J-S24028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: D.T.H. A/K/A D.H., A MINOR          :   IN THE SUPERIOR COURT OF
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    APPEAL OF: K.H., BIRTH MOTHER              :   No. 1788 WDA 2016

                     Appeal from the Decree October 26, 2016
                In the Court of Common Pleas of Allegheny County
                 Orphans’ Court at No: CP-02-AP-0000017-2016


    IN RE: D.R.H., JR., A/K/A D.H., A          :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: K.H., BIRTH MOTHER              :   No. 1789 WDA 2016

                    Appeal from the Decree October 26, 2016
               In the Court of Common Pleas of Allegheny County
            Orphans’ Court at No: TPR No - CP-02-AP-0000018-2016


BEFORE:       PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                                 FILED MAY 17, 2017

        K.H. (“Mother”) appeals from the decrees entered October 26, 2016, in

the Court of Common Pleas of Allegheny County, which involuntarily

terminated her parental rights with respect to her minor daughter, D.T.H.,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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born in April 2013, and her minor son, D.R.H., Jr., born in May 2014

(collectively, “the Children”).1 After careful review, we affirm.

       Mother first came to the attention of Allegheny County Children, Youth

and Families (“CYF”) in February 2014, after CYF learned that two of her

older children, who are not involved in this appeal, “held down a four-year-

old’s hand on a radiator and caused a burn.” N.T., 10/26/2016, at 68. As a

result of this incident, Mother was charged with endangering the welfare of

children. Id. at 72. In addition, Mother tested positive for cocaine at the

time of D.R.H., Jr.’s, birth in May 2014. Id. at 75. CYF provided in-home

services to Mother, but services closed unsuccessfully in August 2014 due to

her failure to participate. Id. at 69, 75.

       On September 9, 2014, during a dependency hearing for one of

Mother’s older children, Mother tested positive for cocaine and marijuana.

Id. at 69, 71. That same day, Mother was arrested for failing to appear at a

hearing relating to her endangering the welfare of children charge.   Id. at

77.    CYF obtained emergency custody authorizations for both of the

Children.    Id. at 72.    The Children were adjudicated dependent by orders

dated October 8, 2014, and CYF placed the Children with their current pre-

adoptive foster mother, Q.J. (“Foster Mother”). Id. at 73-74.
____________________________________________


1
  The decrees also terminated the parental rights of the Children’s putative
father, D.H., and the parental rights of any unknown father that the Children
may have.      Neither D.H., nor any unknown father, has appealed the
termination of his parental rights.



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      Following the adjudication of dependency, Mother failed to complete

her court-ordered reunification objectives.   Most critically, Mother failed to

comply with drug and alcohol treatment, and failed to attend a majority of

her random urine screens.      Id. at 79, 81. Mother attended only twenty-

three out of the sixty-six requested screens between September 9, 2014 and

October 6, 2016. Id. at 81. Five of the screens that Mother did attend were

positive, including Mother’s most recent screen on August 6, 2016, which

was positive for THC. Id. at 99, 127.

      CYF filed petitions to involuntarily terminate Mother’s parental rights to

the Children on February 2, 2016.          The orphans’ court conducted a

termination hearing on October 26, 2016. Following the hearing, the court

entered decrees involuntarily terminating Mother’s parental rights.     Mother

timely filed notices of appeal on November 22, 2016, along with concise

statements of errors complained of on appeal.

      Mother now raises the following claim for our review.           “Did the

[orphans’] court abuse its discretion and/or err as a matter of law in

concluding that termination of [Mother’s] parental rights would serve the

needs and welfare of the Children pursuant to 23 Pa.C.S.[A.] §[]2511(b)?”

Mother’s brief at 19.

      We consider Mother’s claim 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

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      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 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 orphans’ court terminated Mother’s parental rights

pursuant to Sections 2511(a)(2), (5), (8), and (b), which provide as follows.




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     (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.

                                   ***

          (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

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

     On appeal, Mother concedes that CYF presented clear and convincing

evidence that her parental rights should be terminated pursuant to Section

2511(a).    Mother’s brief at 23 (“CYF, the petitioner, did clearly and

convincingly establish threshold grounds for termination pursuant to 23

Pa.C.S.[A.] §[]2511(a)(2).”).   Thus, we need only consider whether the

orphans’ court abused its discretion by terminating Mother’s parental rights

pursuant to Section 2511(b). The requisite analysis is as follows.

     Section 2511(b) focuses on whether termination of parental
     rights would best serve the developmental, physical, and
     emotional needs and welfare of the child. As this Court has
     explained, Section 2511(b) does not explicitly require a bonding
     analysis and the term ‘bond’ is not defined in the Adoption Act.
     Case law, however, provides that analysis of the emotional bond,
     if any, between parent and child is a factor to be considered as
     part of our analysis. While a parent’s emotional bond with his or
     her child is a major aspect of the subsection 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.

