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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.A.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.L., MOTHER :
: No. 1 EDA 2017
Appeal from the Decree Entered November 21, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Division, at No. CP-51-AP-0000737-2016
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 22, 2017
S.L. (“Mother”) appeals the decree of the Court of Common Pleas of
Philadelphia County that involuntarily terminated her parental rights to her
daughter K.A.L. (“Child”) and changed Child’s goal to adoption. We affirm.
On March 13, 2013, Philadelphia’s Department of Human Services
(“DHS”) received a general protective services (“GPS”) report, alleging
Mother had been arrested, on March 12, 2013, for an outstanding bench
warrant. The GPS report also alleged that Child and her younger sibling were
in the care of their 19-year-old sister who told DHS that she was unable to
care for the children. On March 15, 2013, DHS obtained an order of
protective custody (“OPC”) for Child. The trial court subsequently held a
shelter care hearing for Child at which the trial court lifted the OPC and
ordered Child temporarily committed to DHS.
Mother was present on May 21, 2013 when DHS held the initial family
service plan (“FSP”) meeting with a goal of reunification. Mother’s goals
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were: (1) participate in mental health services; (2) maintain contact with
Child through weekly visits; (3) cooperate with DHS and any provider
agency; and, (4) complete any individual service plan and FSP objectives.
The trial court adjudicated Child dependent on March 26, 2013 and
committed her to DHS. The trial court further ordered Mother referred to the
clinical evaluation unit (“CEU”) for a drug screen, dual diagnosis and for
assessment and monitoring at the Achieving Reunification Center (“ARC”).
Mother was present at the hearing. On the same date, Mother again tested
positive for benzodiazepines and tetrahydrocannabinol (“THC”). Mother also
tested positive for benzodiazepines and THC on April 30, 2013, May 3, 2013,
May 22, 2013 and May 29, 2013. Thereafter, Mother was administratively
discharged from her drug treatment program because she had not attended
any sessions of the program. The CEU recommended that Mother receive
inpatient treatment.
At a permanency review hearing on February 17, 2015, the trial court
ordered Child to remain committed to DHS and also ordered DHS to conduct
a home assessment of Mother’s residence and directed that, if appropriate,
Child could be reunited with Mother prior to the next court date. At the May
20, 2015, review hearing the trial court learned that Child had been reunited
with Mother with DHS supervision. On October 15, 2015, DHS received a
GPS report that Mother had relapsed and had tested positive for marijuana
and Phencyclidine on October 7, 2015 and October 13, 2015, and that
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Mother had missed 21 out of 31 outpatient drug and alcohol treatment
sessions.
On October 21, 2015, DHS obtained an OPC for Child and placed Child
in foster care. At a shelter care hearing on October 23, 2015, the trial court
lifted the OPC, committed Child to DHS, and ordered Mother to the CEU
forthwith for a drug screen. At a permanency review hearing on May 2, 2016
the trial court ordered Child to remain committed to DHS and ordered
further that Mother be referred to the CEU forthwith for a full drug and
alcohol screen, dual diagnosis assessment and monitoring, and three
random drug screens prior to the next court date. On May 28, 2016, the
Community Umbrella Agency changed its goal from reunification to adoption
and referred Mother to ARC for services.
DHS filed its petition terminating Mother’s parental rights on August
17, 2016. The trial court entered its decree terminating Mother’s parental
rights on November 21, 2016. Mother filed her notice of appeal and concise
statement of errors complained of on appeal on December 21, 2016.
Mother raises the following questions on appeal:
1. Did the [t]rial [c]ourt err in finding that there was clear and
convincing evidence to terminate [Mother’s] parental rights
under 23 Pa.C.S. Section 2511(a)(1), 2511(a)(2), 2511(a)(5),
and 2511(a)(8)?
2. Did the [t]rial [c]ourt err in finding that termination of
[M]other’s parental rights best served [Child’s] developmental,
physical and emotional needs under 23 Pa.C.S. Section 2511(b)?
3. Did the Trial Court err in changing [Child’s] goal to adoption?
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Mother’s Brief, at vi.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court 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. As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
[T]here are clear reasons for applying an abuse of
discretion standard of review in these cases. We observed that,
unlike trial courts, appellate courts are not equipped to make the
fact-specific determinations on a cold record, where the trial
judges are observing the parties during the relevant hearing and
often presiding over numerous other hearings regarding the child
and parents. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (internal citations
omitted).
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The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained that
[t]he 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.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. §2511(a)(1), (2), (5), (8), and (b). This Court may affirm the trial
court’s decision regarding the termination of parental rights with regard to
any one subsection of § 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
In her brief, Mother contends the trial court abused its discretion or
erred as a matter of law in concluding that the evidence was sufficient to
support the involuntary termination of his parental rights under §
2511(a)(1),(2),(5) and (8). We need only address subsection (a)(1).
