In The Int. of: Z.S v. Appeal of: D.S.

J-S66001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.V., A : IN THE SUPERIOR COURT OF

MINOR A/K/A Z.S.V. : PENNSYLVANIA

:

:

:

:

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APPEAL OF: D.S., MOTHER : No. 3659 EDA 2017

Appeal from the Orders October 4, 2017

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-AP-0000552-2016,

CP-51-DP-0001269-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 18, 2018

Appellant, D.S. (“Mother”), appeals from the orders entered in the

Philadelphia County Court of Common Pleas, which reaffirmed the court’s prior

decree terminating Mother’s parental rights to her minor child, Z.V. a/k/a

Z.S.V. (“Child”) (born November 2008), and the court’s prior order changing

Child’s permanency goal to adoption. We affirm.

A prior opinion of this Court sets forth the relevant facts and procedural

history of this case as follows:

On May 10, 2015, [the Department of Human Services

(“DHS”)] obtained an order of protective custody (“OPC”)

regarding Child based on reports that Mother repeatedly hit

Child with different implements. Following a shelter care

hearing, the trial court granted DHS legal and physical

custody over Child. Child was initially placed with Child’s

maternal grandmother.

On May 15, 2015, DHS filed a dependency petition regarding

Child. DHS asserted aggravated circumstances, namely,

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the involuntary termination of Mother’s parental rights to

Child’s sibling. On May 27, 2015, the trial court adjudicated

Child dependent and set a permanent placement plan of

“return to guardian.” The court referred Mother to the

Clinical Evaluation Unit for a drug screen and a dual

diagnosis assessment.

On July 29, 2015, following a permanency review hearing,

the trial court entered an order indicating Mother did not

meet the criteria for substance abuse intervention. The

court referred Mother to Behavioral Health Systems for a

consultation or evaluation and directed the Community

Umbrella Agency (“CUA”) to refer Mother to anger

management counseling. The court directed that Child be

placed in foster kinship care with Child’s maternal aunt.

On December 16, 2015, the trial court convened a

permanency review hearing. At the beginning of the

hearing, DHS’s counsel indicated that a ruling on DHS’s

allegations of aggravated circumstances had been deferred.

DHS entered copies of a September 29, 2004 order

involuntarily terminating Mother’s parental rights to Child’s

sibling into the record. DHS’s counsel requested that DHS

make no reasonable efforts toward reunification. Following

arguments by Mother’s counsel, the court directed that “no

reasonable efforts are needed.”

DHS presented additional testimony from Child’s CUA case

manager, who indicated that visitation had been suspended

based on the recommendation of Child’s therapist. Mother’s

counsel objected suggesting that DHS did not present

evidence of a grave threat to Child. In response, DHS

presented the case manager’s testimony that Child reported

(1) her sibling sexually abused her when Child and sibling

were in Mother’s care, (2) Mother and Child’s sibling taught

Child sexual behaviors, and (3) Child placed a firearm

against her own head because her Mother told Child she was

“bad.” DHS’s counsel indicated that child protective services

reports were made in September, and the matter was “being

investigated.” Moreover, DHS’s counsel averred, “I believe

[the reports] have been substantiated.” The court

determined that visitation with Mother constituted a grave

threat to Child and ordered visitation be permanently

suspended unless it occurred in a therapeutic setting.

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Following the December 16, 2015 hearing, the trial court

entered a permanency review order memorializing its

suspension of visitation. However, the court did not change

the permanent placement plan of reunification.

Additionally, the court directed that CUA refer Mother for a

parenting capacity evaluation and that Mother continue with

therapy. The court scheduled a permanency review hearing

for March 2016.

The trial court also entered a separate aggravated

circumstances order finding the existence of aggravated

circumstances and directing the cessation of efforts “to

preserve the family and reunify [Child and Mother].” In that

order, the court directed that a hearing be held within thirty

days.

A hearing was not held within thirty days of the trial court’s

aggravated circumstances order, and the matter proceeded

to a permanency review hearing held on March 16, 2016,

before a new presiding judge. During the witness’s

testimony, the court interceded and the following exchange

occurred:

THE COURT: So let me just say this. Given that on

December 16, 2015[, the prior judge] made the

finding, no efforts are to be made to preserve the

family, reunify [Child] with [Mother] we don’t have to

go through objectives on [Mother] and where she is

and everything like that because that’s the court

order. So there was no appeal taken of that

December 16th order and therefore that stands. So I

don’t need any objectives put on the record as to

[Mother] because the [c]ourt has already made a

finding that there are to be no efforts to reunify.

[Mother’s counsel]: Your Honor, just one

clarification note. Your Honor is in agreement that

[M]other can still make her own efforts, isn’t that

correct?

THE COURT: I don’t know what that looks like

because right now she doesn’t have visits because

they’ve been suspended at the recommendation of the

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therapist. And [the CUA case manager] just testified

that that is still the recommendation of the therapist,

no contact, no visits.

[Mother’s counsel]: But, Your Honor, there’s much

more thorough recommendations in the report, that I

think you were just handed, from [the Children’s Crisis

Treatment Center (“CCTC”)].

THE COURT: Okay.

[Mother’s counsel]: You know, in terms of

reasonable efforts even if the department has no

affirmative obligation the parent’s rights are not

terminated yet and she has the right to make her own

efforts.

THE COURT: Well considering that the order was

made that there are no efforts to be made as to

reunification, reunification is no longer the

permanency goal. The permanency goal for [Child]

now goes to either adoption or [permanent legal

custody (“PLC”)].

[Mother's counsel]: Your Honor, that goal was not

changed and we didn’t have a goal change hearing for

that.

