J

- S10016

- 18

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.D.W., JR., A MINOR

APPEAL OF: N.A.O., MOTHER :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2946 EDA 2017
Appeal from the Order Entered August 8, 2017 In the Court of Common Pleas of Philadelphia County Family Court at

No(s): CP

- 51

- AP

- 0001185

- 2016

IN THE INTEREST OF: Y.N.S.O.

- P., A MINOR

APPEAL OF: N.A.O., MOTHER :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2948 EDA 2017
Appeal from the Order Entered August 8, 2017 In the Court of Common Pleas of Philadelphia County Family Court at

No(s): CP

- 51

- AP

- 0001186

- 2016

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

MEMORANDUM BY OLSON, J. : FILED APRIL 24, 2018

N.A.O. (“Mother”) appeals the decree s entered August 8, 2017 that

granted the petitions filed by the Philadelphia Department of Human Services

(“DHS” or the “Agency”) seeking to involuntarily terminate her parental rights

to her children, Y.N.S.O.

- P. ( a female born in October 20 05 ) and T.D.W. , Jr.,

( a male born in March 20 11 ) (collectively the “ Children ” ) pursuant to the

Adoption Act, 23 Pa.C.S. § 2511(a)(1)
, (2)
, (5)
, (8)
, and ( b) , and to changeJ

- S10016

- 18

- 2

-

the Children ’ s permanency goal to adoption pursuant to 42 Pa.C.S. § 6351. 1

We affirm.
In its opinion, the trial court set forth the following procedural history

and factual background regarding this appeal.

On September 5, 2014, [DHS] received a General Protective Services ( “ GPS ” ) report which alleged that the Children were fearful of T.D.W. , Jr. ’ s father [, T.W.,] ( “ Father ” ) and that Father was physically abusive towards the Mother ( “ Mother ” ) and Children. (Statement of Facts Y.N.S.O.

- P. Paragraph A). On or around September 9, 2014
, DHS visited the family ’ s home. During this visit, Y.N.S.O.

- P. told DHS that Father was abusive towards Mother. (Statement of Facts Y.N.S.O.

- P. Paragraph 13).

On November 6
, 2014, DHS held a Family Service Plan ( “ FSP ” ) meeting. The goal identified for the Children was to remain in the home. The objectives identifi ed for Mother were (1) to participate in individual, marital and family counseling; (2) [to] not use physical violence or threats to resolve family conflicts; (3) to participate in a mental health evaluation; (4) to comply with all treatment recommendations including therapy and/or medication as prescribed and (5) to sign authorizations to allow the Children and Youth Division ( “ CYD ” ) to obtain copies of evaluations and progress reports. (Statement of Facts Y.N.S.O.

- P. Paragraph I).

On April 1, 2015, DHS received a GPS report alleging that during a family outing on March 28, 2015, Mother hit Y.N.S.O

- P. (Statement of Facts Y.N.S.O.

- P. Paragraph Q). On April 7, 2015, D HS sought to interview Y.N.S.O.

- P [.] to discuss the alleged incident. There after, DHS received verbal threats from Mother

_________________ __________ ______ ____ _______

1 On August 8, 2017, the trial court also terminated the parental rights of T.W., the putative father of T.D.W., Jr., and provided that the goal was changed to adoption. In a separate decree entered on that same date, the trial court terminated the parental rights of W.S.J.P., the putative father of Y.N.S.O.

- P. , and provided that the goal was changed to adoption. Neither T.W. nor W.S.J.P., nor any other putative father, is a party to the present appeal, nor has any such putative fath er filed a separate appeal.J

- S10016

- 18

- 3

-

and Father about DHS [’] involvement. (Statement of Facts Y.N.S.O.

- P. Paragraph S).

On April 13, 2015, an emergency motion was submitted by DHS resulting in DHS obtaining an Order for Protective Custody for t he Children. (Statement of Facts Y.N.S.O.

- P. Paragraph X.) Thereafter, on April 13, 2015, DHS took protective custody of Y.N.S.O

. - P. at her school with police assistance. (Statement of Facts Y.N.S.O.

- P. Paragraph X). When Mother arrived at the school t o learn that Y.N. S.O

. - P. was being taken into protective custody by DHS, Mother refused to tell DHS the whereabouts of [the] [c] hild [’s] [s] ibling T.D.W [

. , Jr. ] and became combative with DHS and the police. She eventually bit a police officer. (Statement of Facts Y.N.S.O.

- P. Paragraph Y).

