J.S36031/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: A.J.S., A MINOR,  :           IN THE SUPERIOR COURT OF
                                      :                PENNSYLVANIA
                                      :
                                      :
                                      :
APPEAL OF: D.F.M. A/K/A D.S., MOTHER, :
                                      :           No. 3609 EDA 2013


               Appeal from the Order Entered November 14, 2013
              In the Court of Common Pleas of Philadelphia County
                    Family Court No(s).: 51-FN-381481-2009
                                         CP-51-AP-0000651-2013
                                         CP-51-DP-0001847-2011

IN THE INTEREST OF: D.M.S., A MINOR, :            IN THE SUPERIOR COURT OF
                                      :                PENNSYLVANIA
                                      :
                                      :
                                      :
APPEAL OF: D.F.M. A/K/A D.S., MOTHER, :
                                      :           No. 3611 EDA 2013


               Appeal from the Order Entered November 14, 2013
              In the Court of Common Pleas of Philadelphia County
                    Family Court No(s).: 51-FN-381481-2009
                                         CP-51-AP-0000626-2013
                                         CP-51-DP-0001205-2011

BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 08, 2014




*
    Former Justice specially assigned to the Superior Court.
J. S36031/14




Philadelphia County Court of Common Pleas on November 14, 2013,

terminating her parental rights to her twin sons, A.J.S.1 and D.M.S.2



adoption.3

Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). We affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

              On [May 5, 2008], [t]he Department of Human Services

                                                               l of
           Philadelphia. [Children] were exposed to illegal drugs
           during the pregnancy and were hospitalized after birth for
           three weeks for observation.

              The [DHS] reports show a lengthy history with the
           family due to allegations of ongoing substance abuse by
           [Mother. DHS] obtained information of numerous eviction
           notices and shut off notices for utility services at the family
           home.

                                     *     *    *

              On June 11, 2011, [DHS] learned the child, D.S.,
           suffered abrasions to his face and bruises on his body
           which appeared to be at different stages of healing. Upon

                                                             -concussion

1
    A.J.S. and A.S. are the same child.
2
    D.M.S. and D.S. are the same child.
3
  These appeals were consolidated sua sponte by order of this Court on
January 28, 2014.



                                          -2-
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           associated with self-injuring symptoms and symptoms of
           being developmentally delayed, with delayed gross motor
           skills and speech delays.     The primary care physician

           recommendation of Early Intervention services.

              On June 12, 2011, [DHS] did a home assessment of
                          4
                            and [Mother] and found the home did
           not have proper utilities. [DHS] obtained an Order of


              A shelter care hearing was held on June 16, 2011,
           [following which the Master] lifted the OPC and ordered [ ]
           D.S. to be temporarily committed to [DHS]. [ ] D.S. was
           placed in the care of a family member. It was reported
           [Mother] had a history of drug abuse and [Father] used
           drugs in front of [Children].

              An adjudicatory hearing was held on [June 21, 2011].
           D.S. was [deemed] dependent and committed [ ] to
           [DHS]. The [c]ourt referred [Mother] to the [c]linical
           [e]valuation [u]nit for a forthwith drug screen, dual
           diagnosis, assessment and monitoring. Both parents were
           ordered to the Achieving Reunification Center (ARC)
           program for reunification services.

              On September 3, 2011, [DHS] received a General

           was under the influence of drugs and was causing
           confusion in the home where [Children] were located. A
           substantiated report alleged that [Mother] and [Father]
           were using heroin in front of [Children]. A family member
           visited the home and removed [Children] from the home.
           The family member refused to return [Children].

              On September 8, 2011, [DHS] learned [Mother] was
           incarcerated in prison in Delaware [C]ounty for [a]
           probation violation for testing positive for drugs. It was
           also alleged [Father] was incarcerated [ ].



4
    Father is not a party to this appeal.



                                        -3-
J. S36031/14

          On September 21, 2011, [DHS] obtained an [OPC] for
       A.S.

