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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.T.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.M., MOTHER
No. 1303 EDA 2016
Appeal from the Order March 24, 2016
in the Court of Common Pleas of Philadelphia County Family Court
at No(s): CP-51-AP-0000331-2015
CP-51-DP-0000333-2010
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED January 12, 2017
D.M. (“Mother”) appeals from the order entered in the Philadelphia
County Court of Common Pleas terminating her parental rights to D.T.M.
(“Child”) (born in 2005). Mother contends the Department of Human
Services (“DHS”) failed to establish the elements of 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b). We affirm.
We adopt the facts as set forth by the trial court. See Trial Ct. Op.,
5/27/16, at 1-4.1 DHS filed a petition to involuntarily terminate Mother’s
*
Former Justice specially assigned to the Superior Court.
1
We note that Dr. William Russell testified at the October 15, 2015 hearing.
Mother’s counsel stipulated that Dr. Russell was an expert in the field of
parenting capacity evaluations. N.T., 10/15/15, at 20. Dr. Russell provided
DHS with a parenting capacity evaluation for Mother and a bonding
evaluation. Id. He testified that he followed “the APA standards set forth
for forensic psychologists[.]” Id. at 42. Jessica Merson testified that she
was a child abuse investigator for DHS. Id. at 80. Shereena Johnson of
DHS was assigned to Child’s case. N.T., 11/2/15, at 10. Stephanie Reily
was the case manager from the Wordsworth Community Umbrella Agency
(“CUA”). N.T., 1/8/16, at 4.
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parental rights. Hearings were held on October 15, 2015, November 2,
2015, and January 8, 2016. The trial court changed the goal from
reunification to adoption and terminated Mother’s parental rights to Child
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). See Order,
3/24/16. Mother simultaneously filed a timely notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), and the trial court filed a responsive opinion.
Mother raises the following issues for our review:
1. Did [DHS] sustain their burden that Mother’s rights
should be terminated when there was evidence that
Mother had completed and/or had been actively
completing her permanency goals?
2. Was there sufficient evidence presented to establish
that it was in the best interest of [C]hild to terminate
Mother’s parental rights?
Mother’s Brief at 4.2
We review appeals from the involuntary termination of parental rights
according 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. As in
dependency cases, our standard of review requires an
appellate court to accept the findings of fact and credibility
2
Appellant raised eight issues in her Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215,
1218 n. 2 (Pa. Super. 2011) (holding claims raised in Rule 1925(b)
statement but not identified in statement of questions presented or
developed in argument section of brief abandoned on appeal).
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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. As has been often stated,
an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
[T]here are clear reasons for applying an abuse of
discretion standard of review in these cases. We observed
that, unlike trial courts, appellate courts are not equipped
to make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is
often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the
trial court and impose its own credibility determinations
and judgment; instead we must defer to the trial judges so
long as the 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.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations
omitted).
A trial court’s decision regarding the termination of parental rights is
controlled 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
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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. § 2511)
(some citations omitted).
Section 2511(a) provides in pertinent part:
(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.
(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.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which
led to the removal or placement of the child within a
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reasonable period of time and termination of the
parental rights would best serve the needs and welfare
of the child.
* * *
(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.
25 Pa.C.S. § 2511(a)(1), (2), (5), (8), (b). “We note that, initially, the focus
in terminating parental rights is on the parent, under Section 2511(a),
whereas the focus in Section 2511(b) is on the child.” In re C.L.G., 956
A.2d 999, 1008 (Pa. Super. 2008) (en banc) (citation omitted).
In termination cases, the burden is upon DHS to prove by
clear and convincing evidence that its asserted grounds for
seeking the termination of parental rights are valid.
We have previously stated:
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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.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted).
