J. S11015/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                    :     IN THE SUPERIOR COURT OF
S.D.C.-A., A MINOR                     :           PENNSYLVANIA
                                       :
APPEAL OF: T.A., MOTHER                :          No. 2279 EDA 2015


               Appeal from the Order Entered June 25, 2015,
           in the Court of Common Pleas of Philadelphia County
          Family Court Division at Nos. CP-51-AP-0000651-2014,
                         CP-51-DP-0001242-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 26, 2016

     T.A. (“Mother”) appeals from the decree and order entered June 25,

2015, in the Court of Common Pleas of Philadelphia County, Family Court

Division, granting the petition of the Philadelphia Department of Human

Services (“DHS”) and involuntarily terminating her parental rights to

S.D.C.-A. (“Child”), born in March of 2007, pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), (8), and (b), and changing the permanency goal to

adoption. After review, we affirm.

     The relevant procedural and factual history is as follows:

           On May 13, 2013, DHS received a General Protective
           Services (GPS) report alleging that the Mother’s
           home was inappropriate for the child.             The
           allegations were that the kitchen door did not have a
           lock and it was secured by a table pushing against it.
           The beds did not have linens. Furthermore, the floor
           was filthy and filled with trash. The home was filled
           with smoke. Moreover, the home did not have gas
           service nor properly functioning electric.        The
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          refrigerator did not contain any food-it had mice
          droppings in it. Additionally, the mother smoked
          marijuana and used phencyclidine (PCP). Lastly, the
          mother left the child in the care of a neighbor while
          mom abused drugs. The report was substantiated.

          On May 14, 2013, a DHS social worker did a home
          inspection/evaluation. The social worker determined
          that the home was inappropriate, therefore, the child
          could not remain in the home.

          Subsequently, the mom identified a family friend,
          Ms. Hawthorne, as a possible caregiver for the child.
          Ms. Hawthorne agreed to care for the child. DHS
          implemented a Safety Plan which was signed by both
          Ms. Hawthorne and the Mother.

          On June 17, 2013, DHS obtained an Order of
          Protective Custody (OPC) for S.C. The child, S.C.
          remained in the care of Ms. Hawthorne. The mother
          was    not   participating   in  drug   treatment.
          Furthermore, she was actively abusing drugs.
          However, the [m]other informed DHS that she
          needed drug treatment.

          A Shelter Care Hearing was held on June 19, 2013
          before the Honorable Jonathan Q. Irvine. Judge
          Irvine lifted the OPC and ordered the temporary
          commitment to DHS to stand.

          On June 27, 2013, an adjudicatory hearing was held
          before    the  Honorable    Jonathan    Q.    Irvine.
          Judge Irvine adjudicated the child dependent and
          committed the child, S.C., to DHS. Furthermore,
          Judge Irvine ordered that the Mother be referred to
          the Clinical Evaluation Unit (CEU) for a drug and
          alcohol assessment. Moreover, he ordered forthwith
          drug and alcohol screens. Lastly, the mother was
          ordered to comply with the Family Service Plan (FSP)
          recommendations.

          On December 17, 2013 DHS held and [sic] FSP
          meeting. The goals identified were to 1) participate
          in drug and alcohol treatment while remaining drug


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            free, 2) participate in a mental health evaluations
            [sic]    and     comply    with    all   treatment
            recommendations, and, 3) obtain appropriate
            housing. The mother attended the FSP meeting.[1]

Trial court opinion, 9/21/13 at 1-2 (unpaginated).

     The trial court held permanency review hearings in this matter on

September   26,   2013,   December    4,   2013,   and   February   27,   2014.

Throughout these reviews, the trial court maintained Child’s commitment

and placement, and permanency goal. Thereafter, at a permanency review

hearing on May 15, 2014, Child, who had been in kinship foster care through

Jewish Family Children Services (“JFCS”), was placed in regular foster care

through JFCS.

     On November 21, 2014, DHS filed petitions for goal change to

adoption and for involuntary termination of parental rights. Subsequent to a

hearing on December 10, 2014, the trial court found that Mother was in full

compliance with the permanency plan, as she was involved in a drug and

alcohol dual diagnosis program through Sobriety Through Out-Patient

(“STOP”) since October 15, 2014, had completed parenting classes as of

August 15, 2014, and was complying with the supervised visitation




1
  Mother was additionally ordered to maintain visitation and contact with
Child as well as the social worker. Of note, Mother’s goals remained the
same throughout the pendency of this matter.


