J-S19018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: N.J., A MINOR     :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: B.P., MOTHER               :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 3086 EDA 2018


          Appeal from the Decree Entered, September 19, 2018,
           in the Court of Common Pleas of Philadelphia County,
          Domestic Relations at No(s): CP-51-DP-1000097-2016.


 IN THE INTEREST OF: N.M.J., A         :   IN THE SUPERIOR COURT OF
 MINOR                                 :        PENNSYLVANIA
                                       :
                                       :
 APPEAL OF: B.M.P., MOTHER             :
                                       :
                                       :
                                       :
                                       :   No. 3093 EDA 2018


          Appeal from the Decree Entered, September 19, 2018,
           in the Court of Common Pleas of Philadelphia County,
          Domestic Relations at No(s): CP-51-AP-0000470-2017.


BEFORE:   LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                       FILED JUNE 04, 2019

     In this matter, B.M.P. (Mother) appeals the decree terminating her

parental rights to her nearly 3-year-old daughter N.M.J., pursuant to the




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19018-19



Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8) and (b). 1, 2 After

review, we affirm.

       Child came to the attention of the Philadelphia Department of Human

Services (DHS) when Mother and Child tested positive for marijuana and

cocaine during Child’s birth in October 2015. Mother was unable to care for

Child, who was removed from her parents’ care and placed in the home of

Child’s maternal cousin. Child never lived with her parents for any extended

period of time. Mother continued to test positive for illicit drugs, which led to

the Child’s dependency adjudication in July 2016.

       The juvenile court ordered Mother to seek drug treatment, participate

in random drug screens, and visit Child.         The court further ordered her to

obtain appropriate housing and complete a parenting program. Mother never

complied with the court-sanctioned reunification plan during the course of the

dependency proceedings.

       In April 2017, DHS filed a petition to terminate Mother’s rights. The

orphans’ court conducted a termination hearing on September 19, 2018 and

____________________________________________


1 The court also terminated parental rights of L.J. (Father). Although his
appeal is before this panel, it is not consolidated with this matter. See 3044
EDA 2018; 3045 EDA 2018.


2 D.P. (Maternal Grandmother) also sought to join this matter. For reasons
we set forth below, we grant the joint application filed by DHS and Child and
strike Maternal Grandmother from this appeal.




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granted the petition.3       Mother filed this timely appeal. She presents two

questions for our review:

              1. Whether the orphans’ court erred by terminating the
                 parental rights of Mother under 23 Pa.C.S.A. §
                 2511(a)(1), (2), (5), (8)?

              2. Whether the orphans’ court erred by finding, under 23
                 Pa.C.S.A. § 2511(b), that termination of Mother’s
                 parental rights best serves Child’s developmental,
                 physical and emotional needs and welfare?

See Mother’s Brief at 5.

       In reviewing an appeal from an order terminating 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. Id.;
          R.I.S., 36 A.3d 567, 572 (Pa. 2011) (plurality opinion). As
____________________________________________


3 We note that the Child was properly represented under 23 Pa.C.S.A. §
2313(a). In her concise statement to the orphans’ court, Mother alleged that
the court erred by vacating Child’s legal counsel appointment, which was
originally made to ensure Child’s legal interests were properly represented.
See, e.g., In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). At the
beginning of the hearing, Child’s guardian ad litem advised the court that
Child, who was nearly three years old, was pre-verbal and too young to
articulate a preferred outcome. See In re T.S., 192 A.3d 1080 (Pa. 2018).
Child’s legal counsel concurred with the guardian’s assessment. In its Rule
1925 opinion, the court explained that no separate legal counsel appointment
was necessary pursuant to § 2313(a) and In re T.S. Notably, Mother does
not raise the issue in her brief; although this issue cannot be waived, we
nevertheless agree with the lower court’s conclusion.

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        has been often stated, an abuse of discretion does not result
        merely because the reviewing court might have reached a
        different conclusion. Id.; see also Samuel Bassett v. Kia
        Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011);
        Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
        Instead, a decision may be reversed for an abuse of
        discretion   only    upon    demonstration     of     manifest
        unreasonableness, partiality, prejudice, bias, or ill-will. Id.