THE COURT: Well I’m changing the goal because

essentially it was already done at the last court date.

If [Mother] doesn’t have to work on objectives and the

[c]ourt has already said very clearly on December 16th

that no efforts are to be made to preserve the family

and reunify [Child] with [Mother], then essentially

there is no reunification goal. The goal is adoption or

PLC, whichever is appropriate in this case. And it

really would be adoption because of the age of the

child. So with that in mind—that decision was made

before I got here.

[Mother's counsel]: So you[’re] ordering that the

goal is changed to adoption today?

THE COURT: The goal has—even though [the prior

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judge] did not make the goal change. Given his order,

reunification is not a viable option. So therefore today

I’m making the order that the goal is now adoption for

[Child] based on his previous ruling. He took

testimony. He made that decision and so therefore,

based on that, we don’t have to get into objectives or

anything like that. The goal is adoption.

[Mother’s counsel]: Your Honor, please note my

objection.

Following the March 16, 2016 hearing, the trial court

entered [a] permanency review order. The order indicated

that the permanent placement goal was “return to parent or

guardian” and added a concurrent placement plan of

adoption. The court further directed:

THE DHS GOAL IS CHANGED TO ADOPTION. THE

CURRENT COURT GOAL IS REUNIFICATION UNTIL

PETITIONS ARE FILED. A meeting among the parties

is to occur within 30 days to discuss the appropriate

goal. Reunification has been ruled [out] as to

[Mother] as a viable goal.

Mother timely appealed from the March 16, 2016 order….

In Interest of Z.V., 158 A.3d 665, 666-68 (Pa.Super. 2018) (internal

footnotes and citations to record omitted).

While Mother’s appeal from the March 16, 2016 order was pending, on

June 16, 2016, DHS filed a petition to terminate Mother’s parental rights to

Child at Docket No. AP-0000552-2016, and a petition to change Child’s

permanency goal to adoption at Docket No. DP-0001269-2015. Additionally,

on October 18, 2016, the court entered against Mother a stay-away order

prohibiting Mother from contacting Child’s foster mother, Mother’s aunt, based

upon reports Mother had repeatedly harassed Child’s foster mother over the

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phone.

On January 4, 2017, the trial court conducted a hearing on DHS’

termination and goal change petitions, during which the court heard testimony

from Child’s CCTC therapist, Child’s CUA case manager, Mother, and Child’s

foster mother.

Child’s therapist, on behalf of DHS, testified and explained she had been

Child’s trauma focus therapist since July 2015, after a social worker referred

Child to therapy in light of reports Mother had physically abused Child. In

September 2015, Child disclosed to her foster mother and a caseworker that

her older brother sexually assaulted her numerous times when both children

were in Mother’s care. Also in September 2015, Child’s therapist

recommended suspension of Mother’s supervised visits with Child because:

Mother had encouraged Child to make false allegations of mistreatment by

foster mother and told Child not to follow her foster mother’s directions; Child

feared Mother would hit her if she did not follow Mother’s instructions; and

Child exhibited increased behavioral problems following Mother’s visits. In

meetings with the case manager, Mother failed to acknowledge she caused

Child trauma, disbelieved Child had been sexually abused, and described Child

as a liar and a manipulator. Since February 2016, Mother failed to attend any

caregiver sessions with Child’s therapist and had attended less than three

throughout Child’s treatment. When Child’s therapist began counseling with

Child, Child exhibited several trauma symptoms, including, inter alia: trouble

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sleeping, nightmares, nighttime enuresis, dishonesty, physical aggression,

inability to focus, and suicidal ideation. Child’s therapist diagnosed Child with

post-traumatic stress disorder (“PTSD”) and attention-deficit/hyperactivity

disorder (“ADHD”). As of January 2017, Child had progressed with therapy

and the severity of her symptoms had diminished, but Child’s therapist

maintained the recommendation that Mother should not visit with Child.

Child’s therapist explained Child needs a stable and consistent caregiver,

which role the therapist opined Mother was unable to fulfill. Child’s therapist

also indicated Child has a good relationship with her foster mother; foster

mother supports Child’s recovery and Child loves foster mother. (See N.T.

Termination/Goal Change Hearing, 1/4/17, at 20-37).

A CUA case manager, who became involved with Child’s case in July

2016, also testified on behalf of DHS. The CUA case manager reiterated that

during visitation, Mother coached Child to make false allegations against

Child’s foster mother, and Child’s behavior deteriorated after Mother’s visits.

CUA developed for Mother single case plan (“SCP”) objectives, which included,

inter alia: undergoing anger management counseling; completing part two of

a parenting capacity evaluation; and participating in mental health treatment,

including complying with a mental health medication management program.

Mother failed to provide CUA with documentation of her anger management

treatment and mental health treatment. Mental health treatment reports CUA

obtained from Mother’s provider indicated Mother had attended one treatment

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session each in June and October 2016, but she had not attended sessions

between June and October 2016, or after October 2016. While Child was in

foster mother’s care, Mother had made threatening phone calls and sent

threatening text messages to foster mother. Additionally, at a meeting about

Child’s placement, Mother commented she wanted to punch the case

manager’s supervisor. The CUA case manager had observed Child with her

foster mother, to whom Child had bonded. Child and her foster mother have

a good, caring relationship, and Child looks to her foster mother for daily

support, parental guidance, and love. The CUA case manager opined

termination of Mother’s parental rights to Child is in Child’s best interest,

because: Mother failed to complete her SCP objectives; Child is fearful of

Mother; and Child has improved overall since she has been in the care of foster

mother. The case manager added she believed Child would not suffer

irreparable harm if Mother’s parental rights to Child were terminated. (Id. at

48-65).

