J-S36016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF T.S.G., A MINOR                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: C.L.L., MOTHER

                                                      No. 2248 MDA 2015


              Appeal from the Decree Entered November 24, 2015,
                 in the Court of Common Pleas of York County,
                      Orphans' Court at No(s): 2015-0105.




IN RE: ADOPTION OF T.S.G., A MINOR                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: C.L.L., MOTHER

                                                      No. 2249 MDA 2015


              Appeal from the Order Entered November 24, 2015,
                in the Court of Common Pleas of York County,
              Orphans' Court at No(s): CP-67-DP-0000131-2014.


BEFORE: MUNDY and DUBOW, JJ., STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 30, 2016

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       In these consolidated appeals, Appellant, C.L.L. (“Mother”) appeals

from the order changing the permanency goal from reunification to adoption,

and from the decree involuntarily terminating her parental rights to T.S.G.

(“Child”) pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a) and (b). We

affirm.

             SUMMARY OF FACTS AND PROCEDURAL HISTORY

       Prior to the initial placement of the now three-year-old Child, Mother

had an extensive history with Children’s Services of the City of New York and

York County Office of Children, Youth and Families (“the Agency”)

concerning Child’s older half-siblings. Mother’s involvement with the Agency

continued after the birth of Child in August 2012.1       After a period of

monitoring, the Agency accepted the family for services in October 2013. In

June 2014, Child’s half-siblings alleged that Mother locked them in the attic

for extended periods and that they were “terrified” to remain in the

residence.    The caseworker observed a padlock on the attic door, a filthy

mattress on the floor, cat feces and urine on the floor, and clothing strewn

throughout the very hot attic room.

       The Agency filed an Application for Emergency Protective Custody on

June 24, 2014. Following a Shelter Care hearing, Orphans’ Court awarded
____________________________________________


1
  Child’s father is S.T.G. (“Father”). Father’s whereabouts have remained
unknown during the length of the proceedings.         Orphans’ Court also
terminated Father’s rights to Child.




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legal and physical custody of Child to the Agency, and the Agency placed

Child in foster care.

      On September 9, 2014, Orphans’ Court adjudicated Child dependent

and ordered Child to remain in the legal and physical custody of the Agency.

At that time, the Orphans’ Court established a permanency goal of return to

parent and ordered Mother to comply with the following objectives: attend

all future court hearings, cooperate with the Agency, acquire and maintain

appropriate housing, undergo random drug and alcohol testing, submit to a

psychological   evaluation   and   cooperate    with   recommendations,      and

participate in visitation with Child as recommended by the Agency and

therapist.

      Since the date of adjudication, Child has remained in the legal and

physical custody of the Agency. He currently resides with his foster parents

and his three half-siblings, who are also subject to juvenile court jurisdiction.

      On November 10, 2014, the Orphans’ Court ordered that Mother’s

medical and educational rights were suspended and granted the Agency sole

medical and educational rights to Child.

      Between December 2012 and July 2014, three different in-home teams

opened cases with Mother; however, each closed unsuccessfully.

      Between February 24, 2014, and May 26, 2015, the Agency prepared

four family service plans for Mother.

      In Permanency Review Orders dated December 1, 2014, May 26,

2015, and October 28, 2015, the Orphans’ Court made findings that: 1)

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Mother failed to comply with the permanency plan; 2) the Agency had made

reasonable efforts to finalize the permanency plan; 3) that Mother had made

no progress toward alleviating the circumstances which necessitated Child’s

original placement; 4) legal and physical custody was confirmed with the

Agency; and 5) there continued to be a need for placement of Child outside

the care and custody of Mother.

          On August 18, 2015, the Agency filed a Petition to Change the Court

Ordered Permanency Plan Goal and a Petition for Involuntary Termination of

Parental Rights (“TPR Petition”) pursuant to the Adoption Act, specifically, 23

Pa.C.S. § 2511(a)(1), (2), (5), and (8).2

        The Orphans’ Court held an evidentiary hearing (“TPR hearing”)

regarding the Agency’s Petitions on October 28, 2015 and October 29, 2015.

        At the TPR hearing, the Agency admitted a Stipulation and exhibits,

and presented testimony from caseworkers involved in the case since prior

to placement.

