J-S69001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.R.K., A MINOR   :    IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
                                      :
                                      :
APPEAL OF: M.K., MOTHER               :        No. 711 EDA 2015

          Appeal from the Judgment Entered February 11, 2015
          In the Court of Common Pleas of Philadelphia County
            Family Court at No(s): CP-51-DP-0001500-2011;
                        DP-51-AP-0000304-2013

IN THE INTEREST OF: T.L.K., A MINOR   :    IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
                                      :
                                      :
APPEAL OF: M.K., MOTHER               :        No. 712 EDA 2015

          Appeal from the Judgment Entered February 11, 2015
          In the Court of Common Pleas of Philadelphia County
            Family Court at No(s): CP-51-DP-0001501-2011;
                        DP-51-AP-0000302-2013

IN THE INTEREST OF: H.K., A MINOR     :    IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
                                      :
                                      :
APPEAL OF: M.K., MOTHER               :        No. 715 EDA 2015

          Appeal from the Judgment Entered February 11, 2015
          In the Court of Common Pleas of Philadelphia County
            Family Court at No(s): CP-51-DP-0025103-2010;
                        DP-51-AP-0000303-2013

IN THE INTEREST OF: B.M.K., A MINOR   :    IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
                                      :
                                      :
APPEAL OF: M.K., MOTHER               :        No. 716 EDA 2015
J-S69001-15


            Appeal from the Judgment Entered February 11, 2015
            In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-DP-0025102-2010;
                          DP-51-AP-0000301-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 23, 2015

      Appellant, M.K. (“Mother”), appeals from the judgments entered in the

Philadelphia Court of Common Pleas, which involuntarily terminated her

parental rights to her minor children, E.R.K, T.L.K, H.K., and B.M.K

(“Children”).1   Upon a thorough review of the record, we affirm.

      In its opinion, the trial court fully sets forth the relevant facts and



1
  The termination hearing for E.R.K., T.L.K., H.K., and B.M.K. ultimately
concluded on February 11, 2015, with the trial court involuntarily
terminating Mother’s parental rights.  On March 9, 2015, Mother filed
appeals at docket Nos. 711 EDA 2015, 712 EDA 2015, 715 EDA 2015, and
716 EDA 2015.

Notwithstanding the initial appeal filing date, these consolidated appeals
were not listed for disposition due to the delay in transmittal of the certified
record to this Court. The certified record was first due by April 8, 2015. On
April 22, 2015, this Court attempted to contact the trial court, but had to
leave a voicemail. On April 28, 2015, the trial court contacted this Court to
inform that they were awaiting notes of testimony yet to be transcribed. On
May 5, 2015, this Court again inquired about the status of the certified
record, and the trial court responded that the opinion and certified record
would be ready by May 19, 2015. This Court finally received both the
certified record and the opinion on May 19, 2015, causing the briefing
schedule to be delayed over one month. Further, the court granted Mother
four extensions of time within which to file a brief and each
Appellee/Participant also requested and received an extension. See In re
T.S.M., 620 Pa. 602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching
this Court for unexplained delays in disposition of cases involving at-risk
children, causing them to remain in stasis for substantial, unnecessary
time).
                                     -2-
J-S69001-15


procedural history of this case.2     Therefore, we have no reason to restate

them.

        Mother raises the following issues for our review:

           DID DHS MAKE REASONABLE EFFORTS TO ASSIST
           MOTHER IN BEING REUNITED WITH HER [CHILDREN]?

           DID [DHS] SUSTAIN [ITS] BURDEN THAT MOTHER’S
           RIGHTS SHOULD BE TERMINATED?

           DID [DHS] SUSTAIN [ITS] BURDEN REGARDING THE
           REQUIREMENTS OF 23 PA.C.S.A § 2511(B)?

(Mother’s Brief at 5).

        The standard and scope of review applicable in a termination of

parental rights case is as follows:

           When reviewing an appeal from a decree terminating
           parental rights, we are limited to determining whether the
           decision of the trial court is supported by competent
           evidence. Absent an abuse of discretion, an error of law,
           or insufficient evidentiary support for the trial court’s
           decision, the decree must stand. Where a trial court has
           granted a petition to involuntarily terminate parental
           rights, this Court must accord the hearing judge’s decision
           the same deference that it would give to a jury verdict.
           We must employ a broad, comprehensive review of the
           record in order to determine whether the trial court’s
           decision is supported by competent evidence.

           Furthermore, we note that the trial court, as the finder of
           fact, is the sole determiner of the credibility of witnesses
           and all conflicts in testimony are to be resolved by [the]
           finder of fact. The burden of proof is on the party seeking
           termination to establish by clear and convincing evidence
           the existence of grounds for doing so.

2
 The trial court’s opinion states that the first termination of parental rights
hearing occurred on October 14, 2013, when in fact, it occurred on October
14, 2014.
                                       -3-
J-S69001-15



        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        We may uphold a termination decision if any proper basis
        exists for the result reached. If the trial court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an
        opposite result.

