In the Interest of: M.B.H., a Minor

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.B.H., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: P.A.H., MOTHER : No. 2558 EDA 2016
Appeal from the Decree, July 13, 2016,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-AP-0000574-2016
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED August 4, 2017
P.A.H. (“Mother”) appeals from the decree dated and entered July 13,
2016, in the Court of Common Pleas of Philadelphia County, granting the
petition of the Philadelphia County Department of Human Services (“DHS”)
and involuntarily terminating her parental rights to her minor, dependent
child, M.B.H. (the “Child”), a female born in December of 2011, pursuant to
the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).1, 2 After
review, we affirm.
1
By separate decrees entered the same date, the trial court additionally
involuntarily terminated the parental rights of Child’s father, C.H. (“Father”),
and Unknown Father. An appeal has not been filed by Father or any
unknown father, nor is Father or any unknown father a party to the instant
appeal.
2
Upon review, the trial court additionally entered a separate order changing
Child’s permanency goal to adoption. As Mother does not appeal this order,
any such claims related thereto are not preserved. Pa.R.A.P. 903(a)
(a notice of appeal shall be filed within 30 days after the entry of the order
from which the appeal is taken). Moreover, any such opposition would be
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The trial court summarized the relevant procedural and/or factual
history, in part, as follows:
FINDINGS OF FACT
On September 9, 2013, M.B.H. received a
pulmonary examination at the Children’s Hospital of
Philadelphia (“CHOP”). Thereafter, on
September 10, 2013, Mother took M.B.H. to the
CHOP Emergency Room after M.B.H. suffered burns
to her left arm, left leg, and chest. Rita Himes, a
CHOP [t]riage [n]urse, stated that Mother stated to
her that M.B.H. had seven hours earlier been lying in
bed at the home and had pulled the cord of a clothes
iron, causing the iron to fall on M.B.H. Mother stated
to Ms. Himes that the burns were caused by the iron
falling on M.B.H. and that Mother had treated the
burns with cold water and butter; that initially that
M.B.H.’s skin blistered and that the blisters had
broken. During this emergency room visit, it was
determined that M.B.H. suffered from partial
thickness burns upon M.B.H.’s left interior arm, the
left interior leg, and the left side of the chest
measuring two to seven inches. On September 13,
2013, [DHS] received an Emergency General
Protective Services Report (“EGPS”) alleging that
M.B.H.’s weight and height were in the zero
percentile for her age and that during M.B.H.’s
waived as Mother failed to raise the issue in both her concise statement of
errors complained of on appeal and the statement of questions involved
section of her brief, and failed to present argument related thereto in her
brief. See Krebs v. United Refining Co. of Pennsylvania, 893 A.2d 776,
797 (Pa.Super. 2006) (stating that a failure to preserve issues by raising
them both in the concise statement of errors complained of on appeal and
statement of questions involved portion of the brief on appeal results in a
waiver of those issues); In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super.
2011), appeal denied, 24 A.3d 364 (Pa. 2011), quoting In re A.C., 991
A.2d 884, 897 (Pa.Super. 2010) (“[W]here 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.”).
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pulmonary examination that M.B.H. appeared
malnourished.
On September 18, 2013, DHS contacted CHOP
by telephone and learned that Mother had failed to
keep M.B.H.’s follow-up appointment and that CHOP
physicians had determined M.B.H.’s burns were likely
caused by child abuse and that there were concerns
that M.B.H. was malnourished. DHS attempted to
contact Mother on her phone on September 20, 2013
and September 21, 2013 but Mother was
unresponsive. On September 23, 2013, CHOP asked
DHS to contact Mother to schedule an immediate
medical examination of M.B.H. because Mother had
failed to take M.B.H. to a scheduled September 22,
2013 appointment at CHOP and that Mother had not
responded to any phone calls from CHOP.
On September 23, 2013, DHS contacted
Mother and asked if Mother had taken M.B.H. for her
appointment at CHOP and Mother responded that
M.B.H. did not need a medical examination. After
determining from M.B.H.’s pediatrician[] that Mother
was not ensuring consistent well-child examinations
for M.B.H.[,] DHS obtained an Order of Protective
Custody (“OPC”) for M.B.H. and on that same day
DHS went to CHOP to take M.B.H. from Mother’s
custody.