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schedule.2     The court scheduled a contested goal change/termination

hearing for May 7, 2015.

      On May 7, 2015, DHS proceeded with its request for a goal change to

adoption and termination of parental rights. All parties stipulated that DHS

would testify as to the Statement of Facts in its petition. DHS presented the

testimony of DHS social worker, Janet Thurston, as well as JFCS worker,

Michael Baldwin. Following the hearing, the trial court issued an order the

same date in which it found minimal compliance by Mother with the

permanency plan, in that Mother did not comply with the FSP objectives,

services,    and   recommendations.     Mother   agreed   to   sign   voluntary

relinquishment petitions.   The court continued the case to allow for DHS

outreach to Father regarding voluntary relinquishment.

      On June 25, 2015, upon relisting, Mother refused to sign voluntary

relinquishment petitions. In an order entered the same date, the trial court

ruled out reunification and changed the permanency goal to adoption.        By

decree, the court further terminated involuntarily the parental rights of




2
  While Mother attached the transcript from this hearing as an appendix to
her brief, this testimony cannot be considered by this court as it is not part
of the certified record. See Commonwealth v. Preston, 904 A.2d 1, 6
(Pa.Super. 2006) (en banc) (noting that an appellate may only consider
that which is in the certified record).


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Mother.3    On July 24, 2015, Mother 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).

      On appeal, Mother, through appointed counsel, raises the following

issues for review:

             1.      Did the Trial Court err in terminating the
                     Appellant’s parental rights under Pa.C.S.
                     Section 2511?

             2.      Did the Trial Court err in finding that
                     termination of parental rights best served the
                     children’s [sic] developmental, physical and
                     emotional needs under subsection 2511(b)?

             3.      Did the Trial Court err in changing          the
                     children’s [sic] goal to adoption?

Mother’s brief at vi (proposed answers and answers below omitted).

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

             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.”
             In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817,
             826 (Pa. 2012).       “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. “[A] decision may be reversed for
             an abuse of discretion only upon demonstration of

3
 The trial court also terminated the parental rights of H.C. (“Father”). From
a review of the record, Father was incarcerated for various periods of time
and did not cooperate and/or make himself known to DHS throughout the
duration of this matter. He has not filed an appeal, nor is he a party to this
appeal.


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             manifest unreasonableness, partiality, prejudice,
             bias, or ill-will.” Id. The trial court's decision,
             however, should not be reversed merely because the
             record would support a different result. Id. at 827.
             We have previously emphasized our deference to
             trial courts that often have first-hand observations of
             the parties spanning multiple hearings. See In re
             R.J.T., 9 A.3d at 1190.

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

      The termination of parental rights is guided by Section 2511 of the

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

analysis of the grounds for termination followed by the needs and welfare of

the child.

             Our case law has made clear that under
             Section 2511, the court must engage in a bifurcated
             process prior to terminating parental rights. Initially,
             the focus is on the conduct of the parent. The party
             seeking termination must prove by clear and
             convincing evidence 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).       We

have defined clear and convincing evidence as that which is so “clear, direct,

weighty and convincing as to enable the trier of fact to come to a clear



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conviction, without hesitance, of the truth of the precise facts in issue.”

In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc).

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

pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (8), as well as (b).

We have long held that, in order to affirm a termination of parental rights,

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

Section 2511(a), well as Section 2511(b). In re B.L.W., 843 A.2d 380, 384

(Pa.Super. 2004) (en banc).       Here, we analyze the court’s termination

pursuant to Section 2511(a)(2) and (b), which provide 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 of a parent shall not be
                  terminated    solely   on    the   basis    of


                                    -7-
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                  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 examine the court’s termination of Mother’s parental rights

under 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 Adoption of C.D.R., 111 A.3d 1212, 1216

(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.

2002).

     In the case at bar, in discussing Subsection 2511(a)(2), the trial court

expressed “grave concerns regarding [Mother’s] ability to parent her child”


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which     warrant   termination.     (Trial   court   opinion,   9/21/15   at   4

(unpaginated).)      The court emphasized Mother’s positive drug tests,

Mother’s missed drug and alcohol intake appointments, and Mother’s failure

to comply with drug and alcohol treatment. (Id.)

