J-S75001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.C.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.R., MOTHER :
:
:
:
: No. 874 EDA 2016
Appeal from the Order Entered February 18, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000091-2016,
CP-51-DP-0002139-2013
IN THE INTEREST OF: O.G.Z., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.R., MOTHER :
:
:
:
: No. 875 EDA 2016
Appeal from the Order Entered February 18, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000092-2016,
CP-51-DP-0002137-2013
J-S75001-16
IN THE INTEREST OF: W.G. JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.R., MOTHER :
:
:
:
: No. 876 EDA 2016
Appeal from the Order Entered February 18, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000093-2016,
CP-51-DP-0002138-2013
BEFORE: BOWES, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 18, 2016
J.R. (“Mother”) appeals from the decrees entered February 18, 2016,
in the Court of Common Pleas of Philadelphia County that granted the
petitions of the Philadelphia Department of Human Services (“DHS”) to
involuntarily terminate her parental rights to two daughters, D.C.S. and
O.G.Z., and a son, W.G., Jr.1 Mother additionally appeals from the order
changing the permanency goal of D.C.S. to adoption pursuant to the
Juvenile Act, 42 Pa.C.S. § 6351.2 We affirm.
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1
In a separate decree entered on the same date, the trial court terminated
the parental rights of the unknown father of D.C.S. Subsequently, on April
11, 2016, the trial court terminated the parental rights of R.Z. as to O.G.Z.
The matter relating to W.G., Jr.’s father was continued due to an issue with
service. Not one of the fathers is a party to the instant appeal.
2
While Mother purports to appeal the goal change as to all three children,
the court only entered a goal change order as to D.C.S., despite finding on
the record that it was in the best interests of all three children to change the
(Footnote Continued Next Page)
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O.G.Z. was born during November 2004. Mother had W.G., Jr. in
October 2008, and gave birth to D.C.S. during November 2012. DHS has
had extensive involvement with the family since 2013 based primarily on
Mother’s drug abuse and her neglect of the children. On September 21,
2013, DHS received a General Protective Services (GPS) report concerning
Mother’s abuse of drugs and neglect of her mental health treatment.
Prior to the adjudication of dependency, DHS installed in-home
services through Community Umbrella Agency (CUA). However, Mother
squandered that assistance. During October 2013, she admitted to
continuing abuse of marijuana and PCP, refused to cooperate with service
providers, and neglected to take W.G., Jr. to his mental health treatments.
Additionally, while Mother had access to appropriate housing, she elected to
forgo that assistance so that she and the three children could share a room
with her paramour in a residence that housed a convicted felon.
On November 14, 2012, the trial court adjudicated O.G.Z., W.G., Jr.,
and D.C.S. dependent and committed them to the care and custody of DHS.
Throughout the dependency proceedings, the children’s permanency goals
were reunification. In furtherance of that objective, a Family Service Plan
_______________________
(Footnote Continued)
permanency goal to adoption. As the change of a child permanency goal to
adoption is not a prerequisite to involuntary termination, the omissions do
not impact our review. See In re M.T., 101 A.3d 1163, 1166 (Pa.Super.
2014) (en banc) (“a goal change from reunification to adoption is not a
necessary prerequisite to the initiation of involuntary termination
proceedings.”).
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(“FSP”) was crafted that included, inter alia, the requirement that Mother
“ensure [her] drug and alcohol needs are being met, ensure mental health
needs are being met, [attend] court ordered visitation, and [maintain] safe
and suitable housing.” N.T., 2/18/16, at 15-16.
The children remained in DHS care for approximately fifteen months.
However, on February 27, 2014, the trial court discharged that commitment
and ordered the return of physical and legal custody of the children to
Mother. The dependency adjudication persisted, however, and the trial court
directed DHS to continue to supervise the family.
Whatever progress Mother had achieved prior to the children’s return
to her care during February 2014 quickly dissipated. On March 5, 2014,
Mother stopped participating in drug and alcohol treatment, and she was
subsequently discharged from the program on April 5, 2014. Thereafter, she
tested positive for PCP on July 16, and August 8, 2014.
On August 14, 2014, the trial court reinstated the commitment of
O.G.Z. and D.C.S. to the care and custody of DHS. W.G., Jr. was placed
with his father under DHS supervision until January 22, 2015 when the trial
court ordered his recommitment to the agency’s custody.
