J-S08030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN   RE:   S.M.C.     (7/7/04),  D.K.C.        IN THE SUPERIOR COURT OF
(12/12/06), AND       J.M.C. (7/28/05),              PENNSYLVANIA
MINOR CHILDREN


APPEAL OF: T.C.,                               No. 1325 WDA 2015


                Appeal from the Order entered July 29, 2015,
        in the Court of Common Pleas of Somerset County, Orphans’
                Court, at No(s): 27, 27A, 27B Adoption 2014

BEFORE: STABILE, J. DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 22, 2016

     T.C. (“Mother”) appeals from the Order entered by the Somerset Court

of Common Pleas on July 29, 2015, granting Maternal Grandparents’ petition

to terminate involuntarily the parental rights of Mother to her three children

(“Children”) pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b), and changing

the Children’s permanency goals to adoption pursuant to the Juvenile Act, 42

Pa.C.S.A. § 6351. We affirm.1

     The relevant facts and procedural history of this case are as follows.

     Mother lived with her mother (“Maternal Grandmother”) until she was

approximately 12 or 13 years old. She left Maternal Grandmother’s home

after Maternal Grandmother’s paramour (“Maternal Step-Grandfather”)

allegedly paddled her with a board.    Mother lived with her own father in

North Carolina and eventually began a relationship with Children’s Father.

1
 Father’s parental rights were also involuntarily terminated. Father has not
appealed that determination, and is not a subject of this appeal.
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      In July 2004, when she was 21 years old, Mother gave birth to S.M.C.

In November 2004, Mother, Father, and S.M.C. moved back to Pennsylvania,

where they resided for a couple of weeks with Maternal Grandmother,

Maternal   Step-Grandfather   (collectively   “Maternal   Grandparents”),   and

Mother’s half-sister, K.H.2

      Mother gave birth to J.M.C. in July 2005, and D.K.C. in December

2006. Sometime in 2008, Mother and Father broke off their romantic

relationship. Mother and Children lived together in an apartment until Mother

was evicted sometime in 2008. She and Children then moved back in with

Maternal Grandparents. Mother obtained a job and was able to purchase a

mobile home. She worked evenings. Children went to day care during the

day, and stayed with Maternal Grandparents when Mother was working.

      In 2009, Mother broke her leg in an automobile accident and was

unable to work and support herself. Children then began living full time with

Maternal Grandparents. See N.T., 7/28/15, at 16; Trial Ct. Op., dated

10/07/15, at ¶ 50.

      Mother resided with Maternal Grandparents and Children for a short

time in 2011 after she broke her leg a second time, but her relationship with

Maternal Step-Grandfather was strained and she moved out.             Children

remained with Maternal Grandparents.

2
 Maternal Grandmother and Maternal Step-Grandfather are not legally
married but have lived together for over twenty years. K.H., Children’s
maternal aunt, is their child.

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     At some point, Mother obtained a new place to live and a job working

in a nursing home.    During this period, Mother had custody of the three

children, had beds for them, clothing for them, and supplies as needed.

Since 2004, in addition to occasionally residing in Maternal Grandparents’

home, Mother has resided at least nine different places, including a

homeless shelter. See Trial Ct. Op., at ¶71.

     In August 2013, Maternal Grandmother filed an emergency ex parte

Petition for Custody after Pennsylvania State Police appeared at her home

looking for Mother.   On August 9, 2013, the Court of Common Pleas of

Somerset County held a hearing and granted primary physical custody of

Children to Maternal Grandmother. The court awarded Mother partial

custody on Saturdays and Sundays from 10:00 a.m. to 5:00 p.m., and such

other days as mutually agreed upon by the parties.       The court directed

Somerset County Child Custody and Visitation Office to conduct home

studies of both the home of Grandmother and the home of Mother.            If

Mother’s home study were satisfactory, Mother would be allowed to have

Children overnight.   The court also found that Maternal Grandmother “has

stood in loco parentis for a period of approximately six and one half years.”

