In the Interest of: J.M., A Minor ( 2019 )

J-S37003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.M., MOTHER :
:
:
:
:
: No. 499 EDA 2019
Appeal from the Order Entered January 15, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000306-2014
IN THE INTEREST OF: J.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.M., MOTHER :
:
:
:
:
: No. 500 EDA 2019
Appeal from the Order Entered January 15, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000643-2017
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: Filed: August 22, 2019
C.M. (“Mother”) files these consolidated appeals from the decree
entered on January 15, 2019 granting the petitions filed by the Philadelphia
Department of Human Services (“DHS”) to involuntarily terminate Mother’s
J-S37003-19
parental rights to her dependent son, J.M., pursuant to the Adoption Act1 and
the order entered on January 15, 2019 changing J.M.’s permanent placement
goal to adoption pursuant to the Juvenile Act. We affirm.
J.M. was born in January 2013. He came into DHS care during February
2014, pursuant to an order for protective custody as a result of Mother’s
substance abuse and mental health problems.2 N.T., 1/15/19, at 38. He was
adjudicated dependent on February 12, 2014. Id.
Permanency review hearings were held on May 14, 2014, August 6,
2014, October 29, 2014, January 28, 2015, April 30, 2015, May 15, 2015,
August 6, 2015, October 29, 2015, February 22, 2016, May 19, 2016, August
19, 2016, November 18, 2016, April 6, 2017, June 29, 2017, September 13,
2017, December 21, 2017, March 22, 2018, May 31, 2018, July 24, 2018, and
October 18, 2018. Throughout the ensuing permanency review hearings
between May 2014 and October 18, 2018, the court maintained J.M.’s
commitment and placement. See DHS Exhibit 3.
On June 14, 2017, DHS filed petitions to involuntarily terminate Mother’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b),
____________________________________________
1 By separate decree entered the same date, the trial court involuntarily
terminated the parental rights of J.M.’s father, A.W. (“Father”). Father did
not appeal.
2 Mother previously had two children removed from her care as a result of
substance abuse and domestic violence. Neither of these children, Q.W. and
S.G., is the subject of this appeal.
-2-
J-S37003-19
and to change J.M.’s goal to adoption. At the evidentiary hearing,3 DHS
presented the testimony of William Russell, Ph.D., the forensic and clinical
psychologist who conducted a bonding evaluation of Mother; and Rodney Hill,
DHS social worker. DHS additionally presented DHS Exhibits 1 through 9,
which were admitted without objection. N.T., 1/15/19, at 7-8. Mother, who
was present and represented by counsel, testified on her own behalf. During
this proceeding, J.M.’s legal interest was represented by Timothy McCullough,
Esquire, and J.M.’s best interests were represented by guardian ad litem, Carla
Beggin, Esquire.4
By decree and order entered January 15, 2019, the trial court
involuntarily terminated the parental rights of Mother to J.M. pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and changed his permanent
placement goal to adoption.5 On February 14, 2019, Mother, through
appointed counsel, filed timely notices of appeal, as well as concise statements
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),
which were consolidated sua sponte by this Court on March 19, 2019.6
____________________________________________
3 The trial court continued the termination of parental rights hearing several
times over nineteen months to allow Mother to obtain drug and alcohol
counseling, which she neglected to complete.
4 Neither attorney filed a brief in this appeal.
5 This decree memorialized the decision placed by the court on the record at
the conclusion of the hearing. N.T., 1/15/19, at 83-85.
6 Mother complied with Pa.R.A.P. 341 by filing separate notices of appeal
listing the docket numbers assigned to both the dependency proceeding and
the contested involuntary termination, respectively. See Pa.R.A.P. 341, Note
(“Where . . . one or more orders resolves issues arising on more than one
-3-
J-S37003-19
Mother raises the following issue for our review:
1. Did the trial court err in changing the goal to adoption
and terminating [Mother]’s parental rights because the
Department of Human Services failed to establish by clear and
convincing evidence that [Mother] cannot or will not be able to
remedy the incapacity and conditions which led to [J.M.]’s
removal[?]
Mother’s brief at 3.7
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “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. “[A] decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” Id. The
____________________________________________
docket or relating to more than one judgment, separate notices of appeal must
be filed.”); Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018)
(holding that the failure to file separate notices of appeal from an order
resolving issues on more than one docket “requires the appellate court to
quash the appeal”).
