In the Int. of: E.L.A-L., Appeal of: D.L.-A

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2018
• Docket: 1708 EDA 2018
• Status: Unpublished

Opinion

J-S64016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.L.A-L., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.L-A., MOTHER : : : : : No. 1708 EDA 2018

Appeal from the Decree and Order May 24, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000477-2017, CP-51-DP-0000534-2016, FID: 51-FN000492-2016

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 13, 2018

D.L.A. (“Mother”) appeals from the decree dated and entered on May

24, 2018, granting the petition filed by the Philadelphia County Department

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

rights to her minor male child, E.L.A.-L., born in June of 2014, pursuant to the

Adoption Act, 23 Pa.C.S. § 2511.1 Mother also appeals from the permanency

____________________________________________

1 At the hearing on the termination petition held on May 24, 2018, Attorney Mary Ann Galeota represented Child as his child advocate (legal counsel), and Attorney Maureen Pié, represented Child as his guardian ad litem (“GAL”). See In re: Adoption of L.B.M., ___ Pa. ___, 161 A.3d 172 (2017) (plurality) (initially filed on March 28, 2017). In L.B.M., our Supreme Court held that 23 Pa.C.S. § 2313(a) requires that counsel be appointed to represent the legal interests of any child involved in a contested involuntary termination proceeding. The Court defined a child’s legal interest as synonymous with his or her preferred outcome. In In re T.S., ___ Pa. ___, 192 A.3d 1080 (2018), J-S64016-18

review order dated May 24, 2018, pursuant to the Juvenile Act, 42 Pa.C.S. §

6351, directing that E.L.A.-L. remain in the legal custody of DHS, and that he

remain in foster care. Mother’s counsel, Attorney Emily Beth Cherniack,

(“Counsel”) filed with this Court a motion for leave to withdraw as counsel and

a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967).2 We

affirm, and grant Counsel leave to withdraw.

The trial court fully and accurately set forth the procedural history and

factual background of this appeal in its opinion entered on June 28, 2018,

the Supreme Court held that the trial court did not err in allowing the children’s GAL to act as their sole representative during the termination proceeding because, at two and three years old, they were incapable of expressing their preferred outcome. The Court explained, “if the preferred outcome of the child is incapable of ascertainment because the child is very young and pre- verbal, there can be no conflict between the child’s legal interests and his or her best interests; as such, the mandate of Section 2313(a) of the Adoption Act that counsel be appointed ‘to represent the child,’ 23 Pa.C.S. § 2313(a), is satisfied where the court has appointed an attorney-[GAL] who represents the child’s best interests during such proceedings.” Id. at ___, 192 A.3d at 1092. Here, E.L.A.-L. had both a legal counsel and a GAL. While his preferred outcome is not part of the record, E.L.A.-L., who is autistic, was under the age of four and had been in care for twenty-six months, and was receiving therapeutic services at the time of the hearing. See N.T., 5/24/18, at 34. Accordingly, we find that E.L.A.-L.’s pre-verbal age and developmental challenges obviate the need for any inquiry into his preferences, and that the mandates of L.B.M. and T.S. are satisfied.

2 The trial court did not terminate the parental rights of E.L.A.-L.’s father, M.L. a/k/a M.J.L., (“Father”) at the hearing on the termination petition regarding Mother. Rather, the court granted a thirty-day continuance of the hearing as to the termination of Father’s parental rights in order to provide him an opportunity to voluntarily relinquish his parental rights. N.T., 5/24/18, at 8- 9. The trial court notes that Father is not a party to this appeal. See Trial Court Opinion, 6/28/18, at 1, n.1. We further note that Father did not file a brief or otherwise participate in this appeal.

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which we adopt herein. See Trial Court Opinion, 6/28/18, at 1-5. On April

27, 2017, the Agency filed petitions to terminate both Mother’s and Father’s

parental rights to E.L.A.-L., and to change E.L.A.-L.’s permanency goal to

adoption. On May 24, 2018, the trial court held an evidentiary hearing on the

petitions. At the hearing, Mother was present with her counsel. Father’s

counsel was present, but Father was not present. The legal counsel for E.L.A.-

L., Attorney Galeota, was present, as was the GAL, Attorney Pié.

On May 24, 2018, the trial court entered the decree that terminated

Mother’s parental rights to E.L.A.-L. under sections 2511(a)(1), (2), (5), (8),

and (b) of the Adoption Act, and the permanency review order that directed

that legal custody of E.L.A.-L. remain with DHS, and that E.L.A.-L.’s

permanency goal remain placement in foster care. On June 5, 2018, Mother

filed a notice of appeal, along with a concise statement of errors complained

of on appeal, from the termination decree and permanency review order.

Before we review the substantive issues presented by Mother on appeal,

we must first address a procedural question. In Commonwealth v. Walker,

___ Pa. ___, 185 A.3d 969 (2018), our Supreme Court recently held:

[I]n future cases Rule 341(a) will, in accordance with its Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.