Additionally, Mother testified on her own behalf. Mother explained she

had last received mental health treatment from her original provider in

October 2016, when the counseling center had dismissed her from treatment

because it lacked resources. Mother added she had missed several therapy

appointments due to other medical issues and because her therapist had

repeatedly cancelled sessions. Mother claimed she had received mental health

treatment from two different therapists since October 2016. Mother said her

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original counseling center reinstated her treatment earlier on the day of the

termination hearing, and she attended a counseling session that same day.

Mother conceded she used corporal punishment to discipline Child, which

included hitting Child with a belt. Mother stated she originally sought social

services assistance to learn to better parent Child and discipline Child without

beating her. Mother also acknowledged two of her other children have been

in the care of Child’s foster mother. (Id. at 83-107).

Child’s foster mother, who is Child’s maternal great-aunt, also testified.

Foster mother has known Child since she was born, and at the time of the

January 4th hearing, Child had been in foster mother’s care for nearly two

years. Foster mother also had in her care two of Child’s older siblings. While

Child was in foster mother’s care, Mother had repeatedly threatened and

harassed foster mother over the phone. In one instance, Mother sent foster

mother approximately forty-one text messages at 2:00 a.m. accusing foster

mother and others of abusing Child. Foster mother and Mother had a good

relationship in the past; their relationship deteriorated only after foster mother

began to care for Child. On the day of the January 4th hearing, Mother and

foster mother communicated, and foster mother indicated she had a

“breakthrough” with Mother during their discussion. Foster mother requested

the court to lift the stay-away order against Mother to allow foster mother and

Mother attempt to reestablish a relationship in the interest of promoting a

healthy relationship between Child and Mother. (Id. at 114-123). On January

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4, 2017, the court entered a decree terminating Mother’s parental rights to

Child and an order changing Child’s permanency goal to adoption. That same

day, the court lifted the stay-away order against Mother.

With respect to Mother’s pending appeal, on January 24, 2017, in an

unpublished memorandum (republished on March 23, 2017), this Court

vacated the trial court’s March 16, 2016 goal change order and remanded for

a permanency review hearing. See In Interest of Z.V., supra.

Meanwhile, Mother filed a timely notice of appeal from the trial court’s

January 4, 2017 termination decree on February 3, 2017, which was docketed

at No. 522 EDA 2017. On February 23, 2017, Mother filed in this Court an

“Application for Remand,” requesting this Court to vacate the trial court’s

January 4, 2017 decree and remand for a permanency review hearing

consistent with this Court’s January 24, 2017 appellate directive. On March

31, 2017, this Court entered the following order in response to Mother’s

request for a remand:

The above-captioned appeal is hereby REMANDED to the

Philadelphia County Court of Common Pleas, and the

common pleas court is permitted to vacate its January 4,

2017 order in light of this Court’s decision in Superior Court

Docket No. 1211 EDA 2016.

Jurisdiction is RELINQUISHED.

(Order, filed March 31, 2017) (emphasis added). In other words, this Court

allowed the trial court to hold a permanency review hearing on remand as

directed and gave the court the discretion to vacate the January 4, 2017

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termination decree if the court determined the evidence so required. With

this Order, the appeal at No. 522 EDA 2017 ended.

On remand, the trial court conducted the permanency review hearing,

as directed, on October 4, 2017. Before the court heard testimony, Mother

made an oral motion for recusal, which the court denied. During the hearing,

the court limited the parties to presenting only that evidence which they could

have offered at the initial permanency review hearing on March 16, 2016. The

court heard the testimony of a CUA caseworker, on behalf of DHS, and Mother.

At the remand hearing, the CUA caseworker testified she had been

involved with Child’s case since May 2015. A letter from Child’s trauma

therapist dated March 15, 2016, in CUA’s records indicated the therapist had

recommended continued suspension of Mother’s visits with Child, because

Mother had inappropriate contact with Child during the visits and Child’s

behavior worsened after visits. The March 15th letter also indicated Child’s

therapist would consider recommending Mother’s visits with Child to resume,

but only after Mother had made progress in her own therapy and

acknowledged her role in causing Child’s trauma. CUA had requested Mother

to participate in caregiver sessions at CCTC, but nothing in CUA’s records

indicated Mother had attended any caregiver sessions. Further, as of March

2016, Mother had not completed her SCP objectives. (See N.T. Permanency

Review Hearing, 10/4/17, at 5-12).

Mother also testified at the remand hearing. Mother stated she had

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participated in anger management, mental health treatment, and parenting

classes through March 2016. Specifically, Mother said that, by March 2016,

she had received mental health treatment and anger management counseling

for approximately a year. Mother testified she signed necessary releases on

Child’s behalf and attempted to communicate with Child’s therapist. Mother

added she had participated in caregiver sessions, but stopped when the

therapist said she did not need to see Mother again. By March 2016, Mother

claimed she had completed part one of the parenting capacity evaluation, but

she had not completed part two. Mother said she acknowledged in therapy

that she had lost her temper with Child, was wrong to do so, and wished to

correct her behavior to reunite with Child. Mother provided to the court a

medication management report, but Mother had no documentation of her

ongoing participation in mental health treatment. (Id. at 14-42).

Following the permanency review hearing on remand, on October 4,

2017, the court entered identical orders at both docket numbers to let stand

its prior January 4, 2017 termination decree and goal change order. On

November 3, 2017, Mother timely filed at both docket numbers notices of

appeal and contemporaneous statements of errors complained of on appeal

per Pa.R.A.P. 1925(a)(2)(i).

