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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.C.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: K.C., MOTHER : No. 1044 EDA 2018
Appeal from the Decree March 19, 2018
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000174-2017
BEFORE: PANELLA, J., PLATT, J.* and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 09, 2018
K.C. (Mother) appeals from the decree entered March 19, 2018, in the
Court of Common Pleas of Philadelphia County, which terminated involuntarily
her parental rights to her minor son, K.C.C. (Child), born in December 2008.1
We affirm.
Child came to the attention of the Philadelphia Department of Human
Services (DHS) on March 17, 2016, after it received a general protective
services report raising concerns regarding inadequate hygiene and housing.
According to the report, Child’s clothes appeared dirty and he and Mother had
no stable home. The report alleged that Child and Mother traveled from place
to place each night, most recently sleeping on the floor of a barbershop. On
March 24, 2016, Child began living with his paternal aunt pursuant to a safety
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* Retired Senior Judge assigned to the Superior Court.
1 The family court entered a separate decree terminating the parental rights
of Child’s putative father, J.C.C. (Father). Father did not appeal the
termination of his parental rights.
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plan. The juvenile court adjudicated Child dependent on April 29, 2016, and
committed him to DHS custody. Child began living with a pre-adoptive foster
family in June 2016. After this placement, Child revealed to his foster parents
that Father had sexually abused him.
On February 14, 2017, DHS filed petitions to terminate involuntarily
Mother’s parental rights to Child. The family court conducted a hearing on
March 19, 2018,2 during which Lawrence Abel, Esquire, represented Mother
as her privately retained counsel. Following the hearing, the court entered a
decree terminating Mother’s rights. Mother timely filed a pro se notice of
appeal on April 2, 2018, along with a concise statement of errors complained
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2 The family court appointed Lee Kuhlmann, Esquire, to represent Child’s legal
interests during the termination proceedings. At the conclusion of the hearing,
Attorney Kuhlmann stated that adoption was Child’s preferred outcome. N.T.,
3/19/2018, at 346. Attorney Kuhlmann did not file a brief or join another
party’s brief arguing in support of Child’s legal interests on appeal, despite his
continuing duty to Child. See In re Adoption of T.M.L.M., 184 A.3d 585,
590 (Pa. Super. 2018) (“Counsel’s duty to represent a child does not stop at
the conclusion of the termination of parental rights hearing.”).
Additionally, we observe that Donella Shaffer, Esquire, of the Defender
Association of Philadelphia’s Child Advocacy Unit (DACAU), filed a brief in this
Court describing herself as Child’s counsel and arguing in support of
termination. To the contrary, it is clear that DACAU served as Child’s guardian
ad litem and that Attorney Kuhlmann served as his legal interests counsel.
See Decree of Termination of Parental Rights, 3/19/2018, at 1 (listing the
attorneys at the termination hearing with a notation that Attorney Kuhlmann
was Child’s advocate and DACAU was Child’s guardian ad litem); Family Court
Opinion, 7/6/2018, at 1 (stating Child was represented by Attorney Kuhlmann
as “Child Advocate” and Michael Hartman, Esquire of DACAU as guardian ad
litem).
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of on appeal.3,4 The court appointed Lisa Visco, Esquire, to represent Mother
on appeal. She has filed a brief in this Court on Mother’s behalf.
Mother raises the following issues for our review.
1. Whether the [family] court erred and/or abused its discretion
by terminating the parental rights of Mother [] pursuant to 23 Pa.
C.S.[] [§] 2511(a)(1) where Mother presented evidence that she
tried to perform her parental duties.
2. Whether the [family] court erred and/or abused its discretion
by terminating the parental rights of Mother [] pursuant to 23 Pa.
C.S.[] [§] 2511(a)(2) where Mother presented evidence that she
has remedied her situation by maintaining housing, taking
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3 The record does not reveal why Mother filed the notice of appeal and concise
statement pro se. Initially, during Child’s dependency, Mother was
represented by court-appointed counsel. On November 27, 2017, prior to the
termination hearing, Mother retained private counsel, and the order
appointing her court-appointed counsel was vacated. As noted supra, her
privately-retained counsel represented her at the termination hearing. Then,
for unknown reasons, Mother filed her notice of appeal and concise statement
pro se on April 2, 2018. At no time between the conclusion of the termination
hearing and the filing of the notice of appeal did Mother petition the family
court for appointed counsel. See In re A.R., 125 A.3d 420, 424 (Pa. Super.
