In the Interest of: Z.E.W.-C., a Minor

J-S89003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.E.W.-C., A IN THE SUPERIOR COURT OF

MINOR, PENNSYLVANIA

Appellee

APPEAL OF: L.Z.W., MOTHER

No. 1842 EDA 2016

Appeal from the Order Entered May 11, 2016

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-AP-0000737-2015, CP-51-DP-0001344-2012

IN THE INTEREST OF: D.A.-S.W., A IN THE SUPERIOR COURT OF

MINOR, PENNSYLVANIA

Appellee

APPEAL OF: L.Z.W., MOTHER

No. 1843 EDA 2016

Appeal from the Order Entered May 11, 2016

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-AP-0000738-2015, CP-51-DP-0001343-2012

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 21, 2016

____________________________________________

*

Former Justice specially assigned to the Superior Court.

J-S89003-16

L.W. (“Mother”) appeals from the order entered on May 11, 2016,

terminating her parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),

(5), (8), and (b) to her son, D.A.-S.W., born in November of 2008, and her

daughter, Z.E.W.-C., born in August of 2011 (collectively “Children”).1 We

affirm.

The trial court set forth the factual and procedural background of this

case as follows:

[C]hildren were born as follows: [Z.E.W.-C.], [i]n August

[of] 2011 and [D.A.-S.W. i]n November [of] 2008.

On July 12, 2012, [the Department of Human Services

“DHS”] received a General Protective Service (GPS) report

alleging that [Mother] sold her food stamps instead of buying

food for [Children]. The condition of the family home was

deplorable. The home was infested with mice and roaches.

Additionally, [D.A.-S.W.] and other siblings were truant from

school. [Father] also resided in the home and smoked

marijuana. The report was substantiated.

[Mother] did not cooperate with DHS from July 13, 2012 to

July 20, 2012.

On August 3, 2012, [Mother] failed to appear at a Motion

to Compel Hearing before the Honorable Jonathan Q. Irvine.

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1

The trial court also terminated the parental rights of Z.E.W.-C.’s father,

S.T.C. (“Father”) on May 11, 2016. Father filed a separate appeal, assigned

Superior Court Docket Number 1768 EDA 2016, relating to the termination

of his rights to Z.E.W.-C. Father’s parental rights are addressed in his

separate appeal. Regarding A.M., the father of D.A.-S.W., counsel for DHS

told the court “the Department has done multiple parent locator searches.

We don’t have a birth date for [A.M.]” N.T., 4/5/16, at 30. The record

establishes that A.M. has never been involved in the case and has never

performed parental duties for D.A.-S.W. Id. at 32. The instant matter

relates only to Mother’s parental rights to Children.

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Pursuant to a hearing, Judge Irvine granted the Motion to

Compel Cooperation.

On August 10, 2012, Judge Irvine ordered DHS to hire a

private investigator to assist with DHS’s investigation.

On August 24, 2012, the private investigator located the

family at a different address.

On October 31, 2012, DHS implemented In-Home

Protective Services (IHPS) in the home.

DHS and IHPS determined that the home was

inappropriate. The home was overcrowded and needed to be

cleaned. Furthermore, [Children] looked unkempt. Moreover,

DHS learned that [Children] were not up to date with their

medical, dental and vision or their immunizations.

DHS was denied access to the family home from December

27, 2012 thru January, 2013. The family also resided in the

family home.

On February 7, 2013, an adjudicatory hearing was held

before the Honorable Jonathan Q. Irvine. Judge Irvine

adjudicated [Children] dependent and committed them to the

care and custody of DHS. [Children] were placed in foster care.

The matter was listed on a regular basis before Judges of

the Philadelphia Court of Common Pleas-Family Court Division-

Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42

Pa.C.S.A. §6351, and evaluated for the purpose of determining

or reviewing the permanency plan of the children.

In subsequent hearings, the [domestic relations orders]

reflect the [c]ourt’s review and disposition as a result of

evidence presented, addressing, and primarily with, the goal of

finalizing the permanency plan.

On April 5, 2016 and May 11, 2016, a Termination of

Parental Rights hearing for [Mother] was held in this matter.

On May 11, 2016, the [c]ourt found by clear and

convincing evidence that [Mother’s] parental rights [to Children]

should be terminated pursuant to the Pennsylvania Juvenile Act.

