Opinion
1735 EDA 2021 1736 EDA 2021 J-S06001-22
04-05-2022
IN THE INTEREST OF: K.P., A MINOR APPEAL OF: S.P., MOTHER IN THE INTEREST OF: K.K.P., A MINOR APPEAL OF: S.P., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 2, 2021, in the Court of Common Pleas of Philadelphia County, Juvenile Division at No(s): CP-51-DP-0000429-2015.
Appeal from the Decree Entered August 2, 2021, in the Court of Common Pleas of Philadelphia County, Juvenile Division at No(s): CP-51-AP-0000090-2020.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM
KUNSELMAN, J.
S.P. (Mother) appeals the decree involuntarily terminating her rights to her 10-year-old daughter, K.K.P. (the Child), pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (2) and (b). Mother also appeals the order changing the goal of the dependency proceedings from reunification to adoption, pursuant to the Juvenile Act. See 43. Pa.C.S.A. § 6351(f). After review, we affirm the termination decree and dismiss the goal change appeal as moot.
K.P. (Father) voluntarily relinquished his parental rights.
The relevant factual and procedural history is as follows: The Child originally came to the attention of the Philadelphia Department of Human Services (DHS) in 2015, when Father was awarded sole custody and received support services. A few years later, when the Child was 7 years old, Father communicated to DHS that he could no longer care for the Child. At the time, Mother was incarcerated. In September 2018, the juvenile court adjudicated the Child dependent. After a family placement failed, the Child eventually entered general foster care. Id. at 32.
The reason for Mother's incarceration was not revealed during the hearing, but apparently Mother was not incarcerated for long.
The trial court instituted a Single Case Plan (SCP) to aid Mother with her reunification. The SCP objectives were: to cooperate with the Community Umbrella Agency (CUA); to attend drug and alcohol treatment; to take random drug screens; to complete parenting classes; to engage in housing support and financial counseling; and to visit with the Child.
The court held regular permanency review hearings, where it determined Mother only made minimal progress toward her reunification objectives. Mother refused to participate in parenting classes, housing support, or financial counseling, despite having the option to do so virtually. Mother had resided in Interim House, a shelter that offered drug and alcohol treatment, but she left without completing the program.
Ultimately, DHS filed a petition to terminate Mother's rights on February 5, 2020. The hearing was delayed, at least in part, due to the Covid-19 pandemic. The trial court held the termination hearing on August 2, 2021; the same day, the court conducted a hearing to change the goal of the dependency proceedings from reunification to adoption.
Over Mother's objection, the caseworker testified about Mother's alleged drug use, specifically that Mother had tested positive for phencyclidine (PCP) on more than one occasion. After Mother left Interim House in 2019, Mother provided negative drug screens. Apparently, all these negative screens occurred over the course of one month in the summer of 2020. Around December 2020, Mother moved from Philadelphia to Virginia, with her other child and that child's father. CUA could not coordinate with Virginia to offer Mother similar reunification services.
The caseworker testified that Mother's participation with her reunification plan often depended on her mood. If Mother felt like being cooperative, she would participate. Other times, Mother would not respond to texts, calls, or voicemails. At one point, Mother's phone was disconnected, and her number changed.
Mother's contact with the Child was also minimal. Due to Mother's relocation, and the Covid-19 pandemic, virtual visitations were arranged. However, the visits were suspended because Mother either failed to appear or failed to confirm her participation 24 hours in advance. The caseworker explained that a new referral had to be submitted after Mother missed three visits. In July 2021, Mother sought to resume visitations with the Child, but visitations were not reinstituted before the August 2021 termination hearing.
At the time of the termination hearing, the Child had been without parental care for about 35 months. The Child had lived in the pre-adoptive foster home for approximately 9 months, since November 2020. The court appointed the Child legal counsel, in accordance with 23 Pa.C.S.A. § 2313(a); additionally, the Child's best interests were represented by a guardian ad litem.
During the hearing, the Child's counsel represented to the court that the Child wished to be adopted, but counsel conceded that he did not ask the Child whether she desired to maintain contact with Mother post-adoption. At the conclusion of the hearing, the court granted the petition and terminated Mother's rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2) and (b). The court also changed the goal from reunification to adoption.
Mother timely filed this appeal. She raises seven issues for our review:
1. Did the trial court err as a matter of law and abuse its discretion by allowing the admission of hearsay testimony regarding Mother's drug screening results into evidence over the objection of Mother's counsel?
