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[U] In re M.S.J.

Superior Court of Pennsylvania

January 7, 2014



Appeal from the Decree entered May 21, 2013, in the Court of Common Pleas of Philadelphia County, Family Court at No(s): CP-51-AP-0000274-2013, CP-51-DP-0103022-2006, CP-51-AP-0000276-2013, CP-51-DP-0103021-2006, CP-51-AP-0000278-2013, CP-51-DP-0103019-2006, CP-51-AP-0000279-2013, CP-51-DP-0103020-2006, CP-51-AP-0000275-2013, CP-51-DP-0001662-2011.




T.J. ("Mother") appeals from the decrees[1] entered in the Philadelphia County Court of Common Pleas terminating her parental rights to her five minor children, M.S.J. (born July of 2005), M.J. (born in July of 2005), J.J.J. (born in August of 2002), S.H. (born in March of 2004) and G.A.H.-J., (born in March of 2007) (collectively, "Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b).[2] We affirm.

The relevant facts and procedural history of this case are as follows.[3]On August 19, 2011, DHS received a General Protective Services ("GPS") report alleging that, on August 15, 2011, Mother had abandoned Children, who were found in a park near the intersection of 24th Street and Wharton Street in Philadelphia. DHS Pet. for Involuntary Termination of Parental Rights, Ex. A. at 21.[4] The GPS report alleged Children had been left in the park all day; they were wet and unkempt; and family members were unable to locate Mother. Id. The GPS report further alleged that Mother had abandoned Children before in March 2011; she used drugs, and she was unable to provide adequate housing and food for Children. Id. DHS investigations substantiated the allegations in the GPS report and, on August 19, 2011, DHS obtained Orders of Protective Custody for Children, who were then placed in foster care through Lutheran Children and Family Services ("LCFS"). Id.

On September 9, 2011, Children were adjudicated dependent and committed to DHS. Id. at 22. The court referred Mother to the Clinical Evaluation Unit ("CEU") for a drug screen, dual diagnosis assessment, and monitoring. The court ordered DHS to refer Mother to the Achieving Reunification Center ("ARC") program for a parenting capacity evaluation and reunification services. Id. On March 9, 2012, a permanency review hearing was held and it was reported that Mother did not attend visits with Children. Id. In April of 2012, Children were placed together through LCFS in a kinship care, pre-adoptive foster home of their maternal great-aunt and uncle, J.P. and M.P. ("Aunt and Uncle"), where Children have continuously resided. Id. On August 6, 2012, DHS held a Family Service Plan (FSP) meeting. The FSP set forth the goal of reunification and established the following parental objectives, inter alia, for Mother: (1) locate suitable housing; (2) not leave Children unattended; (3) achieve and maintain recovery from drug and alcohol problems; (4) comply with treatment recommendations; and (5) visit Children. Id. at 22-23.

On August 29, 2012, a permanency review hearing was held. After the hearing, the court ordered Children to remain as placed, referred Mother to the CEU for a drug screen, dual diagnosis assessment, and monitoring, and ordered Mother to comply with the CEU's resulting treatment recommendations. Id. at 23. Mother subsequently reported to the CEU for evaluation. The CEU recommended that Mother attend intensive outpatient treatment for substance abuse and scheduled an intake appointment for her at the Wedge Medical Center ("Wedge"). Id.

After Mother failed to attend her intake appointment at Wedge, DHS held a revised FSP meeting on January 31, 2013, and changed the permanency goal to adoption. Id. On May 3, 2013, DHS filed petitions for the involuntary termination of Mother's parental rights to Children, alleging the elements of 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).[5]

On May 21, 2013, the trial court held a hearing on DHS' petitions. DHS social worker, Tonya Betancourt, testified to the following: Mother had not completed any of her FSP objectives. Specifically, Mother began but did not complete parenting classes, nor did she attend any of the housing counseling sessions at ARC. Upon giving birth to another child in March 2013, Mother advised DHS that her current housing was not appropriate for her newborn or Children. N.T., at 10-11, 14-16. Mother lacked progress regarding her substance abuse issues, and she began but did not complete an inpatient dual diagnosis program at the Gaudenzia House, and that, when she gave birth in March 2013, both Mother and her newborn tested positive for opiates. Id. at 8, 14. Mother failed to maintain consistent visitation with Children. For the first nine months of their placement, Mother never visited Children. Thereafter, following a period of two to three months of consistent visitation, Mother again "fell off, " visiting Children only two or three times in the six months prior to March 2013. Id. at 9-10.

Further, Jewish Families and Children Services ("JFCS") foster care worker, Comfort Akangbe, testified:

Since [Mother] started visiting in March [of 2013], she has been coming to the visits very high. I mean, she was not interacting with [Children], and she would sit there and nod off, and she couldn't keep her eyes open. It was of great concern for us and DHS.

