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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.J.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.W., MOTHER No. 1820 EDA 2015
Appeal from the Decree entered May 20, 2015
In the Court of Common Pleas of Philadelphia County, Family Court
at No(s): CP-51-AP-0000181-2015
CP-51-DP-0062670-2009
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 02, 2016
L.W. (“Mother”) appeals from the decree entered on May 20, 2015,
granting the petition filed by the Philadelphia County Department of Human
Services (“DHS”) to involuntarily terminate her parental rights to her son,
L.J.W., born in July of 2006 (“Child”), pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and the order entered on May
20, 2015, that granted DHS’ petition to change Child’s permanency goal to
adoption under section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351. 1 We
affirm.
The trial court accurately summarized the factual background and
procedural history of this case as follows:
Mother and Child have a history of involvement with [DHS] that
goes back to June 14, 2009. Mother suffers from several mental
1
On May 20, 2015, the trial court involuntarily terminated the parental
rights of P.R., the natural father of Child. The termination of P.R.’s parental
rights is not at issue in this appeal.
* Retired Senior Judge assigned to the Superior Court
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health issues and [] Child, born [in July of] 200[6], is autistic.
On June 14, 2009, DHS received a [g]eneral [p]rotective
[s]ervices [report] (“GPS”) alleging that Mother went to the
emergency room of [] Presbyterian Hospital and requested
mental health treatment. Mother stated that she suffered from
schizophrenia and was unable to care for [] Child. On June 16,
2009, at a [s]helter [c]are hearing, [] Child was placed in foster
care. On June 25, 2009, [] Child was adjudicated dependent.
On December 13, 2010, Mother was fully compliant with her
[family service plan (“FSP”)] and[,] on May 5, 2011, the trial
court ordered termination of court supervision.
Two years later, on July 29, 2013, DHS received a new GPS
report alleging that [] Child and Mother walked completely naked
around the corner from their home. It was also alleged that
Mother thought walking naked in the street was fine, that she
stop[ped] taking her medication[,] and refused to provide DHS
the name of the medication. Mother had no relatives that could
care for [] Child and her family did not speak to her because of
her mental problems. On the same day, Mother admitted the
GPS report allegations and stated that she had not slept for
several days. An [o]rder of [p]rotective custody (“OPC”) was
obtained and Child was placed in a treatment foster care through
Bethanna. Mother was hospitalized from July 29 to August 19,
2013. On July 31, 2013, at a [s]helter [c]are hearing, the trial
court lifted the OPC and ordered the temporary commitment to
stand. On August 9, 2013, the Child was adjudicated dependent
and fully committed to DHS. Mother was referred to Behavioral
Health Services (“BHS”) for monitoring and for a parenting
capacity evaluation once discharged from the hospital. Mother
was granted weekly supervised visitation.
On August 28, 2013, an initial [FSP] was developed for Mother.
Mother’s FSP main goal was reunification. Mother’s FSP
objectives were: to provide adequate and continuous supervision
to [] Child, to provide for [] Child’s basic needs, to provide
adequate safe living conditions, to stabilize her mental health by
attendance at a treatment program, to take medication, to
attend Child[’s] medical appointments and to get a better
understanding of his medical diagnosis. On October 30, 2013, at
a [p]ermanency [r]eview hearing, Mother was found in moderate
compliance with her FSP. Mother was referred to [BHS] for
treatment regarding her mental health and ordered to attend a
parenting capacity evaluation. Parenting capacity evaluation
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recommendation[s] were implemented in [M]other’s FSP
objectives. On January 29, 2014, at a [p]ermanency [r]eview
hearing, Mother was found in moderate compliance with her FSP.
The trial court also found that Mother missed three appointments
with Warren E. Smith and was re-referred to [the Achieving
Reunification Center]. On April 30, 2014 and August 21, 2014,
at two different [p]ermanency [r]eview hearings, Mother was
found in moderate compliance, respectively. Mother was
ordered to provide DHS with a copy of her lease and sign
releases. Mother [was] referred for mental health services at
three different agencies over the life of this case, but [] never
successfully completed any program. As recently as December
of 2014, Mother was again hospitalized for jumping into the
Delaware [R]iver. . . . On May 20, 2015, the trial court
terminated Mother’s parental rights. Mother[ ] filed a timely
notice of appeal[.2]
Trial Court Opinion, 9/22/15, at 1-2 (internal citations omitted; first
paragraph break added).