2. Did the trial court err as a matter of law and abuse its discretion by relying on its prior knowledge of the case and facts not in evidence to support the involuntary termination of Mother's parental rights and the goal change to adoption?
3. Did the trial court err as a matter of law and abuse its discretion by failing to ensure Child's legal interests were adequately represented as required pursuant to 23 Pa.C.S.A. § 2313(a), where Child's counsel advocated in favor of termination but had failed to ascertain whether Child desired to maintain any ongoing legal relationship with Mother?
4. Did the trial court err as a matter of law and abuse its discretion by involuntarily terminating Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) in the absence of clear and convincing evidence that Mother's conduct evidenced a settled purpose to relinquish her parental claim, or a refusal or failure to perform parental duties, for at least 6 months preceding the filing of the termination petition?
5. Did the trial court err as a matter of law and abuse its discretion by involuntarily terminating Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) in the absence of clear and convincing evidence that Mother's repeated or continued incapacity caused Child to be without parental care and control, and that Mother could not or would not remedy the incapacity?
6. Did the trial court err as a matter of law and abuse its discretion by terminating Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(b) in the absence of clear and convincing evidence that termination would best serve the needs and welfare of Child?
7. Did the trial court err as a matter of law and abuse its discretion by changing Child's permanency goal to adoption in the absence of clear and convincing evidence that adoption would be in Child's best interest?
Mother's Brief at 4.
Mothers first two issues challenge the trial court's evidentiary ruling, which allowed the caseworker to testify about Mother's alleged drug use. Mother argues the trial court improperly allowed hearsay testimony, and that the trial court improperly relied upon its own recollection of Mother's drug use from the dependency proceedings. See generally Mother's Brief at 15-27.
Preliminarily, we note that "the decision of whether to admit or exclude evidence is within the sound discretion of the [trial] court. A reviewing court will not disturb these rulings absent an abuse of discretion. Discretion is abused if, inter alia, the [trial] court overrides or misapplies the law." In re A.J.R.-H., 188 A.3d 1157, 1166-67 (Pa. 2018) (citations omitted).
At the termination hearing, the trial court asked whether Mother was drug tested at Interim House. Id. at 25. The caseworker confirmed that she was. Id. When the court asked the caseworker to explain further, Mother's counsel objected on hearsay grounds. Id. The court overruled the objection:
The court: I think I heard this evidence at a prior hearing.
[Mother's counsel]: You did. Your Honor, but […] it's not admissible for purposes of the TPR hearing.
The court: Go ahead[, caseworker]. You may answer.
[The caseworker]: She testified positive for PCP.
The court: How many occasions?
The caseworker: On more than one. I'm not sure offhand, but definitely more than one occasion. That's when I first got the case.
[DHS counsel]: And that influenced us asking for random[ drug screens] with regards to [the Child's sibling] is that correct?
[The caseworker]: That's correct, because she was pregnant with [the sibling] at the time.
[…]
The court: Okay. So, during the history of this case, she tested positive for PCP?
[The caseworker]: Correct.
The court: That was my recollection from prior [dependency] hearings.N.T. at 25-26.
In its Rule 1925(a) opinion, the trial court explained that the caseworker's testimony about Mother's drug use did not factor into its decision.
Assertions that inadmissible hearsay testimony affected the court's decisions are meritless. Ms. Mahoney was the [caseworker] for almost two years and had intimate knowledge of this entire case. Ultimately the dispositive evidence concerns Mother's failure to seek meaningful parental involvement with the care of her Child and her failure to meet certain SCP objectives and not solely on the testimony of Mother's alleged drug history.Trial Court Opinion, 11/19/21 (T.C.O.), at 7.
On appeal, Mother argues that the court erred when it allowed the caseworker's hearsay testimony, and that the court's error was not harmless. For support, Mother cites A.J.R.-H., supra and Interest of S.S., 252 A.3d 681 (Pa. Super. 2021).
Mother also cites for persuasive value, our decision in In re T.B., 266 A.3d 609 (Table), 2021 WL 4551600, *1-8 (Pa. Super. 2021) (non-precedential decision). We do not discuss T.B., because it is valuable to our review only insofar as it relies on A.J.R.-H and S.S., which we address.
