J-S86045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.N.S.,               :       IN THE SUPERIOR COURT OF
S.N.S., AND T.I.W.S.                      :             PENNSYLVANIA
                                          :
                                          :
                                          :
APPEAL OF: L.R.W., NATURAL                :
MOTHER                                    :          No. 1260 WDA 2016


                Appeal from the Order Dated July 19, 2016
            In the Court of Common Pleas of Cambria County
      Orphans’ Court at No(s): 2016-8 IVT, 2016-9 IVT, 2016-10 IVT



BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED DECEMBER 21, 2016

      Appellant, L.R.W. (“Mother”), appeals from the order entered in the

Cambria County Court of Common Pleas, which involuntarily terminated her

parental rights to minor children, A.N.S., S.N.S., and T.I.W.S. (“Children”).

We affirm.

      The trial court set forth the relevant facts and procedural history of

this case as follows:

         1.       On January 6, 2016, [CYS] filed a Petition to
         Involuntarily Terminate the Parental Rights of [C.S.
         (“Father”)], then age 51, and [Mother], then age 34,
         biological parents of [Children].

                                 *    *       *

         4.      Hearings were conducted on May 13, 2016, and
         June 17, 2016.    Both parents were present at the
         hearings[.]


_____________________________

*Former Justice specially assigned to the Superior Court.
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          5.      [A.N.S.] and [S.N.S.] had been adjudicated
          dependent in July 2006 and placed in the care of CYS.
          However, they were returned to [Mother] in August of
          2008 and services [were] terminated to the family.

          6.       CYS returned in August of 2013 due to reports
          between May 2013 and July 2013 that [Mother] did not
          have the ability to supervise [Children] and [F]ather was
          incarcerated. The two youngest children, [S.N.S.] and
          [T.I.W.S.], then ages [7] and 2, were on the street alone,
          and during the past year [A.N.S.] and [S.N.S.] were
          absent or late for school.[1]

          7.       After the initial adjudication hearing on August
          21, 2013, the Juvenile Court provided a list of actions for
          [Mother] to take, including successfully completing
          parenting classes, supervision of [Children], financial
          responsibility classes, and making sure that the two [older]
          children attended school on a regular basis. …

          8.      Permanency Review Hearings were held on
          December 30, 2013 and January 29, 2014. The Juvenile
          Court found [Mother] to be only minimally compliant with
          the Permanency Plan and [F]ather had no compliance with
          the plan. [T.I.W.S.] was removed and placed with a
          paternal aunt, along with his sister [A.N.S.], who was
          uncooperative and defiant.      [S.N.S.] remained with
          [M]other. [Father] remained incarcerated.

          9.      At the Permanency Review Hearing held on June
          2, 2014, the Juvenile Court again found [Mother]
          minimally compliant and [Father] had no compliance.
          Father was still incarcerated and determined not to be a
          placement option.

          10.     At a Permanency Review Hearing held on August
          13, 2014, [A.N.S.] and [T.I.W.S.] were removed from the
          home of the aunt and [S.N.S.] was removed from
          [Mother]. The Juvenile Court also made a finding that
____________________________________________


1
  CYS’ involvement with the family was also based on reports of household
issues and financial instability.



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         neither parent would be a placement option. The Juvenile
         Court seemed frustrated that despite years of providing
         various services, [Mother] had not been able to alleviate
         the circumstances which led to CYS involvement for the
         past nine years.

         11.      Subsequent Permanency Review Hearings were
         held on June 10, 2015; November 25, 2015; and April 20,
         2016, with consistent findings of minimal or no compliance
         by [Mother] and absolutely no compliance by [Father] who
         had been in and out of jail.

         12.      Dennis Kashurba, a licensed psychologist,
         evaluated [Mother] on two occasions resulting in reports
         dated July 21, 2006, and March 6, 2008. …

                                 *    *    *

         14.      [Mother] failed to show for a January 8, 2014
         evaluation.

(Trial Court Order, filed July 19, 2016, at 1-5) (unpaginated). On January 6,

2016, CYS filed a petition for involuntary termination of Mother’s and

Father’s parental rights to Children. Following two hearings on the petition,

the court terminated the parental rights of Mother and Father to Children on

July 19, 2016. On August 10, 2016, Mother timely filed a notice of appeal

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

Pa.R.A.P. 1925(a)(2)(i).

