In the Int. of: A.O., Appeal of: D.A.K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.O., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.A.K., MOTHER :
:
: No. 346 EDA 2018
Appeal from the Decree and Order Entered December 19, 2017
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0001023-2017
CP-51-DP-0002549-2016
BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2018
D.A.K. (Mother) appeals from the decree entered December 19, 2017,
in the Court of Common Pleas of Philadelphia County, which terminated
involuntarily her parental rights to her minor son, A.O. (Child), born in March
2012.1 Mother’s notice of appeal also challenges the order purportedly
changing Child’s permanency goal to adoption. We affirm.
In November 2016, Philadelphia Department of Human Services, Child
and Youth Division (DHS) filed a dependency petition alleging the following
facts: (1) it had become involved with the family in September 2016, after
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
1The parental rights of Child’s putative father were terminated on March 13,
2018. Child’s putative father did not file an appeal or participate in Mother’s
appeal.
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receiving a report that Mother was non-compliant with her methadone
program, Mother had tested positive for cocaine, Mother was inconsistent
with taking her mental health medication, and it was unknown who cared for
then four-year-old Child while Mother used drugs; (2) while DHS was trying
to ascertain the whereabouts of Mother and Child, DHS received a second
report in October 2016 that Mother and Child were living in a boarding house
and Mother used cocaine in front of Child; (3) DHS located Mother and Child
in a different location, and Mother would not cooperate with providing the
name of her methadone clinic, admitted she smoked cocaine, and stated she
was on the way to drop Child off at Child’s adult sister’s house because the
sister cares for Child while Mother is in treatment and uses drugs; (4) DHS
ascertained that Mother has a lengthy history of substance abuse and lacked
stable housing; and (5) Mother placed Child in the care of his adult sister in
accordance with a safety plan developed by DHS.2 Dependency Petition,
11/17/2016, at 3.
On November 29, 2016, the family court adjudicated Child dependent
“based upon the allegations in the petition.” Order of Adjudication and
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2 The family court opinion states that Child was placed with his sister
pursuant to a safety plan on September 12, 2016. Family Court Opinion,
3/8/2018, at 1. DHS averred the same in its dependency petition.
Dependency Petition, 11/17/2016, at 3 (numbering supplied). It is likely
that DHS made a typographical error and meant October 12, 2016, because
DHS also avers in the dependency petition that it first received a report
regarding Mother on September 20, 2016, but the agency was unable to
make contact with Mother on that date. Id.
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Disposition, 11/29/2016, at 1. The family court ordered DHS to place Child
into foster care and permitted Mother to have weekly supervised visits. Id.
at 1-2. It also ordered Mother to undergo drug screening unless she entered
treatment at Kirkbride,3 and referred Mother for a behavioral health
assessment and monitoring, parenting instruction, and housing assistance.
Id. at 2.
At the first permanency review hearing on February 28, 2017, the
family court found Mother to be in substantial compliance with the
permanency plan, as she was enrolled in outpatient drug treatment at the
Goldman Clinic at Girard Medical Center. Permanency Review Order,
2/28/2017, at 1-2; DHS Exhibit 6, at 1. However, Mother tested positive for
cocaine that same day. DHS Exhibit 6, at 1. She also tested positive for
cocaine on March 31, 2017, and May 30, 2017. DHS Exhibit 6, at 1-2.
At the second permanency review hearing on August 3, 2017, the
family court found Mother to be in minimal compliance with the permanency
plan. Permanency Review Order, 8/3/2017, at 2. Mother had been
discharged from parenting and housing services due to non-compliance. Id.
At that time, her housing was not appropriate. Id. Mother was compliant
with visitation, but it remained supervised. Id.
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3 Kirkbride appears to be a drug and alcohol treatment facility that provides
inpatient treatment; as discussed infra, Mother did not begin inpatient
treatment at Kirkbride until October 13, 2017, almost 11 months after this
order.
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Despite being ordered to report to the Clinical Evaluation Unit (CEU)
forthwith for a drug screen, id., Mother did not report to CEU until
September 27, 2017. DHS Exhibit 6, at 3. At that time, Mother reported
continued treatment with the Goldman Clinic. Id. However, the Goldman
Clinic did not provide an updated progress report despite CEU’s attempts to
obtain one. Id. Nevertheless, even if Mother were attending treatment, she
was continuing to use drugs, as evidenced by her testing positive for
barbiturates and cocaine in late September 2017.4 Id. at 3-4.
