In the Int. of: B.G.P., Appeal of: K.P. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.G.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.P., MOTHER :
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: No. 2204 EDA 2022
Appeal from the Decree Entered August 31, 2022,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000476-2022.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 27, 2023
K.P. (Mother) appeals from the decree entered by the Philadelphia Court
of Common Pleas, which terminated her rights to her 10-month-old daughter
B.G.P. a/k/a/ K.P.-I. (the Child), pursuant to the Adoption Act. See 23
Pa.C.S.A. § 2511(a)(2), (a)(5), and (b).1, 2 After review, we affirm.
The record provides the following relevant factual and procedural
history. The family came to the attention of the Philadelphia Department of
Human Services (DHS) in 2019 after receiving a report that one of the Child’s
siblings died while in Mother’s care. DHS learned that Mother was co-sleeping
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1We clarify that the caption of this case, B.G.P., reflects the initials of the
Child’s name as listed on the Child’s birth certificate. We note, however,
another name (K.P.-I.) has also been used. As mentioned below, this Child
has been the subject of two prior appeals. In those cases, we listed the Child’s
name as K.P.-I.
2 S.C. (Father) voluntarily relinquished his parental rights.
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with the sibling, an infant, and that the sibling died from suffocation. Mother
had been warned of the dangers of co-sleeping, and she was reportedly
intoxicated on the night of the incident.
In November 2021, DHS received a general protective services report
indicating that Mother had given birth to the Child at issue. The report stated
that Mother and the Child tested positive for phencyclidine (PCP), and that
Mother said she suffered from bi-polar disorder. DHS visited Mother to assess
the home and discuss the report, but Mother refused to cooperate with DHS.
That day, Mother attempted to remove the Child from the hospital, but was
escorted out and restricted from returning. DHS obtained an order of
protective custody, and the Child was placed in foster care. DHS petitioned
for dependency and created a single case plan to aid with reunification.
In December 2021, the juvenile court held an adjudicatory hearing. The
court adjudicated the child dependent. Mother’s visits were suspended after
the court rendered a finding that she posed “a grave threat.”3 The court
allowed Mother to resume visits once she participated in treatment for 90
days, at which time the visits would we supervised and bi-weekly. Mother
appealed that order; this Court affirmed the juvenile court’s decision. See In
the Interest of: K.P.-I., 284 A.3d 928 (Table), 2022 WL 3572931 (Pa.
Super. August 19, 2022) (non-precedential decision).
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3 In dependency cases, where reunification remains the goal, this Court has
stated that parental visitation of the child may not be denied or reduced unless
it poses a grave threat to the child. See In re C.J., 729 A.2d 89, 95 (Pa.
Super. 1999).
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In March 2022, the juvenile court held a permanency review hearing
and found Mother’s compliance to be minimal. The court also rendered a
finding that “aggravating circumstances” exist following the termination of
Mother’s rights to the Child’s siblings.4 In June 2022, the single case plan was
revised. Mother’s objectives were to secure housing, employment, drug and
alcohol treatment, mental health treatment, and to participate in five random
drug screens. The court also ordered Mother not to have abusive contact with
caseworkers, caregivers, or medical staff treating the Child. Mother filed a
second appeal to contest the aggravating circumstances finding. This Court
affirmed the juvenile court’s order. See In the Interest of: K.P.-I., --A.3d -
-, 2022 WL 17544185 (Pa. Super. December 9, 2022) (non-precedential
decision).
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4 The Juvenile Act provides that “aggravating circumstances” exist when:
(2) The child or another child of the parent has been the
victim of physical abuse resulting in serious bodily injury,
sexual violence or aggravated physical neglect by the
parent.
[…]
(5) The parental rights of the parent have been involuntarily
terminated with respect to a child of the parent.
42 Pa.C.S.A. § 6302 (Definitions).
When aggravating circumstances exist, the juvenile court does not need to
ascertain whether the local children and youth agency made reasonable
efforts to reunify the family. See 42 Pa.C.S.A. § 6351(b).
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On August 31, 2022, the court held a hearing on DHS’s petition to
terminate Mother’s rights. The court granted the petition on the same day.
