In the Int. of: E.L.A-L., Appeal of: D.L.-A ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.L.A-L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.L-A., MOTHER :
:
:
:
: No. 1708 EDA 2018
Appeal from the Decree and Order May 24, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000477-2017,
CP-51-DP-0000534-2016, FID: 51-FN000492-2016
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 13, 2018
D.L.A. (“Mother”) appeals from the decree dated and entered on May
24, 2018, granting the petition filed by the Philadelphia County Department
of Human Services (“DHS”) seeking to involuntarily terminate her parental
rights to her minor male child, E.L.A.-L., born in June of 2014, pursuant to the
Adoption Act, 23 Pa.C.S. § 2511.1 Mother also appeals from the permanency
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1 At the hearing on the termination petition held on May 24, 2018, Attorney
Mary Ann Galeota represented Child as his child advocate (legal counsel), and
Attorney Maureen Pié, represented Child as his guardian ad litem (“GAL”).
See In re: Adoption of L.B.M., ___ Pa. ___, 161 A.3d 172 (2017) (plurality)
(initially filed on March 28, 2017). In L.B.M., our Supreme Court held that
23 Pa.C.S. § 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in a contested involuntary termination
proceeding. The Court defined a child’s legal interest as synonymous with his
or her preferred outcome. In In re T.S., ___ Pa. ___, 192 A.3d 1080 (2018),
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review order dated May 24, 2018, pursuant to the Juvenile Act, 42 Pa.C.S. §
6351, directing that E.L.A.-L. remain in the legal custody of DHS, and that he
remain in foster care. Mother’s counsel, Attorney Emily Beth Cherniack,
(“Counsel”) filed with this Court a motion for leave to withdraw as counsel and
a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967).2 We
affirm, and grant Counsel leave to withdraw.
The trial court fully and accurately set forth the procedural history and
factual background of this appeal in its opinion entered on June 28, 2018,
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the Supreme Court held that the trial court did not err in allowing the children’s
GAL to act as their sole representative during the termination proceeding
because, at two and three years old, they were incapable of expressing their
preferred outcome. The Court explained, “if the preferred outcome of the
child is incapable of ascertainment because the child is very young and pre-
verbal, there can be no conflict between the child’s legal interests and his or
her best interests; as such, the mandate of Section 2313(a) of the Adoption
Act that counsel be appointed ‘to represent the child,’ 23 Pa.C.S. § 2313(a),
is satisfied where the court has appointed an attorney-[GAL] who represents
the child’s best interests during such proceedings.” Id. at ___, 192 A.3d at
1092. Here, E.L.A.-L. had both a legal counsel and a GAL. While his preferred
outcome is not part of the record, E.L.A.-L., who is autistic, was under the age
of four and had been in care for twenty-six months, and was receiving
therapeutic services at the time of the hearing. See N.T., 5/24/18, at 34.
Accordingly, we find that E.L.A.-L.’s pre-verbal age and developmental
challenges obviate the need for any inquiry into his preferences, and that the
mandates of L.B.M. and T.S. are satisfied.
2 The trial court did not terminate the parental rights of E.L.A.-L.’s father, M.L.
a/k/a M.J.L., (“Father”) at the hearing on the termination petition regarding
Mother. Rather, the court granted a thirty-day continuance of the hearing as
to the termination of Father’s parental rights in order to provide him an
opportunity to voluntarily relinquish his parental rights. N.T., 5/24/18, at 8-
9. The trial court notes that Father is not a party to this appeal. See Trial
Court Opinion, 6/28/18, at 1, n.1. We further note that Father did not file a
brief or otherwise participate in this appeal.
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which we adopt herein. See Trial Court Opinion, 6/28/18, at 1-5. On April
27, 2017, the Agency filed petitions to terminate both Mother’s and Father’s
parental rights to E.L.A.-L., and to change E.L.A.-L.’s permanency goal to
adoption. On May 24, 2018, the trial court held an evidentiary hearing on the
petitions. At the hearing, Mother was present with her counsel. Father’s
counsel was present, but Father was not present. The legal counsel for E.L.A.-
L., Attorney Galeota, was present, as was the GAL, Attorney Pié.
On May 24, 2018, the trial court entered the decree that terminated
Mother’s parental rights to E.L.A.-L. under sections 2511(a)(1), (2), (5), (8),
and (b) of the Adoption Act, and the permanency review order that directed
that legal custody of E.L.A.-L. remain with DHS, and that E.L.A.-L.’s
permanency goal remain placement in foster care. On June 5, 2018, Mother
filed a notice of appeal, along with a concise statement of errors complained
of on appeal, from the termination decree and permanency review order.
