In the Interest of: M.R.M., A Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.R.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.M., MOTHER :
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: No. 2689 EDA 2018
Appeal from the Order Dated August 16, 2018,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-DP-0001528-2014.
IN THE INTEREST OF: M.R.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.M., MOTHER :
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: No. 2690 EDA 2018
Appeal from the Order Dated August 16, 2018,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-AP-0001242-2016.
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: D.M., MOTHER :
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: No. 2691 EDA 2018
Appeal from the Order Dated August 16, 2018,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-DP-0002543-2016.
IN THE INTEREST OF: J.N.D.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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:
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APPEAL OF: D.M., MOTHER :
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: No. 2692 EDA 2018
Appeal from the Order Dated August 16, 2018,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-AP-0000340-2018.
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 15, 2019
In this consolidated appeal, D.M. (Mother) appeals the orders
terminating her parental rights to 4-year-old M.R.M. and 21-month-old
J.N.D.B. pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a) and (b).1, 2
Mother also appeals the orders changing their dependency goals from
reunification to adoption pursuant to 42 Pa.C.S.A. § 6351.3 We affirm.
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1 As to M.R.M., the court terminated Mother’s rights pursuant to § 2511(a)(1),
(2), (5) and (8). As to J.N.D.B., the court terminated Mother’s rights pursuant
to § 2511(a)(1) and (2).
2 The court also terminated parental rights of M.M. (Father). He does not
appeal.
3 We observe that Mother properly appealed from both sets of dockets for
each child, thereby properly preserving appellate review of all of her issues.
See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that when
a single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed; the failure to do so will result in
quashal of the appeal.)
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The trial court thoroughly set forth the extensive factual background and
procedural history of this case in its opinion filed pursuant to Pa.R.A.P.
1915(a), which we adopt herein. See Trial Court Opinion, 10/19/18 at 1-50.
Importantly, on August 16, 2018, the trial court held an evidentiary hearing
on the termination petitions with regard to Mother. Counsel properly
represented the children pursuant to 23 Pa.C.S.A. § 2313(a).4 The court
terminated Mother’s rights and changed the children’s goals from reunification
to adoption. Mother filed this timely appeal.
On December 2, 2018 Mother’s counsel filed a motion to withdraw as
counsel and an Anders Brief on behalf of Mother. In his Anders brief on
appeal, Mother’s counsel raises the following issues on behalf of Mother, which
we restate as they appear on Mother’s Notice and Concise Statement of Errors
Complained of on Appeal:
1. The trial court committed reversible error when:
a. It failed to appoint legal counsel for the
sibling J.N.D.B.
b. It permitted the City to proceed upon a
Petition that had grown stale;
c. It misheard and misinterpreted bonding
evidence;
d. It concluded there was a nexus between
Mother's marijuana use and an inability to
parent;
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4 In her first appellate issue, Mother disputes the adequacy of the J.N.D.B.’s
representation. We agree with the trial court’s analysis that the children had
proper representation. We note here, however, that no separate appointment
was required for J.N.D.B., because the 21-month-old child was too young to
articulate a preferred outcome. See In re T.S., 192 A.3d 1080 (Pa. 2018).
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e. It relied on inadmissible hearsay evidence
and misapplied Pennsylvania Rule of
Evidence 803(b)'s business record
exception;
f. It admitted into evidence and credited the
Parenting Capacity Evaluation that had been
prepared prior to the birth of J.B. and had
grown stale;
g. It excluded exculpatory evidence of Mother's
efforts to create a safe environment as had
been recommended in the Parenting
Capacity Evaluation;
h. It admitted into evidence a lay opinion
without supporting evidence by an expert
that the child would suffer no irreparable
harm.
2. Whether under the Juvenile Act, 42 Pa.C.S.A. § 6351,
and 55 Pa. Code § 3130.74, in accordance with the
provisions of the Federal Adoption and Safe Families Act,
42 U.S.C. § 671 et seq., reasonable efforts were made to
reunite the Mother with her child and whether the goal
change to adoption was the disposition best suited to the
safety, protection and physical, mental and moral welfare
of the child.
3. Whether it was proven by clear and convincing evidence
that Mother's parental rights should be terminated under
§§ 2511 (a)(1), (2), and 2511 (b).
See Mother’s Anders Brief at 7-8.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he or she must do the following:
1. Petition the court for leave to withdraw stating that after
making a conscientious examination of the record…,
counsel has determined the appeal would be frivolous;
2. File a brief referring to anything that might arguably
support the appeal…; and
3. Furnish a copy of the brief to the [parent] and advise her
of her right to retain new counsel, proceed pro se, or
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raise any additional points he deems worthy of the
court’s attention.
See In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
In In re V.E., 611 A.2d 1267, 1274-1275 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. “When considering an Anders brief, this Court may not review
the merits of the underlying issues until we address counsel's request to
withdraw.” In re S.M.B., 856 A.2d at 1237.
In Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009),
our Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is
frivolous; and
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 602 Pa. at 178-79, 978 A.2d at 361.
“After an appellate court receives an Anders brief and is satisfied that
counsel has complied with the aforementioned requirements, the Court then
must undertake an independent examination of the record to determine
whether the appeal is wholly frivolous.” In re S.M.B., 856 A.2d at 1237.
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With respect to the third requirement of Anders, that counsel inform
the defendant of his or her rights in light of counsel's withdrawal, this Court
has held that counsel must “attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights.” Commonwealth
v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Counsel has complied with each of the requirements of Anders. Counsel
indicates that he conscientiously examined the record and determined that an
appeal would have no meritorious issues, and that the appeal is wholly
frivolous. Further, Counsel's Anders brief comports with the requirements set
forth by the Supreme Court of Pennsylvania in Santiago. Finally, attached to
his motion to withdraw is a copy of Counsel's letter to Mother, dated December
2, 2018. In compliance with Millisock, the letter stated Counsel's intention
to seek permission to withdraw, and advised Mother of her right to proceed
by submitting any comments or arguments to this Court on her own behalf,
or to retain new counsel to represent her on appeal. Accordingly, Counsel has
complied with the procedural requirements for withdrawing from
representation, and we will proceed with our own independent review.
Mother’s appeal involves four substantive issues: J.N.D.B.’s legal
representation; the admissibility and consideration of certain evidence; the
propriety of the children’s goal change; and the sufficiency of the evidence
regarding termination of Mother’s rights. See Mother’s Anders Brief at 7-8.
Before adopting the trial court’s opinion, we set forth the legal standards for
each issue.
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In Issue 1(a), Mother contends that the younger child, 21-month old
J.N.D.B., was not appointed proper counsel pursuant to 23 Pa.C.S.A. §
2313(a). See Mother’s Anders Brief at 7.
Section 2313(a) of the Adoption Act provides:
The court shall appoint counsel to represent the child in
an involuntary termination proceeding when the proceeding
is being contested by one or both of the parents. The court
may appoint counsel or a guardian ad litem to represent any
child who has not reached the age of 18 years and is subject
to any other proceeding under this part whenever it is in the
best interests of the child. No attorney or law firm shall
represent both the child and the adopting parent or parents.
23 Pa.C.S.A. § 2313(a).
Our Supreme Court has interpreted this subsection to mean that counsel
must represent the child’s legal interests, i.e., preferred outcome. See In
re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). In the case of a child who
could not communicate information relevant to the termination of parental
rights proceeding, due to age or other issue, there could be no presumed
preference as to whether the child desired reunification with the parents or
the termination of parental rights. See In re T.S.. 192 A.3d 1080 (Pa. 2018).
Thus, counsel appointed to represent the child’s legal interests could also
represent the child’s best interests, because when the child is too young, the
interests do not diverge. Id. As the record makes clear, the court appointed
J.N.D.B. legal counsel even though the child was too young to articulate a
preferred outcome. Even if the court only appointed best-interests counsel,
there would be no error.
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In Issue 1(e), Mother alleged that the court erroneously admitted and
relied upon improper evidence. See Mother’s Anders Brief at 7.
We observe the following legal standards concerning evidentiary
appeals. Absent an abuse of discretion, a reviewing court will not disturb the
lower court’s rulings on the admission or exclusion of evidence in a proceeding
for termination of parental rights. See In re A.J.R.-H., 188 A.3d 1157 (Pa.
2018).
In one of her claims of error, Mother alleges the court considered
inadmissible hearsay evidence. “Hearsay” is “a statement that (1) the
declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Pa.R.E. 801(c). Under the Pennsylvania Rules of Evidence,
hearsay evidence is incompetent and inadmissible unless it meets an
exception set forth in the Rules or one prescribed by this Court or statute.
Pa.R.E. 802. One such exception to the prohibition against hearsay, at issue
in this case, is commonly known as the business records exception, which
permits the admission of:
A record (which includes a memorandum, report, or data compilation
in any form) of an act, event or condition if:
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
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(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6). See also 42 Pa.C.S.A. § 6108(b) (“A record of an act,
condition or event shall, insofar as relevant, be competent evidence if the
custodian or other qualified witness testifies to its identity and the mode of its
preparation, and if it was made in the regular course of business at or near
the time of the act, condition or event, and if, in the opinion of the tribunal,
the sources of information, method and time of preparation were such as to
justify its admission.”).
In terms of hearsay, Mother only objected to DHS’ Exhibit 5 and Exhibit
6. These exhibits are the dependency docket for each child. Although the
trial court’s en masse admission of all of the DHS exhibits poses the same
legal conundrum as In re A.J.R.-H., Mother does not object to the en masse
admission. She merely objects to the dockets to the extent that they contain
hearsay. See N.T., 8/16/18, at 6-12.
We conclude the court did not abuse its discretion in admitting the
dockets. Even if we agreed with Mother that the dockets were improperly
admitted, the trial court’s conclusion was supported by other facts properly
ascertained. See id., 188 A.3d 1157, 1176 (“The [Right For Any Reason]
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doctrine thus may be applied by a reviewing court if the established facts
support a legal conclusion producing the same outcome.”).
Mother’s other evidentiary objections (regarding staleness; marijuana
use; bonding evidence; the Parenting Capacity Evaluation; and use of lay
opinion) go to the weight, though not the admissibility of the evidence. See
Mother’s Anders Brief, at 7-8, Issues 1(b)-(d), (f)-(h); see also N.T., at 6-
12. We similarly conclude that the trial court did not abuse its discretion.
In Issue 2, Mother contends that the court erred when it changed the
children’s goals from reunification to adoption. See Mother’s Anders Brief at
7. Regarding the goal change, our standard of review is as follows.
In cases involving a court's order changing the placement
goal ... to adoption, our standard of review is abuse of
discretion. To hold that the trial court abused its discretion,
we must determine its judgment was manifestly
unreasonable, that the court disregarded the law, or that its
action was a result of partiality, prejudice, bias or ill will.
While this Court is bound by the facts determined in the trial
court, we are not tied to the court's inferences, deductions
and conclusions; we have a responsibility to ensure that the
record represents a comprehensive inquiry and that the
hearing judge has applied the appropriate legal principles to
that record. Therefore, our scope of review is broad.
In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008) (citations omitted), appeal
denied, 959 A.2d 320 (Pa. 2008); see also In re R.J.T., 9 A.3d 1179, 1190
(Pa.2010).
This matter is controlled by the Juvenile Act, 42 Pa.C.S.A. §§ 6301-
6375, which was amended in 1998 to conform to the federal Adoption and
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Safe Families Act (“ASFA”), 42 U.S.C. §§ 671–679. In re M.S., 980 A.2d 612,
615 (Pa. Super. 2009), appeal denied, 985 A.2d 220 (Pa. 2009).
Both statutes are compatible pieces of legislation seeking to
benefit the best interest of the child, not the parent .... ASFA
promotes the reunification of foster care children with their
natural parents when feasible .... Pennsylvania's Juvenile
Act focuses upon reunification of the family, which means
that the unity of the family shall be preserved ‘whenever
possible.’
Id. (citing 42 Pa.C.S.A. § 6301(b)(1)).
As such, child welfare agencies are required to make reasonable efforts
to return a foster child to his or her biological parent. In re N.C., 909 A.2d
818, 823 (Pa. Super. 2006). When those efforts fail, the agency “must redirect
its efforts toward placing the child in an adoptive home.” Id.At permanency review hearings for dependent children removed from
the parental home, a trial court must consider the following factors.