Mother timely filed this appeal.
Mother presents the following issues, which we restate for ease of
disposition.5
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 maintaining housing, taking parenting
classes and mental health treatment and working two
jobs and has the present capacity to care for her
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 the Child was
removed from the care of the Mother and Mother is
now capable of caring for her Child?
3. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of Mother
to 23 Pa.C.S.A. § 2511(b) where evidence was
presented that Mother was denied visitation and the
chance to bond with her Child?
Mother’s Brief at 7.
We begin with our well-settled standard of review:
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of fact
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5 In an apparent oversight, Mother also appeals the decree under Section
2511(a)(1) and (a)(8). However, the record indicates that the trial court
explicitly found that DHS did not meet its burden under Section 2511(a)(1);
moreover, DHS did not petition for termination under Section 2511(a)(8).
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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).
Our Supreme Court has repeatedly stated that in termination cases,
deference to the trial court is particularly crucial. In re Adoption of L.A.K.,
265 A.3d 580, 597 (Pa. 2021); see also Interest of S.K.L.R., 265 A.3d 1108,
1124 (Pa. 2021) (“When a trial court makes a ‘close call’ in a fact-intensive
case involving…the termination of parental rights, the appellate court should
review the record for an abuse of discretion and for whether evidence supports
that trial court’s conclusions; the appellate could should not search the record
for contrary conclusions or substitute its judgment for that of the trial court.”).
The abuse-of-discretion standard in termination cases “is a highly deferential
standard and, to the extent that record supports the court’s decision, we must
affirm even though evidence exists that would also support a contrary
determination.” In re P.Z., 113 A.3d 840, 849 (Pa. Super. 2015) (citation
omitted).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is evidence 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
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of
Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
We may uphold a termination decision if any proper basis exists for the
result reached. C.S., 761 A.2d at 1201. We need only agree with the orphans’
court as to any one subsection of Section 2511(a), as well as Section 2511(b),
in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
We therefore address Mother’s first appellate issue, which challenges
the court’s termination under Section 2511(a)(2). Section 2511(a)(2)
provides:
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(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.
23 Pa.C.S.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be
remedied.” C.M.K., 203 A.3d at 262 (citation omitted).
The trial court directs us to the transcript of the proceedings for its
findings under this subsection. The court stated:
In this case, it was within [Mother’s] ability to take the
necessary steps to complete certain objectives in order to
have visitation with her Child. [Mother] failed to do so since
the inception of this case. She has been combative with any
provider that the court has received any evidence of.
She has been combative in court. She has been combative
toward the judge. She has been combative toward her
counsel. [Mother] has not demonstrated any ability or any
indication that her continued demonstration of her
incapacity, abuse, or neglect to provide this Child with
essential parental care would change even if additional time
was given to [Mother].
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[Mother] has been the sole reason that her Child remains in
care at this point. [Mother] has not engaged in her case
plan objectives. Counsel for the city was correct. The
documents produced by [Mother’s] counsel do not show that
she completed [the parenting goal] as prescribed by the
court.
She did a four hour parenting course. And despite what
[Mother] is saying, this is not similar to high school. The
reason [Mother] has been ordered for parenting for multiple
occasions is because the court found on prior occasions she
did not have the necessary skills to parent her children – to
provide for them. So [DHS] has more than met its burden
under Section 2511(a)(2).
[Mother] has not engaged in her mental health objectives.
The discharge from NET makes that clear. Even the
document produced by [Mother’s] counsel shows that she
did not successfully complete that. And in fact, in as early
as February [2022, Mother] was still testing positive while
she was receiving treatment.
N.T. at 50-51.
The trial court added to these findings when it addressed its rationale
under Section 2511(a)(5); however, we restate them here because such
findings are also relevant under Section 2511(a)(2). The court further
determined:
Her behavior in fact demonstrates that [Mother] has not
complied with anything.
And that there would not be any benefit of any additional
time provided to [Mother,] as she has had since December
[2021] to come into compliance. The Child was taken at
birth [in November 2021]. Mother has not demonstrated
the ability to do anything to change the current situation.
And she’s not any closer to reunification today than she was
at the time that the Child came into her care.
