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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.M.K., A      :   IN THE SUPERIOR COURT OF
MINOR                              :        PENNSYLVANIA
                                   :
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APPEAL OF: A.W., MOTHER            :   No. 649 MDA 2016

                   Appeal from the Decree March 23, 2016
                In the Court of Common Pleas of York County
                      Orphans’ Court at No: 2015-0096

IN THE INTEREST OF: S.E.K., A      :   IN THE SUPERIOR COURT OF
MINOR                              :        PENNSYLVANIA
                                   :
                                   :
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                                   :
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                                   :
APPEAL OF: A.W., MOTHER            :   No. 650 MDA 2016

                   Appeal from the Decree March 23, 2016
                In the Court of Common Pleas of York County
                      Orphans’ Court at No: 2015-0097

IN THE INTEREST OF: S.K., A        :   IN THE SUPERIOR COURT OF
MINOR                              :        PENNSYLVANIA
                                   :
                                   :
                                   :
                                   :
                                   :
                                   :
APPEAL OF: A.W., MOTHER            :   No. 652 MDA 2016

               Appeal from the Order Entered March 24, 2016
                In the Court of Common Pleas of York County
              Juvenile Division at No: CP-67-DP-0000150-2014
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    IN THE INTEREST OF: J.K., A            :   IN THE SUPERIOR COURT OF
    MINOR                                  :        PENNSYLVANIA
                                           :
                                           :
                                           :
                                           :
                                           :
                                           :
    APPEAL OF: A.W., MOTHER                :   No. 653 MDA 2016

                 Appeal from the Order Entered March 24, 2016
                  In the Court of Common Pleas of York County
                Juvenile Division at No: CP-67-DP-0000151-2014

BEFORE: STABILE, DUBOW, and PLATT*, JJ.

MEMORANDUM BY STABILE, J.:                           FILED OCTOBER 17, 2016

        A.W. (“Mother”) appeals from the decrees entered March 23, 2016, in

the Court of Common Pleas of York County, which involuntarily terminated

her parental rights to her minor daughter, S.E.K., born in November of

2009, and to her minor son, J.M.K., born in February of 2011 (collectively,

“the Children”).1 In addition, Mother appeals from the orders entered March

24, 2016, which changed the Children’s permanency goals to adoption.

After careful review, we affirm.

        We summarize the relevant factual and procedural history of this

matter as follows.      On July 22, 2014, the York County Office of Children,

Youth and Families (“CYF”) filed applications for emergency protective
____________________________________________


* Retired Senior Judge assigned to the Superior Court.
1
   The decrees also terminated the parental rights of R.K., the Children’s
father. R.K. has not filed a brief in connection with this appeal, nor has he
filed his own separate appeal.



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custody of the Children.   In its applications, CYF averred that Mother was

homeless, and that she and the Children had been living in a car.

Application for Emergency Protective Custody (S.E.K.), 7/22/14, at 3. CYF

further averred that Mother dropped the Children off at the home of their

paternal grandparents on July 16, 2014, and that Mother’s whereabouts

were unknown.     Id. at 4.   The Children appeared to be suffering from

several infected bug bites.   Application for Emergency Protective Custody

(S.E.K.), 7/22/14, at 3; Application for Emergency Protective Custody

(J.M.K.), 7/22/14, at 3. In addition, S.E.K. appeared to be suffering from

severe eczema that had not been treated.        Application for Emergency

Protective Custody (S.E.K.), 7/22/14, at 3.

     CYF obtained orders for emergency protective custody of the Children

on July 23, 2014.   The orders awarded legal and physical custody of the

Children to CYF, and placed the Children in the home of their paternal

grandparents.   CYF retained legal and physical custody of the Children

pursuant to shelter care orders entered July 29, 2014. CYF filed dependency

petitions on July 28, 2014, and the Children were adjudicated dependent by

orders entered August 26, 2014.

     On August 11, 2015, CYF filed petitions to involuntarily terminate

Mother’s parental rights to the Children, as well as petitions to change the

Children’s permanency goals to adoption. The trial court held a termination

and goal change hearing on December 1, 2015, December 17, 2015, and

December 29, 2015. The court convened an additional hearing on March 22,

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2016, during which it announced its decision to terminate Mother’s parental

rights and to change the Children’s permanency goals to adoption.          The

court entered its termination decrees on March 23, 2016, and entered its

goal change orders on March 24, 2016. Mother timely filed notices of appeal

from the goal change orders on April 20, 2016, along with concise

statements of errors complained of on appeal. Mother timely filed notices of

appeal from the termination decrees on April 21, 2016, along with additional

concise statements of errors complained of on appeal.

       Mother now raises the following issues for our review.