§ 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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
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With respect to subsection (a)(1), our Supreme Court has held that
[o]nce the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988) (citation
omitted).
Further, this Court has stated that
the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations
omitted).
DHS presented sufficient evidence to terminate Mother’s parental
rights pursuant to § 2511(a)(1). Case manager, Charlene Cook, testified
that Mother made little effort to improve her ability to parent Child after
Child returned to foster care on October 21, 2015, following Mother’s
relapse. Mother failed to complete drug and alcohol treatment, did not enroll
in mental health treatment, and failed to secure housing.
Mother testified she was homeless at the time of the hearing, owed
back rent, and believed only financial assistance would enable her to obtain
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and maintain housing. She did not think housing counseling from ARC would
help her situation. The day before the termination proceeding Mother
entered a recovery house for dual diagnosis treatment, explaining, “I had to
wait for a bed to open.” Mother admitted she did not submit to random drug
screens, claiming she was “out of town," “just totally forgot,” and “didn't
have the carfare.” Mother blamed missed visits with Child on SEPTA and her
work schedule.
Mother admitted she is not ready to parent. Even counsel for Mother
admitted Mother was not ready to parent Child—she asked the court to give
Mother “some time to get everything together.”
Mother’s first attempt at reunification was unsuccessful because she
relapsed. Mother presented no evidence to suggest that a second attempt
will yield a different result. Mother has not benefited from professional
intervention and has failed to engage actively in the treatment services
made available to her after Child’s return to foster care. The same issues
remain outstanding.
The trial court did not abuse its discretion when it found Mother
refused or failed to perform parental duties and terminated her parental
rights pursuant to § 2511(a)(1).
Mother next argues the trial court erred in finding that termination of
her parental rights would best serve Child’s developmental, physical and
emotional needs under § 2511(b). We disagree.
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This Court has stated that the focus in terminating parental rights
under § 2511(a) is on the parent, but it is on the child pursuant to
subsection (b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super 2008) (en banc).
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently 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).
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).
Although it is often wise to have a bonding evaluation and make it part of
the certified record, “[t]here are some instances . . . where direct
observation of the interaction between the parent and the child is not
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necessary and may even be detrimental to the child.” In re K.Z.S., 946
A.2d 753, 762 (Pa. Super. 2008) (citation omitted).
The fact that the child “harbors affection” for a parent and that there is
a biological connection is not enough “to establish [that] a de facto beneficial
bond exists.” In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) “The
psychological aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional health than
the coincidence of biological or natural parenthood.” Id. (citations omitted).
“[A] parent’s basic constitutional right to the custody and rearing of . .
. her child is converted, upon the failure to fulfill . . . her parental duties, to
the child’s right to have proper parenting and fulfillment of [the child’s]
potential in a permanent, healthy, safe environment.” In re B.,N.M., 856
A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted). “[W]e will not
toll the well-being and permanency of [a child] indefinitely.” In re Adoption
of C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.
Super. 2008) (noting that a child’s life “simply cannot be put on hold in the
hope that [a parent] will summon the ability to handle the responsibilities of
parenting.”)).
The termination of Mother’s parental rights is in Child’s best interests.
Between May and September 2016, Mother attended only ten of twenty-nine
visits scheduled with Child. Even after receiving notice of the pending
termination proceeding, Mother only attended two visits with Child during
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September and November 2016. Ms. Cook testified that Mother’s conduct
had a negative effect on Child.
Child has consented to her adoption by her foster parent. Ms. Cook
testified that Child has a bond with her foster mother, calls her “Bonnie
Momma,” looks to her as her parental figure, and enjoys a stable life in her
home.
The evidence presented by DHS establishes Mother lacks the capacity
to meet Child’s needs. Mother has not met Child’s physical and emotional
needs to the extent that Child wants her foster mother to adopt her.
We find Mother has waived her final issue—whether the trial court
erred or abused its discretion by changing Child’s goal to adoption. She
failed to raise it as an issue in her concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Yates v. Yates, 963 A.2d 535,
542 (Pa. Super. 2008).
In any event, even if it had been properly preserved we would have
found it lacks merit. The evidence presented and analyzed above makes it
clear that a change in Child’s permanency goal to adoption is in her best
interests. Reunification is no longer a realistic goal. Child’s adoption by her
foster mother, which Child actively seeks, will protect Child’s safety and her
“physical, mental, and moral welfare.” 42 Pa.C.S.A. § 6351(a). The trial
court did not abuse its discretion when it changed Child’s goal to adoption.
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Accordingly, we affirm the decree terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b), and changing Child’s goal to
adoption.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2017
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