In the Interest of: B.A.C., a Minor ( 2016 )

J. S52015/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.A.C., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: J.W., A/K/A J.C., MOTHER : No. 3546 EDA 2015
Appeal from the Order Dated September 8, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000465-2014,
CP-51-DP-0000143-2013
IN THE INTEREST OF: J.L.C., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: J.W., A/K/A J.C., MOTHER : No. 3548 EDA 2015
Appeal from the Order Dated September 8, 2015,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000466-2014,
CP-51-DP-0000144-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
J.W., a/k/a J.C., (“Mother”) appeals from the decrees and orders
entered September 8, 2015, in the Court of Common Pleas of Philadelphia
County, Family Court Division, granting the petitions of the Philadelphia
Department of Human Services (“DHS”) and involuntarily terminating her
parental rights to her minor adoptive children, B.A.C., born in February of
2009, and J.L.C., born in May of 2005 (collectively, the “Children”), pursuant
to 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8), and (b), and changing the
* Retired Senior Judge assigned to the Superior Court.
J. S52015/16
permanency goal to adoption pursuant to 42 Pa.C.S.A. § 6351.1 In addition,
on March 15, 2016, Mother’s counsel filed a petition to withdraw, together
with an Anders2 brief, averring the within appeal is frivolous. After review,
we grant counsel’s petition to withdraw and we affirm.
The relevant procedural and factual history was summarized by the
trial court as follows:
This case initially became known to the
Department of Human Services (“DHS”) on
January 18, 2013 when DHS received a General
Protective Services (“GPS”) report alleging that
J.L.C. had sustained a contusion on his head after
Mother repeatedly banged his head on the floor until
he stopped crying.[3] The report stated that J.L.C.
was a special needs child after being diagnosed with
Dandy Walker Syndrome (congenital brain
malfunction). The report also alleged that Mother hit
B.A.C. (who is a blind child) on his hands as a form
of punishment. On the same day, an Order of
Protective Custody (“OPC”) was obtained for J.L.C.
after he reported that he was afraid to return home
to Mother. On January 18, 2013, DHS obtained an
1
Mother adopted J.L.C. and B.A.C. as a single parent. (Decrees of
involuntary termination of parental rights, 9/8/15 at 1; petitions for
involuntary termination of parental rights, 9/10/14 at 1.)
2
Anders v. California, 386 U.S. 738 (1967).
3
DHS social worker, Clarence Tillman, testified that he became acquainted
with the family just days prior, on January 16, 2013, in relation to another
child in the family, I. (Notes of testimony, 9/8/15 at 34.) Mother’s parental
rights to I. were subsequently terminated. (DHS petition for involuntary
termination of parental rights, 9/10/14, Exhibit “A,” Statement of Facts, at
¶bb.)
-2-
J. S52015/16
OPC for B.A.C. because the child was non-verbal and
could not say whether he was safe.[4]
On January 28, 2013, the Court adjudicated
the Children dependent and committed them to DHS.
In the Court order for the adjudication, the
Assessment and Treatment Alternative (“ATA”)
evaluation stated:
“[Mother] asserts [that] all allegations
and/or reports of her engaging in
negative and/or abusive behaviors with
her children (biological, adopted, and/or
foster) are false and multiple people are
lying when reporting these allegations.
Given [Mother] presents a pervasive
pattern of consistently altered versions of
events spanning across different children
and different allegations there are
ongoing concerns regarding her capacity
to provide for the children’s safety.”
During the evaluation, Mother admitted “to
occasionally hitting her children on the buttocks,”
especially when one child had temper tantrums. In
particular, Mother felt that corporal punishment was
“needed because of her history of severe behavioral
problems” with another child. The ATA evaluator
concluded that in order for Mother to be reunified
with her children, she would have to “explore her
role in DHS’ involvement in her life with her as an
identified perpetrator of abuse in therapy.”