          An initial permanency review hearing was held for [ ]
       D.S. on September 21, 2011 [ ]. The [c]ourt ordered D.S.
       to remain committed to [DHS]. The [c]ourt received a

       court ordered drug screens.

           A shelter care hearing was held for [ ] A.S. on
       September 22, 2011. [A.S.] was adjudicated dependent
       and committed to DHS on October 3, 2011.] The [c]ourt
       lifted the OPC and ordered the temporary commitment to
       [DHS] to stand. [Neither Mother] nor [Father] attended
       the hearing.

          A permanency review hearing was held on December
       13, 2011 for [ ] A.S. The [c]ourt ordered [Children] to
       remain as placed and committed to [DHS]. [Mother and
       Father] remain incarcerated.

           On April 23, 2012, [Father] pled guilty to criminal
       charges of theft and was sentenced to a maximum of 23
       months [sic] incarceration. [Father] had a lengthy history
       of incarcerations from 2006 to present.


       [DHS]. The [FSP] objectives for the parents were (1) to
       continue to occupy suitable housing for family with suitable
       space, heat and all other operable utilities, (2) to achieve
       and maintain recovery from drug and/or alcohol problems
       (3) to sign authorization forms to allow the release of
       copies of the evaluation and progress reports (4) to
       comply with all treatment recommendation [sic] including
       therapy and/or medications as prescribed. The objectives
       specifically identified for [M]other were (1) continue to
       attend     drug/alcohol    program   and      comply    with
       requirements, (2) participate in mental health evaluation
       and treatment and (3) to maintain employment.

          The matter was then listed on a regular basis . . . and
       evaluated for the purpose of determining or reviewing the
       permanency plan of the child [sic] with the goal of
       reunification of the family.


                                  -4-
J. S36031/14



              In

           addressing the lack of compliance with suitable housing,
           and drug and alcohol treatments.

Trial Ct. Op., 2/6/14, at 2-3 (unpaginated).         We add that since 2011,




parental rights to Children.    The petitions alleged grounds for termination

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).         Following a

hearing on the petitions on November 14, 2013, the trial court granted



                                                                           .5

        Mother raises the following issues for our review:

           1.
           should be terminated?

           2. Did the trial court err in determining that it was in the
                                                                      al
           rights by finding there was no bond between [Children]
           and [Mother].



        Our standard and scope of review is well-established:

           In an appeal from an order terminating parental rights, our
           scope of review is comprehensive: we consider all the


5
    Mother and the trial court complied with Pa.R.A.P. 1925.



                                       -5-
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         findings and legal conclusions. However, our standard of

         only if we conclude that the trial court abused its
         discretion, made an error of law, or lacked competent

         is entitled to the same deference as a jury verdict.

In re L.M.

standard of review requires [u]s to accept the findings of fact and credibility

                                                                         In re

Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).

      Furthermore:

            Termination of parental rights is controlled by statute.
         See 23 Pa.C.S.A. § 2511 . . . . 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

         statutory grounds for termination delineated in Section

         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. Id.

In re L.M., 923 A.2d at 511 (some citations omitted).

      We have previously stated:

             The standard of clear and convincing evidence is

             and convincing as to enable the trier of fact to come
             to a clear conviction, without hesitance, of the truth


                                     -6-
J. S36031/14



            that a court must examine the individual
            circumstances of each and every case and consider
            all explanations offered by the parent to determine
            if the evidence in light of the totality of the
            circumstances clearly warrants termination.

         In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

            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

         while others provide the child with his or her physical and
         emotional needs.

In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).

            Before filing a petition for termination of parental rights,
         the Commonwealth is required to make reasonable efforts
         to promote reunification of parent and child. However, the
         Commonwealth does not have an obligation to make such
         efforts indefinitely. The Commonwealth has an interest

         to a stable, safe, and healthy environment, and the two
         interests must both be considered.

In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006) (citations

omitted).



is critical that the fact of incarceration and the practical limits it imposes on

the parent/child relationship

In re P.S.S.C. & P.D.S.C., 32 A.3d 1281, 1285 (Pa. Super. 2011).

