J-S63045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: I.Z.P., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF D.D.W., MOTHER
                                                       No. 634 EDA 2016


                   Appeal from the Decree February 10, 2016
       in the Court of Common Pleas of Philadelphia County Family Court
                         at No(s): CP-51-AP-0000638-2015
                                    CP-51-DP-0001743-2011
                                    FID: 51-FN-0003534-2011

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 12, 2016

        D.D.W. (“Mother”) appeals from the decree entered on February 10,

2016, granting the petition filed by the Philadelphia County Department of

Human Services (“DHS”), seeking to involuntarily terminate her parental

rights to her dependent, minor child, I.Z.P., a male born in January of 2010

(“Child”), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5),

(8), and (b).1 We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
  In the order decree dated and entered on February 10, 2016, the trial
court terminated the parental rights of Mother, only. In a separate order
entered on that same date, the trial court continued the termination hearing
with regard to Child’s father, J.P., (“Father”), who was not present at the
hearing on February 10, 2016. Also, on February 10, 2015, the trial court
entered a permanency review order pursuant to the Juvenile Act, 42 Pa.C.S.
§ 6351, maintaining Child in the legal and physical custody of DHS, and
placed in kinship foster care.
J-S63045-16


      The trial court set forth the factual background and procedural history

of this appeal as follows:

         I.P. was adjudicated dependent on September 28, 2011.
         On March 14, 2013 supervision of I.P. was terminated and
         he was returned to his mother, D.W.

         On December 13, 2013, DHS received a General Protective
         Services (GPS) [report] alleging that I.P. had a burn on his
         right hand. The incident occurred on December 11, 2013.
         The mother, D.W., originally treated the burn with
         Neosporin. Subsequently, the mother took the child to a
         pediatric visit.  The child, I.P., was admitted to St.
         Christopher’s [H]ospital for Children due to the burn
         becoming infected. Furthermore, it was alleged that the
         mother, D.W.[,] was diagnosed with anxiety, bipolar and
         depression. Lastly, it was alleged that D.W. was struggling
         with caring for the child as the child is non-verbal. The
         report was substantiated.

         On December 13, 2013, a DHS social worker visited the
         child at St. Christopher’s [H]ospital. DHS discovered that
         I.P. had a very serious scalding burn. The hospital was
         concerned with D.W.’s ability to care for I.P. The child,
         I.P., indicated that the Mother, D.W.[,] inflicted the burn.
         I.P. was unable to indicate how because he was non-
         verbal.

         On December 23, 2013, I.P.’s maternal grandmother,
         (MGM)[,] contacted DHS by phone stating that D.W. left
         I.P. and his older sibling unsupervised on December 21,
         2013 at 7:30 AM. The children contacted maternal aunt at
         1 PM through social media indicating that they were
         unsupervised. Subsequently, the MGM picked the children
         up. The mother, D.W., did not contact MGM until 9:30 PM.

         On December 24, 2013, DHS visited the home of MGM.
         The child, I.P., indicated to DHS that he was happy with
         MGM and he did not want to see the mom. Furthermore,
         the MGM informed DHS that I.P. had unexplained bruises
         on his back.




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        On December 24, 2013, DHS obtained an Order of
        Protective Custody (OPC) for the [sic] I.P.  The child
        remained in the care and custody of the MGM.

        A shelter care hearing was held on December 27, 2013
        before the Honorable Jonathan Q. Irvine. Judge Irvine
        lifted the OPC and ordered the temporary commitment of
        I.P. to the care and custody of DHS.

        On January 8, 2014, an adjudicatory hearing was held
        before the Honorable Jonathan Q. Irvine. Judge Irvine
        adjudicated I.P. dependent and committed him to the care
        and custody of DHS. Judge Irvine ordered a stay away
        order as to the mother on behalf of the child.

        The matter was listed on a regular basis before judges of
        the Philadelphia Court of Common Pleas - Family Court
        Division - Juvenile Branch pursuant to section 6351 of the
        Juvenile Act, 42 Pa.C.S.A. §6351, and evaluated for the
        purpose of determining or reviewing the permanency plan
        of the child.

