J-S77029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: F.M.B.                            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
APPEAL OF D.D.M., MOTHER                 :
                                         :         No. 1616 EDA 2014
                                         :

               Appeal from the Decree entered April 22, 2014,
           in the Court of Common Pleas of Philadelphia County,
          Family Court Division, at Nos. CP-51-AP-0000145-2014,
                        and CP-51-DP-0000529-2013

BEFORE: STABILE, JENKINS, AND STRASSBURGER, JJ.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 03, 2015

      D.D.M. (Mother), appeals from the decree of the Court of Common

Pleas of Philadelphia County, entered on April 22, 2014, that terminated her

parental rights to her daughter, F.M.B. (Child), born in November of 2012.

We affirm.1

      Mother gave birth to Child on November 8, 2012.        On November 9,

2012, Philadelphia’s Department of Human Services (DHS) received a

substantiated General Protective Services (GPS) report alleging that Mother

and Child had both tested positive for cocaine.2       The GPS report claimed



    Retired Senior Judge assigned to Superior Court.
1
    The trial court also terminated the parental rights of J.B., Child’s father
(Father). Father did not appeal that termination and is not a party to this
appeal.
2
    At trial, counsel for Mother stipulated that, if called to testify, DHS
witnesses would testify in accordance with the facts set forth in the
Statement of Facts attached as Exhibit A to DHS’s petition to terminate
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Mother had admitted to a history of substance abuse during the preceding

six   years.3   The   GPS   report   also   stated   that   Mother   was   taking

benzodiazepines for diagnosed anxiety.

       Through a consensual family agreement, Child went to reside with

G.S.H., her godmother. On January 22, 2013, DHS implemented In-Home

Protective Services for Child with the godmother through the Juvenile Justice

Center.4

       On January 30, 2013, DHS conducted a Family Service Plan meeting

attended by Mother and Father that set forth the following basic objectives

for the parents: (1) to provide appropriate supervision for Child; (2) to

properly clothe and clean Child; (3) to participate in drug and alcohol

evaluations; and (4) to comply with all drug and alcohol treatment

recommendations. Both parents signed the Family Service Plan.

       On February 11, 2013, Mother entered intensive outpatient substance

abuse treatment at NHS Parkside Recovery in Germantown, Pennsylvania.




Mother’s parental rights. N.T. 4/22/14, at 6. That Statement supports this
recitation of the facts.
3
  In 2006, upon the birth of Child’s older sibling, DHS received a
substantiated report alleging that Mother had a history of using controlled
substances and that she was not in treatment at that time.
4
  Ultimately, following the termination of the DHS In-Home Protective
Services, Child remained with the godmother, who provided pre-adoptive
foster care through an organization called Volunteers of America. See N.T.
4/22/2014, 9.


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Three weeks later, on March 8, 2013, NHS Parkside negatively discharged

Mother for missing seven consecutive days of treatment.

      Also on March 8, 2013, DHS learned that Mother had been evicted

from her last known address.

      Due to Mother’s noncompliance with substance abuse treatment, and

because she lacked stable housing, on March 13, 2013, DHS obtained an

Order of Protective Custody for Child to ensure Child’s safety and wellbeing.

Child continued to reside in foster care with the godmother.

      The trial court appointed counsel for Mother at a March 15, 2013

shelter care hearing. The trial court adjudicated Child dependent on March

25, 2013, and committed Child to DHS’s care. At the same hearing, the trial

court referred Mother to the Clinical Evaluation Unit for an evaluation and

drug and alcohol screen with orders to comply with all Family Service Plan

objectives, services, and recommendations. The trial court granted Mother

supervised weekly visits with Child with a goal of reunification. Accordingly,

the court further ordered Mother to attend a reunification program

conducted by the Achieving Reunification Center.

      Upon reporting to the Clinical Evaluation Unit, Mother tested positive

for cocaine and opiates. Although the Clinical Evaluation Unit staff verified

that Mother had been treating at NHS Parkside Recovery, Mother’s Parkside

therapist was unable to provide the Clinical Evaluation Unit with any details




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regarding Mother’s treatment because Mother refused to sign the required

release forms.

      On April 24, 2013, DHS conducted a second meeting to develop Family

Service Plan objectives for Mother. Mother did not attend. In her absence,

DHS developed the following Family Service Plan objectives for Mother: (1)

to meet with the Juvenile Justice Center on a weekly basis to learn expected

child behavior; (2) to obtain appropriate housing; (3) to sign appropriate

authorization forms allowing the release of medical evaluations and reports

regarding her sobriety and mental health; (4) to comply with all treatment

recommendations; and (5) to maintain visitation with Child.     To help her

achieve these objectives, DHS referred Mother to the Achieving Reunification

Center for parenting and housing services, the Juvenile Justice Center for

parenting services, and the Clinical Evaluation Unit for drug/alcohol and

mental health treatment.

