In re

IN THE INTEREST OF: L.F.B.,

L.W.B., JR., T.E.M.B. AND T.L.B., MINOR CHILDREN

APPEAL OF: T.H., MOTHER

J-S81002-16

No. 3572 EDA 2015

SUPERIOR COURT OF PENNSYLVANIA

DECEMBER 22, 2016

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decrees entered October 19, 2015

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): 51-FN-379078-2009, CP-51-AP-0000424-2012, CP-51-AP-0000425-2012, CP-51-AP-0000426-2012, CP-51-AP-0000427-2012, CP-51-DP-0000012-2011, CP-51-DP-0000013-2011, CP-51-DP-0000014-2011, CP-51-DP-0000015-2011

BEFORE: BOWES, MOULTON, JJ., and STEVENS, P.J.E.^*

MEMORANDUM BY BOWES, J.:

T.H. ("Mother") appeals from the decrees involuntarily terminating her parental rights to her four children pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).¹ We affirm.

Mother and Father were never married, but resided together with the children during the relevant periods. L.F.B. was born during July 2007. Her twin brothers, L.W.B., Jr., and T.L.B., were born one year later. Mother gavebirth to T.E.M.B. during September 2010, immediately after the Philadelphia Department of Human Services ("DHS") became involved with the family.

During August 2010, DHS received allegations that Mother's residence was unfit, cluttered, and infested with bed bugs, and it subsequently transitioned the family to a shelter. On January 3, 2011, DHS received a General Protective Services ("GPS") report that the shelter had evicted Father due to his aggressive behavior toward the staff members. The GPS report also stated that the children lacked appropriate parenting and supervision under Mother's sole care due to her limited cognitive capabilities, her epileptic condition, and the drowsiness caused by her seizure medication. On January 4, 2011, DHS visited the shelter, where they observed that Mother was drowsy and overwhelmed with caring for the children. DHS also observed that the children were malodorous and inappropriately dressed for winter. That same day, DHS obtained an Order of Protective Custody ("OPC") for the four children and placed them in what is now their pre-adoptive foster home.

On January 13, 2011, the trial court adjudicated L.F.B., L.W.B., Jr., T.L.B., and T.E.M.B. dependent and committed them into the custody of DHS. On February 3, 2011, DHS established a Family Service Plan ("FSP"), which set the goal of reunification with L.F.B., L.W.B., Jr., T.L.B., and T.E.M.B. Mother's FSP goals were to: (1) learn and instill expected age-appropriate behavior in the children; (2) set appropriate expectations for thechildren; (3) participate in a mental health evaluation; (4) comply with all treatment recommendations, therapy and/or medications; (5) sign authorization forms; (6) maintain regular contact and visitation with L.F.B., L.W.B., Jr., T.L.B., and T.E.M.B.; (7) attend parent counseling; (8) participate in referrals from Achieving Reunification Center ("ARC"); (9) submit to a neurological evaluation; and (10) comply with the recommended treatments.

Several permanency review hearings were held between 2011 through 2014. Mother's compliance with the FSP was mixed, but her progress toward reunification with the children was deficient. On May 24, 2012, DHS revised the FSP goal to adoption, and three months later, it filed petitions to involuntarily terminate her parental rights. The trial court denied the petitions without prejudice, and we affirmed, holding that there was not clear and convincing evidence that termination was in the children's best interest. See In Re L.B., 93 A.3d 514 (Pa.Super. 2013) (unpublished memorandum filed December 19, 2013).

The dependency proceedings continued with little progress. On October 20, 2014, DHS filed fresh petitions to involuntarily terminate Mother's parental rights. As it relates to Mother's first issue leveled on appeal, we briefly summarize the procedural history, which advanced in fits and starts over the ensuring year. On October 21, 2014, DHS sent the notice of the termination hearing and a copy of the petition to the parties attheir last known address. The notice informed the parties that the termination hearing was scheduled for November 18, 2014. At that hearing, Mother and Father appeared with their respective counsel, but the matter was continued to February 3, 2015. On February 3, 2015, Mother failed to attend the hearing, but her attorney, Neil M. Krum, Esquire, appeared on her behalf. The trial court took testimony after determining that Mother received proper notice. The trial court continued the matter to March 17, 2015 and April 28, 2015. Mother neglected to attend either proceeding but Attorney Krum, again, appeared on her behalf. On May 18, 2015, the case was transferred to a different trial court. Once more, Attorney Krum appeared for Mother when the court entered an order rescheduling the matter to October 19, 2015.

On October 19, 2015, the trial court held a hearing de novo on the petition to terminate Mother's parental rights. Again, she failed to appear. Attorney Krum objected that Mother was not properly served with notice of the instant termination hearing. After determining that all parties received proper notice of the hearing, the trial court proceeded without Mother. DHS presented the testimony of Tamisha Richardson, an ongoing caseworker at DHS, and Trina Anderson, the clinical case manager that supervisedvisitations. Following the hearing, the trial court terminated Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).²

On November 18, 2015, Mother filed a single notice of appeal from the four separate decrees terminating her parental rights to each child, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).³ Mother raises the following issues.

1. Did the court below err in ruling that Appellant/Mother, T.H., had been properly served, as required by statutes and court rules, and in denying Due Process to Appellant T.H., Mother, as guaranteed by the Constitutions of the United States and of the Commonwealth of Pennsylvania?

2. Did the court below err in finding that the Department of Human Services (hereinafter, "DHS") had met its burden in proving grounds under 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8), by "clear and convincing evidence"?

3. Did the court below err in finding that DHS had met its burden to prove that termination would be in the child's best interests, under §2511(b)?

Mother's brief at 4.

In reviewing an appeal from the termination of parental rights, we review the appeal in accordance with 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 (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., 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 (2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 (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 the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (2012).

The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).

Moreover, we have explained that:

[t]he standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue."

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).

In her first question for review, Mother argues that the trial court erred in finding that she was properly served with notice of the October 19, 2015 termination hearing when there was no evidence that she was given actual or constructive notice of the hearing or that DHS made a "good faith effort" to provide her with notice. Mother's brief at 10-11. Mother points out that, since she was absent from the prior hearing on May 18, 2015, she did not receive actual notice that the matter was continued to October 19, 2015. Id. at 8. Mother submits that, even though Attorney Krum was present, he was not required to serve her notice or contact her because it is the burden of DHS to effectuate service. Id. at...