J-S83029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.D., A MINOR,                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee



APPEAL OF: M.S.

                                                     No. 975 WDA 2016


                       Appeal from the Order June 3, 2016
               In the Court of Common Pleas of Allegheny County
               Orphans' Court at No(s): CP-02-AP-0000021-2016


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 16, 2016

       M.S. (“Mother”) appeals from the order dated June 3, 2016,1 and

entered on June 7, 2016, that granted the petition of the Allegheny County

Office of Children, Youth and Families (“OCYF”) for involuntary termination

of her parental rights to her son, J.D. (“Child”), born in May of 2011,

pursuant to the Adoption Act, 23 Pa.C.S. §§ 2101–2938. We affirm.

       The orphans’ court accurately and aptly set forth the factual

background and procedural history of this case in its opinion entered on

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   “The Parental Rights of J.D., natural Father (hereinafter, “Father”), were
also terminated pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), [(a)](2), (a)(5),
and (a)(8). Father did not appear at either of the hearings and did not
appeal this [c]ourt’s decision.” Orphans’ Court Opinion, 8/25/16, at 1 n.2.
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August 15, 2016, which we incorporate herein.         Orphans’ Court Opinion,

8/25/16, at 2-6. On February 8, 2016, OCYF filed a petition to terminate

Mother’s parental rights. Following hearings on May 27, 2016, and June 3,

2016, the orphans’ court granted OCYF’s petition, involuntarily terminating

Mother’s parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(2),

(a)(5), (a)(8), and 2511(b). Order, 6/7/16. On July 5, 2016, Mother filed a

notice of appeal, along with a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).         The orphans’ court

complied with Pa.R.A.P. 1925(a).

      On appeal, Mother raises one issue:

      Did the trial court abuse its discretion and/or err as a matter of
      law in concluding that [OCYF] met its burden of proving that
      termination of Birth Mother’s parental rights serves the needs
      and welfare of [Child] pursuant to 23 Pa. C.S. § 2511(b) by clear
      and convincing evidence when such is not supported by the
      record[?]

Mother’s Brief at 5 (reformatted).

      In reviewing an appeal from an order terminating parental rights, we

adhere to 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., 608 Pa. 9, 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.; [In re]
      R.I.S., 36 A.3d [567, 572 (Pa. 2011) (plurality opinion)]. As
      has been often stated, an abuse of discretion does not result

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      merely because the reviewing court might have reached a
      different conclusion. Id.; see also Samuel Bassett v. Kia
      Motors America, Inc., [613 Pa. 371,] 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
      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, 826–827 (Pa. 2012).

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

Moreover, we have explained, “[t]he 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.” Id. (quoting In

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




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       Mother    solely    challenges     the    orphans’   court’s   conclusion   that

termination of her parental rights serves the needs and welfare of Child

pursuant to section 2511(b).2 That section provides as follows:

       § 2511. Grounds for involuntary termination

       (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. § 2511(b).

       Mother asserts that the evidence was insufficient to support the

termination of her parental rights under 23 Pa.C.S. § 2511(b). Specifically,

Mother argues that OCYF failed to prove: (a) that termination of her parental

rights would best serve Child’s needs and welfare; and (b) that no bond

exists between Child and Mother to the extent that Child would suffer

irreparable harm if Mother’s rights were terminated.            Mother’s Brief at 11,
____________________________________________


2
   Mother has waived any challenge to the sufficiency of the evidence to
support termination under 23 Pa.C.S § 2511(a) by her failure to include such
a challenge in both her concise statement of errors complained of on appeal
and the Statement of Questions Involved in her brief on appeal. See Krebs
v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both her concise statement of errors complained of on appeal and the
statement of questions involved in her brief on appeal).



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15. In support of her position, Mother relies on In re Adoption of G.L.L.,

124 A.3d 344, 347 (Pa. Super. 2015).        Therein, Mother posits, this Court

recognized that “[a]n existing parent-child relationship may preclude

termination where the relationship is positive and provides meaningful

contributions to the child’s life and well-being.”      Mother’s Brief at 15.

