In the Interest of: N.A.B. Appeal of: Y.B.

J-S65045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.A.B., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: Y.B., MOTHER
No. 1032 EDA 2014
Appeal from the Decree January 28, 2014
in the Court of Common Pleas of Philadelphia County
Family Court at Nos.: CP-51-0000659-2010;
CP-51-AP-0000119-2012;
FID: 51-FN-001136-2011
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 05, 2015
Y.B. (“Mother”) appeals from the decree entered on January 28, 2014,
in the Philadelphia County Court of Common Pleas, involuntarily terminating
her parental rights to her minor child, N.A.B. (“Child”), born in August of
2008. We affirm.1
The relevant facts and procedural history of this case are as follows.
On April 19, 2010, the City of Philadelphia Department of Human Services’
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
At the January 28, 2014 termination hearing, A.S. (“Father”) indicated his
willingness to sign petitions for voluntary relinquishment and to confirm
consent. (See N.T. Hearing, 1/28/14, at 4-5). Thereafter, Father signed
both petitions and, on May 27, 2014, the trial court entered a decree
terminating Father’s parental rights to Child pursuant to the petition to
confirm consent.
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Children and Youth Division (“DHS”) received a General Protective Services
(“GPS”) report alleging that Mother had tested positive for marijuana and
benzodiazepines during the birth of Child’s sibling. (See N.T. Hearing,
1/28/14, at 66-67). At the time, Child resided with Mother and a paternal
relative. During DHS’ investigation of the GPS report, Mother disclosed that
she was recently released from incarceration and had a mental health
history of depression and Bipolar Disorder. (See id. at 67). DHS’
investigation substantiated the GPS report and the case was opened for
services. (See id. at 68). From May 11, 2010 to August 10, 2010, DHS
implemented In-Home Protective Services through the Juvenile Justice
Center. (See id. at 67-68).
On May 26, 2010, Mother entered an inpatient dual diagnosis drug and
alcohol program at Interim House West (“Interim House”). (See id. at 68-
69). On June 10, 2010, Mother tested positive for marijuana. (See id. at
69). On August 13, 2010, Mother left Interim House with Child without
permission. (See id.). Mother and Child’s whereabouts were unknown until
August 31, 2010, when Mother contacted DHS and reported that she and
Child were residing with a family friend, Ms. S. (See Trial Court Opinion,
6/11/14, at unnumbered page 2). Mother admitted to DHS that she left
Interim House to resume her drug use. (See N.T. Hearing, 1/28/14, at 69).
After visiting Ms. S’s home, DHS instituted a Safety Plan by which Child
could remain in Mother’s care so long as she and Child resided in the home
of Ms. S. (See Trial Ct. Op., at unnumbered page 2). Additionally, the
Safety Plan stipulated that Ms. S would keep Child in her home if Mother
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decided to leave or became incarcerated as a result of a pending assault
charge. (See id.).
On September 22, 2010, DHS filed a dependency petition on Child’s
behalf due to concerns regarding Mother’s drug use, mental health status,
and lack of appropriate supervision. (See N.T. Hearing, 1/28/14, at 70-71).
On October 12, 2010, the trial court held a dependency hearing, at the
conclusion of which it adjudicated Child dependent and ordered that Child
may remain in Mother’s custody under the supervision of DHS, subject to
certain conditions. (See Trial Ct. Op., at unnumbered page 2). Specifically,
the trial court referred Mother to the Clinical Evaluation Unit (“CEU”) for a
drug screen, dual diagnosis assessment, and monitoring. (See id.).
Further, the trial court ordered that if Mother did not follow through with the
CEU’s recommendations, had a positive drug screen, or failed to comply with
the DHS Safety Plan, DHS, upon request, would obtain an Order of
Protective Custody (“OPC”) on Child’s behalf. (See id.). Subsequently, DHS
learned that Mother violated the Safety Plan by placing Child in the care of
an unauthorized party, and, in accordance with the trial court’s dependency
order, DHS requested and obtained an OPC with respect to Child. (See id.).