Several weeks after her positive screen, on October 13, 2017, Mother
began inpatient drug treatment at Kirkbride. She completed that treatment
approximately one month later. She then enrolled in treatment at Girard
Medical Center. Id. at 13, 19-20.
Throughout the time Child was in foster care, DHS was never able to
verify that Mother had appropriate or stable housing. By the time of the
termination/goal change hearing in December 2017, Mother claimed to have
moved in with a friend. She only informed DHS on the day of the hearing,
leaving DHS unable to verify its appropriateness before the scheduled
hearing. N.T., 12/17/2018, at 12-13.
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4 DHS Exhibit 6, which consists of CEU’s progress reports, lists positive
screens for barbiturates and cocaine on September 27 and 30, 2017. Id. at
3-4. The DHS caseworker testified that Mother had only one positive screen
in September, but did not provide an exact date. N.T., 12/19/2017, at 11.
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While Mother struggled with her sobriety and obtaining stable housing,
Child remained in foster care. He initially was placed with his adult sister,
but the family court ordered DHS to move him to a non-kinship foster home
in August 2017 if those residing in the kinship home continued to fail to
comply with requirements for certification. Permanency Review Order,
8/3/2017, at 2. Child moved to his current pre-adoptive foster home on
August 17, 2017. N.T., 12/17/2018, at 14. Based upon her observations,
the DHS caseworker believes that Child and his foster mother have a “loving
bond.” Id. Child appears to be happy and foster mother is “teaching him.”
Id. The DHS caseworker has observed an improvement with Child since
being placed in his foster mother’s care. Id. Previously, Child would shut
down and would not really talk to the caseworker. Id. Now, he is more
open in school, always willing to talk to the caseworker, and is excited to
show the caseworker things. Child started kindergarten in 2017, and it is his
foster mother, not Mother, who ensures that all of his educational needs are
being met. Id. at 15-16.
Mother visited Child regularly, except when she was in inpatient
treatment, but she never progressed to unsupervised or more frequent visits
due to her continued use of drugs. Id. at 13, 18. Child separated easily
from Mother at the end of visits, and Child did not ask about Mother or
appear distressed during the month that Mother was unable to visit. Id. at
14-15. The DHS caseworker assessed Mother and Child as having a “very
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good bond,” but opined that adoption is in his best interest and termination
of Mother’s rights would not cause him “irreparable harm.” Id. at 14, 16.
The caseworker based her opinion upon Child’s not showing signs of
problems despite his separation from Mother, his progress in the foster
home, his bond and relationship with his foster mother, and his need for
stability.5 Id. at 16. Child refers to Mother as “mother,” but he looks to his
foster mother to meet his needs. Id. at 17, 23. Child asked to go home to
Mother when he was first removed, but he has not expressed this wish to
the caseworker since that time. Id. at 21-23.
DHS filed a petition to terminate involuntarily Mother’s rights on
October 18, 2017. It also filed a petition to change Child’s permanency goal
to adoption in his dependency matter. The family court conducted a
combined goal change and termination hearing on December 17, 2017,
where DHS introduced the evidence summarized supra. The family court
entered a decree on the adoption docket on December 19, 2017, which
terminated Mother’s parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1),
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5 The caseworker’s exact response to the question of what made her believe
that Child would not suffer irreparable harm if the family court were to
terminate Mother’s rights was “[b]ecause he – his relationship and bond is
good with – where he is. He is striving. There’s – he hasn’t shown signs of,
really, detachment from her.” Id. at 16. She also testified that adoption is
in his best interest because he needs stability. Id. at 17. Based upon the
context of the caseworker’s testimony, it appears that the caseworker’s word
choice may not have accurately reflected the message she was attempting
to convey.
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(2), (5), (8), and (b). Decree of Involuntary Termination of Parental Rights,
12/29/2017, at 1. The family court also entered a permanency review order
on Child’s dependency docket, which kept Child’s permanency goal as
reunification with a concurrent goal of adoption. Permanency Review Order,
12/19/2017, at 1. Mother timely filed a notice of appeal, along with a
concise statement of errors complained of on appeal.
Mother now raises the following issues for our review:
(1) Did the family court err in changing the goal to adoption
and terminating [Mother’s] parental rights under [23
Pa.C.S. § 2511 (a)(1), (2), (5), and (8)] as [DHS] failed to
establish by clear and convincing evidence that [Mother]
cannot or will not be able to remedy the incapacity and
conditions which led to [Child’s] removal?
