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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.M.P., a : IN THE SUPERIOR COURT OF
Minor : PENNSYLVANIA
:
:
:
:
APPEAL OF: A.V.P., Mother : No. 3657 EDA 2015
:
Appeal from the Decree entered October 27, 2015
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000257-2015,
CP-51-DP-0002517-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 30, 2016
A.V.P. (“Mother”) appeals from the Decree granting the Petition filed
by the Philadelphia Department of Human Services (“DHS”), seeking to
involuntarily terminate Mother’s parental rights to her son, N.M.P. (born in
August of 2013) (hereinafter, “Child”), pursuant the Adoption Act, 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and to change Child’s
permanency goal from reunification to adoption, pursuant to the Juvenile
Act, 42 Pa.C.S.A. § 6351.1 We affirm.
On April 27, 2015, DHS filed the Petition to terminate Mother’s
parental rights to Child (hereinafter, “the Petition”). The trial court held an
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1
In a separate Decree entered on October 27, 2015, the trial court
terminated the parental rights of Child’s unknown father. Additionally, the
trial court entered an Order, on that same date, withdrawing the Petition for
involuntary termination that DHS had filed against J.J., who was previously
designated as Child’s father, as there is no father listed on Child’s birth
certificate.
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evidentiary hearing on the Petition on October 27, 2015. At the hearing,
DHS presented the testimony of Melanie Handberry (“Handberry”), the
Associacion Puertorriquenos en Marcha (“APM”) – Community Umbrella
Agency (“CUA”) supervisor. N.T., 10/27/15, at 9. DHS then presented the
testimony of Bessie Lee, the DHS social worker assigned to the case. Id. at
36. Mother testified on her own behalf. Id. at 38.
The trial court found that Mother has another child, N., and Mother’s
rights were terminated as to N. on June 13, 2013. Trial Court Opinion,
12/29/15, at 1; N.T., 10/27/15, at 9.2 Additionally, the trial court noted that
Judge Walter Olszewski previously made a finding of aggravated
circumstances regarding Child on June 17, 2014, based on the termination
of Mother’s parental rights to N. Trial Court Opinion, 12/29/15, at 1; N.T.,
10/27/15, at 9.
The trial court set forth the remaining factual background and
procedural history as follows:
On [December 20,] 2013[, Child, who was approximately three
months old,] arrived at St. Christopher’s Hospital [in
Philadelphia] dehydrated and losing weight. Mother was
incoherent and unable to respond. DHS [thereafter] obtained
[an Order of protective custody concerning Child,] and sought
emergency placement. (N.T.[, 10/27/15, at] 10);
[On] January 7, 2014[, Child] was adjudicated [d]ependent[,
and committed to the care of DHS.] ([Id. at] 11);
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2
N. was adopted by Child’s maternal aunt and uncle. N.T., 10/27/15, at 33.
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[On] January 17, 2014[, a permanency] planning [meeting was
conducted, wherein DHS] set goals for [M]other to attend mental
health treatment and seek reunification. Mother was invited to
[the] planning meeting[, but] failed to appear. Mother’s
objectives were to attend mental health services at CO[MH]AR,[3]
[] attend [the Clinical Evaluation Unit (“CEU”)] for a drug screen
[and] assessment[, have a Behavioral Health Services] consult
and evaluation, comply with CUA services[,] and … comply with
court[-]ordered visitation. ([Id. at] 12);
Mother failed to attend drug and alcohol treatment[.] ([Id. at]
13);
[On] April [20,] 2014[,] Mother appeared at CEU for [a] drug
screen[;] she tested positive for [m]arijuana and PCP. [Mother
t]hen never appeared for another assessment or drug screen[.]
([Id.]);
Mother [participated in mental health [treatment] at CO[MH]AR
and PATHWAYS. She was discharged from CO[MH]AR after an
altercation with staff. She was also discharged from PATHWAYS
for non[-]compliance. Mother [has] a mental health diagnosis of
[bip]olar disorder and [s]chizophrenia[.] ([Id. at] 13-14);
Mother attended supervised visitation with [C]hild for 2-3
months. This visitation was suspended in April 2014[,] after
[M]other attempted to stuff [C]hild down her pants and leave
the [CUA] building[.] ([Id. at] 15).
[Also in April 2014, Child was placed with his pre-adoptive foster
mother, with whom Child currently resides. Id. at 18-19.]
