J-S49030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: K.F. A/K/A                 :   IN THE SUPERIOR COURT OF
K.L.F.-P., A MINOR                             :        PENNSYLVANIA
                                               :
                                               :
APPEAL OF: K.F., MOTHER                        :
                                               :
                                               :
                                               :
                                               :   No. 3429 EDA 2015

           Appeal from the Decree Entered October 8, 2015 in the
            Court of Common Pleas of Philadelphia Count, Family
            Division, at No(s): CP-51-AP-0000104-2015, FID 51-
                               FN-001354-2012

BEFORE: PANELLA, OLSON, JJ., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                                    FILED JUNE 08, 2016

       K.F. (“Mother”) appeals from the decree dated and entered on October

8, 2015, granting the petition filed by the Philadelphia County Department of

Human Services (“DHS” or the “Agency”), seeking to involuntarily terminate

her parental rights to her dependent, minor child, K.F. a/k/a K.L.F.-P., a

female born in April of 2012 (“Child”), pursuant the Adoption Act, 23 Pa.C.S.

§ 2511(a)(1), (2), (5), (8), and (b), and to change Child’s permanency goal

to adoption under section 6351 of the Juvenile Act, 42 Pa.C.S. § 6351.1,      2



We affirm.

____________________________________________


1
  In a separate decree dated and entered on October 8, 2015, the trial court
terminated the parental rights of Child’s putative father, Y.W.P. a/k/a P.Y.
a/k/a P.W.Y., (“Father”), pursuant to section 2511(a)(1), (2), (5), (8), and
(Footnote Continued Next Page)


*Former Justice specially assigned to the Superior Court
J-S49030-16


      On February 13, 2015, DHS filed the petition for involuntary

termination and goal change. The trial court set forth the relevant factual

background and procedural history of this case in its opinion, which we

adopt herein. See Trial Court Opinion, 3/9/16, at 1-5. As set forth in the

trial court opinion, on October 8, 2015, the trial court held an evidentiary

hearing on the petitions.        Id. at 2. At the time of the hearing, Child was

three years old, and had been in care for her entire life.3         Id.   At the

hearing, DHS presented Wanda Ross, the DHS case manager.                   N.T.,

10/8/15, at 3.         DHS then presented Erica Williams, Psy.D., who is a

psychologist at Assessment and Treatment Alternatives (“ATA”) and Forensic

Mental Health Services, as a stipulated expert in child, adolescent, and

                       _______________________
(Footnote Continued)

(b). Father has not filed an appeal from the termination of his parental
rights, nor is he a party to the present appeal.
2
  We acknowledge that there has been a delay in the disposition of this
children’s fast track matter. We are also aware of our Supreme Court’s
admonishment that children’s fast track cases should be resolved promptly.
In re: T.S.M., 71 A.3d 251, 261 n.21 (Pa. 2013). By way of explanation,
the panel notes that the original certified record was due in this Court by
December 7, 2015. Owing, at least in part, to staffing shortages in the trial
court’s chambers, this Court did not receive the certified record until March
10, 2016. As a result, the briefing schedule in this case was delayed by over
three months.      Thereafter, DHS requested and received a seven-day
extension in which to file a brief. The panel concludes that while certain
external factors have delayed the disposition in this appeal, the Superior
Court has worked diligently toward prompt resolution of this dispute.
3
  In its opinion, the trial court mistakenly referred to Child as a male, while
there is no dispute that Child is a female. See Trial Court Opinion, 3/9/16,
at 2. This typographical error did not affect the trial court’s analysis.



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J-S49030-16


family psychology.    Id. at 34-35.    Dr. Williams conducted a parenting

capacity evaluation with regard to Mother, and compiled a report in July of

2014. Id. at 35. Mother’s counsel then cross-examined Ms. Ross about Dr.

Williams’ parenting capacity report as to Mother. Id. at 71. Mother testified

on her own behalf. Father was present at the hearing, but he did not testify.

      On October 8, 2015, the trial court entered the decree involuntarily

terminating Mother’s parental rights to Child pursuant to 2511(a)(1), (2),

(5), (8), and (b) of the Adoption Act, and changing Child’s permanency goal

to adoption under section 6351 of the Juvenile Act.

      On November 5, 2015, Mother timely filed a notice of appeal along

with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).

      In her brief on appeal, Mother raises five questions for this Court’s

review, as follows:

      1. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother, K.F.[,] pursuant to 23
      Pa.C.S.A. sections [sic] 2511(a)(1) where Mother presented
      evidence that she tried to perform her parental duties.
      Additionally, [M]other visited her daughter throughout the time
      she was in foster care.

      2. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother, K.F.[,] pursuant to 23
      Pa.C.S.A. sections [sic] 2511(a)(2) where Mother presented
      evidence that she has remedied her situation by completing a
      drug and alcohol program, mental health treatment and
      attended visits and family school.

