In The Int. of: M.C.R., etc., Appeal of: V.Y.R ( 2018 )

J-S64017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.C.R. A/K/A : IN THE SUPERIOR COURT OF
M.R., A MINOR : PENNSYLVANIA
:
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APPEAL OF: V.Y.R., MOTHER :
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:
: No. 2037 EDA 2018
Appeal from the Decree June 13, 2018
In the Court of Common Pleas of Philadelphia County Family Court at No:
CP-51-AP-0001060-2017
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 11, 2018
V.Y.R. (“Mother”) appeals from the decree and order entered June 13,
2018, granting the petition filed by the Philadelphia Department of Human
Services (“DHS”) seeking to involuntarily terminate her parental rights to her
minor, female child, M.C.R. a/k/a M.R., born in April 2009 (“Child”), with O.R.
a/k/a O.R., Sr. (“Father”), pursuant to the Adoption Act, 23 Pa.C.S. §
2511(a)(2), (5), (8), and (b).1, 2 We affirm.
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1 In a separate decree entered June 13, 2018, the trial court also involuntarily
terminated the parental rights of Father to Child pursuant to section
2511(a)(2), (5), (8), and (b) of the Adoption Act. Father is not a party to this
appeal, but has filed a separate appeal, assigned Docket No. 1896 EDA 2018,
which we address in a separate Memorandum.
2The trial court also entered an order on June 13, 2018 that changed Child’s
permanency goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S. § 6351.
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The trial court accurately and aptly set forth the factual background and
procedural history of this case in its opinion filed on August 15, 2018, pursuant
to Pa.R.A.P. 1925(a), which we adopt herein. Trial Court Opinion, 8/15/18,
at 1-8. Importantly, on May 9, 2018, the trial court held an evidentiary
hearing on the termination petitions with regard to Mother and Father.
Attorney Stuart Maron represented Child as her Child Advocate/Guardian ad
Litem (“GAL”), and Attorney Charles Andrew Rosenbaum as her special legal
counsel.3 At the hearing, DHS presented a number of witnesses on its behalf.
Both Mother and Father were present, were represented by counsel, and
____________________________________________
This order was filed at a different trial court docket number than the decree
granting the petition for involuntary termination. Originally, Mother filed a
single notice of appeal from both the decree and the order which contained
both docket numbers. This Court issued a rule to show cause why the appeal
should not be quashed as the notice of appeal did not comply with Pa.R.A.P.
341(a) which requires that separate notices of appeal must be filed at both
docket numbers. Order, 9/4/18. See Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018). In Appellant’s reply to the show cause order, counsel for
Mother indicated that Mother was only appealing the petition which terminated
her parental rights and that she was not appealing the goal change order.
Appellant’s Reply to Order to Show Cause, 9/5/18. As Mother is only appealing
the decree entered at docket number CP-51-AP-001060-2017, we shall not
quash this appeal and we amend the caption accordingly.
3 In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), our
Supreme Court held that 23 Pa.C.S. § 2313(a) requires that counsel be
appointed to represent the legal interests of any child involved in a contested
involuntary termination proceeding. The Court defined a child’s legal interest
as synonymous with his or her preferred outcome. Id. at 1092. Here, Child
had both legal counsel and a GAL, and her preferred outcome, which, at times,
is to return to the sexually abusive situation in her parents’ home, is part of
the record. See N.T., 5/9/18, at 29, 66; N.T., 6/13/18, at 7. Accordingly,
the mandates of L.B.M. are satisfied as to the ascertainment of Child’s
preferred outcome.
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testified on their own behalf. Both counsel for Child were present, but Child
was not present, and her counsel did not offer her preferred outcome of the
proceedings. The court continued the hearing to June 13, 2018, so that it
could hear testimony regarding Child’s preferred outcome. At the conclusion
of the hearing on June 13, 2018, the trial court entered its termination decrees
and goal change order.
On June 29, 2018, Mother, acting pro se, filed a notice of appeal,
attaching a concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),
stating that she was represented by counsel and uncertain of the errors to
indicate. On July 3, 2018, the trial court vacated the appointment of Attorney
James B. King, who had been Mother’s trial counsel. That day, the trial court
appointed Attorney Lisa Marie Visco as Mother’s counsel. On July 11, 2018,
the trial court directed Attorney Visco to file a supplemental concise statement
within 21 days. On July 16, 2018, Attorney Visco filed a concise statement on
behalf of Mother.
In her brief on appeal, Mother raises the following issues:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, V.R.[,] pursuant to 23
Pa.C.S.A. [§] 2511(a)(1) where Mother presented evidence that
she tried to perform her parental duties[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, V.R.[,] 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 counselling and
classes at SAGE[,] and has the present capacity to care for
[C]hild[?]
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3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, V.R.[,] 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 [] Mother and
Mother 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, V.R.[,] pursuant to 23
Pa.C.S.A. [§] 2511(a)(8) where evidence was presented to show
that Mother is now capable of caring for [C]hild after she
completed parenting classes, secured and maintained housing and
receiving mental health treatment and participating in SAGE[?]
5. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, V.R.[,] pursuant to 23
Pa.C.S.A. [§] 2511(b) where evidence was presented that
established [C]hild had a close bond with [] Mother and [Child]
had lived with [] Mother for the most part of her life. Additionally,
Mother maintained that bond by visiting with [C]hild when she
was permitted to visit her[?]
Mother’s Brief at 9.4
In reviewing an appeal from the termination of 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. In re: R.J.T., 9 A.3d 1179,
1190 (Pa. 2010). 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
____________________________________________
4We note that the trial court did not terminate Mother’s parental rights under
section 2511(a)(1), although DHS sought termination pursuant to that
section. N.T., 6/13/18, at 8-9; Trial Court Opinion, 8/15/18, at 11.
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may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
As [the Pennsylvania Supreme Court] discussed in R.J.T.,
there are clear reasons for applying an abuse of discretion
standard of review in these cases. [The Supreme Court] 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, 826-27 (Pa. 2012) (some internal
citations omitted).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained, “[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).
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). See
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In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will
consider section 2511(a)(2) and (b).
In her brief, Mother argues that the trial court erred when it terminated
her parental rights to Child under section 2511(a)(2) because the evidence
presented at trial showed that she had remedied the conditions that caused
Child to be placed in foster care. Mother’s Brief at 11, 16-17. Citing In re
Adoption of A.N.D., 520 A.2d 13 (Pa. Super. 1986), Mother asserts that past
incapacity, alone, is not sufficient to support termination, and that she is now
able to care for Child. Mother’s Brief at 16-17. With regard to section 2511(b),
Mother contends that evidence was presented that Child had lived with Mother
for most of Child’s life, and that Child had a strong bond with Mother. Id. at
13 and 19. Mother states that Child wished to visit Mother and live with her,
and that Child’s wishes were never taken into account. Id. at 19. Mother
asserts that, when the trial court suspended her visits, Mother should have
been given therapeutic visits and/or Parent Child Interactive therapy so that
she could continue to have visitation with Child. Id. at 19-20.
Section 2511 provides, in relevant part:
§ 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:
***
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
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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.
***
(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.
The Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds
for termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based
upon parental incapacity. The legislature, however, in
enacting the 1970 Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.
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In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986) quoting In
re: William L., 383 A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness regarding
the necessity or availability of services, may properly be rejected as untimely
or disingenuous. Id. at 340.
This Court has stated that 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). In reviewing the evidence in support of termination under
section 2511(b), our Supreme Court has 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).
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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 1108, 1121 (Pa. Super. 2010) (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
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. 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.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotations omitted). Thus, the court may emphasize the safety needs of the
child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary termination
of parental rights, despite existence of some bond, where placement with the
mother would be contrary to the child’s best interests).
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Our Supreme Court has stated that the mere existence of a bond or
attachment of a child to a parent will not necessarily result in the denial of a
termination petition, and that “[e]ven the most abused of children will often
harbor some positive emotion towards the abusive parent.” See In re:
T.S.M., 71 A.3d 251, 267 (Pa. 2013) quoting In re K.K.R.-S., 958 A.2d 529,
535 (Pa. Super. 2008). The Supreme Court stated, “[t]he continued
attachment to the natural parents, despite serious parental rejection through
abuse and neglect, and failure to correct parenting and behavior disorders
which are harming the children cannot be misconstrued as bonding.” See In
re: T.S.M., 71 A.3d at 267 quoting In re Involuntary Termination of
C.W.S.M., 839 A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J. dissenting).
While Mother may claim to love Child, a parent’s own feelings of love
and affection for a child, alone, will not preclude termination of parental rights.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We stated in In re Z.P.,
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.” Id. at 1125.
Rather, “a parent’s basic constitutional right to the custody and rearing of his
child is converted, upon the failure to fulfill his or her parental duties, to the
child’s right to have proper parenting and fulfillment of his or her potential in
a permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856
(Pa. Super. 2004).
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Here, our review of the record demonstrates that there is sufficient,
competent evidence in the record that supports the trial court’s factual and
legal determinations. Thus, we will not disturb the trial court’s decision. In
re Adoption of S.P., 47 A.3d at 826-27. Accordingly, we affirm the trial
court’s decree terminating Mother’s parental rights to Child pursuant to
section 2511(a)(2) and (b) of the Adoption Act, on the basis of the
well-reasoned and thorough analysis set forth in Judge Deborah L. Canty’s
August 15, 2018 opinion. See Trial Court Opinion (Mother), 8/15/18, at 1-20.
In any future filing with this or any other court addressing this ruling, the filing
party shall attach a copy of Judge Canty’s August 15, 2018 opinion.
Decree and order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/18
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Received 8/23/2018 10:53i26 PMCirculated
Superior Court East&r.n
11/26/2018 District
01:38 PM
Filed 8/23/201810:53;00 PM Superior Court Eastern District
·. . . 2037 EDA2018
IN THE COURT OF COMMON PLEAS.
