In the Int. of: T.A.T., Appeal of: J.O. ( 2020 )

J-S07032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF T.A.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.O., MOTHER : No. 1939 EDA 2019
Appeal from the Decree Entered June 13, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-000605-2018
IN THE INTEREST OF T.A.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.O., MOTHER : No. 1940 EDA 2019
Appeal from the Order Entered June 13, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0003044-2017
IN THE INTEREST OF: T.B.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.O., MOTHER : No. 1941 EDA 2019
Appeal from the Decree Entered June 13, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000603-2019
IN THE INTEREST OF: T.B.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.O., MOTHER : No. 1942 EDA 2019
J-S07032-20
Appeal from the Order Entered June 13, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002127-2016
IN THE INTEREST OF: E.A.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.O., MOTHER : No. 1943 EDA 2019
Appeal from the Decree Entered June 13, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000604-2019
IN THE INTEREST OF: E.A.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.O., MOTHER : No. 1944 EDA 2019
Appeal from the Order Entered June 13, 2019
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000430-2017
BEFORE: NICHOLS, J., KING, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: Filed: April 30, 2020
J.O. (Mother) appeals from the decrees entered June 13, 2019, which
terminated involuntarily her parental rights to her children, T.B.T., a male
born in May 2013, E.A.T., a female born in August 2015, and T.A.T., a male
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* Retired Senior Judge assigned to the Superior Court.
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born in April 2017 (collectively, Children).1 Mother also appeals from the
orders entered that same day, changing Children’s permanent placement
goals from return to parent or guardian to adoption. We affirm.
The record reveals that the Philadelphia Department of Human
Services (DHS) has a lengthy history of involvement with this family. DHS
obtained an order of protective custody (OPC) for T.B.T. on September 26,
2016, based on allegations that Mother lacked suitable housing. However,
the trial court lifted the OPC on September 28, 2016, instructing that DHS
should obtain a new OPC once it learned of T.B.T.’s whereabouts. The next
action in this case took place on February 17, 2017, when DHS filed motions
to compel Mother’s cooperation in its general protective services
investigation. DHS averred that it received allegations that Mother struck
one of the Children, that the family’s whereabouts were unknown, and that it
had been unable to complete its investigation due to Mother’s lack of
cooperation. The court entered an order discharging the motion on February
27, 2017.
Finally, DHS obtained protective custody of Children on or about
November 14, 2017.2 In its applications for protective custody, DHS averred
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1 The trial court entered separate decrees in which it terminated involuntarily
the parental rights of T.T., who is the father of T.B.T. and E.A.T., and the
putative father of T.A.T. The court also entered a separate decree
terminating involuntarily the parental rights of any unknown father that
T.A.T. may have. Neither T.T., nor any unknown father, appealed the
termination of his parental rights.
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that one of the Children3 had suffered two black eyes but that Mother
refused to permit a doctor to examine him. DHS further averred that Mother
had been verbally aggressive toward DHS and hospital staff. The trial court
entered shelter care orders on November 15, 2017, and orders adjudicating
Children dependent on November 28, 2017.
Following the adjudications of dependency, Mother made little, if any,
progress toward achieving reunification with Children. As detailed below,
Mother failed to comply with the objectives in her Single Case Plan (SCP)
and exhibited hostility toward Community Umbrella Agency (CUA) case
managers. DHS filed its petitions to terminate involuntarily Mother’s
parental rights to Children on July 24, 2018, along with petitions to change
Children’s permanent placement goals from return to parent or guardian to
adoption. DHS filed amended termination and goal change petitions on
January 30, 2019.
2 In the various pleadings filed in this matter, DHS indicates that it intended
to obtain an OPC for T.A.T. on November 13, 2017, but that it obtained an
OPC for T.B.T. in error. DHS indicates that it removed T.A.T. on November
13, 2017, but that it did not obtain an OPC for T.A.T. until November 14,
2017, and that it did not remove T.B.T. until November 14, 2017, despite
obtaining an OPC for him on November 13, 2017.
3 The record is inconsistent as to which of the Children suffered the injury.
The applications for emergency protective custody for T.B.T. and T.A.T.
indicate that T.B.T. suffered the injury. However, the application for
emergency protective custody for E.A.T., as well as the dependency petitions
and the subsequent pleadings for all three of the Children, indicate that
T.A.T. suffered the injury.
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The trial court held a hearing on the petitions on June 13, 2019, at the
conclusion of which it announced that it would terminate Mother’s parental
rights and change Children’s goals to adoption. The court entered decrees
and orders memorializing its decision on June 13, 2019. Mother timely filed
notices of appeal on July 10, 2019, along with concise statements of errors
complained of on appeal.
