In the Interest of: M.K.H.-C., a Minor

J-S27016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.K.H.-C., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: C.C., MOTHER :

:

:

:

: No. 3740 EDA 2017

Appeal from the Decree October 17, 2017

In the Court of Common Pleas of Philadelphia County Family Court at

No(s): 51-FN-001239-2015,

CP-51-AP-0000581-2017, CP-51-DP-0001454-2015

*****

IN THE INTEREST OF: M.V.C., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: C.C., MOTHER :

:

:

:

: No. 3747 EDA 2017

Appeal from the Decree October 17, 2017

In the Court of Common Pleas of Philadelphia County Family Court at

No(s): 51-FN-001239-2015,

CP-51-AP-0000583-2017, CP-51-DP-0001455-2015

*****

IN THE INTEREST OF: C.N.H.-C., A IN THE SUPERIOR COURT OF

MINOR PENNSYLVANIA

APPEAL OF: C.C., MOTHER

No. 3751 EDA 2017

J-S27016-18

Appeal from the Decree October 17, 2017

In the Court of Common Pleas of Philadelphia County Family Court at

No(s): 51-FN-001239-2015,

CP-51-AP-0000582-2017, CP-51-DP-0001456-2015

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED JUNE 04, 2018

C.C. (Mother) appeals from the trial court’s decrees1 involuntarily

terminating her parental rights to her three minor children, M.K.M.-C. (born

10/10), M.V.C. (born 1/2008), and C.N.H.-C. (born 10/11) (collectively,

Children), and changing the goal to adoption. Because of the lack of evidence

regarding what, if any, bond Mother has with Children and the effect that

severing such a bond would have on Children, we are constrained to reverse.2

Children first became involved with the Department of Human Services

(DHS) when it received a report alleging that Mother had delivered a baby boy

(baby) in May 2015 and placed the newborn in a duffel bag. Family members

discovered the newborn in Mother’s home one day after the birth;3 police were

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1On December 13, 2017, the trial court sua sponte consolidated these appeals

as they involve related parties and issues. See Pa.R.A.P. 513.

2Biological Fathers’, M.M. and M.H., parental rights were also terminated to

Children. They have not appealed from those decrees.

3 In her forensic report, Dr. Erica Williams notes that there was no

determination able to be made with regard to whether the infant was stillborn.

However, aggravating circumstances were found against Mother in the baby’s

death. See Forensic Report of Erica Williams, Psy.D., 6/3/17, at 4; see also

infra at 3; infra at n.3.

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contacted and Mother was hospitalized for mental health treatment at the

Hospital of the University of Pennsylvania (HUP). The baby was pronounced

dead at HUP on May 29, 2015, the cause of death unknown. 4 Children were

temporarily committed to DHS while an investigation into the baby’s death

was pending. At a shelter care hearing held on June 2, 2015, Children were

placed in foster homes and visitation with Mother was suspended pending an

investigation into baby’s death. Following an adjudicatory hearing in August

2015, Children were placed in kinship care with Maternal Aunt and the court

ordered that HUP “[r]elease any and all medical and psychiatric records for

Mother . . . and baby.” Hearing Order, 8/11/15.

In March 2016, Children were adjudicated dependent and committed to

DHS; they were placed in foster care. Mother was granted two-hour

supervised visits with Children on a bi-weekly basis every other Tuesday.

Mother was referred for a behavioral health services evaluation and a

parenting capacity evaluation.5 Order, 3/29/16. The goal remained

reunification.

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4 Associate Medical Examiner Bruch Wainer, M.D., Ph.D., issued a report on

baby’s death that was admitted into evidence in a March 2016 proceeding.

The report includes a comment, stating that “[b]ecause of intervening

resuscitative procedures, it is not possible to distinguish whether or not this

was a stillbirth or a live birth.” Medical Examiner, Findings and Opinions,

8/17/15.

