J-S88018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.K.P.-E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.T.P., MOTHER :
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: No. 344 EDA 2016
Appeal from the Decree December 17, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000261-2015,
CP-51-DP-0002528-2013
IN THE INTEREST OF: D.C.L.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.T.P., MOTHER :
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:
:
: No. 345 EDA 2016
Appeal from the Decree December 17, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000260-2015,
CP-51-DP-0002527-2013
BEFORE: OLSON, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY RANSOM, J.: FILED JANUARY 23, 2017
Appellant, J.T.P., (“Mother”), appeals from the decree in the
Philadelphia County Court of Common Pleas, which terminated her parental
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*
Retired Senior Judge assigned to the Superior Court.
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rights to her minor children, A.J.K.P.-E. and D.C.L.E.1, pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and 2511(b). After a
thorough review of the record, we affirm.
The relevant facts are as follows:
On December 20, 2013, DHS received a Child Protective Services
(CPS) Report which alleged that Child, [A.J.K.P.-E].,[born August
2008,] was hit in the eye and on the leg with a stick by his
Mother, J.[T.]P.; that [A.J.K.P.-E.] suffered bruising and
swelling; and that he was fearful of returning home from school.
It was alleged that [A.J.K.P.-E.] was watching television and
doing his homework when Mother hit him; that he is in the
kindergarten at McDaniel School; that he did not suffer from
delays or disabilities; and that Mother used physical discipline in
the past on both [A.J.K.P.-E.] and [D.C.L.E.], [born October
2006]. It was further alleged that [A.J.K.P.-E.] was transported
to Saint Christopher’s Hospital for a medical assessment and to
the Special Victims Unit (SVU), that the Children resided with
Mother at 2228 Dickenson Street in Philadelphia; that [A.J.K.P.-
E.] had a slight speech impediment; and that Mother had five (5)
prior assault arrests, including Endangering the Welfare of
Children. The Report was indicated against Mother as a
perpetrator of abuse.
On December 20, 2013, Dr. Pramath Nath of St. Christopher’s
Hospital examined [A.J.K.P.-E.] and observed bilateral bruises on
the child’s thighs, a bruise under the right eye and a healing
burn across his entire left forearm. Dr. Nath determined that
[A.J.K.P.-E.] suffered a second degree burn.
Dr. [Maria McColgan], the head of the Child Protection Clinic at
St. Christopher’s Hospital and an Expert in Pediatric and Child
Abuse Medicine concluded that the burn on [A.J.K.P.-E.’s] arm
was consistent with someone having held his arm over the stove
and inconsistent with the child reaching for something on the
stove.
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1
The trial court identifies the Children in an abbreviated fashion, A.J.K.P.-E.
is referenced as A.P.E., and D.C.L.E. is referenced as D.P.E.
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* * *
On December 20, 2013, an Order of Protective Custody (OPC)
was obtained and [D.C.L.E.] and [A.J.K.P.-E.] were placed at
Catholic Social Services.
On December 20, 2013, DHS contacted Mother, who stated that
the staff at McDaniel Elementary School never told her that
[A.J.K.P.-E.] was transported to SVU; that his eye injury
occurred while he was in school; and that the police and school
official had forced [A.J.K.P.-E.] to say that his Mother had
abused him. Mother admitted to using physical discipline on
both Children in the past.
A Shelter Care Hearing was held on December 23, 2013, the
OPC was amended to reflect that an Order of Protective Custody
was obtained on 12/20/2013, the OPC [w]as lifted and the
temporary commitment to DHS was ordered to stand. Mother
was offered supervised visits at the agency.
* * *
On December 30, 2013, Mother was arrested and charged with:
1) aggravated assault; 2) endangering welfare of Children-
parent/guardian/other commits offense; 3) possessing
instrument of crime with intent, simple assault-grading victim
under 12 defendant 21 or older; 4) recklessly endangering
another person; and 5) unlawful restraint/serious bodily injury.
The Court granted a motion to quash on the first three charges
and the remaining two charges were disposed at lower court.
The matter was scheduled for a waiver trial on May 15, 2015, in
Criminal Courtroom 1005.