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Id. at 977 (emphasis added).3

Here, the decree and order entered on May 24, 2018 from which Mother

appeals were listed at two docket numbers in the trial court, one from the

adoption (termination) matter, and the other from the dependency (goal

change) matter.4 However, the termination decree solely resolves the issue

regarding the termination of Mother’s parental rights to E.L.A.-L. pursuant to

23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). See Decree of Involuntary

Termination of Parental Rights, 5/24/18, at 2. The permanency review order

does not resolve any issues with regard to dependency, and, notably, the

docket number listed on the May 24, 2018 permanency review order

references only the Adoption Docket, CP-51-AP-0000477-2017.5 As the

decree and order resolve only issues arising from the trial court's adoption

docket, i.e., issues relating to the termination of Mother’s parental rights, we

find that Walker is not controlling, and we need not quash the appeal.

3Walker was filed on June 1, 2018; Mother's notice of appeal was filed four days later, on June 5, 2018.

4 Although Mother included both adoption and dependency docket numbers on her singular notice of appeal, she does not raise any issue with regard to the dependency matter in her appellate brief, nor do we discern any such issues. We observe that the trial court maintained the status quo in the permanency order, as the termination/permanency goal change matter had been continued as to Father.

5While the record contains the permanency review order dated May 24, 2018, Mother’s issues do not challenge the dependency matter.

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On August 20, 2018, Mother’s counsel filed a motion to withdraw as

counsel and an Anders brief on behalf of Mother. In her Anders brief on

appeal, Counsel raises the following issues on behalf of Mother:

A. Whether the trial court erred in involuntarily terminating [] Mother’s parental rights pursuant to 2511(a)(1), 2511(a)(2), 2511(a)(5), 2511(a)(8) where it was not supported by clear and convincing evidence?

B. Whether the trial court erred in involuntarily terminating [] Mother’s parental rights where there was a bond between [] Mother and [E.L.A.-L.] and the termination of parental rights would have a negative effect on the developmental, physical and emotional needs of the [E.L.A.-L.]?

Anders Brief (redacted) at 4.

Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw representation, he or she must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record . . ., counsel has determined the appeal would be frivolous;

(2) file a brief referring to anything that might arguably support the appeal. . .; and

(3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of the court’s attention.

In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).

In In re V.E., 611 A.2d 1267, 1274-1275 (Pa. Super. 1992), this Court

extended the Anders principles to appeals involving the termination of

parental rights. “When considering an Anders brief, this Court may not

review the merits of the underlying issues until we address counsel’s request

to withdraw.” In re S.M.B., 856 A.2d at 1237.

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In Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009),

our Supreme Court addressed the second requirement of Anders, i.e., the

contents of an Anders brief, and required that the brief:

(1) provide a summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 602 Pa. at 178-79, 978 A.2d at 361. “After an appellate court

receives an Anders brief and is satisfied that counsel has complied with the

aforementioned requirements, the Court then must undertake an independent

examination of the record to determine whether the appeal is wholly

frivolous.” In re S.M.B., 856 A.2d at 1237.

With respect to the third requirement of Anders, that counsel inform

the defendant of his or her rights in light of counsel’s withdrawal, this Court

has held that counsel must “attach to their petition to withdraw a copy of the

letter sent to their client advising him or her of their rights.” Commonwealth

v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

Counsel has complied with each of the requirements of Anders.

Counsel indicates that she conscientiously examined the record and

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determined that an appeal would have no meritorious issues, and that the

appeal is wholly frivolous. Further, Counsel’s Anders brief comports with the

requirements set forth by the Supreme Court of Pennsylvania in Santiago.

Finally, attached to her motion to withdraw is a copy of Counsel’s letter to

Mother, dated August 20, 2018.6 In compliance with Millisock, the letter

stated Counsel’s intention to seek permission to withdraw, and advised Mother

of her right to proceed by submitting any comments or arguments to this

Court on her own behalf, or to retain new counsel to represent her on appeal.

Accordingly, Counsel has complied with the procedural requirements for

withdrawing from representation, and we will proceed with our own

independent review.

In the Anders brief, Counsel raised whether the Agency presented

insufficient evidence to support the involuntary termination of Mother’s rights

under sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. Anders

Brief, at 4.7

6 The letter is dated August 20, 2018, but also includes a second date of February 6, 2015, which is an apparent typographical error.

7 In her Anders brief, Counsel does not challenge the permanency review order under section 6351 of the Juvenile Act This Court has stated, “[o]nce counsel has satisfied the above requirements [for a motion to withdraw and Anders brief], it is then this Court’s duty to conduct its own review of the trial court’s proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). See Commonwealth v. Flowers, 113

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

adhere 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. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; R.I.S., [614 Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., [608 Pa. at 28- 30], 9 A.3d at 1190. 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 ____________________________________________

A.3d 1246, 1250 (Pa. Super. 2015) (following Goodwin). Thus, we may address whether the Agency established the grounds for the termination and the goal change to adoption as part of our independent review. As we noted above, we discern no such issues, since the trial court maintained the status quo in the permanency order because the termination/permanency goal change matter was continued as to Father.

