J-S59030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE    INTEREST    OF:   T.N.M.R.,   A      IN THE SUPERIOR COURT OF
MINOR                                                PENNSYLVANIA


APPEAL OF: T.R., MOTHER                        No. 3628 EDA 2015


             Appeal from the Decree entered October 30, 2015,
       in the Court of Common Pleas of Philadelphia County, Family
     Court, at No(s): 51-FN-00001184-2014, CP-51-AP-0000700-2015

IN THE INTEREST OF: R.J.C.R., JR., A           IN THE SUPERIOR COURT OF
MINOR                                                PENNSYLVANIA


APPEAL OF: T.R., MOTHER                        No. 3630 EDA 2015


             Appeal from the Decree entered October 30, 2015,
       in the Court of Common Pleas of Philadelphia County, Family
     Court, at No(s): 51-FN-00001184-2014, CP-51-AP-0000701-2015

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD*, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 04, 2016

     T.R. (“Mother”) appeals from the decrees dated and entered on

October 30, 2015, granting the petitions filed by the Philadelphia County

Department of Human Services (“DHS” or the “Agency”) to involuntarily

terminate her parental rights to her dependent children, T.N.M.R., a female

born in January of 2013, and R.J.C.R., Jr., a male born in November of 2006




* Former Justice specially assigned to the Superior Court.
J-S59030-16


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

§ 2511(a)(1), (2), (5), (8), and (b).1 We affirm.

      The trial court set forth the relevant history of this case in its

Opinion. See Trial Court Opinion, 2/22/16, at 1-2 (unpaginated). We adopt

the trial court’s recitation for purposes of this appeal. See id.

      On October 14, 2015, DHS filed petitions to terminate Mother’s

parental rights to the Children. At the hearing on October 30, 2015, DHS

presented the testimony of its caseworkers, Markey Woodard and Monica

Burton.   Mother presented the testimony of her medical case manager,

Margaret Pelleriti. Mother also testified on her own behalf.

      On October 30, 2015, the trial court entered the termination decrees.

On November 30, 2015, Mother timely filed notices of appeal along with

concise statements of error complained of on appeal pursuant to Pa.R.A.P.

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

      In her brief on appeal, Mother raises six questions for this Court’s

review, as follows:


1
  Neither A.W., the natural father of T.N.M.R., nor R.C., the natural father of
R.J.C.R., Jr., filed a brief or participated in Mother’s appeals. The trial court
had not terminated either of the father’s parental rights at the time that the
record in this case was certified.
2
 The briefing schedule in this case was delayed by one and one-half months
because of an overdue record and by more than two months because of
extensions requested by Mother’s appointed counsel. Upon receipt of the
certified record and appellate briefs from both of the parties, the Superior
Court acted diligently in securing a prompt disposal of this appeal.


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J-S59030-16


     A. [Whether the t]rial [c]ourt [abused] its discretion and
     committed legal error in terminating [M]other’s parental rights,
     since the [DHS] did not meet its burden by clear and convincing
     evidence of establishing sufficient grounds that [M]other
     evidenced a settled purpose of relinquishing a claim to [the
     C]hildren or has refused or failed to perform parental duties
     under 23 Pa.C.S.A. § 2511(a)(1)[?]

     B. [Whether the t]rial [c]ourt [abused] its discretion and
     committed legal error in terminating [M]other’s parental rights,
     since the [DHS] did not meet its burden by clear and convincing
     evidence of establishing sufficient grounds under 23 Pa.C.S.A. §
     2511(a)(2) that [M]other lacks the present capacity to perform
     her parental responsibilities?]

     C. [Whether the t]rial [c]ourt [abused] its discretion and
     committed legal error in terminating [M]other’s parental rights
     under 23 Pa.C.S.A. § 2511(a)(5), because the [DHS] failed to
     prove by clear and convincing evidence the present and
     continued incapacity of [M]other to provide essential care
     necessary    for  [the   C]hildren’s  physical   and    mental
     well[-]being[?]

     D. [Whether the t]rial [c]ourt [abused] its discretion and
     committed legal error in terminating [M]other’s parental rights
     under 23 Pa.C.S.A. § 2511(a)(8), because the [DHS] failed to
     prove by clear and convincing evidence that the conditions which
     led to both [C]hildren’s placement continue to exist[?]

     E. [Whether the t]rial [c]ourt [erred] in terminating [M]other’s
     parental rights since the [DHS] did not meet its burden by clear
     and convincing evidence of showing that the best interest of the
     [C]hildren was served by terminating [M]other’s parental rights
     pursuant to section 2511(b) of the Adoption Act[?]

