J-S06001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.D., III, A           :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.M., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 1476 EDA 2016

                  Appeal from the Order Entered April 12, 2016
                 In the Court of Common Pleas of Monroe County
                      Orphans’ Court at No(s): 8 OCA 2016

    IN THE INTEREST OF: T.M., MINOR            :   IN THE SUPERIOR COURT OF
    CHILD                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.M., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 1479 EDA 2016

                  Appeal from the Order Entered April 12, 2016
                 In the Court of Common Pleas of Monroe County
                      Orphans’ Court at No(s): 9 OCA 2016



BEFORE:      MOULTON, RANSOM, and FITZGERALD*, JJ.

MEMORANDUM BY MOULTON, J.:                               FILED MARCH 02, 2017

        C.M. (“Mother”) appeals from the orders entered April 12, 2016, in the

Monroe County Court of Common Pleas by the Honorable Jonathan Mark,

which involuntarily terminated her parental rights to her minor children,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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A.D., III, born in February 2011, and T.M., born in January 2014,

(collectively, “the Children”) pursuant to the Adoption Act, 23 Pa.C.S. §

2511(a)(1), (2), (5), (8), and (b).1 We affirm.

       The trial court set forth the following factual and procedural history:

              The Children first came to the attention of Monroe
           County Children and Youth Services (“CYS” or “the
           Agency”) on July 8, 2014 when the Agency received a
           referral that A.D. III had been left alone in a cabin with his
           half-brother and cousin. It was also reported that A.D. III
           and his half-brother and cousin had not bathed in days and
           their only source of food was uncooked hotdogs provided
           by neighbors. Later that evening, Mother returned with
           T.M. and provided a urine screen that tested positive for
           heroin. As a result, the Children were taken into
           Emergency Protective Custody. They have been in care
           ever since.

              On July 21, 2014, the Children were adjudicated
           dependent. The Children’s placements were reviewed and
           their dependency continued by orders of Court dated
           November 14, 2014, February 11, 2015, May 14, 2015,
           August 13, 2015, and November 2, 2015. At the November
           2, 2015 review hearing, the permanency goal for both of
           the Children was changed to Adoption. Mother did not
           appeal the goal change.

              On February 29, 2016, CYS filed petitions seeking
           termination of both parents’ parental rights to the
           Children. On March 18, 2016, the petition was served on
           Mother. A termination of parental rights hearing (“TPR
           hearing”) on the petitions was held on April 11, 2016.2 One
           CYS caseworker and [M.M.] (“Maternal Aunt”) testified.

____________________________________________


       1
        The trial court terminated the parental rights of A.D. (“Father”) on
the same date. Father has not filed an appeal from the orders terminating
his parental rights, nor is he a party to the instant appeal.




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       CYS introduced twenty exhibits, and Mother introduced
       none.

          The record in the dependency proceeding and the
       evidence at the TPR hearing demonstrated that, despite
       efforts by CYS, Mother did not satisfy any of her plan
       goals. Among other things, Mother was required to provide
       drug screens three times per week. However, she was not
       consistent. She provided screens only when she came to
       visit the Children, which visits were sporadic at first and
       then non-existent as the case moved forward. Mother
       tested positive for heroin on every drug screen. N.T. 04/1
       1/2016, p. 43. In addition, Mother was supposed to attend
       parenting classes and undergo a drug and alcohol
       evaluation. She did neither. Further, Mother was to obtain
       suitable housing and employment or means of income. She
       never obtained stable housing or provided proof of
       employment. Finally, Mother’s visitation with the Children
       was initially inconsistent. Sadly, it became non-existent.
       Mother has not visited, contacted or attempted to see the
       Children since her last visit on April 22, 2015.
          2
            The hearing was also convened as a permanency
          review hearing.

           During the course of the dependency proceedings,
       Mother was arrested and            incarcerated on several
       occasions. Specifically, Mother was charged with
       Endangering the Welfare of a Child from the event that
       initiated CYS’s involvement with the Children. In
       September of 2014, Mother was arrested in New Jersey
       after she was found with drug paraphernalia in her shoe.
       In January 2015, Mother was arrested on prostitution
       charges in Monroe County. She was jailed at Monroe
       County Correctional Facility from March 16, 2015 to April
       7, 2015 on several outstanding warrants. Mother was also
       incarcerated in Monroe County at the time of the goal
       change hearing in November 2015. Finally, on February
       29, 2016, Mother was sentenced to the State Intermediate
       Punishment Program, a 24-month program run by the
       Department of Corrections, that includes 7 to 9 months of
       inpatient substance abuse treatment in a State
       Correctional Facility followed by various levels of additional
       supervised treatment outside prison walls.