On September 23, 2013, M.B.H. was placed in
a foster home and a Shelter Care Hearing occurred
on September 25, 2013, where the OTC was lifted
and the temporary commitment to DHS was ordered
to stand. At the Adjudicatory Hearing held before
the Honorable Judge Jonathan Q. Irvine on
October 2, 2013, M.B.H. was adjudicated dependent.
The [c]ourt referred commitment to DHS. The
[c]ourt referred the Mother to ARC [Achieving
Reunification Center] for [p]arenting and [a]nger
[m]anagement. The [c]ourt further ordered that
there be one hour supervised visits at the agency.
The initial Family Service Plan (“FSP”) meeting
was held on December 16, 2013. The parental
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objectives were that (1) Mother would set age
appropriate expectations; (2) Mother would
participate in mental health evaluations; (3) Mother
would keep all visits and maintain regular contact
with M.B.H. and (4) Mother would locate and occupy
suitable housing for M.B.H. At the subsequent
Permanency Review Hearing on December 18, 2013,
Mother was (1) referred to Behavioral Health System
(“BHS”) for consultation; (2) to attend anger
management classes and (3) receive the BHS
evaluation and parenting class though the Parent
Action Network (“PAN”).
On June 19, 2014, a Permanency Review
Hearing was held and the [c]ourt ordered (1) that
M.B.H. remain committed; (2) DHS would follow up
with ARC about parenting classes for Mother; and
(3) Mother would sign releases at the Community
Council Health Systems. At the next Permanency
Review Hearing on September 3, 2014, the [c]ourt
ordered (1) that Mother be referred to BHS for
monitoring and (2) Mother sign releases at the
Community Council.
A second FSP was created on September 30,
2014, and the parental objectives for Mother were
that Mother (1) set age appropriate expectations;
(2) participate in mental health evaluation and follow
treatment recommendations; (3) maintain all visits
and regular contact with M.B.H.; (4) comply with
objectives and court orders and (5) locate [] suitable
housing for the family. At the subsequent
Permanency Review Hearing on December 3, 2014
the [c]ourt determined that there had been minimal
compliance with the permanency plan by Mother and
Mother was (1) re-referred for anger management;
(2) referred to a comprehensive biopsychological
evaluation[3] at [sic] [p]arenting [c]apacity
[e]valuation (“PCE”); (3) Mother was to sign a
release; and (4) DHS would refer Mother for
therapeutic visits.
3
The order in question refers to this evaluation as a comprehensive
biopsychosocial evaluation. (See DHS Exhibit 2 at 17-19.)
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On January 6, 2015, Mother participated in a
comprehensive biopsychological evaluation which
stated that Mother had clearly defined narcissistic
personality traits and that the Mother’s anger and
apparently transient depressive symptoms merited
intervention so as not to further complicate attempts
to reunify mother and child. Thereafter a
Permanency Review Hearing was held on March 9,
2015 and the court determined that Mother (1) had
completed her biopsychological examination;
(2) Mother was engaged through [sic] therapy
through the Community Council Health Systems; and
(3) the DHS was to make referral housing for
Mother.
At a Permanency Review Hearing on June 10,
2015 held before the Honorable Jonathan Q. Irvine,
the [c]ourt determined that Mother (1) had
completed anger management classes and was
attending mental health treatment consistently;
(2) was working full time; (3) Mother was referred to
CEU for a drug screen and dual diagnosis plus three
random drug screens prior to the next court date.[4]
At the Permanency Review Hearing on
October 7, 2015 held before the Honorable Judge
Irvine, the [c]ourt determined that Mother (1) the
mother [sic] be referred to CEU for assessment, dual
diagnosis, monitoring and three random drug
screens prior to the next court date.[5] At the
Permanency Review Hearing on February 17, 2016,
held before the Honorable Judge Irvine, the [c]ourt
again determined that Mother (1) the mother [sic]
be referred to CEU for assessment, dual diagnosis,
monitoring and three random drug screens prior to
the next court date.