5 In a separate hearing, it was determined that aggravated circumstances

existed with regard to Mother and baby’s death. See 42 Pa.C.S. § 6315(e)(2)

(“If the county agency or the child’s attorney alleges the existence of

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On August 27, 2016, the court held a permanency review hearing; the

goal remained reunification despite the fact that the court found that

reasonable efforts had been made by DYS to finalize Children’s permanency

plans. Mother was referred to behavioral health services for a consultation

and/or evaluation, to participate in mental health therapy, to complete the

second part of a parenting capacity evaluation, and to have a home

assessment completed. At a January 2017 permanency hearing, the court

ordered Mother to reapply for medical insurance, engage in therapeutic

services, and, again, to complete the second half of her parenting capacity

evaluation. The court also ordered that Mother’s psychiatric evaluation be

released to CUA.6

On May 24, 2017, DHS filed petitions to terminate Mother’s parental

rights to Children under sections 2511(a)(1), (2), (5), (8) and (b) of the

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aggravated circumstances and the court determines that the child has been

adjudicated dependent, the court shall then determine if aggravated

circumstances exist.”). Aggravated circumstances exist when “[t]he child or

another child of the parent has been the victim of physical abuse resulting in

serious bodily injury, sexual violence, or aggravated physical neglect by the

parent.” 42 Pa.C.S. § 6302.

6 Community Umbrella Agency, or CUA, is part of an initiative by Philadelphia’s

Department of Human Services (DHS) called “Improving Outcomes for

Children: A Community Partnership Approach to Child Welfare” (IOC), created

to strengthen child welfare services in Philadelphia. See

http://www.wordsworth.org/wordsworth-cua-2 (last visited 5/7/18).

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Adoption Act.7 At a June 2017 status conference, the court scheduled a

contested goal change/termination hearing for October. On October 17, 2017,

the court held a termination hearing at which Dr. Erica Williams, an expert in

parenting capacity and child forensics, CUA case manager, Samantha

Gatewood, and Mother testified. Doctor Williams testified that in her February

2017 clinical interview with Mother, which was part of a court-ordered

parenting capacity evaluation, Mother reported that “she had received a

[head] injury8 and was hospitalized as a result of that injury and did not have

any memory of being pregnant, giving birth, or zipping the baby in a bag.”

N.T. Termination Hearing, 10/17/17, at 16. Doctor Williams characterized

Mother as having “a complete disregard for [the infant’s death] having

occurred.” Id. at 19. At the time she was seen by Dr. Williams, Mother was

involved in individual therapy; however, the notes from that therapy indicated

that Mother was not addressing the reason Children were placed into DHS’s

care or baby’s death. Id. Doctor Williams opined that without even being

open to the possibility of addressing these issues, Mother could not develop

an understanding and plan to prevent the behavior from recurring. Id. at 20.

As of the date she completed her parenting capacity evaluation report, Dr.

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7 23 Pa.C.S. §§ 2101-2910.

8 Specifically, Mother claimed that she slipped while taking a bath, hit her

head and was taken to the hospital immediately before the birth of baby in

May 2015.

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Williams testified that she believed Mother was not yet addressing the death

of her baby in therapy. Id. at 22.

Doctor Williams did identify Mother’s substantial employment where she

worked two full-time jobs and her obtaining and maintaining housing as

parenting strengths. Id. at 23. Overall, Dr. Williams opined that Mother was

not capable of providing safety or permanency to Children. Id. at 24.

However, in her final recommendation in the report, Dr. Williams noted that if

Mother were able to demonstrate at least six months of consistent attendance

in treatment and address the reasons why Children came into care, that the

parties should consider increasing her visitation. Forensic Report of Erica

Williams, Psy.D., 6/3/17, at 9.

At the termination hearing Mother testified that she was unaware she

was pregnant with baby as she continued to get her menstrual cycle and that

she did not know that she was supposed to discuss the circumstances during

therapy surrounding baby’s death and why Children were in placement. Id.

at 61-67.9

Ultimately, the trial court found that termination was proper where

“[M]other has been unable, unwilling, and will not be able to address the

issues that brought the children into care [and] that there would be no

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9 At the time of the termination hearing, the CUA case manager testified she

still would not recommend unsupervised visits among Mother and Children

“due to the current concern of [M]other [not ]being able to redirect

[Children].” N.T. Termination Hearing, 10/17/17, at 40.

