In the Int. of: J.E.J., Jr., Appeal of: E.M. ( 2019 )

J. S21033/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.E.J., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: E.M., MOTHER : No. 3379 EDA 2018
Appeal from the Order Entered October 24, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-DP-0001123-2015
IN THE INTEREST OF: D.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.M., MOTHER : No. 3387 EDA 2018
Appeal from the Order Entered October 24, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-DP-0001124-2015
IN THE INTEREST OF: M.L.J., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: E.M., MOTHER : No. 3415 EDA 2018
Appeal from the Order Entered October 24, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-DP-0002740-2016
IN THE INTEREST OF: J.E.J., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: E.M., MOTHER : No. 3416 EDA 2018
J. S21033/19
Appeal from the Decree Entered October 24, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-AP-0000585-2018
IN THE INTEREST OF: D.J. , A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.M., MOTHER : No. 3440 EDA 2018
Appeal from the Decree Entered October 24, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-AP-0000586-2018
IN THE INTEREST OF: M.L.J., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: E.M., MOTHER : No. 3442 EDA 2018
Appeal from the Decree Entered October 24, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-AP-0000587-2018
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 14, 2019
E.M. (“Mother”) appeals from the October 24, 2018 decrees entered in
the Court of Common Pleas of Philadelphia County, Family Court Division,
involuntarily terminating her parental rights to her dependent children,
J.E.J., Jr., male child, born in March 2013 (“Child 1”); D.J., male child, born
in May 2014 (“Child 2”); and M.L.J., female child, born in November 2016
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(“Child 3”) (collectively, the “Children”), pursuant to the Adoption Act,
23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).1 After careful review, we
affirm.
The trial court set forth the following:
[Philadelphia Department of Human Services
(“DHS”)] became involved with this family on May 12,
2014 when DHS received a General Protective
Services (“GPS”) report which alleged that Mother and
Child 2 tested positive for marijuana at the time of
Child 2’s birth []; Child 2 was born at 35 weeks
gestation and weighed six pounds and one ounce;
Child 2 was in the well-baby nursery with an
anticipated discharge date of May 13, 2014; Mother
did not have a history of substance abuse treatment
and denied any mental health diagnoses; Child 2’s
Father[Footnote 2] was a support for Mother and
resided in the home; Mother had obtained baby
supplies; Mother was prepared to care for Child 2;
Mother and Father were unemployed; Child 1 resided
in the home and was in the care of Paternal
Grandmother at the time; Mother and Father did not
have a visitation and/or custody agreement for
Child 1. This GPS report was substantiated. On
May 13, 2014, DHS received a supplemental report,
which alleged that Mother would not be residing at the
address previously provided to the hospital; Mother
would be discharged from the hospital on May 13,
2014, but Child would not be discharged until May 14,
2014, after his lab reports were completed. On
May 30, 2014, In-Home Services (“IHS”) were
implemented by the Community Umbrella Agency
(“CUA”) for the family. Mother subsequently entered
Caton Village’s inpatient drug and alcohol treatment
1Pursuant to Pa.R.A.P. 513, this court sua sponte consolidated these appeals
because they involve related parties and issues. (Order of court, 12/27/18.)
We further note that even though Mother filed notices of appeal of the
October 24, 2018 orders that changed each child’s goal to adoption, Mother
does not challenge the goal-change orders in this appeal.
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program with Child 1 and Child 2. CUA later learned
that Caton Village staff had concerns regarding
Mother’s ability to care for Child 1 and Child 2 due to
her untreated mental illness.
[Footnote 2] Father is not involved in this
appeal.
On July 2, 2014, an initial Single Case Plan (“SCP”)
was created. Mother’s objectives were to work with
housing specialists at Caton Village to complete the
housing package; remain at Caton Village until she
was successfully discharged; comply with the program
rules and submit clean drug tests; attend parenting
classes at Caton Village as well as outside resources;
attend Parent Cafes to enhance parenting skills; and
attend all mental health appointments.