(f) Matters to be determined at permanency
hearing.—
At each permanency hearing, a court shall determine all of
the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
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(5) The likely date by which the placement goal for the child
might be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
...
(9) If the child has been in placement for at least 15 of the
last 22 months or the court has determined that aggravated
circumstances exist and that reasonable efforts to prevent
or eliminate the need to remove the child from the child's
parent, guardian or custodian or to preserve and reunify the
family need not be made or continue to be made, whether
the county agency has filed or sought to join a petition to
terminate parental rights and to identify, recruit, process
and approve a qualified family to adopt the child ....
42 Pa.C.S.A. § 6351(f)(1)-(6), (9).
“These statutory mandates clearly place the trial court's focus on the
best interests of the child.” In re S.B., supra at 978 (citation omitted).
“Safety, permanency, and well-being of the child must take precedence over
all other considerations.” Id. (citation omitted) (emphasis in original).
Moreover, the burden is on the child welfare agency “to prove the change in
goal would be in the child's best interest.” In re D.P., 972 A.2d 1221, 1227
(Pa. Super. 2009), appeal denied, 973 A.2d 1007 (Pa.2009). We conclude
the trial court did not err when it changed the children’s goals to adoption.
In her final appellate issues, Mother challenges the termination of her
parental rights to both children. Regarding M.R.M., counsel raised whether
the Agency presented insufficient evidence to support the involuntary
termination of Mother's rights under § 2511(a)(1), (2), (5), (8), and (b) of the
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Adoption Act. Mother’s Anders Brief at 7-8. Regarding J.N.D.B., counsel
appealed the same under § 2511 (a)(1), (2) and (b). Id.
In reviewing an appeal from an order terminating parental rights, we
adhere 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. In re:
R.J.T., 608 Pa. 9, 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. Id.; R.I.S., [614 Pa. 275, 284,] 36 A.3d 567,
572 (Pa. 2011) (plurality opinion) ]. As has been often
stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., 613 Pa. 371[ , 455], 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838
A.2d 630, 634 (Pa. 2003). Instead, a decision may be
reversed for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or
ill-will. Id.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.
R.J.T., [608 Pa. at 28-30], 9 A.3d at 1190. 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
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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 Atencio, [539
Pa. 161, 165,] 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).
The burden is upon 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).
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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) ).
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). Sections
2511(a)(2) and (b) provides, in relevant part, as follows:
§ 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 conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
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***
(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.
This Court has addressed incapacity sufficient for termination under §
2511(a)(2):
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 J.J., [511 Pa. 590, 605,] 515 A.2d 883, 891
(Pa. 1986) (quoting In re: William L., [477 Pa. 322, 345,]
383 A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A parent's
vow to cooperate, after a long period of uncooperativeness regarding the
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necessity or availability of services, may properly be rejected as untimely or
disingenuous. Id. at 340.
This Court has stated that the focus in terminating parental rights under
section 2511(a) is on the parent, but it is on the child pursuant to section
2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc ). 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 re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., [533 Pa. 115, 121, 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. In re K.M., 53 A.3d at
791.
In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
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) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances ... where
direct observation of the interaction between the parent and the child is not
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necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent's abuse and neglect are likewise a relevant part of this analysis.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court may
emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at 763
(affirming involuntary termination of parental rights, despite existence of
some bond, where placement with mother would be contrary to child's best
interests). “[A] parent's basic constitutional right to the custody and rearing
of ... her child is converted, upon the failure to fulfill ... her parental duties, to
the child's right to have proper parenting and fulfillment of [the child's]
potential in a permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d
847, 856 (Pa. Super. 2004) (internal citations omitted).
Lastly, we observe that a court considering termination of a parental
rights petition is not required to consider the reasonable services to reunite
the parent and child in order to terminate the parent’s rights. See In re
D.C.D., 105 A.3d 662 (Pa. 2014).
In its opinion entered on October 19, 2018, the trial court fully and
adeptly discussed its reasons for terminating Mother’s rights and changing the
children’s goals to adoption.
We, therefore, find no abuse of the trial court's discretion in changing
the children’s goals and terminating Mother's parental rights to her children
under sections 2511(a)(2) and (b). In re Adoption of S.P., 616 Pa. at 325-
26, 47 A.3d at 826-27. Finding no issues of merit, either with regard to the
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termination decree or the permanency review order, after our independent
review of the record, we, thus, affirm the trial court's termination decree and
permanency review order based on the trial court opinion, and grant counsel's
motion for leave to withdraw. We direct the parties to attach the trial court's
opinion to all future filings based upon our disposition of this appeal.
Motion to withdraw granted. Decrees and orders affirmed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/19
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THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, PHILADELPffiA COUNTY
IN THE COURT OF COMMON PLEAS
IN THE INTEREST OF: : FAMILY COURT DIVISION
: JUVENILE BRANCH-DEPENDENCY
M.R.M., a Minor : CP-51-AP-00001242-2016/CP-51-DP-00011528-2014
J.N.D.B., a Minor : CP-51-AP-0000340-2018/CP-51-DP-0002543-2016
: 2689 EDA 2018; 2690 EDA 2018;
: 2691 EDA 2018 and 2692 EDA 2018
APPEAL OF:
D.R.M., Mother
OPINION
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.s;-
0.R.M., ("Mother"), appeals from the Decrees and Orders entered by this Court
on August 16, 2018, granting the Petitions to Involuntarily Terminate her Parental Rights
and Change the Permanency Goal to Adoption to her two Children: (''M.R.M.''), a
female, born on April 17, 2014; and ("J.N.D.B."), a male, born November 15, 2016, filed
by the Department of Human Services ("OHS"), on December 19, 2016 and on April 25,
2018, and served on all parties. OHS also filed Petitions to Involuntarily Terminate the
Parental Rights of Father, M.A.M. His parental rights were also terminated however he
did not file an Appeal.
In response to the Decrees oflnvoluntary Termination of Parental Rights issued
on August 16, 2018, Mother, by and through her counsel, filed Notices of Appeal with
Statements of Matters Complained of Upon Appeal on September 12, 2018.
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STA TEMENT OF MATTERS COMPLAINED OF ON APPEAL
In her Statement of Matters Complained of on Appeal, Mother
states that the Trial Court erred in the following respects:
1. The Trial Court committed reversible error when:
a. It failed to appoint legal counsel for the sibling,
J.N.D.B.;
b. It permitted the City to proceed upon a Petition
that had grown stale:
c. It misheard and misinterpreted bonding
evidence;
d. It concluded there was a nexus between
Mother's marijuana use and an inability to
parent;
e. It relied on inadmissible hearsay evidence and
misapplied Pa.Rule of Evidence 803(bfs
business record exception;
f. It admitted into evidence and credited the
Parenting Capacity Evaluation that had been
prepared prior to the birth of J.B. and had
grown stale;
g. It excluded exculpatory evidence of Mother's
efforts to create a safe environment as had been
recommended in the Parenting Capacity
Evaluation;
h. It admitted into evidence a lay opinion without
supporting evidence by an expert that the child
would suffer no irreparable harm.
2. Whether under the Juvenile Act, 42 Pa.C.S.A.§ 635 I,
and 55 Pa. Code§ 3130. 74, in accordance with the
provisions of the Federal Adoption and Safe Families
Act, 42 U.S.C. § 671 et seq., reasonable efforts were
made to reunite the Mother with her child and whether
the goal change to adoption was the disposition best
suited to the safety, protection and physical, mental and
moral welfare of the child.
3. Whether it was proven by clear and convincing
evidence that Mothers parental rights should be
terminated under §§ 2511 (a)(l ), (2), and 2511 (b ).
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PROCEDURAL HISTORY:
D.R.M. is the "Mother" of M.R.M. and J.N.D.B. (Exhibits ·'B'', Certificate of
Live Birth, attached to DBS Petition for Involuntary Termination of Parental Rights, filed
12/19/2016 and 4/25/2018).
M.M. is the "Father" ofM.R.M. and is listed as the Father on the Child's birth
certificate. (Exhibit "B", Certificate of Live Birth, attached to DHS Petition for
Involuntary Termination of Parental Rights, filed 12/19/2016).
M.M. is the "Father" of J.N.D.B .. however, he is not listed as the Father on the
Child's birth certificate. (Exhibit ·'B", Certificate of Live Birth, attached to DI-IS Petition
for Involuntary Termination of Parental Rights, filed 4/25/2018).
On June 25, 2014, the Department of Human Services (DUS) received a Child
Protective Services (CPS) Report alleging that two-month-old M.R.M. had suffered a
right clavicle fracture, a right humerus fracture and a tibia fracture. The Child had a
skeletal survey and CAT scan completed and the results were pending. M.R.M. 's
parents, D.R.M. and M.M., stated that they were unaware how the Child sustained her
injuries. The parents resided in the home with the Child's maternal grandmother, S.B.,
and maternal uncle, J.M. The Child was admitted to the Children's Hospital of
Philadelphia (CHOP) and her discharge date was unknown. The family became
belligerent and requested to be transferred to another hospital. DHS learned that S.B.,
was named as the perpetrator in indicated CPS Reports not related to this matter. The
CPS Report was determined as valid. (Exhibit "A" Statement of Facts, attached to DHS
Petition for Involuntary Termination of Parental Rights, filed 12/19/2016, 1 "a").
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On June 25. 2014. OHS learned that M.R.M .. was examined at CHOP for an
abrasion and bleeding in her mouth. The parents were unable to explain how the Child
had sustained her injuries. (Exhibit "A·· Statement of Facts, attached to DIIS Petition for
Involuntary Termination of Parental Rights. Ii led 12/19/2016, � .. b").
On June 26, 2014. DHS received a supplement to the previous Report alleging
that a detective from the Special Victims Unit (SVU) of the Philadelphia Police
Department was going to CHOP to visit with the Child and meet with the family.
Maternal grandmother, S.B .. stated that the Child had a broken arm. No one was able to
explain what had caused the injury. CHOP found that the Child had multiple fractures
mainly on the right side of her body. Mother stated she had no idea how the Child had
sustained the injuries. The Child had a cast on her right leg and right arm was wrapped.
S.B., smoked marijuana. The supplemental Report was determined to be valid. (Exhibit
''A .. Statement of Facts. attached to OHS Petition for Involuntary Termination of Parental
Rights, filed 12/19/2016, � .. c").
On June 27, 2014, DIIS obtained an Order of Protective Custody (OPC) for
M.R.M., and placed her in a foster care home through Bethany Christian Services.
(Exhibit .. A .. Statement of Facts, attached to OHS Petition for Involuntary Termination of
Parental Rights, filed 12/19/2016. ··ct'").
A Shelter Care Hearing was held on June 30, 2014, before the Juvenile Court
Hearing Officer, William T. Rice. The OPC lifted. Legal custody of the Child
transferred to OHS, and placement in foster care through Bethany. OHS to explore
any/all relatives as placement resource. Mother and Father to have 3 supervised visits of
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2 hours each between now and next court date, preferably in the presence of medical
professionals. (Shelter Care Order, 6/30/2014).
On July 9, 2014, Adjudication was deferred and a continuance was granted by the
Honorable Allan L. Tereshko. Temporary commitment stands. All visits between
parents and the Child arc to be two times per week for 2 hours each, supervised. OHS to
assist parents with transportation for the visits. (Continuance Order. 7/09/2014 ).
On September 3, 2014 and September 16, 2014, continuances were granted.
Adjudication deferred. Temporary commitment stands. (Continuance Orders, 9/03/2014
and 9/16/2014).
On February 11, 2015, a status hearing was held before the Honorable Allan L.
Tereshko. Adjudication was deferred. Temporary commitment stands. Father, M.M., to
be referred for a paternity test. DI IS social worker to ensure that the Child is transported
for genetic testing on 3/18/2015. Mother referred to BHS (Behavioral Health Services),
for consultations or evaluations. Parents' visits to remain, and they are to call and
confirm 24 hours in advance. (Continuance Order. 2/11/20 l 5).
