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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.N.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.W., MOTHER
No. 1263 EDA 2017
Appeal from the Order Entered March 20, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000058-2017
CP-51-DP-0000884-2015
IN THE INTEREST OF: K.N.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.W., MOTHER
No. 1267 EDA 2017
Appeal from the Order Entered March 20, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000059-2017
CP-51-DP-0000838-2015
BEFORE: BENDER, P.J.E., MUSMANNO and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 19, 2018
C.W. (Mother) appeals from the March 20, 2017 orders that granted
the petitions filed by the Philadelphia Department of Human Services (DHS)
to involuntarily terminate her parental rights to K.N.B. (born in February of
2006) and K.N.W. (born in September of 2012) (collectively Children).1
Additionally, the goals for Children were changed to adoption. We affirm.
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1
Mother’s appeals were consolidated by this Court sua sponte by order
dated May 9, 2017.
*Former Justice specially assigned to the Superior Court.
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In its opinion, the trial court set forth the factual and procedural
history of this case, as follows:
On September 25, 2012, the Department of Human Services
(DHS) received a General report which stated that K.N.B. and
K.N.W's mother tested positive for marijuana and cocaine at
K.N.[W.]’s birth [i]n September [of] 2012. The report stated
Mother admitted using marijuana regularly during her pregnancy
but denied cocaine use. K.N.[W.] was born three weeks
premature at 36 weeks gestation and weighed four pounds and
ten ounces. The report stated in early September 2012, Mother
was admitted to the hospital suffering from preterm labor;
Mother tested positive for marijuana at that time. Mother was
referred to Chances drug and alcohol treatment program and did
not follow through with the drug and alcohol treatment. The
report stated K.N.B. was being cared for by [C]hildren’s Maternal
… Grandmother while Mother was hospitalized. Mother and
K.N.B. and K.N.W resided with Grandmother. Mother agreed to
accept Child Abuse Prevention and Treatment Act (CAPTA)
services and was referred for community-base[d] prevention
services with Health Federation implementing voluntary services.
On April 1, 2015, DHS received a General Protective Services
(GPS) report which alleged that the Philadelphia Police
responded to a disturbance complaint at Mother’s residence.
Mother was observed to be unresponsive and under the influence
of heroin. The report alleged [] it took Philadelphia Police seven
minutes to revive Mother to a conscious state. K.N.W was in
Mother’s care. The report alleged Mother resided in [a] rooming
house and there were two additional adults in the room who
were under the influence of narcotics. The report indicated the
room was unkempt. K.N.W. was clothed in only a diaper and
was without adult supervision. The report further alleged once
Mother regained consciousness, she was observed by
Philadelphia Police picking up K.N.W. by his hair [and]
attempting to flee the room. The report was determined to be
valid.
On April 1, 2015, DHS received a supplemental report which
alleged Mother escaped the rooming house and took K.N.W. to
Maternal Grandmother’s home. Police located K.N.W. at
Maternal [G]randmother’s home and transported both to DHS.
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DHS spoke with Maternal Grandmother, who stated she was
willing and able to care for K.N.W. and did not believe Mother
was capable of caring for K.N.W. The report alleged K.N.B. had
been in her care for three years. DHS discussed kinship services
with Maternal Grandmother.
On April 1, 2015, DHS completed a home evaluation of
Grandmother’s home and found the home to be compliant for
K.N.B. and K.N.W. DHS obtained an Order of Protective Custody
(OPC) for K.N.W. and placed him with Grandmother.
At the Shelter Care hearing for K.N.W. held on April 3, 2015, the
[c]ourt lifted the OPC and ordered the temporary commitment of
custody of K.N.W. to DHS to stand.
On April 6, 201[5], DHS filed an urgent petition for K.N.B.
Mother had a history of drug use and lacked stable and
appropriate housing.
On April 13, 2015, the [c]ourt deferred adjudication, ordered the
temporary commitment to DHS to stand as to K.N.W., ordered
Mother was not permitted to visit K.N.W. and K.N.B. in the home
of Maternal Grandmother. The [c]ourt further ordered Mother to
the Clinical Evaluation [Unit] (CEU) for a drug screen,
assessment and monitoring with dual diagnosis.
