J-S44002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.C.H., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
APPEAL OF: J.T., MOTHER
                                                    No. 3796 EDA 2016


            Appeal from the Decree Entered December 1, 2016
           In the Court of Common Pleas of Philadelphia County
                           Family Court at No(s):
                            CP-51-AP-0001066
                         CP-51-DP-0002641-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 29, 2017

     J.T. (“Mother”) appeals from the decree entered December 1, 2016,

that granted the petition filed by the Philadelphia County Department of

Human Services, Children and Youth Division (“DHS”) to involuntarily

terminate her parental rights to her minor child, K.C.H. (“Child”) (born in

September of 2013), pursuant to sections 2511(a)(1), (2), (5), (8), and (b)

of the Adoption Act, 23 Pa.C.S. §§ 2101-2938. After careful review of the

record and applicable law, we affirm.

     The trial court set forth the following summary of the factual and

procedural background of this case in its Pa.R.A.P. 1925(a) opinion:

     On October 2, 2015, [DHS] received a General Protective Service
     (GPS) report alleging Mother abandoned [Child] with his paternal
     great-grandmother on September 28, 2015. Maternal aunt was
     contacted on September 30, 2015[,] to care for [Child], where
     he remained in her care. There were growing concerns, since
     [the] summer of 2015, regarding Mother[’s] leaving [Child] with
     maternal aunt or paternal great-grandmother for extended
     periods of time with no contact. The report alleged [that]
     maternal aunt visited Mother’s home and the building appeared
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     to be abandoned. The report further stated Mother suffered
     from schizophrenia and was not receiving treatment nor taking
     medication. Mother reportedly used drugs. [Child’s] sibling had
     been previously placed with DHS. Mother was pregnant with
     twins. The report was determined to be valid.

     DHS learned on October 1, 2015, Mother was violent and caused
     damage to the homes of paternal great-grandmother and
     maternal aunt when she attempted to retrieve [Child].

     On October 5, 2015, DHS visited the home of maternal aunt and
     found the allegations of damage to be valid.

     On October 5, 2015, DHS obtained an Order of Protective
     Custody (OPC) for [Child] to ensure his safety. [Child] remained
     in the home of maternal aunt.

     A Shelter Care Hearing for [Child] was held on October 7, 2015.
     The [c]ourt ordered the OPC lifted and the temporary
     commitment to stand. DHS was ordered to make a referral for
     kinship care services.

     At that time[,] Mother’s whereabouts were unknown to DHS.
     Father was incarcerated at the Detention Center (DC) on charges
     related to domestic violence.

     On October 15, 2015, an Adjudicatory Hearing for [Child] was
     held before the Honorable Vincent L. Johnson, who discharged
     the temporary commitment, adjudicated [Child] dependent, and
     committed him to DHS.

     On October 15, 2015, an Aggravated Circumstances hearing for
     [Child] was held.     The [c]ourt determined that aggravated
     circumstances exited [sic] as to Mother[,] pursuant to the
     involuntary termination of her parental rights of [Child’s] sibling
     on March 4, 2015.          The [c]ourt also found aggravated
     circumstances existed as a result of sibling who was the victim of
     physical abuse resulting in serious bodily injury, sexual violence,
     and aggravated neglect by Mother. The [c]ourt acted pursuant
     to Mother’s admission of guilt to the charges of felony
     aggravated assault and endangering the welfare of children. The
     [c]ourt ordered that efforts continue to be made to preserve the
     family and reunify [Child] with Mother.




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     On January 4, 2016 and March 28, 2016, Permanency Review
     Hearings for [Child] were held. [Child] remained committed to
     DHS custody.

     On May 3, 2016, a Permanency Review Hearing was held for
     [Child] … before the Honorable Richard J. Gordon, who ordered
     [Child] remain committed to DHS. Judge Gordon ordered [Child]
     be referred to BHS for a consultation and evaluation. Mother
     and Father were referred to the Achieving Reunification Center
     (ARC). Mother and Father were granted supervised visits as
     arranged by the parties.

     On May 13, 2016, Mother gave birth to [Child’s] sibling.

