J-S57030-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: I.M.C.L., A MINOR            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: C.L., MOTHER                         No. 795 EDA 2014


               Appeal from the Decree entered February 7, 2014,
          in the Court of Common Pleas of Philadelphia County, Family
                   Court, at No(s): CP-51-AP-0000381-2013;
                                   FID: 51-FN-333689-2009

BEFORE:       DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 09, 2015

        Appellant, C.L. (Mother), appeals from the February 7, 2014 decree

involuntarily terminating her parental rights to her daughter, I.M.C.L. 1 Upon

careful review, we affirm.2

        On June 28, 2013, R.L., the legal guardian and maternal cousin of

I.M.C.L., filed a petition for the involuntary termination of Mother’s parental

rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), and (b). On the same

date, R.L. filed a petition for adoption. On February 7, 2014, the trial court

held a hearing on the involuntary termination petition, during which R.L.

1
    The record reveals that I.M.C.L. was born in January 2004.
2
   By separate decree entered on February 7, 2014, the trial court
involuntarily terminated the parental rights of V.T.C.M. (Father), the
putative father of I.M.C.L. Father did not file a notice of appeal, and he is
not a party to this appeal.
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testified, and Mother testified by telephone from prison.     The testimonial

evidence revealed as follows.

         Mother is the maternal aunt of R.L. N.T., 2/7/14, at 12. At the time

of I.M.C.L.’s birth, R.L., who was thirteen years old, lived off and on at

Mother’s house, where she assisted in the care of I.M.C.L.      Id. at 12-13.

Specifically, R.L. testified she took care of I.M.C.L. at night because Mother

had a drug addiction that caused her to sleep a lot. Id. at 13-14. At a time

unspecified in the record but, as best as we can determine was within the

first year of I.M.C.L.’s life, R.L. moved to her father’s home.     R.L. took

I.M.C.L. with her because, in part, Mother’s “house was cold, there was no

heat ….” Id. at 13. R.L. testified Mother saw I.M.C.L. on the weekends. Id.

at 15.

         Thereafter, the trial court adjudicated I.M.C.L. dependent.      The

Philadelphia Department of Human Services, Children and Youth Division

(DHS), transferred custody of I.M.C.L. to her paternal grandmother, where

she remained for approximately one and one-half years, until she was age

three. Id. at 15-16. At that time, R.L. unilaterally took custody of I.M.C.L.

Id. at 16-17. R.L. testified that, in late 2007, DHS inspected her home and

permitted I.M.C.L. to remain with her. Id. at 17-18. By order dated May

19, 2008, the trial court granted R.L. temporary custody of I.M.C.L. Id. at

20; see also R.L.’s Exhibit A. DHS scheduled supervised visits for Mother,




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but R.L. testified Mother attended no more than three visits. N.T., 2/7/14,

at 21.

         By order dated April 6, 2010, the trial court granted R.L. permanent

legal custody of I.M.C.L. and discharged I.M.C.L.’s dependency. Id. at 22-

23; see also R.L.’s Exhibit B. By separate order dated April 6, 2010, the

trial court granted Mother unsupervised visits with I.M.C.L. on Saturdays

from 12:00 p.m. to 7:00 p.m.         N.T., 2/7/14, at 23-24; see also R.L.’s

Exhibit C. R.L. testified that Mother again participated in no more than three

visits, all within approximately the first month of the date of the order. N.T.,

2/7/14, at 24, 27.

         R.L. testified that, in 2011, I.M.C.L. saw Mother approximately four

times.     Id. at 31.   R.L. testified I.M.C.L. saw Mother “numerous times” in

2012, including, but not limited to, at Thanksgiving, Christmas, and at the

funeral of R.L.’s grandfather.     Id. at 31-32.   R.L. testified I.M.C.L. saw

Mother less frequently in 2013, because Mother was incarcerated for seven

months. Id. at 32. R.L. testified that Mother was released from prison on

October 29, 2013, and that she saw I.M.C.L. three times after that, the last

time being at Christmas of 2013. Id. at 44, 46.

         At the time of the termination hearing, Mother testified from the

Riverside Correctional Facility, where she had been incarcerated for more

than 30 days on charges relating to aggravated assault.         Id. at 55, 60.

Further, the record reveals that, in 2013, Mother plead guilty to crimes


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involving theft and simple assault.     R.L.’s Exhibit D.   Mother received a

sentence of three years of probation for theft, and two years of probation for

simple assault, to run concurrently. Id.

      By decree dated and entered on February 7, 2014, the trial court

involuntarily terminated Mother’s parental rights pursuant to 23 Pa.C.S.A.