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).

See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super.

2008) (en banc).

     DHS sought the involuntary termination of Mother’s parental rights on

the following grounds:

        § 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:

           (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.

           (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.

                                 *    *    *

                                     -4-
J-S69001-15



            (5) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency for a period of at least six months,
            the conditions which led to the removal or placement
            of the child continue to exist, the parent cannot or
            will not remedy those conditions within a reasonable
            period of time, the services or assistance reasonably
            available to the parent are not likely to remedy the
            conditions which led to the removal or placement of
            the child within a reasonable period of time and
            termination of the parental rights would best serve
            the needs and welfare of the child.

                                 *    *    *

            (8) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency, 12 months or more have elapsed
            from the date of removal or placement, the
            conditions which led to the removal or placement of
            the child continue to exist and termination of
            parental rights would best serve the needs and
            welfare of the child.

                                 *    *    *

         (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)(1), (2), (5), (8); and (b).

      “Parental rights may be involuntarily terminated where any one


                                     -5-
J-S69001-15


subsection of Section 2511(a) is satisfied, along with consideration of the

subsection 2511(b) provisions.”      In re Z.P., 994 A.2d 1108, 1117

(Pa.Super. 2010).

        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…parental rights does
        the court engage in the second part of the analysis
        pursuant to Section 2511(b): determination of the needs
        and welfare of the child under the standard of best
        interests of the child.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

     Termination under Section 2511(a)(1) involves the following:

        To satisfy the requirements of [S]ection 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. In addition,

           Section 2511 does not require that the parent
           demonstrate both a settled purpose of relinquishing
           parental claim to a child and refusal or failure to
           perform parental duties. Accordingly, parental rights
           may be terminated pursuant to Section 2511(a)(1) if
           the parent either demonstrates a settled purpose of
           relinquishing parental claim to a child or fails to
           perform parental duties.

        Once the evidence establishes a failure to perform parental
        duties or a settled purpose of relinquishing parental rights,
        the court must engage in three lines of inquiry: (1) the
        parent’s explanation for…her conduct; (2) the post-
        abandonment contact between parent and child; and (3)
        consideration of the effect of termination of parental rights
        on the child pursuant to Section 2511(b).

                                    -6-
J-S69001-15



In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted).     Regarding the six-month period prior to filing the termination

petition:

            [T]he trial court must consider the whole history of a given
            case and not mechanically apply the six-month statutory
            provision.     The court must examine the individual
            circumstances of each case and consider all explanations
            offered by the parent facing termination of…her parental
            rights, to determine if the evidence, in light of the totality
            of the circumstances, clearly warrants the involuntary
            termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005).

      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 (Pa.Super. 2002).            “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.”    Id. at 340.      The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,


                                        -7-
J-S69001-15


neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).

      “Termination of parental rights under Section 2511(a)(5) requires

that: (1) the child has been removed from parental care for at least six

months; (2) the conditions which led to removal and placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Z.P., supra at 1118.

      “[T]o terminate parental rights under Section 2511(a)(8),           the

following factors must be demonstrated: (1) the child has been removed

from parental care for [twelve] months or more from the date of removal;

(2) the conditions which led to the removal or placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266,

1275-76 (Pa.Super. 2003).

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.    In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

paying close attention to the effect on the child of permanently severing the


                                    -8-
J-S69001-15


bond.” Id. at 520. Significantly:

        In this context, the court must take into account whether a
        bond exists between child and parent, and whether
        termination would destroy an existing, necessary and
        beneficial relationship.     When conducting a bonding
        analysis, the court is not required to use expert testimony.
        Social workers and caseworkers can offer evaluations as
        well. Additionally, Section 2511(b) does not require a
        formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his parental rights terminated.” In re B.L.L., 787

A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

        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 [herself] to take and
        maintain a place of importance in the child’s life.

        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every

                                    -9-
J-S69001-15


         problem, in order to maintain the parent-child relationship
         to the best of…her ability, even in difficult circumstances.
         A parent must utilize all available resources to preserve
         the parental relationship, and must exercise reasonable
         firmness in resisting obstacles placed in the path of
         maintaining the parent-child relationship. Parental rights
         are not preserved by waiting for a more suitable or
         convenient time to perform one’s parental responsibilities
         while others provide the child with [the child’s] physical
         and emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of…her child is converted,

upon the failure to fulfill…her parental duties, to the child’s right to have

proper parenting and fulfillment of…her potential in a permanent, healthy,

safe environment.” Id. at 856.