(2) Did the family court err in changing the goal to adoption
and terminating [Mother’s] parental rights under [23
Pa.C.S. § 2511(b)] because it failed to give primary
consideration to the developmental, physical[,] and
emotional needs and welfare of [Child] insofar as [Child] is
bonded to [Mother]?
Mother’s Brief at 3.
We address Mother’s arguments regarding the December 19, 2017
permanency review order first. Mother filed one notice of appeal purporting
to challenge both the December 19, 2017 termination decree and the
December 19, 2017 permanency review order, and included the docket
numbers for Child’s dependency and adoption matters. We point out that
the correct procedure in this circumstance is to file separate notices of
appeal for each docket. See Pa.R.A.P. 341, Note (“Where … one or more
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orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). In a recent
case, our Supreme Court held that the failure to file separate notices of
appeal from an order resolving issues on more than one docket “requires the
appellate court to quash the appeal.” Commonwealth v. Walker, 185
A.3d 969, 977 (Pa. 2018). However, the Court clarified that it would apply
its holding only “in future cases,” because of decades of prior case law that
seldom quashed appeals for that reason, and because the citation to case
law contained in the note to Rule 341 was unclear. Id. Thus, because
Mother filed her notice of appeal prior to the filing of our Supreme Court’s
decision in Walker, we do not quash her appeal.
However, Mother has waived all arguments with respect to the
December 19, 2017 permanency review order. Mother’s brief on appeal
contains no substantive discussion of any issue pertaining to a change in
Child’s permanency goal in the dependency matter.6 Accordingly, Mother
has failed to preserve any challenge to the permanency review order for our
review, and we address only the decree terminating Mother’s parental rights.
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6 Although Mother claims that the family court changed Child’s permanency
goal to adoption, the order indicates otherwise. See Permanency Review
Order, 12/17/2017, at 1. It is unclear whether this was an oversight by the
family court or intentional (due to the continuance of the hearing as to
Child’s recently identified putative father). We note that the family court
may terminate parental rights even if the permanency goal remains
reunification. In re Adoption of S.E.G., 901 A.2d 1017, 1029 (Pa. 2006).
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See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (“Where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”).
Before we turn to Mother’s challenge to the termination decree, we
address whether Child’s statutory right to legal counsel was satisfied.
Pursuant to 23 Pa.C.S. § 2313(a), a child who is the subject of a contested
involuntary termination proceeding has a statutory right to counsel who
discerns and advocates for child’s legal interests, which our Supreme Court
has defined as a child’s preferred outcome. In re T.S., __ A.3d __, 2018
WL 4001825 at * 1 (Pa. 2018) (citing In re Adoption of L.B.M., 161 A.3d
172, 174 (Pa. 2017)). Because the right to counsel belongs to the child
who is unable to address a deprivation of his or her right to counsel on his or
her own behalf, we must address this issue sua sponte. See id. at *5
(holding that the child’s statutory right to counsel is non-waivable); In re
K.J.H., 180 A.3d 411 (Pa. Super. 2018) (holding that this Court must
determine sua sponte whether 23 Pa.C.S. § 2313(a) was satisfied).
In this case, two attorneys represented Child, who was five years old
at the time of the hearing: Patrice Langenbach, Esquire as guardian ad
litem, and Craig Sokolow, Esquire, as legal counsel. At the hearing,
Attorney Langenbach argued that it was in Child’s best interest to terminate
parental rights; Attorney Sokolow, on the other hand, advocated that the
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family court not terminate Mother’s parental rights due to the bond between
Child and Mother. N.T., 12/19/2017, at 28. Appointment of Attorney
Sokolow to advocate for Child’s legal interests in the termination matter
satisfied subsection 2313(a).
Nevertheless, we note with displeasure that Attorney Sokolow did not
file a brief in this Court or otherwise advocate for Child’s interests on appeal.
Counsel’s duty to represent a Child does not stop at the conclusion of the
termination of parental rights hearing. In re Adoption of T.M.L.M., 184
A.3d 585, 590 (Pa. Super. 2018); see also In re M.T., 607 A.2d 271, 276
(Pa. Super. 1992) (observing that child’s counsel abdicated his legal
responsibilities to his client because counsel, inter alia, failed to file a brief,
indicate that he joined another party’s brief, or otherwise notify this Court of
his client’s position). We caution Child’s legal counsel that it is his job to
“represent [his client] with zeal and professionalism. [Child has] no say in
[appointment of counsel] and deserve[s] to have the benefit of effective
representation, particularly when a matter as important as [his] future
relationship with a biological parent is at stake.” T.M.L.M., 184 A.3d at 590.
