J-S28030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST            OF   A.G.S.    & :   IN THE SUPERIOR COURT OF
 M.R.S., MINORS                              :        PENNSYLVANIA
                                             :
                                             :
 APPEAL OF: M.M., MOTHER                     :
                                             :
                                             :
                                             :
                                             :   No. 1881 WDA 2016

                Appeal from the Order Entered November 7, 2016
                 In the Court of Common Pleas of McKean County
              Orphans’ Court at No(s): 42-15-0107 & 42-15-0107-1


BEFORE:       OLSON, MOULTON, and STRASSBURGER*, JJ.

MEMORANDUM BY MOULTON, J.:                              FILED JUNE 06, 2017

       M.M. (“Mother”) appeals from the November 7, 2016 orders entered in

the McKean County Court of Common Pleas granting the petitions filed by

the McKean County Children and Youth Services (“CYS”), and involuntarily

terminating her parental rights to her children, A.G.S., born in June 2013,

and M.R.S., born in September 2014, (“Children”), pursuant to the Adoption

Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b). We affirm.1




____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        In separate orders entered on that same date, the trial court
terminated the parental rights of S.S. (“Father”). Father has filed a separate
appeal from the termination of his parental rights at Docket No. 1880 WDA
2016, which we address in a separate Memorandum, as did the trial court.
J-S28030-17


       Both Mother and Father (“Parents”) have a lengthy history of drug

abuse and incarceration.2 The trial court found the following facts:

               [M.R.S.] was in the care of her Parents until September
           of 2014. [A.G.S.] was born addicted to Methadone. CYS
           was notified by medical providers regarding [A.G.S.’s]
           condition[,] and CYS initiated an investigation shortly after
           her birth and before she was released by the hospital. CYS
           filed Petitions for Dependency on September 29, 2014.
           Several hearings were held to address the Dependency
           Petitions and to review the status of the dependency cases
           following disposition.

Tr. Ct. Memorandum and Order, 11/7/16, at 1 (unpaginated) (“Termination

Op.”).3

       The trial court adjudicated Children dependent on October 6, 2014,

and placed Children in the care of B.L. (“Foster Mother”) and M.L. (“Foster

Father”) (“Ls” or “Foster Parents”). Children remain with Foster Parents, id.

at 10, and are doing well in their care, id. at 3.


____________________________________________


       2
         Prior to A.G.S. being removed from Parents’ care and custody,
Father, Mother, and A.G.S. resided with M.S. (“Paternal Grandmother”). Tr.
Ct. Memo. and Order, 11/7/16, at 8 (unpaginated). Paternal Grandmother
provided the majority of the care for A.G.S. Paternal Grandmother has
health issues and is unable to provide care for either of the Children. Id.
For a complete discussion of the factual and procedural history of this case,
please see the trial court’s memorandum and order filed on November 7,
2016.
       3
        The trial court entered a separate memorandum and order for each
child, with two orders attached to each memorandum, one regarding each
parent. The memoranda are identical with regard to the portions that we
cite and quote herein.




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       On April 28, 2015, CYS filed petitions seeking to involuntarily

terminate the parental rights of Mother and Father to Children, and filed

amended petitions on November 19, 2015. The trial court held evidentiary

hearings on the petitions on July 31, 2015; December 2, 11, 14, and 18,

2015; January 25 and 26, 2016; and July 15, 2016.4

       Importantly, the trial court found the following from the testimony of

Foster Parents:

              The court finds the testimony of [Foster Mother]
           credible. [The Ls] live in McKean County. They have been
           married for over 29 years. They have served as foster
           parents since October 2001. [A.G.S.] was placed with
           them in October of 2014. [M.R.S.] was placed with them
           shortly after her birth and when she was discharged from
           the hospital. The [Ls] have provided exceptional care for
           [Children]. [Foster Father] obtained training to recognize
           and address issues that [A.G.S.] may have due to being
           born drug addicted. The [Ls] have taken both children to
           their medical appointments. The [Ls] offered to allow the
           parents to call their home to obtain information regarding
           [C]hildren. Mother has called at times. However, “it
           depends on where she is.” Mother has gone several weeks
           and even months without calling the [Ls]. Mother has sent
           “about 5 letters and cards” to the [Ls] for [C]hildren.
           Mother has also sent gifts for [C]hildren to the [Ls].
           Mother attended a birthday party for [M.R.S.] that the [Ls]
           had on June 26, 2015. Mother also attended a visit at the
           [Ls] on August 16, 2015; and, according to the [Ls],
           Mother’s attendance at the birthday party and the August
           2015 visit was “completely appropriate.” Father has only
           called the [Ls] once.

