J-S32032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.K.R., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: S.R., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3887 EDA 2016

             Appeal from the Decree and Order December 13, 2016
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0000915-2016

    IN THE INTEREST OF: S.C.R., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: S.R., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3889 EDA 2016

             Appeal from the Decree and Order December 13, 2016
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-AP-0000916-2016


BEFORE:      GANTMAN, P.J., STABILE, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED JUNE 09, 2017

        S.R. (“Mother”) appeals from the December 13, 2016 decrees and

orders involuntarily terminating her parental rights to K.K.R. (born in August

of 2011) and S.C.R. (born in October of 2012) (collectively “Children”)

pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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(b), and changing Children’s permanency goal to adoption under the

Juvenile Act, 42 Pa.C.S. § 6351.1 We affirm.

        On March 5, 2015, Mother and Children first became known to the

Department of Human Services of Philadelphia County (“DHS”) as a result of

a General Protective Services (“GPS”) report alleging that Mother resided in

an unfit house with Children, abused drugs, did not provide adequate food,

and neglected Children. On March 20, 2015, Mother and Children moved to

a drug and alcohol rehabilitation shelter. Mother was discharged from the

shelter due to her non-compliance and inappropriate behavior towards

Children. Mother and Children then moved into another shelter on April 17,

2015.    Shortly thereafter, the shelter evicted Mother after a staff member

observed her inappropriately disciplining Children, which included spanking

and pinching them.         On April 27, 2015, Mother admitted that she hits

Children when DHS met with her to discuss the allegations. On same day,

DHS obtained an Order of Protective Custody (“OPC”) for Children and

placed them with their maternal aunt, B.C. (“Maternal Aunt”).

        At the shelter care hearing on April 29, 2015, the trial court lifted the

OPC and ordered the temporary commitment to DHS to stand.               The trial
____________________________________________
1
  Children have different biological fathers. The putative father of K.K.R. is
unknown, and the putative father of S.C.R. is K.M. (“Father-2”). In separate
decrees and orders entered on December 13, 2016, the trial court
involuntarily terminated the parental rights of unknown father to K.K.R. and
Father-2 to S.C.R. The unknown father of K.K.R. and Father-2 are not
parties to the current appeal, nor did they file separate appeals.




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court granted Mother supervised visitation and referred her to the Clinical

Evaluation Unit (“CEU”) for a drug and alcohol screening and dual diagnosis

assessment for mental health and substance abuse. The CEU report issued

a progress report on May 5, 2015, revealing Mother tested positive for

marijuana and PCP.

     On May 8, 2015, the trial court adjudicated Children dependent and

committed them to DHS.       The case was transferred to the Community

Umbrella Agency (“CUA”), which developed a Single Case Plan (“SCP”) for

reunification with Children. Mother’s SCP objectives were: (1) to participate

in a dual diagnosis treatment and submit to random drug screens at CEU;

(2) to receive referral for Achieving Reunification Center (“ARC”); (3) to

engage in parent education classes; (4) to obtain appropriate housing; and

(5) to attend supervised visitation with Children.   Mother’s SCP objectives

have remained the same throughout the duration of the case.

     On October 5, 2016, DHS filed petitions to involuntarily terminate

Mother’s parental rights and change Children’s permanency goal to adoption.

On December 13, 2016, the trial court held a hearing on the petitions. At

the hearing, DHS presented the testimony of Essence Jones, the CUA case

manager at Turning Points. Mother, represented by counsel, testified on her

own behalf.    Father-2, represented by counsel, also testified.      At the

conclusion of the hearing, the trial court entered decrees and orders




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

(2), (5), (8), and (b), and changing Children’s permanency goal to adoption.

       On December 30, 2016, while represented by counsel, Mother filed pro

se notices of appeal and statements of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).2 On January 11, 2017, counsel

for Mother, filed amended concise statements of errors complained of on

appeal in accordance to Pa.R.A.P. 1925(b). This Court consolidated Mother’s

appeals sua sponte on January 17, 2017. Mother raises the following issues.

          Whether the trial court committed reversible errors when it
          involuntarily terminated Mother’s parental rights where
          such determination was not supported by clear and
          convincing evidence under the adoption act, 23 Pa.C.S. §
          2511 (a)(1), (a)(2), (a)(5), and (a)(8)?

          Whether the trial court committed reversible errors when it
          involuntarily terminated Mother’s parental rights without
          giving primary consideration to the effect that the
          termination would have on the developmental, physical
          and emotional needs of the child as required by the
          adoption act, 23 Pa.C.S. § 2511(b)?

Mother’s Brief at 4.3



____________________________________________
2
  We note that Mother’s pro se concise statements of errors failed to
adequately identify in a concise manner or with specificity the issues sought
to be pursued on appeal in accordance with Rule 1925(b)(4)(ii). As such,
the trial court directed counsel to assist Mother with her appeals.
3
  In her amended concise statement of errors complained of on appeal and
appellate brief, Mother did not challenge the trial court’s orders changing
Children’s permanency goal to adoption. Thus, this issue is waived. See
Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa. Super. 2006)
(holding that an appellant waives issues that are not raised in both his
(Footnote Continued Next Page)


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      We summarize Mother’s two arguments together.         Mother contends

that the evidence makes it clear that DHS did not prove by clear and

convincing evidence that her parental rights should be terminated pursuant

to Section 2511(a) of the Adoption Act. Mother’s Brief at 8. Mother points

out that she has made progress during the course of the case and has

demonstrated a willingness to remedy the conditions and causes of the

incapacity, abuse, neglect or refusal to perform parental duties. Id. at 11.

Since the evidence failed to establish that her relationship with Children was

severed, Mother argues that DHS failed to prove that termination under

Section 2511(b) was in the best interests of Children. Id. at 13.

