In the Interest of: R.W., A Minor ( 2018 )

J-S27001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: X.M., MOTHER :
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: No. 3982 EDA 2017
Appeal from the Decree November 8, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001036-2017,
FID: 51-FN-001721-2015
IN THE INTEREST OF: C.W.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: X.M., MOTHER :
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: No. 3986 EDA 2017
Appeal from the Decree November 8, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001037-2017,
FID: 51-FN-001721-2015
IN THE INTEREST OF: S.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: X.M., MOTHER :
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: No. 3990 EDA 2017
J-S27001-18
Appeal from the Decree November 8, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001038-2017,
FID: 51-FN-001721-2015
IN THE INTEREST OF: J.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: X.M., MOTHER :
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: No. 4003 EDA 2017
Appeal from the Decree November 8, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001041-2017,
FID: 51-FN-001721-2015
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 16, 2018
Appellant, X.M. (“Mother”), appeals from the decrees entered November
8, 2017, granting the petitions filed by the Philadelphia County Department of
Human Services (“DHS”) to involuntarily terminate her parental rights to her
children, R.W., a son born in December of 2012; C.W.S., a daughter born in
October of 2011; S.W., a daughter born in January of 2015; and J.W., a
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daughter born in May of 2004 (collectively “the Children”); pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).1 We affirm.
The trial court set forth the extensive history of this case in its Pa.R.A.P.
1925(a) opinion, which we adopt for purposes of this appeal. Trial Court
Opinion, 2/13/18, at 3-14. On December 8, 2017, after the trial court
terminated Mother’s parental rights to the Children, Mother filed a timely
notice of appeal along with a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother raises the following issues for our review:
A. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT INVOLUNTARILY TERMINATED MOTHER’S PARENTAL
RIGHTS WHERE SUCH DETERMINATION WAS NOT SUPPORTED BY
CLEAR AND CONVINCING EVIDENCE UNDER THE ADOPTION ACT,
23 PA.C.S.A. §2511(A) (1), (2), (5) AND (8)?
B. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT INVOLUNTARILY TERMINATED MOTHER’S PARENTAL
RIGHTS WITHOUT GIVING PRIMARY CONSIDERATION TO THE
EFFECT THAT THE TERMINATION WOULD HAVE ON THE
DEVELOPMENTAL, PHYSICAL AND EMOTIONAL NEEDS OF THE
CHILD AS REQUIRED BY THE ADOPTION ACT, 23 PA.C.S.A.
§2511(B)?
Mother’s Brief at 4.
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1 In separate decrees entered on November 8, 2017, the trial court terminated
the parental rights of V.S., the putative father of R.W. and S.W.; the parental
rights of R.S., the father of C.W.S.; and the parental rights of any unknown
putative father of R.W., S.W., and J.W. None of these men has filed an appeal,
nor are they parties to the instant appeal.
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In reviewing an appeal from an order terminating parental rights, we
adhere to the following well-established 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 (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.; [In re:] R.I.S., 36 A.3d
[567,] 572 [(Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion. Id.;
see also Samuel Bassett v. Kia Motors America, Inc., ___ Pa.
___, 34 A.3d 1, 51 (2011); Christianson v. Ely, 575 Pa. 647,
838 A.2d 630, 634 (2003). Instead, a decision may be reversed
for an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an opposite result,
as is often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the trial court
and impose its own credibility determinations and judgment;
instead we must defer to the trial judges so long as the factual
findings are supported by the record and the court’s legal
conclusions are not the result of an error of law or an abuse of
discretion. In re Adoption of Atencio, 539 Pa. 161, 650 A.2d
1064, 1066 (1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
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rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained that:
[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)).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
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). In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). As previously
stated, the trial court terminated Mother’s parental rights pursuant to Section
2511(a)(1), (2), (5), (8), and Section 2511(b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
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(1) The 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.
(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.
...
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.
...
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
...
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
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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 notice of the filing
of the petition.
23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b).
