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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: D.P.M., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: E.K.T., MOTHER

                                                      No. 2205 MDA 2015


                   Appeal from the Decree November 18, 2015
                  In the Court of Common Pleas of York County
                       Orphans’ Court at No(s): 2015-0093


IN THE INTEREST OF: D.P.M., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: E.K.T., MOTHER

                                                      No. 2215 MDA 2015


               Appeal from the Order Entered November 18, 2015
                 In the Court of Common Pleas of York County
              Juvenile Division at No(s): CP-67-DP-0000143-2014


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

MEMORANDUM BY MUNDY, J.:                                FILED JUNE 15, 2016

        Appellant, E.K.T. (Mother), appeals from the November 18, 2015

decree involuntarily terminating her parental rights, and the order entered

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*
    Former Justice specially assigned to the Superior Court.
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the same day, changing the permanency goal to adoption with respect to her

son, D.P.M., born in March 2014.1 After careful review, we affirm.2

       D.P.M. was removed from the home of Mother and Father on July 17,

2014, when he was four months old, due to domestic violence between his

parents, as well as Mother’s drug and alcohol abuse, and her mental health

issues.    Trial Court Opinion, 11/18/15, at Finding of Fact ¶ 10; N.T.,

10/1/15, at 54-55. The trial court adjudicated him dependent on September

11, 2014.

       The permanency goal for D.P.M. was reunification.    CYF established

the following Family Service Plan (FSP) goals for Mother: to obtain stable

housing and employment, to obtain drug and alcohol evaluations and to

follow any recommendations, to provide negative drug screens, and to

address mental health concerns. N.T., 10/1/15, at 56-57.

       Permanency review hearings occurred on December 18, 2014, May 28,

2015, and November 2, 2015, which resulted in orders finding that “Mother

had made minimal progress towards alleviating the circumstances which

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1
  J.M. (Father) executed a consent for the adoption of D.P.M. on May 28,
2015, which was confirmed by decree of the trial court dated October 1,
2015. In addition, C.R. (Putative Father) executed a consent subsequent to
the subject proceedings, which was confirmed by decree dated December
10, 2015. Neither Father nor Putative Father filed notices of appeal.
2
  We observe that the York County Offices of Children, Youth and Families
(CYF) and the guardian ad litem (GAL) filed a joint brief in support of the
involuntary termination decree and the goal change order.



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necessitated the original placement.”            Trial Court Order, 12/18/14, at 1;

Trial Court Order, 5/28/15, at 1; Trial Court Order, 11/2/15, at 1. In the

final two permanency review orders, the trial court found that Mother was in

minimal compliance with her FSP goals. Trial Court Order, 5/28/15, at 1;

Trial Court Order, 11/2/15, at 1.

       On July 30, 2015, CYF filed a petition for the involuntary termination of

Mother’s parental rights and a petition for a goal change to adoption.              A

hearing on the petitions was held on October 1, 2015, during which CYF

presented the testimony of Kimberly Myers, a drug and alcohol monitor at

Families United Network (FUN); Katrina Weeden and Laura Bosley, in-home

family   therapists    at   Pressley     Ridge;    and   Mitra   Honardoost,   a   CYF

caseworker. Mother testified on her own behalf.

       On November 18, 2015, the trial court involuntarily terminated

Mother’s parental rights. That same day, the trial court changed the

permanency goal to adoption. Mother timely filed separate notices of appeal

and concise statements of errors complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The trial court filed

its Rule 1925(a) opinion on January 6, 2016.3

       On appeal, Mother presents three questions for our review.


____________________________________________


3
 On January 7, 2016, this Court consolidated these appeals sua sponte.
See generally Pa.R.A.P. 513.



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              I. Whether the trial court erred in changing the goal
              from reunification to adoption and termination of
              parental rights without clear and convincing evidence
              that a change of goal would best serve the interests
              of the child[?]

              II. Whether the trial court erred in terminating
              [Mother’s] parental rights without clear and
              convincing evidence that termination best served the
              emotional needs and welfare of the child[?]

              III. Whether [CYF] failed to present clear and
              convincing evidence that termination of [Mother’s]
              parental rights best served the emotional needs and
              welfare of the child[?]

Mother’s Brief at 4.

      We begin our review with the goal change order, which we consider

according to the following standard.

