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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.D.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: W.E.M., MOTHER : No. 889 EDA 2017
Appeal from the Order Entered February 8, 2017
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-000911-2015,
CP-51-DP-0000985-2014
IN THE INTEREST OF: S.M.M.-D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: W.E.M., MOTHER : No. 893 EDA 2017
Appeal from the Order Entered February 8, 2017
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-000820-2016,
CP-51-DP-0001467-2015
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 12, 2017
W.E.M. (“Mother”) appeals from the Decrees and Orders1 entered on
February 8, 2017, granting the Petitions filed by the Philadelphia Department
of Human Services (“DHS”) to involuntarily terminate her parental rights to
____________________________________________
1Although the consolidated caption refers to “Order,” Mother appeals from the
Decrees terminating her parental rights to her two children, and the Orders
changing their placement goals to adoption.
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her dependent female children, S.M.M.-D. a/k/a “S.D.” (born in May of 2015),
and S.D.M. (born in March 2010) (collectively, “Children”),2 pursuant to the
Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and to change
Children’s permanency goals to adoption pursuant to the Juvenile Act, 42
Pa.C.S.A. § 6351.3 Mother’s counsel, Edelina Schuman, Esquire (“Attorney
Schuman”), has filed with this Court a Motion for leave to withdraw as counsel
and a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We
affirm, and grant Attorney Schuman leave to withdraw.
In its May 23, 2017 Opinion, the trial court set forth the factual
background of this appeal, as follows:
On April 3, 2014, Children’s family became known to [DHS]
when [it] received a General Protective Services (“GPS”) Report
that alleged that Mother was unemployed, using drugs and had
been hospitalized at Friends Hospital. (Statement of Facts[,]
Petition to Terminate Parental Rights RE S[.]M[.,] Paragraph A).
On April 7, 2014, DHS received a supplemental report alleging
Mother[,] on a regular basis[,] would leave S[.]M[.] and her
siblings with a friend or family member for extended periods of
time. S[.]M[.]’s [siblings’] father[,] L[.]K[.,] … was incarcerated.
(Statement of Facts[,] Petition to Terminate Parental Rights RE
S[.]M[.,] Paragraph A).
On May 1, 2014, the Honorable Judge Jonathan Irvine
adjudicated the [c]hild[,] S.M.[,] dependent. (Statement of
____________________________________________
2Children have three siblings, S.M., S.M., and L.K., who were fathered by L.K.
These siblings are not subjects of this appeal. See N.T., 2/8/17, at 3-8.
3 In separate Decrees entered on February 8, 2017, the trial court terminated
the parental rights of K.M., who is the father of S.M.; R.D., who is the father
of S.D.; and any unknown father. No father, or unknown father, has filed an
appeal, nor is any such individual a party to the present appeal.
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Facts[,] Petition to Terminate Parental Rights RE S[.]M[.,]
Paragraph M)[.] On May 15, 2014, the Community Umbrella
Agency [(“CUA”)] developed a Single Case Plan (“SCP”). The
goals for Mother were (1) to participate in parenting classes; and
(2) to attend supervised visits with S.M. (Statement of Facts
Petition to Terminate Parental Rights RE S[.]M[.,] Paragraph N).
On July 25, 2014, the Clinical Evaluation Unit [(“CEU”)] completed
a Progress Report stating that Mother had tested positive for
marijuana (“THC”) on May 1, 2014 and May 28, 2014. (Statement
of Facts[,] Petition to Terminate Parental Rights RE S[.]M[.,]
Paragraph Q).
On August 12, 2014, CUA revised the SCP. The objectives
identified for Mother were (1) to submit to three random drug
screens prior to the next court hearing; (2) to attend all
recommended programs provided at the Achieving Reunification
Center (“ARC”); and (3) to attend all weekly visitations.
(Statement of Facts[,] Petition to Terminate Parental Rights RE
S[.]M[.,] Paragraph S). On January 9, 2015, CEU completed a
Progress Report stating that Mother had failed to contact CEU and
that Mother tested positive [THC] on October 23, 2014 and
December 12, 2014. (Statement of Facts[,] Petition to Terminate
Parental Rights RE S[.]M[.,] Paragraph V).
On May 30, 2015, DHS received a GPS report alleging that
[Mother had given] birth to S.D. (Statement of Facts[,] Petition
to Terminate Parental Rights RE S[.]M[.,] Paragraph Z). … At that
time[,] Mother was noncompliant with her SCP objectives and had
not consistently attended the ARC program. Mother again tested
positive for [THC] in February 2015. (Statement of Facts[,]
Petition to Terminate Parental Rights RE S[.]D[.,] Paragraph BB).