On February 3, 2016, DHS filed petitions to terminate Mother’s
parental rights and to change the children’s permanency goals to adoption.
The trial court held a combined goal change/termination hearing on February
18, 2016. At the hearing, DHS presented the testimony of Jose DeJesus,
who was the CUA case manager assigned to the family. Mother testified on
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her own behalf. By separate decrees entered February 18, 2016, the trial
court involuntarily terminated Mother’s parental rights to D.C.S., O.G.Z., and
W.G., Jr. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).
Additionally, the trial court entered an order changing the permanency goal
of D.C.S. to adoption.
Thereafter, on March 18, 2016, Mother, through appointed counsel,
filed timely notices of appeal, along with concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). This Court
consolidated the appeals sua sponte on April 21, 2016.
Mother raises the following issues for review:
1. Did the [t]rial [c]ourt err in terminating [Mother]’s parental
rights under Pa.C.S. Section 2511?
2. Did the [t]rial [c]ourt err in finding that termination of
parental rights best served [D.C.S.’s, O.G.Z.’s, and W.G.,
Jr.’s] development, physical and emotional needs under sub-
section 2511(b)?
3. Did the [t]rial [c]ourt err in changing [D.C.S.’s, O.G.Z.’s, and
W.G., Jr.’s] goal to adoption?
Mother’s brief at vi.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “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. “[A] decision may be reversed for an
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abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” Id. The
trial court’s decision, however, should not be reversed merely
because the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to
believe all, part, or none of the evidence presented and is likewise free to
make all credibility determinations and resolve conflicts in the evidence.” In
re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is guided by § 2511 of the Adoption
Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis of the
grounds for termination followed by the needs and welfare of the child.
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.
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In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which 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.” In
re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter
of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998)).
In this case, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), and (8), as well as (b). We
have long held that, in order to affirm a termination of parental rights, we
need only agree with the trial court as to any one subsection of § 2511(a),
as well as § 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the court’s termination pursuant to
§§ 2511(a)(2) and (b), which provide as follows:
(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
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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. § 2511(a)(2), (b).
We first examine the court’s termination of Mother’s parental rights
pursuant to § 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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 due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002)).
In addressing § 2511(a)(2), the trial court first recognized the precept
that “grave concerns about [a parent’s] ability to provide the level of
protection security and stability that [a] child needed was sufficient to
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warrant termination.” Trial Court Opinion, 5/20/16, at 4-5 (unpaginated)
(citation omitted). The court then emphasized Mother’s extensive history of
chronic drug abuse, including her hospitalization for a drug overdose. Id. at
5.
Mother argues that DHS “failed to present clear and convincing
evidence that the ‘causes of incapacity, abuse, neglect or refusal cannot or
will not be remedied.’” Mother’s brief at 3. Mother asserts that, since she
was “fully compliant” with all FSP objectives prior to the filing of the
termination petitions, regularly visiting with D.C.S., O.G.Z., and W.G., Jr.,
and participating in mental health and drug and alcohol treatment, she
established that she “can and did remedy the reasons the children came into
care.” Id. We disagree.
Our review of the certified record supports the trial court’s finding of
sufficient grounds for termination under § 2511(a)(2). Mother failed to fully
comply with her FSP objectives, notably drug and alcohol treatment and
visitation. N.T., 2/18/16, at 15-20, 22. Mr. DeJesus testified that Mother
still had not “successfully completed” drug and alcohol treatment. Id. at 17-
18. He further indicated that, while Mother was currently enrolled in a drug
and alcohol program, she was in danger of being discharged due to her non-
compliance. Id. at 17, 30. Moreover, Mother not only tested positive for
drugs on numerous occasions between July 2014 and July 2015, she tested
positive for drugs as recently as January 20, 2016, her final screening prior
to the evidentiary hearing. Id. at 12-13, 16-17. See also DHS Exhibit 2.