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irreparable harm if the parental relationship was terminated and it would be

in the best interest of these children to be adopted by their current

caregivers.” Id. at 71.

Mother filed a timely notice of appeal and Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On appeal, Mother presents

the following issues for our review:

(1) Whether the trial court erred when it found that [DHS] by

clear and convincing evidence had met its burden to

terminate [Mother’s] parental rights pursuant to 23

Pa.C.S.A. §[§] 2511(a)(1), (a)(2), (a)(5), and (a)(8)[,] and

change the goal to adoption after evaluating [M]other’s

successful completion of her recommended reunification

goals[].

(2) Whether the trial court erred when it found that the

termination of Mother’s parental rights was in the Child’s

best interests, would not cause irreparable harm to the

children, and that [DHS] had met its burden pursuant to 23

Pa.C.S.A. § 2511(b)].

Mother’s Brief, at 2.

In a proceeding to terminate parental rights involuntarily, the

burden of proof is on the party seeking termination to establish

by clear and convincing evidence the existence of grounds for

doing so. 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.” It is well

established that a court must examine the individual

circumstances of each and every case and consider all

explanations offered by the parent to determine if the evidence in

light of the totality of the circumstances clearly warrants

termination.

In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted). Moreover, we review a trial court’s decision to involuntarily

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terminate parental rights for an abuse of discretion or error of law. In re

A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to

determining whether the trial court’s order is supported by competent

evidence. Id.

Mother’s inability to address the death of her infant and the

responsibility she played in that tragic situation justifies termination under

section 2511(a)(2).10 The trial court credited the testimony of Dr. Williams

and CUA caseworker Gatewood, who testified that Mother has never admitted

that she was aware of her latest pregnancy that ended in the death of her

baby. In fact, it was not until the termination hearing that Mother stated that

she would begin to discuss the circumstances of Children having been placed

in foster care for the past 28 months; in fact, Mother only realized the need

to do this two months before the hearing. See In re Adoption of S.P., 47

A. 3d 817, 826 (Pa. 2012) (appellate courts shall “accept the findings of fact

and credibility determinations of the trial court [when reviewing termination

parental rights cases] if they are supported by the record.”).

Under such circumstances, we conclude that terminating Mother’s

parental rights was appropriate where she demonstrated a “repeated and

continued incapacity, abuse, neglect or refusal” to acknowledge the

circumstances surrounding baby’s death and failed to “take[] steps to remedy

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10 We can affirm the trial court’s decision regarding the termination of parental

rights with regard to any singular subsection of section 2511(a). In re

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

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the situation.” See 23 Pa.C.S. § 2511(a)(2). By continuing to deny her

pregnancy and the circumstances underlying baby being zipped in a duffle

bag, Mother has not demonstrated that she can provide the safety and

permanency needed for Children; tragically she has caused them to be

“without essential parental care, control or subsistence necessary for [their]

physical or mental well-being.” Id. Moreover, this denial over the 28-month

period that Children have been in placement indicates that she “cannot or will

not . . . remed[y]” the situation. Id. See In re A.L.D., 797 A.2d 326, 337

(Pa. Super. 2002) (termination under section 2511(a)(2) is not limited to

affirmative misconduct, but may also include acts of refusal as well as

incapacity to perform parental duties).

Having concluded that the court properly terminated Mother’s parental

rights under section 2511(a), we must now consider whether “the child’s

needs and welfare will be met by termination pursuant to [s]ection 2511(b).”

In re C.P., [] 901 A.2d 516 (Pa. Super. 2006).

Intangibles such as love, comfort, security, and stability are

involved when inquiring about the needs and welfare of the

child. The court must also discern the nature and status of

the parent-child bond, paying close attention to the effect

on the child of permanently severing the bond.

Id. at 520 (internal citation omitted). The court should also

consider the importance of continuity of relationships to the child,

because severing close parental ties is usually extremely painful.

In re Adoption of K.J., supra at 1134. . . . The court must

consider whether a natural parental bond exists between child and

parent, and whether termination would destroy an existing,

necessary and beneficial relationship. In re C.S., supra. Most

importantly, adequate consideration must be given to the needs

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and welfare of the child. In re J.D.W.M., [] 810 A.2d 688, 690

(Pa. Super. 2002).

