J. S44044/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE                   :     IN THE SUPERIOR COURT OF
ADOPTION OF R.O.C., JR.                :           PENNSYLVANIA
                                       :
APPEAL OF:                             :         No. 782 WDA 2019
J.M.W., NATURAL MOTHER                 :


                 Appeal from the Order Entered April 23, 2019,
               in the Court of Common Pleas of Cambria County
                 Orphans’ Court Division at No. 2017-832-IVT



IN THE MATTER OF THE                   :     IN THE SUPERIOR COURT OF
ADOPTION OF: O.Z.C.                    :           PENNSYLVANIA
                                       :
APPEAL OF:                             :         No. 783 WDA 2019
J.M.W., NATURAL MOTHER                 :


                 Appeal from the Order Entered April 23, 2019,
               in the Court of Common Pleas of Cambria County
                 Orphans’ Court Division at No. 2017-833-IVT



IN THE MATTER OF THE                   :     IN THE SUPERIOR COURT OF
ADOPTION OF: H.A.H.                    :           PENNSYLVANIA
                                       :
APPEAL OF:                             :         No. 784 WDA 2019
J.M.W., NATURAL MOTHER                 :


                 Appeal from the Order Entered April 23, 2019,
               in the Court of Common Pleas of Cambria County
                 Orphans’ Court Division at No. 2017-831-IVT


BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED SEPTEMBER 23, 2019
J. S44044/19



        J.M.W. (“Mother”)1 appeals from the April 23, 2019 order entered in the

Court of Common Pleas of Cambria County, Orphans’ Court Division,

involuntarily terminating her parental rights to her dependent children,

R.O.C., Jr., male child, born in October 2016; O.Z.C., female child, born in

August 2014; and H.A.H., male child, born in January 2010 (collectively, the

“Children”), pursuant to the Adoption Act, 23 Pa.C.S.A. §§ 2511(a)(1), (2),

(5), (8), and (b).2 After careful review, we affirm.

        A previous panel of this court set forth the following:

              [Cambria County Children and Youth Service (“CYS”)]
              became involved with this family in March 2015
              following allegations of medical neglect.     Then
              7-month-old O.Z.C. had only been seen by a
              pediatrician once since her birth and had no
              immunizations;     Mother    had    also     missed

1   We note that Mother is also known as J.M.H.

2Pursuant to Pa.R.A.P. 513, this court sua sponte consolidated these appeals
because they involve related parties and issues. (Per curiam order, 6/5/19.)

      We note that the trial court entered one order terminating Mother’s
parental rights to the Children.        Mother’s counsel complied with
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and Commonwealth
v. Creese,       A.3d     , 2019 PA Super. 241 (Pa.Super. filed August 14,
2019), by filing separate notices of appeal for each docket, each of which
contained only a single docket number.

       We further note that the record reflects that W.K.H. is the biological
father of H.A.H., and R.O.C. is the biological father of O.Z.C. and R.O.C., Jr.
By decrees entered April 23, 2019, the trial court involuntarily terminated the
parental rights of W.K.H. and R.O.C. to their respective children. The record
reflects that at the time of the termination hearing, both biological fathers
were incarcerated. Additionally, nothing in the certified record indicates that
either W.K.H. or R.O.C. appealed the decrees terminating their parental rights
to their respective children.


                                       -2-
J. S44044/19


            five pediatrician appointments for H.A.H. CYS initially
            arranged services to stabilize the family, but then filed
            a dependency petition in January 2016. The basis for
            the petition was Mother's considerable lack of
            cooperation with service providers as well as Mother’s
            positive tests for opiates, cocaine, and marijuana.
            There were also allegations of homelessness and
            Mother's outstanding arrest warrant.

            Over the next two years, Mother was ordered to
            comply with a series of goals that would facilitate
            reunification. As the dependency cases proceeded,
            Mother’s compliance appeared to be minimal. For
            example, Mother attended less than a quarter of her
            visits scheduled with Children.

            In January 2018, the [trial] court held a hearing on
            CYS' termination petition.       Mother appeared with
            counsel at the hearing. The [trial] court appointed
            Christopher G. Gvozdich, Esquire, to represent
            Children. At the conclusion of the hearing, the [trial]
            court directed the parties to submit memoranda
            arguing their respective positions. Thereafter, on
            April 23, 2018, the [trial] court entered terminating
            decrees. Mother timely filed notices of appeal along
            with concise statements of errors complained of on
            appeal [pursuant to Pa.R.A.P.              1925(a)(2)(i).
            Thereafter, the trial court filed its Rule 1925(a)(2)(ii)
            opinion.]