On December 16, 2014, Mother, Child 1, and Child 2
began residing at Bridges transitional housing and
Mother was to attend intensive outpatient treatment.
CUA later learned that in late December 2014, Mother
was written up by Bridges’ staff for lack of food in the
home and poor hygiene of Child 1 and Child 2.
Subsequently, Mother informed CUA that she, Child 1,
and Child 2 were leaving Bridges on January 3, 2015,
and would be residing with a family friend (“Friend”).
Mother provided CUA with Friend’s address. On
January 3, 2015, DHS visited the home of Friend but
there was no answer. Between January 3, 2015, and
January 23, 2015, DHS made several unsuccessful
attempts to visit the family.
On January 20, 2015, the SCP was revised. Mother’s
objectives were to work on completing applications for
housing agencies; remain at Chances until she was
successfully discharged; comply with the program
rules and submit clean drug tests; attend Parent Cafes
to enhance parenting skills; comply with Assessment
and Treatment Alternatives (“ATA”) recommendations
from the parenting capacity evaluation (“PCE”);
attend all mental health appointments; complete her
application for the Community College of Philadelphia
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(“CCP”); and follow all necessary steps to begin
school.
On January 28, 2015, CUA visited Friend’s home, met
with the family, and completed a home evaluation.
Mother showed CUA the room where she stated that
Child 1 and Child 2 slept, and CUA learned that Mother
resided in the basement of the home. CUA observed
that the basement was cluttered and cold, with two
exposed hot water heaters. On February 1, 2015,
CUA learned that Child 1 and Child 2 were sleeping in
the basement with Mother. CUA advised Mother that
it was unsafe for the children to continue sleeping
there.
On February 16, 2015, Friend contacted CUA and
stated that she no longer wanted the family to reside
in her home. On February 17, 2015, CUA visited
Friend’s home. Mother stated that she did not want
to enter the shelter system with her family and Friend
agreed that the family could remain in the home until
alternate housing was located.
On February 24, 2015, CUA made an unscheduled
visit to Friend’s home. CUA learned that Mother was
noncompliant with outpatient drug and alcohol
treatment and that she was not engaging in mental
health treatment. Mother denied that Child 1 and
Child 2 were sleeping in the basement; however, at
every home visit, Mother and the children had been
located in the basement. CUA discussed the
importance of making the children and herself
available for weekly meetings with Mother and she
gave CUA multiple excuses as to why she had not
been available.
On March 8, 2015, DHS observed Mother, Child 1, and
Child 2 entering a home with known drug activity. On
March 9, 2015, DHS visited the home. An unknown
female answered the door and stated that Mother was
sleeping upstairs. The woman left to retrieve Mother;
however, she returned and stated that Mother was no
longer in the home. On the same day, Maternal
Grandmother contacted CUA and stated that Mother
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did not reside at that home and that Mother was only
visiting friends at that location. Maternal
Grandmother provided CUA with a current address for
Mother.
On March 9, 2015, CUA visited Mother, Child 1, and
Child 2 at their new residence. CUA learned that the
home belonged to Maternal Great-Grandmother, who
was not present at the meeting. CUA observed that
the home was appropriate for the children and that
they appeared safe. Mother denied living at the other
home, despite CUA advising her that she had been
observed using house keys to unlock the door and
entered the home. CUA informed Mother that she
needed to re-engage with outpatient services and
discussed safe sleeping for the children. CUA
reminded Mother of the team meeting scheduled for
the following day. On March 10, 2015, Mother failed
to attend the CUA team meeting. CUA made
numerous unsuccessful visits to Maternal
Great-Grandmother’s home. Maternal Great-
Grandmother denied access to the home, but stated
that family continued to reside in the home.
On May 5, 2015, an adjudicatory hearing was held for
Children. Mother was present for this hearing. CUA
had been unable to assess Child 1 and Child 2’s safety
since March 9, 2015; Mother has a history of drug use;
Mother last attended Chances outpatient treatment
program in late December 2014; Mother has been
diagnosed with depression and post-traumatic stress
disorder (“PTSD”), but was not engaged in mental
health treatment; and Mother lacked stable housing.
