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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: INVOLUNTARY TERMINATION OF              IN THE SUPERIOR COURT OF
PARENTAL RIGHTS TO L.A.M.                            PENNSYLVANIA


APPEAL OF: L.A.S., MOTHER                      No. 3403 EDA 2014


           Appeal from the Decree Entered November 12, 2014,
             in the Court of Common Pleas of Lehigh County,
                  Orphans’ Court, at No(s): A2013-0051

IN RE: INVOLUNTARY TERMINATION OF               IN THE SUPERIOR COURT
PARENTAL RIGHTS TO R.P.M.                                 OF
                                                     PENNSYLVANIA

APPEAL OF: L.A.S., MOTHER                     No. 3406 EDA 2014


           Appeal from the Decree Entered November 12, 2014,
             in the Court of Common Pleas of Lehigh County,
                  Orphans’ Court, at No(s): A2013-0052

BEFORE: DONOHUE, SHOGAN, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 03, 2015

     L.A.S. (Mother) appeals from the decrees entered November 12, 2014,

in the Court of Common Pleas of Lehigh County, which terminated

involuntarily Mother’s parental rights to her minor daughter, L.A.M., born in




* Retired Senior Judge assigned to the Superior Court.
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October of 2006, and to her minor son, R.P.M., born in November of 2007

(collectively, the Children).1 We affirm.

      In September of 2011, Mother agreed to place the Children in the care

the Lehigh County Office of Children and Youth Services (CYS), due to her

homelessness and Father’s incarceration.     The Children were adjudicated

dependent on October 13, 2011. Initially, the Children were placed in the

care of Father’s parents.    However, they were moved to a pre-adoptive

foster home in approximately May of 2013.        On May 6, 2013, CYS filed

petitions to terminate involuntarily Mother’s parental rights to the Children.

A termination hearing was held on January 27, 2014.        On November 12,

2014, the orphans’ court entered its decrees terminating Mother’s rights.2

Mother timely filed notices of appeal, along with concise statements of errors

complained of on appeal.

      Mother now raises the following issue for our review.

           Was the [orphans’ c]ourt justified in granting the Petition
      to Terminate Parental Rights against the mother of the two

1
 The decrees of the orphans’ court also terminated the parental rights of the
Children’s father, M.P.M. (Father). Father is not a party to the instant
appeal.
2
  On January 28, 2014, the orphans’ court ordered that the termination
proceedings be transcribed. On March 11, 2014, the court entered an order
indicating that the transcript had been received, and requiring CYS to submit
a legal brief, along with proposed findings of fact and conclusions of law, by
April 7, 2014. The court also required Mother, Father, and the Children’s
guardian ad litem to submit legal briefs, as well as proposed findings of fact
and conclusions of law, by May 7, 2014, and scheduled argument for May
16, 2014. It is not clear from the record why the court did not enter its
termination decrees until nearly six months after argument.
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      children when the [c]ourt determined that [CYS] proved by clear
      and convincing evidence that one or more of the statutory
      reasons permitting termination existed and that the needs and
      welfare of the [C]hildren required the termination of the
      [M]other’s parental rights?

Mother’s brief at 8.3

      We consider Mother’s claim mindful of the following.

      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) (citations and quotation marks

omitted).

      Our courts apply a two-part analysis in reviewing a decree terminating

parental rights. This Court has explained,

      [i]nitially, 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 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

3
 Mother has filed separate briefs for each decree from which she appeals.
However, Mother’s briefs are nearly identical.
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     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).

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

pursuant to Sections 2511(a)(1), (2), (5), (8) and (b). We need only agree

with the orphans’ court as to one subsection of Section 2511(a), as well as

Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.

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

we analyze the court’s decision to terminate under subsections 2511(a)(2)

and (b), which provide 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:

                                     *    *    *

           (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

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     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)(2), (b).

     We first address whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(a)(2).

     In order to terminate parental rights pursuant to 23 Pa.C.S.A
     § 2511(a)(2), the following three elements must be met: (1)
     repeated and continued incapacity, abuse, neglect or refusal; (2)
     such incapacity, abuse, neglect or refusal has caused the child to
     be without essential parental care, control or subsistence
     necessary for his physical or mental well-being; and (3) the
     causes of the incapacity, abuse, neglect or refusal cannot or will
     not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).   “The grounds for termination 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 A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002) (citations omitted).