On March 27, 2015, a DNA paternity test was completed for the Child. The
results of the DNA test confirmed that M.M., was the Child's biological Father. (Exhibit
''A" Statement of Facts, attached to OHS Petition for Involuntary Termination of Parental
Rights, filed 12/19/2016, � ··J'').
An Adjudicatory Hearing was held on April 14, 2015, for the Child before the
Honorable Allan L. Tercshko. Child was adjudicated Dependent. Legal Custody
remains with OHS, and placement to continue in Foster Care through Bethany. Visits
between the parents and the Child to remain supervised at the agency once a week for 2
5
hours and may be modified by agreement of all parties. OHS received a CPS Report
stating the Child was brought to the hospital with multiple fractures to her body. Mother
resided with other family members. and Mother and Father stated to DHS that no one else
would watch the Child except them. Both parents were indicated as the perpetrators.
Mother nor Father could explain how the Child sustained the injuries. Parents were
hostile with OHS worker at the hospital. Mother seeks to finish her high school diploma.
Mother was enrolled to AlC, (Achieving Independence Center) however she never
attended. Father is currently employed, and has attended 3 of the 16 visits offered (4 were
cancelled because of bed bug issue). Parents re-referred to BHS for consultation and
evaluation. Parents to have Parent Capacity Evaluations, and are referred to ARC,
(Achieving Reunification Center) for services. (Order of Adjudication and Disposition-
Child Dependent, 4/14/2015).
An Aggravated Circumstances Order was issued on April 14, 2015, by the
Honorable Allan L. Tereshko. The Child has been the victim of physical abuse resulting
in serious bodily injury, sexual violence or aggravated neglect by the parent; proven as to
Mother and Father. Efforts shall continue to be made to preserve the family and reunify
the Child with the parents. (Aggravated Circumstances Order, 4/14/2015).
A Permanency Review Hearing was held on July 9, 2015, before the Honorable
Allan L. Tereshko. The legal custody of the Child to remain with DHS, and placement
continues in Foster Care. Parents to have biweekly supervised visits at the ARC program
and may be modified by agreement of the parties prior to next court date. Parents re-
referred to BHS for consultation and/or evaluation, and are to comply with BHS
recommendations. Mother to enroll in GED program and/or job corps. Mother to sign
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releases and continue services through ARC program. Child is safe as of 7/06/2015.
(Permanency Review Order, 7/09/2015).
A Permanency Review Hearing was held on October 8, 2015, before the
Honorable Allan L. Tereshko. Legal custody of the Child to remain with DHS, and
placement of the Child shall remain in a pre-adoptive home through Bethany Christian
Services. Child is doing well and up-to-date medically. Mother currently resides in a
rooming house located at 134 N. 54th Street, Philadelphia, PA 19139. She is scheduled
for a PCE, part 1 on 10/21/2015. Father is currently renting out a room also. DHS to
follow up on Mother's mental health treatment, and continue outreach to Father. Child is
safe as of 10/07/2015. (Permanency Review Order, 10/08/2015).
A Permanency Review Hearing was held on March 28, 2016, before the
Honorable Allan L. Tereshko. Legal custody of the Child remains with DHS, and
placement of the Child to continue in Foster Care through Bethany. Visitation between
Mother and the Child to continue as weekly supervised. Visitation with Father to
continue as bi-weekly supervised. Child is doing well and developmentally on target.
DHS exploring adoption. Mother receives services through Consortium, and provided a
Treatment Plan to the Court and entered into evidence. Father's address is 134 N. 54th
St., Philadelphia, PA. Mother referred to BHS for monitoring, to sign release of
information. Father referred to BHS for consultation/evaluation. Parents referred back to
ARC for services. Copy of Mother's PCE to be provided to Consortium. Parents to
comply with all FSP (Family Service Plan) objectives, services and recommendations.
Child is safe as of 3/10/20 J 6. (Permanency Review Order, 3/28/2016).
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A Permanency Review Hearing was held on June 20, 2016, before the Honorable
Allan L. Tereshko. Legal custody of the Child to remain with DHS, and placement of the
Child to continue in Foster Care through Bethany. Remain as committed. Child safe as
of 6/13/2016. (Permanency Review Order, 6/20/2016).
On September 27, 2016, CUA-TP4C held an initial Single Case Plan (SCP)
Meeting. The goal identified for the Child was adoption. Mother's parental objectives
were to: 1) maintain bond with Child by attending supervised visits according to the
visitation schedule; 2) stabilize mental health by attending individual therapy and
following treatment recommendations; 3) participate in the Women's Empowerment
group; 4) follow the recommendations of the PCE; 5) maintain physical health by
attending all prenatal appointments and following treatment recommendations; 6)
maintain safe and appropriate housing with adequate space for herself and the Child; 7)
explore domestic violence counseling. Mother participated in the SCP Meeting and
signed the SCP. (Exhibit "A" Statement of Facts, attached to DHS Petition for
Involuntary Termination of Parental Rights, filed 12/19/2016, 1 "u").
On November 15, 2016, Mother gave birth to J.N.D.B. (Exhibit "A" Statement of
Facts, attached to DHS Petition for Involuntary Termination of Parental Rights, filed
4/25/2018, 1 "j").
On November 16, 2016, DHS received a General Protective Services (GPS)
Report which alleged that on 11/15/2016, Mother gave birth to J.N.D.B.; that the Child
had been exposed to illegal substances during Mother's pregnancy; and that Mother had
tested positive for marijuana upon delivery. The Report alleged that Mother blamed her
positive urine drug screen on second-hand exposure; however, Mother had tested positive
8
one time during her pregnancy; that the Child's urine drug screen was negative; that
Mother received very inconsistent prenatal care throughout her pregnancy; and that she
expressed that she was ready to receive the newborn Child and that she had all necessary
infant supplies at the home of presumed Father, J.B. It was alleged that the Child had
been born healthy at 39.3 weeks gestation; that he weighed 7 pounds and 10 ounces at
birth; that his APGAR score was 8/9; that the newborn's sibling, M.R.M. resided in foster
care; that Mother was employed at Burger King at 8111 & Market Streets; that she received
mental health services from Community Council; and that she was diagnosed with Post-
Traumatic Stress Disorder (PTSD) due to her history of physical and sexual abuse. The
Report was determined as valid. (Exhibit "A" Statement of Facts, attached to DHS
Petition for Involuntary Termination of Parental Rights, filed 4/25/2018, ii "k"),
On November 16, 2016, DHS obtained an OPC for the newborn, J.N.D.B. He
was placed in the same foster care home as his sibling, M.R.M. (Exhibit "A" Statement
of Facts, attached to DHS Petition for Involuntary Termination of Parental Rights, filed
4/25/2018, 1 "!").
A Continuance was granted by the Court on M.R.M.'s case on November 16,
2016. DHS commitment to stand, and case to remain status quo. No action taken.
(Continuance Order, 11/16/2016).
A Shelter Care Hearing was held for J.N.D.B. on November 18, 2016 before the
Honorable Vincent W. Furlong. The OPC was lifted and legal custody of the Child was
transferred to DHS. Placement of the Child in Foster Care through Bethany. Mother and
Father to have line-of-sight supervised visits with the Child twice a week at the agency.
CUA is to conduct a home assessment of Father's home and explore relatives as possible
9
resource for the Child. Mother referred to CEU for assessment and forthwith screen with
dual diagnosis. Child is safe as of 11/18/2016. (Shelter Care Order, 11/18/2016).
On November 18, 2016, Mother was seen at the CEU (Clinical Evaluation Unit).
She tested positive for marijuana. (Exhibit ··A" Statement of Facts, attached to OHS
Petition for Involuntary Termination of Parental Rights, filed 4/25/2018. 1 "n").
On November 28, 2016, DHS filed a Dependent Petition for J.N.O.B., and
determined there was sufficient basis to find that Aggravated Circumstances existed
pursuant to 42 Pa.C.S.§6302(2) in that J.N.D.B.'s sibling, M.R.M., was the victim of
physical abuse resulting in serious bodily injury. (Exhibit '·A" Statement of Facts,
attached to DHS Petition for Involuntary Termination of Parental Rights, filed 4/25/2018,
1 "q").
On December 12, 2016, an Adjudicatory Hearing was held for J.N.O.B. before the
Honorable Jonathan Q. Irvine. Child was found Dependent, and legal custody of the
Child to transfer to OHS, and to continue in Foster Care. Mother and Father are referred
to CEU for an assessment, dual diagnosis, forthwith drug screen and 3 random drug
screens prior to the next court date. Mother and Father to have supervised line-of-hearing
and sight visitation with the Child once per week for 3 hours. Once the Child receives
one month shots, visits are to be modified to twice weekly, supervised for one and one-
half hours. Mother to sign releases and referred to BI lS for monitoring. CUA is to
assess Mother and Father's home. Family group decision making is to occur, if
appropriate. Child is safe as of 12/02/2016. (Order of Adjudication and Oisposition-
Child Dependent, 12/12/2016).
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On December 15, 2016, OHS held a Single Case Plan (SCP) Meeting. The goal
identified for the Child, J.N.D.B., was "return to parent." Mothers parental objectives
were to: 1) attend supervised visits according to the visitation schedule; 2) attend
individual therapy and follow treatment recommendations; 3) participate in the Women 's
Empowerment group; 4) follow the recommendations of the PCE; 5) maintain safe and
appropriate housing with adequate space and operable utilities; 6) attend and complete a
parenting class; 7) participate in a dual-diagnosis evaluation and follow
recommendations; 8) participate in three random drug screens as per court order. Mother
participated in the SCP Meeting. (Exhibit ''A'' Statement of Facts, attached to OHS
Petition for Involuntary Termination of Parental Rights, filed 4/25/2018, ,i "s"),
Permanency Review Hearings were held on March 29, 2017, for both Children
before the Honorable Allan L. Tereshko. Legal custody of the Children to remain with
OHS, and placement of the Children to continue in Foster Care through Bethany.
M.R.M. is doing well and she is safe as of 3/22/2017. Drug screen results as to Mother
submitted as evidence. Status Quo as to M.R.M. Regarding J.N.D.B., Child is doing
well and is safe as of 3/22/2017. Supervised, line-of-sight/hearing visits with Mother to
remain twice weekly at agency, as arranged. Mother referred to ARC for services, and
she receives services through Community Council and Women's Empowerment. Mother
currently resides at Covenant House, and was referred to Methodist Housing Program.
OHS/CUA Turning Points for Children exploring Family School for Mother. Parents
referred to CEU for assessment, forthwith full drug and alcohol screen, and dual
diagnosis, and three random drug and alcohol screens for both parents prior to next court
date. Mother referred to BHS for monitoring. Parents to comply with all FSP objectives
11
and recommendations. (Permanency Review Order, 3/29/2017 & Status Review Order,
3/29/201 7).
On May 23, 2017, OHS held a SCP Meeting. The goal identified for J.N.D.B.
was "return to parent." The parental objectives established for Mother remained the same
as the previous SCP. Mother failed to participate in the SCP. (Exhibit ''A" Statement of
Facts, attached to DHS Petition for Involuntary Termination of Parental Rights, filed
4/25/2018, � "u ").
On July 18, 2017, hearings were held for both Children before the Ilonorable
Allan L. Tereshko. DHS request for a continuance was granted. M.M., is ordered for
paternity test regarding the Child, J.N.D.B. Both Children are safe as of 7/17/2017.
(Status Review Orders, 7/18/2017 & Order for Paternity Testing, 7/18/2017).
On October 19, 2017, hearings were held for both Children before the Honorable
Allan L. Tereshko. Continuance requested and granted due to court schedule. J.B., is
vacated as Father of J.N.D.B. DNA testing results verified that M.M. is the Father of
J.N.D.B. (Status Review Orders, 10/19/2017 & Results of Genetic Testing, CCP-Memo,
9/05/2017).