4
Mother was additionally referred for monitoring on this date. (DHS
Exhibit 2 at 21-22.)
5
Review of the record reveals that Mother was only referred for drug
screening on this date. (Id. at 22-24.)
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By June of 2016, M.B.H. had not resided with
her mother for three (3) years. Mother had become
noncompliant with visitations and court ordered CEU
screens. Mother did not show up to any CEU
appointments in 2016. Mother was asked to comply
with random screening on April 19, 2016 but did not
show up. Interactions between Mother and DHS
[s]taff had continued to be acrimonious and hostile
as a result of Mother’s uncontrollable anger. DHS
reported that between M.B.H. and her caregiver
there existed a strong bond and that the caregiver
wanted to adopt M.B.H. and no such bond existed
between Mother and M.B.H.
Trial court opinion, 9/7/16 at 2-6 (unpaginated; citations to record omitted).
On June 24, 2016, DHS filed petitions to involuntarily terminate
parental rights and for a goal change. Thereafter, the trial court conducted
a combined termination and goal change hearing on July 13, 2016. In
support of its petitions, DHS presented the testimony of DHS social worker,
Jennifer Koslosky, and APM (Asociación Puertorriqueños en Marcha) foster
case manager, Delores Englero. Mother additionally testified on her own
behalf. Likewise, Father was present and testified on his own behalf.
By decree dated and entered July 13, 2016, the trial court involuntarily
terminated Mother’s parental rights to Child.6, 7 On August 11, 2016, Mother
6
The trial court announced its decision, memorialized by subsequent decree,
on the record on July 13, 2016.
7
The Child Advocate, Tara Amoroso, Esq., argued in support of the
termination of Mother’s parental rights. Id. at 70-71. We note here that in
a divided decision our supreme court recently held in In re Adoption of
L.B.M., 2017 WL2257203 (Pa. 2017), that 23 Pa.C.S.A. § 2313(a) requires a
trial court to appoint counsel for a child in contested involuntary termination
of parental rights proceedings and the failure to do so is structural and can
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filed a timely notice of appeal, along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).8
On appeal, Mother raises the following issues for our review:
A. 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[,]
never be harmless. The decision was originally filed on March 28, 2017, but
was corrected and replaced on May 23, 2017. Authoring Justice Wecht,
joined by Justices Donohue and Dougherty, sought to hold that a trial court
is required to appoint separate, independent counsel to represent a child’s
legal interests even when the guardian ad litem is an attorney. However,
Chief Justice Saylor, and Justices Baer, Todd, and Mundy, disagreed in
different concurring and dissenting opinions with that part of the lead
opinion’s holding. Specifically, while the other justices agreed that the
appointment of counsel for the child is required in all involuntary termination
proceedings and that the failure to do so by the trial court is structural error,
they did not join that part of Justice Wecht’s opinion which sought to hold
that the guardian ad litem may never serve as counsel for the child.
Rather, such separate representation would be required only if the best
interests and legal interests were somehow in conflict. Herein, Mother did
not raise before the trial court any concerns which would have created a
need to appoint independent counsel to advocate for Child, nor does she
make any claims on appeal that the Child Advocate, Attorney Amoroso, did
not properly represent the Child’s legal and best interests due to a conflict of
interest. Indeed, in this case, Attorney Amoroso zealously represented
Child.
8
Notably, Mother filed her notice of appeal and concise statement of errors
complained of on appeal pro se. Subsequent to the dismissal and
reinstatement of Mother’s appeal in relation to her Pa.R.A.P. 3517 docketing
statement, as Mother was still represented by appointed counsel, by order
dated December 6, 2016, this court remanded the matter to the trial court
to determine whether counsel had abandoned Mother and take further action
as necessary to protect Mother’s appellate rights. By order dated
February 7, 2017, referencing counsel’s filing of a docketing statement on
behalf of Mother, the trial court determined that counsel had not abandoned
Mother.
