J-S44045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: N.M.P., a        :    IN THE SUPERIOR COURT OF
Minor                                :           PENNSYLVANIA
                                     :
                                     :
                                     :
                                     :
APPEAL OF: A.V.P., Mother            :         No. 3657 EDA 2015
                                     :
            Appeal from the Decree entered October 27, 2015
          in the Court of Common Pleas of Philadelphia County
            Family Court at No(s): CP-51-AP-0000257-2015,
                        CP-51-DP-0002517-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JUNE 30, 2016

       A.V.P. (“Mother”) appeals from the Decree granting the Petition filed

by the Philadelphia Department of Human Services (“DHS”), seeking to

involuntarily terminate Mother’s parental rights to her son, N.M.P. (born in

August of 2013) (hereinafter, “Child”), pursuant the Adoption Act, 23

Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and to change Child’s

permanency goal from reunification to adoption, pursuant to the Juvenile

Act, 42 Pa.C.S.A. § 6351.1 We affirm.

       On April 27, 2015, DHS filed the Petition to terminate Mother’s

parental rights to Child (hereinafter, “the Petition”). The trial court held an
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1
   In a separate Decree entered on October 27, 2015, the trial court
terminated the parental rights of Child’s unknown father. Additionally, the
trial court entered an Order, on that same date, withdrawing the Petition for
involuntary termination that DHS had filed against J.J., who was previously
designated as Child’s father, as there is no father listed on Child’s birth
certificate.
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evidentiary hearing on the Petition on October 27, 2015.              At the hearing,

DHS presented the testimony of Melanie Handberry (“Handberry”), the

Associacion Puertorriquenos en Marcha (“APM”) – Community Umbrella

Agency (“CUA”) supervisor. N.T., 10/27/15, at 9. DHS then presented the

testimony of Bessie Lee, the DHS social worker assigned to the case. Id. at

36. Mother testified on her own behalf. Id. at 38.

        The trial court found that Mother has another child, N., and Mother’s

rights were terminated as to N. on June 13, 2013.               Trial Court Opinion,

12/29/15, at 1; N.T., 10/27/15, at 9.2 Additionally, the trial court noted that

Judge     Walter    Olszewski     previously     made   a   finding   of   aggravated

circumstances regarding Child on June 17, 2014, based on the termination

of Mother’s parental rights to N. Trial Court Opinion, 12/29/15, at 1; N.T.,

10/27/15, at 9.

        The trial court set forth the remaining factual background and

procedural history as follows:

        On [December 20,] 2013[, Child, who was approximately three
        months old,] arrived at St. Christopher’s Hospital [in
        Philadelphia] dehydrated and losing weight.       Mother was
        incoherent and unable to respond. DHS [thereafter] obtained
        [an Order of protective custody concerning Child,] and sought
        emergency placement. (N.T.[, 10/27/15, at] 10);

        [On] January 7, 2014[, Child] was adjudicated [d]ependent[,
        and committed to the care of DHS.] ([Id. at] 11);


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2
    N. was adopted by Child’s maternal aunt and uncle. N.T., 10/27/15, at 33.


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       [On] January 17, 2014[, a permanency] planning [meeting was
       conducted, wherein DHS] set goals for [M]other to attend mental
       health treatment and seek reunification. Mother was invited to
       [the] planning meeting[, but] failed to appear.           Mother’s
       objectives were to attend mental health services at CO[MH]AR,[3]
       [] attend [the Clinical Evaluation Unit (“CEU”)] for a drug screen
       [and] assessment[, have a Behavioral Health Services] consult
       and evaluation, comply with CUA services[,] and … comply with
       court[-]ordered visitation. ([Id. at] 12);

       Mother failed to attend drug and alcohol treatment[.] ([Id. at]
       13);

       [On] April [20,] 2014[,] Mother appeared at CEU for [a] drug
       screen[;] she tested positive for [m]arijuana and PCP. [Mother
       t]hen never appeared for another assessment or drug screen[.]
       ([Id.]);

       Mother [participated in mental health [treatment] at CO[MH]AR
       and PATHWAYS. She was discharged from CO[MH]AR after an
       altercation with staff. She was also discharged from PATHWAYS
       for non[-]compliance. Mother [has] a mental health diagnosis of
       [bip]olar disorder and [s]chizophrenia[.] ([Id. at] 13-14);

       Mother attended supervised visitation with [C]hild for 2-3
       months. This visitation was suspended in April 2014[,] after
       [M]other attempted to stuff [C]hild down her pants and leave
       the [CUA] building[.] ([Id. at] 15).

       [Also in April 2014, Child was placed with his pre-adoptive foster
       mother, with whom Child currently resides. Id. at 18-19.]

