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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.D.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.R., MOTHER :
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: No. 3225 EDA 2016
Appeal from the Order Entered September 8, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-AP-0000693-2016
BEFORE: BOWES, STABILE, and PLATT*, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 19, 2017
K.R. (“Mother”) appeals from the decree entered on September 8,
2016, in the Court of Common Pleas of Philadelphia County, that
involuntarily terminated her parental rights to her daughter, S.D.R., born in
September of 2012.1 Upon careful review, we affirm.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth
the factual and procedural history of this matter, which the record evidence
supports. As such, we adopt it herein. Trial Court Opinion, 4/5/17, at 1-4.
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* Retired Senior Judge assigned to the Superior Court.
1 By separate decrees entered on September 8, 2016, the trial court
involuntarily terminated the parental rights of S.D.R.’s father, A.X.
(“Father”), and the parental rights of the unknown father. Neither Father
nor the unknown father filed notices of appeal.
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By way of background, the Philadelphia Department of Human
Services (“DHS”) received a report on December 3, 2014, alleging that
Mother left S.D.R. alone in a motel room when she was arrested in the State
of Georgia for crimes involving theft. Trial Court Opinion, 4/5/17, at 1.
Upon learning of Mother’s arrest, S.D.R.’s maternal grandmother, M.H.
(“Maternal Grandmother”), retrieved S.D.R. from Georgia and brought her to
Philadelphia. Id. In mid-December of 2014, Mother, who was then released
from prison, contacted DHS and advised that she did not give permission for
Maternal Grandmother to take S.D.R. to Philadelphia, and that she wanted
S.D.R. returned to her care in Georgia. Id. at 2; Petition, 8/1/16, Exhibit
“A,” at ¶ c. On January 9, 2015, DHS learned that Mother had filed a
missing person report, and that S.D.R. was listed as a kidnap victim in the
State of Georgia. Id. at 2-3. On that same date, DHS, pursuant to an order
of protective custody, removed S.D.R. from the custody of Maternal
Grandmother, and placed her in foster care. Id. at 3.
On January 22, 2015, the trial court adjudicated S.D.R. dependent.
Id. at 3. The court ordered that Mother be referred to the Behavioral Health
System (“BHS”). Id. Further, the court ordered that Mother be granted
supervised visitation with S.D.R., and that DHS provide transportation
assistance to Mother, if necessary. DHS Exhibit #1. Thereafter,
permanency review hearings occurred at regular intervals.
On April 21, 2015, the court directed Mother to comply with the Single
Case Plan (“SCP”) objectives to attend parenting classes and anger
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management counseling. Trial Court Opinion, 4/5/17, at 3. On July 21,
2015, the court directed Mother to obtain a parenting capacity evaluation.
Id. On November 9, 2015, the court ordered Mother to attend domestic
violence counseling. Id. In addition, the court directed Mother to provide
written documentation to the Community Umbrella Agency regarding her
treatment plan for both drug and alcohol and mental health services. Id.
By the time of the permanency review hearing on February 3, 2016, Mother
was residing in a shelter in New York City, and she was receiving drug and
alcohol treatment. Id.
On August 1, 2016, DHS filed a petition for the involuntary termination
of Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5),
(8), and (b). The trial court held a hearing on September 8, 2016. At the
commencement of the hearing, Mother’s counsel stipulated on the record in
open court that, if called to testify, the caseworker would testify to the facts
as set forth in the involuntary termination petition. N.T., 9/8/16, at 5; see
also Involuntary Termination Petition, 8/1/16, at Exhibit “A.” In addition,
DHS presented the testimony of James Wirt, the case manager from Turning
Points for Children. Although Mother attended the hearing and was
represented by counsel, she did not testify or present any evidence on her
own behalf.
By decree dated and entered on September 8, 2016, the trial court
granted DHS’s involuntary termination petition. Mother timely filed a notice
of appeal and a concise statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its Rule
1925(a) opinion on April 5, 2017.
On appeal, Mother presents the following issues for our review:
1. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Mother] under 23 Pa.C.S.A. § 2511(a)(1)?
2. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Mother] under 23 Pa.C.S.A. § 2511(a)(2)?
3. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Mother] under 23 Pa.C.S.A. § 2511(a)(5)?
4. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Mother] under 23 Pa.C.S.A. § 2511(a)(8)?
5. Whether the [t]rial [c]ourt erred by finding, under 23
Pa.C.S.A. § 2511(b), that termination of [Mother’s] parental
rights best serve[s] the child’s developmental, physical and
emotional needs and welfare?
Mother’s brief at 5.
We consider Mother’s issues according to the following standard.
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.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which 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 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 need only 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. 2004) (en banc). In this case, we
conclude that the certified record supports the decree pursuant to Section
2511(a)(1) and (b), which provides as follows.2
(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:
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2 Based on this disposition, we need not consider Mother’s issues with
respect to Section 2511(a)(2), (5), and (8).
