J-S53001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.S.A., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: M.D.E., MOTHER                  :
                                               :
                                               :
                                               :
                                               :      No. 931 EDA 2018


                    Appeal from the Decree February 28, 2018
              in the Court of Common Pleas of Philadelphia County
                  Family Court at No.: CP-51-AP-0000101-2018


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                              FILED OCTOBER 15, 2018

       M.D.E. (Mother) appeals from the decree entered February 28, 2018, in

the Court of Common Pleas of Philadelphia County, which granted the petition

of the Philadelphia Department of Human Services (DHS) and involuntarily

terminated her parental rights to her minor daughter, J.S.A. (Child), born April

2016, pursuant to Section 2511(a)(1), (2), (5), and (b) of the Adoption Act,

23 Pa.C.S.A. § 2511.1 After careful review, we affirm.

       We take the following facts from the trial court’s May 11, 2018 opinion,

which in turn is supported by the record. DHS became involved with the family

in January 2017 after receiving a report alleging that Mother was incorrectly
____________________________________________


1 The parental rights of T.A. (Father) were terminated on the same day by
separate decree. He is not a party to this appeal and has not filed a separate
appeal.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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mixing Child’s infant formula and that, as a result, Child was underweight.

The report also alleged that Mother was diagnosed with mental health issues

and exhibited aggressive behavior.2

       In February 2017, DHS briefly made contact with Mother and Father.

By the time contact was re-established on April 10, 2017, Child was still

underweight, and an order for protective custody (OPC) was obtained. Child

was placed in foster care that same day.

       On April 19, 2017, the court convened a dependency hearing and

adjudicated Child dependent.              On November 22, 2017, following a

permanency review hearing, the court found clear and convincing evidence

established aggravated circumstances as to both Mother and Father, because

they each previously had parental rights to other children terminated.

       In December 2017, Mother and Father attended a single case plan (SCP)

meeting. Mother’s objectives were to: (1) participate in biweekly supervised

visitation; (2) attend parenting classes; (3) participate in a parenting capacity

evaluation; (4) attend Child’s scheduled medical appointments; (5) attend a

housing workshop; (6) comply with the court-ordered recommendations of

the Clinical Evaluation Unit (CEU) drug and alcohol assessment. Mother did

not go to CEU for an evaluation or random drug tests, did not complete a


____________________________________________


2 The record does not provide further elaboration regarding Mother’s mental
health issues, whether Mother received appropriate treatment for her issues,
or what constituted “aggressive behavior.” DHS’ statement of facts indicates
that Mother denied having mental health issues. (See DHS Exhibit A).

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parenting capacity evaluation, did not confirm her address, and did not attend

parenting classes, housing classes, or financial counseling classes.

         On February 5, 2018, DHS filed a petition seeking to involuntarily

terminate Mother’s parental rights and change Child’s permanency goal to

adoption. On February 28, 2018, the court held a hearing on the termination

petition. Mother was represented by counsel and testified on her own behalf.

Child was represented by James King, Esquire, as legal counsel and Lisa Port,

Esquire, as guardian ad litem. DHS presented the testimony of Jessica Law,

a social worker for NET Community Umbrella Agency (CUA), the case

manager.

         Ms. Law testified that Mother was not compliant with any of her

objectives and was living in a boarding house that was inappropriate for a

child.    (See N.T. Hearing, 2/28/18, at 7-11).      Mother had an intake at

Achieving Reunification Center (ARC) but her case was closed in August 2017

for non-compliance. (See id. at 9-10). Following a second referral, Mother

attended an intake in January 2018 and attended two out of three parenting

classes, but no housing or financial counseling. (See id. at 10-11). As of

November 2017, Mother attended only half of the weekly supervised visits;

after the visitation schedule was changed to biweekly, Mother attended five of

the seven visits. (See id. at 11-12). Additionally, Ms. Law testified that Child

is parentally bonded with her pre-adoptive foster parents, and that they take

care of her medical, emotional, and daily needs. (See id. at 12-13). Ms. Law

believed it was in Child’s best interests for Mother’s rights to be terminated

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and that Child would not suffer irreparable harm from the termination. (See

id. at 14).

       Mother testified that she believes she has a bond with Child. (See id.

at 42). Further, Mother testified that she attempted to go to CEU for screening

tests but was told to wait. (See id. at 41). Mother presented evidence that

she was enrolled in a parenting class and had been attending classes since

January 2018. (See id. at 27).

       At the conclusion of the hearing, the court granted the petition pursuant

to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b), and entered decrees

terminating Mother’s and Father’s parental rights.          This timely appeal

followed.3

       Mother presents the following questions for our review:
       1. Did the Department of Human Services (DHS) sustain its
       burden under [23] Pa.C.S.A. [§] 2511(a)(1)[,] (2) or (5) that
       Mother’s parental rights should be terminated when there was
       evidence that Mother was actively completing her permanency
       goals?

       2. Was there sufficient evidence presented to establish under 23
       Pa.C.S.A. [§] 2511(b) that it was in the best interest of [Child] to
       terminate Mother’s parental rights?

