J-S26030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.D.T., A MINOR              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

APPEAL OF: T.Y.B., MOTHER

                                                     No. 3376 EDA 2015


                    Appeal from the Decree October 7, 2015
              In the Court of Common Pleas of Philadelphia County
                  Family Court at No: CP-51-AP-0000037-2015


IN THE INTEREST OF: K.T.B, A MINOR               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

APPEAL OF: T.Y.B., MOTHER

                                                     No. 3379 EDA 2015


                    Appeal from the Decree October 7, 2015
              In the Court of Common Pleas of Philadelphia County
                  Family Court at No: CP-51-AP-0000036-2015


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 12, 2016

        Appellant, T.Y.B. (Mother), appeals from the October 7, 2015 decrees

involuntarily terminating her parental rights to her daughter, K.D.T., born in

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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June of 2013, and her son, K.T.B., born in April of 2012 (collectively, the

Children).1 After careful review, we affirm.

       In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth

the factual and procedural history of this case, which the record evidence

supports.    As such, we adopt the court’s recitation as our own.    See Trial

Court Opinion, 12/7/15, at 1-4.

       For purposes of background, we cite the following history of this case:

       This [f]amily became known to DHS [Department of Human
       Services of Philadelphia County] on July 1, 2012, when DHS
       received [a] General Protective Services (“GPS”) report alleging
       that [K.T.B.] . . . was left unsupervised by his Mother and taken
       to the hospital where he was diagnosed with a severe
       dehydration. Mother’s whereabouts remained unknown after
       several unsuccessful attempts to locate her.           Mother was
       transient. . . . Mother had red eyes and allegedly stated to DHS
       staff that they could take [K.T.B.] with them, if they wanted. On
       August 1, 2012, DHS learned that Mother and [K.T.B.] remained
       transient and had been residing with [K.T.B.]’s maternal aunt
       and Mother’s cousin. On August 4, 2012, DHS received a GPS
       [report] alleging that Mother was intoxicated and fighting with
       her cousin. The police arrived and it was alleged that Mother
       broke a window in maternal aunt’s home while having [K.T.B.] in
       her arms. Due to Mother’s injuries, she was hospitalized on
       August 3, 201[2]. . . . DHS obtained an Order for Protective
       Custody (“OPC”) for [K.T.B.] and he was placed in foster care
       through New Foundations. . . . On October 5, 2012, [K.T.B.]
       was adjudicated dependent. Mother was ordered to have a
       parenting capacity evaluation and was granted weekly
       supervised visitation at the agency. Mother was referred to the
____________________________________________


1
  In addition, by separate decrees on October 7, 2015, the parental rights of
D.T., the father of K.D.T., and M.M., the father of K.T.B., were involuntarily
terminated. D.T. filed a notice of appeal, which has not been listed before a
panel of this Court to date. We note that M.M. did not file a notice of appeal.
Further, we note that neither D.T. nor M.M. is a party in the instant appeal.



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      Clinical Evaluation Unit (“CEU”) and ordered to follow all of their
      recommendations. On October 20, 2012, Mother’s initial Family
      Service Plan (“FSP”) was developed. Reunification was the goal.
      Mother’s objectives were to participate in a mental health
      evaluation, drug and alcohol evaluation, to locate and occupy
      suitable housing, to enroll and attend a General Equivalency
      Diploma [program], to find employment, and lastly, [to]
      participate in meetings. Mother was ordered to have a parenting
      capacity evaluation.

      . . . On June [], 2013, Mother gave birth to [K.D.T.] . . . after
      thirty-five weeks gestation.    [K.D.T.] was admitted to the
      Neonatal Intensive Care Unit. On June 28, 2013, [K.D.T.] was
      ready to be discharged from the hospital. . . . On th[at] same
      day, DHS obtained an OPC for [K.D.T.]. . . . [K.D.T.] was
      adjudicated dependent on July 15, 2013. That same day, the
      trial court found Mother to be substantially compliant with her
      FSP. Mother’s visits were modified to supervised and to take
      place at maternal grandmother’s home.         Mother was also
      ordered to attend Family School.