Id. at 20.

At the conclusion of the hearing, the trial court terminated Mother's parental rights to Children pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Mother simultaneously filed a timely notice of appeal and a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

Mother raises the following issue for our review:
Whether the trial court erred and/or abused its discretion by terminating the parental rights of [Mother] pursuant to 23 Pa.C.S.A. section[ ] 2511(b) where evidence was presented that established the [Children] had a close bond with their [Mother] and had lived with their [Mother] for the first years of their lives[?]

Mother's Brief at 7.

We review appeals from the involuntary termination of parental rights according to the following standard:

[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. 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.
[T]here 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) (citations omitted).

A trial court's decision regarding the termination of parental rights is controlled 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). "In termination cases, the burden is upon DHS 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). The trial court found that the facts alleged in DHS' petitions as to subsections 2511(a)(1), (2), (5), (8) and (b) were established by clear and convincing evidence. Trial Ct. Op., 7/12/13, at 3-5 (unpaginated).

Mother does not question whether the trial court erred in terminating her parental rights under subsections 2511(a)(1), (2), (5) or (8). Instead, her sole issue on appeal is confined to whether the trial court properly terminated her parental rights in accordance with subsection 2511(b). [6]

In the instant case, Mother contends that the trial court abused its discretion and erred as a matter of law in concluding that termination of her parental rights would serve the needs and welfare of Children. She argues that because Children lived with her for the first years of their lives, there exists close bonds between her and Children. Mother's Brief at 12. Mother cites the testimony of DHS social worker Ms. Betancourt, that Children looked forward to her visits and were disappointed when she failed to attend as scheduled. Id. at 12; N.T. at 10.

With regard to subsection 2511(b), this Court has stated:
The trial court also must discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. The extent of the bond-effect analysis necessarily depends upon the unique facts and circumstances of the particular case.
We observe that an orphans' court is not required by statute or precedent to order a formal bonding evaluation by an expert. Indeed, in assessing the parental bond, the orphans' court is permitted to rely upon the observations and evaluations of social workers. Moreover, the mere existence of an emotional bond does not preclude the termination of parental rights. . . .
[I]n 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, this 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.

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

[C]oncluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent is not only dangerous, it is logically unsound. If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent . . . Nor are we of the opinion that the biological connection between [the parent] and the children is sufficient in of itself, or when considered in connection with a child's feeling toward a parent, to establish a de facto beneficial bond exists. The psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa.Super. 2008) (citations and quotation marks omitted).

The trial court determined that the facts of this case supported a finding that termination would best serve Children's needs and welfare. The court opined:

[T]he testimony established that [C]hildren would not suffer any irreparable emotional harm if [M]other's parental rights were terminated. [Children] have not had an opportunity to bond with [M]other due to [M]other's lack of visitation and daily attention. [They] have bonded with their foster parent[s]. Testimony described the foster parents [as] provid[ing] a stable and loving home for [Children].
[T]he social worker for [DHS] testified credibly.
. . . Furthermore, the court finds that its ruling will not cause [Children] to suffer irreparable harm and it is in the best interest of [Children] as [a] result of testimony regarding [C]hildren's safety, protection, mental, physical and moral welfare, to terminate the parental rights.

Trial Ct. Op. at 4-5. We defer to the trial court's credibility determinations and agree with its analysis. See Adoption of S.P., 47 A.3d at 826-27.

At the termination hearing, JFCS foster care worker, Ms. Akangbe, testified that Children do not have a parent-child bond with Mother, and that they have a parent-child bond with their Aunt and Uncle. N.T. at 23. Further testimony established that Children spent nine months in placement before Mother first visited with them, after which her visitation was sporadic, and that Mother often called to confirm a scheduled visit but then did not attend. Id. at 9-10, 19. Moreover, Ms. Akangbe testified that, when Mother did attend visits, she was "very high, " did not interact with Children, and "never provided anything for [Children], no birthday cards, no gifts, nothing whatsoever. . . ." Id. at 20-22. In addition, both Ms. Akangbe and Ms. Betancourt testified that Children's best interests lie in their being adopted by their Aunt and Uncle, to whom Children already look for their needs to be met, and that, in their opinions, termination of Mother's parental rights would not result in irreparable harm to Children. Id. at 11-13, 21-23.

After careful review of the record, we find there was competent evidence to support the trial court's decision that termination of Mother's parental rights best serves Children's developmental, physical, and emotional needs and welfare. Thus, we discern no abuse of discretion as to the trial court's termination of Mother's parental rights pursuant to subsection 2511(b).

Accordingly, we affirm the trial court's decrees terminating Mother's parental rights to Children pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).

Decrees affirmed.

Judgment Entered.

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