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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.E.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.Y.M., A/K/A J.Y.T., No. 1003 EDA 2015
MOTHER
Appeal from the Order entered March 4, 2015
in the Court of Common Pleas of Philadelphia County
Family Court, at No(s): CP-51-AP-000094-2015
CP-51-DP-0001048-2013
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 22, 2015
J.Y.M. a/k/a J.Y.T. (“Mother”) appeals from the Order entered March 4,
2015, in the Court of Common Pleas of Philadelphia County, which
involuntarily terminated her parental rights to her minor daughter, J.E.T.
(“Child”), born in December 2009, and changed Child’s permanency goal to
adoption. We affirm.
On May 16, 2012, Mother was involved in an incident of domestic
violence when she hit M.T., Child’s putative father, with a metal strip while
he was holding Child. See N.T., 3/4/2015, at 7-8, 49. Child was also hit
and received a cut on her forehead, which required medical attention at the
hospital. See id. at 7-8, 25-26, 49-50. Because of the incident involving
Child, Mother pled guilty to Endangering the Welfare of Children in violation
of 18 Pa.C.S.A. § 4304, and was indicated as a perpetrator of child abuse.
See id. at 7-8.
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In May 2013, Mother struck Child with a belt on her thighs, buttock,
back, and right side of her ribs causing severe injury requiring hospital
treatment. Child had red bruises on multiple parts of her body. Because of
Mother’s physical abuse of Child, Mother pled guilty to Aggravated Assault,
in violation of 18 Pa.C.S.A. § 2702, and, for the second time, to Endangering
the Welfare of Children, in violation of 18 Pa.C.S.A. § 4304. See id. at 10,
19. As a result, Mother was sentenced to 11½ to 23 months’ incarceration,
followed by eight years of probation. See id. at 9-10. Mother was once
again indicated as a perpetrator of child abuse. See id. at 26.
DHS obtained an Order of Protective Custody (“OPC”) for Child, and
Child was placed in the custody of the Philadelphia Department of Human
Services (“DHS”), where she has remained. See id. at 27. Child was placed
with Maternal Great-Uncle. See id. at 22.
DHS held an initial Family Service Plan (“FSP”) meeting shortly after
the case came to DHS’s attention. The FSP objectives established for Mother
at the time were attending anger management classes, receiving mental
health treatment, and attending parenting classes. See id. at 27. Mother
testified that her mental health diagnosis consisted of depression, bipolar
disorder and borderline schizophrenia. See id. at 13. Mother admitted that
she was aware that DHS established objectives for her to meet in order for
her to be reunified with Child. See id.
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Mother was incarcerated in prison for a total of fourteen months. See
id. at 11. Mother failed to provide DHS with any evidence that she received
mental health treatment while incarcerated. See id. at 14-15, 30-31.
Mother did not take medication for her mental health conditions for a period
of her time in prison because she was pregnant, but resumed the medication
after her son was born. See id. at 20-21 and 50-51.
While Mother was incarcerated, Child resided with Maternal Great-
Uncle. See id. at 11. At the hearing, Maternal Great-Uncle testified that he
did not receive any telephone calls from Mother requesting information
about how Child was doing, nor any letters, gifts or cards from Mother
addressed to Child. See id. 22-23. Mother did not attempt to reach Child or
DHS regarding Child’s progress during her incarceration. See id. at 33.
Mother was released from incarceration on September 11, 2014, after
spending fourteen months in prison. See id. at 11. In January 2015,
Mother first met Ishmael Jimenez, the DHS social worker assigned to the
case. Mother provided some documentation regarding having taken
parenting classes while in prison. However, Mother never provided DHS with
any documentation evidencing her compliance with the FSP goals concerning
anger management or mental health treatment. In addition, Mr. Jimenez
added an FSP objective concerning substance abuse in order to determine
whether or not drug and/or alcohol abuse had contributed to Mother’s
violent behavior.
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Mother testified that, during the fourteen months that she was
incarcerated for physically abusing Child, she sent Child six or seven letters.
See id. at 11. Mother also testified that she sent gifts to Child at Christmas.