On November 8, 2017, DHS held a SCP Meeting. The goal identified for
J.N.D.B., was adoption. The parental objectives for Mother were to: I) attend supervised
visits according to the visitation schedule; 2) attend individual therapy and follow
treatment recommendations; 3) participate in the Women's Empowerment group; 4)
follow the recommendations of the PCE; 5) maintain safe and appropriate housing with
adequate space and operable utilities; 6) comply with rules and regulations of the
Methodist Services; 7) attend Family School with the Child; 8) participate in a dual-
12
diagnosis evaluation and follow recommendations; 9) participate in three random drug
screens as per court order. Mother failed to participate in the SCP Meeting. (Exhibit "A"
Statement of Facts, attached to DllS Petition for Involuntary Termination of Parental
Rights, filed 4/25/2018, 1 "x").
Permanency Review Hearings were held on February 6, 2018, for both Children
before the Honorable Allan L. Tereshko. Legal custody of the Children remains with
DHS, and placement remains in Foster Care through Bethany. M.R.M., is up-to-date
with medical, dental and vision. J.N.D.B., is up-to-date with medical. Remain as
committed and placed. Both Children safe as of 1/24/2018. (Permanency Review
Orders, 2/06/2018).
On February 13, 2018, DHS held a SCP Meeting. The goal identified for
J.N.D.B., was "adoption." The parental objectives established for Mother remained the
same as the previous SCP. Mother failed to participate in the SCP. (Exhibit "A'"
Statement of Facts, attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 4/25/2018, 1 ·'z").
On May 10, 2018, hearings were held for both Children before the Juvenile Court
Hearing Officer, Michael J. Campbell. Cases continued to next hearing, a Contested
Goal Change on 8/16/2018. (Status Review Orders, 5/10/2018).
TERMINATION HEARING
On August 16, 2018, this Court held Contested Termination of Parental Rights
Hearings and Goal Change Hearings for both Children as to Mother and Father's parental
13
rights. Mother attended and was represented by counsel, Maureen Pie, Esquire. (N.T.,
8/16/2018, p.2 at 5-6; p.3 at 13).
Ms. Kristina Helmers, Esquire, counsel for DHS called the first witness to testify,
Dr. Erica Williams, Psychologist, in Forensic Mental Health Services. All attorneys
present stipulated to Dr. Williams's Expert status in the area of Parenting Capacity. She
began by noting Mother became known to her because she was referred to her after DHS
became involved after Mother presented her daughter to the hospital with multiple
injuries, which included her arms, legs and collar bone. In this instance the Child's
multiple injuries could not be explained by any of the variations provided by the parents.
She testified she conducted a Parenting Capacity Evaluation on Mother on June 16, 2016,
in which she had a number of concerns regarding Mother. (N.T., 8/16/2018,
p.17 at 3-25; p.18 at 1-25; p.19 at 1-25).
Dr. Williams testified regarding visitation that Mother's visits remained
supervised because of the Aggravated Circumstances against her, the ongoing inability to
explain the injuries to the Child, as well as observations that Mother had a difficult time
managing the behaviors of her daughter during the visits, and her own self-report that her
discipline was to "pop her:' (N.T., 8/16/2018, p.20 at 9-25; p.21 at 1-8).
Dr. Williams further testified that there were substantial concerns relating to
Mother's mood disorder, potential psychosis, potential suicidality and symptoms that
required mental health treatment. Mother has a history of multiple diagnoses and
requires treatment whether or not it's a mood disorder, whether suicidality is a current
concern, and given that she had Aggravated Circumstances and the injuries to the Child
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were yet to be explained, possibly child abuse diagnosis, also. (N.T., 8116/2018, p.21 at
15-25; p.22 at 1-8).
Dr. Williams made several recommendations after the PCE, first and foremost
was that Mother should begin individual mental health treatment to address her prior
mental health needs and ongoing needs. Mother has a history of chronic mental health
needs, responding to stressors with suicidality. With treatment Mother may be in a
position to truly explore how and what the mechanisms of injury was for her daughter.
Once she was able to do that, to develop an appropriate safety plan so that she could
execute that plan in keeping her daughter safe. The main concern with Mother is the
injury of the Child, coupled with her own childhood and early adulthood. She has
complex trauma, and has substantial mental health needs, and it is important that she
engage in treatment, consistently. Without being able to know what places your Child at
risk and prevent and manage around those risk factors, Mother is not able to ensure the
Child's safety. She has to understand how the injury occurred and to have a plan that is
realistic and relevant to making sure that does not occur again. In the presentation of
those mental health concerns, it is important that Mother engage in treatment and address
beyond just the injuries, but the destabilizing force that it has on her. (N.T., 8/16/2018,
p.22 at 12-25; p.23 at 1-25; p.24 at 1-21; p.26 at 2-19).
Additionally, there were concerns regarding Mother being able to obtain and
maintain her own housing. Dr. Williams also recommended Mother obtain and maintain
stable employment and/or develop a sustainable financial plan to meet her needs and the
Child's needs on a long-term basis. Without a sustainable financial plan and/or income,
15
she is unable to provide a level of permanency and stability that a Child needs. (N.T.,
8/16/2018, p.24 at 22-25; p.25 at 1-23).
Dr. Williams opined with a reasonable degree of psychological certainty, as to
whether Mother could parent her Child, at the time of the evaluation, Mother did not
present with the capacity to provide safety or permanency to her daughter. She based this
opinion on the aforementioned factors, specifically, the inability to plan for safety for the
Child, the concerns regarding her capacity to provide permanency for the Child, and at
the time, her not meeting her mental health needs. (N.T., 8/16/2018, p.26 at 20-25; p.27
at 1-8).
When asked if she was to learn that Mother did not follow any of the
recommendations in the two years since she completed the PCE, would that change her
conclusion, Dr. Williams responded that without Mother following the recommendations,
it is high unlikely that these issues spontaneously were mediated, and the concerns would
likely remain constant. Nonetheless, the recommendations are set to provide Mother a
pathway to developing parental capacity. Unfortunately, completing the
recommendations does not ensure the development of capacity. So, if Mother did
complete the recommendations, she would recommend a review of her mental health
records, as well as an updated evaluation. (N.T., 8/16/2018, p.27 at 9-25; p.28 at 1-3).
On cross-examination by Joshua Weil, Esquire, GAL, Dr. Williams was
questioned about Mother's history of substance abuse. She noted that at the time of the
PCE, Mother did not have a significant history of substance abuse, although she self-
reported that her first use of alcohol was at 18 years of age, and she did not use other
substances at that time. Dr. Williams was then asked if Mother was to subsequently use
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other substances, she noted she would modify the mental health recommendation to
include helping Mother with possibly a psychiatric evaluation for medication
management, as an adjunct therapy. She noted it is not uncommon for individuals with
mood disorder to self-medicate with marijuana, however, it is risky when an individual
begins self-medicating. It would be important that Mother's use patterns be introduced
into her therapy and that it become a part of her treatment, and she would work on not
doing it. (N.T., 8/16/2018, p.29 at 11-25; p.30 at 1-25; p.3 lat 1-15).
On cross-examination by Maureen Pie, Esquire, attorney for Mother, Dr.
Williams noted that Mother was identified as a perpetrator of the injuries to her daughter
because she was one of the adults with the Child. She stated Mother expressed that the
injury may have been caused at childbirth, which was not supported by medical evidence,
or that perhaps the Child's injury was caused by maternal grandmother because her
mother did not treat her well and did not provide the safety she needed as a child. Dr.
Williams stated, "So as an adult in charge with the safety of a child, knowingly to expose
your child to the care of somebody who could harm them, it is important that you identify
that and identify your role. So, if it is determined without a doubt that Mother was not
present and did not cause those injuries, as a parent, she still created an environment in
which there was the potential of it. So, you need to plan for that. And in this case, the
injuries were caused to the Child four years ago in June of 2014, and there is no evidence
to point to it randomly occurring on the street." (N. T., 8/16/2018, p.34 at 12-25; p.35 at
1-18).
Dr. Williams concluded that on many occasions, for many reasons, individuals
never admit to it. Sometimes it's an immature defense mechanism or they themselves
17
cannot (sic) admit to themselves the injuries occurred. It is a fear of retaliation or a
somewhat immature and juvenile belief that, as long as they keep saying it didn't happen,
then everybody will believe that and they can move forward. And then, also, an inability
or unwillingness to provide culpability to somebody else, and cause trouble in their lives.
Finally, Dr. Williams noted that since she prepared the PCE in 2016, she has not
received any documents that Mother has been or has not been in compliance with any of
the PCE recommendations. (N.T., 8/16/2018, p.38 at 8-25; p.43 at 2-15).
On redirect examination by Kristina Helmers, Esquire, the attorney for DI-IS,
presented Dr. Williams with various hypotheticals. First, she was asked if she learned
that Mother had engaged in mental health treatment intermittently since the PCE, but had
not completed the program, would that change her conclusion regarding Mother's
capacity. Dr. Williams responded that it is highly unlikely that intermittent participation
would at all help her develop the capacity. Second, if she learned that Mother does not
have stable employment, would that change any of her conclusions regarding Mother.
She responded that in the absence of a financial plan, it would not. (N. T., 8/ 16/2018,
p.45 at 4-24).
On re-cross examination by Maureen Pie, Mother's attorney, Dr. Williams was
asked to clarify a statement she made on page 10 of the PCE, where she noted that
Mother said she would "pop her daughter on the hand" as a method of discipline. She
confirmed that the report information was correct. (N.T., 8/16/2018, p.46 at 14-24).
The next witness to testify was Abazz Grey, DHS Social Worker who testified the
family became known to DHS because of unexplainable injuries to the Child's arm and
leg, which resulted in a CPS Report filed with the agency. An OPC was obtained for
18
M.R.M., in July 2014. The Child was adjudicated Dependent and Aggravated
Circumstances were found against the Mother and Father. She developed an initial FSP
for the family at that time and Mother participated in the initial meeting. (N.T.,
8/16/2018, p.48 at 9-25; p.49 at 1-25; p.50 at 1-5).
Ms. Grey testified that FSP objectives were established for Mother, notably,
housing, parenting, Women's Empowerment, health relations, visitation and mental
health. She informed Mother of the objectives and confirmed that Mother was aware that
compliance with the objectives was necessary for reunification with her Child. She noted
that she was the Social Worker on the case for two years. She referred Mother to various
programs: ARC, Women's Empowerment, mental health, and parenting. She noted
Mother was closed out of ARC for non-compliance. (N.T., 8/16/2018, p.49 at 17-25;
p.50 at 1-25; p.51 at 1-10).
Ms. Grey testified that Mother did complete some programs through ARC at later
dates, including a parenting class. and she completed job training through OIC, for
culinary. Mother attended but was inconsistent with mental health treatment during the
time she had the case. She contacted various agencies to verify that Mother had
scheduled appointments for mental health, but attendance could not be verified. Mother
did not successfully complete mental health programs during that two year period.
Regarding visitation, Mother had supervised visits, twice a week, which decreased to
once a week and then decreased again to bi-weekly, and lastly increased to weekly again.
All of the visits remained supervised because Mother was inconsistent with visitation and
she never progressed to consider unsupervised. Ms. Grey noted that a PCE was added as
an objective at a later date. (N.T., 8/16/2018, p.51 at 11-25; p.52 at 1-23; p.53 at 19-22).
19
On cross-examination by Athena Dooley. Esquire, Child Advocate, Ms. Grey
testified that she had observed the Child with the foster parent and noted that they were
bonded, and the Child looked towards the foster parent as a mother figure, and referred to
her as "Morn." The Child also got along well with the other children in the home, they
were like siblings. (N.T., 8/16/2018, p.58 at 15-25: p.59 at 1-10).
On cross-examination by Joshua Weil, Esquire, GAL, Ms. Grey noted that during
all the time she was involved with the case, Mother never was fully compliant with the
goals and objectives that were set. Mother declined services at ARC and declined
housing because the Child's Father, M.M., was not allowed to move in with her. There
were also incidents of domestic violence, where Mother reported that M.M. hit her, then
later recanted and said it was not true. (N.T., 8/16/2018, p.59 at 15-25; p.60 at l-25; p.61
at 1-25; p.62 at 1-2).
