In the Int. of: W.A.B., Appeal of: J.B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: W.A.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.B., MOTHER :
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:
: No. 464 EDA 2020
Appeal from the Decree Entered January 10, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000688-2018
IN THE INTEREST OF: W.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.B., MOTHER :
:
:
No. 466 EDA 2020
Appeal from the Order Entered January 10, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000068-2017
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED JULY 17, 2020
J.B. (“Mother”) appeals from one decree and one order that were
entered in the Juvenile Division of the Philadelphia County Court of Common
Pleas on January 10, 2020. The decree entered at trial court docket number
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* Former Justice specially assigned to the Superior Court.
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CP-51-AP-0000688-2018 granted the Philadelphia Department of Human
Services’ (“DHS”) petition to involuntarily terminate Mother’s parental rights
to her son, W.A.B., (“Child”),1 pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5),
(8), and (b).2 The order entered at trial court docket number CP-51-DP-
0000068-2017 changed Child’s permanency goal to adoption pursuant to 42
Pa.C.S. § 6351.3 After careful review, we affirm both the order changing the
permanency goal and the decree involuntarily terminating Mother’s parental
rights.
The trial court set forth the relevant facts and procedural history of this
matter as follows:
Child was removed from Mother’s care and placed into DHS
custody due to Child testing positive for marijuana at birth, and
for concerns regarding Mother’s mental health history with her
other child already in care. At the adjudicatory hearing held on
January 17, 2017, Child was adjudicated dependent based upon
42 Pa.C.S. § 6302(1). An initial permanency hearing was held on
March 6, 2017, at which time the permanency goal for Child was
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1 Child was born in December of 2016.
2The court entered a separate decree terminating the parental rights of Child’s
putative father. The putative father did not file an appeal.
3 On February 4, 2020, Mother properly filed an appeal from the decree
involuntarily terminating her parental rights and a separate appeal from the
order changing Child’s permanency goal to adoption. See Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018) (requiring the filing of separate notices
of appeal, where more than one order resolves the issue, arises on more than
one docket, or relates to more than one judgment) (citing Pa.R.A.P. 341). On
February 12, 2020, this Court consolidated the appeals sua sponte pursuant
to Pa.R.A.P. 513.
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reunification with Mother. Additional permanency hearings were
held between 2017 and 2019.[4]
On August 22, 2018, DHS filed petitions to involuntarily terminate
Mother’s parental rights to [Child] pursuant to 23 [Pa.C.S.] §§
2511(a)(1), (2), (5), (8) and (b) and to change [Child’s]
permanency goal to adoption.2 This [c]ourt conducted a combined
termination and goal change hearing (collectively the “TPR”)
hearing on January 10, 2020.[5] At the TPR hearing, the
Community Umbrella Agency (“CUA”) case manager, Jessica Law,
testified that [Child] was removed from Mother’s care
approximately three years ago. [Child] had been in his current
foster home for approximately three years, since his discharge
from the hospital. Ms. Law further testified that Mother’s single
case plan objectives throughout the life of the case were as
follows: (1) comply with CUA services, (2) continue mental health
treatment and medication management, (3) attend substance
abuse treatment, (4) obtain appropriate housing, and (5) comply
with supervised visitation. Regarding Mother’s compliance with
her objectives, Ms. Law testified that Mother was non-compliant.
Most notably, Ms. Law testified that Mother was non-compliant
with her drug and alcohol and mental health objectives. She
stated that Mother failed to verify that she successfully completed
a drug and alcohol program or consistently attended a program.
Additionally, Mother only attended one [c]ourt ordered drug
screen. Ms. Law also stated that Mother failed to verify her
engagement with mental health treatment. She testified that
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4 Permanency review hearings were held in March 2017, June 2017, August
2017, January 2018, March 2018, and August 2019. Where the court made
findings regarding Mother’s compliance, Mother’s compliance was either
minimal or moderate. See Permanency Review Orders, 3/6/17, 6/5/17,
8/8/17, 1/4/18, 3/8/18, 8/15/19.
5 At the hearing, Child was represented by Lawrence O’Connor, Esquire, as
“child advocate” or legal counsel, and Maureen Pié, Esquire, as guardian ad
litem. However, Attorney O’Connor testified at the hearing that he had met
with Child and that Child was too young to understand the adoption process
and express a preference. N.T., 1/10/20, at 26; see In re T.S., 192 A.3d
1080, 1092 (Pa. 2018) (noting that in contested termination proceedings,
there is no conflict between a child’s best and legal interests where a two-year
old and a three-year-old child were too young to express a preferred outcome
with respect to the proceedings).
