J-A23007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: N.R.L., A MINOR                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: K.C., MOTHER                 :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 404 WDA 2018

                 Appeal from the Order February 16, 2018
   In the Court of Common Pleas of Allegheny County Orphans' Court at
                     No(s): CP-02-AP-0000008-2016

 IN RE: C.M.K., A MINOR                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: K.C., MOTHER                 :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 405 WDA 2018

                 Appeal from the Order February 16, 2018
   In the Court of Common Pleas of Allegheny County Orphans' Court at
                     No(s): CP-02-AP-0000009-2016


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 11, 2018

      K.C. (“Mother”) appeals from the orphans’ court’s February 16, 2018

orders granting the petition of the Allegheny County Office of Children, Youth,
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and Families (“CYF” or “Agency”) to involuntarily terminate her parental rights

to her minor daughters, N.R.L.1 and C.M.K.2 After careful review, we affirm.

       N.R.L. was born in January 2009, and C.M.K. was born in August 2011.

The family has been known to CYF since February 2010 due to issues with

substance abuse, domestic violence, and reports that Mother was not able to

properly and safely care for N.R.L. C.M.K. and N.R.L. were removed from

Mother’s care on June 28, 2014, after CYF received reports that Mother had

left C.M.K. with an inappropriate caregiver.

       Following a shelter care hearing, C.M.K. was to be returned to Mother,

but remained in CYF’s custody after both parents tested positive for alcohol

after court. C.M.K. was returned to Mother during July 2014, but she was

____________________________________________


1  On the same date, the orphans’ court denied CYF’s petition seeking to
terminate the parental rights of J.K.-T., the biological father of C.M.K. We
address CYF’s appeal of the orphans’ court’s February 16, 2018 order relating
to J.K.-T. in a separate memorandum.          The orphans’ court previously
involuntarily terminated the parental rights of J.M.L., the biological father of
N.R.L. J.M.L. did not appeal of that order, nor is he a party to the instant
appeal.

2  Mother filed a single notice of appeal from the separate orders entered at
different action numbers relating to N.R.L. and C.M.K. respectively. Our
Supreme Court recently held that separate notices of appeal must be filed
where appeals have been taken from more than one trial court docket. See
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (“Rule 341(a)
will, in accordance with its Official Note, require that when a single order
resolves issues arising on more than one lower court docket, separate notices
of appeal must be filed. The failure to do so will result in quashal of the
appeal.”) However, since that holding applies prospectively from the date of
the High Court’s decision, June 1, 2018, we do not quash the instant appeals.



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removed from Mother’s care approximately one month later.           The court

adjudicated N.R.L. and C.M.K. dependent on September 29, 2014. The sisters

live together in a pre-adoptive foster home.

       In October 2014, Mother was arrested on drug charges and incarcerated

in the Allegheny County jail. C.M.K. remained in placement through January

2016,3 when CYF filed its first petitions seeking to involuntarily terminate

Mother’s parental rights to both children. The court convened hearings on the

petitions on May 13, 2016, and August 5, 2016. At the hearing, Eric Bernstein,

Psy.D., a child psychologist who had performed evaluations of the family, and

Veronica Shannon, a CYF caseworker, testified for CYF. Mother testified on

her own behalf.

       Additionally, Mother presented the testimony of Neil Rosenbloom, Ph.D.,

a psychologist who had evaluated the family; Julia Ofrichter, an outpatient

therapist at Mercy Behavioral Health; Angela Terenzio, a social worker at

Second Chance; and Karen Hadix, an outpatient therapist employed by Three

Rivers Adoption Center. C.M.K.’s counsel presented the testimony of Maggie

Swartzfager, a therapist employed at the Youth Advocate Program, and Dawn

R. Paul, an elementary school teacher. Following the hearing, the court denied




____________________________________________


3Permanency review hearings were held in February 2015, May 2015, June
2015, August 2015, November 2015, February 2016, and August 2016.




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both the petitions as to Mother and C.M.K.’s father, and granted the petition

as to N.R.L.s’ father.4

       CYF re-filed its petitions seeking to involuntarily terminate the parental

rights of Mother. The court convened hearings on the petitions on October

27, 2017, October 31, 2017, and January 23, 2018.5           CYF presented the

testimony of Police Officers William J. Fuller and Brian Taslov; Police Detective

Joseph Brown; Michelle Dobias, CYF caseworker; Dr. Eric Bernstein; Danielle

Lefevre; Scott Cunningham; and Maggie Swartzfager. Additionally, the court

admitted into evidence transcripts of the prior termination hearings.         On

February 16, 2018, the court granted CYF’s petition as to Mother.

