J-S25029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


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

APPEAL OF: B.D., NATURAL MOTHER                 No. 2074 WDA 2014


             Appeal from the Decree entered December 2, 2014,
        in the Court of Common Pleas of Allegheny County, Orphans’
                          Court, at No: TPR 024-14

BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 15, 2015

      B.D. (Mother) appeals from the decree entered December 2, 2014, in

the Court of Common Pleas of Allegheny County, which involuntarily

terminated her parental rights to her minor son, C.D. (Child), born in April of

2006.1 We affirm.

      Child first entered the care of the Allegheny County Office of Children,

Youth and Families (CYF) on April 24, 2012. Child was placed in care as a

result of an incident during which Mother called the police and reported that

Child was missing, when in fact Mother had simply failed to pick up Child

after school.   Mother was under the influence at the time of this incident.

Child was adjudicated dependent on May 15, 2012. On December 24, 2012,

Child was returned to Mother’s care, after Mother successfully produced

* Retired Senior Judge assigned to the Superior Court.
1
  The parental rights of Child’s putative father, R.R., as well as the parental
rights of any unknown father that Child may have, were terminated by
separate decrees entered that same day. Neither R.R., nor any other
alleged father, is a party to the instant appeal.
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three clean urine screens. However, Child was again removed from Mother

on April 26, 2013, after Mother was arrested and incarcerated.

      On February 10, 2014, CYF filed a petition to involuntarily terminate

Mother’s parental rights to Child. A termination hearing was held on August

8, 2014, and October 31, 2014.        During the hearing, the orphans’ court

heard the testimony of CYF caseworker, Rhianna Diana; psychologist, Terry

O’Hara; Ms. Regina Harris, who transported Child to his visits with Father

and supervised the visits; Father; Child’s paternal grandmother, C.S.; and

Mother.   On December 2, 2014, the court entered its decree terminating

Mother’s rights.   Mother timely filed a notice of appeal on December 23,

2014, along with a concise statement of errors complained of on appeal.

      Mother now raises the following issue for our review.            “Did the

[orphans’] court abuse its discretion and/or err as a matter of law in

concluding that termination of [Mother’s] parental rights would serve the

needs and welfare of the child pursuant to 23 Pa.C.S.[A.] §[]2511(b)?”

Mother’s brief at 5.

      We consider Mother’s claim mindful of our well-settled standard of

review.

      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

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      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
      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).

      In this case, the trial court terminated Mother’s parental rights

pursuant to Sections 2511(a)(2), (5), 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

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           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 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.

                                     ***

     (b) Other considerations.--The court in terminating the rights
     of a parent shall give primary consideration to the
     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), (6) or (8), the court shall not
     consider any efforts by the parent to remedy the conditions
     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(2), (5), and (b).

     Instantly, Mother concedes that CYF presented clear and convincing

evidence that her parental rights may be terminated pursuant to Section

2511(a).   Mother’s brief at 10 (“CYF, the petitioner, did clearly and

convincingly establish threshold grounds for termination pursuant to 23


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Pa.C.S.[A.] §[]2511(a)(2).”).     Thus, we need only consider whether the

court abused its discretion by terminating Mother’s parental rights pursuant

to Section 2511(b).2 We have discussed our analysis under Section 2511(b)

as follows.

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent’s emotional bond with his or
      her child is 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.

              [I]n addition to a bond examination, the trial court
              can equally emphasize the safety needs of the child,
              and should also consider the intangibles, such as the

2
  Child’s guardian ad litem (GAL) suggests in her brief that we need not
consider Mother’s challenge to Section 2511(b) because Mother failed to
challenge the orphans’ court’s conclusion that her parental rights should be
terminated under Section 2511(a)(5). GAL’s brief at 10, 14 (citing In re
Matsock, 611 A.2d 737, 741 (Pa. Super. 1992)). GAL notes that Section
2511(a)(5) also requires an analysis of the subject child’s needs and welfare,
and contends that, “[b]ecause CYF proved that termination met [Child’s]
needs and welfare under Section 2511(a)(5), Mother’s argument that there
is insufficient evidence to support the [orphans’ c]ourt’s findings under
Section 2511(b) is moot.” Id. at 14. We disagree. The needs and welfare
analysis required by Section 2511(a)(5) is distinct and considered separately
from the analysis required by Section 2511(b), and we see no basis on
which to conclude that failing to challenge one of these sections on appeal
would prevent an appellant parent from challenging the other section. See
Matsock, 611 A.2d at 748 (“Thus, in termination proceedings based on
paragraph (a)(5), such as the one here, the needs and welfare of the child
must be considered twice; once under subsection (a), and if all five
requirements of subsection (a) are met, then again under subsection (b).”).
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            love, comfort, security, and stability the child might
            have with the foster parent. Additionally, this Court
            stated that the trial court should consider the
            importance of continuity of relationships and whether
            any existing parent-child bond can be severed
            without detrimental effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      In this case, the orphans’ court concluded that termination of Mother’s