        In subsequent hearings, the DRO’s reflect the [c]ourt’s
        review and disposition as a result of evidence presented,
        addressing, and primarily with, the goal of finalizing the
        permanency plan.

        On February 10, 2016, a Termination of Parental Rights
        hearing for the mother, D.W., was held in this matter. The
        [trial court] found by clear and convincing evidence that
        [M]other’s parental rights of I.P. should be terminated
        pursuant to the Pennsylvania Juvenile Act [sic].
        Furthermore, the [trial court] held that it was in the best
        interest of the child that the goal be changed to adoption.

Trial Ct. Op., 4/14/16, at 1-2 (unpaginated).

     On February 10, 2016, the trial court entered the decree terminating

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),

and (b). On February 12, 2016, Mother timely filed a notice of appeal, along




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with a concise statement of errors complained of on appeal pursuant to

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

      On appeal, Mother raises the following issues:

         Whether the trial court erred in involuntarily terminating . .
         . [M]other’s parental rights where it was not supported by
         clear and convincing evidence when . . . [M]other
         completed a substantial portion of her [Family Service Plan
         (“FSP”)] goals?

         Whether the trial court erred in involuntarily terminating . .
         . [M]other’s parental rights where . . . [M]other had
         consistently visited her child and there was a bond
         between . . . [M]other and Child[,] and the termination of
         parental rights would have a negative effect on the
         developmental, physical and emotional needs of the child?

Mother’s Brief at 5.2

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

adhere to the following standard:

         [W]e repeat that appellate 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

2
  We note that Mother stated her issues in reverse order in her concise
statement. In her notice of appeal, Mother challenged both the termination
decree and the permanency review order entered on February 10, 2016. In
her concise statement and statement of questions involved portion of her
brief, however, Mother failed to challenge the permanency review order
entered on February 10, 2016. She, therefore, waived any challenge to that
order. See Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both the concise statement of errors complained of on appeal and the
statement of questions involved portion of the appellate brief).




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         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. 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 [In re R.J.T., 9 A.3d 1179 (Pa.
         2010)], 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).

      The burden is upon the petitioner “to prove by clear and convincing

evidence that its asserted grounds for seeking the termination of parental

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

Moreover, 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.”




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Id. (citation omitted).    This Court may affirm the trial court’s decision

regarding the termination of parental rights with regard to any one

subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc).

      The instant trial court terminated Mother’s parental rights under

Sections 2511(a)(1), (2), (5), (8), and (b). Sections 2511(a)(1), (2), and

(b), provide as follows:

         § 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:

            (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.

            (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


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         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. § 2511(a)(1)-(2), (b).

       In her brief, Mother first contends that DHS did not meet its burden of

proof with regard to Section 2511(a).           Mother argues that she had

substantially completed her FSP objectives, which included drug treatment,

housing, parenting, and therapeutic visitation. Mother’s Brief at 9. Mother

claims that the only outstanding issues for her were visitation and housing.

Id. at 10. Mother asserts that she had previously been reunified with Child,

and that it was not until 2014—after the case was reopened—that

therapeutic visits were ordered.    Id.   Mother testified that she wished to

participate in therapeutic visits, but that DHS failed to make the appropriate

arrangements for her to do so. Mother’s Brief at 10 (citing N.T., 2/10/16, at

55-56). Mother testified that she loves Child and wishes to be reunified with

him.   Id. (citing N.T., 2/10/16, at 58-59).    Mother cites In re S.M., 816

A.2d 1117, 1123-24 (Pa. Super. 2003), in support of her argument that the

trial court may not take the child of a parent who attempted to satisfy her

FSP objectives and terminate that parent’s parental rights. Mother’s Brief at

10-11. Mother asserts that she participated in everything except visitation

or made her best efforts to do so. Id. at 11.




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     We have explained this Court’s review of a challenge to the sufficiency

of the evidence supporting the involuntary termination of a parent’s rights

pursuant to Section 2511(a)(1) as follows:

           To satisfy the requirements of 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.

                                *    *       *

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

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).

           [t]o be legally significant, the [post-abandonment]
           contact must be steady and consistent over a period
           of time, contribute to the psychological health of the
           child, and must demonstrate a serious intent on the
           part of the parent to recultivate a parent-child
           relationship and must also demonstrate a willingness
           and capacity to undertake the parental role. The
           parent    wishing    to   reestablish  his    parental
           responsibilities bears the burden of proof on this
           question.