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23 Pa.[C.S.A. § 2511 (a)(1), (2), (5), and (8)]
as [M]other had completed her FSP goals,
namely the [p]arenting [c]apacity [e]valuation
(“PCE”), compliance with ARC, anger
management, and mental health services, and
was working full time?
B. Whether the trial court committed reversible
error when it involuntarily terminated
[M]other’s parental rights without giving
primary consideration to the effect that the
termination would have on the developmental
physical and emotional needs of the child as
required by the Adoption Act[,] 23 Pa.[C.S.A.
§ 2511(b)]?
Mother’s brief at 4.9
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental
rights cases requires appellate courts “to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record.”
In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
9
We observe that, in her brief, Mother stated her issues on appeal
somewhat differently from her Rule 1925(b) statement filed with her notice
of appeal. We, nevertheless, find that Mother has preserved challenges to
the trial court’s termination of her parental rights pursuant to
Sections 2511(a)(1), (2), (5), and (8). To the extent Mother addresses
Subsection (b) in her brief, however, Mother waived any contest under this
subsection as she failed to raise it in her Rule 1925(b) statement. See
Krebs, 893 A.2d at 797 (stating that a failure to preserve issues by raising
them both in the concise statement of errors complained of on appeal and
statement of questions involved portion of the brief on appeal results in a
waiver of those issues). See also In re M.Z.T.M.W., 2017 WL 2153892
(Pa.Super. May 17, 2017) (holding that the appellant waived her challenge
to Section 2511(b) by failing to include it in her concise statement and
statement of question involved). Nevertheless, in light of the requisite
bifurcated analysis, we review this issue below and determine that, had
Mother preserved this issue, we would have found it lacked merit.
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2012). “If the factual findings are supported,
appellate courts review to determine if the trial court
made an error of law or abused its discretion.” Id.
“[A] decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-
will.” Id. The trial court’s decision, however, should
not be reversed merely because the record would
support a different result. Id. at 827. We have
previously emphasized our deference to trial courts
that often have first-hand observations of the parties
spanning multiple hearings. See In re R.J.T., 9
A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to
believe all, part, or none of the evidence presented and is likewise free to
make all credibility determinations and resolve conflicts in the evidence.”
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the
child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. Initially,
the focus is on the conduct of the parent. The party
seeking termination must prove by clear and
convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
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determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and
status of the emotional bond between parent and
child, with close attention paid to the effect on the
child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998). In
this case, the trial court terminated Mother’s parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), as well as (b). We have long
held that, in order to affirm a termination of parental rights, we need only
agree with the trial court as to any one subsection of Section 2511(a), as
well as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
2004) (en banc). Here, we analyze the court’s termination decree pursuant
to Subsections 2511(a)(2) and (b), which provide as follows:
(a) General rule.--The rights of a parent in
regard to a child may be terminated after a
petition filed on any of the following grounds:
....
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(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.
23 Pa.C.S.A. § 2511(a)(2), (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(2), the following three
elements must be met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being; and (3) the causes of the incapacity,
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abuse, neglect or refusal cannot or will not be
remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002).
Instantly, in finding grounds for termination pursuant to
Section 2511(a)(2), as well as (a)(1), (5), and (8), the trial court reasoned
as follows:
The record demonstrates Mother’s ongoing
unwillingness to provide care or control for M.B.H. or
perform any parental duties and her failure to
remedy the conditions that brought the child into
care. The documents and testimony discussed below
provided this [c]ourt clear and convincing evidence
that termination of Mother’s parental rights would be
in the best interests of M.B.H.
Mother’s FSP [o]bjectives were established on
December 17, 2013 and later modified on
September 30, 2014. Pursuant to the FSP
[o]bjectives and [c]ourt orders, Mother was ordered
to maintain all visits and regular contact with M.B.H.;
Mother would participate in an evaluation for drugs
and alcohol; and Mother would sign releases to allow
DHS to receive documentation to determine Mother’s
compliance with mental health treatments. The
record shows that [] Mother has not complied with
the [c]ourt [o]rders and FSP [o]bjectives.
