J-S35015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.M.S.-R., A                IN THE SUPERIOR COURT OF
    MINOR                                                 PENNSYLVANIA

    APPEAL OF: N.R.
                                                          No. 229 MDA 2018


              Appeal from the Decree Entered December 28, 2017
                In the Court of Common Pleas of Berks County
                        Orphans' Court at No(s): 84857


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED AUGUST 03, 2018

        N.R. (“Mother”) appeals from the December 28, 2017 decree that

granted the petition filed by the Berks County Children and Youth Services

(“BCCYS”) to involuntarily terminate her parental rights to her minor child,

J.M.S.-R. (“Child”) (born in November of 2015), pursuant to sections

2511(a)(1), (2), (5), (8) and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-

2938. After careful review of the record and applicable law, we affirm.1, 2

        The orphans’ court summarized the relevant facts and procedural

history of this case in its Pa.R.A.P. 1925(a) opinion:

              Mother came to the attention of BCCYS as early as 2011 as
        a result of reports alleging lack of appropriate parenting skills, lack
        of stable and appropriate housing, domestic violence, lack of basic
____________________________________________


1 The parental rights of Child’s father, J.S. (“Father”), were terminated by
separate decree on the same date. Father is not a party to this appeal.

2 A guardian ad litem (“GAL”), Melissa Krishock, Esq., and a child advocate,
Jennifer L. Grimes, Esq., were appointed to represent the best interests and
the legal interests of Child. Both attorneys participated in the termination
hearing. The GAL joined in the brief filed by BCCYS.
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     needs for her children, unstable mental health, alcohol and other
     drug abuse, truancy, lack of supervision, and a history of
     incarcerations due to her involvement with the criminal justice
     system. At the time, Mother had three minor children who were
     all adjudicated dependent by the [c]ourt in March [of] 2014.

            As a result of Mother’s inability or unwillingness to comply
     with [c]ourt-ordered services provided by BCCYS and to make
     changes necessary to provide for a safe, healthy, and permanent
     living environment for her children, BCCYS petitioned the [c]ourt
     to involuntarily terminate Mother’s parental rights. The matter
     proceeded to a hearing in December [of] 2015, and the [c]ourt
     terminated Mother’s parental rights with regard to those three
     children (all three children were adopted). Leading up to that
     termination hearing, Mother gave birth to [Child], the [c]hild at
     issue in this appeal.

            On November 16, 2016, a little more than one year after []
     Child’s birth, BCCYS established Father’s paternity of [] Child
     through genetic testing. Although Father did not sign a consent
     to adoption, he testified that he: (1) was happy where [] Child
     was placed (with the foster parents); (b) had nothing against the
     foster parents; and (c) believe[s] [] Child will grow up with a
     better life where she currently resides. Father further testified
     that he would not sign away rights to his daughter because he
     would not want her to find out at a later date that he did so
     willingly.

           Because the [c]ourt previously terminated Mother’s parental
     rights involuntarily with regard to three other children, the [c]ourt
     found that “aggravated circumstances” existed pursuant to 42
     Pa.C.S.[] § 6302, permitting BCCYS to file a petition of emergency
     custody of [] Child before Mother had been discharged from the
     hospital. The [c]ourt subsequently conducted a dependency
     hearing[,] at which time the [c]ourt ordered, among other things,
     that Mother cooperate with parenting education, a mental health
     evaluation and recommended treatment, random urinalysis,
     domestic violence evaluation and recommended treatment, and
     other casework services.

          According to testimony from Jennifer Kemmerer, a
     caseworker with BCCYS assigned to Child’s case, on November 28,
     2015, approximately two weeks after giving birth to [] Child,
     Mother’s parole was revoked in connection with certain criminal
     proceedings. As a result, Mother was incarcerated at Berks


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     County Prison. Between that time and December 21, 2015,
     Mother had only taken advantage of one out of three opportunities
     to have a visit with [Child]. Although Mother could have had
     weekly visits while incarcerated, she did not request any during
     that time (from December [of] 2015 through April [of] 2016). Ms.
     Kemmerer also testified that, while Mother was incarcerated, she
     initially participated in casework services, but that Mother failed
     to reach out to BCCYS caseworkers following her release from
     incarceration in April [of] 2016.

