J-S65032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: S.M.W., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :         PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: T.E.B., MOTHER                  :      No. 2025 EDA 2017


                  Appeal from the Order Entered May 25, 2017
      in the Court of Common Pleas of Philadelphia County Family Court at
           No(s): CP-51-AP-0000098-2017, CP-51-DP-0003369-2015

BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 21, 2017

        T.E.B. (“Mother”) appeals from the Order involuntarily terminating her

parental rights to her minor daughter, S.M.W. (“Child”), born in December

2015, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b)1 of the

Adoption Act.2 We affirm.

        In December 2015, the Philadelphia Department of Human Services

(“DHS”) filed an Application for Protective Custody for Child after she and

Mother tested positive for marijuana and cocaine at Child’s birth.        In its

Application, DHS also averred that Mother had a history of substance abuse


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1
  The trial court entered a separate Order terminating the parental rights of
Child’s father, J.R.W. (“Father”).      Father has separately appealed the
termination of his parental rights, which is docketed at 2024 EDA 2017.

2
    23 Pa.C.S.A. § 2101-2938.
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and mental health issues, was noncompliant in her mental health treatment,

and that Mother’s five other children had already been removed from her care.

DHS additionally alleged that Mother had a life-threatening health condition

and was noncompliant in taking her medication to treat the condition.3 The

trial court granted the Application, and Child was placed in foster care. Child

remained in foster care pursuant to a shelter-care Order entered on December

30, 2015. On January 14, 2016, following the filing of a DHS Petition, the trial

court adjudicated Child dependent. Subsequently, following a hearing, the

trial court found aggravated circumstances and entered an Order on April 21,

2016, relieving DHS of its obligation to make reasonable efforts to reunite

Mother and Child.

        On January 25, 2017, DHS filed a Petition to involuntarily terminate

Mother’s parental rights to Child.        Following several continuances, the trial

court conducted a termination hearing on May 25, 2017.               Following the

hearing, the trial court entered an Order terminating Mother’s parental rights

to Child. The trial court also changed Child’s permanency goal from

reunification to adoption.4

        Mother timely filed a Notice of Appeal, along with a Pa.R.A.P.

1925(a)(2)(i) and (b) Concise Statement.



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3
    Mother has Human Immunodeficiency Virus (“HIV”). N.T., 5/25/17, at 13.

4
    Mother did not file an appeal from this determination.

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      On appeal, Mother presents the following questions 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)(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.A. [§] 2511(a)(2)[,] where [M]other presented
         evidence that she has remedied her situation by attending
         parenting [classes], and continuing to receive drug treatment
         and mental health treatment[, and] Mother has the present
         capacity to care for [] [C]hild[?]

      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)(5)[,] where evidence was provided to
         establish that [] [C]hild was removed from the care of []
         [M]other, and that [M]other is now capable of caring for []
         [C]hild[?]

      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(a)(8)[,] where evidence was presented to
         show that [M]other is now capable of caring for [] [C]hild since
         she has completed parenting [classes] and continues her drug
         treatment and 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.A. [§] 2511(b)[,] where evidence was presented that
         established that [M]other consistently visited [Child] twice a
         week[,] and [Child] had a parental bond with [] [M]other[?]

Mother’s Brief at 7.

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

adhere to the following standard:




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      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 quotation marks

omitted).

      Termination of parental rights is controlled by section 2511 of the

Adoption Act. See 23 Pa.C.S.A. § 2511. The burden rests 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). 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). In the instant case,

the trial court terminated Mother’s parental rights under section 2511(a)(1),

(2), (5), (8), and (b). We will focus on sections 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:

                                      ***


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       (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), (5) 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).

               In order to terminate parental rights pursuant to 23
      Pa.C.S.A § 2511(a)(2), the following three elements must be met:
      (1) repeated and continued incapacity, abuse, neglect or refusal;
      (2) such incapacity, abuse, neglect or refusal has caused the child
      to be without essential parental care, control or subsistence
      necessary for his physical or mental well-being; and (3) the
      causes of the incapacity, abuse, neglect or refusal cannot or will
      not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).            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 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); see also In re A.S., 11 A.3d 473, 481 (Pa. Super. 2010)

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(noting that section 2511(a)(2) “does not emphasize a parent’s refusal or

failure to perform parental duties, but instead emphasizes the child’s present

and future need for essential parental care, control or subsistence necessary

for his physical or mental well-being.”) (citation omitted).

      Mother argues that the trial court abused its discretion in terminating

her parental rights pursuant to section 2511(a)(2) because she had

“completed her FSP goals of parenting classes, housing and drug and mental

health treatment.” Mother’s Brief at 16. Mother argues that she has been

enrolled in a dual diagnosis treatment program for approximately one year,

and the only “[drug] screens presented in court were positive drug screen[s]

from 2016[,] when [M]other first began the program.”           Id.   Mother also

asserts that she can provide Child with a safe home. Id.

      In granting DHS’s petition for involuntary termination, the trial court

determined as follows:

      The record demonstrated Mother’s ongoing inability to provide
      care or control for the Child due to her ongoing drug use and her
      refusal to seek drug and mental health treatment. The [trial
      c]ourt found clear and convincing evidence that termination of
      Mother’s parental rights would be in the best interest of the Child
      pursuant to 23 Pa.C.S.A. §§ 2511(a)(1)[,](2)[,](5) and (8) and
      23 Pa.C.S.A. § 2511(b).