On April 13, 2015, Father provided false information to school about the whereabouts of T [.] D [.] W. , Jr. Thereafter, DHS learned that T.D.W. , Jr. was at the family home with Father. Father refused to allow D HS and the police access to the family home. DHS obtain e d a break down order and removed T.D.W. , Jr. from the home. (Statement of Facts Y.N.S.O.

- P. Paragraph Z). Thereafter
, o n April 14, 2015, Mother was arrested and charged with Aggravated Assault, Terroristic T hreats, Recklessly Endangering Another Person and R e sisting Arrest for biting the police officer on April 13, 2015. (Statement of Facts Y.N.S.O.

- P. Paragraph BB).

On June 23, 2015, Mother and Father appeared before the Honorable Judge Jonathan Irvine for an adjudicatory hearing after which the Children were adjudicated dependent. (Statement of Facts Y.N.S.O.

- P. Paragraph GG) [.] Thereafter, on August 3, 2015, the Community Umbrella Agency ( “ CUA ” ) revised the Single Case Plan ( “ SCP ” ). The objectives iden tified for Mother were (1) to continue attending individual therapy sessions; (2) to address ang e r management; (3) to resolve issues of domestic violence; (4) to confirm and attend weekly visits with the Children; (5) to participate in a Family Group Decis ion Making ( “ FGDM ” ); and (6) to participate in a Parenting Capacity Evaluation ( “ PCE ” ). (Statement of Facts T.D.W. , Jr. Paragraph EE).

On February 9, 2016, Dr. Erica Williams, Psy.D. [,] and Samantha Peterson, M.A. conducted a PCE with Mother that recommended: (1) Mother attend weekly therapy with an individual trained in providing trauma focused [counseling] ; (2) Mother develop aJ

- S10016

- 18

- 4

-

financial plan to provide for he r self and the Children to include the provision of housing separate from the [f] ather; (3) Child, T.D.W., Jr. to enroll in individual therapy; (4) and that visitation between the Mother and Children be supervised. (Statement of Facts T.D.W. , Jr. Paragraph LL).

In May 2016, CUA learned that Mother uploade d a GoFundMe account asking for money. Mother stated on social media that she was in an abusive relationship. (Statement of Facts T.D.W. , Jr. Paragraph QQ). On September 9, 2016, CUA revised SCP for Mother. The objectives identified for Mother were (1) to continue attending individual therapy sessions; (2) to engage in family therapy upon [sic] ; (3) to follow all recommendations of the

. . . [ PCE ] ; (4) to continue to participate in the domestic violence program known as Women in Transition; (5) to atten d weekly individual and group trauma therapy; (6) to have no contact with the Children until further action of the [c] ourt; (7) to attend the Women ’ s Empowerment Program and (8) to attend Anger Management Counseling. On August 18, 2016, following a
perman ency review hearing [ the trial c] ourt issued an order stipulating that Mother was to not visit the Children based on her ongoing anger issues and abusive behavior t owards [C]h ildren, DHS, CUA Workers and foster parents.

On or about December 5, 2016, DHS filed the underlying [p] etition to [t] erminate the [p] arental [r] ights of Mother and Father.

Trial Court Opinion, 11/17/17, at 1

- 5.

On August 8, 2017, the trial court held a hearing on the termination/goa l

change petitio ns. Mother was present at the hearing
, and was represented by

counsel , Attorney James Demarco

. Additionally, Attorney Michael Graves was

present as the Child Advocate for the Children, and Attorney Lee Kuhlmann

was present as the guardian ad litem for th e Children

. Father’s counsel,

Ashley Sullivan, was present, as well.

O n August 8, 2017, th e trial c ourt entered the decrees terminat ing

Mother ’ s parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(1)
,J

- S10016

- 18

- 5

-

(2)
, ( 5)
, (8)
, and (b) , and changing their permanency goal to adoption

pursuant to 42 Pa.C.S. § 6351

. 2 Also on August 8, 2017, Mother , acting pro

se , timely f iled her n otice s of a ppeal , along with concise statements of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i)

. 3 On September

20, 2017, Moth er’s counsel filed supplemental concise statements on her

behalf. On October 3, 2017, this Court, acting sua sponte , consolidated the

appeals. 4

In her brief on appeal, Mother raises one issue:

[w]hether the trial court abused it s discretion and erred as a matter of law in [ ruling that the] termination of parental rights [w as ] warranted under 23 Pa.C.S. § § 2511(a)(1), 23 Pa.C.S. § 2511(a)(2), 23 Pa.C.S. § 2511(a)(5), 23 Pa.C.S. § 2511(a)(8) and 23 Pa.C.S. § 2511(b) in that the ju dge’s decision was against the weight of the evidence[?]

