J-S93032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: I.D. A/K/A I.M.D.,           IN THE SUPERIOR COURT OF
A MINOR                                                PENNSYLVANIA




APPEAL OF: A.D., MOTHER

                                                     No. 2003 EDA 2016


                      Appeal from the Decree May 24, 2016
              in the Court of Common Pleas of Philadelphia County
                 Family Court at Nos.: CP-51-AP-0000698-2015
                            CP-51-DP-0106442-2007


IN THE INTEREST OF: M.D. A/K/A                   IN THE SUPERIOR COURT OF
M.E.D., A MINOR                                        PENNSYLVANIA




APPEAL OF: A.D., MOTHER

                                                     No. 2004 EDA 2016


                      Appeal from the Decree May 24, 2016
              in the Court of Common Pleas of Philadelphia County
                 Family Court at Nos.: CP-51-AP-0000699-2015
                            CP-51-DP-0001963-2012


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 23, 2017

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S93032-16


      A.D. (Mother) appeals from the trial court’s decrees involuntarily

terminating her parental rights to her children, I.D., a/k/a I.M.D (I.D.) born

in November 2006, and M.D., a/k/a M.E.D. (M.D.), born in June 2008 (the

Children). We affirm.

      The Philadelphia Department of Human Services (DHS) and Mother’s

family have a long history that appears to have begun in 2007, prior to the

circumstances relevant to this case.   We take the following pertinent facts

from our independent review of the certified record.     In June 2010, DHS

received a report that Mother was often under the influence of alcohol and

unable to care for her five children, including I.D. and M.D.     In October

2012, DHS received a general protective services (GPS) report alleging that

Mother and the Children had recently been evicted from their Philadelphia

Housing Authority (PHA) home due to non-payment of rent. On October 5,

2016, the Children went to the home of Mother’s relative, S.D. On October

16, 2012, Mother entered an inpatient alcohol treatment program.

      On October 17, 2012, DHS completed a background check of S.D., and

determined that she was not an appropriate caregiver for the Children. DHS

obtained an order of protective custody, and placed the Children in a foster

home through Catholic Social Services.     On November 6, 2012, the court

adjudicated the Children dependent after a hearing, committed them to the

custody and care of DHS, and referred them for physical and behavioral

evaluations.


                                    -2-
J-S93032-16


      On January 7, 2013, a family service plan (FSP) meeting was held,

which Mother failed to attend. As a result of the meeting, the initial goal for

the Children was set to be reunification with Mother. The parental objectives

established for Mother were (1) drug and alcohol treatment; (2) in-patient

and out-patient mental health treatment; (3) parenting classes; (4)

employment; (5) visitation with the Children. (See N.T. Hearing, 4/12/16,

at 46-47; DHS Exhibit 7). On April 29, 2013, the court ordered Mother to

report to the court evaluation unit (CEU) for a drug screen, a dual diagnosis

assessment, and monitoring. At a July 29, 2013 permanency hearing, it was

reported that Mother was minimally compliant with her permanency plan.

The court ordered her to comply with the Achieving Reunification Center

(ARC) to obtain housing, and again referred her to CEU for a drug screen

and assessment.

      At the January 27, 2014 permanency hearing, it was reported that

Mother   did   not   comply   with   her   FSP    objectives,   services,   and

recommendations. She did not attend parenting, drug and alcohol classes,

did not work with ARC to obtain housing, and had only made two out of ten

scheduled visits with the Children.      At an April 28, 2014 permanency

hearing, it was reported that Mother was only minimally compliant with her

plan. On May 5, 2014, Mother attended the FSP revision meeting in which

M.D.’s goal was changed from reunification to adoption, I.D.’s goal remained

reunification, and Mother’s objectives remained the same.       Mother signed


                                     -3-
J-S93032-16


the FSP.     At the January 21, 2015 FSP revision meeting, I.D.’s goal was

changed to adoption.

      On October 5, 2015, DHS filed petitions to change the Children’s

permanency goal to adoption, and to involuntarily terminate Mother’s

parental rights. At the April 12, 2016 hearing on the petitions, DHS social

worker Danielle Butler-Todd, Catholic Social Services provider Bashir

Johnson, Children’s Choice case worker Wayne Hawkins, and Mother,

testified.

      Ms. Todd testified that the Children came into the care of DHS when

they were evicted from a shelter after several instances of Mother’s

intoxication and violation of shelter rules.   (See N.T. Hearing, 4/12/16, at

22). She testified that, although she completed some of her FSP objectives,

Mother did not achieve all of them.    Specifically, she was discharged from

outpatient drug and alcohol treatment for noncompliance; she has not

attended mental health treatment since December 2015; and has not

obtained appropriate housing. (See id. at 47-49).

