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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

APPEAL OF: J.P., NATURAL FATHER

                                                         No. 336 WDA 2017


                     Appeal from the Order January 26, 2017
               In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): CP-02-AP-0000073-2016

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

APPEAL OF: J.A.C., NATURAL MOTHER

                                                         No. 337 WDA 2017


                Appeal from the Order Entered January 26, 2017
               In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): CP-02-AP-0000073-2016


BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED SEPTEMBER 07, 2017

        In these related appeals, J.A.C. (“Mother”) and J.P. (“Father”)1 appeal

from     the   order   dated   and   entered   January   26,   2017,   involuntarily




*
    Former Justice specially assigned to the Superior Court.
1
  Mother identified Father as Child’s natural father at birth. Father, however,
did not acknowledge paternity until after he completed genetic testing on
September 4, 2015.
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terminating their parental rights to their minor son, M.P. (“Child”), born in

December 2014. We affirm.

      The relevant facts and procedural history of this case are as follows.

Child was born addicted to methadone. As a result, Allegheny County Office

of Children, Youth and Families (“CYF”) filed an Emergency Custody Action,

which the trial court granted, and transferred Child to A Children’s Home in

Pittsburgh, where he went through methadone withdrawal. N.T., 8/11/16,

at 18. Thereafter, on February 9, 2015, Child moved to his current foster

home placement. Id. The trial court adjudicated Child dependent on March

26, 2015.

      At the time of Child’s removal, CYF was familiar with Mother since

2010, having removed her two other children due to her substance abuse,

mental health issues, and criminal history.2 Accordingly, CYF established the

following Family Service Plan (“FSP”) goals for Mother: upgrade her drug

and alcohol treatment, visit with Child, obtain an evaluation with Allegheny

Forensic    Associates    (“AFA”),   maintain    appropriate      housing,     and

communicate with CYF. Id. at 39. Father has an extensive criminal history,

and   his   goals   included   maintaining   sobriety,   visitation   with   Child,




2
  Mother’s rights to her other children were subsequently terminated by
consent. Child does not share the same father as Mother’s two other
children.



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maintaining   appropriate   housing,    taking   random    drug    screens,   and

maintaining contact with CYF. Id. at 26.

      According to the CYF caseworker, Lawrence Restivo (“Restivo”), both

Mother and Father failed to make substantial progress with respect to their

individual FSP goals.    Notably, Mother missed drug screens, missed or

arrived late to visits, and failed to appear for her individual evaluation. Id.

at 83-85, 107, 116-18, 156. In fact, of the ten scheduled drug screenings,

Mother refused twice and failed to appear four times. Likewise, Father failed

to provide CYF with documentation of his drug and alcohol treatment, failed

to attend random drug screenings, participated in only eight out of forty

visits with Child, and did not maintain contact with CYF. Id. at 28, 30-33,

38-39, 119; N.T., 11/3/16, at 10-11, 15-17, 34-35.

      On April 15, 2016, CYF filed a petition to involuntarily terminate the

parental rights of Mother and Father to Child. The trial court held hearings

on the termination petition on August 11, 2016 and November 3, 2016. Dr.

Terry O’Hara, Ph.D. (“Dr. O’Hara”), a licensed psychologist, conducted two

psychological interactional evaluations—one with Child and Mother, and one

with Child and his foster mother.      Petitioner’s Exhibit 4.   Mother failed to

appear for her individual evaluation.        Dr. O’Hara testified that he had

“concerns about [Mother’s] level of stability[, i]ncluding her acknowledged

[sic] testing positive for cocaine within the last three hearings even though

she is clearly under the microscope and she had lost custody of several



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children.” N.T., 11/3/16, at 61. Mother also reported to Dr. O’Hara that she

had been clean for just the past two weeks and “acknowledged to having []

five relapses within the year [Dr. O’Hara] was evaluating her.”    Id. at 58.

While Dr. O’Hara noted that Mother demonstrated some “positive parenting

skills” during the evaluation, he explained that there were some parenting

deficits as well.   In particular, Dr. O’Hara stated that Mother “was unsure

about her son’s specific developmental needs” and was not “attuned to

[Child’s] cues.” Id. at 61-62.

      By order dated January 26, 2017, the trial court involuntarily

terminated Mother’s and Father’s parental rights.    Mother and Father filed

separate timely notices of appeal.

      Mother presents the following claims on appeal:

         1. Did the [t]rial [c]ourt abuse its discretion and err in
         granting the Petition for Involuntary Termination of
         Parental [] Rights pursuant to 23 P[a].C.S.[] § 2511(a)(2),
         (5) and (8)?

         2. Did the [t]rial [c]ourt abuse its discretion and err as a
         matter of law in determining that the involuntary
         termination of [Mother’s] parental rights pursuant to 23
         P[a].C.S.[] § 2511(a)(2), (5) and (8) of the [A]doption
         [A]ct best serves the needs and welfare of [Child]?