     F. [Whether the t]rial [c]ourt abused its discretion and
     committed legal error in terminating [M]other’s parental rights
     under 23 Pa.C.S.A. § 2511(b), because the [DHS] did not
     present competent evidence regarding the nature of the bond
     between parent and children in evaluating the best interests of
     the [C]hildren[?]




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Mother’s Brief at 3-4 (unpaginated; with grammatical revisions).3

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

adhere to 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 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. In re: R.J.T., 608 Pa. 9, 9
     A.3d 1179, 1190 (Pa. 2010).           If the factual findings are
     supported, appellate courts review to determine if the trial court
     made an error of law or abused its discretion. Id.; R.I.S., [614
     Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)].
     As has been often stated, an abuse of discretion does not result
     merely because the reviewing court might have reached a
     different conclusion. Id.; see also Samuel Bassett v. Kia
     Motors America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa.
     2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d
     630, 634 (Pa. 2003). Instead, a decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. Id.

     As we discussed in R.J.T., there are clear reasons for applying
     an abuse of discretion standard of review in these cases. We
     observed that, unlike trial courts, appellate courts are not
     equipped to make the fact-specific determinations on a cold

3
   The trial court stated that, in addition to terminating Mother’s parental
rights, it changed the permanency goal for the Children to adoption under
the Juvenile Act, 42 Pa.C.S.A. § 6351. See Trial Court Opinion, 2/22/16, at
2, 6 (unpaginated). Both termination decrees provided that the adoption of
the child may continue without further notice or consent of Mother. We note
that dependency matters are with regard to the child lacking proper parental
care and control as to both parents. See In re J.C., 5 A.3d 284, 289 (Pa.
Super. 2010). In any event, Mother failed to challenge the goal change,
and, thus, waived any challenge to that determination. See Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both his or her concise statement of errors complained of on appeal and the
Statement of Questions Involved in his or her brief on appeal).


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J-S59030-16


     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents. R.J.T., [608 Pa. at
     28-30], 9 A.3d at 1190. Therefore, even 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
     Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (Pa.

2012).

     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).

     Moreover, we have explained:

     [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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

     The trial court terminated Mother’s parental rights under section

2511(a)(1), (2), (5), (8), and (b). See Trial Court Opinion, at 2/22/16, at 2

(unpaginated). This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a).   See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en




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J-S59030-16


banc).     We will focus on section 2511(a)(1) and (b), which provide as

follows:

      § 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.

                                    ***

      (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.

      In In re Z.S.W., 946 A.2d 726 (Pa. Super. 2008), this Court stated:

      [t]o satisfy the requirements of section 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 re Adoption of R.J.S., 901 A.3d 502, 510
      (Pa. Super. 2006). In addition,

             Section 2511 does not require that the parent
             demonstrate both a settled purpose of relinquishing

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           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.

     In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa.
     1998).

           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).

     Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d at 730 (parallel citations omitted).

    The trial court found the following based upon the testimony of Ms.

Woodard and Ms. Burton.

     In the instant case, Mother did not fully complete her Family
     Service Plan (FSP) goals. Ms. Woodard, the original DHS social
     worker, identified the mother’s FSP objectives as: 1) attend
     parenting and anger management classes, 2) maintain visits
     with the [C]hildren, 3) obtain suitable housing, 4) attend the
     [C]hildren’s medical appointments, and 5) complete mental
     health treatment. (N.T., 10-30-15, p. 15). Ms. Burton, the
     current DHS social worker[,] was never able to confirm whether
     or not Mother [] obtained appropriate housing because Mother
     never allowed her access to her home. (N.T., 10-30-15, pgs. 37
     and 46).    The social workers testified that because Mother
     denied them access, they were unable to ascertain whether her
     paramour was living in the home. Mother’s paramour was not
     permitted to be in the home with the [C]hildren because he was
     a sexual offender.     (N.T., 10-30-15, pgs. 22-23 and 38).
     Furthermore, Mother did not attend the [C]hildren’s medical
     appointments. (N.T., 10-30-15, pg. 41). Moreover, Mother did

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     not complete her mental health treatment. (N.T., 10-31-15, pg.
     49). Mother NEVER provided DHS with documentation that she
     was attending treatment for mental health. (N.T., 10-30-15,
     pgs. 49 and 57).

Trial Court Opinion, 2/22/16, at 3 (unpaginated) (emphasis in original).