Trial Court Op., dated 10/7/15, at ¶24.

     Children spent their weekend days with Mother until January 2014

when Mother told them to tell Maternal Grandmother not to bring them

around because she was being evicted. Thereafter, Mother did not call, show


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up at Maternal Grandparents’ home, or send cards to Children.          Maternal

Grandmother did not know where Mother had gone and had no telephone

number through which to contact her.         Mother has had no contact with

Children since January 2014.

        On October 22, 2014, Maternal Grandparents, as proposed adoptive

parents, filed three Petitions for Involuntary Termination of Parental Rights

and a Petition to Change the Goal to Adoption for all three Children. Because

Children had resided with Maternal Grandparents for over six and one-half

years, the trial court waived the requirement for a home study.

        On July 28, 2015, the trial court held a hearing at which Mother,

Father, and Maternal Grandparents testified.3        At the conclusion of the

hearing, the trial court entered its order terminating the parental rights of

Mother and Father pursuant to section 2511(a)(1), (2), and (b), and

changing Children’s permanency goal to adoption.

        On August 21, 2015, Mother filed a timely notice of appeal, along with

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). Mother raises the following issue on appeal.

        Whether the trial court abused its discretion by granting the
        petition to involuntarily terminate Mother’s parental rights under
        23 Pa.C.S.A. § 2511(a)(1), and (2) when the evidence did not
        establish a “settled purpose to relinquish parental rights” or a
        refusal to parent because she was remedying her financial
        position and attempted [to] maintain contact with [the C]hildren


3
    Children were represented by guardian ad litem Randy Wisnouse, Esq.

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      despite  significant    obstacles     created       by   [Maternal
      Grandparents]?

Mother’s Brief at 5.4

      Our standard of review regarding orders terminating parental rights is

as follows:

      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).




4
  Mother did not raise a challenge to the trial court’s change of goal to
adoption in her Pa.R.A.P. 1925(b) Statement or in her Statement of
Questions Involved in her brief. Any argument pertaining to Children’s
permanency goal change is, thus, waived. See Pa.R.A.P. 302(a).
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      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).

      In terminating Mother’s parental rights, the trial court relied upon

Sections 2511(a)(1),(2), and (b) of the Adoption Act, which provide, in

relevant part, 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
            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

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     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), … 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.

     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) (en banc).

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence to support the involuntary termination of a parent’s rights

pursuant to Section 2511(a)(1) as follows:

     To satisfy the requirements of Section 2511(a)(1), 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 addition,

         Section 2511 does not require that the parent
         demonstrate both a settled purpose of relinquishing
         parental claim to a child and refusal or failure to perform
         parental duties.   Accordingly, parental rights may be
         terminated pursuant to Section 2511(a)(1) if the parent
         either demonstrates a settled purpose of relinquishing
         parental claim to a child or fails to perform parental
         duties.

         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

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            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
            [s]ection 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

     Regarding the definition of “parental duties,” this Court has stated:

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A
     child needs love, protection, guidance, and support. These
     needs, physical and emotional, cannot be met by a merely
     passive interest in the development of the child. Thus, this
     Court has held that the parental obligation is a positive duty
     which requires affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent exert himself to take and maintain a place
     of importance in the child’s life.

     Parental duty requires that the parent act affirmatively with good
     faith interest and effort, and not yield to every problem, in order
     to maintain the parent-child relationship to the best of his or her
     ability, even in difficult circumstances. 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 . . . her physical and emotional
     needs.

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

omitted).


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      Appellant avers that since January 2014, she has faced major hurdles,

preventing her from caring for Children, such as homelessness, unanswered

phone calls and text messages by Maternal Grandmother and her half-sister,

a strained relationship with Maternal Grandparents, and no transportation to

visit Children.   Appellant’s Brief at 13-14.    Mother contends that she

reasonably resisted these obstacles, but she was unable to maintain contact

with the Children despite her best efforts and desire to do so.    Id. at 14.