Mother’s Brief, at 7. 5

_________________ __________ ______ ____ _______

2 See Trial Court Opinion, 11/17/17, at 1.

3 See Commonwealth v. Ellis
, 626 A.2d 1137, 1139, 1141 ( Pa. 1993) ( stating that there is no constitutional right to hybrid representation either at trial or on appeal)

.

4 On O ctober 16, 2017, T.W.’s trial counsel, Attorney Ashley Sullivan, filed a motion to withdraw as counsel. This Court, acting per curiam , granted the motion on December 8, 2017.

5 Mother waived any challenge to the goal change to adoption by failing to rai se that issue in her concise statement and brief. See Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his or her concise statement of errors complai ned of on appeal and the s tatement of
q uestions i nvolved in his or her brief on appeal).J

- S10016

- 18

- 6

-

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

w hen considering a trial court’s determination of a petition for termination of parental rights. As in dependency cases, [the] standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T. , 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appe llate courts review to determine if the trial court made an error of law or abused its discretion. Id. ; R.I.S. , 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewin g court might have reached a different conclusion. Id. ; see also Samuel Bassett v. Kia Motors America, Inc. , 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely , 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 [] discussed in R.J.T. , there are clear reasons for applying an abuse of discretion standard of review in these cases. [Our Supreme Court] observed that, u nlike 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 chi ld and parents. R.J.T. , 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 [appellate courts] 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 discretio n. In re Adoption of Atencio , 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P. , 47 A.3d 817, 826

- 827 ( Pa. 2012).

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

evidence that the asserted grounds for seeking the termination of parentalJ

- S10016

- 18

- 7

-

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

Moreover, we have explained, “[t]he standar d 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 ba nc ). We will

consider section 2511(a) and ( b ) together, as did the trial court. Section 2511

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 termina ted 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 physic al 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 considerat ion 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 foun d to be beyond the control of theJ

- S10016

- 18

- 8

- 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.

T o 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 incapaci ty, abuse, neglect or refusal; (2) such

incapacity, abuse, neglect or refusal caused the child to be without essential

parental care, control or subsistence necessary for his physical or mental

well

- being; and (3) the causes of the incapacity, abuse, negle ct or refusal

cannot or will not be remedied. See In re Adoption of M.E.P. , 825 A.2d

1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights

under section 2511(a)(2), due to parental incapacity that cannot be remedied,

are not limite d 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).

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,J

- S10016

- 18

- 9

-

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 I n re E.M. , [620 A.2d 481, 485 (Pa. 1993)], [our Supreme 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 t he effect on the child of permanently severing the parental bond. In re K.M. , 53 A.3d at 791.

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

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

expert testimony. Social workers and caseworker s can offer evaluations as

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:

concluding 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 f eelings 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 disa vow 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 psychologicalJ

- S10016

- 18

- 10

-

aspect of parenthood is more important in terms of the development of the child and [his or her] 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) (internal citations and

quotation marks omitted). 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

placemen t 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 par enting 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).

With regard to the argument that the trial court improperly terminated

the pare ntal right s of Mother because the weight of the evidence did not

support a finding that the requirements of section 2511(a) and (b) were met,

the trial court stated the following:

The Children were adjudicated dependent on June 23, 2015. The record demonstrates an ongoing unwillingness of Mother to provide care or control for the Children or to perform any parental duties. Her failure to remedy the conditions that brought the Children into care were obvious to [the trial c ] ourt. Throughout the enti re case history Mother was abusive to [ C ] hildren, DHS workers, C U A personnel and foster parents.

Furthermore, Mother interfered with the efforts of DHS, CUA and [ the trial c] ourt to facilitate the reunification of Mother and [ C ] hildren. This was demonstr ated by the fact that recent improvement as to the Children ’ s behavior and health was theJ

- S10016

- 18

- 11

-

direct result of proper foster care and DHS involvement, which had nothing to do with Mother ’ s parenting efforts. On the contrary, Mother sought to dismantle the ver y foster parent and DHS involvement which so benefitted [ C ] hildren by her own abusive and erratic behavior. The documents and testimony discussed below provided [ the trial c] ourt evidence that termination of the parental rights of the Mother would be in t he best interest of [] Children. Consequently, the [trial c] ourt found clear and convincing evidence to terminate the parental rights of [] Mother pursuant to 23 Pa.C.S.A. §§ 2511(a)(1),(2) [,] (5) and (8) [,] and 23 Pa.C.S.A. § 2511(b).