Before we review the substantive issues presented by Mother on appeal,
we must first address a procedural question. In Commonwealth v. Walker,
___ Pa. ___, 185 A.3d 969 (2018), our Supreme Court recently held:
[I]n future cases Rule 341(a) will, in accordance with its Official
Note, require that when a single order resolves issues arising on
more than one lower court docket, separate notices of appeal
must be filed. The failure to do so will result in quashal of the
appeal.
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Id. at 977 (emphasis added).3
Here, the decree and order entered on May 24, 2018 from which Mother
appeals were listed at two docket numbers in the trial court, one from the
adoption (termination) matter, and the other from the dependency (goal
change) matter.4 However, the termination decree solely resolves the issue
regarding the termination of Mother’s parental rights to E.L.A.-L. pursuant to
23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). See Decree of Involuntary
Termination of Parental Rights, 5/24/18, at 2. The permanency review order
does not resolve any issues with regard to dependency, and, notably, the
docket number listed on the May 24, 2018 permanency review order
references only the Adoption Docket, CP-51-AP-0000477-2017.5 As the
decree and order resolve only issues arising from the trial court's adoption
docket, i.e., issues relating to the termination of Mother’s parental rights, we
find that Walker is not controlling, and we need not quash the appeal.
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3Walker was filed on June 1, 2018; Mother's notice of appeal was filed four
days later, on June 5, 2018.
4 Although Mother included both adoption and dependency docket numbers
on her singular notice of appeal, she does not raise any issue with regard to
the dependency matter in her appellate brief, nor do we discern any such
issues. We observe that the trial court maintained the status quo in the
permanency order, as the termination/permanency goal change matter had
been continued as to Father.
5While the record contains the permanency review order dated May 24, 2018,
Mother’s issues do not challenge the dependency matter.
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On August 20, 2018, Mother’s counsel filed a motion to withdraw as
counsel and an Anders brief on behalf of Mother. In her Anders brief on
appeal, Counsel raises the following issues on behalf of Mother:
A. Whether the trial court erred in involuntarily terminating []
Mother’s parental rights pursuant to 2511(a)(1), 2511(a)(2),
2511(a)(5), 2511(a)(8) where it was not supported by clear and
convincing evidence?
B. Whether the trial court erred in involuntarily terminating []
Mother’s parental rights where there was a bond between []
Mother and [E.L.A.-L.] and the termination of parental rights
would have a negative effect on the developmental, physical and
emotional needs of the [E.L.A.-L.]?
Anders Brief (redacted) at 4.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record . . ., counsel
has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support
the appeal. . .; and
(3) furnish a copy of the brief to defendant and advise him of his
right to retain new counsel, proceed pro se, or raise any
additional points he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
In In re V.E., 611 A.2d 1267, 1274-1275 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. “When considering an Anders brief, this Court may not
review the merits of the underlying issues until we address counsel’s request
to withdraw.” In re S.M.B., 856 A.2d at 1237.
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In Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009),
our Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief:
(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, 602 Pa. at 178-79, 978 A.2d at 361. “After an appellate court
receives an Anders brief and is satisfied that counsel has complied with the
aforementioned requirements, the Court then must undertake an independent
examination of the record to determine whether the appeal is wholly
frivolous.” In re S.M.B., 856 A.2d at 1237.
With respect to the third requirement of Anders, that counsel inform
the defendant 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).
Counsel has complied with each of the requirements of Anders.
Counsel indicates that she conscientiously examined the record and
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determined that an appeal would have no meritorious issues, and that the
appeal is wholly frivolous. Further, Counsel’s Anders brief comports with the
requirements set forth by the Supreme Court of Pennsylvania in Santiago.
Finally, attached to her motion to withdraw is a copy of Counsel’s letter to
Mother, dated August 20, 2018.6 In compliance with Millisock, the letter
stated Counsel’s intention to seek permission to withdraw, and advised Mother
of her right to proceed by submitting any comments or arguments to this
Court on her own behalf, or to retain new counsel to represent her on appeal.
Accordingly, Counsel has complied with the procedural requirements for
withdrawing from representation, and we will proceed with our own
independent review.
In the Anders brief, Counsel raised whether the Agency presented
insufficient evidence to support the involuntary termination of Mother’s rights
under sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. Anders
Brief, at 4.7
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6 The letter is dated August 20, 2018, but also includes a second date of
February 6, 2015, which is an apparent typographical error.