First, Mother relies on A.J.R.-H., supra. There, the solicitor for the local child protective services agency presented to the court 168 exhibits, spanning more than 1, 230 pages, and which covered a range of subjects from an array of sources and authors. A.J.R.-H., 188 A.3d at 1160-61. The solicitor moved for the exhibits' admission en masse and at the beginning of the termination proceeding under the "business records" exception to the prohibition against the admission of hearsay. See 42 Pa.C.S.A. § 6108(b); Pa.R.E. 803(6).
The Supreme Court ultimately held that without sufficient foundation, the en masse admission of exhibits was erroneous under the business records exception. Id. at 1167-70. The High Court held further that the lower court's error could not be harmless:
[T]he standard for finding harmlessness in a termination case requires us to conclude that the evidentiary error could not have had any impact upon the [lower] court's decision. That there may have been properly admitted evidence sufficient to support termination does not render the [lower] court's substantial evidentiary error harmless.Id. at 1175 (emphasis added).
Mother also relies on this Court's decision in S.S., supra. In S.S., during a termination proceeding, the trial court erroneously considered a psychological report to make a factual determination. The report at issue was purportedly entered into evidence during the child's dependency proceedings, but not during the termination proceeding. S.S., 252 A.3d at 688. We explained that the prior admission of the report during the dependency proceedings did not remedy the evidentiary error committed during the termination proceeding. "Termination proceedings often occur simultaneously with dependency proceedings, but these two types of proceedings remain distinct, with their own docket numbers, records, and divisions within the Court of Common Pleas." Id.
We further observed that the appellant-parent did not have the opportunity during the termination proceeding to cross-examine the report's author. Id. The court's reliance on this report was not harmless error, because the information in the report was a primary reason for the court's decision. Id. at 689 (citing A.J.R.-H, 188 A.3d at 1175 (Pa. 2018)).
Returning to the instant matter, we observe that the offending hearsay testimony concerned whether Mother tested positive for PCP; specifically, the caseworker testified that Mother tested positive on "more than one occasion." The court overruled the objection and allowed the testimony to proceed.
Ultimately, we need not decide whether the court erred when it allowed the caseworker to testify about Mother's drug use. Even if the court committed an error, unlike the cases cited by Mother, the error here is clearly harmless.
The instant case is distinguishable from those upon which Mother relies. In A.J.R.-H., the error was not harmless, because the trial court plainly relied on at least some of the exhibits which were improperly entered into evidence. A.J.R.-H., 188 A.3d at 1171. In S.S., the error was not harmless, because the court's error - i.e., the reliance upon evidence that was admitted in a prior dependency proceeding, but not during the termination proceeding - was a primary factor in the court's termination decision. S.S., 252 A.3d at 689.
By contrast, the trial court here did not rely on the challenged evidence (i.e., Mother's purported drug use) to reach its decision. Rather, the court terminated Mother's rights after hearing "dispositive evidence" concerning Mother's failure to seek meaningful parental involvement and her failure to meet her SCP objectives, as we discuss in detail infra. See T.C.O. at 7. For these reasons, we conclude Mother's first and second issues lack merit.
In her third appellate issue, Mother claims the trial court erred by failing to ensure the Child's rights were adequately represented, pursuant to 23 Pa.C.S.A. § 2313(a). Mother argues that the Child's representation was deficient, because the Child's counsel did not explain to the Child that termination of Mother's rights might mean that the Child would be unable to have ongoing contact with Mother.
At the termination hearing, the Child's legal counsel averred that the Child was "very emphatic" that she loved Foster Mother and wanted to be adopted by her. N.T. at 44. However, counsel conceded that he did not ask the Child whether she wanted post-adoption contact with Mother. Id. at 44-45. Mother argues that because the Child was not made fully aware of the ramifications of the termination, the court could not have known the Child's "full position" on termination. Id. at 46. Mother reasoned that the Child might actually prefer a permanent legal custodianship as opposed to an adoption. Id.
Under the Adoption Act, Children have a statutory right to counsel in contested involuntary termination proceedings:
The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.23 Pa.C.S.A. § 2313(a).
Whether a child has been properly afforded counsel under Section 2313(a) is a mixed question of fact and law, which is also subject to a review for an abuse of discretion. In re P.G.F., 247 A.3d 955, 961 n.4 (Pa. 2021).