       [1.] Did [CYF] fail to establish grounds for termination of
       Mother’s parental rights under 23 Pa. C.S[.A.] [§] 2511(a)(8) in
       that the conditions which led to removal of the [C]hildren do not
       continue to exists? [sic]

       [2.] Does termination of Mother’s parental rights best serve the
       needs and welfare of the [C]hildren?

Mother’s brief at 6 (suggested answers omitted).2


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2
  While Mother purports to appeal from the trial court’s goal change orders,
she does not raise any claim regarding these orders in her statement of
questions involved.      The argument section of her brief includes no
substantive discussion of the goal change orders, nor does it contain any
citation to relevant authority. Accordingly, Mother has failed to preserve any
challenge to the goal change orders for our review. See Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (“We will not
ordinarily consider any issue if it has not been set forth in or suggested by
an appellate brief’s statement of questions involved, . . . .”) (citations
omitted); In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal
denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.
Super. 2010)) (“‘[W]here an appellate brief fails to provide any discussion of
(Footnote Continued Next Page)


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      We consider Mother’s claims mindful of our well-settled standard of

review.

      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).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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 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
                       _______________________
(Footnote Continued)

a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”’).



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     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 trial court terminated Mother’s parental rights

pursuant to Sections 2511(a)(8) 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:

                                     ***

           (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 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)(8) and (b).

     We first address whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(a)(8).



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      In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
      2511(a)(8), the following factors must be demonstrated: (1) The
      child has been removed from parental care for 12 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).

“Notably, termination under Section 2511(a)(8)[] does not require an

evaluation of [a parent’s] willingness or ability to remedy the conditions that

led to placement of her children.” In re Adoption of R.J.S., 901 A.2d 502,

511 (Pa. Super. 2006) (citations omitted) (emphasis in original).

      Instantly, the trial court found that the Children were removed from

Mother’s care more than twelve months prior to the filing of the termination

petitions on August 11, 2015. N.T., 3/22/16, at 21. The court further found

that that the conditions resulting in the Children’s removal continue to exist.

Id. at 25. The court reasoned that the Children were adjudicated dependent

as a result of Mother’s “pattern of poor judgment and bad decision making,”

and that Mother has failed to correct this pattern.    Id. at 24.   The court

emphasized that Mother lacked stable housing at the time of the

adjudication of dependency, and that Mother continues to lack stable

housing.   Id. at 22-24.   The court found that Mother is unemployed, that

she has failed to obtain a psychological evaluation, and that she does not

appreciate the importance of providing the Children with appropriate medical

care. Id. at 22, 25, 28. In addition, the court concluded that terminating

Mother’s parental rights would best serve the needs and welfare of the

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Children. The court acknowledged that Mother has a bond with the Children.

Id. at 27. However, the court found that Mother’s bond with the Children “is

not a positive one.”   Id.   The court concluded that the Children will not

suffer any long-term harm if Mother’s parental rights are terminated. Id. at

28.

      Mother argues that CYF failed to establish that her parental rights

should be terminated, because she has remedied the conditions that led to

the removal of the Children. Mother’s brief at 13-16. Mother contends that

she   has   acquired   stable   housing,   attends   the   Children’s   medical

appointments, no longer uses drugs, and performs well during her visits with

the Children. Id. at 13-15. With respect to the needs and welfare of the

Children, Mother contends that the Children are strongly bonded to her, and

that terminating her parental rights will be detrimental to the Children. Id.

at 18. Mother also asserts that the trial court committed an error of law by

preventing her from introducing evidence concerning the Children’s kinship

foster parents.   Id. at 16-17.    According to Mother, the kinship foster

parents were separated and divorcing at the time of the termination and

goal change hearing, and the Children are now living solely with their kinship

foster father, who is their paternal grandfather. Id. at 16. Mother alleges

that the paternal grandfather suffers from “a severe case of agoraphobia,”

and is unable to drive more than five miles away from his home. Id. at 16-

17.




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     After carefully examining the record in this matter, we conclude that

the trial court did not abuse its discretion by terminating Mother’s parental

rights to the Children. During the termination and goal change hearing, CYF

presented the testimony of the Children’s caseworker, Ms. Kelly Wood. Ms.

Wood testified that Mother was struggling with a host of issues at the time

the Children were removed from her care. Ms. Wood explained that Mother

had been residing with her grandmother, but that the grandmother kicked

Mother out because “things were stolen” from the grandmother’s home.

N.T., 12/17/15, at 49. As a result, Mother and the Children were forced to

live in Mother’s car. Id. In addition, Mother had been a drug user “since a

very early age” and was smoking “spice” and engaging in sexual encounters

in front of the Children. Id. at 36, 74-75, 81. Mother was on probation at

the time the Children were removed from her care, and was facing

outstanding charges of driving under the influence and assaulting a

corrections officer. Id. at 38. Mother was arrested on September 21, 2014,

shortly after the Children were adjudicated dependent, and was incarcerated

for three days on charges of public drunkenness, harassment, and disorderly

conduct. Id. at 50.