     Instantly, the orphans’ court found that Mother’s lack of involvement

with the Children has left them without essential parental care and control,

and that Mother has failed to demonstrate that she will be able to parent the

Children in the future.   Orphans’ Court Opinion, 11/12/2014, at 25.        The

court emphasized that Mother has not displayed a “serious intent to

recultivate a parent-child relationship or to demonstrate a willingness and

capacity to undertake the parental role.” Id. Mother argues that the court
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“failed to see” her “effort and desire … to try and reestablish a safe and

nurturing environment” for the Children, as well as Mother’s efforts to

maintain “the semblance of a relationship” with the Children. Mother’s Brief

at 14. Mother contends that she cares successfully for an older child, who is

not involved in the instant appeal, and that she has obtained drug treatment

and avoided illegal drug use. Id. at 16.

      After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by terminating involuntarily

Mother’s parental rights to Child.    During the termination hearing, CYS

caseworker Heather Reed testified that she was assigned to this matter in

July of 2012. N.T., 1/27/2014, at 15. Ms. Reed explained that Mother was

ordered, inter alia, to complete a drug and alcohol evaluation, comply with

recommendations, and submit three urine screens per week.          Id. at 25.

According to Ms. Reed, Mother made “some progress” between review

hearings in March of 2012 and June of 2012, in that she completed a short-

term inpatient drug and alcohol treatment program and was discharged to a

halfway house.     Id. at 28-29, 47.       However, Mother was discharged

unsuccessfully from the halfway house “as she was not following rules,” and

then “went to a sober house for a brief amount of time.” Id. at 29.

      Ms. Reed further testified that, around this time, Mother informed her

that she “didn’t feel she was safe” living in the area any longer, because she

“owed money to a bunch of people,” and that Mother “felt that she couldn’t


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remain sober and safe here and wanted to relocate to North Carolina where

both of her parents reside.” Id. at 29. Ms. Reed later specified that Mother

“owed drug dealers money.”        Id. at 48.   Ms. Reed informed Mother that

relocating to North Carolina would make regaining custody of the Children

more difficult. Id. at 59. Nonetheless, Mother relocated to North Carolina

“shortly after” a review hearing in June of 2012. Id. at 31. Mother reported

to CYS in August of 2012 that she was receiving drug, alcohol, and mental

treatment in North Carolina. Id. at 32-33. Despite Mother’s purported drug

treatment, she tested positive for cocaine and ethyl glucuronide on August

27, 2012. Id. at 32. According to Ms. Reed, Mother provided a number of

negative urine screens in October, November, and December of 2012.4 Id.

at 86.

         With respect to visitation, Ms. Reed testified that Mother has visited

with the Children for a total of 12 hours since they were placed in care. Id.

at 41. Mother did not engage in regular visitation with the Children while

she was living in North Carolina, though she did have some unsupervised

phone contact with the Children during the time they were living with

Father’s parents. Id. at 35-36, 53. Mother requested that CYS perform an

interstate compact study to see if the Children could come and live with her

in North Carolina. Id. at 33-34, 49. However, Ms. Reed explained that two

4
  CYS also presented the testimony of Mr. Adam Carbone, who explained
that he is the general manger at Substance Abuse Screenings Services, or
“S.A.S.S.I.” N.T., 1/27/2014, at 8. According to Mr. Carbone, Mother tested
positive for oxycodone and amphetamines on January 24, 2014. Id.
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studies were performed with respect to two of Mother’s different residences

in North Carolina, and that both studies were denied due to lack of progress.

Id. at 33-34. Mother appeared for a permanency review on February 14,

2013, and visited with the Children for an hour the following day. Id. at 37.

Ms. Reed noted that this was the last time Mother visited with the Children.

Id. at 43, 85.   Mother asked that she be allowed to call R.P.M. on his

birthday, but this request was denied because Mother had not seen or talked

to the Children in many months. Id. at 43.

     Mother testified that she resides in North Carolina with her mother and

her 14-year-old son. Id. at 142, 156. Mother explained that she moved to

North Carolina because she had “family support” there, and because “it

would be a little easier away from people, places and things.” Id. at 146.

Mother stated that she no longer is receiving drug and alcohol treatment in

North Carolina, as she “completed the groups that [she] was going to,” but

that she does attend Narcotics Anonymous meetings three times per week.

Id. at 147.   Mother claimed that she last used drugs prior to attending

inpatient treatment. Id. at 145, 152. Mother also indicated that she takes

prescription medications, including Adderall and oxycodone. Id. at 150-51.

     Mother further testified that she has been charged in North Carolina

with “[p]ossession of stolen property … felony break-ins[.]”     Id. at 157.

