J-S64030-14



                            2014 PA Super 266



IN RE: M.M., A MINOR                        IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
APPEAL OF: R.H., BIRTH MOTHER
                                                  No. 1019 WDA 2014


                   Appeal from the Order May 28, 2014
            In the Court of Common Pleas of Allegheny County
                Orphans' Court at No(s): TPR 191 OF 2003

IN RE: I.M., A MINOR                        IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
APPEAL OF: R.H., BIRTH MOTHER
                                                  No. 1020 WDA 2014


                   Appeal from the Order May 28, 2014
            In the Court of Common Pleas of Allegheny County
                  Orphans' Court at No(s): TPR 192 2013

IN RE: T.M., JR., A MINOR                   IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
APPEAL OF: R.H., BIRTH MOTHER
                                                  No. 1036 WDA 2014


                   Appeal from the Order May 28, 2014
            In the Court of Common Pleas of Allegheny County
                Orphans' Court at No(s): TPR 1901 OF 2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

OPINION BY BENDER, P.J.E.:                      FILED DECEMBER 2, 2014

     Appellant, R.H. (“Mother”), appeals from the orders involuntarily

terminating her parental rights to M.M. (born in November of 2003), I.M.

(born in December of 2005), and T.M. (born in November of 2002) (the
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“Children”) pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).1        We

affirm.

       In its opinion, the orphans’ court set forth the following extensive

history of this case:

              CYF [the Allegheny County Office of Children, Youth and
       Families] first became involved with the case in November 2003,
       when it was reported that Mother was abusing the children's
       elder sibling, who is not a party to this case. That case was
       opened in January 2004, and the family received services. At
       that point, the Court was not involved. A second case was
       opened in June 2004, when Mother left children T.M. and M.M.
       with [M]aternal [A]unt and grandmother, who contacted CYF and
       asked for their removal.3 In August 2004, T.M. and M.M. were
       adjudicated dependent. The adjudication was based on, among
       other things[,] Mother's use of crack cocaine and marijuana and
       the alleged maltreatment of the children. The home was also
       unlivable, with garbage all over the floor and no utilities in the
       home. CYF established Family Service Plan goals during the
       June 2003 [through] June 2007 period. The goals included:
       obtain safe and appropriate housing with utilities, eliminate
       verbal and physical abuse and use alternative methods of
       discipline, to stay in contact and cooperate with the agency.
       Mother also had a goal to achieve sobriety and maintain
       recovery from substance abuse. This goal was achieved in
       December 2005. Although CYF provided significant services,
       there was limited progress. In March and April of 2006, the
       children were returned to their [M]other, but the case was kept
       open so that CYF could monitor for physical maltreatment and
       Mother's drug use. In November 2006, the Court closed its
       case; CYF kept its case open until May 2007.
              3
                  I.M. was not yet born.
____________________________________________


1
   Although T.M. (“Father”) was named in the petition seeking the
involuntarily termination of his and Mother’s parental rights, during the
course of the hearings, Father withdrew his opposition to the termination of
his parental rights and is not a party to this appeal.



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           The second time a case was opened was in January 2009.
     The Court issued an Emergency Custody Authorization for I.M.,
     who was discovered wandering outside, alone in a diaper. The
     home was found to be in a deplorable condition with rotten food
     in the kitchen, inadequate bedding, and clothing piled
     everywhere.    All three children were placed with maternal
     grandmother, who was living in the home; Mother was forbidden
     from residing there.      The children also displayed injuries
     consistent with those intentionally inflicted by a cord or a belt;
     M.M. had a burn mark on her right forearm that appeared to be
     from an iron.     There were additional concerns about the
     children's medical health. They were not up to date on their
     immunizations. Mother was charged with two counts of simple
     assault and two counts of endangering the welfare of children.
     She was convicted in May 2010 and sentenced to two years[’]
     probation. The children were adjudicated dependent on March 4,
     2009. Again, goals were established and services implemented.
     The agency and the Court closed the case on August 17, 2009.

           The third time the case was opened was in Februaiy 2010,
     when CYF received a referral that the children had missed a
     week of school. There was also an allegation that I.M. was
     outside again, in dirty pajamas, looking for food.            CYF
     investigated and found there to be lack of clothing, and
     inadequate supervision and housing. Family Group Decision
     Making was implemented to assist Mother. ChildLines were filed
     in December 2010, and Mother was charged with endangering
     the welfare of the [C]hildren. She pleaded guilty and [was]
     placed on five years[’] probation. CYF reestablished the Family
     Service Plan goals: supervision of the [C]hildren, not leaving the
     [C]hildren with unsuitable caregivers, no pain medication without
     appropriate supervision, contact and cooperation with CYF,
     ensure school attendance, and prevent neglect. The case was
     closed in May 2011.