This Court has explained that the focus in terminating parental rights
under Section 2511(a) is on the parent, but under Section 2511(b), the focus
is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). For purposes of this appeal, we first analyze this case under
Subsection 2511(a)(2), then under Section 2511(b), as did the trial court in
its opinion filed February 13, 2018.
Our Supreme Court set forth the proper inquiry under Subsection
2511(a)(2) as follows:
[Section] 2511(a)(2) provides [the] statutory ground[] 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.” . . .
[The Supreme 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
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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., 515 A.2d 883, 891 (Pa. 1986), quoting
In re: William L., 383 A.2d 1228, 1239 (Pa. 1978).
Adoption of S.P., 47 A.3d at 827.
This Court has stated that a parent is required to make diligent efforts
toward 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.
The trial court found that Mother’s conduct warranted termination of her
parental rights to the Children with the following analysis:
This [c]ourt heard clear and convincing evidence from Case
Manager, Mary Muchiri, [Community Umbrella Agency (“CUA”)]
Case Manager, who testified credibly that the Children were
committed to DHS in July 2015 regarding the unsuitable housing
situation: no furniture; electrical service to the apartment was
terminated on 7/13/2015; the home was without working air
conditioning, a water heater, a stove, or a refrigerator. Mother
has seven Children, all in the DHS dependency system, and all
were in Mother’s care when placed into care.
Ms. Muchiri testified the parental objectives for Mother
were: 1) work with CUA to be referred to housing programs; 2)
complete a parenting education class; 3) follow up with her
referral to the Achieving Reunification Center (ARC) to address
deficits; 4) follow up with Behavioral Health Services (BHS) to
determine services; and 5) follow up with the protection from
abuse order. Subsequently, a Psychological Evaluation and a
Parental Capacity Evaluation were ordered for Mother.
Ms. Muchiri also testified that Mother did complete parenting
classes and domestic violence counseling. Mother continues to
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attend mental health services, however, the housing issue
continues to be unresolved and Mother lives sporadically with
friends. Regarding visitation, she testified that she has supervised
visits, and sees very little close interaction between Mother and
her Children. Her current visitation schedule is supervised once
per week, however, Mother missed her visitation in September
2017. She opined that the Children would not suffer irreparable
harm if Mother’s parental rights were terminated because the
older Children seem to understand that Mother is not able to take
care of them. And the younger ones do not seem to have any
relationship with Mother that would be affected. She opined it
would be in the best interests of the Children if they were adopted
by their Foster Parents because they have close relationships with
their Foster Parents and all seem to be comfortable and safe in
their homes.
This [c]ourt also heard the credible, clear and convincing
[e]xpert testimony from Dr. William Russell, Forensic
Psychologist. He testified he conducted a Parenting Capacity
Evaluation on Mother in November 2016. At that time, Dr. Russell
noted that Mother’s most obvious barrier to reunification with her
Children is the lack of suitable housing. Complicating that issue
is the fact that Mother has a pattern of engaging in relationships
of domestic violence, has no support system in place, such as
family and friends who she can count on for assistance. In light
of Mother’s cognitive issues which included being unsure of dates,
people, places, and even her address, finding adequate
employment will be difficult. He recommended that CUA aid
Mother in registering with the Office Intellectual Disabilities, aid
Mother in obtaining her green card, and continue to attend mental
health treatment. Mother should continue with visitation,
however the prognosis for reunification is guarded. Dr. Russell
noted he reviewed [General Protective Services (“GPS”)] Reports
dating back to 2001, and that Mother has never had stable
housing for at least 15 years with no change. For these reasons,
which continue to exist now, he stated that Mother could not
provide safety and stability to her Children, and that the prognosis
for Mother to remedy that would be extremely poor.
This [c]ourt found clear and convincing evidence that
Mother has refused or failed to perform parental duties, and that
Mother 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 of providing safety
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and permanency for her Children now and in the future. Finally,
this [c]ourt is not persuaded that Mother can or will remedy the
conditions which brought the Children into court supervision.