§§ 2511(a)(1), (2), and (b). On March 7, 2014, Mother timely filed a notice

of appeal and a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). On May

14, 2014, the trial court filed its Rule 1925(a) opinion.

      On appeal, Mother presents the following question for our review.

            Did the [t]rial [c]ourt err in terminating the parental
            rights of [Mother] in that clear and convincing
            evidence for terminating her parental rights did not
            exist?

Mother’s Brief at 6.

     We review the termination decree according to the following standard.

            [A]ppellate courts must apply an abuse of discretion
            standard     when    considering      a   trial  court’s
            determination of a petition for termination of
            parental rights.     As in dependency cases, our
            standard of review requires an appellate court to
            accept the findings of fact and credibility
            determinations of the trial court if they are supported
            by the record. In re R.J.T., 9 A.3d 1179, 1190
            ([Pa.] 2010). 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.;
            [In re] R.I.S., 36 A.3d [567,] 572 [(Pa. 2011)
            (plurality)]. As has been often stated, an abuse of
            discretion does not result merely because the
            reviewing court might have reached a different

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            conclusion. Id.; see also Samuel-Bassett v. Kia
            Motors America, Inc., 34 A.3d 1, 51 ([Pa.] 2011);
            Christianson v. Ely, 838 A.2d 630, 634 ([Pa.]
            2003). Instead, a decision may be reversed for an
            abuse of discretion only upon demonstration of
            manifest unreasonableness, partiality, prejudice,
            bias, or ill-will. Id.

                   As we discussed in R.J.T., there are clear
            reasons for applying an abuse of discretion standard
            of review in these cases. We observed that, unlike
            trial courts, appellate courts are not equipped to
            make the fact-specific determinations on a cold
            record, where the trial judges are observing the
            parties during the relevant hearing and often
            presiding over numerous other hearings regarding
            the child and parents. R.J.T., [supra]. Therefore,
            even where the facts could support an opposite
            result, as is often the case in dependency and
            termination cases, an appellate court must resist the
            urge to second guess the trial court and impose its
            own credibility determinations and judgment;
            instead we must defer to the trial judges so long as
            the factual findings are supported by the record and
            the court’s legal conclusions are not the result of an
            error of law or an abuse of discretion.         In re
            Adoption of Atencio, 650 A.2d 1064, 1066 ([Pa.]
            1994).

In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012) (parallel citations

omitted).

     Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

            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

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            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 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), citing 23 Pa.C.S.A.

§ 2511.   The burden is on the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of

parental rights are valid.     In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).

      Instantly, the trial court terminated Mother’s parental rights pursuant

to the following provisions.

            § 2511. Grounds for involuntary termination

            (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:

                  (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

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                  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.

      With respect to 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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008), citing

In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006).

            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 Section 2511(b).


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Id., quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.

1998).

     This Court has explained the definition of “parental duties,” as follows.

           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 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 …
           her physical and emotional needs.

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




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      In S.P., our Supreme Court discussed In re Adoption of McCray,

331 A.2d 652 (Pa. 1975), a case wherein the Court considered the issue of

the   termination of parental rights      of incarcerated persons involving

abandonment, which is currently codified at Section 2511(a)(1). The S.P.

Court stated the following.

                   Applying in McCray the provision for
            termination    of  parental   rights   based    upon
            abandonment, now codified as § 2511(a)(1), we
            noted that a parent “has an affirmative duty to love,
            protect and support his child and to make an effort
            to maintain communication and association with that
            child.” We observed that the father’s incarceration
            made his performance of this duty “more difficult.”

                                      …

                  [A] parent’s absence and/or failure to support
                  due to incarceration is not conclusive on the
                  issue of abandonment. Nevertheless, we are
                  not willing to completely toll a parent’s
                  responsibilities during his or her incarceration.
                  Rather, we must inquire whether the parent
                  has utilized those resources at his or her
                  command while in prison in continuing a close
                  relationship with the child. Where the parent
                  does not exercise reasonable firmness in
                  declining to yield to obstacles, his other rights
                  may be forfeited.

S.P., supra at 828, quoting McCray, supra at 655 (citations omitted).

      Additionally, we note the following.

            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

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           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). 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 A.L.D., 797 A.2d 326,

337 (Pa. Super. 2002).

     Our Supreme Court also addressed the relevance of incarceration in

termination decisions under Section 2511(a)(2) as follows.

           [I]ncarceration is a factor, and indeed can be a
           determinative factor, in a court’s conclusion that
           grounds for termination exist under § 2511(a)(2)
           where the repeated and continued incapacity of a
           parent due to incarceration has caused the child to
           be without essential parental care, control or
           subsistence and that the causes of the incapacity
           cannot or will not be remedied.