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            In contrast to Mother, the Children are doing well. They
        have lived in their most recent foster home since
        September of 2015. At the TPR hearing, Kristine Weber, a
        caseworker for CYS, testified that the Children are doing
        well in their current placement and have services in place.
        The Children are happy and give hugs and kisses to their
        foster parents. In addition, the foster parents have the
        Children involved in karate and help them play educational
        games on the computer. Moreover, the foster parents are
        willing to provide a permanent home for the Children so
        they can grow up together as brothers.

           During the TPR hearing, Mother’s attorney focused on
        CYS’s effort in making Maternal Aunt, who has five children
        of her own, or her mother, [D.M.] (“Maternal
        Grandmother”), a resource for the Children, and
        questioned Weber as to why New York denied the
        Interstate Compact on the Placement of Children (“ICPC”)
        request submitted by the Agency for both family members.
        Mother called only one witness, Maternal Aunt, who
        testified to the events surrounding New York’s denial of the
        ICPC and expressed a desire to adopt the Children. No
        evidence of a bond between Mother and the Children was
        presented. In fact, when discussing Mother, Maternal Aunt
        testified that she has had no recent contact with Mother
        and that she, not Mother, had always been the one
        primarily responsible for taking care of the Children. There
        was no testimony from Mother who was present by video
        conferencing.

           At the end of the TPR hearing, Mother’s attorney argued
        that Mother loves the Children and had not seen them in a
        long period of time because a non-monetary condition of
        her bail on the Endangering charges prevented her from
        having contact with them. However, the evidence
        demonstrated that, after bail was set in the Endangering
        case, Mother was permitted to see the Children despite the
        bail condition. In fact, she did visit with them, albeit
        sporadically, after bail was set.

Opinion Pursuant to Pa.R.A.P. 1925(a), filed 6/3/16, at 1-5 (“1925(a) Op.”).




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       On April 12, 2016, the trial court entered orders terminating Mother’s

parental rights to the Children pursuant to Pa.C.S. § 2511(a)(1), (2), (5),

(8), and (b). On May 10, 2016, Mother timely filed notices of appeal.2

       Mother raises two questions on appeal:

           1. Did Children and Youth fail to present clear and
           convincing evidence that termination of mother’s parental
           rights served the emotional needs and welfare of her sons,
           T.M. and A.D. where the boys had able capable and
           appropriate grandmother and aunt providing love care and
           support during mother’s incarceration which incarceration
           was/is of brief duration?

           2. Did trial court err in terminating her parental rights
           without clear and convincing evidence that termination
           best served T.M.’s and A.D.’s emotional needs and
           welfare?

Mother’s Br. at 9.

       Taken together, Mother’s issues on appeal challenge the propriety of

the termination. Mother maintains that she was due to complete the State

____________________________________________


       2
         Mother initially failed to file concise statements of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In light of this
defect in the notices of appeal, the trial court on May 12, 2016 ordered
Mother to file a Pa.R.A.P. 1925(b) statement within ten days of the date of
the order. Mother timely complied with the order, filing the Pa.R.A.P.
1925(b) statement on May 19, 2016. See In re K.T.E.L., 983 A.2d 745,
747 (Pa.Super. 2009) (failure to file 1925(b) contemporaneously with
children’s fast track appeal is considered defective notice of appeal and will
not be dismissed since failure to file statement is violation of procedural rule,
not an order of court); Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa.Super. 2010)
(failure to file 1925(b) statement of errors complained of on appeal, when
ordered by trial court, will result in waiver of all issues on appeal).




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Intermediate Punishment Program in October 2017, and would be available

to perform parental duties upon her release. Mother’s Br. at 17-18. Mother

argues that incarceration is not conclusive of abandonment, and that

Mother’s incarceration is only for a short and finite period of time. Id. at 13,

20.   She further argues that CYS failed to establish that termination was

proper because Children’s aunt and grandmother were available to care for

Children while Mother was incarcerated. Id. at 18. Mother continues that

there was “simply no evidence” presented at trial that demonstrated

whether the emotional needs and welfare of the Children would be

negatively impacted by terminating Mother’s rights.        Id. at 13, 22.   We

disagree.

      We consider Mother’s issues 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 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) (alteration in original).


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      The Pennsylvania Supreme Court has explained the reason for

applying an abuse of discretion to termination decisions:

         [U]nlike 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 citation

omitted).

      This Court need only agree with any one subsection of section

2511(a), along with section 2511(b), in order to affirm the termination of

parental rights.   In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en

banc).   We conclude that the trial court in this case properly terminated

Mother’s parental rights pursuant to sections 2511(a)(2) and (b), 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:

                                     ...

