J-S56033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: I.E.M.C., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: E.N.W., MOTHER                  :
                                               :
                                               :
                                               :
                                               :   No. 1237 EDA 2019

                  Appeal from the Decree Entered April 8, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                       No(s): CP-51-AP-0000922-2017


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                           FILED DECEMBER 10, 2019

       Appellant E.N.W. (Mother) appeals from the decree granting the petition

of the Philadelphia Department of Human Services (DHS) to involuntarily

terminate her parental rights to I.E.M.C. (the Child), born in June 2015,

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

Mother argues that the trial court erred in finding that she demonstrated a

settled intent to relinquish her parental claim to the Child. We affirm.

       The trial court set forth the relevant background and procedural history

as follows:

       On June 29, 2016, the Child was adjudicated dependent and
       committed to DHS because of present inability. The family
       became known to DHS in June 2015 when DHS received a
       [General Protective Services (GPS)] report where the Child tested
       positive at birth for marijuana and [phencyclidine (PCP)].
____________________________________________


1The Child’s father, J.D.C. (Father), voluntarily terminated his parental rights.
Father did not appeal and is not a party to this appeal.
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       Consequently, “home services were implemented at that time.”
       Subsequently, on March 24, 2016, DHS received another GPS
       report alleging that Mother has tested positive for PCP at Pathways
       and Pathways was planning on discharging [M]other from the
       program.

       Based on those concerns, Danielle Johnson Kennedy, the
       Community Umbrella Agency (CUA) case manager, testified that
       her agency established a single case plan [(SCP)] that was
       periodically reviewed, throughout the life of the case.          On
       September 20, 2017, DHS filed petitions to involuntary terminate
       Mother’s parental rights to the Child pursuant 23 Pa.C.S. §
       2511(a)(1), (2), (5), (8), and (b) and to change the Child’s
       permanency goal to adoption. [Following several continuances,
       the trial court] conducted a combined termination and goal change
       hearing (collectively the “TPR” hearing) on April 8, 2019.[2] At the
       TPR hearing, Ms. Kennedy testified that Mother’s [SCP] objectives
       were as follows: (1) attend a dual diagnosis program and attend
       [the clinical evaluation unit (CEU)] for screens, assessment, and
       monitoring; (2) obtain appropriate housing; (3) follow the
       visitation plan arranged by all parties; (4) comply with CUA; and

____________________________________________


2 Prior to the TPR hearing, the trial court appointed Andre Martino, Esq.,
guardian ad litem, and Maureen Pié, Esq., child advocate, to represent the
Child. Further, we note that the Child was three years old and could not
express a preference in the outcome. Therefore, the Child’s right to counsel
under 23 Pa.C.S. § 2313(a) was satisfied. See In re Adoption of K.M.G.,
___ A.3d ___, 2019 PA Super 281, 2019 WL 4392506 (Sept., 13, 2019) (en
banc) (holding that (1) “this Court’s authority is limited to raising sua sponte
the issue of whether the orphan’s court violated Section 2313(a) by failing to
appoint any counsel for the Child in a termination hearing,” and (2) we may
not “review sua sponte whether a conflict existed between counsel’s
representation and the child’s stated preference in an involuntary termination
of parental rights proceeding” (citations omitted) (emphasis in original)). We
add that there was no apparent conflict between the Child’s best interests and
legal interests. See id.; see also In re T.S., 192 A.3d 1080, 1089-90, 1092-
93 (Pa. 2018) (reaffirming the ability of an attorney-guardian ad litem to serve
a dual role and represent a child's non-conflicting best interests and legal
interests); In re Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017)
(plurality) (stating that, pursuant to 23 Pa.C.S. § 2313(a), a child who is the
subject of a contested involuntary termination proceeding has a statutory right
to counsel who discerns and advocates for the child's legal interests, defined
as a child's preferred outcome).

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      (5) attend [the Achieving Reunification Center (ARC)] for
      parenting and housing.

      Ms. Kennedy stated that Mother understood that compliance with
      these objectives was a necessary step before reunification with
      the Child was to occur. With regards to Mother’s compliance with
      her objectives, Ms. Kennedy testified that Mother completed ARC
      for parenting and housing. However, Ms. Kennedy also testified
      that Mother did not have stable housing. Ms. Kennedy further
      testified that Mother completed a CEU assessment that
      recommended a “long term dual diagnosis treatment” inpatient
      program at Gaudenzia Together House. Mother indicated she was
      not willing to do an inpatient program. However, Ms. Kennedy
      indicated that Mother was willing to engage in an outpatient dual
      diagnosis program. Ms. Kennedy further stated that Mother had
      not successfully completed [a] drug and alcohol treatment
      program. Ms. Kennedy also testified that Mother continued to test
      positive for marijuana and PCP.