      Importantly, neither Section 2511(a) nor Section 2511(b) requires a

court to consider at the termination stage, whether an agency provided a

parent with reasonable efforts aimed at reunifying the parent with her

children prior to the agency petitioning for termination of parental rights. In

re D.C.D., ___ Pa.___, ___, 105 A.3d 662, 672 (2014). An agency’s failure

to provide reasonable efforts to a parent does not prohibit the court from

granting a petition to terminate parental rights under Section 2511. Id. at

___, 105 A.3d at 675.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Joseph L.

Fernandes, we conclude Mother’s issues merit no relief.        The trial court

opinion comprehensively discusses and properly disposes of the questions

                                    - 10 -
J-S69001-15


presented. (See Trial Court Opinion, filed May 15, 2015, at 4-11) (finding:

(1) Mother failed to make any progress during forty-three months Children

were in placement; DHS provided Mother with Family Service Plan (“FSP”)

objectives to help Mother achieve goal of reunification, but Mother failed to

satisfy majority of those objectives; record establishes that DHS offered

reasonable and adequate services to Mother to remedy conditions that

brought Children into system, yet Mother continued to exhibit lack of

capacity to Parent; in light of Mother’s lack of improvement despite

assistance from DHS and fact that Children have been in custody of maternal

grandmother for past three and one-half years, it is in best interest of

Children to terminate Mother’s parental rights and change goal to adoption;

(2) Mother continuously failed to meet majority of her FSP objectives during

forty-three months Children were in placement, despite DHS’ efforts to make

Mother aware of those objectives; at Mother’s permanency review hearings,

court frequently found Mother minimally or moderately compliant with her

FSP objectives; DHS social worker testified she would not recommend

Mother for unsupervised visits because Mother was unable to care for all

Children at one time and Mother frequently used profanity and engaged in

age inappropriate conversations with Children; DHS social worker also stated

Mother made little progress with her FSP objectives, as shown by Mother’s

failure to complete her mental health objective and Mother’s inability to

apply what she learned in parenting classes to her interactions with


                                   - 11 -
J-S69001-15


Children; Mother continuously failed to remedy causes that brought Children

into system, and Mother is unable to provide stability Children need;

Mother’s limited success with services provided by DHS demonstrates that

Mother cannot overcome her barriers to effective parenting and Children are

no closer to reunification with Mother than when Children entered system

forty-three months ago; at this point, Children need permanency, which

Mother cannot provide; in light of Mother’s failure to remedy conditions that

brought Children into system and Mother’s inability to adequately perform

her   parental   duties,   court   concluded   sufficient   evidence   existed   for

termination of Mother’s parental rights under 23 Pa.C.S.A. § 2511(a)(1),

(a)(2), (a)(5), and (a)(8); (3) termination of Mother’s parental rights will

not cause Children to suffer irreparable harm; Children’s foster parent, their

maternal grandmother, has parent-child bond with all four Children; DHS

social worker    testified Children have       lived as family    with maternal

grandmother for last three and one-half years, and Children are doing very

well in pre-adoptive home; maternal grandmother is actively involved in

Children’s school, activities, and medical appointments, while Mother is

minimally involved in these events; Mother visits Children for only 2 hours

every Saturday and is minimally involved in Children’s lives; Mother and

Children do not share parent-child bond due to Mother’s lack of contact with

Children and termination of Mother’s parental rights would not destroy

existing and necessary relationship between Mother and Children; record


                                      - 12 -
J-S69001-15


establishes Mother’s lack of compliance with FSP objectives, Mother’s

inability to care for Children, and lack of parent-child bond between Mother

and Children, all of which justify termination of Mother’s parental rights;

thus, court correctly terminated Mother’s parental rights under Section

2511(b) and changed goal to adoption, which will best serve emotional

needs and welfare of Children). Accordingly, we affirm on the basis of the

trial court’s opinion.

       Judgments affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2015




                                   - 13 -
                                                                             Circulated 11/12/2015 11:34 AM




                           IN THE COURT OF COMMON PLEAS
                          FOR THE COUNTY OF PHILADELPHIA                     2015 MA. Y I 5 AM 11: 0 I
                               FAMILY COURT DIVISION
                                                                                  PROPROTHY
In re: In re: In the Interest ofB.K., H.K., E.K., T.K.               : CP-DP-0025102-2010
                                                                     : CP-DP-0025103-2010
                                                                     : CP-DP-OOtJl.500·-MII
                                                                     :   CP-DP:)1'0001501-2011
                                                                     :   CP-51-AP-0000301-2013
APPEAL OF: M.K., Mother                                              :   CP-51-AP-0000303-2013
                                                                     :   CP-51-AP-0000304-2013
                                                                     :   CP-51-AP-0000302-2013
                                                                     :   716 EDA 2015
                                                                     :   715 EDA 2015
                                                                     :   711 EDA 2015
                                                                     :   712 EDA 2015


OPINION

Fernandes, J.:

Appellant, M.K. ("Mother"), appeals from the orders entered on February 11, 2015, granting the
petitions filed by the Department of Human Services of Philadelphia County ("DHS") to
involuntarily terminate her parental rights to B.K. ("Child #1 "), H.K. ("Child #2), E.K. ("Child
#3"), and T.K. ("Child #4"), collectively referred to as "children", pursuant to the Adoption Act,
23 Pa.C.S.A. §2511 (a)(l), (2), (5), (8), and (b). Maureen F. Pie', Esquire, counsel for Mother,
filed a timely Notice of Appeal with a Statement of Errors Complained Of.