Much of our recent case law regarding a child's right to counsel in termination proceedings addresses whether a child's guardian ad litem - typically a holdover appointment from the dependency proceedings - may continue to represent the child during the termination proceedings. Our Supreme Court has established that the guardian ad litem may continue to represent the child during contested termination proceedings, so long as the child's "best interests" do not conflict with the child's "legal interests" (i.e., the child's preferred outcome); when those interests conflict, then Section 2313(a) necessitates the appointment of a separate "legal counsel." See In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017); see also In re T.S., 192 A.3d 1080 (Pa. 2018); and see In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020).
Here, the trial court avoided the potential conflict altogether when it appointed the Child separate legal counsel. Thus, the mandates of the statute were met. How that counsel undertakes that representation is generally not a subject for our review. See In re P.G.F., 247 A.3d at 966-67; see also K.M.G., 240 A.3d at 1236.
In P.G.F., the High Court explained an attorney acting as a child's legal counsel must, at minimum, attempt to ascertain the child's preference and advocate on the child's behalf. P.G.F., 247 A.3d at 966 (footnote omitted). However, the Court observed that discerning a child's preference is necessarily a fact-intensive and nuanced process, based upon an attorney's observations and interactions with the child. Id.
The Court reasoned that children fall within a wide range of ages, maturity levels, and emotional capacities that all factor into a child's ability to express a preference. Id. "At one end of the spectrum, an attorney may represent an older, mature child who understands precisely what a termination proceeding entails and may articulate in a clear, even binary, terms his preference for the outcome of the proceedings. By contrast, an attorney may represent a very young, less mature, child, who is unable to express any understanding of the proceedings or articulate a preference as to their outcome." Id.
The Court stated that it "will not mandate that an attorney convey highly sensitive, significant, and potentially emotionally damaging information to a child, or engage in a raw inquiry, merely to discern the clearest indication of a child's preference." Id.
The Supreme Court ultimately held that "significant deference must be accorded to counsel's approach in discerning a child's preferences and the child's articulation thereof." Id. In explaining the courts' obligations, the High Court held:
[O]nce a child's preference has been articulated…the orphans' court must determine whether counsel has fulfilled his [or her] obligations to discern a child's preferred outcome…. [I]n doing so, the orphans' court should give due consideration to counsel's approach, findings, and conclusions regarding whether a conflict exists, as counsel has interviewed the child firsthand, and has assessed the child's age, maturity, understanding, mental state, and emotional capacity (perhaps with…the assistance of a profession in certain situations). In turn, an appellate court should give substantial deference to the orphans' court's determination regarding whether the interests of legal counsel and guardian ad litem conflict, especially where the court has witnessed the parties during numerous proceedings.Id. at 967 (emphasis added).
Instantly, we note K.M.G. and P.G.F. both concern appellate review of whether there was a conflict in the joint representation of the child's "best interests" and "legal interests." Thus, to the extent that we can even review the adequacy of the child's separate legal counsel, surely the aforementioned deference applies.
Under this deferential standard, we observe that the Child's counsel met with the Child, explained to the Child the purpose of the termination hearing, and elicited from the Child the preferred outcome. Counsel then informed the court that the Child emphatically wished to be adopted by Foster Mother. In giving "significant deference" to counsel's approach, the trial court determined that counsel fulfilled his duties under Section 2313(a). We, in turn, must give "substantial deference" to the trial court's decision. In doing so, we discern no error or abuse of discretion. Thus, Mother's third issue lacks merit.
Mother relies heavily on In re Adoption of D.M.C., 192 A.3d 1207, (Pa. Super. 2018). However, D.M.C. had been abrogated by our decision in In re Adoption of K.M.G., 219 A.3d 662, 670 (Pa. Super. 2019) (en banc), and our Supreme Court's subsequent review of our K.M.G. decision. See In re Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020) ("It is not for an appellate court to determine how closely the interests must align or overlap to negate the existence of a conflict." […] "We additionally reject the underlying assumption that the absence of a child's preference on the record equates to counsel's failure to ascertain the child's preferred outcome or to provide effective representation of his or her client for purposes of Section 2313(a).")
Next, we turn to issues four, five, and six - the crux of Mother's appeal - namely whether termination was proper under Section 2511(a) and (b). We review these issues mindful of our well-settled standard of review.
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.T.S.M., 71 A.3d at 267 (citations and quotation marks omitted).