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Furthermore, the [c]ourt held it was in the best interest of

[Children] that the goal be changed to adoption.

Trial Court Opinion, 6/28/16, at unnumbered 1–2. Mother filed a timely

notice of appeal; both Mother and the trial court complied with Pa.R.A.P.

1925.

Mother raises the following issues on appeal:

1. Did the Trial Court err in terminating [Mother’s] parental

rights under 23 Pa.C.S. Section 2511(a)(1), 2511(a)(2),

2511(a)(5), and 2511(a)(8)?

2. Did the Trial Court err in finding that termination of [M]other’s

parental rights best served [Children’s] developmental, physical

and emotional needs under 23 Pa.C.S. Section 2511(b)?

3. Did the Trial Court err in changing [Children’s] goal to

adoption?

Mother’s Brief at vi.

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.; In re

R.I.S., 614 Pa. 275, 36 A.3d 567, 572 (Pa. 2011) (plurality). 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, 838 A.2d 630, 634

(Pa. 2003). Instead, a decision may be reversed for an abuse of

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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., 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 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 (Pa. 1994).

In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting 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 parental

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

have explained that the “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)). Moreover, this Court may affirm the trial

court’s decision regarding the termination of parental rights with regard to

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any one subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc).

The trial court terminated Mother’s parental rights pursuant to 23

Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Order, 5/11/16. We will focus

on sections 2511(a)(2) and (b), which provide as follows:

§ 2511. Grounds for involuntary termination

(a) General rule.--The rights of a parent in regard to a child may

be terminated after a petition filed on any of the following

grounds:

***

(2) The repeated and continued incapacity, abuse,

neglect or refusal of the parent has caused the child to be

without essential parental care, control or subsistence

necessary for his physical or mental well-being and the

conditions and causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied by the parent.

***

(b) Other considerations.--The court in terminating the rights of

a parent shall give primary consideration to the developmental,

physical and emotional needs and welfare of the child. The

rights of a parent shall not be terminated solely on the basis of

environmental factors such as inadequate housing, furnishings,

income, clothing and medical care if found to be beyond the

control of the parent. With respect to any petition filed pursuant

to 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)(2) and (b). This Court has explained that the focus in

terminating parental rights under section 2511(a) is on the parent, but

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under section 2511(b), the focus is on the child. In re Adoption of C.L.G.,

956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).

To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect, or refusal;

(2) such incapacity, abuse, neglect, or refusal caused the child to be without

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

mental well-being; and (3) the causes of the incapacity, abuse, neglect, or

refusal cannot or will not be remedied. 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 limited to affirmative misconduct; to the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

duties. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). This Court has

stated that a parent is required to make diligent efforts toward the

reasonably prompt assumption of full parental responsibilities. Id. 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.

Mother asserts that she was compliant with her Family Service Plan

(“FSP”) objectives for over three months before DHS filed the petitions to

terminate her parental rights. Mother’s Brief at 7. She cites the FSP goals

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allegedly remedied and maintains that all of the conditions that led to

Children’s placements no longer exist. Id. at 8.

Our review of the record does not support Mother’s claims. The trial

court noted the following in explaining Mother’s noncompliance with and

inability to meet her FSP goals:

In the instant case, Dr. Erica Williams, an expert qualified

in the field of forensic and clinical psychology, completed a

[Parenting Capacity Evaluation (“PCE”) for [Mother]. Dr.

Williams concluded that [Mother] did not have the ability to

provide permanency nor a safe environment for [Children].

(N.T., 4-5-16, p. 67). Dr. Williams recommended that [Mother]

attend mental health treatment which included trauma focus

therapy (N.T., 4-5-16, p. 72). Furthermore, Dr. Williams

testified that it was imperative for [Mother] to address her

specific mental issues. [Mother’s] parenting capacity would be

nonexistent if she failed to address her mental health issues.

(N.T., 4-5-16, p. 67-68). [Mother] did not comply with the

recommendations of Dr. Williams. (N.T., 4-5-16, p. 78).

