J-A30021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.T., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: R.T., BIOLOGICAL MOTHER

                                                     No. 1484 EDA 2014


                 Appeal from the Order and Decree April 15, 2014
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000653-2013
                                        CP-51-DP-0065485-2009
                                        FID: 51-FN-339253-2009

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 30, 2015

        Appellant, R.T. (Mother), appeals from the April 15, 2014 decree

involuntarily terminating her parental rights to her son, M.T., and the April

15, 2014 order changing the permanency goal to adoption. 1      After careful

review, we affirm.

        The relevant factual and procedural history, as gleaned from the

certified record, follows. M.T. was born in March 2009, at which time he and

Mother tested positive for cocaine. N.T., 4/15/14, at 3. In July 2009 when

M.T. was four months old, he was placed in the custody of the Philadelphia



*
    Retired Senior Judge assigned to the Superior Court.
1
  The trial court entered a separate decree on April 15, 2014, involuntarily
terminating the parental rights of M.T.’s unknown father.
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Department of Human Services, Children and Youth Division (DHS). Id. at

4.   On November 15, 2013, DHS filed a petition for a goal change to

adoption. On November 20, 2013, DHS filed a petition for the involuntary

termination    of   Mother’s   parental   rights   pursuant   to   23   Pa.C.S.A.

§ 2511(a)(1), (2), (5), (8), and (b). A hearing was held on the petitions on

April 15, 2014, during which DHS presented the testimony of its caseworker,

Ebony Boyd; William Russell, Ph.D., who performed a parenting capacity

evaluation; and Rachel Spalding, a social worker at Bethanna foster care

agency. In addition, Mother testified on her own behalf.

      On April 15, 2014, the trial court entered a decree involuntarily

terminating Mother’s parental rights. By separate order also dated April 15,

2014, the court changed M.T.’s permanency goal to adoption. On May 14,

2014, Mother timely filed a notice of appeal from the April 15, 2014 decree

and order, as well as a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).           On

June 16, 2014, the trial court filed its Rule 1925(a) opinion.

      On appeal, Mother presents the following issue for our review.

              Whether the [trial] court erred in terminating
              Mother’s parental rights and in changing the FSP
              goal to adoption where Mother completed her FSP
              objectives and the evidence was not clear and
              convincing in support of terminating Mother’s
              parental rights?




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Mother’s Brief at 4.2

      We review the decree involuntarily terminating Mother’s parental

rights to M.T. according to the following standard of review.

            [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)].
            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


2
   Mother’s argument on appeal is confined to the April 15, 2014 decree
involuntarily terminating her rights to M.T. In her brief, Mother fails to
develop any argument concerning the goal change with discussion and
citation to the statute and case law. Thus, to the extent Mother attempts to
advance a challenge to the order changing the goal to adoption, we find said
issue waived. We have stated, “Appellate arguments which fail to adhere to
these rules may be considered waived, and arguments which are not
appropriately developed are waived.           Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (citations omitted). See also In re W.H., 25 A.3d 330, 339
n.3 (Pa. Super. 2011) (holding that “where 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[]”), appeal denied, W.H. v. L.B., 24 A.3d 364 (Pa. 2011).


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J-A30021-14


            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., [supra]. 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, 826–827 (Pa. 2012) (parallel citations

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

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J-A30021-14


           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), citing

23 Pa.C.S.A. § 2511. The burden is on the petitioner to prove by clear and

convincing evidence that the asserted statutory grounds for seeking the

termination of parental rights are valid.    In re R.N.J., 985 A.2d 273, 276

(Pa. Super. 2009).

      Instantly, we conclude the trial court properly terminated Mother’s

parental rights pursuant to Section 2511(a)(2) and (b), which provide as

follows.

           § 2511. Grounds for involuntary termination

           (a) General Rule.—The rights of a parent in regard
           to a child may be terminated after a petition filed on
           any of the following grounds:

                                     …

                 (2)   The    repeated   and    continued
                 incapacity, abuse, neglect or refusal of
                 the parent has caused the child to be
                 without essential parental care, control
                 or subsistence necessary for his physical
                 or mental well-being and the conditions
                 and causes of the incapacity, abuse,
                 neglect or refusal cannot or will not be
                 remedied by the parent.

                                         …

           (b)   Other      considerations.--The      court   in
           terminating the rights of a parent shall give primary

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J-A30021-14


            consideration to the developmental, physical and
            emotional needs and welfare of the child. The rights
            of a parent shall not be terminated solely on the
            basis of environmental factors such as inadequate
            housing, furnishings, income, clothing and medical
            care if found to be beyond the control of the parent.
            With respect to any petition filed pursuant to
            subsection (a)(1), (6) or (8), the court shall not
            consider any efforts by the parent to remedy the
            conditions described therein which are first initiated
            subsequent to the giving of notice of the filing of the
            petition.

23 Pa.C.S.A. § 2511(a)(2), (b); see also In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc) (stating that this Court need only agree with

any one subsection of Section 2511(a), in addition to Section 2511(b), in

order to affirm the termination of parental rights), appeal denied, 863 A.2d

1141 (Pa. 2004).

