In the Int. of: M.C., Appeal of: J.C.

J-S46017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.C., MOTHER :
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: No. 984 EDA 2019
Appeal from the Order Entered March 12, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002929-2015,
FID# 51-FN-002450-2015
IN THE INTEREST OF: S.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.C., MOTHER :
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: No. 986 EDA 2019
Appeal from the Order Entered March 12, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002930-2015,
FID# 51-FN-002450-2015
J-S46017-19
IN THE INTEREST OF: M.S.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.C., MOTHER :
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: No. 987 EDA 2019
Appeal from the Decree Entered March 12, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000993-2017,
FID# 51-FN-002450-2015
IN THE INTEREST OF: S.H.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.C., MOTHER :
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: No. 990 EDA 2019
Appeal from the Decree Entered March 12, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000994-2017,
FID# 51-FN-002450-2015
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 11, 2019
J.C. (“Mother”) appeals from the decrees and orders entered on March
12, 2019, granting the petitions filed by the Philadelphia Department of
Human Services (“DHS”) to terminate her parental rights to her minor
children, M.C. a/k/a M.S.C. (a male born in April 2011); and S.D. a/k/a S.H.D.
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* Retired Senior Judge assigned to the Superior Court.
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(a female born in September 2013) (collectively, “the Children”), pursuant to
the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b), and change the
permanency goals for the Children to adoption under the Juvenile Act, 42
Pa.C.S. § 6351.1 We affirm.
The facts and procedural background of this case are as follows.2 This
family became known to DHS in October 2015 when DHS received a General
Protective Services (“GPS”) report that the Children were living in deplorable
conditions. N.T. Hearing, 11/28/15, at 15. DHS obtained orders of protective
custody for the Children on November 10, 2015. Id. On November 18, 2015,
the Children were adjudicated dependent and have remained in DHS custody
in kinship care since that time. Mother’s single case plan objectives were for
her to attend anger management, domestic violence, and parenting classes;
to obtain appropriate housing and employment; to complete drug and alcohol
treatment; and to attend twice-weekly visits with Children. Id. at 16-17. Due
to Mother’s failure to meet the aforementioned objectives, on October 11,
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1 On March 12, 2019, the trial court also entered decrees terminating the
parental rights of the Children’s unknown father(s). See N.T. Hearing,
3/12/19, at 2-22. The unknown father(s) has/have not appealed the
termination of his/their parental rights and the Children’s goal changes, nor
has any unknown father filed a brief or participated in the instant appeal.
2 In a document captioned “Trial Court’s Notice of Compliance With Rule of
Appellate Procedure 1925(a),” the trial court noted the places in the record
where it set forth its findings with regard to this appeal, as well as the
testimony which it found credible and the exhibits upon which it relied, which
we adopt herein. See Trial Court’s Notice of Compliance, 5/21/19, at 1-2.
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2017, DHS filed goal change petitions for the Children, seeking to change the
permanency goals for the Children to adoption. On that same date, DHS also
filed petitions to terminate Mother’s parental rights to the Children. The trial
court held termination/goal change hearings on July 20, 2018, November 28,
2018, and March 12, 2019.3
The following testimony was elicited during the November 28, 2018
hearing. First, Breanne Wilson, the Community Umbrella Agency (“CUA”)
Turning Points for Children social worker testified and explained that she
observed Mother’s visits with the Children, and she rated the visits as “poor.”
Id. at 25. Specifically, Wilson stated that Mother brought food and clothing
for the Children, but the visitations were “always erratic” and the Children
were “always out of control.” Id. Wilson further explained that the
communication between Mother and Children is not effective, which results in
the Children bonding to each other during the visits, not with Mother. Id. at
25. In fact, during the visits, Mother yelled and screamed at the Children,
and resisted instruction to approach the Children in a different manner to calm
their behavior. Id. at 28. Wilson, however, admitted that the Children do
love their Mother. Id. at 31.
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3 Attorney Lisa Visco was appointed to represent the Children as their legal
interests counsel and Attorney Daniel Silver was appointed as guardian ad
litem (“GAL”). See In re Adoption of L.B.M., 161 A.3d 172, 179-180 (Pa.
