J-S50002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: J.E.T., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF:        J.Y.M.,   A/K/A   J.Y.T.,    No. 1003 EDA 2015
MOTHER


               Appeal from the Order entered March 4, 2015
           in the Court of Common Pleas of Philadelphia County
              Family Court, at No(s): CP-51-AP-000094-2015
                                     CP-51-DP-0001048-2013

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 22, 2015

     J.Y.M. a/k/a J.Y.T. (“Mother”) appeals from the Order entered March 4,

2015, in the Court of Common Pleas of Philadelphia County, which

involuntarily terminated her parental rights to her minor daughter, J.E.T.

(“Child”), born in December 2009, and changed Child’s permanency goal to

adoption. We affirm.

     On May 16, 2012, Mother was involved in an incident of domestic

violence when she hit M.T., Child’s putative father, with a metal strip while

he was holding Child. See N.T., 3/4/2015, at 7-8, 49. Child was also hit

and received a cut on her forehead, which required medical attention at the

hospital. See id. at 7-8, 25-26, 49-50. Because of the incident involving

Child, Mother pled guilty to Endangering the Welfare of Children in violation

of 18 Pa.C.S.A. § 4304, and was indicated as a perpetrator of child abuse.

See id. at 7-8.
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     In May 2013, Mother struck Child with a belt on her thighs, buttock,

back, and right side of her ribs causing severe injury requiring hospital

treatment. Child had red bruises on multiple parts of her body. Because of

Mother’s physical abuse of Child, Mother pled guilty to Aggravated Assault,

in violation of 18 Pa.C.S.A. § 2702, and, for the second time, to Endangering

the Welfare of Children, in violation of 18 Pa.C.S.A. § 4304. See id. at 10,

19. As a result, Mother was sentenced to 11½ to 23 months’ incarceration,

followed by eight years of probation.     See id. at 9-10.   Mother was once

again indicated as a perpetrator of child abuse. See id. at 26.

     DHS obtained an Order of Protective Custody (“OPC”) for Child, and

Child was placed in the custody of the Philadelphia Department of Human

Services (“DHS”), where she has remained. See id. at 27. Child was placed

with Maternal Great-Uncle. See id. at 22.

     DHS held an initial Family Service Plan (“FSP”) meeting shortly after

the case came to DHS’s attention. The FSP objectives established for Mother

at the time were attending anger management classes, receiving mental

health treatment, and attending parenting classes. See id. at 27. Mother

testified that her mental health diagnosis consisted of depression, bipolar

disorder and borderline schizophrenia. See id. at 13. Mother admitted that

she was aware that DHS established objectives for her to meet in order for

her to be reunified with Child. See id.




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        Mother was incarcerated in prison for a total of fourteen months. See

id. at 11. Mother failed to provide DHS with any evidence that she received

mental health treatment while incarcerated.       See id. at 14-15, 30-31.

Mother did not take medication for her mental health conditions for a period

of her time in prison because she was pregnant, but resumed the medication

after her son was born. See id. at 20-21 and 50-51.

        While Mother was incarcerated, Child resided with Maternal Great-

Uncle. See id. at 11. At the hearing, Maternal Great-Uncle testified that he

did not receive any telephone calls from Mother requesting information

about how Child was doing, nor any letters, gifts or cards from Mother

addressed to Child. See id. 22-23. Mother did not attempt to reach Child or

DHS regarding Child’s progress during her incarceration. See id. at 33.

        Mother was released from incarceration on September 11, 2014, after

spending fourteen months in prison.        See id. at 11.   In January 2015,

Mother first met Ishmael Jimenez, the DHS social worker assigned to the

case.     Mother provided some documentation regarding having taken

parenting classes while in prison. However, Mother never provided DHS with

any documentation evidencing her compliance with the FSP goals concerning

anger management or mental health treatment.        In addition, Mr. Jimenez

added an FSP objective concerning substance abuse in order to determine

whether or not drug and/or alcohol abuse had contributed to Mother’s

violent behavior.


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      Mother testified that, during the fourteen months that she was

incarcerated for physically abusing Child, she sent Child six or seven letters.

See id. at 11. Mother also testified that she sent gifts to Child at Christmas.

See id. at 12-13. Mother further alleged that she made calls to her mother

and sister to check on Child, and that she called Child everyday but was not

allowed to speak to her. See id. at 56, 11-12.