Furthermore, the current DHS social worker testified that

[Mother] did not contact her to inquire about the needs and

welfare of [Children]. She did not inquire about [Children’s]

schooling or therapy. (N.T., 4-5-16, p. 89). Moreover, [Mother]

did not comply with all of her FSP goals. The testimony

established that the original and current DHS social workers

explained to [Mother] that in order to reunify with [Children] she

must comply with her objectives. (N.T., 4-5-16, pgs. 39 and 78).

Trial Court Opinion, 6/28/16, at unnumbered 4.

We agree with the trial court that there is competent evidence in the

record supporting its findings. Dr. Erica Williams, the Director of Forensic

Services at Assessment and Treatment Alternatives, conducted a PCE of

Mother. She described the evaluation as one to determine “the capacity of

that parent to provide safety and permanency to the . . . children involved.”

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N.T., 4/5/16, at 59. Dr. Williams, who was qualified as an expert, stated

that Mother “declared that all of the information provided by DHS [was] lies,

that there weren’t any concerns.” Id. at 63. Dr. Williams explained that

Mother admitted that her oldest child2 was sexually abusing two of her

daughters, but she took no measures to protect the girls. Id. at 64. Dr.

Williams observed that Mother’s responses:

were as though she were a bystander to the events. So she was

able to describe things that occurred but she didn’t refer to

herself as having a role in the events. So it was as though she

had been watching them rather than the parent who should have

been affecting care during it.

Id. at 62.

Dr. Williams testified that Mother had symptoms of depression that

were consistent with a mood disorder that could be “part of a depressive

category or a larger issue.” N.T., 4/5/16, at 66. Dr. Williams opined that

Mother did not have the ability to provide permanency and safety to

Children. Id. at 67. The expert testified that Mother’s issues could not be

remedied in a short period because “you’re looking at the chronicity of the

depression, the abuse from her own history, the impact of her choices on

[Children] and her limit to [having] no insight in her role.” Id. at 68.

____________________________________________

2

Mother has at least five other children, three who are in her care and two

who are in other foster placements or kinship homes; they are not involved

in this appeal. N.T., 4/5/16, at 22, 27; N.T., 5/11/16, at 28.

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The record supports the conclusion that Mother failed to comply with

the FSP goal to obtain the requisite mental health intervention to enable her

to develop the capacity to parent Children. Thus, Mother has not resolved

the conditions necessitating Children’s placement and lacks the ability to

provide Children with the safety necessary for their well-being. We conclude

that the trial court did not abuse its discretion in finding that Mother’s

parental rights should be terminated under 23 Pa.C.S. § 2511(a)(2).

Adoption of S.P., 47 A.3d at 826–827.

Next, we review the termination of Mother’s parental rights pursuant

to 23 Pa.C.S. § 2511(b). Our Supreme Court has stated:

[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 “intangibles such as

love, comfort, security, and stability.” In re K.M., 53 A.3d 781,

791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.

1993)], this Court held that the determination of the child’s

“needs and welfare” requires consideration of the emotional

bonds between the parent and child. The “utmost attention”

should be paid to discerning the effect on the child of

permanently severing the parental bond. In re 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 caseworkers can offer evaluations as

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

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

citations omitted).

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

analysis:

[C]oncluding a child has a beneficial bond with a parent simply

because the child harbors affection for the parent is not only

dangerous, it is logically unsound. If a child’s feelings were the

dispositive factor in the bonding analysis, the analysis would be

reduced to an exercise in semantics as it is the rare child who,

after being subject to neglect and abuse, is able to sift through

the emotional wreckage and completely disavow a parent . . .

Nor are we of the opinion that the biological connection between

[the parent] and the children is sufficient in of itself, or when

considered in connection with a child’s feeling toward a parent,

to establish a de facto beneficial bond exists. The psychological

aspect of parenthood is more important in terms of the

development of the child and [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 753, 763-764 (Pa. Super.

2008) (affirming the involuntary termination of the mother’s parental rights,

despite the existence of some bond, where placement with the mother would

be contrary to the child’s best interests, and any bond with the mother

would be fairly attenuated when the child was separated from her, almost

constantly, for four years).