·poRTHE COUNTY OFPIIlLADELPHIA
.... FAMILY COURT DIV1SION1
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INTRODUCTION o·�
V.R, a/kla.V.Y.R. ('"Mother''). appeals from the decree and orderentered by the Court on
June 13, .2018, granting the petition filed by the Philadelphia Department of Human .Services
("DHS�') involuntarily terminating her parental rights to her minor female child, M:R. (''Child").
A�er a.full hearing onthe merits, the Court found that clear and convincing evidence was.
presented to terminate the parental rights of.Mother.2 As discussed in greater detail below; the
trial Court terminated Mother's parental rights because Mother, during the nearly two rears ihat
the. Child was in th� custody ofOHS, did not complete her Family Service Plan (''FSP,.')
I Mother's
paremal-rights were Inveluntarily terminated on June 3, 201-8. Mt.he conclusion of the hearing, Mother'.s
counsel stated .that bis client would be filing an appeal and claiming ineffective assistance of counsel. On June 29,
2018; Mother tiled a prose appeal that did not state an}'matters complained of. Uponreceiptof Mother's appeal and
based onthe statemenrofMother's initial counsel, that Mother would file an appeal and argue ineffective assistance
of counsel, Mother's counsel was vacated July 3, 2018. New counsel was administratively appo:inted on or.about
July 3. :2018. Mother;s new counsel was ordered to provide this Coun with a Pa,R.A.P. I 925(b) Statement within
twenty-one days ofadminisfradve appolntrnem. Mother's new counsel filed a Statememof MattersComplalned on.
July 16, 2018. ·
2Father's parental rights were also involuntarily terminated June 13, 20181 and an appeal followed which will be
addressed separately. . . .
.objectives also 'known as .Single· ca·se:Plan·'eSCP�'} objectives, ·nor completed· any of the
recommendations fromher Parenting-Capacity Evaluation.("PCr'),.-�nd has made_no-effort to
gain the· safety .and protective capacities necessary to aide in establishing .a positive, healthy
. withthe Child. Furthermore,. the Chil9, who was nine years old at thetime
maternal relationship
of'the hearing, wasdoing well in the pre-adoptive home of'her fostermotherwhohas gained the
favorof'the Child and has worked toward stabilizing theChild's behaviors while in her care .
. ln light of'Mother's failure for almost two years to meet her SCJ:> objectives, her failure to
comply
. .
with Court Orders that were.in place to protectthe Child, herinability to demonstrate
' .
safety and protective capacities, and the lackof a positive, healthy, maternal-relationshipwiththe
Child, thetrial court properly gr�ted.PHS:s Petition to Terminate.
TERMINATION HEARING
On November 31;,201 _7 ,; D HS· filed Petitions to Involuntarily Terminate Mother's
Parental Rights
.. and.to.Change theChild'sGoal to Adoption.
.
On May 9, 2.018, the.Courtheard
.
testimony on DHS;�,Petitions to Terminate Mother's Parental Rightsand the GoalChange to
Adoption and held.'1ts decision in abeyance pending an investigation and conversation. with the
-Child by her Special Child Advocate; Mr. Charles Rosenbaum; Esquire. Mr ..'Rosenbaum was
solely responsible for gaging and presenting the Child's wishes tothe.Court for the purpose of
the Termination of Parental.Rights andGoal Change Hearings. (N.T. ·5/9/2018-, pg. 29 at l-f9).
On June 13, 2018, the Court heard testimonyfromMr.Rosenbaum, whopresented the·Chilcl's
wishes followed bythe.Court's decision to terminate parental rights and change.rhe goal to
.adoption, (N. T. 6/1.3/20.18·, pgs. 1-2i) ..
Katherine Holland. the City Solicitor ("City'} presented testimony from multiple
witnesses, which included, Psychologist, Dr. Erica Williams, Community Umbrella Agency
(..Cl.JA") current and past supervisors, John Hall and Jennifer Harris, respectively, the current
CUA Case Manager, Shannin Hawkins, and the CUA Visitation Coach, Raymond Nichols, all of
whom the Court found credible. The relevant testimony is stated· below,
The City firstpresented the testimony from Dr. Williams, who performed a PCE of
Mother in No.vember20l7; Dr. Williarris testified that she concludedthattherewereconcems
about Mother's capacity to provide safety and permanency for the Child atthe time ofthe
evaluation, but also that she remained concerned as the. issues had not yet been.resolved .. (N�L
5/9/2018, p. 36 at g.;25 and pgs. 3 7�40). Specifically, Mother had not particlpated i(t the Child • s
therapy which would focus oil the sexual abuse that led to. the Child's removal from Mother.
(N. T. 5/9/2018, p. 36 at 16-19). As a part of Dr. Williams' assessment in November 2017, Dr.
Williams recommended that Mother receive some measure of therapeutic.intervention to assist
Mother in understanding her own role in the Child's removal from the home. (N. T, 5/9/2018, p.
3 Tat 24-25 and p ..38 at 1-8). Dr. WilHams based this recommendation on the fact that Mother
4id not take responsibility for the contact that she allowed between the perpetrator and the Child
even though she was aware ofthe sexual abuse in her home.arid the subsequent removal of the
Child from herhome. (N.T.
