J-S19033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.J.R.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: A.Y.R., MOTHER : No. 3581 EDA 2018
Appeal from the Order Entered November 8, 2018
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): 52-FN-326-2012
CP-51-DP-0002046-2017
IN THE INTEREST OF: L.R.-J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.Y.R., MOTHER : No. 3582 EDA 2018
Appeal from the Decree Entered November 8, 2018
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): 52-FN-326-2012
CP-51-AP-0000589-2018
BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 11, 2019
A.Y.R. (Mother) appeals from the decree entered November 8, 2018,
which terminated involuntarily her parental rights to her daughter, L.J.R.J.1
(Child), born in July 2017.2 Mother also appeals from the order entered that
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Child’s name appears on her birth certificate as L.J.R.J. However, her
name also appears in the record as L.R.-J.
2 The trial court entered an additional decree terminating involuntarily the
parental rights of R.H.J. (Father). Father neither appealed the termination
of his parental rights, nor participated in this appeal.
J-S19033-19
same day, which changed Child’s permanent placement goal to adoption.
We affirm.
The record reveals that the Philadelphia Department of Human
Services (DHS) filed an application for order of protective custody of Child on
August 2, 2017. DHS averred that it received a general protective services
report the day after Child was born. The report indicated that, while Mother
and Child tested negative for illegal substances at the time of Child’s birth,
Mother had tested positive for phencyclidine (PCP) and cocaine
approximately three months earlier in April 2017. Further, the report
indicated that Mother had received only sporadic prenatal care, that she
suffered from untreated mental health issues, that she was homeless, and
that she had two other children who were not in her care. The trial court
granted protective custody of Child to DHS and entered a shelter care order
on August 4, 2017. The court adjudicated Child dependent on August 14,
2017.3
On July 18, 2018, DHS filed petitions to terminate Mother’s parental
rights to Child involuntarily, and to change Child’s permanent placement
goal from reunification to adoption. The trial court held a hearing on
November 8, 2018, at the conclusion of which it announced that it would
____________________________________________
3 The trial court entered an order finding aggravated circumstances on May
7, 2018, due to the termination of Mother’s parental rights involuntarily to a
previous child in May 2013.
-2-
J-S19033-19
terminate Mother’s rights.4 The court then entered a termination decree and
an order changing Child’s goal to adoption. Mother timely filed notices of
appeal on December 5, 2018, along with concise statements of errors
complained of on appeal.5
Mother raises the following claims for our review: whether the trial
court erred in terminating Mother’s parental rights involuntarily pursuant to
23 Pa.C.S. § 2511(a)(1), (2), (5), and (8) and 23 Pa.C.S. § 2511(b).
Mother’s Brief at 3.6
We review Mother’s claims mindful of our well-settled standard of
review.
____________________________________________
4 Shannon Sherwood, Esquire, served as Child’s legal counsel and guardian
ad litem during the proceedings. Attorney Sherwood reported that Child,
who was one year old at the time, was nonverbal and unable to express her
preferred outcome. N.T., 11/8/2018, at 40, 122. However, Attorney
Sherwood noted that Child appeared happy in her foster home. Id. at 40.
She argued in support of terminating Mother’s parental rights during the
hearing. She also filed a brief on appeal supporting termination and the
change of goal.
5 This court sua sponte consolidated the appeals. Per Curiam Order,
1/7/2019.
6 While Mother appealed the order changing Child’s permanent placement
goal to adoption, she did not include a challenge to the goal change order in
her statement of questions involved or in the argument section of her brief.
Thus, Mother waived any challenge to that order. In re M.Z.T.M.W., 163
A.3d 462, 465-66 (Pa. Super. 2017) (“It is well-settled that this Court will
not review a claim unless it is developed in the argument section of an
appellant’s brief, and supported by citations to relevant authority.… Further,
it is well-settled that issues not included in an appellant’s statement of
questions involved … are waived.”).
-3-
J-S19033-19
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)[.]
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the instant matter, the trial court terminated Mother’s parental
rights to Child pursuant to subsections 2511(a)(1), 7 (2), (5), (8), and (b).
____________________________________________
7 At the conclusion of the hearing, the trial court indicated that it would not
terminate Mother’s “parental rights pursuant to 2511(a)(1).” N.T.,
11/8/2018, at 124. Nonetheless, the court’s decree terminated Mother’s
parental rights pursuant to, inter alia, subsection 2511(a)(1).