      Mother raises the following issue for our review:

         WHETHER THE COURT EITHER ABUSED ITS DISCRETION
         OR COMMITTED AN ERROR OF LAW WHEN IT GRANTED
         THE PETITION FOR INVOLUNTARY TERMINATION OF
         PARENTAL   RIGHTS,   THEREBY   TERMINATING THE
         PARENTAL RIGHTS OF [MOTHER] TO [CHILDREN?]

(Mother’s Brief at 2).

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     Mother argues she did not demonstrate a settled purpose of

relinquishing her parental rights to Children.   Mother asserts she did not

refuse or fail to perform parental duties.   Mother contends the evidence

showed her interest in Children and her active steps to bring them back into

her custody.   Mother claims she has long-term stable housing and has

obtained available public assistance. Mother avers her testimony established

her home was clean, organized, and suitable for Children. Mother maintains

she also established her utilities were on and she was making acceptable

payments to the service providers. Mother asserts she completed parenting

classes and attended all scheduled visits with Children. Mother submits CYS

relied on old records and outdated information. Mother claims she is being

punished for her back condition, which temporarily hindered her ability to

parent Children. Mother contends no evidence demonstrated the continued

existence of the conditions which led to the removal of Children from her

custody. Mother argues the trial court found, contrary to the record, that no

bond existed between Mother and T.I.W.S. Mother avers CYS presented no

evidence that Mother’s bonds with Children were unhealthy, or that Children

had positive bonds with their foster parents. Mother concedes Children have

done well in foster care but insists Children would benefit equally, if not

more, by returning home to Mother. Mother concludes the court abused its

discretion when it terminated her parental rights to Children. We disagree.

     The standard and scope of review applicable in termination of parental


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rights cases are as follows:

         When reviewing an appeal from a decree terminating
         parental rights, we are limited to determining whether the
         decision of the trial court is supported by competent
         evidence. Absent an abuse of discretion, an error of law,
         or insufficient evidentiary support for the trial court’s
         decision, the decree must stand. Where a trial court has
         granted a petition to involuntarily terminate parental
         rights, this Court must accord the hearing judge’s decision
         the same deference that it would give to a jury verdict.
         We must employ a broad, comprehensive review of the
         record in order to determine whether the trial court’s
         decision is supported by competent evidence.

         Furthermore, we note that the trial court, as the finder of
         fact, is the sole determiner of the credibility of witnesses
         and all conflicts in testimony are to be resolved by [the]
         finder of fact. The burden of proof is on the party seeking
         termination to establish by clear and convincing evidence
         the existence of grounds for doing so.

         The standard of clear and convincing evidence means
         testimony that is so clear, direct, weighty, and convincing
         as to enable the trier of fact to come to a clear conviction,
         without hesitation, of the truth of the precise facts in issue.
         We may uphold a termination decision if any proper basis
         exists for the result reached. If the trial court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even though the record could support an
         opposite result.

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).

      CYS sought the involuntary termination of Mother’s parental rights on

the following grounds:

         § 2511. Grounds for involuntary termination

            (a) General Rule.—The rights of a parent in
            regard to a child may be terminated after a petition

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          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
              conditions and causes of the incapacity, abuse,
              neglect or refusal cannot or will not be
              remedied by the parent.

                                *    *    *

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

                                *    *    *

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

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              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)(1), (2), (5), (8), (b).      “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., 994 A.2d 1108, 1117 (Pa.Super. 2010).

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

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

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

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

at 520. “In this context, the court must take into account whether a bond

exists between child and parent, and whether termination would destroy an

existing, necessary and beneficial relationship.” In re Z.P., supra at 1121.

“[T]he mere existence of a bond or attachment of a child to a parent will not

necessarily result in the denial of a termination petition.” In re T.S.M., 620

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Pa. 602, 629, 71 A.3d 251, 267 (2013). “[I]t is an immutable psychological

truth that even the most abused of children will often harbor some positive

emotion towards the abusive parent.” Id. See also In re K.Z.S., 946 A.2d

753 (Pa.Super. 2008) (affirming trial court’s decision to terminate mother’s

parental rights, where trial court found placing child with mother would have

negative impact on child and would not be in child’s best interest; no

evidence suggested mother had bond with child comparable to child’s strong

bond with foster parent, or that terminating mother’s parental rights would

sever existing beneficial relationship or cause irreparable harm to child).

      “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

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

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

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

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

            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.