The trial court adjudicated Child 1 and Child 2
dependent and committed the children to DHS.
Mother was referred to the Clinical Evaluation Unit
(“CEU”) for a dual diagnosis assessment, a forthwith
drug screen, and monitoring. Mother was also
referred to the Achieving Reunification Center (“ARC”)
for life skills and parenting. Mother was ordered to
complete a PCE.
On August 25, 2015, a permanency review hearing
was held for Child 1 and Child 2. Mother was not
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present for this hearing. It was reported that Mother
had been released from prison and Mother had not
been in contact with DHS or the agency worker. The
trial court referred Mother to the CEU for a forthwith
drug screen, an assessment, and three random drug
screens prior to the next court date.
On September 17, 2015, the SCP was revised.
Mother’s objectives were to work on completing
applications for housing agencies; attend the CEU for
an assessment; follow all recommendations from the
CEU; complete three random drug screens; attend
Parent Cafes to enhance parenting skills; comply with
ATA recommendations from the PCE; attend ARC for
parenting, housing, and employment services; attend
weekly supervised visitation with Child 1 and Child 2;
attend BHS for an assessment and follow
recommendations; complete the application for CCP;
and follow all steps necessary to begin school.
On November 24, 2015, a permanency review hearing
was held for Child 1 and Child 2. Mother was present
for this hearing. It was reported that Mother was
minimally compliant with the permanency plan. The
trial court re-referred Mother to the CEU for a
forthwith drug screen, a dual diagnosis assessment,
monitoring, and three random drug screens prior to
the next court date.
On February 22, 2016, a permanency review hearing
was held for Child 1 and Child 2. Mother was present
for this hearing. The trial court referred Mother to the
CEU for a forthwith drug screen, monitoring, and three
random drug screens. The trial court also referred
Mother for a PCE. Mother’s forthwith drug screen was
positive for marijuana and creatinine was 91 mg/dl.
On March 22, 2016, Mother failed to attend the
scheduled CEU assessment.
On May 8, 2016, the SCP was revised. Mother’s
objectives were to work on completing applications for
housing agencies; attend the CEU for an assessment;
follow all recommendations of the CEU; complete
three random drug screen; comply with ATA
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recommendations from the PCE; attend ARC for
parenting, housing, and employment services; attend
weekly supervised visitation with Child 1 and Child 2;
attend BHS for an assessment and follow their
recommendations; and to complete the application for
CCP.
On May 17, 2016, a permanency review hearing was
held for Child 1 and Child 2. Mother was present for
this hearing. The trial court referred Mother to the
CEU for a dual diagnosis assessment, a forthwith drug
screen, and three random drug screens. Mother’s
forthwith drug screen was positive for marijuana. On
June 7, 2016, Mother did not attend the scheduled
CEU assessment.
On August 9, 2016, a permanency review hearing was
held for Child 1 and Child 2. Mother was not present
for this hearing. It was reported that Mother was
non-compliant with the permanency plan and Mother
missed six scheduled visits with Child 1 and Child 2
since the last court date. The trial court discharged
the commitment to DHS and ordered DHS to
supervise. The trial court reunified the children with
Father.
On November 17, 2016, Mother gave birth to Child 3.
On November 19, 2016, DHS received a GPS report
regarding Child 1 and Child 2 while they were in
Father’s care. On December 2, 2016, DHS visited the
home where Mother, Father, and Children were
present. Father indicated that Mother and Child 3
began residing in the home following their discharge
from the hospital in November. Child 1 and Child 2
were suffering from impetigo, but their rashes
appeared to be healing. DHS observed that the home
was somewhat dirty, but Mother and Father had
obtained the necessary infant supplies for Child 3.
On December 8, 2016, a permanency review hearing
was held for Child 1 and Child 2. Mother was present
for this hearing. It was reported that Mother was
noncompliant with the permanency plan. Mother had
not completed the PCE and had not complied with the
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CEU. The trial court ordered DHS supervision of
Child 1 and Child 2 to stand and ordered DHS to
obtain an Order of Protective Custody (“OPC”) with
police to assist if necessary for all children. On the
same day, DHS obtained an OPC and placed Children.
