J-S32033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: S.E.C.-B., A    :   IN THE SUPERIOR COURT OF
MINOR                               :        PENNSYLVANIA
                                    :
                                    :
APPEAL OF: N.C., MOTHER             :
                                    :
                                    :
                                    :
                                    :   No. 2051 EDA 2016

             Appeal from the Decree and Order June 7, 2016
          In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): 51-FN-000269-2014,
                        CP-51-AP-0000453-2016




IN THE INTEREST OF: S.M.C.-B., A    :   IN THE SUPERIOR COURT OF
MINOR                               :        PENNSYLVANIA
                                    :
                                    :
APPEAL OF: N.C., MOTHER             :
                                    :
                                    :
                                    :
                                    :   No. 2053 EDA 2016

             Appeal from the Decree and Order June 7, 2016
          In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): 51-FN-000269-2014,
                        CP-51-AP-0000455-2016
J-S32033-17



    IN THE INTEREST OF: S.D.C., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: N.C., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2054 EDA 2016

                 Appeal from the Decree and Order June 7, 2016
              In the Court of Common Pleas of Philadelphia County
                  Family Court at No(s): 51-FN-000269-2014,
                            CP-51-AP-0000456-2016


BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED JUNE 30, 2017

        Appellant, N.C. (“Mother”), appeals from the decrees and orders

involuntarily terminating her parental rights to S.E.C.-B. (born in March of

2011), S.M.C.-B. (born in January of 2012), and S.D.C. (born in January of

2014) (collectively “Children”) pursuant to the Adoption Act, 23 Pa.C.S. §

2511 (a)(1), (2), (5), (8), and (b), and changing Children’s permanency

goals to adoption under the Juvenile Act, 42 Pa.C.S. § 6351.1 We affirm the

decrees of termination in part and vacate in part and vacate the orders

changing Children’s permanency goals pending further proceedings.

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
   In separate decrees and orders entered on June 7, 2016, the trial court
involuntarily terminated the parental rights of biological father, M.B.
(“Father”). Father, represented by counsel, failed to appear at the hearing.
Father is not a party to the current appeal, nor did he file a separate appeal.



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      The Department of Human Services of Philadelphia County (“DHS”)

became involved in January of 2014, after receiving a General Protective

Services (“GPS”) report that Mother, who was the primary caregiver of

S.E.C.-B. and S.M.C.-B., gave birth to S.D.C. in a bathtub at home.        The

GPS report further alleged that Mother contacted a friend, who took the

newborn baby to the hospital because Mother did not want to take care of

S.D.C. DHS also learned that Mother and Children resided in the home of

Children’s maternal grandfather, D.N. (“Maternal Grandfather”).        Maternal

Grandfather was unaware that Mother was pregnant or that she gave birth

to S.D.C. in the bathtub. On February 4, 2014, DHS obtained an order of

protective custody for S.D.C. and developed a safety plan for Mother and

Maternal Grandfather.     Under the safety plan, Mother agreed to leave

Maternal Grandfather’s residence and have Children placed in Maternal

Grandfather’s care.

      The trial court adjudicated S.D.C. dependent on March 17, 2014.

S.E.C.-B. and S.M.C.-B. were adjudicated dependent on April 28, 2014. On

November 4, 2014, Mother participated in a parenting capacity evaluation

with William Russell, Ph.D., (“Dr. Russell”) at Assessment and Treatment

Alternatives.   Dr. Russell authored a report, the conclusions of which he

described as follows:

         I think the biggest concern was her rather concrete
         thinking, her immaturity, her problem with what I call
         anticipatory thinking -- that is thinking ahead -- and how
         she rationalized the risky behaviors all combined to create


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         a problem with judgment; that hiding the pregnancy from
         her father because of the rationalization [that] she wasn’t
         working and she didn’t want him to have to spend the
         money.

         But then having that child in the bathtub, the risk of
         infection, no prenatal care -- again, how all those
         emotional issues, those cognitive issues came into play in
         terms of making her judgment flawed and that was the
         biggest issue.