      Mother was initially offered weekly supervised visits with the
      Child, but those visits were changed to biweekly after Mother
      failed to attend any visits for a year. Ms. Kennedy testified that,
      even before the year hiatus, Mother had never been consistent
      with her visits and that those visits never progressed to
      unsupervised visits due to Mother consistently testing positive.
      With respect to the Child, Ms. Kennedy indicated that maternal
      cousin [(Foster Mother)] is the one that meets all of her general,
      medical, and emotional needs. Ms. Kennedy also indicated that
      the Child does not share a bond with Mother and does not look to
      Mother as a caregiver but rather sees [Foster Mother] as her
      mother. Ms. Kennedy further indicated that it would not cause
      irreparable harm to the Child to terminate the rights of Mother
      and that it is in the best interest of the Child to change the goal
      to adoption.

Trial Ct. Op., 7/17/19, at 1-3 (record citations omitted and some formatting

altered).

      In addition to the testimony summarized above, Mother testified that

she no longer uses drugs and consistently attends a treatment program. N.T.,

4/8/19, at 25.   Mother also explained that she is currently employed and


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actively seeking stable housing. Id. at 26. The child advocate explained that,

though Mother has made some attempts to rectify the conditions leading to

the Child’s removal, “she has not been able to come to grips with what she

needs to do in enough time to prevent harm to [the Child] should [the Child]

have to be moved from the home she’s been in now for three years.” Id. at

30.

      The trial court concluded that DHS presented clear and convincing

evidence to involuntarily terminate Mother’s parental rights and addressed

Mother as follows:

      [W]e’re in the same situation that we [were] in when you initially
      came in. The Child was born positive for PCP. Last month[,] you
      once again tested positive for PCP. You haven’t changed your
      drug use at all. You don’t have any housing. You said you just
      found out you’re dealing with these mental health and drug issues
      ....

      From the moment this case came in . . . , [the trial court] has tried
      to help you. We sent you to a dual diagnosis continually to get
      mental health treatment. You said you’re just finding out about
      your mental health issues. Well[,] we tried to help you but you
      didn’t want our help.

                                  *    *    *

      We sent you to the things that were going to be necessary for you
      to get yourself straight and to become a parent. But not only
      didn’t you take advantage of them, you just disappeared out of
      the [C]hild’s life for a year.

Id. at 31-32.

      On April 8, 2019, the trial court entered a decree involuntarily

terminating the parental rights of Mother under 23 Pa.C.S. § 2511(a)(1), (2),


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(5), (8), and (b). On April 29, 2019, Mother filed a timely notice of appeal

and a concise statement of matters complained of on appeal pursuant to

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

      Mother raises a single issue for our review:

      Whether the trial court committed reversible error when it
      involuntarily terminated [M]other’s parental rights where such
      determination was not supported by clear and convincing evidence
      under the Adoption Act, 23 Pa.C.S.[] § 2511(a)(1), (2), (5), and
      (8)?

Mother’s Brief at 4 (full capitalization omitted).

      Mother contends that she made progress toward her SCP objectives and

demonstrated a willingness to remedy the conditions that led to the Child’s

removal. Id. at 11. Further, Mother argues that the trial court erred in finding

that she exhibited a settled intent to relinquish her parental claim to the Child.

Id. Based upon the foregoing, Mother insists that DHS did not present clear

and convincing evidence that she failed or refused to perform her parental

duties. Id.

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

apply the following standard of review:

      [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., 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. As has been often stated, an abuse of
      discretion does not result merely because the reviewing court

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      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.

      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
      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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations

omitted).

      The burden is on 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 omitted).

      Here, the trial court terminated Mother’s parental rights pursuant to 23

Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). Trial Ct. Op. at 1. However, this

Court may affirm the trial court’s termination of parental rights if any one

subsection of Section 2511(a) and Section 2511(b) have been established.

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

Accordingly, we initially focus our review on Section 2511(a)(2) which

provides:

      § 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:

                                  *    *    *

         (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 condition and
         causes of the incapacity, abuse neglect or refusal cannot or
         will not be remedied by the parent.

23 Pa.C.S. § 2511(a)(2).

      The Pennsylvania Supreme Court has held that “when a parent has

demonstrated a continued inability to conduct his or her life in a fashion that

would provide a safe environment for a child . . . and the behavior of the

parent is irremediable as supported by clear and competent evidence, the

termination of parental rights is justified.” In re Adoption of Michael J.C.,

486 A.2d 371, 375 (Pa. 1984).

      In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
      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.


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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).

