In the Int. of: A.M.-D.J., a Minor ( 2021 )

J-S25001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.-D.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.F., MOTHER :
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:
: No. 950 EDA 2021
Appeal from the Order Entered April 13, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000365-2020
IN THE INTEREST OF: K.S.A.J., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
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APPEAL OF: K.F., MOTHER :
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: No. 954 EDA 2021
Appeal from the Order Entered April 13, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000366-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: Filed: September 9, 2021
K.F. (Mother) appeals from the orders, entered April 13, 2021, that
granted the petitions filed by the Philadelphia Department of Human Services
(DHS) to involuntarily terminate Mother’s parental rights to A.M.-D.J. (Child
1) (born in January of 2016) and K.S.A.J., Jr. (Child 2) (born in January of
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* Retired Senior Judge assigned to the Superior Court.
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2017) (collectively Children) pursuant to Sections 2511(a)(2), (5), (8), and
(b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, and to change the
permanency goal from reunification to adoption under the Juvenile Act, 42
Pa.C.S. § 6351.1 We affirm.
The trial court provided the following facts and relevant history of this
matter with regard to subsection 2511(a)(2), stating:
Children have been involved with DHS since May 25, 2018, when
a validated GPS [General Protective Services] report stated that
Father left the Children unattended at a food market for about an
hour. This report was not the first GPS report involving Mother.
Mother had prior DHS history dating back to 2016; when Mother
tested positive for drugs during her pregnancy with Child 1. DHS
also received a CPS [Child Protective Services] report on May 25,
2018, naming both parents perpetrators of medical neglect for
missing medically-needy Child 2’s specialist appointments.
Mother’s SCP [Single Case Plan] objectives remained substantially
the same throughout the life of the case. Mother’s objectives were
to: attend drug and alcohol treatment at Consortium, for individual
therapy, group therapy, and methadone services; participate in
supervised visits with Children; attend both Children’s medical
appointments; [l]earn medical training for Child 2’s medical
conditions; complete a PCE [Parenting Capacity Evaluation] and
recommendations, then be reevaluated once all recommendations
were completed; complete therapy through JFK[, a therapy
provider,] regarding the PCE recommendations, and medication
management; provide proof of employment and stable income;
provide stable housing; complete a parenting course; and
complete random drug screens. Mother was aware of her
objectives, as the CUA [Community Umbrella Agency] Case
Manager made Mother aware of her objectives by mail, in person,
and during supervised visits. Mother testified to reviewing the SCP
when it was presented to her.
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1By per curiam order of this Court, dated May 24, 2021, Mother’s appeals
were consolidated. See Pa.R.A.P. 513. Children’s father is not a party to this
appeal.
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Mother did complete a PCE in January 2019. The recommendations
were incorporated into Mother’s SCP objectives. Mother was to be
reevaluated once the initial PCE recommendations were
completed, but the addendum never occurred because Mother did
not complete the recommendations. The mental health therapy
recommendation suggested that Mother’s therapy address her
distortions in thinking and behaviors that contributed to the
minimization and rationalization of her role in the Children’s out-
of-home placement. It was also recommended that Mother’s
therapy address her history of domestic violence victimization and
the impact this had on prior decisions. The PCE also recommended
that Mother’s treatment develop a plan to increase future parenting
capacity, including financial and/or employment, housing, and
psychoeducation on appropriate parenting styles and child
development, with resources to be provided. A copy of the PCE
was provided to Mother’s therapist. Since being assigned to the
case in 2019, the CUA Case Manager did not receive any treatment
plan or progress reports, despite court orders and CUA requests.
The CUA Case Manager requested these documents from both
Mother’s treatment providers and Mother directly. The CUA Case
Manager also requested Mother sign release forms for the records
as well. Mother testified that she had signed releases “numerous
times” but had not explained to the CUA Case Manager why she
had not provided the documents. By the time of the termination
trial, the CUA Case Manager testified that Mother was not still
addressing the therapeutic needs outlined in the PCE and SCP. The
CUA Case Manager testified that Mother received individual and
group therapy at Consortium, but Consortium had indicated they
could not accept Mother on everything the PCE recommended. JFK
was identified as an alternate treatment provider. Mother self-
referred to the provider but did not attend for her PCE-
recommended individual therapy. Mother attended JFK for
medication management and a psychiatric evaluation, not
individual therapy as instructed. Mother completed a psychiatric
evaluation in January 2020. The evaluation recommended mental
health therapy, but [M]other did not follow through. Mother
testified to being on the waitlist for mental health and domestic
violence treatment at JJPI and stated she would be starting within
three weeks of the termination trial. The PCE was completed in
January 2019, and a psychiatric evaluation was completed in
January 2020. When asked why there was a delay in receiving the
recommended treatment, Mother claimed she was unaware she
needed to complete the recommendations. The recommendations
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were incorporated into Mother’s SCP, of which Mother was aware
and testified to reviewing. The CUA Case Manager testified that
Mother completed approximately half of the PCE
recommendations.
