J-S65032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.E.B., MOTHER : No. 2025 EDA 2017
Appeal from the Order Entered May 25, 2017
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000098-2017, CP-51-DP-0003369-2015
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 21, 2017
T.E.B. (“Mother”) appeals from the Order involuntarily terminating her
parental rights to her minor daughter, S.M.W. (“Child”), born in December
2015, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b)1 of the
Adoption Act.2 We affirm.
In December 2015, the Philadelphia Department of Human Services
(“DHS”) filed an Application for Protective Custody for Child after she and
Mother tested positive for marijuana and cocaine at Child’s birth. In its
Application, DHS also averred that Mother had a history of substance abuse
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1
The trial court entered a separate Order terminating the parental rights of
Child’s father, J.R.W. (“Father”). Father has separately appealed the
termination of his parental rights, which is docketed at 2024 EDA 2017.
2
23 Pa.C.S.A. § 2101-2938.
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and mental health issues, was noncompliant in her mental health treatment,
and that Mother’s five other children had already been removed from her care.
DHS additionally alleged that Mother had a life-threatening health condition
and was noncompliant in taking her medication to treat the condition.3 The
trial court granted the Application, and Child was placed in foster care. Child
remained in foster care pursuant to a shelter-care Order entered on December
30, 2015. On January 14, 2016, following the filing of a DHS Petition, the trial
court adjudicated Child dependent. Subsequently, following a hearing, the
trial court found aggravated circumstances and entered an Order on April 21,
2016, relieving DHS of its obligation to make reasonable efforts to reunite
Mother and Child.
On January 25, 2017, DHS filed a Petition to involuntarily terminate
Mother’s parental rights to Child. Following several continuances, the trial
court conducted a termination hearing on May 25, 2017. Following the
hearing, the trial court entered an Order terminating Mother’s parental rights
to Child. The trial court also changed Child’s permanency goal from
reunification to adoption.4
Mother timely filed a Notice of Appeal, along with a Pa.R.A.P.
1925(a)(2)(i) and (b) Concise Statement.
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3
Mother has Human Immunodeficiency Virus (“HIV”). N.T., 5/25/17, at 13.
4
Mother did not file an appeal from this determination.
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On appeal, Mother presents the following questions for our review:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
Pa.C.S.A. [§] 2511(a)(1)[,] where [M]other presented
evidence that she substantially met her [Family Service Plan
(“FSP”)] goals and is able to perform her parental duties[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
Pa.C.S.A. [§] 2511(a)(2)[,] where [M]other presented
evidence that she has remedied her situation by attending
parenting [classes], and continuing to receive drug treatment
and mental health treatment[, and] Mother has the present
capacity to care for [] [C]hild[?]
3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
Pa.C.S.A. [§] 2511(a)(5)[,] where evidence was provided to
establish that [] [C]hild was removed from the care of []
[M]other, and that [M]other is now capable of caring for []
[C]hild[?]
4. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
Pa.C.S.A. [§] 2511(a)(8)[,] where evidence was presented to
show that [M]other is now capable of caring for [] [C]hild since
she has completed parenting [classes] and continues her drug
treatment and mental health treatment[?]
5. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother] pursuant to 23
Pa.C.S.A. [§] 2511(b)[,] where evidence was presented that
established that [M]other consistently visited [Child] twice a
week[,] and [Child] had a parental bond with [] [M]other[?]
Mother’s Brief at 7.
In reviewing an appeal from an Order terminating parental rights, we
adhere to the following standard:
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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).
Termination of parental rights is controlled by section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden rests upon the petitioner
to prove by clear and convincing evidence that the asserted grounds for
seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d
273, 276 (Pa. Super. 2009). This Court may affirm the trial court’s decision
regarding the termination of parental rights with regard to any one subsection
of section 2511(a), along with a consideration of section 2511(b). See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In the instant case,
the trial court terminated Mother’s parental rights under section 2511(a)(1),
(2), (5), (8), and (b). We will focus on sections 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:
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(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.
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(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), (5) 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).
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). The
grounds for termination of parental rights under section 2511(a)(2), 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); see also In re A.S., 11 A.3d 473, 481 (Pa. Super. 2010)
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(noting that section 2511(a)(2) “does not emphasize a parent’s refusal or
failure to perform parental duties, but instead emphasizes the child’s present
and future need for essential parental care, control or subsistence necessary
for his physical or mental well-being.”) (citation omitted).
Mother argues that the trial court abused its discretion in terminating
her parental rights pursuant to section 2511(a)(2) because she had
“completed her FSP goals of parenting classes, housing and drug and mental
health treatment.” Mother’s Brief at 16. Mother argues that she has been
enrolled in a dual diagnosis treatment program for approximately one year,
and the only “[drug] screens presented in court were positive drug screen[s]
from 2016[,] when [M]other first began the program.” Id. Mother also
asserts that she can provide Child with a safe home. Id.
