In the Interest of: J.C.F., a Minor ( 2018 )

J-S45016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.C.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: Y.F., MOTHER :
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: No. 519 EDA 2017
Appeal from the Order Entered January 10, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0001268-2016
CP-51-DP-0000085-2015
IN THE INTEREST OF: J.C.F., III, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: Y.F., MOTHER :
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: No. 520 EDA 2017
Appeal from the Order Entered January 10, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0001267-2016
CP-51-DP-0000084-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, J. FILED MAY 25, 2018
Y.F. (“Mother”) appeals from the January 10, 2017 decrees involuntarily
terminating her parental rights and the orders changing the placement goals
from reunification to adoption with respect to her sons, J.C.F., born in May
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* Retired Senior Judge assigned to the Superior Court.
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2004, and J.C.F., III, born in November 2002 (collectively, “Children”).1 We
affirm.2
We summarize the relevant facts and procedural history as follows. The
Philadelphia Department of Human Services (“DHS”) received two separate
reports about this family in 2014, alleging that Mother was neglecting the
Children’s educational and hygiene needs, and she was not providing them
food or appropriate supervision. The Children were removed from Mother in
December 2014, after Mother had been missing for three days, and the police
found her at home asleep, having urinated on herself, and with difficulty
answering questions.
The Children were adjudicated dependent on January 28, 2015, and
their permanency goal was reunification. Mother was required to satisfy the
following Single Case Plan (“SCP”) objectives established by the Community
Umbrella Agency (“CUA”): participate in mental health treatment through
Warren E. Smith (“WES”); participate in parenting services through WES;
participate in visitation with the Children, per court order; participate in
telephone contact with the Children at the discretion of the Children’s
therapist; attend the Clinical Evaluation Unit (“CEU”) for an assessment and
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1 The Children’s natural father is deceased.
2 The Child Advocate has filed an appellee brief in support of the subject
decrees and orders.
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random drug screenings, per court order; and meet with a life skills coach to
explore housing resources.
At the outset of the dependency cases, by orders dated January 21,
2015, the trial court appointed the Support Center for Child Advocates as
counsel and guardian ad litem (“GAL”) for the Children “pursuant to 42
Pa.C.S.A. § 6311 [Guardian ad litem for child in court proceedings], 42
Pa.C.S.A. § 6337 [Right to counsel] and/or 42 Pa.C.S.A. § 5983(a)
[Designation of persons to act on behalf of children], to represent said minor’s
interests in connection with criminal and civil proceedings related to abuse,
neglect, dependency, termination of parental rights, adoption and/or
custody.” Order, 1/21/15.
On December 22, 2016, DHS filed petitions for the involuntary
termination of Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b) and petitions for a goal change to adoption. The trial
court held a combined hearing on the petitions on January 10, 2017. The
Children, who were then fourteen and twelve years old, respectively, were
represented by Martha Little, Esquire (“Child Advocate”), from the Support
Center for Child Advocates.3
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3This Court has recently held that we will address sua sponte the failure of an
orphans’ court to appoint counsel pursuant to 23 Pa.C.S. § 2313(a). See In
re K.J.H., 180 A.3d 411, 413-414 (Pa. Super. 2018). Our Supreme Court, in
In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), held that §
2313(a) requires that counsel be appointed to represent the legal interests of
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DHS presented the testimony of Monaque Riddick, the CUA case
manager for this family from the time of the Children’s adjudication through
the subject proceedings, and the Child Advocate cross-examined her. Ms.
Riddick testified that the Children, who were placed together in their present
pre-adoptive foster home in October 2015, wish to be adopted. DHS also
presented the testimony of Tina Roberts, the CUA aide for the family who
supervised Mother’s visits with the Children since August 2016. Mother
testified on her own behalf.
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any child involved in a contested involuntary termination proceeding. The
Court defined a child’s legal interest as synonymous with his or her preferred
outcome. With respect to this Court’s holding in In re K.M., 53 A.3d 781 (Pa.
Super. 2012), that a GAL who is an attorney may act as counsel pursuant to
§ 2313(a) so long as the dual roles do not create a conflict between the child’s
best interest and legal interest, the L.B.M. Court did not overrule it.
Here, the trial court appointed the Support Center for Child Advocates to
represent the Children as their counsel and GAL in dependency and
termination of parental rights matters, among others. The court did not issue
separate orders of appointment for the Children in the termination matters.