        Mother argues DHS failed to present clear and convincing evidence

that the causes of incapacity, abuse, neglect, or refusal cannot or will not be

remedied.      (Mother’s brief at 3.)     Mother asserts that, as she was

“fully compliant” with all FSP objectives, completing parenting classes,

regularly visiting with Child, and participating in a dual diagnosis program for

mental health and drug and alcohol treatment, she established that she “can

and did remedy the reasons the child came into care.” (Id.)

        A review of the record supports the trial court’s finding of grounds for

termination under Section 2511(a)(2). Mother tested positive for drugs on

June 27, 2013, November 5, 2013, February 27, 2014, and May 15, 2014.

(First Judicial District Family Court Behavioral Health System Clinical

Evaluation Unit Report-Non-Compliance, 9/25/13; First Judicial District of

Pennsylvania Family Division Substance Analysis Unit Urine Drug Testing

Report, 11/5/13; DHS Exhibit #5, 5/7/15 (First Judicial District-Family Court

Chemical Dependency Evaluation Narrative Summary, 5/15/14, at 1); First

Judicial District Family Court Behavioral Health System Clinical Evaluation

Unit Progress Report, 8/12/14.) Additionally, Mother missed intake and/or

evaluation appointments on July 3, 2013, after rescheduling from July 3,



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2013, March 31, 2014, May 1, 2014, and June 17, 2014.                 (First Judicial

District Family Court Behavioral Health System Clinical Evaluation Unit

Report-Non-Compliance, 9/25/13; DHS Petition for Goal Change to Adoption,

11/21/14, Exhibit “A,” Statement of Facts, at ¶¶ t, x, y; First Judicial District

Family Court Behavioral Health System Clinical Evaluation Unit Progress

Report, 8/12/14.)

      Further,   regardless    of    any       progress,   DHS      social    worker,

Janet Thurston, testified at the May 7, 2015 goal change/termination hearing

that, while Mother’s FSP objectives continued to include drug and alcohol

and mental health treatment, Mother was not in either type of treatment at

the time and had not successfully completed or been discharged from drug

and alcohol treatment.     (Notes of testimony, 5/7/15 at 9.)            Hence, the

record substantiates the conclusion that Mother’s repeated and continued

incapacity, abuse, neglect, or refusal has caused Child to be without

essential parental control or subsistence necessary for his physical and

mental well-being.    See In re Adoption of M.E.P., 825 A.2d at 1272.

Moreover, Mother cannot or will not remedy this situation. See id. Mother

demonstrated continued drug use over an extended period of time, as

evidenced by multiple positive drug tests. Additionally, Mother exhibited the

inability to successfully complete treatment, despite repeated opportunity,

as   evidenced   by   numerous      missed     appointments   for    intake   and/or




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evaluation, and the testimony of Ms. Thurston that Mother was not enrolled

in and had not successfully completed treatment.

      We     next    determine   whether      termination   was   proper   under

Section 2511(b).     With regard to 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 at 485, 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. However, as discussed
             below, evaluation of a child's bonds is not always an
             easy task.

In re T.S.M., 71 A.3d at 267. “[I]n cases where there is no evidence of a

bond between a parent and child, it is reasonable to infer that no bond

exists.    Accordingly, the extent of the bond-effect analysis necessarily

depends on the circumstances of the particular case.” In re Adoption of

J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (citations omitted).

      In the instant matter, the trial court opined that Child did not have a

parental bond with Mother and did not look to Mother for “love, safety,

security and to meet his basic needs.”        (Trial court opinion, 9/21/15 at 5



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(unpaginated).)   The court further highlighted the testimony of the JFCS

worker who supervised Mother’s visitation with Child that Child “would not

suffer permanent emotional harm if the Mother’s rights were terminated and

she could not see the child.” (Id.)

      Mother, however, argues that, given her visitation with Child and the

lack of a pre-adoptive home, termination of her rights is contrary to Child’s

best interests as it “would terminate the only love, comfort, security and

stability that this child has ever known, and essentially leave this child an

orphan.” (Mother’s brief at 5.) Here, the record likewise corroborates the

trial court’s termination pursuant to Section 2511(b). Initially, we note that,

while Mother had visitation with Child, this visitation was not unsupervised.