On December 9, 2016, a shelter care hearing was held
for Children. Mother was present for this hearing. The
trial court lifted the OPC, ordered Child 3’s temporary
commitment to DHS to stand, discharged Child 1 and
Child 2’s temporary commitment, and recommitted
Child 1 and Child 2 to DHS. Mother was referred to
the CEU for a forthwith drug and alcohol screen, a dual
diagnosis assessment, and three random drug and
alcohol screens prior to the next court date. Mother
tested positive for marijuana at her forthwith drug
screen.
On December 15, 2016, an adjudicatory hearing was
held for Child 3. Mother was not present for this
hearing. The trial court adjudicated Child 3
dependent, discharged the temporary commitment,
and fully committed Child 3 to DHS. The trial court
referred Mother to the CEU for a dual diagnosis
assessment, a full drug and alcohol screen, and three
random drug and alcohol screens prior to the next
court date. Mother was also ordered to comply with
the PCE and all SCP objectives and recommendations.
On February 28, 2017, a permanency review hearing
was held for Children. Mother was present for this
hearing. It was reported that Mother was minimally
compliant with the permanency plan and Mother had
been discharged from ARC for non-compliance. The
trial court ordered Mother to comply with the PCE and
to re-schedule the PCE forthwith. Mother was also
re-referred to ARC. Mother tested positive for
marijuana at the forthwith drug screen.
On March 1, 2017, the SCP was revised. Mother’s
objectives were to work on completing applications for
housing agencies; attend the CEU for an assessment;
follow all the CEU recommendations; complete three
random drug screens; complete the ARC parenting
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class; and to attend BHS for an assessment and follow
the recommendations. On May 15, 2017, Mother
tested positive for marijuana.
On May 23, 2017, a permanency review hearing was
held for Children. Mother was present for this hearing.
It was reported that Mother was non-compliant with
the permanency plan. Mother was referred to ARC for
parenting and housing but did not comply; Mother was
referred to the CEU for a dual diagnosis assessment
and did not comply; Mother was referred for a PCE,
but did not comply; Mother’s supervised visitation
with Children was inconsistent; and Mother was
non-compliant with all SCP objectives and
recommendations. The trial court referred Mother to
the CEU for a dual diagnosis assessment, a forthwith
drug and alcohol screen, and three random drug
screens prior to the next court date. The trial court
also ordered Mother to comply with the scheduled PCE
on May 31, 2017 as well as all SCP objectives and
recommendations.
On August 15, 2017, a permanency review hearing
was held for Children. Mother was present for this
hearing. It was reported that Mother was
non-compliant with the permanency plan and Mother
had not attended the scheduled PCE. The trial court
re-referred Mother for a PCE and to the CEU for a
forthwith drug screen, a dual diagnosis assessment,
and three random drug screens prior to the next court
date. Mother’s visits with Children were suspended.
On August 18, 2017, the SCP was revised. Mother’s
objectives were to obtain stable housing; work on
completing the applications for housing agencies;
attend the CEU for an assessment, follow all
recommendations, and complete three random drug
screens; complete the ARC parenting class; and to
attend BHS for an assessment and follow all
recommendations.
On November 14, 2017, a permanency review hearing
was held for Children. Mother was not present for this
hearing. It was reported that Mother had been
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non-compliant with the permanency plan. The trial
court re-referred Mother to the CEU for a drug screen,
an assessment, and three random drug screens, when
she availed herself.
On December 7, 2017, and January 8, 2018, the SCP
was revised. Mother’s objectives were to obtain stable
housing; work on completing applications for housing
agencies; attend the CEU for an assessment, follow all
recommendations, and complete three random drug
screens; complete an ARC parenting class; and attend
BHS for an assessment and follow all
recommendations.