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and the court’s legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).

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

evidence that the asserted grounds for seeking the termination of parental

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

Moreover, we have explained:

[t]he standard of clear and convincing evidence is defined as testimony that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

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). Sections

2511(a)(2) and (b) provides, in relevant part, 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:

***

(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.

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(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. § 2511.

The Supreme Court set forth our inquiry under section 2511(a)(2) as

follows.

As stated above, § 2511(a)(2) provides statutory grounds for termination of parental rights where it is demonstrated by clear and convincing evidence that “[t]he 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.” . . .

This Court has addressed incapacity sufficient for termination under § 2511(a)(2):

A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.

In re Adoption of J.J., [511 Pa. 599, 605,] 515 A.2d 883, 891 (Pa. 1986) (quoting In re: William L., [477 Pa. 322, 345,] 383 A.2d 1228, 1239 (Pa. 1978).

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In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.

This Court has long recognized that a parent is required to make diligent

efforts towards the reasonably prompt assumption of full parental

responsibilities. In re A.L.D. 797 A.2d 326, 337 (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. Id. at 340.

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

section 2511(a) is on the parent, but it is on the child pursuant to section

2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.

2008) (en banc). In reviewing the evidence in support of termination under

section 2511(b), our Supreme Court has stated as follows.

[I]f the grounds for termination under subsection (a) are met, a court “shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include “[i]ntangibles such as love, comfort, security, and stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [533 Pa. 115, 121, 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 K.M., 53 A.3d at 791.

In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).

When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

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well. Additionally, section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances . . . where

direct observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

A parent’s abuse and neglect are likewise a relevant part of this analysis.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court may

emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at 763

(affirming involuntary termination of parental rights, despite existence of

some bond, where placement with mother would be contrary to child’s best

interests). “[A] parent’s basic constitutional right to the custody and rearing

of . . . her child is converted, upon the failure to fulfill . . . her parental duties,

to the child’s right to have proper parenting and fulfillment of [the child’s]

potential in a permanent, healthy, safe environment.” In re B.,N.M., 856

A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).

In its opinion entered on June 28, 2018, the trial court fully and adeptly

discussed its reasons for finding that the Agency satisfied its burden of proof

under sections 2511(a)(2) and (b). We, therefore, find no abuse of the trial

court’s discretion in terminating Mother’s parental rights to E.L.A.-L. under

sections 2511(a)(2)and (b). In re Adoption of S.P., 616 Pa. at 325-26, 47

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A.3d at 826-27. Finding no issues of merit, either with regard to the

termination decree or the permanency review order, after our independent

review of the record, we, thus, affirm the trial court’s termination decree and

permanency review order on the basis of the trial court opinion, and grant

counsel’s motion for leave to withdraw. We direct the parties to attach the

trial court’s opinion to all future filings based upon our disposition of this

appeal.

Decree and order affirmed. Motions to withdraw granted.8 Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/13/18

8 We grant counsel’s motions to withdraw at both the adoption and dependency dockets pertaining to this case. See Supra. at footnotes 4 and 5.

- 13 - Circulated 12/04/2018 Filed 8120/2018 6:55:00 AM.Superior 03:05 Court Eastern PM District 1708E;DA2018

IN THE COURT OF COMMON PLEAS FIRST mDICIAL DISTRICT OF PENNSYLVANIA .. ,· . . . JUVENILEDIVISION . .

-·····-----·----------· IN RE: E.L.A.-L,. a Minor SUP.ERIORCOURT 1708 EDA2018 -:c c., ::-:, .:.X, ,�:; ;.._ b .. •.• � r-» :o �· co ·rr:, CQURT OF CON.I¥ON PL-"O'S ....., CP-51-DP-0000534-2016 -1 ;:. ·�·. FID: 5l�FN�000492'."2Q16- d -r

APPEAL OF: D.L.A, Mother (!j)�r:/-/f' f�OOO.& '111�, .i:g. . :v ,, �017

OPINION DAINE GREY JR., J.

D.L.A C'Mother'? timely appeals this Co\ll't's decree entered on May 24, .2018, granting

the Philadelphia Department of Human Services' (''DHS") petitions to involuntarily terminate

her parental rights as to her child, E.L.A.-L., bom on June 21, 2014� (the ''Child'') pursuant to the . . . . . .. . ·.· . . .·. I . .· .. Adoption Act, 23 Pa. C.S.A. §§ 251 l(a)(l), (2), .(5), (8) and (b).

I. PROCEDURAL HISTORY & FACTS

The relevant facts and procedural history· of this case are as follows: OHS first became

aware of this family in March of 2016 when it received a call stating that Mother was

hospitalized due to mental health concerns. (N.T. 5/24/ 18 at 16-17). The report was determined

to be valid, and based on the allegations in the report, an Order ofProtective Custody was obtained for the Child.. (Id. at 17). At a shelter care heating for the Child on March 4, 2016, th.is .