2017).
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Next, Carrie-Ann Russell, the case manager/supervisor for CUA Turning
Points for Children testified and questioned Mother’s ability to care for the
Children without ongoing support, explaining that she did not think, “[Mother]
is able to do it on her own at this time.” Id. at 81. John Hall, the CUA
supervisor, also testified and stated that he observed Mother’s visits with the
Children, and noted that Mother did not really engage them. Id. at 100.
Based on her lack of engagement, CUA twice referred Mother to Family School,
but Mother refused to attend, and, based on Family School’s
recommendations, the CUA did not recommend unsupervised visits. Id. at
28, 101.
Finally, Mother testified. In discussing her inability to control M.C.,
Mother testified that, if CUA allowed her to do so, she would “pop[]” him, or
hit him, so as to control his behavior. Id. at 158. Mother admittedly tested
positive for marijuana in December 2017. Id. at 159-160. Mother also tested
positive for marijuana in February 2016 and May 2017. DHS Exhibits 5 and
10. Mother did not seek drug and alcohol treatment. N.T. Hearing, 11/28/18,
at 24.
At the time of the hearing on November 28, 2018, Mother lacked
appropriate housing, but she provided documentation that she was employed.
Id. at 29. Breanne Wilson testified that Mother did not complete the anger
management classes. Id. Mother continued to have a “very short temper,”
“cussing,” “screaming,” and having “no control” over how she talked to CUA
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staff. Id. at 30. Mother’s behavior led CUA to be concerned that Mother
would be unable to control her temper around the Children. Id. at 31.
M.C. is diagnosed with “upbringing away from parents”; a sleeping
disorder; enuresis (bedwetting); Attention Deficit Hyperactivity Disorder
(“ADHD”); Oppositional Defiance Disorder (“ODD”), and Post-Traumatic
Stress Disorder (“PTSD”). Id. at 35, 63. S.D. also has been diagnosed with
PTSD, and she approaches strangers and seeks attention from anyone and
everyone. Id. Carrie-Ann Russell testified that Mother lacks a healthy
maternal relationship with M.C. because she cannot control him without yelling
at him. Id. at 83. Wilson opined that, although M.C. loves Mother, he needs
to be with a caregiver who can provide him with nurturing, and she had not
observed Mother nurture him during the visits. Id. 35-36. Carrie-Ann Russell
agreed that the termination of Mother’s parental rights would be in M.C.’s best
interests, and that M.C. looks to his current caregiver to meet his needs. Id.
at 83.
Breanne Wilson testified that the termination of Mother’s parental rights
would not result in irreparable harm to S.D. Id. at 37. Wilson stated that
S.D. is too young to understand what is happening, and she has called many
people “mom,” including Mother, Wilson, and the Children’s current caregiver.
Id. Mother does not do much beyond bringing items for the Children to the
visits, do S.D.’s hair, and feed her. Id. at 38. S.D.’s therapeutic nursery has
reached out to Mother, but she makes no effort to become involved. Id. S.D.
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looks to her current caregiver to meet her needs, and S.D. is bonded to the
caregiver. Id. at 39-40.
On March 12, 2019, the trial court entered the decrees and orders
granting the petitions seeking to involuntarily terminate Mother’s parental
rights to the Children pursuant to section 2511(a)(2), (5), (8), and (b), and
change the Children’s permanency goal to adoption. This timely appeal
followed.4
In her brief on appeal, Mother raises the following issues:
1. Whether the trial court erred by terminating the parental rights
of [M]other pursuant to 23 Pa.C.S.A. [§] 2511(a)(2) without clear
and convincing evidence of [M]other’s present incapacity to
perform parental duties[?]
2. Whether the trial court erred by terminating the parental rights
of [M]other pursuant to 23 Pa.C.S.A. [§] 2511(a)(5) without clear
and convincing evidence to prove that reasonable efforts were
made by [DHS] to provide [M]other with additional services and
that the conditions that led to placement of the [C]hildren
continue to exist[?]