To the extent that the Child Advocate did not clarify what roles she served for
the Children during the termination hearing, this is of no consequence insofar
as our review of the record, discussed below, reveals that there is no conflict
between the Children’s legal and best interests. Our review of the record, also
discussed later, reveals there is no conflict between the Children’s legal and
best interests. Therefore, we do not remand this matter. Cf. In re T.M.L.M.,
___ A.3d ___, 2018 WL 1771194 (Pa. Super., filed April 13, 2018) (remand
for further proceedings when six-year-old child’s preference was equivocal and
the attorney neglected to interview the child to determine whether legal and
best interest were in conflict).
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By decrees and orders dated and entered on January 10, 2017, the trial
court granted the petitions for the involuntary termination of Mother’s parental
rights and changed the Children’s permanency goals to adoption. Mother
timely filed notices of appeal and concise statements of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court
consolidated sua sponte. Mother then filed, with respect to both appeals, a
petition to file a supplemental concise statement of errors complained of on
appeal wherein she asserted one additional error by the trial court.4
Mother presents the following issues for our review:
1. Did the trial court commit an error of law and abuse of
discretion when it denied [Mother’s] request to have a hearing
with the children present and subsequently terminated her
parental rights and changed her children’s goal to adoption
without ever consulting with the children?
2. Did the trial court commit an error of law and abuse of
discretion when it inappropriately relied on inadmissible hearsay
evidence, including statements purportedly made by the children,
to terminate [Mother’s] parental rights and change the children’s
goal to adoption?
3. Did the trial court commit an error of law and abuse of
discretion by involuntarily terminating [Mother’s] parental rights
under 23 Pa.C.S. § 2511(b), where [DHS] failed to prove by clear
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4 The record does not include an order disposing of Mother’s petition to file a
supplemental concise statement. However, in its Rule 1925(a) opinion, the
trial court addresses Mother’s additional assertion, which Mother raises
verbatim in her second issue in the statement of questions involved in her
brief, infra. The Child Advocate and DHS address Mother’s additional assertion
in their briefs to this Court. As such, we conclude that the parties were not
prejudiced by Mother filing the supplemental concise statement, and we will
review Mother’s claim.
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and convincing evidence [that] termination would best serve the
emotional needs and welfare of the children?
4. Did the trial court commit an error of law and abuse of
discretion by changing the children’s goal to adoption, where DHS
failed to prove by clear and convincing evidence that adoption is
in the children’s best interest?
Mother’s Brief, at 3.
We review Mother’s issues regarding the goal change orders and
involuntary termination decrees for an abuse of discretion. See In re R.M.G.,
997 A.2d 339, 345 (Pa. Super. 2010).
In order to conclude that the trial court abused its discretion, we
must determine that the court’s judgment was “manifestly
unreasonable,” that the court did not apply the law, or that the
court’s action was “a result of partiality, prejudice, bias or ill will,”
as shown by the record. We are bound by the trial court’s findings
of fact that have support in the record. The trial court, not the
appellate court, is charged with the responsibilities of evaluating
credibility of the witness and resolving any conflicts in the
testimony. In carrying out these responsibilities, the trial court is
free to believe all, part, or none of the evidence. When the trial
court’s findings are supported by competent evidence of record,
we will affirm, “even if the record could also support an opposite
result.”
Id.
We have stated that
pursuant to 42 Pa.C.S.A. § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the extent
of compliance with the family service plan; (3) the extent of
progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child’s safety; and (7) whether the child has been in placement
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for at least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the parent, must
guide the trial court. As this Court has held, a child’s life simply
cannot be put on hold in the hope that the parent will summon
the ability to handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-1089 (Pa. Super. 2011) (citation omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act, 23 Pa.C.S.A. §§ 2101-2938, 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).
The relevant provisions of the Adoption Act in this case are 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.
...
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(b) Other considerations.―The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
Before turning to the merits of Mother’s issues on appeal, we note that
Mother does not assert in the statement of questions involved in her brief that
the trial court abused its discretion by terminating her parental rights pursuant
to § 2511(a). See Krebs v. United Refining Company of Pennsylvania,
893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not set forth in
or suggested by an appellate brief’s statement of questions involved is
deemed waived). Even if she did raise this issue, we would conclude that the
court did not abuse its discretion pursuant to § 2511(a)(2).5 This Court has
stated as follows.
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
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
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5 We need only agree with the trial court as to any one subsection of §
2511(a), as well as § 2511(b), in order to affirm an involuntary termination
decree. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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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). “The 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) (citation omitted).