Mother was also to avail herself to CEU [Clinical Evaluation Unit]
for random drug screens and monitoring. Throughout the 34-
month life of the case, the CUA Case Manager had [a] record of
Mother attending one random screen at CEU. The CUA Case
Manager had [a] record of some random screens from Mother’s
treatment at Consortium. The CUA Case Manager was aware of
Mother’s engagement with methadone maintenance treatment
through Consortium, but was unaware of Mother's dosage.
Consortium did not provide the CUA Case Manager with a
treatment plan or progress report, as requested. The CUA Case
Manager requested Mother supply the records, but Mother did not
do so, nor did she explain why she could not provide the records.
CEU also had issues obtaining records from Consortium. Obtaining
records regarding Mother’s drug treatment was a consistent issue
since the CUA Case Manager was assigned in 2019, despite court
orders and repeated requests. Ultimately[,] the trial court found
that there were no validated records to indicate whether Mother
was engaging with her drug and alcohol objective, or if she had
completed the objective.
Mother had referrals to ARC [Achieving Reunification Center] for
parenting, housing, and employment programming. Mother did
complete a regular parenting course in April 2019. However, the
CUA Case Manager received a letter from ARC stating that Mother’s
referral was closed in November 2020 for unsuccessful parent
engagement. Mother did not complete employment or housing
programming through ARC. Upon the CUA Case Manager’s last
contact with Mother in January 2021, Mother reported receiving
unemployment benefits but never provided proof of these benefits.
The CUA Case Manager was not able to complete a home
assessment since being assigned in 2019. Mother has lived at the
same address with Maternal Grandfather since the CUA Case
Manager’s assignment in 2019. The CUA Case Manager requested
both Mother and Maternal Grandfather avail themselves for a home
assessment and clearances, but neither complied with the request.
Mother would schedule a meeting to do the home assessments but
did not keep the appointments[] and would cancel while the CUA
Case Manager was on her way to the appointment. The CUA Case
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Manager also attempted to do pop-up visits, but was still
unsuccessful in having contact with Mother.
Mother did not obtain medical training for Child 2’s medical needs,
and only attended one medical appointment for each Child
throughout the life of the case. Mother was made aware of all
medical appointments by CUA, as well as CHOP’s [Children’s
Hospital of Philadelphia] database. The CUA Case Manager
testified that Mother had not attended any medical appointments
since they were assigned to the case in 2019. Child 2 has a G-
tube. Mother is aware of Child 2’s G-tube but did not obtain the
necessary medical training. CHOP was hesitant to provide the
training unless reunification would happen within three months, as
they did not want her to lose the training. The CUA Case Manager
spoke with a supervisor at CHOP and they agreed to do the
training. By the time of the termination trial, Mother had not
obtained any medical training for Child 2’s special medical needs.
Trial Court Opinion (TCO), 6/14/2021, at 10-13 (citations to the record
omitted). The court further discussed the fact that “Mother never graduated
beyond supervised visitation with Children.” Id. at 13. Thus, the court
concluded that because of Mother’s incapacity to parent, termination under
subsection (a)(2) was proper.
DHS filed the petitions seeking to involuntarily terminate Mother’s
parental rights and to change Children’s permanency goals from reunification
to adoption on October 22, 2020. The termination hearing took place on April
13, 2021, by virtual means. Mother attended the hearing and provided
testimony. DHS presented the testimony of Britney Fisher, the CUA Case
Manager. Additionally, Barbara Berry, the child advocate, informed the court
that due to their age, neither child understands the ramifications between
reunification and adoption. Ms. Berry also explained that a paternal uncle,
who lives in Georgia, has had visitation with Children and is a possible
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adoption resource. At the conclusion of testimony, the court announced its
decision to terminate Mother’s parental rights and change Children’s goals to
adoption.