Mother raises three issues for our review:
1. Did the [t]rial [c]ourt err in terminating [Mother’s] parental
rights under [ s]ection 2511[a]?
2. Did the [t]rial [c]ourt err in finding that termination of
parental rights best served [Child’s] developmental, physical and
emotional needs under []section 2511(b)?
3. Did the [t]rial [c]ourt err in changing [Child’s] goal to
adoption?
Mother’s Brief at vi.
As this Court has stated:
2
Mother filed a concise statement of errors complained of on appeal
(“concise statement”) contemporaneously with her notice of appeal. See
Pa.R.A.P. 1925(a)(2)(i). On September 22, 2015, the trial court issued its
Rule 1925(a) opinion. All issues raised on appeal were included in Mother’s
concise statement.
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In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. The 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. It is well established that a court must examine the
individual circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence
in light of the totality of the circumstances clearly warrants
termination.
We review a trial court’s decision to involuntarily terminate
parental rights for an abuse of discretion or error of law. Our
scope of review is limited to determining whether the trial court’s
order is supported by competent evidence.
In re Adoption of G.L.L., 124 A.3d 344, 346 (Pa. Super. 2015) (internal
quotation marks and citations omitted).
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). In re Adoption of C.J.P., 114 A.3d 1046, 1050 (Pa. Super. 2015)
(citation omitted). The trial court terminated Mother’s parental rights under
section 2511(a)(1), (2), (5), (8), and (b). See Trial Court Opinion, 9/22/15,
at 1. We will focus on subsection 2511(a)(8). Sections 2511(a)(8), and (b)
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:
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(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led to
the removal or placement of the child continue to exist
and termination of parental rights would best serve the
needs and welfare of the child.
***
(b) Other considerations.--The court in terminating the rights of
a parent shall give primary consideration to the developmental,
physical[,] and emotional needs and welfare of the child. The
rights of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing[,] and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
This Court has explained that the focus in terminating parental rights
under section 2511(a) is on the parent, but, under section 2511(b), the
focus is on the child. In re M.M., 106 A.3d 114, 117 (Pa. Super. 2014)
(citation omitted). This Court has set forth our inquiry under section
2511(a)(8) as follows:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(8), the following factors must be demonstrated: (1)
[t]he child has been removed from parental care for 12 months
or more from the date of removal; (2) the conditions which led
to the removal or placement of the child continue to exist; and
(3) termination of parental rights would best serve the needs
and welfare of the child.
In re P.Z., 113 A.3d 840, 851 (Pa. Super. 2015).
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In this case, Child was removed from Mother’s care on July 29, 2013,
22 months prior to the termination of Mother’s parental rights. Thus, the
first requirement of section 2511(a)(8) was satisfied. Furthermore, the
conditions which led to the removal of Child from Mother’s custody continue
to exist. Specifically, Child was removed from Mother’s custody because of
her mental illness and instability. As the trial court noted, Mother was
referred to three separate mental health treatment providers during the
pendency of this case. Mother failed to complete any of the treatment
programs. Mother’s continued mental illness and instability was evidenced
by her jumping into the Delaware River in December 2014. Thus, the
second requirement of section 2511(a)(8) was satisfied.
Finally, terminating Mother’s parental rights would best serve Child’s
needs and welfare. Child has been in his pre-adoptive home for an extended
period of time. This pre-adoptive home provides a safe and stable
environment with guardians providing for all of Child’s needs. Contrast that
with the situation Child would face with Mother. Mother is mentally unstable
and Child would have neither a safe nor stable environment with Mother.
Furthermore, Mother would not be able to meet all of the needs associated
with Child’s autistic condition. Accordingly, we conclude that DHS proved by
clear and convincing evidence that termination would best serve Child’s
needs and welfare. Accordingly, the third requirement of section 2511(a)(8)
was satisfied.