      Thereafter, DHS learned that NHS Parkside had readmitted Mother for

outpatient substance abuse treatment. DHS additionally learned that Mother

had consistently tested positive for opiates, cocaine, and/or marijuana

throughout treatment, had missed twelve days of medication in June of 2013

and five days of medication in the first two weeks of July of 2013, and had

met with her counselor only once.     NHS Parkside had placed Mother on a

behavioral contract by which she risked discharge from the program if she

failed to attend all scheduled group and individual sessions.



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        NHS Parkside staff recommended that Mother move to inpatient

treatment at My Sister’s Place to aid in her struggle to maintain her sobriety

as an outpatient.    NHS Parkside personnel envisioned Mother returning to

outpatient status at NHS Parkside after the inpatient treatment.

        Accordingly, Mother was admitted to My Sister’s Place for inpatient

treatment on October 1, 2013.           However, My Sister’s Place discharged

Mother as absent without leave nineteen days later when she walked out of

the facility and did not return.

        The Juvenile Justice Center likewise negatively discharged Mother

effective October 16, 2013.

        The trial court conducted a permanency hearing on November 25,

2013.      At the hearing, the trial court received into evidence a Clinical

Evaluation Unit report of Mother’s noncompliance with the court’s ordered

drug and alcohol evaluations. Additionally, the court heard testimony that

Mother did not receive substance abuse treatment, only made five out of ten

scheduled supervised visits with Child, had not obtained appropriate

housing,     and   did   not   attend   the   Achieving   Reunification   Center’s

reunification program. The trial court modified Mother’s visits with Child to

once weekly, supervised at DHS.

        At a December 30, 2013 Family Service Plan meeting, DHS changed

Child’s goal from reunification to adoption. On March 21, 2014, DHS filed




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petitions seeking the termination of Mother and Father’s parental rights and

a goal change to adoption.

     The trial court conducted a hearing on the petitions on April 22, 2014.

Mother   failed   to   appear.   Mother’s    counsel    stipulated    to   DHS’s

documentation that Mother had been properly served with notice of the

hearing and the order to attend.     A social worker testified that she had

personally handed Mother notice of the hearing. N.T. 4/22/14 (N.T.), at 14.

     Counsel for Mother and DHS stipulated to the facts giving rise to the

filing of the petitions and to the DHS documents supporting those facts that

were admitted into evidence.     N.T., at 6.     DHS further provided the

testimony of social workers, Rachel Brown and Aleah Frazier.         Counsel for

Mother presented no evidence on her behalf.       Accordingly, the evidence

presented was uncontroverted. N.T., at 15.

     The trial court entered its decree terminating Mother’s parental rights

pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8) and (b), and changing

Child’s goal to adoption on April 22, 2014. Mother filed her notice of appeal

and statement of errors complained of on appeal on May 22, 2014.

     Mother raises the following questions on appeal:

     1. Was mother deprived of a fair hearing as she was unable to
     appear at the Goal Change Termination Hearing?

     2. Was mother denied effective representation as DHS and/or its
     agents withheld information from [M]other’s counsel as counsel
     did not know the reason [M]other was unable to appear at the
     hearing?



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      3. Did the [trial court] fail to make a searching inquiry as to the
      best interest[s] of [Child] when terminating [M]other’s parental
      rights?

Mother’s Brief, at 5.

      Our standard of review is as follows:

      In an appeal from an order terminating parental rights, our
      scope of review is comprehensive: we consider all the evidence
      presented as well as the trial court’s factual findings and legal
      conclusions. However, our standard of review is narrow: we will
      reverse the trial court’s order only if we conclude that the trial
      court abused its discretion, made an error of law, or lacked
      competent evidence to support its findings. The trial judge’s
      decision is entitled to the same deference as a jury verdict.

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

      Further, we have stated:

            Where the hearing court’s findings are supported by
      competent evidence of record, we must affirm the hearing court
      even though the record could support an opposite result.
            We are bound by the findings of the trial court which have
      adequate support in the record so long as the findings do not
      evidence capricious disregard for competent and credible
      evidence. The trial court is free to believe all, part, or none of
      the evidence presented, and is likewise free to make all
      credibility determinations and resolve conflicts in the evidence.
      Though we are not bound by the trial court’s inferences and
      deductions, we may reject its conclusions only if they involve
      errors of law or are clearly unreasonable in light of the trial
      court’s sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa.Super.2004) (citations omitted).

      In order to affirm the termination of parental rights, this Court need

only agree with any one subsection of Section 2511(a), in addition to




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

banc), appeal denied, 863 A.2d 1141 (Pa.2004).