In this case, the trial court set forth the following factual findings with
respect to subsection (a)(2).
The Children were taken into DHS custody because Mother was
unable to provide essential parental care: she was not providing
the Children with their educational and hygienic needs; was not
providing supervision or, at times, food for the Children; and she
was in urgent need of mental health treatment. Mother did not
successfully complete all her SCP goals. Mother completed her
parenting classes, [al]though CUA still had concerns about her
ability to parent. Mother was inconsistent in her mental health
treatment and was not engaged in mental health treatment at the
time of the termination trial. Mother admitted that she was not
consistent with her mental health treatment over the life of the
case. Mother also admitted that her psychiatrist is still trying to
stabilize her medication regimen in order for her to function. Over
the life of the case, Mother made threats to [Ms. Riddick],
appeared sleepy and over-medicated in court, and was committed
on 201 [50 P.S. § 7201 (Persons who may authorize voluntary
treatment)] and 302 [50 P.S. § 7302 (Involuntary emergency
examination and treatment authorized by a physician – not to
exceed one hundred twenty hours)] commitments. [Ms. Riddick,
the CUA case manager,] had safety concerns for the Children and
Mother’s ability to parent.[6] Mother continues to need to stabilize
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6 Ms. Riddick testified on inquiry by the trial court:
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her mental health to function and to provide care for the Children’s
needs and emotional well-being. Mother lived in inadequate
housing throughout most of the case. Mother rents a room in a
boarding house. Mother did not verify her address with [Ms.
Riddick] or grant permission to assess her house. Mother had
supervised visits, but caused the Children distress at almost every
visit. Mother was inappropriate when having telephonic contact
with the Children. Mother blamed the Children for their placement
in foster care, would tell them about her mental health
hospitalizations, and even went so far as to tell them that she was
pregnant when she really was not. . . .
Trial Court Opinion, 3/27/17, at 10 (citations to record omitted).
The testimonial evidence of Ms. Riddick, the CUA case manager,
supports the court’s findings. Ms. Riddick testified that Mother was minimally
compliant with her SCP objectives. See N.T., 1/10/17, at 37-38. Most
importantly, she testified that the CEU concluded that Mother has severe
mental health issues and would benefit from outpatient treatment at Warren
E. Smith. See id., at 19. However, Mother did not attend outpatient
treatment. See id., at 25-26. In addition, Ms. Riddick testified that Mother
completed parenting classes, but the certificate of completion from the service
provider recommended that she continue with intensive therapy. See id., at
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Q. Just tell me why do you observe that [Mother is] a safety
threat?
A. [S]he’s told me that she was going to kill me. She called me
and said that her brother . . . was going to kill her and the
[C]hildren. And [she told me that her brother] was a[n] Islamic
terrorist, and she was, you know, in fear of her life. . . .
N.T., 1/10/17, at 31. See also id., at 26.
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24-25. She testified that Mother told the Children it was their fault that they
were in foster care. See id., at 35. Ms. Riddick continued on direct
examination:
[S]ometimes she would even blame me as to the reason why the
kids were not home with her stating that I didn’t do my job well
enough. She had called me one time and asked me not to inform
the boys that she was 302’d. And then she called them and told
them that she was, which made them extremely upset.
She called them and told them that she was pregnant and
expecting a new baby with her new boyfriend. . . .
Id., at 35. Ms. Riddick testified that Mother was not pregnant. Id.
As such, the trial court’s findings, which are supported by the testimonial
evidence, reveal that Mother’s repeated and continued mental health
incapacity and/or refusal to comply with her SCP objectives has caused the
Children to be without essential parental care, control or subsistence
necessary for their physical or mental well-being. Further, the causes of
Mother’s incapacity and/or refusal cannot or will not be remedied.
In her first issue on appeal, Mother argues that the trial court erred and
abused its discretion by denying her request that the Children testify at the
hearing. At the commencement of the hearing and prior to any testimonial
evidence, Mother’s counsel stated on the record in open court,
[M]y request is that[,] after we hear all the witnesses today[,]
that we get a short date for the boys to come in to testify. I would
like them to testify regarding [23 Pa.C.S. §] 2511(b). In addition,
there are actually proceedings under two acts before you today.
There’s a goal change under the Juvenile Act . . . and termination
of parental rights under the Adoption Act. Under the Juvenile Act,
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in any permanency hearing held with respect to the child, the
[c]ourt shall consult with the child regarding the child’s
permanency plan in a manner appropriate to the child’s age and
maturity. . . .
