J-A30021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.T., BIOLOGICAL MOTHER
No. 1484 EDA 2014
Appeal from the Order and Decree April 15, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000653-2013
CP-51-DP-0065485-2009
FID: 51-FN-339253-2009
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JANUARY 30, 2015
Appellant, R.T. (Mother), appeals from the April 15, 2014 decree
involuntarily terminating her parental rights to her son, M.T., and the April
15, 2014 order changing the permanency goal to adoption. 1 After careful
review, we affirm.
The relevant factual and procedural history, as gleaned from the
certified record, follows. M.T. was born in March 2009, at which time he and
Mother tested positive for cocaine. N.T., 4/15/14, at 3. In July 2009 when
M.T. was four months old, he was placed in the custody of the Philadelphia
*
Retired Senior Judge assigned to the Superior Court.
1
The trial court entered a separate decree on April 15, 2014, involuntarily
terminating the parental rights of M.T.’s unknown father.
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Department of Human Services, Children and Youth Division (DHS). Id. at
4. On November 15, 2013, DHS filed a petition for a goal change to
adoption. On November 20, 2013, DHS filed a petition for the involuntary
termination of Mother’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), (8), and (b). A hearing was held on the petitions on
April 15, 2014, during which DHS presented the testimony of its caseworker,
Ebony Boyd; William Russell, Ph.D., who performed a parenting capacity
evaluation; and Rachel Spalding, a social worker at Bethanna foster care
agency. In addition, Mother testified on her own behalf.
On April 15, 2014, the trial court entered a decree involuntarily
terminating Mother’s parental rights. By separate order also dated April 15,
2014, the court changed M.T.’s permanency goal to adoption. On May 14,
2014, Mother timely filed a notice of appeal from the April 15, 2014 decree
and order, as well as a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). On
June 16, 2014, the trial court filed its Rule 1925(a) opinion.
On appeal, Mother presents the following issue for our review.
Whether the [trial] court erred in terminating
Mother’s parental rights and in changing the FSP
goal to adoption where Mother completed her FSP
objectives and the evidence was not clear and
convincing in support of terminating Mother’s
parental rights?
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Mother’s Brief at 4.2
We review the decree involuntarily terminating Mother’s parental
rights to M.T. according to the following standard of review.
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s
determination of a petition for termination of
parental rights. As in dependency cases, our
standard of review requires an appellate court to
accept the findings of fact and credibility
determinations of the trial court if they are supported
by the record. In re R.J.T., 9 A.3d 1179, 1190 (Pa.
2010). If the factual findings are supported,
appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.;
R.I.S., 36 A.3d [567,] 572 [(Pa. 2011) (plurality)].
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
2
Mother’s argument on appeal is confined to the April 15, 2014 decree
involuntarily terminating her rights to M.T. In her brief, Mother fails to
develop any argument concerning the goal change with discussion and
citation to the statute and case law. Thus, to the extent Mother attempts to
advance a challenge to the order changing the goal to adoption, we find said
issue waived. We have stated, “Appellate arguments which fail to adhere to
these rules may be considered waived, and arguments which are not
appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (citations omitted). See also In re W.H., 25 A.3d 330, 339
n.3 (Pa. Super. 2011) (holding that “where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that
claim is waived[]”), appeal denied, W.H. v. L.B., 24 A.3d 364 (Pa. 2011).
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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., [supra]. 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).
In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012) (parallel citations
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section
2511, the court must engage in a bifurcated process
prior to terminating parental rights. Initially, the
focus is on the conduct of the parent. The party
seeking termination must prove by clear and
convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
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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), citing
23 Pa.C.S.A. § 2511. The burden is on the petitioner to prove by clear and
convincing evidence that the asserted statutory grounds for seeking the
termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009).
Instantly, we conclude the trial court properly terminated Mother’s
parental rights pursuant to Section 2511(a)(2) and (b), which provide 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.
…
(b) Other considerations.--The court in
terminating the rights of a parent shall give primary
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consideration to the developmental, physical and
emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the
basis of environmental factors such as inadequate
housing, furnishings, income, clothing and medical
care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to
subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the
conditions described therein which are first initiated
subsequent to the giving of notice of the filing of the
petition.
23 Pa.C.S.A. § 2511(a)(2), (b); see also In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc) (stating that this Court need only agree with
any one subsection of Section 2511(a), in addition to Section 2511(b), in
order to affirm the termination of parental rights), appeal denied, 863 A.2d
1141 (Pa. 2004).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements.