Factual and Procedural Background

This family initially became involved with DHS on September 25, 2009, when DHS received a
GPS report alleging that one of children's siblings had a scab on the back of his head, his clothes
were very soiled, and he had severe tooth decay. (DHS Exhibit A).                 This report was
substantiated. (DHS Exhibit A). On November 3, 2009, DHS conducted a home assessment on
Father's home, where the family was living, and DHS observed that the home was deplorable,
there was no operable gas service in the home, there was limited food in the home, there were
holes in the floor, the home was infested with rodents and roaches, and there was a strong urine
odor throughout the home. (DHS Exhibit A). DHS also observed that the children were dirty

                                             Page 1 of 11
                                                                         Circulated 11/12/2015 11:34 AM




and DHS learned that the children shared one mattress, which was dirty and smelled of urine.
(DHS Exhibit A). On November 3, 2009, a safety plan was developed stating that the children
would live with K.N., Paternal Grandmother.       Shortly thereafter, sometime in November of
2009, there was a verbal altercation between Mother and Paternal Grandmother and the family
left Paternal Grandmother's home.

On November 20, 2009, A Family Service Plan ("FSP") meeting was held. (DHS Exhibit A).
Mother's    objectives were to learn and use non-violent, non-physical discipline methods, to
provide children with adequate supervision at all times, to meet children's daily basic needs,
learn and understand age appropriate behavior and expectations for children, and to provide
adequate and safe living conditions. (DHS Exhibit A). Mother signed the FSP. (N.T. 02/06/15,
pg. 18). Subsequently, the family became transient and began living in overcrowded conditions.
(DHS Exhibit A).      In February 2010, DHS filed an urgent petition for Child #1 and Child #2.
On June 23, 2010, Child #1 and Child #2 were adjudicated dependent temporary commitment
was discharged and Child #1 and Child #2 were committed to DHS based on present inability of
parents.    Mother was ordered to begin parenting classes, to take advantage of the supports
provided by the shelter where she resided, and participate in !HIPS.    (DHS Exhibit A).       On
December 8, 2010, court supervision was terminated by the Honorable Donna Woelpper.


Throughout 2010 and 2011, Child # 1 had poor behavior in school and had a significant number
of absences from school. (DHS Exhibit A). On July 28, 2011, an Order for Protective Custody
("OPC") was obtained for Child #1, Child #2, and Child #3. On August 8, 2011, Child #1, Child
#2, and Child #3 were adjudicated dependent with DHS supervision. Child #4 remained in the
custody of Mother, with IHPS monitoring her care. (DHS Exhibit A). DHS was ordered to refer
both Parents for parenting capacity evaluations and life skills training.    (OHS Exhibit A).
Mother subsequently became transient and refused to disclose her whereabouts to DHS and
IHPS.      (DHS Exhibit A). On September 19, 2011, Child #1 was diagnosed with adjustment
disorder and history of physical abuse. (DHS Exhibit A). On October 14, 2011, DHS received a
second GPS report alleging that a Philadelphia Electric Company worker went to the family's
home to tum off the electric service and found the home to be deplorable and uninhabitable.
(DHS Exhibit A). The report stated that a two year old child opened the window shade and the
child was filthy. (OHS Exhibit A). The police arrived and transported the children in the home

                                           Page 2 of 11
                                                                              Circulated 11/12/2015 11:34 AM




to DHS. (DHS Exhibit A). The report was substantiated.          (DHS Exhibit A). On October 14,
2011, DHS obtained an OPC for Child #4.        On October 31, 2011, Child #4 was adjudicated
dependent and committed to DHS. Child #3 and Child #1 were also committed to DHS based on
present inability of parents.   The court ordered for Mother to comply with parenting capacity
evaluations, sign releases of information regarding treatment programs, and comply with all FSP
objectives. On May 2, 2012, a permanency review hearing was held and Mother was found to be
minimally compliant with her FSP objectives, Mother was ordered to comply with all scheduled
appointments   for her parenting capacity evaluation, and Mother was referred to Behavioral
Health Services ("BHS") for consultation.       (DHS Exhibit A).       On May 3, 2012, and on
September 12, 2012, FSP meetings were held. The gtHtt far ehildren      V\>"ftS   te "retttm te pareftt:."
Mother's objectives remained the same with additional objectives added: to stabilize mental
health problems by participating in a psychological evaluation, comply with the evaluation's
treatment recommendations,      sign releases of information regarding mental health treatment,
understand how and why the children were injured, address deficits around mastery of age
appropriate developmental tasks by participating in the children's behavioral health services, and
maintain regular visits with children. (DHS Exhibit A). Mother attended the FSP meetings and
signed the FSP. (DHS Exhibit A). On July 19, 2012, Mother completed an intake appointment
with COMHAR but failed to follow up with treatment.           (DRS Exhibit A). On November 1,
2012, a permanency hearing was held and Mother was found to be minimally compliant with her
FSP goals. DHS was ordered to refer Mother for a parenting capacity evaluation, refer Mother
again to the Achieving Reunification      Center ("ARC"), and DHS was ordered to evaluate
Mother's new residence. (DHS Exhibit A).