On October 15, 2010, the trial court held a shelter care hearing, at the
conclusion of which it lifted the OPC and placed Child in DHS’ custody.2
(See id.). On October 27, 2010, a Family Service Plan (“FSP”) meeting was
held. The FSP objectives identified for Mother were to (1) achieve and
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2
Father did not attend the shelter care hearing because he was incarcerated
for multiple criminal convictions. (See Trial Ct. Op., at unnumbered page
2).
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maintain sobriety by participating in a substance abuse evaluation, follow all
treatment recommendations and submit to random drug screens; (2)
stabilize her mental health; (3) attend parenting education classes; and (4)
maintain a relationship with Child. (See id.).
On February 2, 2011, the trial court held a permanency review
hearing, at which DHS reported that Mother had been discharged from the
substance abuse treatment program due to non-attendance. The trial court
re-referred Mother to the CEU for drug screening and assessment. Another
permanency review hearing was held on May 10, 2011, at which DHS
reported to the trial court that Mother was non-compliant with the CEU.
Again, the trial court re-referred Mother to the CEU for a drug screen, dual
diagnosis assessment, and monitoring. At the hearing, the trial court also
noted that Child had been placed in kinship care with Child’s godmother,
T.A. (“Godmother”).
The next permanency review hearing took place on August 10, 2011,
at which the trial court found that Mother was attending treatment at Al-
Assist and participating in parenting classes. The trial court referred Mother
to the CEU for monitoring and three random drug screens to take place prior
to the next court date. The trial court also ordered that, if she rendered two
consecutive clean drug screens, Mother would be permitted to have
unsupervised day visits with Child. On November 15, 2011, the trial court
held another permanency review hearing, at which DHS reported that
Mother was non-compliant with the CEU. DHS also reported that Mother had
not visited Child. Again, the trial court re-referred Mother to the CEU for a
drug screen, dual diagnosis assessment, and monitoring. The trial court also
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ordered that Mother’s supervised visits with Child at DHS were to be reduced
to bi-weekly, but that Mother was permitted to have weekly visits with Child
at Godmother’s home.
On December 19, 2011, Mother pleaded guilty to the charge of driving
under the influence of alcohol or controlled substances, and related charges
dating back to a June 24, 2009 arrest. On February 15, 2012, Mother was
sentenced to a term of not less than seventy-two hours nor more than six
months’ incarceration, followed by two years of probation. (See DHS Exhibit
1—Criminal Docket). As conditions of her probation, Mother was required to
participate in intensive outpatient drug and alcohol treatment and to submit
to random drug screens. (See N.T. Hearing, 1/28/14, at 12). In February
2012, Mother entered a drug and alcohol treatment program at Gaudenzia.
(See id.). On March 16, 2012, DHS filed petitions for the involuntary
termination of Mother and Father’s parental rights to Child, alleging the
elements of 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b) as grounds for
termination, and for changing Child’s permanency placement goal from
reunification to adoption. Over the course of her probationary drug
screening from June to July 2012, Mother tested positive for marijuana and
benzodiazine on multiple occasions and, as a result, spent a month
incarcerated. (See id. at 14). Upon her release, Mother was ordered to
complete drug treatment at Gaudenzia and, subsequently, re-entered the
program. (See id.).
On November 19, 2012, a second dependency hearing took place, at
which the trial court found that Mother was receiving dual diagnosis
treatment at Gaudenzia and was in full compliance with the permanency
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plan. While noting that Child had been in placement for two years (since
October 15, 2010), the trial court determined that reunification remained a
viable goal for Child, and, thus, did not proceed to a hearing on DHS’
outstanding termination/goal change petitions. In January 2013, Mother
completed the Gaudenzia program and Child was returned to her care. (See
id. at 15, 41, 64). A permanency review hearing was held on April 2, 2013,
at which the trial court found that Mother had obtained appropriate housing
and had completed anger management and parenting classes and the
Gaudenzia dual diagnosis program. At the subsequent permanency review
hearing on June 25, 2013, the trial court ordered Mother to continue to
comply with mental health services and then listed the matter with a view to
discharge at the next permanency review hearing scheduled for September
10, 2013.