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(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.
...
(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)(1), (b).
This Court has explained:
To satisfy the requirements of section 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform
parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510
(Pa. Super. 2006). In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to [s]ection 2511(a)(1)
if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to
perform parental duties.
In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
91 (Pa. 1998).
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Once 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).
Id. at 92 (citation omitted).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).
This Court has defined parental duty as follows:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A
child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely
passive interest in the development of the child. Thus, this court
has held that the parental obligation is a positive duty which
requires affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association with
the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a place
of importance in the child’s life.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with . . . her physical and emotional
needs.
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In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004).
With respect to Section 2511(b), this Court has stated that,
“[i]ntangibles such as love, comfort, security, and stability are involved in
the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial court
“must also discern the nature and status of the parent-child bond, with
utmost attention to the effect on the child of permanently severing that
bond.” Id. (citation omitted). However, “[i]n 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).
On appeal, with respect to Section 2511(a), Mother argues that DHS
failed to meet its burden of proof. Specifically, Mother argues that she was
visiting S.D.R. and “was working on her drug and alcohol treatment.”
Mother’s brief at 10. We disagree.
The trial court found that DHS proved by clear and convincing
evidence that Mother refused or failed to perform her parental duties for six
months prior to the filing of the termination petition pursuant to Section
2511(a)(1). The testimony of Mr. Wirt, the case manager, supports the
court’s findings. Mr. Wirt testified that Mother’s SCP goals were to comply
with drug and alcohol treatment, participate in parenting classes, obtain a
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parenting capacity evaluation, obtain housing, and participate in supervised
visitation with S.D.R. N.T., 9/8/17, at 8. He testified that Mother has not
completed any of the objectives. Id. With respect to supervised visitation,
Mr. Wirt testified that, since May of 2016, Mother has attended only two out
of eighteen possible visits with S.D.R. Id. at 9. Further, he testified that
Mother’s last visit with S.D.R. was more than three months before the
termination hearing. Id. at 8-9.
Upon review of the totality of the record evidence, we conclude that
the evidence supports the trial court’s conclusion that Mother has refused or
failed to perform her parental duties far in excess of the requisite six-month
period pursuant to Section 2511(a)(1). Indeed, the record demonstrates
that, by the time of the termination hearing, S.D.R. had been in placement
for twenty-one months, and Mother had not completed any of her SCP
objectives. As such, we discern no abuse of discretion by the trial court.
In addition, Mother baldly asserts that the evidence does not support
termination pursuant to Section 2511(b). We disagree.
Our Supreme Court has stated that, “[c]ommon sense dictates that
courts considering termination must also consider whether the children are
in a pre-adoptive home and whether they have a bond with their foster
parents.” T.S.M., supra 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
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observed that, “[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.
Upon review, there is no evidence that a bond of any kind exists
between S.D.R. and Mother. Therefore, it was reasonable for the court to
infer that none exists. See In re K.Z.S., supra. Mr. Wirt’s testimony
demonstrates that S.D.R. is in a pre-adoptive home, and that she views her
foster mother as her parent. N.T., 9/8/17, at 9. Mr. Wirt testified S.D.R.
will not be harmed if Mother’s parental rights are terminated. Id. at 10.
Based on Mr. Wirt’s testimony, we discern no abuse of discretion by the
court in concluding that involuntarily terminating Mother’s parental rights will
serve S.D.R.’s developmental, physical, and emotional needs and welfare.
To the extent Mother asserts that the evidence does not support
termination because DHS failed to use reasonable efforts to reunify her with
S.D.R., we disagree. In In the Interest of D.C.D., 105 A.3d 662 (Pa.
2014), our Supreme Court reversed the order of this Court and reinstated
the trial court’s decision terminating the father’s parental rights to his child.
In doing so, the D.C.D. Court rejected this Court’s holding that “Section
2511 of the Adoption Act, when read in conjunction with Section 6351 of the
Juvenile Act, requires that an agency must provide a parent with reasonable
efforts aimed at reunifying the parent with his or her children prior to
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petitioning for termination of parental rights and that termination cannot be
granted absent the provision of reasonable efforts.” In the Interest of
D.C.D., supra at 671. Rather, the Court held that nothing in the above-
cited section of the Juvenile Act “forbids the granting of a petition to
terminate parental rights, under Section 2511, as a consequence of the
agency’s failure to provide reasonable efforts to a parent.” Id. at 675. As
such, Mother’s assertion is misplaced. In any event, our review of the
record evidence demonstrates that DHS provided reasonable efforts to
reunify Mother with S.D.R. for twenty-one months. Nevertheless, the record
demonstrates that Mother’s conduct warranted termination pursuant to
Section 2511(a)(1) and that terminating her parental rights will serve
S.D.R.’s developmental, physical, and emotional needs and welfare pursuant
to Section 2511(b). Accordingly, we affirm the decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
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