      The court also heard testimony from Maternal Great-Uncle, who was

the caregiver of Child for two years.    Maternal Great-Uncle testified that,

during the two years in question, Mother never called Child, nor did she send

Child any letters or gifts. See id. at 22-23.

      Mr. Jimenez also testified during the termination hearing that he had

no information or documentation that Mother had completed an anger

management course.      See id. at 30.      Mr. Jimenez met with Mother in

January 2015, at which time, she provided him with some documentation

relating to the parenting classes that she took while in prison.    See id. at

30. At the time, Mother told Mr. Jimenez that she had been attending an

anger management session, and that she planned to get involved in mental

health   treatment.     Mother   never   provided   Mr.   Jimenez   with   any

documentation    evidencing   any   anger   management     or   mental   health

treatments.   See id. at 30-31.     In addition, Mother never provided Mr.

Jimenez with any information, documentation, or proof that she participated

in any drug or alcohol treatment.    See id. at 31.    Mr. Jimenez did testify


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that, ten minutes before the termination hearing, Mother produced some

certificates that appeared to reflect that she had participated in some sort of

programs. See id. at 32. However, Mr. Jimenez stated that he could not

determine what the programs were, how extensive they were, and what

they taught Mother.    Id.   Mr. Jimenez added that, even if the certificates

indicated that Mother had completed parenting and anger management

programs, it would not have changed his mind regarding whether Child

should be reunified with Mother since Mother had not had any contact with

Child in nearly two years. See id. at 33. Mother had not reached out to

Child or DHS while in prison or after her release from prison in October of

2014. See id.

      Child, who was five years old at the time of the hearing, had been

living in a pre-adoptive home with her Maternal Great-Uncle and Maternal

Great-Aunt. Mr. Jimenez observed Child with her current caregivers on five

or six occasions over the previous six or seven months.           Mr. Jimenez

described Child as being joyous, bubbly, and a happy little girl. Child is very

affectionate. See id. at 34. Mr. Jimenez noted that Child’s Maternal Great-

Uncle and Maternal Great-Aunt have provided Child with a safe home and

are doing a great job of caring for her. See id. at 24.   Mother testified that,

in her opinion, Child was in a good home with Maternal Great-Uncle who was

taking good care of her. See id. at 15.




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     On February 10, 2015, DHS filed petitions to terminate Mother’s

parental rights and to change the goal to adoption. An evidentiary hearing

was held on March 4, 2015.      At the conclusion of the hearing, the court

granted DHS’s petitions.

     Mother filed a timely notice of appeal on April 1, 2015. She also filed a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b) on that date.1

     We review this appeal according to the following standard.

     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).

1
  The trial court’s docket does not reflect any appeal by Mother from the goal
change order. We find that Mother has waived any challenge to the
propriety of the change in permanency goal to adoption by her failure to
separately appeal that order, or to raise the issue of the goal change in her
concise statement of errors complained of on appeal and in her brief in the
appeal from the termination of her parental rights. See Krebs v. United
Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.
2006) (stating that any issue not set forth in or suggested by a concise
statement of errors complained of on appeal and the statement of questions
involved in the appellate brief is deemed waived).
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     Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

     Our case law has made clear that under Section 2511, the court
     must engage in a bifurcated process prior to terminating
     parental rights. 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) (citing 23 Pa.C.S.A.

§ 2511). The burden is on the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of

parental rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).

     Instantly, the trial court terminated Mother’s parental rights pursuant

to Section 2511(a)(1), (2), (5), (8), and (b).   This Court need only agree

with any one subsection of Section 2511(a), in addition to Section 2511(b),

in order to affirm the termination of parental rights. See In re B.L.W., 843

A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we conclude that the trial

court properly terminated Mother’s parental rights pursuant to Section

2511(a)(1) and (b). They provide as follows:


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      (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(a)(1) and (b).

      With respect to 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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing

In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). Further,

      [o]nce 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


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      effect of termination of parental rights on the child pursuant to
      Section 2511(b).

Id.   (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.

1998)).

      In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme

Court discussed In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a

case wherein the Court considered the issue of the termination of parental

rights of incarcerated persons involving abandonment.       The S.P. Court

stated:

            Applying in McCray the provision for termination of
      parental rights based upon abandonment, now codified as §
      2511(a)(1), we noted that a parent “has an affirmative duty to
      love, protect and support his child and to make an effort to
      maintain communication and association with that child.” Id. at
      655. We observed that the father’s incarceration made his
      performance of this duty “more difficult.” Id.