.
5/9/2018. p, 37 at9-l 7). Dr. Williams based this recommendation
.
also on thefact. that Mother admitted.that she did.not.understand that telephone contact with the
perpetrator was. an. issue; and also because Mother then blamed the Child for snatching the
telephone to.try to have contact with the perpetrator, (N. T. 5/9/2018. p; 3 7 at 14-17). Dr.
Williams further based this. recommendation on the fact that there was a pattern ofconcern with
Mother's interactions with the Child so much so that the. visits were line of sight and line of
hearing due Mother causing the Child to experience fear and saying things to upse] the Child,
including that Mother did not Jove the Child, (N:J; 5/9/2018, p. 39 at 11-18).
Dr. Williams testified that she "Vas concerned about Mother's safety and permanency
capacity because Mother lacked a comprehensive and concrete home plan, thatthe space Mother
lived in had not been investigated and that it was unclear if'Motherand the Child would be
welcomed to stay in the home where Mother lived.. (N; T: 5/9/2018, p; 36 at 12-25 and p. 37 at 1-
..
8). Dr. Williams further expresses concerns about the complex fam.ily and financial issues in the
home Mother was living in- particularly, that Mother J1ad a financial guardian appointed. {NiT.
5/9/2018, p. 3.6 and p. 37 at l-8).
The next witness, Mr: John. Hall, the current CUA case managersupervisor, testified.that
in July of20.16 DHS received a Child Protective Services (''CPS"}report that the Chikl was
sexually abused by a sibling. (N.t. 5/9/2018, p. 51 at 14-16). Subsequenily�DHSreceiveda
General Protective Services ("GPS'} report in August of 2016, of inadequate housing, parents
admitting to a roach infestation, concerns with the physical structure of the home, and that a.
Delinquent Court Stay-A way Order was violated by allowing the Child to remain in contact with.
the perpetrator who no longer resided in the. home. (N.T. 5/9/2018, p. 51 at 17-25 and p. 52 at J-
7). As a result, an Order ofProtective Custody ("'OPC") was obtained and the Child has
remained in placement for approximately the last twenty months. (N. T. 5/9/2018, p. 52 .al 5� 19).
Mr-. Hall also testified that not only had.SCPs been given toMotherfor thelife.of the
case, that Mother was invited. to attend the SCP meetings, and that the SCP objectives had been
explained-to Mother throughout theduration of'the case. (N.T, 5/9/2.0)$, p, 52 at23�25 and p. 53
at 1 _.19).. Mother's objectives
. .
included: attend domestic violence as.a victim, attend the
Achieving Reunification Center I" ARC") for Housing and Parenting, Visitation, t(? complete a
PCE, which recommended mental health treatment, and to participate in the Parent Action
Network SAGE program . .(N.T. 5/9/2018., p. 53 at 21 .. 25, p54 at l-23); Even thoughMother had
been referred to the. SAGE program for eighteen months; she hadjust begun consistently
attending March l , 2.018. <'N.�T. �/9/2.0lfp. 54 .at22-25 and p. 55 at 1..:10. Regarding domestic:
violence, Mother was referred however, CUA.isunsure of Mother'sparticlpatien, y¢t Mother is
still in a relationship with Father. (N.T. 5/9/2018p. 54 at13-2land p. 5.6 at 17-19),. Mother
completed the PCE. (N.T. 5/9/2018 p, 54 at 3-5).Regarding mental health treatment. CUA
testified that Moth,er had been referred for mental.health and that she completed an evaluation
however; it was unknown if she was currently seeking treatment. (N .T, 5/9/20 l 8 p: 55 at 12-18):
CUA also testified that Mother completed the Parenting class at ARC,,yet there were still
concerns about her ability to parent as Mother violated the Court Orderin allowing the Child to
talk to.the perpetrator on the telephone. (N.T� 5/9/2018 P.· 55 at 19.:25 and p. 56 at"l�7).
Regarding the.housing program at ARC. CUA testified that Mother never participated in the
program and that Mother had not asked CUA.to conduct ah assessment oft he current home.
(N.T. 5/9/2018 p. 54 at 13-18 and p. 56 at 8�l6).
With respect to visitation, Mother's visits were temporarily suspended March 14, 2Ql8 by
this. Court pending a full hearing. (DRO 3/14/2018)� At the nextcourt date, May 9t 2018, the,
Court suspended all ef Mother's visits indefinitely, including telephone contact with the Child.
(DRO 5/9/2018). Mr; 1-lall testified that the Child had not had any visits with Mother since
March 9, 2018.and that of the behavioral issues the Child displayed.s» his knowledge, none of
them were related to not seeing her parents. (N.T. 5/9./20118,-p. 61. at 3�12). Mr. Hall opined that'
the Child has positive mteraction with the.foster parent, that the Child likes the foster parent; the
foster patent is meeting the Child's needs, that the Child? s problematic behavior stabilized with
the foster parent and the Child's behaviors.in school increased whentemporarily removed frorri
the foster parent.for a brief Respite Home··PJacement/(N.t. 5/9/2018 p.·-69-at 24-25;,·p. 6-i at l·
2?. p. 62 at 11:.: 25. and p. 63 at J) ..
