J-S81031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: I.J.W., A              :   IN THE SUPERIOR COURT OF
MINOR                                      :        PENNSYLVANIA
                                           :
                                           :
APPEAL OF: M.W., MOTHER                    :
                                           :
                                           :
                                           :
                                           :   No. 1896 EDA 2016

                      Appeal from the Decree June 3, 2016
              in the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0000408-2016,
                            CP-51-DP-0002947-2014


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED NOVEMBER 30, 2016

       M.W. (“Mother”) appeals from the June 3, 2016, decree involuntarily

terminating her parental rights to her son, I.J.W., born in December of 2014.

Upon careful review, we affirm.1

       We summarize the relevant factual and procedural history as follows.

I.J.W. was born with methadone in his system.               Trial Court Opinion




____________________________________________


* Former Justice specially assigned to the Superior Court.
1
   By a separate decree dated and entered on June 3, 2016, the trial court
involuntarily terminated the parental rights of J.B. (“Father”). Father has not
filed a notice of appeal from the decree.
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(“T.C.O.”), filed 7/22/16, at 1;2 Notes of Testimony (“N.T.”), 6/3/16, at 13.

Before his discharge from the hospital, I.J.W. was placed in the custody of

the Philadelphia County Department of Human Services (“DHS”). T.C.O. at

1. The trial court adjudicated him dependent on December 29, 2014. I.J.W.

has resided in the same pre-adoptive home since his placement. N.T. at 25.

       Although Mother has six children, none of them are in her care. N.T.

at 14. Mother’s parental rights were involuntarily terminated with respect to

two of her children. Id. In addition, she is an indicated perpetrator of child

abuse resulting from an incident involving one of her other children.3 Id. As

a result, by order dated July 14, 2015, the court found aggravated

circumstances existed as to Mother. Id. at 13-14; Order, 7/14/15.

       The court set I.J.W.’s permanency plan as reunification. DHS assigned

Mother Single Case Plan (“SCP”) objectives requiring her to complete drug

and alcohol treatment; mental health treatment; and to obtain appropriate

housing and employment. T.C.O. at 3.

       On May 6, 2016, DHS filed a petition for the involuntary termination of

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),
____________________________________________


2
  The trial court’s opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) is unpaginated. For ease of reference, we have assigned
page numbers.
3
 With respect to the incident, Mother alleged that Father injured one of her
male children. N.T. at 29. Mother agreed on cross-examination that she
waited a day and a half to seek medical attention for the child because she
“was in bed” due to “going through [drug] withdrawal.” Id. at 65.



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and (b). The trial court held a hearing on June 3, 2016, during which DHS

presented the testimony of Marvella Morris, the Community Umbrella

Association    (“CUA”)     social   worker,    and   William   Russell,   Ph.D.,   who

performed a parenting capacity evaluation of Mother.             Mother testified on

her own behalf, and she presented the testimony of Chanel Randolph, a

Family School social worker.

       By decree dated and entered on June 3, 2016, the trial court

involuntarily terminated Mother’s parental rights.             Mother timely filed a

notice of appeal and a concise statement of errors complained of on appeal

pursuant to Rule 1925(a)(2)(i) and (b).4             The trial court filed its Rule

1925(a) opinion on July 22, 2016.

       On appeal, Mother presents the following issues for our review:

       1. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of [M]other [ ] pursuant to 23
       Pa.C.S.A. sections 2511(a)(1) where [M]other presented
       evidence that she substantially met her FSP goals and tried to
       perform her parental duties[?]

       2. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of [M]other [ ] pursuant to 23
       Pa.C.S.A. sections 2511(a)(2) where [M]other presented
       evidence that she has remedied her situation by attending family
____________________________________________


4
  The trial court also issued a goal change order dated June 3, 2016, and
Mother timely filed a notice of appeal. We conclude that Mother has waived
all issues pertaining thereto for her failure to set them forth in her brief.
See Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super.
2006) (“We will not ordinarily consider any issue if it has not been set forth
in or suggested by an appellate brief’s statement of questions
involved. . . .”) (citations omitted).



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      school, continuing drug and alcohol treatment and receiving
      mental health treatment[?] Mother has the present capacity to
      care for [I.J.W.].