     To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements.

            (1) repeated and continued incapacity, abuse,
            neglect or refusal; (2) such incapacity, abuse,
            neglect or refusal 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 [of parental rights under Section

2511(a)(2)] due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct. To the contrary, those grounds may

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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).

      With respect to Section 2511(b), this Court has explained the requisite

analysis as follows.

            Subsection 2511(b) focuses on whether termination
            of    parental    rights  would    best   serve   the
            developmental, physical, and emotional needs and
            welfare of the child. In In re C.M.S., 884 A.2d
            1284, 1287 (Pa. Super. 2005), this Court stated,
            “Intangibles such as love, comfort, security, and
            stability are involved in the inquiry into the needs
            and welfare of the child.” In addition, we instructed
            that the trial court must also discern the nature and
            status of the parent-child bond, with utmost
            attention to the effect on the child of permanently
            severing that bond. Id. However, in cases where
            there is no evidence of a bond between a parent and
            child, it is reasonable to infer that no bond exists.
            In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
            2008). Accordingly, the extent of the bond-effect
            analysis necessarily depends on the circumstances of
            the particular case. Id. at 763.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      On appeal, Mother argues the trial court abused its discretion in

terminating her parental rights because she completed her Family Service

Plan (FSP) objectives. Mother’s Brief at 11. Further, Mother asserts the trial

court erred by relying on evidence not of record. Id. Specifically, Mother

argues the trial court set forth factual findings in its Rule 1925(a) opinion

that were alleged by DHS in its petition for the involuntary termination of

Mother’s parental rights, but not made a part of the record. Id. at 13. Upon

careful review, we reject Mother’s claims.

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J-A30021-14


      Ebony Boyd, the DHS caseworker, testified that DHS established the

following initial FSP goals for Mother: to participate in a drug and alcohol

evaluation, a mental health evaluation, parenting education, visitation with

M.T., and any recommended drug and alcohol and mental health treatment.

N.T. 4/15/14, at 4.      DHS subsequently added FSP goals for Mother to

participate in M.T.’s mental health treatment and in M.T.’s Individual Service

Plan (ISP) goals.3 Id. at 5.

      It is undisputed that Mother complied with her FSP goals to participate

in parenting education, drug and alcohol treatment, and supervised

visitation.4 Id. at 5-7. Indeed, the testimony reveals that Mother has been

clean and sober for approximately three or four years.                Id. at 28.

Nevertheless,   Boyd     testified   that,   although   she   requested   Mother’s

participation in M.T.’s mental health therapy and treatment, Mother has

failed to participate.    Id. at 7-9.        Further, Boyd testified that, to her

knowledge, Mother has not participated in M.T.’s ISP goals.          Id. at 9-10.

3
   The record reveals that M.T. was diagnosed with Attention Deficit
Hyperactive Disorder in late 2012. N.T., 4/15/14, at 7. M.T. also suffers
from anxiety. Id. at 20. Boyd testified that, when M.T. becomes anxious,
he “starts to bite the skin off his fingers[,] and he bites his nails down until
they bleed.” Id. at 20. M.T. receives weekly individual therapy. Id. at 19.
Further, he takes prescribed medication for his mental health problems. Id.
4
  Notably, with respect to Mother’s visits with M.T., Boyd testified that, in
March 2011, they progressed from supervised to unsupervised visits in the
community. N.T., 4/15/14, at 12. However, in May 2013, the visits became
supervised based on an allegation by M.T. that Mother had punched him in
the stomach, in the arm, and in the leg. Id. at 12, 14. DHS substantiated
M.T.’s allegation based only on his report. Id. at 22-23. The visits have
remained supervised ever since.
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Boyd testified with respect to whether Mother understands M.T.’s mental

health issues as follows.

            Q. Do you think that [Mother] has an understanding
            about [M.T.’s] issues currently if reunification or
            even unsupervised visits were to occur?

            A. No … Because even if you try to talk to her about
            past issues with [M.T.] acting out which led to him
            being tested, being evaluated, and going into
            treatment, she still really doesn’t want to address it.
            She just wants to say those are issues that
            happened in the past and she’s just moving forward.

                                      …

            Q. And does this concern you, as the DHS social
            worker, when we’re talking about reunification or
            even unsupervised visits?

            A. Yes.

            Q. Why is it?

                                      …

            A. Because in order for [M.T.] to return to [Mother’s]
            care she’s go[ing to] have to understand that [M.T.
            is] go[ing to] continue to have issues even if he’s
            reunified because he’s been in placement so long,
            and he’s going to continue to have behavioral
            concerns that are go[ing to] need to be addressed,
            and she has to understand how to address it, how to
            help him address the issues, and how to address the
            issues herself.

Id. at 8-9. Finally, Boyd testified that Mother has not complied with the FSP

goal regarding her own mental health treatment in that she was most

recently attending therapy on a monthly basis only, rather than on a weekly

basis, as her goal required. Id. at 10-11.

