In the Int. of: D.L v. Appeal of: D.P.-F. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.L.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.P.-F., MOTHER :
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: No. 2186 EDA 2020
Appeal from the Decree Entered October 26, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000594-2019
IN THE INTEREST OF: D.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.P.-F., MOTHER :
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: No. 2187 EDA 2020
Appeal from the Decree Entered October 26, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002745-2016
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 15, 2021
In these consolidated cases, D.P.-F. (Mother) appeals from the decree
entered in the Court of Common Pleas of Philadelphia County (trial court)
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* Retired Senior Judge assigned to the Superior Court.
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involuntarily terminating her parental rights to her daughter, D.V. (Child)1
(D.O.B. 8/21/09) and changing Child’s permanency goal to adoption. 2 We
affirm.
I.
A.
The City of Philadelphia Department of Human Services (DHS) first
became involved with Child’s family in October 2016 because of Child’s
truancy. Although DHS’s initial dependency petition was dismissed, the
agency again became involved with the family in March 2017 based upon
reports of drug distribution by Father and Parents’ lack of suitable housing and
heroin abuse.
On April 18, 2017, the trial court adjudicated Child dependent and
ordered DHS to take custody of her. When Child disclosed that Father had
been sexually abusing her, his visitation with Child was suspended. Mother
tested positive for opiates and marijuana on multiple occasions. On March 15,
2018, the court found that Mother posed a grave threat3 because she had
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1 Child is alternately referred to as D.L.V. in the record.
2The parental rights of Child’s birth father, M.V. (Father) were also terminated
and he has not appealed that decision. Mother and Father are collectively
referred to as “Parents” in this Memorandum.
3“The ‘grave threat’ standard is met when the evidence clearly shows that a
parent is unfit to associate with his or her children.” Interest of L.B., 229
A.3d 971, 975 n.3 (Pa. Super. 2020) (citation omitted).
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inappropriate discussions with Child about the sexual abuse investigation and
court proceedings. On September 21, 2018, the court found clear and
convincing evidence of child abuse by Father and ordered Parents to stay away
from Child’s school and foster home. As of February 1, 2019, Mother did not
have appropriate housing and lived with Father.
B.
On August 8, 2019, DHS filed petitions seeking termination of Parents’
parental rights to Child. The trial court held a hearing on the matter on
October 26, 2020. At the hearing, former case manager and current case
supervisor Sharri Henderson testified that she was first assigned to this case
in late 2018. She testified as follows: Parents had mental health and
substance abuse issues and there were concerns about truancy, domestic
violence and sexual abuse in the home. Mother’s initial objectives included
participation in therapy and substance abuse treatment, along with
submission to random drug screens but never progressed beyond supervised
visitation with Child before the visits were suspended entirely in 2018 because
of her inappropriate discussions with Child. Moreover, Mother did not
complete drug and alcohol treatment and she tested positive for opiates on
four occasions, although at the time of the hearing she was in a substance
abuse treatment program. Henderson testified that it was difficult to keep in
contact with Mother because she had been in and out of several rehabilitation
facilities and had no steady employment. She opined that Mother had made
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no progress towards fulfilling her objectives or alleviating the need for Child’s
placement. Child had not seen Parents for two years at that point and
Henderson testified that reunification was not a viable option.
Henderson also testified that Child has resided with her foster parents
since July 2019 and that Child has expressed that she wants to be adopted by
them. Henderson stated that “[Child] is doing wonderful [with foster parents].
She’s a part of the family. She’s bonded with the family. She’s bonded with
the entire family, even extended members of the family.” (See N.T. Hearing,
10/26/20 at 34-35). Henderson unequivocally testified to her belief that
adoption by the foster parents would be in Child’s best interest.
Child’s therapist, Kristine Belinsky, testified that she has been working
with Child since December 2019 because of her history of trauma including
sexual abuse by Father, neglect by both Parents and her observation of their
drug abuse. Belinsky testified that since Child began living with the foster
parents, her behavior has improved, she is doing well in school and is very
happy and bonded with the entire foster family. Child has indicated that she
wants to be adopted and refers to her foster parents as “Mom and Dad.” (Id.
at 64). Belinsky testified that although Child loves Parents, it is not
appropriate for them to be involved in her life at this juncture. She opined
that the stability provided by the foster family has advanced her treatment
and that adoption would facilitate her therapeutic needs, as she is safe and
happy.
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Dawn Barns, Child’s case manager since December 2019, testified that
Child shares a parent-daughter bond with the foster parents and that she is
well-adjusted and thriving. Child is also bonded with their extended family
and wants to be adopted. Barns opined that if the court terminated Mother’s
parental rights, Child would not suffer any permanent harm given that she
has not had contact with Mother for two years and Mother does not
acknowledge the sexual abuse by Father. Barns also testified to her belief
that it is in Child’s best interest to change her goal to adoption.