On February 1, 2012, a permanency review hearing was held. Mother was ordered to follow
through with her parenting capacity evaluation and Mother was ordered to sign releases of
information regarding her mental health treatment.         (DHS Exhibit A).       On May 21, 2013, a
Petition for Involuntary Termination of Parental Rights was filed by DHS because Mother failed
to comply with her FSP objectives to facilitate reunification with her children. (DHS Exhibit A).
 The termination hearing was trifurcated and testimony was taken on October 14, 2013, February
 6, 2015, and February 11, 2015. Mother's parental rights were terminated on February 11, 2015.

 (N.T. 02/11/15, pg. 6).


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                                                                           Circulated 11/12/2015 11:34 AM




Discussion:

On March 11, 2015, Ms. Pie' filed a Notice of Appeal with a Concise Statement of Errors that
did not abide by Pa.R.A.P. §1925. The Concise Statement of Errors did not concisely identify
each ruling or error that Mother intended to challenge pursuant to Pa.R.A.P. §1925(b)(4)(i) nor
did the Supplemental Statement of Errors state the errors complained of without unnecessary
detail pursuant to Pa.R.A.P. §2116(a). For the purpose of this appeal, the trial court consolidated
the issues Mother's raised in the Concise Statement of Errors to the following:

    1. Did the trial court commit an error of law and abuse of discretion by failing to consider
       Permanent Legal Custody ("PLC") as a reasonable alternative to terminating Mother's
       parental rights'?

   2. Did the trial court commit an error of law and abuse of discretion by involuntarily
      terminating Mother's parental rights under 21 Pa.C.S.A. §251l(a), where the evidence
      presented at trial was not clear and convincing to terminate Mother's parental rights?

   3. Did the trial court commit an error of law and abuse of discretion by involuntarily
      terminating Mother's parental rights under 23 Pa.C.S.A. §251 l(b), where DHS failed to
      prove by clear and convincing evidence that involuntary terminating Mother's parental
      rights would best serve emotional needs and welfare of the children?

Mother's first issue on appeal asks whether the trial court committed an error oflaw and abuse of
discretion by failing to consider PLC as a reasonable alternative to terminating Mother's parental
rights. A trial court may consider PLC upon the filing of a petition by a county children and
youth agency that alleges the dependent child's current placement is not safe, and the physical,
mental, and moral welfare of the child would best be served if subsidized permanent legal
custodianship ("SPLC") were granted. See In re S.B., 208 Pa.Super. 21, 943 A.2d 973, 983-984
(2008). Upon receipt of this petition, the court must conduct a hearing and make specific
findings focusing on the best interests of the child. See id. In order for the court to declare the
custodian a "permanent legal custodian" the court must find that neither reunification nor
adoption is best suited to the child's safety, protection and physical, mental and moral welfare.
See f..4.; see also 42 Pa.C.S.A. § 6351(f.l).

Permanent legal custody is not in the children's best interest because adoption is best suited for
the children's safety, protection and physical, mental and moral welfare. Reunification with
Mother is not possible because Mother has failed to make any progress in the forty-three months

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the children have been in placement, Mother has not completed a majority of her FSP objectives,
and Mother lacks capacity to parent. Mother has been unable to put the priority of her children's
needs over her own needs. Child #1 is twelve years old, Child #2 is nine years old, Child #3 is
five years old, and Child #4 is four years old. It would not be in the children's best interest to be
reunified with Mother because the children have been living and being taken care of by
Grandmother for the past three and a half years. (N.T. 02/06/15, pgs. 25-26, 35-36). Mother has
not been able to show that she can parent these children and she lacks capacity to parent.
Adoption is best suited for the children.    (N.T. 10/14/14, pgs. 53-54).    Grandmother is ready,
willing, and able to adopt these children and being adopted by Grandmother is in their best



As to the second issue on appeal, the grounds for involuntary termination of parental rights are
enumerated in the Adoption Act at 23 Pa.C.S.A. §2511(a).           The Adoption Act provides the
following grounds for involuntary termination:

(a) General Rule - The rights of a parent, in regards to a child, may be terminated after a
petition is 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, has evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.