7 In her Anders brief, Counsel does not challenge the permanency review
order under section 6351 of the Juvenile Act This Court has stated, “[o]nce
counsel has satisfied the above requirements [for a motion to withdraw and
Anders brief], it is then this Court’s duty to conduct its own review of the trial
court’s proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d
287, 291 (Pa. Super. 2007) (en banc) (quoting Commonwealth v. Wright,
846 A.2d 730, 736 (Pa. Super. 2004). See Commonwealth v. Flowers, 113
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In reviewing an appeal from an order terminating parental rights, we
adhere to 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
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., 608 Pa. 9, 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., [614 Pa. 275,
284,] 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, [575 Pa. 647, 654-655], 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., [608 Pa. at 28-
30], 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
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A.3d 1246, 1250 (Pa. Super. 2015) (following Goodwin). Thus, we may
address whether the Agency established the grounds for the termination and
the goal change to adoption as part of our independent review. As we noted
above, we discern no such issues, since the trial court maintained the status
quo in the permanency order because the termination/permanency goal
change matter was continued as to Father.
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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, [539
Pa. 161, 165,] 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).
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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a). See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Sections
2511(a)(2) and (b) provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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.
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***
(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.
The Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds
for termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based
upon parental incapacity. The legislature, however, in
enacting the 1970 Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.
In re Adoption of J.J., [511 Pa. 599, 605,] 515 A.2d 883, 891
(Pa. 1986) (quoting In re: William L., [477 Pa. 322, 345,] 383
A.2d 1228, 1239 (Pa. 1978).
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In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). 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. Id. at 340.
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). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). In reviewing the evidence in support of termination under
section 2511(b), our Supreme Court has 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
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [533
Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], 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., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
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well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
direct observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this analysis.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court may
emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at 763
(affirming involuntary termination of parental rights, despite existence of
some bond, where placement with mother would be contrary to child’s best
interests). “[A] parent’s basic constitutional right to the custody and rearing
of . . . her child is converted, upon the failure to fulfill . . . her parental duties,
to the child’s right to have proper parenting and fulfillment of [the child’s]
potential in a permanent, healthy, safe environment.” In re B.,N.M., 856
A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).
In its opinion entered on June 28, 2018, the trial court fully and adeptly
discussed its reasons for finding that the Agency satisfied its burden of proof
under sections 2511(a)(2) and (b). We, therefore, find no abuse of the trial
court’s discretion in terminating Mother’s parental rights to E.L.A.-L. under
sections 2511(a)(2)and (b). In re Adoption of S.P., 616 Pa. at 325-26, 47
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A.3d at 826-27. Finding no issues of merit, either with regard to the
termination decree or the permanency review order, after our independent
review of the record, we, thus, affirm the trial court’s termination decree and
permanency review order on the basis of the trial court opinion, and grant
counsel’s motion for leave to withdraw. We direct the parties to attach the
trial court’s opinion to all future filings based upon our disposition of this
appeal.
Decree and order affirmed. Motions to withdraw granted.8 Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/18
____________________________________________
8 We grant counsel’s motions to withdraw at both the adoption and
dependency dockets pertaining to this case. See Supra. at footnotes 4 and
5.
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Circulated 12/04/2018
Filed 8120/2018 6:55:00 AM.Superior 03:05
Court Eastern PM
District
1708E;DA2018
IN THE COURT OF COMMON PLEAS
FIRST mDICIAL DISTRICT OF PENNSYLVANIA
.. ,· . . . JUVENILEDIVISION . .
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IN RE: E.L.A.-L,. a Minor SUP.ERIORCOURT
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APPEAL OF: D.L.A, Mother
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OPINION
DAINE GREY JR., J.
D.L.A C'Mother'? timely appeals this Co\ll't's decree entered on May 24, .2018, granting
the Philadelphia Department of Human Services' (''DHS") petitions to involuntarily terminate
her parental rights as to her child, E.L.A.-L., bom on June 21, 2014� (the ''Child'') pursuant to the
. . . . . .. . ·.· . . .·. I . .· ..
Adoption Act, 23 Pa. C.S.A. §§ 251 l(a)(l), (2), .(5), (8) and (b).
I. PROCEDURAL HISTORY & FACTS
The relevant facts and procedural history· of this case are as follows: OHS first became
aware of this family in March of 2016 when it received a call stating that Mother was
hospitalized due to mental health concerns. (N.T. 5/24/ 18 at 16-17). The report was determined
to be valid, and based on the allegations in the report, an Order ofProtective Custody was
obtained for the Child.. (Id. at 17). At a shelter care heating for the Child on March 4, 2016, th.is .