The Pennsylvania Rules of Court pertaining to dependency matters
also mandate the appearance of the child at hearings. . . .
N.T., 1/10/17, at 5-6. Mother proffered, “What I would be getting at in the
[C]hildren’s testimony is the relationship with their Mom, the importance of
the relationship with their mom, and whether severing that relationship would
be harmful to them and would destroy something in existence that is
necessary and beneficial.” Id., at 6-7.
With respect to the goal changes orders, Mother contends that
Pennsylvania Rule of Juvenile Court Procedure 11287 requires that dependent
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7 The rule provides in relevant part:
D. Order appearance. The court may order any person having
the physical custody or control of a child to bring the child to any
proceeding.
Comment:
In no case is a proceeding to occur in the absence of the
child’s attorney. The court has discretion whether to proceed if
the court finds that a party received proper notice of the hearing
and has willfully failed to appear.
Requiring the child’s attorney to be present pursuant to paragraph
(B)(2) protects the child’s interest if the proceeding is conducted
in the child’s absence. However, unless good cause is shown, a
child should appear in court. It is important that all children,
including infants, appear in court so the court can observe the
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children be present in all dependency proceedings, and that 42 Pa.C.S.A. §
6351(e)(1)8 requires that the court consult with the dependent child at goal
change hearings. The trial court agreed on the record in open court that a
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interaction between the caregiver and child and observe the child’s
development and health.
Ensuring a child appears in court on a regular basis is critical
because the court oversees the child and is to ensure his or her
care, protection, safety, and wholesome mental and physical
development. However, the court may ask that the child be
removed from the courtroom during sensitive testimony.
Pa.R.J.C.P. 1128 (emphasis added).
8 That subsection provides:
(e) Permanency hearings.
(1) The court shall conduct a permanency hearing for the
purpose of determining or reviewing the permanency plan of the
child, the date by which the goal of permanency for the child might
be achieved and whether placement continues to be best suited
to the safety, protection and physical, mental and moral welfare
of the child. In any permanency hearing held with respect to the
child, the court shall consult with the child regarding the child’s
permanency plan, including the child’s desired permanency goal,
in a manner appropriate to the child’s age and maturity. If the
court does not consult personally with the child, the court shall
ensure that the views of the child regarding the permanency plan
have been ascertained to the fullest extent possible and
communicated to the court by the guardian ad litem under section
6311 (relating to guardian ad litem for child in court proceedings)
or, as appropriate to the circumstances of the case by the child’s
counsel, the court-appointed special advocate or other person as
designated by the court.
...
42 Pa.C.S.A. § 6351(e)(1) (emphasis added).
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child should appear at permanency review hearings pursuant to Pa.R.J.C.P.
1128. See N.T., 1/10/17, at 8. Further, pursuant to § 6351(e)(1), the court
agreed that a child, based on age and maturity, “could actually give” his or
her opinion regarding the placement goal during a permanency review
hearing. Id. However, in denying the request that the Children testify during
the subject proceedings, the court stated to Mother’s counsel:
But all that testimony that you’re asking for us to have the
[C]hildren come and testify, most of the time, if not all the time[,]
it’s brought out in DHS’s case in chief by the social worker and the
case manager because they’re the ones that have been working
the case for all this time. So, they’ve been observing the children.
They’ve been talking to the children. And for that matter, even
the child advocate because that’s the child’s attorney. . . .
Id., at 8-9.
We agree insofar as Ms. Riddick testified that the Children wish to be
adopted. See id., at 17. Indeed, both the comment to Pa.R.J.C.P. 1128 and
§ 6351(e)(1) provide for the child’s absence, thereby allowing the juvenile
court to exercise its discretion in directing whether a child be present. Thus,
we discern no abuse of discretion and/or error of law by the court in denying
Mother’s request that the Children testify with respect to the goal change
proceeding.
With respect to the termination decrees, Mother contends that the
court’s “consultation with the child is important to complete the needs and
welfare analysis required” under § 2511(b). Mother argues that the court
abused its discretion in not permitting the Children to testify. During the
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hearing, Mother’s counsel sought to distinguish this Court’s decision in In re
B.L.L., 787 A.2d 1007 (Pa. Super. 2001), by stating that she would not be
seeking the Children’s preference by their testimony. See N.T., 1/10/17, at
6-7. The trial court disagreed and found that Mother’s counsel was effectively
seeking their preference. As such, the court denied her request for the
Children’s testimony pursuant to In re B.L.L. See id., at 7-9.