       Mother was offered reinstatement of visitation if she complied
       with a parenting capacity evaluation[; however,] [M]other
       refused[.] ([Id.] at 15);

       [Mother’s visitation of Child was reinstated in February 2015;
       however, she never requested to visit Child. Id. at 60.]


____________________________________________


3
   COMHAR (the Community Organization for Mental Health and
Rehabilitation) is a mental health treatment facility located in Philadelphia.


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       Mother has been minimally cooperative with CUA, resurfacing
       periodically to supply contact information[,] but [she] then
       [would] not respond to agency attempts to communicate[.]
       ([Id. at] 16);

       Mother has never completed any of her single case plan
       objectives[.] ([Id.]);

       As of [the] date of [the] termination hearing, [October 27, 2015,
       C]hild has had no interaction with [M]other since her attempt to
       abduct him … in April 2014 [(]or 18 months[.)] ([Id.]);

       Child is thriving in [his] foster home and has bonded with [his]
       foster family[.] ([Id. at] 17-19);

       Mother has also failed to appear at court hearings for goal
       changes and reviews[.] ([Id. at] 54).

Trial Court Opinion, 12/29/15, at 1-2 (footnote added).

       On October 27, 2015, the trial court entered the Decree terminating

Mother’s parental rights pursuant to 2511(a)(1), (2), (5), (8), and (b) of the

Adoption Act, and an Order changing Child’s permanency goal to adoption

pursuant to section 6351 of the Juvenile Act.          On November 30, 2015,

Mother timely filed a Notice of Appeal from the Decree and Order pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b).4

       Mother now presents the following issues for our review:

       A. Whether the [trial] court erred in failing to find that for the six
       months immediately preceding the filing of the [P]etition, when
       [Child] was bonded with [Mother], when [Child’s] other siblings
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4
  We note that the appeal is timely, as the thirtieth day following the entry of
the Decree fell on a court holiday, when the court was closed. See Pa.R.A.P.
903(a) (providing that a notice of appeal shall be filed within 30 days after
the entry of the order from which the appeal is taken); 1 Pa.C.S.A. § 1908
(regarding computation of time).


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       were placed in New Jersey with an aunt, who was granted
       [Permanent Legal Custodianship (“PLC”)], and when [] [M]other
       made efforts towards completing a parenting class, stabilizing
       her mental health issues, seeking housing for herself and
       [Child], and was visiting with [Child], and did not intend to
       relinquish her claim to [Child] or refused and/or failed to perform
       parental duties[?]

       B. Whether the [trial] court erred in failing to find that for the six
       months immediately preceding the filing of the [P]etition,
       [M]other had consistent contact and visits with [Child], when
       [Child] was bonded with her, when [Child’s] other siblings were
       placed in New Jersey with an aunt, who was granted PLC, and
       when [] [M]other made efforts towards completing a parenting
       class, stabilizing her mental health issues, seeking housing for
       herself and [Child], and was visiting with [Child?]

       C. Whether the [trial] court erred in finding that there were
       repeated and continuing findings of incapacity, abuse, neglect
       and/or dependency of [Child] by [Mother], when [Child] was
       bonded with her, when [Child’s] other siblings were placed in
       New Jersey with an aunt, who was granted PLC, and when []
       [M]other made efforts towards completing a parenting class,
       stabilizing her mental health issues, seeking housing for herself
       and [Child], and was visiting with [Child?]

       D. Whether the [trial] court erred in finding that the conditions
       which led to the removal or placement of [Child] continue to
       exist, as to father,[5] when [Child] was bonded with [Mother],
       when [Child’s] other siblings were placed in New Jersey with an
       aunt, who was granted PLC, and when [] [M]other made efforts
       towards completing a parenting class, stabilizing her mental
       health issues, seeking housing for herself and [Child], and was
       visiting with [Child?]


       E. Whether the [trial] court erred in finding that the conditions
       which led to the removal or placement of [Child] continue to
       exist and termination of parental rights would best serve the
       needs and welfare of [Child], when [] [M]other can remedy the
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5
  Mother’s isolated reference in her issue to “father” appears to be a
typographical error. Child’s unknown father is not a party to this appeal.


                                           -5-
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       conditions within a reasonable period of time, and when [Child]
       was bonded with [Mother], when [Child’s] other siblings were
       placed in New Jersey with an aunt, who was granted PLC, and
       when [] [M]other made efforts towards completing a parenting
       class, stabilizing her mental health issues, seeking housing for
       herself and [Child], and was visiting with her [Child?]

