Opinion
J-S14002-18 No. 3185 EDA 2017 No. 3186 EDA 2017
06-05-2018
IN THE INTEREST OF: T.D.N.T.R., A MINOR APPEAL OF: R.R., MOTHER IN THE INTEREST OF: L.M.R., A MINOR APPEAL OF: R.R., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 15, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000753-2017 Appeal from the Order Entered August 15, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000754-2017 BEFORE: OTT, J., MCLAUGHLIN, J., and RANSOM, J. MEMORANDUM BY OTT, J.:
Retired Senior Judge assigned to the Superior Court.
R.R. ("Mother") appeals from the decrees entered in the Court of Common Pleas of Philadelphia County on August 15, 2017, involuntarily terminating her parental rights to her son, T.D.N.T.R., born in February of 2015, and her daughter, L.M.R., born in April of 2011 (collectively, "Children"). Mother's court-appointed counsel has filed a petition for leave to withdraw as counsel and a brief pursuant to Anders v. California , 386 U.S. 738 (1967). We grant counsel's petition and affirm the decrees.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth the factual and procedural history of this case, which the testimonial evidence supports. As such, we adopt it herein. See Trial Court Opinion, 11/9/17, at 2-17.
By way of background, on April 17, 2015, the Department of Human Services ("DHS") became involved with Mother, E.B. ("Father"), and the Children upon receiving a report alleging that T.D.N.T.R. had fallen in the home and sustained nearly fatal injuries. Trial Court Opinion, 11/9/17, at 2-3, 5. Mother's explanation of the incident was "while she and Father were arguing, Father raised his hand as if to strike her while she was holding the [c]hild and she dropped the [c]hild on a mattress to protect him[.]" Id. at 3. On April 20, 2015, DHS met with Mother who stated, "Mother and Father argued and Father physically assaulted her while she was holding T.D.N.T.R.; that she dropped him onto a mattress during the incident and later fell on top of him as Father continued to assault her[.] . . ." Id. at 4.
T.D.N.T.R.'s diagnosis was "acute or chronic bilateral subdural hemorrhages, multilayer retinal hemorrhages in both eyes, a closed right rib fracture, and a cervical spine injury, most likely due to abusive head trauma in the absence of accidental trauma to account for the injuries." Id. at 6. On April 21, 2015, DHS received a supplemental report alleging that, "the [c]hild was in critical condition based on suspected abuse; that he had internal bleeding from old and new injuries; and that it was not known at that time if the [c]hild would survive." Id. at 5. The report alleged that Mother's explanation did not match T.D.N.T.R.'s injuries. Id. at 3. Rather, the report alleged that, due to his injuries, T.D.N.T.R. "would had to have fallen from a waist-high height onto a hard surface." Id.
With respect to the older female child, L.M.R., who was nearly four years old at the time of the incident involving T.D.N.T.R., DHS learned from hospital staff on April 18, 2015, that she did not appear to have any injuries. Id. at 3. However, she "appeared to have some developmental delays and suffered from non-verbal autism[.]" Id. at 3-4.
The Children were placed in protective custody on April 22, 2015. T.D.N.T.R. was discharged from the hospital on April 28, 2015, and he was placed in a foster home separate from his sister, L.M.R. The Children were adjudicated dependent on May 13, 2015. On November 10, 2015, the trial court found that aggravating circumstances existed as to Mother and Father.
The Community Umbrella Agency ("CUA"), Northeast Treatment Center ("NET"), developed the following Single Case Plan ("SCP") objectives for Mother: attend the Children's medical appointments; participate in the supervised visitation schedule; schedule an assessment with the Behavioral Health System ("BHS"); participate in a domestic violence program; participate in and completing parenting classes; and comply with all court orders and recommended programs. Id. at 8. The CUA subsequently specified that Mother explore services for L.M.R. at Children's Crisis Treatment Center ("CCTC") and participate in a domestic violence program at Women in Transition. Id. at 9-10.