Finally, Mr.. Hall testified that, inhis opinion, the Child would not suffer any irreparable
harm ifMother's rights-weretobe terminated. (N.T. 5/9120118-� p. 63 at2-6). Mr. Hall.based his
opinion upon thefactthat the Child does not have a positive healthy maternal relationship·:with
Mother. and also upon the fact that the Child's therapist does not believe that they should have
any contact presently {N. T .. 5/9/2,,0:J 8, p, ··63 'at 7-9 and 24 -25. and p, .64 at 1 )� Furthermore,
1
he based his opinion on the fact that the.Child stated that she wished to return home so thather
brother could" sexually assault her again. (N.T. 5(9/2018 · p: 66 at 2�19}
The thitd witness, Ms . .Jennifer Harris, testified that she was the C b A case rnenager
supervisor from May 2°017 to aboutJanuary io.1�. _(N.T. 5/9/201� p, 68 at 22-2�). 'tv1s. Hams
said that Mother was made aware of'her objectives throughout thelife of'the case by her staff as
therewas regular communication about the. SCP objectives. (N :T. 5/9/201. �- p. -68 at 2 5 arid p. 69
at 1-2.an410-23). She testified thatMother never completedany mental health objectives
outside of the ·i>cE, (N'.T. 5/9/2018 p, 69 at 15-19).
The fourth witness presented by the· City was Ms. Shannin Hawkins, the current CUA
case.manager-who took overthe case approximately six.months beforethe termination hearing.
(N.T. :5/9/201"8 p. 75 ats- 16). Ms. Hawkins testified thatthereare concerns with the Child's
behaviors fa 'the fosterhome but that the behaviors are typical for a nine r,eai' old.-(N:T. 5/9/:1018
p; 75 at 23-24), On Mother's cross-examination, Ms, Hawkins clarified thatthe Child.hasalways
3
rv:tr. Hall-testified thattheChild was tempcrarily-removed.from her-pre-adoptive foster home arid-temporarily
placed Into Respite Care after what.seemed to be.a.retaliatory phone call was made to DHS with fafse allegations,
causfog a DHS Investigation which was determlnedto be:_-in,,i\lid. The Child returned tothe pre-adoptivefoster
homc.·(N.T. 5/9/2018 p. 62). .
'had 'behavioral concerns and· that her 'behaviors progressed since returning from Respite Care
JN.T 5/9/2018 p. so at 19-25 andp, 81 at.I), Furthermore, Ms; Hawkins testified that-the Child
disclosedthat Mother was aware of'the sexual abuse. (N.T. 5/9/2018 p. 76 at 22�25 and p. 77 at.
I). Based· on the. interaction during several visits, Ms. Hawkins testified that she was concerned
.abou: the Child beingin Mother's care and opinedthat the Child would not suffer any irreparable
.harm should Mother'srights be terminated, (N.T. 5/9/2018:_.p, 77 at 11-17). Ms. Hawkins also
based her opinion of the fact cthai Mother and Child do not' have a positive healthy maternal
relationship andthat although the Child misses .Mother, the.Child 'does not "talk about Mother
unless asked. (N.T. 5-/9/2018 p, 77at 22-24 and p. RI atI 2-21 ).
The City'sfinal
.
wiiness.Mr: Raymond.Nichols,
. the.CtJAVisitation Coach,
. who.also '
assists with transporting the Child for visits, testified that he.has concerns about Mother and
Child so much so that he believes they should not have visits .. (N.T .. 5/9/2018 p. 89- at 7-10, p:84
arS..-9, p. 89. 620 Pa. 602� 71 A.3d251,
267 (2013) (citations and quotation marks omitted) In re Adoption ofC.D.R., 20.l 5 Pa. Super.
54, 111 A.3d 1212; 1215 (2015);
--···-··---·----------------------------�---·---
A.. The Trial Court Prope�ly Found that the Department of Human :Serv.ices Met Its
Burden by Clear and Coilvin·cing Evidence To Terminate Mother's Pa-rental
Rights Pursuan·tto 23 Pa�c�S.A. §25ll(a)(2),(5) and (8)4�.
Termination of parental rights is. governed by 23 Pa.C ..S.A. §2511. in. termination cases,
the burden is upon Di-IS to prove· by clear and convincing evidence that its asserted grounds for
seeking termination of parental rights are valid. in the ..lnterestofB-.t\ J6" A.3d 601, (Pa.Super,
2012 ). In the instant case, DHS' s petitien asked the Co en to terminate. Mother's parentalrights
under §25-11 (a)( l )i{2)l 5.)., and (8). However, the Court· terminated Mother' s parental rights
pursuant to: §2511 (a)(2)i5),.and (8) only and therefore. will qqly address those sections iri the
opinion; In light of Mother's failure. for almost two years to meet her.SC,? objectives, her failure
to comply with the Court Orders. that we-re in place to protect theChild, fler:ii'.)abBify to
demonstrate-safety and protective capacities and the Jack of a positive, healthy, maternal
· relationship.with.the Child, the trial court properly granted DHS's Petition to Terminate.