Trial Court Opinion, 12/7/15, at 1-2 (citations to record omitted).

      On January 21, 2015, DHS filed petitions for the involuntary

termination of Mother’s parental rights.    On October 7, 2015, a hearing on

the petitions occurred, during which DHS presented the testimony of William

Russell, Ph.D., who performed two parental capacity evaluations on Mother;

Ishmael Jimenez, the DHS caseworker; and Dianna Wallace, a social worker

at Lutheran Church and Family Services. Mother presented the testimony of

Dana Ellis, a Family School social worker; and Mother testified on her own

behalf. In addition, D.T., the father of K.D.T., testified on his own behalf.

      By decrees dated and entered on October 7, 2015, the trial court

involuntarily terminated Mother’s parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), (8), and (b). Mother timely filed notices of appeal

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and concise statements of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte.

The trial court filed its Rule 1925(a) opinion on December 7, 2015.

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

      1. Did the [t]rial judge rule in error that [DHS] [met] its burden
      of proof that Mother’s parental rights to her children should be
      terminated under 2511(a)(1)[?]

      [2.] Did the [t]rial judge rule in error that [DHS] [met] its
      burden of proof that Mother’s parental rights to her children
      should be terminated under 2511(a)(2), 2511(a)(5)[,] and
      2511(a)(8)[?]

      [3.] Did the [t]rial judge rule in error that the termination of
      Mother’s parental rights would best serve the needs and welfare
      of the children[?]

Mother’s brief at 2.

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

review.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

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

omitted).

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      Termination of parental rights is governed by Section 2511 of the

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

analysis.

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

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

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

the asserted statutory grounds for seeking the termination of parental rights

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

      This Court need only agree with any one subsection of Section

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

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

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

Mother’s parental rights pursuant to Section 2511(a)(2) and (b), which

provide as follows:

      (a) General Rule.—The rights of a parent in regard to a child
      may be terminated after a petition filed on any of the following
      grounds:


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J-S26030-16


                                     ...

         (2) The repeated and continued incapacity, abuse,
         neglect or refusal of the parent has caused the child to be
         without essential parental care, control or subsistence
         necessary for his physical or mental well-being and the
         conditions and causes of the incapacity, abuse, neglect or
         refusal cannot or will not be remedied by the parent.

                                     ...

     (b) Other considerations.--The court in terminating the rights
     of a parent shall give primary consideration to the
     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), (6) or (8), the court shall not
     consider any efforts by the parent to remedy the conditions
     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

23 Pa.C.S.A. §§ 2511(a)(2), (b).

     To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

rights under Section 2511(a)(2), due to parental incapacity that cannot be

remedied, are not limited to affirmative misconduct; to the contrary those

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grounds may include acts of refusal as well as incapacity to perform parental

duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

      Further, this Court has stated that a parent is required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.   In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).     A

parent’s vow to cooperate, after a long period of uncooperativeness

regarding the necessity or availability of services, may properly be rejected

as untimely or disingenuous. Id. at 340.

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

analysis as follows:

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that the trial court must also discern
      the nature and status of the parent-child bond, with utmost
      attention to the effect on the child of permanently severing that
      bond. Id. However, in cases where there is no evidence of a
      bond between a parent and child, it is reasonable to infer that no
      bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
      2008).    Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      On appeal, Mother argues that the trial court abused its discretion in

terminating her parental rights under Section 2511(a) because she complied

with her FSP goals and with court orders. The crux of her argument is that


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the only FSP goals she did not attain, having adequate income and housing,

are not a basis for termination under Section 2511(b), which provides, in

relevant part, “[t]he 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.” 23 Pa.C.S.A. § 2511(b). We conclude that Mother’s arguments are

without merit.