We emphasize that with termination cases, the record often supports the opposite result. See id. Recently, our Supreme Court reaffirmed that the Superior Court is not in a position to make "close calls" when reviewing appeals from termination decisions. "When a trial court makes a 'close call' in a fact-intensive case involving…the termination of parental rights, the appellate court should review the record for an abuse of discretion and for whether the evidence supports that trial court's conclusions; the appellate court should not search the record for contrary conclusions or substitute its judgment for that of the trial court." S.K.L.R., 256 A.3d at 1124. To that end, we observe that the orphans' court is "free to believe, all, part, or none of the evidence presented and is likewise free to make all credibility determinations and resolve conflicts in the evidence." In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted).
With this standard in mind, we turn to the substantive law governing the termination of parental rights. 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[.]In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is evidence 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." In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). 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. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Mother's fourth and fifth appellate issues correspond with the first prong of the termination analysis under Section 2511(a)(1) and (2), respectively. Mother's sixth appellate issue concerns the second prong of the bifurcated termination analysis under Section 2511(b).
We begin our analysis with the first prong of the termination analysis under Section 2511(a). We address the trial court's determinations under Section 2511(a)(2), which provides:
(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.23 Pa.C.S.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party 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." C.M.K., 203 A.3d at 262 (citation omitted). Parents are required to make diligent efforts toward the reasonably prompt assumption of full parental duties. In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010).
Instantly, Mother argues the trial court erred when it determined that DHS provided sufficient evidence of her parental incapacity. See Mother's Brief at 37. Mother highlights specifics facts, which she claims demonstrate her capacity to parent. Mother argues further that because she had the capacity to parent, completion of her SCP objectives was unnecessary.
Mother explains that she obtained suitable housing in Virginia, and thus she argues that she did not have to participate with the Achieving Reunification Center (ARC); Mother cites her ability to care for the Child's younger sibling, and thus she argues she did not need to participate in parenting classes; Mother cites her negative drug screens to argue that she did not need drug and alcohol treatment. See generally id. at 34-36. Finally, Mother contends that DHS prevented her from completing her visitation objective, because the Community Umbrella Agency refused to re-schedule visits after Mother failed to appear.
Initially, we observe that parental incapacity is not the only criterion by which a court may terminate a parent's rights under Section 2511(a)(2). Termination will also be appropriate when, inter alia, a parent has refused to provide care. See 23 Pa.C.S.A. § 2511(a)(2).
Here, the record supports the trial court's finding that Mother refused to provide necessary care. Mother's compliance with her SCP objectives was minimal prior to her leaving the Commonwealth for Virginia in December 2020, and then nonexistent thereafter. The Community Umbrella Agency could not coordinate with its counterpart in Virginia, and thus it had no way to ensure Mother had made progress on her objectives. Notably, Mother could have received Pennsylvania services virtually, had she followed through with the service providers, but Mother chose not to. See N.T. at 16-17. The caseworker explained that Mother would only comply when she felt like it. Id. at 23. Mother testified that she did not participate in ARC services because she did not want to, nor did she feel like she should have to. Id. at 50.
Further, we disagree with Mother's arguments that she either 1) accomplished her SCP objectives, 2) that completion of her objectives was unnecessary, or 3) that DHS prevented Mother from accomplishing the objectives.
For instance, Mother's argues that she satisfied her parenting objective, because she could successfully parent the Child's younger sibling. For support, Mother relies on our Supreme Court's recent decision in S.K.L.R., supra, where the High Court held that the ability to care for another child could be a relevant factor and may be considered under the Rules of Evidence. S.K.L.R., 256 A.3d at 1124 (citing Pa.R.E. 401; Pa.R.E. 402; and Pa.R.E. 403).
Mother's reliance is misplaced. The trial court did not exclude testimony about Mother's ability to care for the Child's sibling. The court simply did not afford this evidence much weight. Again, we reiterate that the issue is not whether Mother had the capacity to parent, but whether she refused to parent. The trial court was within its discretion to conclude that Mother's ability to care for the sibling had little bearing on whether Mother refused to care for the Child.