Applying G.L.L., Mother argues that her relationship with Child “should be

preserved” because “a strong parent-child bond can be inferred from the

observations made by Dr. Patricia Pepe, the testimony of the [O]CYF

caseworker and from the testimony of Mother.”         Id.   Those observations

include an attachment between Child and Mother, the benefit of ongoing

contact between them, and their interaction when together. Id. at 16–18.

         OCYF presents different observations:   Child is bossy and controlling

towards Mother, who gives into him easily; Mother is more attached to Child

than he is to her; if Mother’s rights were terminated, Child would be upset,

but not irreparably harmed.     OCYF’s Brief at 8, 12, 15.    The guardian ad

litem (“GAL”) argues that the parent-child relationship between Mother and

Child is “not one comprised of love, comfort, security and closeness.” GAL’s

Brief at 11 (citing In re Bowman, 647 A.2d 217 (Pa. Super. 1994)).

Rather, when Child was with Mother, Child “was acting as the parent.” Id.

at 13.

         The focus in terminating parental rights under section 2511(a) is on

the parent, but it is on the child under section 2511(b). In re Adoption of


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C.L.G., 956 A.2d 999, 1008 (Pa. Super 2008) (en banc). In reviewing the

evidence in support of termination under section 2511(b), our Supreme

Court has explained this perspective 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 “[i]ntangibles 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.
      1993)], 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 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). Additionally, it is well-settled

that “we will not toll the well-being and permanency of [a child] indefinitely.”

In re Adoption of C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d

726, 732 (Pa. Super. 2008) (noting that a child’s life “simply cannot be put

on hold in the hope that [a parent] will summon the ability to handle the

responsibilities of parenting”)).

      The trial court submitted the following analysis under section 2511(b):

      Here, this [c]ourt judiciously evaluated the bond between Mother
      and Child and determined that there was no indication that an
      emotional bond exists to the extent that the termination of
      parental rights of Mother would cause Child to suffer extreme
      emotional consequences. In reaching this conclusion, this [c]ourt
      relied upon the testimony of Patricia Pepe, Ph.D. (hereinafter,
      “Dr. Pepe”), a licensed psychologist, and agreed that termination
      meets the Child’s needs and welfare. Dr. Pepe described the
      significance of positive and primary attachment as “the capacity
      for the child to understand that a parent or parent figure is able

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     to care for them and address their needs so they feel a sense of
     stability and safety. There is a sense that the child can depend
     upon these parents to be there for him. That is, the child is the
     child and the parents is [sic] the parent.” [N.T.] 5/27/16 at 64.

            Dr. Pepe conducted evaluations in December of 2015 and
     April of 20[16]. [N.T.] 5/27/16 at 60. Dr. Pepe described Child’s
     interactional evaluation with the Foster Parents:

          He was very responsive to the Foster Parents, and
          they exhibited excellent parenting skills… they
          consistently exhibited positive and appropriate
          parenting skills, and Child was a very happy child in
          both of the evaluations.
          ….

          What struck me about the Foster Parents is they
          have a very good understanding of what Child’s
          dynamics are.
          ….

          I think they have a very good understanding of what
          the Child’s mental issues are. They set boundaries.

     [N.T.] 5/27/16 at 62–63.

           Notably, Dr. Pepe observed that Child “demonstrated
     multiple bonding behaviors” with the Foster Parents and “it
     seemed like a very positive placement, and each of the Foster
     Parents demonstrated positive and primary attachment.” [N.T.]
     5/27/16 at 64.

           Dr. Pepe also conducted two evaluations of Mother. Dr.
     Pepe commended Mother for having shown increased stability,
     but expressed concern because:

                The issue with bipolar disorders and especially
          with psychotic features and episodes of mania is
          health issues are not reliable, and they are very
          transient in that any time there could be an episode
          of mania or depression.

               Historically, individuals with bipolar disorders
          have the most difficulty maintaining medication

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           compliance. She is doing it now, and I give her
           credit for that, but it wasn’t so long ago that she
           wasn’t.

                 So, also, there could be an emergence of any
           symptoms to such severity that she may need
           hospitalization at some time.

