J-S45001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: H.D.L., A MINOR   :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
                                      :
APPEAL OF: C.G., MOTHER               :       No. 938 EDA 2017


              Appeal from the Order Dated February 2, 2017
          In the Court of Common Pleas of Montgomery County
                  Orphans’ Court at No(s): 2016-A0182

IN RE: ADOPTION OF: A.H.L., A MINOR   :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
                                      :
APPEAL OF: C.G., MOTHER               :       No. 939 EDA 2017


              Appeal from the Order Dated February 2, 2017
          In the Court of Common Pleas of Montgomery County
                  Orphans’ Court at No(s): 2016-A0183

IN RE: ADOPTION OF: K.N.L., A MINOR   :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
                                      :
APPEAL OF: C.G., MOTHER               :       No. 940 EDA 2017


              Appeal from the Order Dated February 2, 2017
          In the Court of Common Pleas of Montgomery County
                  Orphans’ Court at No(s): 2016-A0184

IN RE: ADOPTION OF: O.R.L., A MINOR   :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
                                      :
APPEAL OF: C.G., MOTHER               :       No. 941 EDA 2017
J-S45001-17


                Appeal from the Order Dated February 2, 2017
            In the Court of Common Pleas of Montgomery County
                    Orphans’ Court at No(s): 2016-A0185

BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*



MEMORANDUM BY GANTMAN, P.J.:                            FILED JULY 24, 2017

      Appellant, C.G. (“Mother”), appeals from the orders entered in the

Montgomery County Court of Common Pleas, Orphans’ Court, which changed

the family goal to adoption and granted the petitions of the Office of Children

and Youth (“OCY”) for involuntary termination of Mother’s parental rights to

her minor children, K.N.L., O.R.L., A.H.L., and H.D.L. (“Children”). 1      We

affirm.

      The relevant facts and procedural history of this case are as follows.

Mother and Father are the parents of K.N.L. (born September 2004), O.R.L.

(born April 2008), A.H.L. (born January 2010), and H.D.L. (born October

2013).    The family has been involved with OCY since 2011, and OCY

removed Children from parents’ care on several occasions prior to October

30, 2015. On October 30, 2015, Children were removed from parents’ care

due to Mother’s arrest on an outstanding warrant, the uninhabitable

conditions of the home, and the discovery of a woman, hiding in one of



1
 The court also terminated the parental rights of J.L. (“Father”), who is not a
party to this appeal.
_____________________________

*Retired Senior Judge assigned to the Superior Court.

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Children’s bedrooms, overdosing on illegal drugs. OCY obtained emergency

legal and physical custody of Children, and on November 10, 2015, the court

adjudicated Children dependent.    Children were placed together in a pre-

adoptive foster home.

     Parents continually failed to complete FSP goals, which included

complying with probation, obtaining drug and alcohol treatment, maintaining

sobriety, and finding suitable housing.   As a result, OCY filed petitions for

involuntary termination of parental rights on or about November 14, 2016.

The court held a termination hearing over two days on February 1 and 2,

2017. At the conclusion of the hearing, the court granted the petitions for

involuntary termination of parents’ parental rights to Children. On March 1,

2017, 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).      This

Court consolidated the appeals sua sponte on April 5, 2017.

     Mother raises six issues for our review:

        DID THE TRIAL COURT ERR IN FINDING THAT THE
        COMMONWEALTH MET ITS BURDEN BY CLEAR AND
        CONVINCING EVIDENCE THAT [MOTHER] VIOLATED 23
        PA.C.S. § 2511(A)(2) AND 23 PA.C.S. § 2511(A)(8)?

        DID THE TRIAL COURT ERR WHEN IT FOUND THAT, AS IT
        PERTAINS TO [MOTHER], THE CONDITIONS WHICH LED
        TO THE REMOVAL OR THE PLACEMENT OF [CHILDREN]
        CONTINUE TO EXIST PURSUANT TO 23 PA.C.S. §
        2511(A)(8)?

        DID THE TRIAL COURT ERR IN FINDING THAT THE LACK
        OF A PARENTAL BOND WITH MOTHER IS SUPPORTED, AND
        NOT CONTRADICTED, BY THE EVIDENCE?


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         DID THE TRIAL COURT [ERR] APPLYING THE FRYE
         STANDARD AND FAILED TO CONDUCT A PROCEDURALLY
         CORRECT FRYE HEARING.

         DID THE TRIAL [COURT ERR] WHEN IT FOUND THAT THE
         DEVELOPMENTAL, PHYSICAL, EMOTIONAL NEEDS AND
         WELFARE OF THE MINOR [CHILDREN] WERE BEST SERVED
         BY SEVERING THE PARENTAL BOND WITH [MOTHER?]