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Although Mr. DeJesus acknowledged several months with negative drug
screens, he also identified “lapses in treatment where [Mother] did not
attend treatment [and] therefore [the agency] could not do any screens on
her at that time.” Id. at 30-31. Significantly, Mr. DeJesus “still [had]
concerns with [Mother’s] drug and alcohol use based upon the recent
positive screen.” Id. at 18. He further opined that, given Mother’s
continuing drug abuse, she “ha[d] not remedied that issue which caused
[Children] to come into care.” Id. Hence, the record supports the trial
court’s finding that Mother cannot or will not remedy this situation. See id.
Mother has chronically abused drugs over an extended period of time, as
evidenced by multiple positive drug tests. Additionally, she has proven
incapable of successfully completing a substance abuse treatment regimen.
As to Mother’s visitation record, she attended only forty of the fifty-
seven visitations with D.C.S., O.G.Z., and W.G., Jr., offered since August
2015. Id. at 19. Notably, Mother missed eight visitations, or approximately
three to four weeks, in October of 2015 when she was hospitalized due to an
overdose of PCP. Id. at 19-20. Mother missed two visitations in December
of 2015 and was late for two visits in January of 2016, which had to be
canceled as a result. Id. at 22. The trial court noted the lack of harm to
D.C.S., O.G.Z., and W.G., Jr., as a result of the missed visitations with
Mother. The children’s resilience is a testament to the stability in their
respective foster homes and the bonds they enjoy in those environments
rather than anything attributable to Mother. For all of the reasons that we
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outlined supra, we find the record substantiates the trial court’s conclusion
that Mother’s repeated and continued incapacity and neglect has caused the
children to be without the essential parental control necessary for their
physical and mental well-being. Thus, we discern no trial court error in this
regard. See In re Adoption of M.E.P., 825 A.2d at 1272.
We next determine whether termination was proper under § 2511(b).
With regard to § 2511(b), our Supreme Court has stated as follows:
[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.” In re K.M., 53 A.3d 781,
791 (Pa.Super. 2012). In In re E.M., 620 A.2d [481, 485 (Pa.
1993)], this Court 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 K.M., 53 A.3d at
791. However, as discussed below, evaluation of a child’s bonds
is not always an easy task.
In re T.S.M., 71 A.3d at 267. “[I]n cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (citations omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, § 2511(b) does not require a formal bonding evaluation.”
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In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (citing In re K.K.R.-S.,
958 A.2d 529, 533 (Pa.Super. 2008) (internal citations omitted).
In discussing § 2511(b), the trial court expressed:
In the instant matter, O.G.Z. and D.C.S. are in a pre-
adoptive home together. O.G.Z. shares her parent-child
relationship with the foster parent. She has a strong bond with
the foster parent. O.G.Z. and D.C.S. refer to the foster parents
as “mom-mom” and “pop-pop[.]” The foster parents provide
them with love, safety, stability and support. The foster parents
meet all of their medical, educational and developmental needs.
W.G.[, Jr.,] is in a kinship foster home with his paternal aunt.
W.G.[, Jr.’s] primary parent-child bond is with his foster parent.
He looks to the foster parent for love, safety, stability and
support. The foster parent meets all of his needs. Moreover,
the social worker testified that the children would not suffer
irreparable harm if the mother’s rights were terminated. Lastly,
the testimony indicated that it would be in the best interest of
the children if the mother’s parental rights were terminated and
the children’s goal changed to adoption.
Trial Court Opinion, 5/20/16, at 6 (unpaginated) (citations to record
omitted).
Mother argues “termination [w]ould not be in the best interest of [the]
children as it would terminate the only love, comfort, security and stability
that these children have ever known.” Mother’s brief at 5. She highlights
the testimony of Mr. DeJesus that D.C.S., O.G.Z., and W.G., Jr., were happy
to see her during the visitations and bonded with her. Id. We disagree.
Contrary to Mother’s assertions, the certified record corroborates the
trial court’s best interest analysis pursuant to § 2511(b). Initially, we note
that Mother never progressed beyond supervised visitation. Mr. DeJesus
indicated that unsupervised visitation was impossible due to Mother’s
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continued drug abuse. N.T., 2/18/16, at 18. Moreover, Mr. DeJesus
expressed concern that Mother had been under the influence of drugs during
some of her visitations with D.C.S., O.G.Z., and W.G., Jr. Id. at 21. He
explained:
During my time on the case, we had some concerns during
some visits where [Mother] would come or she would be over
excited or she appeared to be under the influence of some type
of drugs and we would continue the visits because it would not
put the children in harm but some of my staff members also,
that would assist me with the visits, would mention it to me as a
concern that she would come to a visit under the influence of
some type of drug. We did not have a way to prove it because
we do not do screens at our agency.
