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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: E.D.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.W., MOTHER
No. 3380 EDA 2015
Appeal from the Decree October 5, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): 51-FN-000341-2014
CP-51-AP-0000718-2014
CP-51-DP-0000367-2014
IN THE MATTER OF: J.C.G.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.W., MOTHER
No. 3382 EDA 2015
Appeal from the Decree October 5, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): 51-FN-000341-2014
CP-51-AP-0000717-2014
CP-51-DP-0000366-2014
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 09, 2016
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Appellant, T.W. (Mother), appeals from the October 5, 2015 decrees
involuntarily terminating her parental rights to her daughter, E.D.W., born in
December 2012, and her son, J.C.G.W., born in November 2011
(collectively, the Children).1 Upon careful review, we affirm.2
We summarize the factual and procedural history as follows. The
Philadelphia Department of Human Services, Children and Youth Division
(DHS), received reports in September 2013 and February 2014, alleging
that, on August 25, 2013, Mother traveled with the Children from
Philadelphia to Maricopa County, Arizona, for the purpose of placing the
Children with a private agency for adoption. Trial Court Opinion, 12/17/15,
at 1-2. The reports alleged that Mother was hospitalized for two days in
Arizona, during which time the Children were placed in the custody of a child
welfare agency in Arizona. Id. at 2. Thereafter, Mother returned to
Pennsylvania. Id.
On February 10, 2014, pursuant to an order for protective custody,
DHS retrieved the Children from the State of Arizona, and placed them in
foster care through the Community Umbrella Agency (CUA). Id. at 2.
Mother testified during the shelter care hearing on February 12, 2014, that
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1
By separate decrees entered on October 5, 2015, the parental rights of
J.C.G., the putative father of the Children, were voluntarily relinquished.
J.C.G. did not file notices of appeal, and he is not a party to Mother's appeal.
2
We observe that the Child Advocate joined in the brief by DHS in support
of the decrees involuntarily terminating Mother’s parental rights.
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she took the Children to Arizona “after Mother Goose Adoption Agency
informed her that she would receive three thousand dollars for each child
placed for adoption.” Id. (citation to record omitted). In addition, Mother
acknowledged having suicidal thoughts. Id. The trial court determined that
Mother’s mental health posed “a grave threat of harm” to the Children. Id.
As such, it suspended Mother’s visits with the Children. Id.
On February 27, 2014, the CUA held the initial Single Case Plan (SCP)
meeting and assigned Mother objectives to (1) address and stabilize her
mental health and (2) establish and improve her relationship with the
Children. Id. In March 2014, Mother participated in a forensic/parenting
capacity evaluation, which revealed that she “struggles in areas of verbal
concept formation, reasoning abilities, general information and problem
solving.” Id. at 3. On May 20, 2014, the trial court adjudicated the
Children dependent.
The trial court subsequently ordered Mother to receive an updated
psychiatric evaluation at Assessments & Treatment Alternatives (ATA) and to
comply with medication management. Id. at 3. Following completion of
the psychiatric evaluation in July 2014, Mother was diagnosed with mood
disorder psychotic features, major depressive disorder, and bipolar disorder.
Id. On August 7, 2014, Mother’s SCP objectives were expanded to include
addressing anger management issues, obtaining appropriate housing, and
verifying employment. Id.
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On December 31, 2014, DHS filed petitions for the involuntary
termination of Mother’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), (8), and (b). In addition, on December 31, 2014,
DHS filed petitions for a change of goal to adoption. A hearing was held on
October 5, 2015, during which DHS presented the testimony of William
Russell, Ph.D., who is employed by the ATA, and who conducted Mother’s
parenting capacity evaluation. In addition, DHS presented the testimony of
CUA caseworkers, Walter Burwell and Leonella DeJesus. Mother testified on
her own behalf.
On October 5, 2015, the trial court involuntarily terminated Mother’s
parental rights. On that same date, the trial court entered orders changing
the Children’s placement goal to adoption. On November 3, 2015, Mother
filed timely notices of appeal and concise statements of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(a)(2)(i), which this Court consolidated sua sponte.3 See generally
Pa.R.A.P. 513. On December 17, 2015, the trial court filed a Rule 1925(a)
opinion.
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3
We note that Mother filed a single notice of appeal from the termination
decrees and the orders changing the placement goal, which was improper.
See Pa.R.A.P. 341, Note (“Where, however, one or more orders resolves
issues arising on more than one docket or relating to more than one
judgment, separate notices of appeal must be filed[]”). Moreover, in her
concise statement, Mother did not assert any error with respect to the goal
change orders.
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On appeal, Mother presents the following issues for our review.
