J-S65017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: N.S.D., A      :   IN THE SUPERIOR COURT OF
 MINOR                              :        PENNSYLVANIA
                                    :
                                    :
 APPEAL OF: T.D., MOTHER            :
                                    :
                                    :
                                    :
                                    :   No. 1216 EDA 2017

                 Appeal from the Decree March 16, 2017
          In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-0000084-2017,
                        CP-51-DP-0002374-2011

 IN THE INTEREST OF: R.P.D., A      :   IN THE SUPERIOR COURT OF
 MINOR                              :        PENNSYLVANIA
                                    :
                                    :
 APPEAL OF: T.D., MOTHER            :
                                    :
                                    :
                                    :
                                    :   No. 1217 EDA 2017

                 Appeal from the Decree March 16, 2017
          In the Court of Common Pleas of Philadelphia County
            Family Court at No(s): CP-51-AP-0000085-2017,
                        CP-51-DP-0002589-2014


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                     FILED NOVEMBER 06, 2017

     T.D. (“Mother”) appeals from the decrees entered March 16, 2017, in

the Court of Common Pleas of Philadelphia County, which involuntarily

terminated her parental rights to her minor daughters, N.S.D., born in

November 2011, and R.P.D., born in October 2012 (collectively, “the
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Children”).1 After careful review, we affirm in part, vacate in part, and remand

for further proceedings.

       The record reveals that the Philadelphia Department of Human Services

(“DHS”) filed dependency petitions with respect to the Children on November

3, 2014. In its petitions, DHS averred that it had a lengthy prior history of

involvement with Mother, dating back to 2009. Dependency Petition (N.S.D.),

11/3/2014, at 8 (unnumbered pages). DHS averred that Mother had a history

of substance abuse and mental health issues, lacked stable housing, and that

the Children’s two older siblings had already been removed from her care. Id.

DHS requested that the Children be adjudicated dependent, but remain with

Mother. Id. at 8-9. The trial court entered continuance orders deferring the

adjudication on November 19, 2014, and January 14, 2015.

       On January 29, 2015, the trial court entered additional continuance

orders, directing DHS to obtain orders of protective custody.        DHS filed

applications for orders of protective custody that same day, in which it averred

that Mother was noncompliant with her drug and alcohol and mental health

treatment program, and that she also was noncompliant with the rules of the

shelter where she resided with the Children.         Application for Order of

Protective Custody (N.S.D.), 1/29/2015. The court granted the applications,

____________________________________________


1 The trial court entered separate decrees that same day, terminating the
parental rights of N.S.D.’s putative father, M.C., the parental rights of any
unknown father of N.S.D., and the parental rights of any unknown father of
R.P.D. Neither M.C., nor any unknown father, appealed the termination of his
parental rights.

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and placed the Children in foster care. The Children remained in foster care

pursuant to shelter care orders entered January 30, 2015. DHS filed updated

dependency petitions on February 4, 2015, and the court adjudicated the

Children dependent by orders entered March 10, 2015.

       On January 24, 2017, DHS filed petitions to involuntarily terminate

Mother’s parental rights to the Children.        The trial court conducted a

termination hearing on March 16, 2017, at which Mother failed to appear.

Following the hearing, the court entered decrees terminating Mother’s

parental rights. Mother timely filed notices of appeal on April 10, 2017, along

with concise statements of errors complained of on appeal.

       Mother now raises the following questions for our review.

       1. Whether the Trial Court erred by terminating the parental rights
       of Appellant, [Mother], under 23 Pa.C.S.A. §[]2511(a)(1)?

       2. Whether the Trial Court erred by terminating the parental rights
       of Appellant, [Mother], under 23 Pa.C.S.A. §[]2511(a)(2)?

       3. Whether the Trial Court erred by terminating the parental rights
       of Appellant, [Mother], under 23 Pa.C.S.A. §[]2511(a)(5)?

       4. Whether the Trial Court erred by terminating the parental rights
       of Appellant, [Mother], under 23 Pa.C.S.A. §[]2511(a)(8)?

       5. Whether the Trial Court erred by terminating the parental rights
       of Appellant, [Mother], under 23 Pa.C.S.A. §[]2511(b)?

Mother’s brief at 5 (suggested answers and trial court answers omitted).2
____________________________________________


2In her notices of appeal, and in the orders in question section of her brief,
Mother indicates that she also is appealing the permanency review orders
entered March 16, 2017, changing the Children’s permanency goals to



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       We address these issues mindful of our well-settled standard of review.

       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).

       Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

       Initially, the focus is on the conduct of the parent. The party
       seeking termination must prove by clear and convincing evidence
____________________________________________


adoption. However, Mother did not include any claim regarding the goal
change orders in her concise statements. In addition, Mother did not include
any such claim in her statement of questions involved, or in the argument
section of her brief. Accordingly, we conclude that Mother waived any
challenge to the goal change orders, and we focus solely on the decrees
terminating her parental rights. See Krebs v. United Refining Co. of Pa.,
893 A.2d 776, 797 (Pa. Super. 2006) (“We will not ordinarily consider any
issue if it has not been set forth in or suggested by an appellate brief’s
statement of questions involved, and any issue not raised in a statement of
matters complained of on appeal is deemed waived.”) (citations omitted); In
re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal denied, 24 A.3d 364
(Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010))
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).