           [I]n addition to a bond examination, the trial court
           can equally emphasize the safety needs of the child,
           and should also consider the intangibles, such as the
           love, comfort, security, and stability the child might
           have with the foster parent. Additionally, this Court
           stated that the trial court should consider the

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            importance of continuity of relationships and whether
            any existing parent-child bond can be severed
            without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      Here, Mother argues that her visits with the Children are appropriate,

and that the Children are bonded to her.         Mother’s brief at 26.   Mother

argues that the orphans’ court abused its discretion by focusing on her

failings as a parent, rather than the Children’s emotional well-being, when

deciding to terminate her parental rights. Id.

      In its findings of fact, the orphans’ court found that the Children have

a bond with Mother, but that their primary bond is with Foster Mother.

Orphans’ Court Opinion, 12/21/2016, at 9 (Findings of Fact ¶ 31, 33). The

court found that the Children’s need for a permanent home outweighs their

bond with Mother, and that terminating Mother’s parental rights would serve

their needs and welfare. Id.

      Our review of the record supports the findings of the orphans’ court.

During    the   termination   hearing,    CYF   presented   the   testimony   of

psychologist, Patricia Pepe, Ph.D.       Dr. Pepe testified that she conducted

interactional evaluations of the Children and Mother on November 19, 2014,

March 30, 2016, and August 18, 2016. N.T., 10/26/2016, at 7, 15-16, 23,

35, 41.   In addition, Dr. Pepe conducted interactional evaluations of the




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Children and Foster Mother on March 30, 2016, and August 18, 2016. Id. at

12, 21, 41.

     Based on these evaluations, Dr. Pepe opined that the Children have a

positive attachment to Mother. Id. at 33, 51. The Children were obviously

familiar with Mother and were comfortable in her presence. Id. at 24. The

Children also referred to Mother as “mommy.”        Id. at 47.    Dr. Pepe

described this attachment as follows: “It was more not in the sense of day-

to-day kind of experiences, but in terms of visiting with their mother. They

knew who she was, they could identify her, and they were relaxed and

comfortable in her presence.” Id. at 17-18.

     Nonetheless, Dr. Pepe opined that the Children’s primary attachment

is to Foster Mother.    Id. at 23, 33.   Dr. Pepe acknowledged that the

Children’s behaviors were similar with both Mother and Foster Mother. Id.

at 48. The Children were very happy and relaxed in the presence of Foster

Mother, and they also referred to her as “mommy.”           Id. at 22, 44.

However, the Children displayed a greater degree of familiarity with Foster

Mother.   Id. at 51.    Dr. Pepe provided the following description: “The

[C]hildren were happy with their mother, but there was a greater sense of

harmony, a kind of give and take, a familiarity of connection with [Foster

Mother] than there has been with [Mother], although it was positive with

[Mother].” Id. at 48.




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      Dr. Pepe further opined that terminating Mother’s parental rights

would not cause irreparable harm to the Children.       Id. at 33.   Dr. Pepe

explained,

      I think they might miss her and they might question her. I
      certainly feel that [Foster Mother] is capable of addressing those
      issues with her, and, you know, I just feel . . . that the children
      have such a positive connection with [Foster Mother], that they’ll
      be able to move on.

Id. Ultimately, Dr. Pepe recommended terminating Mother’s parental rights

so that the Children may be adopted and provided with permanency. Id. at

33-34, 61.

      Thus, the record supports the finding of the orphans’ court that the

Children’s primary bond is with Foster Mother, rather than Mother. Further,

the record supports the court’s finding that the Children will not suffer

irreparable harm if Mother’s parental rights are terminated.     It was within

the court’s discretion to accept Dr. Pepe’s opinions and recommendations,

and to conclude that the benefits of a permanent home with Foster Mother

would outweigh any emotional distress that the Children might experience if

their relationship with Mother is ended.

      In addition, we reject Mother’s claim that the orphans’ court placed an

undue emphasis on her failings as a parent. Mother is correct that Section

2511(b) focuses on the welfare of the Children, and not on Mother’s parental

incapacity.   However, it is beyond cavil that Mother’s incapacity, and the

likelihood that she will never remedy that incapacity, is an important

consideration when determining what is best for the Children. See C.D.R.,

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111 A.3d at 1220 (citing In re Adoption of M.E.P., 825 A.2d 1266, 1276

(Pa. Super. 2003)) (“Clearly, it would not be in Child’s best interest for his

life to remain on hold indefinitely in hopes that Mother will one day be able

to act as his parent.”).

      Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by terminating Mother’s parental rights to the Children.

We therefore affirm the court’s October 26, 2016 decrees.

     Decrees affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




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