      3. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother, K.F.[,] pursuant to 23


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       Pa.C.S.A. sections [sic] 2511(a)(5) where evidence was provided
       to establish that the child was removed from the care of Mother.
       Additionally, [M]other visited with her daughter and maintained
       contact with her over the last several month.

       4. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of Mother, K.F.[,] pursuant to 23
       Pa.C.S.A. sections [sic] 2511(a)(8) where evidence was provided
       to show that Mother is capable of caring for her child after
       successfully completing drug and alcohol and mental health
       treatment. Additionally, [M]other visited with her daughter and
       maintained contact with her over the last several month.

       5. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of Mother, K.F.[,] pursuant to 23
       Pa.C.S.A. sections [sic] 2511(b) where evidence was presented
       that DHS never observed the child with the [M]other at any
       time.

Mother’s Brief, at 7.4

       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.,
       608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
       are supported, appellate courts review to determine if the trial
____________________________________________


4
  Mother stated her issues on appeal somewhat differently in her concise
statement. We, nevertheless, find her challenges to section 2511(a)(1), (2),
(5), (8), and (b) preserved for our review. We find that Mother waived her
challenge to the goal change, raised in her concise statement, by her failure
to raise it in the statement of questions involved portion of her brief. See
Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (holding that an appellant waives issues that are not
raised in both his or her concise statement of errors complained of on appeal
and the statement of questions involved in his or her brief on appeal).



                                           -4-
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     court made an error of law or abused its discretion. Id.; R.I.S.,
     [614 Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011) (plurality
     opinion)]. As 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., 613 Pa. 371[, 455], 34 A.3d 1,
     51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655],
     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 we discussed in R.J.T., there are clear reasons for
     applying an abuse of discretion standard of review in these
     cases. We observed that, unlike trial courts, appellate courts are
     not equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents. R.J.T., [608 Pa. at
     28-30], 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, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 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.”

                                    -5-
J-S49030-16



Id. quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

     This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a).    See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).   The trial court terminated Mother’s parental rights under sections

2511(a)(1), (2), (5), (8), and (b). We will focus on subsection 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.


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      Mother contends that DHS did not meet its burden of proof with regard

to section 2511(a)(2), as there was evidence that she had taken substantial

steps toward meeting her Family Service Plan (“FSP”) objectives by

completing drug and alcohol and mental health treatment. Mother’s Brief, at

9, 14-15.     Mother complains that DHS never referred Mother to ongoing

programs to assist with her mental illness and develop healthy parenting

skills. Id. at 15. Mother claims that she has the present capacity to care for

Child. Id.

      The Supreme Court set forth our inquiry under section 2511(a)(2) as

follows.


           [Section] 2511(a)(2) provides [the] statutory ground[] for
           termination of parental rights where it is demonstrated by
           clear and convincing evidence that “[t]he repeated and
           continued incapacity, abuse, neglect or refusal of the parent
           has caused the child to be without essential parental care,
           control or subsistence necessary for his physical or mental
           well-being and the conditions and causes of the incapacity,
           abuse, neglect or refusal cannot or will not be remedied by
           the parent.” . . .

           [The Supreme Court] has addressed incapacity sufficient for
           termination under § 2511(a)(2):

              A decision to terminate parental rights, never to be
              made lightly or without a sense of compassion for the
              parent, can seldom be more difficult than when
              termination is based upon parental incapacity.      The
              legislature, however, in enacting the 1970 Adoption Act,
              concluded that a parent who is incapable of performing
              parental duties is just as parentally unfit as one who
              refuses to perform the duties.




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J-S49030-16


         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., 616 Pa. at 326-327, 47 A.3d at 827.

       This Court has stated 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.

       The trial court found that Child was removed from Mother’s care

following birth, and that both Child and Mother tested positive for cocaine at

that time. Additionally, Mother was diagnosed as having schizophrenia, and

had a history of uncontrollable, violent behavior.     The conclusion of the

parenting capacity evaluation conducted by Dr. Williams was that Mother is

unable to provide permanency and safety for Child.5       Trial Court Opinion,

3/9/16, at 6-7.

       The trial court found that Dr. Williams diagnosed Mother with

schizophrenia that is very difficult to manage with medications.     Id. at 4.

Dr. Williams testified that, although Mother was reportedly in compliance
____________________________________________


5
  The trial court mistakenly stated, “The child was removed from Mother’s
care following the birth of the children at which time both the child and
Mother tested positive.” Trial Court Opinion, 3/9/16, at 6-7 (emphasis
added). This typographical error did not affect the trial court’s analysis.



                                           -8-
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with treatment and medications, her symptoms were still breaking through.

Id. at 4.   Further, Dr. Williams’ major concerns were Mother’s lack of

predictability and lack of control, and her violent behavior, which has led to

Mother being involuntarily committed to hospitals. Id. at 4.