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      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).

      In this case, the trial court terminated Mother’s parental rights pursuant

to Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the

court as to any one subsection of Section 2511(a), as well as Section 2511(b),

in order to affirm. 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 analyze the court’s

decision to terminate under Section 2511(a)(2) and (b), which provides as

follows.

      (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

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      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).

      We first address whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to 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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations

omitted).

      Instantly, the trial court found that Mother is incapable of parenting the

Children, and that Mother cannot, or will not, remedy her parental incapacity.

Trial Court Opinion, 7/15/2017, at 8-9. The court reasoned that Mother failed

to complete her Single Case Plan (“SCP”) objectives, in that she did not obtain

mental health treatment, failed to comply with drug treatment and drug


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screens, lacks appropriate housing, and lacks employment. Id. The court

further reasoned that, while Mother completed an anger management

program, she continues to engage in threatening behavior. Id. at 9. Finally,

the court reasoned that Mother has only attended visits with the Children

consistently since September 2016. Id.

      Mother argues that the trial court erred by terminating her parental

rights, because DHS failed to present clear and convincing evidence in support

of its petition.   Mother’s brief at 15.   Mother argues that she completed

housing, anger management, and parenting programs, as well as a parenting

capacity evaluation. Id. at 15-16.

      Our review of the record supports the trial court’s findings. During the

termination hearing, DHS presented the testimony of Community Umbrella

Agency case manager, Tamara Whittaker.          Ms. Whittaker testified that

Mother’s outstanding SCP objectives included obtaining stable housing and

employment, stabilizing her mental health, and participating in visitation.

N.T., 3/16/2017, at 18.     Ms. Whittaker testified that Mother completed a

housing program, but that she remains without stable housing or employment.

Id. at 20-21, 23. Further, Mother is not currently enrolled in mental health

treatment. Id. at 18. Mother’s mental health remains a concern, because

“[s]he does present, at times, [as] very unstable. She’s aggressive at times,

and we just don’t know where she stands with her mental health.” Id. at 27.

Finally, Ms. Whittaker testified that Mother visits with the Children once per

week for an hour. Id. at 22. Mother has attended her visits consistently since

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September 2016, although her attendance prior to then was inconsistent. Id.

at 23.

         During her testimony, Ms. Whittaker placed particular emphasis on

Mother’s aggressive behavior. Ms. Whittaker testified that Mother completed

an anger management program, but that she did not believe that Mother was

utilizing the skills that she learned in the program. Id. at 22. She explained,

“[w]e recently had some concerns in February of 2017.         Mom engaged in

inappropriate conversations with the caregiver. She’s called the home, sent

text messages, left voicemail messages threatening to fight them.” Id. Ms.

Whittaker requested a stay-away order on the foster parent’s behalf, due to

these threats.3 Id. at 25.

         Thus, the record presents clear and convincing evidence that Mother is

incapable of parenting the Children, and that Mother cannot, or will not,

remedy her parental incapacity. At the time of the termination hearing, the

Children had already been in foster care for over two years, and Mother had

made little, if any, progress toward reunification. Mother remained without

stable housing or employment, and her mental health issues remained

unresolved.     Moreover, Mother engaged in aggressive behavior, including

threatening the Children’s foster parent. As this Court has stated, “a child’s
____________________________________________


3 Ms. Whittaker testified that the Children’s foster parent “turned in [her] 30-
day notice” as a result of these threats, but later withdrew it. N.T., 3/16/2017,
at 28-29. In its opinion, the trial court indicates that this testimony refers to
the “thirty-day notice for removal of the Children from her home[.]” Trial
Court Opinion, 7/15/2017, at 5.


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life cannot be held in abeyance while a parent attempts to attain the maturity

necessary to assume parenting responsibilities. The court cannot and will not

subordinate indefinitely a child’s need for permanence and stability to a

parent’s claims of progress and hope for the future.”4 In re Adoption of

R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

       We next consider whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) as follows.

       Section 2511(b) focuses on whether termination of parental rights
       would best serve the developmental, physical, and emotional
       needs and welfare of the child. As this Court has explained,
       Section 2511(b) does not explicitly require a bonding analysis and
       the term ‘bond’ is not defined in the Adoption Act. Case law,
       however, provides that analysis of the emotional bond, if any,
       between parent and child is a factor to be considered as part of
       our analysis. 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
       court when determining what is in the best interest of the child.