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Mother failed to comply with FSP [o]bjectives
to maintain all visits and regular contact with M.B.H.
Mother had never had unsupervised visits with
M.B.H. Mother visits with M.B.H. were sporadic and
infrequent. Routinely, Mother would call and confirm
a visitation date and then M.B.H. would be taken to
the agency and Mother would cancel in the last
minute or not show up, which affected M.B.H. In
2016, [DHS] scheduled appointments for Mother to
visit M.B.H. on January 7, the 14th, the 21st, the 28th,
February 4th and February 11th[,] but Mother only
visited M.B.H. on January 28th. Thereafter, Mother
did not visit M.B.H. until March 17, 2016[,] followed
by a final visit on June 16, 2016. Mother also failed
to comply with FSP objectives and/or [c]ourt orders
by failing to execute releases to allow DHS to obtain
mental health and alcohol reports and to partake in
drug and alcohol testing.
Based upon the testimony elicited at the
Termination Hearing as well as the documents in
evidence, this Court found clear and convincing
evidence to terminate Mother’s parental rights
pursuant to 23 Pa.[C.S.A. § (a)(1), (2), (5), and (8)]
as Mother had failed to remedy the conditions that
brought the child into care based upon her
unwillingness to visit M.B.H.; cooperate with DHS as
to drug and alcohol testing; her refusal [sic]
releases; and Mother’s lack of interest in M.B.H.’s
medical treatment. Furthermore, Mother[’s] refusal
to cooperate and utilize DHS services demonstrated
that Mother could not remedy the conditions that
had led to M.B.H. being adjudicated dependent and
placed in foster care in 2013 within a reasonable
period of time.
Trial court opinion, 9/7/16 at 8-10 (unpaginated; citations to record omitted;
footnote omitted).
Mother, however, argues that she endeavored to create and/or
maintain a relationship with Child as evidenced by her efforts at compliance
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with her FSP objectives. (Mother’s brief at 7-8.) Mother highlights her
participation in mental health treatment, completion of parenting classes and
anger management, presentation for CEU screenings in June and July 2015,
as well as her securing of employment and housing.10 (Id. at 8.) Further,
through such efforts Mother asserts that she “exhibited she was eradicating
any repeated neglect that caused [Child] to be placed in foster care.” (Id.
at 8.) Mother states, “To the best of her ability, Mother showed that the
causes that brought the child in question into care could indeed be
remedied.” (Id.) We disagree.
A review of the record supports the trial court’s determination of a
basis for termination under Section 2511(a)(2). Mother failed to complete
her established FSP objectives. DHS social worker, Jennifer Koslosky,
recounted Mother’s FSP objectives as follows:
The objectives for mother are that she will
participate in individual counseling, she will keep all
supervised visits and maintain all contact with the
child, she will participate in a parenting capacity
evaluation at ATA [Assessment & Treatment
Alternatives] and comply with the recommendations
made from that evaluation, she will participate in an
evaluation for drug and alcohol assessment at CEU,
she will comply with any recommendations made by
CEU. Mother will sign authorization forms to allow
DHS to obtain copies of her mental health and drug
and alcohol reports. Mother will achieve and
maintain sobriety and will not abuse illegal drugs.
Mother will comply with the court order. Mother will
locate and occupy suitable housing.
10
Mother incorrectly references 2016.
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Notes of testimony, 7/13/16 at 28-29. Pursuant to court order, Mother was
also referred for parenting classes and anger management, as well as
random drug screens. (See DHS Exhibit 2.) Significantly, Ms. Koslosky
expressed her belief that Mother had not completed and complied with her
FSP objectives to move forward with reunification. (Notes of testimony,
7/13/16 at 34.) Mother completed the parenting capacity evaluation,
parenting classes, and anger management. (Id. at 42-44, 50.) However,
while Mother completed parenting and anger management,11 there was
evidence that neither were effective. Foster case manager, Delores Englero,
observed no improvement in parenting, despite completion of parenting
classes, and noted concern for Mother’s behavior towards others, noting, for
example, Mother’s yelling and use of profanity, and verbal aggression. (Id.
at 56-57, 59-61.) Further, although Mother had obtained housing in a
Shelter Care Plus program, her housing had yet to be assessed by DHS due
to her lack of cooperation and contact with DHS. (Id. at 31-32, 50.)
