford, Mother gets
impatient and frustrated with the Children during visits and
forcibly grabs the Children when they refuse to listen to her. Ms.
Langford testified that the Children are not bonded with Mother
and that D.S.B. does not allow Mother to hold her during visits
and that she whines and pulls away when Mother tries to pick her
up.
At the TPR hearing, Mother testified that she missed visits
with her children when she had court dates or when she was busy.
Mother denied using PCP and stated that she was unsure why her
test screens indicated that she tested positive for PCP. Mother
also denied ever testing positive for PCP; however, Mother
admitted to testing positive for Benzodiazepines and Marijuana.
Mother also admitted that she was not receiving mental health
treatment.
Based on the foregoing testimony, this [c]ourt issued a
decree involuntarily terminating the parental rights of Mother
under 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) and (8) and finding, in
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accordance with 23 Pa.C.S.A. § 2511(b), that such termination
best serves the developmental, physical, and emotional needs and
welfare of the Children.2 Mother, along with counsel, filed a timely
Notice of Appeal along with a Statement of Errors.
2In the decree entered on October 20, 2017, this
[c]ourt also involuntarily terminated the parental
rights of any unknown putative father.
Trial Court Opinion, 12/18/17, at 1-5 (citations to the record omitted).
Initially, we note that Mother’s counsel filed an Anders brief and a
petition to withdraw. Before reaching the merits of Mother’s appeal, we must
first address counsel’s request to withdraw. See Commonwealth v. Rojas,
874 A.2d 638, 639 (Pa. Super. 2005) (“‘When faced with a purported Anders
brief, this Court may not review the merits of the underlying issues without
first passing on the request to withdraw.’”) (quoting Commonwealth v.
Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)). “In In re V.E., 417
Pa.Super. 68, 611 A.2d 1267 (1992), this Court extended the Anders
principles to appeals involving the termination of parental rights.” In re X.J.,
105 A.3d 1, 3 (Pa. Super. 2014). To withdraw pursuant to Anders, counsel
must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
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2009)). With respect to the third requirement of Anders, that counsel inform
the appellant of his or her rights in light of counsel’s withdrawal, this Court
has held that counsel must “attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights.” Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must comply with the following
requirements:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
In the instant matter, counsel has filed a petition to withdraw, certifying
that he has reviewed the case and determined that Mother’s appeal is wholly
frivolous. Counsel also has filed a brief that includes a summary of the history
and facts of the case, issues raised by Mother, and counsel’s assessment of
why those issues are frivolous, with citations to relevant legal authority.
Counsel has included in his brief a copy of his letter to Mother, advising her
that she may obtain new counsel or raise additional issues pro se.
Accordingly, counsel has substantially complied with the requirements of
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Anders and Santiago. See Commonwealth v. Reid, 117 A.3d 777, 781
(Pa. Super. 2015) (observing that substantial compliance with the Anders
requirements is sufficient). We, therefore, may proceed to review the issues
outlined in the Anders brief. In addition, we must “conduct an independent
review of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (footnote omitted).
Counsel’s Anders brief lists the following in the section entitled
statement of questions presented:
1. Whether the trial court committed reversible error, when it
involuntarily terminated Mother’s parental rights and changed the
goal from reunification to adoption where such determination was
not supported by clear and convincing evidence under the
[A]doption [A]ct, 23 P[a].C.S.A. § 2511(a)(1), (2), (5), and (8)[?]
2. Whether the trial court committed reversible error when it
involuntarily terminated Mother’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental, physical and emotion needs of the
[Children] as required by the [A]doption [A]ct, 23 P[a].C.S.A. §
2511(b)[?]
3. Whether[] the trial court erred because the evidence was
overwhelming and undisputed that Mother demonstrated a
genuine interest and sincere, persistent and unrelenting effort to
maintain a parent-child relationship with her [Children?]
Anders brief at 5 (unnumbered).
In the argument section of the brief, counsel first presents a discussion
about the requirements for withdrawal of counsel. He then presents
discussion relating to all three issues set forth above without dividing the
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argument “into as many parts as there are question to be argued.” Pa.R.A.P.
