In The Interest of: Y.J.M., a Minor

• Court: Superior Court of Pennsylvania
• Decided: December 23, 2016
• Docket: 2270 EDA 2016
• Status: Unpublished

Opinion

J-S90016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Y.J.M., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: T.S., MOTHER

No. 2270 EDA 2016

Appeal from the Order Dated June 16, 2016 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000713-2015

IN THE INTEREST OF: T.L.M., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 2272 EDA 2016

Appeal from the Order Dated June 16, 2016 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000714-2015

BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 23, 2016

Appellant, T.S. (“Mother”), appeals from the orders involuntarily

terminating her parental rights to Y.J.M., born October 2007, and T.L.M.,

born March 2011 (collectively, “the Children”). Upon careful review, we

affirm. J-S90016-16

On July 12, 2013, the Department of Human Services (“DHS”)

received a substantiated General Protective Service report alleging that

Mother used and sold drugs and that the family home was known for drug

activity. N.T., 6/16/16, at 13, 15-16. The report also alleged that Mother

used inappropriate discipline on the children.

DHS visited the home and learned that Mother was diagnosed with

several mental health disorders but did not receive any treatment. Ex. DHS-

6 at 22; N.T., 6/16/16, at 13-17, 23. The family home was inappropriate,

with mold and broken floors and doors. DHS also observed a hole in the

ceiling from a leak originating from the bathroom located on the second floor

and no banister on the second floor. One of the children had sustained a

burn six months earlier when an unknown person tried to incinerate the

front door of the home.

On August 29, 2013, Mother took Y.J.M. to the emergency room,

where the child was diagnosed with scarlet fever. See Ex. DHS-6 at 23.

The next day, DHS again visited Mother’s home, when Mother disclosed that

T.L.M. had killed Mother’s cousin’s cat. DHS also noticed a rash on T.L.M.,

and Mother explained that he was allergic to spider bites.

On September 25, 2013, Community Umbrella Agency (“CUA”) began

providing in-home services to the family. N.T., 6/16/16, at 14-15, 32. CUA

imposed the following Single Case Plan objectives for Mother: (1) complete

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drug and alcohol treatment; (2) complete mental health treatment; (3)

obtain appropriate housing; and (4) maintain contact with the Children.

On December 17, 2013, DHS filed dependency petitions for the

Children. See Exs. DHS-3 at 3-4.1 On December 19, 2013, after a hearing,

the Children were adjudicated dependent, and a shelter care application was

filed.2 The Children were allegedly residing with a relative of Mother, and

the court ordered CUA to request an Order of Protective Custody (“OPC”)

when the Children were located. The Children were located later that same

day, and DHS obtained an OPC for them and placed them in foster care.

A shelter care hearing for the Children was held on December 20,

2013. See Ex. DHS-3 at 9-10; N.T., 6/16/16, 27-28. At the conclusion of

the hearing, the family court ordered that the Children be temporarily

committed to the care and custody of DHS and granted Mother weekly

supervised visits with the Children. The Children then were placed together

in a pre-adoptive home that met their daily developmental, emotional, and

medical needs and with foster parents who provided the Children with

safety, stability, and support. See Exs. DHS-3 at 9, DHS-6 at 29.

____________________________________________

1 Family Court of Philadelphia Juvenile Division Docket Nos. CP-51-DP- 0002478-2013 (for Y.J.M.) and CP-51-DP-0002479-2013 (for T.L.M.). 2 At the conclusion of the dependency hearing, a permanency hearing was scheduled for February 27, 2014; it was rescheduled for December 31, 2013. See Ex. DHS-3 at 4.

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At an initial permanency review hearing on December 31, 2013, the

Children’s status remained unchanged. See Ex. DHS-3 at 9, DHS-6 at 29.

One month later, on January 28, 2014, Mother tested positive for cannabis.

See id. At a permanency review hearing on January 30, 2014, the family

court granted Mother regular telephone contact with the Children before

their scheduled bedtime and continued the weekly supervised visits. See id.

On February 5, 2014, Mother began outpatient substance abuse treatment.

See id.

By August 2014, Mother was escorting the Children to medical “well

visits” and to dental appointments and interacting with the Children’s school.