Throughout the involvement of the DHS and CUA, the court held regularly scheduled Permanency Review hearings to monitor the family ’ s compliance with all court orders and the Single Case Plan ( “ SCP ” ). These SCP meetings were held to assist the family with obtaining any a nd all appropriate services as an aid to facilitate reunification. On September 9, 2016
, CUA revised SCP for Mother. The objectives identified for Mother were (1) to continue attending individual therapy sessions; (2) to follow all recommendations of the [PCE] ; (3) to follow through with family therapy and to comply with all recommendations; (4) to ensure Mother communicated verbally with CUA; (5) to continue to participate in the domestic violence program known as Women in Transition; (6) to attend weekl y individual and group trauma therapy; (7) to have no contact with the Children until further action of the [c] ourt: (8) to attend the Women ’ s Empowerment program and (9) to attend Anger Management Counseling.

The CUA Representative testified that after t he suspension of visitation between the Mother and Children there was a marked improvement with the behavior of the Children. (N.T. , 8/8/17, at 38

- 40). The CUA Representative also testified that Mother violated [c] ourt orders by communicating with hospit al staff while V.N.S.O. [

- ] P. was hospitalized and visiting the Children while they were in care. (N.T. , 8/8/17, at 40

- 4 1 ). Although Mother had completed anger management courses, the CUA Representative testified that Mother had continued to exhibit errat ic and aggressive behavior. Specifically, Mother consistently sought to intimidate CUA workers. On one occasion, Mother brought other women to a private meeting with CUA workers solely to intimidate CUA personnel. (N.T., 8/8/17, at 48

- 52). Mother also interfered with the Children ’ s foster care placement resulting in multiple reassignments. As result of Mother making unfounded allegationsJ

- S10016

- 18

- 12

-

against foster parents, T [.] D [.] W [. , Jr. ] had been reassigned to ten (10) separate placements. (N.T. , 8/8/17, at 60

- 64). The CUA representative also testified that Y

. N.O.S. [

- ] P [.] was bonded to her foster parent. (N.T., 8/8/17, at 55

- 56). The CUA Representative testified [that] T

. D.W. , Jr. was happy with [ h is] foster parents. (N.T. , 8/8/17, at 58

- 59). The CUA Repr esentative testified that it would be in the best interest of the Children if [M] other ’ s parental rights were terminated. (N.T., 8/8/17, at 60). At the hearing, Dr. Williams testified that she conducted a PCE evaluation of Mother in February 2016 where s he opined that Mother failed to address underlying domestic violence in the home and was unable to control her own aggression. (N.T., 8/8/17, at 105

- 107)

. Dr. Williams also testified that Mother ’ s attempts to sabotage the Children ’ s placement indicated that she lacked parental capacity or the ability to provide safety for the Children. (N.T., 8/8/17, at 111

- 114).

Although Mother alleges that her attorney failed to provide adequate assistance of counsel [,] the record indicates that he was not passive du ring the course of the hearing [.] Mother ’ s counsel engaged in an aggressive cross [

- ] examination of the CUA Representative and Dr. Williams. The testimony of the CUA Representative and Dr. Williams was deemed to be credible and accorded great weight. Bas ed upon their testimony elicited at the Termination Hearing as well as the documents in evidence, th [e trial c]ourt fo und clear and convincing evidence to terminate parental rights of Mother pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) [,] (2) [,] (5) [,] and (8) [ ,] finding she had failed to remedy the conditions that brought the Children into care based
upon her [continuing] unwillingness to cooperate with social services and mental health treatment. The [c] ourt also found that termination of [] Mother ’ s parental rights would be in the best interest of the Children pursuant to 23 Pa.C.S.A. § 2511(b).

Trial Court Opin i on, 11/17/17, at 6

- 11

.
After a careful review of the record, this Court f inds the trial court’s

decision to terminate the parental rights of Mother under section 2511(a)(2)

and (b) is supported by competent, clear and convincing evidence in the

record. In re Adoption of S.P. , 47 A.3d at 826

- 827. Thus, w e find no abuseJ

- S10016

- 18

- 13

-

of discretion in the trial court’s termination of M other’s parental rights to the

C hildren.

D e c r ees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/24/18