J-S04016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: W.E.A.O., A                   IN THE SUPERIOR COURT OF
MINOR                                                   PENNSYLVANIA




APPEAL OF: J.O., MOTHER

                                                      No. 3021 EDA 2016


                      Appeal from the Decree July 28, 2016
                  In the Court of Common Pleas of Pike County
                       Civil Division at No(s): 11-2016-OA


BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                             FILED JANUARY 31, 2017

        J.O. (“Mother”) appeals from the July 28, 2016 decree in the Court of

Common Pleas of Pike County involuntarily terminating her parental rights to

her son, W.E.A.O. (“Child”), born in May of 2015.1 We affirm.

        We summarize the factual and procedural history of this case as

follows. Child was removed from Mother’s custody in May of 2015, when he

was three days old, due to deplorable conditions in Mother’s home.        Trial

Court Opinion, 9/14/16, at 1; N.T., 7/27/16, at 9.              The trial court

adjudicated Child dependent on June 3, 2015. Trial Court Opinion, 9/14/16,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  By separate decree entered on July 28, 2016, the trial court involuntarily
terminated the parental rights of J.R., Jr. (“Father”). Father did not appeal.
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at 1. Pike County Children and Youth Services (“CYS”) developed a Family

Service   Plan    (“FSP”)   that   required   Mother   to   provide   a   nurturing

environment during visits with Child; provide clean, safe, and stable housing

for Child; complete a parenting services program; comply with mental health

requirements; meet the Child’s medical needs; and cooperate with CYS. Id.

at 2; N.T., 7/27/16, at 22, 26.

      On June 10, 2016, CYS filed a petition for the involuntary termination

of Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

(8), and (b).      A hearing occurred on July 27, 2016, during which CYS

presented the testimony of its caseworkers, Jennifer Dargenio and Shannon

Wisniewski.      Mother was present and represented by counsel, but she did

not testify.

      By decree dated July 27, 2016, and entered on July 28, 2016, the trial

court involuntarily terminated Mother’s parental rights. 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) and (b).

The trial court filed its Rule 1925(a) opinion on September 14, 2016.

      On appeal, Mother presents the following issues for our review:

      1. Whether the [t]rial [c]ourt erred and abused its discretion by
      terminating Natural Mother’s parental rights because there was a
      lack of clear and convincing evidence presented that Natural
      Mother has refused or failed to perform parental duties[?]

      2. Whether the [t]rial [c]ourt erred and abused its discretion by
      terminating Natural Mother’s parental rights because there was a
      lack of clear and convincing evidence presented that Natural

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      Mother cannot or will not remedy a continued incapacity, abuse,
      or neglect and caused the child to be without essential parental
      care, control or subsistence necessary for his physical or mental
      well-being[?]

      3. Whether the [t]rial [c]ourt erred and abused its discretion by
      terminating Natural Mother’s parental rights because there was a
      lack of clear and convincing evidence presented that the
      conditions that led to the removal or placement of the child
      continues to exist, and that the parent cannot or will not remedy
      the conditions within a reasonable period of time[?]

Mother’s brief at 6.

      Our standard of review is as follows:

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

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

analysis.

      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

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     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) (citations omitted).

     We need only agree with the trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm. See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we

conclude that the certified record supports the decree pursuant to Section

2511(a)(1) and (b), which provide as follows.

     (a) General Rule.—The rights of a parent in regard to a child
     may be terminated after a petition filed on any of the following
     grounds:

         (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.

         ...

     (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



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     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), (b).

     This Court has explained as follows:

     To satisfy the requirements of 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 Adoption of R.J.S., 901 A.2d 502, 510
     (Pa. Super. 2006). In addition,

           Section 2511 does not require that the parent
           demonstrate both a settled purpose of relinquishing
           parental claim to a child and refusal or failure to
           perform parental duties. Accordingly, parental rights
           may be terminated pursuant to [s]ection 2511(a)(1)
           if the parent either demonstrates a settled purpose
           of relinquishing parental claim to a child or fails to
           perform parental duties.

     In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
     91 (Pa. 1998).

           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).

     Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).         Further, we have

stated that, “the trial court must consider the whole history of a given case




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and not mechanically apply the six-month statutory provision.”           In re

N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).

     This Court has defined parental duty 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).

     With respect    to   Section 2511(b),   this   Court has   stated     that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa. Super. 2005) (citation omitted).      Further, the trial court

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

utmost attention to the effect on the child of permanently severing that

bond.”   Id. (citation omitted).     However, “[i]n cases where there is no

evidence of any bond between the parent and child, it is reasonable to infer

that no bond exists. The extent of any bond analysis, therefore, necessarily

depends on the circumstances of the particular case.”         In re K.Z.S., 946

A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).

      Instantly, Mother argues that the trial court abused its discretion in

involuntarily terminating her parental rights pursuant to Section 2511(a)(1)

by mechanically applying “the six (6) month statutory provision without

taking into consideration the entire case.” Mother’s brief at 12. Specifically,

Mother asserts that she “has been involved with [CYS], completed her

parenting program, attended visits and listened to instructions, and has

attempted to resolve her housing issue.”        Id.   In addition, Mother asserts

that she was living in a new home at the time of the termination hearing.

Id. at 11. We discern no abuse of discretion.

