In the Int. of: H.B.M., Appeal of: D.B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.B.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.B., MOTHER :
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: No. 1452 EDA 2018
Appeal from the Order Entered April 17, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000780-2016,
CP-51-DP-0001845-2011, FID: 51-FN-003665-2011
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 14, 2018
D.B. (“Mother”) appeals from the trial court decree entered on April 17,
2018, that granted the petition filed by the Philadelphia Department of Human
Services (“DHS”) to involuntarily terminate her parental rights to her
daughter, H.B.M. She also appeals from the contemporaneously entered
juvenile court order that changed H.B.M.’s permanency goal from reunification
to adoption.1 We affirm.
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1 Mother filed a single notice of appeal from the termination decree and the
goal change order. However, the correct procedure is to file a separate notice
of appeal for each docket. See Pa.R.A.P. 341, Note (“Where . . . one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). Recently, the
Pennsylvania Supreme Court held that the failure to file separate notices of
appeal from an order resolving issues on more than one docket requires the
appeal to be quashed. Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
2018). However, this holding applies only to future cases. Id. As Mother
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H.B.M., born in January 2003, has hypotonic cerebral palsy and Sotos
Syndrome, a genetic disorder characterized by a distinctive facial appearance,
overgrowth in childhood, delayed development, and learning disabilities. She
is non-verbal, and, although she is ambulatory, she utilizes a wheelchair.
H.B.M. requires dedicated medical care and cannot perform basic functions
such as cleaning and feeding herself without assistance. W.F.M. (“Father”) is
legally blind and requires Mother’s assistance.2 However, Mother has an
intellectual disability which impedes her ability to successfully assist Father
and still care for her daughter’s essential needs.
The family came to the attention of DHS in August 2011, after in-home
protective services were implemented to monitor H.B.M.’s care and
supervision. Upon DHS’s intervention, the agency discovered that Mother had
a history of transience, the family interfered with H.B.M.’s services, and
Mother neglected to ensure that H.B.M. consistently received physical and
occupational therapy for her developmental delays. Mother neglected to
provide fifteen-year-old H.B.M. any education, ostensibly because Mother was
not aware that the child’s disabilities did not exempt her from compulsory
education.
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filed her notice prior to the filing of the Supreme Court’s decision in Walker,
we do not quash her appeal.
2The trial court also terminated Father’s parental rights to H.B.M. We address
Father’s appeal separately.
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In September 2011, Mother became homeless and resided with friends
temporarily. She informed DHS that she intended to immediately move
H.B.M. into the home of the child’s paternal grandfather, but Mother
subsequently refused to give DHS an updated address or telephone number.
Indeed, Mother neglected to provide any information regarding the relatives
or friends who she proposed would care for her daughter until she found stable
housing.
On September 20, 2011, DHS obtained an order of protective custody
(“OPC”) for H.B.M. and it placed her in a residential facility. Following a shelter
care hearing, the OPC was lifted and H.B.M.’s temporary commitment
continued, with parents allowed liberal supervised visitation in accordance
with the facilities’ policies. On October 13, 2011, the juvenile court
adjudicated H.B.M. dependent and continued her placement. The child
received physical therapy and on-going medical treatment, and DHS referred
Mother for a family-decision-making evaluation and intervention.
Between January 2012 and June 2016 H.B.M. remained in residential
care where she received medical treatment and physical therapy. Mother
attended family service plan (“FSP”) meetings and was advised of her
reunification objectives. Mother’s compliance varied. Occasionally, she
completed services, but she consistently struggled to maintain stable housing
or employment.
William Russell, Ph.D., performed parenting capacity evaluations in
March 2015. Dr. Russell opined that Mother needed significant support in
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order to successfully coordinate the services and educational services that
H.B.M.’s condition required, and that her intellectual disability would make it
difficult for her to accomplish that task. The report highlighted that during
the five years that H.B.M. had been removed from Mother’s care, Mother was
unable to maintain employment, obtain stable housing, or demonstrate an
understanding of H.B.M.’s medical needs. Thus, Dr. Russell concluded that
Mother lacked the capacity to provide safety and permanency, and he
identified long-term residential placement as the resolution that best suited
the child’s needs. However, based upon statements that H.B.M. recognized
Mother during their interactions, Dr. Russell recommended that the supervised
visitations continue.
In August 2016, DHS filed a petition seeking to involuntarily terminate
Mother’s parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8),
and (b). The trial court appointed counsel for Mother, and both a guardian ad
litem and legal counsel to represent H.B.M.’s best interests and legal interest,
respectively. Mother, testified on her own behalf. She conceded that DHS
established by clear and convincing evidence the grounds for the termination
of parental rights pursuant to § 2511(a), but contested that it was in H.B.M.’s
best interests for her rights to be terminated. N.T., 4/17/18, at 19, 46-47.