Commencing in October of 2015, permanency review hearings occurred approximately every three months. At the permanency review hearing in May of 2016, the trial court found that T.D.N.T.R. received early intervention services, occupational therapy, and physical therapy. Id. at 13. Further, L.M.R. received occupational therapy, physical therapy, and trauma therapy. Id. at 12-13. At the next hearing in August of 2016, the court found that "L.M.R. receives special education." Id. at 13.
The Honorable Allan L. Tereshko presided over the underlying dependency matter and the subject involuntary termination proceeding.
On April 4, 2017, DHS received another supplemental report alleging that Father "had made a written statement that day stating that on 4/17/2015, while engaging in an incident of domestic violence with Mother, T.D.N.T.R. was thrown from Mother's arms and hit his head on a piece of furniture and then the floor." Id. at 16 (citation to record omitted).
On July 27, 2017, DHS filed petitions for the involuntary termination of Mother's and Father's parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). A hearing occurred on the petition regarding Mother on August 15, 2017, during which the Children were represented by a Child Advocate and a Guardian Ad Litem ("GAL"). DHS presented the testimony of Erica Williams, Psy.D., the director of Forensic Mental Health Services, who performed a parenting capacity evaluation of Mother on February 23, 2017; and Beverly Ford-Green, the CUA case manager. Mother testified on her own behalf. In addition, Mother was represented by Anthony J. Voci, Jr., Esquire, whom she privately retained.
At the commencement of the proceedings, Father's counsel requested to withdraw his representation, which the trial court granted. Therefore, the court re-scheduled the hearing on the petition with respect to Father for January 30, 2018. Trial Court Opinion, 11/9/17, at 2. The record certified for this appeal does not reveal the court's disposition of that petition.
The Child Advocate and the GAL argued in support of the involuntary termination of Mother's parental rights to the Children during the hearing. Neither has filed a brief in these appeals.
Dr. Williams testified that, in conducting the parenting capacity evaluation, she learned that Mother had participated in two different interviews during the investigation of T.D.N.T.R.'s nearly fatal injuries, and that she "was adamant that it was an accident." N.T., 8/15/17, at 32. She testified that at the time of the parenting capacity evaluation on February 23, 2017, Mother "was able to identify [the cause of the incident] [as] active aggression [on Father's] part, but she still is not able to fully explain the process of events. And when she discusses it, she limits her memory of it. She doesn't respond to follow-up questions. She's not able to plan differently, just to assert that she's learned her lesson and she would do it differently, but she can't explain beyond that." Id. at 36-37.
Dr. Williams opined that Mother "did not have the capacity for safety and permanency at the time of the evaluation, particularly due to the ongoing safety concerns." Id. at 47. She summarized as follows.
[P]rior to the precipitating event [on April 17, 2015,] [T.D.N.T.R.] somehow suffered injuries that were healing and nobody was able to identify how those injuries occurred, neither [Mother] nor [Father]. Then the events occurred, even though she was aware of his violent temper, they continued to reside together. He, I later found out from him, swung at her in a smacking motion and that's what knocked [T.D.N.T.R.] out of her arms. She provided misinformation at the time of medical intervention, which immediately places the child at risk for her not to provide the true sequence of events, particularly when you're providing emergency care. So that judgment to not provide the accurate information is a concern. And then moving on from there, she continues to minimize the events and not see [Father] as capable of violence going forward. She was unable to recall things that happened, was able to say that she had a role, but couldn't identify the role of what she could do differently. She was comfortable with the [C]hildren going back with [Father] and she was not able to even identify any of the concerns raised by CUA regarding her behaviors that placed the [C]hildren[] . . . at ongoing risk.Id. at 64-65.
Further, with respect to L.M.R., Dr. Williams testified that, while in the care of Mother, she presented with "gross developmental delays. However, outside of the care of . . . [M]other, she has thrived and those delays have all but disappeared." Id. at 41.
To assist her in developing the capacity to parent, Dr. Williams made the following recommendations, in part.
1. [Mother] continue in individual therapy. It is recommended this treatment occur with a licensed individual with training and experience in working with individuals involved in the physical abuse of a child. In addition to identification and addressing of mental health needs, it is important focus include supporting [Mother] in developing an accurate narrative of the events leading to her son's near fatal injuries as well as when he obtained his prior injuries. Once events are identified it is imperative therapy focus on exploring the behavior cycles related to the events, identification of role in the events and plan to recognize, manage and prevent future behaviors.Parenting Capacity Evaluation, 2/23/17, at 15 (DHS Exhibit 6).