2015) (holding that the appointment of counsel is not an automatic right; in
order for counsel to be appointed on behalf of a parent pursuant to 23 Pa.C.S.
§ 2313(a.1), an indigent parent must petition the trial court for counsel).
However, at the same time Mother filed her notice of appeal, she also
simultaneously filed a petition to proceed in forma pauperis, although the
petition does not appear in the record. The trial court granted the petition on
April 2, 2018, and sua sponte appointed new counsel for Mother two weeks
later on April 16, 2018. Thus, we are satisfied that Mother was not deprived
of her right to counsel.
4 The family court opinion includes as an exhibit a concise statement that is
somewhat longer than the concise statement contained in the certified record.
However, the substance of Mother’s alleged errors is essentially the same in
both statements.
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parenting classes and intensive drug treatment counselling and
has the present capacity to care for [Child].
3. Whether the [family] court erred and/or abused its discretion
by terminating the parental rights of Mother [] pursuant to 23 Pa.
C.S.[] [§] 2511(a)(5) where evidence was provided to establish
that [Child] was removed from the care of the Mother and Mother
is now capable of caring for [Child].
4. Whether the [family] court erred and/or abused its discretion
by terminating the parental rights of Mother [] pursuant to 23 Pa.
C.S.[] [§] 2511(a)(8) where evidence was presented to show that
Mother is now capable of caring for [Child] after she completed
parenting classes, secured and maintained housing and completed
her drug treatment program.
5. Whether the [family] court erred and/or abused its discretion
by terminating the parental rights of Mother [] pursuant to 23 Pa.
C.S.[] [§] 2511(b) where evidence was presented that established
[Child] had a close bond with [] Mother and [Child] had lived with
[] Mother for the most part of his life. Additionally, Mother
maintained that bond by visiting with [Child] when she was
permitted to visit him.
Mother’s Brief at 7.5
We consider these claims mindful of our well-settled standard of review.
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5 In a single sentence in her brief, Mother maintains that the family court erred
or abused its discretion by changing Child’s permanent placement goal to
adoption. Mother’s Brief at 12. Mother did not appeal any goal change order.
Moreover, she did not preserve any such claim in her concise statement or
statement of questions involved, and she included no substantive discussion
of the goal change in her brief. See In re M.Z.T.M.W., 163 A.3d 462, 466
(Pa. Super. 2017) (“[I]ssues not included in an appellant’s statement of
questions involved and concise statement of errors complained of on appeal
are waived.”); In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (“Where
an appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”). Therefore, we do not consider this
issue.
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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).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. 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 [subs]ection 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 [subs]ection 2511(b): determination of
the needs and welfare of the child….
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the family court terminated Mother’s parental rights to Child
involuntarily pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We
need only agree with the court as to any one subsection of 2511(a) as well as
subsection 2511(b) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). Here, we analyze the court’s determination pursuant
to subsections 2511(a)(2) and (b), which provide as follows.
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(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
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)(2), (b).
We first consider if the family court abused its discretion by terminating
Mother’s parental rights pursuant to subsection 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 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.
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The 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, 337 (Pa. Super. 2002) (citations
omitted).
Here, the family court concluded that DHS presented clear and
convincing evidence in support of its petition to terminate Mother’s rights
pursuant to subsection 2511(a)(2). The court reasoned that Mother failed to
comply with her Single Case Plan (SCP) objectives. Family Court Opinion,
7/6/2018, at 2. It found that Mother did not attend court-ordered drug
screens, did not complete court-ordered parenting classes, and lacked stable
housing and employment. Id. at 2, 4-5. It further found that Mother engaged
in inappropriate physical contact with Child during visits and condoned
Father’s sexual abuse of Child. Id. at 4-6.