            A chance meeting between a BCCYS caseworker and Mother
     in the Berks County Services Center in May [of] 2016 resulted in
     Mother[’s] being scheduled for a meeting to develop a plan for
     services[,] as well as Mother[’s] being informed [that] bi-weekly
     visits with [] Child could take place with the condition that Mother
     provide contact information (a phone number) to BCCYS, and that
     she call and confirm visits with the agency. Mother failed to
     follow-up with BCCYS, having never provided a phone number or
     contacting the agency to confirm visits with her daughter.

            In August [of] 2016, Mother was re[-]incarcerated in Berks
     County Prison on a parole violation, where she remained until
     March [of] 2017. When released in March [of] 2017, Mother failed
     to provide BCCYS with an address or whereabouts for
     approximately one month. During that time, however, Mother did
     contact BCCYS about resuming visits with [] Child. Ms. Kemmerer
     testified that, although Mother missed a monthly visit in April, she
     did attend all subsequent monthly visits from May [of] 2017
     through December [of] 2017. Despite the renewed interest in
     visitations, Ms. Kemmerer testified that, since the birth of Child,
     Mother had spent less than 15 total hours caring for [] Child.

Orphans’ Court Opinion (“OCO”), 3/5/18, at 4-7 (citations to record omitted).

     On May 25, 2016, BCCYS filed a petition to involuntarily terminate

Mother’s parental rights. On December 28, 2017, a hearing was held on that

petition. Mother appeared in person at the hearing and was represented by

court-appointed counsel. After hearing testimony from Mother, Father, and

Ms. Kemmerer, the court issued a decree terminating Mother’s parental rights




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to Child pursuant to section 2511(a)(1), (2), (5), (8) and (b) of the Adoption

Act.

       Mother timely filed a notice of appeal on January 25, 2018, along with

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). Mother now presents the following sole issue for our

review: “Whether the [orphans’] court erred and/or abused its discretion by

entering an order on December 28, 2017[,] involuntary [sic] terminating the

parental rights of Mother[,] where Mother was engaged and progressing in her

court-ordered services and reunification goals[?]” Mother’s Brief at 6.

       We review an appeal from the termination of parental rights under the

following standard:

              [A]ppellate courts must apply an abuse of discretion
       standard when considering a trial court’s determination of a
       petition for termination of parental rights. As in dependency
       cases, our standard of review requires an appellate court to accept
       the findings of fact and credibility determinations of the trial court
       if they are supported by the record. In re: R.J.T., … 9 A.3d 1179,
       1190 (Pa. 2010). If the factual findings are supported, appellate
       courts review to determine if the trial court made an error of law
       or abused its discretion. Id.; R.I.S., 36 A.3d [567,] 572 [(Pa.
       2011) (plurality opinion)]. As has been often stated, an abuse of
       discretion does not result merely because the reviewing court
       might have reached a different conclusion. Id.; see also Samuel
       Bassett v. Kia Motors America, Inc., … 34 A.3d 1, 51 (Pa.
       2011); Christianson v. Ely, … 838 A.2d 630, 634 (Pa. 2003).
       Instead, a decision may be reversed for an abuse of discretion
       only upon demonstration of manifest unreasonableness, partiality,
       prejudice, bias, or ill-will. Id.