In re K.Z.S., 946 A.2d 753, 760 (Pa. Super. 2008).

Although section 2511(b) does not expressly require a definitive

commentary, the case law calls for interpretation of any parent-child bond.

In re E.M., 620 A.2d 481 (Pa. 1993), and its progeny have shaped the

traditional subsection (b) analysis. Thus, if there is any evidence of a bond

between the child and the parent whose parental rights are at risk, the wise

approach is to conduct a bonding evaluation and make it part of the certified

record. In re K.Z.S., supra.

In In re P.A.B., 570 A.2d 522, 525-26 (Pa. 1990), our Supreme Court

noted that, in considering what situation would best serve the needs and

welfare of a child, a court “must examine the status of the natural parental

bond to consider whether terminating the natural parents’ rights would

destroy something in existence that is necessary and beneficial.”

There are some instances, however, where direct observation of

the interaction between the parent and the child is not necessary

and may even be detrimental to the child. See In re K.C.F., []

928 A.2d 1046 (Pa. Super. 2007) [] (reviewing appeal after

remand for subsection (b) analysis; case involved three children,

ages 11, 9, and 8; Mother was drug and alcohol dependent,

previously convicted for endangering welfare of children,

sentenced to probation, and subsequently incarcerated; this Court

held (1) expert witness was sufficiently qualified to evaluate and

testify regarding bond between Mother and each child and

whether termination was in children’s best interests; (2) expert’s

evaluation characterized children’s bond with Mother as

compromised, ambivalent, insecure, and unsafe; expert said

actual observation of interaction with parent was not pertinent to

children over ages of six or seven, because older children have

sufficient verbal capacity for interviews; termination of Mother’s

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parental rights was in best interests of children; (3) termination

statute does not require children to be placed in pre-adoptive

home as precondition to termination of parental rights; and (4)

affirming Orphans' court's order terminating Mother's parental

rights). In 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.

See In re E.M., supra (involving Mother who suffered from

mental retardation and whose two children were similarly

afflicted; Supreme Court held there was sufficient evidence to

terminate Mother's parental rights under subsection (a), as

programs designed to improve Mother's parental skills had failed,

despite six years of intervention; but evidence of considerable

bond between Mother and children foreclosed termination under

subsection (b), absent consideration of that bond and what

severing that bond would do to children, particularly where CYS'

own expert witness said that bond had not been adequately

studied; Supreme Court reasoned: “To render a decision that

termination serves the needs and welfare of the child without

consideration of emotional bonds, in a case such as this where a

bond, to some extent at least, obviously exists and where the

expert for the party seeking termination indicates that the factor

has not been adequately studied, is not proper. Whether the bond

exists to such a considerable extent that severing the natural

parent-child relationship would be contrary to the needs and

welfare of the children is an issue that must be more fully explored

by the evidence.”).

In re K.Z.S., supra at 762-63 (emphasis added).

While there was evidence that Children have bonded with their foster

parents/families, there is absolutely no testimony regarding the bond between

Mother and Children and how the effect of terminating that maternal bond

would affect Children. Interestingly, one of the children, C.N.H.-C. indicated

that he would like to visit his mother on weekends. N.T. Termination Hearing,

10/17/17, at 46. Thus, the evidence with regard to at least one of the Children

presupposes an existing bond with Mother. Therefore, despite Appellee’s

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assertion that “it is not difficult to understand that the [t]rial [c]ourt was able

to infer that no bond existed between [Mother] and [C]hildren,” we disagree.

CUA worker Gatewood testified that each of the children would not suffer

irreparable harm were Mother’s parental rights terminated. Gatewood came

to this conclusion based on her belief that Children had bonded with their

respective foster parents, were having their basic physical and emotional

needs met, were relatively well-adjusted and were safe in their foster homes.