7 While Mother purports to challenge the goal change, she abandoned this
issue by failing to present any individualized argument contesting the goal
change order. Moreover, to the extent that Mother attempted to incorporate
a challenge to the goal change into her primary argument concerning the
termination of parental rights, that claim fails for the identical reasons we set
forth in the body of this memorandum. Stated succinctly, the certified record
confirms that the change of the permanency goal to adoption was in J.M.’s
best interests insofar as J.M. has been in care for approximately five years,
Mother failed to complete court-ordered mental health treatment and drug
and alcohol treatment, and her irregular attendance at visitation was
detrimental to J.M.’s behavior health.
-4-
J-S37003-19
trial court’s decision, however, should not be reversed merely
because the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings. See In re R.J.T., [9 A.3d 1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to believe
all, part, or none of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.
& J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by § 2511 of the Adoption
Act, 23 Pa.C.S. §§ 2101-2938, and requires a bifurcated analysis of the
grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under [§] 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 [§] 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 [§] 2511(b): determination of the needs
and welfare of the child under the standard of best interests 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.
-5-
J-S37003-19
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
In the case sub judice, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). In order to affirm
a termination of parental rights, we need only agree with the trial court as to
any one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we analyze the court’s
termination decrees pursuant to § 2511(a)(2) 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:
....
(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.
....
(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
-6-
J-S37003-19
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)(2), and (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to § 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)
(quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002)). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a
long period of uncooperativeness regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous.” In re
A.L.D., supra at 340 (internal quotation marks and citations omitted).
-7-
J-S37003-19
In finding grounds for termination of Mother’s parental rights pursuant
to, inter alia, § 2511(a)(2), the trial court “found that clear and convincing
evidence was presented by DHS under 23 [Pa.C.S. §] 2511(a)(1), (2), (5),
(8) and [§] 2511(b) to terminate Mother’s parental rights as to [J.M.] . . . .
in the form of testimony that was clear, direct, weighty, and convincing[.]”
Trial Court Opinion, 4/9/19, at 25. Specifically, the court explained,
This [c]ourt’s decision to terminate Mother’s parental rights to
[J.M.] was based on clear and convincing evidence which
established that Mother had failed to perform parental duties, and
she lacks the present capacity to perform those parental
responsibilities. This [c]ourt found that DHS proved by clear and
convincing evidence that Mother is incapable or providing safety
and permanency for her [c]hild now and in the future. This [c]ourt
is not persuaded that Mother can or will remedy the conditions
which continue to exist and which brought [J.M.] into supervision.
Mother continues to use drugs, does not have appropriate
housing, employment and does not attend mental health therapy.
Based on the clear and convincing evidence presented, this [c]ourt
terminated Mother’s parental rights pursuant to 23 [Pa.C.S §]
2511(a)([2])[.]
Id. at 27-28.
Mother, however, argues that she is able to remedy her incapacity. Her
argument, in its entirety is as follows:
Here, the record shows that [Mother] is able to remedy the
parental incapacity. [Mother] had recently acquired housing and
had a means of supporting [J.M.]. [Mother] also was able to
control her substance abuse when she was in treatment and only
began missing her mental health treatment when she relocated
residence. In the totality of circumstances, [Mother] has
demonstrated that she will be able to remedy her parental
incapacity within a reasonable period of time and that she did not
have a settled purpose of relinquishing her parental claim.
Mother’s brief at 9.
-8-
J-S37003-19
While we note with disapproval the lack of detailed analysis with citation
to the record in Mother’s argument, we decline to find waiver.8 Although
woefully deficient, Mother presents a discernable argument that does not
impede our meaningful review.
The certified record supports the trial court’s decision to terminate
parental rights pursuant to § 2511(a)(2). As we explain infra, the record
reveals that Mother failed to comply with her Family Service Plan (“FSP”) goals
aimed at reunification with J.M.
DHS social worker, Rodney Hill, recounted Mother’s FSP objectives
involved housing, drug and alcohol and mental health treatment, visitation,
and employment. N.T., 1/15/19, at 38-39. He testified that these had
consistently remained Mother’s objectives throughout the life of the case and
that Mother was aware of these objectives and the necessity for completion in
order to obtain reunification. Id. at 39-40. Further, Mother acknowledged
and indicated that she was in fact aware of these objectives. Id. at 69.