         And so because of that I recommended that she get into a
         course of individual therapy to help address those issues,
         to develop an understanding of: Hey, listen, when we have
         children, we’ve got to be able to think a little bit ahead.
         We have to think: Well, what happens if I do this? And if
         my child did that, what am I going to do? And begin to
         develop some anticipatory thinking.

N.T., 5/5/16, at 14.

      Additionally, Dr. Russell noted that Mother obtained independent

housing. However,

         [t]here was no water heater. There was no furniture.
         There was a whole host of issues that I was concerned
         about, both in terms of the safety of the house and in
         terms of her, again risky thinking. You can’t go and ask
         for your children back if you don’t have any furniture and if
         you don’t have any hot water. So her response was: Well,
         DHS will help me get that stuff.

         . . . And so, basically, I said that she needed to make the
         repairs or get the repairs done, get some furniture in the
         house, and then if that was done at the same time I
         recommended liberal visitation with [C]hildren. It was not
         anything that was really difficult to do at the time. As I
         said, the biggest issue had to do with trying to correct the
         judgment that put [C]hildren at risk.




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Id. at 14-15.2

       A single case plan (“SCP”), which set the goal of reunification, was

developed for Mother. Mother’s recent SCP goals were: (1) to visit Children

under Maternal Grandfather’s supervision; (2) to comply with mental health

therapy and the parenting capacity evaluation recommendations; (3) to

obtain and maintain employment; (4) to attend parenting and anger

management classes; and (5) to make necessary repairs to her home and

comply with the home assessment.

       On May 26, 2016, DHS filed petitions to terminate Mother’s parental

rights to Children and change Children’s permanency goal to adoption. On

June 7, 2016, the trial court held a hearing on the petitions. At the hearing,

DHS presented testimony of Bethanna Community Umbrella Agency (“CUA”)

caseworker, Gina Morrison, and entered into evidence the May 5, 2016

testimony of Dr. Russell regarding Mother’s parenting capacity evaluation.

Mother, represented by counsel, failed to appear at the hearing.

       With respect to Children’s relationship with Mother, DHS presented the

following the following evidence:

          [DHS’s counsel]: And how would you assess the strength
          of the bond with [M]other in comparison with that of
          [M]aternal [G]randfather with [C]hildren?


____________________________________________
2
 We note, however, that Mother had been living with Maternal Grandfather
before the February 4, 2014 safety plan and agreed to leave the Maternal
Grandfather’s home.



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        Ms. Morrison: So, [Mother] does come over, she helps
        prepare meals, she helps with dinnertime. She sometimes
        goes with [Maternal Grandfather] to pick up the kids from
        daycare, drop them off.

        They definitely have a strong relationship with her. They
        do refer to her as mom, but she’s not the one who’s up in
        the middle of the night when the kids are sick, throwing up
        or—you know, it’s [Maternal Grandfather] who’s taking
        care of them every day and making sure that, you know, if
        [Mother] has to work late or on weekends, he’s taking care
        of them.

        He’s the day to day caregiver of [Children].

N.T., 6/7/16, at 11. When asked whether she believed termination “would

harm any of [Children] beyond repair if [M]other’s legal rights were

terminated and they were freed for adoption,” Ms. Morrison responded, “I do

not.” Id. at 10.

     Additionally, the Child Advocate examined Ms. Morrison as follows:

        [Child Advocate]: . . . And with regard to your testimony
        with regard to the best interest portion of this case, is
        that—that would apply to each child individually, that you
        believe it wouldn’t cause irreparable harm?

        Ms. Morrison: Yes.

        [Child Advocate]: And is also applied to each child, that
        you believe the parent-child relationship is with [Maternal
        Grandfather], and not [M]other?

        Ms. Morrison: Yes.

        [Child Advocate]: And with regard to the belief that you
        believe adoption in in the best interest: Is that with regard
        to each child, individually?

        Ms. Morrison: Yes.



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Id. at 16-17.