In re: Adoption of H.A.H., R.O.C., Jr. and O.Z.C., No. 801 WDA 2018,

unpublished memorandum at 1-2 (Pa.Super. filed October 10, 2018) (record

citations omitted).

      The record reflects that the previous panel of this court vacated the

involuntary termination order after finding that the record was deficient as to

H.A.H.’s preferred outcome and as to whether a conflict existed between

H.A.H.’s   legal   and   best   interests   and   remanded   with   directions   to



                                       -3-
J. S44044/19


H.A.H.’s counsel to conduct an additional interview to discern and articulate

H.A.H.’s legal interest. (Id. at 6-8.)    This court further directed that if

H.A.H.’s preferred outcome was inconsistent with termination, a new

termination hearing would be required as to all of the Children because

H.A.H.’s preference may impact R.O.C., Jr., and O.Z.C. (Id. at 7.) We note

that the panel determined that R.O.C., Jr., and O.Z.C. were too young to

articulate a preference. (Id. at 6-7.) At the time of the termination hearing,

R.O.C., Jr., was 3 years old and O.Z.C. was 17 months old.

     On remand, counsel re-interviewed H.A.H.3 and submitted a report to

the trial court on November 15, 2018, which stated that “there does appear

to be some inconsistency and conflict regarding H.A.H.’s wishes.” As such,

counsel recommended that the trial court conduct a hearing and appoint

separate counsel to represent H.A.H.’s “potentially competing interests.”

(Trial court order and opinion, 4/23/19 at 2, ¶ 2, quoting report of 11/15/18;

see also notes of testimony, 4/17/19 at 6.) Based on counsel’s report and

recommendations, the trial court appointed legal counsel for H.A.H. and held

a hearing to determine H.A.H.’s preference.

     After hearing H.A.H.’s testimony and considering the arguments of

counsel, the trial court concluded that H.A.H. could not articulate a clear


3 The record reflects that H.A.H. is in kinship care with his paternal aunt in
Ohio, who is an adoptive resource. Because the driving time between H.A.H.’s
kinship residence and Cambria County is in excess of four hours, counsel
conducted the interview via FaceTime. (Notes of testimony, 4/17/19 at
7, 11.) H.A.H. did, however, personally appear at the April 17, 2019 hearing.


                                    -4-
J. S44044/19


preferred outcome and that the best interests of H.A.H., R.O.C., Jr., and

O.Z.C. were consistent with the termination proceedings. The trial court then

re-entered its April 23, 2018 decrees terminating Mother’s parental rights to

the Children.      Mother filed timely notices of appeal, together with concise

statements        of    errors    complained    of    on   appeal    pursuant   to

Pa.R.A.P. 1925(a)(2)(ii).        Thereafter, the trial court entered an order “in

response to the Appeal Rule 1925(b)” stating that it was relying on its April 23,

2018 and April 23, 2019 orders and opinions. (Order of court, 6/4/19.)

      Mother raises the following issues on appeal:

             1.        Whether the [t]rial [c]ourt erred in terminating
                       [Mother’s] parental rights to the subject child,
                       because [p]etitioners failed to meet their
                       burden by clear and convincing evidence,
                       including, but not limited to failing to identify
                       how termination of [Mother’s] parental rights
                       would impact the child, in particular, the bond
                       between [Mother] and the [C]hildren[?]

             2.        Whether the trial court erred in terminating
                       [Mother’s] parental rights to the subject
                       [C]hildren, in light of H.A.H.’s on-the-record
                       testimony which clearly indicated that his legal
                       interests were against termination of [Mother’s]
                       parental rights[?]

Mother’s brief at 3.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

             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.” In re


                                          -5-
J. S44044/19


            Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “If
            the factual findings are supported, appellate courts
            review to determine if the trial court made an error of
            law or abused its discretion.” Id. “[A] decision may
            be reversed for an abuse of discretion only upon
            demonstration      of    manifest     unreasonableness,
            partiality, prejudice, bias, or ill-will.” Id. The trial
            court’s decision, however, should not be reversed
            merely because the record would support a different
            result. Id. at 827. We have previously emphasized
            our deference to trial courts that often have first-hand
            observations of the parties spanning multiple
            hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
            2010)].

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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) (citation omitted).        “[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) (citation omitted).

      The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis

of the grounds for termination followed by the needs and welfare of the child.