        As [the Supreme Court] discussed in R.J.T., there are clear
        reasons for applying an abuse of discretion standard of
        review in these cases. [U]nlike 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.
        R.J.T., 9 A.3d at 1190. 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 Atencio, 650 A.2d 1064,
        1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

     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)).


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      This Court may affirm the trial court’s termination of parental rights

based on any one subsection of section 2511(a). See In re B.L.W., 843 A.2d

380, 384 (Pa. Super. 2004) (en banc). Sections 2511(a)(2) and (b) provide,

in relevant part, 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
         [her] 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.

      Instantly, Mother’s first issue concerns the first prong of the termination

analysis. We address the court’s determination that DHS met its burden under



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§ 2511(a)(2), namely that Mother’s drug addiction rendered her incapable of

parenting.

      The Supreme Court has addressed parental incapacity under §

2511(a)(2) as follows:

          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.

          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.

      Here, Mother cites her own testimony to conclude that she made

sufficient progress on her reunification goals, that DHS failed to meet its

burden, and that the court’s findings to the contrary equated an abuse of

discretion. See Mother’s Brief at 11-13. We conclude that the record supports

the orphans’ court decision to terminate Mother’s rights.




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       Mother had a long history of substance abuse. Two other children were

previously removed from her care because of her addiction. During Child’s

dependency case, Mother participated in five drug treatment programs, but

she never successfully completed any of them. See N.T., 9/19/18, at 212-

214. Other than two screens in May 2016, which were positive for cocaine,

marijuana, and alcohol, Mother did not attend court-ordered drug screens.

See DHS Exhibit 5; N.T. at 28-30.

      Mother claims to have satisfied her parenting goal, because she received

a certificate for attending a requisite parenting class. See Mother’s Exhibit at

1. Yet, she ignores the fact that she could not be trusted to care for Child

outside of supervised visitation due to her substance abuse. Moreover, Mother

attended only about half of the visits offered to her. See N.T. at 14; 34; 130;

187; see also Footnote 4, infra. Of those she attended, Mother arrived late

and often left early. Id., at 36.

      Mother disputes the court’s determination that she failed to meet her

housing goal, because she lived with her sister. Here, the record also supports

the court’s conclusion. But even if Mother achieved stable housing, Mother’s

inability to achieve sobriety or to visit Child for any significant length of time

prevented the court from ordering further reunification.      The court did not

abuse its discretion when it concluded Mother was incapable of parenting

Child. Mother’s first issue is without merit.

      Having concluded that the court properly applied the first prong of the

termination analysis, we turn now to the second prong under section 2511(b),

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which is the subject of Mother’s second appellate issue. Mother argues that

because Child is bonded to her, the termination of the relationship does not

best serve the Child’s needs and welfare. See Mother’s Brief at 16-18.

      This Court has stated that the initial focus of a termination analysis is

on the parent, but the second prong focuses on the child. 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).

      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

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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 also a relevant part of this analysis.

See In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). 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 mother would be contrary to child’s best

interests). “[A] parent's basic constitutional right to the custody and rearing

of ... her child is converted, upon the failure to fulfill ... her parental duties, to

the child’s right to have proper parenting and fulfillment of [the child's]

potential in a permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d

847, 856 (Pa. Super. 2004) (internal citations omitted).

      Instantly, two DHS caseworkers and two visitation coaches testified at

the hearing. Mother relies exclusively on the favorable testimony from the

visitation coaches, while ignoring the DHS caseworkers’ testimony entirely.

      The first visitation coach on Mother’s case was Richard Collins.            Mr.

Collins concluded that, although Mother only attended less than a third of her

offered visits, the parental bond was surprisingly strong. Id. at 179.             He

testified that the two act “like there’s no missed time, no time lost between

them.” Id.