In the case at bar, the trial court found that the facts alleged in DHS’s
petition as to subsections 2511(a)(1), (2), (5), (8) and (b) were established
by clear and convincing evidence. Trial Ct. Op., 7/12/13, at 3-11. In In re
B.L.W., 843 A.2d 380 (Pa. Super. 2004) (en banc), this Court opined:
“While the trial court found that [DHS] met its burden of proof under each
section quoted above, we need only agree with its decision as to any one
subsection in order to affirm the termination of parental rights.” Id. at 384
(citations omitted). We consider whether the trial court erred in terminating
Mother’s parental rights under Section 2511(a)(8).
We have explained this Court’s review of a challenge to
the sufficiency of the evidence to support the involuntary
termination of a parent’s rights pursuant to § 2511(a)(8),
as follows:
In order to terminate parental rights pursuant to 23
[Pa.C.S.] § 2511(a)(8), the following factors must be
demonstrated: (1) The 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.
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In Re Adoption of M.E.P., 825 A.2d 1266, 1275–1276
(Pa. Super. 2003). . . . “Notably, termination under
Section 2511(a)(8), does not require an evaluation
of Mother’s willingness or ability to remedy the
conditions that led to placement of her children.” Id.
at 511.
In re K.M., 53 A.3d 781, 789 (Pa. Super. 2012) (emphasis added).
We have observed the following about the “needs and welfare”
analysis pertinent to Sections 2511(a)(8) and (b):
[I]nitially, the focus in terminating parental rights is on the
parent, under Section 2511(a), whereas the focus in
Section 2511(b) is on the child. However, Section
2511(a)(8) explicitly requires an evaluation of the “needs
and welfare of the child” prior to proceeding to Section
2511(b), which focuses on the “developmental, physical
and emotional needs and welfare of the child.” Thus, the
analysis under Section 2511(a)(8) accounts for the needs
of the child in addition to the behavior of the parent.
Moreover, only if a court determines that the parent’s
conduct warrants termination of his or her parental rights,
pursuant to Section 2511(a), does a 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.” Accordingly,
while both Section 2511(a)(8) and Section 2511(b) direct
us to evaluate the “needs and welfare of the child,” we are
required to resolve the analysis relative to Section
2511(a)(8), prior to addressing the “needs and welfare” of
[the child], as proscribed by Section 2511(b); as such,
they are distinct in that we must address Section 2511(a)
before reaching Section 2511(b).
In re C.L.G., 956 A.2d at 1008-09 (Pa. Super. 2008).
Mother contends the trial court erred in terminating her parental rights
pursuant to Section 2511(a)(8). “Ms. Riley’s extensive testimony that there
were no barriers to reunification clearly established that the conditions which
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led to the removal or placement of [C]hild were no longer present.”
Appellant’s Brief at 18.
In the case sub judice, the trial court opined:
Child in this case has been in DHS custody since March 22,
2012, for a total of four years. Child was removed
because Mother was a safety threat to Child’s life. Mother
abused drugs and physically abused Child. Child has
chronic respiratory problems which were made worse by
Mother’s failure to attend doctor’s appointments. Mother
has not acknowledged and accepted her role in
endangering Child’s life. Mother has not attended Child’s
medical appointments, despite court orders. Mother is not
involved in Child’s schooling─Mother does not attend
school meetings. Mother spends all the time at her visits
talking with Child about school, but does not know where
Child attends school or goes to therapy. Mother has
attended most court hearings. Mother has not attended
visits with Child in over three weeks because she had
become upset with CUA. The court heard credible
testimony from Dr. Russell that Mother would not be able
to parent safely for a year or more. Mother has not
successfully completed her drug and alcohol program.
Child is currently placed in a safe and stable pre-adoptive
home. Foster Mother provides for all Child’s needs, and
has a loving bond with Child. The DHS social worker
testified that it would be in Child’s best interest to
terminate Mother’s parental rights and allow Foster Mother
to adopt Child. Child refers to Foster Mother as
“grandmom” and in the past expressed a desire to remain
with Foster Mother. Child needs permanency. The
conditions leading to removal continue to exist, as Mother
is not able to acknowledge her role in child’s life-
threatening medical issues. The testimony of DHS’s
witness was unwavering and credible. Mother is not ready,
willing or able as of today to parent [Child].