1. Whether the [t]rial [c]ourt erred by terminating
the parental rights of [Mother], under 23 Pa.C.S.A.
§ 2511 subsections (a)(1), (a)(2), (a)(5), and [ ]
(a)(8)?
2. Whether the [t]rial [c]ourt erred by finding, under
23 Pa.C.S.A. § 2511(b), that termination of
[Mother’s] parental rights best serves the Children’s
developmental, physical and emotional needs and
welfare?
Mother’s Brief at 5.
We consider Mother’s issues mindful of our well-settled standard of
review.
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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
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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). The
burden is upon 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).
This Court need only agree with any one subsection of Section
2511(a), along with Section 2511(b), in order to affirm the termination of
parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). We conclude that the trial court in this case 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:
…
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(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.A. § 2511(a)(2), (b). “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 … [t]o the contrary,
those grounds may 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).
Further, this Court has stated that a parent is “required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. (citation omitted). “[A] parent’s vow to cooperate,
after a long period of uncooperativeness regarding the necessity or
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availability of services, may properly be rejected as untimely or
disingenuous.” Id. at 340. (citation 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 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Instantly, with respect to Section 2511(a)(2), Mother argues that DHS
failed to present clear and convincing evidence that she is presently
incapable of providing proper care for the Children. Mother’s Brief at 11.
Specifically, Mother argues that the testimony of William Russell, Ph.D., does
not support the termination of her parental rights. Id. at 11-12. In
addition, Mother asserts that she has appropriate employment and housing.
Id. at 12. We disagree.
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Dr. Russell conducted the parenting capacity evaluation of Mother on
March 26, 2014. He diagnosed her with Bipolar I and significantly impaired
functioning. N.T., 10/5/15, at 18. Dr. Russell testified as follows on direct
examination.
Q. In the course of the interview [during the
parenting capacity evaluation] what concerns, if any,
did you identify with respect to [Mother’s]
interactions with her children or with the
professionals on the case?
A. There was a history at that point and I observed
also that interaction, she had a difficult time
interacting appropriately. She would get angry. She
would shut down, she would argue, her presentation
again was representative of an individual who was
going through various moods[.] [I]n her case it
appeared to be very manic at different times where
she had a difficult time interacting appropriately with
her environment.
Id. at 13.
In fact, Walter Burwell, the CUA caseworker, testified that he received
threats from Mother. Id. at 92-93. Leonella DeJesus, a CUA caseworker
who assisted Mr. Burwell, testified that in the summer of 2014, Mother
visited the CUA office “upset, that she wanted to get her kids back. At that
point she said she had hired a detective, and that she knew the name of
[Mr. Burwell’s] wife and his children.” Id. at 103. On March 6, 2014, the
trial court issued a stay-away order directing Mother to refrain from all
contact with Mr. Burwell and from threatening any of the staff in his office.
Id. at Exhibit 13. Mr. Burwell testified that, by August 2014, Mother “had
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become more violent in nature, more threatening” toward him and other
officials. Id. at 68. Importantly, Mother was directed to address anger
management at the ATA, but Mr. Burwell testified that he never received
documentation that Mother completed a program. Id. at 50-51.
Dr. Russell testified that Mother participated in psychiatric medication
management through the ATA. Id. at 19. He explained that the ATA
stopped prescribing medication to Mother in January or February 2015, upon
learning that she was pregnant.4 Id. at 20. He further testified that Mother
participated in individual psychiatric therapy, and he implied that this lasted
for six months, until she unilaterally ended it in May 2015, prior to the birth
of the child. Id. at 19-20, 32.
Regarding what progress, if any, Mother made while participating in
her individual therapy at the ATA, Dr. Russell testified as follows.
She was still unstable, she was going through a
situation where she had decided to engage in
surrogacy[.] ….
And the thinking process that was in place to
start that … was significantly impaired at times.
For instance, she went to a psychiatric
appointment in January and received medication
without telling the psychiatrist that she was
pregnant.
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4
Dr. Russell testified that Mother participated in a surrogacy program
through an agency located in New York. N.T., 10/5/15, at 31. Mother
testified on direct examination that she was paid $30,000 to participate in
the program. Id. at 121.
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Now, luckily she had told the therapist the day
before that she was doing the surrogacy thing. So,
we were able to immediately get her back in and tell
her stop and not take any medication, but that could
have had significant ramifications for the pregnancy.
Id. at 22-23. Further, he testified, that because Mother was not on
medication during the surrogate pregnancy, “she was subject to the thinking
distortions of the mania.” Id. at 33.