      3. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [M]other [ ] pursuant to 23
      Pa.C.S.A. sections 2511(a)(5) where evidence was provided to
      establish that the child was removed from the care of his
      [M]other, and that [M]other is now capable of caring for her
      child[?]

      4. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [M]other [ ] pursuant to 23
      Pa.C.S.A. sections 2511(a)(8) where evidence was presented to
      show that [M]other is now capable of caring for her child since
      she has completed parenting and continued drug and alcohol
      treatment, mental health treatment and family school[?]
      Additionally, [M]other completed her parenting capacity
      evaluation.

      5. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of [M]other [ ] pursuant to 23
      Pa.C.S.A. sections 2511(b) where evidence was presented that
      established the child had a strong parental bond with h[is]
      [M]other[?]

Mother’s Brief at 7.

      We consider Mother’s issues mindful of our well-settled standard of

review:

            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


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      have first-hand observations of the parties spanning multiple
      hearings.

In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013) (citations and

quotation marks omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory
      grounds for termination delineated in Section 2511(a). Only if
      the court determines that the parent’s conduct warrants
      termination of his or her parental rights does the court engage in
      the second part of the analysis pursuant to Section 2511(b):
      determination of the needs and welfare of the child under the
      standard of best interests of the child. One major aspect of the
      needs and welfare analysis concerns the nature and status of the
      emotional bond between parent and child, with close attention
      paid to the effect on the child of permanently severing any such
      bond.

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

burden is upon the petitioner to prove by clear and convincing evidence that

the asserted statutory grounds for seeking the termination of parental rights

are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).

      This Court need only agree with any one subsection of Section

2511(a), along with Section 2511(b), in order to affirm the termination of

parental rights.   In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en

banc).   We conclude that the trial court in this case properly terminated




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Mother’s parental rights pursuant to Section 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:

                                      ...

         (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).

      With respect to Section 2511(a)(2), this Court has stated:

      [T]he 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.




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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation

omitted). Further, we have explained that, “[t]he grounds for termination

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) (citations omitted). In addition, “[p]arents

are required to make diligent efforts toward the reasonably prompt

assumption of full parental responsibilities.” Id. at 340 (citation omitted).

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

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa.Super. 2005) (citation omitted).        Further, the trial court

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

utmost attention to the effect on the child of permanently severing that

bond.” Id. (citation omitted).

      On appeal, with respect to the termination of her parental rights under

Section 2511(a)(2), Mother asserts that the trial court abused its discretion

because, in essence, the evidence demonstrates that she “has the present

capacity to care for her son.” Mother’s Brief at 17. Mother asserts that she

“cares for her child all day long several days a week at family school.” Id.

at 17.   Further, Mother asserts that she completed her SCP objectives




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regarding parenting classes, mental health, drug and alcohol treatment, and

family school, and that she obtained a parenting capacity evaluation.

        Contrary to Mother’s assertion, the trial court found that Mother did

not complete drug and alcohol treatment.       T.C.O. at 3.   Specifically, the

court found as follows:

        [M]other has a twenty year history of drug abuse. [ ] [M]other
        testified that she has a history of relapsing on drugs while
        attending drug and alcohol programs. . . . [M]other had her
        parental rights terminated [to] two previous children due to her
        drug and alcohol abuse. [M]other ha[d] been in a drug and
        alcohol treatment program for at least one year prior to June 1,
        2016. On July 9, 2015, [ ] [M]other tested positive for opiates.
        Moreover, on December 4, 2015, [ ] [M]other tested positive for
        [Phencyclidine] [“]PCP[”]. . . .

Id. at 4 (citations to record omitted).    Testimonial evidence supports the

court’s findings.

        William Russell, Ph.D., performed a parenting capacity evaluation of

Mother in October of 2015.       He testified that Mother “reported a long-

standing history of substance abuse and alcohol use dating back to the time

when she was about 11 or 12 years of age.” N.T. at 38.