Mother raises the following issues for our review:

DID THE [TRIAL] COURT FAIL TO COMPLY WITH THE

SUPERIOR COURT’S ORDER OF MARCH 31, 2017?

DID THE [TRIAL] COURT FAIL TO COMPLY WITH THE

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SUPERIOR COURT’S REMAND DECISION OF JANUARY 24,

2017 BY…CONDUCT[ING] ONLY A “SNAPSHOT” HEARING

AND NOT A FULL PERMANENCY REVIEW HEARING UNDER

THE [PENNSYLVANIA] JUVENILE ACT, 42 PA.C.S.A. § 6301,

ET SEQ.?

DID THE [TRIAL] COURT[’S] OCTOBER 4, 2017 ORDERS

LETTING STAND ITS JANUARY 4, 2017 PRIOR ORDERS

CHANGING…CHILD’S PERMANENCY GOAL TO ADOPTION

AND TERMINATING [MOTHER]’S PARENTAL RIGHTS DENY

MOTHER AND CHILD DUE PROCESS?

(Mother’s Brief at 4-5).1

In her issues combined, Mother argues the trial court failed to comply

with this Court’s March 31, 2017 remand order, when the court chose not to

vacate its January 4, 2017 termination decree before holding the permanency

review hearing on remand. Mother insists the trial court incorrectly

interpreted this Court’s decision when it limited the parties at the remand

hearing to presenting only the evidence they could have introduced at the

____________________________________________

1 Mother includes in her statement of questions presented numerous

subheadings, which she failed to support with discussion in the argument

section of her brief. For example, Mother’s brief contains no argument on the

following claims: (1) the trial court lacked jurisdiction to hold the October 4,

2017 hearing without first vacating its January 4, 2017 order terminating

Mother’s parental rights, because more than 30 days had elapsed since

January 4, 2017 order; (2) the October 4, 2017 hearing did not constitute a

permanency review hearing under 42 Pa.C.S.A. § 6351; and (3) the trial court

determined Mother was merely a witness for purposes of the October 4, 2017

hearing, because the court had previously terminated Mother’s parental rights

to Child. Accordingly, we give these claims no consideration. See Butler v.

Illes 747 A.2d 943 (Pa.Super. 2000) (providing where appellant fails to raise

or develop her issues on appeal properly, or where her brief is wholly

inadequate to present specific issues for review, this Court can decline to

address appellant’s claims on merits); Pa.R.A.P. 2119(a).

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original March 16, 2016 permanency review hearing (“snapshot hearing”).

Specifically, Mother avers the trial court barred Mother from presenting at the

remand hearing more recent and contemporary information to refute

termination of Mother’s parental rights to Child. Mother also contends the

court improperly admitted hearsay evidence that did not meet the business

records exception to the hearsay rule.

Moreover, Mother complains the trial court abused its discretion when it

denied Mother’s recusal motion. Likewise, Mother asserts the evidence in this

case was insufficient to support the court’s decision to let stand its prior

January 4, 2017 decree terminating Mother’s parental rights to Child and its

prior order changing Child’s permanency goal to adoption. Mother concludes

this Court should vacate the trial court’s orders and remand for further

proceedings. We disagree.

As a preliminary matter, to preserve a claim of error for appellate

review, a party must make a specific objection to the alleged error before the

trial court in a timely fashion and at the appropriate stage of the proceedings;

failure to raise an objection results in waiver of the underlying issue on appeal.

In re J.A., 107 A.3d 799, 820 (Pa.Super. 2015). See also Cominsky v.

Donovan, 846 A.2d 1256, 1262 (Pa.Super. 2004) (stating: “[T]o preserve an

evidentiary objection, a party must make a timely and specific objection to

the admission or the exclusion of the evidence”). “Issues not raised in the

[trial] court are waived and cannot be raised for the first time on appeal.”

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Pa.R.A.P. 302(a).

Further, appellate briefs must conform in all material respects to the

briefing requirements set forth in the Pennsylvania Rules of Appellate

Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing

specific requirements of each subsection of brief on appeal). Regarding the

argument section of an appellate brief, Rule 2119(a) provides:

Rule 2119. Argument

(a) General rule.—The argument shall be divided into

as many parts as there are questions to be argued; and shall

have at the head of each part—in distinctive type or in type

distinctively displayed—the particular point treated therein,

followed by such discussion and citation of authorities as are

deemed pertinent.

Pa.R.A.P. 2119(a). Importantly, where an appellant fails to raise or develop

her issues on appeal properly, or where her brief is wholly inadequate to

present specific issues for review, this Court can decline to address the

appellant’s claims on the merits. Butler, supra. See also Lackner v.

Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere

to rules of appellate procedure and arguments which are not appropriately

developed are waived; arguments not appropriately developed include those

where party has failed to cite authority to support contention); Estate of

Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must

support each question raised by discussion and analysis of pertinent authority;

absent reasoned discussion of relevant law in appellate brief, appellant

hampers this Court’s review and risks waiver).

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Additionally, an appellant’s failure to cite to the record and relevant

supporting authority constitutes waiver:

An appellate brief must provide citations to the record and

to any relevant supporting authority. The court will not

become the counsel for an appellant and will not, therefore,

consider issues which are not fully developed in [her] brief.

Failing to provide…citation to the record represents serious

deviations from the briefing requirements of the Rules of

Appellate Procedure. Because such an omission impedes on

our ability to address the issue on appeal, an issue that is

not properly briefed in this manner is considered waived.

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (internal

citations and quotation marks omitted). See also Pa.R.A.P. 2119(c)

(providing: “If reference is made to the pleadings, evidence, charge, opinion

or order, or any other matter appearing in the record, the argument must set

forth, in immediate connection therewith, or in a footnote thereto, a reference

to the place in the record where the matter referred to appears…”).