       Mother filed a notice of appeal along with her statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).          On

appeal, Mother raises the following issues for our review:

       I. Whether the trial court erred and/or committed a fatal error
       and/or abused its discretion by finding that [CYF] had met their
____________________________________________


4 CYF appealed the denial of its termination petition to this Court, but withdrew
its appeal on January 10, 2017. See 1489 WDA 2016. However, the
concomitant appeals docketed at 1486 WDA 2016 and 1487 WDA 2016 were
not withdrawn, and this Court affirmed the orphans’ court’s finding that CYF
did not make reasonable efforts to finalize the permanency plan for C.M.K.
See In re C.K., 165 A.3d 935 (Pa.Super. 2017).

5 At the hearings, C.M.K. and N.R.L. were represented by Attorney Rebecca
Heaton Hall, their guardian ad litem who also understood that she was
representing their legal interests. See In re T.S., __ A.3d__, 2018 WL
4001825 at *10 (Pa.Super. August 22, 2018) (noting that in contested
termination proceedings where counsel must be appointed to represent
children’s interests, GAL may serve as counsel where there is no conflict
between the child’s legal and best interests); see also N.T., 1/23/18, at 2.

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      burden of proof by clear and convincing evidence that the parental
      rights of [Mother] should be terminated pursuant to [23 Pa.C.S. §
      2511(a)(2)]?

      II. Whether the trial court erred and/or committed a fatal error
      and/or abused its discretion by finding that [CYF] had met their
      burden of proof and proved by clear and convincing evidence that
      terminating the parental rights of [Mother] would best meet the
      needs and welfare of N.R.L. and C.M.K. both now and in the future
      as prescribed by [23 Pa.C.S. § 2511(b)]?

Mother’s brief at 1 (unnecessary capitalization and suggested answers

omitted).

      We review cases involving the termination of parental rights according

to the following standards.

      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) (internal citations and quotations

omitted).

      Termination requires a bifurcated analysis:

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing evidence
      that the parent’s conduct satisfies the statutory grounds for
      termination delineated in Section 2511(a). Only if the court
      determines that the parent’s conduct warrants termination of his
      or her parental rights does the court engage in the second part of


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      the analysis pursuant to Section 2511(b): determination of the
      needs and welfare of the child under the standard of best interests
      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

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

affirm, we need only agree with any one of the subsections of 2511(a), as well

as subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)

(en banc).

      As the trial court terminated Mother’s rights under § 2511(a)(2), we

focus our analysis on subsection (a)(2) and (b).       Those subsections of 23

Pa.C.S. § 2511 provide:

      (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 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


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      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.

      To satisfy the requirements of Section 2511(a)(2), the moving party

must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;

(2) that such incapacity, abuse, neglect or refusal caused the child to be

without essential parental care, control or subsistence; and (3) that the causes

of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”

In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998). The grounds for

termination are not limited to affirmative misconduct, but concern parental

incapacity that cannot be remedied.       In re Z.P., 994 A.2d 1108, 1117

(Pa.Super. 2010). Parents are required to make diligent efforts toward the

reasonably prompt assumption of full parental duties. Id.

      Mother contends that clear and convincing evidence does not support

the termination of her rights under § 2511(a)(2). Specifically, she blames

CYF for her inability to remedy her parenting incapacity. The crux of this claim

is that the service agency which provided trauma-based family therapy bore

a high turnover rate. Mother’s brief at 8-9. Essentially, she argues that, had

CYF insured that the family received family therapy in a reasonable amount of

time, she would have been able to accomplish reunification with N.R.L. and

C.M.K. Id. at 11-12. Mother’s clam is unpersuasive.

      With regard to the evidence introduced at the hearing, the trial court

observed:


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      First, CYF established that Mother is again involved in a romantic
      relationship that involves domestic violence. Mother has been in
      a long term relationship with her boyfriend, S.M. At Mother’s
      evaluation in August 2017, Mother did not disclose any domestic
      violence in her relationship with S.M. However, earlier in 2017,
      Mother called the police to report an incident of domestic violence
      identifying S.M. as the perpetrator.        Mother informed the
      responding officer that she and S.M. had been out drinking and
      got into an argument on the way home. Mother reported that
      S.M. threatened to crash the car to kill them both and then
      proceeded to crash his vehicle into a parked car.

      Second, and even more importantly, CYF established that Mother
      fails to understand how prior domestic violence and the potential
      for future domestic violence affects [N.R.L. and C.M.K.]
      emotionally.      Mother minimized [N.R.L.]’s complaints about
      observing arguments between Mother and S.M. Dr. Bernstein
      testified that “on a basic level, [the minimization] calls into
      question [Mother’s] appreciation for [N.R.L.]’s sensitivity.”
      Mother began attending family therapy in May 2017.               She
      attended six of fifteen scheduled appointments. Mother brought
      S.M. to a family therapy session with [N.R.L. and C.M.K.]. As a
      result, [N.R.L.] refused to participate in sessions with Mother. The
      service provider ultimately discharged Mother as a client because
      of failure to attend.

Trial Court Opinion, 5/14/18, at 6.