In proceedings to involuntary terminate parental rights, the burden of proof is on the party
seeking termination to establish by clear and convincing evidence grounds for termination. In re
Adoption o(Atencio, 539 Pa. 161, 650 A.2d 1064 (1994). To satisfy section (a)(l), the moving
party must produce clear and convincing evidence of conduct sustained for at least 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. The standard of clear and
convincing evidence is defined as testimony that is so clear, directly weighty and convincing as
to enable the trier of fact to come to a clear conviction without hesitance of the truth of precise
facts in issue. In re D.JS., 1999 Pa. Super. 214 (1999). In Pennsylvania, a parent's basic
constitutional right to the custody and rearing of his child is converted upon failure to fulfill his
or her parental duties, to the child's rights to have proper parenting and fulfillment of his or her
potential in a permanent, healthy, safe environment. In re B.NM, 856 A.2d 847, 856 (Pa. Super.
2004).

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Mother did not achieve a majority of her FSP objectives throughout the forty-three months that
children were in placement, even though Mother was made aware of her FSP objectives on
numerous occasions because she attended the FSP meetings and was involved in single case
planning. (N.T. 02/06/15, pg. 113, 117).      FSP meetings were held every six months and
objectives were made for Mother, but Mother did not achieve her FSP objectives throughout the
life of this case. (N.T. 02/06/15, pg. 13, 20, 117). Since 2011, only at one permanency review
hearing was Mother found to be substantially compliant with her FSP objectives. Mother was
found to be moderately compliant at two permanency review hearings and at every other
permanency review hearing, Mother was found to be minimally compliant. Mother was not
compliant with her rnentat-health objeetive;-M:other--,t-atteirttt--tne:--s1,eeta11~hiare:ntt1t----
classes she was ordered to go to, and Mother was discharged from the Achieving Reunification
Center ("ARC") due to lack of participation. (N.T. 02/06/15, pgs. 13, 20, 106, 117). The DHS
social worker testified that throughout her time on this case, Mother was minimally compliant
with her FSP objectives because a majority of Mother's goals remained in place. (N.T. 02/06/15,
pgs. 22-23). Throughout the life of this case, Mother has not made any progress. Even though
Mother completed two parenting classes, she was never able to apply what she learned. The
DHS social worker testified that one of the goals of parenting classes was to see a change in how
the parent parented her children and Mother showed no change, therefore that goal was not
completed. (N.T. 10/14/14, pg. 19). During visits, Mother was not implementing safety related
goals, she was unable to intervene without assistance from the social worker, and she did not
recognize potential dangerous situations that the children could place themselves in. (N.T.
10/14/14, pgs. 15, 19, 39, 42-43). Mother's visits were always supervised and the DHS social
worker who supervised Mother's visits testified that she would not have made a recommendation
that Mother's visits be changed to unsupervised visits because Mother is not able to monitor all
four children at the same time so they would be unsafe without DHS supervision. (N.T.
10/14/14, pgs. 29, 43). Furthermore, during the visits Mother would talk to the children as if
they were her friends, she would have inappropriate conversations about adult issues, and she
often used profanity. (N.T. 10/14/14, pgs. 49-50). Mother was referred to BHS and received an
evaluation in 2012, but Mother failed to follow up with treatment. (N.T. 02/06/15, pg. 14). All
the services were offered to help Mother reunify with her children. Mother claimed that she did
not complete her mental health objective because she did not have insurance but the DHS social

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worker testified that DHS took Mother to BHS at least two times to connect her with free mental
health services but Mother never followed up with treatment. (N.T. 02/06/15, pgs. 14, 31). The
record establishes that DHS provided and offered reasonable and adequate services to remedy
the conditions that brought children into care.      Mother has failed to utilize all the resources
provided by DHS to fulfill her affirmative duty to parent children.

On May 21, 2013, DHS filed the petition for termination.          Mother has continuously failed to
perform her parental duties towards children. Mother's refusal to perform her parental duties has
continued for at least six months prior to the filing of the termination petition, as established by
the record.    As a result, all the elements of the Adoption Act, 23 Pa.C.S.A. §251 l(a)(l) have
been fully satisfied.


The Adoption Act at 23 Pa.C.S.A.          §2511(a)(2) also includes, as grounds for involuntary
termination of parental rights, the repeated and continued incapacity, abuse, neglect or refusal of
the parent that causes the children to be without essential parental care, control, or subsistence
necessary     for their 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. This ground is
not limited to affirmative misconduct.    It may include acts of refusal to perform parental duties
but more specifically on the needs of the children. Adoption of C.A. W., 683 A.2d 91, 914 (Pa.
Super. 1996). Courts have further held that the implications of the parent's limited success with
services geared to remedy the barriers to effective parenting can also satisfy the requirements of
§251 l(a)(2). In the matter ofB.L. W, 843 A.2d 380 (Pa. Super. 2004), the court's grave concerns
about the Father's ability to provide the level of protection, security and stability that his children
needed was sufficient to warrant termination. Id. at 388.

