In the Int. of: J.L.W., Appeal of: C.S. ( 2021 )

J-S23017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.L.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.S., MOTHER :
:
:
:
: No. 706 EDA 2021
Appeal from the Order Entered March 25, 2021,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000275-2019.
IN THE INTEREST OF: J.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.S., MOTHER :
:
:
:
: No. 707 EDA 2021
Appeal from the Order Entered March 25, 2021,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-DP-0001660-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 1, 2021
C.S. (Mother) appeals the order granting the petition filed by the
Philadelphia Department of Human Services (DHS) to involuntarily terminate
her rights to her four-year-old daughter, J.L.W. (Child), pursuant to the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S23017-21
Adoption Act. See 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). After review,
we affirm.1, 2
The record discloses the relevant factual and procedural history: DHS
became involved with Child’s case in June 2017 after receiving a report that
the family lived in a “hoarder house” with deplorable conditions.3 Mother,
Father, and Child were found wearing soiled clothing; and the home smelled
of cat urine because the family owned nine cats, which apparently had also
caused a flea infestation. There were also allegations that Mother had mental
health issues, and that the parents abused drugs - though they were in a
methadone treatment program. Child was removed from the home and
ultimately adjudicated dependent in July 2017.
The dependency court placed Child in the care of M.M. (Foster Mother).
The court ordered Mother to achieve certain goals to aid with reunification.
The goals were: to secure safe and appropriate housing and demonstrate the
ability to maintain appropriate living conditions; to establish herself as the
____________________________________________
1 N.W. (Father) voluntarily relinquished his parental rights.
2 Although Mother appealed from both the termination docket and the
dependency docket, she only challenges the court’s decision to terminate her
rights. She does not challenge the court’s decision to change to goal of the
dependency proceedings from reunification to adoption. Given our disposition
of the termination appeal, any appeal from the dependency docket would have
been moot in either event.
3 DHS had previously been involved with Mother in June 2014, when she tested
positive for benzodiazepines and methadone during the birth of Child’s sibling.
The court terminated Mother’s parental rights regarding this sibling in
December 2016.
-2-
J-S23017-21
payee of her Social Security Benefit in order to control her own finances; to
attend and comply with substance abuse treatment and provide drug screens;
to attend visitations with Child; and to attend and fully comply with mental
health treatment.
By June 2018, Mother had moderately complied with the reunification
plan, and the court allowed Mother to exercise an unsupervised visit with Child
each week, in addition to her two supervised visits. However, Mother had yet
to obtain appropriate housing, notwithstanding the supports DHS put in place.
And she had yet to take the necessary steps to designate herself as the payee
of her SSD benefit. In July 2018, Psychologist Erica Williams completed a
parenting capacity evaluation of Mother. Dr. Williams concluded that Mother
did not demonstrate the capacity to provide safety and permanency to Child.
Dr. Williams recommended Mother obtain and maintain appropriate housing;
develop and implement a sustainable financial plan; and participate in
substance abuse treatment and mental health treatment.
Mother’s compliance remained moderate throughout 2018 and into
2019, but reunification was still inappropriate due to Mother’s inability to
ensure Child could live in safe housing. In April 2019, DHS filed petitions to
terminate Mother’s rights and change the goal of the dependency proceedings
from reunification to adoption. The court conducted a termination hearing
over the course of three dates: November 1, 2019; September 14, 2020; and
-3-
J-S23017-21
March 25, 2021.4 The court ultimately granted the petition filed by DHS and
terminated Mother’s rights. Mother timely filed this appeal, wherein she
presents two issues for our review:
1. Whether the trial court committed reversible error, when
it involuntarily terminated Mother’s parental rights where
such determination was not supported by clear and
convincing evidence under the Adoption Act, 23
Pa.C.S.A. § 2511(a)(2), (5), and (8).
2. Whether the trial court committed reversible error when
it involuntarily terminated Mother’s parental rights
without giving primary consideration to the effect that
the termination would have on the developmental,
physical and emotional needs of [Child] as required by
the Adoption Act, 23 Pa.C.S.A. § 2511(b).
Mother’s Brief at 8.
We review these issues mindful of our well-settled standard of 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
____________________________________________
4 At the conclusion of testimony on November 1, 2019, it was apparent that
the court would need to schedule another day to complete the hearing. With
the onset of the Covid-19 Pandemic and the judicial emergency it created, the
next hearing date did not occur until September 14, 2020. However, upon
the receipt of that September transcript, the trial court realized the
transcription was inaccurate and that the testifying witnesses were
misidentified. The court then held a third day of testimony, on March 25,
2021, in order to recreate the record from September 14, 2020. See Trial
Court Opinion, 5/3/21, at n.1.