2119(a). Moreover, counsel does not provide headings describing “the
particular point treated therein.” Id. However, counsel does provide an
appropriate discussion relating to each issue with citations to pertinent
authorities. Therefore, because we are not hindered in our review of this
matter, we will consider all arguments presented.
We begin with the claim that the goal for Children should not have been
changed to adoption in that this change was not “best suited to the safety,
protection and physical, mental and moral welfare” of Children. Anders brief
at 12. Mother also contends that she has met some of her objectives and that
she has a strong bond with Children.
In addressing this issue, we are guided by the following:
In cases involving a court’s order changing the placement goal …
to adoption, our standard of review is abuse of discretion. In re
N.C., 909 A.2d 818, 822 (Pa. Super. 2006). To hold that the trial
court abused its discretion, we must determine its judgment was
“manifestly unreasonable,” that the court disregarded the law, or
that its action was “a result of partiality, prejudice, bias or ill will.”
Id. (quoting In re G.P.-R., 851 A.2d 967, 973 (Pa. Super. 2004)).
While this Court is bound by the facts determined in the trial court,
we are not tied to the court’s inferences, deductions and
conclusions; we have a “responsibility to ensure that the record
represents a comprehensive inquiry and that the hearing judge
has applied the appropriate legal principles to that record.” In re
A.K., 906 A.2d 596, 599 (Pa. Super. 2006). Therefore, our scope
of review is broad. Id.
In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008).
Furthermore, this Court has stated:
Placement of and custody issues pertaining to dependent
children are controlled by the Juvenile Act [42 Pa.C.S. §§ 6301-
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65], which was amended in 1998 to conform to the federal
Adoption and Safe Families Act (“ASFA”). The policy underlying
these statutes is to prevent children from languishing indefinitely
in foster care, with its inherent lack of permanency, normalcy, and
long-term parental commitment. Consistent with this underlying
policy, the 1998 amendments to the Juvenile Act, as required by
the ASFA, place the focus of dependency proceedings, including
change of goal proceedings, on the child. Safety, permanency,
and well-being of the child must take precedence over all other
considerations, including the rights of the parents.
In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006) (citations and footnotes
omitted; emphasis in original).
Pursuant to section 6351(f) of the Juvenile Act, when considering a
petition for goal change for a dependent child, the juvenile court is to consider,
inter alia: (1) the continuing necessity for and appropriateness of the
placement; (2) the extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and feasibility of
the current placement goal for the children; and (5) a likely date by which the
goal for the child might be achieved. In re S.B., 943 A.2d at 977. The best
interests of the child, and not the interests of the parent, must guide the trial
court. Id. at 978. As this Court has held, “a child’s life simply cannot be put
on hold in the hope that the parent will summon the ability to handle the
responsibilities of parenting.” In re N.C., 909 A.2d at 824 (quoting In re
Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003)).
Our review of the record and the trial court’s opinion, which addresses
Mother’s issues relating to the termination of her parental rights, supports the
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fact that she refused to accept many of the services that were offered to her.
The services were directed at helping Mother to be drug free, to treat her
mental health issues, and to obtain a home in which she and Children would
be safe and healthy. By refusing to accept and participate in these services,
Mother could not assure Children’s safety if they were returned to her custody.
Thus, we conclude that the trial court did not err in ordering the goal change
from reunification to adoption as the change was in Children’s best interests.
With regard to the arguments raised in relation to the termination of
Mother’s parental rights, we have reviewed the certified record, the briefs of
the parties, the applicable law, and the thorough, 12-page opinion of the
Honorable Daine Grey Jr. of the Court of Common Pleas of Philadelphia
County, dated December 18, 2017. We conclude that Judge Grey’s well-
reasoned opinion accurately disposes of the issues relating to the parental
rights termination issues presented on appeal and we discern no abuse of
discretion or error of law. Accordingly, we adopt Judge Grey’s opinion,
namely, pages 5-12, as our own and employ that discussion as part of our
basis for affirming the decrees from which these appeals arose.