Child 1 and Child 2 have been in DHS care [and] have
been since May 5, 2015, and Child 3 has been in DHS
care since December 8, 2016. Mother has failed to
consistently comply with her objectives and comply
with court orders throughout the life of the case.
Mother has also failed to demonstrate that she is able
to safely and appropriately care for Children. Mother’s
visits were suspended in August 2017 and the visits
have never been re-instated due to Mother’s failure to
engage with her objectives. DHS filed a petition to
involuntarily terminate Mother’s parental rights and
change Children’s permanency goal to adoption on
July 18, 2018.
On October 24, 2018, the trial court, presided by
Judge Joseph Fernandes, held the termination and
goal change trial for Children.[Footnote 3] Mother
was present for this trial. Mother’s Former Counsel
stipulated to the facts of the termination and goal
change petitions, but not to the veracity. Children
were appointed termination legal counsel that
reported to the trial court that Children were not
mature enough or could not verbalize their wishes to
provide an opinion as to whether they wanted to be
adopted or reunified with Mother. The trial court
found clear and convincing evidence to change the
permanency goal to adoption and to involuntarily
terminate Mother’s parental rights under 23 Pa.C.S.A.
§2511(a)(1), (2), (5), (8) and (b). On November 20,
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2018, Former Counsel filed this appeal on behalf of
Mother.[2]
[Footnote 3] In 2018, multiple
continuances were granted. On
February 13, 2018, the matter was
continued because Mother’s Former
Counsel was not available. On May 1,
2018, the matter was continued because
the Assistant City Solicitor was not
prepared to move forward with the
scheduled termination proceedings. On
July 31, 2018, after the filing of the
petitions, the matter was continued
because there was insufficient service to
Mother. The trial court granted the
continuance and referred Mother to the
CEU for a full drug and alcohol screen,
dual diagnosis assessment, monitoring,
and three random drugs screens prior to
the next court date, when she availed
herself. The trial court also indicated that
Mother’s visits were to remain suspended
until she engaged in her objectives.
Trial court opinion, 1/9/19 at 2-8 (citations to notes of testimony omitted).
Mother raises the following issues for our review:
1. Whether the trial court committed reversible
error when it involuntarily terminated
[M]other’s parental rights where such
determination was not supported by clear and
convincing evidence under the adoption at, [sic]
23 [Pa].C.S.A[.] § 2511(a)(1)(2)(5) and (8)[?]
2. Whether the trial court committed reversible
error when it involuntarily terminated
[M]other’s parental rights without giving
2We note that the record reflects that when Mother filed her timely notices of
appeal, she simultaneously filed statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i). Thereafter, the trial court filed its
Rule 1925(a)(2)(ii) opinion.
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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)[?]
3. Whether the trial court erred because the
evidence was overwhelming and undisputed
that [M]other demonstrated a genuine interest
and sincere, persistent, and unrelenting effort
to maintain a parent-child relationship with her
child[?]
Mother’s brief at 7.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “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. “[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial
court’s decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to believe
all, part, or none of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.,
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855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f competent
evidence supports the trial court’s findings, we will affirm even if the record
could also support the opposite result.” In re Adoption of T.B.B., 835 A.2d
387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511,
the court must engage in a bifurcated process prior to
terminating parental rights. 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). We have
defined clear and convincing evidence as that which 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.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
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Here, the trial court terminated Mother’s parental rights pursuant to
Sections 2511(a)(1), (2), (5), and (8), as well as (b). We have long held that,
in order to affirm a termination of parental rights, we need only agree with
the trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the trial court’s termination decrees 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
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initiated subsequent to the giving of notice of
the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(2).
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 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015),
quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [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.” In re A.L.D., 797
A.2d at 340 (internal quotation marks and citations omitted).