Mother's lack of care and inadequate supervision of her children led to the children's
dependency adjudication and to their placement in foster care on August 8, 2011. Mother has
continuously failed and refused to remedy the causes that brought children into care. Mother is
unable and unwilling to provide the level of protection, security and stability that the children
need. Because of Mothers unwillingness to comply with her treatment plan, Mother is unable to
protect her children and keep them safe. Mother lacks capacity to parent as Mother has not been
able to show that she can parent during her supervised visits. A OHS social worker testified that


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there have been ongoing concerns about Mother because Mother cannot manage all of her
children during the visits and Mother always required OHS intervention during her visits with
children. (N.T. 10/14/14, pgs. 14-15). At one point Child #1 requested that she not participate in
the visits because they were upsetting her.     (N.T. 10/14/14, pg. 41). Mother continues to be
incapacitated and Mother's limited success with services that were provided by OHS prove that
the barriers to effective parenting cannot be remedied by Mother. Mother refuses to perform her
parental duties and is unable to remediate the causes that brought children into care. After forty-
three months of being in placement, children need permanency, which Mother cannot provide.
OHS has met its burden under 23 Pa.C.S.A. §251 l(a)(2).

OHS also requested termination of parental rights under 23 Pa.C.S.A. §251 l(a)(5), whereby
children may be removed by court or voluntary agreement and placed with an agency at least six
months, conditions which led to the placement of the children continue to exist, the parent cannot
or will not remedy those conditions within a reasonable period of time, the services reasonably
available to the parent are not likely to remedy the conditions leading to placement, and
termination best serves the children's needs and welfare.     OHS, as a child and youth agency,
cannot be required to extend services beyond the period of time deemed as reasonable by the
legislature or be subjected to herculean efforts. A child's life cannot be put on hold in hope that
the parent will summon the ability to handle the responsibilities of parenting.     In re J. T., 817
A.2d 509 (Pa. Super. 2001). As a consequence, Pennsylvania's Superior Court has recognized
that the children's needs and welfare requires agencies to work toward termination of parental
rights when a child has been placed in foster care beyond reasonable temporal limits and after
reasonable efforts for reunification have been made by the agency, that have resulted unfruitful.
This process should be completed within eighteen months. In re N. W., 851A.2d 508 (Pa. Super.
2004).

Children have been in care for a period of forty-three months. Mother continues to be unable to
summon the ability to handle her responsibilities of parenting and continuously fails to perform
her parental duties and cannot remedy the conditions that led to the children's placement.
Hence, Mother's lack of parental skills and minimal compliance with her FSP objectives compel
this court to conclude that the children are no closer to be reunified with Mother. The children's
life cannot be put on hold any longer in hope that Mother will remedy the conditions that led to

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placement within a reasonable amount of time. Mother was aware of her FSP objectives, but
was unable to complete them within forty-three months, even though DHS made services
available and the court found DHS made reasonable efforts at every hearing.        (N.T. 02/06/15,
pgs. 13-14). The DHS social worker testified that DHS went with Mother to BHS on at least two
occasions to get her free services for her mental health treatment but Mother never followed up.
(N.T. 02/06/15, pgs. 14, 31). Throughout the life of this case, Mother was never able to meet a
majority of her objectives.   For the past forty-three months, Mother was unable to demonstrate
that she had the capacity to parent. The needs and welfare of Child dictate that termination and
adoption would best serve her permanency needs. DHS met its burden under the Adoption Act,
23 Pa.G.8.A.   §251 I,W~i-.------------------------

As to 23 Pa.C.S.A. §251 l(a)(8), DHS met its burden by clear and convincing evidence that
children have been out of Mother's care for twelve months or more, and the conditions leading to
the placement still exits, and termination would best serve the needs and welfare of Child.
Children have been continuously under DHS' custody for a period of forty-three months. The
conditions that led to children's placement still exist. Despite the good faith efforts of DHS to
make services available, it is in the best interest of the children to terminate Mother's parental
rights. (N.T. 10/14/14, pgs. 53-54).

The trial court will now consider Mother's last issue on appeal, whether the termination of
parental rights would best serve the emotional needs and welfare of Child under 23 Pa.C.S.A.
§2511(b). The party seeking termination must prove by clear and convincing evidence that the
termination is in the best interest of the child. The best interest of the child is determined after
consideration of the needs and welfare of the child, such as love, comfort, security and stability.
In re Bowman, 426 Pa. Super. 647, A.2d 217 (1994). See also In re Adoption o(T.B.B., 835
A.2d 387, 397 (Pa. Super. 2009). Pursuant to 23 Pa.C.S.A. §25ll(b), the trial court must also
consider what, if any bond exists between a parent and their child. In re Involuntary Termination
o(C.W.S.M and KA.L.M, 839 A.2d 410, 415 (Pa. Super. 2003). The trial court must examine
the status of the bond to determine whether its termination "would destroy an existing, necessary
and beneficial relationship." In re Adoption of T.B.B., 835 A.2d 387 (Pa. Super. 2003). In
assessing the parental bond, the trial court is permitted to rely upon the observations and
evaluations of social workers. In re KZ.S., 946 A.2d 753, 762-763 (Pa. Super. 2008). Under 23

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Pa.C.S.A.   §251l(b),   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, if
found to be beyond the control of the parent.