On June 2, 2015, DHS obtained an Order for Protective Custody
(“OPC”) for S.D.[,] who was placed in foster care. (Statement of
Facts[,] Petition to Terminate Parental Rights [RE] S[.]D[.,]
Paragraph CC). On June 12, 2015, S.D. was adjudicated
dependent. (Statement of Facts[,] Petition to Terminate Parental
Rights [RE] S[.]D[.,] Paragraph GG).
On July 7, 2015, the CEU completed a Progress report
stating that Mother had tested positive for [THC] on April 16,
2015, June 4, 2015 and June 12, 2015. (Statement of Facts[,]
Petition to Terminate Parental Rights RE S[.]D[.,] Paragraph HH).
On August 7, 2015, CUA revised the SCP. The objectives for
Mother were (1) to be evaluated by the CEU for dual diagnosis;
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(2) to submit a pay stub; (3) to comply with all court orders; (4)
to attend all recommended programs at the ARC program; (5) to
complete anger management classes; (6) to participate in mental
health treatment; (7) to participate in a drug and alcohol group;
[and] (8) to attend weekly visitation. (Statement of Facts[,]
Petition to Terminate Parental Rights RE S[.]D[.,] Paragraph LL).
On September 17, 2015, ARC completed a Parent/Caregiver
Status Report stating that Mother was referred for [a]nger
[m]anagement[,] but her referral was cancelled due to
noncompliance[,] and that Mother was inconsistent with receiving
mental health treatment. (Statement of Facts[,] Petition to
Terminate Parental Rights RE S[.]D[.,] Paragraph OO).
On January 20, 2016, DHS received a Child Protective
Services Report alleging that Mother was unemployed, [and]
suffering from depression, and that there was a history [of]
domestic violence between Mother and Father[,] L[.]K.
(Statement of Facts[,] Petition to Terminate Parental Rights RE
S[.]D[.,] Paragraph YY). On January 28, 2016, at a permanency
review hearing[,] the Honorable Jonathan Irvine ruled (1) []
Children remain committed; (2) a stay away order be entered
regarding Mother and Father L[.]K[.]; (3) that Mother lacked
adequate housing and that Mother had failed to attend anger
management classes and substance abuse treatment. (Statement
of Facts[,] Petition to Terminate Parental Rights RE S[.]D[.,]
Paragraph ZZ).
On or about September 7, 2016, DHS filed the underlying
Petition to terminate Mother’s Parental Rights to Children. At the
time of the filing of the [P]etition, Mother had failed to successfully
complete substance abuse treatment and she had constantly
rendered positive drug screens.
Trial Court Opinion, 5/23/17, at 1-5. Moreover, on September 8, 2016, DHS
filed Petitions to change the permanency goals for Children to adoption.4
____________________________________________
4The trial court docket reflects that DHS filed the termination Petitions on
September 8, 2016, as well.
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On February 8, 2017, the trial court held a hearing on the
termination/goal change Petitions. At the hearing, DHS presented the
testimony of Natasha Triplett (“Triplett”), the CUA Wordsworth case manager
assigned to the family. N.T., 2/8/7, at 3, 10. Mother, who was present at the
hearing and represented by Attorney Schuman, testified on her own behalf.
court-appointed child advocate[,] Lawrence Bistany, Esquire (“Child
Advocate”), was also present and participated at the hearing. Child Advocate
cross-examined Triplett. Id. at 28-29. After the hearing, the trial court
entered its Decrees and Orders involuntarily terminating Mother’s parental
rights to Children, and changing Children’s permanency goals to adoption. Id.
at 33-34.
On March 10, 2017, Mother simultaneously filed Notices of appeal and
Pa.R.A.P. 1925(b) Concise Statements of matters complained of on appeal,
from the termination Decrees and goal change Orders. On April 7, 2017, this
Court, acting sua sponte, consolidated the appeals.
On August 3, 2017, Attorney Schuman filed her Motion for leave to
withdraw as counsel and an Anders brief. In the Anders brief, Attorney
Schuman raises the following issues:
1. Whether the trial court committed reversible error, when it
involuntarily terminated [M]other’s parental rights where such
determination was not supported by clear and convincing evidence
under the adoption act, 23 P[a].C.S.A. § 2511(a)(1), (2), (5) and
(8)[?]
2. Whether the trial court committed reversible error when it
involuntarily terminated [M]other’s parental rights without giving
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primary consideration to the effect that the termination would
have on the developmental, physical and emotional needs of
[Children,] as required by the [A]doption [A]ct, 23 P[a].C.S.A.