           In May 2012, there was another referral to the agency
     regarding lack of supervision, and deplorable living conditions.
     This time, there were utilities and food in the house. Despite
     Mother reporting that T.M. nearly died when he took
     acetaminophen and alcohol, CYF did not make the case court-
     active. However, a month later, a probation officer reported that
     mother tested positive for THC and was not compliant with her
     mental health and drug program. When the police contacted the

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      agency, the agency investigated the home and found, again,
      deplorable housing conditions, no running water, feces in the
      toilet, children in dirty clothes and no beds. These findings were
      similar [to] those in 2004, 2009 and 2010, but CYF did not
      immediately remove the [C]hildren. Instead, Family Group
      Decision Making was put back in place.           Two days later,
      however, an ECA was sought and obtained. The [C]hildren have
      been out of Mother's care since June 29, 2012. Mother was
      charged and convicted for endangering the welfare of children.
      On March 5, 2013, Mother was sentenced to two to five years in
      prison. The latest dependency adjudication was [held] on July
      31, 2012. CYF filed its TPR petition on November 2013. The
      children have resided with maternal aunt since August 30, 2012.

Orphans’ Court Opinion (O.C.O.), 7/28/14, at 3-6 (citations to the record

omitted).

      The hearings concerning this case were held in April and May of 2014.

In addition to Mother’s testimony, the court heard testimony from Michael

Komorowski, a CYF caseworker, and from psychologist, Dr. Eric Bernstein.

Based upon the evidence and testimony provided, the orphans’ court

entered its orders terminating Mother’s parental rights to the Children.

      Mother filed timely notices of appeal and a concise statement of errors

complained of on appeal in compliance with Pa.R.A.P. 1925(a)(2)(i) and (b).

She raises a single issue:    “Did the [orphans’] court abuse its discretion

and/or err as a matter of law in concluding that CYF met its burden of

proving by clear and convincing evidence that termination of Mother’s

parental rights would best serve the needs and welfare of the [C]hildren

pursuant to 23 Pa.C.S. § 2511(b)?” Mother’s brief at 9.

      Our standard of review regarding orders terminating parental rights is

as follows:


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      When reviewing an appeal from a decree terminating parental
      rights, we are limited to determining whether the decision of the
      trial court is supported by competent evidence. Absent an
      abuse of discretion, an error of law, or insufficient evidentiary
      support for the trial court’s decision, the decree must stand.
      Where a trial court has granted a petition to involuntarily
      terminate parental rights, this Court must accord the hearing
      judge’s decision the same deference that we would give to a
      jury verdict. We must employ a broad, comprehensive review
      of the record in order to determine whether the trial court’s
      decision is supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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.

Id. at 806. We have previously stated:

      The 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.”

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

      The trial court is free to believe all, part, or none of the evidence

presented and is likewise free to make all credibility determinations and

resolve conflicts in the evidence.   In re M.G., 855 A.2d 68, 73-74 (Pa.

Super. 2004). If competent evidence supports the trial court’s findings, we

will affirm 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).         Additionally,

this Court “need only agree with [the trial court’s] decision as to any one

subsection in order to affirm the termination of parental rights.”        In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).

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      The termination of parental rights is controlled by 23 Pa.C.S. § 2511.

Under this statute, the trial court must engage in a bifurcated process in

which it initially focuses on the conduct of the parent under Section 2511(a).

See In the Interest of B.C., 36 A.3d 601 (Pa. Super. 2012). If the trial

court determines that the parent’s conduct warrants termination under

Section 2511(a), it must then engage in an analysis of the best interests of

the child under Section 2511(b). See id.

      In the instant case, Mother does not challenge the trial court’s analysis

as it relates to her conduct under Section 2511(a); rather, she limits her

argument to the trial court’s analysis of the best interests of the Children

under Section 2511(b).

      Section 2511(b) provides, in pertinent part:

             (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.

23 Pa.C.S. § 2511(b).

      Pursuant to Section 2511(b), the trial court must take into account

whether a natural parental bond exists between child and parent, and

whether termination would destroy an existing, necessary and beneficial

relationship. In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc).




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           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 needs and welfare of
     the child.” In addition, we instructed that the orphans’ court
     must also discern the nature and status of the parent-child bond,
     with utmost attention to the effect on the child of permanently
     severing that bond. Id. However, the extent of the bond-effect
     analysis necessarily depends on the circumstances of the
     particular case. In re K.Z.S., 946 A.2d 753, 763 (Pa. Super.
     2008).

            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.
     The mere existence of an emotional bond does not preclude the
     termination of parental rights. Rather, the orphans’ court must
     examine the status of the bond to determine whether its
     termination “would destroy an existing, necessary and beneficial
     relationship.” As we explained in In re A.S., 11 A.3d 473, 483
     (Pa. Super. 2010):

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

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (citation omitted).

     Mother argues that her involvement with CYF “prior to May 2012

should not be the focus of any review of this case.” Mother’s brief at 16.

