In the Int. of L.M.H., Appeal of: T.F.-H. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF L.M.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.F.-H., MOTHER :
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: No. 870 EDA 2019
Appeal from the Decree Entered, February 25, 2019,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-AP-0000921-2018.
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 23, 2019
T.F.-H. (Mother) appeals the decree granting the petition filed by the
Philadelphia County Department of Human Services (DHS) to involuntarily
terminate her parental rights to her daughter, L.M.H. (Child), pursuant to the
Adoption Act. See Pa.C.S.A. § 2511(a)(2), (5), (8) and (b). 1 After review,
we affirm.
The relevant history is as follows:
Mother was 16 years old when she gave birth to Child in October 2015.
Mother, evidently the subject of her own dependency proceedings, was
residing in a DHS placement. In the months prior to Child’s birth, Mother had
absconded from her placement. Mother and Child were located in December
2015 at the home of a maternal great-aunt. In December 2015, DHS alleged
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1 The trial court also terminated the rights of the unknown father.
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that Mother suffered from depression, that she was noncompliant with her
prescribed medication, and that she was truant from high school. The court
ordered Mother and Child to be placed together in a home where they could
stay together. Apparently, DHS had no other concerns for the majority of
2016.
In January 2017, DHS received a report that Mother faced eviction for
her noncompliance with the rules of the group placement. Mother continued
to abscond from the home without permission, both with and without the
infant Child. In one instance, Child was ill and Mother left her unattended in
her crib for 4 and a half hours without any adult supervision. DHS obtained
an emergency order removing Child from Mother’s care. Child was
adjudicated dependent on January 20, 2017.
The court ordered Mother to submit for a drug screen, a dual diagnosis
assessment, and monitoring. Mother tested positive for marijuana. The
Community Umbrella Agency created a single case plan (SCP) for Mother. Her
SCP objectives were: to comply with her placement’s curfew; to attend Child’s
medical appointments; to maintain consistent mental health treatment; to
attend school; to have random drug testing; to have visits with Child; to avoid
taking Child within one mile of a specific address.2 The dependency case
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2 The trial court specifically ordered Mother not to take Child within one mile
of maternal grandmother’s address, due to concerns that alleged drug use and
prostitution took place there. The parties stipulated that the home was not
safe for Child.
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lingered for approximately two years. Mother did not make significant
progress towards achieving any of these goals.
In November 2018, DHS petitioned to involuntarily terminate Mother’s
parental rights under sections 2511(a)(1), (2), (5), (8) and (b). After a
hearing, the court denied the petition as to Section 2511(a)(1), but granted
the petition on the other grounds.3, 4 Mother filed this timely appeal, where
she presents four issues 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)(2)
where Mother presented evidence that she has
remedied her situation by providing negative drug
screens, attending school and visiting her child and
has the present capacity to care for Child?
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)(5)
where evidence was provided to establish that
Child was removed from the care of her Mother and
Mother is now capable of caring for Child?
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)(8)
where evidence was presented to show that Mother
is now capable of caring for Child after she
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3The court conducted the hearing over two dates, January 14, and February
25, 2019. The hearing also encompassed DHS’s petition to change the
dependency goal from reunification to adoption. Mother does not appeal the
goal change.
4 Child was properly represented by counsel, pursuant to 23 Pa.C.S.A. §
2313(a).
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complied with her placement, attended school and
provided negative drug screens?
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(b) where
evidence was presented that established Child has
a close bond with Mother and had lived with Mother
for part of her life. Additionally, Mother
consistently visited with Child and maintained a
strong bond with Child the entire time Child was in
placement.
Mother’s Brief at 7.
We review these claims mindful of our well-settled standard or review:
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 quotations marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 §§ 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
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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 have defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation
and quotation marks omitted).
In this case, the court terminated Mother’s parental rights pursuant to
Section 2511(a)(2), (5), (8), and (b). We need only agree with the court as
to any one subsection of 2511(a), as well as Section (b), in order to affirm.
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we
analyze the trial court’s decision to terminate pursuant to Section 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
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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 notice of the filing
of the petition.
23 Pa.C.S. § 2511(a)(2), (b)
Instantly, we analyze the trial court's decision to terminate
under Section 2511(a)(2) and (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.
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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (citations,
internal quotation marks, and indentation omitted).