      The other visitation coach was Raymond Nichols. He testified that he

supervised about 14, two-hour visits between Mother and Child over the

course of the final three months of the dependency case. Visitation Coach

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Nichols testified that the parental bond between Mother and Child was “one

hundred percent great.” See N.T. at 187. In fact, the witness testified that

he has never seen such preparation on the part of the parent:

         [The parents] set up the room before the child comes in.
         They know specifically what toys [Child] uses. They know
         what she eats. They know everything. Like their whole visit
         is set up like they have a time where their [sic] eating. They
         have a time where they’re learning. They have a time when
         they’re playing. They have a time when they’re getting
         ready, when they’re getting cleaned up, when they’re ready
         to go. I’ve never done a visit where the parents already had
         everything that they were going to do planned out prior to
         even getting in the room.

Id. at 200.

      Mr. Nichols also stated that the parents were asked to walk out with

Child to the car after the visit, because Child was upset when the visits ended.

Id. at 194.    The witness concluded that Child would absolutely suffer

irreparable harm if the relationship was severed. Id. at 188.

      In its Rule 1925(a) opinion, the orphans’ court did not address the

visitation coaches’ testimonies.   However, the court explicitly noted that it

afforded greater weight to the testimony of the DHS’ caseworkers. There are

ample reasons why the court afforded the visitation coaches’ testimonies

limited credence.

      Mr. Collins’ recommendation was not well-reasoned. He testified that

he did not consider Mother’s illicit drug use and her inpatient addiction

treatment to be worthwhile reasons to forbid unsupervised visitations. Id. at

183-184. On the other hand, Mr. Nichols did not seem to grasp the concept

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of irreparable harm. He testified: “Irreparable harm meaning not physical,

but would it (sic) emotionally damage the child or would it – you know – sway

her to do anything bad or anything like that.” See id. at 189. Although Mr.

Nichols had first-hand experience, having been a child whose own parents had

their rights terminated, he had no formal education regarding social work,

child development, or the like. His degree was in funeral directing. Id. at

190. Moreover, Mr. Nichols did not know who actually cared for Child, nor did

he observe an interaction between the Child and the foster parent. Indeed,

neither visitation coach could give an opinion about their bond.

       Meanwhile, the DHS caseworkers gave a largely contradictory account.

Caseworker Nakeya Plunkett, who had the case first, testified that Mother was

offered approximately one hundred total visits during the pendency of the

case. Of those, it appears Mother attended fewer than half.4

____________________________________________


4 To this Court’s frustration, neither the witnesses nor the orphans’ court could
state precisely how many visits Mother was offered, nor how many she
attended.    Nevertheless, we can glean from the record the following
arithmetic:

Caseworker Plunkett testified that Mother was offered approximately 100
visits during the entire pendency of the case. The supervised visits were
weekly and were scheduled for two hours. Caseworker Plunkett testified that
Mother attended about 12-15 visits during her time on the case, which was
from September 2016 until October or November 2017. See N.T. at 34; 14.
Caseworker Kenisha White took over immediately after Caseworker Plunkett
left. Caseworker White did not give an actual figure, but she did testify that
she attended three visits and that there was a four month gap between visits
from March 2018 to July 2018. See id. at 130.




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       When Mother did come to a visit, Caseworker Plunkett testified that

Mother often came late and left early. Id. at 36. Sometimes Mother confirmed

her attendance, only to not show up at all. Id. at 37-38. Caseworker Plunkett

testified that Mother played with Child for a while, but then became more

interested in her phone. Id. at 36. Caseworker Plunkett testified that when

Child became fussy, Mother did not know how to calm her down or engage

her in play. Id. Caseworker Kenisha White, who took over for Caseworker

Plunkett, testified that she only observed Mother attend three visits. Because

Mother arrived late and left early, Caseworker White testified that she

probably saw only about 25 minutes of interaction between Mother and Child.

See id. at 146.

       Notwithstanding the competing accounts, the court was within its

discretion when it ruled that DHS met the heightened burden when

demonstrating that termination was in Child’s best interests. We observe that

the orphans’ court is free to believe all, part, or none of the evidence presented

and is likewise free to make all credibility determinations and resolve conflicts

in the evidence. In Interest of D.F., 165 A.3d 960, 966 (Pa. Super. 2017)

(citation omitted).