Mother filed her appeals and her Pa.R.A.P. 1925(b) concise statements
of errors complained of on appeal.2 Mother now presents the following issues
for our review:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, K.F.[,] pursuant to 23
Pa.C.S.[] section[] 2511(a)(1)[,] where Mother presented
evidence that she tried to perform her parental duties.
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, K.F.[,] pursuant to 23
Pa.C.S.[] section[] 2511(a)(2)[,] where Mother presented
evidence that she has remedied her situation by maintaining
housing, taking parenting classes and intensive drug treatment
and mental health counselling[,] and has the present capacity to
care for her child.
3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, K.F.[,] pursuant to 23
Pa.C.S.[] section[] 2511(a)(5)[,] where evidence was provided to
establish that the child was removed from the care of … Mother
and Mother is now capable of caring for her child.
4. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, K.F.[,] pursuant to 23
Pa.C.S.[] section[] 2511(a)(8)[,] where evidence was presented
to show that Mother is now capable of caring for her children after
she completed parenting classes, secured and maintained
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2 Mother’s appeals and her concise statements were filed pro se although the
trial court had appointed new counsel to represent Mother for these appeals.
By order of the trial court, the newly appointed attorney was directed to file a
supplemental 1925(b) statement, which was accomplished in a timely
manner.
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housing[,] and continues in her dual diagnosis drug and mental
health treatment programs.
5. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, K.F.[,] pursuant to 23
Pa.C.S.[] section[] 2511(b)[,] where evidence was presented that
established the children had a close bond with their Mother and
they had lived with their Mother for … most … of their lives.
Additionally, Mother maintained that bond by visiting with her
children when she was permitted to visit them.
Mother’s brief at 7.3
We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a trial
court has granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision the
same deference that we would give to a jury verdict. We must
employ a broad, comprehensive review of the record in order to
determine whether the trial court’s decision is supported by
competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that “[t]he
standard of clear and convincing evidence is defined as testimony that 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.’”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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3 We recognize that Mother has not raised any issues related to the changing
of Children’s goals from reunification to adoption.
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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., 855 A.2d 68, 73-74 (Pa. Super. 2004). If
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).
Mother’s issues pertain to Section 2511 of the Adoption Act, which
governs the termination of parental rights and requires a bifurcated analysis.
In addressing her claims, we are guided by the following:
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) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
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Instantly, the trial court terminated Mother’s parental rights pursuant to
Sections 2511(a)(2), (5), (8), and (b).4 We need only agree with the trial
court as to any one subsection of Section 2511(a), as well as Section 2511(b),
in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, we analyze the court’s decision to terminate under Section
2511(a)(2) and (b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
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4 Although DHS requested the court terminate Mother’s rights under Section
2511(a)(1), (2), (5), (8) and (b), the court ordered the termination pursuant
to Section 2511(a)(2), (5), (8) and (b). Therefore, Mother’s first issue that
addresses Section (a)(1) is immaterial to the case.
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23 Pa.C.S. § 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.[ ] §
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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
Relative to Section 2511(a)(2), Mother argues that although she may
not have evidenced the capacity to care for Children in the past, she presently
has the capacity to do so. Specifically, Mother contends that she “completed
her … goals of parenting classes, visitation, drug treatment, mental health
treatment and medication management.” Mother’s brief at 17. She further
asserts that she visited Children when permitted at the agency, that she
continued her drug and mental heath treatment, and that all her drug screens
were negative. Mother also indicates that she “has housing[] and can now
provide a safe home for herself and her [C]hildren.” Id.- 10 -
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Our inclusion of the portion of the trial court’s opinion in this
memorandum provides the facts relied upon by the court to conclude that DHS
met its burden relating to Section 2511(a)(2). Furthermore, based upon our
review of the record, it is evident that the court’s findings are supported by
the evidence presented. Moreover, its conclusion that Mother has not, and
cannot, provide Children with the essential parental care, control and
subsistence necessary for their mental and physical well-being, and that
Mother is unable to remedy the causes of her parental incapacity, neglect or
refusal are not in error. Thus, the statutory grounds for termination under
Section 2511(a)(2) were met by DHS and Mother is not entitled to relief.
