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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.S.V.R., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: L.B.W., MOTHER : No. 3088 EDA 2018
Appeal from the Decree Entered September 18, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at No. CP-51-AP-0000242-2018
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2019
L.B.W. (“Mother”) appeals from the September 18, 2018 decree entered
in the Court of Common Pleas of Philadelphia County, Family Court Division,
involuntarily terminating her parental rights to her dependent child, S.S.V.R.,
male child, born in June of 2004 (“Child”), pursuant to the Adoption Act,
23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).1 After careful review, we
affirm.
The trial court set forth the following:
On October 18, 2016, the Department of Human
Services (“DHS”) received a General Protective
Services (“GPS”) report alleging that Mother
transported Child to the Germantown Community
Crisis Response Center (“CRC”). The GPS report
alleged Mother stated that she and Child had a
physical altercation and that Mother was unable to
control Child’s violent behavior towards her and
1 We note that the record reflects that Child’s birth certificate does not identify
Child’s father and that Mother has not been forthcoming in revealing his
identity. (Notes of testimony, 9/18/18 at 79.)
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Child’s siblings. On October 26, 2018, DHS received
a Supplemental Report alleging that in June 2016
Mother beat Child with a stick and belt. On
November 16, 2018, DHS received an additional
Supplemental Report alleging that Mother contacted
Police seeking to remove Child from her home after
threatening to kill the Child. On November 23, 2016,
DHS interviewed Child who told DHS that he was
fearful of Mother and that Mother threatened to kill
him. Child also told DHS that Mother made Child wear
the same clothes for four consecutive days. DHS
obtained an Order for Protective Custody (“OPC”) for
Child and placed Child with his maternal cousins.
Child was adjudicated dependent on December 2,
2016. On November 28, 2017, a revised Single Case
Plan (“SCP”) was created. The parental objectives for
Mother were to (1) participate at the Center for Family
Relationships for individual therapy; (2) to participate
in mental health treatment; (3) to comply with
supervised bi-weekly visitation and (4) maintain
suitable housing.
The underlying Petition to Terminate Mother’s
Parental Rights to Child was filed on March 26, 2018
since Mother failed to meet her SCP objectives.
Trial court opinion, 11/9/18 at 2-3 (record citations omitted).
On September 18, 2018, the court held a hearing on
the Petition to Terminate the Parental Rights of
[Mother]. Mother was present at the hearing and
represented by counsel. Child was present at the
hearing and represented by a separate Guardian
Ad Litem and Child Advocate. Child testified in
camera in chambers and during the hearing. There
existed no conflict between the Child’s best interest
and legal interest as confirmed by testimony during
the hearing.
Id. at 1.
At the termination hearing, Mr. Andrew Lemon, the
assigned CUA Representative, (“Mr. Lemon”) testified
that Mother’s SCP objective[s] were (1) for Mother to
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maintain stable housing; (2) to participate in mental
health treatment; and (3) to participate in individual
therapy[;] and (4) to maintain visitation with the
Child. Mr. Lemon testified Mother did not participate
in individual treatment despite being advised of her
SCP objectives. Mr. Lemon testified Mother did not
participate in family therapy despite being advised of
her SCP objectives. Mother failed to provide
documentation or an explanation as to why she did
not participate in individual or family therapy.
Mr. Lemon testified that Mother was uncooperative in
scheduling home visits. As a result, Mr. Lemon was
forced to make unannounced visits to Mother’s home
to determine if Mother was compliant with her SCP
objectives. Ultimately, it was determined that Mother
had not been forthright about her actual home
address. Mother never inquired of Mr. Lemon about
the Child’s grades or medical appointments.
In contrast, Mr. Lemon testified that Child’s foster
parents and Child had an appropriate child parent
bond. Both Child and his foster parents wanted Child
to be adopted by his foster parents. Mr. Lemon
testified that it would be in the Child’s best interest
that he be adopted and that the termination of
Mother’s parental rights would not cause Child
irreparable harm. Mr. Lemon testified that there was
no significant bond between Child and Mother.
Mr. Lemon testified that he observed visitation
between Mother and Child and that during these visits
Mother was hostile and angry with Child. Mr. Lemon
testified that Child had made reasonable efforts to
seek to repair his relationship with his Mother but that
all efforts had been exhausted. As to visitation,
Mr. John Hall, a CUA Representative, also testified
that he had witnessed visitation between Child and
Mother. During one visit in June 2018, Mother and
Child quarreled when Mother called Child a cheater
and Mother abruptly terminated the visit. Mr. Hall also
testified that Mother was not receiving mental health
treatment, which remained an SCP Objective. Mr. Hall
testified that Mother often refused to visit the Child.
During the termination hearing, Child testified that he
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also wanted to be adopted because he wanted to
cease living in an environment where he was
constantly arguing with his Mother and in fear of being
thrown out of the house.
Ms. Teeawanna Burrell, Mother’s first cousin and
Child’s foster parent, testified that Child and Mother
did not have a strong parental bond. Ms. Burrell
testified that Mother had been verbally abusive to the
Child and that Mother hit Child. In addition, Mother
consistently demeaned Child. As a result, Child
consistently sought to escape Mother’s home by living
with friends or relatives. Ms. Burrell testified that she
wanted to adopt the Child because she loved the Child
and wanted Child to fulfill his dreams. Throughout the
hearing, Mother’s counsel was an active participant
who provided adequate counsel. He clearly
articulated Mother’s arguments and defenses and
appropriately cross examined the Child, which was a
difficult task under the circumstances.