            Our case law has made clear that under Section 2511,
            the court must engage in a bifurcated process prior to
            terminating parental rights. 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


                                     -6-
J. S44044/19


            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 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). We have

defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting

Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).

      Here, the trial court terminated Mother’s parental rights pursuant to

Sections 2511(a)(1), (2), (5), and (8), as well as (b). We have long held that,

in order to affirm a termination of parental rights, we need only agree with

the trial court as to any one subsection of Section 2511(a), as well as

Section 2511(b).    In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)

(en banc). Here, we analyze the trial court’s termination decrees pursuant

to 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


                                      -7-
J. S44044/19


                       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 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)(2), (b).

     We first address whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(a)(2).4

           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,


4 We note that Mother advances no argument as to why termination of her
parental rights to the Children was inappropriate under Section 2511(a)(1),
(2), (5), or (8).


                                    -8-
J. S44044/19


            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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015),

quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002).             “Parents are

required to make diligent efforts towards the reasonably prompt assumption

of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a long

period of uncooperativeness regarding the necessity or availability of services,

may properly be rejected as untimely or disingenuous.” In re A.L.D., 797

A.2d at 340 (internal quotation marks and citations omitted).

      Here, in terminating Mother’s parental rights to the Children under

Section 2511(a)(2), the trial court noted that H.A.H. and O.Z.C. were placed

in CYS’s care and custody pursuant to a January 19, 2016 emergency order

and a January 20, 2016 shelter care order because Mother was homeless and

residing with friends, Mother admitted to daily heroin use, Mother had been

uncooperative with CYS and failed to meet with caseworkers, and CYS could

not ensure the safety of H.A.H. and O.Z.C. because of Mother’s lack of

cooperation. (Trial court opinion, 4/23/18 at 2.) When Mother gave birth to

R.O.C., Jr., in October of 2016, she had just been released from prison and

was homeless. (Id. at 4.) Because Mother failed to attend a hearing involving


                                       -9-
J. S44044/19


newly born R.O.C., Jr., a bench warrant was issued for her arrest. (Id.) On

November 3, 2016, R.O.C., Jr., was determined to be dependent. (Id.)

      It was determined at a hearing on January 4, 2017, that Mother only

minimally complied with the permanency plan and made only minimal

progress toward alleviating the circumstances that necessitated the original

placement of the Children.     (Id.)   Thereafter, another bench warrant was

issued for Mother’s arrest as a result of her failure to appear for a goal change

hearing on June 14, 2017. (Id.) When the hearing occurred on June 28,

2017, the trial court found that Mother only minimally complied with the

permanency plan and made only minimal progress toward alleviating the

circumstances that necessitated the original placement of the Children. (Id.)

Following a hearing on December 4, 2017, it was determined that Mother did

not comply with the permanency plan and made no progress toward

eliminating the circumstances that necessitated the original placement of the

Children. (Id. at 5.) At the termination hearing, Mother admitted that she

did not cooperate with CYS because she “was in an active addiction” and

“didn’t care.” (Notes of testimony, 1/29/18 at 138.) Mother also confirmed

that even though H.A.H. and O.Z.C. had been placed in CYS custody in January

2016 and R.O.C., Jr., was placed in CYS’s custody as a newborn in November

2016, she continued to use drugs and did not seek help for her addiction until

October 2017, which was after the termination petitions were filed on

September 26, 2017. (See id. at 153.) The record further reflects that at



                                       - 10 -
J. S44044/19


the time of the termination hearing, Mother had not been in stable housing

for a six-month period, Mother was unemployed, and Mother was not actively

seeking employment. (Id. at 153-157.)

      We conclude that the record supports the trial court’s factual findings

and that the trial court did not abuse its discretion in terminating Mother’s

parental rights under Section 2511(a)(2). The record demonstrates that the

conditions that existed upon removal establish repeated and continued

incapacity, abuse, neglect, or refusal of Mother that caused the Children to be

without essential parental care, control, or subsistence necessary for their

physical or mental well-being.    The record also supports the trial court’s

conclusion that Mother continued to lack capacity to parent the Children.

      We now turn to whether termination was proper under Section 2511(b).