11
Ms. Koslosky testified that there was no certificate as to completion of
anger management in the file. (Id. at 42-44.) However, Ms. Koslosky
indicates the parenting capacity evaluation reflects completion, as does the
court record. (Id.; DHS Exhibit 2 at 20-22.)
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Moreover, as reported by Ms. Englero, this housing was not stable as it was
“contingent” on reunification with Child.12 (Id. at 61.)
In addition, although Mother previously attended therapy at ARC,
provided through Community Council (id. at 29), no evidence was offered
establishing compliance with mental health treatment.13 (Id. at 29-30, 50.)
Similarly, no evidence was offered establishing compliance with drug and
alcohol treatment. (Id. at 30-31, 50, 62.) As testified by Ms. Koslosky,
Mother failed to report to CEU in 2016. (Id. at 30.) Mother, therefore, last
submitted to screening in June and July 2015. (Id. at 48.) Critically,
Ms. Koslosky stated she was unable to send Mother for screening due to
Mother’s unresponsiveness. (Id. at 42.) Moreover, DHS was unable to
acquire signed releases in order to obtain documentation to determine
Mother’s compliance due to Mother’s lack of cooperation and contact. (Id.
at 29-31, 47-48.)
Lastly, Mother’s visitation with Child remained supervised until
suspended in June 2016. (Id. at 51.) Notably, Mother’s visitation, after
commencing as supervised on a weekly basis at the foster care agency, was
12
As testified by Ms. Koslosky, “in order to obtain housing through Shelter
Care Plus, [Mother] would need either have to have a drug and alcohol
addiction or mental health Axis 1 diagnosis.” (Notes of testimony, 7/13/16
at 31-32.) Ms. Englero indicated that the social worker she spoke with
regarding Mother’s housing program did not, however, report any
requirements related to sobriety or enrollment in a mental health program.
(Id. at 62).
13
Mother had a history of depression and anxiety. (Id. at 32.)
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altered to therapeutic visitation at ATA from February through March of
2015.14 (Id. at 52.) Ms. Englero, who supervised the visitation at the
agency (id. at 33), recounted that Mother’s visitation subsequently became
inconsistent and was eventually changed to biweekly in February 2016. (Id.
at 51-52, 59, 66.) After Mother’s last visit with Child in June 2016,15
Mother’s visitation was suspended by the trial court due to a negative impact
on Child, including self-induced vomiting resulting in weight loss, enuresis,
and encopresis.16 (Id. at 36, 54-55; DHS Exhibit 3.) Consultation with
Child’s therapist from Northeast Treatment Centers (“NET”) Behavioral
Health & Social Services yielded support for suspended visitation. (Id. at
40-41; Child Advocate Exhibit 1.) Director of OP and Specialized Services,
Harry Allen, noted in part, “past parental contacts have resulted in a
significant increase in problematic behaviors in the home, refusal to eat,
sleep difficulties, and difficulty with emotional regulation.” (Child Advocate
Exhibit 1.)
14
As testified by Ms. Englero, Mother was referred for therapeutic visitation
due to the focus on the telephone during Mother’s visits with Child. (Id. at
58-59, 66-67.)
15
We observe that there was a three-month gap in visitation prior to this
visit. (Id. at 36, 54.)
16
Mother’s visitation was suspended by agreement of DHS and the child
advocate pending the goal change/termination hearing. Counsel for Mother
had no position. (DHS Exhibit 3.) Significantly, Mother did not appreciate
the connection between visitation and Child’s behavior/health. Mother’s
reaction to the suspension of her visitation and reasoning was “‘what does
that have to do with me?’” (Notes of testimony, 7/13/16 at 56.)