On January 8, 2014, an Adjudicatory Hearing was held. The
Court discharged the Children’s temporary commitment to DHS;
adjudicated both Children Dependent; and committed them to
DHS. The Children were referred to Behavioral Health Services
(BHS) for consultation and/or evaluation; a paternity test was
ordered for putative father, C.E. as to [A.J.K.P.-E.]; Mother was
referred to the Achieving Reunification Center (ARC[)]; and a
criminal stay-away Order was Ordered to Stand. Mother to not
have visits until therapist says appropriate. Grandmother to
have supervised visits with the Children at the Agency.
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On February 11, 2014, DHS held an initial Family Services Plan
(FSP) Meeting. The goal for [D.C.L.E.] and [A.J.K.P.-E.] was
“Return to Parent”. The parental objectives established for
Mother and Father were: 1) parents to meet with parent
educator on a weekly basis to understand how their
behavior/neglect resulted in injury and/or neglect to their
Children; 2) Mother will meet with parent educator on a weekly
basis to be educated on the expected behavior for Children; 3)
Mother will set age appropriate expectations; 4) Father will meet
with parent educator on a weekly basis to be educated on the
expected behavior for Children; 5) Father will set age
appropriate expectations; 6) Mother will participate in mental
health evaluation; Mother will comply with all treatment
recommendations; 7) Father will report to Family
Court/Domestic Relations Division for paternity test; 8) Father
will keep all visits and maintain regular contact with Children; 9)
Father will meet regularly with agency social worker and follow
through with Individual Service Plan (ISP); 10) Mother will meet
regularly with agency social worker and follow through with ISP.
Mother attended the meeting and signed the FSP. C.E.
participated via telephone.
On March 20, 2014, DHS referred Mother to ARC. Areas of
service included: parent education, anger management, mental
health, employment, housing and women’s empowerment group.
* * *
On August 6, 2014, a Permanency Review Hearing was held.
The [c]ourt found that the Children received therapeutic staff
support (TSS) services and trauma-focused therapy. The [c]ourt
ordered that both Children remain committed to DHS. The
[c]ourt found by clear and convincing evidence that Mother was
the perpetrator of child abuse as to Children, [A.J.K.P.-E.] and
[D.C.L.E.] An Aggravated Circumstances Order was issued and
that Mother’s criminal Stay-Away Order as to both Children was
to stand. If Mother’s Stay-Away Order is lifted, her visits are
suspended until the Children’s Therapist recommends otherwise.
It was further ordered that no efforts are to be made to preserve
the family and reunify the Children with Mother.
On January 26, 2015, a Permanency Review Hearing was held.
The [c]ourt found that [A.J.K.P.-E.] remained placed at
Devereux for psychiatric treatment; that he receives trauma-
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focused therapy through Children’s Crisis Treatment Center; and
that DHS is exploring goal change/termination of parental rights.
The [c]ourt ordered that [A.J.K.P.-E.] may be moved to
appropriate treatment foster care prior to the next court hearing,
if DHS and Child Advocate agree. The [c]ourt found that
[D.C.L.E.] was doing well; that she receives trauma-focused
therapy through Silver Springs. The [c]ourt ordered that Mother
participate in the second half of the Parenting Capacity
Evaluation authorized DHS to sign for [D.C.L.E.’s] treatment plan
if Mother is not available. The next hearing for [D.C.L.E.] and
[A.J.K.P.-E.] was scheduled as a Contested Goal
Change/Termination Hearing.
Trial Court Opinion, 4/19/16 at 3-11.
In December 2015, following three days of hearings, the court
terminated Mother’s parental rights as to both Children pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), as well as 2511(b), and changed the
children’s goal to adoption. In January 2016, Mother was granted leave to
appeal nunc pro tunc. She did so and filed a statement pursuant to
Pa.R.A.P. 1925(b). In April 2016, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Mother raises the following issues on appeal:
1. Did the Department of Human Services (DHS) sustain the
burden that Mother’s rights should be terminated when
there was evidence that [M]other had completed almost all
of her permanency goals?
2. Was there sufficient evidence presented to establish that it
was in the best interest of the children to terminate
[M]other’s parental rights.
Appellant’s Brief at 4.
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Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence2
that the asserted grounds for seeking the termination of parental rights are
valid. In re S.H., 879 A.2d at 806.
“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. and J.G., Minors, 855 A.2d
68, 73-74 (Pa. Super. 2004). “If competent evidence supports the trial
court’s findings, we will affirm even if the record could also support the
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2
The standard of clear and convincing evidence is defined as testimony that
is so “clear, direct, weighty and convincing as to enable the trier of fact to
come to a clear conviction, without hesitance, of the truth of the precise
facts in issue.” In re J.L.C. and J.R.C., 837 A.2d 1247, 1251 (Pa. Super.