2. If reunification remains the goal, it is important [Mother] increase her engagement in [L.M.R.]'s medical and mental health appointments.
By decrees entered on August 15, 2017, the trial court terminated Mother's parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). On September 14, 2017, Mother, acting pro se, timely filed notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte.
Mother asserted the following errors in her concise statement.
1. The Trial Court (Family Division) erred and abused its discretion in denying my 6th Amendment right when I requested a continuance in order to have representation from another Attorney. This was requested so that I would have the opportunity to be represented by an Attorney who would represent my family's best interests. The attorney, Anthony Voci, who represented me at the hearing, never communicated with me in the four months preceding my hearing; furthermore, he was tardy (by 2 hours) and initially reluctant to represent me as he expressed this to me outside the courtroom. Therefore this already demonstrated a conflict of interest. Nevertheless, the court ignored my request to fair representation and proceeded with the hearing with the above attorney, who had not prepared to represent me for my . . . hearing on August 15, 2017.Mother's Rule 1925(b) statement, 9/14/17.
2. The Trial Court (Family Division) erred in finding that DHS, NET CUA 1 (Beverly Ford-Green), Support Center for Child Advocates, (Guardian Ad Litem Jerry Desiderato, Attorney Irene Levy), City Solicitor (Megan Fitzpatrick), ATA (Evaluator Erica Williams) met their burden of proof by clear and convincing evidence that terminating my parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8).
3. The Trial Court (Family Division) erred in finding that DHS, NET CUA 1 (Beverly Ford-Green), Support Center for Child Advocates, (Guardian Ad Litem Jerry Desiderato, Attorney Irene Levy), City Solicitor (Megan Fitzpatrick), ATA (Evaluator - Erica Williams) met their burden of proof by clear and convincing evidence that terminating my parental rights would best meet to the developmental, physical and emotional needs and welfare of [the Children] pursuant to 23 Pa.C.S.A. § 2511(b).
On October 12, 2017, this Court granted the motion to withdraw as counsel filed by Mother's trial attorney, Attorney Voci, and directed the trial court to appoint substitute counsel within ten days. By order dated October 17, 2017, the trial court appointed Michael Graves, Jr., Esquire, as Mother's appellate counsel. The trial court filed its opinion pursuant to Pa.R.A.P. 1925(a) on November 9, 2017.
On January 21, 2018, Attorney Graves filed a petition for leave to withdraw as counsel and an Anders brief, which we must address before reviewing the merits of this appeal. Commonwealth v. Rojas , 874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith , 700 A.2d 1301, 1303 (Pa. Super. 1997)).
In re V.E., 611 A.2d 1267 (Pa. Super. 1992), this Court extended the Anders principles to appeals involving the termination of parental rights. In Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), our Supreme Court explained, "the major thrust of Anders . . . is to assure that counsel undertakes a careful assessment of any available claim that an indigent appellant might have." Id. at 358. The Court stated that this "is achieved by requiring counsel to conduct an exhaustive examination of the record and by also placing the responsibility on the reviewing court to make an independent determination of the merits of the appeal." Id.
In order to be permitted to withdraw, counsel must meet three procedural requirements: 1) petition for leave to withdraw and state that, after making a conscientious examination of the record, counsel has determined that the appeal is frivolous; 2) furnish a copy of the Anders brief to the appellant; and 3) advise the appellant that he or she has the right to retain private counsel or raise, pro se, additional arguments that the appellant deems worthy of the court's attention. See Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citation omitted). With respect to the third requirement, this Court has held that counsel must "attach to their petition to withdraw a copy of the letter sent to their client advising him or her of their rights." Commonwealth v. Millisock , 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, an Anders brief must comply with the following requirements:
(1) provide a summary of the procedural history and facts, with citations to the record;Santiago , 978 A.2d at 361.