Chelsea Miranda, Case Management Supervisor at Turning Points for Children,
was the next witness to testify. She testified she is the Supervisor in the case of both
Children, M.R.M., and J.N.D.B. She noted that J.N.D.B. came into care after his birth,
and she developed Single Case Plans for the family on 7/06/2017, 11/16/2017 and
2/22/2018. In the 7/06/2017 SCP, Mother's objectives were mental health, housing,
visitation and attend drug and alcohol treatment, and employment was added also. The
objectives remained the same for the subsequent two plans because Mother did not
progress on completing the goals established. She communicated the objectives to
Mother and Mother was aware of the goals for her to become reunited with her Children.
(N.T., 8/16/2018, p.65 at 11-25; p.66 at 1-25; p.67 at 1-11; p.68 at 1-25; p.69 at 1-14).
20
Regarding Mother's mental health objective, Ms. Miranda testified that Mother
enrolled at Community Council with therapist Maurice Denton, however, she did not
successfully complete the program. Regarding housing, she referred Mother to
Methodist Housing Services and she was housed but Mother did not sustain the housing.
She moved to different housing in June 2017 and November 2017, however Mother was
evicted and discharged from the whole program in February 2018. Ms. Miranda noted
that to the best of her knowledge, Mother does not currently have stable housing. (N.T.,
8/16/2018, p.69 at 16-25; p.70 at 1-15).
Regarding Mother's drug and alcohol treatment objective to complete a CEU
dual diagnosis assessment, and complete random drug screens, Ms. Miranda testified that
Mother attended NET, but never completed that program. Mother never completed a
dual diagnosis assessment at CEU, but she self-enrolled at the NET. but when she called
them to check her progress, she was informed that Mother had not been there in over a
month. Mother was referred to the CEU for random screens, however she only
completed one since March of 2017, which was positive for marijuana. (N.T., 8/16/2018,
p.70 at 23-25; p.71 at 1-22).
Regarding employment, Ms. Miranda testified Mother did have an objective to
obtain and maintain employment. During her supervision of the case, Mother did obtain
employment for a few months, however, could not maintain it. Mother responded to
inquiries from her as to why she could not keep her job, and stated that she was homeless
and unable to dress appropriately and she was absent from work and ultimately fired for
customer service. Ms. Miranda stated to the best of her knowledge, Mother is currently
unemployed. (N.T., 8/16/2018, p.71 at 23-25; p.72 at 1-23).
21
Ms. Miranda also testified she referred Mother to Family School two times,
however, Mother did not complete the program. Regarding visitation, Ms. Miranda
testified Mother has supervised visits with .J.N.D.B. twice a weekly, on Mondays and
Tuesdays, for one and one-half hours and supervised visits with M.R.M. on Tuesdays for
2 hours. The visits continue being supervised for Mother because there were some
concerns about Mother maintaining both of the Children outside of the supervised
visitation. She testified there are concerns about the effect that the visits have on M.R.M.
She testified she has observed the visits in the past between the two but not recently. The
Child exhibits instability after visits because of the lack of structure at the visits, in
contrast to the strict rules for behavior at the foster home. She opined the Child requires
stability and Mother does not provide that during visits by allowing the Child to do
whatever the Child chooses and eat whatever the Child wants to eat. Mother also lacks
general stability with lack of housing, and employment. (N.T., 8/16/2018, p.72 at 25;
p.73 at 1-25; p.74 at 1-25; p.75 at 1-22).
Ms. Miranda testified that she has observed interactions between Mother and both
of her Children, and it is her opinion that the Children do not have a parental bond with
Mother. The younger Child cries every single time he is dropped off at the visits, and he
gets very excited to see his foster parents when they come back. She further testified she
has experience in observing relationships between Children and their parents, and in
particular she has observed the relationship between Mother and these two Children. She
opined in the beginning of the visits, the Children are happy to see Mother, but they do
not look to Mother for protection and do not seek her for basic needs. (N.T., 8/16/2018,
p.76 at 16-25; p.77 at 1-25; p.83 at 2-25; p.84 at 1-11 ).
22
Regarding the bond with the foster parents, Ms. Miranda testified the older Child
has been in the foster home for 4 years, and she has observed her with the foster parents
and notes that she loves them and calls them "mommy and daddy." She is a part of the
family, and has stability and structure there, and they are the only parents she has known.
The younger Child has been in his current foster home since November of 2016, and
notes the Child is bonded with his foster parents, especially his foster father. He cries
when he is separated from them and gets very excited when he sees them. Based upon
her experience in observing parental relationships, healthy and unhealthy ones, and weak
and strong parental relationships, Ms. Miranda opined that these Children would not
suffer irreparable harm if Mother's parental rights were terminated and it would be in the
Children's best interest to be adopted. (N.T., 8/16/2018, p.83 at 2-25; p.84 at 1-5; p.84 at
25; p.85 at 1-25; p.86 at 1-14,19-25; p.87 at 1-25; p.88 at 1-25; p.89 at 1-25; p.90 at 1,
24-25; p.91 at 1-2).
Alakeisha Patterson, CUA Case Manager, was the next witness to testify. She
stated she is the current Case Manager and noted that both Children are doing very well
in their foster care pre-adoptive home. She last saw them on 7 /31/2018, and they were
both safe with their needs being met. They arc both medically and dentally up-to-date.
(N.T., 8/16/2018, p. l 05 at 18-25; p. l 06 at 1-23).
On cross-examination by Athena Dooley, Esquire, Child Advocate, Ms. Patterson
testified she has observed the Children four times in the pre-adoptive home in Delaware
County, and they are typically very happy. When questioned on cross-examination by
Ms. Pie, attorney for Mother, Ms. Patterson stated she has observed Mother with the
23
Children once when Mother was saying goodbye to the Children after a visit. (N.T.,
8/16/2018, p.107 at 14-25; p.108 at 6-13; p.109 at 6-18).
Mother was the next witness to testify. She stated she had been working to the
best of her ability to be reunified with her Children. She further testified she has worked
with all of the social workers on the case, however, she does not trust them. Mother
testified that she visits both of her Children, but has a stronger bond with the older Child,
M.R.M., than the younger one, J.N.D.B. She believes her older Child wants to be with
her, and notes that the younger Child is bonded to his foster parent. (N.T., 8/16/2018,
p.113 at 15-25; p.J 13 at 20-25; p.115 at 1-19).
Mother also testified she has missed a dental appointment for the Child and some
medical visits because she does not have transportation. She noted that she was given
appointment dates, times and also tokens for transportation, however, that stopped when
a new DHS social worker took over the case and she continues to have problems with
transportation. (N.T., 8/16/2018, p.117at4-25;p.118at 1-3).
Mother stated that she visits the Children and she brings her daughter gifts, such
as sneakers and toys. She has not been able to bring her son gifts or toys because she is
not working and has not done anything for him yet. (N.T., 8/16/2018, p.118 at 12-25;
p.119at 1-16).
Mother testified she would benefit from mental health therapy because she would
learn new and better things as to coping with things; however, she believes she would not
benefit from mental health therapy because she has a lot of trouble in her past that she
does not want to keep reliving. She noted she was in foster care herself and bas been in
therapy since that time. She notes she is trying to be stable mentally, physically and
24
emotionally. She noted she continues to be homeless, however she wanted to ask the
CUA worker to take her to a shelter yesterday but could not reach her. She plans to go to
a shelter and get a referral for Project Home, and get help with low income housing
through a program called HELP. She stated she had a job interview the next day at
Wendy's. (N.T., 8/16/2018, p.119 at 19-25; p.120 at 1-25; p.121 at 1-17).
STANDARD OF REVIEW AND LEGAL ANALYSIS
When reviewing an appeal from a decree terminating parental rights, an appellate
Court is limited to determining whether the decision of the trial court is supported by
competent evidence. Absent an abuse of discretion, an error of law. or insufficient
evidentiary support for the trial court's decision, the decree must stand. Where a trial
court has granted a petition to involuntarily terminate parental rights, an appellate court
must accord the hearing judge· s decision the same deference that it would give to a jury
verdict. The Pennsylvania Superior Court need only agree with a trial court's decision as
to any one subsection under 23 P.C.S.A. §2511 (a) in order to affirm a termination of
parental rights. In re D.A.T. 91 A.3d 197 Pa.Super.201-1).
The standard of review in termination of parental rights cases requires appellate
Courts to accept the findings of fact and credibility determinations of the trial court if
they are supported by the record. If the factual findings are supported, appellate courts
review to determine if the trial court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. We have previously emphasized
our deference to trial courts that often have first-hand observations of the parties
25
spanning multiple hearings. In re T.S.M., 620 Pa. 602, 71 A.3d 251, 267 (2013) (citations
and quotation marks omitted) In re Adoption of C.D.R., 2015 PA Super 54, 111 A.3d
1212, 1215 (2015).
These Children came to the attention of OHS on June 25, 2014, when DHS
received a Child Protective Services (CPS) Report alleging that two-month-old Child,
M.R.M., had suffered a right clavicle fracture, a right humerus fracture and a tibia
fracture. The Child had a skeletal survey and CAT scan completed and the results were
pending. M.R.M.'s parents, D.R.M. and M.M., stated that they were unaware how the
Child sustained her injuries. The parents resided in the home with the Child's maternal
grandmother, S.S., and maternal uncle, J.M. The Child was admitted to the Children's
Hospital of Philadelphia (CHOP). On June 25, 2014, OHS learned that M.R.M. was
examined at CHOP for an abrasion and bleeding in her mouth. The parents were unable
to explain how the Child had sustained her injuries. On June 26, 2014, DHS received a
supplement to the previous report alleging that a detective from the Special Victims Unit
(SVU) of the Philadelphia Police Department was going to CHOP to visit with the Child
and meet with the family. Maternal grandmother, S.B., stated that the Child had a broken
arm. No one was able to explain what had caused the injury. CHOP found that the Child
had multiple fractures mainly on the right side of her body. Mother stated she had no
idea how the Child had sustained the injuries. The Child had a cast on her right leg and
right arm was wrapped. On June 27, 2014, DHS obtained an Order of Protective Custody
(OPC) for M.R.M. and placed her in a foster care home through Bethany Christian
Services.
26
On November 15, 2016, Mother gave birth to J.N.D.B. On November 16, 2016,
DHS received a General Protective Services (GPS) Report which alleged that on
11/15/2016, Mother gave birth to J.N.D.B.; that the Child had been exposed to illegal
substances during Mother's pregnancy; and that Mother had tested positive for marijuana
upon delivery. The Report alleged that Mother blamed her positive urine drug screen on
second-hand exposure; however, Mother had tested positive one time during her
pregnancy; that the Child's urine drug screen was negative; that Mother received very
inconsistent prenatal care throughout her pregnancy; and that she expressed that she was
ready to receive the newborn Child and that she had all necessary infant supplies at the
home of presumed Father, J.B. It was alleged that the Child had been born healthy at
39.3 weeks gestation; that he weighed 7 pounds and 10 ounces at birth; that his APGAR
score was 8/9; that the newborn's sibling, M.R.M. resided in foster care; that Mother was
employed at Burger King at gth & Market Streets; that she received mental health services
from Community Council; and that she was diagnosed with Post-Traumatic Stress
Disorder (PTSD) due to her history of physical and sexual abuse. The Report was
determined as valid. On November 16, 2016, DHS obtained an OPC for the newborn,
J.N.D.B. He was placed in the same foster care home as his sibling, M.R.M.
The Trial Court Properly Appointed Attorneys for both Children to advocate for
their legal interests and best interests Pursuant to 42 Pa.C.S.A. §631 l(a), 6337.l(a),
Pa.R.J.C.P. No. 1151, and 23 Pa.C.S.A.§2313(a)1
1
42 Pa.C.S.A. § 6311-Guardian ad litem for child in court proceedings. (a) Appointment.--When a
proceeding, including a master's hearing, has been initiated alleging that the child is a dependent child
under paragraph (1 ), (2), (3), (4) or (10) of the definition of "dependent child" in section 6302 (relating to
definitions), the court shall appoint a guardian ad litem to represent the legal interests and the best interests
of the child. The guardian ad litem must be an attorney at law.
27
23 Pa.C.S.A.§23 l 3(a) prescribes the scheme for the representation of children in
contested, involuntary termination of parental rights cases, and requires the appointment
of counsel who serves the child's legal interest. In Re Adoption ofl.BiM. 161 A3d J 72.