-4-
J-S19033-19
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 decision
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. § 2511(a)(2), (b).
We first consider if the trial court abused its discretion by terminating
Mother’s parental rights pursuant to subsection 2511(a)(2).
-5-
J-S19033-19
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.
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 trial court found that Child had been in foster care for more
than fifteen months at the time of the hearing and that Mother continued to
lack adequate housing. N.T., 11/8/2018, at 125-26. The court further
found that Mother engaged in illegal drug use as recently as September
2018.8 Id. at 126-27. The court observed that Mother voluntarily left her
____________________________________________
8 The trial court stated incorrectly that it could not consider Mother’s efforts
to remedy her parental incapacity that occurred after DHS filed its
termination petition on July 18, 2018, in considering whether termination
was appropriate under subsection 2511(a)(2). See N.T., 11/8/2018, at 126
(“The petitions for this case were filed on July 18th. So, technically, I should
not consider any of mom’s efforts to address the issues that she was having,
mainly her drug and alcohol issues.”). The provision that the court was
referring to applies only to termination pursuant to subsections 2511(a)(1),
(6), and (8). See 23 Pa.C.S. § 2511(b) (“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
(Footnote Continued Next Page)
-6-
J-S19033-19
prior drug and alcohol treatment program six weeks prior to the hearing, but
had not yet begun treatment at a new program. Id. at 127. Therefore, the
court concluded that DHS met its burden of proof with respect to subsection
2511(a)(2).
Mother challenges the trial court’s findings by asserting that there is
no evidence in the record that she engaged in illegal drug use during or
before her pregnancy, or that she received inadequate prenatal care.
Mother’s Brief at 14. Mother further asserts that there is no evidence in the
record that she has untreated mental health issues “serious enough to make
her incapable of parenting her child.” Id. While Mother acknowledges that
she tested positive for illegal substances repeatedly, she maintains that the
court could not hold this against her, because her drug use occurred after
Child entered foster care, and it was therefore not a condition that caused
Child to be without essential parental care, control, or subsistence. Id. at
15. Finally, Mother contends that it was improper for the court to hold her
lack of appropriate housing against her, citing the portion of subsection
2511(b) providing that a court may not terminate parental rights based
solely on environmental factors beyond the control of the parent. Id. at 15-
16.
(Footnote Continued) _______________________
first initiated subsequent to the giving of notice of the filing of the
petition.”).
-7-
J-S19033-19
We discern no abuse of discretion by the trial court. During the
hearing, Community Umbrella Agency (CUA) case manager, Janae
Alexander, testified that Mother’s case goals included attending court
hearings, visiting with Child, participating in mental health treatment,
participating in drug and alcohol treatment, and complying with the
Achieving Reunification Center (ARC). N.T., 11/8/2018, at 98.
Concerning Mother’s compliance with her goals, Ms. Alexander testified
she struggled to contact Mother after she began working on this case in
August 2017. Id. at 91. Ms. Alexander was initially unable to contact
Mother because the phone number in the referral was incorrect. Id.
Fortunately, Mother contacted Ms. Alexander and provided another phone
number. Id. However, whenever Ms. Alexander attempted to call the new
phone number, it was disconnected. Id. Ms. Alexander recalled, “When
mom would make outreach to me … it was from different numbers, and I
would always call those numbers back. Most of the time, it was someone at
the bus stop who, you know, let her use the phone to get in contact with
me.” Id. at 91-92. Because of Ms. Alexander’s difficultly contacting Mother,
“a few months” went by before Mother was able to visit with Child. Id. at
92. Mother visited with Child sporadically in October 2017, but did not have
any further visits until June 2018. Id. at 92, 105. Ms. Alexander agreed
-8-
J-S19033-19
that this pause in visits occurred because Mother was either difficult to
contact or was attending inpatient drug and alcohol treatment.9 Id. at 111.
With respect to mental health treatment, Ms. Alexander testified that
Mother reported attending Community Council in June 2018. Id. at 96-97.
However, Ms. Alexander was unable to confirm this because Mother refused
to sign the necessary consent forms. Id. In addition, Mother had an
appointment to complete a mental health evaluation at Gaudenzia but never
attended.10 Id. at 104, 109.