In sum, our independent review of Mother’s claims does not persuade
us that she is entitled to relief. Moreover, our review of the record does not
reveal any non-frivolous issues overlooked by counsel. See Flowers, 113
A.3d at 1250. Therefore, we grant counsel’s petition to withdraw, and affirm
the trial court’s decrees.
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Decrees affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/18
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CiraMelGtAtiWalap2:26 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF
JUVENILE DIVISION
TN RE: D.A.B and D.S.B. SUPERIOR COURT
3707 EDA 2017.
3705 EDA 2017
COURT OF COMMON PlEiR.S
CP-51 -AP-Q000763 -2017-c .-__-_-
CP-51-DP-9000368-2016 1:\;
CP 751 -AP -0000764 -2017 (---)
CP-51-DP-0000367-2016
FID: 514'N:467547:2009
APPEAL K.D., Mother
OPINION
.PAINE GREY JR.., J DATE: December 18, 2017
K.D. ("Mother") appeals this Court's decree, entered on October 20, 2017, involuntarily
terminating her parental rights as to her two children, D.A.B. (born April 22, 2014) and D.S.B.
(born April 19, 2015), (collectively, the "Children"). John Haybitrn, counsel for Mother, filed a
timely Children's Fast Track Appeal from the October 20, 2017 decree, with attached Concise -
Statement of ErrOts, Affidavit of Service, and other related documents necessary to perfect this
PROCEDURAL HISTORY & FACTS,
The relevant facts and procedural history of case are as follows: The Philadelphia
Department of Human Services ("DHS") first became aware of this family in February 2016
when it received a report regarding allegations that Mother was acting belligerent and
inappropriately disciplining the Children. (N.T. 10/20/17 at 6). The report was determined to be ,
valid, and based on the allegations in the report, an Order of Protective Custody was obtained for
the Children. (Id. at 6). At the shelter care hearing for the Children on March 24, 2016, this
Court granted temporary legal custody of the Children to DHS and granted Mother supervised
visits with the Children at the agency. (Trial Court Order 3/24/16 at 1). Following the shelter
care hearing, DHS filed dependency petitions for the Children based on the information
discussed supra. (DHS Dependency Pet. for D.A.B. and D.S.B.). This Court subsequently-held
an adjudicatory hearing on April 19, 2016 and adjudicated the Children dependent based on
Mother's present inability. (Trial Court Order 4/19/16 at 1). At the adjudicatory hearing, this
Court granted full legal custody of the Children to DHS and placed the Children with their
maternal grandmother. (Id.). An initial permanency review hearing was, held on July 20, 2016, at
which time, the permanency goal for the Children was identified as reunification. (Trial Court
Order 7/20/16 at 1).
On July 31, 2017, DHS filed petitions to change the Children's permanency goal from
reunification to adoption. (DRS Goal Change Pet. for D.A.B. and D.S.B.). A contested goal
change hearing (hereinafter the "TPR" hearing) was held before this Court on October 20, 2017,
at which time, DHS petitioned to involuntarily terminate the parental rights of Mother pursuant
to 23 Pa.C.S.A. §§ 251I(a)(1), (2), (5), (8) mid (b). At the TPR hearing, the, quA social worIcer,
-
. .
Yasmin Carter, testified that the Children have been in foster care since their initial placement ir.i
February 2016. (N.T. 10/20/17 at 12). Ms. Carter testified that Mother's single case plan.
objectives were as follows: 1) to comply with the court and CUA's recommendations, 2)
participate in and complete dnig and alcohol treatment, 3) participate in random drug screens, 4)
participate in and complete a mental health program, and 5) attend weekly supervised visits with
the Children. (Id. at 7). Mother's single case plan objectives have been consistent throughout the
life of the case. (Id.). According to. Ms. Carter, the single case plans were generated every three
months and Mother participated in those sessions. (Id. at 19). Mother, however, refused to sign a
single case plan indicating that the knew what her objectives were. (Id. at 20). Mother also
asked Ms. Carter to stop calling her and stated that she will not comply with anything CUA
asked her to do. (Id. at 20; 26).