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Mother has several mental health diagnoses, including paranoid
schizophrenia and bipolar disorder. Ms. Law further testified that
Mother’s Parenting Capacity Evaluation [(“PCE”)] recommended
that Mother comply with mental health and drug and alcohol
treatment. Due to Mother’s noncompliance with her mental health
and drug and alcohol objectives, Ms. Law stated that she believed
it would be unsafe for Child to have unsupervised contact with
Mother.
2 DHS filed additional petitions to involuntarily
terminate Mother’s parental rights on June 27, 2019.
With respect to Mother’s visitation with Child, Ms. Law testified
that Mother was to attend supervised visitation at the agency.
However, Mother attended only 11 of 156 offered visits over the
previous three years. Ms. Law also stated that Mother had only
seen Child twice during the seven months prior to the TPR hearing.
Additionally, Mother was referred to the Achieving Reunification
Center (“ARC”) to obtain housing but was unsuccessfully
discharged from ARC.
Ms. Law indicated that it would be in Child’s best interest to
terminate Mother’s parental rights and to change Child’s
permanency goal to adoption, as Mother was no closer to
achieving reunification than she was three years prior. Her
testimony demonstrated [Child] shares his primary parent-child
bond with his foster mother, with whom he has resided for three
years. [Ms. Law] stated that [Child] looks to his foster mother for
love, safety, stability and support, and she meets all his general
and medical needs. In contrast, Ms. Law stated that Mother had
not been involved in meeting any of Child’s needs throughout the
previous three years. Additionally, she indicated that Child did
not appear to be harmed by Mother’s failure to visit for substantial
periods of time. Ms. Law further testified that Child would not be
harmed if Mother’s parental rights were terminated.
At the TPR hearing, Mother disputed the number of attended visits
and claimed Child was not brought to several scheduled visits.
Mother also testified that she had housing that was appropriate
for Child to visit. Additionally, she testified that she completed a
program for mental health and substance abuse in 2019. She also
stated that she completed several parenting classes. Additionally,
Mother testified that the Clinical Evaluation Unit [(“CEU”)]
informed her that she did not need to complete an assessment or
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attend random screens. Mother acknowledged that she was told
to provide documentation for her programs and classes at a prior
termination hearing for another child; however, she failed to do
so at this TPR hearing.
At the conclusion of the hearing, this [c]ourt issued a decree
involuntarily terminating Mother’s parental rights under 23 [Pa
C.S.] §§ 2511(a)(1), (2), (5) and (8) and finding, in accordance
with 23 [Pa.C.S.] § 2511(b), that such termination best serve the
developmental, physical, and emotional needs and welfare of
[Child].
Trial Court Opinion, 2/28/20, at 1-4 (internal citations to the record omitted,
footnote in original).
On February 4, 2020, Mother timely filed separate notices of appeal and
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a) opinion on
February 28, 2020.
On appeal, Mother presents the following issues for our review:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
[Pa.C.S. §] 2511(a)(1) where Mother presented evidence that she
made efforts to perform her parental duties[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
[Pa.C.S. §] 2511(a)(2) where Mother presented evidence that she
made efforts to remedy any incapacity or neglect[?]
3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
[Pa.C.S. §] 2511(a)(5) and (a)(8) where the evidence showed
that [Child] was removed from [Mother], however, Mother
presented evidence that the conditions that existed at the time of
removal have been remedied[?]
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4. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
[Pa.C.S. §] 2511(b) where evidence was presented that Mother
has a positive parental bond with [Child] that would be
detrimental to sever[?]
Mother’s Brief at 8.
Although Mother filed separate appeals, she now challenges only the
involuntary termination of her parental rights. Mother’s statement of
questions involved lists issues solely related to termination; she has failed to
present any challenge relative to the order changing Child’s permanency goal
to adoption. Mother’s Brief at 8, 14-23. As a result, we conclude that Mother
has waived any challenge to the change of the permanency goal. See Krebs
v. United Refining Co., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a
failure to preserve issues by raising them both in the concise statement of
errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues); see also In re
W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (noting that where an appellate
brief does not provide discussion of a claim with citation to relevant authority
or fails to develop the issue in any other meaningful fashion capable of review,
the claim is waived). Accordingly, we affirm the order changing Child’s
permanency goal to adoption, and we address only the order terminating
Mother’s parental rights.
We review Mother’s issues according to the following standard.
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
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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. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
We must agree with the trial court as to only one subsection of 2511(a),
as well as Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380,
384 (Pa. Super. 2004) (en banc). In this case, we conclude that the certified
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record supports the decree pursuant to Section 2511(a)(2)6 and (b), which
provide as follows:
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(2) and (b).
This Court has explained that the moving party must produce clear and
convincing evidence with respect to the following elements to terminate
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6 In light of our disposition relative to Section 2511(a)(2), we need not
consider Mother’s arguments with respect to Sections 2511(a)(1), (5), and
(8). B.L.W., 843 A.2d at 384.