Dr. Russell testified that Mother did not have the capacity to care for
H.B.M., and introduced a video of H.B.M. going about her daily routine to
illustrate the significant level of care that she requires. Id. at 25. He
expressed particular concern regarding Mother’s ability to parent H.B.M., as
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Mother’s responsibility to assist Father with his physical disabilities demanded
her constant attention. Id. In addition to Dr. Russell, Yolanda Bronson-
Williford, the DHS social worker, testified that it was in H.B.M.’s best interests
to terminate Mother’s rights, and stated that H.B.M. would not be harmed by
termination. Id. at 48.
Octavia McLean, H.B.M.’s program specialist at Woods Services
residential facility, also testified. She discussed how Mother and Father
abused the juvenile court’s liberal visitation schedule by visiting H.B.M. daily
and remaining beyond the facility’s visiting hours. She further explained how
the protracted visits interrupted H.B.M.’s daily routine and impacted the child’s
ability to adapt to her residential environment. Id. at 79-80. After the trial
court reduced the visitations to twelve hours per week, Mother became
uncooperative with the Woods Services Staff—she refused to comply with the
notification requirements, ignored the posted visiting hours, and continued to
disrupt H.B.M.’s daily routine. Id. at 83-87. Mother’s conduct coincided with
an increase in H.B.M.’s maladaptive behaviors, including self-harm. Id. at
101.
At the conclusion of the hearing, the trial court terminated Mother’s
parental rights. Mother timely filed a notice of appeal and statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
She raises the following questions for our review:
A. Whether the trial court erred and abused its discretion when it
changed [H.B.M.’s] goal to adoption because the goal of adoption
was not in the best interest of the child[?]
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B Whether the trial court committed reversible error when it
involuntarily terminated [M]other’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental[,] physical[,] and emotional needs of
[H.B.M.] as required by the Adoption Act, 23 Pa.C.S.A. §
2511(b)[?]
Mother’s brief at 2. (cleaned up). We address the issues seriatim.
First, Mother contends that the juvenile court erred in changing H.B.M.’s
permanency goal from reunification to adoption. With regard to dependency
cases, we stated :
The standard of review which this Court employs in cases of
dependency is broad. However, the scope of review is limited in
a fundamental manner by our inability to nullify the fact-finding of
the lower court. We accord great weight to this function of the
hearing judge because he is in the position to observe and rule
upon the credibility of the witnesses and the parties who appear
before him. Relying upon his unique posture, we will not overrule
his findings if they are supported by competent evidence.
In re N.A., 116 A.3d 1144, 1148 (Pa.Super. 2015). Thus, we employ an
abuse of discretion standard. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
As it relates to the disposition of dependent children, the Juvenile Act
provides the criteria for a permanency plan. 42 Pa.C.S. §§ 6351(e)-(g). Upon
permanency review, the juvenile court must determine a disposition best
suited to the safety and protection, as well as the physical, mental, and moral
welfare of the child. See 42 Pa.C.S. § 6351(g). In reviewing a goal change
petition, the trial court
considers the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances which necessitated the original
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placement; the appropriateness and feasibility of the current
placement goal for the child; and, a likely date by which the goal
for the child might be achieved.
In Interest of A.N.P., 155 A.3d 55, 67 (Pa.Super. 2017) (quoting In re A.K.,
936 A.2d 528, 533 (Pa.Super. 2007)).
We have further noted:
[w]hen a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not on what
the parent wants or which goals the parent has achieved.
Moreover, although preserving the unity of the family is a purpose
of the [Juvenile] Act, another purpose is to “provide for the care,
protection, safety, and wholesome mental and physical
development of children coming within the provisions of this
chapter.” 42 Pa.C.S. § 6301(b)(1.1). Indeed, “[t]he relationship
of parent and child is a status and not a property right, and one
in which the state has an interest to protect the best interest of
the child.”
In re K.C., 903 A.2d 12, 14-15 (Pa.Super. 2006) (some citations omitted).
Presently, Mother argues that adoption does not best serve H.B.M.’s
needs because the trial court neglected to consider the fact that DHS failed to
present evidence to refute the existence of a parent-child bond which would
be detrimental to sever. Mother’s brief at 3-4. We disagree.
Contrary to Mother’s protestations, the juvenile court did, in fact,
consider the needs and welfare of H.B.M., as well as other relevant concerns,
such as Mother’s progress towards alleviating the circumstances necessitating
placement, and the feasibility of the current placement goal. Indeed, Mother
does not challenge the uncontroverted evidence in the certified record. That
evidence includes the testimony of both case workers assigned to the family
and Dr. Russel, who opined that it is doubtful that Mother will ever garner the
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capacity to fulfill her parenting obligations toward H.B.M., understand her
daughter’s complex medical needs, or care for her at home. Thus, we find no
error of law or abuse of discretion in the juvenile court’s decision to change
H.B.M.’s permanency goal to adoption based upon Mother’s failure to make
appropriate progress in alleviating the circumstances necessitating placement,
i.e., her inability to care for H.B.M. A.N.P., supra at 67. Phrased differently,
the certified record sustains the juvenile court’s finding that the goal of
reunification is no longer feasible insofar as it is unlikely to be achieved.