In August 2013, Mother tested positive for marijuana and
benzodiazepines at the birth of Child’s sibling. (See N.T. Hearing, 1/28/14,
at 15-16). Thereafter, DHS obtained an OPC for Child. A shelter care
hearing was held on August 22, 2013, at the conclusion of which the trial
court, finding that returning Child to Mother’s care was not in Child’s best
interest, placed Child in DHS’ custody and referred Mother to the CEU for a
drug screen and dual diagnosis assessment. On January 7, 2014, DHS filed
an amended petition for the involuntary termination of Mother and Father’s
parental rights to Child, alleging the elements of 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b) as grounds for termination, and for changing Child’s
permanency placement goal from reunification to adoption.
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On January 28, 2014, the trial court held a termination hearing. At
the hearing, DHS presented the testimony of Mother’s probation officer,
Michael Johnson, DHS social worker, Valerie Walker, DHS Director of
Ongoing Services, Helen Hansberry, and Lutheran Children and Family
Services of Eastern Pennsylvania (“LCFS”) social worker, Aisha Robinson.
Mother was present at the hearing but chose not to testify or present any
evidence on her behalf. At the conclusion of the hearing, the trial court
entered the underlying order, involuntarily terminating Mother’s parental
rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b),
and permitting adoption of Child to continue without further notice to, or
consent of, Mother. On February 26, 2014, Mother simultaneously filed a
timely notice of appeal and a concise statement of errors complained of on
appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).
On appeal, Mother raises a single question for our review:
Did the [trial court] err in terminating Mother’s parental rights
where [Child] was never abused or neglected, there is a strong
positive bond between Mother and [Child], and [Child] would be
harmed by the termination?
(Mother’s Brief, at 3).
We review appeals from the involuntary termination of parental rights
according to the following standard:
. . . [A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court 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. As
has been often stated, an abuse of discretion does not result
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merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
. . . [T]here are clear reasons for applying an abuse of
discretion standard of review in these cases. . . . [U]nlike trial
courts, appellate courts are not equipped to make the fact-
specific determinations on a cold record, where the trial judges
are observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the child and
parents. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations
omitted).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S.A. § 2511, which requires a bifurcated analysis:
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the
parent. The party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in Section 2511(a).
Only if the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. §
2511) (case citations omitted). The burden is upon the petitioner to prove
by clear and convincing evidence that the asserted statutory grounds for
seeking the termination of parental rights are valid. See In re R.N.J., 985
A.2d 273, 276 (Pa. Super. 2009). Moreover, we have explained: “[t]he
standard of clear and convincing evidence is defined as testimony that is so
clear, direct, weighty and convincing as to enable the trier of fact to come to
a clear conviction, without hesitance, of the truth of the precise facts in
issue.” Id. (citation and internal quotation marks omitted). “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).
Here, the trial court terminated Mother’s parental rights pursuant to
section 2511(a)(2)3 and (b), which provide, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
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3
We are cognizant that the court also found a legal basis for terminating
Mother’s rights pursuant to section 2511(a)(1), (5), and (8). (See Decree of
Involuntary Termination of Parental Rights, 1/28/14, at 1-2). However,
Mother’s question on appeal focuses on the language in section (a)(2), (see
Mother’s Brief, at 3), and this Court may affirm the trial court’s decision
regarding the termination of parental rights with regard to any one
subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004) (stating
that “[w]hile the trial court found that . . . CYS met its burden of proof under
each section [2511(a)(1), (2), (5) and (8)] we need only agree with its
decision as to any one subsection in order to affirm the termination of
parental rights.”) (citations omitted).
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(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
* * *
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
* * *
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
Our Supreme Court set forth the relevant inquiry under section
2511(a)(2) as follows:
[Section] 2511(a)(2) provides statutory grounds for termination
of parental rights where it is demonstrated by clear and
convincing evidence that [t]he 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. . . .
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
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A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature, however,
in enacting the 1970 Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.
In re Adoption of S.P., supra at 827 (citations and quotation marks
omitted).