-4-
J-S23017-21
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 quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Instantly, the trial court terminated Mother’s parental rights pursuant
to Section 2511(a)(2), (5), (8), and (b).5 We need only agree with the
orphans’ 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). Moreover, we may uphold a termination decision if any
proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201(Pa.
Super. 2000) (en banc).
____________________________________________
5 The trial court denied the request of DHS to terminate Mother’s rights under
Section 2511(a)(1).
-5-
J-S23017-21
Mother’s first appellate issue corresponds with the specific grounds for
termination under Section 2511(a). Her second appellate issue concerns the
second element of the bifurcated termination analysis under Section 2511(b).
We begin our discussion with a review of the first prong of the termination
analysis under Section 2511(a). As we need only to agree with the trial court
as to one subsection of Section 2511(a), we analyze whether DHS properly
established grounds under Section 2511(a)(2). That section provides in
relevant part:
(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.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In
re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted). The
grounds for termination are not limited to affirmative misconduct, but concern
-6-
J-S23017-21
parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108, 1117
(Pa. Super. 2010). Parents are required to make diligent efforts toward the
reasonably prompt assumption of full parental duties. Id.Here, Mother essentially concedes DHS established the first two steps
of the Section 2511(a)(2) analysis. She argues the trial court erred because
there was no evidence of her present incapacity. See Mother’s Brief at 15.
She explains she had completed most of her reunification goals, and that her
housing goal was the only outstanding task. She contends further that she
had established a bank account and was actively accruing savings to secure
appropriate housing. See id.However, the court determined that Mother’s inability to make progress
on this housing goal was indicative of her inability to parent. Notably, Mother’s
failure to provide safe housing was what caused of Child’s removal in the first
place. Throughout the dependency case, Mother had made progress on other
fronts, but never on her housing goal. At the termination hearing, DHS elicited
testimony from Dr. Williams, who explained why Mother’s lack of progress was
problematic:
DHS: If you were to learn there were no changes
in the condition of the home, why would you
be concerned?
Dr. Williams: It ends up being two-fold. So the original
concern that [Child] was not safe but also
now given DHS involvement, [Agency]
involvement, intervention, awareness of the
problem, if this problem remains static since
the time that they became involved, which I
believe [Child] was removed over two years
-7-
J-S23017-21
ago at this point, it would be a concern that
even with additional support the problem
wasn’t remedied.
N.T., 11/1/19, at 15
When Mother’s rights were ultimately terminated nearly a year and a
half after this testimony, in March 2021, Mother had yet to make progress.
She had allegedly been on a cusp of securing new housing multiple times
during the case, but to no avail. For instance, Mother went to a shelter, but
did not remain beyond the intake meeting after learning that she would not
be permitted to take nail clippers and a crochet needle. See N.T., 3/25/21, at
14-15. Instead, Mother chose to remain in the home from which Child was
removed. This home was owned by the paternal grandfather, but Mother
indicated that he would not let her clean up the home even though she paid
rent. Mother also refused to allow DHS caseworkers from seeing the state of
the home, explaining to them that the condition had not changed. Despite
the multitude of supports put in place, Mother had taken no steps to remedy
the principal reason for Child’s removal – ensuring that Child would be able to
live in a safe and secure dwelling.
Importantly – and contrary to Mother’s position on appeal – the trial
court’s decision was not based entirely on the lack of housing. For instance,
it was unclear whether Mother had sole control of her finances. Although
Mother eventually designated herself as the payee of her SSD benefit, at the
time of the termination hearing, another individual besides Mother had access
to Mother’s bank account. Thus, it was far from certain that Mother had taken
-8-
J-S23017-21
the necessary steps to plan for Child’s financial care, nor could it be said that
Mother was actively accruing funds to find new housing.
The trial court’s concerns did not stop there. The court also had
outstanding questions about Mother’s sobriety and her ability to address her
mental health. While Mother’s negative screens suggested that she
maintained her sobriety – at least through the first day of the termination
hearing in November 2019 – DHS and the Foster Mother shared apprehensions
that Mother was still using illicit drugs. In one instance, during a virtual visit
with Child in August 2020, Mother’s speech was slurred, she seemed to fall
asleep on the call, and she was unresponsive to efforts trying to wake her.
Foster Mother testified that she thought Mother was under the influence of
drugs. The trial court found this testimony from the Foster Mother to be
credible, considering her background as a nurse who worked with individuals
struggling with addiction.