Id.
Further, D.C.S., O.G.Z., and W.G., Jr., are all in pre-adoptive homes.
The girls, D.C.S. and O.G.Z., are together in the same foster home.
Mother’s now-eight-year-old son, W.G., Jr., is in kinship care with his
paternal aunt. Id. at 22-24, 26, 27. While Mr. DeJesus acknowledged
D.C.S., O.G.Z., and W.G., Jr., have a bond with Mother, he indicated that
their “primary parent-child bond” and/or “primary parent-child relationship”
is with their foster and kinship parents. Id. at 23-24, 26. Accordingly,
D.C.S., O.G.Z., and W.G., Jr., look to their pre-adoptive foster and kinship
parents for “love, safety, stability and support.” Id. Additionally, the
foster/kinship parents, not Mother, meet the children’s developmental,
educational, and medical needs. Id.
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Notwithstanding Mother’s protestations to the contrary, Mr. DeJesus
opined that the children would not suffer “irreparable harm” or “trauma” if
Mother’s parental rights were terminated and they would no longer see her.
Id. at 26, 31. The children’s positive response to the three to four weeks of
visitation that Mother missed due to her drug overdose demonstrates that no
harmful consequences would flow from permanently severing the parental
bond. Thus, the record supports the trial court’s finding that the emotional
needs and welfare of D.C.S, O.G.Z., and W.G., Jr., favor termination.
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Mother’s
parental rights under 23 Pa.C.S. §§ 2511(a)(2) and (b).
Lastly, we turn to the question of whether the trial court appropriately
changed D.C.S. permanency goal to adoption. Although the court found on
the record that it was in the best interests of all three children to change
their respective permanency goals to adoption, the court only entered an
order as to D.C.S. N.T., 2/18/16, at 35; Permanency Review Orders,
2/18/16. Hence, we address Mother’s argument only in relation to that
child. We first note that our standard of review is the same abuse of
discretion standard as noted above. In the Interest of L.Z., 111 A.3d
1164, 1174 (Pa. 2015) (citing In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010),
for proposition that the abuse of discretion standard applies in a dependency
matter). Further, following an examination and findings of factors provided
in 42 Pa.C.S. § 6351(f) and (f.1), regarding matters to be determined at the
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permanency hearing, the trial court must also find that a goal change is in
Child’s best interests. See 42 Pa.C.S. § 6351(g); In re R.J.T., 9 A.3d 1179
(Pa. 2010).
Mother posits that the trial court should not have changed the
permanency goal to adoption, as she had complied with all of her FSP goals,
and as the children had a bond with her. Mother’s brief at 6. However,
upon review of the certified record, we find that Mother’s claim lacks merit.
The record reveals that a change of the permanency goal to adoption was in
D.C.S.’s best interests. The child has been under some form of DHS
supervision since September 2013 and Mother has received services since
October 2013. The agency designed the FSP to help Mother address the
central issue of her substance abuse problem. Nevertheless, Mother
overdosed in October 2015, and tested positive for drug use on several
occasions since August 2015, including as recently as January 20, 2016.
N.T., 2/18/16, at 16-17, 20. Mother is in danger of discharge from her
current treatment program due to non-compliance, and she failed to
complete the drug treatment outlined in the FSP. Id. at 16-18. Indeed, the
testimony demonstrates that she is unable to “reunify the children safely”
due to her continuing drug abuse. Id. at 18. Further, Mr. Dejesus testified
that it is in the best interests of D.C.S. to change the permanency goals to
adoption. Id. at 27-28. As we find that the record supports the trial court’s
conclusion that the goal change was in the best interest of D.C.S., we
discern no abuse of discretion in its decision to grant DHS’s petition.
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Based on the foregoing, we affirm the decrees terminating Mother’s
parental rights to D.C.S., O.G.Z., and W.G., Jr. and the order changing
D.C.S.’s permanency goal to adoption.
Decrees affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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