J-S67044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: X.A.M., A              :   IN THE SUPERIOR COURT OF
MINOR                                      :        PENNSYLVANIA
                                           :
                                           :
APPEAL OF: X.V.-M., MOTHER                 :
                                           :
                                           :
                                           :
                                           :   No. 1250 EDA 2016

                     Appeal from the Order April 11, 2016
             in the Court of Common Pleas of Philadelphia County
            Domestic Relations at No(s): CP-51-AP-0000028-2016,
                           CP-51-DP-0002781-2014


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED OCTOBER 12, 2016

       Appellant, X.V.-M. (“Mother”), appeals from the Order entered in the

Court of Common Pleas of Philadelphia County on April 11, 2016,

involuntarily terminating her parental rights to X.A.M. (born in November of

2014) (“Child”), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and

(b).1 We affirm.

       On November 9, 2014, this family became known to the Department

of Human Services (“DHS”) when DHS received a General Protective

Services (“GPS”) report. The GPS report alleged that Mother tested positive
____________________________________________


*Former Justice specially assigned to the Superior Court.
1
   L.F. (“Father”) filed an appeal, pro se, of the trial court’s Order
involuntarily terminating his parental rights at Superior Court Docket No.
1516 EDA 2016. That appeal is not before this Panel for consideration.
J-S67044-16



for the drug PCP, had been a victim of Father’s domestic abuse, and had a

history of mental health problems. On November 26, 2014, Mother asked

her mother to care for Child.         Child’s maternal grandmother, in turn, took

Child to an “aunt’s” home.2 On November 28, 2016, DHS visited the aunt’s

home and observed that the home did not have adequate food. That same

day, DHS obtained an order for protective custody and placed Child in a

Crisis Nursery program.         On December 10, 2014, Child was adjudicated

dependent.

       On January 12, 2016, DHS filed a petition to involuntarily terminate

Mother’s parental rights pursuant to Section 2511(a)(1), (2), (5), (8), and

(b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b),

and change Child’s permanency goal to adoption.             The trial court held

hearings on the petition on January 28, 2016, and April 11, 2016. At these

hearings, the trial court heard testimony from Amanda Fernandez, a

Community Umbrella Agency (“CUA”) caseworker and Mother. By an order

entered April 11, 2016, the trial court terminated Mother’s parental rights to

Child and changed Child’s goal to adoption.




____________________________________________


2
  The trial court referenced an “aunt” in its opinions. However, neither the
trial court’s opinions nor the certified record specifies the aunt’s relationship
to Mother or Child.



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      On April 13, 2016, Mother timely filed the instant appeal, along with a

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

1925(a)(2)(i) and (b).

      In her brief, Mother raises the following issues for our review:

      1. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother[] pursuant to 23
      Pa.C.S.A. [§] 2511(a)(1) where Mother presented evidence that
      she tried to perform her parental duties to the best of her
      abilities[?]

      2. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother pursuant to 23
      Pa.C.S.A. [§] 2511(a)(2) where Mother presented evidence that
      she remedied her situation by participating in mental health
      treatment with medication management and drug treatment and
      has the present capacity to care for [Child][?]

      3. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother pursuant to 23
      Pa.C.S.A. [§] 2511(a)(5) where evidence was provided to
      establish that [Child] was removed from the care of Mother and
      Mother is now capable of caring for [Child][?]

      4. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother pursuant to 23
      Pa.C.S.A. [§] 2511(a)(8) where evidence was presented to show
      that Mother is now capable of caring for [Child] since [Mother]
      participated in drug treatment and mental health treatment[?]

      5. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother pursuant to 23
      Pa.C.S.A. [§] 2511(b) where evidence was presented that
      established Mother and Child were never given the appropriate
      environment for visiting each other[?]

Mother’s Brief at 7.

      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) (citation omitted).         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. This Court has 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. and J.G., Minors, 855 A.2d

68, 73-74 (Pa.Super. 2004).     “[I]f 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




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

banc).

      Herein, we review the orders pursuant to Section 2511(a)(1) and (b),

which provide as follows:

      § 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).

      When reviewing the statutory requirements, this Court has found:

          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,


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            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 [S]ection 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
            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

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        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 his or her physical and emotional
        needs.

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

omitted).

        In her brief, Mother contends she has never “evidenced a settled

purpose of relinquishing her parental rights” to Child. Mother’s Brief, at 15.

Mother states that she participated in mental health treatment and drug

treatment.     Id.     Mother avers that DHS was aware of Mother’s mental

health diagnosis and could have offered Mother “a more therapeutic setting”

in which to visit Child.      Id.   Mother further argues that DHS should have

used a parenting capacity evaluation to determine what additional services

Mother might utilize to become a better parent. Id.