Accordingly, we do not disturb the juvenile court order changing the
permanency goal to adoption.
Next, we address Mother’s challenge to the decree terminating her
parental rights. We review cases involving the termination of parental rights
according to the following standards.
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations
omitted).
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To affirm the trial court, we need only agree with any one of the
subsections 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 will focus our analysis on
§ 2511(b), as Mother stipulated that DHS established the grounds for
termination under § 2511(a)(1), (2), (5), and (8). Stated plainly, we must
consider whether H.B.M.’s needs and welfare will be met by the involuntary
termination of parental rights.
The relevant statutory section provides as follows:
(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(b). “In this context, the court must take into account
whether a bond exists between child and parent, and whether termination
would destroy an existing, necessary and beneficial relationship.” In re Z.P.,
994 A.2d 1108, 1121 (Pa.Super. 2010). The trial court is not required to use
expert testimony, and social workers and caseworkers may offer evaluations
as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.Where there is no evidence of a bond between the parent and child, it is
reasonable to infer that no bond exists. In re: K.Z.S., 946 A.2d 753, 763
(Pa.Super. 2008).
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We have noted that
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close parental ties is
usually extremely painful. The trial court, in considering what
situation would best serve the child[ren]’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
Z.P., supra at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa.Super.
2000)). Love between a parent and child is not the sole determining factor,
and love alone is not enough. In re J.L.C., 837 A.2d 1247, 1249 (Pa.Super.
2003).
Initially, Mother contends that the trial court “should have had more
evidence to determine whether a parental bond did indeed exist between
mother and child.” Mother’s brief at 6. Essentially, she argues that the court
did not consider the parental bond or emotional needs of H.B.M. Id. at 7-8.
As noted above, social workers may offer their evaluation regarding a
bond between parent and child, and that where there is no evidence of a bond
between a parent and child, it is reasonable to infer that no bond exists. See
Z.P., supra at 1121; K.Z.S., supra at 763. Here, no evidence was presented
to show that a bond exists beyond Mother’s testimony that she loves H.B.M.
and that H.B.M. recognizes her during the visitation.
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In contrast to Mother’s characterization of the certified record, Ms.
Bronson-Williford testified that it is impossible to tell if H.B.M. knows Mother
is her parent. She further explained that the relationship is not wholly
beneficial, in as much as Mother disrupt H.B.M.’s daily routine, including
staying past the time allotted and interfering with H.B.M.’s nighttime routine.
After visitation with Mother, H.B.M. engages in maladaptive behavior,
including self-injury, although it is difficult to say that Mother is the sole reason
for the behavior. Both Ms. Bronson-Williford and Ms. McLean testified
regarding H.B.M.’s extensive medical needs, the fact that she would need to
be in care for the rest of her life, and the fact that, insofar as could be
observed, H.B.M. had bonded with her dedicated care workers at Woods,
rather than Mother. The trial court found the forgoing testimony credible and
persuasive.
In sum, while Mother argues that the court did not consider the bond
between her and H.B.M., the certified record reflects that the court did, in fact,
consider whether a parent-child bond existed, and found that it did not. As
the court observed in explaining its needs and welfare analysis pursuant to §
2511(b),
Now, all the evidence I’ve heard say that these two parents do not
have the capacity to have a parental relationship; both cognitively
and emotionally, they’re not capable of forming a parental bond
because of their limitations. And more importantly, [H.B.M.] is
not capable of appreciating what’s known as a parental bond.
There are suggestions that [H.B.M.] recognizes these two people
as her parents [but] the clear and convincing evidence says
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otherwise. [H.B.M.] does not recognize them as parental
authority—parental figures.
[H.B.M.] has severe limitations, as we’ve seen through the video
and through the testimony—that [she] never recognized, nor does
[she] recognize [Mother and Father] as [her] parents, and that’s
because of the cognitive limitations of [H.B.M.].
Trial Court Opinion, 8/13/18, at 31-32. Thereafter, the trial court concluded
that the certified record did not support Mother’s assertion that a parental
relationship existed between her and H.B.M. based solely upon the child’s
recognition of her presence during visitations, and it reasoned that terminating
parental rights would not harm H.B.M. in the absence of a parent-child bond.
Id. at 32. As explained, infra, we discern no abuse of discretion.
On this record, indicating that there was no bond between Mother and
H.B.M., we find no error in the trial court’s determination that clear and
convincing evidence supports the trial court’s termination of Mother’s parental
rights with respect to 2511(b).
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/18
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