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           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…her ability, even in difficult circumstances.
        A parent must utilize all available resources to preserve
        the parental relationship, and must exercise reasonable
        firmness in resisting obstacles placed in the path of
        maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with [the child’s] physical
        and emotional needs.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations and quotation marks omitted).

“[A] parent’s basic constitutional right to the custody and rearing of…her

child is converted, upon the failure to fulfill…her parental duties, to the

child’s right to have proper parenting and fulfillment of…her potential in a

permanent, healthy, safe environment.” Id. at 856.

     Instantly, the trial court reasoned as follows:

        After review of the CYS records of the Independent Family
        Services [(“IFS”)] monthly reports, participation in
        monthly case review with [IFS] and in consultation with
        the CYS caseworker, [Dr.] Kashurba concluded that:

           The total information available at the present time
           suggests quite convincingly that [Mother’s] ability to
           independently implement parenting strategies that
           have been provided to her over the past several
           years’ time has not improved to a degree that would
           suggest that she can appropriately independently

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          parent any of her children on an ongoing basis. …
          Monthly consultation during the course of [Mother’s]
          [IFS] treatment indicate[s] that she continues to
          “parent from the couch” and that she is able to
          explain what techniques she should employ with
          [Children] but continues to not be able to implement
          these on an independent basis. … The escalating
          behavioral challenges of the older children also
          speaks for itself in that inadequate supervision and
          discipline on [Mother’s] part places these children at
          risk of harm due to their risky behaviors.

                               *     *      *

       A caseworker for [IFS], which began providing services to
       [Mother], summarizes her experience with [Mother] as
       follows:

          In summary, while it appeared as though [Mother]
          was initially interested in participating in the IFS
          Home      Management       Program,    she    became
          uninterested in participating. [Mother’s] general lack
          of concern for her home and [C]hildren and her lack
          of interest to improve her cleaning skills, financial
          skills and eliminate safety issues within the home
          made the home unsafe for [Children]. IFS Home
          Management Services were terminated when
          [Children] were removed from the home on August
          13, 2014.…

       [B]everly A. Ragan, a CASA volunteer for 12 years, …in her
       June 2, 2015 report to the Juvenile Court dealing with
       [Children] and two of their siblings not involved in the
       present case, stated as follows:

          This sibling group was removed in 2006 returned
          home only to come back into the system in 2013.
          These children need stability in their lives. They
          have been on an emotional roller coaster, which has
          manifested itself with many disruptive behaviors.

                               *     *      *

       The [c]ourt next considers the bond, if any, which each of

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        the parents have with [Children]. … As regards [Mother],
        there is a bond between her and each of her two older
        children, [A.N.S.] and [S.N.S.] None exists with [T.I.W.S.]

        [I]n summary, [Mother and Father] have demonstrated an
        inability to perform their parental duties and they lack the
        motivation of performing these duties within a reasonable
        period of time.

        [I]n terminating the parental rights of [Mother and
        Father], the [c]ourt finds that such termination is in the
        best interests of [Children] and that termination will best
        meet the developmental, physical, and emotional needs
        and welfare of [Children].

                                 *     *      *

        Each of the children deserves to have a better life.
        [S.N.S.] no longer exhibits significant behavioral issues or
        excessive school absences. [S.N.S.] is often on the Honor
        Roll at school, and she is active in multiple enrichment
        activities. [A.N.S.] no longer exhibits behavioral issues or
        excessive school absences. [A.N.S.] is now involved in a
        prestigious higher achiever program through her school
        and she is active in multiple enrichment activities.
        [T.I.W.S.] has flourished in his kinship foster home. He no
        longer exhibits significant behavioral issues and has
        developed a strong bond with his kinship foster family.

        In summary, all of these children are doing well in foster
        care.

        [Ms.] Ragan testified at the May 13, 2016 hearing
        concerning [Mother] and [Children] as follows:

           And I know this and I know [Mother’s] background
           and I know that she has got some unresolved issues
           of herself and that’s from years of working with her
           and understanding her background. But her children
           are being destroyed by her inability in not seeking
           help sooner for herself.

(Trial Court Order at 5-9) (unpaginated). We accept the court’s analysis.


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      CYS has been involved with Mother repeatedly over the last decade.