Furthermore, this Court has held:


                                      -7-
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                                                               ure to

          and failure to support a child due to incarceration is not
          conclusive on the issue of whether the parent has

          responsibilities are not tolled during incarceration, and
          therefore the court must inquire whether the parent
          utilized those resources available while he or she was in
          prison to continue a close relationship with the child.

Id. at 1286 (citations omitted).

      The trial court found that DHS presented sufficient grounds to



2511:

        § 2511. Grounds for involuntary termination

                             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 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


                                     -8-
J. S36031/14

             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 best
             serve the needs and welfare of the child.

                                   *    *    *

           (b) Other considerations.
           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. § 2511(a)(1), (2), (5), (8), (b).



termination of parental rights with regard to any one subsection of section

2511(a).     See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).


                                       -9-
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      In her first issue, Mother argues DHS failed to present sufficient

evidence in support of termination pursuant to any of the subsections of



never evidenced a settled purpose of relinquishing her parental rights to

Children. Id. at 12. She states that she completed most of her FSP goals,

and was actively completing the remaining goals, was compliant with her

probation, including random drug screens, was enrolled in a drug program,

and had re-engaged in mental health treatment.         Id.   She concedes,

however, that she had only been re-engaged in mental health treatment for

a few months, but claims that she needed to find suitable housing after

being released from prison before she could seek mental health treatment.

Id. at 13.



of Section 2511(a), we focus our analysis on whether the trial court properly



explained:

         termination under subsection (a)(8) does not require
                                                   y to remedy the
         conditions that initially caused placement, nor does it
         require an evaluation of the availability or efficacy of
         [DHS] services. Though the state is required to make
         reasonable efforts to promote family stability and
         preserve family unity we cannot require [DHS] to extend
         services beyond what our legislature has deemed a
         reasonable time after state intervention or require
         Herculean efforts by [DHS] or other agencies after the goal
         has changed to adoption. Nor, in the interests of the
         child


                                   - 10 -
J. S36031/14




           cannot be put on hold in the hope that the parent will
           summon the ability to handle the responsibilities of
           parenting.

In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003)

(citations omitted) (emphasis in original).

                                                                          DHS

presented the testimony of Barbara Forest, DHS social worker. Ms. Forest

testified that D.S. and A.S. were adjudicated dependent in June and

September 2011, respectively.6 N.T., 11/14/13, at 11. Although Mother has

completed some of her FSP objectives, she did not have appropriate

housing, had not provided verification of employment, and was not engaged

in mental health treatment.      Id. at 18, 21.      Mother had also failed to

participate in random drug screens, and, when she did appear for drug

testing, she has had positive results. Id at 12-14. Ms. Forest testified that,

at the time of the hearing, she was still not comfortable recommending that

Mother have unsupervised visitation with Children.      Id. at 20.   Ms. Forest

recommends that Children be adopted by their [paternal grandmother] with

whom they have lived since 2011.        Id. at 21.    Paternal grandmother is

bonded with Children, meets their basic needs, and provides them with

stability. Id. at 21-22. Ms. Forest reiterated her recommendation that the


6
    In fact, A.S. was adjudicated dependent on October 3, 2011.



                                     - 11 -
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goal be changed to adoption because, even though Mother has completed

                                                                  -

and Children need permanency. Id. at 23.

      In the instant case, the trial court made the following findings:


         completing her objectives for reunification with [Children].

         were frequently unknown for long periods of time.

                                  *      *      *

            . . . D.S. and A.S. have been in foster care for
         respectively for [sic] twenty-nine and twenty-six months.
         The testimony established [Children] are in a stable
         environment and adoption was in the best interest [sic] of
         [Children].

                                   *     *      *

            The testimony established [M]other neglected to meet
         the protective parental care needs for [Children].
         Furthermore, testimony evidenced and confirmed that
         [M]other has an extensive criminal history. Moreover,

         caused instability in the care of [Children].

            Furthermore, testimony established [M]other admitted
         a history of drug usage and mental health issues. Lastly,
         [M]other repeatedly failed to participate in court ordered
         random drug screens.

