J-S69031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF A.D., A MINOR         :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
APPEAL OF: H.R., MOTHER                  :
                                         :         No. 555 MDA 2016

                    Appeal from the Decree March 10, 2016
           in the Court of Common Pleas of Northumberland County
                   Orphans’ Court at No.: Adoptee 47-2015

BEFORE: STABILE, DUBOW, AND PLATT, JJ.

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 14, 2016

       H.R. (Mother) appeals the decree of the Court of Common Pleas of

Northumberland County, entered March 10, 2016, that terminated her

parental rights to her daughter, A.D. (Child), born in November of 2008. We

affirm.1

       Northumberland County Children and Youth Social Service Agency

(CYS) became involved with Child in May of 2014, when it received a

General Protective Services (GPS) referral that local police had responded to

Mother’s home after she was found unconscious on railroad tracks while

Child tried to wake her.        An investigation revealed that Mother had

overdosed.     CYS placed Child informally with her maternal grandmother

(Grandmother).


    Retired Senior Judge assigned to Superior Court.
1
  The trial court also terminated the parental rights of Child’s father, C.D.
(Father), who did not attend the hearing, despite notice. (See N.T. Hearing,
3/10/16, at 3-4). Father did not appeal the termination of his parental
rights.
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     One month later, on June 9, 2014, a GPS report revealed that Mother

and Child had been in an automobile accident while Mother was under the

influence. Mother was severely injured. Child was injured but she did not

require inpatient treatment.      Child was in a booster seat that was not

properly buckled, causing Child to become wedged between the steering

wheel and the windshield. Mother had taken Child from Grandmother while

Grandmother slept.

     CYS staff visited Grandmother’s home on July 8, 2014, to find Mother

present and under the influence. On July 10, 2014, Mother contacted CYS to

tell them she had been kicked out of rehab and that she did not want Child

to remain with Grandmother because she and Grandmother had gotten into

a physical altercation on the previous night. Mother also told CYS that her

brother was coming from Connecticut and that she intended to leave the

area with him and Child.

     CYS   discovered      that   Mother   had   discharged   herself   from   the

rehabilitation facility against medical advice, giving the facility false

information about having to care for her sick mother and having to take her

child to school. In addition, CYS learned that a warrant had been issued for

Mother for her failure to pay certain fines. CYS also learned that Mother did

have a brother, but that he lived in Massachusetts, not Connecticut.




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        The trial court granted CYS’ request and placed Child in the temporary

legal and physical custody of CYS. Child remained in foster placement at the

time of the termination hearing in this matter, almost two years later.

        CYS filed its petition to terminate Mother’s parental rights on October

5, 2015.    Mother was incarcerated on November 2, 2015, for a probation

violation, and is serving a one to two year prison sentence. The trial court

held a hearing on CYS’ petition on March 10, 2016.              Testifying at that

hearing, in addition to Mother, were CYS caseworkers, Sarah Hepler, Lindsay

Ruth, Jennifer Donmyer, and Amanda Thomas; CYS family resource worker,

Kathy George; and Child’s foster mother, J.S.       The trial court entered its

decree terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. §§

2511(a)(1), (2), (5), (8), and (b) on March 10, 2016.            Mother filed her

notice of appeal and statement of errors complained of on appeal on April 4,

2016.     See Pa.R.A.P. 1925(a)(2)(i). The trial court entered its opinion on

May 24, 2016. See Pa.R.A.P. 1925(a)(2)(ii).

        Mother raises the following questions for our review:

        I. Whether the trial court erred in determining that [CYS]
        presented clear and convincing evidence that grounds for
        involuntary termination exist?

        II. Whether the trial court erred in determining that the best
        interests of [] Child would be served by terminating parental
        rights?

        III. Whether the trial court erred in by [sic] denying Mother[’]s
        request for a bonding assessment before it determined that []
        Child’s best interests would be served by terminating Mother’s
        parental rights?

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(Mother’s Brief, at 9) (unnecessary capitalization omitted).2

      Our standard of review is as follows:

      In an appeal from an order terminating parental rights, our
      scope of review is comprehensive: we consider all the evidence
      presented as well as the trial court’s factual findings and legal
      conclusions. However, our standard of review is narrow: we will
      reverse the trial court’s order only if we conclude that the trial
      court abused its discretion, made an error of law, or lacked
      competent evidence to support its findings. The trial judge’s
      decision is entitled to the same deference as a jury verdict.

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

      Further, we have stated:

      Where the hearing court’s findings are supported by competent
      evidence of record, we must affirm the hearing court even
      though the record could support an opposite result.