� 23 -,Pa.C.S.A §2:S-11:(a)-. Gene.-af Rulo- the·rights of a. parent in regard to !' chtld may �eJerminated. after .a petltion
fife.d. on any.of'the following'grourifat leastsix months, the conditions whichled to the removal.or
placement of'thechild continue to.exist,:dleparent,cannot·or will noi remedy.those eonditions'within
a-reasonable period :�fdme, the.services or. assistance reasonably available to .the parent are not likely
to remedy the conditions which led to the removal or placementof the child· within a reasonable .
period.of time-and termination of the parental rights would best serve theneeds arid welfare of'rhe
child. . . · .
(8) the child has been removed from the 'care of'the. parents by thecourt or undera voluntary agreement
with an agencY,,.12 months or more haveelapsed ,fi:oin the date ofremoval or.placement, the.
conditions which led to..the removalor placement ofthe child continue to exist and termination of the
parental riglfts would bestserve the needs-and welfare of the child.
l. The Trial Court. Pr.. perly Granted the Petition to Terminate Parental Rights
Pursuant to--23 Pa.C.S.�.-§ 2511(aJ(2) ..
SectiQn:251 l.(a")(2}requires· that "repeated and continued incapacity, abuse, neglect or
refusal of the.parent has caused the childto be without essential parental care, control or
subsistence necessary for her physical or mental well-being and the conditions and. causesof the
incapacity, abuse, neglect or- refusal cannot of wD-J not be remediedby the parent," 21 Pa.C:S.A.
§_251 l(a)(2). These grounds are notlimited to affirmative misconduct; "to the contrary those
grounds may include acts of refusal as well as incapacity-to perform parental duties." Ii1 re·
N.A.M., 33-A)� 95 (Pa; Super_.2011).
!he. SupremeCourt, inIn-re Gei"ger" 459-Pa.- 636,.331 A;2d 17.2.;174{197�), enunciated
the fundamental test in termination ofparental tights under what is now 25 i l(a)(2) as requiring
the Petitioner to prove -�'(l) repeated and continued incapacity, abuse; neglect or refusal; .(2) that
such irrcapacity.abuse.cieglectorrefusal caused thechild 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,"
_Sectio�·2.5 l l(a)(2.) does not emphasize a.parent's refusal Qr failure to perform parental
duties, butinstead emphasizes the chiid:s present.andfuture need.fer essential parental. care,
control or subsistence necessary for her physlcal or mental well-being. In .re Z.P., 994 A.2d 1108
(Pa. Super, 2010).
Parental duty requires that the parent act affirmatively with a good faith.interest and effort;
and notyield toevery problem,. in order to maintain the parent-child.relatieaship to .the best of
his or-her. ability; even ·in difficult circumstances .. In re E.M., 908. A.2d 297 (Pa. Super. 2006). In
other words, a trial court.can.flnd an incapacity to parent.by findingaffirmative misconduct, acts
ofrefusal to parent as well as an incapacity to parent; In re S.C.B., .990 A2d 762 (Pa; Super.
2010).
The Court found clear and. convincing evidence that Mother failed and. refused to perform
parental duties; failed to address the conditions which brought the Child into placement, and
lacks the capacity to adequately provide the care, control and stable environment necessary for ·
the nine year old Child; The Mother's failure-to achieve.and maintain her-objectives and failure
to provide the basic needs, safety, and protection. of the Child even with the.assistance of services
demonstrated her incapacity and refusal to 'parent. hi addition, there is no question that Mother's
failure to maintain healthy contact and.display appropriate behavior during visits· with the Child
demonstrated that Motherleft her Child without the parental care. necessary for her physical or
mental well-being.
Motlier. never demonstrated that she was ableto provide proper parental care for her
Child. Al the time ofthe termination and goal change hearings, Mother had already undergone a
PCE approximately four months prior (in November 20l7) and it concluded that she did not
present with the capacity to parent the Child. Particularly, Mother did not have the: capacity to
provide safety for the Child. At thetime of the PCE; Mother had yet to fully understand oraccept
that the Child had been removed from her care because. Mother violated the safety plan, Court
Orders and services were. put into place to keep the Child away from the perpetrator in all forms;
even telephonic communication. Motlier stated that she knew there was sexual abuse between
her children yet failed to take responsibility for the contact that she allowed after the abuse
occurred and.she did not understand why telephone contact was an issue so in turn: she allowed
it .. Mother failed. to protect the Child from her abuser and Mother failed to protect the Child from
sexual and other hostile advances made. by Father in Mother's presence. The PCE recommended
that Motherparticipate in [the Child'sJtherapeutic program as well as in SAGE in order to
achieve and demonstrate the appropriate protective capacity. At the time of the termination
hearing, Mother had yet to become involved with the Chilo}s iberapeutic treatment and had not
completed the SAGE program, both of which would havefocused on children who had been
victims of sexual abuse. Specifically, Mother had just began attending the SAGE program after
having been referred for the program for almost two years; and she had not begun participating
i11 the Child' stherapy.
