J-S42018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: P.B., A MINOR :            IN THE SUPERIOR COURT OF
                                      :                 PENNSYLVANIA
                                      :
    APPEAL OF: C.P., MOTHER           :
                                      :
                                      :
                                      :
                                      :
                                      :            No. 461 EDA 2019


                Appeal from the Order Entered, January 11, 2019,
              in the Court of Common Pleas of Philadelphia County,
                Family Court at No(s): CP-51-DP-0000535-2016.


    IN THE INTEREST OF: P.W.B., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.P., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 462 EDA 2019


                Appeal from the Order Entered, January 11, 2019,
              in the Court of Common Pleas of Philadelphia County,
                Family Court at No(s): CP-51-AP-0000479-2018.


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED SEPTEMBER 16, 2019

        C.P. (Mother) appeals the order granting the petition filed by the

Philadelphia Department of Human Services (DHS) that involuntarily

terminated her parental rights to 4-year-old P.W.B. (Child) pursuant to the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Adoption Act.1 See 23 Pa.C.S.A. § 2511(a)(2), and (b).         After review, we

affirm.

       We glean the relevant factual and procedural history from the trial court

opinion filed pursuant to Pa.R.A.P. 1925(a):

          DHS originally became involved with this family on February
          28, 2016, after DHS received a General Protective Services
          (GPS) report which alleged that police officers responded to
          a complaint regarding a domestic dispute at the home of
          Mother and Father; Father claimed that Mother locked him
          and Child out of the home and that Mother was under the
          influence of a substance and that Mother was not taking her
          prescribed medication; Child and Father had no resources
          for the night because Mother refused to open the door to
          the home for Child and Father; Mother was not cooperative
          with the responding police officers; eventually, police were
          able to obtain a telephone number for Paternal Grandfather;
          Child and Father went to the 19th District Philadelphia Police
          Station and were subsequently transported to Paternal
          Grandfather’s home. This report was determined to be
          valid.

          On March 2, 2016, DHS went to the home of Mother. Mother
          admitted to using heroin and cocaine. Mother also stated
          that she was diagnosed with schizoaffective disorder and
          major depressive disorder, for which she was prescribed
          medication.    Mother admitted that she was previously
          enrolled in an outpatient treatment program for her mental
          health issues, but she had not been compliant with the
          program for at least the previous month. Mother stated that
          she and Father had a dispute. In reaction to the dispute
          and the narcotics that she and Father were taking, Father
          became paranoid and left the home with Child. Mother
          stated that she then locked the door behind them and would
          not let them return to the home. Mother also indicated that
          she and father were under the influence of narcotics at the
          time of the incident on February 28, 2016. On that same
____________________________________________


1The trial court also terminated the rights of W.B. (Father); that appeal is
part of a separate matter that is also before this panel.

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       day, DHS went to the home of Paternal Grandfather, where
       he and Child were present, while Father was at Friends
       Hospital being treated for substance use issues. Paternal
       Grandfather indicated that this was not the first time that
       he has cared for Child due to Mother and Father’s inability
       to care for Child. Paternal Grandfather indicated that
       Mother had been using narcotics while she was in her
       treatment program and that he was interested in obtaining
       kinship care services for Child. DHS subsequently obtained
       an Order of Protective Custody (OPC) for Child.

       On March 4, 2016, a shelter care hearing was held for Child.
       The trial court lifted the OPC, ordered that temporary
       commitment to DHS was to stand, and referred Mother to
       the Clinical Evaluation Unit (CEU) for a forthwith drug
       screen, and an assessment with dual diagnosis. At Mother’s
       forthwith drug screen, Mother tested positive for alcohol,
       cocaine, opiates, and diluted creatine. [Footnote 3]

          Footnote 3: Creatinine is a by-product produced by
          human kidneys that enables the trial court to ascertain
          whether the individual is “washing” his or her urine by
          drinking substances before drug testing to dilute and
          mask any drugs in their urine. [Citation omitted].

       On March 14, 2016, Child was adjudicated dependent and
       fully committed to DHS. The trial court referred Mother to
       the CEU for an assessment, a forthwith drug and alcohol
       screen with dual diagnosis, and three random screens.
       Mother was also referred for domestic violence counseling
       and Mother was ordered to comply with all Single Case Plan
       (SCP) objectives and recommendations. Between April 8,
       2016 and May 12, 2016, Mother had eight positive drug
       screens at her treatment program, Chances.