parental rights would best serve Child’s needs and welfare. The court stated

that it considered the nature and the status of the bond between Mother and

Child, and the effects of severing that bond.       Orphans’ Court Opinion,

1/30/15, at 15. The court noted testimony that Child suffers from anxiety

and symptoms of depression, and that these issues are directly influenced

by Child’s experiences with Mother. Id. In contrast, the court observed that

Child is doing well in foster care. Id. at 16. The court also emphasized that

Mother has failed to remedy her substance abuse issues. Id. at 15.

      Mother argues that the court failed to address the impact that

terminating her parental rights would have on Child, and instead focused

improperly on her failings as a parent. Mother’s brief at 9, 13-14. Mother

also contends that the court was not permitted to consider Child’s preference

for residing with his foster mother when rendering its decision. Id. at 9, 13.

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

the orphans’ court did not abuse its discretion by involuntarily terminating

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Mother’s parental rights to Child.           During the termination hearing,

caseworker Rhianna Diana testified concerning Mother’s lengthy involvement

with CYF.       Ms. Diana explained that, at the time Child first was placed in

care, Mother reported attending Narcotics Anonymous and Alcoholics

Anonymous meetings, as well as seeing a therapist for mental health

treatment and drug and alcohol treatment. N.T., 8/8/14, at 44. Mother also

was in a Suboxone maintenance program “for a period of time.” Id. at 43.

After Child was returned to Mother’s care in December of 2012, Mother

reported that she was continuing to receive this treatment. Id. at 46, 49.

        However, Ms. Diana further testified that Mother was detained by

police for retail theft on April 19, 2013. Id. at 50-51. Ms. Diana spoke to

Mother about this incident, and Mother admitted to continued drug use. Id.

at 51. As noted supra, Child was removed from Mother’s care a second time

on April 26, 2013, after Mother again was arrested. Id. at 7, 50. Mother

was incarcerated from April 28, 2013, until May 7, 2013. Id. at 53. Mother

was arrested once again on July 13, 2013, and remained incarcerated until

July 26, 2013.       Id. at 54.   Mother’s next arrest took place on August 3,

2013.     Id.     In October of 2013, Mother was released to “the Renewal

program.” Id. However, Mother violated her parole and was incarcerated

until July 28, 2014. Id. at 7, 55. While incarcerated, Mother did not report

receiving treatment.      Id. at 55, 80, 90.    Mother did complete a 45-day

inpatient program while at Renewal. Id. at 56.


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      Ms. Diana concluded that Mother had not been able to remedy her

mental health or drug and alcohol issues by the time the petition to

terminate her parental rights was filed.     Id. at 58.   Further, Ms. Diana

opined that it would not be possible for Mother to remedy these issues within

a reasonable period of time, based on Mother’s repeated failures to do so in

the past. Id. at 61-62. Ms. Diana explained that Child appears to be happy

and well-adjusted in his current foster placement. Id. at 59. She noted that

Child’s interactions with his foster family are always positive, and that Child

gravitates to his foster mother and looks to her for security. Id. at 62-63.

      Psychologist, Terry O’Hara, testified that he performed a series of

individual and interactional evaluations with Child, Mother, and Child’s foster

parents, in 2012 and 2014. N.T., 10/31/14, at 6-7. Child indicated during

these evaluations that, “for the most part,” he was best cared for by his

foster mother, and he wanted to continue living with his foster parents. Id.

at 15, 23, 42. Child further expressed a desire that he have less frequent

visits with Mother.   Id. at 23.   Dr. O’Hara agreed that Child suffers from

anxiety and symptoms of depression, and that these issues are “directly

influenced” by Child’s experiences with Mother. Id. at 46.