Trial Ct. Op. at 11 (citations omitted). We discern no abuse of discretion in
the trial court’s determination that termination of parental rights pursuant to
Section 2511(a)(8) would best serve the needs and welfare of Child. See In
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re S.P., 47 A.3d at 826-27. We defer to the trial judge’s credibility
determinations. See id. The totality of the circumstances warrants
termination pursuant to Section 2511(a)(8). See In re K.M., 53 A.3d at
789; In re R.N.J., 985 A.2d at 276.
We now consider the needs and welfare of Child as required by section
2511(b). See In re C.L.G., 956 A.2d at 1008-09. Mother argues the trial
court erred in its conclusion pursuant to Section 2511(b), relying upon the
testimony of Ms. Reily, the CUA case manager. Appellant’s Brief at 20-21.
With regard to subsection 2511(b), this Court has stated:
The trial court also must discern the nature and status of
the parent-child bond, with utmost attention to the effect
on the child of permanently severing that bond. The
extent of the bond-effect analysis necessarily depends
upon the unique facts and circumstances of the particular
case.
* * *
Moreover, the mere existence of an emotional bond does
not preclude the termination of parental rights. . . .
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re K.M., 53 A.3d at 791 (citations omitted).
[C]oncluding a child has a beneficial bond with a parent
simply because the child harbors affection for the parent is
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not only dangerous, it is logically unsound. If a child’s
feelings were the dispositive factor in the bonding analysis,
the analysis would be reduced to an exercise in semantics
as it is the rare child who, after being subject to neglect
and abuse, is able to sift through the emotional wreckage
and completely disavow a parent . . . Nor are we of the
opinion that the biological connection between [the parent]
and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a
parent, to establish a de facto beneficial bond exists. The
psychological aspect of parenthood is more important in
terms of the development of the child and its mental and
emotional health than the coincidence of biological or
natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (citations and
quotation marks omitted).
Thus, the court may emphasize the safety needs of the child. See In
re K.Z.S., 946 A.2d 753, 763-64 (Pa. Super. 2008) (affirming the
involuntary termination of the mother’s parental rights, despite the existence
of some bond, where placement with the mother would be contrary to the
child’s best interests, and any bond with the mother would be fairly
attenuated when the child was separated from her, almost constantly, for
four years).
It is well-settled that “we will not toll the well-being and permanency
of [a child] indefinitely.” In re C.L.G., 956 A.2d at 1007 (citing In re
Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that 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”)).
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The trial court determined that the facts of this case supported a
finding that termination would best serve Child’s needs and welfare. The
court opined:
Dr. Russell, who performed a bonding evaluation on
Mother and Child, testified that they have a definite bond,
but not a parental one. Mother has not been the primary
caretaker in Child’s life for over three and a half years.
More recently, Mother has not visited with Child in three
weeks because she was upset with CUA. Child has
developed a resilient and independent personality as a
result, and Dr. Russell testified that Child would not suffer
any irreparable harm if Mother’s parental rights were
terminated. Child has displayed fear of returning to
Mother’s care, and did not want to reunify with her.
Mother has not acknowledged Child’s past medical neglect
or the part Mother played in allowing Child’s condition to
worsen to life─threatening levels. Child has a strong,
loving bond with Foster Mother, who seeks to adopt Child.
Foster Mother provides for all of Child’s needs, including
her extensive medical needs. Child refers to Foster Mother
as “grandmom” and in the past expressed a desire to
remain with Foster Mother. It would be in Child’s best
interest to be adopted by foster Mother.
Trial Ct. Op. at 12.
After a careful review, we find the record supports the trial court’s
factual findings, and the court’s conclusions are not the result of an error of
law or an abuse of discretion with regard to Section 2511(b). See In re
S.P., 47 A.3d at 826-27. We defer to the trial court’s credibility
determinations. See id.; see also In re K.Z.S., 946 A.2d at 763-64. We,
therefore, affirm the order terminating Mother’s parental rights with regard
to Child under Sections 2511(a)(8) and (b).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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