       On May 25, 2016, the SCP was revised. Mother’s objectives
       were to attend and participate in individual and group
       therapy on a weekly basis; comply with the treatment
       recommendations; produce negative drug screens; sign all
       releases of information; successfully complete a treatment
       program; collaborate with the ICM as recommended;
       successfully complete a mental health program; attend and
       participate in parenting classes on a weekly basis; attend
       and participate in Child/Parent Psychotherapy on a weekly
       basis; attend and participate in a domestic violence


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       program; and participate in weekly visitation with Child, as
       ordered by the trial court.

       On June 13, 2016, a permanency review hearing was held
       for Child. Mother was not present for this hearing. The trial
       court determined that Mother was fully compliant with the
       permanence review plan. The trial court ordered Mother to
       continue to comply with her objectives, ordered the CEU to
       continue to monitor Mother’s treatment, and Mother was
       ordered to attend the Child/Parent psychotherapy program.

       On August 22, 2016, a permanency review hearing was held
       for Child. Mother was present for this hearing. The trial
       court determined that Mother had been minimally compliant
       with the permanency plan. The trial court referred Mother
       to the CEU for a forthwith drug screen, an assessment, and
       three random drug screens. At Mother’s forthwith drug
       screen, Mother tested positive for alcohol, cocaine, and
       diluted creatinine.

       On September 13, 2016, a permanency review hearing was
       held for Child. Mother was present for this hearing. The
       trial court referred Mother to the CEU for an assessment, a
       drug and alcohol screen, and three random drug and alcohol
       screens. On October 4, 2016, Mother tested positive for
       alcohol and diluted creatinine. On November 10, 2016,
       Mother tested positive for diluted creatinine.

       On September 29, 2016, the SCP was revised. Mother’s
       objectives were to attend and participate in individual and
       group therapy weekly; comply with the treatment
       recommendations; produce negative drug screens; sign
       releases of information for the treatment program;
       successfully complete the treatment programs and receive
       a certificate; complete three random drug screens prior to
       the next court date, as ordered; collaborate with the
       intensive case manager (ICM) as recommended; attend and
       participate in Child/Parent Psychotherapy and receive a
       certificate; and participate in weekly visitation with Child as
       scheduled by the trial court order.

       On November 21, 2016, a permanency review hearing was
       held for Child. Mother was present for this hearing. The
       trial court determined that Mother was fully compliant with
       the permanency review plan. The trial court referred Mother
       for a parenting capacity evaluation.     Mother was also

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       referred to the CEU for a drug and alcohol screen and three
       random screens. Mother was ordered to sign releases and
       to continue to comply with all SCP objectives and
       recommendations.

       On February 6, 2017, a permanency review hearing was
       held for Child. Mother was not present for this hearing. It
       was reported that Mother’s attendance at Chances was
       sporadic and that she was discharged from the program
       because she was incarcerated. Mother was incarcerated at
       State Correction Institute (SCI) Muncy on December 15,
       2016, and remains incarcerated.

       On February 24, 2017, the SCP was revised. Mother’s
       objectives were to attend and participate in individual and
       group therapy weekly; comply with the treatment
       recommendations; produce negative drug screens; sign
       releases of information for the treatment program;
       successfully complete the treatment programs and receive
       a certificate; attend and participate in Child/Parent
       Psychotherapy and receive a certificate; and participate in
       weekly visitation with Child as scheduled by the trial court
       order.

       On April 17, 2017, and June 7, 2017, permanency review
       hearings were held for Child. Mother was not present for
       these hearings. Legal custody of Child remained with DHS.

       On October 3, 2017, the SCP was revised.               Mother’s
       objectives were to attend and participate in the SCI Muncy
       drug and alcohol program; comply with the treatment
       recommendations; produce negative drug screens;
       successfully complete the treatment program and receive a
       certificate; attend and participate in the SCI Muncy mental
       health program; complete parenting classes at SCI Muncy;
       complete the virtual visitation orientation class; and to
       make herself available to participate in virtual visitation with
       Child.

       On October 11, 2017, and January 10, 2018, permanency
       review hearings were held for Child. Mother was not present
       for this hearing [sic]. It was determined that Mother
       remained incarcerated and Mother was fully compliant with
       the permanency plan.



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          On April 5, 2018, a permanency review hearing was held for
          Child. Mother was not present for this hearing. It was
          determined that Mother remained incarcerated and Mother
          was substantially compliant with the permanency plan.