§ 2511(b)[?]
3. Whether[] the trial court erred because the evidence was
overwhelming and undisputed that [M]other demonstrated a
genuine interest and sincere, persistent, and unrelenting effort to
maintain a parent-child relationship with [Children?]
Anders Brief at 5 (unpaginated).
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record . . ., counsel
has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support
the appeal. . .; and
(3) furnish a copy of the brief to defendant and advise him of his
right to retain new counsel, proceed pro se, or raise any additional
points he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).5
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief
(1) provide a summary of the procedural history and facts, with
citations to the record;
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5 In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. “When considering an Anders brief, this Court may not
review the merits of the underlying issues until we address counsel’s request
to withdraw.” In re S.M.B., 856 A.2d at 1237.
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(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. “After an appellate court receives an Anders
brief and is satisfied that counsel has complied with the aforementioned
requirements, the Court then must undertake an independent examination of
the record to determine whether the appeal is wholly frivolous.” In re S.M.B.,
856 A.2d at 1237.
Attorney Schuman has complied with each of the requirements of
Anders. Attorney Schuman indicates that she has conscientiously examined
the record and determined that an appeal would be frivolous. Further,
Attorney Schuman’s Anders brief comports with the requirements set forth
by the Supreme Court of Pennsylvania in Santiago. Finally, attached to
Attorney Schuman’s Motion for leave to withdraw is a copy of her letter to
Mother, dated August 3, 2017, advising Mother of her right to proceed pro se
or retain alternate counsel, and stating Attorney Schuman’s intention to seek
permission to withdraw. Accordingly, Attorney Schuman has complied with
the procedural requirements for withdrawing from representation, and we will
proceed with our own independent review.
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In the Anders brief, Attorney Schuman contends that the trial court
abused its discretion or erred as a matter of law in concluding that DHS
presented clear and convincing evidence that was sufficient to support the
involuntary termination of Mother’s parental rights under section 2511(a)(1),
(2), (5), (8), and (b). Anders Brief at 13-16, 21-22 (unpaginated). Attorney
Schuman likewise contends that there was insufficient evidence to support the
change of the permanency goal to adoption. Id. at 13-14, 21-22
(unpaginated).6
____________________________________________
6 Mother has waived any challenge to the change of Children’s permanency
goal to adoption under 42 Pa.C.S.A. § 6351 by failing to raise the issue in her
Concise Statement and Statement of Questions Involved in her brief. See
Krebs v. United Ref. Co. of PA, 893 A.2d 776, 797 (Pa. Super. 2006)
(holding that an appellant waives issues that are not raised in both his concise
statement of errors complained of on appeal and the Statement of Questions
Involved in his brief on appeal). However, Attorney Schuman challenges
whether DHS made reasonable efforts to reunify Children with Mother, and
challenges the goal change in the Summary of Statement in Support of
Withdrawal of Counsel portion of the Anders brief. See Anders Brief at 10.
Even if Mother had not waived the issue for this reason, this Court has stated,
“[o]nce counsel has satisfied the above requirements [for a motion to
withdraw and Anders brief], it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(following Goodwin). Thus, we may address whether DHS established the
grounds for the termination and the goal change to adoption, and the related
argument concerning whether DHS used reasonable efforts to reunify Mother
with Children, raised by Attorney Schuman in her Anders brief, as part of our
independent review.
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We will review the Decrees and Orders together, as did the trial court in
its Opinion. In reviewing an appeal from a decree 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. As in dependency
cases, our 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. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). 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.; [In re:] R.I.S., 36 A.3d
[567,] 572 [(Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion. Id.;
see also Samuel Bassett v. Kia Motors America, Inc., 613 Pa.
371[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838
A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed
for an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there 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. R.J.T., 9 A.3d at 1190.
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 Atencio, 650 A.2d 1064, 1066
(Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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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 internal quotation marks omitted).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a). See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Section 2511
provides, in relevant part, 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:
***
(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
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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 Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds
for termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
…
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.
In re Adoption of S.P., 47 A.3d at 827 (citations omitted).
This Court has long recognized that 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.
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This Court has stated that the focus in terminating parental rights under
section 2511(a) is on the parent, but it is on the child pursuant to section
2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super
2008) (en banc). In reviewing the evidence in support of termination under
section 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.[A.] § 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.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances … where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
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A parent’s abuse and neglect are likewise a relevant part of this analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is 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 [his or her] 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) (internal 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 at 763-64 (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).