                 So she has a history of opiate dependence,
           bipolar disorder, moderately low intellectual and
           active behavioral functioning, and unfortunately, she
           has been resistant to some services that would help
           her with her intellectual instability and help achieve
           that.

     [N.T.] 5/27/16 at 67.

            During the interactional evaluation between Mother and
     Child, Dr. Pepe noted “that Child seems to really look out for his
     mother and is concerned. He tells her to be careful. He will, you
     know, to some degree parentify with his mother.”            [N.T.]
     5/27/16 at 68. Also, Dr. Pepe doubts Mother’s capacity to grasp
     how to appropriately parent Child since Mother did not
     participate in developmentally appropriate behaviors and “she
     didn’t seem to understand developmentally what he knows and
     doesn’t know, what he needs and doesn’t need.” [N.T.] 5/27/16
     at 69. For example, Mother has a one bedroom apartment and
     informed Dr. Pepe that she and Child could share the bedroom.
     Dr. Pepe indicated that doing so “is not learning appropriate
     boundaries. It inhibits the relationship between the parent and
     the child, as both parents and child need their own space.”
     [N.T.] 5/27/16 at 71.

           The uncontroverted testimony established that Child’s
     needs are best met with the Foster Parents. A strong bond
     exists between the Foster Parents and Child because Child has
     been living with the Foster Parents for about fifteen out of the
     past twenty-two months and relies on them to be his primary
     caregivers.

           Given Mother’s significant history of opiate dependence,
     her diagnosis of bipolar disorder, her moderately low intellectual
     and active behavioral functioning, this Court found it unsettling
     that Mother is resistant to services that would help her with her

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       stability. More specifically, this Court is concerned that Mother
       declined to attend a higher level of care at Mercy Behavioral
       Health despite recommendations from her therapist and Court
       Orders.    [N.T.] 5/27/16 at 24; see also OCYF Exhibit 1,
       December 2, 2015, Court Order. Mother testified that she
       attends NA and AA meetings only “once in a while” despite
       having relapsed on heroin in April of 2015. [N.T.] 6/3/16 at 54.
       Ms. Weaver explained that OCYF sought termination of Mother’s
       parental rights because:

              Mother failed to make progress on family service
              plan goals, and time and care… the Child has been in
              care for well over 15 out of 22 months. He is in a
              stable, pre-adoptive foster home that is willing to
              meet the Child’s best needs and include the
              biological family to play a part in the Child’s life. He
              has made significant progress since he has been in
              his foster home… Mother, though she has been in
              contact and has been consistent, has not made
              adequate progress at this time.

       [N.T.] 5/27/16 at 55.

             Most notably, Dr. Pepe explained that Child and Mother do
       not exhibit the same level of attachment as Child and the Foster
       parents and explicitly testified that she does not believe that
       Child will be irreparably harmed if Mother’s parental rights are
       terminated. [N.T.] 5/27/16 at 76.[3]

             The evidence established that Child’s primary bond is with
       the Foster Parents. The Foster Parents provide Child with much
       needed stability and permanence at his young age. This [c]ourt
       concludes that the developmental, physical and emotional needs
       and welfare of Child would be best served by terminating
       Mother’s parental rights.

____________________________________________


3
   Dr. Pepe observed, “While [Child] certainly recognizes his mother and was
happy to see her, it is frankly difficult to assess whether it is related to
genuine attachment and bonding, although I am sure that there is some
attachment that [Child] feels towards his mother, or if it is his ability to get
gifts and his favorite food items.” OCYF Exhibit 3 at 8.



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Orphans’ Court Opinion, 8/25/16, at 7–10.

       After a careful review of the record in this matter, we conclude that it

supports the trial court’s factual findings and that the trial court’s legal

conclusions are not the result of an abuse of discretion or an error of law.

N.T., 5/27/16, at 18–56, 59–84. In re Adoption of S.P., 47 A.3d at 826–

827.    Accordingly, the trial court properly found that OCYF presented

sufficient evidence to demonstrate that the developmental, physical and

emotional needs and welfare of Child would be best served by terminating

Mother’s parental rights. 23 Pa.C.S. § 2511(b). We, therefore, affirm the

order terminating Mother’s parental rights to Child.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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