     On May 14, 2016, DHS received a GPS report which alleged on
     May 13, 2016, Mother gave birth to [Child’s] sibling and was
     expected to be discharged from Hospital of the University of
     Pennsylvania (HUP) on May 15, 2016. Mother lacked stable
     housing and was involved with the Family Shelter Support Team
     (FaSST) Connections for assistance with obtaining housing and
     other social support. The report further alleged Mother was
     unemployed.     Mother was diagnosed with bipolar disorder,
     depression and anxiety. Mother was assigned a therapist and a
     psychiatrist and received treatment at John F. Kennedy (JFK)
     Behavioral Health Center. Mother was scheduled to resume
     mental health treatment on May 17, 2016. The report also
     stated Mother had been incarcerated for assaulting a child. The
     report was determined to be valid.

     On May 16, 2016, DHS visited [Child’s] sibling at HUP and
     learned she was healthy. DHS contacted Mother who provided
     names and contact information for possible placement resources
     for [Child’s] sibling. Mother stated she was in the process of
     obtaining housing.

     On May 16, 2016, DHS obtained an OPC for [Child’s] sibling and
     placed her in the care of her maternal cousin, where she
     remained.

     A Shelter Care Hearing for [Child’s] sibling on May 19, 2016[,]
     was held before [the] Honorable Lyris F. Younge. The [c]ourt
     lifted the OPC and ordered the temporary commitment to DHS to
     stand.     Judge Younge further ordered Mother to have liberal
     supervised visits with [Child’s] sibling in maternal cousin’s home.



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     On May 25, 2016, an Adjudicatory Hearing for [Child’s] sibling
     was held before Judge Younge[.] Judge Younge discharged the
     temporary commitment to DHS, adjudicated [Child’s] sibling
     dependent, and committed [him] to DHS. Judge Younge ordered
     Mother to visit Clinical Evaluation Unit (CEU) for a full drug and
     alcohol screen, a dual-diagnosis assessment and monitoring.
     Mother was granted weekly supervised visits at the agency.
     Mother was ordered to contact the agency 24 hours in advance
     of Mother’s intended visit or the visit would be cancelled.

     On May 25, 2016, Judge Younge found that aggravated
     circumstances existed as to Mother but held the decision
     pursuant to efforts made toward reunification in abeyance.

     On June 22, 2016, a Permanency Review Hearing for [Child’s]
     sibling was held before Judge Younge, who ordered that [Child’s]
     sibling remain committed to DHS. Judge Younge suspended
     Mother’s visitation, and ordered that no further efforts need be
     made to reunify [Child’s] sibling with Mother.

     On July 25, 2016, a Permanency Review Hearing for [Child] and
     [Child’s] sibling was held before Judge Younge. Mother was
     referred to Achieving Reunification Center (ARC) … for
     services[;] however[,] [she] was discharged for lack of
     participation. Mother failed to comply with her referral to CEU
     for drug and alcohol testing and assessment. Judge Younge
     ordered [Child] and [Child’s] sibling remain committed to DHS.

     The matter was … listed on a regular basis before [j]udges of the
     Philadelphia Court of Common Pleas, Family Court Division –
     Juvenile Branch[,] pursuant to section 6351 of the Juvenile Act,
     42 Pa.C.S.[] § 6351, and evaluated for the purpose of reviewing
     the permanency plan of [Child].

     In subsequent hearings, the Dependency Review Orders reflect
     the [c]ourt’s review and disposition as a result of evidence
     presented, primarily with the goal of finalizing the permanency
     plan.

     On December 1, 2016, during the Termination of Parental Rights
     Hearing for [Child], the [c]ourt found by clear and convincing
     evidence that Mother’s parental rights as to [Child] should be
     terminated pursuant to the Juvenile Act.          Furthermore, the
     [c]ourt held it was in the best interest of [Child] that the goal be
     changed to [a]doption.


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Trial Court Opinion (“TCO”), 4/5/17, at 1-3.

      On December 8, 2016, Mother filed a timely notice of appeal, along

with a timely Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. In her brief, Mother presents the following 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.[] [§] 2511(a)(1)[,] where [M]other presented
         evidence that she substantially met her [Family Service Plan
         (“FSP”)] goals and is able to perform her parental duties[?]