In In re B.L.L., this Court held that the trial court did not err in refusing
to schedule an additional hearing to allow the twelve-year-old female child to
testify regarding the involuntary termination of her mother’s parental rights.
We explained, “[i]n contrast to those which exist in custody or adoption
proceedings, there is no statutory requirement nor is there any Pennsylvania
appellate decision which permits or requires the testimony or preference by
the child to be placed on the record as an integral part of a termination
proceeding.” 787 A.2d at 1014. In fact, we concluded that In re Child M.,
681 A.2d 793 (Pa. Super. 1996), controlled, wherein this Court “specifically
refused to create . . . [the] requirement” that an abused or neglected child be
forced by his or her natural parent to testify in an involuntary termination
proceeding. Id., at 1011 (citing In re Child M., 681 A.2d at 798). And we
noted that the child’s legal interests are protected by representation of counsel
in involuntary termination proceedings pursuant to 23 Pa.C.S.A. § 2313(a).
Id., at 1013-1014.
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However, Mother contends on appeal that our Supreme Court’s plurality
decision in L.B.M. overturned In re B.L.L.. Specifically, Mother argues that
L.B.M. “supports the rule that children must be present at termination
proceedings. Undoubtedly, the best way to ascertain the child’s wishes is for
the child to be present to express them.” Mother’s Brief, at 15.
Contrary to Mother’s argument, L.B.M. does not require that a child be
present to express his or her preference during a contested involuntary
termination proceeding. In fact, the L.B.M. Court held that § 2313(a)
mandates that trial courts appoint counsel for the purpose of representing the
child’s legal interests, that is, his or her preferred outcome. Indeed, rather
than overturning our decision in In re B.L.L., the L.B.M. Court expressly
noted this Court’s decision for recognizing that a child’s legal interests are
protected by representation of counsel in termination of parental rights cases.
See L.B.M., 161 A.3d at 174 n. 3. Therefore, we reject Mother’s issue.
In her second issue, Mother argues that the trial court erred and/or
abused its discretion by admitting into evidence Ms. Riddick’s testimony that
the Children wish to be adopted, and that the oldest child, J.C.F., III, told her
that he felt he needed to help Mother.9 See N.T., 1/10/17, at 17, 43-44. Ms.
Riddick testified as follows.
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9Mother also asserts that Ms. Riddick’s testimony regarding the Children not
wanting to visit with Mother in early 2016, described below, is inadmissible
hearsay. Because Mother’s counsel did not object to this testimony, see N.T.,
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During the visit, [J.C.F., III,] would state [to] me that he felt that
he needed to help his Mom. If he was there with her, maybe, you
know, she would be more compliant with her mental health
treatment. That he was the one [who] potentially could save her.
And that he felt hopeless because he wasn’t around to help her
out.
Id., at 43-44. Nevertheless, Ms. Riddick testified that the Children wish to be
adopted. See id., at 17. Mother argues that the testimony was inadmissible
hearsay and prejudicial because the court relied upon it in ruling on the subject
petitions. We disagree.
When we review a trial court ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the
sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In addition,
for a ruling on evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party.
Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).
Pennsylvania Rule of Evidence 801 defines “hearsay” as a statement
that “(1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” Pa.R.E. 801(c).
In its Rule 1925(a) opinion, the trial court reasoned that the testimony
was properly admitted as an exception to the rule against hearsay, namely,
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1/10/17, at 36-37, the claim is waived, see, e.g., Harman ex rel. Harman
v. Borah, 756 A.2d 1116, 1124 (Pa. 2000) (“[I]n order to preserve an issue
for review, litigants must make timely and specific objections during trial….”).
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Pa.R.E. 803(3),10 as statements of the Children’s then-existing state of mind
or emotional condition. The court found that the Children’s statements
testified to by Ms. Riddick “were made in a natural manner and not under
suspicious circumstances.” Trial Court Opinion, 3/27/17, at 19. Upon careful
review of the relevant law as applied to the subject testimony, we discern no
abuse of discretion by the court. See Commonwealth v. Collins, 703 A.2d
418, 425 (Pa. 1997) (“Where the declarant’s out-of-court statements
demonstrate his or her state of mind, are made in a natural manner, and are
material and relevant, this Court has held that the statements may be
admitted”). Mother’s second issue fails.
In her third issue, Mother argues that, because DHS did not present
reliable evidence of the Children’s wishes, and the trial court did not allow the
Children to testify regarding their wishes, the court did not adequately
consider the Children’s needs and welfare under § 2511(b). We disagree.