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As this court has stated, “[A] child’s life cannot be held in abeyance
while a parent attempts to attain the maturity 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.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa.Super. 2006). Hence, the record substantiates the conclusion
that Mother’s repeated and continued incapacity, abuse, neglect, or refusal
has caused Child to be without essential parental control or subsistence
necessary for his physical and mental well-being. See In re Adoption of
M.E.P., 825 A.2d at 1272. Moreover, Mother cannot or will not remedy this
situation. See id. As noted above, in order to affirm a termination of
parental rights, we need only agree with the trial court as to any one
subsection of Section 2511(a) before assessing the determination under
Section 2511(b), and we, therefore, need not address any further
subsections of Section 2511(a). In re B.L.W., 843 A.2d at 384.
We next determine whether termination was proper under
Section 2511(b). Our supreme court has stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S. § 2511(b). The
emotional needs and welfare of the child have been
properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M.,
53 A.3d 781, 791 (Pa.Super. 2012). In In re E.M.,
620 A.2d [481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare”
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requires consideration of the emotional bonds
between the parent and child. The “utmost
attention” should be paid to discerning the effect on
the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791. However, as discussed
below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “[T]he court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal
citations omitted).
Our supreme court has stated that, “[c]ommon sense dictates that
courts considering termination must also consider whether the children are
in a pre-adoptive home and whether they have a bond with their foster
parents.” T.S.M., supra at 268. The court directed that, in weighing the
bond considerations pursuant to Section 2511(b), “courts must keep the
ticking clock of childhood ever in mind.” Id. at 269. The T.S.M. court
observed that, “[c]hildren are young for a scant number of years, and we
have an obligation to see to their healthy development quickly. When courts
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fail . . . the result, all too often, is catastrophically maladjusted children.”
Id.
Moreover,
While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b)
best-interest analysis, it is nonetheless only one of
many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the
trial court can equally emphasize the
safety needs of the child, and should also
consider the intangibles, such as the
love, comfort, security, and stability the
child might have with the foster
parent. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33
A.3d 95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
In determining that termination of Mother’s parental rights favored
Child’s needs and welfare, the court concluded:
The [c]ourt further found that because there
was not a strong bond between Mother and M.B.H.,
terminating parental rights would not cause the
child[] irreparable harm and would be in the best
interest of the child pursuant to 23 [Pa.C.S.A.
§ 2511(b)].
At the Termination Hearing, the DHS Social
Worker testified that the child had developed a
strong bond with the caregivers since being in care.
The DHS worker testified:
She’s (M.B.H.) in a wonderful foster
home. They’re-she is very bonded with
her foster parents, they love her deeply.
They would love to adopt her. She’s
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been there almost three years. The
foster parents are who she knows as her
mother and father. They’re the people
that take care of her each day.
M.B.H. is very well bonded with the
foster mother and father. She’s also
bonded with the foster children in the
home, the foster siblings. M.B.H. refers
to P.A.H. as her other mother, and she
says she does not want to go see her
other mother, she only wants to stay in
this house (the foster home).
The DHS worker testified that there was a
degree of a disconnect between M.B.H. and Mother
during Mother’s visits:
Mom would pass M.B.H. the phone to
play with it or call someone and have
M.B.H. talk to them. It was -- I think
there was just a handful of times where
mom brought healthy snacks that were
allowed to M.B.H. and actually sat there
and interacted. It was more based
around the phone.
At the Termination Hearing, the DHS worker
testified that M.B.H. would not suffer irreparable
harm if Mother’s parental rights were terminated,
that the change of adoption would be in [C]hild’s
best interests. The testimony of the DHS Worker
was deemed to be credible and accorded great
weight. As the testimony before this [c]ourt on
July 13, 2016 indicates, the evidence is clear and
convincing that Mother did not remedy the conditions
that caused her child to come into care and thus has
been and continues to be unable to provide proper
care for her child, warranting involuntary termination
of the [m]other’s parental rights pursuant to
23 [Pa.C.S.A. § (a)(1), (2), (5), and (8)]. This
[c]ourt further concluded that termination of
Mother’s parental rights would be in the best interest
of M.B.H.
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Trial court opinion, 9/7/16 at 10-11 (unpaginated; citations to record
omitted).