Mother argues that she remedied the issues requiring Child’s placement
and is now able to provide him with appropriate parental care. Mother’s Brief
at 10, 16. She maintains that she complied substantially with her SCP goals,
emphasizing that she visited with Child when permitted to do so, completed
drug and alcohol treatment, attended mental health treatment, and obtained
appropriate housing. Id. at 12, 16.
Our review of the record supports the family court’s findings. During
the hearing, DHS presented the testimony of Community Umbrella Agency
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(CUA) case management supervisor, Lauren Kristich. Ms. Kristich testified
that Mother’s SCP objectives included completing housing and parenting
programs at the Achieving Reunification Center (ARC), signing consents and
releases, completing intensive outpatient treatment, completing Clinical
Evaluation Unit assessments and random drug screens as court ordered,
maintaining stable and appropriate housing, and maintaining employment.
N.T., 3/19/2018, at 186-87.
With respect to Mother’s progress toward completing these objectives,
Ms. Kristich testified that Mother attended housing and parenting programs at
ARC. Id. at 192. She completed the housing program, but ARC discharged
her from the parenting program at least twice due to her noncompliance. Id.
Mother went on to complete a parenting program at a different organization.
Id. Ms. Kristich noted that the family court entered an order providing that
DHS could sign consents for Child in Mother’s place due to her resistance to
consenting to services earlier in the case. Id. at 197-98.
Ms. Kristich further testified that Mother attended intensive outpatient
treatment. Id. at 194. Mother attended group sessions rather than individual
sessions, so the treatment program recommended that she attend individual
therapy at the time of her discharge. Id. Mother attended individual therapy
but did so inconsistently.6 Id. at 194-95, 200. Mother also attended drug
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6 Mother’s therapist, Edward Melvin, testified that she attended approximately
five appointments since October 2017, missed “almost eight or ten,” and
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screens, although she missed at least one screen and sometimes appeared for
screens on days when DHS had not asked her to appear. Id. at 195-97. None
of Mother’s drug screen results was positive during the time that Ms. Kristich
was involved with the case.7 Id. at 209.
With respect to housing, Ms. Kristich testified that Mother has had two
different residences since Ms. Kristich began supervising this case in April
2017. Id. at 184, 188. Mother’s current residence was unstable because she
informed DHS that she would be moving out the following month. Id. at 188-
89. Mother did not inform DHS where she would be moving. Id. at 190.
Similarly, during the same period, Ms. Kristich noted that Mother maintained
at least five different jobs. Id. Mother provided DHS with paystubs in the
past, but not for her current job because she started just over a week before
the hearing. Id. at 190-91.
Importantly, Ms. Kristich testified that DHS deemed Mother an indicated
perpetrator of abuse against Child by omission. Id. at 203. This stemmed
from Child’s allegation that Father committed sexual abuse against him.8 Id.
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spoke to him on the phone approximately once per month. N.T., 3/19/2018,
at 83, 101-02, 105.
7 Mother tested positive for cocaine and marijuana at the start of the case, on
June 30, 2016. DHS Exhibit 15 (Clinical Evaluation Unit Progress Report). The
family court suspended the drug screens several months before the
termination hearing. N.T., 3/19/2018, at 301.
8 Although the family court heard conflicting evidence on this issue, it
concluded that Mother was aware of Father’s abuse and did not act to stop it.
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at 201-02. In April 2017, the family court suspended Mother’s visits with Child
due to her inappropriate behaviors. Id. at 198, 208. CUA visitation coach
and case aid, Zakiah Holmes, described the incident that precipitated the
suspension as follows.
Well, actually, that day I had one of the other coaches watch
the visit while I had to go upstairs. So when I came back down,
[Mother] was laid out on the sofa with [Child] with his hand on
the small of her back [while Mother was] kissing him in the mouth.
***
Well, when I came in the room and seen them, I said,
[Mother], what are you doing. You can’t do this. … Then she told
me people have dirty minds if they think that way. It wasn’t like
really an issue to her that that’s what they were doing.
Id. at 220-22.