She also contends that her imprisonment should not be the focus of our

review in that her term of incarceration was to end about one month after

the final termination hearing.   Id.    Mother also asserts that the Children



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“love their [M]other and want to maintain their relationship and bond with

[her].” Id. Additionally, Mother contends that Dr. Bernstein’s testimony in

which he discusses each child’s statements to him about their relationship

with Mother, supports a finding that the Children miss her and “want to

maintain a relationship with her.”     Id.     Mother also explains about the

visitations she had with the Children while she was housed in the Allegheny

County Jail and, despite the lack of visitation when she was transferred to a

state correctional institution in April of 2013, she describes her contact with

the Children by phone and by mail. Mother further discusses her belief that

the termination will be harmful to the Children and that the court did not

give “serious consideration” to the bond that exists between her and the

Children, as required by the law. Id. at 18.

      In its opinion, the court referenced some of Dr. Bernstein’s testimony

concerning the Children individually, their bond with Mother, and discussed

Maternal Aunt’s care of and relationship with the Children. O.C.O. at 6-7.

Specifically, the court reasoned:

            Ultimately, Dr. Bernstein testified that to the extent that
      the [C]hildren would experience a detriment if this Court
      terminated Mother's rights, such a detriment would be wholly
      outweighed by the benefits of adoption. Although the [C]hildren
      indicated that they miss Mother, Dr. Bernstein testified that this
      might not necessarily mean that they have a meaningful bond
      with their Mother. Given the facts and history of this case, Dr.
      Bernstein testified that the bond would not be healthy nor
      securely attached.     Maternal Aunt provides much-needed
      structure to the [C]hildren's lives. T.M. recognizes Maternal
      Aunt as a full-time caregiver and appreciates her in that role.
      [The Children’s] primary concern is losing complete contact from


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      Mother. In this case, given that the foster parent is Mother's
      sister, a complete[] loss of contact seems extremely unlikely.
      Dr. Bernstein testified that Maternal Aunt could use a bit more
      assistance in meeting the [C]hildren's elevated needs.       For
      example[,] Dr. Bernstein's report noted that she did not know
      the name of M.M.'s teacher. Nevertheless, Dr. Bernstein still
      feels that adopti[on] would be the most appropriate action. This
      Court agrees.

             Maternal Aunt demonstrated appropriate parenting skills.
      For example, she disciplines the [C]hildren in non-physical
      manners, such []as removing a privilege or sending a child to
      the bedroom. In [a] case like this, where there is a history of
      child abuse, it is important to note the importance of non-
      physical discipline.   Maternal Aunt has also implemented a
      routine in her home. Upon returning home from school, the
      [C]hildren complete chores, do their homework, and then have
      dinner and playtime. In Maternal Aunt's care, the [C]hildren
      have experienced, for the first time, real and consistent care
      such that they are not in harm's way. This stability has allowed
      the [C]hildren to grow and develop. Whether the pre-adoptive
      foster parent is meeting [C]hildren's emotional needs is an
      important question in any TPR case. Here, that answer is in the
      affirmative. In this case, however, this Court also notes that
      Maternal Aunt is meeting the [C]hildren's basic needs: shelter,
      food, clothing and physical health. These needs were not always
      met while the [C]hildren were under Mother's care and
      supervision. To the extent that Mother was ever able to meet
      these basic needs, it was only when prompted … by a multitude
      of CYF services, including but not limited to: drug and alcohol
      referrals, mental health referrals, Alliance for Infants, Three
      Rivers Youth in-home services. Even then, Mother mostly failed
      to participate in those programs. She was never able to meet
      the [C]hildren's needs for any length of time that could be
      considered consistent. And when Mother failed to provide for
      her [C]hildren, she did so in such an absolute way that the
      failure was determined to be criminal in nature.

O.C.O. at 7-8 (citations to the record omitted).

      In response to Mother’s arguments, it is evident that the court

emphasized    the   Children’s   safety   and   did   not   focus   on   Mother’s



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incarceration.   Most notably, the court examined the status of the bond

between Mother and the Children, recognizing that any detriment to the

Children is outweighed by their safety and security needs.       Moreover, the

court concluded that because Maternal Aunt is Mother’s sister, “a complete[]

loss of contact seems unlikely.” Id. at 8.

        The court’s discussion, quoted above, reveals that the court concluded

that Mother failed to provide the Children with a safe environment, and that

the termination of Mother’s parental rights is in the Children’s best interests.

Id. at 6.    The court found that although the Children have a bond with

Mother, the bond is not necessarily meaningful or healthy. Id. at 7. See In

re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that the strong parent-child

bond was an unhealthy one that could not by itself serve as grounds to

prolong foster care drift); see also In re L.M., 923 A.2d 505, 512 (Pa.

Super. 2007) (holding that a parent’s love of her child, alone, does not

preclude a termination).     The court also noted that the Children are no

longer in harm’s way, which is allowing them “to grow and develop.” O.C.O.

at 8.    See In re N.A.M., 33 A.3d at 103 (stating that the court may

emphasize the child’s safety needs).

        Our review of the record reveals that the court’s findings are

supported by evidence presented at the hearings. Furthermore, we defer to

the court’s credibility determinations, and discern no abuse of discretion in

its findings as to credibility.   See In re Adoption of S.P., 47 A.3d 817,

826-27 (Pa. 2012). Accordingly, we conclude that the court did not abuse

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its discretion in terminating Mother’s parental rights to the Children pursuant

to Section 2511(b).

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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