47 A.3d at 828. The S.P. Court continued:

      [A] parent’s absence and/or failure to support due to
      incarceration is not conclusive on the issue of abandonment.
      Nevertheless, we are not willing to completely toll a parent’s
      responsibilities during his or her incarceration. Rather, we must
      inquire whether the parent has utilized those resources at his or
      her command while in prison in continuing a close relationship
      with the child. Where the parent does not exercise reasonable
      firmness in declining to yield to obstacles, his other rights may
      be forfeited.

      [McCray] at 655 (footnotes and internal quotation marks
      omitted). . . .




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Id. See also In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (stating

that a parent does not perform his or her parental duties by displaying a

“merely passive interest in the development of the child”).

      On appeal, Mother argues that DHS failed to prove by clear and

convincing evidence that her parental rights should be terminated. Mother

emphasizes that she substantially met her FSP goals and tried to perform

her parental duties.    Mother also claims that she was consistently denied

visitation with her daughter for the last 22 months.

      In its opinion, the court found clear and convincing evidence that

Mother demonstrated a settled purpose of relinquishing her parental claim to

Child and failed to perform her parental duties. DHS placed Child in the care

of Maternal Great-Uncle and Maternal Great-Aunt after Mother, an indicated

perpetrator of child abuse, physically abused Child with a metal strip and

belt resulting in a criminal conviction for aggravated assault and two

convictions for endangering the welfare of Child.      See Trial Court Opinion,

5/14/2015, at 8.    The trial court noted that Mother was incarcerated for

fourteen months, during which time she failed to comply with her FSP

objectives.   See id.   Moreover, following Mother’s release from prison on

September 11, 2014, she failed to provide any documentation to DHS

indicating that she was in compliance with the FSP objectives established for

her by DHS in order to be reunited with Child. The trial found that, although

Mother did produce some certificates at the hearing that she had


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participated in some anger management and parenting programs, it could

discern no evidence of how long the programs were, how extensive           the

programs were, and what Mother learned from the programs. See id. In

addition, the trial court also determined that Mother failed to maintain

contact with Child necessary to maintain a parental relationship.    The trial

court also concluded that Mother demonstrated a settled purpose of

relinquishment of her parental claims to Child.    Thus, the trial court ruled

that DHS met its burden under Section 2511(a)(1).

      Having determined that the trial court properly terminated Mother’s

parental rights pursuant to Section 2511(a)(1), we now review the order

pursuant to Section 2511(b).    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).




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      Child currently is five years old and has been living in a pre-adoptive

foster home with Maternal Great-Uncle and Maternal Great-Aunt for nearly

two years. See N.T., 3/4/2015, at 34. Mr. Jimenez testified at trial that he

observed Child with her current caregivers on five or six occasions over six

or seven months. See id. Mr. Jimenez described Child as a very happy little

girl, who is very affectionate with everybody. See id. Mr. Jimenez opined

that the Child’s Maternal Great-Uncle and Maternal Great-Aunt were

providing Child with a safe home and were doing a good job of caring for

her. See id. at 34-35. Mr. Jimenez further testified that Child appeared to

be bonded with her caregivers. See id. at 35. Finally, Mr. Jimenez opined

that he did not believe that Child would be harmed in any way if Mother’s

rights were to be involuntarily terminated in light of the fact that Mother has

not be in contact with Child for almost two years after repeatedly physically

abusing Child. See id.

      In addition, Maternal Great-Uncle testified that he was making sure

that all of Child’s needs were being met. See id. at 23. He stated that Child

feels safe and comfortable in his care. See id. at 24.

      Mother also testified that, in her opinion, Child was in a good home

with Maternal Great-Uncle, who was taking care of Child. See id. at 15.

      Based upon this evidence, we discern no abuse of discretion by the

trial court in terminating Mother’s parental rights to Child pursuant to

Section 2511(b).    It was reasonable for the trial court to conclude that


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terminating Mother’s parental rights would not harm Child, given that there

is no evidence of any bond between Child and Mother. Moreover, Child is

bonded with her foster parents.

     Accordingly, we affirm the order involuntarily terminating Mother’s

parental rights and changing Child’s permanency goal to adoption.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2015




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