In regardS 15191other'Sboinfiliince with her objectives, Ms. Carter.tetified that Mother
was non -compliant. (See Id. at 7). Specifically, Ms. Carter testified that Mother never completed
a drug and alcohol program. (Id.). Mother attended Sobriety Through Outpatient ("STOP") on a
few occasions, but never completed a drug program at STOP. (Id. at 16-17). Mother participated
in random drug screens at the. Clinical Evaluation Unit ("CEU") and at STOP. (Id. at 16). 'On
May 11, 2017. and July 14, 2017, Mother took random screens at the CEU and tested positive for
Phencyclidine ("PCP"). (Id. at 8). Mother also tested positive for PCP and Benzodiazepines on
August 4, 2017. (Id.). On September 11, 2017, Mother took a random screen at STOP and
tested positive for Oxycontin. (Id.). Ms. Carter testified that Mother was called for additional
drug screens but did not attend those screenings. (Id.).
With respect to Mother's mental health status, Mother was diagnosed with Bipolar
Schizophrenia Disorder, but has never engaged in or completed a mental health program. (Id.).
Ms. Carter indicated that she had concerns about Mother's mental instability. Ms. Carte
testified that the Children initially resided with their maternal grandmother, but were removed as
' The record also indicated that Mother tested positive for PCP on June 19, 2016, July 11, 2016, and July
19, 2016. (Id. at 44).
a result of Mother's belligerent behavior. (Id. at 12). Specifically, in April 2016, Mother
attempted to forcibly gain access to maternal grandmother's home, which resulted in Mother
being arrested and incarcerated for eight days. (Id.). This Court subsequently issued a stay -away
order as to maternal grandmother's home; however, Mother continued to go to maternal
grandmother's home, despite the stay -away order. (Id.). As a result, the Children were removed
from maternal grandmother's home and placed in a general foster home. (Id.). Ms. Carter
subsequently testified that Mother threatened to physically assault anyone who adopted the
Children and that Mother's supervised visits were moved from the agency to DHS because -
Mother threatened to physically attack Ms. Carter. (Id.; 10).
When asked about Mother's visitation with the Children, Ms. Carter testified that Mother
was to attend supervised weekly visits with the Children at agency. (Id. at 10). Since August
2016, Mother has been offered 58 supervised visits with the Children and only attended 36 of
those visits. (Id. at 11). Mother reported that many of the visits were missed because she had
other obligations. (Id. at 21). Ms. Carter also testified that Mother forcibly grabs the Children
during visits and gets upset when she is redirected by the visitation coach. (Id. at 22).
Ms. Carter indicated that it would be in the Children's best interest to terminate Mother's
parental rights because she has not completed a drug and alcohol program, consistently tests
positive for PCP, has never addressed her mental health needs, has not cared for the Children for
approximately eighteen months, and is not bonded with the Children. (Id. at 13; 25-26). Ms.
Carter further testified that the Children have a strong bond with their foster parent and look to
their foster parent to meet their daily needs. (Id. at 24-25).
Ms. Nicole Langford; the visitation coach, also testified at the 1PR hearing, According
to Ms. Langford, Mother gets impatient and frustrated with the Children during visits and
4
forcibly grabs the Children when they refuse to listen to her. (Id. at 28). Ms. Langford testified
that the Children are not bonded with Mother and that D.S.B. does not allow Mother to hold her
during visits and that she whines and pulls away when Mother tries, to pick her up. (Id. at 29).
At the TPR hearing, Mother testified that she missed visits with her children when she
had court dates or when she was busy. (Id. at 37). Mother denied using PCP and stated that she
was unsure why her test screens indicated that she tested positive.for PCP. (Id. at 35). Mother
.also denied ever testing positive for PCP; however, Mother admitted to testing positive for
Benzodiazepines and Marijuana (Id. at 42-43). Mother also admitted that she was not receiving
mental health treatment. (Id. at 36).