      Thus, the record substantiates the conclusion that Mother’s repeated

and continued incapacity – namely, her inability to address the domestic

violence concerns that had so affected the children – has caused N.R.L. and

C.M.K. to be without essential parental control or subsistence necessary for

their physical and mental well-being. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa.Super. 2003). Notwithstanding Mother’s attempt to shift

responsibility for her failures, the record supports the conclusion that she is

unable to recognize the dangers that domestic violence possess to her and

her daughters on the most basic level. See id. As Mother will not remedy

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this situation, the certified record supports the trial court’s finding that CYF

established the statutory grounds to terminate Mother’s parental rights

pursuant to § 2511(a)(2).

      Next, we consider whether the needs and welfare of N.R.L. and C.M.K.

will be met by the termination of Mother’s parental rights. See Z.P., supra

at 1121. “In this context, the court must take into account whether a bond

exists between child and parent, and whether termination would destroy an

existing, necessary and beneficial relationship.” Id. The court is not required

to use expert testimony, and social workers and caseworkers may offer

evaluations as well. Id. Ultimately, the concern is the needs and welfare of

a child. Id. Where there is no evidence of a bond between the parent and

child, it is reasonable to infer that no bond exists. In re: K.Z.S., 946 A.2d

753, 763 (Pa.Super. 2008).

      We have noted:

      Before granting a petition to terminate parental rights, it is
      imperative that a trial court carefully consider the intangible
      dimension of the needs and welfare of a child—the love, comfort,
      security, and closeness—entailed in a parent-child relationship, as
      well as the tangible dimension. Continuity of relationships is also
      important to a child, for whom severance of close parental ties is
      usually extremely painful. The trial court, in considering what
      situation would best serve the child[ren]’s needs and welfare,
      must examine the status of the natural parental bond to consider
      whether terminating the natural parents’ rights would destroy
      something in existence that is necessary and beneficial.

Z.P., supra at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa.Super.

2000)). Love between a parent and child is not the sole determining factor,



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and love alone is not enough. In re J.L.C., 837 A.2d 1247, 1249 (Pa.Super.

2003). The court may also emphasize the safety needs of the child. K.Z.S.,

supra at 763 (affirming involuntary termination of parental rights, despite

existence of some bond, where placement with mother would be contrary to

child’s best interests).

      As it relates to the trial court’s needs and welfare analysis, the court

observed:

      In this matter, the evidence amply supported the [c]ourt’s
      conclusion that termination of Mother’s parental rights served the
      Children’s needs and welfare. At the conclusion of the hearing,
      [N.R.L.] was 8 years old and had been in placement since age 5,
      and [C.M.K.] was 6 years old and had been in placement since age
      3.   The Children have been thriving in a safe and stable
      environment for the past three years. They have developed
      strong bonds with their foster parents and foster sister.

      Dr. Bernstein testified that both of the Children appear to have a
      bond with Mother. However, he expressed concerns with the
      health of each child’s bond with Mother. Dr. Bernstein ultimately
      concluded that it was in the Children’s best interests to move
      forward with termination of parental rights. In making this
      recommendation, Dr. Bernstein pointed to Mother’s “history of []
      volatility  and     explosiveness”    and     “her  accompanying
      engagements in domestic violence and/or acting out behavior.”
      Dr. Bernstein also expressed concern regarding how Mother would
      support the Children’s feelings and safety if they were placed in
      her care. He expressed particular concern about how Mother
      would support the Children should there ultimately be any future
      domestic violence.

Trial Court Opinion, 5/14/18, at 7-8.

      Here, Mother claims that the court abused its discretion by determining

that the needs and welfare of the children would be met by the termination of

her parental rights. Mother’s brief at 13. Mother contends that she had a

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close relationship with the children which included unsupervised visitation, and

that if her rights were terminated, her daughters would lose an important

relationship. See id. at 13-14. Mother’s arguments warrant no relief.

      As noted above, the evidenced adduced during the hearings established

that while Mother had a bond with her daughters, particularly with C.M.K., it

was not a healthy bond, especially where Mother continued to subject the

children to romantic relationships where domestic violence was a prevailing

concern. In comparison, foster parents, foster sibling, and the children had a

strong and healthy bond, and the family provided for the needs and welfare

of both N.R.L. and C.M.K. See N.T., 10/27/17 at 97; N.T., 10/31/17, at 84-

86, 91-92. As we observed in In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010),

“the trial court can equally emphasize the safety needs of the child, and should

also consider the intangibles, such as the love, comfort, security, and stability

the child might have with the foster parent.” In light of the risks that Mother’s

behavior presents to the children and the beneficial relationships that the

children share with their foster family, it is obvious that their need for stability

and permanency would be best served by adoption. Thus, on this record,

clear and convincing evidence supports the trial court’s termination of

Mother’s parental rights with respect to § 2511(b), where adoption would best

serve the developmental, physical and emotional needs and welfare of N.R.L.

and C.M.K.




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     For all of foregoing reasons, we affirm the decree terminating Mother’s

parental rights to N.R.L. and C.M.K. on the basis of § 2511(a)(2), and (b) of

the Adoption Act.

     Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2018




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