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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.D.W., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
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APPEAL OF: N.A.O., MOTHER :
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: No. 2946 EDA 2017
Appeal from the Order Entered August 8, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001185-2016
IN THE INTEREST OF: Y.N.S.O.-P., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
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APPEAL OF: N.A.O., MOTHER :
:
:
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: No. 2948 EDA 2017
Appeal from the Order Entered August 8, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001186-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 24, 2018
N.A.O. (“Mother”) appeals the decrees entered August 8, 2017 that
granted the petitions filed by the Philadelphia Department of Human Services
(“DHS” or the “Agency”) seeking to involuntarily terminate her parental rights
to her children, Y.N.S.O.-P. (a female born in October 2005) and T.D.W., Jr.,
(a male born in March 2011) (collectively the “Children”) pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and to change
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the Children’s permanency goal to adoption pursuant to 42 Pa.C.S. § 6351.1
We affirm.
In its opinion, the trial court set forth the following procedural history
and factual background regarding this appeal.
On September 5, 2014, [DHS] received a General Protective
Services (“GPS”) report which alleged that the Children were
fearful of T.D.W., Jr.’s father[, T.W.,] (“Father”) and that Father
was physically abusive towards the Mother (“Mother”) and
Children. (Statement of Facts Y.N.S.O.-P. Paragraph A). On or
around September 9, 2014, DHS visited the family’s home.
During this visit, Y.N.S.O.-P. told DHS that Father was abusive
towards Mother. (Statement of Facts Y.N.S.O.-P. Paragraph 13).
On November 6, 2014, DHS held a Family Service Plan (“FSP”)
meeting. The goal identified for the Children was to remain in the
home. The objectives identified for Mother were (1) to participate
in individual, marital and family counseling; (2) [to] not use
physical violence or threats to resolve family conflicts; (3) to
participate in a mental health evaluation; (4) to comply with all
treatment recommendations including therapy and/or medication
as prescribed and (5) to sign authorizations to allow the Children
and Youth Division (“CYD”) to obtain copies of evaluations and
progress reports. (Statement of Facts Y.N.S.O.-P. Paragraph I).
On April 1, 2015, DHS received a GPS report alleging that during
a family outing on March 28, 2015, Mother hit Y.N.S.O-P.
(Statement of Facts Y.N.S.O.-P. Paragraph Q). On April 7, 2015,
DHS sought to interview Y.N.S.O.-P[.] to discuss the alleged
incident. Thereafter, DHS received verbal threats from Mother
____________________________________________
1 On August 8, 2017, the trial court also terminated the parental rights of
T.W., the putative father of T.D.W., Jr., and provided that the goal was
changed to adoption. In a separate decree entered on that same date, the
trial court terminated the parental rights of W.S.J.P., the putative father of
Y.N.S.O.-P., and provided that the goal was changed to adoption. Neither
T.W. nor W.S.J.P., nor any other putative father, is a party to the present
appeal, nor has any such putative father filed a separate appeal.
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and Father about DHS[’] involvement. (Statement of Facts
Y.N.S.O.-P. Paragraph S).
On April 13, 2015, an emergency motion was submitted by DHS
resulting in DHS obtaining an Order for Protective Custody for the
Children. (Statement of Facts Y.N.S.O.-P. Paragraph X.)
Thereafter, on April 13, 2015, DHS took protective custody of
Y.N.S.O.-P. at her school with police assistance. (Statement of
Facts Y.N.S.O.-P. Paragraph X). When Mother arrived at the
school to learn that Y.N.S.O.-P. was being taken into protective
custody by DHS, Mother refused to tell DHS the whereabouts of
[the] [c]hild[’s] [s]ibling T.D.W[., Jr.] and became combative with
DHS and the police. She eventually bit a police officer.
(Statement of Facts Y.N.S.O.-P. Paragraph Y).
On April 13, 2015, Father provided false information to school
about the whereabouts of T[.]D[.]W., Jr. Thereafter, DHS learned
that T.D.W., Jr. was at the family home with Father. Father
refused to allow DHS and the police access to the family home.
DHS obtained a break down order and removed T.D.W., Jr. from
the home. (Statement of Facts Y.N.S.O.-P. Paragraph Z).
Thereafter, on April 14, 2015, Mother was arrested and charged
with Aggravated Assault, Terroristic Threats, Recklessly
Endangering Another Person and Resisting Arrest for biting the
police officer on April 13, 2015. (Statement of Facts Y.N.S.O.-P.
Paragraph BB).
On June 23, 2015, Mother and Father appeared before the
Honorable Judge Jonathan Irvine for an adjudicatory hearing after
which the Children were adjudicated dependent. (Statement of
Facts Y.N.S.O.-P. Paragraph GG)[.] Thereafter, on August 3,
2015, the Community Umbrella Agency (“CUA”) revised the Single
Case Plan (“SCP”). The objectives identified for Mother were (1)
to continue attending individual therapy sessions; (2) to address
anger management; (3) to resolve issues of domestic violence;
(4) to confirm and attend weekly visits with the Children; (5) to
participate in a Family Group Decision Making (“FGDM”); and (6)
to participate in a Parenting Capacity Evaluation (“PCE”).