        Marvella Morris, the CUA social worker, testified that she has been

involved with this family since April of 2015, and Mother has been in a

methadone maintenance program at the Jefferson Family Center the entire

time.    N.T. at 13-16.   She testified that Mother has not been discharged

successfully from the program. Id. at 16. Ms. Morris explained that Mother

received two positive test results from random drug screens at the Clinical


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Evaluation Unit (“CEU”). Id. at 17-18. On July 9, 2015, when I.J.W. had

been in placement for one and a half years, Mother tested positive for

opiates. Id. Ms. Morris stated that Mother told her the positive result was

“due to her eating an excessive amount of poppy seed bagels.”          Id.   On

December 4, 2015, Mother tested positive for PCP. Id. at 18. Ms. Morris

testified that Mother “stated it must be a false positive due to her being

prescribed Benadryl.” Id.

      Mother also disputed the positive drug screens during the involuntary

termination hearing. She testified as follows on cross-examination:

      Q. And is it your testimony today to the [c]ourt that you have
      not used any illicit drugs since [I.J.W.] has come into care?

      A. That is correct.

      Q. That the opiates was a false positive screen?

      A. That is absolutely correct.

      Q. And that the PCP is also a false positive screen?

      A. Yes.

        I have remained sober since August 15, 2014.

Id. at 63-64.

      In addition to finding Mother failed to complete drug and alcohol

treatment, the trial court determined that she failed to obtain appropriate

housing. T.C.O. at 4. Specifically, the court found as follows:

      [Mother] has lived in a shelter since the child was born.
      [M]other testified that the shelter where she currently resides is
      inappropriate for children. The social worker testified that

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        [M]other did not independently attempt to secure housing.
        Moreover, [M]other indicated that it was DHS’s responsibility to
        obtain a house for her. She was not going to do anything to
        obtain suitable housing on her own initiative.

Id. (citations to the record omitted).         Upon our review, we find the

testimony of Ms. Morris and Mother supports the trial court’s findings.

        Further, the trial court relied upon Dr. Russell’s opinion that Mother did

not have the capacity to parent I.J.W. either at the time of his evaluation or

approximately one year later at the time of the subject proceedings. T.C.O.

at 4.     Specifically, he opined that Mother cannot provide safety and

permanency for I.J.W.       DHS Exhibit #13, at 11; N.T. at 43-44.         In his

evaluation, Dr. Russell stated that Mother minimizes the concerns of DHS

“regarding the removal of [I.J.W.] from her care.” DHS Exhibit #13, at 11.

He stated, “[i]t is unclear whether this behavior indicates failure to take

responsibility for her actions or whether she truly understands why he was

removed as well as her role in [his] removal.” Id. Dr. Russell testified at

the time of the termination hearing that Mother “still presents with all of the

concerns that I had a year ago [when he performed the parenting capacity

evaluation].”     N.T. at 52.     Therefore, Dr. Russell agreed on redirect

examination that Mother does not have the capacity to parent. Id.

        We observe that Chanel Randolph, the Family School social worker,

testified that Mother had been attending the school from January of 2016

through the time of the hearing, for a period of six months. N.T. at 53-54.

Ms. Randolph stated that Mother interacts with I.J.W. from 9:00 a.m. to

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2:00 p.m. an unspecified number of times per week. Id. at 55. Based on

her observations, Ms. Randolph asserted that she believes Mother has the

ability to parent I.J.W. Id. at 55-56. To the extent that the trial court made

credibility findings in favor of Dr. Russell and against Ms. Randolph, we defer

to the court’s determination in this regard. See In re T.S.M., supra.

       Based on the foregoing testimonial and documentary evidence, we

discern no abuse of discretion by the trial court in terminating Mother’s

parental rights pursuant to Section 2511(a)(2).5      Indeed, DHS presented

clear and convincing evidence that Mother’s repeated and continued

incapacity, neglect, or refusal to successfully complete her methadone

maintenance program and to obtain appropriate housing has caused I.J.W.

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

his physical or mental well-being for his entire life. Further, the causes of

Mother’s long-standing incapacity, neglect, or refusal cannot or will not be

remedied. See In re Adoption of M.E.P., supra.

       Finally, Mother argues that the trial court abused its discretion in

terminating her parental rights pursuant to Section 2511(b).      Specifically,

Mother asserts that Ms. Randolph testified that, “there is a strong bond

between mother and child.” Mother’s Brief at 20. Therefore, Mother argues


____________________________________________


5
  Based upon this disposition, we need not consider Mother's issues
regarding Sections 2511(a)(1), (5), and (8). See In re B.L.W., supra.