In granting DHS’s petition for involuntary termination, the trial court
determined as follows:
The record demonstrated Mother’s ongoing inability to provide
care or control for the Child due to her ongoing drug use and her
refusal to seek drug and mental health treatment. The [trial
c]ourt found clear and convincing evidence that termination of
Mother’s parental rights would be in the best interest of the Child
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1)[,](2)[,](5) and (8) and
23 Pa.C.S.A. § 2511(b).
At the [t]ermination [h]earing, the [Community Umbrella Agency
(“CUA”)] Representative testified that Mother had not met her
[stated o]bjectives. Specifically, the CUA Representative testified
that Mother was not compliant with her outpatient drug and
alcohol treatment. The CUA Representative testified that Mother
consistently tested positive for controlled substances throughout
the history of the case. The CUA Representative testified that
Mother tested positive for marijuana and cocaine on January 14,
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2016, February 10, 2016, and March 30, 2016. The CUA
Representative testified that Mother also tested positive for
marijuana on March 18, 2016[,] and April 21, 2016. The CUA
Representative testified that Mother had been inconsistent as to
her parenting classes and mental health treatment. As a result,
the CUA Representative testified that it was in the Child’s best
interest that the goal be changed to adoption. Specifically, the
CUA Representative testified that during visitation with the
Child[,] Mother demonstrated an inability to give proper attention
to the Child. The CUA Representative testified that the
termination of [] Mother’s parental rights would not harm the Child
and that the Child was in a pre-adoptive home.
Trial Court Opinion, 7/21/17, at 4-5 (internal citations omitted); see also
N.T., 5/25/17, at 5-8 (wherein Gaylen Brunson (“Brunson”), the CUA
Representative assigned to Mother’s case, testified that Mother was not
compliant with the program at Chances, an outpatient substance abuse
treatment program, continued to test positive when given random drug
screens, and was noncompliant with her mental health treatment).
Our review of the record supports the trial court’s decision. DHS
removed Child from Mother’s care based upon Child and Mother testing
positive for marijuana and cocaine at Child’s birth, and Mother’s untreated
mental health issues. These problems rendered Mother incapable of parenting
Child at the time of her removal. Further, Mother’s inability to produce a
negative drug screen for any appreciable amount of time supports the trial
court’s conclusion that Mother refuses to remedy the conditions that led to
Child’s placement. Although Mother has completed a parenting class and
obtained housing, she has failed to alleviate the concerns that caused Child to
be placed in the care of DHS. Indeed, Mother’s repeated and continued
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incapacity, neglect, or refusal to perform her parental duties has caused Child
to be without essential parental care, control or subsistence necessary for her
physical and mental well-being. Accordingly, we discern no abuse of discretion
by the trial court in terminating Mother’s parental rights pursuant to section
2511(a)(2).
Next, we review the termination of Mother’s parental rights under
section 2511(b). Mother contends that the trial court abused its discretion in
terminating her parental rights under section 2511(b). Mother’s Brief at 18.
Mother argues that she has visited Child twice a week. Id. at 18-19. Mother
asserts that there was no evidence that termination was in the best interests
of Child. Id. at 19.
With respect to section 2511(b), the focus in terminating parental rights
under section 2511(a) is on the parent, but it is on the child pursuant to
section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008) (en banc). Under section 2511(b), the trial court “shall give
primary consideration to the developmental, physical and emotional needs
and welfare of child.” 23 Pa.C.S.A. § 2511(b). “Intangibles such as love,
comfort, security, and stability are involved in the inquiry into needs and
welfare of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)
(citation omitted). The trial court must take into account whether a natural
parental bond exists between child and parent, and whether termination would
destroy an existing, necessary and beneficial relationship. In re C.S., 761
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A.2d 1197, 1202 (Pa. Super. 2000) (en banc); see also In re N.A.M., 33
A.3d at 103. “However, the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case.” In re N.A.M., 33 A.3d
at 103 (citation omitted). In conducting a bonding analysis, the court is not
required to use expert testimony, but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.
2010); see also In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008) (stating
that 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 necessary and may
even be detrimental to the child.”). Further, there is no bond worth preserving
between a child and a natural parent where the child has been in foster care
for most of the child’s life, and the resulting bond with the natural parent is
attenuated. In re K.Z.S., 946 A.2d at 764.
Here, Brunson testified that he believed it was in Child’s best interest to
be adopted; Child was in a pre-adoptive home; and Child would not suffer any
irreparable harm by terminating Mother’s parental rights. N.T., 5/25/17, at
9-10. Brunson pointed out that Mother could not care for Child, and Mother
had not progressed to unsupervised visits with Child. Id. at 8-9; see also id.
at 14-15 (wherein DHS’s counsel stated that Child has been in foster care for
her entire life, Mother has never cared for Child on a full-time basis, and that
termination of Mother’s parental rights was in the best interest of Child); id.
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at 15 (wherein Child’s guardian ad litem and counsel indicated that
termination was in the best interests of Child).
The evidence within the certified record demonstrates that the
termination of Mother’s parental rights would best serve Child’s needs and
welfare because it would provide Child with the permanency and stability that
she needs in her life with her pre-adoptive family. See Trial Court Opinion,
7/21/17, at 5. At the time of the hearing, Child had been in placement for
seventeen months, the entirety of her life. See In re K.Z.S., 946 A.2d at
764. It serves Child’s developmental, physical and emotional needs and
welfare to terminate Mother’s parental rights since it is unclear when, if ever,
Mother will be ready to assume her parental responsibilities. See In re
Adoption of C.L.G., 956 A.2d at 1007 (noting that courts “will not toll the
well-being and permanency of [a child] indefinitely.”); see also In re Z.S.W.,
946 A.2d 726, 732 (Pa. Super. 2008) (stating 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 record supports the trial court’s
factual findings, and its conclusions are not the result of an error of law or an
abuse of discretion. See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa.
2012). Therefore, we find that the evidence supports the trial court’s
conclusion regarding the termination of Mother’s parental rights to Child
pursuant to section 2511(b). Accordingly, we affirm the trial court’s Order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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