See Ex. DHS-6 at 30. She was also maintaining weekly visitation. See id.

at 31. On December 4, 2014, the family court ordered that Mother receive

unsupervised community visits with the Children. See Exs. DHS-3 at 16,

DHS-6 at 31. At a permanency review hearing on February 25, 2015, the

court found that Mother had obtained appropriate housing and was receiving

therapeutic services for substance abuse and mental health through the

Community Organization for Mental Health and Retardation (“COMHAR”).

See Exs. DHS-3 at 17; DHS-6 at 32. After the hearing, an order was

entered that the Children would be reunified with Mother, if Mother passed a

drug test, submitted a copy of her lease to CUA, and allowed CUA to conduct

an assessment of her home. See Exs. DHS-3 at 16, DHS-6 at 32.

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On March 6, 2015, CUA filed a report that it had assessed Mother’s

home and discovered that Mother needed “to make final home repairs to be

made to bedroom ceiling including all previous repairs floor, walls, and

railing.” Ex. DHS-6 at 32.3 On April 7, 2015, Mother failed to attend a

scheduled drug and alcohol assessment appointment. See id. When a CUA

case worker spoke with Mother in June 2015, Mother said that she did not

feel safe, because she believed that she was being stalked and terrorized.

N.T., 6/16/16, at 47. Mother asked to end the visits with the Children until

she felt secure. Id. Mother did not give CUA a date to resume visits. Id.

Between late June 2015 and October 2015, Mother had no contact with the

Children. Id. at 47-48.

Mother was convicted of selling drugs and incarcerated from August

25, 2015, until March 11, 2016. N.T., 6/16/16, at 17, 57. See also Family

Ct. Op., 8/18/16, “Discussion.”4 During this period of incarceration, she had

no contact with the Children.

On October 2, 2015, DHS filed a petition for involuntary termination of

parental rights as to the Children. Ex. DHS-6.

3 The report itself is not in the certified record. This summary of CUA’s assessment appears in the petition for involuntary termination of parental rights, Ex. DHS-6. 4 The opinion is not paginated.

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Since at least December 2015, Mother has not asked DHS about the

Children’s needs or their progress in school, and she has not inquired about

resuming her attendance at their medical and dental appointments. N.T.,

6/16/16, at 23-24. Furthermore, since at least December 2015, she has

refused to agree to random drug screens. Id. at 16.

Mother did attend two visits with the Children in April 2016. N.T.,

6/16/16, at 19. Two other visits scheduled for that month did not take place

because Mother failed to confirm them 24 hours in advance, as required by

CUA. Id. at 19-20. In May 2016, Mother confirmed one visit, but she did

not attend it. Id. at 20. In June 2016, Mother attempted to confirm visits

two weeks (rather than 24 hours) in advance, and the visits therefore did

not go forward. Id. When Mother did visit, the Children referred to her as

“Mommy” and asked when they could return home. Id. at 63. But they did

not otherwise ask for Mother. Id. at 22-23, 48.

On June 16, 2016, the family court held a hearing on DHS’ petition to

terminate Mother’s parental rights. During the hearing, it heard testimony

from the CUA case manager, Melissa Urrutia, N.T., 6/16/16, at 11-45; the

case supervisor, Melonie Handberry, id. at 46-50; and from Mother, id. at

52-70.

Ms. Urrutia was assigned to the Children’s case in December 2015.

N.T., 6/16/16, at 12. She testified that Mother is not any closer to

reunification with the Children “now than she was two and a half years ago,”

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despite regular meetings between CUA and Mother to discuss the Single

Case Plan’s objectives. Id. at 16, 24. Ms. Urrutia did not consider Mother’s

home to be appropriate for the Children, describing it as “unlivable.” Id. at

13, 23. In Ms. Urrutia’s opinion, the Children shared their parent-child bond

with their current foster parents, calling them “Mommy” and “Poppy,” and it

is “in the Children’s best interests to change the goal to adoption.” Id. at

27-28.

Ms. Handberry, who had seen the Children in their foster home and at

school, testified that termination of the Mother's rights would not irreparably

harm the children. N.T., 6/16/16, at 49. She agreed with Ms. Urrutia that

the Children’s primary parent-child bond is with their pre-adoptive foster

parents. Id.

Mother testified that she “loves [her] bab[ies]” and would “do anything

for [them].” N.T., 6/16/16, at 63. In her opinion, her visits with the

Children go well. Id. at 64. She also testified that she attended an eight-

week parenting class in 2013 and provided her social worker with her

certificate of completion. Id. at 54-55.

