J-S37017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF L.M.H., A               :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.F.-H., MOTHER                 :
                                               :
                                               :
                                               :
                                               :   No. 870 EDA 2019


               Appeal from the Decree Entered, February 25, 2019,
              in the Court of Common Pleas of Philadelphia County,
                Family Court at No(s): CP-51-AP-0000921-2018.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 23, 2019

        T.F.-H. (Mother) appeals the decree granting the petition filed by the

Philadelphia County Department of Human Services (DHS) to involuntarily

terminate her parental rights to her daughter, L.M.H. (Child), pursuant to the

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

we affirm.

        The relevant history is as follows:

        Mother was 16 years old when she gave birth to Child in October 2015.

Mother, evidently the subject of her own dependency proceedings, was

residing in a DHS placement. In the months prior to Child’s birth, Mother had

absconded from her placement. Mother and Child were located in December

2015 at the home of a maternal great-aunt. In December 2015, DHS alleged
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1   The trial court also terminated the rights of the unknown father.
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that Mother suffered from depression, that she was noncompliant with her

prescribed medication, and that she was truant from high school. The court

ordered Mother and Child to be placed together in a home where they could

stay together. Apparently, DHS had no other concerns for the majority of

2016.

        In January 2017, DHS received a report that Mother faced eviction for

her noncompliance with the rules of the group placement. Mother continued

to abscond from the home without permission, both with and without the

infant Child. In one instance, Child was ill and Mother left her unattended in

her crib for 4 and a half hours without any adult supervision. DHS obtained

an emergency order removing Child from Mother’s care.                 Child was

adjudicated dependent on January 20, 2017.

        The court ordered Mother to submit for a drug screen, a dual diagnosis

assessment, and monitoring.           Mother tested positive for marijuana.   The

Community Umbrella Agency created a single case plan (SCP) for Mother. Her

SCP objectives were: to comply with her placement’s curfew; to attend Child’s

medical appointments; to maintain consistent mental health treatment; to

attend school; to have random drug testing; to have visits with Child; to avoid

taking Child within one mile of a specific address.2       The dependency case

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2 The trial court specifically ordered Mother not to take Child within one mile
of maternal grandmother’s address, due to concerns that alleged drug use and
prostitution took place there. The parties stipulated that the home was not
safe for Child.


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lingered for approximately two years.            Mother did not make significant

progress towards achieving any of these goals.

       In November 2018, DHS petitioned to involuntarily terminate Mother’s

parental rights under sections 2511(a)(1), (2), (5), (8) and (b).          After a

hearing, the court denied the petition as to Section 2511(a)(1), but granted

the petition on the other grounds.3, 4 Mother filed this timely appeal, where

she presents four issues for our review:

                 1. Whether the trial court erred and/or abused its
                    discretion by terminating the parental rights of
                    Mother pursuant to 23 Pa.C.S.A. § 2511(a)(2)
                    where Mother presented evidence that she has
                    remedied her situation by providing negative drug
                    screens, attending school and visiting her child and
                    has the present capacity to care for Child?

                 2. Whether the trial court erred and/or abused its
                    discretion by terminating the parental rights of
                    Mother pursuant to 23 Pa.C.S.A. § 2511(a)(5)
                    where evidence was provided to establish that
                    Child was removed from the care of her Mother and
                    Mother is now capable of caring for Child?

                 3. Whether the trial court erred and/or abused its
                    discretion by terminating the parental rights of
                    Mother pursuant to 23 Pa.C.S.A. § 2511(a)(8)
                    where evidence was presented to show that Mother
                    is now capable of caring for Child after she


____________________________________________


3The court conducted the hearing over two dates, January 14, and February
25, 2019. The hearing also encompassed DHS’s petition to change the
dependency goal from reunification to adoption. Mother does not appeal the
goal change.

4 Child was properly represented by counsel, pursuant to 23 Pa.C.S.A. §
2313(a).

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                  complied with her placement, attended school and
                  provided negative drug screens?

               4. Whether the trial court erred and/or abused its
                  discretion by terminating the parental rights of
                  Mother pursuant to 23 Pa.C.S.A. § 2511(b) where
                  evidence was presented that established Child has
                  a close bond with Mother and had lived with Mother
                  for part of her life.        Additionally, Mother
                  consistently visited with Child and maintained a
                  strong bond with Child the entire time Child was in
                  placement.

Mother’s Brief at 7.

      We review these claims mindful of our well-settled standard or 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 quotations marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 §§ 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 that the parent's conduct satisfies the statutory
         grounds        for    termination     delineated     in Section

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         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 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) (citation

and quotation marks omitted).

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

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

to any one subsection of 2511(a), as well as Section (b), in order to affirm.

In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we

analyze the trial court’s decision to terminate 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

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        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 notice of the filing
        of the petition.

23 Pa.C.S. § 2511(a)(2), (b)

     Instantly,   we   analyze   the    trial   court's   decision   to   terminate

under Section 2511(a)(2) and (b).