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that terminating her parental rights does not serve I.J.W.’s physical and

emotional needs and welfare. We disagree.

     This Court has explained as follows:

         While a parent’s emotional bond with his or her child is a
     major aspect of the subsection 2511(b) best-interest analysis, it
     is nonetheless only one of many factors to be considered by the
     court when determining what is in the best interest of the child.
     In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
     mere existence of an emotional bond does not preclude the
     termination of parental rights. See In re T.D., 949 A.2d 910
     (Pa. Super. 2008) (trial court’s decision to terminate parents’
     parental rights was affirmed where court balanced strong
     emotional bond against parents’ inability to serve needs of
     child). Rather, the orphans’ 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, 397 (Pa. Super. 2003).           As we
     explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),

         [I]n addition to a bond examination, the trial court can
         equally emphasize the safety needs of the child, and
         should also consider the intangibles, such as the love,
         comfort, security, and stability the child might have with
         the foster parent. Additionally, this Court stated that the
         trial court should consider the importance of continuity of
         relationships and whether any existing parent-child bond
         can be severed without detrimental effects on the child.

In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011).

     In addition, in considering the affection a child may have for his or her

natural parents, we have explained as follows.

        [C]oncluding a child has a beneficial bond with a parent
        simply because the child harbors affection for the parent is
        not only dangerous, it is logically unsound. If a child’s
        feelings were the dispositive factor in the bonding analysis,
        the analysis would be reduced to an exercise in semantics
        as it is the rare child who, after being subject to neglect
        and abuse, is able to sift through the emotional wreckage

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         and completely disavow a parent. . . . Nor are we of the
         opinion that the biological connection between [the parent]
         and the children is sufficient in of itself, or when
         considered in connection with a child’s feeling toward a
         parent, to establish a de facto beneficial bond exists. The
         psychological aspect of parenthood is more important in
         terms of the development of the child and its mental and
         emotional health than the coincidence of biological or
         natural parenthood.

In re K.K.R.-S., 958 A.2d at 535 (internal citations and quotation marks

omitted).

       Moreover, our Supreme Court confirmed that, “the mere existence of a

bond or attachment of a child to a parent will not necessarily result in the

denial of a termination petition.” In re T.S.M., 620 Pa. at 629, 71 A.3d at

267.   The Court further stated that, “[c]ommon sense dictates that courts

considering termination must also consider whether the children are in a

pre-adoptive home and whether they have a bond with their foster parents.”

Id. at 629, 71 A.3d at 268. The Court directed that, in weighing the bond

considerations pursuant to Section 2511(b), “courts must keep the ticking

clock of childhood ever in mind.” Id. at 631, 71 A.3d at 269. The T.S.M.

Court observed that, “[c]hildren are young for a scant number of years, and

we have an obligation to see to their healthy development quickly.     When

courts fail . . . the result, all too often, is catastrophically maladjusted

children.” Id.

       Ms. Morris testified that there is a parental bond between Mother and

I.J.W. N.T. at 32; T.C.O. at 5. However, she did not testify with respect to


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any observations that led to her opinion regarding the existence of a bond

between Mother and the child. Further, Ms. Morris acknowledged that I.J.W.

is “attached to” and “well-bonded with” his foster parent, with whom he has

lived since birth, and who is a pre-adoptive resource.          N.T. at 25-26.

Importantly, Ms. Morris indicated that I.J.W. could not be safely reunified

with Mother as of the date of the hearing due to her lack of housing. Id. at

26.   As such, Ms. Morris testified that, as of the date of the termination

hearing, it was in I.J.W.’s best interest to remain in his foster home. Id. at

27.

      Based on the foregoing testimonial evidence, we discern no abuse of

discretion by the trial court in concluding that terminating Mother’s parental

rights will serve I.J.W.’s developmental, physical, and emotional needs and

welfare.   Accordingly, we affirm the decree terminating Mother’s parental

rights pursuant to Section 2511(a)(2) and (b).       See In re B., N.M., 856

A.2d 847, 856 (Pa.Super. 2004) (stating that “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”).

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




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