. Court granted temporary legal custody of the Child to OHS. (Trial Court Order 3/4/.18 at l ). D.HS

1 Father, is nob party to this appeal.

l

·--------,,·------·--..·-···--- subsequently filed dependency petitions for the Child and an adjudicatory hearing was held on

Mar.ch,i2, 2016. (Trial Court Order 3/22/16 at 1).. DHS granted Mother supervised weekly visits

with the Childat the agency. (Jcl} At the �djudicatory hearing, this Court adjudicated the Child

dependentbased upon the findings of abuse and neglect, granted full legal custody ofthe Child

to DHS and placed the Child in Foster Care. (Id.j. An initial permanency review hearing was

held on November 22, 2016� at which time, the permanency goals for the. Child were identified

as reunification With Mother or guardian. (Trial Court. Ordefll/22/i 6 at J).

On April .27. 2017,DHS filed petitions to Involuntarily terminate Mother's parental rights

to the Child pursuantto 23 Pa. C.S.A.J§ 251.l(a)(l), (2), (5); (8) and (b).and to change the

Child's permanency goals to adoption. This court conducted a combined termination and goal

change hearing (collectively the "TP.RJ>hearing) on May 24, 2018. At the TPR hearing, the

Community Umbrella Agency ("CUA") case manager . . supervisor; . . . . Deconte Baker, testified that

the Child has been in foster care since the initial placement in Mcltch20lq, . (N.T. . 5/24/18 at 17)..

Ms; Baker testified that Mother's single case plan objectives were as follows: 1) participate in

arid complete a mental healthprogram, 2) participate in and complete drug and alcohol

treatment, 3) medication management, and 4) parenting capacity. (Id, at 18}� Mother's single

case plan objectives have been consistent throughout thelife of the. case. (Jd;). According to Ms.

Baker, the goal in the last single case plan conducted on February I 6, 2018, was changed to

adoption. (Id. at J 7).

In regards . to Mother's compliance. with her objectives, Ms. Baker testified thai Mother .

was non.. compliant. (Id. at 29.). Specific.ally, Ms. Baker testified that Mother never completed a.

mental health program. (Id. at 18). Ms•. Baker testified tha.t Mother was enrolled in a.mental

health program.at.John F. Kennedy Behavioral Health Center ("JFK"), however Mother refused

2 to sign a release of information to DHS regarding Mother's compliance or what she was being

treated there for. (Id. at 19). Mother was also enrolled in a mental health program at The Wedge

Recovery Center and NorthliastTreatment ("NEP;)) however Motherwas discharged.from.the

· Wedge due.to.her aggressive behavior, (Id. at 20-21). Ms. 'Baker testified that Mother was

involved. in a verbal altercation with a member at the program and proceeded to· use a fire

extinguisher to spray the. other members in the hallway, (Id. at 21 ). Further, Mother was

discharged from the NET programinFebruary 2017 fornon-compliance. (Id. at 22). In regards to Mother's drug.and alcohol treatment, Mother.has never successfully

completed a drug and alcohol program throughout the life of this case. (Id.. at 22.:23), On

February 20,2018, Mother testedpositive for cannabis and refused to sign releases for the Clinical· Evaluation Unit ('�CEO'') in order to verify whether she. was enrolled in treatment. (Id, at

23 ). Mother also tested positive for cannabis on April I, 2016 and April 28, 2016. (Id. at 24). In regards to Mother's medication management, Mother was provided a dual diagnosis.assessment.

(Id.,). Motheris diagnosed with Bipolar disorder and Post Traumatic Stress Disorder (PTSD). (Id. at 25). Ms. Baker testified that Mother has not been compliant.nor consistent with medication

management because she has not signed the consents. (Id:). Mother was also referred in

September 2016 to ACAfor a parenting capacity.evaluation, however she didnot.attend any.of

the scheduled evaluations. (Id.. at 22).

With respect to Mother's visitation with the Child, Ms. Baker testified that Mother was to

attend visits with the Child at the agency; (ld. at25--26). Mother had visits with the Child from

March 2016 to July 2016� however the.visits were suspended on November 22, 2016. (Id. at 26-

27). Ms. Baker testified that the visits were suspended when Mother began spitting on the staff members and demonstrated an aggressive and threatening nature. (Id: at 27-28). As a result of

3 Mother's behavior, workers were no longer willing to.supervise her visits. (Id;). The visits with

the. Child were moved to the courthouse, where Mother's aggressive behavior persisted and

therefore visits were suspended.(#:) .. When. asked about.Mother's housing situation, Ms, Baker

· testified that Mother refused to. disclose any information to.her or the. agency and therefore was

unable to confirm Mother had appropriate housing, (Id. at28).

Ms. Baker indicated thatit would be in the Child's best interest to terminate Mother's

parentalrights because she has never addressed hermentalhealth needs, she has not completed a

drug and alcohol program, consistently tests.positive for cannabis, has not cared forthe Child for

the majority of his life, approximately 26 months, and is not bonded with the Child. (Id, al 29-

3 0). Ms. Baker further testified that the Child has ii strong bond with bis maternal aunt who is the

pre-adoptive resource and she religiously attends eyery scheduled visit with the Child. (Id; at34 ..