The hearing on the Petition for Involuntary
Termination of Parental Rights was held on
September 8, 2015. During the hearing, the Court
heard from five witnesses: Dr. Erica Williams (ATA
Forensic Psychologist), Clarence Tillman (DHS Social
Worker), Jessica Stone (Northeast Treatment Center
(“NET”) social worker, Emily Slook (Children’s Crisis
4
A review of the record reveals that the OPC for B.A.C. was obtained on
January 19, 2013. (DHS Exhibit 3.)
-3-
J. S52015/16
Treatment Center “CCTC” trauma clinician), and
Mother.
....
After closing arguments, the Court made the
following findings as to the credibility of the
witnesses: 1) Dr. Williams was credible and her
testimony accepted in full; 2) Mr. Tillman was
credible and his testimony was accepted in full;
3) Ms. Slook was credible and her testimony
accepted in full; 4) Ms. Stone was credible and her
testimony was accepted in full; 5) Mother’s
testimony was not credible and her testimony was
not accepted in full.
The Court accepted the testimony of Mother
slapping the hands of B.A.C. and “knowing [B.A.C.’s]
condition []. . .[] there is no excuse for [M]other to
slap [B.A.C.’s] hands or to do anything that would
cause him harm because of his condition. And the
fact that [Mother] cannot accept, or realize that fact
is concerning to the Court.” The Court further found
that “mom did harm these children. . .[.] [Mother]
attempts to manipulate the children instead of
dealing with her own mental health issues[]
[c]ausing her children to be unsafe.”
The Court stated that “It’s the parents’ duty to
love, protect, and support their children. But a
parent cannot meet these goals if a parent does not
realize that they can’t protect the child because of
deficits the parents may have.”
The Court found that DHS had met its burden
and presented clear and convincing evidence to
support the termination of Mother’s parental rights
under 23 Pa. C.S. §§ 2511(a)(2), [](5), and (8) of
the Adoption Act. Pursuant to 23 Pa. C.S. § 2511(b)
the Court further found that while a bond exists
between Mother and the B.A.C., it is not a
parent-child bond. The Court found that based on
the evidence, it was in the best interests of the
Children to be adopted and granted the termination
-4-
J. S52015/16
of Mother’s parental rights on September 3, 2009
based on 2511(a)(1), and (2) and 2511(b). . . .[5]
Trial court opinion, 2/1/16 at 1-6 (footnotes omitted; citations omitted).
By letter dated October 21, 2015, and addressed to Supervising Judge
Walter Olszewski, Mother requested the ability to appeal the termination of
her parental rights nunc pro tunc. (Letter, 10/21/15.) On October 30,
2015, the trial court granted Mother permission to file an appeal nunc pro
tunc, and appointed counsel for purposes of appeal. (Order, 10/30/15.)
Thereafter, Mother, through appointed counsel, filed timely notices of appeal
and concise statements of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b) on November 20, 2015. This court
sua sponte consolidated the appeals on January 20, 2016.
On appeal, Mother raises the following issues for review:
Whether under the Juvenile Act, 42 Pa.C.S.A.
Section 6351, and 55 Pa. Code section 3130.74, in
accordance with the provisions of the Federal
Adoption and Safe Families Act, 42 U.S.C. Section
671, et seq., reasonable efforts were made to
reunite the mother with her child[ren] and whether
the goal change to adoption was the disposition best
suited to the safety, protection and physical, mental
and moral welfare of the child[ren][?]
Whether it was proven by clear and convincing
evidence that Mother’s parental rights should be
terminated under Sections 2511 (a)(2), (5), (8) and
2511 (b)[?]
5
A review of the record reveals that on September 8, 2015, the trial court
terminated Mother’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(2),
(5), (8), and (b). On the same date, the trial court additionally entered an
order changing the permanency goal to adoption.
-5-
J. S52015/16
Anders brief at 6 (unnecessary capitalization omitted).