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Having determined that the requirements of section 2511(a)(8) were
satisfied, we proceed to review whether the requirements of section 2511(b)
were satisfied. Our Supreme Court has “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: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal quotation
marks, alterations, and citations omitted).
Mother asserts that the caseworker testified that Child “does have a
bond with his mother for the two hours of the visit, and knows who his
mother is.” Mother’s Brief at 6 (citation omitted). Mother states that the
caseworker testified that Child enjoyed seeing Mother and regressed during
a time he did not see Mother. Id. (citation omitted). Thus, Mother argues
that the trial court failed to properly conduct its bond analysis under section
2511(b).
This Court has observed that no bond worth preserving is formed
between a child and a natural parent where the child has been in foster care
for most of the child’s life, and the resulting bond with the natural parent is
attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). It is also
appropriate to consider a child’s bond with his or her foster parent. See
T.S.M., 71 A.3d at 268.
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The trial court found that, although there was a bond between Mother
and Child, it was not a parent/child bond. Rather, the trial court found it
was a visitation bond. This finding is consistent with K.Z.S. because Child
has been in foster care for a significant portion of his life and, therefore, the
bond between Child and Mother is attenuated. See also In re J.L.C., 837
A.2d 1247, 1249 (Pa. Super. 2003) (a parent who does not put herself in a
position to assume daily parenting responsibilities cannot develop a real
bond with her child). Furthermore, the trial court properly considered the
bond between Child and his pre-adoptive parents. The trial court found that
there was a true parental bond between Child and his pre-adoptive mother.
Thus, the trial court found that Child’s emotional needs and welfare were
best served by terminating Mother’s parental rights. For the reasons stated
above, we ascertain no abuse of discretion in the trial court’s determination.
Accordingly, section 2511(b) was also satisfied and the trial court properly
terminated Mother’s parental rights.
Finally, Mother argues that the trial court erred in changing the
permanency goal for Child to adoption. Mother asserts that, from the time
that Child came into care, she obtained housing, visited consistently with
Child, and was in mental health treatment. Mother, therefore, contends that
it is in Child’s best interest to be reunified with her.
Our Supreme Court set forth our standard of review for dependency
cases as follows.
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[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
In a change of goal proceeding, the best interests of the child, and not
the interests of the parent, must guide the trial court, and the parent’s rights
are secondary. In re A.K., 936 A.2d 528, 532-533 (Pa. Super. 2007). The
burden is on DHS to prove the change in goal would be in the child’s best
interests. In the Interest of M.B., 674 A.2d 702, 704 (Pa. Super.
1996). Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provide the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection, and physical, mental, and moral welfare of
the child. A.K., 936 A.2d at 534.
We find instructive In re N.C., 909 A.2d 818 (Pa. Super. 2006). In
that case, the trial court granted a goal change to adoption despite the fact
that the mother had made substantial progress toward completing her
permanency plan. This Court held that the mother’s parenting skills and
judgment regarding her children’s emotional well-being remained
problematic. Id. at 823.
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The same situation is present in the case at bar. Although Mother
made progress towards completing the permanency plan, the trial court
found that, on at least six occasions spanning a 15-month time period, DHS
attempted to provide Mother with services to promote reunification. As
noted above, among these efforts was referring Mother to the Achieving
Reunification Center on multiple occasions. Despite DHS’ best efforts at
promoting reunification of Mother and Child, it became evident that
reunification was not in Child’s best interest. Instead, for the reasons set
forth above, the trial court determined that adoption was in Child’s best
interest. Adoption was the only way for Child to receive the specialized care
he requires for his autism and to have a secure, stable, and safe home
environment in which all of his needs are met. Thus, we conclude that the
trial court did not abuse its discretion by changing Child’s permanency goal
from reunification to adoption. Accordingly, we affirm the trial court’s
decree terminating Mother’s parental rights to Child pursuant to section
2511(a)(8) and (b) of the Adoption Act, and changing Child’s permanency
goal to adoption.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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In the Interest of: L.J.W., a Minor
Combined Opinion