35} Ms. Baker also testified that the Child receives services for autism and will continue to

receive services if the Child is adopted. (Id. at 35, 39).

At the TPR hearing; Mother testifiedthat her intensive outpatient drug and alcohol

treatment was reduced as a result of.her deteriorating physical and mental health.{Jd. at 49);

Motheralsotestified.that she was incarcerated from May 5, 2017 to December . 5, .20l7and.has . .

since beea.on probation. (Id: at5 l -52). Mother further admitted to testing positive for Marijuana

on.a bi-weekly basis. (Id: at 52). Mother testified that she attended the Joseph J. Peters Institute

("JJPr') for additional trauma: therapy on April 16, 2018,. however .Mother only began attending

JJPI two months prior to the TPR hearing. (Id. at SO). ,. , ,..,,_...,� ,

Based. on the foregoing testimony, this Court issued a.decree Involuntarilyterminating

the parental rights of Mother under 23 Pa. C.S.A. §§ 2511 (a){ 1)> (2), (5), and (8) and finding, in

accordance with23 Pa. C,S.A. §§2511(b)� that such termination best serves the developmental,

4 • r: f � ,_. ' . '

physical, and emotional needs and welfare of the Child. (Trial CourfOrdei:5/24/18 at l ). Mother, along with counsel..filed a timely Notice of Appeal along with a 'Statement of Errors.

II. DISCUSSION

A. This Court Properly Granted Petitioner's Petition to Involuntarily Terminate . the 'Parental Rights ofMother Pursuant to Sections 2511(a)(l), (2), (5), (8) and lhl

When. considering an appeal from an order involuntarily terminating parental rights, an

appellate court must accept as true the trial court's findings. of facts so long as they are supported

by the record, and then .determine whether the trial court made art error oflaw or abused its

.,« •.•.. , . discretion in rendering its decisiop.Jnre Adoptionof$.P.., 47A.3d 817, 826.(Pa. Super; 2012) .. A. -�·--, .... ,.vi··:·�- ,.

· trial court's decision constitutes an abuse. of discretion only if it is manifestly unreasonable or is

the product of'partiality, pr¢j udice, bias, or .ill will. (Id.). An abuse of discretion will not merely

occur, because the reviewing court might have reached a different decision. In re R.J. T., 608 Pa. 9

A.3d. l l79, 1190 (Pa. Super, 2010):,

The party seeking termination must establish, by clear and convincing evidence, the

existence ofgrounds for termination. In re J.L.C.� 837, A.2dl247, .1251 (Pa. Super. 2003), Clear and convincing evidence is testimony that is "so clear, direct, wei$.hty and convincing as to

enable the trier offact to come to a clear conviction, without hesitance, of the truth .of the precise" ·--'...:.� :

facts in.issue," In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 20(10) (en bane).

The involuntary termination ofparental.righrs Is.governed by 23 Pa.C.S.A. § 2Sll, which

requires a two-step analysis. In the first step, the party seeking termination .must prove by clear

. and convincing evidence that the parent' s conduct. meets at least one of the i 1 grounds set forth in Section 251l(a). lnreL.Jvl., 923 A.2d 505, 511 (Pa. Super. 2007).0ric:e the courtdetermines ,,·,

that the party seeking termination has proven at least one efthe ll grounds in Section25U(a),

5 <':"'.·'· ........ • ..

...- _.. , ------- :'' 7 :. •••.• ., .� ·-·�- ;.,,-., - .-····

then the petitioner can proceed to the second step. Tu the second step. the court must determine . .. � i ,;

whether termination is in the best interest of the Child, considering the developmental, physical

.and emotional welfare . . . In re Adoption srs»; of.the child. 23 Pa.C;S.A. § 25ll(b); . . . 47A3dat

830. In conducting this analysis, the. court should examine the emotional bond between parent

and child, with close attention to the cffect of What permanently. severing . any such bond will

have on the child. In re L.M.,.92'3 A.2d at51 L Additionally.In order to affirm, an appellate court

·need only agreewith the trial courtasto anyonesubseetion.of 2511(a), as wellr;l82511 (b). In r_e., .. ··.......· . . . ·

B.L. W., 843 A.2d 380,.384 (Pa. Super, 2004).

This courtfound grounds for involuntary termination of Mother's parental. rights existed

pursuant to 25 U(a)(l),.(2), (5), (8) and (bJ. (See Trial CourtOrder 05/24/18 at 1). This Court

will address each subsection separately .

.1. · This, Court Properly Terminated Mother's Parental Rights Pursuant to Section 2Sll{a)(l) .

Pursuant to Section 2511 (a)(l),; Pennsylvania law provides that parental right may be

involuntarily terminated after apetition.is filed if, "[t]he 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:".23 Pa;C.S.f.\.. § 2511 (a)(l).