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Mother essentially concedes she was unable to care for Child previously,
but she contends that past incapacity alone is not a sufficient basis for
involuntary termination. She alleges that she had substantially completed her
SCP goals and that she should be given a chance to provide a home for herself
and her child.
Here, we find ample evidence to justify the trial court's termination of
Mother’s parental rights to Child, pursuant to Section 2511(a)(2). Mother has
demonstrated an incapacity to perform parental duties as illustrated by her
inability to make any real progress on her goals over the last two years. As
late as September 2018, 21 months after the Child’s removal, Mother still
tested positive in her drug screens; perhaps relatedly, she had entirely refused
to address her mental health issues; and she was once again facing removal
from her placement home for noncompliance with the rules. Mother was
inconsistent with attending Child’s medical appointments. While Mother had
graduated to unsupervised visits with Child, those visits had to be scaled back
because Mother was taking Child to the maternal grandmother’s home, a
location that Mother agreed was unsafe. Of those supervised visits, Mother
arrived late or often missed them entirely. While Mother’s progress ebbed
and flowed throughout the dependency case, Mother was still incapable of
caring for Child, who had to rely on others for her essential well-being. Mother
may not have displayed affirmative misconduct, but she has shown an inability
to remedy the causes of her incapacity.
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We acknowledge that the inherent difficulty that accompanies
parenthood when it begins during the parent’s own minority. At the time of
the termination hearing, Mother was enrolled in the 12th grade. Still, a failure
by a parent to remedy the conditions resulting in the child’s placement is not
confined to affirmative misconduct by the parent. Rather, it encompasses
those situations where a parent has attempted to address their incapacity but
is ultimately unable to remedy it. In time, 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. Matter of
M.P., 204 A.3d 976, 984 (Pa. Super. 2019) (citing In re B., N. M., 856 A.2d
847, 856 (Pa. Super. 2004)).
For over two years, DHS has attempted to buoy Mother with intensive
services. While she has shown sporadic progress, the dependency case ends
largely where it began. Meanwhile, Child has been in want of necessary
parental care and stability. The court did not abuse its discretion when it
determined that competent, clear, and convincing evidence supported the
termination of Mother’s parental rights pursuant to Section 2511(a)(2),
thereby satisfying the first prong of the termination analysis.
Next, we consider whether termination was proper under Section
2511(b). With regard to Section 2511(b), our Supreme Court has stated as
follows:
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[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.... [T]his 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 T.S.M., 71 A.3d at 267 (internal case citations omitted).
Instantly, Mother contends DHS failed to meet these criteria. She points
to the social worker’s testimony that there was a parental bond between
Mother and Child. Mother argues no such bond exists with the foster parent.
Indeed, the caseworker testified that Mother and Child have a positive, if
inconsistent relationship. When Mother and Child visit, they play games on a
tablet or phone and sometimes share a meal. We cannot equate a few warm
visits with a well-adjusted child to a parental bond. Moreover, the question is
not whether Child and Mother have a bond, but whether that bond is worth
preserving.
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 trial court when determining what is in
the best interest of the child. In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014)
(citing In re K.K.R.–S., 958 A.2d 529, 535–536 (Pa. Super. 2008). The mere
existence of an emotional bond does not preclude the termination of parental
rights. Id., 93 A.3d at 897-898; see also In re T.D., 949 A.2d 910 (Pa.
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Super. 2008) (trial court's decision to terminate parents' parental rights was
affirmed where court balanced strong emotional bond against parents' inability
to serve needs of child). Rather, the trial court must examine the status of the
bond to determine whether its termination “would destroy an existing,
necessary and beneficial relationship.” Id. at 898 (citation omitted).
Here, the basis for the so-called bond was Mother’s visitation with Child.
While Mother had more expansive visitation in the past, by the end of the
dependency case Mother could only be trusted with two, two-hour supervised
visits per week. Even then, she often arrived late or would miss the visit
completely. Meanwhile, the pre-adoptive foster parent was the one who met
Child’s daily needs, and who was the parent-figure that Child turned to for
support and security. Thus, the trial court observed that even if Mother and
Child had a bond, Child would not suffer irreparable harm if the bond was
severed. We discern no abuse of discretion in the court’s decision that DHS
met its burden under the second prong of the termination analysis. Mother’s
final issue is without merit.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Mother’s parental rights to Child
pursuant to Section 2511(a)(2) and (b). Accordingly, we affirm the decree of
the trial court.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2019
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