         DID THE TRIAL COURT ERR WHEN IT FOUND THAT THE
         CONDITIONS AND CAUSES WHICH LED TO THE REMOVAL
         OF THE MINOR [CHILDREN] CONTINUE TO EXIST AND
         THAT [MOTHER] CAN OR WILL NOT REMEDY THE
         CONDITIONS WITHIN A REASONABLE PERIOD OF TIME,
         PURSUANT TO 23 PA.C.S. § 2511(A)(2).

(Mother’s Brief at 4-5).2

      Appellate review of termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent
         evidence, and whether the trial court gave adequate
         consideration to the effect of such a decree on the welfare
         of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand.       …    We must
            employ a broad, comprehensive review of the record
            in order to determine      whether the trial court’s

2
  Mother included the Frye hearing issue in her statement of questions
involved, but she did not pursue any argument on this claim. Therefore, we
deem the issue waived. See Butler v. Illes, 747 A.2d 943 (Pa.Super.
2000) (holding appellant waived claim where appellant failed to set forth
adequate argument concerning claim on appeal).


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            decision is supported by competent evidence.

         In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
         banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
         (internal citations omitted).

            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.

         In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
         2002) (internal citations and quotation marks omitted).
         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.
         In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
         may uphold a termination decision if any proper basis
         exists for the result reached. In re C.S., 761 A.2d 1197,
         1201 (Pa.Super. 2000) (en banc). If the court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even if the record could support an
         opposite result. In re R.L.T.M., 860 A.2d 190, 191-92
         (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting 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)).

      OCY filed petitions for the involuntary termination of Mother’s parental

rights to Children 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 filed on any of the
         following grounds:


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                                 *    *    *

           (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.

                                 *    *    *

           (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)(2), (8), and (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., supra at 1117.


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         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 …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.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

      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 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.”   Id. at 340.    The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).             Incarceration is also relevant in


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termination decisions under Section 2511(a)(2) and can be a determinative

factor “in a court’s conclusion that grounds for termination exist under

[Section] 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.” In re Adoption of S.P., 616 Pa. 309, 329,

47 A.3d 817, 828 (2012). “If a court finds grounds for termination under

subsection (a)(2), a court must determine whether termination is in the best

interests of the    child, considering   the   developmental, physical,   and

emotional needs and welfare of the child pursuant to [Section] 2511(b). In

this regard, trial courts must carefully review the individual circumstances

for every child to determine, inter alia, how a parent’s incarceration will

factor into an assessment of the child’s best interest.” Id. at 332, 47 A.3d

at 830-31.

     “[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) [t]he child has been removed from

parental care for [twelve] 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).   “Section 2511(a)(8) sets a 12–month time frame for a

parent to remedy the conditions that led to the children’s removal by the



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court.”   In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003).        Termination

under Section 2511(a)(8) does not require the court to evaluate a parent’s

current willingness or ability to remedy the conditions that initially caused

placement or the availability or efficacy of Agency services. In re Adoption

of T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P.,

supra.

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

will meet the child’s needs and welfare.     In re C.P., 901 A.2d 516, 520

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

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

court must also discern the nature and status of the parent-child bond,

paying close attention to the effect on the child of permanently severing the

bond.” Id. Significantly:

          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.

          When conducting a bonding analysis, 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., supra at 1121 (internal citations omitted).

      “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


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

considered unfit and have …her rights terminated.” In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

        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 [C]ourt 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 [herself] 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 his or her 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 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


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proper parenting and fulfillment of [the child’s] potential in a permanent,

healthy, safe environment.” Id. at 856.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Cheryl L.

Austin, we conclude Mother’s issues merit no relief.    The Orphans’ Court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Orphans’ Court Opinion, dated March 16, 2017, relying on

and attaching its reasoning set forth on record at termination hearing, N.T.

Hearing, 2/2/17, at 129-50) (finding: under Section 2511(a)(8), Children

have been removed from Mother’s care since 10/30/15, which is more than

12 months; Mother suffers from depression and anxiety; testimony from

OCY witnesses showed Mother failed to complete treatment programs or

cooperate with OCY staff and services; Mother has problems with drug use,

tested positive for drugs on some occasions, and refused drug testing on

other occasions; Mother’s drug use, as well as her incarceration, made it

impossible for her to provide proper parental care and support necessary for

Children’s physical and mental wellbeing; Mother’s drug use was condition

that led to Children’s placement, and Mother has not demonstrated she can

remedy that condition within reasonable period of time; it is unfair for

Children to be forced to wait for Mother to become capable of parenting

them; under Section 2511(a)(2), OCY showed evidence of Mother’s neglect

of Children; Mother justified her actions due to “addict thinking”; Mother is



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incapable of performing basic parental duties; under Section 2511(b), there

is minimal parental bond between Mother and Children; out of 35 visits

offered with Children, Mother attended only 15; youngest child refers to

foster mother as his mother; Children need more than Mother’s love and

affection; Mother has not been able to provide for Children’s needs;

Children’s best interests will be met by termination of Mother’s parental

rights; Children are bonded to foster parents). Accordingly, we affirm on the

basis of the Orphans’ Court opinion.

       Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/2017




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