            (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

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

                                     ...

         (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. § 2511(a)(2), (b).

      To terminate parental rights pursuant to section 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 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.”         See In re

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

      Our Supreme Court has instructed:

         incarceration is a factor, and indeed can be a
         determinative factor, in a court’s conclusion that grounds
         for termination exist under § 2511(a)(2) where the
         repeated and continued incapacity of a parent due to
         incarceration has caused the child to be without essential
         parental care, control or subsistence and . . . the causes of
         the incapacity cannot or will not be remedied.


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In re Adoption of S.P., 47 A.3d at 828. Further, the Supreme Court

stated:
            [T]he length of the remaining confinement can be
            considered as highly relevant to whether “the conditions
            and causes of the incapacity, abuse, neglect or refusal
            cannot or will not be remedied by the parent,” sufficient to
            provide grounds for termination pursuant to 23 Pa.C.S. §
            2511(a)(2). [In re E.A.P., 944 A.2d 79, 85 (Pa.Super.
            2008)] (holding termination under § 2511(a)(2) supported
            by mother's repeated incarcerations and failure to be
            present for child, which caused child to be without
            essential care and subsistence for most of her life and
            which cannot be remedied despite mother's compliance
            with various prison programs).

Id. at 830 (some internal citations omitted).3

       We find the following portion of the trial court’s opinion relevant to our

inquiry concerning Section 2511(a)(2):

            [W]e found that the statutory grounds for termination of
            Mother’s parental rights had been established by clear and
            convincing evidence, and further, that termination of her
            rights best served the needs and welfare of the Children.
            Prompted by Mother’s appeal, we have again carefully
____________________________________________


       3
           In addition,

            If a court finds grounds for termination under subsection
            (a)(2), a court must determine whether termination is in
            the best interests of the child, considering the
            developmental, physical, and emotional needs and welfare
            of the child pursuant to § 2511(b). In this regard, trial
            courts must carefully review the individual circumstances
            for every child to determine, inter alia, how a parent’s
            incarceration will factor into an assessment of the child’s
            best interest.

In Re Adoption of S.P., 47 A.3d at 830-31.



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         reviewed the record and remain convinced that our
         decisions are supported by both the facts and the law, and,
         moreover, fulfilled and advanced the best interest of the
         Children.

         As of the termination hearing, CYS had been involved with
         this family for more than seventeen months. Both before
         and after the Children were adjudicated dependent and
         placed in foster care, Mother consistently demonstrated a
         lack of capacity to perform parental duties for the Children.
         Maternal Aunt testified that she, not Mother, took care of
         the Children before the July 2014 incident. No evidence
         was presented to refute the Aunt’s testimony. Moreover,
         despite the provision of services by CYS, Mother
         demonstrated an inability to remedy the conditions which
         caused the Children to be placed or to satisfy service plan
         goals. In this regard, Mother has consistently been unable
         to obtain and maintain either suitable housing or
         employment and is incarcerated. She continued to test
         positive for heroin.      Further, since being placed in
         September 2015, the foster parents, rather than Mother,
         have provided nurturing and care for the Children and
         have insured that their physical, mental, emotional,
         medical, developmental, and daily needs have been met.
         Finally, Mother has not visited or contacted the Children
         since April 2015. Under these circumstances and the
         evidence presented at hearing, it was clear to us that CYS
         had established grounds for termination of Mother’s
         parental rights to the Children under subsections
         2511(a)(1), (2), (5), and (8).

1925(a) Op. at 22-23.

     CYS caseworker Kristine Weber testified that the Children have been

dependent for almost two years at the time of the hearing. N.T., 4/11/16,

at 10.   Ms. Weber further testified that Mother tested positive for heroin

every time she came to visit the Children, id. at 43, and that Mother had not

visited the Children since April 22, 2015, id. at 22. Ms. Weber avers that

Mother has not made any attempt to stay in contact with the Children while



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she has been in prison except a letter addressed to the trial court judge,

which was received on March 21, 2016. Id. at 36, 46.