The family court found Ms. Urruita’s and Ms. Handberry’s testimony to

be credible. Family Ct. Op., 8/18/16, “Discussion.” The court did not state

any credibility determinations about Mother’s testimony on the record.

At the conclusion of the hearing, the family court terminated Mother’s

parental rights as to the Children and held that it was in the best interests of

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the Children that their goal be changed to adoption. N.T., 6/16/16, at 81.

Mother filed timely appeals for Y.J.M. and T.L.M. separately, which this Court

consolidated sua sponte. On appeal, Mother presents two issues:

A. Whether the trial court committed reversible error when it involuntarily terminated [M]other’s parental rights where such determination was not supported by clear and convincing evidence under the Adoption Act 23 Pa. C.S.A. §2511 (a)(1), (a)(2), (a)(5), and (a)(8) as [M]other made progress towards working and meeting her [Single Case Plan] goals, namely staying drug free, working towards obtaining housing, working on parenting skills, and other goals, during the child's placement?

B. Whether the trial court committed reversible error when it involuntarily terminated [M]other’s parental rights without giving primary consideration to the effect that the termination would have on the developmental physical and emotional needs of the child as required by the Adoption Act 23 Pa. C.S.A. §2511(b)?

Mother’s Brief at 4.

We consider Mother’s issues in light of our well-settled standard of

review.

The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.

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

omitted).

Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. § 2511, which requires a bifurcated analysis.

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) (citations omitted). The

burden is on the petitioner to prove by clear and convincing evidence that

the asserted statutory grounds for seeking the termination of parental rights

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

The family court found that there was sufficient evidence to terminate

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

(b). We will affirm if we agree with the trial court’s decision as to any one

subsection of 23 Pa.C.S. § 2511(a) and its decision as to Section 2511(b).

In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal

denied, 863 A.2d 1141 (Pa. 2004); see In re N.A.M., 33 A.3d 95, 100 (Pa.

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Super. 2011). Here, we affirm the trial court’s decision to terminate

Mother's parental rights under subsections 2511(a)(1) and (b):

(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. . . .

(b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

23 Pa.C.S. § 2511(a)(1), (b).

Mother contends:

[W]ith regard to 23 Pa.C.S. §2511 (a)(1), [she] has not for a period of at least six months preceding the filing of the petition evidenced a settled purpose of relinquishing her parental claim or failed to perform parental duties. . . . [S]he showed a continuing interest in [the Children] by her efforts of trying to be compliant with her objectives to reunify with her children namely obtaining housing, attending drug and alcohol treatment and mental health treatment.

Mother’s Brief at 7. Contrary to Mother’s argument, we conclude that the

family court’s findings of fact are supported by the record. The family court

did not commit an error of law or abuse its discretion in holding that DHS, as

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the party seeking termination, proved by clear and convincing evidence that

Mother’s conduct satisfies the statutory grounds for termination delineated in

Section 2511(a)(1). See L.M., 923 A.2d at 511.

The petition for involuntary termination of parental rights as to both of

the Children was filed on October 2, 2015. Thus, the period “six months

immediately preceding the filing of the petition[s]” began on April 2, 2015.

Although Mother was compliant with her objectives for reunification

between February 5, 2014, when she began outpatient substance abuse

treatment, and February 25, 2015, when the court found that “reunification

with Mother is imminent,” her condition and her relationship with the

Children deteriorated thereafter. Exs. DHS-3 at 16, DHS-6 at 29.

The court’s February 25, 2015 order contemplating reunification

between Mother and the children was subject to an assessment by CUA of

Mother’s home. However, as of March 6, 2015, CUA reported that Mother’s

home was in need of repairs to the bedroom ceiling, floor, walls, and railing,

and a social worker would later describe the house as “unlivable.” Ex. DHS-

6 at 32; N.T., 6/16/16, at 23. There thus was evidence that at least from

March 2015 forward, Mother failed to maintain a residence in a condition

that would enable her to perform her parental duties.

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Mother failed to attend a scheduled drug and alcohol assessment

appointment on April 7, 2015. See Ex. DHS-6 at 32.5 While this proceeding

was pending, Mother was convicted of selling drugs, and from August 25,

2015, until March 11, 2016, she was incarcerated. N.T., 6/16/16, at 15, 17,

57. Since at least December 2015, she has refused to agree to random drug

screens. Id. at 16.