See id. at 12-13. Mother further alleged that she made calls to her mother
and sister to check on Child, and that she called Child everyday but was not
allowed to speak to her. See id. at 56, 11-12.
The court also heard testimony from Maternal Great-Uncle, who was
the caregiver of Child for two years. Maternal Great-Uncle testified that,
during the two years in question, Mother never called Child, nor did she send
Child any letters or gifts. See id. at 22-23.
Mr. Jimenez also testified during the termination hearing that he had
no information or documentation that Mother had completed an anger
management course. See id. at 30. Mr. Jimenez met with Mother in
January 2015, at which time, she provided him with some documentation
relating to the parenting classes that she took while in prison. See id. at
30. At the time, Mother told Mr. Jimenez that she had been attending an
anger management session, and that she planned to get involved in mental
health treatment. Mother never provided Mr. Jimenez with any
documentation evidencing any anger management or mental health
treatments. See id. at 30-31. In addition, Mother never provided Mr.
Jimenez with any information, documentation, or proof that she participated
in any drug or alcohol treatment. See id. at 31. Mr. Jimenez did testify
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that, ten minutes before the termination hearing, Mother produced some
certificates that appeared to reflect that she had participated in some sort of
programs. See id. at 32. However, Mr. Jimenez stated that he could not
determine what the programs were, how extensive they were, and what
they taught Mother. Id. Mr. Jimenez added that, even if the certificates
indicated that Mother had completed parenting and anger management
programs, it would not have changed his mind regarding whether Child
should be reunified with Mother since Mother had not had any contact with
Child in nearly two years. See id. at 33. Mother had not reached out to
Child or DHS while in prison or after her release from prison in October of
2014. See id.
Child, who was five years old at the time of the hearing, had been
living in a pre-adoptive home with her Maternal Great-Uncle and Maternal
Great-Aunt. Mr. Jimenez observed Child with her current caregivers on five
or six occasions over the previous six or seven months. Mr. Jimenez
described Child as being joyous, bubbly, and a happy little girl. Child is very
affectionate. See id. at 34. Mr. Jimenez noted that Child’s Maternal Great-
Uncle and Maternal Great-Aunt have provided Child with a safe home and
are doing a great job of caring for her. See id. at 24. Mother testified that,
in her opinion, Child was in a good home with Maternal Great-Uncle who was
taking good care of her. See id. at 15.
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On February 10, 2015, DHS filed petitions to terminate Mother’s
parental rights and to change the goal to adoption. An evidentiary hearing
was held on March 4, 2015. At the conclusion of the hearing, the court
granted DHS’s petitions.
Mother filed a timely notice of appeal on April 1, 2015. She also filed a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b) on that date.1
We review this appeal 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
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).
1
The trial court’s docket does not reflect any appeal by Mother from the goal
change order. We find that Mother has waived any challenge to the
propriety of the change in permanency goal to adoption by her failure to
separately appeal that order, or to raise the issue of the goal change in her
concise statement of errors complained of on appeal and in her brief in the
appeal from the termination of her parental rights. See Krebs v. United
Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.
2006) (stating that any issue not set forth in or suggested by a concise
statement of errors complained of on appeal and the statement of questions
involved in the appellate brief is deemed waived).
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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 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) (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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
Instantly, the trial court terminated Mother’s parental rights pursuant
to Section 2511(a)(1), (2), (5), (8), and (b). 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. See In re B.L.W., 843
A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we conclude that the trial
court properly terminated Mother’s parental rights pursuant to Section
2511(a)(1) and (b). They provide as follows:
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(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:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
...
(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(a)(1) and (b).
With respect to Section 2511(a)(1), “the moving party must produce
clear and convincing evidence of conduct, sustained for at least the six
months prior to the filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or failure to perform
parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing
In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). Further,
[o]nce the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
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effect of termination of parental rights on the child pursuant to
Section 2511(b).
Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.
1998)).
In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme
Court discussed In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a
case wherein the Court considered the issue of the termination of parental
rights of incarcerated persons involving abandonment. The S.P. Court
stated:
Applying in McCray the provision for termination of
parental rights based upon abandonment, now codified as §
2511(a)(1), we noted that a parent “has an affirmative duty to
love, protect and support his child and to make an effort to
maintain communication and association with that child.” Id. at
655. We observed that the father’s incarceration made his
performance of this duty “more difficult.” Id.