When counsel files an Anders brief, this court may not review the
merits of the appeal without first addressing counsel’s request to withdraw.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.Super. 2013). See
also Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005)
(stating, “[w]hen faced with a purported Anders brief, this Court may not
review the merits of the underlying issues without first passing on the
request to withdraw[]”(citation omitted)). In In re V.E., 611 A.2d 1267
(Pa.Super. 1992), this court extended the Anders principles to appeals
involving the termination of parental rights. Id. at 1275. It follows, counsel
appointed to represent an indigent parent on a first appeal from a decree
involuntarily terminating parental rights may petition this court for leave to
withdraw representation and submit an Anders brief. In re S.M.B., 856
A.2d 1235, 1237 (Pa.Super. 2004). To withdraw, pursuant to
Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005), and its
progeny, counsel must:
1) petition the court for leave to withdraw stating
that, after making a conscientious examination of
the record, counsel has determined that the appeal
would be frivolous; 2) furnish a copy of the
[Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain
private counsel or raise additional arguments that
the [appellant] deems worthy of the court’s
attention.
-6-
J. S52015/16
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013)
(en banc), citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super.
2009). See also Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa.Super. 2014). We further review counsel’s Anders brief for compliance
with the requirements set forth in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
[W]e hold that in the Anders brief that accompanies
court-appointed counsel’s petition to withdraw,
counsel must: (1) provide a summary of the
procedural history and facts, with citations to the
record; (2) refer to anything in the record that
counsel believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record,
controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is
frivolous.
Id. at 361. “Once counsel has satisfied the above requirements, it is then
this Court’s duty to conduct its own review of the trial court’s proceedings
and render an independent judgment as to whether the appeal is, in fact,
wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291
(Pa.Super. 2007) (en banc), quoting Commonwealth v. Wright, 846 A.2d
730, 736 (Pa.Super. 2004).
Counsel has satisfied the first requirement of Anders by filing a
motion to withdraw, wherein he asserts that he has made a conscientious
review of the record and determined the appeal would be frivolous.
-7-
J. S52015/16
Likewise, counsel has satisfied the second requirement by filing an Anders
brief that complies with the requirements set forth in Santiago, supra.
With respect to the third requirement, counsel has attached to the motion to
withdraw a copy of the letter sent to Mother advising her of her rights, and
enclosing a copy of the Anders brief. Hence, we conclude that counsel has
complied with the Anders requirements and proceed to a review of the
merits, commencing with the issue of involuntary termination first.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.”
In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817,
826 (Pa. 2012). “If the factual findings are
supported, appellate courts review to determine if
the trial court made an error of law or abused its
discretion.” Id. “[A] decision may be reversed for
an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice,
bias, or ill-will.” Id. The trial court’s decision,
however, should not be reversed merely because the
record would support a different result. Id. at 827.
We have previously emphasized our deference to
trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re
R.J.T., 9 A.3d at 1190.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
-8-
J. S52015/16
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. Initially,
the focus is on the conduct of the parent. The party
seeking termination must prove by clear and
convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and
status of the emotional bond between parent and
child, with close attention paid to the effect on the
child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We
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).
In this case, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8), as well as (b). We
have long held that, in order to affirm a termination of parental rights, we
need only agree with the trial court as to any one subsection of
Section 2511(a), well as Section 2511(b). In re B.L.W., 843 A.2d 380, 384
-9-
J. S52015/16
(Pa.Super. 2004) (en banc). Here, we analyze the court’s termination
pursuant to Sections 2511(a)(2) and (b), which provide as follows:
§ 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 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.A. § 2511(a)(2), (b).
- 10 -
J. S52015/16
We first examine the court’s termination of Mother’s parental rights
under Section 2511(a)(2).
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) (citation
omitted). “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), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002).
In the case at bar, in discussing Subsections 2511(a)(2), (5), and (8),
the trial court noted Mother’s continued lack of appreciation of any
wrongdoing and highlighted the testimony of Dr. Erica Williams that Mother
did not have the capacity to parent the Children, which was not disputed.