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parental rights pursuant to Section 2511(a)(2): (1) repeated and continued
incapacity, abuse, neglect, or refusal; (2) such incapacity, abuse, neglect, or
refusal caused the child to be without essential parental care, control, or
subsistence necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect, or refusal cannot or will not be
remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.
2003).
Pursuant to 23 Pa.C.S. § 2511(a)(2), parents are required to make
diligent efforts toward the reasonably prompt assumption of full parental
responsibilities. In re A.L.D., 797 A.2d 326, 340 (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. Further, the grounds for termination of parental rights
under Section 2511(a)(2) due to parental incapacity that cannot be remedied
are not limited to affirmative misconduct; to the contrary, those grounds may
include acts of refusal as well as incapacity to perform parental duties. Id. at
337.
With respect to 23 Pa.C.S. § 2511(b), this Court has stated that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted). Further, the trial court “must also
discern the nature and status of the parent-child bond, with utmost attention
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to the effect on the child of permanently severing that bond.” Id. (citation
omitted). However, “[i]n cases where there is no evidence of any bond
between the parent and child, it is reasonable to infer that no bond exists.
The extent of any bond analysis, therefore, necessarily depends on the
circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-763
(Pa. Super. 2008) (citation omitted).
In this appeal, Mother argues that there was no evidence of present
incapacity, as she was actively working toward reunification by complying with
all of her goals and objectives. Mother’s Brief at 18-19. Specifically, Mother
contends that she completed a PCE and that at the time of the hearing, she
had followed the recommendations therein, which included completing drug,
alcohol, and mental health treatment, as well as some parenting classes. Id.The record belies Mother’s claim.
As to this issue, the trial court observed as follows:
The evidence established that “incapacity” and “refusal” under
[Section] 2511(a)(2) existed given that Mother failed to
demonstrate a concrete desire or ability to care for [Child].
Mother failed to cooperate with CUA throughout the life of the
case, including participating in substance abuse and mental health
treatment. The testimony demonstrated that Mother had failed to
address her significant mental health issues throughout the three
years [Child] was in foster care, despite her documented mental
health diagnoses. Additionally, Mother has failed to address her
substance abuse issues, which is significant as Child tested
positive for marijuana at birth. Ms. Law testified that Mother’s
inability or unwillingness to address these issues has created
safety concerns regarding any supervised contact with Child.
Mother also failed to establish any stability in her life regarding
housing, as she was discharged from the [Achieving Reunification
Center] unsuccessfully. Moreover, the evidence established that
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“neglect” existed given that Mother had not visited [Child] more
than eleven times in three years. This [c]ourt found that Mother’s
failure to comply with CUA and consistently visit [Child] has left
[Child] without essential parental care, and the cause of such
neglect, refusal, and continuing incapacity will not be remedied by
Mother.
Trial Court Opinion, 2/28/20, at 7-8 (internal citations omitted).
Our review supports the trial court’s findings. Ms. Law testified that at
the time of the hearing, Child was three years old and had been in care his
entire life. N.T., 1/10/20, at 5-6. Child originally was adjudicated dependent
because he tested positive for marijuana at birth, lacked stable housing, and
Mother had significant mental health issues, which included diagnoses of
schizophrenia and bipolar disorder that led to her other children’s placement.
Id. Mother was informed that she needed to comply with her CUA objectives,
which included: continuing mental health treatment and medication
management; attending substance abuse treatment; obtaining appropriate
housing; and complying with supervised visits. Id. at 8. As of the date of the
hearing, Mother had provided verification of none of these objectives, despite
repeated referrals for services. Id. at 9-11.
Ms. Law testified that of 156 offered visits over three years, Mother
attended only eleven, and two of those visits occurred in the seven months
prior to the hearing on the petition to terminate her parental rights. N.T.,
1/10/20, at 11-12. Although Mother did sit for the PCE, she did not follow the
recommendations given in the evaluation. Id. at 12. Due to Mother’s mental
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health and housing instability, it remained unsafe for Child to reunify with
Mother. Id. at 10-12.
Mother disputed Ms. Law’s testimony, particularly with regard to
visitation, claiming that she had “a lot of successful visits.” N.T., 1/10/20, at
28. Mother claimed that she attended visits every week, but Child was never
brought to the visits. Id. at 27-28. Mother also averred that despite Ms.
Law’s testimony to the contrary, CEU had informed her she did not need to
take any assessment. Id. at 12-34. Mother also claimed that she always
provided documentation of her compliance with her objectives to her
caseworker, but that this caseworker did not have the paperwork in court. Id.
at 34. Mother asserted her housing was appropriate for Child to “visit” but
admitted it was not appropriate for Child to stay long term. Id. at 30.