Mother indicated that these charges stemmed from an incident or incidents

involving “[m]ore than one car battery.”     Id. at 160-61.   Mother claimed


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that her attorney “already told me that everything would be dropped.” Id.

at 158.   Mother also stated that she has been offered a plea bargain that

would not result in incarceration. Id. at 161.

      Concerning her contact with the Children, Mother testified that she

sent the Children “Halloween cards” and “holiday cards” after moving to

North Carolina, and that she spoke with them on the phone “[a]t least four

or five times a week” while they resided with Father’s parents. Id. at 147-

48. Mother indicated that she attempted to call L.A.M., rather than R.P.M., a

week before her birthday, but that CYS did not permit the phone contact.

Id. at 154. Mother explained that she did not send a birthday card to L.A.M.

because “there was money in it, and [she] didn’t want to send it and they

didn’t get their money.” Id. at 154. Mother did not send a Christmas card

“because there would be money in the card too.” Id.

      Accordingly, the record supports the finding of the orphans’ court that

Mother has left the Children without parental care, control, or subsistence,

and Mother cannot, or will not, remedy the situation. While Mother made

some progress by completing inpatient drug treatment, the record reveals

that Mother’s drug and alcohol issues remain unresolved, as she tested

positive for cocaine and ethyl glucuronide in August of 2012. Mother also

tested positive for oxycodone and amphetamines on January 24, 2014.

While Mother suggests in her brief that this positive drug test resulted from

prescription medications, she failed to provide any documentation during the


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termination hearing to support this claim. Moreover, Mother moved to North

Carolina despite being told that a move would make it more difficult to

regain custody of the Children.    After the Children were placed in a pre-

adoptive foster home, Mother made little, if any, effort to maintain contact

with them.    While Mother claimed during the termination hearing that she

lives with her 14-year-old son, there was no testimony with respect to the

appropriateness of care or support that she provides for him.              Even

assuming that Mother does take appropriate care of her son, this does not

excuse her failure to work toward achieving reunification with the Children in

the instant matter.

      We next consider whether the orphans’ court abused its discretion by

terminating Mother’s parental rights under Section 2511(b).

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that the trial 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. However, in cases where there is no evidence of a bond
      between a parent and child, it is reasonable to infer that no bond
      exists.   Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some

citations omitted).




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      Here, the orphans’ court concluded that terminating Mother’s parental

rights would be in the Children’s best interests.    Orphans’ Court Opinion,

11/12/2014, at 28.     The court emphasized that the Children have had

minimal contact with Mother since they entered foster care, and that they

are thriving in their current foster family. Id. Mother concedes that she has

“not done her best” to maintain a relationship with the Children, but notes

that the Children reacted positively to her during their time together.

Mother’s brief at 17. Mother insists that she should have been allowed to

“rekindle” her relationship with the Children. Id.

      We again conclude that the orphans’ court did not abuse its discretion.

Ms. Reed testified that she observed “a little bit” of Mother’s visit with the

Children in 2013, and that the Children hugged Mother and “[d]efinitely were

happy to see her.”   Id. at 42-43.    However, Ms. Reed explained that she

visits with the Children on a monthly basis at their foster home, and that the

Children never ask about Mother or request to live with her again.     Id. at

43. Ms. Reed opined that the Children are doing “really well” in foster care,

and that terminating Mother’s parental rights would be in the best interests

of the Children. Id. at 40-41. Mother reported that she wants to care for

the Children, and that she has a “very strong bond” with them. Id. at 152-

53.

      Thus, the testimony presented during Mother’s termination hearing

supports the orphans’ court’s conclusion that it is in the Children’s best


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interest to terminate Mother’s parental rights.        While the Children enjoyed

seeing Mother in February of 2013, this was Mother’s final visit with the

Children, and it is unlikely that the Children have maintained a parent-child

bond worthy of preservation.       To the extent the Children still are bonded

with Mother, that bond clearly is outweighed in the instant matter by

Mother’s failure to remedy her drug abuse issues, by her complete lack of

commitment     toward      reunification,   and   by   the   Children’s   need   for

permanence and stability. See In re Adoption of C.D.R., 111 A.3d 1212

(Pa. Super. 2015) (concluding that the appellant mother’s bond with C.D.R

was outweighed by the mother’s “repeated failure to remedy her parental

incapacity,” and by C.D.R.’s need for permanence and stability). No relief is

due.

       Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by terminating involuntarily Mother’s parental rights to

the Children, we affirm the decrees of the orphans’ court.

       Decrees affirmed.

       Judge Donohue did not participate in the consideration or decision of

the memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015




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