        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.

        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) (citations,

internal quotation marks, and indentation omitted).




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      Mother essentially concedes she was unable to care for Child previously,

but she contends that past incapacity alone is not a sufficient basis for

involuntary termination. She alleges that she had substantially completed her

SCP goals and that she should be given a chance to provide a home for herself

and her child.

      Here, we find ample evidence to justify the trial court's termination of

Mother’s parental rights to Child, pursuant to Section 2511(a)(2). Mother has

demonstrated an incapacity to perform parental duties as illustrated by her

inability to make any real progress on her goals over the last two years. As

late as September 2018, 21 months after the Child’s removal, Mother still

tested positive in her drug screens; perhaps relatedly, she had entirely refused

to address her mental health issues; and she was once again facing removal

from her placement home for noncompliance with the rules.          Mother was

inconsistent with attending Child’s medical appointments. While Mother had

graduated to unsupervised visits with Child, those visits had to be scaled back

because Mother was taking Child to the maternal grandmother’s home, a

location that Mother agreed was unsafe. Of those supervised visits, Mother

arrived late or often missed them entirely. While Mother’s progress ebbed

and flowed throughout the dependency case, Mother was still incapable of

caring for Child, who had to rely on others for her essential well-being. Mother

may not have displayed affirmative misconduct, but she has shown an inability

to remedy the causes of her incapacity.




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      We   acknowledge     that   the   inherent   difficulty   that   accompanies

parenthood when it begins during the parent’s own minority. At the time of

the termination hearing, Mother was enrolled in the 12th grade. Still, a failure

by a parent to remedy the conditions resulting in the child’s placement is not

confined to affirmative misconduct by the parent.        Rather, it encompasses

those situations where a parent has attempted to address their incapacity but

is ultimately unable to remedy it. In time, a parent’s basic constitutional right

to the custody and rearing of her child is converted, upon the failure to fulfill

her parental duties, to the child’s right to have proper parenting and fulfillment

of the child’s potential in a permanent, healthy, safe environment. Matter of

M.P., 204 A.3d 976, 984 (Pa. Super. 2019) (citing In re B., N. M., 856 A.2d

847, 856 (Pa. Super. 2004)).

      For over two years, DHS has attempted to buoy Mother with intensive

services. While she has shown sporadic progress, the dependency case ends

largely where it began.     Meanwhile, Child has been in want of necessary

parental care and stability.   The court did not abuse its discretion when it

determined that competent, clear, and convincing evidence supported the

termination of Mother’s parental rights pursuant to Section 2511(a)(2),

thereby satisfying the first prong of the termination analysis.

      Next, we consider whether termination was proper under Section

2511(b). With regard to Section 2511(b), our Supreme Court has stated as

follows:




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         [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.... [T]his 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 T.S.M., 71 A.3d at 267 (internal case citations omitted).

      Instantly, Mother contends DHS failed to meet these criteria. She points

to the social worker’s testimony that there was a parental bond between

Mother and Child. Mother argues no such bond exists with the foster parent.

Indeed, the caseworker testified that Mother and Child have a positive, if

inconsistent relationship. When Mother and Child visit, they play games on a

tablet or phone and sometimes share a meal. We cannot equate a few warm

visits with a well-adjusted child to a parental bond. Moreover, the question is

not whether Child and Mother have a bond, but whether that bond is worth

preserving.

      While a parent's emotional bond with his or her child is a major aspect

of the subsection 2511(b) best-interest analysis, it is nonetheless only one of

many factors to be considered by the trial court when determining what is in

the best interest of the child. In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014)

(citing In re K.K.R.–S., 958 A.2d 529, 535–536 (Pa. Super. 2008). The mere

existence of an emotional bond does not preclude the termination of parental

rights. Id., 93 A.3d at 897-898; see also In re T.D., 949 A.2d 910 (Pa.

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Super. 2008) (trial court's decision to terminate parents' parental rights was

affirmed where court balanced strong emotional bond against parents' inability

to serve needs of child). Rather, the trial court must examine the status of the

bond to determine whether its termination “would destroy an existing,

necessary and beneficial relationship.” Id. at 898 (citation omitted).

      Here, the basis for the so-called bond was Mother’s visitation with Child.

While Mother had more expansive visitation in the past, by the end of the

dependency case Mother could only be trusted with two, two-hour supervised

visits per week. Even then, she often arrived late or would miss the visit

completely. Meanwhile, the pre-adoptive foster parent was the one who met

Child’s daily needs, and who was the parent-figure that Child turned to for

support and security. Thus, the trial court observed that even if Mother and

Child had a bond, Child would not suffer irreparable harm if the bond was

severed. We discern no abuse of discretion in the court’s decision that DHS

met its burden under the second prong of the termination analysis. Mother’s

final issue is without merit.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by involuntarily terminating Mother’s parental rights to Child

pursuant to Section 2511(a)(2) and (b). Accordingly, we affirm the decree of

the trial court.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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