              In cases involving a court’s order changing the
              placement goal… to adoption, our standard of review
              is abuse of discretion. To hold that the trial court
              abused its discretion, we must determine its
              judgment was manifestly unreasonable, that the
              court disregarded the law, or that its action was a
              result of partiality, prejudice, bias or ill will. While
              this Court is bound by the facts determined in the
              trial court, we are not tied to the court’s inferences,
              deductions and conclusions; we have a responsibility
              to    ensure    that    the    record   represents     a
              comprehensive inquiry and that the hearing judge
              has applied the appropriate legal principles to that
              record. Therefore, our scope of review is broad.

In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008) (citations omitted), appeal

denied, 959 A.2d 320 (Pa. 2008); see also In re R.J.T., 9 A.3d 1179, 1190

(Pa. 2010).




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      This matter is controlled by the Juvenile Act, 42 Pa.C.S. §§ 6301-

6375, which was amended in 1998 to conform to the federal Adoption and

Safe Families Act (“ASFA”), 42 U.S.C. §§ 620-679. In re M.S., 980 A.2d

612, 615 (Pa. Super. 2009), appeal denied, 985 A.2d 220 (Pa. 2009). We

have recognized that “[b]oth statutes are compatible pieces of legislation

seeking to benefit the best interest of the child, not the parent. … ASFA

promotes the reunification of foster care children with their natural parents

when feasible …. Pennsylvania’s Juvenile Act focuses upon reunification of

the family, which means that the unity of the family shall be preserved

‘whenever possible.’” Id., citing 42 Pa.C.S.A. § 6301(b)(1). As such, child

welfare agencies are required to make reasonable efforts to return a foster

child to his or her biological parent.   In re N.C., 909 A.2d 818, 823 (Pa.

Super. 2006). When those efforts fail, the agency “must redirect its efforts

toward placing the child in an adoptive home.” Id.

      At permanency review hearings for dependent children removed from

the parental home, a trial court must consider the following factors.

            § 6351. Disposition of dependent child

                                         …

            (f) Matters to be determined at permanency
            hearing.—

            At each permanency hearing, a court shall determine
            all of the following:

                  (1) The     continuing necessity      for   and
                  appropriateness of the placement.

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                 (2) The appropriateness, feasibility and extent
                 of compliance with the permanency plan
                 developed for the child.

                 (3) The extent of progress made toward
                 alleviating    the     circumstances which
                 necessitated the original placement.

                 (4) The appropriateness and feasibility of the
                 current placement goal for the child.

                 (5) The likely date by which the placement
                 goal for the child might be achieved.

                 (5.1) Whether reasonable efforts were made to
                 finalize the permanency plan in effect.

                 (6) Whether the child is safe.

                                         …

                 (9) If the child has been in placement for at
                 least 15 of the last 22 months or the court has
                 determined that aggravated circumstances
                 exist and that reasonable efforts to prevent or
                 eliminate the need to remove the child from
                 the child’s parent, guardian or custodian or to
                 preserve and reunify the family need not be
                 made or continue to be made, whether the
                 county agency has filed or sought to join a
                 petition to terminate parental rights and to
                 identify, recruit, process and approve a
                 qualified family to adopt the child….

42 Pa.C.S.A. § 6351(f)(1)-(6), (9). “These statutory mandates clearly place

the trial court’s focus on the best interests of the child.” In re S.B., supra

at 978 (citation omitted). We have stated, “[s]afety, permanency, and well-

being of the child must take precedence over all other considerations.” Id.

(citation omitted) (emphasis in original).   Moreover, the burden is on the

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child welfare agency “to prove the change in goal would be in the child’s best

interest.”   In re D.P., 972 A.2d 1221, 1227 (Pa. Super. 2009), appeal

denied, 973 A.2d 1007 (Pa. 2009).

        Instantly, Mother argues the trial court erred “[b]y not considering the

extent of progress [she] was to make [sic] towards alleviating the

circumstances which necessitated the original placement of [D.P.M.]”

Mother’s Brief at 9. We conclude that Mother’s argument is without merit.

Indeed, in its opinion that accompanied the goal change order, the trial court

found    that     Mother   made    minimal     progress   towards   alleviating   the

circumstances necessitating the child’s placement.            Trial Court Opinion,

11/18/15, at 9.

                Mother is currently residing with [her] grandmother
                but it is uncertain whether this living arrangement is
                long-term. Since the adjudication of dependency
                Mother has had sporadic employment. Mother has
                made no progress in addressing her mental health
                issues. The Discharge Summary from Holy Spirit
                Hospital in February 2013 indicates that Mother was
                diagnosed with psychotic disorder and substance
                abuse.      Mother obtained a drug and alcohol
                evaluation from Guadenzia Westshore Outpatient
                Program on March 24, 2015.             Said evaluation
                recommended intensive        outpatient     counseling.
                Mother was diagnosed with Posttraumatic Stress
                Disorder on October 31, 2014 and it was
                recommended that Mother participate in individual
                therapy. Mother failed to follow through with the
                recommendations for individual counseling and
                testified that she does not believe she has any
                mental health or substance abuse issues.