Further, this Court has long recognized that “[p]arents are required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities.” In re A.L.D., 797 A.2d 326, 340 (Pa. Super.
2002) (citation omitted). “[A] parent’s vow to cooperate, after a long period
of uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous.” Id. (citation omitted).
In her brief on appeal, Mother challenges the trial court’s weighing of
the evidence under section 2511(a). Mother contends that the trial court, in
weighing the evidence before it, relied too heavily on the fact of Mother
testing positive for drugs at the birth of Child’s sibling in August 2013 and
accorded little weight to Mother consistently testing negative for drugs from
August 2012 through July 2013. (See Mother’s Brief at 6-8). Mother also
avers that she re-entered treatment immediately after testing positive in
August 2013. (See id. at 8). As such, Mother argues that, given this
lengthy period of sobriety in conjunction with her continual efforts and
commitment to seek treatment, the trial court, in concluding that the
circumstances warranted termination of parental rights under section
2511(a)(2), accorded improper weight to what Mother characterizes as “a
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momentary relapse during an extended period of improvement,” and,
thereby, committed an abuse of discretion. (Id. at 8). We disagree.
Mother’s argument is, in effect, an attempt to have this Court re-weigh
the evidence presented and revisit the credibility determinations of the trial
court. However, it is well established that “[t]he trial court, not the
appellate court, is charged with the responsibilities of evaluating credibility
of the witnesses and resolving any conflicts in the testimony.” In re
Adoption of R.J.S., 901 A.2d 502, 506 (Pa. Super. 2006) (citation
omitted). Further, if competent evidence supports the trial court’s findings,
we will affirm even if the record could also support the opposite result. See
In re Adoption of S.P., supra at 827. Here, we are satisfied that the trial
court’s findings are supported by clear and convincing, competent, and
sufficient evidence in the record. Accordingly, Mother’s argument provides
no grounds for relief.
Moreover, our review of the record belies Mother’s attempt to
characterize her most recent positive drug test as the product of “a
momentary relapse during an extended period of improvement.” (Mother’s
Brief at 8). On the contrary, the record evidences a recurring pattern of
Mother receiving treatment for her issues with substance abuse only to
suffer a relapse, which has endured for almost four years notwithstanding
both criminal court and dependency court oversight and DHS’ repeated
provision of rehabilitative services and assistance. The record establishes
that Mother was referred to the CEU for dual diagnosis treatment on five
separate occasions but was unable to achieve any lasting success towards
sobriety. Indeed, even the possibility of incarceration resulting from a
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violation of the terms of her probation and the risk to the health of her
unborn child proved incapable of dissuading Mother from abusing drugs prior
to the birth of Child’s sibling in August 2013. Under these circumstances, we
are convinced that Mother’s chronic inability to achieve and maintain
sobriety has caused Child to be without essential parental care, control, or
subsistence, and that the trial court reasonably concluded that Mother is
incapable of curing her substance abuse problems, thus warranting
termination of her parental rights under section 2511(a)(2). Accordingly, we
discern no abuse of discretion or error of law in the trial court’s decision to
terminate Mother’s parental rights to Child pursuant to section 2511(a)(2).
We now turn our attention to section 2511(b) to determine if the trial
court properly found that termination was in the best interest of Child. This
Court recently explained the requisite analysis under section 2511(b) as
follows:
Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of a child. The
trial court also must discern the nature and status of the parent-
child bond, with utmost attention to the effect on the child of
permanently severing that bond. The extent of the bond-effect
analysis necessarily depends upon the unique facts and
circumstances of the particular case.
We observe that [the trial] court is not required by statute
or precedent to order a formal bonding evaluation by an expert.
Indeed, in assessing the parental bond, the [trial] court is
permitted to rely upon the observations and evaluations of social
workers. Moreover, the mere existence of an emotional bond
does not preclude the termination of parental rights. . . .
[I]n addition to a bond examination, the trial
court can equally emphasize the safety needs of the
child, and should consider the intangibles, such as
the love, comfort, security, and stability the child
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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 K.M., 53 A.3d 781, 791 (Pa. Super. 2012) (citations omitted).