      I.D is doing well in fourth grade academically, but struggles with

severe behavioral issues. (See id. at 46). He is up to date with his medical

care and is receiving mobile therapy through Bethanna. (See id.). Mother’s

visitation schedule provides for one supervised visit with I.D. per month, and

Mr. Hawkins testified that “whenever there are visits his behavior changes.




                                     -4-
J-S93032-16


He’s disruptive in class. He doesn’t want to listen. He gets upset. And at

one instance, he even ran off.” (Id. at 60).

      Regarding M.D., Ms. Todd testified that since coming into care in

October 2012, M.D. has resided in the same kinship home with a family

friend. (See id. at 73-74). She testified that, although third grader M.D.

had some academic problems at the beginning of the school year, she

subsequently improved and was doing better at the time of the hearing.

(See id. at 73).    M.D. has “a very loving relationship” with her kinship

provider and “[t]hey’re both bonded.         They . . . have a very strong

connection. [M.D.] is very . . . . clingy . . . to her foster mother. They have

a very good relationship[.] . . . I think they have a very appropriate parent

child relationship.” (Id. at 74). M.D. looks to her kinship provider for her

daily needs. (See id.).

      Ms. Todd further stated that she did not believe M.D. would experience

irreparable harm if Mother’s parental rights were terminated because she is

“very bonded” with her foster mother, who is a positive role model and

parental figure. (Id. at 75). She stated that Mother has been given “ample

opportunity to reunify” with M.D., but has been resistant to completing her

goals for reunification.   (Id. at 76).   Similarly, Mr. Johnson testified that,

although M.D. has a bond with Mother, he did not believe she would suffer

irreparable harm if Mother’s parental rights were terminated because M.D. is




                                     -5-
J-S93032-16


“rooted with her foster mother” with whom she has “a parent child” bond.

(Id. at 78, 80).

        On May 24, 2016 the court issued its decrees finding that DHS met its

burden by clear and convincing evidence, and terminated Mother’s parental

rights to the Children.        On June 22, 2016, Mother appealed the court’s

decrees and filed a concise statements of errors complained of on appeal.

See Pa.R.A.P. 1925(a)(2)(i).1         The court filed an opinion on September 6,

2016. See Pa.R.A.P. 1925(a)(2)(ii).

        Mother raises five questions for this Court’s review. In her first four

issues, Mother maintains that the trial court erred in terminating her

parental rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8).        (See

Mother’s Brief, at 5). The fifth issue questions “[w]hether the [t]rial [c]ourt

erred by terminating the parental rights of [Mother] under 23 Pa.C.S.A. §

2511(b)?” (Id.).

        After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to the issues Mother has raised on appeal. The trial

court properly disposes of the questions presented.            (See Trial Court

Opinion, 9/06/16, at 2-8 (concluding DHS provided clear and convincing

evidence that:      (1) pursuant to section 2511(a)(1), Mother demonstrated

____________________________________________


1
    This Court consolidated the appeals sua sponte on July 18, 2016.



                                           -6-
J-S93032-16


settled intent to relinquish parental claim to Children for more than six

months prior to the filing of petition, and failed and refused to perform

parental duties; (2) under section 2511(a)(2), Mother’s refusal to maintain

sobriety, commit to treatment and counseling, and obtain housing, resulted

in her failing to provide essential parental care, thus depriving Children of

safety, security, and subsistence necessary for physical and mental well-

being; (3) in satisfaction of section 2511(a)(5), Children have been removed

from parental care for more than six months, conditions that led to removal

continue to exist, Mother cannot or will not remedy conditions that led to

placement in reasonable period of time, services available to Mother to

remedy situation are unlikely to remedy conditions that led to placement,

and termination of parental rights would best serve needs and welfare of

Children; (4) pursuant to section 2511(a)(8), approximately three years

have passed since Children’s placement and, although Mother initially

complied with court ordered drug and alcohol counseling and mental health

treatment, she unilaterally discontinued those services and has not obtained

housing, so conditions leading to placement still exist and termination of

parental rights would best serve needs of Children; and (5) there would be

no detrimental effect on Children in severing parental relationship with

Mother where there is no bond between them and termination of parental

rights would serve best interests of Children under section 2511(b))).

Accordingly, we affirm on the basis of the trial court’s opinion.