Mother was offered reinstatement of visitation if she complied
with a parenting capacity evaluation[; however,] [M]other
refused[.] ([Id.] at 15);
[Mother’s visitation of Child was reinstated in February 2015;
however, she never requested to visit Child. Id. at 60.]
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COMHAR (the Community Organization for Mental Health and
Rehabilitation) is a mental health treatment facility located in Philadelphia.
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Mother has been minimally cooperative with CUA, resurfacing
periodically to supply contact information[,] but [she] then
[would] not respond to agency attempts to communicate[.]
([Id. at] 16);
Mother has never completed any of her single case plan
objectives[.] ([Id.]);
As of [the] date of [the] termination hearing, [October 27, 2015,
C]hild has had no interaction with [M]other since her attempt to
abduct him … in April 2014 [(]or 18 months[.)] ([Id.]);
Child is thriving in [his] foster home and has bonded with [his]
foster family[.] ([Id. at] 17-19);
Mother has also failed to appear at court hearings for goal
changes and reviews[.] ([Id. at] 54).
Trial Court Opinion, 12/29/15, at 1-2 (footnote added).
On October 27, 2015, the trial court entered the Decree terminating
Mother’s parental rights pursuant to 2511(a)(1), (2), (5), (8), and (b) of the
Adoption Act, and an Order changing Child’s permanency goal to adoption
pursuant to section 6351 of the Juvenile Act. On November 30, 2015,
Mother timely filed a Notice of Appeal from the Decree and Order pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).4
Mother now presents the following issues for our review:
A. Whether the [trial] court erred in failing to find that for the six
months immediately preceding the filing of the [P]etition, when
[Child] was bonded with [Mother], when [Child’s] other siblings
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4
We note that the appeal is timely, as the thirtieth day following the entry of
the Decree fell on a court holiday, when the court was closed. See Pa.R.A.P.
903(a) (providing that a notice of appeal shall be filed within 30 days after
the entry of the order from which the appeal is taken); 1 Pa.C.S.A. § 1908
(regarding computation of time).
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were placed in New Jersey with an aunt, who was granted
[Permanent Legal Custodianship (“PLC”)], and when [] [M]other
made efforts towards completing a parenting class, stabilizing
her mental health issues, seeking housing for herself and
[Child], and was visiting with [Child], and did not intend to
relinquish her claim to [Child] or refused and/or failed to perform
parental duties[?]
B. Whether the [trial] court erred in failing to find that for the six
months immediately preceding the filing of the [P]etition,
[M]other had consistent contact and visits with [Child], when
[Child] was bonded with her, when [Child’s] other siblings were
placed in New Jersey with an aunt, who was granted PLC, and
when [] [M]other made efforts towards completing a parenting
class, stabilizing her mental health issues, seeking housing for
herself and [Child], and was visiting with [Child?]
C. Whether the [trial] court erred in finding that there were
repeated and continuing findings of incapacity, abuse, neglect
and/or dependency of [Child] by [Mother], when [Child] was
bonded with her, when [Child’s] other siblings were placed in
New Jersey with an aunt, who was granted PLC, and when []
[M]other made efforts towards completing a parenting class,
stabilizing her mental health issues, seeking housing for herself
and [Child], and was visiting with [Child?]
D. Whether the [trial] court erred in finding that the conditions
which led to the removal or placement of [Child] continue to
exist, as to father,[5] when [Child] was bonded with [Mother],
when [Child’s] other siblings were placed in New Jersey with an
aunt, who was granted PLC, and when [] [M]other made efforts
towards completing a parenting class, stabilizing her mental
health issues, seeking housing for herself and [Child], and was
visiting with [Child?]
E. Whether the [trial] court erred in finding that the conditions
which led to the removal or placement of [Child] continue to
exist and termination of parental rights would best serve the
needs and welfare of [Child], when [] [M]other can remedy the
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5
Mother’s isolated reference in her issue to “father” appears to be a
typographical error. Child’s unknown father is not a party to this appeal.
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conditions within a reasonable period of time, and when [Child]
was bonded with [Mother], when [Child’s] other siblings were
placed in New Jersey with an aunt, who was granted PLC, and
when [] [M]other made efforts towards completing a parenting
class, stabilizing her mental health issues, seeking housing for
herself and [Child], and was visiting with her [Child?]