(Trial court opinion, 2/1/16 at 9-10.)
Here, we have a case of a mother who refuses
to acknowledge her role in jeopardizing the safety of
the Children. Further, Mother reported to
Dr. Williams, the ATA evaluator, that she believes
that the numerous reports and allegations against
- 11 -
J. S52015/16
her are a result of malicious jealousy. Mother’s lack
of acknowledgement of any wrong behavior and
contribution to the safety of the Children is of itself a
safety concern. Throughout the termination hearing
Mother has denied any abuse of the Children and
denies all of the claims from the many abuse
allegations. This Court found Mother’s testimony not
credible.
Mother’s ATA evaluation and the testimony of
Dr. Williams showed that Mother did not have the
capacity to parent [the Children]. There was no
other expert testimony presented to dispute Mother’s
parental capacity. Therefore, based on the evidence,
Dr. Williams’s testimony was uncontested and found
to be credible by this Court.
Id. at 9-10 (citations to record omitted).
A review of the record supports the trial court’s finding of the basis for
termination under Section 2511(a)(2). Dr. Williams, who conducted a
parenting capacity evaluation of Mother in October 2013, testified that
Mother did not have the capacity to parent the Children.6 (Id. at 7.)
Dr. Williams explained the basis of this opinion as follows:
The [concerns] were that DHS raised concerns
with [I.] that she had abandoned [I.]. With [J.L.C.],
there was [sic] concerns that she had physically
harmed him and she was identified as the
perpetrator for that. That she physically disciplined
[B.A.C.] who at the time could not hear or see and
was lacking multiple kind [sic] of sensory ways to
communicate as well as concerns that she wasn’t
taking any responsibility for those behaviors. When
I asked her about these different behaviors she
denied that any of them occurred, she provided
alternate accounts of each concern, in terms of
abandoning [I.], she explained she did that with
6
Dr. Williams report was marked as DHS Exhibit 13.
- 12 -
J. S52015/16
DHS, they coordinated because that was in his best
needs, and he wouldn’t be able to get the care he
needed if she didn’t sign off on abandonment. When
I spoke to Mr. Tillman he was very clear that that
was not the sequence of events that she actually told
Mr. Tillman she did not want [I.] in her care because
he sexually abused her older biological daughter [B.]
When we discussed [J.L.C.], she denied that
she ever banged his head on the floor. She denied
reports that the nurse witnessed her physically fight
him, restrain him, and bring him down to the floor.
She did report that she would occasionally discipline
him on the buttock. She said that she knew that
that was wrong, that she wasn’t supposed to do it.
But she engaged in it to prevent him to turn out like
[I.]
In regards to [B.A.C.], she did not speak
whether or not she physically disciplined him, and
there was no direct concerns for [B.A.C.] regarding
[J.].
She also reported historical concerns to include
she was alleged to have sexually abused [I.], and in
discussing all of these concerns she said that other
people made those reports because they were
jealous. When concerns were raised that [J.L.C.]’s
therapist said he was being coached[] to recant the
abuse, and he said that his mother had learned his
lesson and that he deserved to be beat, she said that
anything the therapist said was false.
So, there was this pattern of over different
children, over different years, over different
reporters, she denied everything, and provided
alternate version of events.
Regarding [J.L.C.]’s injury, she felt that he was
confused, that it happened on the bus, and that the
school is retaliating against her because she
identified concerns of [B.A.C.] the week prior.
Id. at 7-9.
- 13 -
J. S52015/16
Moreover, Dr. Williams expressed concern for the safety and
permanency of B.A.C. given his inability to speak to and convey his welfare.
(Id. at 13-14.) Dr. Williams stated:
There’s significant concerns because it turns
out that this physical discipline had been occurring in
excess by reports of witnesses to include physical
fighting, throwing on the floor, the beating of the
head of [J.L.C.] to the ground and that stopped
because [J.L.C.] was able to speak up, [J.L.C.] was
able to voice his concerns.