We are similarly unpersuaded by Mother's argument that she did not need to comply with her drug and alcohol objective - or, alternatively, that satisfied this objective when she provided three negative drug screens. Mother had an affirmative duty to complete drug and alcohol treatment, if only to demonstrate her desire to reunify with the Child. Although Mother did not complete her treatment program at Interim House in 2019, she did provide three negative screens in one month in the summer of 2020. Notwithstanding these negative screens, the court was within its discretion to find that Mother did not accomplish her treatment objective. Mother's refusal to complete this objective is only one example of her refusal to "make diligent efforts toward the reasonably prompt assumption of full parental duties." See In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010).
Finally, we are not persuaded by Mother's argument that DHS prevented her from accomplishing her visitation objective. We initially note that Mother did not have custody of the Child since 2015, well before the September 2018 dependency adjudication. The record is unclear how often Mother visited the Child between September 2018 and April 2021. At some point, however, visitations were court-ordered. DHS arranged for virtual visits due to the Covid-19 pandemic and because Mother relocated. At the termination hearing, the caseworker testified that there were three visits scheduled in April 2021. Id. at 17-20. The visits were to occur at the same time, on the same day of the week. Id. at 20. Mother did not participate in any of them. Id. She either failed to appear because she overslept, or the visits were cancelled because she failed to confirm her participation 24 hour hours in advance. Id. at 21. Because Mother missed three visits, no further visits were arranged.
On appeal, Mother argues that she reached out to DHS to resume the visitation schedule, but DHS refused. The caseworker testified that once a parent misses three visits, the "referral" is closed, and the parent must return to court to petition for their resumption. Id. at 21, 39. The testimony revealed that Mother did not reach out to resume visitation until July 2021, approximately one month before the termination hearing. Id. at 38-40. In other words, Mother was content to forgo her visitation for three or four months. Even before the visits became virtual, in part due to the Covid-19 pandemic, Mother had never progressed in her goals to warrant unsupervised contact. Thus, we find unpersuasive her argument that DHS prevented her from achieving the visitation objective.
In sum, we discern no error or abuse of discretion when the trial court determined that DHS provided sufficient evidence of Mother's refusal to provide parental care under Section 2511(a)(2), and that after 35 months such refusal could not or would not be remedied.
Having addressed the first prong of the termination analysis under Section 2511(a), we turn now to Mother's sixth appellate issue, which concerns the second prong under Section 2511(b).
Section 2511(b) provides:
(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)(b).
This Court has explained that:
[S]ection 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 763.In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists, but whether termination would destroy this existing, necessary and beneficial relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S., 946 A.2d at 764 (holding there was no bond worth preserving where the child had been in foster care for most of the child's life, which caused the resulting bond to be too attenuated). We add, the court is not required to use expert testimony to resolve the bond analysis but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d at 1121. Finally, we emphasize that "[w]hile a parent's emotional bond with her and/or her child is a major aspect of the Section 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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (citation omitted). However, a parent's own feeling of love and affection for the child does not preclude the termination of parental rights. Z.P., 994 A.2d at 1121.
Instantly, the trial court determined that termination would best serve the Child's needs and welfare. The court cited the Child's bond with Foster Mother and Mother's own acknowledgment that her contact with the Child had been infrequent since 2015. See T.C.O. at 7 (citing N.T. at 50-55).
On appeal, Mother argues that the trial court erred when it determined that the Child would not suffer irreparable harm. See Mother's Brief at 39. Mother further argues the court should not have considered the Child's bond with Foster Mother, because Mother loves the Child and they have a bond. Id. at 38-39 (citing N.T. at 52).
Mother's arguments merit no relief. As our Supreme Court observed in T.S.M., supra, "[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." T.S.M., 71 A.3d at 267-68. Here, the Child "emphatically" desired adoption by Foster Mother. See N.T. at 44. Moreover, a parent's own feeling of love and affection does not preclude the termination. See Z.P., 994 A.2d at 1121. We conclude that the trial court did not error or abuse its discretion when it determined that DHS satisfied the second prong of the termination analysis under Section 2511(b). Mother's sixth issue is without merit.
In her seventh and final appellate issue, Mother argues the trial court erred when it changed the goal of the dependency proceedings from reunification to adoption. Given our disposition concerning Mother's appeal from the order terminating her rights, we conclude Mother's appeal from the order changing the goal is moot. See Interest of D.R.-W., 227 A.3d 905, 917 (Pa. Super. 2020) (citing In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) ("An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force for effect.")).
Decree and Order affirmed. Jurisdiction relinquished.
Judgment Entered.