      The trial court terminated Mother’s parental rights based on the

following factual findings, in relevant part:

      [W]hile this [c]ourt acknowledges that [Mother] completed her
      regular mental health evaluation, [Mother] had still not
      completed her required mental health disability service
      evaluation.   [A]lthough [Mother] had completed the parent
      training course and attended all visits during the first few
      months of placement, [Mother] volitionally chose to see the Child
      less frequently, failed to attend all scheduled visits (sometimes
      without notice), attended none of the Child[’s] medical

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      appointments, failed to take advantage of [CYS’s] transportation
      services to attend visits, and demonstrated an inability to
      interact with and properly care for the Child during visits.
      Moreover, [Mother’s] decreased attendance of parent-child visits
      occurred primarily in the six months immediately prior to the
      filing of the [p]etition for the [i]nvoluntary termination. . . .
      [W]hile [Mother] eventually obtained housing, she did so only
      after the filing and notice of the Petition for Involuntary
      Termination.    Moreover, it has not been determined if the
      housing is suitable for the Child, nor did [Mother] properly
      communicate or cooperate with [CYS] regarding housing. [T]he
      Child is safe and receiving proper, cooperative care in the pre-
      adoptive home.

Trial Court Opinion, 9/14/16, at 8-9.

      Upon review, the testimony of Jennifer Dargenio and Shannon

Wisniewski, the CYS caseworkers, supports the court’s findings. In its Rule

1925(a) opinion,    the   trial   court aptly   summarized the   caseworkers’

testimony, which we adopt herein. Trial Court Opinion, 9/14/16, at 2-5.

      Specifically, Jennifer Dargenio testified that Mother obtained a mental

health evaluation, which recommended that she attend counseling, but that

CYS did not know whether Mother had been attending those appointments.

N.T., 7/27/16, at 34. She testified that Mother had not completed a court-

ordered development disability mental health evaluation. Id.

      With respect to visitation, Ms. Dargenio testified that Mother “does not

attend them on a regular basis.” Id. at 13. She testified that out of a total

of 73 scheduled visits, Mother attended 48. Id. Mother either cancelled or

failed to appear for 25 visits. Id. Ms. Dargenio testified that Mother, at a

time unspecified in the record, requested her visits be decreased from the



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then weekly four hours because she “didn’t know what to do with the child

for two hours one day and then two hours the next day. . . .” Id. at 14. As

a result, in January of 2016, CYS decreased her weekly visits to two hours.

Id. at 17. Thereafter, Mother attended the visits sporadically, and she did

not attend the scheduled visit on Child’s first birthday. Id. at 17-20, 64. By

the time of the hearing, CYS had further decreased her visits to biweekly for

one hour. Id. at 13-14. Mother’s last visit with the Child before the hearing

was in April of 2016. Id. at 20.

      Further, Ms. Dargenio testified that, although Mother completed a

parenting program, she “was not able to use what she learned in the

program with the child.   There were workers that have helped her during

visits to come up with appropriate ways of interacting with the child.” Id. at

32.

      With respect to housing, Ms. Dargenio testified that Mother’s housing

was unstable during Child’s dependency, and that she would not allow CYS

access to her housing.    Id. at 29-31.    At the time of the filing of the

involuntary termination petition, Mother did not have housing.     Id. at 10,

40-41. Ms. Dargenio testified that, on July 25, 2016, two days before the

hearing, she became aware that Mother obtained housing. Id. at 41. She

testified that CYS has not inspected the home. Id. at 42.

      In addition, Ms. Dargenio testified that Mother has never attended any

of Child’s medical appointments. Id. at 31. Further, she testified that Child


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has resided in a pre-adoptive foster home since his placement, and that his

foster parents are meeting his needs. Id. at 9, 12.

      As such, the testimonial evidence reveals that for at least the six

months prior to the filing of the termination petition, Mother failed to

perform her parental duties by not satisfying her FSP requirements

regarding mental health, visitation, parenting skills, housing, and attending

Child’s medical appointments.   Therefore, we conclude that the trial court

did not abuse its discretion in terminating Mother’s parental rights pursuant

to Section 2511(a)(1). Mother’s first issue fails. Based on this disposition,

we need not consider Mother’s second and third issues.

      Mother does not raise an issue with respect to Section 2511(b).

Nonetheless, we have scrutinized the decree pursuant to the requisite

bifurcated analysis.

      Our Supreme Court has stated that, “[c]ommon sense dictates that

courts considering termination must also consider whether the children are

in a pre-adoptive home and whether they have a bond with their foster

parents.” T.S.M., supra at 268. The Court directed that, in weighing the

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

ticking clock of childhood ever in mind.”   Id. at 269.   The T.S.M. Court

observed that, “[c]hildren are young for a scant number of years, and we

have an obligation to see to their healthy development quickly. When courts




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fail . . . the result, all too often, is catastrophically maladjusted children.”

Id.

      In this case, Child was removed from Mother’s custody when he was

three days old, and there is no testimonial evidence that a parent-child bond

exists between them. Therefore, it was reasonable for the court to infer that

no such bond exists.      See In re K.Z.S., supra.      As such, we discern no

abuse of discretion by the trial court in concluding that terminating Mother’s

parental rights will serve Child’s developmental, physical, and emotional

needs and welfare pursuant to Section 2511(b). See In re B.,N.M., supra

at 856 (stating that “a parent’s basic constitutional right to the custody and

rearing of his child is converted, upon the failure to fulfill his or her parental

duties, to the child’s right to have proper parenting and fulfillment of his or

her potential in a permanent, healthy, safe environment”).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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