This Court found clear and. convincing evidence thatMother demonstrated a settled

purpose of.relinqulshing parental claim to the Child and failed to perform parental duties for the

Child six months priorto when.the petition was filed. The Child was removed from the Mother's

care and temporary custody was given to OHS on March 4� 2016. The Child has been in foster care since the irtitia,lplacement in March 2016. (NS. 5/24/18 at 17). Mother's refusaf to parent

········"···---"-·-··---"----..------ since that time was demonstrated in her failure to meet hersingle case pl ail o bjectives. Mother

failed to address her mental health needs and has never completed a drug and alcohol program.

(Id. at 22-23). Mother continues to test positive for Marijuana, (Id. at 23);Mothertestifies that

she enrolled in JJPl on April 16, 2018. and JFK on March 5, 2018 for mental health services. (Id.

af50). However, she refused to sign releases of'lnformation to DHS and she sought these

services after the termination petition W?� filed. (Id: at 62). According to. the testimony of the

CUA case manager, pursuanttoZl Pa.C�S.A. § 2511 (a)(l), any efforts to remedy the situation

after the termination petition is filed is not relevant (id:).

Furthermore, Mother has a conceming.aggressive and threatening-nature. Mother was

enrolled at the Wedge for mental health treatment and was discharged .in October of201[6J due

to her aggressive and threatening behavior. (Id: at 20.;.21). Additionally, Mother was enrolled at '

the NET and her enrollment was terminated oh February2017 for non-compliance, (Id. at 22) ..

Lastly, Mother did notattend visits with her Child since November 2016. (Id. at21). Mother had

been.attending visits from March 2016to July20l6.attheagericy. {Id. at26). Mother's visits at ·

the agency were-suspended and moved to the courthouse due to her aggressive and threating

nature. (Id� at 2 7); However, the visits. were suspended on November 22,.2016 because Mother

spit on staff and again showed an aggressive and threatening nature. (Id. at 28). These minimal

objectives wouldhave demonstrated Mother's.interestin caring for the Child; however, Mother

made little efforts to.fulfill these objectives. Additionally, Mother offered no evidence that she

made everi the slightest efforts to re-establish ties with the Child during the six-month period

priorto the filing of the termination petitions. Accordingly, this Court found termination of

Mother's parental rights warranted pursuant to 25U(a)(l).

·.:'· ·:' ·,: ',�·,' .·. 7

______________________________ ... .1 ••.

. Z. This .Court P:roperlyTerminated Mother's Parental Rights P.ursuantto Section 251l{a}(2)

When terminatingparentalrighte pursuant to Section 25 l 1(a)(2), themoving.pclrty.must

prove by clear and convincing evidence:

[t]he repeated and continued incapacity, neglect; abuse or refusal of the parent has caused the child to be without parental care, control or subsistence necessary for his physical .or mental well-being and the conditions and causes of the incapacity) abuse, neglector refusal cannot or will not be remedied by the parent,

23 Pa.C.$.A. § 2511 (a)(2); See.also, In re Adoption ofuer; 825 A.2d.1266, 1272 (Pat. Super.

2003}. Additionally, thegrounds for termination of parental rights under Section 25 U (a)(2 ), due

to parental incapacity that cannot be remedied, are not limited to affirmative misconduct, but

may also 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). In1n reAdoption of.ue»; Westmoreland County

Children's Bureau took custody of the child, citing the mother's inability t� care for her child

due to themother's.mental.handicap. 825. A..2d at 12<58. Following adjudication of the child.the

mother was ordered to apply for welfare programs, obtain housing, and receive counseling in

order to promote her independence and parenting skills. (Id at 1269). It was. reported that the

mother did not attempt to obtain welfare or housing and refused counseling. (Id.}. As a result, the

trial court terminated the mother's parental rights approximately two years after the child was ' .. · removed from. the. home. (Id atl270). The Superior Court found that the mother's inability to

develop parenting skills, along with.her refusal to fulfill her objectives.would leave the child.

withoutproper parental carej.thus, termination ofthe mother's parental rights was warranted

under Section 25ll(a)(2). (Id. at1273). Appfying ME.P. and the elements set forth under 25ll(a)(2) to the instantcase, it is clear \ ..-. that OHS mettheir burden of demonstrating thartermination was proper; The evidence

established that "incapacity" and "refusal" under 25l l(a)(2)existedgiven that Mother failed to

-demonstrate a concrete desire orability to remedy the problems that led to the Child'splacement.

Mother.failed to cooperate with the services provided by CUA, including, drug and alcohol

treatment and mentalhealth.counseling. (N.T. 5/24718 at 22-23)..Further, Mother threatened; spat -� .. '; . .

on, and was aggressive towards workers at CUA and at the.NET. (Id. at 26�27) ..As a result. the

workers at the NET did not permit Mother to continue her visitation at theiragency. (Id. at 27).