The testimony of the CUA Representatives, Ms. Burrell
and the Child was deemed to be credible and accorded
great weight. Based upon the testimony elicited at the
Termination Hearing as well as the documents in
evidence, the court found clear and convincing
evidence to terminate Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1)[,] (2)[,] (5)[,
and] (8) as Mother was unable to remedy the
conditions that brought the Child into care.
Specifically, Mother’s visitation was inconsistent and
she did not participate in mental health treatment or
demonstrate that she could provide stable housing for
Child. In addition, the record reflected that Mother
was an overbearing parent who was incapable of
providing love and support for Child. In contrast,
Child’s foster parent provided Child with the love,
support and an opportunity to thrive. Consequently,
the termination of the Mother’s parental rights would
be in the best interest of the Child pursuant to
23 Pa.C.S.A. § 2511(b).
Id. at 5-8 (record citations omitted).
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The record reflects that on October 18, 2018, while Mother was still
represented by court-appointed counsel Craig B. Sokolow, Esq., Mother filed
a pro se notice of appeal, together with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On November 6,
2018, the trial court filed its Rule 1925(a) opinion. On November 19, 2018,
the trial court granted Attorney Sokolow’s motion to withdraw as counsel and
appointed Mario D’Adamo, III, Esq., to represent Mother.
On November 26, 2018, this court entered an order directing
Attorney D’Adamo to file an amended Rule 1925(b) statement on Mother’s
behalf no later than December 6, 2018. Attorney D’Adamo timely complied.
Mother raises the following issues for our review:
1. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Mother, L.W. pursuant to 23 Pa.C.S.A.
[§§ 2511(a)(1), (2), (5), and (8)] where Mother
presented evidence that she has remedied her
situation by complying with her [s]ingle [c]ase
plan objectives[?]
2. Whether the [t]rial [c]ourt erred in
[t]erminating [Mother’s] [p]arental [r]ights
under 23 Pa.C.S.A. [§] 2511(a)(2), where the
evidence has been insufficient to establish
Mother caused [C]hild to be without essential
parental care, nor could that not have been
remedied[?]
3. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Mother, L.W. pursuant to 23 Pa. C.S.A.
[§§] 2511(b) where evidence was presented
that established the child had a bond with
Mother[?]
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Mother’s brief at 8.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “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. “[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial
court’s decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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 conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f 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) (citation omitted).
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The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
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) (citations omitted). We have
defined clear and convincing evidence as that which 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.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
In this case, the trial court terminated Mother’s parental rights pursuant
to Sections 2511(a)(1), (2), (5), and (8), as well as (b). We have long held
that, in order to affirm a termination of parental rights, we need only agree
with the trial court as to any one subsection of Section 2511(a), as well as
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Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the court’s termination decree pursuant to
Subsections 2511(a)(2) and (b), which provide 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.
(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.A. § 2511(a)(2), (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(2).
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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). “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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015),
quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [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.” In re A.L.D., 797
A.2d at 340 (internal quotation marks and citations omitted).
Here, in terminating Mother’s parental rights, the trial court emphasized
that:
[t]he record demonstrated Mother’s ongoing inability
to provide care for or control of Child and Mother’s
failure to remedy the conditions that brought the Child
into care. Specifically, Mother made insufficient and
inconsistent efforts to meet her SCP objectives, which
included visitation, housing and the participation in
mental health treatment. In addition, the testimony
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of the CUA Representatives and the Mother’s own
relatives made it abundantly clear that Mother was
verbally abusive to Child and that Mother was unable
to provide Child with any degree of parental
encouragement or support.
Trial court opinion, 11/9/18 at 4.
We conclude that the record supports the trial court’s factual findings
and that the trial court did not abuse its discretion in terminating Mother’s
parental rights under Section 2511(a)(2). The record demonstrates that the
conditions that existed upon removal establish repeated and continued
incapacity, abuse, neglect, or refusal of Mother that caused Child to be without
essential parental care, control, or subsistence necessary for his physical or
mental well-being. The record also supports the trial court’s conclusion that
Mother continued to lack capacity to parent Child.
We now turn to whether termination was proper under Section 2511(b).
As to that section, our supreme court has stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.[A.] § 2511(b). The
emotional needs and welfare of the child have been
properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53
A.3d 781, 791 (Pa.Super. 2012). In In re E.M., 620
A.2d [481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare”
requires consideration of the emotional bonds
between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M.,
53 A.3d at 791. However, as discussed below,
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evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
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 at 1121 (internal citations omitted).
Moreover,
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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[c]ommon sense dictates that
courts considering termination must also consider whether the children are in
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a pre-adoptive home and whether they have a bond with their foster parents.”
T.S.M., 73 A.3d at 268. The court directed that, in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
In determining that termination of Mother’s parental rights favored
Child’s needs and welfare, the trial court concluded that “the record reflected
that Mother was an overbearing parent who was incapable of providing the
love and support for Child. In contrast, Child’s foster parent provided Child
with love, support and an opportunity to thrive.” (Trial court opinion, 11/9/18
at 8.) We further note that at the termination hearing, Child was 14 years old
and expressed his preference to be adopted by his foster mother. (Notes of
testimony, 9/18/18 at 57.) Child explained that he wanted to be adopted
because “I don’t have to go through the arguing and fighting no more. I don’t
have to worry about being thrown out of the house. I don’t have to worry
about being beat. I feel safe where I’m at.” (Id. at 59.)
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Mother’s
parental rights under Sections 2511(a)(2) and (b).
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Decree affirmed.
Dubow, J. did not participate in the consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/19
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