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Here, Mother claims that the trial court abused its discretion in
terminating her parental rights under Section 2511(a)(2) because she “has
worked towards completing her SCP goal of housing, visitation, mental health
and parenting classes”; she has started mental health treatment and “began
parenting”; she failed to complete drug and alcohol counseling “because it
conflicted with her work schedule”; and she visited regularly with the Children,
“provided that she had transportation.” (Mother’s brief at 14.) The trial court,
however, explained that it terminated Mother’s parental rights under
Section 2511(a)(2), because:
[t]hroughout the time that the [C]hildren have been
in the custody of DHS, Mother’s SCP objectives were
to attend the CEU, complete a PCE, obtain housing,
complete a behavioral health assessment, and attend
supervised visits with Children. Mother admitted that
these were her SCP objectives and Mother
participated in two SCP meetings at the agency.
Mother tested positive for marijuana on six occasions
between 2016 and 2018. Mother also failed to appear
for a scheduled assessment at the CEU on March 16,
2017 and August 15, 2018. On May 22, 2017, the
CEU tentatively recommended that Mother would
benefit from intensive outpatient dual diagnosis
treatment. Mother has not engaged in any drug
treatment throughout the life of the case. Mother
failed to appear for random drug screens on August 9,
2018, September 5, 2018, and October 19, 2018.
Mother admitted that that her drug of choice is
marijuana and that she should not be using
marijuana. Mother has failed to engage in a dual
diagnosis program. Mother admitted that she never
entered drug and alcohol treatment and claimed it was
because the treatment conflicted with her work
schedule. Mother never completed a PCE, even
though she was referred on five different occasions.
DHS made arrangements to transport Mother, but
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Mother never availed herself for the PCE. Mother
never completed housing or parenting at the ARC.
Although Mother was referred on several occasions,
Mother only completed the intake at the ARC, but she
never returned. Mother never provided an address for
CUA to assess. Mother claimed that she had housing,
but CUA refused to assess the home. Mother testified
that since July 2018, she is currently living with a
relative, but she is trying to move into a shelter.
Mother does not have stable housing. Mother also
claimed that she completed a parenting class through
a shelter, but she did not have any documentation.
Mother was unable to provide CUA with any
information about her mental health treatment.
Mother claimed that she engaged in mental health
[treatment], but she did not provide any
documentation. Mother’s visits with Children have
been suspended since August 2017 due to Mother’s
failure to engage in drug and alcohol, mental health
treatment, and exhibiting behavior that poses a safety
threat to Children. Prior to the suspension of her
visits, Mother was not consistent with the weekly
supervised visits with Children. Mother was never
able to graduate beyond weekly supervised visits due
to her unstable housing, continued drug use, and lack
of mental health treatment. Mother claimed that she
was consistent with her visits, although she did admit
that there were times that she was unable to attend
the scheduled visits. Mother has been minimally
compliant with her goals. Children need permanency,
which Mother cannot provide. Mother has
demonstrated that she is unwilling to remedy the
causes of her incapacity to parent in order to provide
Children with essential parental care, control, or
subsistence necessary for his physical and mental
well-being.
Trial court opinion, 1/9/19 at 11-12 (citations to notes of testimony omitted).
We conclude that the record supports the trial court’s factual findings
and that the trial court did not abuse its discretion in terminating Mother’s
parental rights under Section 2511(a)(2). The record demonstrates that the
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conditions that existed upon removal establish repeated and continued
incapacity, abuse, neglect, or refusal of Mother that caused the Children to be
without essential parental care, control, or subsistence necessary for his
physical or mental well-being. The record also supports the trial court’s
conclusion that Mother continued to lack capacity to parent the Children.
We now turn to whether termination was proper under Section 2511(b).
As to that section, our supreme court has stated as follows:
[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.[A.] § 2511(b). The
emotional needs and welfare of the child have been
properly interpreted to include “[i]ntangibles 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. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
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When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[c]ommon 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.”
T.S.M., 73 A.3d at 268. The court directed that, in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
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Here, Mother contends that the trial court abused its discretion when it
terminated her parental rights under Section 2511(b) because she “should be
given therapeutic visits and or Parent Child Interactive therapy so that she
could continue to progress and have visitation with the [Children].” (Mother’s
brief at 16.) Mother’s argument ignores the primary consideration under
Section 2511(b), which is the developmental, physical, and emotional needs
and welfare of the Children, not Mother’s needs and welfare.
