In the Int. of: I.E.M.C., Appeal of: E.N.W.

J-S56033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: I.E.M.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: E.N.W., MOTHER :
:
:
:
: No. 1237 EDA 2019
Appeal from the Decree Entered April 8, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000922-2017
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 10, 2019
Appellant E.N.W. (Mother) appeals from the decree granting the petition
of the Philadelphia Department of Human Services (DHS) to involuntarily
terminate her parental rights to I.E.M.C. (the Child), born in June 2015,
pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).1
Mother argues that the trial court erred in finding that she demonstrated a
settled intent to relinquish her parental claim to the Child. We affirm.
The trial court set forth the relevant background and procedural history
as follows:
On June 29, 2016, the Child was adjudicated dependent and
committed to DHS because of present inability. The family
became known to DHS in June 2015 when DHS received a
[General Protective Services (GPS)] report where the Child tested
positive at birth for marijuana and [phencyclidine (PCP)].
____________________________________________
1The Child’s father, J.D.C. (Father), voluntarily terminated his parental rights.
Father did not appeal and is not a party to this appeal.
J-S56033-19
Consequently, “home services were implemented at that time.”
Subsequently, on March 24, 2016, DHS received another GPS
report alleging that Mother has tested positive for PCP at Pathways
and Pathways was planning on discharging [M]other from the
program.
Based on those concerns, Danielle Johnson Kennedy, the
Community Umbrella Agency (CUA) case manager, testified that
her agency established a single case plan [(SCP)] that was
periodically reviewed, throughout the life of the case. On
September 20, 2017, DHS filed petitions to involuntary terminate
Mother’s parental rights to the Child pursuant 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b) and to change the Child’s
permanency goal to adoption. [Following several continuances,
the trial court] conducted a combined termination and goal change
hearing (collectively the “TPR” hearing) on April 8, 2019.[2] At the
TPR hearing, Ms. Kennedy testified that Mother’s [SCP] objectives
were as follows: (1) attend a dual diagnosis program and attend
[the clinical evaluation unit (CEU)] for screens, assessment, and
monitoring; (2) obtain appropriate housing; (3) follow the
visitation plan arranged by all parties; (4) comply with CUA; and
____________________________________________
2 Prior to the TPR hearing, the trial court appointed Andre Martino, Esq.,
guardian ad litem, and Maureen Pié, Esq., child advocate, to represent the
Child. Further, we note that the Child was three years old and could not
express a preference in the outcome. Therefore, the Child’s right to counsel
under 23 Pa.C.S. § 2313(a) was satisfied. See In re Adoption of K.M.G.,
___ A.3d ___, 2019 Pa. Super. 281, 2019 WL 4392506 (Sept., 13, 2019) (en
banc) (holding that (1) “this Court’s authority is limited to raising sua sponte
the issue of whether the orphan’s court violated Section 2313(a) by failing to
appoint any counsel for the Child in a termination hearing,” and (2) we may
not “review sua sponte whether a conflict existed between counsel’s
representation and the child’s stated preference in an involuntary termination
of parental rights proceeding” (citations omitted) (emphasis in original)). We
add that there was no apparent conflict between the Child’s best interests and
legal interests. See id.; see also In re T.S., 192 A.3d 1080, 1089-90, 1092-
93 (Pa. 2018) (reaffirming the ability of an attorney-guardian ad litem to serve
a dual role and represent a child's non-conflicting best interests and legal
interests); In re Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017)
(plurality) (stating that, 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 the child's legal interests, defined
as a child's preferred outcome).
-2-
J-S56033-19
(5) attend [the Achieving Reunification Center (ARC)] for
parenting and housing.
Ms. Kennedy stated that Mother understood that compliance with
these objectives was a necessary step before reunification with
the Child was to occur. With regards to Mother’s compliance with
her objectives, Ms. Kennedy testified that Mother completed ARC
for parenting and housing. However, Ms. Kennedy also testified
that Mother did not have stable housing. Ms. Kennedy further
testified that Mother completed a CEU assessment that
recommended a “long term dual diagnosis treatment” inpatient
program at Gaudenzia Together House. Mother indicated she was
not willing to do an inpatient program. However, Ms. Kennedy
indicated that Mother was willing to engage in an outpatient dual
diagnosis program. Ms. Kennedy further stated that Mother had
not successfully completed [a] drug and alcohol treatment
program. Ms. Kennedy also testified that Mother continued to test
positive for marijuana and PCP.
Mother was initially offered weekly supervised visits with the
Child, but those visits were changed to biweekly after Mother
failed to attend any visits for a year. Ms. Kennedy testified that,
even before the year hiatus, Mother had never been consistent
with her visits and that those visits never progressed to
unsupervised visits due to Mother consistently testing positive.