47 A.3d at 828. The S.P. Court continued:
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of abandonment.
Nevertheless, we are not willing to completely toll a parent’s
responsibilities during his or her incarceration. Rather, we must
inquire whether the parent has utilized those resources at his or
her command while in prison in continuing a close relationship
with the child. Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, his other rights may
be forfeited.
[McCray] at 655 (footnotes and internal quotation marks
omitted). . . .
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Id. See also In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (stating
that a parent does not perform his or her parental duties by displaying a
“merely passive interest in the development of the child”).
On appeal, Mother argues that DHS failed to prove by clear and
convincing evidence that her parental rights should be terminated. Mother
emphasizes that she substantially met her FSP goals and tried to perform
her parental duties. Mother also claims that she was consistently denied
visitation with her daughter for the last 22 months.
In its opinion, the court found clear and convincing evidence that
Mother demonstrated a settled purpose of relinquishing her parental claim to
Child and failed to perform her parental duties. DHS placed Child in the care
of Maternal Great-Uncle and Maternal Great-Aunt after Mother, an indicated
perpetrator of child abuse, physically abused Child with a metal strip and
belt resulting in a criminal conviction for aggravated assault and two
convictions for endangering the welfare of Child. See Trial Court Opinion,
5/14/2015, at 8. The trial court noted that Mother was incarcerated for
fourteen months, during which time she failed to comply with her FSP
objectives. See id. Moreover, following Mother’s release from prison on
September 11, 2014, she failed to provide any documentation to DHS
indicating that she was in compliance with the FSP objectives established for
her by DHS in order to be reunited with Child. The trial found that, although
Mother did produce some certificates at the hearing that she had
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participated in some anger management and parenting programs, it could
discern no evidence of how long the programs were, how extensive the
programs were, and what Mother learned from the programs. See id. In
addition, the trial court also determined that Mother failed to maintain
contact with Child necessary to maintain a parental relationship. The trial
court also concluded that Mother demonstrated a settled purpose of
relinquishment of her parental claims to Child. Thus, the trial court ruled
that DHS met its burden under Section 2511(a)(1).
Having determined that the trial court properly terminated Mother’s
parental rights pursuant to Section 2511(a)(1), we now review the order
pursuant to Section 2511(b). 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 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
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Child currently is five years old and has been living in a pre-adoptive
foster home with Maternal Great-Uncle and Maternal Great-Aunt for nearly
two years. See N.T., 3/4/2015, at 34. Mr. Jimenez testified at trial that he
observed Child with her current caregivers on five or six occasions over six
or seven months. See id. Mr. Jimenez described Child as a very happy little
girl, who is very affectionate with everybody. See id. Mr. Jimenez opined
that the Child’s Maternal Great-Uncle and Maternal Great-Aunt were
providing Child with a safe home and were doing a good job of caring for
her. See id. at 34-35. Mr. Jimenez further testified that Child appeared to
be bonded with her caregivers. See id. at 35. Finally, Mr. Jimenez opined
that he did not believe that Child would be harmed in any way if Mother’s
rights were to be involuntarily terminated in light of the fact that Mother has
not be in contact with Child for almost two years after repeatedly physically
abusing Child. See id.
In addition, Maternal Great-Uncle testified that he was making sure
that all of Child’s needs were being met. See id. at 23. He stated that Child
feels safe and comfortable in his care. See id. at 24.
Mother also testified that, in her opinion, Child was in a good home
with Maternal Great-Uncle, who was taking care of Child. See id. at 15.
Based upon this evidence, we discern no abuse of discretion by the
trial court in terminating Mother’s parental rights to Child pursuant to
Section 2511(b). It was reasonable for the trial court to conclude that
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terminating Mother’s parental rights would not harm Child, given that there
is no evidence of any bond between Child and Mother. Moreover, Child is
bonded with her foster parents.
Accordingly, we affirm the order involuntarily terminating Mother’s
parental rights and changing Child’s permanency goal to adoption.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2015
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