While conceding that Mother had engaged in mental health treatment,
Mr. Hill stated that Mother never successfully completed a mental health
____________________________________________
8 See Pa.R.A.P. 2101 (stating, “Briefs and reproduced records shall conform
in all material respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they may be
suppressed. . . .); In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010) (“[W]here
an appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”).
-9-
J-S37003-19
treatment program or provided verification of completion of a program. 9 Id.
at 40-41. When questioned therefore as to a specific mental health diagnosis
and the necessity for mental health treatment, Mr. Hill responded, “Oh, she
does have mental health [concerns]. I don’t have it in front of me. But Mother
states she has anxiety, PTSD [Post-traumatic Stress Disorder]. I don’t have
any other evaluation in front of me because every time we try to get Mom to
do a dual diagnosis, she never completes anything.” Id. at 66.
Similarly, as to drug and alcohol treatment, despite Mother participating
in numerous treatment programs, Mr. Hill testified that Mother failed to
provide documentation that she completed any program. Id. at 43-44, 66-
67. Rather, Mother has a pattern of engaging in programs and then leaving.
Id. at 65, 67. He explained, “She’’ll go. And then she’ll leave. She never
completes any programs.” Id. at 65. As to Mother’s inability to complete a
treatment program, Mr. Hill continued, “I was informed by the CBH
[Community Behavioral Health] worker for her –the last program, they said
that would be it for her because she’s been in and out of so many different
programs that they were not going to allow her to come in anymore if she
didn’t complete.” Id. at 67. Mother also did not consistently present for
court-ordered drug and alcohol screens, and she tested positive on numerous
occasions when she did present. Id. at 43; see also DHS Exhibit 8. Indeed,
____________________________________________
9Mother admitted that she was not in treatment at the time of the hearing,
but indicated that she was current with her medication. Id. at 71.
- 10 -
J-S37003-19
she not only tested positive for phencyclidine (“PCP”), benzodiazepines, and
cocaine as recently as December 27, 2017, but she also admitted to a relapse
and use of PCP and crack cocaine a mere three-and-a-half weeks prior the
hearing. Id. at 78-79; DHS Exhibit 8.
Further, Dr. Russell observed that, despite Mother indicating that she
then had not used drugs in several months at the time of his evaluation, she
“had difficulty focusing, presented with poor eye contact, and appeared
lethargic.” DHS Exhibit 6 at 3. He stated, “[h]er presentation was very much
like that of an addict” in that she blamed others for her predicament. N.T.,
1/15/19, at 18. Dr. Russell testified, “Everything was about her in that she
had nothing to do with the original removal of the child; it had nothing to do
with her behavior. She had nothing to do with the removal and placement of
her other two children; it was based on other people’s behavior.” N.T.,
1/15/19, at 18-19. He further stated that Mother reported that one of the
reasons that she missed several visitations was that it upsets her and “she’s
afraid she’ll go get high” to feel better. Id. at 18.
With regard to housing, Mr. Hill noted that he did not know where Mother
was living at the time of the hearing and the she has never obtained suitable
housing, stating, “[s]ince I’ve been on the case, Mother’s housing -- she’s
never had a permanent address.” Id. at 44-45. Likewise, Mr. Hill was
unaware if Mother was employed and noted no documentation as to
employment. Id. at 46.
- 11 -
J-S37003-19
Lastly, Mother’s visitation was inconsistent. For example, as of July
2018, Mother had not attended visitation with J.M. since March 2018. N.T.,
1/15/19, at 19; DHS Exhibit 6, at 3, 6. Mother’s irregular attendance caused
J.M. to experience severe behavioral problems after visits would take place.
N.T., 1/15/19, at 16, 18-20, 46-47, 56. As Mr. Hill stated, “[J.M.] would be
upset. I mean, the visits were not consistent. So, at times [J.M.] would see
his mother. Then he wouldn’t see his mother. Then she would reappear again.
Then she wouldn’t see him again. And it really upset him.” Id. at 56. J.M.
“was just all over the place; throwing tantrums, hollering, and screaming.”
Id. at 47-48. Visitation, therefore, was not expanded, but was reduced in
frequency and, in fact, suspended.10 Id. at 46-47; see also DHS Exhibit 3.