Mother’s Brief at 5. Father asserts that the trial court abused its discretion

in determining that the termination of his parental rights would serve the

needs and welfare of Child pursuant to 23 Pa.C.S. § 2511(b). Father’s Brief




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at 5. As Mother’s and Father’s issues require application of the same bodies

of law, we will address them together.

      Our standard of review in cases involving termination of parental rights

is as follows:

           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. We have
           previously emphasized our 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) (citations and quotation marks

omitted).

      Termination of parental rights is governed by statute. See 23 Pa.C.S.

§ 2511.     The portion of the statute relevant to these cases provides as

follows:

           (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:

              (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.




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          (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.

                                  * * *
       (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 notice of the filing of the petition.



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

      Under section 2511 of the Adoption Act, the trial court must engage in

a bifurcated process.   In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa.

Super. 2006). First, the trial court must examine the parent’s conduct. See

In re A.L.D., 797 A.2d 326, 339 (Pa. Super. 2002). The burden of proof is

on the petitioner to establish by clear and convincing evidence the existence

of grounds for termination under section 2511(a).    In re J.L.C., 837 A.2d

1247, 1251 (Pa. Super. 2003). If termination is found by the trial court to

be warranted under section 2511(a), it must then turn to section 2511(b),

and determine if termination of the parent’s rights is in the child’s best

interest. In re Adoption of R.J.S., 901 A.2d at 508.      If the trial court’s

decision is supported by competent evidence, this Court must affirm the

decision “even if the record could also support the opposite result.” In re

Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003) (citations

omitted).

      Applying these principles to the cases at bar, we first look at the

termination of Mother’s rights to Child under section 2511(a).3     The trial

court terminated Mother’s parental rights pursuant to section 2511(a)(2),



3
  In his brief, Father concedes that CYF presented clear and convincing
evidence that his parental rights should be terminated pursuant to section
2511(a)(2). Father’s Brief at 11 (“In the present case CYF, the petitioner,
did clearly and convincingly establish threshold grounds for termination
pursuant to 23 Pa.C.S. § 2511(a)(2)).



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(5), (8) and (b). This Court need only agree with the trial court’s decision as

to any one subsection of section 2511(a) in order to affirm the termination.

In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).           We will

therefore examine the facts under section 2511(a)(2).

       To terminate parental rights pursuant to section 2511(a)(2), an

agency must prove by clear and convincing evidence that the following three

elements have been met:

         (1) repeated and continued incapacity, abuse, neglect or
         refusal; (2) such incapacity, abuse, neglect or refusal has
         caused the child to be without essential parental care,
         control or subsistence necessary for his physical or mental
         well-being; and (3) the causes of the incapacity, abuse,
         neglect or refusal cannot or will not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). Further, “[t]he grounds for termination due to parental incapacity

that cannot be remedied are not limited to affirmative misconduct. To the

contrary, those grounds may include acts of refusal as well as incapacity to

perform parental duties.” In re A.L.D., 797 A.2d at 337 (citations omitted).

       Mother argues that she has remedied the FSP goals put in place by

CYF.    Mother’s Brief at 7-10.     Namely, Mother asserts that she has

maintained stable housing and recently completed in-patient drug and

alcohol treatment. Id. No relief is due.

       The evidence indicates that Child was initially removed from Mother’s

care because he was born addicted to methadone and Mother had failed to




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address her mental health issues. Mother’s attempts at achieving her goals

were inconsistent, half-hearted and intermittent. N.T., 11/3/16, at 140-50.

Mother missed drug screenings, failed to appear for her scheduled individual

evaluation, and missed over half of the visits with Child. N.T., 8/11/16, at

83-85, 107, 116-18, 156. By failing to address her mental health issues or

to undergo drug and alcohol treatment until after the termination petition

was filed, Mother’s behavior showed that she is unwilling to provide a safe

and nurturing home for Child. Although Mother obtained adequate housing

and is attempting to address her substance abuse issues, she was not in a

position to assume the caregiver role for Child at the time of the termination

hearing.   N.T., 8/11/16, at 42.   Restivo’s testimony further demonstrates

that Mother resisted complying with the requirements necessary for

reunification with Child and that the causes of Mother’s incapacity, neglect,

or refusal cannot or will not to be remedied.    Moreover, Dr. O’Hara’s and

Restivo’s testimony supports the trial court’s determination that Mother’s

repeated and continued incapacity, neglect, or refusal to cooperate with CYF

has caused Child to be without essential parental care, control, or

subsistence necessary for his physical or mental well-being.

      Accordingly, we reject Mother’s assertion that the trial court erred in

terminating her parental rights based on her efforts to fulfill her FSP goals.