       F. Whether the [trial] court erred in finding that DHS made[]
       reasonable efforts toward reunification, by either failing and/or
       refusing to help find a viable option or to consider options other
       than terminating [M]other’s parental rights, when [Child] was
       bonded with her, when [Child’s] other siblings were placed in
       New Jersey with an aunt, who was granted PLC, and when []
       [M]other made efforts towards completing a parenting class,
       stabilizing her mental health issues, seeking housing for herself
       and [Child], and was visiting with [Child?]

       G. Whether the [trial] court erred in terminating the rights of
       [M]other, when the sole reason she was unable to obtain
       housing, [and] provide medical care for the care and
       maintenance of [Child], was her lack of income[?]

       H. Whether the [trial] court erred in terminating the rights of []
       [M]other where it was not supported by clear and convincing
       evidence and not in the best interests of [Child], and there was a
       bond between [] [M]other and [C]hild[,] and the termination of
       parental rights would have a negative effect on the
       developmental, physical and emotional needs of [Child],
       pursuant to 23 P[a.C.S.A.] Section 2511(b)[?]

Mother’s Brief at 3-4 (footnote added).6 We will address Mother’s related


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6
  Mother waived any challenge concerning the trial court’s changing of
Child’s permanency goal from reunification to adoption, pursuant to the
Juvenile Act, 42 Pa.C.S.A. § 6351, by failing to include this issue in her
court-ordered Rule 1925 Concise Statement and Statement of Questions
Involved portion of her brief.        See Krebs v. United Ref. Co. of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his or her concise
statement of errors complained of on appeal and the statement of questions
involved in his or her brief on appeal).


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issues together.

      In reviewing an appeal from an order terminating parental rights, we

adhere to 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. … [O]ur 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. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion.

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

      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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “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.” Id. (citation and quotation marks omitted).

      The trial court terminated Mother’s parental rights under section

2511(a)(1), (2), (5), (8), and (b).   This Court may affirm the trial court’s

decision regarding the termination of parental rights with regard to any one

subsection of section 2511(a), along with a consideration of section 2511(b).

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

we will focus on section 2511(a)(2) and (b), which provide as follows:

      § 2511. Grounds for involuntary termination


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     (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 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).

     Concerning the termination of parental rights based upon a finding of

parental incapacity under section 2511(a)(2), our Pennsylvania Supreme

Court has stated that

     [a] decision to terminate parental rights, never to be made
     lightly or without a sense of compassion for the parent, can
     seldom be more difficult than when termination is based upon
     parental incapacity. The legislature, however, in enacting the
     1970 Adoption Act, concluded that a parent who is incapable of
     performing parental duties is just as parentally unfit as one who
     refuses to perform the duties.




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In re Adoption of S.P., 47 A.3d at 827 (citation omitted). In accordance

with the Adoption Act, a parent is required to make diligent efforts towards

the reasonably prompt assumption of full parental responsibilities.         In re

A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A parent’s vow to cooperate,

after a long period of uncooperativeness regarding the necessity or

availability   of   services,   may   properly   be   rejected   as   untimely    or

disingenuous. Id. at 340.

      Additionally, a child’s life “simply cannot be put on hold in the hope

that [a parent] will summon the ability to handle the responsibilities of

parenting.”    In re Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010) (citation

omitted). Rather, “a parent’s basic constitutional right to the custody and

rearing of his child is converted, upon the failure to fulfill his or her parental

duties, to the child’s right to have proper parenting and fulfillment of his or

her potential in a permanent, healthy, safe environment.” In re B., N.M.,

856 A.2d 847, 856 (Pa. Super. 2004).

      Mother contends that the trial court abused its discretion by

terminating her parental rights under section 2511(a)(2) because she (1)

was consistently visiting and bonded with Child; (2) obtained mental health

treatment and “has addressed her mental health issues”; (3) participated in

drug and alcohol treatment; (4) was working towards completion of her

single case plan objectives; (5) did not intend to relinquish her claim to

Child; and (6) did not refuse and/or fail to perform parental duties.            See

Mother’s Brief at 7, 13. Additionally, Mother contends that she “certainly did

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not want to lose the contact she was having with [Child] and hoped [Child]

would be placed with family members.”           Id. at 12; see also id. at 13;

(asserting that Mother “has shown continued positive intent in establishing a

home for her and [Child] and assuming her parental responsibilities[,] or[,]

in the alternative, to have [Child] reside with family members and

siblings.”).

