J-S31002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.A.B.R. : IN THE SUPERIOR COURT OF
A/K/A A.B., A MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.B., MOTHER :
:
:
:
: No. 3554 EDA 2017
Appeal from the Order Entered September 26, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): 51-FN-002630-2011,
CP-51-AP-00000592-2017, CP-51-DP-1000223-2016
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 16, 2018
A.B. (“Mother”) appeals from the trial court’s order entered on
September 26, 2017, granting the petition filed by the Philadelphia
Department of Human Services (“DHS”) to involuntarily terminate Mother’s
parental rights to A.A.B.R. (“Child”) pursuant to the Adoption Act, 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8) and (b). After careful review, we affirm.
The trial court summarized the factual and procedural history of this
case as follows:
The family in this case became involved with DHS before
Child’s birth in 2015, when DHS substantiated and validated
General Protective Services (“GPS”) reports against Mother.
Mother voluntarily relinquished her rights to three siblings of the
Child on January 29, 2013, and June 24, 2015. At the time,
Mother was transient, had no employment, and failed to
successfully complete a dual diagnosis program. Child was born
[in] March [of] 2015. DHS received a GPS report on March 29,
2015, that Mother tested positive for benzodiazepines and Child
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tested positive for Percocet; Mother admitted to taking both
benzodiazepines and Percocet; Mother claimed that she was
prescribed Xanax, a benzodiazepine, by her psychiatrist; Mother
claimed that she was prescribed Percocet by a doctor for back pain
but could not recall the name of her doctor or the name of the
clinic where she received her prescription; Mother claimed that
she stopped taking Percocet in January, 2015; Mother and Child
were discharged from the hospital on March 30, 2015; Mother was
diagnosed with depression and anxiety. The GPS report was
validated. Child was discharged to Mother’s care, and Mother and
Child began residing with maternal aunt on April 20, 2015.
Community Umbrella Agency (“CUA”), Wordsworth, began
providing In-Home Services on this date.
On June 2, 2016, DHS filed an urgent dependency petition
for Child due to concerns of Mother continuing to use drugs and
Mother not enrolling in treatment. On June 10, 2016, Child was
adjudicated dependent and fully committed to DHS. Child was
placed in kinship care with maternal aunt. Mother was offered
liberal supervised visits as arranged, supervised by maternal aunt,
in addition to two supervised visits at the agency. Trial court
ordered DHS to explore mother/baby placements. Mother was
referred to the Clinical Evaluation Unit (“CEU”) for a forthwith drug
screen, assessment, monitoring, and three random drug screens
prior to the next court date. Additionally, Mother was referred to
Behavioral Health Services (“BHS”) for a consultation and
evaluation. Mother was referred to the Achieving Reunification
Center (“ARC”) for housing, parenting, and any other appropriate
services.
Following the adjudicatory hearing, Mother completed a
short-term detoxification program at Kensington Hospital and was
accepted into a mother/baby treatment program through
Gaudenzia. Child was reunified with Mother at Gaudenzia on
August 9, 2016. The reunification was conditioned upon [Mother]
remaining at Gaudenzia. On August 21, 2016, Mother left
Gaudenzia with Child against medical advice. On August 23,
2016, CUA made contact with Mother by telephone. Mother
refused to disclose her location to CUA and hung up when CUA
could not promise that Child would not be removed from Mother’s
care if Mother brought Child to the agency. On August 31, 2016,
[the] trial court discharged the commit retroactive to August 9,
2016, ordered the petition to remain open, and ordered DHS to
obtain an [Order of Protective Custody (“OPC”)] once Child was
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located. The trial court ordered Mother to be re-referred to CEU
for a forthwith drug screen, assessment, and for a parenting
capacity evaluation (“PCE”).
On September 15, 2016, Mother brought Child to DHS and
DHS obtained an OPC for Child. On September 16, 2016, a shelter
care hearing was held for Child. Mother did not attend this
hearing. The court lifted the OPC, discharged the temporary
commitment, and re-committed Child to DHS. The court referred
Mother to the CEU for a forthwith drug screen, dual diagnosis
assessment, and three random drug screens prior to the next
court date.