Trial Ct. Op. at 4-5 (citations to the record omitted).




adequately supported by the record.          The testimony and record evidence

establishes that Children have been in placement in excess of two years, and


                                       - 12 -
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Mother has not advanced beyond having supervised visitation with Children.



her FSP objectives. However, it is undisputed that Mother has not met all of

the goals established by DHS, including consistently participating in mental

health, drug and alcohol treatment, and obtaining employment. On appeal,

Mother seeks to have this Court re-weigh the evidence.     Our standard of

review, however, does not permit us to invade the credibility determinations

of the trial court and re-weigh the evidence, absent an abuse of discretion.

See In re S.P., 47 A.3d at 826.

     As we find there is competent evidence in the record to support the




Section 2511(a)(8). See In re Adoption of R.J.S., 901 A.2d at 507; In re

Adoption of M.E.P., 802 A.2d at 1276.



determination that termination of her parental rights pursuant to Section



made a specific finding as to the nature of the relationship between her and




                                                        cision as to how the




                                   - 13 -
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      With regard to Section 2511(b), this court has stated:

            Once the statutory requirement for involuntary
         termination of parental rights has been established under

         needs and welfare will be met by termination pursuant to
         subsection (b). 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., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted). This

Court has explained that the focus in terminating parental rights under

Section 2511(a) is on the parent, but it is on the child pursuant to Section

2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008).

In analyzing the parent-child bond, the court is not required to order that an

expert perform a formal bonding evaluation.      In re K.K.R.-S., 958 A.2d

529, 533 (Pa. Super. 2008).


         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. The mere existence of an
         emotional bond does not preclude the termination of
         parental rights. See In re T.D., 949 A.2d 910 (Pa.

         parental rights was affirmed where court balanced strong

         child).


In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (some citations omitted).



                                    - 14 -
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                                                                         timony



caseworker.    Ms. Garcia testified that Children are bonded with Paternal

Grandmother. N.T. at 29-

visits with Children and that Mother struggles to discipline them in an

appropriate way.       Id. at 31.   She also suspected Mother was under the

influence of drugs or alcohol at one visit.     Id. at 32.   Ms. Garcia believes

                                                                              a

connection with her, they have a strong bond with [Paternal Grandmother],

who has been providing for them. If she was no longer in their lives, they

                                       Id. at 32-33. Ms. Garcia does not believe

it would cause Children irr

rights. Id. at 33-34.



address the effect that termination would have on Children. The trial court

concluded that termination of Moth




at 6. Specifically, the court found:

         Testimony established [M]other
         issues and drug abuse presented safety concerns for
         [Children]. The testimony of the social worker revealed

         [Children].



                                       - 15 -
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         . . . In the instant matter, the testimony established that
         the child [sic] would not suffer any irreparable emotional

         [Children] have bonded with their foster parent, [Paternal
         Grandmother].      Testimony described the relationship
         between [Children] and their foster parent as very close
         and strong.     Furthermore, testimony established their
         foster parent provides longterm stability and permanency
         for [Children].

            Lastly in the instant matter, the social worker for [DHS]
         testified credibly.   Her testimony
         history of drug abuse and failure to seek mental health
         treatment was consistent.

                                  *     *      *

         . . . [T]he court finds that its ruling will not cause
         [Children] to suffer irreparable harm and it is in the best
         interest of the child [sic] as a result of testimony regarding

         moral welfare, to terminate the parental rights.

Id. (citations omitted).

      The trial court did not abuse its discretion in finding the lack of a

ben

welfare will be best served by terminating her parental rights pursuant to

Section 2511(b).   Although the court found that Mother and Children love

each other, and that Mother attempted to maintain a relationship with



                                                                     See In re

N.A.M., 33 A.2d at 103.        Therefore, the trial court did not abuse its

d




                                      - 16 -
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would be in the best interests of Children. See id.; In re Z.P., 994 A.2d at

1121; In re Adoption of M.E.P., 802 A.2d at 1276.

     For all the foregoing reasons, we affirm the trial cou




     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/8/2014




                                   - 17 -