Accordingly, Mother posits that the evidence did not establish that she

deliberately relinquished her parental rights or continuously refused to

parent. Id. at 14-15.5

      At the termination hearing, Maternal Grandmother testified that, since

January 2014, Mother has not visited Children, contacted Children, or sent

Children any birthday cards, gifts, or letters. N.T., 7/28/15, at 9, 31.

Maternal Grandmother further testified that, since January 2014, Mother has

not contacted Grandparents to resume her visitation with Children, and has

not provided any financial support. Id. at 13.

      Maternal Grandmother also testified that Children refer to Mother and

Father by their first names, while they call Maternal Grandmother “Mom” or

“Grandma,” and refer to Maternal Step-Grandfather as “Dad” or “Pap.” She


5
  Mother also argues that the trial court failed to consider that there was a
reasonable prospect of reunification as she works full time now and is close
to securing a home. Appellant’s Brief at 14-15. As noted above, Mother did
not raise this argument before the trial court. It is, thus, waived. Pa.R.A.P.
302(a). See supra, n.4.
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also stated that Maternal Aunt and Children have a sibling relationship.

Maternal Grandmother further testified that she and Maternal Step-

Grandfather have taken Children to doctor’s appointments, attended school

conferences, and provided for their physical, financial, and emotional needs.

Maternal Grandmother stated that she believed it would be in Children’s best

interests to terminate Mother’s and Father’s parental rights because contact

with them is “erratic. They’re in their life one day and gone for six months[,

a] year.” Id. at 23.

      Maternal Step-Grandfather testified that he and Maternal Grandmother

attend S.M.C.’s and D.K.C.’s cheerleading practices and J.M.C.’s football

events, while Mother and Father have not attended any of their daughters’

cheerleading practices or their son’s football games. Id. at 55-56, 70.6

      Mother testified that she discontinued her visitations with Children in

January 2014 because she lost her mobile home and moved into a homeless

shelter.   Id. at 91-92.   Mother stated that, when she obtained another

apartment, she tried contacting Maternal Grandmother, Maternal Aunt and

CYS investigator, Mary Mock, but received no response.        Id. at 93, 96.

Mother further testified that she did not seek to modify custody prior to the

termination hearing because she could not afford a lawyer. Id. at 108.




6
 Maternal Step-Grandfather admitted that CYS investigated him for paddling
Mother when she was twelve or thirteen, but claimed the allegation of abuse
was unfounded. Id. at 61.
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      Mother admitted that, since January 2014, she has not sent any gifts,

cards, or money to Children. Id. at 110. Mother also acknowledged that

she does not know how the Children are doing in school, or if there are any

medical concerns afflicting the Children. Id. at 109.

      Mother further testified that she currently works full-time as a hotel

housekeeper and, although currently homeless, she is on the waiting list to

get into an apartment at Village Way.        Id. at 73-74, 106, 120.   Mother

admitted that two months prior to the termination hearing, she was arrested

and charged with possession or manufacture of controlled substances and

criminal use of communication device.          She acknowledged that those

charges were still pending as she had not yet entered a plea. Id. at 111.

      At the close of testimony, the guardian ad litem stated:

      After my appointment at one of the prior hearings, I did have
      the opportunity to meet with all three children. At that time I
      met with them initially as a group, and subsequently individually.

      Each of the children expressed love for the grandparents and a
      desire to stay with the grandparents. They knew that they had a
      mother and father out there in the world, but they couldn’t
      understand their circumstances.

      They knew that there was some incarcerations involved. They
      knew that they spend a night with Mommy at a friend’s house
      some many months ago. …

      I believe that given the totality of the circumstances, the
      residences of the mother by my count, 13 different residences
      since the move back to Pennsylvania, and in anticipation of an
      adoption hearing to terminate her parental rights, she appears
      as homeless today.