On December 13, 2016, a permanency review hearing was
held for Child. Mother attended this hearing. The trial court noted
that Mother was minimally compliant with her objectives. CUA
testified that Mother had enrolled in a dual diagnosis treatment
program at Casa de Consejeria on August 30, 2016, but she was
not consistently attending; Mother tested positive for marijuana,
benzodiazepines, and phencyclidine (“PCP”); Mother was
discharged from the ARC for parenting after she failed to avail
herself for a home assessment; Mother attended half of her
offered visits with Child; and Mother had an open bench warrant.
The trial court ordered Mother to be re-referred to CEU for a drug
screen, dual diagnosis assessment, and three random drug
screens. Mother was ordered to provide documentation as to
parenting classes and employment. Mother was ordered to attend
supervised weekly visits at the agency. Additionally, Mother was
ordered to attend her PCE on December 14, 2016.
The CEU issued a progress report for Mother on March 15,
2017. The report noted that Mother tested positive for marijuana,
benzodiazepines, and PCP on December 13, 2016; Mother was
enrolled in intensive outpatient (“IOP”) treatment through Casa
de Consejeria but failed to attend her update of treatment
appointment on December 30, 2016; Mother last attended IOP
treatment on January 10, 2017; and Mother was recommended to
participate in a higher level of treatment due [to] her many
positive drug screens. Mother failed to attend the permanency
review hearing held for Child on May 15, 2017. CUA testified that
Mother was discharged from Casa de Consejeria on February 10,
2017; Mother failed to avail herself for a home assessment;
Mother was discharged from the ARC; and Mother had only
attended three visits with Child since December 13, 2016. The
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trial court noted that Mother was non-compliant with her
objectives and decreased her visitation with Child to monthly
supervised visits at the agency. Mother was re-referred to the
CEU for a drug screen, dual diagnosis assessment, and three
random drug screens when she availed herself. Additionally,
Mother was ordered to comply with parenting and attend part two
of the PCE.
Child has been in DHS custody since June 10, 2016. Mother
has failed to comply with any of her objectives. Mother failed to
graduate past weekly supervised visitation with Child and had her
visits reduced at the last permanency hearing to monthly. Mother
has not attended a supervised visit at the agency since February
15, 2017. Drug and alcohol, mental health, parenting, and
housing are still outstanding objectives for Mother. DHS filed a
petition to involuntarily terminate Mother’s parental rights and
change Child’s permanency goal to adoption on May 25, 2017.
On September 26, 2017, the trial court held the termination
and goal change trial for Child. Mother was present for this
hearing. The court found clear and convincing evidence to change
the permanency goal to adoption and to involuntarily terminate
Mother’s parental rights under 23 Pa.C.S.A. §2511(a)(1), (2), (5),
(8) and (b). On October 26, 2017, Mother’s attorney filed this
appeal on behalf of Mother.[1]
Trial Court Opinion, 12/28/17, at 1-4.
Mother presents the following issues for our review:
1. Whether the trial court’s ruling to involuntary terminate
[Mother’s] parental rights to her child, A.A.B.R., was not
supported by clear and convincing evidence establishing
grounds for involuntary termination?
2. Whether the trial court’s decision to change A.A.B.R.’s
permanency goals from reunification with the parent to
adoption was not supported by the clear and convincing
evidence that such decision would best protect the child’s
needs and welfare?
____________________________________________
1 Mother also filed a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
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Mother’s Brief at 5.
We consider Mother’s issues according to the following standard:
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, and it requires a bifurcated analysis.
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) (citations omitted).
Mother’s issues challenge the termination of her rights under Section
2511(a). We need agree with the trial court only as to any one subsection of
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Section 2511(a) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). Herein, we conclude that the certified record
supports the order pursuant to Section 2511(a)(2), which provides as follows:
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the
following grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
23 Pa.C.S. § 2511(a)(2).
Regarding Section 2511(a)(2), this Court has stated as follows:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted).
Further, we have opined that “[t]he grounds for termination due to
parental incapacity that cannot be remedied are not limited to affirmative
misconduct. To the contrary, those grounds may include acts of refusal as
well as incapacity to perform parental duties.” In re A.L.D., 797 A.2d 326,
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337 (Pa. Super. 2002) (citations omitted). Parents are required to make
diligent efforts toward the reasonably prompt assumption of full parental
responsibilities. Id. at 340. 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.