Subsequent to her release from incarceration, Mother attended only

two of the visits offered to her by CUA and did not once contact CUA about

the Children’s needs. N.T., 6/16/16, at 19-20. Meanwhile, as of the date of

the petition, the Children had been in placement care for almost two years;

their pre-adoptive home has been providing their essential parental care and

meeting their everyday needs. Id. at 27-28.

Thus, the trial court appropriately found clear and convincing evidence

that Mother’s conduct satisfies the statutory grounds for termination. See

23 Pa.C.S. § 2511(a)(1); L.M., 923 A.2d at 511. Since at least six months

prior to the filing of the petition, Mother either refused or failed “to perform

parental duties.” Consequently, the first issue raised by Mother on appeal is

without merit.

5 There is no indication in the record that Mother continued or resumed her drug and alcohol treatment subsequent to this missed appointment. See N.T., 6/16/16, at 15-16.

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With respect to Section 2511(b), this Court has explained that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into [the] needs and welfare of the child.” In re C.M.S., 884

A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted), appeal denied, 897

A.2d 1183 (Pa. 2006). The trial court 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.” Id. (citation omitted). However, “[i]n

cases where there is no evidence of any bond between the parent and child,

it is reasonable to infer that no bond exists. The extent of any bond

analysis, therefore, necessarily depends on the circumstances of the

particular case.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008)

(citation omitted).

On appeal, Mother argues that the evidence does not support

termination under Section 2511(b). She states:

The trial Court erred in granting the DHS petition to involuntarily terminate the parental rights of [M]other because DHS failed to provide the Court with clear, competent, and convincing evidence that termination was in the best interest of the child, pursuant to 23 Pa.C.S.A. §2511(b). This means that the trial court must look at the parent-child relationship and examine how the effect of terminating that relationship will impact the child. . . . Mother's bond with her child demands that proper consideration be given by the trial court, and a bond or lack thereof was never proven by clear and convincing evidence. Mother testified to the extent of her bond with her children. She testified that she loves them and would do anything for them.

Mother’s Brief at 6-7, 10. We are unpersuaded by Mother’s argument.

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“Section 2511(b) does not explicitly require a bonding analysis and the

term ‘bond’ is not defined in the Adoption Act.” In re K.K.R.-S., 958 A.2d

529, 533 (Pa. Super. 2008) (citation omitted). Moreover,

courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents. . . . [T]ermination may be necessary for the child’s needs and welfare in cases where the child’s parental bond is impeding the search and placement with a permanent adoptive home.

T.S.M., 71 A.3d at 268-69.6

In this case, there is some evidence of an emotional bond between

Mother and the Children. Mother did testify that she “loves [her] bab[ies]”

and would “do anything for [them].” N.T., 6/16/16, at 63. She testified

that during her infrequent visits with the Children, they called her “Mommy”

and asked her when they would be permitted “to come home.” Id.

Nevertheless, the existence of some bond between a child and a

biological parent does not necessarily preclude termination of parental

rights. K.Z.S., 946 A.2d at 764. The question is whether an existing bond

between the Children and Mother is “worth saving or whether it could be

sacrificed without irreparable harm to [the Children].” Id.

6 In T.S.M., we explained that “termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home,” but that “the Adoption Act specifically provides that a pending adoption is not a prerequisite to termination of parental rights involving agencies,” as is the case here. T.S.M., 71 A.3d at 268-69 (quoting 23 Pa.C.S. § 2512(b)).

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Contrary to Mother’s argument, there was clear and convincing

evidence for the trial court reasonably to find that the existing parental bond

is weak. See K.Z.S., 946 A.2d at 762-63. The Children have resided in the

same pre-adoptive foster home since December 2013 and share their

primary parental bond with their foster parents. N.T., 6/16/16, at 27-28,

49. The Children refer to their foster parents as “Mommy” and “Poppy,” and

the foster parents meet all of the Children’s developmental needs. Id. at

27-28. The Children did not ask for Mother when she was not with them.

Id. at 22-23, 48. The record substantiated the family court’s determination

that the Children would not suffer irreparable harm if Mother’s parental

rights were terminated and that it was in the best interests of the Children to

change their goal to adoption. Id. at 28, 49.

As such, we discern no abuse of discretion by the family court in

concluding that the involuntary termination of Mother’s parental rights will

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serve the developmental, physical, and emotional needs and welfare of the

Children pursuant to Section 2511(b). Accordingly, we affirm the family

court’s orders.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/2016

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