2003).
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opposite result.” In re Adoption of T.B.B., Jr., 835 A.2d 387, 394 (Pa.
Super. 2003).
We only need to agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 20014) (en banc). As such, we will
focus on 2511(a)(2) and 2511(b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule. – The rights of a parent in regard to a child
may be terminated after a petition filed on any of the
following grounds:
* * *
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and
the conditions and causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied by
the parent.
* * *
(b) Other considerations. – The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the
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.
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23 Pa.C.S.A. § 2511(a)(2), (b).
We first examine the court’s termination of Mother’s parental rights
pursuant to Section 2511(a)(2). To satisfy the requirements of Section
2511(a)(2), the moving party must prove by clear and convincing evidence
the following elements 1) repeated and continued incapacity, abuse, neglect
or refusal; 2) such incapacity, abuse, neglect or refusal caused the child to
be without essential parental care, control or subsistence necessary for his
physical or mental well-being; and 3) the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied. See In re Adoption of
M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds for
termination based on incapacity are not limited to affirmative misconduct.
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).
Mother argues that she completed most of her permanency objectives
and as such, DHS failed to meet its burden. Mother’s assertion is
misleading. While she has completed a parenting class and an anger
management class, she has failed to attend mental health treatment or
complete the second part of her parenting capacity evaluation. Notes of
Testimony (N.T.), 5/14/15, at 60-61. Furthermore, although Mother
completed an anger management class, the court expressed ongoing
concern regarding Mother’s anger. Trial Court Opinion, 4/19/16, at 20. The
trial court noted concerns regarding Mother’s irate behavior and that she
was escorted out of the courtroom during a hearing. Id. In essence,
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Mother has refused to meet her objectives, thus leaving her children without
essential parental care, control or substance necessary for their mental well-
being.
The trial court found persuasive the testimony of Dr. Erica Williams,
the Director of Forensic Services at Assessment and Treatment Alternatives,
Inc. and stipulated to be an expert in the area of parenting capacity and
forensic evaluation of parenting capacity. According to Dr. Williams, Mother
lacked the capacity to provide safety and permanency for the children. Id.
at 21. Dr. Williams expressed concerns regarding Mother’s mental health,
failure to take responsibility for her children’s injuries, and lack of treatment
to address these issues. Dr. Williams concluded that Mother met the DSM 5
criteria for unspecified schizophrenia, spectrum, and other psychotic
disorder. N.T. 12/17/15 at 7-16. Due to Mother’s refusal to address her
mental health objective, her continued incapacity renders her unable to
provide parental care, control or subsistence to her children. Accordingly,
termination under Section 2511(a)(2) was appropriate.
After we determine that the requirements of Section 2511(a) are
satisfied, we proceed to review whether the requirements of Section 2511(b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
Super. 2008) (en banc). Pursuant to Section 2511(b), the court, in
terminating the rights of a parent, shall give primary consideration to the
developmental, physical, and emotional needs and welfare of a child.
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In evaluating the needs and welfare of the Children, it is evident that
terminating Mother’s parental rights is in their best interest. Due to abuse
and the trauma inflicted by Mother, she has not visited with them since they
were committed to DHS. N.T. 5/14/15 at 83. Furthermore, the Children
have expressed no interest in seeing Mother. Id.; N.T., 7/28/15, at 27.
When Mother’s name was mentioned, A.J.K.P.-E. exhibited anxiety. N.T.,
7/28/15, at 28. The trial court found credible the testimony of the Children’s
therapists as well as the testimony of the social workers, all of whom opined
that termination was in the best interest of the children. Trial Court Opinion
at 11-16. Terminating Mother’s parental rights is in the Children’s best
interest, as Mother has failed to address her role in the abuse and trauma
she inflicted on her children.
There is competent evidence in the record that supports the trial
court’s credibility and weight assessments that severing the bond with
Mother would not cause the Children irreparable harm. Thus, we conclude
that the trial court did not abuse its discretion in terminating Mother’s
parental rights to the Children with regard to section 2511(b).
Accordingly, after a careful review, we affirm the decree terminating
Mother’s parental rights on the basis of 2511(a)(1) and (b).
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2017
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