      23 Pa.C.S. § 2511 governs requests to terminate a natural parent’s

parental rights, and provides, in pertinent part:

      § 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.

                                      ...

        (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.

                                   ...


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        (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. § 2511.

     It is well settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard which requires evidence that is “so clear, direct,

weighty, and convincing as to enable the trier of fact to come to a clear

conviction, without hesitance, of the truth of the precise facts in issue.” In

re T.F., 847 A.2d 738, 742 (Pa.Super.2004).

     To terminate parental rights pursuant to section 2511(a)(1), the

person or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the



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filing of the petition, the parent’s conduct demonstrated a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform

parental duties.    In re Adoption of M.E.P., 825 A.2d 1266, 1272

(Pa.Super.2003).

      With respect to subsection 2511(a)(1), our Supreme Court has held:

      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 his or 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).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.1988). Further,

      the 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 his or her parental rights, to determine if the
      evidence, in light of the totality of the circumstances, clearly
      warrants the involuntary termination.

In re N.M.B., 856 A.2d 847, 854-855 (Pa.Super.2004) (citations omitted).

      The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”   23 Pa.C.S. § 2511(b).    Although the Act does not

specifically refer to the necessity of an evaluation of the bond between

parent and child, our case law requires an evaluation of any such bond. See

In re E.M., 533 Pa. 115, 620 A.2d 481 (1993).       However, this Court has

held that neither statute nor precedent require a trial court to order that an



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expert perform a formal bonding evaluation.       In re K.K.R.-S., 958 A.2d

529, 533 (Pa.Super.2008). Further, as this Court has explained:

            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 his or
      her physical and emotional needs.

      In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa.Super.2008)

(internal citations omitted).

      In her first two issues, Mother claims that she was denied a fair

hearing and effective counsel because the social workers withheld from her

counsel the fact that she was unable to attend the hearing due to her

participation in in-patient drug treatment.    No evidence supporting these

allegations appears in the trial court record. Instead, the trial court record

establishes that Mother received proper service and notice of the hearing

and that she failed to appear without explanation.       Accordingly, Mother’s

first two issues are without merit.

      In Mother’s third issue, she claims that the trial court failed to make an

appropriate inquiry into Child’s best interests when it terminated her

parental rights. In support of this claim, Mother argues that the trial court

was unable to make such an inquiry because Mother was not present at the

hearing to testify regarding her efforts to complete the Family Service Plan

objectives. This claim lacks merit. Mother had notice of the hearing and did



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not appear. Therefore, Mother cannot benefit by any limitations created by

her own unexplained failure to appear and testify. Further, even had Mother

appeared and testified credibly that she was making diligent efforts to

complete her Family Service Plan, the trial court would not have been able to

consider that testimony. In a proceeding to terminate parental rights, the

focus of our inquiry rests upon the period at least six months prior to the

filing of the petition to terminate her parental rights. M.E.P., supra. The

fact that Mother might have been working toward the completion of her

family service plan objectives at the time of the hearing would have had no

bearing on the trial court’s analysis of her case.

      We turn now to the merits of the trial court’s determination to

terminate Mother’s parental rights. DHS presented evidence that, in at least

the six months prior to the filing of its petition, Mother had not complied

with the permanency plan and had not met any of her Family Service Plan

objectives.      Mother had not followed through with the Clinical Evaluation

Unit’s recommended dual diagnosis services and had been discharged from

the Achieving Reunification Center reunification program for lack of

participation.     Mother had not completed the parenting course at Juvenile

Justice Center, and had not secured appropriate housing.          N.T., at 8.

Mother’s visitation with Child was inconsistent. In the five months since the

previous court date of November 25, 2013, Mother attended only four of the

twenty scheduled weekly visits. Id.



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      Further, Ms. Frazier, who supervised the visits, testified that Mother

did not share a bond with Child and that Child did not recognize Mother as

her mother. N.T., at 8. According to Ms. Frazier, Mother was just someone

who “comes to see her and they walk around and play.” Id. at 12-13. Both

Ms. Frazier and Ms. Brown agreed that severing Mother’s parental rights

would not cause Child any emotional harm and that termination of those

rights was in Child’s best interest.   N.T., at 10, 13.   Further, Ms. Brown

testified that Child had bonded with her foster parent – the godmother –

with whom she had resided during her entire placement, and that the

godmother was willing to adopt Child. Id. at 9-10.

      Our review of the record reveals that the trial court’s decision to

terminate Mother’s parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1) and

(b), and to permit Child’s adoption without notice to or consent from Mother,

is supported by clear and convincing evidence, and that the trial court did

not abuse its discretion in so ordering.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2015




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