Children will not suffer any irreparable harm by terminating Mother's parental rights. (N.T.
10/14/14, pg. 56). At every permanency review hearing, the trial court found that DHS made
reasonable efforts. Foster parent, the children's Grandmother, has a parent/child bond with all
four children.    (N.T. 02/06/15, pgs. 25-26, 124). The DHS social worker testified that the
children are doing really well in their pre-adoptive home and that they have bonded with their
Grandmother.     (N.T. 02/06/15, pgs. 25-26, 124). For the last three and a half years, the children
have lived with Grandmother as a family and they rely on Grandmother.          (N.T. 02/06/15, pgs.
25-26, 35-36). Grandmother is actively involved in the children's school, activities, and medical
appointments.     (N.T. 02/06/15, pg. 27).      Mother is not involved in the children's      school,
activities, or medical appointments even though Mother was aware of the different events and
activities that were going on at the children's school.      (N.T. 02/06/15, pg. 32). Mother was
invited to participate Child #1 's therapy but Mother never availed herself. (N.T. 10/14/14, pgs.
27-28), (N.T. 02/06/15, pg. 37). Mother     is not involved in the children's lives. Mother and the
children do not have a parent/child bond, the DHS social worker testified that Mother and
children have a peer relationship, not a parent/child relationship. (N.T. 10/14/14, pgs. 48, 50).
Since children have been in placement, Mother has only seen them for two hours every Saturday.
(N.T. 02/06/15, pg. 73). The entire time that the children have been in placement, Mother's
contact with them has been very limited. Terminating Mother's parental rights would not
destroy an existing necessary relationship between Mother and children.

It is in the best interest of children to be adopted. (N.T. 10/14/14, pgs. 53-54). DHS has
attempted to make available reasonable services to Mother but Mother has continuously failed to
participate in services and Mother has failed to follow up with treatment recommendations. The
trial court has found reasonable efforts at every permanency review hearing. Despite the good
faith efforts of DHS to make services available, it is in the best interests of children to terminate
Mother's parental rights. (N.T. 10/14/14, pgs. 53-54). The court found that the testimonies of
the DHS witnesses were credible. Additionally, the record clearly establishes that Mother's
parental rights are being terminated due to her lack of non-compliance with her FSP objectives,

                                             Page 10 of 11
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I   '   ,



            being unable to provide for or care for children, no parent/child bond, and no irreparable harm
            would occur by terminating Mother's parental rights. Terminating Mother's parental rights is
            not due to environmental factors. Children have been in placement for forty-three months and
            they need permanency. Consequently, the trial court did not err in terminating Mother's parental
            rights and changing the goal to adoption, as it would best serve the emotional needs and welfare
            of children.

            Conclusion:

            For the aforementioned reasons, the court finds that DHS met its statutory burden by clear and
            convmcmg evidence regardmg ffie termmahon of Mother's parental nghts pursuant to 23
            Pa.C.S.A. §251 l(a) and (b). The court also finds that it will not cause irreparable harm to
            children to sever any bond, and it is in the best interest of children since it would best serve their
            emotional needs and welfare.

            Accordingly, the orders entered on February 11, 2015, terminating the parental rights of Mother,
            M.K., should be affirmed.




                                                                                  By the court,




                                                                                  ~~~9
                                                                                    :   /

                                                                                  Jds.ijph Fe andes, J.




                                                        Page 11 of 11
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                                CERTIFICATE OF SERVICE

        I hereby certify that this court is serving a copy of this duly executed Opinion upon all
parties or their counsel on May 15, 2015, by regular mail and/or fax. The names and addresses of
all persons served are as follows:

               Maureen Pie', Esquire
               8 Summit St - Ste 200
               Philadelphia, Pennsylvania 19118
               Attorney for Mother

               Janice Sulman, Esquire
               100 South Broad Street - Ste 1518
               Phi)adelphla, Pennsyhrania 19110
               Attorney for Father

               Jeri Behrman, Esquire
               City of Philadelphia Law Department
               1515 Arch Street, 161h Floor
               Philadelphia, Pennsylvania 19102
               Attorney for DHS

               Mary Cole, Esquire
               Defender Association of Philadelphia
               1441 Sansom Street
               Philadelphia, Pennsylvania 19102
               Child Advocate


                                                         ~
                                                   BY:v:W~
                                                    Ana R. Melhor
                                                                            /It
                                                    Judicial Fellow/Law Clerk
                                                    Hon. Joseph L. Fernandes
                                                    Judge Court of Common Pleas
                                                    First Judicial District of Pennsylvania
                                                    Family Division
                                                    1501 Arch Street, Room 1431
                                                    Philadelphia, Pa. 19102
                                                    Telephone: (215)-686-2660
