In the Int. of: S.S.F., Appeal of: S.F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.S.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.F., MOTHER :
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: No. 493 EDA 2020
Appeal from the Order Entered January 9, 2020,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000305-2018.
IN THE INTEREST OF: S.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: S.F., MOTHER :
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:
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: No. 494 EDA 2020
Appeal from the Order Entered January 9, 2020,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0002362-2013.
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 09, 2020
In this consolidated matter, S.F. (Mother) appeals from the order
involuntarily terminating her rights to her seven-year-old son S.S.F. (Child),
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* Retired Senior Judge assigned to the Superior Court.
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pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8)
and (b).1 Mother also appeals the decision to change the goal of the
dependency proceedings from reunification to adoption pursuant to the
Juvenile Act. See 42 Pa.C.S.A. § 6351. After review, we affirm.
The relevant history is as follows. Mother gave birth to Child in 2012.
At that time, Mother was 15 years old and already involved with Philadelphia
Department of Human Services (DHS). In November 2013, Mother told her
case manager that she was overwhelmed, and she expressed that she might
hurt herself or Child. The court removed Child from Mother’s care and
adjudicated Child dependent in December 2013.
After approximately 18 months of reunification services, including
mental health treatment, the court ordered reunification in June 2015, with
certain conditions. Mother’s progress continued, and the court discharged
DHS supervision and the dependency petition by January 2016.
In August 2016, DHS received a report that Child was not safe. Mother
and Child had been residing at a facility for mothers and young children under
a court order. Mother told the facility staff that Child ingested a cleaning
product. Child received medical attention and appeared healthy. However,
in September 2016, Mother expressed that she could not care for Child and
wanted the former foster mother to adopt Child. The court adjudicated Child
dependent for a second time and removed Child from Mother’s care.
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1 The court also terminated the parental rights of the unknown father.
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Mother evidently vacillated in her desire to relinquish her parental rights.
The dependency case proceeded with concurrent reunification and adoption
goals. Although Mother was offered unsupervised visitation, she was
inconsistent with her visits throughout 2017. By January 2018, Mother
appeared ready to relinquish her rights, but in February 2018, Mother changed
her mind.
The dependency case proceeded for approximately two more years,
during which time Mother was mostly non-compliant with her permanency
goals. In December 2019, DHS re-filed its petition to involuntarily terminate
Mother’s rights. The court held a hearing on January 9, 2020. By this point,
Child was 7 years old. The court granted the petition and terminated Mother’s
rights under Section 2511(a)(1), (2), (5), (8) and (b). Furthermore, the court
ordered that the “new permanent placement goal” be designated to
“adoption,” notwithstanding the fact that goal of the dependency proceedings
was concurrent reunification with adoption. See Order of Court, 1/9/20, at 1.
Mother timely-filed this appeal.
She presents the following issues for our review:
1. Did the trial court err in terminating [Mother’s]
parental rights under 23 Pa.C.S.A. § 2511(a)(1), (2),
(5) and (8)?
2. Did the trial court err in finding that termination of
Mother’s parental rights best served [Child’s]
developmental, physical and emotional needs under
23 Pa.C.S.A. § 2511(b)?
3. Did the trial court err in changing [Child’s] goal to
adoption?
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Mother’s Brief at 4.
We review these claims mindful of our well-settled standard or review:
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of fact
and credibility determinations of the trial court if they are
supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court’s
decision, however, should not be reversed merely because
the record would support a different result. We have
previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotations marks
omitted).
Termination of parental rights is governed by Section 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.
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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) (citation
and quotation marks omitted).
In this case, the court terminated Mother’s parental rights pursuant to
Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the court
as to any one subsection of 2511(a), as well as Section (b), in order to affirm.
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We begin with
the first prong of the termination analysis under Section 2511(a). Specifically,
we analyze the court’s decision under Section 2511(a)(2).
(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.
23 Pa.C.S. § 2511(a)(2).
Regarding Section 2511(a)(2), we have explained:
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,
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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.
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) (citations,
internal quotation marks, and indentation omitted).
Regarding Section 2511(a)(2) analysis, Mother limits her argument to
the third element. She summarily contends she satisfied her housing, mental
health treatment, and employment goal, and thus she concludes that
remedied the conditions that caused Child to be without parental care. See
Mother’s Brief at 12-13.