On appeal, Mother argues that her “substantial compliance with DHS,
her completion and compliance [with] most of her main [single case plan
(“SCP”)] objectives, and her maintaining regular and loving contact and
nurturing parental relationship with her child does not demonstrate ‘clear and
convincing’ evidence” of her repeated and continued incapacity, abuse,
neglect, or refusal. Mother’s Brief at 24. Mother asserts that to the contrary,
the evidence of record demonstrates her earnest desire to comply with DHS,
maintain a parental relationship with Child, and seek reunification. Id. at 24.
Mother maintains that she regularly visited Child “to the best of her ability,”
and secured suitable housing for herself and Child without any assistance from
DHS or CUA. Id. at 23.
Finding that Mother’s conduct warranted termination under Section
2511(a)(2), the trial court stated as follows:
Child has been in care since June 10, 2016. Mother’s SCP
objectives were to make herself available for court ordered
supervised visits with Child at the agency, maintain contact with
the case manager, attend all court hearings, comply with all court
orders, enroll in a dual diagnosis program, provide documentation
of program compliance and drug screen results, and attend ARC
for parenting and housing. Mother was ordered to complete a
PCE. Mother’s objectives have been the same for the life of the
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case and Mother was aware of the objectives. Mother has failed
to attend scheduled supervised visits with Child since February 15,
2017. Mother had no explanation why she failed to visit with
Child. Mother’s drug screen was positive for benzodiazepine, PCP,
and marijuana. Mother has not made herself available for any
court ordered random drug screens. Mother has not successfully
completed a dual diagnosis drug and alcohol program. Mother
continues to be addicted to PCP. Mother has failed to consistently
engage in parenting and housing classes at ARC. Mother also
failed to complete her PCE. On September 26, 2017, the CUA
Case Manager rated Mother’s compliance with her SCP goals as
not compliant. Child needs permanency, which Mother cannot
provide. Mother has demonstrated that she is unwilling to remedy
the causes of her incapacity to parent in order to provide Child
with essential parental care, control, or subsistence necessary for
physical and mental well-being. Mother left the Gaudenzia
mother/baby program against medical advice. Mother would
rather live with her paramour than remedy her incapacity to
parent. Termination under this section was . . . proper.
Trial Court Opinion, 12/28/17, at 6-7 (internal citations omitted).
Our review of the record supports the trial court’s decision. CYS
removed Child from Mother’s care based upon concerns regarding Mother’s
drug and alcohol use, untreated mental health issues, and lack of stable
housing. N.T., 9/26/17, at 7-12. At the time of the termination hearing, Child
was two years old. Id. at 5. Prior to the hearing, Child had been in care for
fifteen and one-half months. Id. Testimony at the hearing established that
Mother failed to comply with her objectives for reunification. Id. at 8. At the
time of the hearing, drug, alcohol, and mental health issues remained a
concern. Id. at 9. Mother failed to make herself available for random drug
screens. Id. Mother was referred to ARC for parenting and housing
assistance, but due to her failure to consistently attend, her case at ARC was
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closed. Id. at 10. Mother failed to complete a mother/baby placement
program at Gaudenzia. Id. While in the program, Mother tested positive for
drugs. Id. at 10-11. She completely left the program after being reunified
with Child for only twelve days when she learned that her paramour had
obtained housing. Id. at 11. Mother never progressed beyond supervised
visits with Child after Child was placed. Id. Mother was inconsistent with her
visits with Child, and at the time of the hearing, the last time she had seen
Child at the agency was February 15, 2017. Id. The caseworker rated
Mother’s compliance level as “none.” Id.
Based on the foregoing, we discern no abuse of discretion by the trial
court in terminating Mother’s parental rights pursuant to Section 2511(a)(2).
Mother’s repeated and continued incapacity, neglect, or refusal to perform her
parental duties has caused Child to be without essential parental care, control,
or subsistence necessary for his physical and mental well-being. Mother’s
failure to meet her objectives supports the trial court’s conclusion that Mother
refuses to remedy the conditions that led to Child’s placement.
Having determined that Mother’s parental rights were properly
terminated under Section 2511(a)(2), we engage in the second part of the
analysis pursuant to Section 2511(b) in which we determine whether
termination serves the best interests of the child. In re L.M., 923 A.2d at
511. We have explained that the focus in terminating parental rights under
Section 2511(a) is on the parent, but under Section 2511(b), the focus is on
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the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008).
