In re J.D.D.

IN THE INTEREST OF: J.D.D., A MINOR

APPEAL OF: E.A.K., A/K/A E.D., MOTHER

J-S68030-13

No. 2001 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

Date: August 7, 2013

FILED: JANUARY 30, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree entered June 19, 2013,

in the Court of Common Pleas of Philadelphia County,

Family Court, at No(s): CP-51-AP-0000455-2012

BEFORE: BENDER, P.J., OTT, and STRASSBURGER^*, JJ.

MEMORANDUM BY OTT, J.:

E.A.K. a/k/a/ E.D. ("Mother") appeals from the decree entered on June 19, 2013, in the Court of Common Pleas of Philadelphia County, involuntarily terminating her parental rights with respect to her son, J.D.D., born in February of 2010.¹ We affirm.

On March 1, 2013, the Philadelphia Department of Human Services, Children & Youth Division ("DHS"), filed a petition for the involuntary termination of Mother's parental rights. The trial court held a hearing on the petition on June 19, 2013, during which the following witnesses testified: Tammy Jabarin, foster care social worker; Edwardo Villegas, DHS caseworker; Erica Williams, Psy.D., a psychologist who performed a bonding evaluation on Mother; Michele Robins, Ph.D., a psychologist who performed a parenting capacity evaluation on Mother; and Mother.

Because the parties are well acquainted with the details of this case, and the trial court has ably recounted the facts as revealed by the evidence of record, we adopt them herein. See Trial Court Opinion, 8/7/13, at 2-6.

By decree dated and entered on June 19, 2013, the trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). Mother timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Mother presents the following issues for our review:

1. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [M]other [ ] pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (3), (5), and (8) where the testimony presented did not establish by clear and convincing evidence that [M]other['s] [ ] parental rights should be terminated[?]

2. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [M]other [ ] pursuant to 23 Pa.C.S.A. [§] 2511(a)(2) where [M]other presented evidence that she has remedied her situation by taking parenting, drug and alcohol and mental health classes and has the present capacity to care for her child in her home[?]

3. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [M]other [ ] pursuant to 23 Pa.C.S.A. [§] 2511(a)(5) where evidence was provided to establish that [M]other is capable of caring for her child[?]

4. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [M]other [ ] pursuant to 23 Pa.C.S.A. [§] 2511(a)(8) where evidence was presented to show that [M]other is capable of caring forher child even though she was never provided with reasonable efforts for reunification with her child[?]

5. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [M]other [ ] pursuant to 23 Pa.C.S.A. [§] 2511(b) where evidence was presented that established the child[] had a bond with [Mother][?]

Mother's brief, at 7.

We review this appeal according to the following standard:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; R.I.S., [___ Pa. ___ , ___ , 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., [___ Pa. ___], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, , 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., , 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by therecord and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P.,_Pa. ___, ___, 47 A.3d 817, 826-827 (2012).

Termination of parental rights is governed by Section 2511 of the Adoption Act, which requires a bifurcated analysis.

Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. 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) (citing 23 Pa.C.S.A. § 2511). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Instantly, we conclude the trial court properly terminated Mother's parental rights pursuant to Section 2511(a)(2) and (b), which provide as follows:²

(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.A. §§ 2511(a)(2), (b).

To satisfy the requirements of Section 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

With respect to Section 2511(b), the requisite analysis is as follows:

Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In addition, we instructed that 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. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63.

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