Our standard of review in a dependency case is as follows:
“The standard of review in dependency cases requires an appellate
court to accept findings of fact and credibility determinations of
the trial court if they are supported by the record, but does not
require the appellate court to accept the lower court’s inferences
or conclusions of law.” In re R.J.T., 608 Pa. 9, [27], 9 A.3d 1179,
1190 (Pa. 2010). We review for abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
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Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of the
child.
When considering a petition for goal change for a dependent child, the
trial court considers
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made
towards alleviating the circumstances which necessitated
the original placement; the appropriateness and feasibility
of the current placement goal for the child; and, a likely date
by which the goal for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citing 42 Pa.C.S.A.
§ 6351(f)).
Additionally, Section 6351(f.1) requires the trial court to make the
following additional determination regarding the child’s placement goal:
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine
one of the following:
* * *
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental
rights in cases where return to the child’s parent,
guardian or custodian is not best suited to the safety,
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protection and physical, mental and moral welfare of the
child.
42 Pa.C.S.A. § 6351(f.1)(2).
On the issue of a placement goal change, this Court has stated that,
[w]hen a child is adjudicated dependent, the child’s
proper placement turns on what is in the child’s best
interest, not on what the parent wants or which goals the
parent has achieved. See In re Sweeney, 393 Pa. Super.
437, 574 A.2d 690, 691 (1990) (noting that “[o]nce a child
is adjudicated dependent . . . the issues of custody and
continuation of foster care are determined by the child’s
best interests”). Moreover, although preserving the unity of
the family is a purpose of [the Juvenile Act], another
purpose is to “provide for the care, protection, safety, and
wholesome mental and physical development of children
coming within the provisions of this chapter.” 42
Pa.C.S.[A.] § 6301(b)(1.1). Indeed, “[t]he relationship of
parent and child is a status and not a property right, and
one in which the state has an interest to protect the best
interest of the child.” In re E.F.V., 315 Pa. Super. 246, 461
A.2d 1263, 1267 (1983) (citation omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
The trial court addressed the sufficiency of the evidence to support the
termination under section 2511(a)(2) and (b), and the change of permanency
goal to adoption, as follows:
S.M. was adjudicated dependent on May 1, 2014. S.D. was
adjudicated dependent on June 12, 2015. The record
demonstrated Mother’s ongoing unwillingness to provide care or
control for [] Children; [and/or] to perform any parental duties
and a failure to remedy the conditions that brought [] Children
into care. The [c]ourt found clear and convincing evidence that
termination of Mother’s parental rights would be in the best
interest of [] Children pursuant to 23 Pa.C.S.[A.] §§ 2511(a)(1),
(2), (5) and (8) and 23 Pa.C.S.[A.] § 2511(b).
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At the Termination Hearing, the CUA Representative
testified that the SCP objectives for Mother were that she obtain
anger management counseling, parenting counseling, alcohol and
drug treatment[, and] mental health treatment[,] and that she
regularly visit [] Children. (N.T.[,] February 8, 2017[,] Page 11.)
The CUA Representative testified that Mother never completed
anger management courses and that she had been discharged
from ARC eleven (11) times for non-compliance. (N.T.[,]
February 8, 2017[,] Page 13). The CUA Representative testified
that Mother had failed to complete alcohol and drug treatment
(N.T.[,] February 8, 2017 Page 16)[,] and consistently provided
positive drug screens. Mother tested positive for [THC] on April
18, 2016, August 22, 2016 and August 30, 2016. (N.T.[,]
February 8, 2017[,] Page 22). Mother testified at the hearing that
she had not completed drug and alcohol counseling and mental
health treatment. (N.T.[,] February 8, 2017[,] Page 30).
Regarding Child S[.]M[.], the CUA Representative testified
that S[.]M[.] attended behavioral therapy and that S[.]M[.] had
been moved eight (8) times from foster homes due to behavioral
issues. (N.T.[,] February 8, 2017[,] Page 24-25). The CUA
Representative testified that S[.]M[.] attended her individual
behavioral therapy sessions with her foster parent. The CUA
Representative testified that S[.]M[.]’s behavior improved as [a]
result of the care of her foster parent[,] who was actively involved
with S[.]M[.]’s therapy. As a result, the CUA Representative was
able to testify that it was in the best interests of [the child] that
S[.]M[.]’s goal be changed to adoption[,] and that no irreparable
harm would result to the child if Mother’s parental rights were
terminated. (N.T.[,] February 8, 2017[,] Page 24-25). Regarding
S[.]D[.], the CUA Representative also testified that it would be in
S[.]D[.]’s best interest if S[.]D[.]’s goal was changed to
adoption[,] and that S[.]D[.,] would not suffer irreparable harm if
Mother’s parental rights were terminated and that S[.]D[.,] was
in a suitable pre-adoptive home. (N.T.[,] February 8, 2017[,]
Pages 24-25).