At the Adjudicatory Hearing held on April 20, 2015, the [c]ourt
discharged the temporary commitment on K.N.W. The [c]ourt
adjudicated K.N.B. and K.N.W. dependent and committed
[C]hildren to DHS. The [c]ourt further ordered DHS to refer
Mother for a GED program, re-referred Mother to CEU for a drug
and alcohol screen, assessment with dual diagnosis, [and]
monitoring. Mother was ordered to sign releases, to comply with
all services and recommendations. Mother was also court-
ordered … to continue treatment at Best Behavioral Health.
On May 26, 2015, an initial Single Case Plan (SCP) was created.
The objectives for Mother were to achieve recovery from drug[s]
and alcohol, to continue at NHS three times a week for individual
and group therapy, to continue at Best Behavioral Health for
individual therapy once a week, to provide stable housing, to
attend the Achiev[]ing Reunification Center (ARC) and comply
with the program, to maintain the relationship with [C]hildren, to
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continue supervised visits at the agency twice a month, to
achieve age appropriate development and skills and to continue
with ChildLink services twice a week in the home for speech
therapy.
On July 13, 2015, the [c]ourt referred Mother to CEU for an
assessment and a drug screen with three random drug screens
prior to the next court date.
On September 1, 2015, a revised SCP was created. The
objectives for Mother were to achieve recovery from drug[s] and
alcohol; to continue at NHS three times a week for individual and
group therapy; to continue at Best Behav[ioral] Health for
individual therapy once a week; to maintain a relationship with
[C]hildren; to continue supervised visits at the agency twice a
month; to achieve age-appropriate development and skills[;]
and to continue with Childlink services twice a week in the home
for speech therapy.
On October 6, 2015, it was reported that on September 22, 2015
Mother tested positive at NHS for marijuana. The Court referred
Mother to CEU for a full drug and alcohol screen and three
randoms prior to the next court date.
On February, 26, 2016, a revised SCP was created. The
objectives [were] for Mother to achieve recovery from drug and
alcohol[;], to continue at NHS three times a week for individual
and group therapy; to maintain a relationship with her children;
to continue with unsupervised liberal visits; to provide stable
housing[;] to stabilize her mental health and to continue
individual therapy once a week at Best Behavioral Health.
On March 22, 2016, the [c]ourt referred Mother to CEU for [a]
drug screen and monitoring to include three random drug
screens prior to the next court date, and ordered that visitation
with Mother was modified to supervised visits.
On June 23, 2016, it was reported that there had been no
compliance with the permanency plan by Mother. The [c]ourt
ordered Mother to have supervised visits at DHS only, [and]
ordered Mother [to] confirm visits 24 hours in advance. The
[c]ourt further ordered Mother was not permitted unauthorized
contact with K.N.B. and K.N.W. Mother was re-referred to CEU
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for drug and alcohol screens, assessments, dual diagnosis
monitoring, and three random drug screens.
On November 17, 2016, it was reported there had been minimal
compliance with the permanency plan by Mother. The [c]ourt
ordered Mother to call and confirm her visits 24 hours in
advance. The [c]ourt referred Mother to CEU for monitoring,
dual diagnosis and three random drug screens.
The matter was the listed on a regular basis before judges of the
Philadelphia Court of Common Pleas, Family Court Division-
Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42
Pa.C.S.[] § 6351, and evaluated for the purpose of reviewing the
permanency plan of [Children].
In subsequent hearings, the Dependency Review Orders reflect
the [c]ourt’s review and disposition as a result of evidence
presented, primarily with the goal of finalizing the permanency
plan.
On March 20, 2017, during the Termination of Parental Rights
Hearing for Mother, the [c]ourt found by clear and convincing
evidence that Mother’s parental rights [to] K.N.B. and K.N.W.[]
should be terminated pursuant to the Juvenile Act. Furthermore,
the [c]ourt held it was in the best interest of [C]hildren that the
goal be changed to Adoption.
Trial Court Opinion (TCO), 8/16/17, at 1-3.