Mother now raises the following claims for our review.
1. Whether the trial court’s decision to involuntarily terminate
[Mother’s] parental rights to [Children] was not supported by
clear and convincing evidence warranting such determination[.]
2. Whether the trial court’s decision to change [C]hildren’s
permanency goal from reunification with the parent to adoption
was not supported by clear and convincing evidence
demonstrating that such decision would best protect [C]hildren’s
needs and welfare and be in [C]hild[ren’s] best interests[.]
Mother’s Brief at 5 (trial court answers omitted).4
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4 While Mother filed notices of appeal from the trial court’s goal change
orders, and while she purports to challenge the orders in her statement of
questions involved, she does not develop her goal change claim in the
argument section of her brief with citation to relevant legal authority. Thus,
Mother has waived this claim. See In re M.Z.T.M.W., 163 A.3d 462, 465
(Pa. Super. 2017) (“[T]his Court will not review a claim unless it is
developed in the argument section of an appellant’s brief, and supported by
citations to relevant authority.”). Further, even if Mother had preserved her
goal change claim for our review, our decision to affirm the decrees
terminating her parental rights would render that claim moot. See In the
Interest of D.R.-W., ___ A.3d ___, 2020 WL 465686 at *9 (Pa. Super.
2020) (“[E]ven if Father had not waived his goal change claim, it would be
moot in light of our decision to affirm the court’s termination decrees.”). We
therefore affirm the June 13, 2019 goal change orders.
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We focus our analysis on the decrees terminating involuntarily
Mother’s parental rights to Children, which we review in accordance with the
following standard.
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) (citations and quotation marks
omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It 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 [subs]ection 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 [subs]ection
2511(b): determination of the needs and welfare of the child
under the standard of best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the instant matter, the trial court terminated Mother’s parental
rights pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We need
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only agree with the court as to any one subsection of 2511(a), in addition to
subsection 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the court’s decision pursuant to
subsections 2511(a)(2) and (b), which provide as follows.
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
***
23 Pa.C.S. § 2511(a)(2), (b).
We begin by considering whether the trial court committed an abuse of
discretion by terminating Mother’s rights pursuant to subsection 2511(a)(2).
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In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). Critically, “[t]he grounds for termination due to parental
incapacity that cannot be remedied are not limited to affirmative
misconduct. To the contrary, those grounds may include acts of refusal as
well as incapacity to perform parental duties.” In re A.L.D., 797 A.2d 326,
337 (Pa. Super. 2002) (citations omitted).
In its opinion, the trial court found that Mother remained incapable of
parenting Children and failed to remedy the causes of their placement in
foster care. Trial Court Opinion, 9/24/2019, at 4-6. The court emphasized
Mother’s failure to complete her SCP objectives and particularly her failure to
address her mental health issues. Id.Mother challenges the trial court’s findings, insisting that the evidence
DHS presented during the hearing “did not establish any substantial parental
objective plan that [M]other failed to meet or could not remedy within a
reasonable period of time to prohibit reunification.” Mother’s Brief at 17, 19.
She emphasizes that DHS did not remove Children from her care for over a
year after it became involved with the family and that it filed its termination
petitions less than six months after she received her initial SCP. Id. at 20,
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23. Mother contends that DHS and CUA rushed to terminate her rights and
failed to provide her with the assistance necessary to achieve reunification.
Id. at 20-22, 24-25. She directs our attention to her testimony during the
hearing, which she argues demonstrates that she was capable of meeting
Children’s needs. Id. at 21-25.
Our review of the record supports the trial court’s decision. During the
hearing, DHS presented the testimony of CUA case management supervisor
Sonya Jamison, CUA case manager Malia Gadson,5 and CUA case manager
Symone Brown, all of whom testified regarding Mother’s lack of compliance
with her SCP objectives. Mother’s objectives included attending a domestic
violence program, attending drug and alcohol and mental health treatment,
submitting to random drug screens at the Clinical Evaluation Unit, obtaining
housing and employment, and attending visitation with Children. N.T.,
6/13/2019, at 7, 28-29, 44. However, Mother did not attend a domestic
violence program, did not attend mental health and drug and alcohol
treatment, did not submit to random drug screens, and did not provide proof
of employment.6 Id. at 7-10, 23-25, 29-30, 39-40, 44-45, 54.
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5Gadson’s first name appears as “Malia” in the transcript of the hearing but
as “Melea” elsewhere in the record.