      2. Whether the trial court erred and/or abused its discretion by
         terminating the parental rights of [Mother], pursuant to 23
         Pa.C.S.[] [§] 2511(a)(2)[,] where [M]other presented
         evidence that she has remedied her situation by attending
         parenting and anger management classes, and continuing to
         receive mental health treatment[?] Mother has the present
         capacity to care 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.[] [§] 2511(a)(5)[,] where evidence was provided to
         establish that [Child] was removed from the care of his
         mother, and that [M]other is now capable of caring for her
         child[?]

      4. Whether the trial court erred and/or abused its discretion by
         terminating the parental rights of [Mother], pursuant to 23
         Pa.C.S.[] [§] 2511(a)(8)[,] where evidence was presented to
         show that [M]other is now capable of caring for her child
         since she has completed parenting and anger management
         and continues her mental health treatment[?]

      5. Whether the trial court erred and/or abused its discretion by
         terminating the parental rights of [Mother], pursuant to 23
         Pa.C.S.[] [§] 2511(b)[,] where evidence was presented that
         established [Child] lived [with] [M]other and had a parental
         bond with [M]other[?]

Mother’s Brief at 7.




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     We review an appeal from the termination of parental rights under 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., …
     9 A.3d 1179, 1190 (Pa. 2010). 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.; R.I.S., 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., … 34 A.3d 1, 51 (Pa. 2011); Christianson v.
     Ely, … 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., 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, … 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).




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      In termination cases, 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 S.H., 879 A.2d 802, 806 (Pa.

Super. 2005). We have previously stated:

      The standard of clear and convincing evidence is defined as
      testimony that is so clear, direct, weighty and convincing as to
      enable the trier of fact to come to a clear conviction, without
      hesitance, of the truth of the precise facts in issue.

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

marks omitted).

      Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      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 interest 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) (citing 23 Pa.C.S. § 2511;

other citations omitted).

      This Court must agree with only one subsection of 2511(a), in addition

to section 2511(b), in order to affirm the termination of parental rights. See


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

review the decree pursuant to sections 2511(a)(1) 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:

           (1) The parent by conduct continuing for a period of at
           least six months immediately preceding the filing of the
           petition either has evidenced a settled purpose of
           relinquishing parental claim to a child or has refused or
           failed to perform parental duties.
                                        …

      (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. § 2511(a)(1) and (b).

      As we addressed the application of section 2511(a)(1) in In re C.M.S.,

832 A.2d 457, 461 (Pa. Super. 2003), we noted:

      To satisfy Section 2511(a)(1), the moving party must produce
      clear and convincing evidence of conduct sustained for at least
      the six months prior to the filing of the termination petition,
      which reveals a settled intent to relinquish parental claim to a
      child or a refusal or failure to perform parental duties.




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Id. (quoting Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91

(Pa. 1998)). In C.M.S., we further acknowledged the following statement by

our Supreme Court:

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A
     child needs love, protection, guidance, and support. These
     needs, physical and emotional, cannot be met by a merely
     passive interest in the development of the child. Thus, this court
     has held that the parental obligation is a positive duty which
     requires affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent ‘exert himself to take and maintain a place
     of importance in the child’s life[.’]

C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.

1977)).

     Contrary   to   what   the   record   reflects,   Mother   avers   that   she

substantially complied with all of her FSP goals and suggests that she has a

bond with Child which is evidenced by her continued visitation with Child.

Mother’s Brief at 10, 15.         However, Mother’s own testimony at the

termination hearing revealed that, over the course of the prior year, she

missed more than half of her scheduled supervised visits.         N.T. Hearing,

12/1/17, at 66. Moreover, despite Mother’s assertion that she has attended

parenting, domestic violence, and anger management programs and that

she continues with her mental health treatment, the court determined that



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Mother’s treatment has been inconsistent.      Id. at 106.   The court added,

“Even though [Mother] has had some treatment and may have made some

form of progress, [Mother] is still having to deal with issues where she’s

showing aggression, she’s busting out windows … [T]hat’s not appropriate

behavior, and it raises a safety concern as to whether … [Child] would be

safe in the care of [Mother].” Id.

      In further support of its finding that Mother failed to perform her

parental duties, which established grounds for termination under 23 Pa.C.S.