In its opinion, the trial court also discussed the basis for its decision to
involuntarily terminate Mother’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), (8) and (b), and to change the goal to adoption. It
sets forth facts gleaned from the documentation and testimony presented at
the March 20, 2017 hearing and suggests that this Court should affirm its
decision.
In Mother’s brief, she raises the following issues for our review:
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1. Did the [t]rial [c]ourt err in terminating [Mother’s] parental
rights under 23 Pa.C.S. Section 2511(a)(1), 2511(a)(2),
2511(a)(5), and 2511(a)(8)?
2. Did the [t]rial [c]ourt err in finding that termination of
[M]other’s parental rights best served the [Children’s]
developmental, physical and emotional needs under 23
Pa.C.S. Section 2511(b)?
3. Did the [t]rial [c]ourt err in changing the [C]hildren’s goal to
adoption?
Mother’s brief at vi.
We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree
must stand. Where a trial court has granted a petition to
involuntarily terminate parental rights, this Court must accord
the hearing judge’s decision the same deference that we would
give to a jury verdict. We must employ a broad, comprehensive
review of the record in order to determine whether the trial
court’s decision is supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
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. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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
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conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super.
2004). If 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).
We are guided further by the following: Termination of parental rights
is governed 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 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,
other 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. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
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emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
As noted above, the trial court terminated Mother’s parental rights
pursuant to section 2511(a)(1), (2), (5), (8) and (b). In order to affirm, we
need only agree with the trial court as to any one subsection of section
2511(a), as well as section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). Mother’s brief provides argument regarding all four
subsections of section (a). We have chosen to address and analyze the
court’s decision to terminate Mother’s parental rights under section
2511(a)(1) and (b), which provide:
(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.
***
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(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. § 2511(a)(1), (b).
In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided
direction relating to what considerations need to be addressed when
reviewing a trial court’s decision to terminate parental rights under various
subsections of 2511(a). Specifically, relating to subsection (a)(1), the Z.P.
Court stated:
A court may terminate parental rights under Section 2511(a)(1)
where the parent demonstrates a settled purpose to relinquish
parental claim to a child or fails to perform parental duties for at
least the six months prior to the filing of the termination petition.
In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court
should consider the entire background of the case and not
simply:
mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all
explanations offered by the parent facing termination
of his … parental rights, to determine if the evidence,
in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
denied, 582 Pa. 718, 872 A.2d 1200 (2005) (citing In re D.J.S.,
737 A.2d 283 (Pa. Super. 1999)).
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In re Z.P., 994 A.2d at 1117 (emphasis in original).
Relating to Mother’s argument addressing subsection (a)(1), her brief
simply provides a recitation of the law and then she claims the following:
In this case, [M]other had consistently visited with the
[C]hildren. Mother was active in mental health treatment, and
she had attended drug and alcohol treatment until it interfered
with her work times. Mother was employed full time and had
housing. In addition, [M]other’s drug screens were negative.
Mother’s brief at 4.
In discussing the facts relating to section 2511(a)(1), the trial court
stated:
In the instant matter, the social worker testified the case
became known to the agency due to a visit to Mother’s home by
Philadelphia Police. The social worker testified Mother was found
unconscious by the Philadelphia Police. K.N.W. was found by the
Philadelphia Police walking around unattended.
Social worker testified Mother was offered and failed to be
consistent with drug and alcohol treatment and mental health
treatment. Social worker testified Mother failed to attend Clinical
Evaluation Unit (CEU) for random drug screens as per court
order. Mother admitted in her testimony, she failed to comply
with the court ordered drug screens at CEU. Mother had not
participated in drug screens in over a year. Furthermore, social
worker testified Mother’s last screen tested positive high for
alcohol. Mother testified she refused to take prescribed
medication for depression.
. . .
In the present matter, during the twenty three months (23)
K.N.B. and K.N.W. have been in DHS care, testimony of social
worker stated Mother’s Single Case Plan objectives remained the
same due to lack of progress. Furthermore, social worker
testified Mother failed to provide verification of completion or
progress in any kind of drug, alcohol or mental health treatment.
However, Mother participated in visits only missing a few visits.