     On direct examination, Mother testified that she completed a 16-week

parenting class at Achieving Reunification Center (“ARC”) on October 22,

2015, and began the class in July of 2015.        N.T., 10/30/15, at 68-69.

Mother testified that no DHS employee came to evaluate the home where

she had been living since November of 2014. Id. at 69-70. Further, Mother

testified that she was receiving mental health treatment at COMHAR, and

met weekly with a psychotherapist for mental health treatment. Id. at 71.4

Mother stated that she left voicemail messages with DHS caseworker Monica

Burton on ten occasions to inform DHS about her parenting classes and

anger management classes, and her mental health treatment at COMHAR.

Id. at 73. Mother also stated that she receives psychiatric treatment once

monthly, and receives medication for depression and bipolar conditions. Id.

at 74-75. Mother explained that her failure to visit the Children was because

she had heart failure and could not walk far prior to surgery, but that she

was currently under treatment for the heart condition.        Id. at 76-77.

Finally, Mother stated that R.J.C.R., Jr., would like to return home with her




4
 The notes of testimony erroneously refer to this agency as COHMAR. See
N.T., 10/30/15, at 71.
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when he sees her at visits, but T.N.M.R. is too young to understand

returning home with Mother. Id. at 77.

      On cross-examination by the child advocate, Mother testified that her

health, specifically her heart condition, prevented her from addressing the

matters necessary for reunification with the Children. N.T., 10/30/15, at 79-

80.    She blamed DHS for failing to inform her that she needed to bring

documentation to the hearing to support her claim that she could not attend

the visits because of her health. Id. Mother brought documentation to the

hearing indicating that she began treatment with a psychiatrist at COMHAR

on September 8, 2015.        Id. at 80.     While Mother stated that she saw

another psychiatrist prior to September of 2015, she failed to bring to the

hearing any documentation that would prove her claim.                Id. at 81.

Additionally, Mother blamed the failure of DHS to evaluate her home on the

failure of the DHS caseworker to respond to Mother’s voicemails. Id. at 83-

85.

       At the conclusion of the hearing, the trial court stated as follows:

       [THE COURT]: Even though [Mother] completed some of her
       Family Service Plan objectives within the last six months, for the
       balance of the case[,] [Mother] failed to visit[,] in the beginning
       of the case. The housing issue has always been an issue[,] and
       it’s still an issue. The mental health, [Mother’s] own document
       which she submitted[,] which I accepted[,] indicates that she
       started mental health [treatment] a month ago. She testified
       that she started it six months ago. I don’t find that to be
       credible. Her own document says a month ago. So mental
       health continues to be an issue.



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J-S59030-16


           I cannot – we need permanency for these children. The
     timeline doesn’t stop.        So theoretically for [Mother] to
     successfully complete it we’d have to wait another four to five
     months for her to complete her mental health. So based upon
     the totality of the circumstances –

     [MOTHER]: But, Judge, I did it.

     [THE COURT]: That is why [--] that is my rationale for the
     decision. I do find that Ms. Woodard and Ms. Burton testified
     credibly.

N.T., 10/30/15, at 93.

     With regard to section 2511(a)(1), the trial court found the following

from the testimony at the hearing.

     It is clear from the record that for a period of six (6) months
     leading up to the filing of the Petition for Involuntary
     Termination, [M]other failed to perform parental duties for the
     [C]hildren. The court found by clear and convincing evidence
     that [M]other refused or failed to perform her parental duties.

                                     ***

     In the instant matter, the [C]hildren, T.N.M.R. and R.J.C.R.,
     have been in placement care for approximately seventeen
     months. Mother was inconsistent with her visitation with the
     [C]hildren. (N.T., 10-30-15, p. 19). Furthermore, Mother had
     supervised visitation with the [C]hildren and she never
     progressed to unsupervised visitation. (N.T., 10-30-15, pgs. 18
     and 49). Moreover, the DHS social worker testified that Mother
     has no involvement with R.J.C.R.’s autism services, mental
     health therapy or school.       (N.T., 10-30-15, p. 41).     The
     testimony established that the [C]hildren are in a safe
     environment[,] and termination of the mother’s parental rights is
     in the best interest of the child. (N.T., 10-30-15, pgs. [25-26]
     and 40).

Trial Court Opinion, 2/22/16, at 3-4 (unpaginated).