      Mother properly asserts that she completed a CEU evaluation, which

determined that she did not need substance abuse intervention. In addition,

Mother completed anger management classes, parenting classes, and she

was consistent with her mental health treatment.      However, upon review,

the testimonial evidence demonstrates that Mother has failed to obtain her

General Equivalency Diploma and to pursue diligently the services provided

for obtaining employment and housing during the history of this case.

      Ishmael Jimenez, the DHS caseworker, testified on direct examination

that the Achieving Reunification Center (ARC) offered services to Mother

with respect to obtaining employment. N.T., 10/7/15, at 43. Specifically,

he testified regarding the ARC report dated July 11, 2014, which revealed

that Mother was offered a ten-week job training program, but her

attendance was not consistent.      The report also revealed that Mother

ultimately declined to continue addressing her employment goal. Id.; DHS

Exhibit 26. Mr. Jimenez continued as follows:


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       [Q.] Did Mom, [at] that time, provide you with the paystub to
       show that she has employment, that she is gainfully [ ]
       employed. . .?

       [A.] No.

       [Q.] Is there any reason that you can imagine why Mom
       wouldn’t be doing an employment assistance. . .?

       [A.] No.

N.T., 10/7/15, at 43-44.

       Mother testified that she became employed in June of 2015.     Id. at

145. She works 40 hours per week, which includes three different shifts and

“[s]ometimes overnight.” Id. at 148. She testified on cross-examination by

DHS:

       [Q.] If you got your Children back right now, where would they
       go overnight when you were working?

       [A.] I have looked up 24-hour day care.

       [Q.] And what is the name of it?

       [A.] I don’t know the name, but it’s [in] Germantown.

Id. at 148.

       With respect to housing, Mother testified on direct examination that

she resides in a shelter. Id. at 145. Importantly, Mr. Jimenez testified that

he made referrals to Mother with respect to obtaining housing. Id. at 42.

He testified that, “more recently she impressed upon me the need [for

housing assistance]. She seemed very urgent about it. I was able to gather

a great deal of information . . . that seemed to fall in[to] [the] realm of


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being qualified for [obtaining housing]. And I gave her that information over

the phone.” Id.

      In addition, Mr. Jimenez testified that, in early 2015, he had a

conversation with Mother regarding reunification with the Children.     Id. at

72.   He testified, “[S]he’s all along wanted to take on the custody of the

children. But I discussed with her the need to have . . . a plan. You have to

have an understanding of what you’re going to do, how you’re going to do it,

and the future.    But that really hasn’t happened.”       Id.    Mr. Jimenez

continued on direct examination:

      [Q.] If Mom took the kids today and went to live in the shelter,
      has she identified a daycare that the kids can go to, since she’s
      working full time?

      [A.] There was no other plan besides taking the children to the
      shelter.

      [Q.] Has she identified an appropriate resource to help her with
      these children, since she’s working full time and is going to be
      living in . . . a shelter with them, in her mind[,] right now?

      [A.] No.

Id. at 72-73.

      Finally, Dr. Russell testified that he conducted two forensic evaluations

of Mother, one in March of 2013, and the other in April of 2015.          N.T.,

10/7/15, at 10; DHS Exhibits 8, 27. He acknowledged that, by the time of

his second evaluation, Mother appeared “less angry” and “less irritable” than

she presented in March of 2013.       Id. at 26.    Nevertheless, Dr. Russell

agreed on cross-examination by the Child Advocate that Mother continued to

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lack the capacity to provide the Children with safety and permanency. Id.

at 19.

         Based on the foregoing, we conclude that the record evidence supports

the involuntary termination of Mother’s parental rights pursuant to Section

2511(a)(2).     Indeed, Mother’s continued incapacity, neglect, or refusal to

pursue the services offered to obtain employment and housing have caused

K.T.B. and K.D.T. to be without essential parental care, control, or

subsistence necessary for their physical or mental well-being since August of

2012, and June of 2013, respectively. Contrary to Mother’s argument, we

conclude that Mother’s inadequate income and/or housing was not beyond

her control throughout the length of the Children’s placement. In addition,

we discern no abuse of discretion by the court in finding that the causes of

Mother’s incapacity, neglect, or refusal cannot or will not be remedied.