Based on the foregoing testimony, this Court issued a decree involuntarily terminating
the parental rights of Mother under 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) and (8) and finding, in
accordance with 23 Pa.C.S.A. § 2511(b), that such termination best serves the developmental,
physical, and emotional needs and welfare of the Children 2 (Trial Court Order 10/20/17 at 1).
Mother, along with counsel, filed a timely Notice of Appeal along with a Statement of Errors.
H. DISCUSSION
AT-This Court Properly-Granted-Petitioner's-Petition-to-Involuntarily-Tertninate
the Parental Rights of Mother Pursuant to Sections 2511(a)(1); (2), (5); (8) and
Under Pennsylvan a law, the party seeking termination must establish, by clear and
convincing- evidence, the existence of grounds for termination:In re 837, A,2d 1247,
1251 (Pa. Super; 2003). It is well established that courts must examine the circumstances of
'In the decree entered on October 20, 2017, this Court also involuntarily terminated the parental rights of
any unknown putative father.
each case and consider all explanations provided by the parent facing involuntary termination of
his or her parental rights "to determine if the evidence, in light of the totality of the
circumstances clearly warrants the involuntary termination." Id. Furthermore, an appellate court
must apply an abuse of discretion standard when considering a trial court's determination of a
petition to terminate parental rights. In IC R.IT., 608 Pa. 9 A3d. 1179, 1190 (2010). This
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. Id. It is well established that
an abuse of discretion will not result merely because the reviewing -court might have reached a
different decision. Id. Additionally; in order to affirni, an appellate court need only agree with
the trial court as to any one subsection of 2511(a), as well as 2511(6). In re B.L. W., 843 A.2d
380, 384 (Pa. Super. 2004).
Instantly, this Court found that grounds for involuntary termination of Mother's parental
rights existed pursuant to 2511(a)(1), (2), (5), (8) and (b). (See Trial Court Order 10/20/17 at I).
This Court will address each subsection separately.
1. This Court Properly Terminated Mother's Parental Rights Pursuant to
Section 2511(a)(1)
With respect to Section 2511(a)(1), Pennsylvania law provides that the rights of a parent
may be involuntarily terminated after a petition has been filed if "Mlle 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." 23 Pa.C.S.A. § 2511(a)(1).
Under these specific facts and circumstances, this Court found clear and convincing
evidence that Mother demonstrated a settled purpose of relinquishing parental claim to the
Children and failed to perform any parental duties. The Children were removed from Mother's
care in February 2016. (N.T. 10/20/17 at 6). Mother's refusal to parent since that time was
demonstrated by her failure to comply with her single case plan objectives. Mother failed to
address her mental health needs and has never completed a drug and alcohol pro-gram. (Id. at 9-
10). Mother continues to test positive for PCP and Marijuana. (Id. at 8; 44). Most importantly,
Mother has concerning anger issues. According to the testimony of the CUA social worker,
Mother's visits with the Children were moved from the agency to DHS as a result of threats
- Mother made to the worker. (Id. at 10). Mother also showed up to maternal grandmother's home
despite the existence of a stay -away order. (Id. at 12). Furthermore, Mother did not consistently
participate in visitation with her children. (Id. at 11). These minimal objectives would have
demonstrated Mother's interest in caring for her children; however, Mother made little efforts to
fulfill these objectives.. Accordingly, this Court found termination of Mother's parental rights
warranted pursuant to 2511(a)(1).
2. This Court Properly Terminated Mother's Parental Rights Pursuant to
Section 2511(a)(2)
When terminating parental rights pursuant to Section 2511(a)(2), the moving party must
prove by dear and convincing evidence
[t]he repeated and continued incapacity, neglect, abuse or refusal of the parent has caused
the child to be without 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); See also, In re Adoption of , 825 A.2d 1266, 1272 (Pa. Super.