(2) refer to anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is frivolous; and
(4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Instantly, Mother's counsel filed a petition to withdraw which complies with the foregoing procedural requirements. In addition, counsel filed a brief, which includes a summary of the history and facts of the case, potential issues that could be raised by Mother, and his assessment of why those issues are meritless, with citations to relevant legal authority. Therefore, Mother's counsel has satisfied the requirements of Anders and Santiago.
We next proceed to review the issue outlined in the Anders brief. In addition, we must "conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel." Commonwealth v. Flowers , 113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
In the Anders brief, counsel raises the issue of whether DHS satisfied its burden of proof to terminate Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Specifically, counsel states that Mother complied with some of her SCP objectives.
To the extent that the Anders brief raises an issue concerning the permanency review orders changing the Children's goals to adoption, we conclude that it is waived because Mother did not file a notice of appeal from those orders, and she did not assert any errors regarding them in her concise statement of errors complained of on appeal. See Dietrich v. Dietrich , 923 A.2d 461, 463 (Pa. Super. 2007) (stating that when an appellant filed a Rule 1925(b) statement, any issues not raised in that statement are waived on appeal).
We review this issue according to the following standard.
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).
The termination of parental rights is governed by Section 2511 of the Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). In addition, we need only agree with the trial court as to any one subsection of Section 2511(a), as well as Section 2511(b), in order to affirm. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
In this case, the record evidence supports the court's decision to terminate Mother's parental rights pursuant to the following statutory provisions:
(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).
Based on this disposition, we need not review the decrees pursuant to Section 2511(a)(1), (5), and (8).
This Court has explained that the moving party must produce clear and convincing evidence with respect to the following elements to terminate parental rights pursuant to Section 2511(a)(2) : (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. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).
Pursuant to Section 2511(a)(2), parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002). 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. Further, 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. Id. at 337.
With respect to Section 2511(b), this Court has stated that, "[i]ntangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial court "must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond." Id. (citation omitted). However, "[i]n cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists. The extent of any bond analysis, therefore, necessarily depends on the circumstances of the particular case." In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).
In this case, the trial court stated on the record in open court at the conclusion of the testimonial evidence, as follows.
[T]he issue of credibility looms very large since we have conflicting versions of what has happened over the last 28 months.
[A]lthough counsel says that [M]other admits that she didn't tell the truth in the beginning, it was no such admission, because she still maintained the narrative that she fell on the child while the child was in the bed. And she now describes it as backed up on the child. Her earlier description was fell on the child.
That's disturbing to the [c]ourt, because it supports a person who has not acknowledged the reality of what occurred and until today, although she voices a certain narrative, the narrative hasn't changed. That presents an issue for the [c]ourt in everything else that [M]other says.
And after having listened to [M]other and having had jurisdiction over this case from the beginning, I believe, I conducted the aggravated circumstances hearing, heard the testimony from the expert witnesses. And this child was not a child who fell onto a bed and parent toppled over onto the child. This child has been the victim of a consistent pattern of abuse and violence. No one's addressed the prior issue of the healing injuries of the child, other than [M]other's not credible attempt to explain that it occurred during an incident with the car seat.
It's a continued narrative, which [M]other refuses to accept the reality of the brutality that was inflicted upon this child while in her care in the care of the father. While she may not have been the perpetrator of the actual violence, she stood by and watched it occur[], knew it occurred, when it was occurring. And even today, attempts to paint a different picture, paint a picture of a man who has been found to have been abusive to a completely helpless infant, suggesting that he may be an appropriate caregiver for the child.
It engages the question whether [M]other has the ability to perceive the reality of threats to her children. And being unable to perceive the reality of threats to her children, she certainly could never be in a position of being charged with the safety of her children.
As to the evidence of her addressing some of the goals, while [M]other testified that she has been receiving this domestic violence [program], other than her testimony, I have no evidence of it. Today's the day when you bring in your evidence. Today's the day of your hearing. Today is the day you get to present all you have to make your case. And other than . . . what could be considered as self-serving testimony, I [have] seen or heard nothing independent of that to substantiate it.