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      The trial court carefully reviewed the testimony and the evidence

presented by the parties, and found that Mother failed to perform her

parental duties for the six months prior to the filing of the termination

petition. The trial court rejected, as lacking credibility, Mother’s reasons for

her abandonment of the Children and her explanation for her lack of contact

with the Children, specifically, her medical and mental health issues, her

treatment for those conditions, and the fact that she was living in a separate

household from the Children. See Mother’s Brief, at 10 (unpaginated); Trial

Court Opinion, 2/22/16, at 6 (unpaginated).

      We find that competent evidence of record supports the trial court

order concluding that, for a period of at least six months prior to the filing of

the petition, Mother engaged in conduct evidencing a settled purpose of

relinquishing her parental rights to the Children under section 2511(a)(1).

The trial court did not commit an abuse of discretion or an error of law. See

In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27.

      Next, this Court has explained that the focus in terminating parental

rights under section 2511(a) is on the parent, but, under section 2511(b),

the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008

(Pa. Super. 2008) (en banc).         Pursuant to section 2511(b), we must

consider whether the termination of parental rights would best serve the

developmental, physical, and emotional needs and welfare of the child. See

In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). “Intangibles


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such as love, comfort, security, and stability are involved in the inquiry into

the needs and welfare of the child.” Id. at 1287 (citation omitted). The trial

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

case, with utmost attention to the effect of permanently severing that bond

on the child. See id.

        When evaluating a parental bond, “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., 994 A.2d at 1121 (internal citations omitted).

Although it is often wise to have a bonding evaluation and make it part of

the certified record, “[t]here are some instances . . . where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.”         In re K.Z.S., 946

A.2d 753, 762 (Pa. Super. 2008).

        Based upon evidence within the certified record, the trial court found

that there is no bond between Mother and the Children, as the Children had

no difficulty separating from Mother at the end of visits, and there was no

irreparable harm to the Children when Mother missed visits.         Trial Court

Opinion, 2/22/16, at 5 (unpaginated) (citing N.T., 10/30/15, at 20, 51).

See also Trial Court Opinion, 2/22/16, at 5 (unpaginated). The trial court

stated:

        Furthermore, the [C]hildren look to the foster parents for love[,]
        safety, stability and support. The testimony of the social worker

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      indicated that [“]They have a strong bond with each other.”
      (N.T. 10-30-15, p. 25-26). The current social worker testified
      that the [C]hildren receive the love and care they need from the
      foster parents, “you can tell they are bonded with them.” They
      have a parent-child relationship. (N.T., 10-30-15, pgs. 40-41).
      The social workers testified that termination of [M]other’s
      parental rights would be in the best interest of the [C]hildren
      and that termination would cause no significant or irreparable
      harm to the [C]hildren. (N.T., 10-30-15, pgs. 25 and 40).

      The t]rial [c]ourt found by clear and convincing evidence that the
      Department of Human Services met [its] statutory burden
      pursuant to 23 Pa.C.S.A. §§ 2511(a) & (b) and that it was in the
      best interest of the [C]hildren to change the goal to adoption.
      (N.T., 10-30-15, pgs. 91-92).

      Lastly, in the instant matter, the [trial court] found that DHS
      social workers testified credibly.

                                    ***

      Furthermore, the [trial] court finds that its ruling will not cause
      R.J.C.R. and T.N.M.R. to suffer irreparable harm and it is in the
      best interest of the [C]hildren as [a] result of testimony
      regarding the [C]hildren’s safety, protection, mental, physical
      and moral welfare to terminate [M]other’s parental rights.

Trial Court Opinion, 2/22/16, at 5-6.

      As we stated in In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), a child’s

life “simply cannot be put on hold in the hope that [a parent] will summon

the ability to handle the responsibilities of parenting.”   Id. at 1125.    We

emphasized, “[p]arental rights are not preserved by waiting for a more

convenient time to perform one’s parental responsibilities while others

provide the child with [the] child’s physical and emotional needs.”     Id. at

1119 (quoting In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004)

(emphasis in original)). Rather, “a parent’s basic constitutional right to the

                                    - 13 -
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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.” In re B., N.M., 856 A.2d at 856. See In re: T.S.M., 620

Pa. 602, 628-629, 71 A.3d 251, 267 (Pa. 2013).

      Again, we find that the competent, clear and convincing evidence in

the record supports the trial court’s conclusion that the termination of

Mother’s parental rights would best serve the Children’s needs and welfare,

and would provide the Children with the permanency and stability that they

need in their life. The court’s conclusion is not the result of an error of law

or an abuse of discretion.      Accordingly, we affirm the trial court’s decision

with regard to subsection (b). In re Adoption of S.P., 616 Pa. at 325-26,

47 A.3d at 826-27.

      Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2016




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