6 Jamison added that Mother received a referral for a parenting capacity
evaluation but failed to comply, and that she refused to sign consent forms.
N.T., 6/13/2019, at 30, 40.
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Mother also failed to obtain appropriate housing. At the time DHS first
became involved with Mother, she was living with her sister. Id. at 7.
Later, Mother began living with her grandfather. Id. at 45. Jamison
testified that Mother became “very combative” when CUA attempted to visit
the home and insisted that the case manager not come inside. Id. at 38.
Similarly, Brown testified that she visited Mother’s home once, which “went
fine,” but that Mother was uncooperative and hostile during her subsequent
attempt to perform a “pop-up” visit at the home. Id. at 48.
Perhaps most striking, however, was Mother’s failure to attend
visitation with Children. Between November 2017,7 and May 24, 2018,
Mother attended only 4 of 66 possible visits. Id. at 10. Between May 25,
2018, and October 24, 2018, Mother attended only 2 of 22 possible visits.
Id. at 30-31. The record does not reveal the number of visits that Mother
attended between October 2018 and February 2019. However, from
February 27, 2019, until the time of the hearing on June 13, 2019, Mother
attended only 1 of 16 possible visits. Id. at 44-45, 55. While Mother did
have additional contact with Children via telephone, FaceTime, and/or
Skype, it was unclear how often this type of contact occurred. Id. at 24, 41.
Given Children’s young ages, this type of contact is not a substitute for in-
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7 Gadson listed the number of visits Mother attended starting in February
2017, although Children remained in Mother’s care until November 2017. It
appears that Gadson used February 18, 2017 as a start date because CUA
assigned her to Mother’s case at that time. See N.T., 6/13/2019, at 6, 10.
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person visits that were available to Mother. Children’s foster mother
testified that Mother spoke to Children infrequently. Id. at 66. When asked
if Mother spoke to Children on a weekly basis, the foster mother responded,
“Maybe, sometimes, depending on who is in.” Id.
Finally, the record demonstrates that Mother has been uncooperative
and even overtly hostile to CUA. Gadson described an incident that took
place during a visit on February 16, 2018, during which Mother began yelling
at Children and using profanity. Id. at 10-12. She recalled,
I tried to redirect her. I guess she didn’t like what I was saying.
She got irate and was using profanity towards me. So as I
proceeded to leave the conference room where they was [sic]
having the visit she got up and walked towards me, and that’s
when the agency had contacted police.
***
THE COURT: What kind of language did she use?
THE WITNESS: Called me B and MF’ers and just using that
language, and then she said if I terminate her rights she was
going to terminate my life.
Id. at 12.
CUA removed Gadson from the case and assigned a different case
manager to Mother. Id. at 13. The trial court also entered a protective
order on Gadson’s behalf. Dependency Court Protective Order (T.B.T.),
2/28/2018. Apparently, Mother’s interactions with her new case manager
were not much better, as the court entered a protective order on his behalf
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as well. N.T., 6/13/2019, at 31-32; Dependency Court Protective Order
(T.B.T.), 10/2/2018.
Mother’s belligerent behavior continued during the hearing on June 13,
2019. She interrupted the proceedings repeatedly, to the point where the
trial court removed her from the courtroom. N.T., 6/13/2019, at 12-21.
Mother later returned to the courtroom to testify. Id. at 80-96. However,
at the conclusion of the hearing, when legal counsel for T.B.T. and E.A.T.8
reported that his clients wanted their foster mother to adopt them, Mother
became belligerent once again, resulting in the court’s removing her for a
second time. Id. at 98-99.
Accordingly, the record demonstrates that Mother has made little, if
any, effort to comply with her SCP objectives and achieve reunification with
Children. She has displayed a lack of interest in Children and their welfare
by failing to attend visitation consistently, and has been uncooperative and
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8 Counsel explained that the trial court did not appoint him to represent
T.A.T., who was only two years old at the time. N.T., 6/13/2019, at 69.
See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018) (holding that where a
“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-guardian ad litem who represents the child’s best interests
during such proceedings.”). T.A.T. did have a separate guardian ad litem
during the hearing.
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hostile to CUA, the agency tasked with assisting her with reunification.9
Based on the record, DHS demonstrated that Mother has been incapable of
or has refused to provide Children with appropriate parental care, and that
she cannot or will not remedy her parental incapacity and/or refusal at any
point in the near future. As this Court has stated, “a child’s life cannot be
held in abeyance while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa. Super. 2006). Thus, we conclude that the court did not abuse
its discretion by terminating involuntarily Mother’s parental rights to Children
pursuant to subsection 2511(a)(2).