      Lastly, during cross-examination by Mother’s counsel, Ms. Morrison

testified as follows:

         [Mother’s counsel]: . . . Regarding the bond with mom,
         [Children] are bonded with [M]other, correct?

         Ms. Morrison: They have a relationship with her. They’re
         connected. There is—there is a bond. I mean, they—they
         outreach to [Mother], you know, they’re happy to see her.
         But their primary bond and caretaker is with their
         grandfather. I mean, he’s the one who’s there with them
         every day, all day long, you know, taking care and making
         sure that the daycare’s set up, he’s communicating with
         the daycare on a regular basis, making all their doctor’s
         appointments, making sure they go.

Id. at 17-18.

      At the conclusion of the hearing, the trial court entered decrees and

orders terminating Mother’s parental rights pursuant to 23 Pa.C.S. §

2511(a)(1), (2), (5), (8), and (b), and changing Children’s permanency goal

to adoption. On July 1, 2016, Mother filed a timely notice of appeal, along

with a concise statement of errors complained of on appeal pursuant to

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

      Mother presents three questions for review:

         1. Did the trial court err in terminating Mother’s parental
         rights under 23 Pa.C.S. Section 2511(a)(1), Section
         2511(a)(2), Section 2511(a)(5), and Section 2511(a)(8)?

         2. Did the trial court err in finding that termination of
         [Mother’s] parental rights best served [Children’s]
         developmental, physical and emotional needs under 23
         Pa.C.S. Section 2511(b)?



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         3. Did the trial court err in changing [Children’s] goal to
         adoption?

Mother’s Brief at vi.

      Mother first claims that the trial court erred in finding grounds for

termination under Section 2511(a).      Mother argues that she is actively

involved in Children’s daily lives, provides them with essential care and

subsistence, and performs parental duties such as taking them to day care,

cooking dinner for them, helping them with homework, reading stories, and

putting them to bed. Mother’s Brief at 8-9. Mother further argues that DHS

did not establish that the conditions causing the original placement with DHS

were not remedied. Id. at 9. Mother emphasizes that she has achieved five

out of seven of her SCP objectives including regularly visiting with Children,

participating in a parenting capacity evaluation, completing parenting

classes, completing anger management classes, and changing her work

schedule to day shifts. Id. at 9-10. According to Mother, she “was not able

to schedule” an assessment of the home she obtained after leaving Maternal

Grandfather’s home, and she reported attending CATCH for mental health

treatment, although she concedes there was no documentation for that

treatment. Id. at 2, 4. We conclude that no relief is due.

      We review an appeal from the termination of parental rights using the

following standard:

         [A]ppellate courts must apply an abuse of discretion
         standard when considering a trial court’s determination of
         a petition for termination of parental rights.      As in


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J-S32033-17


         dependency cases, our standard of review requires an
         appellate court to accept the findings of fact and credibility
         determinations of the trial court if they are supported by
         the record. If the factual findings are supported, appellate
         courts review to determine if the trial court made an error
         of law or abused its discretion. As has been often stated,
         an abuse of discretion does not result merely because the
         reviewing court might have reached a different conclusion.
         Instead, a decision may be reversed for an abuse of
         discretion   only   upon      demonstration    of     manifest
         unreasonableness, partiality, prejudice, bias, or ill-will.

         . . . [E]ven where the facts could support an opposite
         result, as is often the case in dependency and termination
         cases, an appellate court must resist the urge to second
         guess the trial court and impose its own credibility
         determinations and judgment; instead we must defer to
         the trial judges so long as the factual findings are
         supported by the record and the court’s legal conclusions
         are not the result of an error of law or an abuse of
         discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations

omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

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

have explained that “[t]he standard of clear and convincing evidence is

defined as testimony that is so clear, direct, weighty and convincing as to

enable the trier of fact to come to a clear conviction, without hesitance, of

the truth of the precise facts in issue.”   Id. (citation and quotation marks

omitted).




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     “Parental rights may be involuntarily terminated where any one

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) (citation omitted).