(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) (citation
omitted). “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
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include acts of refusal as well as incapacity to perform parental duties.” In
re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002) (citations omitted).
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows.
Subsection 2511(b) focuses on whether termination
of parental rights would best serve the
developmental, physical, and emotional needs and
welfare of the child. In In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs
and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and
status of the parent-child bond, with utmost
attention to the effect on the child of permanently
severing that bond. Id. However, in cases where
there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists.
In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
On appeal, Mother argues the trial court abused its discretion in
terminating her parental rights because she completed her Family Service
Plan (FSP) objectives. Mother’s Brief at 11. Further, Mother asserts the trial
court erred by relying on evidence not of record. Id. Specifically, Mother
argues the trial court set forth factual findings in its Rule 1925(a) opinion
that were alleged by DHS in its petition for the involuntary termination of
Mother’s parental rights, but not made a part of the record. Id. at 13. Upon
careful review, we reject Mother’s claims.
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Ebony Boyd, the DHS caseworker, testified that DHS established the
following initial FSP goals for Mother: to participate in a drug and alcohol
evaluation, a mental health evaluation, parenting education, visitation with
M.T., and any recommended drug and alcohol and mental health treatment.
N.T. 4/15/14, at 4. DHS subsequently added FSP goals for Mother to
participate in M.T.’s mental health treatment and in M.T.’s Individual Service
Plan (ISP) goals.3 Id. at 5.
It is undisputed that Mother complied with her FSP goals to participate
in parenting education, drug and alcohol treatment, and supervised
visitation.4 Id. at 5-7. Indeed, the testimony reveals that Mother has been
clean and sober for approximately three or four years. Id. at 28.
Nevertheless, Boyd testified that, although she requested Mother’s
participation in M.T.’s mental health therapy and treatment, Mother has
failed to participate. Id. at 7-9. Further, Boyd testified that, to her
knowledge, Mother has not participated in M.T.’s ISP goals. Id. at 9-10.
3
The record reveals that M.T. was diagnosed with Attention Deficit
Hyperactive Disorder in late 2012. N.T., 4/15/14, at 7. M.T. also suffers
from anxiety. Id. at 20. Boyd testified that, when M.T. becomes anxious,
he “starts to bite the skin off his fingers[,] and he bites his nails down until
they bleed.” Id. at 20. M.T. receives weekly individual therapy. Id. at 19.
Further, he takes prescribed medication for his mental health problems. Id.
4
Notably, with respect to Mother’s visits with M.T., Boyd testified that, in
March 2011, they progressed from supervised to unsupervised visits in the
community. N.T., 4/15/14, at 12. However, in May 2013, the visits became
supervised based on an allegation by M.T. that Mother had punched him in
the stomach, in the arm, and in the leg. Id. at 12, 14. DHS substantiated
M.T.’s allegation based only on his report. Id. at 22-23. The visits have
remained supervised ever since.
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Boyd testified with respect to whether Mother understands M.T.’s mental
health issues as follows.
Q. Do you think that [Mother] has an understanding
about [M.T.’s] issues currently if reunification or
even unsupervised visits were to occur?
A. No … Because even if you try to talk to her about
past issues with [M.T.] acting out which led to him
being tested, being evaluated, and going into
treatment, she still really doesn’t want to address it.
She just wants to say those are issues that
happened in the past and she’s just moving forward.
…
Q. And does this concern you, as the DHS social
worker, when we’re talking about reunification or
even unsupervised visits?
A. Yes.
Q. Why is it?
…
A. Because in order for [M.T.] to return to [Mother’s]
care she’s go[ing to] have to understand that [M.T.
is] go[ing to] continue to have issues even if he’s
reunified because he’s been in placement so long,
and he’s going to continue to have behavioral
concerns that are go[ing to] need to be addressed,
and she has to understand how to address it, how to
help him address the issues, and how to address the
issues herself.
Id. at 8-9. Finally, Boyd testified that Mother has not complied with the FSP
goal regarding her own mental health treatment in that she was most
recently attending therapy on a monthly basis only, rather than on a weekly
basis, as her goal required. Id. at 10-11.