____________________________________________


Visitation Coach Collins worked on Mother’s case from April 2017 to April 2018.
He surmised that Mother attended “30%” of her visits. Id., at 179. Visitation
Coach Nichols testified that he was assigned to Mother’s case in April 2018,
and that Mother attended 14 visits between July 2018 and the termination in
September 2018. Id. at 187.

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        For one, the visitation coaches’ assumptions about the parent-child bond

were entirely superficial, and the court acted within its discretion to discount

them. The coaches witnessed a happy toddler eat snacks and play with toys

with an attentive adult. Mr. Collins testified that when Mother disappeared

and reappeared, the Child resumed interacting with her like no time had been

lost.

        Significantly, the question is not whether Child and Mother have a bond,

but whether that bond is worth preserving. While a parent's emotional bond

with his or her child is a major aspect of the subsection 2511(b) best-interest

analysis, it is nonetheless only one of many factors to be considered by the

trial court when determining what is in the best interest of the child. In re

A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citing In re K.K.R.–S., 958 A.2d

529, 535–536 (Pa.Super.2008). The mere existence of an emotional bond

does not preclude the termination of parental rights. Id., 93 A.3d at 897-898;

see also In re T.D., 949 A.2d 910 (Pa. Super. 2008) (trial court's decision to

terminate parents' parental rights was affirmed where court balanced strong

emotional bond against parents' inability to serve needs of child). Rather, the

trial court must examine the status of the bond to determine whether its

termination “would destroy an existing, necessary and beneficial relationship.”

Id. at 898 (citation omitted).

        Child resided with the same foster parent, the only caregiver she ever

knew. Caseworker White testified that Child is “well-bonded” to the foster

parent, that it is evident that they care for each other, that it is the foster

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parent who attends to her daily needs. Id. at 121-122. For instance, Mother

had attended only one of Child’s medical appointments. Id. at 123.

      Since being removed from Mother’s care in 2015, Child has not lived

with Mother, because Mother’s drug addiction necessarily rendered any

potential care to be unsafe. Mother’s inability to achieve sobriety prevented

her from affording Child necessary security and stability, which in turn

prevented the creation of a worthwhile parental bond.      And while Mother

appeared to have been attentive during the final visits, there is no question

that only the foster parent provided Child those intangibles essential for her

proper development. We conclude that the court did not abuse its discretion

by ruling that DHS met its burden under the second prong of the termination

analysis. Mother’s final issue is without merit.

      Finally, we observe that Maternal Grandmother, D.P., evidently joined

this appeal and submitted a brief. DHS filed with this Court an application to

strike Maternal Grandmother from the matter.

      Maternal Grandmother’s brief does not include a question involved, but

we gather from her argument that she believes she was entitled to a custody

hearing under 23 Pa.C.S.A. § 5324(3)(iii)(B) (“Standing for any form of

physical custody or legal custody”), because she was a grandparent of a

dependent child who was substantially at risk due to parental neglect.

Although such a question causes some pause, we must nevertheless grant the

application to strike and dismiss Maternal Grandmother’s appeal.




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       Although Child was born in 2015, Maternal Grandmother did not petition

the family court to intervene in the dependency matter until 2018. Maternal

Grandmother’s petition was denied in March 2018, as was her petition for

reconsideration in June 2018. On August 16, 2018, the court granted Maternal

Grandmother leave to appeal nunc pro tunc. That appeal was docketed at

2724 EDA 2018. In November 2018, the Superior Court issued a per curium

order dismissing Maternal Grandmother’s appeal for failure to comply with the

Rules of Appellate Procedure.

       While it does not appear to be the case, we cannot resolve whether

Maternal Grandmother satisfied § 5324(3)(i) of the Custody Act to warrant a

hearing on standing.5 Having been the subject of her previously dismissed

appeal, the issue is now settled. Maternal Grandmother cannot simply revive

the matter by joining the instant appeal.

       Decree affirmed. Application to strike granted.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/19


____________________________________________


5 Section 5324(3)(i) provides that a grandparent may file a custody action if,
inter alia, the grandparent-child relationship began either with the consent
of a parent or under a court order. See 23 Pa.C.S.A. § 5324(3)(i).

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