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (alterations in original

and citation omitted); see also In re C.L.G., 956 A.2d 999, 1006 (Pa.

Super. 2008) (en banc).




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      Further, regarding the definition of “parental duties,” this Court has

stated as follows:

             There is no simple or easy definition of parental
             duties. Parental duty is best understood in relation
             to the needs of a child.        A child needs love,
             protection, guidance, and support. These needs,
             physical and emotional, cannot be met by a merely
             passive interest in the development of the child.
             Thus, this court has held that the parental obligation
             is a positive duty which requires affirmative
             performance.

             This affirmative duty encompasses more than a
             financial obligation; it requires continuing interest in
             the child and a genuine effort to maintain
             communication and association with the child.

             Because a child needs more than a benefactor,
             parental duty requires that a parent ‘exert himself to
             take and maintain a place of importance in the
             child's life’.

           Parental duty requires that the parent act affirmatively
           with good faith interest and effort, and not yield to every
           problem, in order to maintain the parent-child relationship
           to the best of his or her ability, even in difficult
           circumstances.      A parent must utilize all available
           resources to preserve the parental relationship, and must
           exercise reasonable firmness in resisting obstacles placed
           in the path of maintaining the parent-child relationship.
           Parental rights are not preserved by waiting for a more
           suitable or convenient time to perform one's parental
           responsibilities while others provide the child with his or
           her physical and emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

      Instantly, with regard to Section 2511(a)(1), the trial court found as

follows:




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         It is clear from the record that for a period of six (6)
         months leading up to the filing of the Petition for
         Involuntary Termination, [M]other failed to perform
         parental duties for the child. The court found by clear and
         convincing evidence that [M]other refused or failed to
         perform her parental duties.

         In the instant case, . . . [M]other did not complete her
         single Case Plan (SCP) goals. The Community Umbrella
         Agency (CUA) social worker identified . . . [M]other’s FSP
         objectives as: 1) to go to the Clinical Evaluation Unit of the
         [c]ourt and render three random drug screens, 2)
         complete drug and alcohol treatment, 3) complete mental
         health treatment and 4) attend supervised, therapeutic
         visits with the child.      (N.T., 2-10-16, pgs. 31-35).
         [M]other did not attend the CEU for her random drug
         screens.   (N.T., 2-10-16, p. 35).       Furthermore, . . .
         [M]other did not complete drug and alcohol treatment.
         Moreover, she did not complete mental health treatment.
         (N.T., 2-10-16, p. 35). Lastly, . . . [M]other DID NOT visit
         with the child. (N.T., 2-10-16, p. 38)[.]

                                  *     *      *

         In the instant matter, the child, I.P., has been in
         placement for over two years. The testimony established
         that the child is in a loving home (N.T., 2-10-16, p. 41)
         and termination of . . . [M]other’s parental rights is in the
         best interest of the child. (N.T., 2-10-16, p. 39).

Trial Ct. Op. at 3-4 (unpaginated).

      Mother contends that DHS did not make reasonable efforts to avoid

the termination of her parental rights by providing her with transportation to

therapeutic visitations.   Our Supreme Court, however, held that the trial

court is not required to consider an agency’s reasonable efforts in relation to

a decision to terminate parental rights.       In re D.C.D., 105 A.3d 662, 675

(Pa. 2014). Thus, her argument lacks merit. See id.



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     After a careful review of the record in this matter, we find the trial

court’s 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 S.P., 47 A.3d at 826-27. We therefore affirm the termination of her

parental rights with regard to Section 2511(a)(1).

     Next, 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 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.” See In re M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003) (citation omitted).      The grounds for

termination of parental rights under Section 2511(a)(2) “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

A.2d 326, 337 (Pa. Super. 2002) (citation omitted).

     The instant trial court found the following with regard to Section

2511(a)(2):

        In the instant case, the CUA social worker testified that a
        stay away order was issued against the mother on behalf
        of the child, I.P. The [c]ourt ordered therapeutic visits
        between . . . [M]other and the child. (N.T., 2-10-16, pgs.
        35-36). The supervised therapeutic visits were scheduled
        through Assessment & Treatment Alternatives, Inc. (ATA).