In additien to not having the safety and protective capacities necessary to properly patent the
Child, Mother lacked the capacity to provide permanency. The PCE recommended that Mother
have a suitable financial plan and suitable housing in order to achieve permanency. At.the time.
of the termination hearing, Mother's home had not undergone a recent home evaluation and
Mother lacked a concrete, plan on where the Child and tile perpetrator would. live i? the months
to come as they still could not both live in the same home with. one another. Also; Mother had
not had not presented a financial plan or other information to show she was able to provide
permanency. Instead. Mother's finances remained under a Power of Attorney, held. by maternal
grandmother. extremely intriguing to this Court, however, is that Mother testified that she. cares
for rnatemal.grandmother so.much so that Mother' needs access to her cell phone during visits
with the. Child
Further, the Court was not persuaded that Mother could resolve.her dependency issues in the
near future. In almost two years, Mother had never participated in any housing assistance
programs
.
nor provided a financial plan. Mother had failed to have her visits
.
expanded to
unsupervised
.
and instead. her visits were reduced to. suspended indefinitely. Mother never
addressed the concern ofdomestic violence yet.remains in a relationship with Father who 'Curses
and yells as Mother and the Child during visits. Mother also has not demonstrated �y active
participation with the mental health objective. Mother also did not begin therapeutic intervention
with the Child until a few weeks before the.termination and goalchange hearings. Mother had
nearly 'two years to participate in and successfully complete these objectives.
Finally, a child's life may not be put on hold in the hope thatthe parent will summon the
ability to handle the responsibilities of parenting. In re Adopiiori of M�E.P ., 825 A�2d 1261$ (Pa.
Super. 2003 ). Mother has shown a "repeated and continued incapacity arid refusal'tto parent the
Child .. Mother cannot provide a permanent, healthy, safe environment for the Child. Mother's
lack of action .and slothful last minute effonsto gain the ability to parent the Child.demonstrate
her repeated and continued incapacity, abuse; neglect, and refusal to parent The Court finds. that
Mother.will not be able to resolve the dependency issues in the hear future. Consequently, for all
of the above reasons the Court terminated Mother's parental rights pursuant to §251 l(a)(2).
2� The Trial Court Properly Granted the Petition to. Terminate Parental Rights
Pursuan! to 23 Pa.C.S.A. §25U(a).(S) and (a)(8).
Termination of parental rights under Section 251 l(a)(S) requires that: (I) the chlld has been
removed from parental care for at least six months; (2) the conditions which led to removal and
placement. of the child continue
. . to exist; and (3)
. termination of parental. tights
. would best serve
the needs and welfare of the child. 23Pa.C.S.A.<§2Sl l(a)(5).
The requirements to terminate pursuant to section 25ll(a)(8) are similar. "[T]o. terminate
parental rights pursuant to 23 Pa.C.S,A. §251 l(a)(S), the following factors must be
demonstrated: (1) thechild has been removed from parental care for 12 months or more from the
date of removal; (2) 'the conditions which led to the removal or placementof the child- continue
toexist; arid (3) termination of parental rights would best serve the needs and welfare of the
c;;hild." In-re K.T;E.L,,983 A.2d 745 (Pa. Super. 20.09).
' The Courtfound dear and convincing evidence to terminateMother's parental rights
pursuant to Sections:2511 (a)(5.)__and{c1)(8) for the same reasons discussed above. Particularly,
'that the Child was removed from-the shared home of Father and Mother with an OPC on
'SeptemberS ,, 2016 .and remained. in placement for approximately twenty months �y the time of
the termination hearing. Furthermore, the conditions that led. to the Child's removal (which·
'include; housing, domestic violence. Mother's. lack of a financial plan .or employment, Mother' s
· inability to keep the Child safe and Mothen's violation of the Delinquent Court Ordered Stay-
A.way betweenher son and daughter), had not .been 'alleviated by the· date ofthe termination
hearing. In addition, (he Court found
. that it was
. in.. the Child's best· interests to terminate
,, .
Mother's parental rights because the Child was· residing 111 care'for' nearlytwo years .and has a
pre-adoptive fosterparent that has stabilized the Child's behaviors, and, whomtheChild likes
and towhomthe Childis well-bonded. Moreover, the Court found that.the terminationof
M.o.ther's.,-p�ental rights. would not be deteirnerital to the Child's health, safety&. well-beingas
Mother does nothave a positive, healthy maternalrelationshipwith the Child,
B •. Tbe Trial Court Properly Fotind-tba:t Termination of Mother'·s ParentalRights w-as
in the Child's· Best Interests and That OHS Met Its· Burden Pursuant to .23 Pa.C.S.A.