                                      -7-
J-S93032-16


        Decrees affirmed.

        Judge Dubow did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




                                      -8-
                                                                             Circulated 01/06/2017 10:58 AM




              IN THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                          COURT OF COMMON PLEAS


INRE:                                           PHILADELPHIA COUNTY
                             ;) O 0_3 ~-: J-DJ~ FAMILY COURT DIVISION
I.D.   c\-' \'(") ·, 1) ,             .  :    /)JUVENILE BRANCH
                            ex OD L/   t1){-} c9- D 1 ~
                                                          CP-51-DP-O106442-2007
Appeal of A.D.                                            CP-51-AP-0000698-2015
                                                     Cf--j \·- \A~- 000 l~ b 3--J Db)'··,
                                                     cf-~1--0(-Doooloqq- ~-                   ·
                                         OPINION                  .         d{)/~-
Olszewski, Walter J.

PROCEDURAL HISTORY


         On April 12, 016, A.D. initially appeared before Honorable Walter J. Olszewski

for a Change of Goal Hearing. Judge Olszewski, after a hearing on the merits, held the

matter under advisement, thereby, reserving decision until next scheduled by the court.

On May 24, 2016, the trial court, after a careful review of all of the evidence and

applicable law, issued a Permanency Review Order changing the new placement goal to

Adoption. On June 22, 2016, A.D., by and through counsel, filed a Notice of Appeal.

This appeal now follows.


STATEMENT OF MATTERS COMPLAINED OF ON APPEAL


        I.       The trial court's determinations as to mother's conduct under 23 Pa.C.S.A.

                 § 251 l(a)(l) were not supported by and clear and convincing evidence.


        2.       The trial court's determinations as to mother's conduct under 23 Pa.C.S.A.

                 2511 (a)(2) were not supported by clear and convincing evidence.



                                              1
        3.     The trial court's determinations as to mother's conduct under 23 Pa.C.S.A.

                § 251 l(a)(5) were not supported by clear and convincing evidence.


        4.     The trial court's determinations as to mother's conduct under 23 Pa.C.A §

               251 l(a)(8) were not supported by clear and convincing evidence.


        5.     The trial court's determinations as to mother's conduct under 23 Pa.C.S.A

               § 2511 (b) were not supported by clear and convincing evidence.


LEGAL ANALYSIS


        First, the trial court will address Appellant's    averment of error set forth in
paragraph 1 herein above. 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 251 l(a). To
satisfy the requirements of section 251 l(a)(l), the moving party must produce clear and
convincing evidence of conduct, sustained for at least the six months prior to the filing of
the termination petition, which reveals a settled intent to relinquish parental claim to a
child or a refusal or failure to perform parental duties. In re Adoption of R.JS., 901 A2d
502,510 (Pa. Super. 2006). In the case sub judice, the facts are clear to this point. AD.
was ordered to complete and/or continue drug and alcohol counselling and mental health
treatment.   Although, AD. demonstrated some effort to satisfy these court ordered
conditions, she failed to continue and/or complete the necessary treatment. See, (N.T.
04/12/2016, pgs. 47-49, 55). Moreover, AD. has not established permanent housing as
she is currently in transitional housing. See, (N.T. 04/12/2016, pg. 65).
       Secondly, the trial court addresses Appellant's     averments in paragraph 2. To
terminate parental rights pursuant to § 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
        (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 ME.P., 825 A2d 1266, 1272 (Pa. Super.
        2003).
        In the instant matter, the record reveals that AD. by refusing to maintain sobriety
and commit to treatment and counselling, these issue will not be remedied, thus,
neglecting the child and failing to be the source of essential parental care. A full review
of the record clearly established that all prongs under 23 Pa.C.S.A § 251 l(a)(2) have
been met.
        "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 A.L.D., 797 A2d
326, 337 (Pa. Super. 2002) (citations omitted). Further, parents are required to make
diligent efforts towards the reasonably prompt               assumption of full parental
responsibilities. See In re A.L.D. 797 A.2d 326, 340 (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. See id.