Trial Court Opinion, 2/13/18, at 18-20.
Based on the foregoing, we discern no abuse of discretion by the trial
court because Mother’s repeated and continued incapacity, neglect, or refusal
to perform her parental duties, particularly her years-long inability to provide
safe and stable housing, has caused the Children to be without essential
parental care, control, or subsistence necessary for their physical and mental
well-being. Accordingly, the trial court’s findings are supported by the record,
and the trial court’s legal conclusions are not the result of an error of law or
an abuse of discretion. Therefore, we conclude that the record supports the
termination of Mother’s parental rights under Subsection 2511(a)(2), and we
affirm the trial court’s decision. Adoption of S.P., 47 A.3d at 826-827. In
so doing, we adopt the trial court’s analysis as our own. Trial Court Opinion,
2/13/18, at 18-20.
Having concluded that Mother’s parental rights were properly
terminated pursuant to Subsection 2511(a)(2), we now address Mother’s
second issue and review the termination of Mother’s parental rights under 23
Pa.C.S. § 2511(b). L.M., 923 A.2d at 511. Mother argues that the trial court
erred in determining that DHS met its burden of proving by clear and
convincing evidence that termination was in the best interests of the Children.
Mother’s Brief at 13-15. Mother asserts that the “testimony from Mary
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Muchiri, Case Manager from Bethanna, that the [C]hildren would not suffer
any irreparable emotional harm if Mother’s parental rights were to be
involuntarily terminated” was based upon observations of Mother and the
Children at two supervised visitations. Id. at 14. Mother contends that Ms.
Muchiri did not have a sufficient basis upon which to render a credible opinion
on the matter, and the trial court could not have based its determination on
clear and convincing evidence. Id. at 14-15.
Our Supreme Court has stated the following:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “intangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., 620 A.2d [481,] 485 [(Pa.
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., 71 A.3d 251, 267 (Pa. 2013).
We have explained that, in conducting a bond analysis, the court is not
required to use expert testimony, but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.
2010). See also In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)
(observing that, in analyzing a parent-child bond, neither statute nor
precedent require that a formal bonding evaluation be performed by an
expert). This Court has also observed that no bond worth preserving is formed
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between a child and a natural parent where a child has been in foster care for
most of the child’s life, and the resulting bond with the natural parent is
attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). In addition,
it is appropriate to consider a child’s bond with his or her foster parents. In
re: T.S.M., 71 A.3d at 268.
Furthermore, in In re: T.S.M., our Supreme Court set forth the process
for evaluation of the existing bond between a parent and a child, and the
necessity for the court to focus on concerns of an unhealthy attachment and
the availability of an adoptive home. The Supreme Court explained the
following:
[C]ontradictory considerations exist as to whether termination will
benefit the needs and welfare of a child who has a strong but
unhealthy bond to his biological parent, especially considering the
existence or lack thereof of bonds to a pre-adoptive family. As
with dependency determinations, we emphasize that the law
regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests
and the needs and welfare of the particular children involved.
See, e.g., [In the Interest of] R.J.T., 9 A.3d [1179,] 1190 [(Pa.
2010)] (holding that statutory criteria of whether child has been
in care for fifteen of the prior twenty-two months should not be
viewed as a “litmus test” but rather as merely one of many factors
in considering goal change). Obviously, attention must be paid to
the pain that inevitably results from breaking a child’s bond to a
biological parent, even if that bond is unhealthy, and we must
weigh that injury against the damage that bond may cause if left
intact. Similarly, while termination of parental rights generally
should not be granted unless adoptive parents are waiting to take
a child into a safe and loving home, termination may be necessary
for the child’s needs and welfare in cases where the child’s
parental bond is impeding the search and placement with a
permanent adoptive home.
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In weighing the difficult factors discussed above, courts
must keep the ticking clock of childhood ever in mind. Children
are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail, as
we have in this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past
fifteen years, a substantial shift has occurred in our society’s
approach to dependent children, requiring vigilance to the need to
expedite children’s placement in permanent, safe, stable, and
loving homes. [The Adoption and Safe Families Act of 1997, P.L.