. Court granted temporary legal custody of the Child to OHS. (Trial Court Order 3/4/.18 at l ). D.HS
1 Father, is nob party to this appeal.
l
·--------,,·------·--..·-···---
subsequently filed dependency petitions for the Child and an adjudicatory hearing was held on
Mar.ch,i2, 2016. (Trial Court Order 3/22/16 at 1).. DHS granted Mother supervised weekly visits
with the Childat the agency. (Jcl} At the �djudicatory hearing, this Court adjudicated the Child
dependentbased upon the findings of abuse and neglect, granted full legal custody ofthe Child
to DHS and placed the Child in Foster Care. (Id.j. An initial permanency review hearing was
held on November 22, 2016� at which time, the permanency goals for the. Child were identified
as reunification With Mother or guardian. (Trial Court. Ordefll/22/i 6 at J).
On April .27. 2017,DHS filed petitions to Involuntarily terminate Mother's parental rights
to the Child pursuantto 23 Pa. C.S.A.J§ 251.l(a)(l), (2), (5); (8) and (b).and to change the
Child's permanency goals to adoption. This court conducted a combined termination and goal
change hearing (collectively the "TP.RJ>hearing) on May 24, 2018. At the TPR hearing, the
Community Umbrella Agency ("CUA") case manager
. . supervisor;
. . . . Deconte Baker, testified that
the Child has been in foster care since the initial placement in Mcltch20lq,
. (N.T.
. 5/24/18 at 17)..
Ms; Baker testified that Mother's single case plan objectives were as follows: 1) participate in
arid complete a mental healthprogram, 2) participate in and complete drug and alcohol
treatment, 3) medication management, and 4) parenting capacity. (Id, at 18}� Mother's single
case plan objectives have been consistent throughout thelife of the. case. (Jd;). According to Ms.
Baker, the goal in the last single case plan conducted on February I 6, 2018, was changed to
adoption. (Id. at J 7).
In regards
. to Mother's compliance. with her objectives, Ms. Baker testified thai Mother
.
was non.. compliant. (Id. at 29.). Specific.ally, Ms. Baker testified that Mother never completed a.
mental health program. (Id. at 18). Ms•. Baker testified tha.t Mother was enrolled in a.mental
health program.at.John F. Kennedy Behavioral Health Center ("JFK"), however Mother refused
2
to sign a release of information to DHS regarding Mother's compliance or what she was being
treated there for. (Id. at 19). Mother was also enrolled in a mental health program at The Wedge
Recovery Center and NorthliastTreatment ("NEP;)) however Motherwas discharged.from.the
· Wedge due.to.her aggressive behavior, (Id. at 20-21). Ms. 'Baker testified that Mother was
involved. in a verbal altercation with a member at the program and proceeded to· use a fire
extinguisher to spray the. other members in the hallway, (Id. at 21 ). Further, Mother was
discharged from the NET programinFebruary 2017 fornon-compliance. (Id. at 22).
In regards to Mother's drug.and alcohol treatment, Mother.has never successfully
completed a drug and alcohol program throughout the life of this case. (Id.. at 22.:23), On
February 20,2018, Mother testedpositive for cannabis and refused to sign releases for the
Clinical· Evaluation Unit ('�CEO'') in order to verify whether she. was enrolled in treatment. (Id, at
23 ). Mother also tested positive for cannabis on April I, 2016 and April 28, 2016. (Id. at 24). In
regards to Mother's medication management, Mother was provided a dual diagnosis.assessment.
(Id.,). Motheris diagnosed with Bipolar disorder and Post Traumatic Stress Disorder (PTSD). (Id.
at 25). Ms. Baker testified that Mother has not been compliant.nor consistent with medication
management because she has not signed the consents. (Id:). Mother was also referred in
September 2016 to ACAfor a parenting capacity.evaluation, however she didnot.attend any.of
the scheduled evaluations. (Id.. at 22).
With respect to Mother's visitation with the Child, Ms. Baker testified that Mother was to
attend visits with the Child at the agency; (ld. at25--26). Mother had visits with the Child from
March 2016 to July 2016� however the.visits were suspended on November 22, 2016. (Id. at 26-
27). Ms. Baker testified that the visits were suspended when Mother began spitting on the staff
members and demonstrated an aggressive and threatening nature. (Id: at 27-28). As a result of
3
Mother's behavior, workers were no longer willing to.supervise her visits. (Id;). The visits with
the. Child were moved to the courthouse, where Mother's aggressive behavior persisted and
therefore visits were suspended.(#:) .. When. asked about.Mother's housing situation, Ms, Baker
· testified that Mother refused to. disclose any information to.her or the. agency and therefore was
unable to confirm Mother had appropriate housing, (Id. at28).