____________________________________________


4 The certified record does not support the trial court’s finding that Mother
failed to comply with drug treatment. The record contains a Clinical Evaluation
Unit (“CEU”) progress report, dated June 9, 2015, indicating that Mother
completed a CEU evaluation, and that “CEU would tentatively recommend
[Mother] would not benefit from any substance abuse treatment[.]” CEU
Progress Report, 6/9/2015.       On February 3, 2016, the court entered
permanency review orders indicating that “D&A treatment is no longer needed
as to Mother.” Permanency Review Order (N.S.D.), 2/3/2016, at 3. While
DHS presented several CEU reports of noncompliance during the termination
hearing, which the court admitted into evidence, all of those reports predated
the court’s February 3, 2016 permanency review order. The most recent
report, Exhibit 16, is dated January 14, 2014. Nonetheless, we find that the
court’s remaining findings with respect to Section 2511(a)(2) are supported
by the record, and are more than sufficient to affirm the court’s decision.

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            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      Here, the trial court found that terminating Mother’s parental rights

would best serve the needs and welfare of the Children. Trial Court Opinion,

7/15/2017, at 13. The court reasoned that there is no parental bond between

the Children and Mother, and that terminating Mother’s parental rights would

not cause the Children to suffer irreparable harm.       Id.   The court further

reasoned that the Children are doing well in their foster home, and that the

Children’s foster parent meets all of their needs. Id.

      Mother argues that DHS failed to present clear and convincing evidence

that terminating her parental rights would best serve the Children’s needs and

welfare. Mother’s brief at 18. Mother emphasizes that she has been compliant

with visitation since September 2016. Id.

      After a careful review of the record in this matter, we agree with Mother,

and conclude that DHS failed to meet its burden of proof with respect to

Section 2511(b).      As detailed above, the Children were born in November

2011, and October 2012, respectively. At the time the Children were removed


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from Mother’s care, in January 2015, they were three and two years old. 5 In

addition, by the time of the termination hearing, Mother had been attending

her visits with the Children consistently for approximately six months, starting

in September 2016. While Ms. Whittaker testified that Mother attended visits

with the Children inconsistently prior to September 2016, she did not specify

how inconsistent Mother’s visits were. Thus, both of the Children have spent

a significant amount of time in Mother’s care, and the record suggests that

they may continue to share a bond with her.

       However, during the termination hearing, DHS presented only minimal

evidence addressing the relationship between the Children and Mother, and

the effect that terminating that relationship would have on the Children. In

fact, the only evidence presented during the entire hearing to address these

issues was the following testimony by Ms. Whittaker.

       [Counsel for DHS]: With regards to [N.S.D.] and [R.P.D.], do you
       believe there would be any irreparable harm to either children
       [sic] if [M]other’s parental rights were terminated?
       Ms. Whittaker: No.

                                           ***



____________________________________________


5 The record reveals that N.S.D. was removed from Mother’s care once before,
shortly after her birth in November 2011, and adjudicated dependent in
December 2011. See Exhibit 11 (Order of Protective Custody); Exhibit 12
(Order of Adjudication and Disposition – Child Dependent). N.S.D. was
returned to Mother’s care only a few months later, in March 2012. N.T.,
3/16/2017, at 15. The dependency docket indicates that N.S.D. remained
dependent while in Mother’s care for another year, until court supervision was
terminated in March 2013.

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      [Counsel for DHS]: Do you believe there is a positive, healthy
      maternal relationship between [M]other and [N.S.D.] or [M]other
      and [R.P.D.]?

      Ms. Whittaker: No.

                                     ***

      [Counsel for DHS]: Okay. With regards to these children, where
      are they presently residing?

      Ms. Whittaker: They currently reside at a general foster home
      through Children’s Choice.

      [Counsel for DHS]: And how are they doing there?

      Ms. Whittaker: They’re doing well in the home.

N.T., 3/16/2017, at 26-27.

      This testimony is simply too weak to support the trial court’s findings

with respect to Section 2511(b). While Ms. Whittaker opined that the Children

do not share “a positive, healthy maternal relationship” with Mother, and

would not suffer irreparable harm if Mother’s parental rights were terminated,

she did not explain her opinions and offered only conclusory one-word

answers. Indeed, Ms. Whittaker’s testimony provides no real insight at all into

the relationship between the Children and Mother, particularly since the

Children were in Mother’s care before they were removed at ages three and

two, respectively, and she attended visits. Given the sparsity of testimony

concerning the best interests of the Children, we find that DHS has failed to

prove by clear and convincing evidence that termination of Mother’s rights is

in their best interest. See In re Adoption of A.C.H., 803 A.2d 224, 229-30

(Pa. Super. 2002) (reversing a termination order where the record lacked



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sufficient evidence addressing the appellant’s bond with her child, and where

the trial court addressed the child’s needs and welfare in a conclusory fashion).

      Based on the foregoing, we affirm the portion of the trial court’s decrees

terminating Mother’s parental rights with respect to Section 2511(a), and we

vacate the portion terminating Mother’s parental rights with respect to Section

2511(b). Further, we remand this matter and direct the court to conduct an

additional termination hearing as soon as possible, so that it may hear

testimony regarding the relationship between the Children and Mother. The

court must then conduct a new Section 2511(b) analysis, and determine if

there is clear and convincing evidence to grant the termination petition.

      Decrees affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2017




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