2003). Additionally, the grounds for termination of parental rights under Section 251I(a)(2), due
to parental incapacity that cannot be remedied, are not limited to affirmative misconduct, but
may also include acts of refusal as well as incapacity to perform parental duties. In re A.L.D.,
797 A.2d 326, 337 (Pa. Super. 2002). In In re Adoption of MEP., Westmoreland County
Children's Bureau took custody of the child; citing the mother's inability to care for her child
due to the mother's mental handicap. 825 A.2d at 1268. Following adjudication of the child, the
mother was ordered to apply for welfare programs, obtain housing, and receive counseling in
order to promote her independence and parenting skills. Id. at 1269. It was reported that the
mother did not attempt to obtain welfare or housing and refused counseling. Id. As a result, the
trial court terminated the mother's parental rights -approximately two years after the child was
removed from the home. Id at 1270. The Superior Court found that the mother's inability to
develop parenting skills, along with her refusal to fulfill her objectives, would leave the child
without proper parental care; thus, termination of the mother's parental rights was warranted
under Section 2511(a)(2). Id. at 1273.
Applying ME P. and the elements set forth under 2511(a)(2) to the instant case, it is clear
that DHS met their burden of demonstrating that termination was proper. The evidence
established that "incapacity" and "refusal" under 2511(a)(2) existed given that Mother failed to
demonstrate a concrete desire or ability to remedy the problems that led to the Children's
placement. Mother failed to cooperate with the services provided by CUA, including drug and
alcohol treatment and mental health counseling. (N.T. 10/20/17 at 9-10). Mother also refused to
sign her single case plan objectives and informed the worker that she would not comply with her
objectives. (Id. at 20). Moreover, the evidence eStablished that "neglect" existed given that
Mother did, not consistently visit the Children. (Id. at 11). This Court found that Mother's failure
to fully comply with her objectives throughout the life of the case has left the Children without
essential, parental care, and the cause of such neglect, refusal and continued incapacity -will not
8
evidence
be remedied by Mother. Based on the foregoing, this Court found that competent
2511(a)(2).
existed to justify the termination of Mother's parental rights pursuant to Section
3, This Court Properly Terminated Mother's Parental Rights Pursuant to
Sections 2511(a)(5) and (8)
and (8) are
As the requirements for terminating parental rights under Sections 2511(a)(5)
similar, this Court will address them simultaneously. To terminate pursuantto
2511(a)(5), the
petitioner must prove that
(1) the child has been removed from parental care for af least six months; (2)
the
conditions which led toremoval or placerrient of the child continue to. exist; (3) the,
parents cannot or will not remedy the conditions which led to removal or placement
within a reasonable period of time; (4) the services reasonably available to the parent
are
unlikely.to remedy the conditions which led to removal or placement within a reasonable
period of time; and (5) termination of parental rights Would beSt"serve the needs and
welfare of thelchild/
the
In re BC., 36 A.3d 601, 607 (Pa. Super. 2012)3. In order to terminate under 2511(a)(8),
petitioner must prove that 'II) the child has been removed from the care of the parent for at least
twelve months; (2) the conditions that 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."
In re Clan., 95-67cal-999;1005-(ParSuper7-2008)47-Furthermore, Unlike-2-51 I (a)(5),
' In In re B.C., 36 A.3d 601 (Pa. Super. 2012), for example, Children and Youth Services
obtained
for the
custody of the child after reports were received indicating that the mother and father could not care
child. Id. at 608. hjaffirming the termination of the father's parental rights, the Superior Court
emphasized the father's failure to comply with his objectives_ from Children and Youth Services,
including obtaining housing and addressing his history as.a sex offender through treatment.
Id The court
for the crimes he perpetrated lead to the unsafe
stressed that the father's iefusal to enter into treatment
the father's refusal to participate
condition still being present. Id. Furthermore, the court determined that
the dependency. Id. at
in his objectives demonstrated that the services proyided to him would not remedy
610. Lastly, the court fqund that terminating the father's parental rights would
best serve the needs and
welfare of the child as it would provide the child with stability. Id. at 610.
In In re C.L.G., 956 A.2c1999 (Pa. Super. 2008), for example, the child was removed
from the mother's
care after the child tested positive for cocaine at birth. Id. Also, the mother did not have adequate housing
termination under 2511(a)(8) does not require an evaluation of a parent's willingness or ability to
remedy the conditions that led to placement. See In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa.