F. Whether the [trial] court erred in finding that DHS made[]
reasonable efforts toward reunification, by either failing and/or
refusing to help find a viable option or to consider options other
than terminating [M]other’s parental rights, when [Child] was
bonded with her, when [Child’s] other siblings were placed in
New Jersey with an aunt, who was granted PLC, and when []
[M]other made efforts towards completing a parenting class,
stabilizing her mental health issues, seeking housing for herself
and [Child], and was visiting with [Child?]
G. Whether the [trial] court erred in terminating the rights of
[M]other, when the sole reason she was unable to obtain
housing, [and] provide medical care for the care and
maintenance of [Child], was her lack of income[?]
H. Whether the [trial] court erred in terminating the rights of []
[M]other where it was not supported by clear and convincing
evidence and not in the best interests of [Child], and there was a
bond between [] [M]other and [C]hild[,] and the termination of
parental rights would have a negative effect on the
developmental, physical and emotional needs of [Child],
pursuant to 23 P[a.C.S.A.] Section 2511(b)[?]
Mother’s Brief at 3-4 (footnote added).6 We will address Mother’s related
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6
Mother waived any challenge concerning the trial court’s changing of
Child’s permanency goal from reunification to adoption, pursuant to the
Juvenile Act, 42 Pa.C.S.A. § 6351, by failing to include this issue in her
court-ordered Rule 1925 Concise Statement and Statement of Questions
Involved portion of her brief. See Krebs v. United Ref. Co. of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his or her concise
statement of errors complained of on appeal and the statement of questions
involved in his or her brief on appeal).
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issues together.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[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. … [O]ur 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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion.
In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012) (citations omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “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.” Id. (citation and quotation marks omitted).
The trial court terminated Mother’s parental rights under section
2511(a)(1), (2), (5), (8), and (b). 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), along with a consideration of section 2511(b).
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here,
we will focus on section 2511(a)(2) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
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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:
***
(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).
Concerning the termination of parental rights based upon a finding of
parental incapacity under section 2511(a)(2), our Pennsylvania Supreme
Court has stated that
[a] decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based upon
parental incapacity. The legislature, however, in enacting the
1970 Adoption Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit as one who
refuses to perform the duties.
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In re Adoption of S.P., 47 A.3d at 827 (citation omitted). In accordance
with the Adoption Act, a parent is required to make diligent efforts towards
the reasonably prompt assumption of full parental responsibilities. In re
A.L.D. 797 A.2d 326, 337 (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. at 340.
Additionally, a child’s life “simply cannot be put on hold in the hope
that [a parent] will summon the ability to handle the responsibilities of
parenting.” In re Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010) (citation
omitted). Rather, “a parent’s basic constitutional right to the custody and
rearing of his child is converted, upon the failure to fulfill his or her parental
duties, to the child’s right to have proper parenting and fulfillment of his or
her potential in a permanent, healthy, safe environment.” In re B., N.M.,
856 A.2d 847, 856 (Pa. Super. 2004).
Mother contends that the trial court abused its discretion by
terminating her parental rights under section 2511(a)(2) because she (1)
was consistently visiting and bonded with Child; (2) obtained mental health
treatment and “has addressed her mental health issues”; (3) participated in
drug and alcohol treatment; (4) was working towards completion of her
single case plan objectives; (5) did not intend to relinquish her claim to
Child; and (6) did not refuse and/or fail to perform parental duties. See
Mother’s Brief at 7, 13. Additionally, Mother contends that she “certainly did
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not want to lose the contact she was having with [Child] and hoped [Child]
would be placed with family members.” Id. at 12; see also id. at 13;
(asserting that Mother “has shown continued positive intent in establishing a
home for her and [Child] and assuming her parental responsibilities[,] or[,]
in the alternative, to have [Child] reside with family members and
siblings.”).
The trial court assessed the evidence regarding Mother’s repeated
incapacity to parent Child, and her inability to remedy the conditions and
causes of her incapacity to parent Child. See Trial Court Opinion, 12/29/15,
at 4. The court additionally pointed out that Mother (1) failed to meet her
single case plan objectives; (2) had a positive result for drugs in one of her
drug screens, after which she stopped attending scheduled screens; (3) was
minimally compliant with her mental health treatment for her bipolar
disorder and schizophrenia, and was discharged from two mental health
providers for non-compliance and aggressive conduct; (4) attended
supervised visitation for only 2-3 months, until visitation was revoked after
she had attempted to abduct Child; (5) did not seek reinstatement of her
visitation rights; (6) has been minimally compliant with CUA; and (7) has
not seen Child for approximately 18 months, the last time being when Child
was only approximately seven months old. Id. The trial court expressed
“grave concern about [M]other’s ability to provide the level of protection,
security and stability that [] [C]hild needed ….” Id. at 3.