However, Mother did not provide any additional documentation to the court at
the hearing regarding housing or completion of her CUA objectives. The trial
court did not find Mother’s testimony credible. Id. at 39; Trial Court Opinion,
2/28/20, at 8.
Accordingly, Ms. Law’s testimony demonstrated that Mother’s repeated
and continued incapacity continuing since 2017 has caused Child to be without
essential parental care, control, or subsistence necessary for his physical or
mental well-being. In addition, Ms. Law’s testimony supports the court’s
finding that the causes of Mother’s incapacity cannot or will not be remedied.
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Thus, we affirm the decree terminating Mother’s parental rights pursuant to
Section 2511(a)(2).
With respect to 23 Pa.C.S. § 2511(b), Mother argues that the
termination of her parental rights would have a detrimental effect on Child
and would not serve Child’s physical and emotional needs and welfare.
Mother’s Brief at 22. Specifically, she contends that no evidence was
presented regarding the visits and interactions Mother and Child had, so that
it was impossible to determine the quality of the bond. Id. Again, the record
belies Mother’s contentions.
The trial court observed:
In the instant matter, this [c]ourt determined that [Child] would
not suffer irreparable harm if Mother’s parental rights were
terminated. There was compelling testimony that [Child] would
not suffer harm if Mother’s parental rights were terminated;
however, [Child] would suffer significant harm if he was separated
from his foster mother. Mother failed to offer any evidence
establishing the existence of a parent-child bond. The testimony
demonstrated that [Child’s] primary bond is with his foster parent.
[Child] is also significantly bonded with his foster siblings and
foster mother’s partner. Additionally, the testimony
demonstrated [Child’s] foster mother meets all his general and
developmental needs. Moreover, [Child] seeks care, comfort, love
and stability from his foster mother, not Mother. In determining
that termination would best serve the needs and welfare of
[Child], this [c]ourt considered that Mother had not been able to
meet [Child’s] emotional, physical, and developmental needs, or
provide [Child] with a healthy, safe environment for almost three
years prior to the TPR hearing.
Trial Court Opinion, 2/28/20, at 11-12.
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We reiterate that “[i]n cases where there is no evidence of any bond
between the parent and child, it is reasonable to infer that no bond exists.”
In re K.Z.S., 946 A.2d at 762-763.
[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, this
Court stated that the trial court should consider the importance of
continuity of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)). In addition, our Supreme
Court has stated that “[c]ommon sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.” In re T.S.M.,
71 A.3d at 268. Moreover, this Court directed that in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. Court observed,
“Children are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail ... the result,
all too often, is catastrophically maladjusted children.” Id.
Ms. Law testified that Child has lived in a kinship foster home with his
maternal aunt and her partner since he was taken into care. Id. at 13. Child
calls maternal aunt “Mom” and shares a parent/child bond with her. Id. at
13-14. Child is also close to foster mother’s partner, whom he calls “Dad,”
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and their two biological children. Id. at 13-14. Foster mother provides Child
with all of the love, safety, stability, and support that he needs, and she has
been meeting all of his needs for the last three years. Id. at 15. Ms. Law
testified that Child has been in care for three years and requires permanency,
and Mother is no closer to achieving reunification than she was at the inception
of the case. Id. at 17. It is in Child’s best interest for Mother’s rights to be
terminated. Id.
Mother attended eleven of 156 offered visits with Child. N.T., 1/10/20,
at 11-12. Child does not appear adversely affected when Mother does not
visit him for long periods of time. Id. Mother has not been meeting any of
Child’s needs. Id. Although Mother argues that no testimony was presented
regarding the quality of her visits and whether there was a parent/child bond,
her argument is unavailing. As this Court has observed, it is reasonable to
assume there is no bond where there is no evidence of a bond. In re K.Z.S.,
946 A.2d at 762-763. It is notable, even in Mother’s own testimony, she does
not mention any bond or feelings of love and affection that Child may have for
her. N.T., 1/10/20, at 27-35. Based upon the evidence presented, including
Mother’s own testimony, it is reasonable to conclude that a parent/child bond
does not exist between Mother and Child; accordingly, the termination of
Mother’s parental rights would not result in any harm to Child. In re K.Z.S.,
946 A.2d at 762-763.
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After review, we conclude that the record supports the termination of
Mother’s parental rights pursuant to Section 2511(b). The evidence clearly
and convincingly confirmed that termination will best serve Child’s
developmental, physical, and emotional needs and welfare. Therefore, we
affirm the order terminating Mother’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(2) and (b).
For the reasons set forth above, Mother waived any challenge to the
order changing Child’s permanency goal to adoption; therefore, we affirm that
order. Moreover, we conclude that Mother is entitled to no relief with respect
to the decree terminating her parental rights, and we affirm the decree as
well.
Order changing permanency goal affirmed. Decree terminating parental
rights affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/20
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