J-S88018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.J.K.P.-E., A         :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.T.P., MOTHER                  :
                                               :
                                               :
                                               :
                                               :   No. 344 EDA 2016

                   Appeal from the Decree December 17, 2015
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0000261-2015,
                            CP-51-DP-0002528-2013

    IN THE INTEREST OF: D.C.L.E., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.T.P., MOTHER                  :
                                               :
                                               :
                                               :
                                               :   No. 345 EDA 2016

                   Appeal from the Decree December 17, 2015
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0000260-2015,
                            CP-51-DP-0002527-2013


BEFORE:      OLSON, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                                FILED JANUARY 23, 2017

        Appellant,   J.T.P.,   (“Mother”),     appeals   from   the   decree   in   the

Philadelphia County Court of Common Pleas, which terminated her parental


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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rights to her minor children, A.J.K.P.-E. and D.C.L.E.1, pursuant to the

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

thorough review of the record, we affirm.

       The relevant facts are as follows:

       On December 20, 2013, DHS received a Child Protective Services
       (CPS) Report which alleged that Child, [A.J.K.P.-E].,[born August
       2008,] was hit in the eye and on the leg with a stick by his
       Mother, J.[T.]P.; that [A.J.K.P.-E.] suffered bruising and
       swelling; and that he was fearful of returning home from school.
       It was alleged that [A.J.K.P.-E.] was watching television and
       doing his homework when Mother hit him; that he is in the
       kindergarten at McDaniel School; that he did not suffer from
       delays or disabilities; and that Mother used physical discipline in
       the past on both [A.J.K.P.-E.] and [D.C.L.E.], [born October
       2006]. It was further alleged that [A.J.K.P.-E.] was transported
       to Saint Christopher’s Hospital for a medical assessment and to
       the Special Victims Unit (SVU), that the Children resided with
       Mother at 2228 Dickenson Street in Philadelphia; that [A.J.K.P.-
       E.] had a slight speech impediment; and that Mother had five (5)
       prior assault arrests, including Endangering the Welfare of
       Children.    The Report was indicated against Mother as a
       perpetrator of abuse.

       On December 20, 2013, Dr. Pramath Nath of St. Christopher’s
       Hospital examined [A.J.K.P.-E.] and observed bilateral bruises on
       the child’s thighs, a bruise under the right eye and a healing
       burn across his entire left forearm. Dr. Nath determined that
       [A.J.K.P.-E.] suffered a second degree burn.

       Dr. [Maria McColgan], the head of the Child Protection Clinic at
       St. Christopher’s Hospital and an Expert in Pediatric and Child
       Abuse Medicine concluded that the burn on [A.J.K.P.-E.’s] arm
       was consistent with someone having held his arm over the stove
       and inconsistent with the child reaching for something on the
       stove.
____________________________________________


1
  The trial court identifies the Children in an abbreviated fashion, A.J.K.P.-E.
is referenced as A.P.E., and D.C.L.E. is referenced as D.P.E.



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                              *     *     *

     On December 20, 2013, an Order of Protective Custody (OPC)
     was obtained and [D.C.L.E.] and [A.J.K.P.-E.] were placed at
     Catholic Social Services.

     On December 20, 2013, DHS contacted Mother, who stated that
     the staff at McDaniel Elementary School never told her that
     [A.J.K.P.-E.] was transported to SVU; that his eye injury
     occurred while he was in school; and that the police and school
     official had forced [A.J.K.P.-E.] to say that his Mother had
     abused him. Mother admitted to using physical discipline on
     both Children in the past.

     A Shelter Care Hearing was held on December 23, 2013, the
     OPC was amended to reflect that an Order of Protective Custody
     was obtained on 12/20/2013, the OPC [w]as lifted and the
     temporary commitment to DHS was ordered to stand. Mother
     was offered supervised visits at the agency.

                              *     *     *

     On December 30, 2013, Mother was arrested and charged with:
     1) aggravated assault; 2) endangering welfare of Children-
     parent/guardian/other   commits    offense;     3)  possessing
     instrument of crime with intent, simple assault-grading victim
     under 12 defendant 21 or older; 4) recklessly endangering
     another person; and 5) unlawful restraint/serious bodily injury.
     The Court granted a motion to quash on the first three charges
     and the remaining two charges were disposed at lower court.
     The matter was scheduled for a waiver trial on May 15, 2015, in
     Criminal Courtroom 1005.