Super. 2006) (citations omitted).
In the instant case, this Court determined that DHS satisfied the requirements of Sections
2511(a)(5) and (8). The Children have been in care for approximately eighteen months. (N.T.
10/20/17 at 52). They were initially removed from Mother's home. amid concerns regarding her
mental health instability and drug and alcohol history. (Id. at 6). Since that time, Mother has not
progressed in any of the treatment offered to her. (Id: at 9-10). Specifically, Mother still has
drug and mental health issues. (Id:). As a result, this Court believes that Mother will not remedy
the conditions which led to the placement of her children. Also, Mother's refusal to participate
in her objectives demonstrates That the services provided to her would not alleviate the
circumstances which necessitated the original placement of the Children. Moreover, the
evidence clearly established that termination would be in the best interest and welfare of the
Children as they are well -adjusted in their pre -adoptive home and have a strong bond with their
foster parent. (See Id: at 24-25). Thus, this Court properly terminated Mother's parental rights
pursuant to Sections 2511(a)(5) and (8).
and could not properly care for the child. Id. The largest obstacle to reunification was the mother's
continued drug use and inability to obtain stable housing. Id. at 1005. The trial court tenninated the
mother's parental rights pursuant to 251I(a)(8) approximately one year after the child was removed from
her care. Id. at 1003. The Superior Court affirmed the trial court's ruling, stressing that waiting further
for the mother to comply would toll the child's wellbeing. Id at 1007. In the interest of creating stability
for the child, the court found that .termination of the mother's parental rights would best serve the needs
and welfare of the child. Id, at 1003-1009.
0
B. This Court Properly Ruled that it Would be in the Children's Best Interest
to Terminate the Parental Rights of Mother Pursuant to Section 2511(b)
Having found that the statutory grounds for termination have been satisfied pursuant to
2511(a), this Court further found that termination of Mother's 'parental rights serves the best
interest of the Children pursuant to 2511(b).5
Under Section 2511(b), the party seeking termination must prove by clear and convincing
evidence that termination is in the best interest of the child. In re Bowman, 436 Pa. Super. 647
the
A.2d 217,218 (1994). In determin1ng the best interest of the child, courts must consider both
needs and welfare of the child. In re. KZS., 946 A.2d 753, 760 (Pa. Super. 2008). Intangibles
such as love, comfort, security and stability are also considered when making a determination
Id (citing In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006)). Furthermore, -the parent -child
relationship.is examined in order to determine what effect the potential termination would have
on the child. See KZS., 946 A.2d at 760. Typically, when examining the nature of the parent -
child relationship, courts must consider whether there is a natural bond betveen the parent and
child, and if termination of parental rights would sever "an existing, necessary, and beneficial
relationship." Id. In cases where there is no evidence of a bond between a parent and child, it is
reasonable to infer that no bond exists. Id. at 762-63.
In the instant matter, this Court determined that the Children would not suffer irreparable
emotional harm if Mother's parental rights were terminated. There was compelling testimony
offered at the TPR hearing that the Children are not bonded with Mother. (See Id. at 25-26; 29).
Mother failed to offer any evidence establishing the existence of a parent -child bond. The
5See In re L.M., 923 A.2d 505, 511(Pa. Super. 2007) ("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)").
testimony demonstrated that the Children's primacy bond is with their foster parent. (See Id. at
25-26). Furthermore, this Court found Mother's sporadic visits with the Children insufficient to
foster a meaningful and healthy parental connection. This Court believes that we are nowhere
closer to reunification now than we were when this case first came in'in February 2016.
Additionally, in determining that termination would best serve the needs and welfare of the
Children, this Court considered that Mother has'not been able to meet the Children's emotional,
physical, and developmental needs, or provide the Children with a healthy, safe environment for
eighteen months prior to the 1PR hearing. (Id. at 25-26). For the foregoing reasons, this Court
properly granted DHS's petition to involuntarily terminate the parental rights of Mother pursuant
to Section 2511(b).
CONCLUSION
Accordingly, this Court respectfully requests that the instant appeal be denied.
BY THE COURT:
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