This [c]ourt found the testimony of the CUA Representative
to be credible and accorded it great weight. Based upon this
testimony and the documents in evidence, this [c]ourt found clear
and convincing evidence to terminate Mother’s parental rights
pursuant to 23 Pa.C.S.[A.] §§ 2511(a)(1)[,] (2)[,] (5)[,] and
(8)[,] as Mother [had] failed to remedy the conditions that
brought [] Children into care. The [c]ourt further concluded that
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the termination of [Mother’s] parental rights would be in the best
interest of Children pursuant to 23 Pa.C.S.[A.] § 2511(b). This
[c]ourt concluded that the pre-adoptive foster parents were able
to meet the needs of each child.
CONCLUSION
This [c]ourt, after review of the findings of fact and the
testimony presented during the Termination Hearing on February
8, 2017, finds clear and convincing evidence to terminate Mother’s
parental rights pursuant to 23 Pa.C.S.[A.] [§] 2511(a) … (2) ….
This [c]ourt further finds[,] pursuant to 23 Pa.C.S.[A.] [§]
2511(b), [that] termination of [Mother’s] parental rights would
not have a detrimental effect on [the] Children and would be in []
Children’s best interest.
Trial Court Opinion, 5/23/17, at 6-8 (footnotes omitted).
After a careful review of the record, we agree with the trial court’s
determination that termination of Mother’s parental rights to Children is
warranted pursuant to section 2511(a)(2), as Mother clearly lacks parental
capacity, and the evidence showed that she will be unable to remedy that
situation within a reasonable period of time, if ever. See In re E.M., 620
A.2d at 484 (stating that “[a] parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to perform the duties.”)
(citation omitted).
Additionally, the contention in the Anders brief, i.e., that DHS did not
make reasonable efforts to reunify Children with Mother, lacks merit. Our
Supreme Court has rejected the argument that the provision of reasonable
efforts by the county children’s services agency is a factor in termination of
the parental rights of a parent to a child. See In the Interest of: D.C.D., a
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Minor, 105 A.3d 662, 673-74, 676 (Pa. 2014) (rejecting the suggestion that
an agency must provide reasonable efforts to enable a parent to reunify with
a child prior to the termination of parental rights, and rejecting the suggestion
that section 2511 of the Adoption Act should be read in conjunction with
section 6351 of the Juvenile Act, particularly section 6351(f)(9)(iii)).
Our review further discloses that there is competent evidence in the
record that supports the trial court’s findings and credibility determinations
with regard to section 2511(b). The evidence additionally showed that the
termination of Mother’s parental rights will best serve Children’s
developmental, physical and emotional needs and welfare. Finally, there is
no evidence of a bond between Mother and Children that is worth preserving,
or that they will suffer irreparable harm from the termination of Mother’s
parental rights.
“[A] parent’s basic constitutional right to the custody and rearing of …
her child is converted, upon the failure to fulfill … her parental duties, to the
child’s right to have proper parenting and fulfillment of [the child’s] potential
in a permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847,
856 (Pa. Super. 2004) (internal citations omitted). “[W]e will not toll the well-
being and permanency of [a child] indefinitely.” In re Adoption of 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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Further, this Court has held that a parent’s love of his child, alone, does not
preclude a termination. See In re L.M., 923 A.2d 505, 512 (Pa. Super. 2007)
(stating that a parent’s own feelings of love and affection for a child, alone,
will not preclude termination of parental rights).
Accordingly, we find no abuse of discretion by the trial court in
terminating Mother’s parental rights to Children under section 2511(a)(2) and
(b). In re Adoption of S.P., 47 A.3d at 826-27. We, therefore, affirm the
termination Decrees. Further, our review discloses sufficient evidence in the
record to support the trial court’s change of Children’s permanency goals to
adoption pursuant to section 6351 of the Juvenile Act. Accordingly, we affirm
the goal change Orders. Moreover, as we cannot find any additional
meritorious issues in the record, and we agree with Attorney Schuman that
Mother’s appeal is frivolous, we grant Attorney Schuman’s Motion for leave to
withdraw from representation.
Motion granted. Decrees and Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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In the Interest of: S.D.M., a Minor
Combined Opinion