We also observe that following the March 2018 permanency review
hearing, which was three months after Mother’s rights were terminated, an
order appears in Child’s dependency docket revealing that the family court
vacated Attorney Sokolow’s appointment in 31 days and permitted the
guardian ad litem to continue in a dual role. Permanency Review Order,
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3/31/2018, at 2. Presumably, the family court did this because it
determined that there was no longer a conflict between Child’s best and
legal interests, but no explanation appears in the record. However, even if
the family court vacated Attorney Sokolow’s appointment as to the
dependency matter, nothing appears in the docket of the termination matter
that permitted Attorney Sokolow to be relieved of his duties to Child.
Further, Attorney Sokolow received notice of all appellate filings in this
Court, but never notified this Court of a belief that he no longer represents
Child. Nor does the guardian ad litem explain the procedural posture in this
regard or indicate that she represents Child in a dual capacity because his
best and legal interests now coincide.
However, we are confined to the evidence in the record when
reviewing the family court’s decision. We have reviewed the record
thoroughly. Because Child received counsel who advocated for his legal
interests at the time of the hearing, we need not remand for clarification of
Child’s post-hearing position or a separate brief by Attorney Sokolow in this
case.
We turn now to Mother’s challenges to the termination decree, which
we review 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
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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 quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 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 [subs]ection 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 [subs]ection
2511(b): determination of the needs and welfare of the child[.]
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the family court terminated Mother’s parental rights
pursuant to subsections 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
subsection 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 subsections 2511(a)(8) 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:
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***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
***
(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) … 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. § 2511.
We have summarized the requirements of subsection 2511(a)(8) as
follows.
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 2511(a)(8), the following factors must be demonstrated: (1)
[t]he child has been removed from parental care for 12 months
or more from the date of removal; (2) the conditions which led
to the removal or placement of the child continue to exist; and
(3) termination of parental rights would best serve the needs
and welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
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Mother argues that the family court erred by terminating parental
rights because she consistently visited Child and complied with drug
treatment. Mother’s Brief at 11. She argues that she “is able to remedy her
parental incapacity and the conditions that led to [Child’s] removal” because
she “successfully completed inpatient treatment, [which was] her first
attempt at inpatient treatment, and was consistently attending outpatient
follow-up treatment.” Id.7
The flaw in Mother’s argument is that subsection 2511(a)(8) “does not
require an evaluation of [a parent’s] willingness or ability to remedy the
conditions that led to placement of [his or her] children.” In re Adoption
of R.J.S., 901 A.2d 502, 511 (Pa. Super. 2006) (citations omitted)
(emphasis in original). Subsection 2511(a)(8) represents the determination
that “a parent’s basic constitutional right to the custody and rearing of his
[or her] … child is converted, upon the failure to fulfill … parental duties, to
the child’s right to have proper parenting and fulfillment of his or her
potential in a permanent, healthy, safe environment.” In the Interest of
K.Z.S., 946 A.2d 753, 759-60 (Pa. Super. 2008) (quoting In re B.N.M., 856
A.2d 847, 856 (Pa. Super. 2004)).
The record reveals that Child was removed and adjudicated dependent
due to Mother’s struggles with drug addiction and lack of stable housing.
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7 Mother poses no challenge to the first part of the analysis regarding the
time Child has been out of her care.
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Throughout the time Child was in foster care, Mother continued to struggle
with the same concerns. Although she attempted treatment multiple times,
she continued to test positive for cocaine, and did not achieve a sustained
period of sobriety outside the structures of the inpatient program. Despite a
referral for assistance in obtaining housing, Mother was never able to
demonstrate to DHS that she had safe, stable, and appropriate housing.
Further, she failed to complete a parenting course despite being court
ordered to do so. Thus, the conditions, which led to the removal and
placement of Child, continued to exist.