             As we discussed in R.J.T., there are clear reasons for
       applying an abuse of discretion standard of review in these cases.
       We observed that, unlike trial courts, appellate courts are not
       equipped to make the fact-specific determinations on a cold


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     record, where the trial judges are observing the parties during the
     relevant hearing and often presiding over numerous other
     hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
     Therefore, even where the facts could support an opposite result,
     as is often the case in dependency and termination cases, an
     appellate court must resist the urge to second guess the trial court
     and impose its own credibility determinations and judgment;
     instead we must defer to the trial judges so long as the factual
     findings are supported by the record and the court’s legal
     conclusions are not the result of an error of law or an abuse of
     discretion. In re Adoption of Atencio, … 650 A.2d 1064, 1066
     (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

     In termination cases, the burden is upon the petitioner to prove by clear

and convincing evidence that the asserted grounds for seeking the termination

of parental rights are valid. In re S.H., 879 A.2d 802, 806 (Pa. Super. 2005).

We have previously stated:

     The standard of clear and convincing evidence is defined as
     testimony that is so clear, direct, weighty and convincing as to
     enable the trier of fact to come to a clear conviction, without
     hesitance, of the truth of the precise facts in issue.

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

marks omitted).

     Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis.

     Our case law has made clear that under Section 2511, the court
     must engage in a bifurcated process prior to terminating parental
     rights. Initially, the focus is on the conduct of the parent. The
     party seeking termination must prove by clear and convincing
     evidence that the parent’s conduct satisfies the statutory grounds
     for termination delineated in Section 2511(a). Only if the court
     determines that the parent’s conduct warrants termination of his
     or her parental rights does the court engage in the second part of
     the analysis pursuant to Section 2511(b): determination of the

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      needs and welfare of the child under the standard of best interest
      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511;

other citations omitted).

      This Court must agree with only one subsection of 2511(a), in addition

to section 2511(b), in order to affirm the termination of parental rights. See

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

review the decrees pursuant to sections 2511(a)(2) 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:
                                    …

            (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.
                                      …

      (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.



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23 Pa.C.S. § 2511(a)(2) and (b).

      We first address whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to section 2511(a)(2).

      In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
      2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has caused the child to
      be without essential parental care, control or subsistence
      necessary for his physical or mental well-being; and (3) the
      causes of the incapacity, abuse, neglect or refusal cannot or will
      not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). “The grounds for termination due to parental incapacity that cannot

be remedied are not limited to affirmative misconduct. To the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

duties.”    In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations

omitted).

      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.

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

      Moreover, this Court has previously stated:

      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


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

Id. Where a parent does not “exercise reasonable firmness in declining to

yield to obstacles, his [parental] rights may be forfeited.” In re A.S., 11 A.3d

473, 481 (Pa. Super. 2010).       With respect to the application of section

2511(a)(2) to an incarcerated parent, the Pennsylvania Supreme Court held:

      [I]ncarceration, while not a litmus test for termination, can be
      determinative of the question of whether a parent is incapable of
      providing “essential parental care, control or subsistence” and the
      length of the remaining confinement can be considered as highly
      relevant to whether “the conditions and causes of the incapacity,
      abuse, neglect or refusal cannot or will not be remedied by the
      parent,” sufficient to provide grounds for termination pursuant to
      23 Pa.C.S. § 2511(a)(2).

S.P., 47 A.3d at 830.

      Instantly, Mother argues that the court erred in terminating her parental

rights to Child, because she “made significant progress with her court-ordered

services since her release from incarceration[,]” and she “began to

demonstrate that she has the capacity to be a suitable parent[.]” Mother’s

Brief at 10. Additionally, Mother claims that while incarcerated, she made a

good faith effort to be involved in Child’s life. Id. at 14. Since her release,

Mother states that she has maintained employment and a stable residence.

Id. at 16. The record clearly belies Mother’s claims.

      First, the orphans’ court found that between the time Mother was

released from prison in March of 2017 and the termination hearing in




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December of 2017, Mother failed to obtain suitable, stable housing,3 nor did

she maintain steady employment.4 OCO at 7. With regard to visitation, the

court noted that, “given numerous opportunities to spend time with and form

a bond with [] Child, Mother has … failed to follow through with even the

simplest task of consistently staying in contact with BCCYS to arrange and

confirm visits with [] Child.” Id. at 8. Even while incarcerated, visitation was

available to Mother; however, she failed to take advantage of the opportunity

to spend time with Child. Id. at 8-9.