Therefore, we discern no abuse of discretion by the trial court in terminating

Mother’s parental rights pursuant to section 2511(a)(2).



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      We now turn our attention to section 2511(b) and the trial court’s

determination that termination was in the best interests of Child. Because

the trial court appears to have examined the Child’s bond to both parents

together in its findings, we will likewise address both parents in a single

analysis.

      Under section 2511(b), termination of parental rights must best serve

the developmental, physical, and emotional needs and welfare of the child.

In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005). “Intangibles such

as love, comfort, security, and stability are involved in the inquiry into the

needs and welfare of the child.”   Id. at 1287 (citation omitted). 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.

      The mere finding of a parent-child bond does not preclude termination

of parental rights. See In re T.S.M., 71 A.3d at 267. Rather, the trial court

must examine the status of the bond to determine whether its termination

“would destroy an existing, necessary and beneficial relationship.”     In re

Adoption of T.B.B., 835 A.2d at 397 (citation omitted).       “[A] court may

properly terminate parental bonds which exist in form but not in

substance when preservation of the parental bond would consign a child to

an indefinite, unhappy, and unstable future devoid of the irreducible




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minimum parental care to which that child is entitled.” In re J.W., 578 A.2d

952, 958 (Pa. Super. 1990) (citations omitted).

      Father and Mother argue here that the trial court improperly relied on

Child’s relationship to foster mother and failed to analyze the effects of

termination on Child. Father’s Brief at 14-15; Mother’s Brief at 14-15. No

relief is due.

      In addressing the best interests and welfare of Child, the trial court

found:

          In determining that termination of parental rights best
          served the needs and welfare of Child, [the trial court]
          considered the history of the parents, the fact that Child
          has only known his foster parents as parents since birth,
          as well as the testimony of Dr. Terry O’Hara of Allegheny
          Forensic Associates, who performed the evaluations in this
          case and Mother’s former case.

          In the instant case, Dr. O’Hara did not perform an
          evaluation of Father but did evaluate Mother with Child,
          and Child’s Foster Mother. Two individual evaluations were
          scheduled for Mother but she did not attend either one.
          [Dr. O’Hara] did, however, evaluate Mother with Child and
          did not find her stable enough to parent and found her not
          to recognize Child’s cues.

          Dr. O’Hara also testified regarding the removals of
          Mother’s older children, noting one child had been hanging
          out of a window, that Mother was, at that time, homeless
          and had abandoned her drug treatment.          He testified
          Mother needed intensive treatment and that she “rambled”
          when speaking.      [Dr. O’Hara] stated Mother’s mental
          health diagnosis is opioid dependency, adjustment
          disorder, mood disorder, anxiety disorder, and histrionic
          personality disorder.




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         Importantly, Dr. O’Hara noted that Child was well bonded
         with his foster mother, having lived with her his whole life.
         Conversely, Dr. O’Hara stated that it was very unlikely
         Child could have bonded well with Father, having only had
         8 visits with him in 2 years. With regard to Mother, [Dr.
         O’Hara] stated that he saw no evidence that Mother could
         parent Child.

         Dr. O’Hara noted Child has been living together in a stable
         and loving home for over two years, forming a primary
         bond with his foster parent. Dr. O’Hara testified that
         Child’s needs are being met in this home and that he has a
         secure attachment with his foster mother. In fact, Dr.
         O’Hara stated that removal from this stable home without
         a guarantee that he would be placed into a stable
         environment would be harmful to him.

Trial Ct. Op., 3/29/17, at 8-9 (citations to record omitted).

      The record supports the trial court’s findings that Child’s primary bond

is with his foster mother rather than Mother or Father. Further, the record

supports the court’s finding that Child will not suffer irreparable harm if

Mother’s and Father’s parental rights are terminated. It was within the trial

court’s discretion to accept Dr. O’Hara’s opinions and recommendations and

to conclude that the benefits of a permanent home with his foster mother

would outweigh any emotional distress that Child might experience if his

relationship with Mother and Father ended. Thus, we find no error or abuse

of discretion in the trial court’s conclusion under subsection (b) that Child’s

developmental, emotional and physical needs and welfare were best met by

terminating Mother’s and Father’s parental rights.      See N.T., 8/11/16, at

177-182; N.T., 11/3/16, at 48-83.




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        Lastly, Father raises an additional issue for review. He contends that

our Supreme Court’s recent decision in In re Adoption of L.B.M., 161 A.3d

172 (Pa. 2017) requires that we reverse the termination of Father’s parental

rights and remand the case for the appointment of separate counsel for

Child pursuant to 23 Pa.C.S. § 2313(a).4 Father’s Brief at 16.