Following the child’s birth in the summer of 2015, Mother returned to
the ATA on August 23, 2015, and on September 10, 2015, for psychiatric
medication management sessions. Id. at 20. Dr. Russell testified that the
ATA advised Mother on both occasions to begin individual therapy again, but
she never did. Id. As such, Dr. Russell testified that, as of September 10,
2015, one month before the subject proceedings, Mother was not
participating in individual therapy. Id. at 40. Due to Mother’s lack of
progress, Dr. Russell’s recommendations for Mother have not changed since
his report in March 2014, including, but not limited to, individual therapy on
a weekly basis. Id. at 31, 34-35.
In addition, with respect to Mother’s mental health, Ms. DeJesus
testified that, in May 2015, Mother sent her a text message “that she
wanted to kill herself if she didn’t get her kids back.” Id. at 100. Ms.
DeJesus testified, in response, she asked if Mother “would go to the
hospital,” and Mother told her “no.” Id. Ms. DeJesus testified that she next
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heard from Mother in August 2015, at which time Mother told her she had
been hospitalized for mental health. Id. at 101.
Regarding her employment, Mother testified to the following on direct
examination.
Q. [I]n terms of employment, do you have a job?
A. Yes.
Q. What?
A. I’m a dancer.
Q. And how long have you been a dancer?
A. Since April of this year.
Q. Prior to that what were you doing?
A. Nothing.
Id. at 120. However, Mr. Burwell testified her employment was never
verified. Id. at 58.
With respect to housing, Mr. Burwell testified that when he first
obtained the case Mother was living with Maternal grandmother. Id. at 53.
Mr. Burwell conducted a home inspection and deemed the home
inappropriate, inter alia, because of an unidentified person in the basement.
Id. at 54. Mother testified that since March 2015, she has lived in an
apartment in Philadelphia. Id. at 119. Mr. Burwell however, testified that
he requested Mother’s counsel to make the appropriate arrangements for
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him to visit Mother’s apartment, but the arrangements were not made by
the time of the hearing. N.T., 10/5/15, at 57.
Significantly, Mr. Burwell testified as follows.
Q. Do you feel the children can safely be returned to
[Mother’s] care today?
A. No, I do not.
Q. Why not?
A. Just based off the inability to finish anything that
she started as far as her getting her psychiatric and
mental health needs met, in adequate housing, job
security, anger management.
Q. How do you characterize her compliance with the
single case plan goals?
A. I would say minimal.
Id. at 59-60.
Based on the foregoing testimonial evidence, we discern no abuse of
discretion by the trial court in terminating Mother’s parental rights pursuant
to Section 2511(a)(2). Indeed, Mother’s repeated and continued incapacity
and/or refusal to consistently address her mental health needs and to make
sufficient progress with her mental health has caused the Children to be
without essential parental care, control, or subsistence necessary for their
physical or mental well-being. Further, the causes of Mother’s incapacity or
refusal cannot or will not be remedied.
With respect to Section 2511(b), Mother acknowledges that the
Children are no longer bonded with her. She asserts that she “did the best
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she could to maintain a committed and loving relationship with her Children
based on the circumstances.” Mother’s Brief at 16. We conclude that
Mother’s argument has no merit.
Our Supreme Court 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.”
T.S.M., supra at 268. 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 T.S.M. Court
observed that, “[c]hildren 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.
Instantly, the trial court found as follows.
The record established that Children will not suffer
any irreparable harm by terminating Mother’s
parental rights, and it is in the best interest of the
Children to terminate Mother’s parental rights.
Mother and Children do not have a parent/child
bond. In fact, the last time that Mother saw her
Children was in Arizona on August 29, 2013. The
Children never ask for their Mother, they do not
know who their Mother is, and do not look for Mother
to satisfy their physical[,] developmental and
emotional needs. Conversely, the Children
recognize[] their foster mother as their main
caregiver and call her “Mom.” It would be harmful to
remove the Children from foster mother[’s] care. ….
The Children are safe and their needs are satisfied
by their foster parent.
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Trial Court Opinion, 12/17/15 11-12 (citations to record omitted). Mr.
Burwell’s testimony supports the court’s findings. Indeed, he testified that
the Children reside in the same pre-adoptive foster home, and that they are
doing well. N.T., 10/5/15, at 42-43, 76. Moreover, Mr. Burwell testified that
the Children share a parent-child bond with their foster mother. Id. at 61.
As such, the testimonial evidence demonstrates that terminating Mother’s
parental rights would best serve the developmental, physical, and emotional
needs and welfare of the Children.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Mother’s parental rights to the
Children. Accordingly, we affirm the trial court’s October 5, 2015 decrees
involuntarily terminating Mother’s parental rights.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2016
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