      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.




                       _______________________
(Footnote Continued)
concise statement of errors complained of on appeal and the statement of
questions involved in his brief on appeal).




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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. 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., 837 A.2d 1247, 1251 (Pa. Super. 2003) (citation omitted).

      “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). “[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) (quoting In

re: N.C., 763 A.2d 913, 917 (Pa. Super. 2000)).         Additionally, 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).

      In this case, the trial court terminated Mother’s parental rights

pursuant to Section 2511(a)(1), (2), (5), (8), and (b), which provides 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:


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              (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.

                           *      *     *

             (5) The child has been removed from the care of the
          parent by the court or under a voluntary agreement
          with an agency for a period of at least six months, the
          conditions which led to the removal or placement of the
          child continue to exist, the parent cannot or will not
          remedy those conditions within a reasonable period of
          time, the services or assistance reasonably available to
          the parent are not likely to remedy the conditions which
          led to the removal or placement of the child within a
          reasonable period of time and termination of the
          parental rights would best serve the needs and welfare
          of the child.

                           *      *     *

             (8) The child has been removed from the care of the
          parent by the court or under a voluntary agreement
          with an agency, 12 months or more have elapsed from
          the date of removal or placement, the conditions which
          led to the removal or placement of the child continue to
          exist and termination of parental rights would best
          serve the needs and welfare of the child.

                           *      *     *

          (b) Other considerations.—The court in terminating
       the rights of a parent shall give primary consideration to


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         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)(1), (2), (5), (8), and (b).

         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 . . . parental rights
         does the court engage in the second part of 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.

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

omitted).   “Parental rights may be involuntarily terminated where any one

subsection of Section 2511(a) is satisfied, along with consideration of the

subsection 2511(b) provisions.”     In re Z.P., 994 A.2d 1108, 1117 (Pa.

Super. 2010).

      Termination under Section 2511(a)(1) involves the following:

         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 six-month period prior to filing the termination

petition:

            [T]he 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…parental
            rights, to determine if the evidence, in light of the totality
            of the circumstances, clearly warrants the involuntary
            termination.

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

omitted).

      The     grounds    for   termination   of   parental   rights   under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary those grounds may include

acts of refusal as well as incapacity to perform parental duties.              In re


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A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).        “Parents are required to

make diligent efforts toward the reasonably prompt assumption of full

parental responsibilities.” Id. at 340. Pursuant to Section 2511(a)(2), “the

petitioner for involuntary termination 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).

      “Termination of parental rights under Section 2511(a)(5) requires

that: (1) the child has been removed from parental care for at least six

months; (2) the conditions which led to removal and placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Z.P., 994 A.2d at 1118.

      “[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) [t]he child has been removed from

parental care for [twelve] months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to

exist; and (3) termination of parental rights would best serve the needs and

welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76

(Pa. Super. 2003).




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        Under Section 2511(b), the court must consider whether termination

will best serve the child’s needs and welfare. In re C.P., 901 A.2d 516 (Pa.

Super. 2006). “Intangibles such as love, comfort, security, and stability are

involved when inquiring about the needs and welfare of the child.”       Id. at

520.    “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.” In re Z.P., 994 A.2d at

1121.

          When conducting a bonding analysis, the court is not
          required to use expert testimony. Social workers and
          caseworkers can offer evaluations as well. Additionally,
          Section 2511(b) does not require a formal bonding
          evaluation.

Id. (internal citations omitted).

        “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and may properly have his or her rights terminated.” In re

B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001). 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


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         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 [the
         child’s] physical and emotional needs.

In re B., N.M., 856 A.2d at 855. “[A] parent’s basic constitutional right to

the custody and rearing of his or her 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.” Id. at 856.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Joseph

Fernandes, we conclude Mother’s issues on appeal merit no relief. The trial

court’s opinion comprehensively discusses and properly disposes of the

questions presented. See Trial Ct. Op., 1/17/17 , at 3-10 (finding: Children


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have been removed from Mother’s custody since April 27, 2015, nineteen

months at the time of trial due to her drug abuse and inability to

appropriately parent Children; Mother’s compliance with her SCP goals has

steadily declined; Mother tested positive for PCP on September 9th and 29th

of 2016; Mother stopped attending her dual diagnosis treatment program

and was discharged without successfully completing the program; Mother

was referred to     ARC    for    parenting classes,   but was unsuccessfully

discharged; Mother chose to complete parenting classes elsewhere, but

these classes did not improve her ability to parent; Mother has never had

appropriate housing; Mother currently lives at a shelter where Children

cannot join her; Mother’s recent tardiness to her supervised visits with

Children has caused some of the visits to be canceled; Mother has visited

Children only twice in the last three months; Mother's inconsistency in

visiting Children has caused their relationship to become unhealthy; Mother’s

bond with Children has become very attenuated; Mother cannot provide

Children with permanency; Maternal Aunt has provided Children with love,

care and stability for the last nineteen months; CUA case manager credibly

testified regarding the lack of parental relationship between Mother and

Children in contrast to the parental bond that exists between Children and

Maternal Aunt; termination of Mother’s parental rights would not cause

Children   irreparable    harm;    record   demonstrates   Mother’s   repeated

unwillingness to remedy the cause of her incapacity to parent, her failure to



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perform any parental duties, and her inability to remedy conditions that led

to the placement of Children; evidence is clear and convincing that

termination of Mother’s parental rights would be in best interests of Children;

thus, court properly terminated Mother’s parental rights pursuant to Sections

2511(a)(1), (2), (5), (8), and (b)). Accordingly, we affirm on the basis of

the trial court opinion.

      Decrees and orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2017




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