        In L.B.M., our Supreme Court held that trial courts must appoint

counsel to represent the legal interests of any child involved in a contested

termination proceeding pursuant to 23 Pa.C.S. § 2313(a).                See In re

Adoption of L.B.M., 161 A.3d at 183. The Court explained that a child’s

legal interests are distinct from his or her best interests, in that a child’s

legal interests are synonymous with the child’s preferred outcome, while a



4
    Section 2313(a) provides as follows.

              (a) Child.―The court shall appoint counsel to
              represent the child in an involuntary termination
              proceeding when the proceeding is being contested
              by one or both of the 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. § 2313(a).

Here, this Court granted CYF’s and the guardian ad litem’s applications to file
supplemental briefs addressing L.B.M. We have received the supplemental
briefs as well as Father’s responsive brief.




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child’s best interests must be determined by the court. Id. at 174. While

our Supreme Court held in L.B.M. that courts must appoint counsel, the

justices disagreed on whether the role of counsel may be filled by a child’s

existing dependency guardian ad litem (“GAL”).     See id. at 183.    In the

Court’s lead opinion, Justice Wecht, joined by Justices Donohue and

Dougherty, opined that a child’s legal interests cannot be represented by his

or her dependency GAL.     Id. at 181-82.    However, the Court’s remaining

four justices disagreed with that portion of the lead opinion and opined in a

series of concurring and dissenting opinions that a child’s dependency GAL

may serve as his or her counsel, so long as the GAL’s dual role does not

create a conflict of interest.   See id. at 183-93.   Notably, Chief Justice

Saylor and Justices Mundy, Baer and Todd were of the opinion that “in cases

involving young children or children with limited capacity, the child may be

unable to express a separate legal interest to an independent attorney

appointed in addition to the GAL attorney, but would nevertheless be

required to have one appointed under the plurality’s interpretation.” Id. at

192 (Mundy, J., concurring).

      While Father concedes that Child was represented by his dependency

GAL during the termination hearing, Father insists that representation by a

GAL, who is also an attorney, does not comply with Section 2313(a).

Father’s Brief at 16.




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     Shortly following our Supreme Court’s decision in L.B.M., this Court

decided In re D.L.B., __ A.3d __, 2017 WL 2590893 (Pa. Super. June 15,

2017). Similar to the case sub judice, the appellant in D.L.B. argued that

section 2313(a) required the appointment of separate counsel for a child in a

contested termination proceeding. Id. at *5. The appellant argued that the

trial court’s failure to appoint separate counsel was structural error, which

required this Court to remand the matter for the appointment of separate

counsel pursuant to L.B.M.. Id.

     In rejecting the appellant’s claim, this Court stated:

           As a point of information, Justice Wecht’s opinion in
           L.B.M[.] states that the trial court is required to
           appoint a separate, independent attorney to
           represent a child’s legal interests even when the
           child’s GAL, who is appointed to represent the child’s
           best interests, is an attorney. Justice Wecht would
           hold that the interests are distinct and require
           separate representation. While Justice Wecht, joined
           by Justices Donohue and Dougherty, sought to so
           hold, four members of the court, Chief Justice Saylor
           and Justices Baer, Todd, and Mundy disagreed in
           different concurring and dissenting opinions with that
           part of the lead opinion’s holding. Specifically, while
           the other justices agreed that the appointment of
           counsel for the child is required in all [termination of
           parental rights] cases and that the failure to do so by
           the trial court is a structural error, they did not join
           that part of Justice Wecht’s opinion which sought to
           hold that the GAL may never serve as counsel for the
           child.    Rather, such separate representation
           would be required only if the child’s best
           interests and legal interests were somehow in
           conflict.

Id. (emphasis added).



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      We decline to grant relief on Father’s argument invoking In re

Adoption of L.B.M.      The record before us reveals that Attorney Gregory

Engle, the GAL who represented Child at the termination hearing, zealously

represented both Child’s legal and best interests, and those interests were

not in conflict. At the time of the termination proceeding, Child was a non-

verbal two year old.    Petitioner’s Exhibit 4.   Dr. O’Hara further found that

Child is closely bonded with his foster mother and found no evidence that

Child could have formed a meaningful attachment to Father based on

Father’s eight visits with Child. Accordingly, we discern no basis to afford

Father relief based on L.B.M.5 See In re D.L.B., 2017 WL 2590893, at *7.

Indeed, Child is arguably the type of child the dissenting and concurring

justices in L.B.M. envisioned as too young or too cognitively incapacitated to

express his wishes.

      Based on the foregoing, we affirm the order of the trial court.

      Order affirmed.




5
  To the extent that Father argues that D.L.B. was wrongly decided, we
recognize that “[i]t is beyond the power of a Superior Court panel to
overrule a prior decision of the Superior Court except in circumstances
where intervening authority by our Supreme Court calls into question a
previous decision of this Court.” Commonwealth v. Pepe, 897 A.2d 463,
465 (Pa. Super. 2006).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/2017




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