N.T. at 53.
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On appeal, Mother argues that past incapacity alone is not sufficient
basis for involuntary termination. See Mother’s Brief at 16 (citing In re
Adoption of A.N.D., 520 A.2d 31 (Pa. Super. 1986)). She argues that she
substantially completed her single case plan objectives, and that she can
provide a safe home for herself and the Child. Id. Thus, she concludes that
she has the present capacity to parent and that termination under Section
2511(a)(2) was improper.
Upon review, we conclude Mother’s argument is without merit. The
record supports the trial court’s determination that Mother made no
substantial effort to reunify with the Child. Mother never attended the court-
ordered assessment to help DHS and the court understand her dual diagnosis
needs. Mother only took one drug screen. Although Mother attended a dual
diagnosis program, she was discharged in May 2022 because her behavior
became a danger to the staff. Similarly, Mother failed to complete the
parenting program offered through the Achieving Reunification Center. In her
Brief, Mother cites to no example of her compliance or evidence suggesting
that the trial court’s findings were without record support. For these reasons,
we conclude the trial court did not error or abuse its discretion when it
concluded DHS proved termination was warranted under Section 2511(a)(2).
Having concluded that the trial court’s decision was proper under
Section 2511(a)(2), we need not address Mother’s second issue involving
Section 2511(a)(5). In re: B.L.W., supra. We may move directly to Mother’s
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third appellate issue, which concerns Section 2511(b) – the second step in the
bifurcated termination analysis.
Section 2511(b) of the Adoption Act provides:
(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.A. § 2511(b).
This Court has explained that:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that 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. However, in cases where there is no evidence
of a bond between a parent and child, it is reasonable to
infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-
63 (Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
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Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
bond to be too attenuated). Moreover, the court is not required to use expert
testimony to resolve the bond analysis. In re Z.P., 994 A.2d at 1121 (citing
In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)). And a parent’s own
feeling of love and affection for the child does not preclude the termination.
Id. Finally, we emphasize that “[w]hile a parent’s emotional bond with her
and/or her child is a major aspect of the Section 2511(b) best-interest
analysis, it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.” In re
N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (citation omitted).
The trial court set forth its findings under Section 2511(b) as follows:
[Mother] has not seen this Child since December 8, 2021.
There is no indication that there is any parent/child bond
between [Mother] and this eleven month-old Child, who has
spent [her] life in care. […] I do not find that the Child
would suffer any irreparable harm by severing parental
rights in this case.
N.T. at 53.
In her Brief, Mother argues that she was never permitted to live or visit
with the Child. See Mother’s Brief at 18. She argues that she should have
been provided with ongoing visits, and that the court should ordered parent-
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child interactive therapy so that she could continue to have visitation and a
bond with the Child. Id. at 18-20.
Upon review, we conclude Mother’s argument merits no relief. Her
reasoning omits the fact that visitation was afforded to Mother, so long as she
engaged in mental health and drug and alcohol treatment for 90 days. Mother
chose not to do so. Furthermore, after the court found the existence of a
“grave threat” and “aggravating circumstances,” the Agency was relieved of
providing reunification efforts. The Section 2511(b) analysis depends on the
circumstances of a particular case. See J.M., 991 A.2d at 324. Had this case
not involved “grave threat” and “aggravating circumstances” findings – which
have been already affirmed by this Court – then a 90-day suspension of
visitation might have been improper. But even then, we note that this aspect
of the bifurcated analysis focuses on the needs and welfare of the child, not
the conduct of the parent. See id.; see also C.M.K., 203 A.3d at 261-262.
When turning our attention to the best interests of the Child, we observe that
there was no evidence of a bond, and thus it was reasonable for the trial court
to infer that none exists, and that the Child would not suffer irreparable harm
if the parental rights were severed. The court was well within its discretion to
determine that termination would best serve the Child’s needs and welfare.
In sum, we discern no abuse of discretion, nor error of law, when the
Court granted the petition filed by DHS and terminated Mother’s rights under
23 Pa.C.S.A. § 2511(a)(2) and (b).
Decree affirmed.
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Judge Nichols joins the Memorandum.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2023
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