                   We are bound by the findings of the trial court
            which have adequate support in the record so long
            as the findings do not evidence capricious disregard
            for competent and credible evidence. 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.
            Though we are not bound by the trial court’s
            inferences and deductions, we may reject its
            conclusions only if they involve errors of law or are
            clearly unreasonable in light of the trial court’s
            sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

      The trial court terminated Mother’s parental rights pursuant to 23

Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).       In order to affirm the


2
  No other party to this matter has filed a brief or other pleading or notice in
response to Mother’s Brief.
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termination of parental rights, this Court need only agree with any one

subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).

Requests to have a natural parent’s parental rights terminated are governed

by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:

     § 2511. Grounds for involuntary termination

     (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.

                                  *    *    *

     (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.A. § 2511(a)(1), (b).

     It is well settled that a party seeking termination of a parent’s rights

bears the burden of proving the grounds to so do by “clear and convincing

evidence,” a standard which requires evidence that is “so clear, direct,


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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 T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted). Further,

            A parent must utilize all available resources to preserve
      the parental relationship, and must exercise reasonable firmness
      in resisting obstacles placed in the path of maintaining the
      parent-child relationship. Parental rights are not preserved by
      waiting for a more suitable or convenient time to perform one’s
      parental responsibilities while others provide the child with his or
      her physical and emotional needs.

In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation

omitted).

      To terminate parental rights pursuant to subsection 2511(a)(1), the

person or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the

filing of the petition, the parent’s conduct demonstrates a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform

parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.

Super. 2003).

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

            Once the evidence establishes a failure to perform parental
      duties or a settled purpose of relinquishing parental rights, the
      court must engage in three lines of inquiry: (1) the parent’s
      explanation for his or her conduct; (2) the post-abandonment
      contact between parent and child; and (3) consideration of the
      effect of termination of parental rights on the child pursuant to
      Section 2511(b).




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Matter of Adoption of Charles E.D. M., II, 708 A.2d 88, 92 (Pa. 1998)

(citation omitted). Also,

      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 N.M.B., 856 A.2d 847, 854-55 (Pa. Super. 2004), appeal denied, 872

A.2d 1200 (Pa. 2005) (citations omitted).

      In regard to incarcerated persons, our Supreme Court has stated:

      [I]ncarceration 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 that
      the causes of the incapacity cannot or will not be remedied.

                                  *    *    *

             [W]e now definitively hold that incarceration, while not a
      litmus test for termination, can be determinative of the question
      of whether a parent is incapable of providing essential parental
      care, control or subsistence and the 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.[A.] §
      2511(a)(2). . . . 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 817, 828, 830-31 (Pa. 2012) (case

citations and quotation marks omitted).


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      The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and

welfare of the child.”   23 Pa.C.S.A. § 2511(b).     The Act does not make

specific reference to an evaluation of the bond between parent and child, but

our case law requires the evaluation of any such bond. See In re E.M., 620

A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court

is not required by statute or precedent to order a formal bonding evaluation

performed by an expert.     See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.

Super. 2008).

      In her first issue, Mother claims that CYS failed to establish by clear

and convincing evidence that grounds exist for involuntary termination of

her parental rights. (See Mother’s Brief, at 12). We disagree.

      We have reviewed the record in this matter and find that the record

contains sufficient evidence to terminate Mother’s parental rights pursuant to

subsection 2511(a)(1).    We quote the trial court’s findings in that regard,

with approval:

             Six (6) hearings were held in the dependency portion of
      this case dealing with [Child]. If one thing is clear from the
      evidence presented at the hearings and again recounted during
      the hearing on the termination of [Mother’s] parental rights, it is
      the fact that [Mother] has been a total and abject failure at
      addressing her addiction. Despite repeated attempts by [CYS]
      to help [M]other address her addiction, she was repeatedly
      unable or unwilling to complete any program she entered.
      Despite several inpatient and outpatient programs, each saw
      [Mother] unsuccessfully discharged for non-compliance.



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           Upon [Mother’s] discharge from these programs, we find
     her reverting back to her prior addictive behaviors. The record
     is replete with her failures; it is replete to the point of
     redundancy with the occasions that [Mother] was under the
     influence with her contacts with [CYS], be they in person or by
     phone.     Perhaps most disturbing and distressing are the
     occasions when she was under the influence during visitations
     with [Child].