In its Pa.R.A.P. 1925(a) opinion, the court thoroughly explained why it
reached the opposite determination:
Throughout the time that Child has been in DHS custody,
Mother’s SCP [(Single Case Plan)] objectives were to
cooperate with CUA [(Community Umbrella Agency)]
services; mental health; housing; complete random drug
screens; participate in Child’s medical appointments;
complete a bonding and parenting capacity evaluation; and
visitation. On multiple occasions throughout the life of the
case, the trial court advised Mother of her objectives. SCPs
are also mailed out to Mother after each revision.
Since July 2019, CUA has not known the status of Mother’s
compliance with her mental health objective. As part of
Mother’s mental health objective, Mother is to participate in
therapy and medication management. In July 2019, Mother
informed a counselor at the Wedge[, a service provider,]
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that she did not want CUA to know the status of her
treatment. Mother also refused to sign consent forms to
allow CUA to monitor her mental health treatment. Mother
claimed that she did not refuse to sign consent forms and
signed the forms last year. Mother has not permitted CUA
to assess her home since before July 2019. Mother has not
provided CUA with her lease. When CUA spoke with
Mother’s landlord, the landlord indicated that Mother did
have a lease, but it was not up-to-date. CUA is unaware of
the occupants of the home, other than Mother. CUA has not
been able to establish if Mother’s current home is
appropriate and safe for Child.
Following the permanency review hearing on July 15, 2019,
Mother was ordered to complete a forthwith drug screen and
three random drug screens. Mother failed to complete
either the forthwith drug screen or any of the random drug
screens. Mother has not participated in any of Child’s
medical or dental appointments. Although Child is receiving
mental health care, Mother has not made any attempts to
contact Child’s provider.
Mother has not completed either the bonding or the
parenting capacity evaluations. Both evaluations require
access to documentation of Mother’s mental health
treatment history and Mother refused to sign the necessary
consents for either evaluation to be completed. Since
Mother failed to sign the necessary consents, CUA was
unable to refer Mother to the bonding or parenting capacity
evaluations. Mother claimed she was never asked to attend
either a bonding or parenting capacity evaluation.
At the permanency review hearing on July 15, 2019, Mother
was ordered to attend supervised visits with Child once a
week for two hours. Mother has not attended a visit with
Child since June 25, 2019. Mother has not made any
attempts to visit with Child since the last visit she attended.
Mother has failed to contact CUA or the visitation coach to
schedule a visit with Child. Between July 2019 and August
2019, there were seven scheduled supervised visits, but
Mother did not attend any of those visits. At trial, Mother
claimed she called the CUA case manager and the visitation
coach on multiple occasions to schedule visit[s], but never
heard back. At the permanency review hearing on October
7, 2019, the trial court reduced Mother’s supervised
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visitation to biweekly after Mother failed to attend any visits
with Child since the previous review hearing.
Throughout much of the life of this case, Mother was a
minor. Mother’s board extension for her dependency matter
was discharged [in] June [] 2018.[2] CUA made multiple
referrals for Mother to attend ARC for employment, but CUA
is unaware if Mother has appropriate employment because
Mother has been uncooperative. Mother stated that she
works two jobs in home health care. When asked about
paystubs, Mother claimed that she could not find the
paystubs that would verify her employment.
Since July 2019, Mother has not availed herself and has
been unwilling to cooperate with CUA. CUA has not had any
contact with Mother since July 23, 2019. Since the
permanency review hearing on October 7, 2019, CUA has
attempted to make outreach to Mother on at least 12
occasions. Mother claimed she has never received any
contact from the CUA case manager, either via telephone or
mail. Additionally, Mother claimed that she did not avail
herself to CUA because individuals from CUA were abusing
her. Mother asserted that the visitation coach became
physically violent with Mother and that she was protecting
herself by not availing herself to CUA. Mother presented no
evidence to substantiate her claims.
Although Mother maintained some level of compliance
throughout the time that Child re-entered DHS care in 2017,
Mother’s compliance with her objectives has diminished.
Mother has been non-compliant with her objectives as of
October 7, 2019. Child needs permanency, which Mother
cannot provide. The conditions and causes of Mother’s
incapacity cannot or will not be remedied by Mother. Child
was originally adjudicated dependent on December 5, 2013.