In reviewing the evidence in support of termination under Section 2511(b),
our Supreme Court stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
this Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Mother argues that DHS did not present clear and convincing evidence
that termination of her parental rights would meet the best interests and
developmental, physical, and emotional needs and welfare of Child. Mother’s
Brief at 28. Mother further asserts:
[m]inimal superfluous testimony by the current case manager,
who had been only observed [sic] minimal visitation and contact
between [Appellant] and [Child]. This was the only evidence
presented regarding the harm termination of mother’s parental
rights and placing them for adoption would have on [Child].
Appellant is successfully raising her two other minor age children
in a proper home that DHS never visited. Due to this lack of
supporting evidence the trial court did not give primary
consideration to the developmental, physical and emotional needs
of [Child].
Mother’s Brief at 28. Mother maintains that the non-expert social worker was
incorrectly allowed to offer opinion testimony as to relationship and bond
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between Appellant and Child. Id. at 29. Mother also contends that Child
refers to her as “mom” and that the two share a loving bond. Id. Mother
asserts that she loves Child and wants to be reunified with him. Id. at 29-30.
As a result, Mother states, Child would experience significant trauma and
emotional harm if her parental rights were terminated. Id. at 30.
The trial court made the following determinations relative to the bond,
or lack thereof, between Mother and Child, and the best interests of Child:
Mother’s drug screen was positive for benzodiazepine, PCP,
and marijuana. Mother admitted to smoking PCP as late as two
months prior to trial. Mother has not made herself available for
any court ordered random drug screens. Mother has not
successfully completed a dual diagnosis drug and alcohol
program. Mother left the Gaudenzia mother/baby program
against medical advice. Mother chose her paramour rather than
remedy her incapacity to parent. Mother has failed to consistently
engage in parenting and housing classes at ARC. Mother failed to
complete her PCE. Mother has failed to attend scheduled
supervised visits with Child since February 15, 2017, without any
reasonable explanation. The trial court changed Mother’s visits
from weekly to monthly supervised at the agency. Throughout
the case, Mother only made seven out of twenty-two visits. On
multiple occasions, Mother would call the agency twenty-four
hours prior to confirm the scheduled visit with Child, but would
either fail to appear or arrive late to the scheduled visit. CUA
would offer Mother tokens for public transportation [to] attend
visits. Child is currently placed in a stable, loving kinship home
with maternal cousin and [Child’s] half-sibling. Child has been in
this home since June 2016. Child is thriving in the kinship home
with his half-sibling. Kinship parent ensures that his daily needs
are being met. It is in the Child’s best interest to be adopted and
this kinship parent is a pre-adoptive resource. Child would not
suffer any irreparable harm if Mother’s rights were terminated and
it is in the Child’s best interest to be adopted by the current kinship
parent. The Child needs permanency, which Mother cannot
provide at this time. The DHS witness was credible. The record
established by clear and convincing evidence that the change of
the permanency goal from reunification to adoption was proper.
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The trial court did not err or abuse its discretion when it changed
the goal from reunification to adoption.
Trial Court Opinion, 12/28/17, at 11-12 (internal citations omitted).
After a careful review of the record in this matter, it is our determination
that the record supports the trial court’s factual findings, and the trial court’s
conclusions are not the result of an error of law or an abuse of discretion with
regard to Section 2511(b). Accordingly, it was proper for the trial court to
conclude that there was no bond such that Child would suffer permanent
emotional harm if Mother’s parental rights are terminated and that termination
served the best needs of Child.
Furthermore, despite Mother’s claim, the testimony of the caseworker
was sufficient to establish by clear and convincing evidence that there was no
bond between Mother and Child. Expert testimony on that topic was not
required. 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). Specifically, Mr. Burr testified that there was no
relationship between Mother and Child. N.T., 9/26/17, at 12. He explained
that after Child’s placement, Mother had not contacted the caseworker to
inquire about Child. Id. Mr. Burr also stated that, in his opinion, Child would
not suffer any irreparable harm if Mother’s parental rights were terminated.
Id. This testimony was sufficient to establish that there was no bond between
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Mother and Child such that Child would suffer permanent emotional harm if
Mother’s parental rights were terminated.
For the reasons set forth above, we conclude that Mother is entitled to
no relief. Therefore, we will not disturb the trial court’s determination, and
we affirm the order involuntarily terminating Mother’s parental rights to Child.
Order affirmed.
Judge Dubow did not participate in the consideration or decision of this
Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/18
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