____________________________________________


       4
         In its memorandum and orders, the trial court summarized the
testimony from these hearing dates, and identified the testimony that it
found credible and that which it did not. See Termination Op. at 1-16.



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           [Children] are very bonded with the [Ls] and their
        children. The girls recognize the [Ls] as their primary
        caretakers and are very affectionate toward them. The
        [Ls] “adore those girls” and would adopt them if that is an
        option.

                                    ...

           The court finds the testimony of [Foster Father]
        credible.   [Foster Father] reaffirmed the testimony
        provided by [Foster Mother]. He explained that [M.R.S.]
        was discharged to his care [from] the hospital after he
        attended a program on how to provide for a child that was
        born drug dependent. He explained that he and/or his
        wife take the girls to their medical and other necessary
        appointments.     He indicated that parents have not
        attended any of the medical appointments that he has
        taken the girls to[]. He explained that he “loves these
        kids” and he and his wife would adopt them if that is an
        option.

Termination Op. at 10.

     The trial court found the following credible from the testimony of the

CYS caseworker, Denise Butler:

            [Butler] was assigned as the caseworker for [Children]
        in November of 2014. When she was first assigned to
        these cases Mother was still incarcerated and Father was
        still residing with his Mother, [Paternal Grandmother], in
        Port Allegheny, PA.         Following her release from
        incarceration Mother was a resident at the Gaudenzia Drug
        and Alcohol Treatment Program in Erie, PA. Caseworker
        Butler scheduled bi-weekly visits with Mother and the
        children at Gaudenzia. After Mother was unsuccessfully
        discharged from Gaudenzia the court temporarily
        suspended visits with Mother. Mother advised caseworker
        Butler that she was discharged from Gaudenzia “the first
        time as she got into a fight” with another participant in the
        program. Mother did not notify caseworker Butler that she
        had been discharged f[ro]m Gaudenzia. Caseworker Butler
        later discovered that Mother had left Gaudenzia and had
        moved in with her parents in Emporium, PA.            Father
        advised Caseworker Butler in January of 2015 that Mother

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           had been discharged and that she was back in Emporium.
           Mother contacted caseworker Butler in the summer of
           2015 and requested visits and that the Parents as
           Teachers program be involved with the family again.
           Mother asked that visits be held in Emporium and the
           Agency denied this request. There have been two Parents
           as Teachers sessions in November and December of 2015
           (one a month).      Mother has attended one medical
           appointment for [C]hildren (October of 2015).

                                               ...

              Regarding the bond between Parents and [C]hildren
           Caseworker Butler testified that it was similar to the
           relationship “with a babysitter.”     She explained “they
           ([C]hildren) are familiar with them, they are not scared of
           them, I mean not interact with them, but like taking
           [M.R.S.] from the [Ls,] she cries every time I want - I
           come to pick her up and she reaches for them (Ls/Foster
           [P]arents) because she doesn’t want to go out the door.
           She doesn’t want to go with [Father and Mother].”

Id. at 13.

       As noted above, on November 7, 2016, the trial court entered the

memorandum and orders granting the petitions for involuntary termination

of the parental rights of Mother to Children pursuant to 23 Pa.C.S. §

2511(a)(1), (2), (5), and (b).5

       On December 7, 2016, Mother timely appealed from the termination

orders. In her brief on appeal, Mother raises one issue:

           Whether the trial court abused its discretion in finding that
           the evidence admitted at trial was sufficient to support an
           involuntary termination of parental rights?
____________________________________________


       5
        The orders were dated as filed on November 7, 2016. Notice was not
sent to the parties until November 10, 2016.



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Mother’s Br. at 3.