Instantly, Mother raises her hearsay claim for the first time on appeal.

See Cominsky, supra. Further, in her brief, Mother fails to identify the

purportedly inadmissible hearsay the trial court allegedly admitted and does

not cite to the record to support her assertion. See Pa.R.A.P. 2119(c).

Therefore, Mother’s hearsay challenge is waived. See Gould, supra;

Pa.R.A.P. 302(a). Additionally, Mother fails to cite to relevant authority to

support her recusal claim; the sole case Mother relies upon does not discuss

recusal. Instead, the case addresses the admission of prior convictions

evidence in a criminal case. Thus, Mother’s recusal claim is also waived. See

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Lackner, supra; Gould, supra.

Regarding Mother’s remaining complaints, ordinarily, “where a case is

remanded to resolve a limited issue, only matters related to the issue on

remand may be appealed.” Commonwealth v. Lawson, 789 A.2d 252, 253

(Pa.Super. 2001). Nevertheless, there are instances where an appellate court

can address claims unrelated to the issue on remand. See Commonwealth

v. Chamberlain, 612 Pa. 107, 30 A.3d 381 (2011), certiorari denied, 566

U.S. 986, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012) (explaining Supreme

Court remanded case to trial court, recognizing that remand proceedings could

provide basis for appellant to seek relief; following remand, Supreme Court

considered additional claims from appellant). In light of the importance of the

rights involved, the complex procedural history of this case, and in all fairness

to Mother, we will address her complaints raised on appeal with respect to the

goal change and termination of her parental rights.

On appeal, goal change decisions are subject to an abuse of discretion

standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006).

In order to conclude that the trial court abused its

discretion, we must determine that the court’s

judgment was “manifestly unreasonable,” that the

court did not apply the law, or that the court’s action

was “a result of partiality, prejudice, bias or ill will,”

as shown by the record. We are bound by the trial

court’s findings of fact that have support in the record.

The trial court, not the appellate court, is charged with

the responsibilities of evaluating credibility of the

witnesses and resolving any conflicts in the testimony.

In carrying out these responsibilities, the trial court is

free to believe all, part, or none of the evidence.

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When the trial court’s findings are supported by

competent evidence of record, we will affirm, “even if

the record could also support an opposite result.”

Id. at 822-23 (internal citations omitted).

The Juvenile Act controls the disposition of dependent children. In re

R.P., 957 A.2d 1205, 1217 (Pa.Super. 2008). Section 6351 provides in

relevant part:

§ 6351. Disposition of dependent child

* * *

(f) Matters to be determined at permanency

hearing.—At each permanency hearing, a court shall

determine all of the following:

(1) The continuing necessity for and

appropriateness of the placement.

(2) The appropriateness, feasibility and extent

of compliance with the permanency plan

developed for the child.

(3) The extent of progress made toward

alleviating the circumstances which necessitated

the original placement.

(4) The appropriateness and feasibility of the

current placement goal for the child.

(5) The likely date by which the placement

goal for the child might be achieved.

(5.1) Whether reasonable efforts were made to

finalize the permanency plan in effect.

(6) Whether the child is safe.

* * *

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(9) If the child has been in placement for at

least 15 of the last 22 months or the court has

determined that aggravated circumstances exist

and that reasonable efforts to prevent or

eliminate the need to remove the child from the

child’s parent, guardian or custodian or to

preserve and reunify the family need not be

made or continue to be made, whether the

county agency has filed or sought to join a

petition to terminate parental rights and to

identify, recruit, process and approve a qualified

family to adopt the child unless:

(i) the child is being cared for by a relative

best suited to the physical, mental and

moral welfare of the child;

(ii) the county agency has documented a

compelling reason for determining that filing

a petition to terminate parental rights would

not serve the needs and welfare of the child;

or

(iii) the child’s family has not been provided

with necessary services to achieve the safe

return to the child’s parent, guardian or

custodian within the time frames set forth in

the permanency plan.

* * *

(f.1) Additional determination.—Based upon the

determinations made under subsection (f) and all

relevant evidence presented at the hearing, the court

shall determine one of the following:

(1) If and when the child will be returned to

the child’s parent, guardian or custodian in cases

where the return of the child is best suited to the

safety, protection and physical, mental and moral

welfare of the child.

(2) If and when the child will be placed for

adoption, and the county agency will file for

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termination of parental rights in cases where

return to the child’s parent, guardian or custodian

is not best suited to the safety, protection and

physical, mental and moral welfare of the child.

(3) If and when the child will be placed with a

legal custodian in cases where the return to the

child’s parent, guardian or custodian or being

placed for adoption is not best suited to the

safety, protection and physical, mental and moral

welfare of the child.

(4) If and when the child will be placed with a

fit and willing relative in cases where return to

the child’s parent, guardian or custodian, being

placed for adoption or being placed with a legal

custodian is not best suited to the safety,

protection and physical, mental and moral

welfare of the child.

* * *

(f.2) Evidence.—Evidence of conduct by the parent

that places the health, safety or welfare of the child at

risk, including evidence of the use of alcohol or a

controlled substance that places the health, safety or

welfare of the child at risk, shall be presented to the

court by the county agency or any other party at any

disposition or permanency hearing whether or not the

conduct was the basis for the determination of

dependency.

(g) Court order.—On the basis of the

determination made under subsection (f.1), the court

shall order the continuation, modification or

termination of placement or other disposition which is

best suited to the safety, protection and physical,

mental and moral welfare of the child.