Neither Mother nor Father testified at the hearing or submitted any
exhibits. At the conclusion of the testimony, the trial court specifically found
the three DHS witnesses credible. It concluded that Mother has been non-
compliant with her objectives and had made no progress towards alleviating
the need for Child’s placement. The trial court entered its decree terminating
Mother’s parental rights pursuant to § 2511(a)(1),(2),(5), (8) and (b) of the
Adoption Act and changing Child’s permanency goal to adoption under § 6351
of the Juvenile Act.4 Mother timely appealed and she and the trial court
complied with Rule 1925. See Pa.R.A.P. 1925(a)(i)-(ii).5
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4 23 Pa.C.S. §§ 2101-2938, 42 Pa.C.S. §§ 6301-6375.
5 Our standard of review in termination of parental right 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
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II.
Mother contends the trial court erred in terminating her parental rights
to Child pursuant to multiple subsections of 2511(a) and (b). Mother claims
she has successfully completed mental health and substance abuse treatment
programs in an effort to reunify with Child. Mother avers she has maintained
sobriety since July 2020 and has secured appropriate housing and
employment. Mother argues that any alienation in her relationship with Child
was caused by the court’s baseless decision to suspend visitation with her
daughter. Mother also argues that termination of her parental rights is not in
Child’s best interest, given their strong emotional bond.
A.
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights and 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
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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.
In re J.W.B., 232 A.3d 689, 695 (Pa. 2020) (citation omitted).
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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 Adoption of B.G.S., 240 A.3d 658, 662-63 (Pa. Super. 2020) (case
citation omitted).
As noted, the trial court terminated Mother’s parental rights pursuant to
Section 2511(a)(1),(2), (5), (8) and (b) of the Adoption Act, which provides:
(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:
(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.
* * *
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(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
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)(1), (2), (5), (8) and (b).
It is well-settled that “[w]e need only agree with [the trial court’s]
decision as to any one subsection of Section 2511(a) and subsection (b) in
order to affirm the termination of parental rights.” Int. of K.M.W., 238 A.3d
465, 473 (Pa. Super. 2000) (citation omitted). For the following reasons, we
conclude that the trial court correctly determined that DHS met its burden of
proof under subsections 2511(a)(2) and (b).
B.
We first address termination of Mother’s parental rights pursuant to
Section 2511(a)(2).
Section 2511(a)(2) provides for termination of parental
rights where the petitioner demonstrates by clear and convincing
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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.” 23 Pa.C.S. § 2511(a)(2). The grounds
for termination of parental rights under Section 2511(a)(2) due to
parental incapacity are not limited to affirmative misconduct; to
the contrary, those grounds may include acts of refusal as well as
incapacity to perform parental duties.
This Court has long recognized that a parent is required to
make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. At a termination hearing, the
orphans’ court may properly reject as untimely or disingenuous a
parent’s vow to follow through on necessary services when the
parent failed to co-operate with the agency or take advantage of
available services during dependency proceedings.
Id. at 473–74 (case citations omitted).
Applying these principles, the record shows that Mother’s history of
opioid abuse, inadequate housing and employment, along with her
inappropriate conduct concerning Father’s sexual abuse of Child, rendered her
incapable of parenting Child and caused Child to be without essential parental
care, control or subsistence. At the time of the hearing, Child had been in
placement for over three years and had not seen Mother for two years. The
record contains no evidence that Mother is capable of performing parental
duties and instead shows she had multiple positive drug screens, did not make
progress from a mental health perspective and continued to reside with Father
after the court found clear and convincing evidence of his sexual abuse of
Child. Accordingly, we conclude that the trial court did not abuse its discretion
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when it terminated Mother’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(2).6
C.
Having found that termination of Mother’s parental rights was
appropriate under Section 2511(a), the next step of our inquiry is to consider
whether termination is in the best interests of Child under Section 2511(b).
With respect to Section 2511(b), our analysis focuses on the
effect that terminating the parental bond will have on the child.
In particular, we review whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. It is well settled that intangibles
such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.
One major aspect of the “needs and welfare” analysis
concerns the nature and status of the emotional bond that the
child has with the parent, with close attention paid to the effect
on the child of permanently severing any such bond. The fact that
a child has a bond with a parent does not preclude the termination
of parental rights. Rather, the trial court must examine the depth
of the bond to determine whether the bond is so meaningful to
the child that its termination would destroy an existing, necessary,
and beneficial relationship. Notably, where there is no evidence
of a bond between the parent and child, it is reasonable to infer
that no bond exists.
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6 For similar reasons, clear and convincing evidence demonstrates that
termination was also warranted under subsections 2511(a)(1), (5) and (8).