Mother also claims that the trial court erred in terminating her parental
rights under Section 2511(b) because the Children’s wishes were never taken
into account. (Mother’s brief at 16.) This contention is also unavailing. The
record reflects that at the time of the termination hearing on October 24,
2018, Child 1 was 5 years of age; Child 2 was 4 years of age; and Child 3 was
23 months old. Appointed legal counsel for the Children informed the trial
court that Child 1 “likes where he is” and “seems happy to be where he is”
and that he never asked about Mother, but responded affirmatively when
asked if he misses Mother. (Notes of testimony, 10/24/18 at 119.) Appointed
legal counsel opined that due to Child 1’s age, his preferred outcome could
not be ascertained. (Id. at 120.) Appointed counsel further informed the trial
court that Child 2 and Child 3 were not capable of “verbaliz[ing] anything.”
(Id.) Therefore, because the record demonstrates that the Children were too
young to express a preference, Mother’s contention that the trial court erred
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in terminating her parental rights under Section 2511(b) for failure to take
their wishes into consideration lacks merit.3
In terminating Mother’s parental rights under Section 2511(b), the trial
court explained that:
Mother’s visits with Children have been suspended
since August 2017 due to Mother’s failure to engage
in drug and alcohol, mental health treatment, and
exhibiting behavior that poses a safety threat to
Children. Prior to the suspension of her visits, Mother
was not consistent with the weekly supervised visits
with Children. Mother was never able to graduate
beyond supervised visits due to her unstable housing,
continued drug use, and lack of mental health
treatment. Mother claimed that she was consistent
with her visits, although she did admit that there were
times that she was unable to attend the scheduled
visits. Mother has never inquired about participating
in Children’s specialized services or their medical
appointments. Mother has never contacted CUA to
inquire about Children’s well-being. Mother has been
minimally compliant with her goals. As the record
reflects, at the time of the termination trial, Mother
has not put herself in a position to safely parent these
Children. Children are currently placed together in the
same foster home. Child 1 is currently doing well in
his pre-adoptive foster home with early intervention
services. Child 1 is bonded with the foster parent and
the foster parent ensures that Child 1 receives his
early intervention services and meets his day-to-day
needs. Child 1 and Child 2 have been living in the
3 Our supreme court has held that it is appropriate for a guardian ad litem to
represent a child’s best and legal interests simultaneously in a parental rights
termination proceeding when that child is too young to express a preference.
In re T.S., 192 A.2d 1080, 1088 (Pa. 2018) (expressly affirming that “where
a child is too young to express a preference, it would be appropriate for the
GAL to represent the child’s best and legal interests simultaneously.”).
Despite the young ages of the Children in this case, the trial court appointed
a guardian ad litem to represent the Children’s best interests and counsel to
represent their legal interests. (See notes of testimony, 10/24/18, passim.)
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foster home together and are bonded. It would be
disruptive and detrimental to Child 1 if he were
removed from this foster home. Child 2 is placed in
the same foster home as Child 1. The foster parent
ensures that Child 2 attends pre-school and receives
his early intervention services. The foster parent
provides for Child 2’s day-to-day needs. Child 2 views
the foster parent as his parental figure. Child 3 has
lived in foster care for her entire life. Child 3 entered
into the same placement as Child 1 and Child 2 a few
days prior to the termination trial. Child 3 has looked
to her current and previous foster parent to meet her
day-to-day needs. It is in Children’s best interest to
be adopted and for Mother’s parental rights to be
terminated. The record establishes by clear and
convincing evidence that termination would not sever
an existing and beneficial relationship with Mother.
Any relationship with Mother is very attenuated.
Mother has not seen Children since August 2017. The
DHS witness was credible.
Trial court opinion, 1/9/19 at 18-19 (citations to notes of testimony omitted).
Based upon our review of the record, we find no abuse of discretion and
conclude that the trial court appropriately terminated Mother’s parental rights
under Sections 2511(a)(2) and (b).
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/19
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