Ms. Baker indicated thatit would be in the Child's best interest to terminate Mother's
parentalrights because she has never addressed hermentalhealth needs, she has not completed a
drug and alcohol program, consistently tests.positive for cannabis, has not cared forthe Child for
the majority of his life, approximately 26 months, and is not bonded with the Child. (Id, al 29-
3 0). Ms. Baker further testified that the Child has ii strong bond with bis maternal aunt who is the
pre-adoptive resource and she religiously attends eyery scheduled visit with the Child. (Id; at34 ..
35} Ms. Baker also testified that the Child receives services for autism and will continue to
receive services if the Child is adopted. (Id. at 35, 39).
At the TPR hearing; Mother testifiedthat her intensive outpatient drug and alcohol
treatment was reduced as a result of.her deteriorating physical and mental health.{Jd. at 49);
Motheralsotestified.that she was incarcerated from May 5, 2017 to December
. 5, .20l7and.has
. .
since beea.on probation. (Id: at5 l -52). Mother further admitted to testing positive for Marijuana
on.a bi-weekly basis. (Id: at 52). Mother testified that she attended the Joseph J. Peters Institute
("JJPr') for additional trauma: therapy on April 16, 2018,. however .Mother only began attending
JJPI two months prior to the TPR hearing. (Id. at SO). ,. , ,..,,_...,� ,
Based. on the foregoing testimony, this Court issued a.decree Involuntarilyterminating
the parental rights of Mother under 23 Pa. C.S.A. §§ 2511 (a){ 1)> (2), (5), and (8) and finding, in
accordance with23 Pa. C,S.A. §§2511(b)� that such termination best serves the developmental,
4
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,_. ' .
'
physical, and emotional needs and welfare of the Child. (Trial CourfOrdei:5/24/18 at l ). Mother,
along with counsel..filed a timely Notice of Appeal along with a 'Statement of Errors.
II. DISCUSSION
A. This Court Properly Granted Petitioner's Petition to Involuntarily Terminate
. the 'Parental Rights ofMother Pursuant to Sections 2511(a)(l), (2), (5), (8) and
lhl
When. considering an appeal from an order involuntarily terminating parental rights, an
appellate court must accept as true the trial court's findings. of facts so long as they are supported
by the record, and then .determine whether the trial court made art error oflaw or abused its
.,« •.•.. , . discretion in rendering its decisiop.Jnre Adoptionof$.P.., 47A.3d 817, 826.(Pa. Super; 2012) .. A. -�·--, .... ,.vi··:·�- ,.
· trial court's decision constitutes an abuse. of discretion only if it is manifestly unreasonable or is
the product of'partiality, pr¢j udice, bias, or .ill will. (Id.). An abuse of discretion will not merely
occur, because the reviewing court might have reached a different decision. In re R.J. T., 608 Pa. 9A.3d. l l79, 1190 (Pa. Super, 2010):,
The party seeking termination must establish, by clear and convincing evidence, the
existence ofgrounds for termination. In re J.L.C.� 837, A.2dl247, .1251 (Pa. Super. 2003),
Clear and convincing evidence is testimony that is "so clear, direct, wei$.hty and convincing as to
enable the trier offact 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. 20(10) (en bane).
The involuntary termination ofparental.righrs Is.governed by 23 Pa.C.S.A. § 2Sll, which
requires a two-step analysis. In the first step, the party seeking termination .must prove by clear
. and convincing evidence that the parent' s conduct. meets at least one of the i 1 grounds set forth
in Section 251l(a). lnreL.Jvl., 923 A.2d 505, 511 (Pa. Super. 2007).0ric:e the courtdetermines
,,·,
that the party seeking termination has proven at least one efthe ll grounds in Section25U(a),
5
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then the petitioner can proceed to the second step. Tu the second step. the court must determine
. .. � i ,;
whether termination is in the best interest of the Child, considering the developmental, physical
.and emotional welfare
. . . In re Adoption srs»;
of.the child. 23 Pa.C;S.A. § 25ll(b); . . . 47A3dat
830. In conducting this analysis, the. court should examine the emotional bond between parent
and child, with close attention to the cffect of What permanently. severing . any such bond will
have on the child. In re L.M.,.92'3 A.2d at51 L Additionally.In order to affirm, an appellate court
·need only agreewith the trial courtasto anyonesubseetion.of 2511(a), as wellr;l82511 (b). In r_e., .. ··.......· . . . ·
B.L. W., 843 A.2d 380,.384 (Pa. Super, 2004).
This courtfound grounds for involuntary termination of Mother's parental. rights existed
pursuant to 25 U(a)(l),.(2), (5), (8) and (bJ. (See Trial CourtOrder 05/24/18 at 1). This Court
will address each subsection separately .