Mother has not shown an ability to overcome her substance abuse,
employment or living arrangement issues to the extent that she could
appropriately care for Child, as she is in and out of different rehabilitation
facilities. Although Mother claims in her brief to have made lifestyle changes
to provide necessary support for Child, the trial court did not err in concluding
that she fell short in this regard, especially in light of the fact she submitted
no evidence on her behalf.
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It is sufficient for the trial court to rely on the opinions of
social workers and caseworkers when evaluating the impact that
termination of parental rights will have on a child. The trial court
may consider intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent.
Int. of K.M.W., supra at 475 (case citations and most quotation marks
omitted).
Instantly, Mother maintains that she and Child have a significant bond
stemming from her past role as Child’s primary caretaker and that the court’s
action in summarily suspending visitation alienated Child from her. She
argues that termination is not in Child’s best interest and would cause
irreparable harm.7
In contrast, Henderson explained that Child had lived with the foster
parents over one year at the time of the hearing and they have provided her
with a safe, loving environment. Henderson, Belinsky and Barns all testified
to Child’s strong bond with her foster parents and to her positive relationship
with her extended foster family. The DHS witnesses opined that termination
of Mother’s rights is in Child’s best interest and would not irreparably harm
Child. The trial court found:
The testimony has reflected that [Child] is stable and in a
loving home and is bonded to her foster parents. The testimony
reflects that there would not be irreparable harm if parental rights
were terminated. This court has heard credible testimony from
two case managers as well as [Child’s] therapist. . . . Mother has
been non-complaint [with case plan objectives since April 2017]
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7 Although Mother makes these arguments in her brief, we reiterate that she
did not testify or submit evidence at the termination hearing.
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and made no progress toward alleviating the need for
placement[.] This court finds . . . that it is in [Child’s] best interest
for the parents’ parental rights to be terminated and for her to be
freed for adoption.
(N.T. Termination Hearing, at 90).
We decline to disturb the court’s credibility determinations or reweigh
the evidence, which clearly demonstrates Child’s strong bond with her foster
family and her lack thereof with Mother, who she had not seen for two years
due to Mother’s inappropriate conduct and failure to make progress towards
any of her objectives. The evidence supports the trial court’s conclusion that
terminating Mother’s parental rights is in Child’s best interest, as Child is well-
adjusted and happy in the foster parent’s residence and they care for her and
meet all of her needs. Child refers to the foster parents as “Mom and Dad”
and has repeatedly expressed her desire to be adopted by them. Mother’s
opioid addiction and inability to provide a stable environment for Child further
establish that termination is in Child’s best interest. We find no abuse of
discretion in the trial court’s decision to terminate Mother’s parental rights to
Child.
III.
Lastly, we address Mother’s claim the trial court erred by changing
Child’s permanency goal to adoption pursuant to Section 6351 of the Juvenile
Act. Mother argues DHS failed to make reasonable efforts to reunify her with
Child and that adoption is not in Child’s best interest. Mother also contends
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that the goal change was made in contravention of the Juvenile Act’s stated
purpose of preserving the family unit whenever possible.
We begin by recognizing that a primary purpose underlying the Juvenile
Act is to “preserve the unity of the family whenever possible or to provide
another alternative permanent family when the unity of the family
cannot be maintained.” 42 Pa.C.S. § 6301(b)(1) (emphasis added). An
agency is not required to offer services indefinitely, where a parent is unable
or unwilling to properly utilize the instruction provided. See Interest of
T.M.W., 232 A.3d 937, 947 (Pa. Super. 2020). Instead, the agency must
redirect its efforts towards placing a foster child in an adoptive home after it
has made reasonable efforts to return the child to her biological parents and
those attempts have failed. See id.Additionally, a court is required to provide compelling reasons why it is
not in the best interest of the child to return to her parents and to instead be
placed for adoption. See 42 Pa.C.S. § 6351 (f.1)(5)(iv)(C). The child’s best
interest, safety, permanency and well-being must take precedence over all
other considerations in a goal change proceeding. See In re R.M.G., 997
A.2d 339, 347 (Pa. Super. 2010), appeal denied, 12 A.3d 372 (Pa. 2010). The
parent’s rights are secondary and a goal change to adoption may be
appropriate even under circumstances where a parent substantially complies
with a reunification plan. See id. A court cannot subordinate a child’s need
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for permanence and stability to a parent’s claim of progress and goals for the
future. See id.In this case, at the time of the subject hearing, Child had been in
placement for over three years and Mother had not progressed beyond
supervised visitation before the visits were suspended for her inappropriate
conduct. During the time Child was in placement, the trial court had found at
the permanency review hearings that DHS had made reasonable efforts to
finalize Child’s initial permanency goal of reunification. (See DHS Exhibits 4-
18). Furthermore, as discussed in detail above, Child is well adjusted and
happy in her home with her foster parents and she has become a part of their
family. Because the record fully supports the trial court’s decision to change
Child’s permanency goal to adoption, we conclude Mother’s final issue merits
no relief.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2021
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