        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.

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

omitted).

     Section 2511(a)(8) provides:


        (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:

                                   *     *      *

            (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.

23 Pa.C.S. § 2511(a)(8).    Under Section 2511(a)(8), the petitioner must

demonstrate the following factors: “(1) the child has been removed from


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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 [child’s]

needs and welfare . . . .” In re Adoption of M.E.P., 825 A.2d 1266, 1275-

76 (Pa. Super. 2003).

     Section 2511(a)(8)

        Section 2511(a)(8) explicitly requires an evaluation of the
        “needs and welfare of the child” prior to proceeding to
        Section 2511(b), which focuses on the “developmental,
        physical and emotional needs and welfare of the child.”
        Thus, the analysis under Section 2511(a)(8) accounts for
        the needs of the child in addition to the behavior of the
        parent. Moreover, only if a court determines that the
        parent's conduct warrants termination of his or her
        parental rights, pursuant to Section 2511(a), does a 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.” Accordingly, while both Section 2511(a)(8) and
        Section 2511(b) direct us to evaluate the “needs and
        welfare of the child,” we are required to resolve the
        analysis relative to Section 2511(a)(8), prior to addressing
        the “needs and welfare” of [the child], as proscribed by
        Section 2511(b); as such, they are distinct in that we must
        address Section 2511(a) before reaching Section 2511(b).

In re D.A.T., 91 A.3d 197, 205 (Pa. Super. 2014) (citation omitted).

     Following our review, we discern no error or abused its discretion in

the trial court’s determination that Mother’s conduct met the grounds for

termination set forth in Section 2511(a)(8).   Children were removed from

Mother’s care in February 2014, and DHS filed the petitions to terminate

Mother’s parental rights in May 2016, thus satisfying the twelve-month



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requirement of Section 2511(a)(8). Moreover, mental health treatment was

a primary objective for reunification, as was made clear to Mother in the

recommendation made in the parenting capacity evaluation and multiple

discussions with Ms. Morrison. Although Mother testified that she attended

mental health therapy, there were no records of her attendance.           Thus,

although Mother completed many of her SCP goals, she did not address the

primary objective of treating her mental health issues.

       Additionally, the CUA caseworker testified that visitation did not evolve

from supervised to unsupervised due to lack of mental health treatment and

housing issues.3       The caseworker further testified to her concerns for

Children’s overall safety if Children were reunified with Mother for the same

reasons.

       Thus, despite Mother’s progress, her inability to remedy the conditions

that led to the removal continued to exist twenty-eight months after

Children’s removal from her care. Moreover, there was evidence that in light

of Mother’s conduct, termination would best serve the needs and welfare of

Children. Therefore, we discern no abuse of discretion or error of law in the

trial court’s consideration of Section 2511(a)(8).

       Mother next challenges the trial court’s determination that termination

of her parental rights was proper under Section 2511(b).        Mother argues
____________________________________________
3
  The trial court could consider Mother’s lack of cooperation with DHS in
scheduling a home assessment of her new residence. Cf. In re D.A.T., 91
A.3d at 205.



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there is a strong bond between her and Children and that termination of her

parental rights are not in the best interests of Children. Mother’s Brief at 11.

She contends Children would be cut off from the only source of love,

comfort, security and stability Children have ever known. We conclude that

the trial court must give further consideration of Children’s best interests

before terminating Mother’s parental rights under Section 2511(b).

      Section 2511(b) states:

          (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(b).    Under Section 2511(b),

          a court “shall give primary consideration to the
          developmental, physical and emotional needs and welfare
          of the child.” The emotional needs and welfare of the child
          have been properly interpreted to include “[i]ntangibles
          such as love, comfort, security, and stability.” . . . [T]he
          determination of the child’s “needs and welfare” requires
          consideration of the emotional bonds between the parent
          and child. The “utmost attention” should be paid to
          discerning the effect on the child of permanently
          severing the parental bond.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted) (emphasis

added).