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      … [Father] testified that he lost track of the natural mother.
      Even he couldn’t keep up with her whereabouts … and [she]
      could not even keep a cell phone to maintain contact … due to
      nonpayment of the cell phone bill.

N.T. at 175-76.

      The trial court granted Maternal Grandparents’ petitions to terminate

Mother’s and Father’s parental rights, observing that although there had

been periods when Mother “did step up to the plate,” the evidence showed

that Mother had not satisfied her role as a parent for a period approaching

eighteen months. Trial Ct. Op. at 11; see also N.T., 7/28/15, at 179-80.

The trial court found that, notwithstanding her poverty and work schedule,

Mother presented no excuse as to why she could not exhibit even a “shred of

interest” in the Children.   Trial Ct. Op. at 11.   “She just hasn’t given the

[c]ourt any reason to believe that she has any interest other than appearing

here today because we appointed counsel for her to help her with her

defense of this petition.” N.T. at 181.

      The trial court further found Mother’s testimony to be wholly incredible

and self-serving. Trial Ct. Op. at 15. The court observed that Mother took

no responsibility for her failure to resume her parental obligations, instead

blaming Maternal Grandparents, who have been there for her and the

Children since she moved back to Pennsylvania. Id. The trial court found

there was no evidence that Maternal Grandparents placed any barriers upon

her showing up at their house to spend time with the Children. Id. at 12.

The trial court noted that, while there was testimony that Mother might have

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had issues with Maternal Step-Grandfather, there was no testimony that

Mother was not welcome in their home. Id.

      The trial court also gave no weight to Mother’s testimony that her

failure to return to the custodial home of the Children was the result of her

concern for Maternal Step-Grandfather’s abusive behavior as she took no

legal action of any kind to protect the Children from this alleged abuse. Id.

at 14. The trial court concluded that, for the past eighteen months, Mother

simply refused to “swallow[ ] her pride,” go to Maternal Grandparents’

house, and do “[a]nything that would show that she had some interest” in

being part of the Children’s lives. Id. at 15; N.T., 180-81.

      The trial court also noted that but for Maternal Grandparents, the

children would have been in the custody of Children and Youth Services.

N.T. at 180. It observed that Children have been in a nurturing environment

with Maternal Grandparents for many years and that they are doing well.

Id. at 181. Significantly, the trial court stated:

      [Maternal Grandparents] have been there day in and day out for
      the children who have thrived in their custody and care. They
      refer to the Petitioners as “mommy” and “dad” as the custody
      court found them to be in loco parentis for the last 6 and ½
      years. The children’s physical, emotional, and educational well-
      being have been maintained by the Petitioners as they have
      been nurtured in their care. The best interests and welfare of
      the children are best served by allowing Petitioners to fulfill the
      role as adoptive parents in this case.

Trial Ct. Op. at 14 (unpaginated)




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      After our careful review, we conclude that the trial court’s findings of

fact and credibility determinations are supported by the record.         As we

stated in In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), 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.” Id. at 1125. 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 at 856.

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

of Section 2511(a)(1) and (b) of the Adoption Act, and changing Children’s

permanency goal to adoption under section 6351 of the Juvenile Act.7

      Order affirmed.




7
  Mother did not challenge the trial court’s determination that termination of
her parental rights would be in the best interests of Children.            We
nonetheless have reviewed the record carefully, and conclude that the trial
court’s determination as to Section 2511(b) is supported by the evidence.
Although the trial court did not conduct a formal bonding analysis, it
properly relied on Grandmother’s testimony that Mother has not made any
contact with Children since January 2014, Children do not ask about Mother,
and Children look to Grandparents to have their needs met in concluding
that the Children do not have a meaningful bond with Mother. See Trial
Court Opinion at ¶¶29, 32. We note that the guardian ad litem has not
appealed the trial court’s determination.
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2016




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