But it goes to the issue of her treatment for her issues, the domestic violence. There is no evidence that she completed the child abuse training. There is no evidence that she ever engaged
in therapy which would allow her to acknowledge the child abuse that brought this case in and is now one of the central reasons why the child[ren] remain in care.N.T., 8/15/17, at 124-128.
The evidence is clear and convincing that she has not remedied the issues that brought these children into care. The limited attempt at securing some domestic violence goes to the [M]other's issues that brought the children into care. It doesn't go to the issue of her putting herself in a position to care for these children or provide safety, well-being for these children going forward.
The evidence is clear and convincing that she has no ability to remedy the issues that brought the children into care going forward. The inability to remedy the issue is premised on the fact that she fails to recognize what issues actually brought these children into care.
. . .
She continued to hold out a narrative that the . . . perpetrator of the abuse to [T.D.N.T.R.] is now potentially able to care for these children and keep these children safe. That suggests a certain disconnect from reality. . . . The disconnect from reality in suggesting that as of today, even knowing that the father at some point admitted that the story they told originally about the child falling on the bed was a complete lie.
. . .
Mother's testimony supports the court's findings. Mother acknowledged that she did not previously provide full, complete, accurate, and truthful information regarding how T.D.N.T.R. was injured in April 2015 because she "was scared." N.T., 8/15/17, at 102. She testified on direct examination,
Q. What were you scared of?
A. [B]ecause my son had injuries and I knew in my heart that it was an accident.
Id. at 102-103.
. . .
A. I knew that when he went to get medical attention . . . [h]e was well-taken care of and . . . they figured it out, you know, what his injuries were and he was able to make medical progress.
With respect to how T.D.N.T.R.'s injuries occurred, she testified as follows on direct examination:
Q. [Y]ou said that an argument took place between you and [Father], correct?Id. at 105-106.
A. Yes.
Q. And you said in the past that he became aggressive towards you, correct?
A. Yes.
Q. What happened after [Father] became aggressive towards you while you were holding [T.D.N.T.R.]? What happened to your son?
A. I remember placing him on the bed and [Father], at that time, . . . he wasn't near me at the time, but at some point, I accidentally moved back on my son. And that's how he got injured.
THE COURT: I'm not sure I understand what you're saying. You moved back on your son, what does that mean?
[A.] That means that I had rolled back on my son in the bed, just perceived trying to -
THE COURT: It's the same story you told the [c]ourt, you fell on top of the child when the child was in the bed, correct?
[A.] I wouldn't say I fell, but I moved back on him.
In her cross-examination by the GAL, Mother testified regarding T.D.N.T.R.'s injuries before April 17, 2015, as follows.
Q. [T.D.N.T.R.] had injuries prior to this incident, is that correct?Id. at 109-110.
A. Yes.
Q. Where did they come from?
A. There was an issue with his car seat. I took him to CHOP [Children's Hospital of Philadelphia] and I remember trying to take him out of his car seat and I didn't realize the restraints were on and he fell back. But CHOP examined him and saw that there were no injuries.
Q. Was he injured as a result of [F]ather's abuse prior to this incident?
A. No.
In addition, Mother testified that Father should have a relationship with the Children, and that they may be safe in his care, as follows.
Because he is a good father and he advocates for his children. He loves his children and he always makes them a priority. And despite what happened between myself . . . and him, that we no longer have a romantic relationship. We -- when I say working relationship, we work together for the interest of the children. And working relationship means co-parenting.Id. at 112.
Q. You believe the [C]hildren would be safe in [F]ather's care?
A. They have been. I understand he's been in unsupervised visitation for four months with no issue. He's had them for entire weekends almost with no issue.
Ms. Ford-Green, the CUA caseworker, testified that Father never had unsupervised visits with the Children. N.T., 8/15/17, at 115. She explained that the visits were supervised at his sister's house. However, since April 2017, Father's supervised visits have occurred at the agency because, as discussed above, he "finally confessed" that he "hit [Mother] and that [T.D.N.T.R.] fell from her hand and on a hard surface." Id. at 115-116.