                     Mother was drug tested by [FUN] from July 19,
                2014 through the present. Since July 19, 2014, FUN

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             attempted to test Mother 63 times and was able to
             successfully test Mother 37 times. Of the successful
             tests, Mother tested positive on 25 occasions.
             Mother’s last negative drug test was April 16, 2015.
             Mother tested positive on October 1, 2015, the date
             of the [t]ermination of [p]arental [r]ights [h]earing.
             Additionally, Mother did not work with her assigned
             in-home teams. Testimony established that Mother
             was uncooperative and repeatedly refused their
             services.

Id.   The testimonial evidence of all of the witnesses overwhelmingly

supports the trial court’s findings.

      Specifically, Ms. Honardoost testified that Mother has not made any

progress in addressing the issues that initially caused D.P.M.’s placement.

N.T., 10/1/15, at 72. She testified on direct examination as follows.

             Q. Is [M]other in a position today to obtain physical
             custody of the minor child?

             A. No.

             Q. Why is that?

             A. Due to ongoing drug use and mental health
             concerns that have not been fully addressed….

             Q. Why would termination of [M]other’s parental
             rights be in the best interest of the minor child?

             A. The minor child needs permanency. He has been
             in care for over a year now….

Id.

      Moreover, on inquiry by the trial court, Mother testified to the

following.




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              Q. If [D.P.M.] was in your care today, do you believe
              he would be safe in your care today?

              A. It would take a lot of help, but yes. I can’t do it
              on my own.

              Q. So you’re currently not able to provide care for
              him on your own?

              A. Not by myself without some help, no.

              Q. Approximately how long do you think it would
              take for you to be able to care for [D.P.M.] on your
              own?

              A. I wish I could tell you.

Id. at 123. Further, Mother testified as follows on cross-examination by the

GAL.

              Q. You said that you don’t think you have a drug
              problem, correct?

              A. I think my problem is a lot bigger than that, sir.

              Q. I’m sorry.

              A. I think my problem is a lot bigger than a drug
              problem.

Id. at 120.

       The record demonstrates that D.P.M. was 19 months old by the time of

the subject proceedings. He had been in placement since he was 4 months

old, for a total of 15 months. During those months, Mother failed to comply

with her FSP goals. Her illegal drug use continued, and her mental health

remained problematic.         As such, we discern no abuse of discretion by the




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court in concluding that D.P.M.’s best interests demanded that the goal be

changed from reunification to adoption. See S.P., supra.

      We next address the decree of involuntary termination, which we also

consider according to an abuse of discretion standard.     In re T.S.M., 71

A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).

Termination of parental rights is governed by Section 2511 of the Adoption

Act, 23 Pa.C.S.A. §§ 2101-2938, 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 this case, the trial court terminated Mother’s parental rights

pursuant to Section 2511(a)(1), (2), (5), (8), and (b), which provide as

follows.

           § 2511. Grounds for involuntary termination

           (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:


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

              (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.

                                     …

              (5) The child has been removed from the care
              of the parent by the court or under a voluntary
              agreement with an agency for a period of at
              least six months, the conditions which led to
              the removal or placement of the child continue
              to exist, the parent cannot or will not remedy
              those conditions within a reasonable period of
              time, the services or assistance reasonably
              available to the parent are not likely to remedy
              the conditions which led to the removal or
              placement of the child within a reasonable
              period of time and termination of the parental
              rights would best serve the needs and welfare
              of the child.

                                     …

              (8) The child has been removed from the care
              of the parent by the court or under a voluntary
              agreement with an agency, 12 months or more
              have elapsed from the date of removal or
              placement, the conditions which led to the
              removal or placement of the child continue to
              exist and termination of parental rights would
              best serve the needs and welfare of the child.


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                                               …

              (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)(1), (2), (5), (8), (b).

       Mother argues that “[e]ven if the Agency did meet its burden under

Section 2511(a), the trial court did not adequately consider the second

prong of the bifurcated process which was to determine the needs and
                                                                               4
welfare of [D.P.M.] under the standard of best interests of [D.P.M.]”