      In reviewing an order terminating parental rights, we adhere to the

following standard:

            [A]ppellate courts must apply an abuse of discretion
         standard when considering a trial court’s determination of
         a petition for termination of parental rights.           As in
         dependency cases, our standard of review requires an
         appellate court 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. As has been often stated,
         an abuse of discretion does not result merely because the
         reviewing court might have reached a different conclusion.
         Instead, a decision may be reversed for an abuse of
         discretion   only   upon      demonstration    of     manifest
         unreasonableness, partiality, prejudice, bias, or ill-will.

            As we discussed in [In re R.J.T., 9 A.3d 1179, 1190
         (Pa. 2010)], there are clear reasons for applying an abuse
         of discretion standard of review in these cases.          We
         observed that, unlike trial courts, appellate courts are not
         equipped to make the fact-specific determinations on a
         cold record, where the trial judges are observing the
         parties during the relevant hearing and often presiding
         over numerous other hearings regarding the child and
         parents. Therefore, even where the facts could support an
         opposite result, as is often the case in dependency and
         termination cases, an appellate court must resist the urge
         to second guess the trial court and impose its own
         credibility determinations and judgment; instead we must
         defer to the trial judges so long as the factual findings are
         supported by the record and the court’s legal conclusions
         are not the result of an error of law or an abuse of
         discretion. .

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations

omitted).



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         The termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis:

             Initially, the focus is on the conduct of the parent. The
             party seeking termination must prove by clear and
             convincing evidence that the parent’s conduct satisfies the
             statutory grounds for termination delineated in Section
             2511(a). Only if the court determines that the parent’s
             conduct warrants termination of his or her parental rights
             does the court engage in the second part of the analysis
             pursuant to Section 2511(b): determination of the needs
             and welfare of the child under the standard of best
             interests of the child.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

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:

             [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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).

         In this case, the trial court terminated Mother’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (5), as well as (b).6 Mother

____________________________________________


         6
       Although the trial court’s orders do not expressly state that Mother’s
parental rights are terminated under section 2511(b), the trial court
discussed section 2511(b) and the case law pursuant to that section, and
(Footnote Continued Next Page)


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argues that the trial court’s findings that termination was proper under

subsections 2511(a)(1), (2), and (5) were not supported by clear and

convincing evidence.7 We have held that to affirm a termination of parental

rights, we need only agree with the trial court as to any one subsection of

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

banc). We will focus on subsections 2511(a)(1) and (2), which provide 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.

              (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
                       _______________________
(Footnote Continued)

found it applicable in terminating Mother’s parental rights. See Termination
Op. at 18-21. On appeal, Mother is not challenging the failure of the orders
to expressly provide that her parental rights were terminated under section
2511(b).
      7
        On appeal, Mother does not argue that the trial court erred in finding
termination proper under section 2511(b), and we need not address that
provision here.    We note, however, that the trial court’s finding that
termination of Mother’s parental rights would best serve the developmental,
physical, and emotional needs and welfare of Children was supported by the
record and was not an abuse of discretion. See Termination Op. at 21; 23
Pa.C.S. § 2511(b).



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            incapacity, abuse, neglect or refusal cannot or will
            not be remedied by the parent.

23 Pa.C.S. § 2511(a)(1), (2).

     With respect to subsection 2511(a)(1), our Supreme Court has held

that “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

Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998).           Further, this

Court has stated:

        the trial court must consider the whole history of a given
        case and not mechanically apply the six-month statutory
        provision.     The court must examine the individual
        circumstances of each case and consider all explanations
        offered by the parent facing termination of his or her
        parental rights, to determine if the evidence, in light of the
        totality of the circumstances, clearly warrants the
        involuntary termination.

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

omitted).

     To satisfy the requirements of subsection 2511(a)(2), the moving

party must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal 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


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refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa.Super. 2003). The grounds for termination of parental

rights under section 2511(a)(2), 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 326, 337 (Pa.Super. 2002).

      At the conclusion of its memorandum and order, the trial court stated

the following:

             [A.G.S.] and [M.R.S.] have not been in their Parents’
         physical custody since September of 2014. Even before
         that time parents struggled to provide proper parental care
         and control. They were each utilizing illegal controlled
         substances and dependent on [P]aternal [G]randmother,
         [M.S.] to provide care [for M.R.S.]. . . . Although Mother
         indicates now that she will not allow Father to reside with
         her and the [C]hildren due to his potential drug use
         (Parents recently had a third child), the Parents’ history of
         interdependency also raises a concern that Parents will re-
         establish their relationship in the future. Based on their
         past history the court finds that Parents’ recovery is less
         likely if they reunite.