      The trial court assessed the evidence regarding Mother’s repeated

incapacity to parent Child, and her inability to remedy the conditions and

causes of her incapacity to parent Child. See Trial Court Opinion, 12/29/15,

at 4. The court additionally pointed out that Mother (1) failed to meet her

single case plan objectives; (2) had a positive result for drugs in one of her

drug screens, after which she stopped attending scheduled screens; (3) was

minimally compliant with her mental health treatment for her bipolar

disorder and schizophrenia, and was discharged from two mental health

providers      for   non-compliance   and   aggressive    conduct;   (4)   attended

supervised visitation for only 2-3 months, until visitation was revoked after

she had attempted to abduct Child; (5) did not seek reinstatement of her

visitation rights; (6) has been minimally compliant with CUA; and (7) has

not seen Child for approximately 18 months, the last time being when Child

was only approximately seven months old.          Id.    The trial court expressed

“grave concern about [M]other’s ability to provide the level of protection,

security and stability that [] [C]hild needed ….” Id. at 3.



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       Our review discloses that the evidence supports the trial court’s

determination that the repeated and continued incapacity of Mother has

caused 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 cannot or will not be remedied by Mother. Further,

the court’s legal conclusions are not the result of an error of law or an abuse

of discretion.    We therefore affirm the trial court’s decision with regard to

section 2511(a)(2). See In re Adoption of S.P., 47 A.3d at 826-27.

       Additionally, Mother contends that DHS did not make reasonable

efforts to avoid the termination of her parental rights. See Mother’s Brief at

13. However, our Supreme Court has held that the trial court is not required

to consider reasonable efforts in relation to a decision to terminate parental

rights under section 2511(a)(2).          In re D.C.D., 105 A.3d 662, 675 (Pa.

2014). Thus, Mother’s argument does not entitle her to relief.7

       Next, we review the termination of Mother’s parental rights under

section 2511(b).

       [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]he determination of
       the child’s “needs and welfare” requires consideration of the
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7
  Moreover, contrary to Mother’s claim, the record indicates that DHS had
considered Child’s maternal aunt and uncle as a possible kinship placement
resource for Child. See N.T., 10/27/15, at 30-31, 33.


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      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 251, 267 (Pa. 2013) (some citations and quotation

marks omitted).

      Mother asserts that she maintained contact with Child and made

progress to alleviate the problems that led to Child being placed in care.

Mother’s Brief at 15.   Mother claims she attended drug and mental health

programs and had supervised visits with Child.       Id.   According to Mother,

there was very little evidence that the bond between her and Child has been

broken, and there was scant testimony concerning the likely effect on Child

from severing any bond that might exist. Id. Mother argues that, without

evidence of the impact that termination would have on Child, the trial court

could not conduct a proper section 2511(b) analysis.          Id.   Additionally,

Mother points out that there was no expert testimony presented regarding

Child’s best interests, as to Child’s physical, intellectual, moral, and spiritual

well-being. Id. She further asserts that there was no expert testimony as

to the relationship, interaction, and bond between Mother and Child.          Id.

Mother urges that, “[g]iven the circumstances of the family and the efforts

that all parties put forth for the family,” Child’s interests would be best

served by (1) the denial of the Petition; (2) a remand for testimony and

evidence concerning the bond between Mother and Child; or (3) in the

alternative, to explore his placement with family and siblings. Id. at 15-16.



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       We have stated that, in conducting a bonding analysis, the court is not

required to use expert testimony, but may rely on the testimony of social

workers and caseworkers.          In re Z.P., 994 A.2d at 1121. This Court has

also has observed that no bond worth preserving is formed between a child

and a natural parent where the child has been in foster care for most of the

child’s life, and the resulting bond with the natural parent is attenuated. In

re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).              Additionally, it is

appropriate to consider a child’s bond with his or her foster parent. In re

T.S.M., 71 A.3d at 268.

       In the present matter, the trial court considered the needs and welfare

of Child, and set forth its bond-effect analysis.     See Trial Court Opinion,

12/29/15, at 5. The court found that “the testimony established [that C]hild

would not suffer any irreparable emotional harm if [] [M]other’s parental

rights were terminated. Furthermore, [Handberry] testified that … [Child] is

thriving in [his] foster home and has bonded with [his] foster family.” Id.;8

see also In re K.Z.S., supra (stating that no bond worth preserving is

formed between a child and a parent where the child has been in foster care

for most of the child’s life); In re T.S.M., supra.



____________________________________________


8
  Handberry testified that (1) Child has resided with his pre-adoptive foster
family for 18 months, which comprises most of his life; (2) Child is bonded
with his foster mother, whom he calls “mommy”; and (3) to remove Child
from her care would cause Child serious harm. N.T., 10/27/15, at 18-19.


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      The record reflects that that the trial court properly considered the

best interests of Child in rendering its decision to terminate Mother’s

parental rights.   As the trial court’s 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, we affirm the trial court’s decision with regard to

section 2511(b). See In re Adoption of S.P., 47 A.3d at 826-27.

      Accordingly, we affirm the Decree terminating Mother’s parental rights,

and changing Child’s goal to adoption.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2016




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