       Mother argues she was unable to perform her parental duties due to

her incarceration, and that Maternal Grandmother and Maternal Aunt were

able to provide nurturing care for the Children during Mother’s temporary

incarceration. This Court has held that incarceration can be a determinative

factor where the incarcerated parent’s repeated and continued incapacity

leaves a child without essential care. In re Adoption of S.P., 47 A.3d at

830. Mother’s incarceration, when taken together with Mother’s continued

positive urine screens for heroin and her failure to maintain contact with the

Children while the Children were in foster care, demonstrates a repeated and

continued incapacity, abuse, neglect or refusal on Mother’s part which has

caused the Children to be without essential parental care pursuant to section

2511(a)(2).4

       We conclude that the record supports the trial court’s credibility and

weight determinations, and it did not abuse its discretion when it terminated

Mother’s parental rights pursuant to section 2511(a)(2).    See In re M.G.,

855 A.2d 68, 73-74 (Pa.Super. 2004).
____________________________________________


       4
         Further, CYS explored the possibility of kinship care with both
maternal Grandmother and maternal aunt through requests pursuant to the
Interstate Compact on the Placement of Children (“ICPC”). N.T., 4/11/16,
11-12, 20-29. The ICPC requests were denied due to concerns with the
placements. Id. at 18, 29.




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      The trial court must also consider how terminating Mother’s parental

rights would affect the needs and welfare of the Children pursuant to 23

Pa.C.S. § 2511(b).    The focus in terminating parental rights under section

2511(b) is not on the parent, but on the child. In re Adoption of C.L.G.,

956 A.2d 999, 1008 (Pa.Super. 2008) (en banc).             Pursuant to section

2511(b), the trial court must determine “whether termination of parental

rights would best serve the developmental, physical and emotional needs

and welfare of the child.”      See In re C.M.S., 884 A.2d 1284, 1286

(Pa.Super. 2005).    “When conducting a bonding analysis, the court is not

required to use expert testimony.”        In re Z.P., 994 A.2d 1108, 1121

(Pa.Super. 2010). Further, “[a] parent’s own feelings of love and affection

for a child, alone,” will not preclude termination of parental rights. Id. As

this Court stated, “a child’s life ‘simply cannot be put on hold in the hope

that [a parent] will summon the ability to handle the responsibilities of

parenting.’” In re Z.S.W., 946 A.2d 726, 732 (Pa.Super. 2008) (quoting In

re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super.2003)). Rather, “a

parent’s basic constitutional right to the custody and rearing of his child is

converted, upon the failure to fulfill his or her parental duties, to the child’s

right to have proper parenting and fulfillment of his or her potential in a

permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa.Super. 2004).




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      This Court has explained that, “[i]ntangibles such as love, comfort,

security, and stability are involved in the inquiry into the needs and welfare

of the child.”      In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005).

Further, 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. (citation omitted).   However, “[i]n

cases where there is no evidence of any bond between the parent and child,

it is reasonable to infer that no bond exists.      The extent of any bond

analysis, therefore, necessarily depends on the circumstances of the

particular case.”     In re K.Z.S., 946 A.2d 753, 762-763 (Pa.Super. 2008)

(citation omitted).

      Ms. Weber testified that she observed the Children in the foster

placement, and described the Children as “very bubbly” and that they are

“always happy.”       N.T., 4/11/16, at 37.   Ms. Weber continued that the

Children go to their foster mother with any issues or concerns. Id. at 38.

Ms. Weber stated that, while the Children do still talk about their biological

family, the Children are connected to their foster parents. Id. Ms. Weber

further testified that the Children appear bonded to their foster parents, and

display affection for their foster parents by hugging and kissing their foster

parents. Id. at 48.

      With regard to the Children’s bond with Mother, the trial court stated

that it “was just as clear to us that the best interests and welfare of the


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Children required that Mother’s parental rights be terminated.” 1925(a) Op.

at 23.   The trial court continued, “[a]t the hearing, Mother’s attorney

expressed that Mother loved the Children and did not want to give up

parental rights.” Id. The trial court concluded:

         Under these facts, we found that whatever bond exists
         between Mother and the Children is neither as strong nor
         as enduring and nurturing as the bond that exists between
         the Children and foster parents. Consistently, we found
         that severing parental ties with Mother would not harm the
         Children mentally, emotionally, or spiritually, while
         breaking the bond with the foster parents, who have been
         their parents, would do them significant harm.

         Simply, under the facts and circumstances of this case, we
         found that termination of Mother’s parental rights would
         best serve the developmental, physical, and emotional
         needs and welfare of the Children and promote their best
         interests.

Id. at 25.

      The record supports the trial court’s conclusion. The Children have a

strong, enduring bond with foster parents, which would cause the Children

significant harm if the bond were broken. Mother has made no attempt to

contact the Children since April of 2015.       We find that the competent

evidence in the record supports the trial court’s determination that there was

no bond between Mother and the Children which, if severed, would be

detrimental to the Children, and that the termination of Mother’s parental

rights would best serve the needs and welfare of the Children. Thus, we will

not disturb the trial court’s determinations.   See In re M.G., 855 A.2d at

73-74.


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     We affirm the orders terminating Mother’s parental rights on the basis

of sections 2511(a)(2) and (b).

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2017




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