Next, we consider if the trial court abused its discretion by terminating
involuntarily Mother’s parental rights pursuant to subsection 2511(b). We
apply the following analysis.
S[ubs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
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9 While Mother maintains that DHS and CUA failed to provide her with the
assistance necessary to achieve reunification, this argument is meritless.
Even accepting that DHS and CUA failed to provide Mother with reasonable
reunification efforts, our Supreme Court has held that reasonable
reunification efforts are not a prerequisite to the involuntary termination of
parental rights pursuant to subsection 2511(a)(2). In re D.C.D., 105 A.3d
662 (Pa. 2014).
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bonding analysis and the term ‘bond’ is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to
be considered as part of our analysis. While a parent’s
emotional bond with his or her child is a major aspect of the
subsection 2511(b) best-interest analysis, it is nonetheless only
one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015)
(quotation marks and citations omitted).
Here, the trial court concluded that terminating Mother’s parental
rights would not have a detrimental effect on Children and would be in their
best interests. Trial Court Opinion, 9/24/2019, at 6-7. The court
emphasized the testimony of the CUA witnesses, which demonstrated that
Children share a bond with their foster mother. Id. at 5-6. The court also
emphasized the report of legal counsel for T.B.T. and E.A.T., who stated that
his clients wanted their foster mother to adopt them. Id. at 5.
Mother argues in response that DHS failed to present sufficient
evidence regarding the effect that terminating her parental rights would
have on Children. Mother’s Brief at 26-27. Specifically, Mother complains
that DHS failed to present expert testimony during the hearing. Id. at 26.
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She insists that this was a critical omission, because Children “have resided
with and known [her] all their lives” and because she has “raised and cared
for them since birth[.]” Id.
Contrary to Mother’s assertions, the record reveals that she has failed
to provide for Children for a significant portion of their lives. At the time of
Children’s placement in foster care in November 2017, T.B.T. was four-and-
a-half years old, E.A.T. was two years old, and T.A.T. was six months old.
By the time of the hearing on June 13, 2019, T.B.T. was six years old, E.A.T.
was three-and-a-half years old, and T.A.T. was two years old. Thus,
proportional to their ages, Mother missed a significant portion of their lives.
Importantly, Mother had only minimal contact with Children following their
placement, due to her failure to attend visitation consistently. The CUA
witnesses testified regarding 104 possible visits that Mother could have
attended. N.T., 6/13/2019, at 10, 30-31, 44-45, 55. Mother attended only
seven of those visits and engaged in an unspecified amount of phone contact
with Children. Id. at 10, 24, 30-31, 41, 44-45, 55. Given this dearth of
contact, the record confirms that Children do not share a meaningful bond
with Mother. See Matter of Adoption of M.A.B., 166 A.3d 434, 449 (Pa.
Super. 2017) (“[A] child develops a meaningful bond with a caretaker when
the caretaker provides stability, safety, and security regularly and
consistently to the child over an extended period of time.”).
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To the extent Mother argues that the trial court could not terminate
her parental rights absent expert testimony addressing her relationship with
Children, this contention is contrary to our law. This Court has explained
that trial courts may rely on the opinions of agency caseworkers when
conducting a subsection 2511(b) bonding analysis. See In re Z.P., 994
A.2d 1108, 1121 (Pa. Super. 2010) (“When conducting a bonding analysis,
the court is not required to use expert testimony. Social workers and
caseworkers can offer evaluations as well.”) (citations omitted). Here,
Brown testified that she did not believe Children share a bond with Mother,
that terminating Mother’s rights would be in Children’s best interests, and
that Children would not experience harm as a result. N.T., 6/13/2019, at
57-58. She testified that Children are thriving and happy in their pre-
adoptive foster home, where they have resided since November 2017. Id.
at 56-57. Brown added that Children refer to their foster mother as “mom.”
Id. at 57; see T.S.M., 71 A.3d at 268 (“Common sense dictates that courts
considering termination must also consider whether the children are in a
pre-adoptive home and whether they have a bond with their foster
parents.”). Accordingly, we conclude that the court did not abuse its
discretion by terminating involuntarily Mother’s parental rights to Children
pursuant to subsection 2511(b).
Based on the foregoing analysis, we conclude that the trial court did
not abuse its discretion by terminating involuntarily Mother’s parental rights
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to Children and we affirm the court’s termination decrees. Because Mother
waived any challenge to the court’s goal change orders, and because any
such challenge would be moot due to our decision to affirm the termination
decrees, we affirm those orders as well.
Decrees affirmed. Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/20
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