Moreover, the court was not satisfied that Mother had accomplished her
mental health objective. Mother had a history of childhood trauma, a
diagnosis for bipolar disorder, and a history of suicide attempts. Dr. Williams
testified that, without mental health treatment, Mother could not be a stable
parent. See N.T., 11/1/19, at 23-24. While Mother partook in some mental
health treatment relating to anxiety and depression, Dr. Williams was
concerned that this treatment did not touch upon Mother’s specific needs –
Dr. Williams explained that Mother needed to address her own trauma and
Post-Traumatic Stress Disorder. The concern was that the treatment Mother
-9-
J-S23017-21
did receive was insufficient to help Mother remedy her parental incapacity.
Even then, it was unclear whether Mother consistently participated in the
treatment that she was receiving. Id. at 22-23.
Given the totality of these circumstances, the trial court determined
Mother’s parental incapacity persisted, and that she would not or could not
remedy the same. Thus, the court found DHS established grounds to
terminate Mother’s rights under Section 2511(a)(2). We conclude the record
supports that decision.
It was not the case that Mother had merely left some minor reunification
objectives unfulfilled while addressing the root cause of Child’s removal. In
fact, the opposite appears true. While Mother complied with certain aspects
of her reunification plan, the court determined Mother could not, or would not,
address the underlying causes of Child’s removal. This determination was not
manifestly unreasonable; thus we discern no abuse of discretion. Because we
agree with the court’s decision under Section 2511(a)(2), we need not address
Mother’s appeal insofar as it relates to the other Section 2511(a) grounds for
termination. See In re B.L.W., 843 A.2d at 384.
Having established the first prong of the termination analysis, we turn
now to the second. In her second appellate issue, Mother argues the trial
court abused its discretion when it found that termination best served Child’s
needs and welfare. Section 2511(b) provides:
(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
- 10 -
J-S23017-21
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(b).
This Court has explained that:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of
a bond between a parent and child, it is reasonable to infer
that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63
(Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
- 11 -
J-S23017-21
bond to be too attenuated). We add, the court is not required to use expert
testimony to resolve the bond analysis but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.
2010). Finally, we emphasize that “[w]hile a parent’s emotional bond with
her and/or her child is a major aspect of the § 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.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citation omitted).
In her second appellate issue, Mother argues DHS “failed to produce
evidence that a bond does not exist” between Mother and Child. See Mother’s
Brief at 17. Mother also cites the testimony of the case manager, who
described the happy relationship between Mother and Child as a bond. See
id. at 17-18 (citing N.T., 3/25/21, at 31). Mother concludes this meant the
bond was substantial and worth preserving. Id. at 18.
However, trial court found that the relationship between Mother and
Child, though loving, was more akin to a sibling relationship than a parental
one. A typical visit was more like a play date, than anything else. The court
heard testimony that, while Child enjoyed playing and visiting with Mother,
Child clearly viewed Foster Mother as her source of parental support. For that
reason, the court determined that Child would not suffer irreparable harm
from the termination of Mother’s rights. After all, by the time the court
terminated Mother’s rights, Child had lived with Foster Mother for
approximately three and a half of her four years.
- 12 -
J-S23017-21
Upon review, we first note that the petitioner in termination cases need
not produce evidence suggesting the absence of a parental bond, as Mother
argues. Insofar as the parental bond is analyzed under Section 2511(b), we
are mindful that bonds are not always worth preserving. See K.Z.S., 946 A.2d
at 764. And if there is no evidence of a bond between the parent and child, it
is reasonable to infer that none exists. Id. at 762-63. Here, to the extent that
Child has a well-adjusted relationship with Mother, the same is the result of
Foster Mother’s parental care. Although Mother is appropriate with Child, and
although Child is content to play with Mother, this must not be conflated with
the sort of worthwhile, parental bond contemplated by our case law.
Semantics aside, even if Mother and Child shared a “parental” bond, the record
supports the trial court’s conclusion that the bond was not worth preserving.
Foster Mother is the only parent Child has ever truly known. She is the source
of Child’s emotional support and security. And thus the court did not err when
it determined that termination of Mother’s rights would best serve Child,
pursuant to Section 2511(b).
In sum, we conclude the record supports termination under Section
2511(a)(2) and (b). The court did not err or otherwise abuse its discretion
when it determined that Mother could not remedy the incapacity which led to
Child’s removal, pursuant to Section 2511(a)(2). As such, we need not
address the trial court’s findings under Section 2511(a)(5) and (8). We also
conclude the court did not err or otherwise abuse its discretion when it found
no bond was worth preserving under Section 2511(b).
- 13 -
J-S23017-21
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2021
- 14 -