From what I understand of [B.A.C.]’s
limitations, he does not have that opportunity, he is
not able to speak up and say that I’m not
comfortable, I’m not safe[,] I’m not feeling well.
Id. at 14.
Further, DHS social worker, Clarence Tillman, additionally expressed
concerns regarding Mother’s “ability to parent to keep the kids safe.” (Id. at
48.) Mr. Tillman related that the Children’s foster families consistently
requested no contact with Mother. (Id. at 48.) Likewise, Mr. Tillman
confirmed that Mother never completed her Family Service Plan (“FSP”) goal
of individual therapy, which remained an objective throughout the case,
noting a gap between January 2014 and March 2015. (Id. at 52-53, 56.)
Relatedly, Mother continues to deny responsibility for her role in J.L.C.’s
injury and the Children being in care, and in fact, there was concern that
Mother’s therapy was not addressing this issue. (Id. at 53-56). Hence, the
record substantiates the conclusion that Mother’s repeated and continued
incapacity, abuse, neglect, or refusal has caused the Children to be without
- 14 -
J. S52015/16
essential parental control or subsistence necessary for their physical and
mental well-being. See In re Adoption of M.E.P., 825 A.2d at 1272.
Moreover, Mother cannot or will not remedy this situation. See id.
We next determine whether termination was proper under
Section 2511(b). With regard to 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 at 485, 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. However, as discussed
below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 71 A.3d at 267. “[I]n cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (citations omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
- 15 -
J. S52015/16
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1115-1116 (Pa.Super. 2010)
(internal citations omitted).
In the instant matter, the trial court indicated that it was “satisfied
that grounds for termination under § 2511(b) of the Adoption Act were
established by clear and convincing evidence,” stating:
One of the core sources for the strength of a
parental bond are the visits between Mother and the
Children. The main purpose for offering parents
visitation with their children is to “preserve the unity
of the family whenever possible or to provide
another alternative permanent family when the unity
of the family cannot be maintained.” 42 Pa.C.S.A.
§ 6301. In this case, Mother’s visits with J.L.C. were
terminated over two years prior to the termination
hearing. Testimony was presented that J.L.C. had
already separated himself from Mother mentally.
B.A.C. is, by Mother’s admission, in an excellent
placement with his former night nurse. There was
no evidence presented at trial to show that the
Children would suffer irreparable harm if Mother’s
parental rights were terminated. Further, there was
no request for a bond evaluation nor were [sic] there
any credible testimony of a parent-child bond
between Mother and the Children.
Trial court opinion, 2/1/16 at 11 (citations to record omitted).
Here, the record likewise corroborates the trial court’s termination
pursuant to Section 2511(b). Initially, we note that, although Mother had
visitation with the Children, this visitation was not unsupervised. (Notes of
testimony, 2/1/16 at 40, 89-90.) Notably, visitation initially occurred at the
“kinship home,” which became problematic as a result of Mother. (Id. at
- 16 -
J. S52015/16
40-41.) Additionally, thereafter, subsequent to a prior hearing in 2013, the
trial court discontinued visitation between Mother and J.L.C.7 (Id. at 42.)
Of concern, while Mother and J.L.C. therefore do not have visitation, there is
visitation between J.L.C. and his sibling, J.,8 who still resides with Mother,
and Mother sent presents and cards to J.L.C. through J. (Id. at 46-47.)
DHS social worker, Clarence Tillman, stated:
[T]he problem that it’s causing is that she’s brought
him toys, watch [sic], stuff like that, and of course
when [foster father] takes it from him it’s making
him to believe [sic] to be the bad guy, and the bad
parent. So, this was a major source of concern for
me. So I talked to Carson Valley, [sic] the worker
had quit. [sic] In between workers as we speak
but, in fact, mom told me today we have a new
worker and they have done another sibling visit. I
was tempted to stop the sibling visits simply because
[J.L.C.] is at a good place. He’s in a home that he
loves, he wants to be in, they love him. So, I was
torn because I know the love he has for his brother.