Child returned to Mother’s care on June 12, 2015, but was
adjudicated dependent again on September 22, 2016. Child
has been in DHS care for a total of fifty-seven months since
he first entered care and thirty-nine months consecutively
since the most recent adjudication. Mother’s refusal to
engage in her SCP objectives remains a barrier to
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2Evidently, Mother’s own dependency was extended until she reached 21
years of age.
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reunification and renders Mother unable to provide essential
parental care, control, and subsistence necessary for
Child[‘s] physical and mental well-being. The DHS
witnesses were credible. Termination under 23 Pa.C.S.A. §
2511(a)(2) was proper.
Trial Court Opinion (T.C.O.), at 16-18 (citations to the record omitted)
(formatting altered) (footnote added).
Beyond citations to her own testimony, Mother cites neither the record,
nor relevant legal authority to refute these findings. Mother’s argument
depends on whether the court found Mother’s testimony more credible than
the testimony of DHS witnesses. As we stressed above, we do not second-
guess the orphans’ court’s credibility determinations so long as they are
supported by the record. See In re T.S.M., 71 A.3d at 267. Moreover,
appellate courts “are not in a position to make close calls based on fact-specific
determinations,” particularly in juvenile cases where the lower court judge,
who presides over multiple hearings with the same parties, possesses “a
longitudinal understanding of the case.” See In re R.J.T., 9 A.3d 1179, 1190
(Pa. 2010). We conclude the court did not abuse its discretion when it
determined DHS satisfied all three elements of the Section 2511(a)(2)
analysis.
Having concluded that termination was warranted under Section
2511(a), we address whether termination best served Child’s needs and
welfare under Section 2511(b). Regarding this portion of the analysis, we have
previously stated:
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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 our analysis. While a
parent’s emotional bond with his or her child is a major
aspect of the section 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).
Parental rights may be terminated notwithstanding the existence of a
parent-child bond. When examining the effect upon a child of severing a bond,
courts must examine whether termination of parental rights will destroy a
“necessary and beneficial relationship,” thereby causing a child to suffer
“extreme emotional consequences.” In re E.M., 620 A.2d 481, 484-85 (Pa.
1992).
Instantly, Mother concedes that she had not visited with Child “for a
period of time[.]” See Mother’s Brief at 17. However, she argues that Child
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had previously expressed a desire to return to Mother’s care, and she
concluded that she and Child have a loving relationship which benefits him.
Id.The trial court disagreed. Again, we observe the trial court’s explanation
of why it found termination was warranted:
Child is currently placed in a pre-adoptive foster home.
Child’s behavior has been of concern, including display of
defiance, impulsivity, and showing a flat affect. On multiple
occasions, Child would appear happy in one moment and
then immediately disassociate. Since Child’s placement in
the current foster home approximately six months prior to
the termination and goal change trial, Child has been
observed communicating more openly, engaging with the
foster family, beginning to smile, laughing, and joking.
Child is the only child in the foster home. The foster home
hosted a birthday party for Child [in] November 2019. It
was observed that many extended family members
attended the birthday party and Child interacted with those
family members. Child is regularly in contact with the
extended family members. Foster Mother has been
assisting in bringing Child to medical appointments. Child’s
relationship with Foster Mother has been growing in a
positive manner. Child refers to Foster Mother as either
“Miss T” or “Mom.” Foster Mother has not heard from
Mother since July 2019. Although Child has behavioral
issues, none of his issues appear to be rooted from not
seeing Mother since June 2019. Child does not share a
positive, health[y] maternal relationship with Mother. Child
would not suffer any irreparable harm if Mother’s parental
rights were terminated.
[Child’s legal counsel] represents Child’s legal interests.
Legal Counsel spoke with Child, a seven-year-old boy,
regarding his wishes. Legal Counsel expressed that there
was difficulty communicating with Child because he was
slow to warm up to others, although Legal Counsel made
progress after they read a book together. Child stated that
he wants to remain in his current foster home. Legal
Counsel was not able to discuss Child’s wishes regarding
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adoption. Legal Counsel originally began representing
Child’s legal interests when a previous petition for
involuntary termination and goal change was filed in 2018.