42 Pa.C.S.A. § 6351(f), (f.1), (f.2), (g).

“When the child welfare agency has made reasonable efforts to return a

[dependent] child to [the child’s] biological parent, but those efforts have

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failed, then the agency must redirect its efforts towards placing the child in an

adoptive home.” In re N.C., supra at 823 (citing In re G.P.-R., 851 A.2d

967, 973 (Pa.Super. 2004)).

Although the agency has the burden to show a goal change

would serve the child’s best interests, “[s]afety,

permanency, and well-being of the child must take

precedence over all other considerations” under Section

6351. In re D.P., 972 A.2d 1221, 1227 (Pa.Super. 2009),

appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009)

(emphasis in original); In re S.B., 943 A.2d 973, 978

(Pa.Super. 2008), appeal denied, 598 Pa. 782, 959 A.2d 320

(2008). “[T]he parent’s rights are secondary” in a goal

change proceeding. In re D.P., supra.

Because the focus is on the child’s best interests, a goal

change to adoption might be appropriate, even when a

parent substantially complies with a reunification plan. In

re N.C., supra at 826-27. Where a parent’s “skills,

including her judgment with regard to the emotional well-

being of her children, remain problematic[,]” a goal change

to adoption might be appropriate, regardless of the parent’s

compliance with a permanency plan. Id. at 825. The

agency is not required to offer services indefinitely, where a

parent is unable to properly apply the instruction provided.

In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). See

also In re S.B., supra at 981 (giving priority to child’s

safety and stability, despite parent’s substantial compliance

with permanency plan); In re A.P., 728 A.2d 375, 379

(Pa.Super. 1999), appeal denied, 560 Pa. 693, 743 A.2d 912

(1999) (holding where, despite willingness, parent cannot

meet “irreducible minimum parental responsibilities, the

needs of the child must prevail over the rights of the

parent”). Thus, even where the parent makes earnest

efforts, the “court cannot and will not subordinate

indefinitely a child’s need for permanence and stability to a

parent’s claims of progress and hope for the future.” In re

Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006).

In re R.M.G., 997 A.2d 339, 347 (Pa.Super. 2010), appeal denied, 608 Pa.

648, 12 A.3d 372 (2010) (some internal citations and quotation marks

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omitted) (emphasis in original).

Appellate review of termination of parental rights cases implicates the

following principles:

In cases involving termination of parental rights: “our

standard of review is limited to determining whether the

order of the trial court is supported by competent evidence,

and whether the trial court gave adequate consideration to

the effect of such a decree on the welfare of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

Absent an abuse of discretion, an error of law, or

insufficient evidentiary support for the trial court’s

decision, the decree must stand. … We must employ

a broad, comprehensive review of the record in order

to determine whether the trial court’s decision is

supported by competent evidence.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en

banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)

(internal citations omitted).

Furthermore, we note that the trial court, as the finder

of fact, is the sole determiner of the credibility of

witnesses and all conflicts in testimony are to be

resolved by the finder of fact. The burden of proof is

on the party seeking termination to establish by clear

and convincing evidence the existence of grounds for

doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.

2002) (internal citations and quotation marks omitted). The

standard of clear and convincing evidence means testimony

that is so clear, direct, weighty, and convincing as to enable

the trier of fact to come to a clear conviction, without

hesitation, of the truth of the precise facts in issue. In re

J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may

uphold a termination decision if any proper basis exists for

the result reached. In re C.S., 761 A.2d 1197, 1201

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(Pa.Super. 2000) (en banc). If the court’s findings are

supported by competent evidence, we must affirm the

court’s decision, even if the record could support an opposite

result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super.

2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165

(2008)).

DHS filed a petition for the involuntary termination of Mother’s parental

rights to Child on the following grounds:

§ 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:

(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.

(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.

* * *

(5) The child has been removed from the care of the

parent by the court or under a voluntary agreement

with an agency for a period of at least six months, the

conditions which led to the removal or placement of

the child continue to exist, the parent cannot or will

not remedy those conditions within a reasonable

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period of time, the services or assistance reasonably

available to the parent are not likely to remedy the

conditions which led to the removal or placement of

the child within a reasonable period of time and

termination of the parental rights would best serve the

needs and welfare of the child.

* * *

(8) The child has been removed from the care of the

parent by the court or under a voluntary agreement

with an agency, 12 months or more have elapsed from

the date of removal or placement, the conditions

which led to the removal or placement of the child

continue to exist and termination of parental rights

would best serve the needs and welfare of the child.

* * *

(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.A. § 2511(a)(1), (2), (5), (8), and (b). “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., supra at 1117.

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

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if the court determines that the parent’s conduct warrants

termination of…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.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

Termination under Section 2511(a)(1) involves the following:

To satisfy the requirements of [S]ection 2511(a)(1), the

moving party must produce clear and convincing evidence

of conduct, sustained for at least the six months prior to the

filing of the termination petition, which reveals a settled

intent to relinquish parental claim to a child or a refusal or

failure to perform parental duties. In addition,

Section 2511 does not require that the parent

demonstrate both a settled purpose of relinquishing

parental claim to a child and refusal or failure to

perform parental duties. Accordingly, parental rights

may be terminated pursuant to Section 2511(a)(1) if

the parent either demonstrates a settled purpose of

relinquishing parental claim to a child or fails to

perform parental duties.

Once the evidence establishes a failure to perform parental

duties or a settled purpose of relinquishing parental rights,

the court must engage in three lines of inquiry: (1) the

parent’s explanation for…her conduct; (2) the post-

abandonment contact between parent and child; and (3)

consideration of the effect of termination of parental rights

on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted). Regarding the six-month period prior to filing the termination

petition:

[T]he trial court must consider the whole history of a given

case and not mechanically apply the six-month statutory

provision. The court must examine the individual

circumstances of each case and consider all explanations

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offered by the parent facing termination of…her parental

rights, to determine if the evidence, in light of the totality of

the circumstances, clearly warrants the involuntary

termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted).