     On January 8, 2014, an Adjudicatory Hearing was held. The
     Court discharged the Children’s temporary commitment to DHS;
     adjudicated both Children Dependent; and committed them to
     DHS. The Children were referred to Behavioral Health Services
     (BHS) for consultation and/or evaluation; a paternity test was
     ordered for putative father, C.E. as to [A.J.K.P.-E.]; Mother was
     referred to the Achieving Reunification Center (ARC[)]; and a
     criminal stay-away Order was Ordered to Stand. Mother to not
     have visits until therapist says appropriate. Grandmother to
     have supervised visits with the Children at the Agency.


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     On February 11, 2014, DHS held an initial Family Services Plan
     (FSP) Meeting. The goal for [D.C.L.E.] and [A.J.K.P.-E.] was
     “Return to Parent”. The parental objectives established for
     Mother and Father were: 1) parents to meet with parent
     educator on a weekly basis to understand how their
     behavior/neglect resulted in injury and/or neglect to their
     Children; 2) Mother will meet with parent educator on a weekly
     basis to be educated on the expected behavior for Children; 3)
     Mother will set age appropriate expectations; 4) Father will meet
     with parent educator on a weekly basis to be educated on the
     expected behavior for Children; 5) Father will set age
     appropriate expectations; 6) Mother will participate in mental
     health evaluation; Mother will comply with all treatment
     recommendations;        7)   Father    will  report    to    Family
     Court/Domestic Relations Division for paternity test; 8) Father
     will keep all visits and maintain regular contact with Children; 9)
     Father will meet regularly with agency social worker and follow
     through with Individual Service Plan (ISP); 10) Mother will meet
     regularly with agency social worker and follow through with ISP.
     Mother attended the meeting and signed the FSP.                C.E.
     participated via telephone.

     On March 20, 2014, DHS referred Mother to ARC. Areas of
     service included: parent education, anger management, mental
     health, employment, housing and women’s empowerment group.

                               *     *     *

     On August 6, 2014, a Permanency Review Hearing was held.
     The [c]ourt found that the Children received therapeutic staff
     support (TSS) services and trauma-focused therapy. The [c]ourt
     ordered that both Children remain committed to DHS. The
     [c]ourt found by clear and convincing evidence that Mother was
     the perpetrator of child abuse as to Children, [A.J.K.P.-E.] and
     [D.C.L.E.] An Aggravated Circumstances Order was issued and
     that Mother’s criminal Stay-Away Order as to both Children was
     to stand. If Mother’s Stay-Away Order is lifted, her visits are
     suspended until the Children’s Therapist recommends otherwise.
     It was further ordered that no efforts are to be made to preserve
     the family and reunify the Children with Mother.

     On January 26, 2015, a Permanency Review Hearing was held.
     The [c]ourt found that [A.J.K.P.-E.] remained placed at
     Devereux for psychiatric treatment; that he receives trauma-

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      focused therapy through Children’s Crisis Treatment Center; and
      that DHS is exploring goal change/termination of parental rights.
      The [c]ourt ordered that [A.J.K.P.-E.] may be moved to
      appropriate treatment foster care prior to the next court hearing,
      if DHS and Child Advocate agree. The [c]ourt found that
      [D.C.L.E.] was doing well; that she receives trauma-focused
      therapy through Silver Springs. The [c]ourt ordered that Mother
      participate in the second half of the Parenting Capacity
      Evaluation authorized DHS to sign for [D.C.L.E.’s] treatment plan
      if Mother is not available. The next hearing for [D.C.L.E.] and
      [A.J.K.P.-E.]   was    scheduled     as    a    Contested    Goal
      Change/Termination Hearing.

Trial Court Opinion, 4/19/16 at 3-11.

      In December 2015, following three days of hearings, the court

terminated Mother’s parental rights as to both Children pursuant to 23

Pa.C.S.A. § 2511(a)(1), (2), (5), (8), as well as 2511(b), and changed the

children’s goal to adoption. In January 2016, Mother was granted leave to

appeal nunc pro tunc.      She did so and filed a statement pursuant to

Pa.R.A.P. 1925(b). In April 2016, the trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      Mother raises the following issues on appeal:

      1.    Did the Department of Human Services (DHS) sustain the
            burden that Mother’s rights should be terminated when
            there was evidence that [M]other had completed almost all
            of her permanency goals?

      2.    Was there sufficient evidence presented to establish that it
            was in the best interest of the children to terminate
            [M]other’s parental rights.

Appellant’s Brief at 4.




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       Our standard of review regarding orders terminating parental rights is

as follows:

       When reviewing an appeal from a decree terminating parental
       rights, we are limited to determining whether the decision of the
       trial court is supported by competent evidence. Absent an abuse
       of discretion, an error of law, or insufficient evidentiary support
       for the trial court’s decision, the decree must stand. Where a
       trial court has granted a petition to involuntarily terminate
       parental rights, this Court must accord the hearing judge’s
       decision the same deference that we would give to a jury
       verdict. We must employ a broad, comprehensive review of the
       record in order to determine whether the trial court’s decision is
       supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the

burden is upon the petitioner to prove by clear and convincing evidence2

that the asserted grounds for seeking the termination of parental rights are

valid. In re S.H., 879 A.2d at 806.