S.P., supra at 829.

     With respect to Section 2511(b), the requisite analysis is as follows.

           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

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            severing that bond. Id. 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.
            In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
            2008). Accordingly, the extent of the bond-effect
            analysis necessarily depends on the circumstances of
            the particular case. Id. at 763.

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

      On appeal, Mother acknowledges that she “had a long history of drug

abuse,” and that her visits with I.M.C.L. “were sporadic mainly due to

periods of incarceration ….”    Mother’s Brief at 9.   Nevertheless, Mother

argues that she did her best to maintain contact with I.M.C.L., including

sending cards and letters and providing money. Id. Thus, Mother contends

she did not neglect her parental responsibilities. For the following reasons,

we disagree.

      The testimonial evidence demonstrates that Mother has displayed only

passive interest in the development of I.M.C.L. throughout her ten years of

life. Indeed, Mother sporadically saw I.M.C.L., provided infrequent gifts or

money, and did not send any letters to I.M.C.L. prior to the filing of the

termination petition.   N.T., 2/7/14, at 36-37.   In fact, R.L. testified that

Mother only sent one card to I.M.C.L. while she was in prison, and this was

after the filing of the termination petition. Id. at 46; see also 23 Pa.C.S.A.

§ 2511(b) (providing that “[w]ith 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


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subsequent to the giving of notice of the filing of the petition”).         The

testimonial evidence overwhelmingly demonstrates that, for the vast

majority of I.M.C.L.’s life, R.L. provided for I.M.C.L.’s needs because Mother

failed to fulfill her parental obligations. N.T., 2/7/14, at 36-37. Pursuant to

the foregoing case law, we conclude that Mother’s limited involvement with

I.M.C.L. does not satisfy her affirmative parental duty to I.M.C.L. Therefore,

we conclude that the trial court did not abuse its discretion in finding that

Mother evidenced a settled purpose of relinquishing parental rights or

refused or failed to perform her parental duties far in excess of the requisite

six-month period preceding the filing of the termination petition pursuant to

Section 2511(a)(1).

      Likewise, we conclude that the trial court did not abuse its discretion in

finding    that   Mother’s   conduct   warrants   termination   under   Section

2511(a)(2). The record demonstrates that Mother’s repeated and continued

incapacity due to drug addiction and incarceration has caused I.M.C.L. to be

without Mother’s essential parental care, control or subsistence necessary for

her physical or mental well-being for her entire life. Indeed, I.M.C.L., age

ten at the time of the hearing, has been cared for most of her life by R.L.

Further, the causes of Mother’s incapacity cannot or will not be remedied as

she has had repeated incarcerations up to and including the time of the

hearing.




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      With respect to Section 2511(b), Mother argues that terminating her

parental rights will not serve the needs and welfare of I.M.C.L.      Mother’s

Brief at 9.    Nevertheless, in assessing I.M.C.L.’s needs and welfare, the

record reveals that R.L. testified that I.M.C.L. receives therapeutic services

and takes medication. N.T., 2/7/14, at 42. R.L. testified that Mother has

not had any involvement with I.M.C.L.’s therapeutic services. Id. Further,

R.L. testified that I.M.C.L. desires to be adopted.      In support of these

assertions, R.L. testified as follows.

              Q. Why did you ... pursue these adoption
              proceedings, even though [I.M.C.L.] still has contact
              with her mother?

              A. Me and [I.M.C.L.] talk a lot and she wanted to
              know why wasn’t she my real child.       And why
              couldn’t I adopt her like her older sister was
              adopted.

Id. at 41-42.3 In addition, the Child Advocate, on the record in open court,

made an offer of proof that, if I.M.C.L. were to testify, she would state she

“wants to be adopted by [R.L.].” Id. at 70.

      With respect to the nature and status of the parent-child bond, R.L.

testified that I.M.C.L. shares this bond with her and not with Mother. Id. at

53-54. There is no evidence in the record to indicate that I.M.C.L. will be

negatively affected by the termination of Mother’s parental rights. Rather,


3
  R.L. testified that Mother has an older daughter who was adopted by a
relative, and two older sons, one who is in the custody of R.L.’s
grandmother, and the other is in the custody of a family friend. N.T.,
2/7/14, at 39-40.
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the testimonial evidence indicates that the involuntary termination of

Mother’s   parental   rights   will   serve   the   developmental,   physical   and

emotional needs and welfare of I.M.C.L., who desires permanency and

stability with R.L.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion when it involuntarily terminated Mother’s parental rights.           See

S.P., supra at 826.       Accordingly, we affirm the trial court’s February 7,

2014 decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2015




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