As to that section, our supreme court has stated as follows:

            [I]f the grounds for termination under subsection (a)
            are met, a court “shall give primary consideration to
            the developmental, physical and emotional needs and
            welfare of the child.” 23 Pa.C.S.[A.] § 2511(b). The
            emotional needs and welfare of the child have been
            properly interpreted to include “[i]ntangibles such as
            love, comfort, security, and stability.” In re K.M., 53
            A.3d 781, 791 (Pa.Super. 2012). In In re E.M., 620
            A.2d [481, 485 (Pa. 1993)], this Court held that the
            determination of the child’s “needs and welfare”
            requires consideration of the emotional bonds
            between the parent and child. The “utmost attention”
            should be paid to discerning the effect on the child of
            permanently severing the parental bond. In re K.M.,
            53 A.3d at 791.       However, as discussed below,
            evaluation of a child’s bonds is not always an easy
            task.



                                    - 11 -
J. S44044/19


In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists. The extent of any bond analysis, therefore, necessarily depends on

the circumstances of the particular case.”       In re K.Z.S., 946 A.2d 753,

762-763 (Pa.Super. 2008) (citation omitted).

        When evaluating a parental bond, “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.”   In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2009) (internal

citations omitted).

        Moreover,

             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. . . .

In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d

95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).

        Our supreme court has stated that, “[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.”


                                      - 12 -
J. S44044/19


In re T.S.M., 71 A.3d at 268. The court directed that, in weighing the bond

considerations pursuant to Section 2511(b), “courts must keep the ticking

clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed,

“[c]hildren are young for a scant number of years, and we have an obligation

to see to their healthy development quickly. When courts fail . . . the result,

all too often, is catastrophically maladjusted children.” Id.

      In her brief, Mother contends that CYS failed to meet its burden of

proving by clear and convincing evidence “how termination of [Mother’s]

parental rights would impact the Children.”     (Mother’s brief at 9-21.) The

record belies Mother’s claim.

      The record reflects that Mother admitted that she has no bond with

R.O.C., Jr., who was taken into CYS’s custody in November 2016, which was

shortly after his birth in October 2016. (See notes of testimony, 1/29/18 at

142.) Additionally, CYS caseworker Barb Brzana testified that R.O.C., Jr., is

“doing well” and “bonded with his foster parent.” (Id. at 50.)

      With respect to O.Z.C., CYS took her into custody in January 2016 when

she was approximately 17 months old. At the time of the termination hearing,

O.Z.C. had been in CYS custody for two years. Ms. Brzana testified that O.Z.C.

does not know who Mother is. (Id. at 52.) The record reflects that O.Z.C. is

in foster care with her half-brother, H.A.H. Ms. Brzana testified that O.Z.C. is

“doing very well in her placement” and that she is bonded with her foster

mother. (Id. at 49.)



                                     - 13 -
J. S44044/19


       With respect to H.A.H., CYS took him into custody in January 2016 when

he was 6 years old. At the time of the termination hearing, H.A.H. had been

in CYS custody for two years. Ms. Brzana testified that H.A.H. loves Mother,

but that “his relationship with her is strained by the broken promises and lack

of followthrough [sic], and it shows in his behaviors.” (Id. at 52.) Ms. Brzana

testified that although H.A.H. struggles “with some behavioral problems,”

those “problems have decreased immensely” since he’s been in foster care.

(Id. at 14.) Ms. Brzana further testified that H.A.H. is “doing well in school

with little disruption” and is “flourishing.” (Id.) H.A.H. is bonded with his

foster mother. (Id. at 49.)

       Ms. Brzana also testified that it would be in the Children’s best interests

to terminate parental rights and free them for adoption.            (Id. at 54.)

Ms. Brzana stated that termination would not be detrimental to the Children’s

development, but would promote their development, as well as their physical

and emotional needs and welfare. (Id.) Licensed social worker Sarah Sherry

also testified that the relationship between the Children and Mother was not

strong and that termination would be in the Children’s best interests. (Id. at

84.)

       Mother finally contends that H.A.H.’s testimony at the hearing to

determine his preference “indicates that his legal interests were against

termination.” (Mother’s brief at 22.) In so arguing, Mother sets forth select

portions of H.A.H.’s testimony and invites this court to reweigh the evidence



                                      - 14 -
J. S44044/19


in an effort to convince us to arrive at a different result. We decline Mother’s

invitation. It was for the trial court to make all credibility determinations and

resolve conflicts in the evidence. In re M.G., 855 A.2d at 73-74. Where, as

here, the record supports the trial court’s findings, we will not disturb those

findings on appeal. See, e.g., In re Adoption of T.B.B., 835 A.2d at 394.

      Based upon our review of the record, we find no abuse of discretion and

conclude that the trial court appropriately terminated Mother’s parental rights

under Sections 2511(a)(2) and (b).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2019




                                     - 15 -