.1. · This, Court Properly Terminated Mother's Parental Rights Pursuant to Section
2Sll{a)(l) .
Pursuant to Section 2511 (a)(l),; Pennsylvania law provides that parental right may be
involuntarily terminated after apetition.is filed if, "[t]he 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.f.\.. § 2511 (a)(l).
This Court found clear and. convincing evidence thatMother demonstrated a settled
purpose of.relinqulshing parental claim to the Child and failed to perform parental duties for the
Child six months priorto when.the petition was filed. The Child was removed from the Mother's
care and temporary custody was given to OHS on March 4� 2016. The Child has been in foster
care since the irtitia,lplacement in March 2016. (NS. 5/24/18 at 17). Mother's refusaf to parent
6
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since that time was demonstrated in her failure to meet hersingle case pl ail o bjectives. Mother
failed to address her mental health needs and has never completed a drug and alcohol program.
(Id. at 22-23). Mother continues to test positive for Marijuana, (Id. at 23);Mothertestifies that
she enrolled in JJPl on April 16, 2018. and JFK on March 5, 2018 for mental health services. (Id.
af50). However, she refused to sign releases of'lnformation to DHS and she sought these
services after the termination petition W?� filed. (Id: at 62). According to. the testimony of the
CUA case manager, pursuanttoZl Pa.C�S.A. § 2511 (a)(l), any efforts to remedy the situation
after the termination petition is filed is not relevant (id:).
Furthermore, Mother has a conceming.aggressive and threatening-nature. Mother was
enrolled at the Wedge for mental health treatment and was discharged .in October of201[6J due
to her aggressive and threatening behavior. (Id: at 20.;.21). Additionally, Mother was enrolled at '
the NET and her enrollment was terminated oh February2017 for non-compliance, (Id. at 22) ..
Lastly, Mother did notattend visits with her Child since November 2016. (Id. at21). Mother had
been.attending visits from March 2016to July20l6.attheagericy. {Id. at26). Mother's visits at ·
the agency were-suspended and moved to the courthouse due to her aggressive and threating
nature. (Id� at 2 7); However, the visits. were suspended on November 22,.2016 because Mother
spit on staff and again showed an aggressive and threatening nature. (Id. at 28). These minimal
objectives wouldhave demonstrated Mother's.interestin caring for the Child; however, Mother
made little efforts to.fulfill these objectives. Additionally, Mother offered no evidence that she
made everi the slightest efforts to re-establish ties with the Child during the six-month period
priorto the filing of the termination petitions. Accordingly, this Court found termination of
Mother's parental rights warranted pursuant to 25U(a)(l).
·.:'· ·:'
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.·. 7
______________________________ ...
.1 ••.
. Z. This .Court P:roperlyTerminated Mother's Parental Rights P.ursuantto Section
251l{a}(2)
When terminatingparentalrighte pursuant to Section 25 l 1(a)(2), themoving.pclrty.must
prove by clear 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, neglector refusal cannot or will not be remedied by the parent,
23 Pa.C.$.A. § 2511 (a)(2); See.also, In re Adoption ofuer; 825 A.2d.1266, 1272 (Pat. Super.
2003}. Additionally, thegrounds for termination of parental rights under Section 25 U (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). In1n reAdoption of.ue»; Westmoreland County
Children's Bureau took custody of the child, citing the mother's inability t� care for her child
due to themother's.mental.handicap. 825. A..2d at 12<58. 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 atl270). 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.
withoutproper parental carej.thus, termination ofthe mother's parental rights was warranted
under Section 25ll(a)(2). (Id. at1273).
Appfying ME.P. and the elements set forth under 25ll(a)(2) to the instantcase, it is clear \ ..-.
that OHS mettheir burden of demonstrating thartermination was proper; The evidence
established that "incapacity" and "refusal" under 25l l(a)(2)existedgiven that Mother failed to
-demonstrate a concrete desire orability to remedy the problems that led to the Child'splacement.
Mother.failed to cooperate with the services provided by CUA, including, drug and alcohol
treatment and mentalhealth.counseling. (N.T. 5/24718 at 22-23)..Further, Mother threatened; spat -� .. '; . .
on, and was aggressive towards workers at CUA and at the.NET. (Id. at 26�27) ..As a result. the
workers at the NET did not permit Mother to continue her visitation at theiragency. (Id. at 27).
Moreover, the evidence established that "neglect" existed given that Mother's visitation was
suspended since November.2016 and no efforts were made by Mother to remedy the suspension,
(Id at26-28). This Court found thatMother'sfailure to fully comply with her objectives
throughout the life of the case has leftthe Child without essential parental care, and the cause of
such neglect, refusal and continued incapacity will not be remedied bY. Mother. Based on the
foregoing, this Court found that competent evidence existed to justify the-termination of
Mother's parental rights pursuant to Section 2511 (a)(2).