            From the initiation of the dependency action in
         September of 2014 until August of 2015[,] Mother made
         very poor progress addressing her addiction. She was
         unsuccessfully discharged from inpatient treatment on two
         occasions and she tested positive on several occasions for
         non–prescribed narcotic use. In August of 2015[,] she
         obtained a prescription for Subutex and her tests since
         that date have only been positive for Subutex.          She
         testified in January of 2016 that she and her doctor had
         plans to “wean her off of Subutex.” However, she asserts
         that that has not yet occurred because she discovered
         after the January 2016 hearing that she was pregnant with
         a third child and it was dangerous to her unborn child, who
         would be born addicted to Subutex, for her to suddenly


                                    - 10 -
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       stop taking Subutex. Mother’s treating physician was not
       called to provide an opinion regarding Mother’s treatment
       and progress. Therefore, the court has concerns about the
       reliability of Mother’s self-serving statements about her
       current and future treatment. Mother made no progress
       regarding any of the requirements of the reunification
       plans until after August of 2015. From September 2014
       until August of 2015[,] she was frequently incarcerated
       due to violations of her criminal supervision; and, she
       failed to successfully comp[l]ete inpatient treatment. She
       had no visits with the children for extended periods of
       time, did not attend medical appointments for the
       [C]hildren or meet with and complete ordered services
       such as Parents as Teachers. Mother asserts that she
       couldn’t attend visits, etc. because she was in jail or
       inpatient treatment - and, in a technical sense this is true.
       However, this argument ignores the fact that she was in
       jail or in inpatient treatment because she utilized
       controlled substances and did not successfully complete
       treatment. Therefore, the source of the lack of contact
       and progress goes directly back to Mother’s drug use and
       drug addiction. Mother has made greater progress since
       August of 2015 when she was prescribed Subutex. She
       has attended visits on a more regular basis. However, she
       has not completed the Parents as Teachers Program and
       her housing situation still appears to be unclear. Mother
       continues to struggle[] to meet her basic needs.

                                   ...

          Regarding the specific assertions for termination the
       court finds:

       23 Pa. C.S. § 2511(a)(1): . . . Regarding Mother, from
       September of 2014 until August of 2015 she also: made
       limited efforts to maintain contact with the children; failed
       to successfully follow her drug and alcohol treatment plan;
       and, failed to maintain contact with and productively
       cooperate with service providers and [CYS]. She made
       greater progress after August of 2015 when she obtained a
       prescription for Subutex.      However, the relevant time
       period regarding 23 Pa.C.S. §2511(a)(1) is up to the time
       of the filing of the termination petition which was April 28,
       2015. Therefore, the court finds that the requirements of
       (a)(1) have been shown. Further, even after August of

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         2015 reunification was still not possible. Mother had made
         some progress but still: had not completed the Parent’s as
         Teachers program; had limited contact with [C]hildren
         and, therefore, limited bond with them; had a third child
         born addicted to narcotics; was still involved in an
         unsettling relationship with Father; and had an unclear
         housing plan.

         23 Pa. C.S. § 2511(a)(2): as discussed above the court
         finds that [M.R.S.] and [A.G.S.] have been without proper
         parental care and control since prior to when they were
         placed in CYS’s custody in September of 2014. Further,
         the court finds that the parents[’] incapacity, which centers
         around, but is not solely limited to, their narcotic use and
         addiction, will not be remedied by the parents in the near
         future. Therefore, CYS had demonstrated, by clear and
         convincing evidence, that the grounds for (a)(2) have also
         been met.

Termination Op. at 17-21.

      We conclude that sufficient evidence supported the trial court’s finding

that termination of Mother’s parental rights was proper pursuant to

subsections 2511(a)(1) and (2) and that the trial court did not abuse its

discretion. Accordingly, we affirm the orders terminating Mother’s parental

rights with regard to Children.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/6/2017



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