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TCO at 4, 5 (citations to the notes of testimony omitted). Essentially, the
trial court found that Mother failed to complete most of the objectives during
the two-year period, in particular, those dealing with her drug, alcohol and
mental health problems, although she did comply with the visitation
objective. Notably, the court found the social worker credible, but that
Mother’s testimony lacked credibility.
Likewise, with regard to Mother’s second issue, relating to subsection
2511(b), Mother sets forth the applicable law, but merely relies on the fact
that she complied with the visitation schedule with Children and that those
visits “were appropriate.” Mother’s brief at 7. However, the court found
that Children were “dependent on and bonded with their foster parent[;]”
that Children’s “basic needs were being met by their foster parent[;]” and
that Children “would suffer no irreparable harm if Mother’s rights were
terminated.” TCO at 6.
Our thorough review of the record reveals that the trial court did not
abuse its discretion in ordering the termination of Mother’s parental rights.
The record supports the court’s findings and conclusion that Mother’s refusal
or failure to perform parental duties occurred for a period of at least six
months (in fact, for at least 23 months) prior to the filing of the petition.
Moreover, the evidence shows that Children have bonded with foster parent,
who satisfies their needs, and “is the focal point of stability and permanency
for Children.” Id. at 6. Additionally, we note that a child’s life “simply
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cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” In re Z.S.W., 946 A.2d. 726, 732
(Pa. Super. 2008) (citation omitted). “[A] parent’s basic constitutional right
to the custody and rearing of [his or her] 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 at 856. Since Mother has not
convinced us otherwise, we conclude that she is not entitled to any relief.
Lastly, we address Mother’s third issue concerning the goal change to
adoption for Children. The trial court determined that based on the record a
goal change to adoption was in Children’s best interests. Mother again set
forth the law relating to a goal change and then simply argues that:
Mother was complying with her FSP objectives. Moreover,
[M]other had always visited with the [C]hildren throughout the
life of this case. The [C]hildren looked to [M]other for comfort,
security, love and support. It is in these [C]hildren’s best
interest to be with their [M]other, and the goal should not have
been changed to adoption.
Mother’s brief at 8.
This Court’s standard of review involving a goal change for a
dependent child is as follows:
In cases involving a court’s order changing the placement
goal … to adoption, our standard of review is abuse of discretion.
In re N.C., 909 A.2d 818, 822 (Pa. Super. 2006). To hold that
the trial court abused its discretion, we must determine its
judgment was “manifestly unreasonable,” that the court
disregarded the law, or that its action was “a result of partiality,
prejudice, bias or ill will.” Id. (quoting In re G.P.-R., 851 A.2d
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967, 973 (Pa. Super. 2004)). While this Court is bound by the
facts determined in the trial court, we are not tied to the court’s
inferences, deductions and conclusions; we have a “responsibility
to ensure that the record represents a comprehensive inquiry
and that the hearing judge has applied the appropriate legal
principles to that record.” In re A.K., 906 A.2d 596, 599 (Pa.
Super. 2006). Therefore, our scope of review is broad. Id.
In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008).
Pursuant to the Juvenile Act, 42 Pa.C.S. § 6351(f), when considering a
petition for goal change for a dependent child, the juvenile court is to
consider, inter alia: (1) the continuing necessity for and appropriateness of
the placement; (2) the extent of compliance with the family service plan; (3)
the extent of progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and feasibility
of the current placement goal for the children; and (5) a likely date by which
the goal for the child might be achieved. In re S.B., 943 A.2d at 977. The
best interests of the child, and not the interests of the parent, must guide
the trial court. Id. at 978
Our review of the record in this case and the statutory directives
governing a goal change support the conclusion that reunification of Children
with Mother is not a realistic goal. Mother is primarily seeking to have this
Court reweigh the evidence in a light more favorable to her. However, it is
beyond our purview to disturb the credibility determinations of the trial court
when the testimony relied upon is supported in the record. The trial court
was free to conclude that Mother was unlikely to remedy the issues in the
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near future; thus, the permanency needs of Children dictate changing their
goal to adoption. We are compelled to conclude that the trial court did not
err in ordering the change of goal to adoption.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
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