See N.T. Termination Hearing, 10/17/17, at 43-49. However, Gatewood had

never personally observed any visits between Mother and Children. Moreover,

while Gatewood mentioned visitation logs that recount “the events and

observations by the visitation coach recorded at or near the time the visitation

[between Mother and Children] takes place,” the content of these logs was

not recounted, nor were not admitted as exhibits for the court to consider in

coming to its decision regarding termination. Id. at 51-52.

Rather, the trial court relies upon Gatewood’s testimony regarding the

bond between foster parents and Children when it concludes that termination

is proper under section 2511(b) because “there would be no irreparable harm

if the parental relationship was terminated.” Id. at 71. Despite this

testimony, however, the court still fails to conduct a proper section 2511(b)

analysis of what effect termination would have on the Children based on the

presence of a bond between Mother and Children, not Foster Mother and

Children. Children were 7, 4½ and 3½ years of age when they were removed

from Mother. Children have been visiting with Mother since 2016; Mother has

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been consistent with her attendance at scheduled visitation. Id. at 23. Two

of the Children have expressed that they would like to visit or live with Mother.

Id. at 46-58. Based on this testimony, there clearly is some form of bond

between Mother and Children. Thus, an evaluation of this bond is necessary

before termination is ordered. The court, after such evaluation is still free to

conclude that despite a bond, Children will be better off if Mother’s parental

rights are terminated and they are adopted into a stable home. It is just

premature to make that assumption at this point.

While the fact that some form of bond exists between Mother and

Children will not per se prevent a court from termination Mother’s rights, it is

at least a factor that should have been explored below. Moreover, Appellee’s

assertion that Mother’s failure to testify “that she loved the children, wanted

them returned to her, . . . that she had any concerns about them[, and that

she] never even mentioned any of the[m] by name,” inappropriately shifts the

burden of proof to Mother. See Appellee’s Brief, at 30. We remind Appellee

that the burden of proof is upon CYS as the party seeking termination of

Mother’s rights to show by clear and convincing evidence that termination

meets the needs and welfare of Children under section 2511(b). In re E.M.,

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620 A.2d at 482. Thus, we are constrained to reverse11 the trial court’s

termination decrees.12

Decrees reversed.13 Jurisdiction relinquished.14

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11 We advise the trial court that in the likely event CYS files another

termination petition with regard to Mother, that, pursuant to 23 Pa.C.S. §

2313(a) of the Adoption Act, “[t]he court shall appoint counsel to represent

the child in an involuntary termination proceeding when the proceeding is

being contested by one or both of the parents.” In In L.B.M., 161 A.3d 172

(Pa. 2017), a majority of our Supreme Court concluded that counsel may

serve in both capacities so long as there is not conflict between a child’s legal

and best interests. However, if the court determines that the Children’s legal

and best interests conflict, then separate counsel shall be appointed.

12We decline to dismiss Mother’s appeal due to her alleged failure to comply

with Pa.R.A.P. 2117(a)(4), 2119(c), (d), and (e). See Appellee’s Brief, at 16-

19. Mother’s minor briefing transgressions do not prevent us from a proper

and complete review of the case on appeal.

13 Although this Court has held that a trial court is not required by statute or

precedent to order that a formal bonding evaluation be performed by an

expert, In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008), and in fact, in

some instances direct observation of the interaction between the parent and

child is not necessary and may even be detrimental to the child, In re K.Z.S.,

supra, in the instant termination proceeding there was not even a mention of

whether a bond existed between Mother and Children. Id. Finally, the trial

court did not consider the importance of continuity of relationships and

whether any existing parent-child bond can be severed without detrimental

effects on the children, other than in the context of the strength of the bond

between foster parents and Children. Id.; In re A.S., 11 A.3d 473, 483 (Pa.

Super. 2010).

14 We decline to reverse and remand this case for a hearing on bonding

evidence for purposes of a section 2511(b) analysis. It is well-established

that this Court applies a two-part test for termination of parental rights. In

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Thus, the party seeking to

terminate a parent’s rights must prove by clear and convincing evidence that

termination is proper under both subsections 2511(a) and (b). Failure to

prove either subsection necessitates reversal of a termination order on appeal

and not a second bite at the appeal on remand.

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DUBOW, J., Did not participate in the consideration or decision of this

memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/4/18

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