With respect to the Child, Ms. Kennedy indicated that maternal
cousin [(Foster Mother)] is the one that meets all of her general,
medical, and emotional needs. Ms. Kennedy also indicated that
the Child does not share a bond with Mother and does not look to
Mother as a caregiver but rather sees [Foster Mother] as her
mother. Ms. Kennedy further indicated that it would not cause
irreparable harm to the Child to terminate the rights of Mother
and that it is in the best interest of the Child to change the goal
to adoption.
Trial Ct. Op., 7/17/19, at 1-3 (record citations omitted and some formatting
altered).
In addition to the testimony summarized above, Mother testified that
she no longer uses drugs and consistently attends a treatment program. N.T.,
4/8/19, at 25. Mother also explained that she is currently employed and
-3-
J-S56033-19
actively seeking stable housing. Id. at 26. The child advocate explained that,
though Mother has made some attempts to rectify the conditions leading to
the Child’s removal, “she has not been able to come to grips with what she
needs to do in enough time to prevent harm to [the Child] should [the Child]
have to be moved from the home she’s been in now for three years.” Id. at
30.
The trial court concluded that DHS presented clear and convincing
evidence to involuntarily terminate Mother’s parental rights and addressed
Mother as follows:
[W]e’re in the same situation that we [were] in when you initially
came in. The Child was born positive for PCP. Last month[,] you
once again tested positive for PCP. You haven’t changed your
drug use at all. You don’t have any housing. You said you just
found out you’re dealing with these mental health and drug issues
....
From the moment this case came in . . . , [the trial court] has tried
to help you. We sent you to a dual diagnosis continually to get
mental health treatment. You said you’re just finding out about
your mental health issues. Well[,] we tried to help you but you
didn’t want our help.
* * *
We sent you to the things that were going to be necessary for you
to get yourself straight and to become a parent. But not only
didn’t you take advantage of them, you just disappeared out of
the [C]hild’s life for a year.
Id. at 31-32.
On April 8, 2019, the trial court entered a decree involuntarily
terminating the parental rights of Mother under 23 Pa.C.S. § 2511(a)(1), (2),
-4-
J-S56033-19
(5), (8), and (b). On April 29, 2019, Mother filed a timely notice of appeal
and a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother raises a single issue for our review:
Whether the trial court committed reversible error when it
involuntarily terminated [M]other’s parental rights where such
determination was not supported by clear and convincing evidence
under the Adoption Act, 23 Pa.C.S.[] § 2511(a)(1), (2), (5), and
(8)?
Mother’s Brief at 4 (full capitalization omitted).
Mother contends that she made progress toward her SCP objectives and
demonstrated a willingness to remedy the conditions that led to the Child’s
removal. Id. at 11. Further, Mother argues that the trial court erred in finding
that she exhibited a settled intent to relinquish her parental claim to the Child.
Id. Based upon the foregoing, Mother insists that DHS did not present clear
and convincing evidence that she failed or refused to perform her parental
duties. Id.
In reviewing an appeal from an order terminating parental rights, we
apply the following standard of review:
[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. [In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010)]. 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 merely because the reviewing court
-5-
J-S56033-19
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.
As we discussed in R.J.T., there are clear reasons for applying an
abuse of discretion standard of review in these cases. We
observed that, unlike 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) (some citations
omitted).
The burden is on the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
defined as testimony that is so ‘clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.’” Id. (citation omitted).
Here, the trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). Trial Ct. Op. at 1. However, this
Court may affirm the trial court’s termination of parental rights if any one
subsection of Section 2511(a) and Section 2511(b) have been established.
-6-
J-S56033-19
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Accordingly, we initially focus our review on Section 2511(a)(2) which
provides:
§ 2511. Grounds for involuntary termination
(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 condition and
causes of the incapacity, abuse neglect or refusal cannot or
will not be remedied by the parent.
23 Pa.C.S. § 2511(a)(2).
The Pennsylvania Supreme Court has held that “when a parent has
demonstrated a continued inability to conduct his or her life in a fashion that
would provide a safe environment for a child . . . and the behavior of the
parent is irremediable as supported by clear and competent evidence, the
termination of parental rights is justified.” In re Adoption of Michael J.C.,
486 A.2d 371, 375 (Pa. 1984).
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
-7-
J-S56033-19
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted).
Further, “[t]he 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) (citation omitted). “Parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. . . . [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.” In re A.L.D., 797 A.2d
326, 340 (Pa. Super. 2002) (citations and quotation marks omitted).