In fact, our Supreme Court has observed that the mere existence of a

bond or attachment of a child to a parent will not necessarily result in the

denial of a termination petition, and that “[e]ven the most abused of

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children will often harbor some positive emotion towards the abusive

parent.” T.S.M., 71 A.3d at 267 (quoting K.K.R.-S., 958 A.2d at 535). The

Supreme Court instructed, “[T]he continued attachment to the natural

parents, despite serious parental rejection through abuse and neglect, and

failure to correct parenting and behavior disorders which are harming the

children cannot be misconstrued as bonding.” T.S.M., 71 A.3d at 267

(citation omitted).

We have explained that a parent’s own feelings of love and affection

for a child, alone, do not prevent termination of parental rights. Z.P., 994

A.2d at 1121. Further, this Court has stated: “[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). It is well settled that “we will not toll the

well-being and permanency of [a child] indefinitely.” Adoption of C.L.G.,

956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)

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

parent] will summon the ability to handle the responsibilities of

parenting.”)).

Mother’s sole argument regarding 23 Pa.C.S. § 2511(b) is that the

DHS social worker testified that Mother was bonded with Children therefore

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“termination of Mother’s rights could not be in the best interest” of Children.

Mother’s Brief at 10 (citing N.T., 4/5/16, at 48). Our review of the notes of

testimony indicates that the DHS social worker did not testify that Mother

was bonded with Children, at that page or any other. Rather, DHS social

worker Tracy Woods testified that Children were safe and comfortable in the

foster mother’s home. N.T., 4/5/16, at 44.

Stacy Ann Barrett, the current case manager for Children, testified

that even though Mother did not visit Children from August 2015 until

December 2015, Children suffered no irreparable or significant harm. N.T.,

4/5/16, at 80. Children never asked about Mother. Id. at 81. Children

were only one and four years old when removed from Mother’s custody and

placed, together, in their current foster home. Id. at 83. The foster

mother, who provides the primary parental bond for Children, wishes to

adopt them. Id. Foster mother provides Children with love, safety,

stability, and support and meets Children’s educational and medical needs.

Id. at 83–84. During cross-examination by the Child Advocate, Ms. Barrett

stated that Z.E.W.-C. is “very attention seeking and she’s constantly close

with the foster parent during the visit.” Id. at 89–90. Likewise, D.A.-S.W.

receives specialized services, and the foster mother is “an active participant

in those services.” Id. at 88.

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In concluding that Children’s primary bond is with their foster mother

and that adoption is in Children’s best interests, the trial court stated as

follows:

In the instant matter, [Children] reside in the same pre-

adoptive home. [Children] share their primary parental bond

with the foster parent. (N.T., 4-5-1[6], p. 83). The foster

parent provides them with love, safety and support. She meets

their medical needs also. (N.T., 4-5-16, pgs. 83 and 84). The

foster parent is active in [D.A.-S.W.’s] specialized services. She

has enrolled [him] in the boy scouts. Furthermore, she has

enrolled [Children] in painting class. (N.T., 4-5-16, p. 88).

Moreover, when [Mother] did not visit [Children] for five months,

they did not ask for her. (N.T., 4-5-16, p. 80). Additionally,

[Children] would not suffer permanent /irreparable harm if the

parental rights of [Mother] were terminated. Lastly, it would be

in the best interest of [Children] if their goal[s] were changed to

adoption. (N.T., 4-5-16, p. 84).

In the instant case, DHS filed the petition to terminate the

parental rights of . . . [Mother] and change the goal to adoption.

“In those cases where reunification is not appropriate, adoption

is viewed as providing the greatest degree of permanence” In

re S.H., 71 A.3d 973, 978 (Pa. Super. 2013).

Trial Court Opinion, 6/28/16, at unnumbered 5–6. Accordingly, it was

proper for the trial court to conclude that no bond exists such that Children

would suffer harm if Mother’s parental rights were terminated. This Court

finds no abuse of discretion in the trial court’s termination of Mother’s

parental rights to Children pursuant to section 2511(b).

Because the trial court’s factual findings are supported by the record,

and its legal conclusions are not the result of an error of law or an abuse of

discretion, we affirm the trial court’s order involuntarily terminating Mother’s

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parental rights under section 23 Pa.C.S. § 2511(a)(2) and (b) and changing

the goal to adoption.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2016

____________________________________________

3

Mother does not make any additional argument as to why the goal for

Children should not have been changed to adoption beyond reasserting that

she met her FSP goals. Mother’s Brief at 11.

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