105-89] ASFA[,] was enacted to combat the problem of foster care
drift, where children . . . are shuttled from one foster home to
another, waiting for their parents to demonstrate their ability to
care for the children. See In re R.J.T., 9 A.3d at 1186; In re
Adoption of S.E.G., 901 A.2d [1017,] 1019 [(Pa. 2006)]. This
drift was the unfortunate byproduct of the system’s focus on
reuniting children with their biological parents, even in situations
where it was clear that the parents would be unable to parent in
any reasonable period of time. Following ASFA, Pennsylvania
adopted a dual focus of reunification and adoption, with the goal
of finding permanency for children in less than two years, absent
compelling reasons. See, 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S. §
6351(f)(9) (requiring courts to determine whether an agency has
filed a termination of parental rights petition if the child has been
in placement for fifteen of the last twenty-two months).
In re: T.S.M., 71 A.3d at 268-269.
The trial court offered the following with regard to the bond between
Mother and the Children and the requirement of the best interests of the
Children:
Mary Muchiri, Case Manager from Bethanna, provided
credible, persuasive testimony regarding the Children’s physical
and emotional needs and best interests. She opined that the
Children would not suffer irreparable harm if Mother’s parental
rights were terminated, and it would be in their best interests to
be adopted. All of the Children have close, loving relationships
with their Foster Parents, and they are safe. The youngest Child,
S.W., who is two years-ten months old has no recognition of
Mother and no relationship with Mother. She opined that the
Children would not suffer irreparable harm if Mother’s parental
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rights were terminated because the older Children seem to
understand that Mother is not able to take care of them. And the
younger ones do not seem to have any relationship with Mother
that would be affected. She opined it would be in the best
interests of the Children if they were adopted by their Foster
Parents because they have close relationships with their Foster
Parents and all seem to be comfortable and safe in their homes.
Ms. Muchiri noted that C.W.S., and J.W., ten and thirteen years
old respectively, are receiving therapy at The Village, and have
expressed to her that they want to be adopted by their Foster
Parent, who fulfills their emotional and physical needs. R.W., who
is four years old, also obtains his emotional and physical needs
from his foster parent.
Dr. Russell also provided this [c]ourt with credible [e]xpert
testimony when he noted that Mother had a lack of insight into
why her Children were in care, and that would negatively impact
her ability to remedy the situations that brought the Children into
care. Historically, there have been GPS Reports going back to
2001 with similar problems, lack of housing, safety issues, and
not paying bills. All the same issues have been around for 15
years with no change. He concluded that based on his evaluation
and review of the records, Mother’s limitations cannot be
remedied and that she will continue to lack the capacity to parent
her Children and lacks any understanding of the specialized
services that her Children need.
Therefore, the Court found that clear and convincing
evidence was presented that the conditions which led to the
Children’s placement continue to exist, and the Children would not
suffer irreparable harm if Mother’s rights were terminated and
adoption would be in their best interest.
Trial Court Opinion, 2/13/18, at 21-22.
Upon review of the certified record, we conclude that there is clear and
convincing evidence to support the trial court’s findings and conclusions with
regard to Section 2511(b), and that they are not the result of an error of law
or an abuse of discretion. Here, the trial court considered the needs and
welfare of the Children and conducted a proper bond analysis, which we set
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forth above and adopt as our own. Trial Court Opinion, 2/13/18, at 21-22.
Further, as we stated in In re Z.P., 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.” In re Z.P., 994 A.2d 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). Again, as the record supports the trial court’s factual
findings, and the court’s legal conclusions are not the result of an error of law
or an abuse of discretion, we affirm the trial court’s decision with regard to
Section 2511(b). In re Adoption of S.P., 47 A.3d at 826-827. Accordingly,
we affirm the trial court’s decrees terminating Mother’s parental rights to the
Children.
Decrees affirmed.
Judge Dubow did not participate in the consideration or decision of this
Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/18
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