        Testimony reflected that Mother had failed to complete all of her court-

ordered or agency recommended objectives.              Mother did not obtain a

psychiatric evaluation.         (N.T., 10/28/15 at 104-105).         Mother only

participated in one out of eight parenting classes.         Id. at 105.    Mother

participated in a drug and alcohol evaluation, but was non-compliant with

____________________________________________


2
    The Agency filed Similar TPR Petitions for each of Child’s half-siblings.




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recommended treatment.         Id. at 105-106.         Mother did not provide

documentation of housing or employment. Id. at 77-78. Most importantly,

Mother failed to visit consistently with Child, despite the Agency offering bi-

monthly supervised visitation. Id. at 85. Initially, Mother visited with Child

during court hearings, but failed to have any contact with Child since

December 2014. Id. at 81.

      Although Mother was present at the beginning of the hearing and had

informed her counsel that she wished to testify, she did not return after the

luncheon recess, even though she had notice to do so.

      At the close of this hearing, the Orphans’ Court took the matter under

advisement.     By order and decree entered November 23, 2015, the court

changed Child’s goal to adoption, and terminated Mother’s parental rights.

This timely appeal by Mother follows.

                            ISSUES ON APPEAL

      Mother raises the following issues on appeal:

         I.     Whether the [Orphans’] Court erred in changing the
                goal from reunification to adoption.

         II.    Whether the [Orphans’] Court erred in terminating
                the parental rights of Mother pursuant to Sections
                2511 (a)(1), (2), (5) and (8) of the Adoption Act.

         III.   Whether the [Orphans’] Court erred in concluding
                that termination of parental rights would best serve
                the needs and welfare of [Child] pursuant to Section
                2511 (b) of the Adoption Act.

Mother’s Brief at 5 (excess capitalization omitted).



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      Because evidence regarding the permanency plan goal change and

TPR petitions substantially overlap, and the legal standards to be applied are

the same, we will first address Mother’s termination issues.        See In the

Interest of R.J.T., 9 A.3d 1179, 1191 n.14 (Pa. 2010) (noting that courts

should combine hearings on these two petitions since the evidence

substantially overlaps and allows for faster permanency for the child).

                                LEGAL ANALYSIS

      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.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse

of discretion only upon demonstration of “manifest unreasonableness,

partiality, prejudice, bias, or ill-will.”   Id.   We may not reverse, however,

merely because the record would support a different result.” Id. at 827.

      We give great 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). 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., 855 A.2d

68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination



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of parental rights, this Court need only agree with any one subsection under

Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc).

      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). 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. (citations omitted).

      Termination Pursuant to 2511(a)(1)

      Section 2511(a)(1) provides that the trial court may terminate

parental rights if the Petitioner establishes that for six months, the parent

demonstrated a settled intent to relinquish a parental claim or a refusal or

failure to perform parental duties:

      a)      The rights of a parent in regard to a child may be
              terminated after a petition filed on any of the following
              grounds:

             (1)   The parent by conduct continuing for a period of at
                   least six months immediately preceding the filing of
                   the petition has evidenced a settled purpose of
                   relinquishing parental claim to a child or has
                   refused or failed to perform parental duties.




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23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as

requiring the Petitioner to demonstrate a settled intent to relinquish a

parental claim to a child or a refusal or failure to parent:

         To satisfy the requirements of section 2511(a)(1), the moving
         party must produce clear and convincing evidence of
         conduct, sustained for at least the six months prior to
         the filing of the termination petition, which reveals a
         settled intent to relinquish parental claim to a child or a
         refusal or failure to perform parental duties.


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

omitted) (emphasis added).

         This Court has defined “parental duties” in general as the obligation to

affirmatively and consistently provide safety, security and stability for the

child:

           There is no simple or easy definition of parental duties.
           Parental duty is best understood in relation to the needs of
           a child. A child needs love, protection, guidance, and
           support. These needs, physical and emotional, cannot be
           met by a merely passive interest in the development of the
           child.   Thus, this Court has held that the parental
           obligation is a positive duty which requires affirmative
           performance.      This affirmative duty . . . requires
           continuing interest in the child and a genuine effort to
           maintain communication and association with the child.
           Because a child needs more than a benefactor, parental
           duty requires that a parent exert himself to take and
           maintain a place of importance in the child’s life.