            We find the statement of one of the caseworkers who
     testified at the termination proceedings to be the most telling
     when she was asked to characterize whether [Mother’s] love for
     [Child] was strong. The caseworker testified,

                  “I think it is, but, there’s times that I think
           other things in [Mother’s] life that come to be a
           priority, but she can’t control, that goes over priority
           of [Child].” (N.T. Hearing, 3/10/2016, at 85).

            We agree. [Mother’s] addictions, her “binging” of drugs as
     she herself repeatedly admitted were and to this day in the view
     of this [c]ourt, are still her priority. [CYS] helped her attempt to
     get her priorities in order [through] various types of treatment to
     no avail. Even the risk of losing [Child], whom she professes to
     love so much, is not enough for this woman to get her priorities
     in order. This failure to address her addictions has now left her
     to be serving a one to two year prison sentence in a State
     Correctional Institut[ion]. Most telling is that the underlying
     charge for her current sentence is Endangering the Welfare of
     Children. [Child] has been and will continue to be at risk given
     [Mother’s] priority of binging her prescription drugs over
     providing for the safety and needs of [Child].

                              *    *     *

           Part one of the bifurcated analysis required this Court to
     review the conduct of the natural mother in this case. We
     believe we more than adequately set forth in the first section of
     this opinion the complete failings of [Mother] by clear and
     convincing evidence. She has failed to perform her parental
     duties or complete those steps necessary to allow her to perform
     her parental duties for a period of at least six (6) months, in this
     case eighteen (18) months[.]


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(Trial Court Opinion, 5/24/16, at 3-4, 6) (record citation formatting
provided).

      The trial court did not err or abuse its discretion when it terminated

Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1).

      With respect to her second issue, Mother argues that the termination

of her parental rights would not be in Child’s best interest because her

incarceration will be relatively brief and she will then be able to once again

care for Child. (See Mother’s Brief, at 22). We disagree.

      We again quote the trial court, with approval, as it discusses Child’s

best interests and welfare:

              During the termination hearing, this [c]ourt heard the
       testimony of several caseworkers, a resource worker and the
       foster mother as to their observations of the interactions
       between [Mother] and [Child] and most telling the effects of the
       visitation between [Mother] and [C]hild on [Child].         This
       evidence did in fact demonstrate that there is a bond between
       [Mother] and [Child]. It encompasses love, however, it is not a
       maternal bond between [a] mother and [a] child, it is an
       unnatural bond. From our perspective, it is more of a bond a
       familiarity. It is a bond where seemingly the roles have been
       reversed with [Child] assuming the role of maturity and
       [Mother] an almost child-like emotional mind set.

              The testimony and observations of all clearly demonstrate
       [Child] keeps an emotional distance from [Mother] during the
       visitations and exhibits a demeanor of reserve and wariness as
       to what to expect. The testimony of the [f]oster [m]other was
       the most telling and most compelling to us. She outlined the
       negative impact the visitations have upon [Child] after her
       visitation with [Mother]. She outlined the acting out behaviors
       of [Child] post visitation. She testified as to the anxieties
       [Child] suffered through when visitations were scheduled with
       [Mother]. On the one hand excited to see [Mother], on the
       other, trepidation as to the condition [Mother] would be in,
       sober or under the influence.

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              Finally, the [f]oster [m]other provided testimony of the
       stability and enjoyment [Child] finds in the foster home. We
       understand the [f]oster [p]arents are willing to make this a
       permanent arrangement and [Child] herself looks forward to
       this stability as well. Thus, in our view while a bond may exist
       between [Mother] and [Child] it is not one worthy of
       preservation.

             For all the foregoing reasons, we find it was in the best
       interest of [Child] by clear, convincing and compelling evidence
       to involuntarily terminate the parental rights of [Mother].

(Trial Ct. Op., at 8-9).

      The trial court did not err or abuse its discretion when it determined

that the termination of Mother’s parental rights was in Child’s best interests.

      Finally, Mother complains that the trial court erred when it failed to

order a bonding assessment of the bond between her and Child. However,

she did not include this issue in her statement of errors complained of on

appeal, and accordingly, it is waived.        See Pa.R.A.P. 1925(b)(4)(vii).

Moreover, the trial court is not required by the Adoption Act or our case law

to order a formal bonding evaluation performed by an expert.        See In re

K.K.R.-S., supra at 533. Mother’s third issue would not merit relief.

      Accordingly, we affirm the decree of the Court of Common Pleas of

Northumberland County that terminated Mother’s parental rights pursuant to

23 Pa.C.S.A. §§ 2511(a)(1) and (b).

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/14/2016




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