Based on this evidence, the record supports the family court’s finding
that Mother is incapable of parenting Child, and that she cannot or will not
remedy her parental incapacity pursuant to subsection 2511(a)(2). Mother
failed to complete her SCP objectives. She inconsistently attended individual
therapy and did not maintain stable housing or employment. Even more
troubling, Mother failed to protect Child from Father’s sexual abuse and
engaged in inappropriate physical contact with Child, resulting in the
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The record supports this determination. Child’s foster father, R.G., testified
that he spoke to Child about the abuse, and that Child stated that Mother was
present and “she knew what his dad made him do.” N.T., 3/19/2018, at 62.
Mr. Melvin testified that Mother discussed the abuse during therapy. He
explained, “she said that they were together…. And something occurred
where [Child] had to be punished and the father suggested he was going to
punish him by making him kiss his penis.” Id. at 88.
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suspension of her visits. Returning Child to Mother’s care would endanger his
safety and risk exposing him to further abuse and instability. Because it is
clear that Mother will not remedy this situation at any point in the foreseeable
future, we discern no abuse of discretion.
Next, we assess whether the family court committed an abuse of
discretion by terminating Mother’s parental rights pursuant to subsection
2511(b). Mother waived this claim by failing to include it in her pro se concise
statement of errors complained of on appeal. See M.Z.T.M.W., 163 A.3d at
466. Even if she had not waived this claim, it would not entitle her to relief.
The requisite analysis is as follows.
[Subs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term ‘bond’ is not defined in the Adoption
Act. Case law, however, provides that analysis of the emotional
bond, if any, between parent and child is a factor to be considered
as part of our analysis. While a parent’s emotional bond with his
or her child is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted).
Instantly, the family court concluded that terminating Mother’s parental
rights would best serve Child’s needs and welfare. The court found credible
the testimony presented by DHS that Child shares a bond with his foster
parents and that termination will not cause him to suffer irreparable harm.
Family Court Opinion, 7/6/2018, at 6. The court also emphasized Child’s need
for safety and security. Id.
Mother argues that Child lived with her for most of his life and has a
strong bond with her. Mother’s Brief at 12, 18. She insists that DHS should
have provided her with therapeutic visits or parent/child interactive therapy
in order to allow her visits with Child to resume. Id. at 18.
We again discern no abuse of discretion. As we discussed above, Mother
failed to protect Child from Father’s sexual abuse and engaged in
inappropriate contact with Child even during supervised visits. Terminating
Mother’s parental rights serves Child’s needs and welfare because it allows
Child to feel safe and ensures Child will no longer be exposed to Mother’s
failure to respect boundaries in her physical contact with Child and failure to
protect him from Father.
Moreover, while there are some positive aspects to the relationship
between Child and Mother, the record supports the family court’s finding that
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severing this relationship would not cause Child to suffer irreparable harm.
Ms. Holmes testified that Child was happy to see Mother during visits. N.T.,
3/19/18, at 234. She explained that Child “would … be smiling. Hey, mom.
You know, give him a hug and stuff, you know when he come in.” Id.
Nonetheless, she further testified that Child did not want to attend several
visits with Mother in approximately January 2017 but that the CUA director
forced him to go. Id. at 226. At the time of the termination hearing, Mother
had not had contact with Child for almost a year.
In contrast, the record reflects that Child has a positive bond with his
pre-adoptive foster family. CUA case manager, Angel Chancey, testified that
Child asked recently if he could call his foster parents “dad and mom.” Id. at
256. Child’s foster father, R.G., confirmed that Child asked to call him “dad,”
and that Child “want[s] to stay with us.” Id. at 52. He clarified that Child
“say[s] he would like to stay with [Mother] or go with her, but he [doesn’t]
want to go and be in the same situations that he came from.” Id. at 51.
Thus, the record confirms that the family court did not abuse its discretion by
concluding that terminating Mother’s parental rights would best serve Child’s
needs and welfare.
Based on the foregoing, we conclude that the family court did not abuse
its discretion by terminating involuntarily Mother’s parental rights to Child.
Therefore, we affirm the court’s March 19, 2018 decree.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/18
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