Sup. 2017. This Court is aware of our Supreme Court's decision in which the Court held
that trial courts must appoint counsel to represent the legal interest of any child involved
in a contested involuntary termination proceeding.
Mother's Concise Statement of Matters Complained of on Appeal alleges that the
Trial Court failed to appoint legal counsel for the sibling. J.N.D.B. This Court disagrees.
On 11/17/2016, the Honorable Margaret T. Murphy signed an Order appointing Joshua
A. Weil, Esquire as Child Advocate for the Child, J.N.D.B. On 11/18/2016, the
Honorable Vincent W. Furlong, appointed Joshua A. Weil, Esquire, as attorney for the
Child, J.N.D.B., and the Letter of Appointment was filed with the Philadelphia County
42 Pa.C.S.A. § 6337.1-Right to counsel for children in dependency and delinquency proceedings. (a) Children
in dependency proceedings.--Legal counsel shall be provided for a child who is alleged or has been found to
be a dependent child in accordance with the Pennsylvania Rules of Juvenile Court Procedure.
Pa.R.J.C.P. No. 1151. Assignment of Guardian Ad Litem & Counsel. A. Guardian ad /item for child. The court
shall assign a guardian ad litem to represent the legal interests and the best interests of the child if a
proceeding has been commenced pursuant to Rule 1200 alleging a child to be dependent who: (1) is without
proper parental care or control, subsistence, education as required by law, or other care or control necessary
for the physical, mental or emotional health, or morals;(2) has been placed for care or adoption in violation
of law;(3) has been abandoned by parents, guardian, or other custodian.Ia) is without a parent, guardian or
legal custodian; or (5) is born to a parent whose parental rights with regard to another child have been
involuntarily terminated under 23 Pa.C.S. § 2511 (relating to grounds for involuntary termination) within
three years immediately preceding the date of bi rth of the child and conduct of the parent poses a risk to the
health, safety, or welfare of the child.
23 Pa.C.S.A. § 2313. Representation. (a) Child.--The court shall appoint counsel to represent the child in an
involuntary termination proceeding when the proceeding is being contested by one or both of the parents.
The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of
18 years and is subject to any other proceeding under this part whenever it is in the best interests of the
child. No attorney or law firm shall represent both the child and the adopting parent or parents.
28
Clerk of Coutts on 12/05/2016. On 4/03/2017, the Honorable Allan L. Tereshko
appointed Athena Mary Dooley, Esquire as attorney for M.R.M. On 5/10/2018, the
Honorable Margaret T. Murphy appointed Athena Mary Dooley, Esquire, as Co-Counsel
for the Child J.N.D.B. Both Mr. Weil and Ms. Dooley were present at the hearing on
8/16/2018 and advocated for the Children. The Court stated, "Mr. Weil will continue to
represent the best interest of both Children, and Ms. Dooley wi 11 represent the legal
interest of the older Child, M.R.M." (See attached: Order Appointing Counsel as Child
Advocate, 11/17/2016, Letter of Appointment, 11/18/2016, Letter of Appointment,
4/03/2017, and Letter of Appointment, 5/10/2018 and N.T., 8/16/2018 p.3 at 16-25; p.4
at 1-4).
The Trial Court Properly Proceeded with Petitions to Involuntarily Terminate
Mother's Parental Rights Pursuant to 23 Pa.C.S.A. §2512(a)(b) and §2513 (a)(b)(d)2
2
23 Pa.C.S.A. § 2512. Petition for involuntary termination. (a) Who may file.v-A petition to terminate
parental rights with respect to a child under the age of 18 years may be filed by any of the following.Ir) Either
parent when termination is sought with respect to the other parent.(2) An agency.Ig) The individual having
custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by
section 2531 (relating to report of intention to adoptj.Ia) An attorney representing a child or a guardian ad
litern representing a child who has been adjudicated dependent under 42 Pa.C.S. § 6341(c) (relating to
adjudication).(b) Contents.--The petition shall set forth specifically those grounds and facts alleged as the
basis for terminating parental rights. The petition filed under this section shall also contain an averment that
the petitioner will assume custody of the child until such time as the child is adopted. If the petitioner is an
agency it shall not be required to aver that an adoption is presently contemplated nor that a person with a
present intention to adopt exists.
23 Pa.C.S.A. § 2513. Hearing.(a) Time.e-The court shall fix a time for hearing on a petition filed under
section 2512 (relating to petition for involuntary termination) which shall be not less than ten days after
filing of the petition.(b) Notice.--At least ten days' notice shall be given to the parent or parents, putative
father, or parent of a minor parent whose rights are to be terminated, by personal service or by registered
mail to his or their last known address or by such other means as the court may require. A copy of the notice
shall be given in the same manner to the other parent, putative father or parent or guardian of a minor
parent whose rights are to be terminated. (d) Decree.--After hearing, which may be private, the court shall
make a finding relative to the pertinent provisions of section 2511 (relating to grounds for involuntary
termination) and upon such finding may enter a decree of termination of parental rights.
29
Mother's Concise Statement of Matters Complained of on Appeal alleges that the
Trial Court permitted the City to proceed upon a Petition that had grown stale. This
statement of error is vague and unclear. This Court cannot speculate as to the substance
of Mother's allegations, however, the Court disagrees. OHS filed a Petition for
Involuntary Termination of Parental Rights of Mother as to M.R.M. on December 19,
2016, and filed a Petition for involuntary Termination of Parental Rights of Mother as to
J.N.D.B. on April 25, 2018.
Any delay in hearing the Petitions and scheduling the Contested Goal Change
Hearings occurred in the normal course of business and in response to continuation
requests by the various parties involved in the case. On March 29, 2017, this Court
granted a continuance for the hearing on the case of the older Child. M.R.M., and held a
Permanency Review Hearing for the younger Child. On July 18, 2017, this Court granted
the ACS' request for a continuance for a contested time slot, and also to refer Father for a
paternity test for the younger Child. On October 19, 2017, this Court continued both
cases due to the court's schedule. On February 6, 2018, Permanency Review Hearings
were held for both Children and Contested Goal Change Hearings were scheduled for
May 10, 2018. On May 10, 2018, Status Review Hearings were held and the Contested
Goal Change Hearings were then scheduled for August 16, 2018. Any delay in hearings
did not cause disadvantage or prejudice to any party. The evidence established that
Mother before and after the filing of both Petitions, failed to perform parental duties and
failed to meet her FSP objectives, providing no plausible justification for her failure to do
so.
30
The Trial Court Properly Found that DHS had met its Burden by Clear and
.Convincing Evidence to Terminate Mother's Parental Rights Pursuant to 23
Pa.C.S.A. §2511(a)(l), (2), (5), (8) and 2511 (b) as to M.R.M. and under 23 Pa.C.S.A .
.§2Sll(a)(1), (2) and 2511 (b) as to J.N.D.B. 3
Involuntary termination of parental rights is governed by § 2511 of the Adoption
Act, 23 Pa.C.S.A. §§ 2101-2938. As the party petitioning for termination of parental
rights, DHS "must prove the statutory criteria for that termination by at least clear and
convincing evidence." In re T.R., 465 A.2d 642, 644 (Pa. 1983). 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 hesitancy, of the truth of the
precise facts in issue." Matter of Sylvester, 555 A.2d 1202, 1203-04 (Pa.1989).
Termination of parental rights is governed by Section 2511 of the Adoption Act
23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis. Initially, the focus is
3
23 Pa.C.S.A. §2511 (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: The parent by conduct continuing for a period ofat least six
months immediately preceding the filing of the petition either has evidenced a settled purpose of
relinquishing parenting claim to a child or has refused or failed to perform parental duties. ( 1) 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. (5) The
child has been removed from the care of the parents by the court or under a voluntary agreement with an
agency for a period ofat least six months, the conditions which led to the removal or placement of the child
continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time,
the services or assistance reasonably available to the parent are not likely to remedy the conditions which
led to the removal or placement of the child within reasonable period of time and termination of the
parental rights would best serve the needs and welfare of the child. (8) The child has been removed from
the care of the parent by the court or under voluntary agreement with an agency, 12 months or more have
elapsed from the date of removal or placement, the conditions which led to the removal or placement of the
child continue to exist and termination of the parental rights would best serve the needs and welfare of the
child.
23 Pa.C.S.A. §251 I (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)(l),(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
31
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. In re l.J\1.. 923 A.2d 505, 511 (Pa.Super.2007)
(citations omitted). In re Adoption ofC.J.J.P., 2015 PA Super 80, 114 A.3d 1046. 1049-
50 (2015). The Court need only agree with the orphans' court as to any one subsection of
Section 2511 (a), as well as Section 2511 (b), in order to affirm. In re Adoption of
C.J.J.P., 2015 PA Super 80, 114 A.3d 1046, 1050 (2015).
Mother questions whether it was proven by clear and convincing evidence that
Mother's parental rights should be terminated under 23 PA.C.S.A.§251 J(a)(l), (2), and
2511 (b ). Further, Mother alleges this Court misheard and misinterpreted bonding
evidence. This Court disagrees and found that clear and convincing evidence was
presented by OHS under 23 PA.C.S.A. §251 l(a)(l), (2), (5), (8)and 2511 (b) to terminate
Mother's parental rights as to the older Child, M.R.M., and under 23
PA.C.S.A.§251 l(a)(l), (2), and 2511 (b) to terminate Mother's parental rights as to the
younger Child, J.N.D.B. This evidence was in the form of testimony that was clear,
direct, weighty, and convincing, and it was presented to enable this Court to come to the
decision to involuntarily terminate Mother's parental rights.
32
Dr. Erica Williams provided expert testimony when she related to the Court that
she conducted a Parenting Capacity Evaluation on Mother on June 16, 2016, in which she
had a number of concerns regarding Mother. Mother became known to her because she
was referred to her after DHS became involved after Mother presented her daughter to
the hospital with multiple injuries, which included her arms, legs and collar bone. In this
instance the Child's multiple injuries could not be explained by any of the variations
provided by the parents. She testified that Mother's visits remained supervised because
of the aggravated circumstances against her, the ongoing inability to explain the injuries
to the Child, as well as observations that Mother had a difficult time managing the
behaviors of her daughter during the visits, and her own self-report that her discipline
was to ''pop her."
Dr. WiJliams further testified that there were substantial concerns relating to
Mother's mood disorder, potential psychosis, potential suicidality and symptoms that
required mental health treatment. Mother has a history of multiple diagnoses and
requires treatment whether or not it's a mood disorder, whether suicidality is a current
concern, and given that she had aggravated circumstances and the injuries to the Child
were yet to be explained, possibly child abuse diagnosis, also. She made several
recommendations after the PCE, first and foremost was that Mother should begin
individual mental health treatment to address her prior mental health needs and ongoing
needs. Mother has a history of chronic mental health needs, responding to stressors with
suicidality. With treatment Mother may be in a position to truly explore how and what
the mechanisms of injury was for her daughter. Once she was able to do that, to develop
an appropriate safety plan so that she could execute that plan in keeping her daughter
33
safe. The main concern with Mother is the injury of the Child, coupled with her own
childhood and early adulthood. She has complex trauma, and has substantial mental
health needs, and it is important that she engage in treatment, consistently. Without
being able to know what places your Child at risk and prevent and manage around those
risk factors, Mother is not able to ensure the Child's safety. She has to understand how
the injury occurred and to have a plan that is realistic and relevant to making sure that
does not occur again. In the presentation of those mental health concerns, it is important
that Mother was to engage in treatment and address beyond just the injuries, but the
destabilizing force that it has on her. Additionally, there were concerns regarding Mother
being able to obtain and maintain her own housing. Dr. Williams also recommended
Mother obtain and maintain stable employment and/or develop a sustainable financial
plan to meet her needs and the Child's needs on a long-term basis. Without a sustainable
financial plan and/or income, she is unable to provide a level of permanency and stability
that a Child needs.
Dr. Williams Russell opined with a reasonable degree of psychological certainty,
as to whether Mother could parent her Child, at the time of the evaluation, Mother did not
present with the capacity to provide safety or permanency to her daughter. She based this
opinion on the aforementioned factors, specifically, the inability to plan for safety for the
Child, the concerns regarding her capacity to provide permanency for the Child, and at
the time, her not meeting her mental health needs. When asked if she was to learn that
Mother did not follow any of the recommendations in the two years since she completed
the PCE, would that change her conclusion, Dr. Williams responded that without Mother
following the recommendations, it is high unlikely that these issues spontaneously were
34
mediated, and the concerns would likely remain constant. Nonetheless, the
recommendations are set to provide Mother a pathway to developing parental capacity.