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

     Moreover, a parent must exercise reasonable firmness in resisting

obstacles placed in the path of maintaining the parent-child relationship:



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         Parental duty requires that the parent act affirmatively
         with good faith interest and effort, and not yield to every
         problem, in order to maintain the parent-child relationship
         to the best of his or her ability, even in difficult
         circumstances.     A parent must utilize all available
         resources to preserve the parental relationship, and must
         exercise reasonable firmness in resisting obstacles placed
         in the path of maintaining the parent-child relationship.

Id. (internal citations omitted).

      And most importantly, “parental rights are not preserved by waiting

for   a more   suitable   or   convenient time   to   perform one’s parental

responsibilities while others provide the child with her physical and

emotional needs.” Id.

      In the instant case, the Orphans’ Court properly concluded that the

Agency met the requirements of Section 2511(a)(1). Specifically, the court

found that, in the relevant period prior to the Agency’s filing of the TPR

Petition on August 18, 2015, Child had remained in placement, and Mother

had failed to meet her established goals. The court found that she failed to

obtain employment or housing for Child, and that she failed to cooperate

with her in-home teams and counselor. In fact, the Orphans’ Court found

that Mother’s whereabouts were frequently unknown:

         [Child] has been dependent for approximately thirteen
         (13) months which is approximately one third (1/3) of his
         life. . . . Since the adjudication of dependency, Mother was
         unable to obtain stable employment or appropriate housing
         for [Child].        Mother’s whereabouts were frequently
         unknown and the Agency was unable to determine the
         appropriateness of Mother’s current residence.           The
         Agency’s Exhibit 10, a York County Children’s Advocacy
         Center Interview Summary for S.S.M., [Child’s eldest half-

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         sibling], dated July 9, 2014, reported that [she] stated
         that Mother and Father locked [Child] in his room and
         starved him for a period of ten (10) days. . . .Throughout
         this dependency matter, Mother failed to cooperate with
         her in-home teams and counselor. [Mother] is [not] in a
         position to obtain custody of [Child] at this time. [Child] is
         currently residing with a foster family and testimony
         established that [Child] is comfortable in their home.
         Therefore, the Court finds that the termination of Mother’s
         . . . parental rights will provide a benefit to [Child] in that
         [he] will achieve stability and permanency in a loving and
         safe home.

         Therefore, for all of the reasons stated above, the Agency
         has proven by clear and convincing evidence that
         termination of parental rights to [Child] is justified
         pursuant to Section 2511(a)(1) of the Adoption Act.

Orphans’ Court’s Opinion, 11/23/15, at 9-10.

      Mother argues that the termination of her parental rights is not

supported by the evidence of record because the Agency failed to meet its

burden under Section 2511(a)(1).        According to Mother, her request to

continue the case “in order to achieve reunification with [Child]” should have

been granted.    Mother’s Brief at 17.        She argues that she “was denied

visitation at the inception of this case and unfortunately was undergoing

major obstacles due to the loss of her [m]other and her housing.”          Id.

Mother asserts that she has not demonstrated a settled purpose of

relinquishing her parental rights to Child, and that evidence was never

presented that she abused or neglected him.         Mother then references the

TPR hearing testimony from a member of one of the in-home teams who

worked with her from March to July 2014, to demonstrate that she is a fit

parent. (N.T., 10/28/15, at 36-44).

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      Our review of the record refutes Mother’s claims. Because Mother did

not testify, she did not further explain her representations to the Agency

caseworkers regarding her recent losses or her completion of any of her

permanency plan goals. Nevertheless, it was for the Orphans’ Court, as a

matter of credibility, to determine the weight to be given such assertions.

In re M.G., supra.

      Moreover, even if true, Mother presented no evidence as to why she

made no progress toward her family service plans prior to that time. While

she does rely upon the testimony of an in-home team member regarding an

approximate four month period in 2014, we note that this interaction

occurred largely prior to Child’s placement, and, nevertheless the in-home

team was closed unsuccessfully.