      At the [t]ermination [h]earing, the [Community Umbrella Agency
      (“CUA”)] Representative testified that Mother had not met her
      [stated o]bjectives. Specifically, the CUA Representative testified
      that Mother was not compliant with her outpatient drug and
      alcohol treatment. The CUA Representative testified that Mother
      consistently tested positive for controlled substances throughout
      the history of the case. The CUA Representative testified that
      Mother tested positive for marijuana and cocaine on January 14,


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      2016, February 10, 2016, and March 30, 2016.             The CUA
      Representative testified that Mother also tested positive for
      marijuana on March 18, 2016[,] and April 21, 2016. The CUA
      Representative testified that Mother had been inconsistent as to
      her parenting classes and mental health treatment. As a result,
      the CUA Representative testified that it was in the Child’s best
      interest that the goal be changed to adoption. Specifically, the
      CUA Representative testified that during visitation with the
      Child[,] Mother demonstrated an inability to give proper attention
      to the Child.      The CUA Representative testified that the
      termination of [] Mother’s parental rights would not harm the Child
      and that the Child was in a pre-adoptive home.

Trial Court Opinion, 7/21/17, at 4-5 (internal citations omitted); see also

N.T., 5/25/17, at 5-8 (wherein Gaylen Brunson (“Brunson”), the CUA

Representative assigned to Mother’s case, testified that Mother was not

compliant with the program at Chances, an outpatient substance abuse

treatment program, continued to test positive when given random drug

screens, and was noncompliant with her mental health treatment).

      Our review of the record supports the trial court’s decision.         DHS

removed Child from Mother’s care based upon Child and Mother testing

positive for marijuana and cocaine at Child’s birth, and Mother’s untreated

mental health issues. These problems rendered Mother incapable of parenting

Child at the time of her removal.    Further, Mother’s inability to produce a

negative drug screen for any appreciable amount of time supports the trial

court’s conclusion that Mother refuses to remedy the conditions that led to

Child’s placement.   Although Mother has completed a parenting class and

obtained housing, she has failed to alleviate the concerns that caused Child to

be placed in the care of DHS.      Indeed, Mother’s repeated and continued


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incapacity, neglect, or refusal to perform her parental duties has caused Child

to be without essential parental care, control or subsistence necessary for her

physical and mental well-being. Accordingly, we discern no abuse of discretion

by the trial court in terminating Mother’s parental rights pursuant to section

2511(a)(2).

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

section 2511(b). Mother contends that the trial court abused its discretion in

terminating her parental rights under section 2511(b). Mother’s Brief at 18.

Mother argues that she has visited Child twice a week. Id. at 18-19. Mother

asserts that there was no evidence that termination was in the best interests

of Child. Id. at 19.

      With respect to section 2511(b), 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). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.

Super. 2008) (en banc). Under section 2511(b), the trial court “shall give

primary consideration to the developmental, physical and emotional needs

and welfare of child.” 23 Pa.C.S.A. § 2511(b). “Intangibles such as love,

comfort, security, and stability are involved in the inquiry into needs and

welfare of the child.”   In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)

(citation omitted). The trial court must take into account whether a natural

parental bond exists between child and parent, and whether termination would

destroy an existing, necessary and beneficial relationship. In re C.S., 761


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A.2d 1197, 1202 (Pa. Super. 2000) (en banc); see also In re N.A.M., 33

A.3d at 103. “However, the extent of the bond-effect analysis necessarily

depends on the circumstances of the particular case.” In re N.A.M., 33 A.3d

at 103 (citation omitted). 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 1108, 1121 (Pa. Super.

2010); see also In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008) (stating

that although it is often wise to have a bonding evaluation and make it part

of the certified record, “[t]here are some instances … where direct observation

of the interaction between the parent and the child is not necessary and may

even be detrimental to the child.”). Further, there is no bond worth preserving

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 at 764.

      Here, Brunson testified that he believed it was in Child’s best interest to

be adopted; Child was in a pre-adoptive home; and Child would not suffer any

irreparable harm by terminating Mother’s parental rights. N.T., 5/25/17, at

9-10. Brunson pointed out that Mother could not care for Child, and Mother

had not progressed to unsupervised visits with Child. Id. at 8-9; see also id.

at 14-15 (wherein DHS’s counsel stated that Child has been in foster care for

her entire life, Mother has never cared for Child on a full-time basis, and that

termination of Mother’s parental rights was in the best interest of Child); id.


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at 15 (wherein Child’s guardian ad litem and counsel indicated that

termination was in the best interests of Child).

       The evidence within the certified record demonstrates that the

termination of Mother’s parental rights would best serve Child’s needs and

welfare because it would provide Child with the permanency and stability that

she needs in her life with her pre-adoptive family.    See Trial Court Opinion,

7/21/17, at 5. At the time of the hearing, Child had been in placement for

seventeen months, the entirety of her life. See In re K.Z.S., 946 A.2d at

764.     It serves Child’s developmental, physical and emotional needs and

welfare to terminate Mother’s parental rights since it is unclear when, if ever,

Mother will be ready to assume her parental responsibilities.        See In re

Adoption of C.L.G., 956 A.2d at 1007 (noting that courts “will not toll the

well-being and permanency of [a child] indefinitely.”); see also In re Z.S.W.,

946 A.2d 726, 732 (Pa. Super. 2008) (stating that 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.”).   The record supports the trial court’s

factual findings, and its conclusions are not the result of an error of law or an

abuse of discretion. See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa.

2012).     Therefore, we find that the evidence supports the trial court’s

conclusion regarding the termination of Mother’s parental rights to Child

pursuant to section 2511(b). Accordingly, we affirm the trial court’s Order.

       Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




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