      The trial court cited Dr. Williams’ testimony that Mother does not have

the capacity to parent Child, and that she is not capable of providing

permanency and safety for Child, because, when Mother loses control, she is

violent, people get injured, and those around her are not safe.        See Trial

Court Opinion, 3/9/16, at 4-5. Thus, the trial court assessed the evidence

regarding Mother’s repeated incapacity to parent Child, which has left Child

without essential parental care and subsistence.         The trial court also

considered the evidence that showed Mother’s inability to remedy the

conditions and causes of her incapacity to parent Child. Id. at 7-8.

      As the trial court’s 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, we affirm the trial court’s decree with regard to subsection

(a)(2). In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27.

      Next, we review the termination of Mother’s parental rights under

section 2511(b).   This Court has explained that the focus in terminating

parental rights under section 2511(a) is on the parent, but, under section

2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999,

1008 (Pa. Super. 2008) (en banc).


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      Our Supreme Court recently 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., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (Pa. 2013).

      Mother asserts that the trial court improperly focused on the bond

between Child and the foster parents. Mother’s Brief, at 18. She claims that

the trial court failed to consider the positive bond between Child and her,

and the effect on the Child from severing that bond. Id. at 18. Mother also

asserts that the evidence presented at the hearing indicated that there is a

close bond between Child and her. She urges that Ms. Ross could not testify

with regard to the interaction between Mother and Child, as she had never

supervised visitation between them.      Id. at 11, 18.    Moreover, Mother

argues that the termination of her parental rights would not serve Child’s

physical and emotional needs, and would not be in Child’s best interests.

Id. at 19.

      We have stated that, in conducting a bonding analysis, the court is not

required to use expert testimony, but may rely on the testimony of social



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workers and caseworkers.     In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.

2010).   This Court has also observed that no bond worth preserving is

formed between a child and a natural parent where the child has been in

foster care for most of the child’s life, and the resulting bond with the

natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super.

2008).   It is appropriate to consider a child’s bond with his or her foster

parent. See In re: T.S.M., 620 Pa. at 629-630, 71 A.3d at 268.

      In addition, in In re: T.S.M., our Supreme Court set forth the process

for evaluation of the existing bonds between a parent and a child, and the

necessity for the court to focus on concerns of an unhealthy attachment and

the availability of an adoptive home.        The Supreme Court stated the

following:


      [C]ontradictory considerations exist as to whether termination
      will benefit the needs and welfare of a child who has a strong but
      unhealthy bond to his biological parent, especially considering
      the existence or lack thereof of bonds to a pre-adoptive family.
      As with dependency determinations, we emphasize that the law
      regarding termination of parental rights should not be applied
      mechanically but instead always with an eye to the best interests
      and the needs and welfare of the particular children involved.
      See, e.g., R.J.T., [9 A.3d 1179, 1190 (Pa. 2010)] (holding that
      statutory criteria of whether child has been in care for fifteen of
      the prior twenty-two months should not be viewed as a “litmus
      test” but rather as merely one of many factors in considering
      goal change). Obviously, attention must be paid to the pain that
      inevitably results from breaking a child’s bond to a biological
      parent, even if that bond is unhealthy, and we must weigh that
      injury against the damage that bond may cause if left intact.
      Similarly, while termination of parental rights generally should
      not be granted unless adoptive parents are waiting to take a
      child into a safe and loving home, termination may be necessary


                                    - 11 -
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      for the child’s needs and welfare in cases where the child’s
      parental bond is impeding the search and placement with a
      permanent adoptive home.

      [The Adoption and Safe Families Act of 1997, P.L. 105-89]
      ASFA[,] was enacted to combat the problem of foster care drift,
      where children . . . are shuttled from one foster home to
      another, waiting for their parents to demonstrate their ability to
      care for the children. See In re R.J.T., 9 A.3d at 1186; In re
      Adoption of S.E.G., [901 A.2d 1017, 1019 (Pa. 2006)]. This
      drift was the unfortunate byproduct of the system’s focus on
      reuniting children with their biological parents, even in situations
      where it was clear that the parents would be unable to parent in
      any reasonable period of time. Following ASFA, Pennsylvania
      adopted a dual focus of reunification and adoption, with the goal
      of finding permanency for children in less than two years, absent
      compelling reasons. See, 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S.
      § 6351(f)(9) (requiring courts to determine whether an agency
      has filed a termination of parental rights petition if the child has
      been in placement for fifteen of the last twenty-two months).

In re: T.S.M., 620 Pa. at 631-632, 71 A.3d at 268-269.

      This Court finds that Mother’s argument regarding section 2511(b)

lacks merit. Again, as the trial court’s 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, we affirm the trial court’s decree with regard to

subsection (b) on the basis of the discussion in the trial court opinion. In re

Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27. Accordingly, we

affirm the decree terminating Mother’s parental rights, and changing the

permanency goal for Child to adoption.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2016




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