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Our review discloses that the evidence supports the trial court’s
determination that the repeated and continued incapacity of Mother has
caused 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 cannot or will not be remedied by Mother. Further,
the court’s legal conclusions are not the result of an error of law or an abuse
of discretion. We therefore affirm the trial court’s decision with regard to
section 2511(a)(2). See In re Adoption of S.P., 47 A.3d at 826-27.
Additionally, Mother contends that DHS did not make reasonable
efforts to avoid the termination of her parental rights. See Mother’s Brief at
13. However, our Supreme Court has held that the trial court is not required
to consider reasonable efforts in relation to a decision to terminate parental
rights under section 2511(a)(2). In re D.C.D., 105 A.3d 662, 675 (Pa.
2014). Thus, Mother’s argument does not entitle her to relief.7
Next, we review the termination of Mother’s parental rights under
section 2511(b).
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include [i]ntangibles such as
love, comfort, security, and stability. … [T]he determination of
the child’s “needs and welfare” requires consideration of the
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7
Moreover, contrary to Mother’s claim, the record indicates that DHS had
considered Child’s maternal aunt and uncle as a possible kinship placement
resource for Child. See N.T., 10/27/15, at 30-31, 33.
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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) (some citations and quotation
marks omitted).
Mother asserts that she maintained contact with Child and made
progress to alleviate the problems that led to Child being placed in care.
Mother’s Brief at 15. Mother claims she attended drug and mental health
programs and had supervised visits with Child. Id. According to Mother,
there was very little evidence that the bond between her and Child has been
broken, and there was scant testimony concerning the likely effect on Child
from severing any bond that might exist. Id. Mother argues that, without
evidence of the impact that termination would have on Child, the trial court
could not conduct a proper section 2511(b) analysis. Id. Additionally,
Mother points out that there was no expert testimony presented regarding
Child’s best interests, as to Child’s physical, intellectual, moral, and spiritual
well-being. Id. She further asserts that there was no expert testimony as
to the relationship, interaction, and bond between Mother and Child. Id.
Mother urges that, “[g]iven the circumstances of the family and the efforts
that all parties put forth for the family,” Child’s interests would be best
served by (1) the denial of the Petition; (2) a remand for testimony and
evidence concerning the bond between Mother and Child; or (3) in the
alternative, to explore his placement with family and siblings. Id. at 15-16.
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We have stated that, in conducting a bonding analysis, the court is not
required to use expert testimony, but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d at 1121. This Court has
also 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). Additionally, it is
appropriate to consider a child’s bond with his or her foster parent. In re
T.S.M., 71 A.3d at 268.
In the present matter, the trial court considered the needs and welfare
of Child, and set forth its bond-effect analysis. See Trial Court Opinion,
12/29/15, at 5. The court found that “the testimony established [that C]hild
would not suffer any irreparable emotional harm if [] [M]other’s parental
rights were terminated. Furthermore, [Handberry] testified that … [Child] is
thriving in [his] foster home and has bonded with [his] foster family.” Id.;8
see also In re K.Z.S., supra (stating that no bond worth preserving is
formed between a child and a parent where the child has been in foster care
for most of the child’s life); In re T.S.M., supra.
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Handberry testified that (1) Child has resided with his pre-adoptive foster
family for 18 months, which comprises most of his life; (2) Child is bonded
with his foster mother, whom he calls “mommy”; and (3) to remove Child
from her care would cause Child serious harm. N.T., 10/27/15, at 18-19.
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The record reflects that that the trial court properly considered the
best interests of Child in rendering its decision to terminate Mother’s
parental rights. As the trial court’s 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, we affirm the trial court’s decision with regard to
section 2511(b). See In re Adoption of S.P., 47 A.3d at 826-27.
Accordingly, we affirm the Decree terminating Mother’s parental rights,
and changing Child’s goal to adoption.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2016
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