Moreover, the evidence established that "neglect" existed given that Mother's visitation was

suspended since November.2016 and no efforts were made by Mother to remedy the suspension,

(Id at26-28). This Court found thatMother'sfailure to fully comply with her objectives

throughout the life of the case has leftthe Child without essential parental care, and the cause of

such neglect, refusal and continued incapacity will not be remedied bY. Mother. Based on the

foregoing, this Court found that competent evidence existed to justify the-termination of

Mother's parental rights pursuant to Section 2511 (a)(2).

3� This Court Properly Termfoated Mother�s Pareit tal Rights Pursuant to Sections 25ll(a)(5) and(8) · · · ·

. As the-requirementsfor terminating.parental rights under. Sections 251 l{a)(5) and {8) are similar, this Court will address.them simultaneously. To terminatepursuant to 251 l(a)(S.), the

petitioner must prove th�t;

( 1) the child has been removed from parental care. for at. least six months; (2) the or conditions which led to removal placement ofthe child continue to exist; (3) the . .... -.... .. ..... parents cannot or will not remedy the conditions whichled to removal or placement ; -��·· ,.::· ;

·, > :' •

within a reasonable period of time; (4) the services reasonably available to the ,: . : ··� �.. . ;. �··.. ; ",

9 parent are unlikely to remedy the conditions which led to. removal or placement within a reasonable period of time; and'(Sjtermination ofparerrtal.rights.weuldbest serve the needs and welfare .of the child. In re B.C., 36 A.3d 601, 607 {Pa Super, 20i2)2. In order toterminate under 25ll(a)(8),

the petitioner' must prove that "(I) the child has been removed. from the care of the parent for at

least twelve months; (2) the conditions that led to the removal or placement of the child continue

to exist; and (3) termination of parental rights would best serve the needs and welfare of the

child.''Inre C.L.G:; 95.6 A.2d 999,1005 (Pa. Super. 20.08)3. Furthermore. unlike 25ll(a)(5),

termination under 251 l(a)(8) does not require an evaluation of a: parent' s. willlngness or ability to

remedy the conditions that Jed to placement. See, Inre.Adoption ofR,J.$:, 901 A.2d 502� 511 (Pa.

Super. 2006)(citations . omitted). Instead, 2511(a)(8)'''reqµires . . only. that the conditions continue

to exist, not an evaluation of parental willingness or ability to remedy thell}'.s,C:L..G.t 956A;2dat

1007 (citing In reS.H.,879 A;2d 802, 806) (Pa. Super. 2005)).

In the instam.case, this Court determined that DHS satisfied the requirements ofSections : c: •

251 l(a.)(5) and(8). The Child has been in care for approximately twenty-six months. (N'I',

05/24/U;tat29-30). The Child was initially removed fromMother's home amid concerns

regarding Mother's mental health instability and drug and alcohol history. (Id. at 18). Since that time, Mother has notprogressed in any of the treatment offered to her. (ft/. at 22'.".23) ..

Specifically, Mother still has drug and mental health issues. (Id. at 29). As a result, this Court

2 In In re B. c.,36 A.3d 601 (Pa:. Super. 2012), for exlilnplc, Children. aild Youth Services olitaincd custody Qfthe child atrer �eporrs w¢rc. received indi�ating thaqh� 111other and father could not !=MC fur the child. Id. at 608. In ajlinning the termination of the father's parental rights, the Superior. Court emphasized. the fiither.'s.failure to comply wiJh his objectives ':from Children and YouUi Services; including obbi.ining housmg- ·- .....-'"'---···. � ·--·:, and addressing his history as asex offender. �ough treatment. Id.. The court stressed that thefa.iheris ie.fusal to enter Into trcaiinent for tlie · · cr.imes he 'perpetiaied ledto the unsafe condition· stili bdng present. .Id.. F,urtherm1>.rc. the court d�emiined that the fntheiis refusel to participnte in his objcctiv¢s demonstrated that. the services prQvided to hiDfwoµld nof remedy the 9.epcnd�i:y./d; ill. 6.10: Lastly, tiie court ii:>und that . �inating the father's parental rights would best serve the needs tv1d welfare of the.child as it would provide the child Yiith stability. Id. ii16 l 0. 3 Ialli re ClG., 9S6 A.id 999. (Pa. Super. 2008), Cot example, the child was removed front the mother's care after ilte. child.tested positive for. cocaine lit birth. Id Also, tho mo.thcr. did not have !idcquatc housing 11nd could oot properly care for the child.id The largeSt obstacle to · reun:ificinion was the mother's continued drug use and inability to obtain stable.housing./d.lit IOOS-, The. tiiaJ court terminated the moth.c:r's parental rights pµrsuaot to 2S 11 {aX8) ilpproxfm.ately one year aftor the child·was temo:ved from lier c11te -, Id. at I 003. 'l'h� SuperiorCoiiJt affirmed the .trial court's ruling, stt�sing that waifing further for the motlier to comply would toll the child's wellbeing; Id at: 1007 .. Iri the interest cfcreating st!¥iility for lite child, the court f�d that te!!Uination of lhe mothcr-s parental rights would best serve the needs and welfare · · · · ·· · · · · · · · ·· ofihe child. Id atl008> I OM.