Mother also challenges the family court’s refusal to accept testimony
regarding her alleged two negative drug screen results that occurred after
she received notice of the filing of the involuntary termination petition. 8
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8 The family court did not address Mother’s claim that it erred by failing to
admit post-petition evidence in its Rule 1925(a) opinion. Arguably, Mother
has waived this issue by not including it in her concise statement of matters
complained of on appeal. Mother phrased her concise statement in a similar
manner to the issues she presents on appeal. Statement of Matters
Complained on Appeal, 1/18/2018, at 1; Mother’s Brief at 3. Although we
will deem each error identified in the statement to include “every subsidiary
issue contained therein which was raised in the trial court[,]” the concise
statement must “concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
the judge.” Pa.R.A.P. 1925(b)(4)(ii), (v). Issues that are not included in or
suggested by an appellant’s statement of questions involved and concise
statement of errors complained of on appeal are waived. In re M.Z.T.M.W.,
163 A.3d 462, 466 (Pa. Super. 2017). Although related, Mother’s
evidentiary challenge arguably is a separate issue from her challenge to the
sufficiency of the evidence under subsection 2511(a), and thus her concise
statement did not identify her challenge with sufficient detail for the family
(Footnote Continued Next Page)
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Mother’s Brief at 11. Mother twice attempted to establish through cross-
examination of the DHS caseworker that Mother had tested negative for
drugs after she completed inpatient treatment. N.T., 12/19/2017, at 20-21;
24. DHS objected, arguing that any testimony relating to Mother’s efforts
after the petition was filed was inadmissible, and the family court sustained
the objections. Id.
“[T]he decision of whether to admit or exclude evidence is within the
sound discretion of the [family] court. A reviewing court will not disturb
these rulings absent an abuse of discretion. Discretion is abused if, inter
alia, the [family] court overrides or misapplies the law.” In re A.J.R.-H., __
A.3d __, 2018 WL 3455417 at *7 (Pa. 2018). Relevant to Mother’s case, the
statutory prohibition against admission of evidence regarding efforts first
initiated after a parent received notice of the petition only applies to
petitions filed under subsections 2511(a)(1) and (8). 23 Pa.C.S. § 2511(b)
(“With respect to any petition filed pursuant to subsection (a)(1) … 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.”). Thus, because DHS was also seeking
to terminate Mother’s rights under subsections (a)(2) and (a)(5), the family
court misapplied the law in sustaining DHS’s objection. This line of cross-
(Footnote Continued) _______________________
court to have addressed her issue. Nevertheless, we will address Mother’s
challenge on the merits.
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examination was relevant to and admissible regarding subsections (a)(2)
and (a)(5), even if the Adoption Act prohibited the family court from
considering the testimony as part of its analysis of subsections (a)(1) and
(a)(8).
Mother argues that the family court should have admitted the
testimony and considered it as part of its (a)(8) analysis because Mother’s
efforts towards sobriety began prior to the notice of the petition, and the
testimony regarding her achievement and maintenance of sobriety post-
petition is confirmation that her efforts worked. Mother’s Brief at 11.
Mother entered inpatient treatment four days prior to the filing of the
petition.9 We agree with Mother that under these circumstances, the trial
court misapplied the law by failing to consider any evidence that Mother’s
inpatient treatment helped her achieve sobriety because she initiated such
efforts before the petition was filed, albeit with only days to spare.
Nevertheless, we conclude that the family court’s failure to consider
indications of Mother’s more recent sobriety is harmless under the facts of
this case. In a termination case, an error is harmless if “the evidentiary
error could not have had any impact upon the [family] court’s decision.”
A.J.R.-H., 2018 WL 3455417, at *14. It is clear that here it could not have
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9 The record does not reveal the exact date on which Mother received notice
of DHS’s filing of the petition, but our analysis in the instant case does not
change even assuming arguendo that she received notice on the same day
that DHS filed the petition.
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had an impact. Child has been in foster care for over a year. Even if Mother
managed to be clean on two occasions as she alleges, this does not
demonstrate a stable period of sustained sobriety. Mother had completed
inpatient treatment in mid-November 2017, and was living in the community
for only approximately one month prior to the termination hearing. She still
required outpatient treatment, and unfortunately, Mother has failed multiple
times to maintain sobriety even while she was in treatment. In fact, over
the year Child was in foster care, Mother never had a sustained period of
sobriety that was stable enough to progress to unsupervised or extended
visitation.
Once a parent has been given a sufficient opportunity to rectify the
conditions that brought his or her child into care, the family court may not
give a parent “further opportunity to [attempt to] cultivate an environment
where [the parent] can care for [a child]” because doing so would subject
the child who has been waiting for permanency “to a state of proverbial
limbo in anticipation of a scenario that is speculative at best.” In re C.L.G.,
956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). Remaining drug-free in
the confines of a structured program does not prove that a parent can
“maintain that status among the external pressures of the outside world[.]”