      Finally, we note that the Orphans’ Court was not to consider Mother’s

efforts, if any, made after the Agency filed the TPR Petition when considering

termination under 23 Pa.C.S. section 2511(a)(1). See 23 Pa.C.S. § 2511(b)

(providing that “[w]ith 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 [TPR Petition].”

      Accordingly, the court did not abuse its discretion in terminating

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), and we need

not consider the other bases for termination under this section.         See

B.L.W., supra.

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      Termination Pursuant to Section 2511(b)

      We also agree with the Orphans’ Court’s determination that the

Agency met its burden under 23 Pa.C.S. § 2511(b), and that terminating

Mother’s parental rights is in the best interest of Child.

      With respect to Section 2511(b), our analysis shifts focus from

parental actions in fulfilling parental duties to the effect that terminating the

parental bond will have on the child. Section 2511(b) “focuses on whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child.” In re: Adoption of J.M.,

991 A.2d 321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” In addition,

the Orphans’ 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.

      In cases where there is no evidence of a bond between a parent and a

child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d

753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis

necessarily depends on the circumstances of the particular case. Id. at 763.

      In the instant case, the Orphans’ Court found that due to Child’s young

age and lack of visits with Mother, no bond exists between them.

Accordingly the court found that termination of Mother’s parental rights

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would not have a negative impact on Child, and that a healthy bond existed

between Child and the foster parents:

        The Court has thoroughly evaluated [Child’s] relationships
        in this matter. . . .The Court finds that, due to [Child’s]
        young age and lack of visits with Mother, Mother has no
        bond with [Child]. At this point, the Court believes that
        the termination of Mother’s . . . parental rights will have no
        negative impact on [Child]. The Court also finds that the
        bond between [Child] and foster parents is strong and
        healthy. Testimony established that [Child] is happy and
        feels comfortable in their care. The foster parents take
        care of [Child’s] daily needs and act as [Child’s] parental
        figures. The bond that [Child] has with the foster family
        can provide safety, security and permanence for [Child].
        Termination of parental rights will best meet the needs of
        [Child] and permit [Child] to achieve the stability that he
        deserves.

Orphans’ Court Opinion, 11/23/15, at 12-13.

     Mother argues that, because she was “precluded from visiting with

[Child] due to the recommendation of the therapist and guardian ad litem,”

the Orphans Court “was unable to adequately determine what, if any, bond

exists between Mother and [Child] and whether termination of parental

rights would have an adverse impact upon [Child].”      Mother’s Brief at 18.

She then summarily states that, “[b]ased upon all evidence presented,

termination of parental rights was not in the best interests of [Child].” Id.

Mother further contends “[i]t is an obvious benefit to any child to have a

relationship with a biological parent and their extend family,” but because

she was precluded from visiting with Child, she “was denied the opportunity




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to allow the bond between her and [Child] to remain intact and/or grow

naturally[.]” Id. at 20.

      Of course, Mother’s absence prevented her from testifying regarding

her bond with Child, and no other witness stated that one currently exists.

Mother’s claim that she was precluded from visiting with Child is refuted by

our review of the record.    Testimony and evidence admitted at the TPR

hearing established that the therapists for Child’s three older half-siblings

recommended no visits because these children were afraid of Mother.        No

such prohibition existed as to Mother’s visits with Child. (N.T., 10/28/15, at

80-81).    Indeed, the Agency’s employees testified that Mother never

requested visits with Child. Id. at 121. According to the Agency, the last

time Mother saw Child was in December 2014 at a court proceeding. Thus,

Mother’s claim fails.

      Finally, given the above, we conclude that the Orphans’ Court did not

err in changing Child’s permanency goal to adoption. See R.J.T., 9 A.3d at

1183-84 (noting that when considering a Motion to Change the Permanency

Goal to Adoption, the court looks to the “best interests” of the child rather

than those of the child’s parents; in considering the “best interests” of the

child, the court should consider the child’s safety, protection, and physical,

mental, and emotional welfare).




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                               CONCLUSION

     In sum, we find that Orphan’s Court properly granted the Motion to

Change the Permanency Goal to Adoption and Petition to Terminate Mother’s

Parental Rights. Accordingly, we affirm.

     Order and Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2016




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