Mother, however, maintains that there continued to be a bond
between her and Child. (Mother’s brief at 12.) She further points to the
trial court’s reliance on non-expert testimony. (Id.) Mother argues that,
prior to the termination of her parental rights, the trial court “should have
considered the bond between her and the child as it affects and impacts the
needs and welfare of the child.” (Id.) Again, we disagree.
Upon review, the record supports the trial court’s finding that Child’s
developmental, physical, and emotional needs and welfare favor termination
of Mother’s parental rights pursuant to Section 2511(b). There was
sufficient evidence to allow the trial court to make a determination of Child’s
needs and welfare, and as to the existence of a bond between Mother and
Child that, if severed, would not have a detrimental impact on her.
Noting Mother’s lack of knowledge and ability to address Child’s
medical conditions and needs,17 Ms. Koslosky explained that Mother was not
in a position to care for child on full-time basis. (Notes of testimony,
7/13/16 at 32.) She further indicated that Mother could not safely take
17
Child “attends therapy sessions at [t]he NET. She also sees a few
specialists at Saint Christopher’s. She’s monitored by the growth clinic
because when she was initially placed with DHS, she was at a zero percentile
for weight and height.” (Notes of testimony, 7/13/16 at 5.) Child takes
approximately six medications in the morning and six medications at night,
suffering from asthma, acid reflux, and failure to thrive. (Id. at 12.)
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Child home and care for her. (Id. at 36.) By way of explanation,
Ms. Koslosky referenced Mother’s lack of concern and/or inquiry regarding
Child and her medical condition after the last visit. (Id.)
Likewise, Ms. Englero expressed concerns as to Mother’s ability to
parent Child, noting Mother’s visitation with Child never progressed beyond
supervised, as well as Mother’s failure to appreciate the impact of visitation
on Child. (Id. at 56.) Further, while acknowledging Mother completed
parenting classes, Ms. Englero observed no improvement. (Id.) She
highlighted Mother’s inconsistency regarding visitation with Child (id. at 56),
as well as continuing concerns regarding Mother’s behavior toward others.
(Id. at 57.)
As indicated above, Mother’s visitation with Child was inconsistent and
had a negative impact on Child, both physically and emotionally. In
addition, as relayed by Ms. Englero, Child did not want to see Mother.
Ms. Englero testified that upon being informed of the suspension of
visitation, Child stated, “I don’t want to see the other mommy [Mother]. I
want to stay here with this mommy [Foster Mother].” (Id. at 63-64.)
Moreover, and more importantly, Child is in a pre-adoptive home
where she has resided since being removed from Mother. Child has formed
a positive relationship with her foster family and desires to remain with her
foster family. As described by Ms. Koslosky, “She’s in a wonderful foster
home. They’re -- she is very bonded with her foster parents, they love her
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dearly. They would love to adopt her. She’s been there almost three years.
The foster parents are who she knows as her mother and father. They’re
the people that take care of her each day.” (Id. at 34.) Similarly,
Ms. Englero offered, “[Child] is very well bonded with the foster mother and
foster father. She’s also bonded with the foster children in the home, the
foster siblings. [Child] refers to [Mother] as her other mother, and she says
she does not want to go see her other mother. She only wants to stay in
this house.” (Id. at 56.) As such, both opined that it was in Child’s best
interest for the goal to be changed to adoption and that Child would not
suffer any irreparable harm as a result of terminating Mother’s parental
rights. (Id. at 34, 55.)
Thus, as confirmed by the record, termination of Mother’s parental
rights serves Child’s developmental, physical, and emotional needs and
welfare. While Mother may profess to love Child, a parent’s own feelings of
love and affection for a child, alone, will not preclude termination of parental
rights. In re Z.P., 994 A.2d at 1121. As we stated, a child’s life “simply
cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” Id. at 1125. Rather, “a parent’s
basic constitutional right to the custody and rearing of his child is converted,
upon the failure to fulfill his or her parental duties, to the child’s right to
have proper parenting and fulfillment of his or her potential in a permanent,
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healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856 (Pa.Super.
2004) (citation omitted).
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Mother’s
parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 8/4/2017
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