In 2018, Child expressed his desire to be reunified with
Mother, but as of Legal Counsel’s most recent visit with
Child, Child’s desires have changed.
Child is under twelve years old, and at this age under the
Adoption Act, his consent to adoptions is not required.
Consequently, the fact that Legal Counsel was not able to
discuss his wishes as to adoption is not detrimental to giving
more weight to Child’s preference to remain in his current
foster home in light of the record establishing that Mother
has not visited since June 25, 2019. As a result, the trial
court determined that Mother and Child share no parental
bond. [….] The DHS witnesses were credible. The trial
court’s termination of Mother’s parental rights to Child under
23 Pa.C.S.A. § 2511(b) was proper and there was no error
of law or an abuse of discretion.
T.C.O. at 25-27 (citations omitted) (formatting altered).
In our review, we agree with the trial court’s determination. Although
the bond analysis is “a major aspect of the Section 2511(b) best interest
analysis, it is nonetheless only one of many factors to be considered by the
[orphans’] court when determining what is in the best interest of the child.”
In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation omitted). The
question is not whether a bond exists, but whether termination would destroy
a necessary and beneficial bond. See In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010). “[I]n cases where there is no evidence of any bond between
the parent and child, it is reasonable to infer that no bond exists.” In re
Q.R.D., 214 A.3d 233, 243 (Pa. Super. 2019) (citation omitted). Moreover,
“[c]ommon sense dictates that courts considering termination must also
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consider whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.” T.S.M. 71 A.3d at 268.
Here, while Mother did not cooperate with a formal bonding evaluation,
we do not ignore the relationship between Mother and Child, if only from
observing the Child’s age and placement history. As Mother notes, Child
sought to return to Mother’s care as recently as 2018. But the mere existence
of a bond – if that is what this case indicates – is not the end of the analysis.
Once a bond between parent and child is detected, the court “must consider
the effect of severing that bond on the child before concluding whether
termination is proper.” See, e.g., In re: Adoption of R.J.S., 901 A.2d 502,
511-512 (Pa. Super. 2006).
The record supports the court’s decision that Child would not suffer any
adverse effect as a result of severing the relationship between Mother and
Child. During the final six months of the dependency case, Mother refused to
visit Child; meanwhile, Child turned to foster mother for necessary support
and began identifying her as his parental figure. In the foster mother’s care,
Child’s behavior improved, evincing the positive effects the placement had on
his development. Moreover, Mother’s Brief provides no substantial argument
regarding how the court abused its discretion, nor does she provide any
support as to how she and Child share a healthy, beneficial relationship
beyond her contention that Child previously desired to return to her care in
2018. Mother does not contest that Child now desires to remain with the
foster mother. And in the foster mother’s care, Child’s needs for security and
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stability are finally being met. We conclude the court did not abuse its
discretion when it determined termination best served Child’s needs and
welfare.
Having concluded that termination was proper, we briefly address
Mother’s third and final appellate issue. In her Brief, Mother claims the court
erred when it changed the permanency goal from reunification to adoption.
Although this claim appears in Mother’s concise statement of errors
complained of on appeal (Pa.R.A.P. 1925(b)), as well as her statement of
questions involved (Pa.R.A.P. 2116(a)), Mother evidently decided to abandon
the issue on appeal. She does not address the issue at all in the argument
section of her brief, in contravention of Pa.R.A.P. 2119. We conclude Mother
waived this issue. See In re R.D., 44 A.3d 659 (Pa. Super. 2012); see also
In re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007) (When the appellant has
failed to preserve the issues for appeal, the issues are waived, and the lower
court’s order is more properly ‘affirmed.’”).3
Orders affirmed.
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3 Even accepting for the sake of argument that Mother did not waive this issue,
we would conclude that it is moot in light of our decision to affirm the court’s
termination order. See Interest of D.R.-W., 227 A.3d 905, 917 ((Pa. Super.
2020) (“An issue before a court is moot if in ruling upon the issue the court
cannot enter an order that has any legal force of effect”) (citation omitted);
see also Interest of J.L., 216 A.3d 233, 237 (Pa. Super. 2019) (“[A]n actual
case or controversy must exist at all stages of the judicial process, or a case
will be dismissed as moot.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/20
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