(Permanency review order, 12/10/14.) In addition, it was stipulated at the

goal change/termination hearing that DHS would testify Child does not share

a “parental bond” with Mother and does not look to Mother for “love, safety,

security, and his/her basic needs to be met.” (Notes of testimony, 5/7/15 at

6-7; DHS petition for goal change to adoption, 11/21/14, Exhibit “A,”

statement of facts, at ¶¶ vv, ww.)      Moreover, as emphasized by the trial

court, the agency worker for JFCS who supervised Mother’s visits with Child,

Michael Baldwin, testified at this hearing to his belief that Child would not

suffer permanent emotional harm if Mother’s rights were terminated, and

she could not see Child.    (Notes of testimony, 5/7/15 at 10.)      Thus, as

confirmed by the record, the emotional needs and welfare of Child favor



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termination. Accordingly, based upon our review of the record, we find no

abuse of discretion and conclude that the trial court appropriately terminated

Mother’s parental rights under 23 Pa.C.S.A. §§ 2511(a)(2) and (b).

      We lastly turn to whether the trial court appropriately changed the

permanency goal to adoption. In so doing, we first note that our standard of

review is the same abuse of discretion standard as noted above.        In the

Interest of L.Z111 A.3d 1164, 1174 (Pa. 2015), citing In re R.J.T., 9 A.3d

1179, 1190 (Pa. 2010), for the proposition that the abuse of discretion

standard   applies   in   a   dependency   matter).   Further,   following   an

examination and findings of factors provided in 42 Pa.C.S.A. § 6351(f) and

(f.1), regarding matters to be determined at the permanency hearing, the

trial court must also find that a goal change is in Child’s best interests. See

42 Pa.C.S.A. § 6351(g); In re R.J.T., 9 A.3d 1179 (Pa. 2010).

      The primary purpose of the disposition of a dependent child is to

examine what is in the best interest of the child. 42 Pa.C.S.A. § 6351(a);

In the Interest of Z.W., et al., 710 A.2d 1176, 1178 (Pa.Super. 1998).

See also In re Tameka M., 580 A.2d 750, 753 (Pa. 1990) (stating, “In

ordering a disposition under Section 6351 of the Juvenile Act, the court acts

not in the role of adjudicator reviewing the action of an administrative

agency, . . . rather the court acts pursuant to a separate discretionary role

with the purpose of meeting the child’s best interests,” quoting In re

Lowry, 484 A.2d 383, 386 (Pa. 1984)).



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      In the case at bar, Mother posits that the trial court should not have

changed the permanency goal to adoption as she had complied with all of

her FSP goals and as Child had no adoptive resource.4 (Mother’s brief at 6.)

However, upon review of the record, we disagree with Mother. The record

reveals that a change of the permanency goal to adoption was in Child’s best

interests. Mother tested positive for drugs on numerous occasions over an

extended period of time and repeatedly missed appointments relating to

evaluation and/or treatment.          While Mother was enrolled in a treatment

program, six months later the DHS social worker, Ms. Thurston, testified

that Mother was not currently in a program and never completed treatment

for either drugs and alcohol or mental health, as was required. Further, the

JFCS worker who supervised Mother’s visitation with Child, Mr. Baldwin,

testified as to his belief that it is “in the child’s best interest that the goal be

changed to adoption.” (Notes of testimony, 5/7/15 at 11.) Therefore, the

record   supports   that   a   goal    change    was   in   Child’s   best   interests.

Accordingly, after review of the record, we again discern no abuse of




4
 Mother argues that the change of goal to adoption is error because there is
not a pre-adoptive resource. Although not addressed by the court, there is
an indication in the record at page 20 of the agency’s Petition for
Termination, on the Adoption Plan Status Form, that a foster parent adoption
was anticipated. This court cannot verify the accuracy of the form; however,
on the basis of this record as a whole, the termination and goal change were
appropriate.


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discretion   and   conclude   that   the   trial   court   properly   changed   the

permanency goal to adoption.5

      Based on the foregoing analysis of the trial court’s termination of

Mother’s parental rights and change of permanency goal, we affirm the

decree and order of the trial court.

      Decree and order affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 4/26/2016




5
  This court notes with great displeasure and concern that the brief filed by
DHS in this case appears to relate frequently to some other case. The brief
indicates that four children are involved at various points in the brief and at
page 14, identifies a “grandmother caregiver” who is bonded to the
“children” and is a pre-adoptive resource. These facts do not appear to
relate to this appeal in any way. In matters such as this, involving the
termination of a parent’s rights and the best interest of the child, this court
takes review of the record very seriously, and it is on this basis that we
affirm.


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