·-·-········--.. -·.. ·-····------- .. ·---------------------------------------·---·-· believes that Mother will not remedy the conditions which led 1o the placement of her Child -.

Also) Mother' s refusal to-participate Inher objectives demonstrates that the services provided to

her would not alleviate. the circumstances which necessitated the original placement of the Child.

Moreover.the evidence clearly established that termination would be.in the best interest and

welfare of the Child as he has a strong bond w:ith his maternal aunt who is the pre-adoptive

resource and religiously attends every scheduled visit with the Child. (Id. at24-25). Thus, this

Court properly terminated Mother's parental rights pursuant to Sections 25 U(a)(S.) and (8). B. This Court Properly Ruled that it Would be in the Child's Best Interest to Terminate the Parental Rights .of Mother Pursuant to Section. 2511(b)

'Having found that th¢. statutory.grounds for termination have been satisfied pursuant to

2511 (a), this Court further found that.termination of Mother's parental rights serves the best

interest of the Child pursuant to 2511 (b). 4 ·

Under Section 251.1 (b), the party seeking termination must prove by clear and convincing

.evidence that termination. is in the best interest of the child. In re Bowman, 647A2d 217, 218

(Pa Super. 1994). In determining the best interest of the child, courtsmust consider both the needs and welfare of the child.In re K.Z;S;, 946 A.2d 753, 760 (Pa. Super. 2008). Intangibles

such as Iove, comfort; security and: stability are also considered whenmaking a determination

Id fr:iting]n re C.P., 9.01.A.2d 516, 520 (P.11.. Super; 2006)); Furthermore, the parent-child

relationship is examined in order to determine what effectthe potential termination would have

on the child. See K Z.S., 946 A.2d at 76(). Typically, when examining th� nature of the parent-

child relationship, courts must consider whether there is a natural bond between the parent and

4See In reL.,M.) 923 A2d 505, 51 l(Pa. Super. 2007) ("Only if the court determines thatthe 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 :251 L(b)").

11.

. ....;•: . ...�. . ..... : .

child, and if termination of parental rights would sever "an existing, necessary 1 and beneficial

relationship." Jd. In cases where there is no evidence of a bond between a parent and child, it is.

reasonable to infer that no bond exists; (Id. at762·63.) . . . �: . In the instant matter, this Court. determined the Child would not suffer irreparable emotional harm if Mother's parental rights were terminated. There was compelling testimony

'offeredat the TPRhearing that the Child is not bonded. with Mother. (See N ;T.. S/24/18 at 43·44).

Mother failed to offer any evidence establishing the existence of a parent-child bond: The

testimony demonstrated thatthe Child's primary bond is,with.his maternal aunt (See Id, at 44).

Furthermore; this Court found Mother's significant gap in visitation with the Child insufficient to

foster a meaningful and. healthy pareatal connection. This Court believes that we are nowhere

closer to reunification now than we were when this case first came in hi March 2016.

Additiorutlly, in determining that termination. would best serve the needs .and welfare of the

.Child, this Court considered that.Mother has not been able to meet the Child's emotional)

physical, and developmental needs, or provide the Child with a healthy, safe environment for

twenty-six months priorto the TPR hearing. (Id. at 29·30). For the foregoing reasons, this Court

properly granted DHS's petition to involuntarily terminate the parental rights of Motherpursuant to Section 251 l(b);

: ..

12 I. CONCLUSlON'. . Accordingly, this Court respectfully requests that theinstant.appeal be denied.

BY THE COURT:

,)'----

J.

CERTIFICATE OF SERVICE

Ibereby c�rtify that a copy of the foregoing OP.INION was served oil the following on �1u.ue; ·-2&. �.2018.:

Counsel for Mother Emily Cherniack, Esquire ..} �· �·,.·. 1500 JFKBlvd. Ste. 1010 Philadelphia, PA .19102 ( } ServedinPerson ( ef Served by First Class Mail

Counsel for Father Tracey Chambers-Coleman 20 Vine Street Lansdale, PA 19446 ( ) Served in.Person ( / Served by First Class Mail

Office of the City $Qlicitor-Chlld Welfare Unit Rachel Hanigan Mchale, Esquire 1515 Arch Street, 16th Floor Philadelphia, PA 19102 ( ) Served in Person (·. J Served by First Class Mail

.............. ,.,---··--····-------·-----------------------·---..--.------ Child Advocate . ':: Mary Ann Galeota, Esquire ;: .. . 1551 Market StreetSte. 1200 Philadelphia,PA 19102 ( ) Served in Person ( vY Served by First Class Mail

Guardian ad Lkem Maureen Pie, Esqµire 8 StimmitStreet.Ste,200 Philadelphia, PA 1911.8 ( ). Served in Person. (� Servedby.FirstClass Mail

l fr v J.

.···. •·.

14 .• :·····.: ..