3. Whether the trial court erred by terminating the parental rights
of [M]other pursuant to 23 Pa.C.S.A. [§] 2511(a)(8) without clear
and convincing evidence that the conditions that led to placement
of the [C]hildren continue to exist when [M]other presented
evidence of compliance with the goals and objectives of her family
service plan[?]
4. Whether the trial court erred by terminating the parental rights
of [M]other pursuant to 23 Pa.C.S.A. [§] 2511(b) without clear
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4 On April 3, 2019, Mother filed separate notices of appeal, along with concise
statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On April 26, 2019, this Court, acting sua sponte, consolidated the appeals.
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and convincing evidence that there is no parental bond between
[M]other and [C]hildren[,] and that termination would serve the
best interest of the [C]hildren[?]
Mother’s Brief, at 7.5
On appeal, Mother argues that the trial court erred in terminating her
parental rights under section 2511(a)(2), (5), (8), and (b), because there was
no clear and convincing evidence to support the termination orders. Id. at 9.
With respect to section 2511(a)(2), Mother asserts that there was no clear
and convincing evidence of her present incapacity to perform parental duties.
Id. at 12. With regard to section 2511(a)(5), Mother contends that there was
no clear and convincing evidence to prove that DHS made reasonable efforts
to provide her with additional services and that the conditions that led to the
placement of the Children continue to exist. Id. With respect to section
2511(a)(8), Mother argues that there was no clear and convincing evidence
that the conditions that led to the placement of the Children continue to exist,
when Mother presented evidence of her compliance with the goals and
objectives of her family service plan. Id. at 13. Finally, regarding section
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5 Although Mother stated her issues somewhat differently in her concise
statement, we find that she preserved the issues for our review. See Krebs
v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both his concise statement of errors complained of on appeal and the
statement of questions involved in his brief on appeal). However, to the
extent that Mother failed to raise a challenge to the change in the Children’s
permanency goal to adoption in her statement of questions involved section
of her brief, any such challenge is waived.
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2511(b), Mother contends that there was no clear and convincing evidence
that there is no parental bond between the Children and her and that
termination would serve the Children’s best interest. Id. at 14-15.
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., 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., 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., 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 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., 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 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, 650 A.2d 1064, 1066
(Pa. 1994).
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In re Adoption of S.P., 47 A.3d 817, 826-827 (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). We conclude
that termination was proper under section 2511(a)(2).
Sections 2511(a)(2) and (b) provide, 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. § 2511.
The Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he repeated and continued
incapacity, abuse, neglect or refusal of the parent has caused the
child to be without essential parental care, control or subsistence
necessary for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.” . . .
This Court has addressed incapacity sufficient for termination
under § 2511(a)(2):
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., 515 A.2d 883, 891 (Pa. 1986), quoting
In re: William L., 383 A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 47 A.3d at 827. This Court has long recognized that
a parent is required to make diligent efforts towards the reasonably prompt
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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 necessity or availability of services, may
properly be rejected as untimely or disingenuous. Id. at 340.
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., [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., 71 A.3d 251, 267 (Pa. 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 at 1121 (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 necessary and may
even be detrimental to the child.” In re K.Z.S., 946 A.2d 753, 762 (Pa. Super.
2008).
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A parent’s abuse and neglect are likewise a relevant part of this analysis:
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). 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).
At the hearing on March 12, 2019, the trial court stated as follows:
With respect to the [DHS’] request pursuant to [Section]
2511(a)[(2), this section] indicates: “The repeated incapacity,
abuse, neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence necessary
for it’s [sic] physical or mental wellbeing[,] and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
With respect to this case[,] the testimony from the CUA case
manager[,] when we did the hearing on [November 28, 2019] and
I did find their testimony credible, was that [Mother] had
objectives[:] housing, parenting, domestic violence, [and drug
and alcohol] randoms. [Mother] actually, on her own, and I found
her credible, still admitted that she had tested positive for
substances since the petitions were filed.