        Moreover, the failure of AD. to establish and maintain sobriety, mental stability,
and safe housing; creates a situation that would deprive I.D. of safety, security and
subsistence. See, (N.T. 04/12/2016, pgs. 47-49, 55). Unlike subsection (a)(l), subsection
(a)(2) does not emphasize a parent's refusal or failure to perform parental duties, but
instead emphasizes the child's present and future need for "essential parental care, control
or subsistence necessary for his physical or mental well-being."             23 Pa.C.S.A §
251 l(a)(2).   See In re R.I, 468 Pa. 287, 361 A2d 294 (1976).       Therefore, the language
in subsection (a)(2) should not be read to compel courts to ignore a child's need for a
stable home and strong, continuous parental ties, which the policy of restraint in state
intervention is intended to protect. In re William L., 477 Pa. 322, 383 A2d 1228, 1240
(1978). This is particularly so where "disruption of the family has already occurred and



                                              3
there is no reasonable prospect for reuniting it." Id.     Further, grounds for termination
under subsection (a)(2) are not limited to affirmative misconduct; those grounds may
include acts of incapacity to perform parental duties. In re A.L.D., 797 A.2d 326, 337
(Pa.Super.2002).
        Next, the trial court addresses Appellant's averment in paragraph 3. To satisfy
the requirements of Section 2511(a)(5), the moving party must produce clear and
convincing evidence regarding the following elements:
        (1)     the child has been removed from parental care for at least six
                months;
        (2)     the conditions which led to the child's removal or placement continue to
                exist;
        (3)    the parents cannot or will not remedy the conditions which led to removal
                or placement within a reasonable period time;
        (4)    the services reasonably available to the parents are unlikely to remedy the
               conditions which led to removal or placement within a reasonable period
               of time; and
        (5)    termination of parental rights would best serve the needs and
               welfare of the child. See In re Adoption of ME.P., 825 A.2d 1266, 74
               (Pa. Super. 2003).

       Our law is well established that once a child is removed from the care of the
parent, the burden is on the parent to take action to regain parental rights. See In re Z.P.,
994 A.2d 1108, 1118-19 (Pa. Super. 2010) (holding that parental obligation is a positive
duty which requires affirmative performance). The court will not allow parental inertia to
toll the permanency needs of Child in this case. In re B.,NM, 856 A.2d 847, 856 (Pa.
Super. 2004) ("[A] parent's basic constitutional right to the custody and rearing of his or
her child is converted, upon the failure to fulfill his or her parental duties, to the child's
right to have proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment."). In the instant case, each element has been sufficiently
satisfied. See, (N.T. 04/12/2016, pgs. 45-65).




                                              4
        Next, the trial court addresses the averments of paragraph 4.

§ 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:
        (8) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the removal or placement of the child
continue to exist and termination of parental rights would best serve the needs and
welfare of the child. Pursuant to those subsections of the Juvenile Act, the trial court is to
determine the disposition that is best suited to the safety, protection, and physical, mental,
and moral welfare of the child. A.K, 936 A.2d at 534.        In re NC, 909 A.2d 818 (Pa.
Super. 2006).   In that case, the trial court granted a goal change to adoption despite the
fact that the mother had made substantial progress toward completing her permanency
plan.   The court held that the mother's parenting skills and judgment regarding her
children's emotional well-being remained problematic. Id. at 823. Similarly in the instant
case, A.D. has demonstrated initial compliance with the court ordered drug and alcohol
counselling and mental health treatment.          A.D., however, unilaterally    discontinued
treatment and counselling.


        Finally, the trial court addresses the fifth and final averment of alleged error.
[S]ubsection 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
CMS, 884 A.2d 1284, 1287 (Pa.Super. 2005), the Pennsylvania Superior 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 KZ.S., 946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent of