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         . . . [M]other did not attend any of the therapeutic visits
         with the child. (N.T., 2-10-16, pgs. 36-37). Lastly, the
         social worker testified that . . . [M]other failed to respond
         to outreach she made to her regarding compliance with
         visitation. (N.T., 2-10-16, p. 40).

Trial Ct. Op. at 4 (unpaginated).

      After a careful review of the record in this matter, we find the trial

court’s 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.

See In re S.P., 47 A.3d at 826-27. Again, as our Supreme Court held, the

trial court is not required to consider reasonable efforts in relation to a

decision to terminate parental rights. See In re D.C.D., 105 A.3d at 675.

Thus, Mother’s argument concerning DHS’s alleged failure to provide her

with transportation to the therapeutic visits lacks merit.     We, therefore,

affirm the termination of Mother’s parental rights with regard to Child under

Section 2511(a)(2).

      Next, we review the termination of the parental rights of Mother under

Section 2511(b).      This Court has stated that “the focus in terminating

parental rights is on the parent, under Section 2511(a), whereas the focus in

Section 2511(b) is on the child.” In re C.L.G., 956 A.2d at 1008 (citation

omitted). Our Supreme Court held

         if 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


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         stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super.
         2012). 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.

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

      Mother argues that the trial court erred in terminating her parental

rights with regard to Child. Mother states that she did not fail to see Child

until he went into placement in December of 2013, and the trial court

ordered therapeutic visitation.   Mother’s Brief at 7, 12.   Relying on In re

S.M., Mother contends that there was no evidence admitted at the hearing

to contradict her maintenance of a bond with Child. Mother states that she

testified that after the court ordered therapeutic visitation, she made many

attempts to contact her social worker to schedule therapeutic visits, but they

never occurred.   Mother asserts that DHS failed to satisfy its burden of

proving that the termination of her parental rights was in Child’s best

interest when there continued to be a significant bond between Child and

her. Id. at 15.

      With regard to Section 2511(b), the trial court found as follows:

         In the instant matter, the CUA social worker testified that
         the child does not have a parental bond with . . . [M]other.
         (N.T., 2-10-16, p. 38). The child did not ever ask to visit
         with . . . [M]other. (N.T., 2-10-16, p. 39). The kinship
         parent, MGM, provides for all of the child’s needs. The
         MGM provides the child with love, support and comfort.
         Furthermore, the MGM meets the medical, general, and
         academic needs of the child.       (N.T., 2-10-16, p. 41)


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         Moreover, the social worker testified that the child would
         not suffer irreparable harm if . . . [M]other’s rights were
         terminated. (N.T., 2-10-16, pgs. 41-42). Lastly, the
         testimony indicated that it would be in the best interest of
         the child if . . . [M]other’s parental rights were terminated
         and the child [could] be adopted. (N.T., 2-10-16, p. 39).

         The Trial Court found by clear and convincing evidence
         that the Department of Human Services met their
         statutory burden pursuant to 23 Pa.C.S.A. § 2511(a) & (b)
         (N.T., 2-10-16, p. 65) and that it was in the best interest
         of the child to change the goal to adoption.

         Lastly, the [Trial] Court found that Mother, D.W., appeared
         to be under the influence of drugs/alcohol at the
         termination hearing.        The [Trial] Court noted its
         observation that . . . [M]other’s testimony was slurred and
         incoherent. (N.T., 2-10-16, p. 65).

Trial Ct. Op. at 5-6 (unpaginated).

      After a careful review of the record, we find the trial court’s 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. See In re S.P.,

47 A.3d at 826-27. It is well-settled that “we will not toll the well-being and

permanency of [a child] indefinitely.”         In re C.L.G., 956 A.2d at 1006

(noting that a child’s life “simply cannot be put on hold in the hope that [a

parent] will summon the ability to handle the responsibilities of parenting”

(citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)). Accordingly,

having discerned no abuse of discretion, we affirm the termination of

Mother’s parental rights with regard to Child under Section 2511(b). See In

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

      Decree affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2016




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