       “Beyond the issues with visitations…, Mother has also shown a

propensity for minimally beginning improvement through services, only to fail

by not following through.” Id. at 9. The record reflects that Mother began,

but failed to complete, domestic violence counseling, drug and alcohol

treatment, and individual mental health counseling. Id.

             According to Ms. Kemmerer, once Mother was out of prison
       the second time, and in contact with BCCYS, she was evaluated
       by Berks TASC (Treatment Access and Services Center), after
       which she was referred to Pennsylvania Counseling for intensive
       outpatient services that included both group and individual
       therapy. Mother relapsed and tested positive for using cocaine
       [on] September 22, 2017…. Subsequently, Mother was to begin
       a Spanish-speaking outpatient program on October 11, 2017, but
       she failed to attend. On November 21, 2017, more than one

____________________________________________


3 “Ms. Kemmerer testified that BCCYS was aware of at least four different
addresses for Mother, and that there was approximately one month where
BCCYS was unaware of Mother’s location.” OCO at 7.

4 The orphans’ court noted that Mother has changed jobs three times since
she was released from prison and stated that this established “a track record
of instability.” N.T. Termination, 12/28/17, at 56 (emphasis added).

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      month later, Mother reached out to Ms. Kemmerer to advise that
      Mother was going to switch to a different counseling service (Berks
      Counseling Center). BCCYS received notice from Pennsylvania
      Counseling that Mother had been unsuccessfully discharged from
      the program; Mother stopped providing urine samples after
      November 20, 2017.
                                      …

             Mother had been required to participate in mental health
      and domestic violence evaluations, along with participating in any
      counseling recommended as a result of those evaluations.
      Although Mother did initially participate in some individual
      therapy, Ms. Kemmerer testified that Mother’s frequency of being
      in and out of prison precluded her from being able to successfully
      complete such services. Mother apparently did begin some
      individual mental health therapy after her second release from
      prison. Ms. Kemmerer testified, however, that she was unable to
      confirm what services Mother participated in because Mother did
      not provide the name of the therapist to BCCYS.

             With regard to domestic violence concerns, Mother did
      participate in the required evaluation but failed to keep BCCYS
      informed of her participation with recommended counseling
      associated with the domestic violence evaluation. Ms. Kemmerer
      … later learned Mother had been complying with domestic violence
      therapy only to stop attending on October 5, 2017. Mother also
      failed to return phone calls to re-engage in those services.

Id. at 7-8. Mother has continued to demonstrate an incapacity to parent and

the inability to remedy the causes of such incapacity. As we have previously

stated,   “[a]   parent’s   vow   to   cooperate,   after   a   long   period   of

uncooperativeness regarding the necessity or availability of services, may

properly be rejected as untimely or disingenuous.” In re Z.P., 994 A.2d 1108,

1118 (Pa. Super. 2010) (internal citation and quotation marks omitted).

      Moreover, Mother’s pattern of criminal activity and multiple periods of

incarceration, as well as her failure to comply with the goals set for her by

BCCYS, satisfy the requisites of incapacity, abuse, neglect or refusal of the


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parent, pursuant to subsection 2511(a)(2). See In re Adoption of W.J.R.,

952 A.2d 680, 687 (Pa. Super. 2008); see also In re Z.P., 994 A.2d 1108,

1125 (Pa. Super 2010) (finding father’s repeated drug use and criminal

activity show a pattern of incapacity to parent). “This Court cannot and will

not subordinate indefinitely a child’s need for permanence and stability to a

parent’s claims of progress and hope for the future.” In re I.J., 972 A.2d 5,

12 (Pa. Super. 2009) (internal citation omitted).   After careful review, we

deem the court’s decision to terminate Mother’s parental rights, pursuant to

section 2511(a)(2), to be well-supported by the record.