                                              5
the bond-effect analysis necessarily depends on the circumstances of the particular case.
Id. at 63. In re Adoption of JM, 991 A.2d 321, 324 (Pa. Super. 2010). The appellate
courts of the Commonwealth have observed that no bond worth preserving is formed
between a child and a natural parent where the child has been in foster care for most of
the child's life, and the resulting bond with the natural parent is attenuated. In re K.Z.S.,
946 A.2d 753, 764 (Pa. Super. 2008). It is also appropriate to consider a child's bond
with his or her foster parent. See T.S.M, 71 A.3d at 268. In the instant case there is no
bond between A.D. and I.D. that is reminiscent of a parent-child bond. In fact, the record
indicates that I.D. is very uncomfortable, if not discontent, when in the company of A.D.
during visits. See, (N.T. 04/12/2016, pgs. 49-51, pgs. 59-61). In the instant case, I.D. has
been in foster care for a significant time and, therefore, no parental bond exists. The
relationship between I.D. and A.D. is attenuated. See also In re JL.C., 837 A.2d 1247,
1249 (Pa. Super. 2003) (a parent who does not put herself in a position to assume daily
parenting responsibilities cannot develop a real bond with her child). Conversely there is
a significant bond (parent-child) between I.D. and his caregiver. See, (N.T. 04/12/2016,
pgs. 49). In re K.Z.S. provides guidance in the instant case. In that case, the court
observed that no bond worth preserving is formed between a child and a natural parent
where the child has been in foster care for most of the child's life, and the resulting bond
with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).
It is also appropriate to consider a child's bond with his or her foster parent. See T.S.M,
71 A.3d at 268. The trial court found that, although there was a bond between Mother
and Child, it was not a parent/child bond. Rather, the trial court found it was a visitation
bond. This finding is consistent with K.Z.S. because Child has been in foster care for a
significant portion of his life and, therefore, the bond between Child and Mother is
attenuated. See also In re JL.C., 837 A.2d 1247, 1249 (Pa. Super. 2003) (a parent who
does not put herself in a position to assume daily parenting responsibilities cannot
develop a real bond with her child). Furthermore, the trial court properly considered the
bond between Child and his pre-adoptive parents. The trial court found that there was a
true parental bond between Child and his pre-adoptive mother. Thus, the trial court
found that Child's emotional needs and welfare were best served by terminating Mother's
parental rights. In cases where there is no evidence of any bond between the parent and



                                             6
child, it is reasonable to infer that no bond exists. Id. at 763. "The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the particular case." Id.
The In re K.Z.S. Court emphasized that, in addition to a bond examination, the trial court
can equally emphasize the safety needs of the child, and should also consider the
intangibles, such as the love, comfort, security, and stability the child might have with the
foster parent. Additionally, The In re K.Z.S. Court stated that the trial court should
consider the importance of continuity of relationships and whether any existing parent-
child bond can be severed without detrimental effects on the child. Id. In re A.S., 11
A.3d 473, 483 (Pa. Super. 2010). The trial court, in the instant case, has employed this
analysis and found that there would be no detrimental effect on I.D. in severing the
parental relationship with A.D. as the record does not reveal a basis for the continuity of
such a relationship.


CONCLUSION
       The trial court, after receiving sufficient evidence and according said evidence the
appropriate weight in light of the law of the Commonwealth of Pennsylvania finds clear
and convincing evidence to support its Order of May 24, 2016. The change of the goal to
Adoption in the instant case was in the best interest of the child.        The trial court's
decision is supported by the competent evidence in the record. As in dependency cases,
the 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. 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 might have reached a different
conclusion. In re L.M, 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
       Upon a careful review of the record after a trial on the merits, the trial court
terminated A.D.'s parental rights pursuant to sections 251l(a)(l), (2), (5), (8) and
251 l(b). The Superior Court has pronounced that "[W]e need only agree with [the trial
court's] decision as to any one subsection [of 2511(a)] in order to affirm the termination
of parental rights." In re B.L. W,843 A.2d 380, 384 (Pa. Super. 2004) (en bane). In a
change of goal proceeding, the best interests of the child, and not the interests of the



                                             7
parent, must guide the trial court, and the parent's rights are secondary. In re A.K., 936
A.2d 528, 532-533 (Pa. Super. 2007). The burden is on DHS to prove the change in goal
would be in the child's best interests. In the Interest of MB., 674 A.2d 702, 704 (Pa.
Super. 1996). In re NC., 909 A.2d 818 (Pa. Super. 2006) is instructive in the instant
matter. In that case, the trial court granted a goal change to adoption despite the fact that
the mother had made substantial progress toward completing her permanency plan. This
Court held that the mother's parenting skills and judgment regarding her children's
emotional well-being remained problematic. Id. at 823.
       The trial court's decision is supported by the weight and sufficiency of the
relevant and credible evidence and applicable law.




9-2-2016
Date                                  HONORABLE WAL ER            r. OLSZEWSKI,      S.J.




                                             8
                                 PROOF OF SERVICE

I hereby certify that this court is serving, today, the foregoing OPINION, by regular mail,
upon the following person(s):


Rebecca Mainor, Esquire
Assistant Defender
Child Advocate Unit
1441 Sansom Street
Philadelphia, PA 19102

Rosa Parks, Esquire (Child Advocate)
Assistant City Solicitor
1515 Arch Street, l 61h Floor
Philadelphia, PA 19102

Andre Martino, Esquire
7435 Sprague Street
Philadelphia, PA 19119


DATE:     q _. & - ( ~
        --------




                                     Hon. Walter J. Olszewski
                                     Supervising Judge: Family Court
                                     Court of Common Pleas: FJD of PA




                                            9