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      Instantly, the trial court entered the following findings of fact and

conclusions of law at the termination and goal change hearing:

         What I found most compelling is that, while mom has done
         a number of objectives, the primary objective is mental
         health. And, because of that, she can never be with
         [Children] unsupervised. It really is a big barrier towards
         reunification because [Children] simply could not safely
         return home to [Mother].

         And so I’m happy that [Children] are with family and
         [Mother] will continue to have a relationship with
         [Children], but I do not believe that, during this time—this
         two-year period—that [Mother] has shown the [c]ourt that
         she would be able to be reunified with [Children].

         I believe that the testimony is clear that a significant bond,
         the parental bond, which is intact between [Children] and
         [Maternal Grandfather], and while [Mother] assists a lot, I
         do believe that [Children] look to [Maternal Grandfather]
         to meet their day to day needs.

N.T., 6/7/16, at 22. In its Pa.R.A.P. 1925(a) opinion, the trial court further

explained:

         In the present matter, during the twenty eight months
         (28) [Children] have been in DHS care, [Children] have a
         parent-child bond relationship with their Grandfather, their
         foster parent. [Ms. Morrison] stated [Children’s] financial,
         medical and daily needs were being met by the foster
         parent, [Maternal] Grandfather.         Furthermore, [Ms.
         Morrison]’s testimony stated [C]hildren would not suffer
         any detrimental impact, nor irreparable harm, if [M]other’s
         parental rights were terminated.

         [Ms. Morrison] testified to concerns of the overall safety of
         [C]hildren and [M]other if [C]hildren were to be reunified
         with [M]other.      [Ms. Morrison] stated concern about
         reunification or permanency as unsupervised visitation was
         not expanded in this particular matter. The [c]ourt found
         convincing the testimony that [Children] indicated they
         would be fine in their current placement with the foster


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         parent. Hence, the [c]ourt concluded [Children] would not
         suffer irreparable harm.

Trial Ct. Op. at 6 (record citations omitted).

      We are constrained to conclude that the above analysis relied on

insufficient evidence regarding the permanent severance of the bonds

between Mother and Children.       The existence of parental bonds between

Mother and Children was undisputed.        Without diminishing the facts that

Mother gave birth to S.D.C. in a bathtub and turned S.D.C. over to a friend,

the record establishes that Mother has been a resource for Children while

Children were in Grandfather’s care, and that the relationship between

Mother and Children was generally positive.

      We acknowledge that the trial court was entitled to credit and weigh

the testimony of an agency caseworker regarding the bonds between Mother

and Children. In the present case, however, Ms. Morrison’s terse answers to

the questions of whether Children would suffer irreparable harm provided

little insight into the emotional and psychological effects of termination on

Children.   Furthermore, it appears that the trial court considered the fact

that Children’s placement with Maternal Grandfather would permit continued

contact between Mother and Children. In light of the foregoing, we cannot

conclude the trial court properly discerned the effects of permanently

severing Mother’s parental bond. See In re T.S.M, 71 A.3d at 267.

      Accordingly, we vacate the order granting DHS’s petition to terminate

Mother’s parental rights.     The trial court shall consider the effects of


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permanently severing Mother’s parental bonds.            Under the circumstances

presented here, and given the apparent absence of additional bonding

evidence, we conclude that the trial court shall order a professional bonding

assessment and thereafter hold a hearing to consider that evidence as soon

as possible.

        Lastly, Mother contends that the trial court erred in granting DHS’s

requests for goal changes from reunification to adoption. Mother raises the

same arguments set forth in her challenges to the trial court’s order

terminating her parental rights.        In light of our decision to remand this

matter for further proceedings under Section 2511(b), we vacate the order

changing the goal from reunification to adoption pending the trial court’s

decision.

        Decrees terminating parental rights affirmed in part and vacated in

part.     Orders changing permanency goal to adoption vacated.                Case

remanded       for   further   proceeding   consistent   with   this   memorandum.

Jurisdiction relinquished.

        President Judge Gantman joins.

        Judge Stabile concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2017




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