          Child has been in DHS care since March 2, 2016. Mother
          has failed to place herself in a position to parent Child
          throughout the life of the case and remains incarcerated.
          DHS filed petitions to involuntarily terminate Mother’s
          parental rights and change Child’s permanency goal to
          adoption on June 7, 2018.

          On September 24, 2018, a permanency review hearing was
          held for Child. Mother was not present for this hearing. It
          was determined that Mother remained incarcerated. The
          trial court ordered that all prior orders as to Mother were to
          stand.     On this date, the trial court also began the
          termination and goal change trial for Child. Since Mother
          was unavailable to testify, the trial court ordered Mother’s
          Counsel to make arrangements for Mother to be available
          via telephone, if Mother wished to testify at the continuation
          of the termination and goal change trial on January 11,
          2019.

          On January 11, 2019, the trial court continued taking
          testimony on the termination and goal change trial for Child.
          Mother participated in this trial via telephone. [Child] was
          appointed [legal counsel] and gave testimony regarding
          Child’s wishes at the termination and goal change trial.[ 2]
          After all testimony was given, the trial court found clear and
          convincing evidence to change the permanency goal to
          adoption and to involuntarily terminate Mother’s parental
          rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).

See    Trial   Court    Opinion,    4/5/19,    at   1-5   (citations   to   the   record

omitted)(footnote added).




____________________________________________


2 Child’s interests were properly represented pursuant to 23 Pa.C.S.A. §
2313(a).

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      Mother represents in her brief that her parole had been granted and her

release from prison was scheduled for May 21, 2019. See Mother’s Brief at

12.

      Mother filed a timely notice of appeal. She presents the following issues

for our review:

            1. Whether the trial court erred by terminating the
               parental rights of Mother pursuant to 23 Pa.C.S.A. §
               2511(a)(1) without clear and convincing evidence of
               Mother’s intent to relinquish her parental claim or
               refusal to perform her parental duties?

            2. Whether the trial court erred by terminating the
               parental rights of Mother pursuant to 23 Pa.C.S.A. §
               2511(a)(2) without clear and convincing evidence of
               Mother’s present incapacity to perform parental
               duties?

            3. Whether the trial court erred by terminating the
               parental rights of Mother pursuant to 23 Pa.C.S.A. §
               2511(a)(5) without clearing and convincing evidence
               to prove that reasonable efforts were made by DHS to
               provide Mother with additional services and that the
               conditions that led to the placement of Child continue
               to exist?

            4. Whether the trial court erred by terminating the
               parental rights of Mother pursuant to 23 Pa.C.S.A. §
               2511(a)(8) without clearing and convincing evidence
               that the conditions that led to placement of the child
               continue to exist when Mother presented evidence of
               compliance with the goals and objectives of her Single
               Case Plan?

            5. Whether the trial court erred by terminating the
               parental rights of Mother pursuant to 23 Pa.C.S.A. §
               2511(b) without clearing and convincing evidence that
               there is no parental bond between Mother and Child
               and that termination would serve the best interest of
               the child.


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Mother’s Brief at 7.

      We review these claims mindful of our well-settled standard or 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 have first-hand observations of the parties spanning
         multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotations marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 §§ 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).


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      We have defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation and

quotation marks omitted).

      In this case, the court terminated Mother’s parental rights pursuant to

Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the court

as to any one subsection of 2511(a), as well as Section (b), in order to affirm.

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

      Instantly, we analyze the trial court's decision to terminate under

Section 2511(a)(2) and (b).

       (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.



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23 Pa.C.S.A. § 2511(a)(2), (b).

      Regarding Section 2511(a)(2), we have explained:

         In order to terminate parental rights pursuant to 23
         Pa.C.S.A. § 2511(a)(2), the 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.

         The 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (citations,

internal quotation marks, and indentation omitted).

      Here, Mother argues there are no grounds to terminate her parental

rights, because she resolved her issues while she was incarcerated. We do

not discount Mother’s progress during her incarceration. Indeed, she put her

time to good use by participating in various programs.      The questions are

whether, in light of this programming, did Mother evince a present incapacity

to parent Child, and whether that incapacity will be remedied?