Unfortunately, completing the recommendations does not ensure the development of
capacity. So, if Mother did complete the recommendations, she would recommend a
review of her mental health records, as well as an updated evaluation. On cross
examination by Joshua Weil, Esquire, GAL, Dr. Williams was questioned about Mother's
history of substance abuse. She noted that at the time of the PCE, Mother did not have a
significant history of substance abuse, although she self-reported that her first use of
alcohol was at 18 years of age, and she did not use other substances at that time. On
cross examination by Maureen Pie, Esquire, attorney for Mother, Dr. Williams noted that
Mother was identified as a perpetrator of the injuries to her daughter because she was one
of the adults with the Child. She stated Mother expressed that the injury may have been
caused at childbirth, which was not supported by medical evidence, or that perhaps the
Child's injury was caused by maternal grandmother because her mother did not treat her
well and did not provide the safety she needed as a child. Dr. Williams stated, "So as an
adult in charge with the safety of a child, knowingly to expose your child to the care of
somebody who could harm them, it is important that you identify that and identify your
role. So, if it is determined without a doubt that Mother was not present and did not
cause those injuries, as a parent, she still created an environment in which there was the
potential of it. So, you need to plan for that. And in this case, the injuries were caused to
the Child four years ago in June of 2014, and there is no evidence to point to it randomly
occurring on the street." Dr. Williams concluded that on many occasions, for many
reasons, individuals never admit to it. Sometimes it's an immature defense mechanism or
35
they themselves cannot (sic) admit to themselves the injuries occurred. It is a fear of
retaliation or a somewhat immature and juvenile belief that, as long as they keep saying it
didn't happen, then everybody will believe that and they can move forward. And then,
also, an inability or unwillingness to provide culpability to somebody else, and cause
trouble in their lives. Finally, Dr. Williams noted that since she prepared the PCE in
2016, she has not received any documents that Mother has been or has not been in
compliance with any of the PCE recommendations.
On redirect examination by Kristina Helmers, Esquire, attorney for DHS,
presented Dr. Williams with various hypotheticals. First, she was asked if she learned
that Mother had engaged in mental health treatment intermittently since the PCE, but had
not completed the program, would that change her conclusion regarding Mother's
capacity. Dr. Williams responded that it is highly unlikely that intermittent participation
would at all help her develop the capacity. Second, if she was learned that Mother does
not have stable employment, would that change any of her conclusions regarding Mother.
She responded that in the absence of a financial plan, it would not.
On re-cross examination by Maureen Pie, Mother's attorney, Dr. Williams was asked to
clarify a statement she made on page 10 of the PCE, where she noted that Mother said
she would "pop her daughter on the hand" as a method of discipline. She confirmed that
the report information was correct.
Other witnesses, namely, Abazz Grey, OHS social worker, and Chelsea Miranda,
Case Management Supervisor for Turning Points for Children, both provided the Court
with credible, convincing testimony regarding Mother's failure to perform parental
36
duties, and inability to remedy the conditions which led to the Children's removal and
placement.
Ms. Grey testified that the FSP objectives for Mother were housing, parenting,
Women's Empowerment, healthy relations, visitation and mental health. She informed
Mother of the objectives and confirmed that Mother was aware that compliance with the
objectives was necessary for reunification with her Child. She noted that she was the
social worker on the case for two years. She referred Mother to various programs: ARC,
Women's Empowerment, mental health, and parenting. She noted Mother was closed out
of ARC for non-compliance. She also testified that Mother did complete some programs
through ARC at later dates, including a parenting class, and she completed job training
through OIC, for culinary. Mother attended but was inconsistent with mental health
treatment during the time she had the case. She contacted various agencies to verify that
Mother had scheduled appointments for mental health, but attendance could not be
verified. Mother did not successfully complete a mental health programs during that two
year period. Regarding visitation, Mother had supervised visits, twice a week, which
decreased to once a week and then decreased again to bi-weekly, and lastly increased to
weekly again. All of the visits remained supervised because Mother was inconsistent
with visitation and she never progressed to consider unsupervised. Ms. Grey noted that a
PCE was added as an objective at a later date, and also noted that during all the time she
was involved with the case, Mother never was fully compliant with the goals and
objectives that were set. Mother declined services at ARC and declined housing because
the Child's Father, M.M., was not allowed to move in with her. There were also
37
incidents of domestic violence, where Mother reported that M.M. hit her, then later
recanted and said it was not true.
Ms. Miranda testified she is the supervisor in the case of both Children, M.R.M.,
and J.N.O.B. She noted that J.N.D.B. came into care after his birth, and she developed
Single Case Plans for the family on 7/06/2017, 11/16/2017 and 2/22/2018. In the
7/06/2017 SCP, Mother's objectives were mental health, housing, visitation and attend
drug and alcohol treatment, and employment was added also. The objectives remained
the same for the subsequent two plans because Mother did not progress on completing the
goals established. She communicated the objectives to Mother and Mother was aware of
the goals for her to become reunited with her Children. Regarding Mother's mental
health objective, Ms. Miranda testified that Mother enrolled at Community Council with
therapist Maurice Denton, however, she did not successfully complete the program.
Regarding housing, she referred Mother to Methodist Housing Services and she was
housed but Mother did not sustain the housing. She moved to different housing in June
2017 and November 2017, however Mother was evicted and discharged from the whole
program in February 2018. Ms. Miranda noted that to the best of her knowledge, Mother
does not currently have stable housing. Regarding Mother's drug and alcohol treatment
objective to complete a CEU dual diagnosis assessment, and complete random drug
screens, Ms. Miranda testified that Mother attended NET, but never completed that
program. Mother never completed a dual diagnosis assessment at CEU, but she self-
enrolled at the NET, but when she called them to check her progress, she was informed
that Mother had not been there in over a month. Mother was referred to the CEU for
random screens, however she only completed one since March of 2017, which was
38
positive for marijuana. Regarding employment, Ms. Miranda testified Mother did have
an objective to obtain and maintain employment. During her supervision of the case,
Mother did obtain employment for a few months, however, could not maintain it. When
Ms. Miranda asked Mother about job searches and why she could not keep her job, and
stated that she was homeless and unable to dress appropriately and she was absent from
work and ultimately fired for customer service. Ms. Miranda stated to the best of her
knowledge, Mother is currently unemployed.
Ms. Miranda also testified she referred Mother to Family School two times,
however, Mother did not complete the program. Regarding visitation, Ms. Miranda
testified Mother has supervised visits with J.N.D.B. twice a weekly, on Mondays and
Tuesdays, for one and one-half hours and supervised visits with M.R.M. on Tuesdays for
2 hours. The visits continue being supervised for Mother because there were some
concerns about Mother maintaining both of the Children outside of the supervised
visitation. She testified there are concerns about the effect that the visits have on M.R.M.
She testified she has observed the visits in the past between the two but not recently. The
Child exhibits instability after visits because of the lack of structure at the visits, in
contrast to the strict rules for behavior at the foster home. She opined the Child requires
stability and Mother does not provide that during visits by allowing the Child to do
whatever the Child chooses and eat whatever the Child wants to eat. Mother also lacks
general stability with lack of housing, and employment.
This Court's decrees terminating Mother's parental rights to both her Children
was based on clear and convincing evidence which established that Mother had failed to
perform parental duties, and she lacks the present capacity to perform those parental
39
responsibilities. This Court found that DHS proved by clear and convincing evidence
that Mother is incapable of providing safety and permanency for her Children now and in
the future. This Court is not persuaded that Mother can or will remedy the conditions
which continue to exist and which brought the Children into Court supervision. Mother
continues to use marijuana, does not have appropriate housing, employment and attends
mental health therapy inconsistently. Based on the clear and convincing evidence
presented, this Court terminated Mother's parental rights pursuant to 23 PA.C.S.A.
§251 l(a)(l), (2), (5), and (8) as to the older Child, M.R.M., and under 23
PA.C.S.A.§251 l(a)(l), and (2), as to the younger Child, J.N.D.B.
After the Court finds that the statutory grounds for termination have been
satisfied, it must then determine whether the termination of parental rights serves the best
interests of the children pursuant to 25) l(b) In re Adoption of C.L.G., 956 A2d 999
(Pa.Super 2008). In terminating the rights of a parent, the Court "shall give primary
consideration to the development, physical and emotional needs and welfare of the
child." 23 Pa.C.S.A. §2511 (b). One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between parent and child. In re
TS.M. 71 A3d 251 (Pa. 2013).
In making this determination, the Court must carefully examine both the tangible
and intangible dimension of the needs and welfare of the Children. The tangible
dimension of a Child's needs involves providing for the physical necessities of life. The
intangible dimension of the parent-child relationship involves the consideration of the
love, closeness, comfort and security shared, the emotional bond that may or may not
exist between the parent and the Child and the likely effect termination of parental rights
40
will have on the Child. In re: Involuntary Termination ofC. WS.M and K.A.L.M.. 839
A.2d 410 (Pa.Super. 2003).
Testimony by OHS Social Workers and Case Managers again provided credible,
persuasive testimony regarding the Children's physical and emotional needs, best
interests and with whom the Children have a parental bond. Ms. Grey testified that
Mother had supervised visits, twice a week, which decreased to once a week and then
decreased again to bi-weekly, and lastly increased to weekly again. All of the visits
remained supervised because Mother was inconsistent with visitation and she never
progressed to consider unsupervised. She also testified that she had observed the Child
with the foster parent and noted that they were bonded, and the Child looked towards the
foster parent as a mother figure, and referred to her as "Morn." The Child also got along
well with the other children in the home, they were like siblings.
This Court also heard credible, persuasive testimony from Ms. Miranda, Case
Manager, who stated Mother has supervised visits with J.N.D.B. twice weekly, on
Mondays and Tuesdays, for one and one-half hours and supervised visits with M.R.M. on
Tuesdays for 2 hours. The visits continue being supervised for Mother because there
were some concerns about Mother maintaining both of the Children outside of the
supervised visitation. She testified there are concerns about the effect that the visits have
on M.R.M. She testified she has observed the visits in the past between the two but not
recently. The Child exhibits instability after visits because of the lack of structure at the
visits, in contrast to the strict rules for behavior at the foster home. She opined the Child
requires stability and Mother does not provide that during visits by allowing the Child to
do whatever the Child chooses and eat whatever the Child wants to eat. She testified that
41
she has observed interactions between Mother and both of her Children, and it is her
opinion that the Children do not have a parental bond with her. The younger Child cries
every single time he is dropped off at the visits, and he gets very excited to see his foster
parents when they come back. She further testified she has experience in observing
relationships between Children and their parents, and in particular she has observed the
relationship between Mother and these two Children. She opined in the beginning of the
visits, the Children are happy to see Mother, but they do not look to Mother for protection
and do not seek her for basic needs. Regarding the bond with the foster parents, Ms.
Miranda testified the older Child has been in the foster home for 4 years, and she has
observed her with the foster parents and notes that she loves them and calls them
"mommy and daddy." She is a part of the family, and has stability and structure there,
and they are the only parents she has known. The younger Child has been in his current
foster home since November of 2016, and notes the Child is bonded with his foster
parents, especially his foster father. He cries when he is separated from them and gets
very excited when he sees them. Based upon her experience in observing parental
relationships, healthy and unhealthy ones, and weak and strong parental relationships,
Ms. Miranda opined that these Children would not suffer irreparable harm if Mother's
parental rights were terminated and it would be in the Children's best interest to be
adopted.
Ms. Patterson, the current CUA Case Manager, also provided the Court with
credible, persuasive evidence. She stated that both Children are doing very well in their
foster care pre-adoptive home. She last saw them on 7/31/2018 and they were both safe
with their needs being met. They are both medically and dentally up-to-date. On cross-
42
examination by Athena Dooley, Esquire, Child Advocate, Ms. Patterson testified she has
observed the Children four times in the pre-adoptive home in Delaware County, and they
are typically very happy. When questioned on cross-examination by Ms. Pie, attorney for
Mother. Ms. Patterson stated she has observed Mother with the Children once when
Mother was saying goodbye to the Children after a visit.