Ms. Ford-Green's testimony likewise supports the trial court's findings regarding Mother's failure to complete her domestic violence and child abuse SCP goals. Ms. Ford-Green testified that Mother completed the parenting program at ARC, and that she was consistent with her weekly two-hour supervised visits at the agency. Id. at 77, 79. However, Mother did not permit Ms. Ford-Green to assess her home. Id. at 85. In addition, although Mother attended a domestic violence program at Temple University, Ms. Ford-Green testified that Mother refused to tell her whether she was consulting with a licensed therapist as recommended by Dr. Williams. Id. at 90-91, 93. Therefore, Ms. Ford-Green testified that Mother did not comply with obtaining domestic violence and child abuse services. Id. at 77, 85.
Mother testified that, for the past two years, she has attended the requisite domestic violence program at Women in Transition. Id. at 99. On cross-examination by DHS, Mother acknowledged that Dr. Williams reviewed documentation from Women in Transition in conducting the parenting capacity evaluation. Id. at 108. Mother testified that she is "not sure" if she provided Ms. Ford-Green with the information she requested regarding her domestic violence therapy. Id. at 110-111.
In addition, Mother acknowledged that she has not complied with her SCP objective to attend the Children's medical appointments. Id. at 111, 114. Specifically, Mother testified on cross-examination by the Child Advocate:
Q. Have you ever attended any of [T.D.N.T.R.'s] medical appointments?Id. at 114. In addition, Mother testified on cross-examination by the GAL:
A. I have in the past when my work schedule allowed. Just because of my schedule, I pretty much allow his father to take over, because he has more flexible time.
Q. Did you attend any of [L.M.R.'s] medical appointments?Id. at 111-112.
A. No, I couldn't make it because of my work schedule.
Q. Did you attend any of her educational appointments?
A. Because of my work schedule, I couldn't make it, but I did speak with the teacher or the counselor afterwards.
Based on the foregoing, we conclude that the testimonial evidence supports the trial court's findings, and we discern no abuse of discretion by the court in terminating Mother's parental rights pursuant to Section 2511(a)(2). The record demonstrates that the repeated and continued incapacity, abuse, and/or refusal of Mother to (1) reveal the full truth about the manner in which T.D.N.T.R. sustained his nearly fatal injuries; (2) acknowledge Father's risk to the safety of the Children; and (3) obtain domestic violence and child abuse counseling from a licensed therapist, have caused the Children to be without essential parental care, control or subsistence necessary for their physical or mental well-being. Further, with respect to L.M.R., in light of her gross developmental delays while in Mother's custody and her significant improvement while in foster care, Mother's repeated and continued incapacity and/or refusal to attend any of L.M.R.'s medical or educational appointments has caused her to be without essential parental care, control or subsistence necessary for her physical or mental well-being. Finally, the causes of Mother's incapacity, abuse, and/or refusal cannot or will not be remedied insofar as the Children have been in placement since April of 2015, and Mother's parental incapacity continued to persist up through and including the termination hearing 28 months later.
With respect to Section 2511(b), we are governed by the following settled principles.
While a parent's emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child. In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The mere existence of an emotional bond does not preclude the termination of parental rights. See In re T.D., 949 A.2d 910 (Pa. Super. 2008) (trial court's decision to terminate parents' parental rights was affirmed where court balanced strong emotional bond against parents' inability to serve needs of child). Rather, the orphans' court must examine the status of the bond to determine whether its termination "would destroy an existing, necessary and beneficial relationship." In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). As we explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),
[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, this Court stated that the trial court should consider the importance of continuity of relationships and whether any existing parent-child bond can be severed without detrimental effects on the child.In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Furthermore, our Supreme Court has stated that, "[c]ommon sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." In re T.S.M., supra at 268. The Court directed that, in weighing the bond considerations pursuant to Section 2511(b), "courts must keep the ticking clock of childhood ever in mind." Id. at 269. The T.S.M. Court observed that, "[c]hildren are young for a scant number of years, and we have an obligation to see to their healthy development quickly. When courts fail . . . the result, all too often, is catastrophically maladjusted children." Id.
At the time of the subject proceedings, the Children were two and a half and six years old, respectively. As best we can discern, they were in separate foster homes. The testimony of Ms. Ford-Green supports the following findings by the trial court.