3� This Court Properly Termfoated Mother�s Pareit tal Rights Pursuant to Sections
25ll(a)(5) and(8) · · · ·
. As the-requirementsfor terminating.parental rights under. Sections 251 l{a)(5) and {8) are
similar, this Court will address.them simultaneously. To terminatepursuant to 251 l(a)(S.), the
petitioner must prove th�t;
( 1) the child has been removed from parental care. for at. least six months; (2) the
or
conditions which led to removal placement ofthe child continue to exist; (3) the
. .... -.... .. .....
parents cannot or will not remedy the conditions whichled to removal or placement
;
-��·· ,.::· ;
·, > :' •
within a reasonable period of time; (4) the services reasonably available to the ,:
. :
··� �..
. ;. �··.. ; ",
9
parent are unlikely to remedy the conditions which led to. removal or placement
within a reasonable period of time; and'(Sjtermination ofparerrtal.rights.weuldbest
serve the needs and welfare .of the child.
In re B.C., 36 A.3d 601, 607 {Pa Super, 20i2)2. In order toterminate under 25ll(a)(8),
the petitioner' must prove that "(I) 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.''Inre C.L.G:; 95.6 A.2d 999,1005 (Pa. Super. 20.08)3. Furthermore. unlike 25ll(a)(5),
termination under 251 l(a)(8) does not require an evaluation of a: parent' s. willlngness or ability to
remedy the conditions that Jed to placement. See, Inre.Adoption ofR,J.$:, 901 A.2d 502� 511 (Pa.
Super. 2006)(citations
.
omitted). Instead, 2511(a)(8)'''reqµires
. .
only. that the conditions continue
to exist, not an evaluation of parental willingness or ability to remedy thell}'.s,C:L..G.t 956A;2dat
1007 (citing In reS.H.,879 A;2d 802, 806) (Pa. Super. 2005)).
In the instam.case, this Court determined that DHS satisfied the requirements ofSections : c: •
251 l(a.)(5) and(8). The Child has been in care for approximately twenty-six months. (N'I',
05/24/U;tat29-30). The Child was initially removed fromMother's home amid concerns
regarding Mother's mental health instability and drug and alcohol history. (Id. at 18). Since that
time, Mother has notprogressed in any of the treatment offered to her. (ft/. at 22'.".23) ..
Specifically, Mother still has drug and mental health issues. (Id. at 29). As a result, this Court
2 In In re B. c.,36 A.3d 601 (Pa:. Super. 2012), for exlilnplc, Children. aild Youth Services olitaincd custody Qfthe child atrer �eporrs w¢rc.
received indi�ating thaqh� 111other and father could not !=MC fur the child. Id. at 608. In ajlinning the termination of the father's parental rights,
the Superior. Court emphasized. the fiither.'s.failure to comply wiJh his objectives ':from Children and YouUi Services; including obbi.ining housmg- ·- .....-'"'---···. � ·--·:,
and addressing his history as asex offender. �ough treatment. Id.. The court stressed that thefa.iheris ie.fusal to enter Into trcaiinent for tlie · ·
cr.imes he 'perpetiaied ledto the unsafe condition· stili bdng present. .Id.. F,urtherm1>.rc. the court d�emiined that the fntheiis refusel to participnte
in his objcctiv¢s demonstrated that. the services prQvided to hiDfwoµld nof remedy the 9.epcnd�i:y./d; ill. 6.10: Lastly, tiie court ii:>und that .
�inating the father's parental rights would best serve the needs tv1d welfare of the.child as it would provide the child Yiith stability. Id. ii16 l 0.
3 Ialli re ClG., 9S6 A.id 999. (Pa. Super. 2008), Cot example, the child was removed front the mother's care after ilte. child.tested positive for.
cocaine lit birth. Id Also, tho mo.thcr. did not have !idcquatc housing 11nd could oot properly care for the child.id The largeSt obstacle to ·
reun:ificinion was the mother's continued drug use and inability to obtain stable.housing./d.lit IOOS-, The. tiiaJ court terminated the moth.c:r's
parental rights pµrsuaot to 2S 11 {aX8) ilpproxfm.ately one year aftor the child·was temo:ved from lier c11te -, Id. at I 003. 'l'h� SuperiorCoiiJt
affirmed the .trial court's ruling, stt�sing that waifing further for the motlier to comply would toll the child's wellbeing; Id at: 1007 .. Iri the
interest cfcreating st!¥iility for lite child, the court f�d that te!!Uination of lhe mothcr-s parental rights would best serve the needs and welfare
· · · · ·· · · · · · · · ··
ofihe child. Id atl008> I OM.