So I let them go on anyway.
Id.
Mr. Tillman, testified that J.L.C. no longer has a parent/child
relationship with Mother, but rather does with his current foster family with
whom he has been placed since August 2014. (Id. at 56-57.) Mr. Tillman
related how happy J.L.C. is in his current home, stating, “[T]his is the
7
Visitation with regard to B.A.C. was terminated at that time as well, but
was reinstated by this court on appeal and commenced again in
approximately July 2014. (Notes of testimony, 9/8/15 at 69, 87.)
8
J. is J.L.C.’s biological brother. (Id. at 46.)
- 17 -
J. S52015/16
happiest I’ve ever seen him. He no longer wants to go home; he hasn’t
wanted to go home in over a year.” (Id. at 45, 58.) As to J.L.C.’s progress,
Mr. Tillman further offered:
He’s the little man of the house -- pretty much,
he’s the little man of the house. He worships the
ground that [foster father] works [sic] on. [Foster
father] talks about him so proudly and some
amazing [sic]. He’s doing, he lost weight, he’s
grown, he’s trying school this year without
Wraparound services, he did amazing over summer
camp. He’s doing wonderful.
Id. at 58. Consequently, Mr. Tillman unwaveringly affirmed that it was in
the best interest of J.L.C. for Mother’s rights to be terminated and that this
would not cause J.L.C. “irreparable harm” or “detriment[].” (Id. at 45, 48,
57-58.) As Mr. Tillman opined, this was because “[h]e’s mentally already
separated. . . . [H]e’s already done it himself mentally.” (Id. at 57-58.)
Similarly, J.L.C.’s therapist from Children’s Crisis Treatment Center,
trauma clinician, Emily Slook, testified that “if [J.L.C.] were to be removed
from his current foster family that it would do more harm than good.” (Id.
at 77.) Moreover, Ms. Slook indicated that J.L.C. “is very stable right now.”
(Id. at 75.) Significantly, she attributed this to a foster family that is “able
to provide a safe and stable structured environment and who are also
supportive of trauma treatment, and who are nurturing to the child as well.
And J.L.C. is receiving all of those needs from his current foster family.”
(Id. at 76.)
- 18 -
J. S52015/16
With regard to B.A.C., Jessica Stone, NET case manager, who
supervised Mother’s visits with B.A.C., testified to a relationship between
Mother and B.A.C., indicating, “He knows who his mom is, he communicates
with her. He’s excited to see her. He’s excited during the visit, he’s sad
when the visit is over.” (Id. at 82.) However, Ms. Stone stated that she
could not answer when asked if she thought it would cause irreparable harm
if Mother’s rights were terminated. (Id.) Further, she noted that B.A.C.
“responds well” to his foster parents. (Id. at 83.)
DHS social worker, Clarence Tillman, also acknowledged the bond
between Mother and B.A.C. (Id. at 50, 59.) Nonetheless, Mr. Tillman
testified that this was not a parent/child bond. (Id. at 59.) What is more,
Mr. Tillman instead emphasized the bond between B.A.C. and his
caregivers.9 (Id. at 50, 59.)
[B.A.C.] is being cared for, especially right
now, he’s probably in the best home he’s ever been
in. Don’t get me wrong he know’s who [Mother] is,
and he does have a bond with her but it wouldn’t be
detrimental, because his main care believe it or not
really comes from his nurses. I mean, he’s so
bonded with his nurses, like almost like -- well,
where’s he’s at now used to be his former nurse so
that would explain it. So it’s a bond [sic] child bond.
And he’s crawling all over the floor he’s trying to
walk, he’s doing amazing things.
9
B.A.C. required and received care due to his numerous medical conditions.