(Statement of Facts T.D.W., Jr. Paragraph EE).
On February 9, 2016, Dr. Erica Williams, Psy.D.[,] and Samantha
Peterson, M.A. conducted a PCE with Mother that recommended:
(1) Mother attend weekly therapy with an individual trained in
providing trauma focused [counseling]; (2) Mother develop a
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financial plan to provide for herself and the Children to include the
provision of housing separate from the [f]ather; (3) Child, T.D.W.,
Jr. to enroll in individual therapy; (4) and that visitation between
the Mother and Children be supervised. (Statement of Facts
T.D.W., Jr. Paragraph LL).
In May 2016, CUA learned that Mother uploaded a GoFundMe
account asking for money. Mother stated on social media that she
was in an abusive relationship. (Statement of Facts T.D.W., Jr.
Paragraph QQ). On September 9, 2016, CUA revised SCP for
Mother. The objectives identified for Mother were (1) to continue
attending individual therapy sessions; (2) to engage in family
therapy upon [sic]; (3) to follow all recommendations of the . . .
[PCE]; (4) to continue to participate in the domestic violence
program known as Women in Transition; (5) to attend weekly
individual and group trauma therapy; (6) to have no contact with
the Children until further action of the [c]ourt; (7) to attend the
Women’s Empowerment Program and (8) to attend Anger
Management Counseling. On August 18, 2016, following a
permanency review hearing [the trial c]ourt issued an order
stipulating that Mother was to not visit the Children based on her
ongoing anger issues and abusive behavior towards [C]hildren,
DHS, CUA Workers and foster parents.
On or about December 5, 2016, DHS filed the underlying [p]etition
to [t]erminate the [p]arental [r]ights of Mother and Father.
Trial Court Opinion, 11/17/17, at 1-5.
On August 8, 2017, the trial court held a hearing on the termination/goal
change petitions. Mother was present at the hearing, and was represented by
counsel, Attorney James Demarco. Additionally, Attorney Michael Graves was
present as the Child Advocate for the Children, and Attorney Lee Kuhlmann
was present as the guardian ad litem for the Children. Father’s counsel,
Ashley Sullivan, was present, as well.
On August 8, 2017, the trial court entered the decrees terminating
Mother’s parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(1),
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(2), (5), (8), and (b), and changing their permanency goal to adoption
pursuant to 42 Pa.C.S. § 6351.2 Also on August 8, 2017, Mother, acting pro
se, timely filed her notices of appeal, along with concise statements of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).3 On September
20, 2017, Mother’s counsel filed supplemental concise statements on her
behalf. On October 3, 2017, this Court, acting sua sponte, consolidated the
appeals.4
In her brief on appeal, Mother raises one issue:
[w]hether the trial court abused its discretion and erred as a
matter of law in [ruling that the] termination of parental rights
[was] warranted under 23 Pa.C.S. §§ 2511(a)(1), 23 Pa.C.S. §
2511(a)(2), 23 Pa.C.S. § 2511(a)(5), 23 Pa.C.S. § 2511(a)(8) and
23 Pa.C.S. § 2511(b) in that the judge’s decision was against the
weight of the evidence[?]
Mother’s Brief, at 7.5
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2 See Trial Court Opinion, 11/17/17, at 1.
3 See Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 (Pa. 1993)
(stating that there is no constitutional right to hybrid representation either at
trial or on appeal).
4On October 16, 2017, T.W.’s trial counsel, Attorney Ashley Sullivan, filed a
motion to withdraw as counsel. This Court, acting per curiam, granted the
motion on December 8, 2017.
5 Mother waived any challenge to the goal change to adoption by failing to
raise that issue in her concise statement and brief. See Krebs v. United
Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006)
(holding that an appellant waives issues that are not raised in both his or her
concise statement of errors complained of on appeal and the statement of
questions involved in his or her brief on appeal).
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In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, [the]
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., 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.; 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., 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 [] discussed in R.J.T., there are clear reasons for applying an
abuse of discretion standard of review in these cases. [Our
Supreme Court] 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 [appellate courts] 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, 826-827 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
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rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained, “[t]he 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.,
837 A.2d 1247, 1251 (Pa. Super. 2003).
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). We will
consider section 2511(a) and (b) together, as did the trial court. 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
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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.
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825 A.2d
1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights
under section 2511(a)(2), 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
A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
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,
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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)],
[our Supreme 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).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
concluding 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
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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 (affirming involuntary
termination of parental rights, despite existence of some bond, where
placement with mother would be contrary to child’s best interests). “[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).
With regard to the argument that the trial court improperly terminated
the parental rights of Mother because the weight of the evidence did not
support a finding that the requirements of section 2511(a) and (b) were met,
the trial court stated the following:
The Children were adjudicated dependent on June 23, 2015. The
record demonstrates an ongoing unwillingness of Mother to
provide care or control for the Children or to perform any parental
duties. Her failure to remedy the conditions that brought the
Children into care were obvious to [the trial c]ourt. Throughout
the entire case history Mother was abusive to [C]hildren, DHS
workers, CUA personnel and foster parents.