10
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believes that Mother will not remedy the conditions which led 1o the placement of her Child -.
Also) Mother' s refusal to-participate Inher objectives demonstrates that the services provided to
her would not alleviate. the circumstances which necessitated the original placement of the Child.
Moreover.the evidence clearly established that termination would be.in the best interest and
welfare of the Child as he has a strong bond w:ith his maternal aunt who is the pre-adoptive
resource and religiously attends every scheduled visit with the Child. (Id. at24-25). Thus, this
Court properly terminated Mother's parental rights pursuant to Sections 25 U(a)(S.) and (8).
B. This Court Properly Ruled that it Would be in the Child's Best Interest
to Terminate the Parental Rights .of Mother Pursuant to Section. 2511(b)
'Having found that th¢. 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 Child pursuant to 2511 (b). 4 ·
Under Section 251.1 (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, 647A2d 217, 218
(Pa Super. 1994). In determining the best interest of the child, courtsmust consider both the
needs and welfare of the child.In re K.Z;S;, 946 A.2d 753, 760 (Pa. Super. 2008). Intangibles
such as Iove, comfort; security and: stability are also considered whenmaking a determination
Id fr:iting]n re C.P., 9.01.A.2d 516, 520 (P.11.. Super; 2006)); Furthermore, the parent-child
relationship is examined in order to determine what effectthe potential termination would have
on the child. See K Z.S., 946 A.2d at 76(). Typically, when examining th� nature of the parent-
child relationship, courts must consider whether there is a natural bond between the parent and
4See In reL.,M.) 923 A2d 505, 51 l(Pa. Super. 2007) ("Only if the court determines thatthe 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 :251 L(b)").
11.
. ....;•: . ...�. .
..... : .
child, and if termination of parental rights would sever "an existing, necessary 1 and beneficial
relationship." Jd. 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. at762·63.)
. . . �: .
In the instant matter, this Court. determined the Child would not suffer irreparable
emotional harm if Mother's parental rights were terminated. There was compelling testimony
'offeredat the TPRhearing that the Child is not bonded. with Mother. (See N ;T.. S/24/18 at 43·44).
Mother failed to offer any evidence establishing the existence of a parent-child bond: The
testimony demonstrated thatthe Child's primary bond is,with.his maternal aunt (See Id, at 44).
Furthermore; this Court found Mother's significant gap in visitation with the Child insufficient to
foster a meaningful and. healthy pareatal connection. This Court believes that we are nowhere
closer to reunification now than we were when this case first came in hi March 2016.
Additiorutlly, in determining that termination. would best serve the needs .and welfare of the
.Child, this Court considered that.Mother has not been able to meet the Child's emotional)
physical, and developmental needs, or provide the Child with a healthy, safe environment for
twenty-six months priorto the TPR hearing. (Id. at 29·30). For the foregoing reasons, this Court
properly granted DHS's petition to involuntarily terminate the parental rights of Motherpursuant
to Section 251 l(b);
: ..
12
I. CONCLUSlON'.
. Accordingly, this Court respectfully requests that theinstant.appeal be denied.
BY THE COURT:
,)'----
J.
CERTIFICATE OF SERVICE
Ibereby c�rtify that a copy of the foregoing OP.INION was served oil the following on
�1u.ue; ·-2&.
�.2018.:
Counsel for Mother
Emily Cherniack, Esquire ..} �·
�·,.·.
1500 JFKBlvd. Ste. 1010
Philadelphia, PA .19102
( } ServedinPerson
( ef Served by First Class Mail
Counsel for Father
Tracey Chambers-Coleman
20 Vine Street
Lansdale, PA 19446
( ) Served in.Person
( / Served by First Class Mail
Office of the City $Qlicitor-Chlld Welfare Unit
Rachel Hanigan Mchale, Esquire
1515 Arch Street, 16th Floor
Philadelphia, PA 19102
( ) Served in Person
(·. J Served by First Class Mail
13
.............. ,.,---··--····-------·-----------------------·---..--.------
Child Advocate . '::
Mary Ann Galeota, Esquire
;:
.. . 1551 Market StreetSte. 1200
Philadelphia,PA 19102
( ) Served in Person
( vY Served by First Class Mail
Guardian ad Lkem
Maureen Pie, Esqµire
8 StimmitStreet.Ste,200
Philadelphia, PA 1911.8
( ). Served in Person.
(� Servedby.FirstClass Mail
BY THE COURT:
l
fr v
J.
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