See id. This is particularly the case when a parent has not been sober long
enough to progress to unsupervised visits and demonstrate that the parent
can handle the pressures of parenting during recovery. See id.
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As this Court has expressed previously,
[w]e recognize that the application of [subs]ection (a)(8) may
seem harsh when the parent has begun to make progress
toward resolving the problems that had led to removal of her
children. … However, by allowing for termination when the
conditions that led to removal of a child continue to exist after a
year, the statute implicitly recognizes that a child’s life cannot be
held in abeyance while a parent attempts to attain the [sobriety
and stability] necessary to assume parenting responsibilities.
The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of
progress and hope for the future. Indeed, we work under
statutory and case law that contemplates only a short period of
time, to wit [18] months, in which to complete the process of
either reunification or adoption for a child who has been placed
in foster care.
In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
Moreover, even if Mother achieved sobriety, she has not fully
addressed her housing and parenting issues. It was unclear whether
Mother’s housing was safe and stable, as she only told the caseworker on
the day of the hearing that she had moved in with a friend. Further, Mother
was noncompliant with housing and parenting services that could have
assisted her in making more progress. Thus, it is apparent that the
conditions that led to Child’s removal continued to exist, and the trial court
did not abuse its discretion in terminating Mother’s parental rights pursuant
to subsection 2511(a)(8).10
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10As our analysis of the last prong of subsection 2511(a)(8) is similar to our
analysis under subsection 2511(b), we will address the last prong infra.
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We turn now to Mother’s argument regarding Child’s needs and
welfare. Mother argues that, due to the bond that she and Child share, the
family court erred by determining that termination serves Child’s needs and
welfare. Mother’s Brief at 13. She further argues that the family court
should have preserved their relationship due to her recent progress. Id.
We have explained the analysis under subsection 2511(b) as follows.
[Subs]ection 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, [subs]ection 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
subsection 2511(b) best-interest analysis, it is nonetheless only
one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015)
(quotation marks and citations omitted).
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
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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).
Here, as we explained supra, if Mother had indeed made recent
progress, this is a step in the right direction, but it came too late and is far
from secure. The family court acknowledged the bond between Mother and
Child, but credited the opinion of the DHS caseworker that Child would not
suffer irreparable or detrimental harm if his bond with Mother was severed.
Family Court Opinion, 3/8/2018, at 5. The caseworker explained that Child
no longer asks about Mother and did not experience detrimental effects
when Mother was unable to visit in October. N.T., 12/19/2017, at 14-17,
21-23. Furthermore, Child is making progress in his foster home, is bonded
to his foster mother11 and looks to her to meet his daily needs, and is in
need of stability. Id. Thus, nothing in the record indicates that terminating
parental rights will destroy an existing relationship that is “necessary and
beneficial” to Child, or cause him significant emotional distress. C.f. In re
Adoption of G.L.L., 124 A.3d 344, 347 (Pa. Super. 2015) (affirming court’s
refusal to terminate parental rights when the evidence indicated that parent
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11 The family court states in its opinion that Child’s foster mother is his
sister. This finding is not supported by the record, as Child was moved from
his sister’s kinship home to a non-kinship foster home. N.T., 12/17/2018, at
14. Nevertheless, Mother does not raise this as a claim of error, and the
trial court’s finding is not integral to its analysis and does not affect the
outcome.
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and child had a necessary and beneficial bond, which, if severed, would
cause permanent damage to the child). Based on the evidence in the
record, the family court did not err by prioritizing Child’s developmental,
physical, and security needs over his relationship with Mother. See In re
M.M., 106 A.3d 114, 119 (Pa. Super. 2014) (determining that the detriment
to the children in severing their bond with mother was outweighed by their
safety and security needs).
While this is a close case, we must defer to the family court because
the record supports its factual findings, and its ultimate legal conclusion in
terminating rights pursuant to subsections 2511(a)(8) and (b) is not the
result of error or an abuse of discretion. See In re Adoption of S.P., 47
A.3d 817, 826-27 (Pa. 2012). Therefore, we affirm the December 19, 2017
permanency review order and the family court’s decree terminating Mother’s
parental rights involuntarily.
Order and decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/18
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