        The trial court found that “Mother, by her conduct, had refused and

failed to perform parental duties.” Trial Court Opinion (“TCO”), 5/24/16, at

7. The trial court stated:


        Mother’s SCP[3] objectives were to maintain contact with CUA,
        visit Child and build a relationship with him, and engage in
        individual therapy, drug and alcohol treatment and mental health
____________________________________________


3
    Refers to “single case plan.”



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      treatment. Mother last attended drug and alcohol treatment and
      individual therapy in August 2015. She was never engaged in
      mental health treatment. Mother was originally given bi-weekly
      supervised visits, but these were changed to monthly visits
      because Mother did not attend. Mother made only one visit
      during the six months preceding the filing of the petition.
      Mother has not used her visits to build a bond with Child. In
      Mother’s own words, “I had too much stuff to do at the same
      time.” Mother admitted she had not made her visits even
      though she did not have a 9-to-5 job. Mother has an affirmative
      duty to perform parental duties, including visitation. Looking
      back beyond the six-month period, Mother’s SCP goals have
      been the same since the start of this case, and she has
      successfully completed none of them. Mother has never been
      compliant with court orders.

Id. at 6-7 (citations to notes of testimony omitted).

      Ms. Fernandez, the CUA caseworker, testified that Mother has been

non-compliant with her SCP goals.     N.T., 1/28/16, at 18.   Ms. Fernandez

stated that Mother discharged herself from group therapy after she was

involved in an altercation with another group member and asked to choose

another site for therapy. Id. at 49. Ms. Fernandez also related that Mother

had made only two visits with Child since July of 2015. Id. at 16.

      Mother testified she had not been receiving mental health treatment

nor was she enrolled in drug and alcohol treatment. Id. at 53. As the trial

court noted, “Mother has not used her visits to bond with Child. In Mother’s

own words ‘I had too much stuff to do at the same time.’ Mother admitted

she had not made her visits even she did not have a 9-to-5 job.” T.C.O., at

6.




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      Our Supreme Court recently rejected the argument that the provision

of reasonable efforts by the county children’s services agency is a factor in

termination of parental rights. See In the Interest of: D.C.D., a Minor,

629 Pa. 325, 343, 105 A.3d 662, 673, 676 (2014) (rejecting suggestion an

agency must provide reasonable efforts to enable parent to reunify with child

prior to the termination of parental rights and suggestion that Section 2511

of the Adoption Act should be read in conjunction with Section 6351 of the

Juvenile Act, particularly Section 6351(f)(9)(iii)).   Thus, pursuant to our

Supreme Court’s holding in In the Interest of: D.C.D., a Minor, we find no

merit to Mother’s argument. Moreover, the record makes it apparent that

Mother has failed or refused to perform parental duties. See 23 Pa.C.S.A.

§ 2511(a)(1).   Accordingly, the record overwhelmingly supports the trial

court’s Section 2511(a) findings.

      Prevailing case law requires this Court additionally to engage in a

discussion of whether the trial court’s order satisfies the requirements of

Section 2511(b).   Mother presents a similar argument as that which she

raised in her Section 2511(a)(1) claim, in that she posits she would have

established a parental bond if DHS had provided her adequate services. As

we did in our Section 2511(a)(1) analysis, we disagree with Mother’s

attempt to shift the burden to DHS.     See In the Interest of: D.C.D., a

Minor, supra.




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      The focus in terminating parental rights under Section 2511(b) is not

on the parent’s conduct, but rather is on the child’s best interest pursuant to

Section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super.

2008) (en banc). Under Section 2511(b), we examine whether termination

of parental rights would best serve the developmental, physical, and

emotional needs and welfare of the child.       In re C.M.S., 884 A.2d 1284,

1286 (Pa.Super. 2005).     “Intangibles such as love, comfort, security, and

stability are involved in the inquiry into the needs and welfare of the child.”

Id. at 1287 (citation omitted). “The 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.

      When considering Child’s bond and relationship with Mother, the trial

court found that “it was clearly and convincingly established that there was

no parental bond, and that termination of Mother’s parental rights would not

destroy an existing beneficial relationship.”   T.C.O., at 14.   Ms. Fernandez

testified that Mother visited Child only twice since June of 2015.        N.T.,

1/28/16, at 16.   Ms. Fernandez stated that Child does not really identify

Mother as his mother at this time.       Id. at 24.    Ms. Fernandez further

testified that Child would not suffer irreparable harm if Mother’s parental

rights are terminated.   Id.   Ms. Fernandez concluded that it would be in

Child’s best interest for the permanency goal to be changed to adoption

because Mother has not been compliant with her objectives, nor has she


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been compliant with visitation or building a relationship and bond with Child.

Id. at 22-23.

      Child is in a foster home and refers to his foster parent as “Mom.” Id.

at 22.   Ms. Fernandez observed that Child is very attached to his foster

parent. Id. Ms. Fernandez stated that she has observed Child in the foster

home, and Child is always happy and smiling. Id.

      We find that the trial court gave adequate consideration to the

developmental, physical, and emotional needs of Child, i.e. Child’s best

interest, in determining that Mother’s parental rights should be terminated

pursuant to Section 2511(b).      The record supports the trial court’s best

interest analysis. See In re C.M.S., supra.

      With the above standard of review in mind, we have thoroughly

reviewed the record, the briefs, and the applicable law, and we find no abuse

of the trial court’s discretion in terminating Mother’s parental rights to Child

pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). As we need to agree with the

trial court’s assessment of only one subsection 2511(a) factor and its

Section 2511(b) assessment, we need not address Mother’s remaining

subsection 2511(a) arguments. See In re B.L.W., supra.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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