The agency witnesses testified that the Children would not suffer irreparable harm
if Mother's parental rights were terminated, and it would be in their best interests to be
adopted. The Children have close, loving relationships with their foster parents, and
they are safe.
There is no requirement that a bonding evaluation be performed as a basis to
establish that termination of parental rights best serves a child's needs and welfare. In
fact, there is no requirement that expert testimony be presented to enable the court to
determine the child's best interest and the effect of severing the biological relationship. In
Re: Donna W., 472 A.2d 635 (Pa.Super. 1984). The lay testimony of a foster care worker
is sufficient to provide the trial court with adequate evidence to evaluate the parent-child
relationship and the effect termination of parental rights would have on the child. Here,
the totality of the evidence supports the Court's conclusion that termination of parental
rights is in the best interest of both M.R.M., and J.N.D.B.
To consider allowing the Children to languish in an indefinite state of limbo with a parent
who will never be able to handle the responsibilities of parenting and with who neither
Child shares a viable beneficial relationship would deny the Children the right to have
proper parenting and fulfillment of their potential to have a permanent, healthy, safe
environment. This Court found that termination of Mother's parental rights met the
43
developmental, physical and emotional needs and welfare of the Children, and the
statutory requirements for involuntary termination of Mother's parental rights were met
pursuant to 23 Pa.C.S.A. §251 l(b).
Trial Court Properly Found that the Goal Change from Return to Parent to
Adoption was in the Children's Best Interest and the Court's Disposition was Best
Suited to the Safety, Protection and Physical, Mental and Moral Welfare of the
Children Pursuant to 42 Pa.C.S.A. §6351 (f.1) (2) and (g):'
The concept of a "goal change" is consistent with the statute which requires the
trial court, at the conclusion of a permanency hearing in a child dependency proceeding,
to order the continuation, modification, or termination of placement or other disposition
which is best suited to the safety, protection and physical, mental, and moral welfare of
the child; an order to continue, modify, or terminate the current placement, as required by
the statute, is synonymous with a decision to continue or change the permanency plan
goal. 42 Pa.C.S.A. § 635 l(g)
Mother alleges the trial court erred when it found that OHS, by clear and
convincing evidence had met its burden to change the Children's goal to adoption. This
Court disagrees.
Ms. Grey and Ms. Miranda both provided the Court with competent and
persuasive evidence that reasonable efforts were made by the agency for over four years
4 42 Pa.C.S.A. §6351-Disposition of dependent Child.-(f.1). Additional determinations. Based upon the
determinations made under subsection (f) and all relevant evidence presented at the hearing, the court
shall determine one of the following: (2) If and when the Child will be placed for adoption, and the county
agency will file for termination of parental rights in cases where return to the Child's parent, guardian or
custodian is not best suited to the safety, protection and physical, mental and moral welfare of the Child.
(g) Court Order-ON the basis of the determination made under subsection (f.l), the court shall order the
continuation, modification or termination of placement or other disposition which is best suited to the
safety, protection and physical, mental and moral welfare of the child.
44
to give Mother the avenue for reunification with her Children, however, Mother failed to
use the referrals and resources provided to her. Mother, on the other hand, provided
testimony that was not persuasive and found to be incredible by this Court. Mother
testified she did not trust the agency workers and first stated she did not attend dental and
medical appointments because the workers did not provide transportation, then stated she
had 10/20 packs of tokens all the time and still had problems with transportation.
Regarding her mental health testimony, Mother stated she was uncertain if she would
benefit from mental health therapy because she wanted to learn better and new things,
however, does not want to keep reliving her troubled past. Mother concluded by stating
she is trying to be stable mentally, physically and emotionally. This Court is not
persuaded that she could function in a caregiving role of a parent to provide safety and
permanency to her Children.
The Pennsylvania Juvenile Act, as amended to reflect the principles of the Federal
Adoption and Safe Families Act (ASF A) which focuses on safety and permanency as the
paramount concerns in planning for dependent children, ranks the permanency options
for children using a hierarchical priority. The permanency options are listed first to last
and each preceding option must be ruled out before the next can be chosen as a viable
permanency option. The Superior Court detailed this hierarchy in its decision in In Re:
B.S., 861 A2d 974 (Pa.Super 200-1). Pursuant to the hierarchy of permanency option, the
option of "placement with a legal custodian" is listed third. Once reunification is ruled
out, the second preferred permanency option is adoption. Adoption has been clearly
established as the appropriate goal in the best interest of these Children, and adoption by
45
their foster parents is a far preferred permanency option to placement with a legal
custodian under the law.
The Trial Court Heard and Admitted Evidence Pursuant to Pa.Rule of Evidence
803(b), the Business Record Exception5
Mother also alleges the trial court committed reversible error when it relied upon
inadmissible hearsay evidence and misapplied Pa. Rule of Evidence 803(b ). This Court
disagrees. Mother's allegation is broad and all-encompassing, without any specifics.
Therefore, this Court will not speculate as to the meaning of this allegation, but will note
that this Court ruled on each document presented and each was marked and admitted.
Mother's counsel specifically objects to OHS 5, and OHS 6, which are both the Court
Dependency Dockets for each Child. These are chronological listings of court actions
and orders, which are kept in the normal course of business and are self-authenticating.
Mother's counsel also objected to OHS 7, OHS 8, and OHS 9 which are letters and a
report from ARC that were sent to Mother. This Court relied on testimony from Ms.
Grey, OHS social worker, who supervised the case from the beginning sometime in
5 Pa.R.E., Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is
Available as a Witness. The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness: (6) Records of a Regularly Conducted Activity. A record (which
includes a memorandum, report, or data compilation in any form) of an act, event or condition if: (A) the
record was made at or near the time by--or from information transmitted by-someone with knowledge; (B)
the record was kept in the course ofa regularly conducted activity ofa "business", which term includes
business, institution, association, profession, occupation, and calling of every kind, whether or not
conducted for profit; (C) making the record was a regular practice of that activity; (D) all these conditions
are shown by the testimony of the custodian or another qualified witness, or by a certification that complies
with Rule 902( 11) or ( 12) or with a statute permitting certification; and (E) the opponent does not show that
the source of information or other circumstances indicate a lack of trustworthiness.
46
September or October of 2014 until June 2016, that during her supervision of the case,
Mother had completed parenting class, job training through OIC for culinary, and also
that Mother was closed out by ARC for non-compliance. Her testimony informed the
Court about the objectives in Mother's FSP and about Mother's record of attendance,
compliance and non-compliance with the Court ordered requirements.
Mother's counsel also objected to OHS 10, a Clinical Evaluation Unit (CEU)
Progress Report, and DHS 11, a FJD Substance Analysis Unit Urine Drug Testing
Report, which had previously been entered into evidence by this Court at a Status Review
Hearing on March 29, 2017. Once again this Court relied on testimony received from
Ms. Miranda, the Case Manager Supervisor from Turning Points for Children, the current
Case Supervisor, informed the Court that Mother had a drug and alcohol objective to
have a dual diagnosis assessment and three random drug screens. Ms. Miranda testified
Mother did not complete the assessment at CEU, however, she did attend drug and
alcohol treatment at NET, but never completed the program. She also informed the Court
that Mother had tested positive for marijuana in March 2017.
This Cou11 relied on credible, persuasive testimony from caseworkers based on
their interactions with Mother and their first-hand knowledge of the family and the events
that had occurred in this case.
CONCLUSION
At the conclusion of the Hearing, the Court stated:
Difficult case, obviously. In some instances, and some
ways, it's not difficult, but terminating parental rights is
always an emotional issue. But when we focus on the
47
actual facts and look at the facts as compared to the
testimony, which presents itself by the Mother has a wish
that, in the future, she may comply and said she has a plan
that will start tomorrow and she has a plan that, maybe if
she contacts the right person. she might be able to get
housing, and she wishes to have mental health therapy, and
she doesn't wish to have mental health therapy.
And 1 mentioned that because it identifies the critical issue
in this case, and that is that Mother believes that we can
just wait and wait and wait, until one day she may come
into compliance, or she may find a house, or she may
accept mental health services. And the case law is replete
with, from our Supreme Court on down, that a Child just
can't wait until a parent decides she wants to become a
parent to a child and take steps to create a parental bond.
The testimony is overwhelming that mother and father
failed to complete any of the objectives laid out for them.
Mother comes in with a belated attempt to create an
impression that she may have a parental bond someday, and
that's just it, it's a belated attempt to rectify four years of
non-compliance, four years of forgetting that she has a
responsibility to develop a parental relationship with the
children, four years of ignoring all of the services offered
by DHS.
We've had three case workers that came in and offered
substantially uncontradicted testimony of their efforts to
engage mother in the process of trying to build a parental
relationship with the children, trying to build her skills so
that she can become a parent to these children, and we have
four years of failure. While I appreciate mother's
emotional position and the emotional effect on her, it
doesn't change the cold hard facts that she has done
nothing to improve her condition, nor take advantage of the
many, many services. One child has been in care since
birth. She has never elevated her visitation beyond
supervised at the agency. And during the majority of these
visitations, there was a palpable estrangement between the
children and mother.
Only lately, after petitions having been filed, despite
numerous continuances, did mother believe that she would
perform some minimal tasks and bring in a teddy bear,
bring in a cake, and to try to convince the Court that
48
somehow she's attempting to create a parental relationship.
It falls on deaf ears. If there· s a conflict between mother's
testimony and the case workers, the case workers were
vastly more credible. Mother's testimony, ifl can
characterize it was self-serving and unbelieving, it is just
that. And I understand that Mother's attempt to reinforce
her testimony with emotional outbreaks during court belies
the reality of what mother has actually not done to improve
her parental relationship with these children.
The testimony from all three caseworkers-two case
workers that have had the opportunity, over an extensive
period chime, to observe the Children and Mother have
concluded-an I give great weight to their testimony-that
there is no parental relationship between Mother and the
Children, that there would be no irreparable harm.
Although Mother appears as a figure in the Children's
lives, the real labor at raising Children-these two
Children-the real labor, the hard task of parenting these
Children, day in and day out, have been done by the foster
care parents, who have taken both of these Children into
their home and created a parental bond, which-I believe if
they-if that bond was removed, there would be irreparable
harm to these Children. There's no question in my mind
that any harm would be remedied very quickly because of
the strength of the relationship between the foster parents
and the Children.
The finding that I made under 2511 (a)(l), (2), (5) and (8)
stands for both Mother and Father because M.R.M. was in
the care of both parents when removed as a result of the
child abuse and the aggravated circumstances in which both
parents were found to be perpetrators.
And the Child, J.N.D.B., brought into care at birth. So, the
2511 (a)(l) and (2) are satisfied by the clear and convincing
evidence of the Department. And further, under 2511 (b),
the testimony is clear and convincing, based upon the
observation, based upon the uncontested facts, that there is
no parental relationship between Father and the Children
and there is a weak, if almost nonexistent parental bond.
I characterize the bond as being one of where the Child,
M.R.M., recognizes the Mother, but there is no evidence
that there was a parental bond between Mother and Child.
49
So, there would be no irreparable harm in terminating
Mother's rights. Therefore, again, I'll repeat, under
251 l(a)(l), (2), (5) and (8) and 251 l(b) for M.R.M., and
under 2511 (a)(l) and (2) and 2511 (b) for J.N.D.B. Both
parents' rights are terminated.
(N.T. 8/16/2018 at p.122 at 23-25; p.123 at 1-25; p.124 at
1-24; p.125 at 1-25; p.126 at 2-21; p.127 at 11-25; p.128 at
6-24).
For the foregoing reasons, this Court respectfully requests that the Decrees and
Orders of August 16, 2018, terminating Mother, D.R.M.'s Parental Rights to her two
Children, M.R.M., and J.N.D.B., and Changing the Permanency Goals to Adoption, be
AFFIRMED.
BY THE COURT:
ALLAN L. TERESHKO, Sr. J.
DATE
50