      Further, “[t]he 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) (citation omitted). “Parents are required to make diligent

efforts   towards   the   reasonably   prompt   assumption   of   full   parental

responsibilities. . . . [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.” In re A.L.D., 797 A.2d

326, 340 (Pa. Super. 2002) (citations and quotation marks omitted).

      Instantly, the trial court found CUA case manager Danielle Johnson-

Kennedy to be credible. Her testimony established that on June 8, 2015, DHS

received a GPS report that the Child tested positive for PCP at birth and in-

home services were provided for the family. See N.T., 4/8/19, at 6. Following

a second GPS report, DHS obtained an order of protective custody for the

Child. Id. at 6-7. Subsequently, DHS established SCP objectives for Mother.

Id. at 9. Mother’s SCP objectives remained unchanged throughout the life of

the case. Id. 10. The SCP objectives called for Mother to follow a weekly

visitation schedule. Id. Mother did not comply and her visits with the Child

were sporadic throughout the life of the case. Id. at 15. Mother participated

in her last weekly visit on August 30, 2017. Id. In October 2018, Mother’s

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visits were reduced from weekly to biweekly after Mother missed visits with

the Child for over a year. Id. at 14-15.

      Further, as part of the SCP, Mother understood that drug and mental

health treatment and diagnosis were essential before reunification could occur

with the Child. Id. at 10. However, Mother did not complete the required

dual diagnosis assessment until several months after the termination petition

was filed. Id. at 11. Mother’s attendance in drug treatment programs was

inconsistent. Id. at 13-14. Although Mother had begun regularly attending

drug treatment just prior to the hearing, she continued to test positive for

PCP. Id. at 14. At the time of the hearing, Mother had not obtained stable

housing.   Id. at 11.   While Mother attended ARC’s housing and parenting

programs, she did not complete her other four SCP objectives. Id. at 10-11.

      For these reasons, “[the trial court] found that Mother’s failure to comply

with CUA and consistently visit the Child has left the Child without essential

parental care, and the cause of such neglect, refusal and continued incapacity

will not be remedied by Mother.” Trial Ct. Op. at 8. Our review reveals that

the record supports the trial court’s conclusion.    See M.E.P., 825 A.2d at

1272. Further, Mother’s actions after DHS filed the petition to terminate were

insufficient to show her ability to remedy the circumstances which lead to her

continued incapacity. See id. at 1275. Accordingly, we conclude that the trial

court’s decision to terminate the parental rights of Mother pursuant to Section

2511(a)(2) is supported by competent, clear, and convincing evidence in the

record. See S.P., 47 A.3d at 826-27.

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     Mother does not challenge the trial court’s analysis of Section 2511(b)

in her brief. While we could find such an issue waived for failure to present

an argument or cite legal authority, we will address the issue of the Child’s

best interests. In re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc)

(addressing the best interests of the child under Section 2511(b) sua sponte).

But see M.Z.T.M.W., 163 A.3d 462, 466 & n.3 (Pa. Super. 2017).

     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.

23 Pa.C.S. § 2511(b).

     This Court has stated that the focus in terminating parental rights under

Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the

child. See C.L.G., 956 A.2d at 1008. In reviewing the evidence in support of

termination under 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.” In In re E.M., 620 A.2d [481,
     485 (Pa. 1993)], this 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.



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

        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 1108, 1121 (Pa. Super. 2010) (citations

omitted). Further, “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 Adoption

of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citation omitted).

        As to Section 2511(b), the trial court determined that the Child would

not suffer irreparable emotional harm if Mother’s parental rights were

terminated. Ms. Kennedy testified that she observed the Child’s interactions

with Mother and Foster Mother.       N.T., 4/8/19, at 18, 21.     Based on her

evaluation of those interactions, Ms. Kennedy stated that the Child does not

look to Mother as a caregiver and does not share a bond with her. Id. at 16.

She further explained that Mother does not meet any of the Child’s daily,

emotional, or medical needs. Id.

        Ms. Kennedy testified that the Child has been in the kinship care of

Foster Mother, a maternal cousin, since June 2016. Id. In that time, the

Child has developed a caregiver bond with Foster Mother and calls Foster

Mother “Mom”.      Id. at 17.   Moreover, Foster Mother provides safety and

stability for the Child and meets all of the Child’s needs. Id.




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      Based on our review of the record, we find no abuse of discretion or

error of law in the trial court’s decision to terminate Mother’s parental rights

under Section 2511(b).      See S.P., 47 A.3d at 826-27.        The trial court

considered the Child’s needs and welfare, as well as the effects of termination

on the Child. Accordingly, no relief is due.

      In sum, we find that the trial court’s decision to terminate Mother’s

parental rights under Section 2511(a)(1) and (b) is supported by competent,

clear and convincing evidence in the record. See id.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/19




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