(Notes of testimony, 9/8/15 at 64; DHS Exhibit 4 at 2, DHS Exhibit 7 at 2;
DHS petition for involuntary termination of parental rights, 9/10/14,
Exhibit “A,” Statement of Facts, at ¶o.)
- 19 -
J. S52015/16
Id. at 50. As a result, Mr. Tillman stated that it would be in the best interest
of B.A.C. for Mother’s parental rights to be terminated and would cause him
no “irreparable harm” or “detriment[].” (Id. at 48, 50, 59.) Thus, as
confirmed by the record, the emotional needs and welfare of the Children
favor termination. Accordingly, based upon our review of the record, we find
no abuse of discretion and conclude that the trial court appropriately
terminated Mother’s parental rights under 23 Pa.C.S.A. §§ 2511(a)(2) and
(b).
We lastly turn to whether reasonable efforts were made at
reunification of Mother and the Children, and whether the trial court
appropriately changed the permanency goal to adoption. In so doing, we
first note that our supreme court has held that Section 6351(f) does not
require reasonable efforts as it relates to termination of parental rights.
In re D.C.D., 105 A.3d 662, 673-674 (Pa. 2014).
[W]hile reasonable efforts should be considered and
indeed, in the appropriate case, a trial court could
insist upon their provision, we hold that nothing in
the language or the purpose of Section 6351(f)(9)
forbids the granting of a petition to terminate
parental rights, under Section 2511, as a
consequence of the agency’s failure to provide
reasonable efforts to a parent.
Id. at 675. Thus, we find this portion of Mother’s claim to be without merit.
As to a change in permanency goal, we note that our standard of
review is the same abuse of discretion standard as noted above. In the
Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015), citing In re R.J.T., 9
- 20 -
J. S52015/16
A.3d 1179, 1190 (Pa. 2010) (for proposition that the abuse of discretion
standard applies in a dependency matter). Further, following an
examination and findings of factors provided in 42 Pa.C.S.A. § 6351(f) and
(f.1), regarding matters to be determined at the permanency hearing, the
trial court must also find that a goal change is in Child’s best interests. See
42 Pa.C.S.A. § 6351(g); In re R.J.T., 9 A.3d 1179 (Pa. 2010).
The primary purpose of the disposition of a dependent child is to
examine what is in the best interest of the child. 42 Pa.C.S.A. § 6351(a);
In the Interest of Z.W., et al., 710 A.2d 1176, 1178 (Pa.Super. 1998).
See also In re Tameka M., 580 A.2d 750, 753 (Pa. 1990) (stating, “In
ordering a disposition under Section 6351 of the Juvenile Act, the court acts
not in the role of adjudicator reviewing the action of an administrative
agency, . . . rather the court acts pursuant to a separate discretionary role
with the purpose of meeting the child’s best interests,” quoting In re
Lowry, 484 A.2d 383, 386 (Pa. 1984)).
In the case at bar, as indicated, Mother failed to comply with all FSP
goals and objectives; namely, individual therapy. (Notes of testimony,
2/1/16 at 52-53, 56.) Further, DHS social worker, Clarence Tillman,
testified as to his belief that it is in the best interest of the Children for the
goal to be changed to adoption. (Id. at 45, 48.) Therefore, the record
supports that a goal change was in Children’s best interests. Accordingly,
after review of the record, we again discern no abuse of discretion and
- 21 -
J. S52015/16
conclude that the trial court properly changed the permanency goal to
adoption.
Based on the foregoing independent analysis of the trial court’s
termination of Mother’s parental rights and change of permanency goal, we
agree with counsel for Mother that the within appeal is wholly frivolous.10 As
such, we affirm the decrees and orders of the trial court and grant counsel’s
petition to withdraw.
Decrees and orders affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
10
Further, we note that our independent review of the record did not reveal
any additional, non-frivolous issues overlooked by counsel. See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015), citing
Commonwealth v. Goodwin, 928 A.2d 287 (Pa.Super. 2007) (en banc).
- 22 -