As for Mother’s drug and alcohol treatment goal, Ms. Alexander
testified that Mother participated in drug screens at the Clinical Evaluation
Unit. Id. at 94. Mother tested positive for PCP on August 14, 2017; June
25, 2018; July 18, 2018; July 26, 2018; August 3, 2018; August 29, 2018;
and September 20, 2018. Id. at 94-95. She tested positive for PCP and
cocaine on May 7, 2018, and July 11, 2018. Id. at 94. In May 2018, Ms.
Alexander learned that Mother was attending inpatient drug and alcohol
____________________________________________
9 Even after Mother’s visits resumed, the record indicates that she failed to
attend four of the visits without calling in advance or providing an excuse.
N.T., 11/8/2018, at 85-86.
10 Ms. Alexander acknowledged that she was unsure why Mother had a
mental health goal. N.T., 11/8/2018, at 103-04. She stated, “It was just
something that was court-ordered, so, I followed through with it.” Id.
Mother testified that she receives Supplemental Security Income because,
since she was “very young, I always had something like anxiety issues ….
They want to label it as ADHD.” Id. at 80-81.
-9-
J-S19033-19
treatment at Kirkbride and that the program planned to discharge her
successfully in approximately five to seven days.11 Id. at 93, 109-10.
Finally, Ms. Alexander testified that she referred Mother to ARC on two
occasions for parenting and housing services. Id. at 95, 99. ARC
discharged Mother unsuccessfully after the first referral due to her lack of
participation. Id. at 96. When Ms. Alexander referred Mother a second
time, ARC declined to place her in parenting classes. Id. Ms. Alexander
explained, ARC said it “believed that [Mother] didn’t have the capability of
sitting in a parenting class, so, [it] asked that she be evaluated, but [it] said
she refused the evaluation.”12 Id. With respect to housing, Mother reported
to Ms. Alexander that she lives in a shelter. Id. at 99. Mother has lived in
three different shelters since August 2017, when Child was placed into the
protective custody of DHS, and at one point was homeless. Id. at 103, 108.
Accordingly, the record supports the trial court’s conclusion that
Mother is incapable of parenting Child and that she cannot or will not
____________________________________________
11 After completing Kirkbride, Mother began attending intensive outpatient
treatment at Chances on July 23, 2018. N.T., 11/8/2018, at 53-55.
Mother’s therapist at Chances, Robin Superville, testified that she attended
treatment inconsistently and tested positive for PCP and cocaine. Id. at 54-
55. She tested positive on each of her seventeen drug screens. Id. at 56.
Mother left Chances against the program’s advice on September 27, 2018.
Id. at 52-53. Mother testified that she planned to attend further treatment
elsewhere and that she was “just about to do all the paperwork.” Id. at 79-
80.
12Mother later completed a parenting class at Chances. N.T., 11/8/2018, at
56-57.
- 10 -
J-S19033-19
remedy her parental incapacity pursuant to subsection 2511(a)(2). By the
time of the hearing on November 8, 2018, Child had been in foster care for
over fifteen months, nearly Child’s entire life. During that time, Mother
failed to maintain consistent contact with DHS and failed to visit Child
consistently. Mother also failed to obtain housing and refused an evaluation
at ARC. Compellingly, Mother tested positive repeatedly for illegal
substances, including PCP and cocaine. While Mother now attempts to argue
that the court could not hold her drug use against her because it occurred
after Child entered foster care, this argument is meritless. Even accepting
for the sake of argument that Mother’s drug use arose after Child’s
placement,13 it still prevented her from gaining the stability necessary to
care for Child and therefore caused Child to be without essential parental
care, control, or subsistence. Finally, we reject Mother’s argument that the
court erred by terminating her parental rights to Child based on her lack of
housing. The relevant portion of subsection 2511(b) provides that a court
may not terminate parental rights “solely on the basis of environmental
factors such as inadequate housing … if found to be beyond the control of
the parent.” 23 Pa.C.S. § 2511(b). It is apparent that the court did not
____________________________________________
13 Mother’s testimony during the hearing contradicts this claim, as she stated
that she first began attending drug treatment “a week before I was
pregnant.” N.T., 11/8/2018, at 80. Moreover, as noted supra, Child was
initially placed in DHS protective custody, in part, because Mother had tested
positive for PCP and cocaine while pregnant with Child.
- 11 -
J-S19033-19
terminate Mother’s parental rights based solely on her lack of housing.