Mothers’ Brief at 12. Mother relies on the testimony of the CYF caseworker,

Mitra Honardoost, who testified, “the visits [between Mother and D.P.M.] --

go fairly well.     Mother and [D.P.M.] appear to have a bond.           And the

affection is appropriate. Everything is appropriate.” Id. at 12, citing N.T.,

10/1/15, at 63.       Mother acknowledges that Ms. Honardoost testified that

D.P.M.’s bond is stronger with his foster family than with Mother. However,

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4
  Because Mother does not argue on appeal that the trial court abused its
discretion with respect to Section 2511(a), we do not address it.



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Mother argues, “there was no evidence presented that such a young child

(approximately a year and a half) would not transfer that bond back to his

mother should he be reunified. Given the child’s age, there is no evidence

that the child would suffer any specific emotional[] setbacks should he be

removed from the foster mother’s care.” Id. at 12-13.

      With respect to Section 2511(b), this Court has explained the requisite

analysis 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.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      Significantly, we have held the following.

            [C]oncluding a child has a beneficial bond with a
            parent simply because the child harbors affection for
            the parent is not only dangerous, it is logically
            unsound. If a child’s feelings were the dispositive
            factor in the bonding analysis, the analysis would be
            reduced to an exercise in semantics as it is the rare
            child who, after being subject to neglect and abuse,

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            is able to sift through the emotional wreckage and
            completely disavow a parent…. Nor are we of the
            opinion that the biological connection between [the
            parent] and the children is sufficient in of itself, or
            when considered in connection with a child’s feeling
            toward a parent, to establish a de facto beneficial
            bond exists. The psychological aspect of parenthood
            is more important in terms of the development of the
            child and its mental and emotional health than the
            coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations

and quotation marks omitted).

     Further, our Supreme Court explained 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.”   T.S.M., supra at 268.     Moreover, 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.

     In its opinion that accompanied the decree, the trial court stated as

follows, which the testimonial evidence supports.

            The [trial c]ourt has thoroughly evaluated [D.P.M.]’s
            relationships in this matter. The [trial c]ourt finds
            that Mother has a bond with [D.P.M.] but that the
            bond has weakened since [D.P.M.]’s placement. At
            this point, the [trial c]ourt believes that some level

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           of bond remains between Mother and [D.P.M.] but
           that [D.P.M.] will not be negatively impacted by the
           termination of Mother’s parental rights. The [trial
           c]ourt also finds that the bond between [D.P.M.] and
           foster parent is strong and healthy.         Testimony
           established that [D.P.M.] is happy and feels
           comfortable in their care. [D.P.M.] knows who his
           Mother is but it is the foster parents who take care of
           his daily needs and act as [D.P.M.]’s parental
           figures. The bond that [D.P.M.] has with the foster
           parent can provide safety, security and permanency
           for the child. Termination of parental rights will best
           meet the needs of the child and permit the child to
           achieve the stability that he deserves.

Trial Court Opinion, 11/18/15, at 14.

     Ms. Honardoost testified that Mother has been “fairly consistent” in her

weekly three-hour supervised visits with D.P.M.       N.T., 10/1/15, at 62.

Although she testified Mother is appropriate during the visits, and that

Mother and D.P.M. “appear to have a bond,” Ms. Honardoost agreed “the

stronger bond lies” between D.P.M. and the foster family. Id. at 67. She

testified that she has “heard [D.P.M.] call the foster mother mom,” who is

also a pre-adoptive resource. Id. at 65, 73.

     We conclude that the totality of the record evidence supports the

court’s decision that, based on “Mother’s unaddressed mental health and

substance abuse issues,” terminating her parental rights will serve the needs

and welfare of D.P.M. pursuant to Section 2511(b), in that it “will allow

[him] to achieve the safety, security, and permanency he deserves.” Trial

Court Opinion, 1/6/16, at 2; see In re M.T., 101 A.3d 1163, 1182 (Pa.

Super. 2014) (en banc) (addressing the parents’ “inability to consistently

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provide a safe and secure environment for their children” as part of its

Section 2511(b) analysis); see also In re Adoption of C.D.R., 111 A.3d

1212, 1220 (Pa. Super. 2015) (concluding the mother’s bond with the child

was outweighed by the mother’s “repeated failure to remedy her parental

incapacity,” and by the child’s need for permanence and stability).

      Based on the foregoing, we conclude the trial court did not legally err

or abuse its discretion in terminating Mother’s parental rights to D.P.M., and

changing the permanency goal to adoption.        See T.S.M., supra; S.B.,

supra. Accordingly, we affirm the trial court’s November 18, 2015 decree

and order.

      Decree affirmed. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2016




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