Having resolved that grounds for termination existed under Section
2511(a)(2), we now proceed to the second part of the analysis under
subsection (b). In reviewing the evidence in support of termination under
Section 2511(b), our Supreme Court 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.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “intangibles 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. 1992)],
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.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). With respect to the bond analysis
pursuant to Section 2511(b), the Court explained, “the mere existence of a
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bond or attachment of a child to a parent will not necessarily result in the
denial of a termination petition.” Id. “Common sense dictates that courts
considering termination must also consider whether the children are in a
preadoptive home and whether they have a bond with their foster parents.”
Id. at 268 (citation omitted). Moreover, in weighing the bond considerations
pursuant to Section 2511(b), “courts must keep the ticking clock of childhood
ever in mind. Children 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.
Mother argues that evidence must be presented concerning the effect
that the termination of the parental rights would have on the children. She
contends that “subsection 2511(b) requires consideration of the development
and emotional needs of the children.” Mother’s brief at 20. Specifically, she
avers that Children lived with her for the first part of their lives and that they
have a bond with Her. Therefore, she believes that she “should have been
provided with supervised visits outside of the caretakers homes so that she
could continue to have consistent visitation with her children.” Id.
Again, we conclude that the record supports the trial court’s decision to
terminate Mother’s parental rights pursuant to subsection (b). In its opinion,
the trial court stated the following with regard to this subsection:
Mother has not been consistent or compliant with her visitation
with Children for the life of the case. Mother never graduated
beyond supervised visitation with Children. Child 1’s foster parent
informed the CUA Case Manager that Mother visited Child 1 two
to three times since January 2021. Mother visited Child 2 three
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to four times since January 2021. The CUA Case Manager testified
that Mother was more consistent with visitation when the visits
were supervised at the agency, but once they [became]
supervised by the caregivers, her visits became more sporadic.
Both Children’s foster parents reported to the CUA Case Manager
that they would attempt to contact Mother through phone calls
and text messages to set up visits, but Mother was not compliant
in actually attending visits with Children. Once the COVID-19
pandemic began, Mother was offered virtual visits but was still not
compliant. An outcome specialist from CUA would go to Mother’s
home to assist Mother with virtual visitation, but those visits
stopped when Mother stopped answering the outcome specialist’s
phone calls. Mother claimed she was inconsistent with visitation
due to conflicting schedules and other people not answering her
contact attempts. The CUA Case Manager reported that Mother
did not consistently avail herself to CUA, and Mother admitted this
in her own testimony. Mother would reportedly cancel visits and
meetings thirty-minutes prior to their scheduled time. The CUA
Case Manager could not speak with Mother about the visitation
issue, as Mother did not consistently avail herself. The CUA Case
Manager testified that Mother has positive interactions with both
Children. However, … Children share a primary parental
relationship with their resource parents, not Mother. The CUA
Case Manager testified that Mother has a limited relationship with
her Children due to sporadic visitation and does not have a
parental bond with Children. Both Children look to their resource
parents to meet their needs. Child 2 has particular medical needs.
Mother is aware of these needs but has not taken the necessary
steps to obtain medical training to safely parent Child 2. The CUA
Case Manager was aware of Mother attending only one of Child
2’s medical appointments throughout the thirty-four month life of
the case. The CUA Case Manager testified that no irreparable
harm would be done by terminating Mother’s parental rights to
either Child. While Mother has positive interactions with both
Children, there is not a parental bond present. Children have been
in care for thirty-four months. Because there is no apparent or
beneficial parental bond to preserve, it is in Children’s best
interest to terminate Mother’s parental rights and so be freed for
adoption. Due to Mother’s noncompliance and lack of consistent
participation in visitation, Mother has not created a parental bond
with either Child. The record establishes by clear and convincing
evidence that termination would not sever an existing and
beneficial relationship between Mother and Children. The trial
court also [explored] whether there was a need to appoint TPR
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legal counsel for Children. There was no conflict in the child
advocate representing both legal and best interests due to the
immaturity of Children and Child 2 being nonverbal. Child 1 is five
years old and Child 2 is four years old. Neither Child was able to
understand the difference between reunification and adoption.
The trial court’s termination of Mother’s parental rights to Children
under 23 Pa.C.S.[]. § 2511(b) was proper and there was no error.
TCO at 21-22 (citations to the record omitted).
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Children’s needs and
welfare, and the absence of a parental bond with Mother, we discern no error
or abuse of discretion in the court’s determinations under Section 2511(b).
See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012). Accordingly,
we affirm the orders terminating Mother’s parental rights to Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/21
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