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William Russell, Ph.D., the director of the psychiatric outpatient clinic,
Assessment and Treatment Alternatives (ATA), testified that he performed a
parenting capacity evaluation on Mother in January 2014 and concluded that
Mother is not “up to the challenge of providing for [the] safety or
permanency of [M.T.].” Id. at 39. Dr. Russell testified that Mother had
mental health issues including, but not limited to, “long-standing substance
abuse history which is in remission. … Her ongoing self-reported problems
with sleep and feeling depressed.” Id. at 35. Dr. Russell testified that
Mother “reported receiving medication for attention deficit disorder,” and
that she reported receiving medication for her sleep problem. Id. However,
he testified that Mother reported “a significant problem remembering to take
her medication.” Id. at 36.
Moreover, Dr. Russell testified that the medications Mother reported
taking, Adderall and Alprazolam, an amphetamine and benzodiazepine, are
highly addictive and “extremely concerning for anyone with substance
history….” Id. at 41-42. He also testified that Mother reported the
prescriptions direct her to take the medications as needed, and he testified
“[t]here are a whole host of issues that could crop up from the intermingling
of those two medications on an as-needed basis.” Id. at 42. For instance,
Dr. Russell described potential problems including “you could go into a
period of stupor, [ ] you could go into a blackout, [ ] you could hit a period
of sort of psycho motor retardation and fall asleep[.]” Id. at 42. Dr. Russell
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testified that Mother’s self-reported sleep problems are a “very common side
effect of flipping amphetamines and benzodiazepine[]s[.]” Id. at 43.
Based on the foregoing testimonial evidence, we conclude that DHS
produced clear and convincing evidence that Mother’s repeated and
continued incapacity has caused M.T. to be without essential parental care,
control or subsistence necessary for his physical or mental well-being for the
entire five years of his life. Further, the causes of Mother’s incapacity
cannot or will not be remedied. Therefore, Mother’s issue on appeal fails.
In light of the requisite bifurcated analysis regarding the involuntary
termination of parental rights, we next review the decree pursuant to
Section 2511(b). With respect to the relevant bond analysis, our Supreme
Court confirmed that, “the mere existence of a bond or attachment of a child
to a parent will not necessarily result in the denial of a termination petition.”
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). The Court further 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.” Id. at 268 (citation omitted).
Moreover, the 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 Court observed that, “[c]hildren
are young for a scant number of years, and we have an obligation to see to
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their healthy development quickly. When courts fail … the result, all too
often, is catastrophically maladjusted children.” Id.
Instantly, Boyd testified as follows, regarding the fact that M.T. has
lived with the same foster parents since placement, and that they are a pre-
adoptive resource. Id. at 17.
Q. [ ] [D]o you believe [M.T.] would suffer any
irreparable harm if mother’s parental rights are
involuntarily terminated?
A. No, I don’t, because I believe he’s getting what he
needs with his foster parents. He’s very, very
bonded to them. They’re making sure that his needs
are met. They make sure that he’s attending his
therapy, he’s receiving his medications like he’s
supposed to. So, I don’t think that there would be
any irreparable damage if he remains with his foster
parents, I don’t.
Id. at 17-18. In addition, Boyd, who visits M.T. monthly, at minimum,
testified he becomes anxious and upset upon the mere mention of Mother.
Id. at 14. Specifically, she noted that “just the mention of his mother [M.T.]
starts to bite the skin off his fingers, he starts to bite his nails and he gets
this anxiety and he gets so upset just in mentioning her.” Id.
Likewise, Rachel Spalding, a social worker at Bethanna foster care
agency who supervises Mother’s visits with M.T., testified as follows.
Q. Do you believe [M.T.] would be harmed,
irreparably harmed, if mother’s rights were
terminated today?
A. No.
Q. Why is that?
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A. I do not see that [M.T.] has a bond with his
mother. He’s never, as I stated, had any problems
separating from her, but does show a great amount
of distress when being separated from the foster
parents.
Id. at 70. Further, Spalding testified she believes that M.T. would be
harmed if he was separated from his foster parents. Id. In light of the
testimony of Boyd and Spalding, we conclude that terminating Mother’s
parental rights would best serve the developmental, physical, and emotional
needs and welfare of M.T. pursuant to Section 2511(b).
Based on the foregoing, we conclude the trial court did not abuse its
discretion when it involuntarily terminated Mother’s parental rights pursuant
to Section 2511(a)(2) and (b). See S.P., supra. Accordingly, we affirm the
trial court’s April 15, 2014 order and decree.
Order affirmed. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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In the Interest of: M.T. Appeal of: R.T.
Combined Opinion