Here, Mother argues that the trial court, in finding that termination of
her parental rights would best serve the needs and welfare of Child pursuant
to section 2511(b), failed to give adequate consideration to testimony of the
strong positive bond that exists between Mother and Child. (See Mother’s
Brief, at 9-10). In support of her claim, Mother references the testimony of
DHS social worker, Ms. Walker, who “stated that there is clearly affection
between Mother and [Child] and that they are strongly bonded to each
other.” (Id. at 9). Mother also cites the testimony of LCFS social worker,
Ms. Robinson, who “characterized the interaction between Mother and
[Child] as a positive attachment” and “further testified that [Child] loves
Mother, enjoys visiting with her, and that Mother provides [Child] with love
and educational support.” (Id. at 9-10) (emphasis in original). As such,
Mother contends that the evidence establishes the existence of a strong
positive bond between her and Child, the severing of which will detrimentally
impact Child, and, thus, that the trial court erred in its analysis under
section 2511(b). (See id. at 11-13).
In its Rule 1925(a) opinion, with respect to section 2511(b), the trial
court noted its findings as follows: “In the instant matter, the testimony
established that [Child] would not suffer any irreparable emotional harm if
[Mother’s] parental rights were terminated. [Child] has bonded with
[Godmother during foster care placement]. Additionally, the testimony
described the relationship between [Child] and [Godmother] as strong and
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loving.” (Trial Ct. Op. at 5-6 (record citations omitted)). Our review of the
record indicates that there is clear and convincing, competent, and sufficient
evidence to support the trial court’s findings. Although there is evidence to
support Mother’s claim that she and Child share a bond, the existence of a
parent-child bond in no way serves to preclude the termination of parental
rights. See In re K.M., supra at 791. Rather, the existence of a parent-
child bond is only one of a number of factors that the trial court must
consider in conducting a needs and welfare analysis under section 2511(b).
Indeed, because the trial court must consider the totality of the
circumstances in determining a child’s best interest, “[t]he question
becomes whether the bond between [child] and [parent] is one worth saving
or whether it could be sacrificed without irreparable harm to [the child].” In
re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).
At the termination hearing in the instant case, DHS social worker, Ms.
Walker, DHS Director of Ongoing Services, Ms. Hansberry, and LCFS social
worker, Ms. Robinson, each testified to her professional opinion that
Mother’s parental rights should be terminated, notwithstanding the bond
between Mother and Child. (See N.T. Hearing, 1/28/14, at 38, 51, 55-56,
79, 84-85). Moreover, both Ms. Walker and Ms. Hansberry testified that
Child would not be irreparably harmed by severance of the bond between
Mother and Child, and that it was in Child’s best interest to be free for
adoption. (See id. at 38-39, 49-50, 79, 81-82). Ms. Hansberry also
testified that Child has done well in adjusting to different caregivers, stating,
“I think [Child] has a connection to [Mother] but that [Child] has learned
that there are other caretakers who will provide the parenting for [Child],
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given the inconsistency and the disruptions that [Child] has had so far.”
(Id. at 82). In fact, the testimony and evidence established that Child
shares an equally compelling parent-child bond with Godmother, who has
presented herself as a possible adoption resource for Child, and with whom
Child lived from early 2011 to January 2013 after being placed in kinship
care. (See id. at 52-53, 79). Further, despite Mother’s willingness to
perform her role as Child’s parent, the fact of her ongoing inability to
achieve lasting sobriety is a cause for uncertainty about whether Mother is
even capable of providing Child with a stable environment in which to live.
Therefore, we determine that it was appropriate for the trial court to
find that termination of Mother’s parental rights would not cause irreparable
harm to Child and would be in Child’s best interest. In consideration of
these circumstances and our careful review of the record, we conclude that
the trial court did not abuse its discretion or commit an error of law in
finding competent evidence to support the termination of Mother’s parental
rights to Child under section 2511(b).
Accordingly, for the reasons stated above, we affirm the trial court’s
decree involuntarily terminating Mother’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2015
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