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CUA testified that [Mother] was unable to manage [M.C.’s and
S.D.’s] behavior during the visits, [and] that she frequently had
to be re[-]directed. That [Mother] often brought other individuals
to visits instead of focusing on the visits, herself. That she would
sit and direct [M.C. and S.D.] from where she sat as opposed to
interacting with them. That[,] in fact[,] on one visit in particular[,]
[Mother] came with another child that was not a sibling to any of
these children[,] and spent most of her time holding that child
during the visit.
So[,] I am going to find that based on [Mother’s] continued testing
positive for drugs and alcohol – CUA[,] I believe[,] also testified
that [Mother] was minimally compliant. She did not have housing.
[Mother] had been referred to [F]amily [S]chool in 2016 and in
2018[,] but had declined [F]amily [S]chool[,] and[,] in fact[,]
[F]amily [S]chool had made a determination after the second
referral that they did not believe [Mother] was appropriate for
[F]amily [S]chool. [Mother] did not complete anger management.
***
And that CUA indicated that even if [Mother] had completed the
anger management[,] she still had a short temper. She continued
to snap out. She’ll start cursing and screaming. That her
behaviors were directed at staff as well as the CUA worker. [Thus,
the trial court terminated Mother’s rights involuntarily pursuant to
Section 2511(a)(2)].
***
With respect to [Section] 2511(b), the testimony from CUA was
that [M.C.] and [S.D.] are doing well in their kinship home. That
the relationship they have with their [Mother] is not that of a
mother[-]child relationship. I did find CUA’s testimony around the
[C]hildren’s relationship [and bond] with [Mother] [] to be
credible.
CUA did not believe the [C]hildren would suffer any irreparable
harm if [Mother’s] rights were terminated because they were in
foster homes where their needs were being met and they were
doing very well in those homes[,] and the consistency that
remaining in those homes would provide[,] would help mitigate
any damage that could potentially be caused.
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***
With respect to [S.D.], CUA testified that there would be no
irreparable harm if [Mother’s] rights were terminated. [Mother]
did not have the ability to set appropriate boundaries. That [S.D.]
in fact was just looking for someone to be able to connect with[,]
and have some stability[,] and be able to call mom. And[,] so[,]
biological [Mother] was not the only person that she called mom.
That[,] in fact[,] she looked to her current caregiver to provide for
her daily needs. And that as long as she is receiving the care and
nurture she receives, she needs, in the home that she’s in[,] she
would be fine. CUA also testified that the bond between [S.D.]
and [Mother] was not that of a mother[-]child bond for both of
them.
Based on that testimony[,] I will find that it is in their best interest
to have the permanency that they deserve. And I will find that
there will not be any detrimental impact to terminating
involuntarily [Mother’s] rights to either child[.]
N.T. Hearing, 3/12/19, at 11-17.
We conclude that the trial court’s credibility and weight determinations,
and its decision to terminate the parental rights of Mother are supported by
competent, clear and convincing evidence in the record. In re Adoption of
S.P., 47 A.3d at 826-827. In In re T.S.M., supra, our Supreme Court stated:
As with dependency determinations, we emphasize that the law
regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests
and the needs and welfare of the particular children involved.
See, e.g., R.J.T., 9 A.3d at 1190 (holding that statutory criteria
of whether child has been in care for fifteen of the prior
twenty-two months should not be viewed as a “litmus test” but
rather as merely one of many factors in considering goal change).
Obviously, attention must be paid to the pain that inevitably
results from breaking a child’s bond to a biological parent, even if
that bond is unhealthy, and we must weigh that injury against the
damage that bond may cause if left intact. Similarly, while
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termination of parental rights generally should not be granted
unless adoptive parents are waiting to take a child into a safe and
loving home, termination may be necessary for the child’s needs
and welfare in cases where the child’s parental bond is impeding
the search and placement with a permanent adoptive home.
In re T.S.M., 71 A.3d at 268-269. Thus, the trial court did not commit an
abuse of discretion in terminating Mother’s parental rights to the Children
simply because there is no pending adoption for them. The trial court amply
supported its decision to terminate Mother’s parental rights to the Children
with the testimony and other evidence from the record. We, therefore, affirm
the termination decrees and goal change orders on the basis of the reasoning
provided by the trial court. See N.T., 3/12/19, at 11-19.
Decrees and orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/19
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