This [c]ourt heard credible evidence by CUA [c]ase [m]anager, Ms. Ford-Green, who testified that the Children were positively bonded to the Foster Parents. They both look to their foster parents for safety and to meet their needs. She also observed that a bond exists between Mother and [L.M.R.], but it is not a
parental bond, [and] instead resembles a bond with an aunt who visits and brings food and gifts. She opined that Mother is not bonded to [T.D.N.T.R.], at all. She has also observed Mother's interaction with the Children at the supervised visits, noting that Mother would pay more attention to her daughter than her son, and she had to be prompted to attend to the Children. Ms. Ford-Green noted that the Children need the safety and security that Mother cannot provide, and they would not suffer irreparable harm if Mother's parental rights were terminated. . . .Trial Court Opinion, 11/9/17, at 33-34. Accordingly, we discern no abuse of discretion pursuant to Section 2511(b).
The [c]ourt found credible the evidence that the Children were not bonded to Mother and do not ask to be reunited with her. Therefore, this [c]ourt reasoned that the Children would not suffer irreparable harm if Mother's parental rights were terminated. . . .
Finally, we observe that Mother alleged in her concise statement that the trial court violated her rights under the Sixth Amendment of the United States Constitution by denying her request for a continuance on the day of the hearing for the purpose of retaining another attorney. We review the trial court's denial of Mother's request for a continuance for an abuse of discretion. See Commonwealth v. Boxley , 948 A. 2d 742, 746 (Pa. 2008).
In its Rule 1925(a) opinion, the trial court properly stated, "Constitutional rights in proceeding[s] to terminate parental rights derive from [the] due process clause of [the] Fourteenth Amendment, rather than from [the] Sixth Amendment." Trial Court Opinion, 11/9/17, at 28 (citations omitted). We have explained, "Due process requires nothing more than adequate notice, an opportunity to be heard, and the chance to defend oneself in an impartial tribunal having jurisdiction over the matter." In re J.N.F., 887 A.2d 775, 781 (Pa. Super. 2005).
The trial court aptly explained that, at the beginning of the subject proceedings, Mother sought to replace Attorney Voci, "stating she had not been able to reach him by telephone and he had not responded to her last text to him in April, so she fired him that morning." Trial Court Opinion, 11/9/17, at 29. In response, Attorney Voci stated to the court, "When I arrived this morning, I greeted her and she indicated that she no longer wished me to represent her in this case. As an officer of this [c]ourt, I can also tell the [c]ourt that I have not been paid in full, but I'm ready, willing and able to proceed if the [c]ourt wishes to today." Id. (citing N.T., 8/15/17, at 19-20). We further observe that Attorney Voci stated to the court, "At the last listing of this case . . ., we met in the room and [I] made very clear [to Mother] as to what was being proposed in terms of the termination of parental rights. I also made it clear what I believed was the proper course of action. My client [has] had no contact with me whatsoever since the last listing of the case. . . ." N.T., 8/15/17, at 19.
The court found on the record in open court that Mother's request was an "unmasked attempt[] to delay and obfuscate these proceedings. There was a representation at the last listing that there would be certain witnesses, certain documents [presented at the hearing]. . . . [W]e're now four months out from the original listing and there was enough time and enough consideration to allow this case to be prepared for trial. The [C]hildren have been in placement for 28 months. The matter will proceed." N.T., 8/15/17, at 24-25. Upon careful review, we discern no abuse of discretion.
In its Rule 1925(a) opinion, the court further emphasized that, "during the entire term of this dependency case regarding her Children, Mother was represented by three attorneys," including Attorney Voci, and that she was represented in a competent manner by them. Trial Court Opinion, 11/9/17, at 29.
Based upon our independent review of Mother's claims in light of the record evidence, we conclude that she is not entitled to relief. Moreover, the record does not reveal any non-frivolous issues overlooked by counsel. See Flowers , 113 A.3d at 1250. Accordingly, we grant counsel's motion to withdraw, and we affirm the decrees involuntarily terminating Mother's parental rights.
Motion to withdraw granted. Decrees affirmed.
Judge McLaughlin joins the memorandum.
Judge Ransom concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/5/18
Image materials not available for display.