§ 2511(a)(1), the trial court stated:

      [T]he social worker testified Mother had a history of domestic
      violence issues and physical abuse of a child. The [c]ourt took
      judicial notice of a finding of Aggravated Circumstances in
      October [of] 2015, based on involuntary termination of a prior
      child who was the victim of serious bodily injury, sexual violence,
      and aggravated neglect by Mother. The [c]ourt also took judicial
      notice of orders for suspension of Mother’s visitation of another
      child due to concerns for the child[’s] safety as a result of the
      aggravated circumstances finding. The social worker did not feel
      it was appropriate to modify Mother’s visits with [Child] to
      unsupervised visits. Testimony of the social worker revealed
      Mother’s visits with [Child] did not expand due to Mother’s
      failure to be compliant with her Single Case Plan (SCP)
      objectives. According to [the] social worker’s testimony, Mother
      had failed to show consistency in mental health treatment and
      failed to complete anger management classes. Furthermore,
      [the] social worker’s testimony revealed she believed [Child]
      would be at risk for harm and danger if reunification with Mother
      occurred.

      A parent has an affirmative duty to act in her children’s best
      interest. “Parental duty requires that the parent not yield to
      every problem, but must act affirmatively, with good faith
      interest and effort, to maintain the parent-child relationship to
      the best of his or her ability, even in difficult circumstances.” In
      re Dale A., II, 683 A.2d 297, 302 (Pa. Super. 1996). In

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J-S44002-17


      reference to the parental contact, “to be legally significant, the
      contact must be steady and consistent over a period of time,
      contribute to the psychological health of the child, and must
      demonstrate a serious intent on the part of the parent to
      recultivate a parent-child relationship, and must demonstrate
      and [sic] willingness and capacity to undertake the parenting
      role.” In re D.J.S., 737 A[.]2d 283, 286 (Pa. Super. 1999)
      (quoting In re Adoption of Hamilton, 549 A.2d 1291, 1295
      (Pa. Super. 1988)).

      In the present matter, [Child] had been in DHS care for fourteen
      (14) months. Testimony revealed Mother admitted to acts of
      domestic violence in July of 2016[,] while engaged in domestic
      violence therapy and counseling. The social worker testified
      there were ongoing concerns about Mother’s mental health
      stability. A Clinical Evaluation Report (CEU) provided to the
      [c]ourt stated Mother tested positive for drugs twice in July [of]
      2016.

TCO at 4-5 (citations to record omitted).    After careful review, we discern

that the court’s determinations are well-supported by the record.

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

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

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

2008) (en banc).     This Court has stated that the focus in terminating

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

pursuant to section 2511(b). Id. at 1008.

      In reviewing the evidence in support of termination under section

2511(b), 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 “intangibles such as
      love, comfort, security, and stability.” In re K.M., 53 A.3d 781,


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      791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
      1992)], 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., 71 A.3d 251, 267 (Pa. 2013).

      Here, Mother merely provides that she lived with Child for over a year

and that she continues to visit with Child when permitted, in support of her

argument that termination of her parental rights does not serve Child’s

physical and emotional needs and welfare. See Mother’s Brief at 18. The

record clearly belies Mother’s claim.

      At the termination hearing, DHS testified that Child has been

diagnosed with adjustment disorder and is receiving trauma-focused play

therapy, “due to a history of exposure to domestic violence and potential

concerns regarding separation anxiety from the kinship caregiver[.]”   N.T.

Hearing at 59.      DHS indicated that Child suffers from the following

potentially trauma-related symptoms: “outbursts when the caregiver leaves

him, staring off into space, physical aggression, intrusive memories,

difficulty sleeping, and some other behavior.” Id.

      The trial court concluded:

      In the instant matter, the testimony of [the] social worker
      established that [Child] would not suffer any irreparable
      emotional harm if Mother’s parental rights were terminated.
      Testimony of the social worker stated [Child] had positive
      interaction and bonded with his caregiver. The social worker
      testified [that] [Child’s] caregiver has been successful in
      behavioral management of [Child].     Furthermore, testimony


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      established that [Child’s] stability would be disrupted if [Child]
      was removed from the caregiver’s home.

      The [c]ourt found the social worker’s testimony [regarding]
      Mother to be credible and effectively detailed.

TCO at 6 (citations to record omitted).

      As there is competent evidence in the record that supports the trial

court’s credibility and weight assessments regarding Child’s needs and

welfare, and the absence of any bond with Mother, we conclude that the

court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d

at 826-27. Accordingly, we affirm the decree terminating Mother’s parental

rights to Child.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




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