Instantly, the trial court found CUA case manager Danielle Johnson-
Kennedy to be credible. Her testimony established that on June 8, 2015, DHS
received a GPS report that the Child tested positive for PCP at birth and in-
home services were provided for the family. See N.T., 4/8/19, at 6. Following
a second GPS report, DHS obtained an order of protective custody for the
Child. Id. at 6-7. Subsequently, DHS established SCP objectives for Mother.
Id. at 9. Mother’s SCP objectives remained unchanged throughout the life of
the case. Id. 10. The SCP objectives called for Mother to follow a weekly
visitation schedule. Id. Mother did not comply and her visits with the Child
were sporadic throughout the life of the case. Id. at 15. Mother participated
in her last weekly visit on August 30, 2017. Id. In October 2018, Mother’s
-8-
J-S56033-19
visits were reduced from weekly to biweekly after Mother missed visits with
the Child for over a year. Id. at 14-15.
Further, as part of the SCP, Mother understood that drug and mental
health treatment and diagnosis were essential before reunification could occur
with the Child. Id. at 10. However, Mother did not complete the required
dual diagnosis assessment until several months after the termination petition
was filed. Id. at 11. Mother’s attendance in drug treatment programs was
inconsistent. Id. at 13-14. Although Mother had begun regularly attending
drug treatment just prior to the hearing, she continued to test positive for
PCP. Id. at 14. At the time of the hearing, Mother had not obtained stable
housing. Id. at 11. While Mother attended ARC’s housing and parenting
programs, she did not complete her other four SCP objectives. Id. at 10-11.
For these reasons, “[the trial court] found that Mother’s failure to comply
with CUA and consistently visit the Child has left the Child without essential
parental care, and the cause of such neglect, refusal and continued incapacity
will not be remedied by Mother.” Trial Ct. Op. at 8. Our review reveals that
the record supports the trial court’s conclusion. See M.E.P., 825 A.2d at
1272. Further, Mother’s actions after DHS filed the petition to terminate were
insufficient to show her ability to remedy the circumstances which lead to her
continued incapacity. See id. at 1275. Accordingly, we conclude that the trial
court’s decision to terminate the parental rights of Mother pursuant to Section
2511(a)(2) is supported by competent, clear, and convincing evidence in the
record. See S.P., 47 A.3d at 826-27.
-9-
J-S56033-19
Mother does not challenge the trial court’s analysis of Section 2511(b)
in her brief. While we could find such an issue waived for failure to present
an argument or cite legal authority, we will address the issue of the Child’s
best interests. In re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc)
(addressing the best interests of the child under Section 2511(b) sua sponte).
But see M.Z.T.M.W., 163 A.3d 462, 466 & n.3 (Pa. Super. 2017).
Section 2511(b) states:
(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.
23 Pa.C.S. § 2511(b).
This Court has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the
child. See C.L.G., 956 A.2d at 1008. In reviewing the evidence in support of
termination 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 In re E.M., 620 A.2d [481,
485 (Pa. 1993)], this Court held that the determination of the
child’s “needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of permanently
severing the parental bond.
- 10 -
J-S56033-19
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations omitted).
When evaluating a parental bond, “the 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) (citations
omitted). Further, “in cases where there is no evidence of a bond between a
parent and child, it is reasonable to infer that no bond exists.” In re Adoption
of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citation omitted).
As to Section 2511(b), the trial court determined that the Child would
not suffer irreparable emotional harm if Mother’s parental rights were
terminated. Ms. Kennedy testified that she observed the Child’s interactions
with Mother and Foster Mother. N.T., 4/8/19, at 18, 21. Based on her
evaluation of those interactions, Ms. Kennedy stated that the Child does not
look to Mother as a caregiver and does not share a bond with her. Id. at 16.
She further explained that Mother does not meet any of the Child’s daily,
emotional, or medical needs. Id.
Ms. Kennedy testified that the Child has been in the kinship care of
Foster Mother, a maternal cousin, since June 2016. Id. In that time, the
Child has developed a caregiver bond with Foster Mother and calls Foster
Mother “Mom”. Id. at 17. Moreover, Foster Mother provides safety and
stability for the Child and meets all of the Child’s needs. Id.
- 11 -
J-S56033-19
Based on our review of the record, we find no abuse of discretion or
error of law in the trial court’s decision to terminate Mother’s parental rights
under Section 2511(b). See S.P., 47 A.3d at 826-27. The trial court
considered the Child’s needs and welfare, as well as the effects of termination
on the Child. Accordingly, no relief is due.
In sum, we find that the trial court’s decision to terminate Mother’s
parental rights under Section 2511(a)(1) and (b) is supported by competent,
clear and convincing evidence in the record. See id.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/19
- 12 -