     Despite these issues, Ms. Wood testified that Mother initially made

progress toward reunification with the Children.   Id. at 43.   By March of

2015, Mother was again residing with her grandmother, and had obtained

employment at a gas station.    N.T., 12/29/15, at 7.   Mother completed a

drug and alcohol evaluation and was testing negative for illegal substances.

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N.T., 12/17/15, at 71; N.T., 12/29/15, at 7.       Mother was participating in

outpatient therapy as well as services from JusticeWorks. N.T., 12/17/15, at

71; N.T., 12/29/15, at 7.   Mother even was being offered overnight visits

with the Children. N.T., 12/17/15, at 64. Unfortunately, Mother’s progress

ground to a halt when she was arrested for stealing lottery tickets from the

gas station where she was employed.          Id. at 49-50 59-60.   Mother was

incarcerated from March 23, 2015, until August 23, 2015. Id. at 57.

      Concerning the needs and welfare of the Children, Ms. Wood testified

that the Children appear to share a parent/child bond with Mother “at

times.” Id. at 51. Mother and the Children are affectionate during visits,

and the Children get upset when visits are over.      Id. at 51, 85.   Prior to

Mother’s incarceration, the Children also would become upset when Mother

missed visits. Id. at 53. Ms. Wood initially testified that the bond between

Mother and the Children is strong and positive. Id. at 52-53. However, Ms.

Wood later testified that the Children’s bond with Mother is “neutral.” N.T.,

12/29/15, at 20-21. Ms. Wood explained that the Children have not spent

enough time with Mother to have “a good strong healthy bond,” and that the

Children’s bond with Mother is comparable to “an aunt/uncle, niece/nephew

bond.”   Id. at 29.   Further, Ms. Wood stated that S.E.K.’s therapist has

expressed concern regarding a possible return of S.E.K. to Mother’s care.

Id. at 40-41. Reportedly, S.E.K. was afraid “that there was not going to be

electricity or heat or food, that they would be living out of the car. She was

also very fearful of mom’s paramour at that time when they were placed.”

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Id. at 41. Ms. Wood opined that terminating Mother’s parental rights would

likely cause the Children short-term harm, but that there would not be any

long-term harm.      Id. at 21.   Ms. Wood noted that the Children had no

contact with Mother for several months due to her recent incarceration, but

that they did not “display any negative effects” as a result of that lack of

contact. N.T., 12/17/15, at 95. To the contrary, Ms. Wood stated that the

Children were “doing very, very well” during Mother’s incarceration. Id. at

77.   Ms. Wood later acknowledged that the Children did cry and ask for

Mother on an unknown number of occasions while she was incarcerated.

N.T., 12/29/15, at 22.

      Accordingly, the record supports the finding of the trial court that the

Children have been removed from Mother’s care for more than twelve

months, and that the conditions that led to the removal of the Children

continue to exist.   When the Children were first placed in CYF custody on

July 23, 2014, Mother lacked housing because she stole from her

grandmother. By the time CYF filed its termination petitions on August 11,

2015, Mother again lacked housing, this time because she stole from her

employer and was incarcerated.        While Mother initially made progress

toward being reunified with the Children, Mother squandered that progress

by continuing to engage in criminal activity. It was proper for the trial court




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to conclude that Mother has exhibited a pattern of poor judgment and bad

decision making, and that she has failed to correct that pattern.3

       In addition, the       record supports the          trial court’s finding that

terminating Mother’s parental rights would best serve the needs and welfare

of the Children.     The record reveals that Mother and the Children share a

significant bond. Mother and the Children get along well during visits and

the Children are resistant to leaving Mother when visits are over. However,

it was within the court’s discretion to accept the testimony of Ms. Wood that

the   Children’s    bond    with    Mother     is   more   akin   to   “an   aunt/uncle,

niece/nephew bond” than to a parent/child bond, and that the Children will

not suffer long-term harm if Mother’s parental rights are terminated.

       Finally, with respect to Mother’s contention that the trial court abused

its discretion by declining to hear evidence concerning the Children’s kinship

foster parents, we conclude that this claim merits no relief.                During the

termination and goal change hearing, Ms. Wood testified that the Children’s

kinship foster parents recently separated, and that the Children are now

living solely with their paternal grandfather.             N.T., 12/17/15, at 96-97.
____________________________________________


3
  We acknowledge that Section 2511(b) prohibits courts from terminating
parental rights “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.” 23 Pa.C.S.A. § 2511 (b). Here, the
relevant provision of Section 2511(b) does not apply, as the trial court did
not terminate Mother’s parental rights solely on the basis of environmental
factors, and because Mother’s incarceration for stealing lottery tickets clearly
was not beyond her control.