At the time of the hearing, visitation remained suspended. See DHS Exhibit
3. Tellingly, Mr. Hill testified that J.M.’s behavior improved since the
suspension. N.T., 1/15/19, at 56. This is significant because observing
improvements in behavior in relation to the suspended visitations is the “only
way you can really make a determination that the visit[s] [are] negatively
impacting the child.” Id. at 20. As such, Mr. Hill expressed concerns about
J.M. being in Mother’s care. Id. at 46. He explained, “Well, [Mother] has –
there’s mental health issues. There’s D[rug] and A[lcohol] issues, all
____________________________________________
10Mother’s visitation was also briefly suspended from August to October 2015
due to CEU non-compliance. See DHS Exhibit 3; see also N.T., 1/15/19, at
47.
- 12 -
J-S37003-19
unaddressed. And I don’t think that it would be in [J.M.’s] best interest.” Id.
at 46.
As this Court has stated, “[A] child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super.
2006). Hence, the record substantiates the conclusion that Mother’s repeated
and continued incapacity, abuse, neglect, or refusal has caused J.M. to be
without essential parental control or subsistence necessary for his physical
and mental well-being. See In re Adoption of M.E.P., supra at 1272.
Moreover, Mother cannot or will not remedy this situation. See id.
We next determine whether termination was proper under § 2511(b).
Mother, however, failed to present any argument and/or discussion related to
§ 2511(b) in her brief. As such, Mother waived a challenge related to §
2511(b). See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011); see also
In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017). Nevertheless, in
an abundance of caution we reviewed the certified record and observe that,
had Mother preserved this claim, it would fail.
Dr. Russell performed a bonding evaluation, and observed that J.M.
exhibited no problem separating from Mother. N.T., 1/15/19, at 16.
Specifically, as to the mother-son interaction, Dr. Russell commented, “The
- 13 -
J-S37003-19
interaction between the two varied from close attention to almost parallel
worlds in the sense that the mother was talking about one thing and the child
was talking about something else totally different.” Id. at 15. Noting the
facts that Mother had not served in the role of primary caretaker, had a history
of substance abuse and missed visitation that impacted J.M. adversely, and
lacked parental insight, Dr. Russell opined that termination of Mother’s
parental rights would not cause irreparable harm to J.M. Id. at 16-20; see
also DHS Exhibit 6, at 6.
Similarly, DHS caseworker, Rodney Hill also testified that there would
not be irreparable harm to J.M. resulting from termination of Mother’s parental
rights. By way of explanation, Mr. Hill stated, “[J.M.] doesn’t have bond a
with his mother. I mean, you know, she hasn’t been in his life on a consistent
basis.” N.T., 1/15/19, at 60. Rather, Mr. Hill indicated that J.M.’s primary
bond was with his foster mother with whom he has resided since being placed.
Id. at 60. J.M. is “happy” in his foster home and looks to his foster mother
for love and support and to meet his needs.11 Id. at 59-60.
While Mother may profess to love J.M., a parent’s own feelings of love
and affection for a child, alone, will not preclude termination of parental rights.
In re Z.P., 994 A.2d 1108, 1121 (Pa.Super.2010). At the time of the
____________________________________________
11Mr. Hill testified, however, that J.M.’s foster home was not a pre-adoptive
resource. N.T., 1/15/19, at 61. Nevertheless, a pre-adoptive resource had
been identified with whom J.M. had several visits that went well. Id. at 62.
- 14 -
J-S37003-19
conclusion of the hearings, J.M. had been in placement for almost five years,
a majority of his young life, and is entitled to permanency and stability. As
we stated, a child’s life “simply cannot be put on hold in the hope that [a
parent] will summon the ability to handle the responsibilities of parenting.”
Id. at 1125. Rather, “a parent’s basic constitutional right to the custody and
rearing of his child is converted, upon the failure to fulfill his or her parental
duties, to the child’s right to have proper parenting and fulfillment of his or
her potential in a permanent, healthy, safe environment.” In re B., N.M.,
856 A.2d 847, 856 (Pa.Super. 2004) (citation omitted).
Accordingly, for all of the foregoing reasons, we find that the trial court
did not abuse its discretion in terminating Mother’s parental rights to J.M.
pursuant to 23 Pa.C.S. § 2511(a)(2) and (b) and in changing J.M.’s permanent
placement goal from reunification to adoption.
Decree and order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/19
- 15 -