       3. Was there sufficient evidence presented to establish under [23
       Pa.C.S.A §] 2511(b) that Mother demonstrated a sincere and
       genuine desire to maintain a parent-child bond with [Child]?

(Mother’s Brief at 4).

____________________________________________


3 Mother filed her concise statement of errors complained of on appeal
contemporaneously with her notice of appeal on March 26, 2018. The trial
court entered an opinion on May 11, 2018. See Pa.R.A.P. 1925(a)(2)(i)-(ii).

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      We review cases involving the termination of parental rights according

to the following standards.

            The standard of review in termination of parental rights
      cases requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an abuse
      of   discretion    only   upon     demonstration      of    manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely because
      the record would support a different result. We have previously
      emphasized our deference to trial courts that often have first-hand
      observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Prior to addressing the merits of Mother’s appeal, we must first

determine whether she has preserved her issues for our review. Where an

appellant does not preserve her issue by raising it in her concise statement of

errors complained of on appeal, that issue is waived on appeal. See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived.”);

Krebs v. United Refining Co. of Pennsylvania, 893 A.2d 776, 797 (Pa.

Super. 2006).

      Here, Mother’s Rule 1925(b) statement does not include the second and

third issues she raises in the statement of the questions involved section of

her brief, relating to Child’s best interests and the parent-child bond. (See

Rule 1925(b) Statement, 3/26/18, at 1-2; Mother’s Brief, at 4). Accordingly,




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Mother’s second and third issues are waived. See Pa.R.A.P. 1925(b)(4)(vii);

Krebs, supra at 797. We now turn to the sole issue Mother has preserved.

      Mother argues that the trial court erred and abused its discretion in

terminating her parental rights pursuant to section 2511(a)(1), (2) and (5).

(See Mother’s Brief, at 11-12). Essentially, Mother argues that DHS did not

prove by clear and convincing evidence that her rights should be terminated,

and that she was making progress towards her objectives. (See id.). Mother

avers that, given the statutory requirement of fifteen months to complete her

goals, she would have been able to care for her daughter. (See id. at 13).

This issue merits no relief.

      Specifically, as noted above, the trial court terminated Mother’s parental

rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). To affirm, we

need only agree with any one of the subsections of 2511(a).          See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863

A.2d 1141 (Pa. 2004). Here, we focus our analysis on subsection (a)(2), which

states:

      (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,



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            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.”

In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998) (citation

omitted).   The grounds for termination are not limited to affirmative

misconduct, but concern parental incapacity that cannot be remedied. See

In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010). Parents are required to

make diligent efforts toward the reasonably prompt assumption of full parental

duties. See id. at 1117-18.

      The relevant considerations set forth in the Juvenile Act regarding

permanency planning are as follows:

            Pursuant to § 6351(f) of the Juvenile Act, when considering
      a petition for a goal change for a dependent child, the juvenile
      court is to consider, inter alia: (1) the continuing necessity for and
      appropriateness of the placement; (2) the extent of compliance
      with the family service plan; (3) the extent of progress made
      towards alleviating the circumstances which necessitated the
      original placement; (4) the appropriateness and feasibility of the
      current placement goal for the children; (5) a likely date by which
      the goal for the child might be achieved; (6) the child’s safety;
      and (7) whether the child has been in placement for at least fifteen
      of the last twenty-two months.




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In Interest of L.T., 158 A.3d 1266, 1276-77 (Pa. Super. 2017) (citation and

footnote omitted). With regard to the last consideration,

      [i]t is beyond cavil that the fifteen-to-twenty-month period
      outlined in § 6351 is not a prerequisite to a goal change, but
      rather, an aspirational target in which to attain permanency. See
      42 Pa.C.S. § 6351(f.1)(9) (“If the child has been in placement for
      at least 15 of the last 22 months . . . [the court must determine]
      whether the county agency has filed or sought to join a petition to
      terminate parental rights[.]”).

Id. at 1279.

      Here, the trial court observed that:
      The record demonstrated Mother’s ongoing inability to provide
      care for or control of Child due to her failure to remedy the
      conditions that brought the Child into care. Specifically, Mother
      had not completed her SCP objectives and exhibited an inability
      or refusal to attend programs necessary to complete her SCP
      objectives or to follow court orders.

(Trial Court Opinion, 5/11/18, at 4).

      The record reflects that Mother did not go to CEU for an evaluation;

complete a parenting evaluation prior to the hearing; obtain appropriate

housing or apprise DHS of her current address; attend housing or financial

classes; or visit regularly with child. (See N.T. Hearing, at 7-12). While there

was some testimony that Mother had begun visiting more regularly with Child

and, as of February 2018, had attended two parenting classes, Mother was

overwhelmingly non-compliant with her objectives.         (See id. at 11-12).

Accordingly, DHS proved by clear and convincing evidence that Mother’s

repeated and continued incapacity had caused Child to be without essential




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parental care, control, or subsistence, and the causes of the incapacity could

not be remedied. See Lilley, supra at 330; Z.P., supra at 1117.

      Thus, we affirm the court’s decree involuntarily terminating Mother’s

parental rights.

      Decree affirmed.

      President Judge Gantman joins the Memorandum.

     Judge Ott concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/18




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