      We note that Pennsylvania recognizes that incarceration alone is not

determinative of parental incapacity; however, it can be determinative in

showing that a parent is incapable of providing essential parental care. In re

Adoption of S.P., 47 A.3d 817, 831 (Pa. 2012). “The child's need for

consistent parental care and stability cannot be put aside or put on hold simply

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because the parent is doing what she is supposed to do in prison.” In re

E.A.P., 944 A.2d 79, 84 (Pa. Super. 2008). Parental rights cannot be

preserved by a parent waiting for a more convenient time to fulfill their

parental duties. In re D.J.S., 737 A.2d 283, 287 (Pa. Super. 1999).

      We do not ignore the fact that Mother could presently be out of prison,

but we are careful not to speculate. At the time of termination hearing, Mother

faced incarceration for another 22 months. If we are to consider the possibility

that Mother has been released from incarceration, an acceptable inference

would be to ponder how long Mother could stay sober and out of prison; after

all, Mother’s present incarceration stemmed from a 2004 felony drug

conviction. Mother had been incarcerated multiple times for violations of her

probation.     Even according to Mother, she would need to spend an

indeterminate amount of time in a half-way house following her release. In

other words, this case is not as simple as Mother would have us believe.

Consider,    for   instance,   Mother’s   significant   incapacity   prior   to   her

incarceration.

      During the six months between Child’s dependency adjudication and

Mother’s incarceration, Mother could not produce negative drug screens, much

less fulfill any other reunification goal.     Only after her incarceration, could

Mother even begin to straighten herself out. And while Mother’s sobriety is

unquestionably the first step toward providing adequate parental care, it does

not equate parental care.




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      This is to say nothing of Mother’s mental health issues, which also

require a high level of attention. Mother was placed in the mental health unit

at SCI Muncy, which is considered to be a residential treatment center with a

psychologist present at all times. Mother’s placement in the mental health

unit is based on her depression and schizoaffective disorder.

      Regarding the first prong of the termination analysis, the trial court

concluded that DHS provided clear and convincing evidence demonstrating

Mother’s incapacity to parent, that incapacity has caused Child to go without

necessary parental care, and that Mother cannot remedy the causes of this

incapacity. This conclusion was not an abuse of discretion.

      Next, we consider whether termination was proper under Section

2511(b). With regard to Section 2511(b), our Supreme Court has stated as

follows:

           [I]f the grounds for termination under subsection (a) are
           met, a court “shall give primary consideration to the
           developmental, physical and emotional needs and welfare
           of the child.” 23 Pa.C.S. § 2511(b). The emotional needs
           and welfare of the child have been properly interpreted to
           include [i]ntangibles such as love, comfort, security, and
           stability.... [T]his Court held that the 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 at 267 (internal case citations omitted).

      Here, Mother contends that she and Child still have a strong emotional

bond notwithstanding her incarceration, because she was the primary


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caregiver for the first 17 months of Child’s life prior to his removal. Mother

argues that she continued to strengthen the bond with Child during her

incarceration via virtual visitation and telephonic communication. The trial

court concluded otherwise, and we discern not abuse of discretion.

      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 trial court when determining what is in

the best interest of the child. In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014)

(citing In re K.K.R.–S., 958 A.2d 529, 535–536 (Pa. Super. 2008)). The mere

existence of an emotional bond does not preclude the termination of parental

rights. Id., 93 A.3d at 897-898; see also 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 trial court must examine the status of the

bond to determine whether its termination “would destroy an existing,

necessary and beneficial relationship.” Id. at 898 (citation omitted). Beyond

the presence of the bond, the trial court can equally emphasize the safety

needs of the child, and should also consider the intangible, such as the love,

comfort, security, and stability the child might have with the foster parent.

See In re Adoption of C.D.R., 111 A.3d at 1219.

      Mother claims that she sent Child cards, letters, and gifts, but the

caseworker testified that the foster parent received no such correspondence

from Mother. Child was outside of Mother’s care for nearly three years at the

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time of the termination hearing. During that time, the foster parent provided

for Child’s daily needs.   Child refers to the foster parent as “Mommy”; he

considers the other child in the home to be his sibling; he turns to the foster

parent for support and stability. Even if Mother is correct that a bond still

exists between her and Child, the trial court found that such a bond was not

so beneficial that Child would suffer irreparable harm if the bond was severed.

      Regarding the second prong of the termination analysis, the trial court

concluded that DHS provided clear and convincing evidence that termination

would best serve Child’s needs and welfare.          We conclude that this

determination was not an abuse of discretion.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/19




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