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 (Pa.Super. 2002). “Parents are required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.”

Id. at 340. The fundamental test in termination of parental rights under

Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa.

636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced

that under what is now Section 2511(a)(2), “the petitioner for involuntary

termination must prove (1) repeated and continued incapacity, abuse, neglect

or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child

to be without essential parental care, control or subsistence; and (3) that the

causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).

“Termination of parental rights under Section 2511(a)(5) requires that:

(1) the child has been removed from parental care for at least six months; (2)

the conditions which led to removal and placement of the child continue to

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

welfare of the child.” In re Z.P., supra at 1118.

“[T]o terminate parental rights pursuant to [Section] 2511(a)(8), the

following factors must be demonstrated: (1) [t]he child has been removed

from parental care for [twelve] months or more from the date of removal; (2)

the conditions which led to the removal or placement of the child continue to

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

welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76

(Pa.Super. 2003).

Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520

(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. Significantly:

In this context, the court must take into account whether a

bond exists between child and parent, and whether

termination would destroy an existing, necessary and

beneficial relationship.

When conducting a bonding analysis, 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

evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

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“The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have…her rights terminated.” In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental duties.

Parental duty is best understood in relation to the needs of

a child. A child needs love, protection, guidance, and

support. These needs, physical and emotional, cannot be

met by a merely passive interest in the development of the

child. Thus, this [C]ourt has held that the parental

obligation is a positive duty which requires affirmative

performance.

This affirmative duty encompasses more than a financial

obligation; it requires continuing interest in the child and a

genuine effort to maintain communication and association

with the child.

Because a child needs more than a benefactor, parental duty

requires that a parent exert himself to take and maintain a

place of importance in the child’s life.

Parental duty requires that the parent act affirmatively with

good faith interest and effort, and not yield to every

problem, in order to maintain the parent-child relationship

to the best of…her ability, even in difficult circumstances. A

parent must utilize all available resources to preserve the

parental relationship, and must exercise reasonable

firmness in resisting obstacles placed in the path of

maintaining the parent-child relationship. Parental rights

are not preserved by waiting for a more suitable or

convenient time to perform one’s parental responsibilities

while others provide the child with his or her physical and

emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

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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.” Id. at 856.

Notably, neither Section 2511(a) nor Section 2511(b) requires a court

to consider at the termination stage, whether an agency provided a parent

with reasonable efforts aimed at reunifying the parent with her children prior

to the agency petitioning for termination of parental rights. In re D.C.D., 629

Pa. 325, 342, 105 A.3d 662, 672 (2014). An agency’s failure to provide

reasonable efforts to a parent does not prohibit the court from granting a

petition to terminate parental rights under Section 2511. Id. at 346, 105 A.3d

at 675.

Instantly, the plain language of this Court’s March 31, 2017 order belies

Mother’s claim that the trial court erred when it declined to vacate the court’s

prior January 4, 2017 termination decree before conducting the October 4,

2017 remand hearing. This Court’s order provided the trial court with the

discretion to vacate its prior orders but did not direct the trial court to do so.

The procedural posture of this case at the time of this Court’s March 31, 2017

order was an appeal from the goal change/termination order/decree of

January 4, 2017. With its March 31, 2017 order, this Court intended to abstain

from ruling on that appeal until after the trial court had conducted the

permanency review hearing previously ordered on remand and to give the trial

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court the option at that time to vacate its January 4, 2017 termination decree

if the court found the evidence warranted vacation. Therefore, the trial court

had the opportunity to rule again on termination. Upon remand, the trial court

simply declined to vacate its prior termination decree. See In re Z.P., supra;

In re N.C., supra. Thus, Mother’s claim of error in this regard fails.

Additionally, Mother’s assertion the trial court improperly limited the

parties, at the October 4, 2017 permanency review hearing on remand, to

presenting only evidence the parties could have introduced at the original

permanency review hearing on March 16, 2016, also fails. The court’s decision

to restrict the evidence at the remand hearing put the parties in the same

respective positions they had occupied at the time of the original permanency

review hearing. Thus, the trial court did not err when it limited the parties’

evidence at the October 4, 2017 permanency review hearing. See In re Z.P.,

supra; In re N.C., supra. Therefore, Mother’s “snapshot” evidentiary claim

fails.

With respect to Mother’s termination of parental rights and goal change

claims, at the conclusion of the January 4, 2017 hearing, the court addressed

its decision to terminate Mother’s parental rights to Child and let stand its

previous goal change order, in part, as follows:

[W]e sit here at nineteen months and we have [a child] who

is fortunate to have landed in a place with someone familiar

because she’s there with [foster mother]. And then I come

to find out that [Child] has two older siblings and it sounds

like maybe one of the older siblings has a child now. And

so [foster mother] is taking care of a one-year-old.

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But really today needs to be about [Child] and really what’s

in [Child]’s best interests. It’s an unfortunate chain of

circumstances that have led us to this point. I don’t think

that anybody disputes that [Mother] initially sought help….

And that is commendable and indeed a strength.

However, during that time there was an incident that rose

to a level that that worker or workers had to report that

incident. That’s their responsibility as mandated reporters.

And even with that report that did not have to be the end of

it because once this matter was brought to court [Mother]

had every opportunity to cooperate and comply with those

[SCP] objectives. But one of the recurring themes that I

have heard and even today when [Mother] provided

testimony is that I really don’t think that [Mother] has

complete insight in the gravity of her actions when it comes

to a life of a child….