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Later during the hearing, Mother’s counsel attempted to ask Ms. Wood

whether the paternal grandfather has a disability.      N.T., 12/29/15, at 23.

Counsel for CYF objected to this question on the basis of relevance. Id. at

23-24. Counsel for Mother stated that the paternal grandfather suffers from

agoraphobia, and that it would not be in the Children’s best interest to be

adopted by the paternal grandfather.      Id. at 24.   However, the trial court

sustained the objection, noting that termination proceedings are often

conducted in the absence of an adoptive resource. Id. at 24-25.

      In its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the trial court

explained that it prevented Mother’s counsel from presenting additional

evidence concerning the Children’s paternal grandfather because “the law

does not require the Trial Court to consider the nature or availability of

adoptive parents in termination proceedings where the termination petition

is filed by the Agency.”     Trial Court Opinion, 5/25/16, at 2 (citing N.T.,

12/29/15, at 23-25; In re Burns, 379 A.2d 535 (Pa. 1977)).              The court

further   explained   that   additional   evidence   concerning   the    paternal

grandfather’s agoraphobia would not have prevented the termination of

Mother’s parental rights, and that the court would have terminated Mother’s

rights “even if the [C]hildren had no connections with Paternal Grandparents

or other caregivers.” Id. at 2-3.

      While it is true that the existence of a pre-adoptive resource is not

required in order to terminate parental rights in cases where the termination

petition has been filed by a child protective services agency, the trial court is

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mistaken in its belief that it was not obligated to consider the nature or

availability of a pre-adoptive resource for the Children. Our Supreme Court

has explained that, even in cases where termination is being sought by an

agency, “[c]ommon sense dictates that courts considering termination must

also consider whether the children are in a pre-adoptive home and whether

they have a bond with their foster parents.” T.S.M., 71 A.3d at 268.

      Nonetheless, given the trial court’s conclusion that it would terminate

Mother’s parental rights even in the absence of a pre-adoptive resource, it is

not necessary to remand this matter for further fact-finding concerning the

paternal grandfather. For the reasons already discussed, the record would

support the court’s decision to terminate Mother’s parental rights, even if the

paternal grandfather were not available to care for the Children.     Had the

court declined to terminate Mother’s parental rights, the Children would be

left to languish in foster care while Mother again attempts to achieve

reunification.   As this Court has stated, “a child’s life cannot be held in

abeyance while a parent attempts to attain the maturity necessary to

assume parenting responsibilities. The court cannot and will not subordinate

indefinitely a child's need for permanence and stability to a parent’s claims

of progress and hope for the future.” R.J.S., 901 A.2d at 513.

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

terminating Mother’s parental rights pursuant to Section 2511(b). We have

discussed our analysis under Section 2511(b) as follows.




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       Section 2511(b) focuses on whether termination of parental
       rights would best serve the developmental, physical, and
       emotional needs and welfare of the child. As this Court has
       explained, Section 2511(b) does not explicitly require a bonding
       analysis and the term ‘bond’ is not defined in the Adoption Act.
       Case law, however, provides that analysis of the emotional bond,
       if any, between parent and child is a factor to be considered as
       part of our analysis. While a parent’s emotional bond with his or
       her child is a major aspect of the subsection 2511(b) best-
       interest analysis, it is nonetheless only one of many factors to be
       considered by the court when determining what is in the best
       interest of the child.

              [I]n addition to a bond examination, 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. Additionally, this Court
              stated that the trial court should consider the
              importance of continuity of relationships and whether
              any existing parent-child bond can be severed
              without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).4

       As explained above, our review of record confirms that terminating

Mother’s parental rights will best serve the needs and welfare of the
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4
   We observe that Sections 2511(a)(8) and (b) both require a court
considering a termination petition to assess the needs and welfare of the
relevant child or children. However, the needs and welfare analysis required
by Section 2511(a)(8) is distinct from the needs and welfare analysis
required by Section 2511(b), and must be addressed separately. See In re
C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc) (“[W]hile both
Section 2511(a)(8) and Section 2511(b) direct us to evaluate the ‘needs and
welfare of the child,’ . . . they are distinct in that we must address Section
2511(a) before reaching Section 2511(b).”).



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Children.   While the Children share a bond with Mother, it was within the

trial court’s discretion to conclude that this bond is not a positive one, and

that the Children will not suffer long-term harm if Mother’s parental rights

are terminated.     Terminating Mother’s parental rights will prevent the

Children from languishing in foster care while Mother again attempts to

achieve reunification, and, hopefully, will allow the Children to obtain

permanence and stability.

      Accordingly, because we conclude that the trial court did not abuse its

discretion by involuntarily terminating Mother’s parental rights to the

Children, we affirm the decrees of the trial court. In addition, we conclude

that Mother has waived any challenge to the orders changing the Children’s

permanency goals to adoption.

      Decrees affirmed. Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016




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