Furthermore, Mother interfered with the efforts of DHS, CUA and
[the trial c]ourt to facilitate the reunification of Mother and
[C]hildren. This was demonstrated by the fact that recent
improvement as to the Children’s behavior and health was the
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direct result of proper foster care and DHS involvement, which
had nothing to do with Mother’s parenting efforts. On the
contrary, Mother sought to dismantle the very foster parent and
DHS involvement which so benefitted [C]hildren by her own
abusive and erratic behavior. The documents and testimony
discussed below provided [the trial c]ourt evidence that
termination of the parental rights of the Mother would be in the
best interest of [] Children. Consequently, the [trial c]ourt found
clear and convincing evidence to terminate the parental rights of
[] Mother pursuant to 23 Pa.C.S.A. §§ 2511(a)(1),(2)[,] (5) and
(8)[,] and 23 Pa.C.S.A. § 2511(b).
Throughout the involvement of the DHS and CUA, the court held
regularly scheduled Permanency Review hearings to monitor the
family’s compliance with all court orders and the Single Case Plan
(“SCP”). These SCP meetings were held to assist the family with
obtaining any and all appropriate services as an aid to facilitate
reunification. On September 9, 2016, CUA revised SCP for
Mother. The objectives identified for Mother were (1) to continue
attending individual therapy sessions; (2) to follow all
recommendations of the [PCE]; (3) to follow through with family
therapy and to comply with all recommendations; (4) to ensure
Mother communicated verbally with CUA; (5) to continue to
participate in the domestic violence program known as Women in
Transition; (6) to attend weekly individual and group trauma
therapy; (7) to have no contact with the Children until further
action of the [c]ourt: (8) to attend the Women’s Empowerment
program and (9) to attend Anger Management Counseling.
The CUA Representative testified that after the suspension of
visitation between the Mother and Children there was a marked
improvement with the behavior of the Children. (N.T., 8/8/17, at
38-40). The CUA Representative also testified that Mother
violated [c]ourt orders by communicating with hospital staff while
V.N.S.O.[-]P. was hospitalized and visiting the Children while they
were in care. (N.T., 8/8/17, at 40-41). Although Mother had
completed anger management courses, the CUA Representative
testified that Mother had continued to exhibit erratic and
aggressive behavior. Specifically, Mother consistently sought to
intimidate CUA workers. On one occasion, Mother brought other
women to a private meeting with CUA workers solely to intimidate
CUA personnel. (N.T., 8/8/17, at 48-52). Mother also interfered
with the Children’s foster care placement resulting in multiple
reassignments. As result of Mother making unfounded allegations
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against foster parents, T[.]D[.]W[., Jr.] had been reassigned to
ten (10) separate placements. (N.T., 8/8/17, at 60-64). The CUA
representative also testified that Y.N.O.S.[-]P[.] was bonded to
her foster parent. (N.T., 8/8/17, at 55-56). The CUA
Representative testified [that] T.D.W., Jr. was happy with [his]
foster parents. (N.T., 8/8/17, at 58-59). The CUA Representative
testified that it would be in the best interest of the Children if
[M]other’s parental rights were terminated. (N.T., 8/8/17, at 60).
At the hearing, Dr. Williams testified that she conducted a PCE
evaluation of Mother in February 2016 where she opined that
Mother failed to address underlying domestic violence in the home
and was unable to control her own aggression. (N.T., 8/8/17, at
105-107). Dr. Williams also testified that Mother’s attempts to
sabotage the Children’s placement indicated that she lacked
parental capacity or the ability to provide safety for the Children.
(N.T., 8/8/17, at 111-114).
Although Mother alleges that her attorney failed to provide
adequate assistance of counsel[,] the record indicates that he was
not passive during the course of the hearing[.] Mother’s counsel
engaged in an aggressive cross[-]examination of the CUA
Representative and Dr. Williams. The testimony of the CUA
Representative and Dr. Williams was deemed to be credible and
accorded great weight. Based upon their testimony elicited at the
Termination Hearing as well as the documents in evidence, th[e
trial c]ourt found clear and convincing evidence to terminate
parental rights of Mother pursuant to 23 Pa.C.S.A.
§§ 2511(a)(1)[,] (2)[,] (5)[,] and (8)[,] finding she had failed to
remedy the conditions that brought the Children into care based
upon her [continuing] unwillingness to cooperate with social
services and mental health treatment. The [c]ourt also found that
termination of [] Mother’s parental rights would be in the best
interest of the Children pursuant to 23 Pa.C.S.A. § 2511(b).
Trial Court Opinion, 11/17/17, at 6-11.
After a careful review of the record, this Court finds the trial court’s
decision to terminate the parental rights of Mother under section 2511(a)(2)
and (b) is supported by competent, clear and convincing evidence in the
record. In re Adoption of S.P., 47 A.3d at 826-827. Thus, we find no abuse
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of discretion in the trial court’s termination of Mother’s parental rights to the
Children.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:4/24/18
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