To talk about how [Mother] exhorted discipline, to have a

child cry after being physically spanked, to be hit with a belt

for a minute, as an adult that would be offensive. But when

you think of a [child] being exacted that type of punishment.

The way it resonates in a [child] is much different from an

adult. And what’s clear is [Child] still lives in the shadows

of what she’s seen or what she experienced in terms of

abuse.

Now we talked a lot about physical abuse, but the testimony

is does she suffer from medical neglect? Does she suffer

from sexual abuse of various persons? And at the end of

the day today [this] has to be about [Child].

What I have heard in terms of [Mother] gives me concern

and I don’t think that [Mother] has done what she needed

to do to ensure the return of her child. And what we see is

a recurring theme of [Mother] threatening people through

text messages, through comments, …those inappropriate

actions keep on surfacing.

So [Mother] is not where she needs to be to deal with [Child]

who has a traumatic history. Who has special needs that

have to be dealt with. And I think that was clear through

[Child’s trauma therapist]’s testimony.

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I find the testimony of the therapist…, [the CUA case

manager] who[’s] here today as a social worker, and [foster

mother] extremely credible. And I kind of feel that [Mother]

lacks insight as to her actions that happen[ed] then and

even as today through her testimony.

So with that in mind, with clear and convincing evidence this

[c]ourt will involuntarily terminate the rights of [Mother] as

to [Child].

The [c]ourt is making this ruling based on [23 Pa.C.S.A. §§]

2511[(a)(1), (a)(2), (a)(5), (a)(8),] and 2511[(b)],

considerations have been taken in. I do believe that [DHS]

has met their burden of proof.

I believe that it is absolutely in the best interest of [Child]

at this time for [Mother]’s parental rights to be terminated.

I believe that [Child] will not suffer any irreparable harm

because she has looked to [foster mother] to meet her day

to day needs for over a year and a half. I believe that the

fact that there were aggravated circumstances in this case

found by [a previous judge] and the fact…that he made the

order that reasonable efforts do not have to be made to

reunify [Mother]. … When I assumed the case that is the

disposition that was before the [c]ourt. And the [c]ourt

believes that that was appropriate in light of the totality of

the information taken in today.

I do believe that at this time that this matter should be

transferred to [the] Adoption Unit for further handling.

(N.T. Termination/Goal Change Hearing, 1/4/17, at 136-139). Additionally,

the court provided the following rationale, in relevant part, at the conclusion

of the October 4, 2017 remand hearing:

… The [SCP] objectives as I understand them [as of March

2016] w[ere] mental health anger management,

med[ication] management, [Mother]’s cooperation with

CUA and the parenting capacity evaluation and supervised

visits at that time had been suspended.

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In terms of [M]other’s level of compliance, in terms of

mental health, even given the opportunity, [M]other has not

provided treatment plans or progress reports that would

have been a part of the permanency testimony [as of March

2016]. I do have this note of [February 24], 2017, and it’s

very general saying that she was attending treatment,

[M]other, since [August 7], 2015. It does not indicate how

frequently she was to attend treatment, it does not say how

consistent she was with her treatment. It doesn’t say what

they were addressing in the context of her treatment, it’s

essentially not a treatment plan.

There is no indication that they were specially working on

anger management and to that extent I agree with [the

child advocate], given the circumstances that brought this

case into care where you have a mother that is setting forth

by her own admission, spanking, beating a child, I think that

anger management would have definitely be[en] one of the

primary concerns. I have no indication that [Mother] was

actively engaged in anger management services [as of

March 16,] 2016. So, at this point in time, [M]other’s level

was I would say at best minimally compliant.

Finally, there’s the issue of the CCTC treatment record or

the letter dated [March 15], 2016.

[The March 15th letter] clearly says at the end that CCTC is

recommending that visits between [Child] and [Mother]

continue to be suspended until [Mother] makes progress in

her own therapy, and until [Mother] is able to acknowledge

her role in [Child]’s trauma history, we’re sitting here today,

that still hasn’t been established.

* * *

On [March 16, 2016], we have no documentation to say that

[Mother] was actively engaged in treatment that could be

submitted to [Child’s trauma therapist] for reconsideration.

We don’t have—actually I have in this [March 15, 2016]

report, quite the contrary that [Mother] is indicating she

believes that [Child] is coached by [her foster mother], that

she believes that [Child] is a liar and a manipulator and

[Mother] takes very little ownership of anything that she

may have done that contributed to this matter coming forth.

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So I do not believe [as of March 16, 2016,] that [Mother]

had successfully or substantially addressed her goals so that

we can even consider reunification at that time. …

… [A]nd I submit to the parties here that based on the

evidence that was provided at the time of the involuntary

termination of parental rights [hearing] for [Child], that the

[c]ourt did not err in its ruling. That [M]other has not been

compliant, and that therefore the order will stand as to the

[in]voluntary termination. …

(N.T. Permanency Review Hearing, 10/4/17, at 54-57). The record in this

case tells a tragic story of continued neglect, abuse, and corruption of a small

child while in the care of a parent found to be a grave threat to the child. The

evidence showed that Mother’s continued presence in Child’s life is both

harmful and hostile to Child’s welfare. Child fears Mother and looks to foster

mother for daily support, parental guidance, and love. Thus, the record

supports the court’s orders confirming its prior decree terminating Mother’s

parental rights to Child and the prior order changing Child’s permanency goal

to adoption. See In re Z.P., supra; In re N.C., supra. Accordingly, we

affirm.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/18

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