The IFS worker testified that Mother was unable to stabilize financially or

maintain the household, despite the assistance she received from IFS in the

year after Children were adjudicated dependent.      Mother exhausted every

county social agency for financial assistance but still failed to meet monthly

living expenses. Mother expressed an interest in working part-time due to a

disability but failed to secure employment.       Rooms in the house were

extremely dirty and occasionally impassable. Mother submitted photographs

purporting to show the suitability of the home for Children, but those

photographs were taken well after the termination petition was filed and

were not considered by the court. See 23 Pa.C.S.A. § 2511(b). Children

often appeared unkempt in dirty clothing and laundry would pile up in the

house. A CYS caseworker testified that Children were out of control at times

during visits, but Mother was unresponsive.      The court-appointed special

advocate described the visits as chaotic. The caseworker also testified that

Mother made no effort to initiate services after IFS was unsuccessful and

Children were removed from her home.         Dr. Kashurba opined that Mother

has failed to improve her ability to implement parenting strategies to a point

where she can appropriately parent Children on an ongoing basis.          Dr.

Kashurba stated that Mother’s inadequate supervision and discipline of

Children places them at risk of harm.        Thus, CYS presented clear and

convincing evidence to warrant termination of Mother’s parental rights to


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Children under Sections 2511(a)(1), (2), (5), and (8). See In re Adoption

of K.J., supra.

       With respect to Section 2511(b), the CYS caseworker testified that

Children have bonds with Mother but stated A.N.S. and S.N.S. are old

enough to recognize the stability of their current living arrangement and

want to remain in foster care.2                The caseworker further testified that

Children have strong bonds with their foster parents.               The caseworker

provided extensive testimony on the improvement of Children’s behavior and

lives since they were placed in a stable and structured foster care

environment.       The caseworker opined that Mother is unable to provide

stability to any of Children in a manner that would allow them to flourish as

they have in foster care. The caseworker concluded termination of Mother’s

parental rights was in Children’s best interest.            The trial court’s Section

2511(b) analysis makes clear it considered the caseworker’s testimony and

whether severing Mother’s bond with Children would destroy an existing,

necessary and beneficial relationship.           See In re Z.P., supra. No “magic

words” were required. See In re K.Z.S., supra. The record supports the

court’s conclusion that termination of Mother’s parental rights is in Children’s

____________________________________________


2
  The caseworker responded “yes” to the question, “Have you noticed a bond
between [Mother] and the children?” (N.T. Termination Hearing, 5/13/16, at
21). During the ensuing questioning, however, the caseworker referred
specifically to A.N.S. and S.N.S. It is unclear whether the caseworker
intended to convey that Mother has a bond with T.I.W.S. as well.



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best interests.3       See 23 Pa.C.S.A. § 2511(b); In re C.P., supra.

Accordingly, we affirm.4

       Order affirmed.




____________________________________________


3
  The court in part relied on exhibits absent from the certified record, but the
information quoted from those exhibits mirrors the testimony of the
caseworkers and psychologist at the termination hearings.
4
  On October 28, 2016, Mother filed a motion to consolidate this appeal with
the appeal she filed at 1219 WDA 2016. Mother’s stated basis for that
appeal is the trial court’s finding of aggravated circumstances with respect to
the dependency adjudication of one of Mother’s other children, K.S. The
appeal at 1219 WDA 2016 is from a different order and involves a distinct
issue, which Mother has not briefed. See Pa.R.A.P. 513 (stating this Court
may exercise its discretion to consolidate multiple appeals where more than
one appeal is from same order, or where same question is involved in two or
more appeals in different cases). Therefore, we deny Mother’s motion to
consolidate. Mother may take whatever action she deems necessary in the
appeal at 1219 WDA 2016 in the wake of this Court’s disposition of the
current appeal.

Separately, Father filed a brief as a “participant” in this appeal, arguing that
the court improperly terminated his parental rights to Children.             On
November 7, 2016, CYS and the guardian ad litem (“GAL”) filed motions to
“quash” Father’s brief in whole or in part. Father at no time filed a notice of
appeal from the trial court’s order terminating his parental rights. Father
may not simply “piggyback” on Mother’s notice of appeal. Consequently,
this Court has no jurisdiction over his claims. See Pa.R.A.P. 903(a) (stating
notice of appeal must be filed within thirty days after entry of order form
which appeal is taken); Commonwealth v. Green, 862 A.2d 613
(Pa.Super. 2004), appeal denied, 584 Pa. 692, 882 A.2d 477 (2005) (stating
jurisdiction is vested in Superior Court upon filing of timely notice of appeal).
Therefore, we grant CYS’ and the GAL’s open motions and suppress Father’s
brief in full.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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