       “The trial 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 re M.G. and J.G., Minors, 855 A.2d

68, 73-74 (Pa. Super. 2004).            “If competent evidence supports the trial

court’s findings, we will affirm even if the record could also support the



____________________________________________


2
  The 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.” In re J.L.C. and J.R.C., 837 A.2d 1247, 1251 (Pa. Super.
2003).



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opposite result.”   In re Adoption of T.B.B., Jr., 835 A.2d 387, 394 (Pa.

Super. 2003).

      We only need to agree with the trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm. See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 20014) (en banc). As such, we will

focus on 2511(a)(2) and 2511(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.



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23 Pa.C.S.A. § 2511(a)(2), (b).

     We first examine the court’s termination of Mother’s parental rights

pursuant to Section 2511(a)(2).     To satisfy the requirements of Section

2511(a)(2), the moving party must prove by clear and convincing evidence

the following elements 1) repeated and continued incapacity, abuse, neglect

or refusal; 2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of

M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).             The grounds for

termination based on incapacity are not limited to affirmative misconduct.

Those grounds may include acts of refusal as well as incapacity to perform

parental duties. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).

     Mother argues that she completed most of her permanency objectives

and as such, DHS failed to meet its burden.           Mother’s assertion is

misleading.   While she has completed a parenting class and an anger

management class, she has failed to attend mental health treatment or

complete the second part of her parenting capacity evaluation.      Notes of

Testimony (N.T.), 5/14/15, at 60-61.        Furthermore, although Mother

completed an anger management class, the court expressed ongoing

concern regarding Mother’s anger. Trial Court Opinion, 4/19/16, at 20. The

trial court noted concerns regarding Mother’s irate behavior and that she

was escorted out of the courtroom during a hearing.        Id.   In essence,

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Mother has refused to meet her objectives, thus leaving her children without

essential parental care, control or substance necessary for their mental well-

being.

      The trial court found persuasive the testimony of Dr. Erica Williams,

the Director of Forensic Services at Assessment and Treatment Alternatives,

Inc. and stipulated to be an expert in the area of parenting capacity and

forensic evaluation of parenting capacity. According to Dr. Williams, Mother

lacked the capacity to provide safety and permanency for the children. Id.

at 21. Dr. Williams expressed concerns regarding Mother’s mental health,

failure to take responsibility for her children’s injuries, and lack of treatment

to address these issues. Dr. Williams concluded that Mother met the DSM 5

criteria for     unspecified schizophrenia, spectrum, and      other   psychotic

disorder.   N.T. 12/17/15 at 7-16.    Due to Mother’s refusal to address her

mental health objective, her continued incapacity renders her unable to

provide parental care, control or subsistence to her children.      Accordingly,

termination under Section 2511(a)(2) was appropriate.

      After we determine that the requirements of Section 2511(a) are

satisfied, we proceed to review whether the requirements of Section 2511(b)

are satisfied.    See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc).        Pursuant to Section 2511(b), the court, in

terminating the rights of a parent, shall give primary consideration to the

developmental, physical, and emotional needs and welfare of a child.



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      In evaluating the needs and welfare of the Children, it is evident that

terminating Mother’s parental rights is in their best interest. Due to abuse

and the trauma inflicted by Mother, she has not visited with them since they

were committed to DHS.       N.T. 5/14/15 at 83.   Furthermore, the Children

have expressed no interest in seeing Mother.       Id.; N.T., 7/28/15, at 27.

When Mother’s name was mentioned, A.J.K.P.-E. exhibited anxiety.         N.T.,

7/28/15, at 28. The trial court found credible the testimony of the Children’s

therapists as well as the testimony of the social workers, all of whom opined

that termination was in the best interest of the children. Trial Court Opinion

at 11-16.    Terminating Mother’s parental rights is in the Children’s best

interest, as Mother has failed to address her role in the abuse and trauma

she inflicted on her children.

      There is competent evidence in the record that supports the trial

court’s credibility and weight assessments that severing the bond with

Mother would not cause the Children irreparable harm. Thus, we conclude

that the trial court did not abuse its discretion in terminating Mother’s

parental rights to the Children with regard to section 2511(b).

      Accordingly, after a careful review, we affirm the decree terminating

Mother’s parental rights on the basis of 2511(a)(1) and (b).

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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