With respect to that subsection, this Court has explained as follows.
Section 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,
Section 2511(b) does not explicitly require a 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
____________________________________________
10 “A statement of the declarant’s then-existing state of mind (such as motive,
intent or plan) or emotional, sensory, or physical condition (such as mental
feeling, pain, or bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the validity
or terms of the declarant’s will.”
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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; brackets in original).
The trial court found as follows with respect to subsection (b).
Mother and Children do not have a positive and healthy
relationship. During visits, Mother would upset the Children with
questions she knew would distress them. During telephonic
contact, Mother blamed the Children for their placement in foster
care, told them about her mental health hospitalizations, and lied
to them about being pregnant. Mother created false expectations
for the Children by making promises that she knew could not be
accomplished. At the same time, both [C]hildren are parentified
when it comes to Mother. Both Children expressed the desire to
take care of Mother and make sure she takes her medication. The
Children believed that Mother would be all right if they were there
to take care of her. . . . The relationship of Mother to Children is
similar to that of an aunt or older sister, rather than a parent. The
trial court heard testimony that the Children are more worried
about Mother than Mother is about Children. Children are twelve
and fourteen years of age and want to be adopted by the foster
parent. The Children would not suffer irreparable harm if Mother’s
parental rights were terminated. It is in the Children’s best
interest to be adopted by the foster parent who has cared for them
for at least the last fourteen months. . . . Consequently, the trial
court did not abuse its discretion when it found, by clear and
convincing evidence, that there was no parental bond and that
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termination of Mother’s parental rights would not destroy an
existing beneficial relationship.
Trial Court Opinion, 3/27/17, at 15-16 (citations to record omitted).
The testimony of Ms. Riddick and Tina Roberts, the CUA case aide who
supervised Mother’s visits with the Children, supports the court’s findings.
Their testimony reveals that Mother had supervised visits every Thursday from
4:00 p.m. to 6:00 p.m. See N.T., 1/10/17, at 35-36. However, since August
of 2016, Mother had only six visits with the Children. See id., at 61. Ms.
Riddick explained on cross-examination:
The visits were [at] the boys’ discretion. So, we went through a
period where neither [child] wanted to visit . . . starting early back
in 2016, based off of [Mother informing them of her] pregnancy.
. . . The boys just felt like they didn’t want to be bothered.
[Mother] would tell them things like, “I’m going to give you this.
I’m going to do” -- you know, a lot of promises.
And then . . . when they got to the visit, she wouldn’t follow up
with it. So, the boys did not want to visit. However, recently,
she’s given them . . . money -- more materialistic items to try to
get them to come.
Id., at 36-37.
Ms. Riddick and Ms. Roberts testified that the Children would not suffer
irreparable harm if Mother’s parental rights were terminated. See id., at 42,
64. Indeed, they testified that the Children’s bond with Mother is not healthy.
See id., at 42, 65. Ms. Roberts explained that they are “trying to be adults
instead of trying to be children to Mom.” Id., at 65. Ms. Riddick and Ms.
Roberts described the Children as “parentified” in that they feel the need to
help Mother be compliant with her mental health treatment. Id., at 43-44, 65.
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Further, Ms. Riddick testified that the Children “have a very good
relationship with their current foster parent.” Id., at 40. In fact, she testified
that the Children would suffer irreparable harm if removed from their foster
mother, who is a pre-adoptive resource. See id., at 17, 39. Thus, the
testimonial evidence supports the court’s conclusion that terminating Mother’s
parental rights will serve the Children’s developmental, physical, and
emotional needs and welfare pursuant to subsection (b). Mother’s third claim
fails.
Lastly, Mother argues that, because the court did not consult with the
Children pursuant to § 6351(e)(1), it did not adequately consider the
Children’s best interests. Therefore, Mother argues that the court erred and
abused its discretion in changing the Children’s goal to adoption. Based on our
disposition of Mother’s second issue on appeal, we reject this claim. Further,
we conclude that the foregoing testimonial evidence supports the goal change
orders. The evidence demonstrates that the Children had been dependent for
nearly two years at the time of the hearing, and Mother’s incapacity and
neglect continued to cause them to be without essential parental care
necessary for their physical and mental well-being. And they desired adoption.
Thus, we discern no abuse of discretion.
Accordingly, we affirm the decrees involuntarily terminating Mother’s
parental rights and the goal change orders.
Decrees and orders affirmed.
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President Judge Gantman joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/18
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