. .
a
., Other Consideradoris,:: The Court In.terminatlng' the rights-of parentshall give primary consideration to the·
developmental, physical, andemotional needs .and wettare.of'the ctiild. The rights ·d°fa parentshef not. be terminated
'Solely on the· basis of environmental factors suchas inadequate housing, furnishings, income, clothing, and medical
.care iffound to be. beyond the coetrot.ofthe.perent. With respect to any petition filed pursuanrtosubsecnon
(a)(I ),(6) or-(8), the court s_h;,d! not consider any efforts by theparent to remedy the.conditions described therein.
whit:ll are. fir.s( in'jtia_red··s�.bs�qu·ent to the·giving·of'noth;i'of the. filing-<>( iJ1e,pcti�iori. ·
····--····----·--------------------------------
After the trial court finds that.the statutory grounds for termination have been. satisfied, it
must then determine whether the termination of parental rights serves the best 'interests of the
child pursuant to 23 P.a.C;S.A. §2511 (b). Iii the Matter of the Adoption of C.A. W. and A.A. W�;
4.53 Pa. Super; 2f7, 683 A.2d 911, 917-18 (Pa. Super. 1996). In terminating the.rigbtsofa
parent, the Court "shall give primary consideration to the developmental; physical and emotional
needs and welfare of'the child:' 23 Pa.C.S.A. §2511 (b), "Section 251 l(b) centers fudicial inquiry
upQµ the welfare of the child rather than the fault of the parent.'' In re K.Z�S.; 946 A.2d 753 (P�.
Super. 2008). Further, '"[ o]ne major aspect of the needs and welfare analysis concerns the nature
and status of the emotional bond between parent and child. Jn re C.T. and G.T.F;, 944 A..2d 719
(Pa. Super. 2008).
The Child was nine years old at the time of the hearing; and had been in placement for
approximately twenty months with two failed kinship placements but has since resided in pre- .
adoptive home with an appropriate caregiver. The Court relied on: the credible statement of Mr.
John Halli who testified that in hisopinion the Childwould not suffer any irreparable harm if
Mother's rights were to be involuntarily terminated, Mr. Hallbased.. his opinion upon the. fact that
Motherposes a grave threat to the Child by violatingthe.Delinquent Stay-Away and the no
telephone contact Orders that were put into place to protect the Child; and also on the fact that
the.Child does not have a healthy relationship with Mother as the Child indicated that she would
like to return home to Mother so ihat she could be sexually assaulted again by her brother, the
perpetrator of the sexual assault thatle.d to the Child'sinitial.removal and placement. In contrast,
Mr. Hall opined that the Child has positiveinteraction and a close-knit relationship with the pre'.'
adoptive foster parent and that the Child likes the pre-adoptive foster parent so much tilat the
Child's aegativebehaviors escalated when she was removed from that.fester parent ..andbriefly
placed in a· Respite Home. Addi tionally, Ms, Shannon Hawkins, whose statements this Court
found.credible, testified that the Child and Mother do not have a healthy or positive maternal.
relationship and that: the Child would not suffer any 'irreparable harm if her. parental' rights were.
terminated. Ms. Hawkins based 'her opinion on the fact that the Child does not bring up Mother
during their conversations and only mentions Mother. if the Child .is posed. a qu¢stipn. regarding
Mother. Ms. Hawkinsconcluded that it is best that 'the Child andMother not have any vlsits.as
-she is concerned withthe Child being with Mother. Lastly, Mr. Raymond Nichols, whose
� was reliable and persuasive,
testimony ..
opined
.
th;:it no positive, healthy maternal relationship.
exists between Mother and Child and that the Child would not suffer an. irreparableharmif
Mother's parental rights were. terminated. 'Mr. Nichols basedhis opinion: on having. observed
multiple visits where Mother did not protect the. Child from Fatber' s sexual advances, cursing, or
screaming; 'and also · where Mother would .not protect the Child .from the perpetrator by ·
coordinating telephone contact with the Childdespite .the no. telephonecontact order. Moreover,
Mt. Nichols explained that the Child was fearful ofher father and she feared him .so much 'that
shewouldoften defecate andor urinate .on herself before and/or after the visitswith Father, and
that 'Mother would .also be present but'tono avail. Also, Mr. Nichols based his opinion on the
fact that during the visits, the Child W@S· so fearful -of Father that she .would revert back to a very
'child-like ·��e, unable to have normal or usual discussions or'utter anything at all; yet.Mother
did nothingto.protect.the Child.
Based upon these facts, the Court concluded. that it would be in 'the Chi Id' s: best interest
'to be adopted. Additionally, while Mother completed a parenting class, 'it is Obvious that she still
does not possess theskills necessary to provide:a safe, nurturing, loving-borue; and.to
appropriately meet and foster the developmental, physical, and emotional needs and welfare of
the Child so she is· best served. by terminating Mother's parental rights.
C ..'The Trial Coil.rt Properly Found.that the Goal Change froin Reunification to
Adop'tio n .was in the·Cbild' s Best· Iii terest ·and· the· ·Court's Di.spositio·n was· Best Suited to
-
the Safety', Protection and·'Physical, Mental, and Moral W.elfare oftbe Chiid Pursuant to
42·i>a�c.S.A. §6351