Moreover, the record does not support a finding that Mother’s lack of
housing was beyond her control. DHS referred Mother to ARC for housing
services and the record does not indicate that she made any effort to utilize
the services or otherwise attempt to obtain appropriate housing. Mother’s
claim does not entitle her to relief.
Next, we consider if the trial court abused its discretion by terminating
Mother’s parental rights involuntarily pursuant to subsection 2511(b). We
apply the following analysis.
S[ubs]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.
- 12 -
J-S19033-19
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)).
In this case, the trial court found that Mother acted appropriately
during visits with Child, but that “being appropriate during visits, of which I
believe the testimony was there [were] 16, is not the same as being a
parent.” N.T., 11/8/2018, at 129. The court noted the lack of evidence that
Mother has been involved in Child’s life and reasoned that, while Mother and
Child do share a bond, it is not a parent-child bond. Id. at 129-30. The
court emphasized that Child has a very positive relationship with her pre-
adoptive foster mother, with whom she has lived for nearly her entire life.
Id. at 130. Therefore, the court concluded that termination of Mother’s
parental rights would not cause Child to suffer irreparable harm, and would
best serve Child’s needs and welfare pursuant to subsection 2511(b). Id.
In response, Mother directs our attention to testimony presented
during the hearing indicating that she and Child share a bond. Mother’s
Brief at 19. Mother also asserts that the trial court “erred in her § 2511(b)
analysis in focusing upon Mother’s conduct and her status as non-custodial
parent rather than the emotional relationship between Mother and Child.”
Id. She argues that any child in foster care must rely by necessity on his or
her foster parent and that this natural reliance on a primary caretaker is not
the same thing as a parent-child bond. Id. at 20-21. Mother insists that
Child was only one year old and nonverbal at the time of the hearing, and
- 13 -
J-S19033-19
did not exhibit any “nonverbal cues” that she would prefer living with her
foster mother rather than Mother. Id. at 21.
We again discern no abuse of discretion. CUA visitation coach,
Shantae Pressley, testified that she began supervising Mother’s visits with
Child in June 2018. N.T., 11/8/2018, at 82. Ms. Pressley observed fourteen
visits in total. Id. at 82-83. She reported that Mother interacts well with
Child. Id. at 89. Child appears comfortable with Mother, and Ms. Pressley
believed that Mother and Child share a bond. Id. at 90. Nonetheless, Child
does not appear upset when she separates from Mother at the conclusion of
visits. Id. at 83. In addition, Ms. Pressley did not believe that Child would
suffer irreparable harm if the trial court terminated Mother’s parental rights
because Child shares a bond with her pre-adoptive foster mother, with
whom she has lived since she entered foster care. Id. at 85.
Similarly, Ms. Alexander testified that Child did not appear upset
during the approximately eight months that Mother was not visiting with her.
Id. at 105. Concerning the one visit between Mother and Child that she
observed, Ms. Alexander testified that Child seemed reluctant to interact
with Mother. Id. at 100-01. She recalled, “[Child] cried. She ran back to
me, because she didn’t want to be in her presence, but mom pulled out the
lollipop to bribe her, and that’s when [Child] began to interact with her, due
to the lollipop.” Id. at 101. She opined that Child has “a really close bond”
- 14 -
J-S19033-19
with her foster mother and that adoption would be in Child’s best interest.
Id. at 101-02.
Thus, the record demonstrates that terminating Mother’s parental
rights would best serve Child’s needs and welfare. Child has never lived with
Mother and has spent time with Mother only sporadically during her short
life. While the record contains some evidence that Child gets along well with
Mother, it also indicates that Child has no difficulty separating from her when
their visits are over. Accordingly, the record belies Mother’s insistence that
she and Child share a relationship significant enough to warrant preservation
of her parental rights. In addition, it is clear that Child shares a parent-child
bond with her pre-adoptive foster mother, with whom she has resided since
she entered foster care. See Matter of Adoption of M.A.B., 166 A.3d 434,
449 (Pa. Super. 2017) (“[A] child develops a meaningful bond with a
caretaker when the caretaker provides stability, safety, and security
regularly and consistently to the child over an extended period of time.”).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by terminating Mother’s parental rights to Child involuntarily.
Therefore, we affirm the court’s November 8, 2018 decree and order.
Decree affirmed. Order affirmed.
- 15 -
J-S19033-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
- 16 -