     After we determine that the requirements of section 2511(a) are

satisfied, we proceed to review whether the requirements of subsection (b)

are met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.

2008) (en banc). This Court has stated that the focus in terminating parental

rights under section 2511(a) is on the parent, but the focus is on the child

pursuant to section 2511(b). Id. at 1008.

     In reviewing the evidence in support of termination under section

2511(b), our Supreme Court stated as follows:

     [I]f the grounds for termination under subsection (a) are met, a
     court “shall give primary consideration to the developmental,
     physical and emotional needs and welfare of the child.” 23 Pa.C.S.
     § 2511(b). The emotional needs and welfare of the child have
     been properly interpreted to include “intangibles such as love,
     comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
     (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1992)],
     this Court held that the determination of the child’s “needs and
     welfare” requires consideration of the emotional bonds between
     the parent and child. The “utmost attention” should be paid to


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         discerning the effect on the child of permanently severing the
         parental bond. In re K.M., 53 A.3d at 791.

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

         Here, the trial court concluded that it would be in [Child’s] best interest

for Mother’s parental rights to be terminated. The court emphasized that,

since Child’s birth, Mother has spent less than one day caring for Child and

that the foster parents have been meeting Child’s developmental, physical,

and emotional needs. OCO at 9. Mother does not raise any specific objection

to the orphans’ court finding that termination of her parental rights was in the

best interest of Child, pursuant to 23 Pa.C.S. § 2511(b); however, Mother

does assert that she was making progress bonding with Child. Mother’s Brief

at 17.

         Again, we conclude that the record supports the orphans’ court’s

decision to terminate Mother’s parental rights. When asked at the hearing

whether she had any concerns during visits between Mother and Child, Ms.

Kemmerer replied:

         [Child] takes a while to warm up to her still. She has started to
         get to know her a little better, [] she’s not clinging to the resource
         mother like she had been. She will go and play with her; but she
         does not see her in a parental role, more like a playmate.

N.T. Termination at 18. Moreover, Ms. Kemmerer testified that Child is “very

bonded and attached to [her foster parents]” and that “she looks to them as

her parents.” Id. at 21. Accordingly, the agency recommended that Mother’s

parental rights be terminated so that Child can be adopted. Id.




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         In support of its decision to terminate Mother’s parental rights, the

orphans’ court summarized:

         Mother has spent less than one full[ ]day caring for [] Child since
         birth. Any bond between Child and mother is minimal, at best. In
         fact, based upon Ms. Kemmerer’s testimony, [] Child is bonded
         with the foster parents. Terminating Mother’s parental rights
         would not detrimentally affect [Child]. In fact, the foster parents
         are resources who can continue to meet Child’s developmental,
         physical, and emotional needs. It is clearly within [] Child’s best
         interest[] to terminate Mother’s parental rights. In fact, [] Child
         deserves stability, permanency, and an opportunity to grow up in
         an environment free of the disruption and turmoil surrounding the
         dependency process.

                Here, Mother’s “right to the custody and rearing of [C]hild
         is converted, upon the failure to fulfill [] her parental duties, to []
         [C]hild’s right to have proper parenting and fulfillment of his or
         her potential in a permanent, healthy[,] safe environment.” In
         re: B.L.W., 843 A.2d at 388. As the Superior Court has observed,
         “it is time to give [Child] a chance to have [her] fundamental
         needs met without the constant insecurity that comes with
         knowing that someday, perhaps in the unreasonably distant
         future, [she] might again be wrenched away from [her]
         committed and capable caregivers.” Id. (quoting In re N.C., 763
         A.2d 913, 919 (Pa. Super. [] 2000)).

OCO at 9.

         As there is competent evidence in the record that supports the orphans’

court’s credibility and weight assessments regarding Child’s needs and

welfare, and the absence of any bond with Mother, we conclude that the court

did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d at 826-

27. Accordingly, we affirm the decree terminating Mother’s parental rights to

Child.

         Decree affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/03/2018




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