Although the record reveals that Mother had employment at the time of the

subject proceedings, we deem her employment, obtained in June of 2015, as

untimely when K.T.B. has been in placement since he was four months old,

and K.D.T. has been in placement since birth.      See In re A.L.D., supra.

Thus, Mother’s arguments with respect to Section 2511(a) fail.2

         In her last issue, Mother argues that the trial court abused its

discretion in terminating her parental rights pursuant to Section 2511(b)
____________________________________________


2
  Based on this disposition, we need not to review Mother’s arguments with
respect to Section 2511(a)(1), (5), and (8). See In re B.L.W., supra.



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because she “had a positive bond” with the Children. Mother relies on the

testimony of Dana Ellis, the Family School social worker, who stated that she

has observed “positive interactions” between Mother and the Children at the

Family School. N.T., 10/7/15, at 134. However, Ms. Ellis testified on direct

examination:

      [Q.] [I]s there any problems with the children interacting with
      [Mother] at the school?

      [A.] No. But, initially, when the children are dropped off, it is []
      difficult between [foster mother] leaving and them warming up
      to [Mother].

Id. at 135.

      With respect to Section 2511(b), our Supreme Court stated that,

“[c]ommon sense dictates that courts considering termination must also

consider whether the children are in a pre-adoptive home and whether they

have a bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa.

2013).     Moreover,   the   Court   directed   that,   in   weighing   the   bond

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

clock of childhood ever in mind.” Id. at 269. The T.S.M. Court observed

that, “[c]hildren are young for a scant number of years, and we have an

obligation to see to their healthy development quickly. When courts fail . . .

the result, all too often, is catastrophically maladjusted children.” Id.

      In its Rule 1925(a) opinion, the trial court found as follows, which the

testimony of Mr. Jimenez and Dianna Wallace, the social worker from

Lutheran Church and Family Services, supports:

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      The record established that Children will not suffer any
      irreparable harm by terminating Mother’s parental rights, and it
      is in the best interest of the Children to terminate Mother’s
      parental rights. Mother and Children do not have a positive
      healthy bond. Mother and Children[’s] bond is not a parent/child
      bond, but an aunt/nephew bond. In fact, after long periods
      without seeing each other, Children did not manifest any
      emotion when they saw their [m]other; they felt they were
      obligated to go to see their [m]other. DHS witnesses were
      credible. Conversely, there would be an irreparable harm if
      Children were removed from [f]oster [m]other. Children have
      been almost their entire lives with their foster [m]other and they
      are very close[ly] bonded with her. Foster mother has raised the
      Children and provides for [the] Children’s daily basic needs, such
      as taking the Children to their medical appointments and
      providing comfort.

Trial Court Opinion, 12/7/15, at 11.

      We specifically reject Mother’s argument that the court abused its

discretion in its credibility determinations regarding the testimony of Mr.

Jimenez and Ms. Wallace as it related to the bond between the Children and

Mother.   The record supports the court’s credibility findings in that Mr.

Jimenez testified that he took the Children and picked them up from their

unsupervised visit with Mother during the summer. N.T., 10/7/15, at 74-75.

Likewise, Ms. Wallace testified that she dropped the Children off for a visit

with Mother on one occasion where she “had to tell the children to go to

Mom.” Id. at 119.

      Based on our review of the testimonial evidence, we conclude that

involuntarily terminating Mother’s parental rights would best serve the

developmental, physical and emotional needs and welfare of the Children.

Therefore, we discern no abuse of discretion by the court with respect to

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Section 2511(b).    Accordingly, we affirm the decrees pursuant to 23

Pa.C.S.A. § 2511(a)(2) and (b).

     Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2016




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