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      William Russell, Ph.D., the director of the psychiatric outpatient clinic,

Assessment and Treatment Alternatives (ATA), testified that he performed a

parenting capacity evaluation on Mother in January 2014 and concluded that

Mother is not “up to the challenge of providing for [the] safety or

permanency of [M.T.].”     Id. at 39.   Dr. Russell testified that Mother had

mental health issues including, but not limited to, “long-standing substance

abuse history which is in remission. … Her ongoing self-reported problems

with sleep and feeling depressed.”      Id. at 35.   Dr. Russell testified that

Mother “reported receiving medication for attention deficit disorder,” and

that she reported receiving medication for her sleep problem. Id. However,

he testified that Mother reported “a significant problem remembering to take

her medication.” Id. at 36.

      Moreover, Dr. Russell testified that the medications Mother reported

taking, Adderall and Alprazolam, an amphetamine and benzodiazepine, are

highly addictive and “extremely concerning for anyone with substance

history….”    Id. at 41-42.    He also testified that Mother reported the

prescriptions direct her to take the medications as needed, and he testified

“[t]here are a whole host of issues that could crop up from the intermingling

of those two medications on an as-needed basis.” Id. at 42. For instance,

Dr. Russell described potential problems including “you could go into a

period of stupor, [ ] you could go into a blackout, [ ] you could hit a period

of sort of psycho motor retardation and fall asleep[.]” Id. at 42. Dr. Russell


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J-A30021-14


testified that Mother’s self-reported sleep problems are a “very common side

effect of flipping amphetamines and benzodiazepine[]s[.]” Id. at 43.

      Based on the foregoing testimonial evidence, we conclude that DHS

produced clear and convincing evidence that Mother’s repeated and

continued incapacity has caused M.T. to be without essential parental care,

control or subsistence necessary for his physical or mental well-being for the

entire five years of his life.   Further, the causes of Mother’s incapacity

cannot or will not be remedied. Therefore, Mother’s issue on appeal fails.

      In light of the requisite bifurcated analysis regarding the involuntary

termination of parental rights, we next review the decree pursuant to

Section 2511(b). With respect to the relevant bond analysis, our Supreme

Court confirmed that, “the mere existence of a bond or attachment of a child

to a parent will not necessarily result in the denial of a termination petition.”

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). The Court further stated that,

“[c]ommon sense dictates that courts considering termination must also

consider whether the children are in a pre-adoptive home and whether they

have a bond with their foster parents.”        Id. at 268 (citation omitted).

Moreover, the Court directed that, in weighing the bond considerations

pursuant to section 2511(b), “courts must keep the ticking clock of

childhood ever in mind.” Id. at 269. The Court observed that, “[c]hildren

are young for a scant number of years, and we have an obligation to see to




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their healthy development quickly.     When courts fail … the result, all too

often, is catastrophically maladjusted children.” Id.

      Instantly, Boyd testified as follows, regarding the fact that M.T. has

lived with the same foster parents since placement, and that they are a pre-

adoptive resource. Id. at 17.

            Q. [ ] [D]o you believe [M.T.] would suffer any
            irreparable harm if mother’s parental rights are
            involuntarily terminated?

            A. No, I don’t, because I believe he’s getting what he
            needs with his foster parents.        He’s very, very
            bonded to them. They’re making sure that his needs
            are met. They make sure that he’s attending his
            therapy, he’s receiving his medications like he’s
            supposed to. So, I don’t think that there would be
            any irreparable damage if he remains with his foster
            parents, I don’t.

Id. at 17-18.    In addition, Boyd, who visits M.T. monthly, at minimum,

testified he becomes anxious and upset upon the mere mention of Mother.

Id. at 14. Specifically, she noted that “just the mention of his mother [M.T.]

starts to bite the skin off his fingers, he starts to bite his nails and he gets

this anxiety and he gets so upset just in mentioning her.” Id.

      Likewise, Rachel Spalding, a social worker at Bethanna foster care

agency who supervises Mother’s visits with M.T., testified as follows.

            Q. Do you believe        [M.T.] would be harmed,
            irreparably harmed,      if mother’s rights were
            terminated today?

            A. No.

            Q. Why is that?

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J-A30021-14



             A. I do not see that [M.T.] has a bond with his
             mother. He’s never, as I stated, had any problems
             separating from her, but does show a great amount
             of distress when being separated from the foster
             parents.

Id. at 70.    Further, Spalding testified she believes that M.T. would be

harmed if he was separated from his foster parents.      Id.   In light of the

testimony of Boyd and Spalding, we conclude that terminating Mother’s

parental rights would best serve the developmental, physical, and emotional

needs and welfare of M.T. pursuant to Section 2511(b).

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

discretion when it involuntarily terminated Mother’s parental rights pursuant

to Section 2511(a)(2) and (b). See S.P., supra. Accordingly, we affirm the

trial court’s April 15, 2014 order and decree.

      Order affirmed. Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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