      Ultimately, Dr. O’Hara recommended that Child should be adopted.

Id. at 23. Dr. O’Hara emphasized, inter alia, Mother’s failure to remedy her

mental health and substance abuse issues, as well as her frequent

incarcerations. Id. at 19-21. Dr. O’Hara stated that there is “some level of


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attachment” between Mother and Child. Id. at 41. However, he agreed that

Child’s relationship with Mother is not so significant that termination of

Mother’s parental rights would be harmful to Child, and opined that the

benefits of adoption would outweigh any detriment that Child might suffer.3

Id. at 23-24, 43-44.

      Mother testified concerning her efforts at obtaining mental health and

substance abuse treatment.      Specifically, Mother stated that she attended

Narcotics Anonymous (NA) meetings and received dual diagnosis treatment

with a therapist for a year prior to her incarceration in April of 2013. Id. at

130-31,   137,   146.      Mother   indicated   that,   while   incarcerated,   she

participated in the “Thinking for a Change” program, attended NA meetings,

received cognitive behavioral therapy and saw a drug and alcohol counselor.

Id. at 132, 137-38. Mother also attended NA meetings and therapy during

her time at Renewal. Id. at 134, 138. According to Mother, she continues

to attend “Thinking for a Change” once per week, and she also continues to

attend NA meetings, goes to therapy, and sees a psychiatrist. Id. at 133,

138. Mother testified that she began receiving treatment at Mercy Behavior

Health in August of 2014, and that she currently is attending an intensive

outpatient program three days a week, after having “stepped down” from

partial hospitalization.   Id. at 135.   Mother noted that she is prescribed

3
 In a 2014 evaluation, which was entered into evidence at the termination
hearing as part of CYF Exhibit 5, Dr. O’Hara reported that Child’s foster
parents “expressed a desire to adopt [Child].” CYF Exhibit 5, Psychological
Evaluation Report (January 2014), at 2.
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Suboxone as well. Id. at 139. Despite this treatment, Mother admitted that

she last used illegal substances in September of 2014, about a month prior

to the termination hearing. Id. at 149. Mother also conceded that she was

arrested for retail theft that same month. Id. at 152.

     Thus, the testimony presented during Mother’s termination hearing

supports the trial court’s conclusion that it would best serve Child’s needs

and welfare to terminate Mother’s parental rights.       Since Child first was

placed in care in 2012, Mother has repeatedly been arrested, and has been

unable to remedy her drug abuse issues. Moreover, during his evaluations

with Dr. O’Hara, Child reported that he is best cared for by his foster

mother, and that he wants to continue living with his foster parents.

Conversely, Child did not want to see Mother as often. Child’s statements

support Dr. O’Hara’s conclusion that, while Child may have some attachment

to Mother, the permanence and stability provided by adoption would

outweigh any detriment that Child might suffer by terminating Mother’s

parental rights.   See C.D.R., 111 A.3d at 1220 (concluding that the

appellant mother’s bond with C.D.R was outweighed by the mother’s

“repeated failure to remedy her parental incapacity,” and by C.D.R.’s need

for permanence and stability).

     Further, we reject Mother’s claim that the orphans’ court failed to

consider the impact that the termination of her parental rights would have

on Child, and instead focused improperly on her failings as a parent. The


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court indicated that it considered the nature and the status of the bond

between Mother and Child, and the effects of severing that bond, and

thoroughly summarized evidence relevant to this issue in the “History”

portion of its opinion.   Orphans’ Court Opinion, 1/30/15, at 6-7, 9, 15.

Admittedly, Mother is correct that “[t]he focus in terminating parental rights

under [S]ection 2511(a) is on the parent, but the focus turns to the children

under [S]ection 2511(b).”     In re M.T., 101 A.3d 1163, 1181 (Pa. Super.

2014) (en banc) (citing In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.

Super. 2008) (en banc)).       However, it is clear that Mother’s frequent

incarcerations and inability to remedy her drug abuse are relevant

considerations in determining whether termination will serve Child’s needs

and welfare. See, e.g., M.T., 101 A.3d at 1182 (quoting favorably from a

trial court opinion addressing the parents’ “inability to consistently provide a

safe and secure environment for their children” as part of its Section

2511(b) analysis). No relief is due.

      Finally, we note that Mother’s argument that the orphans’ court was

not permitted to consider Child’s preference for living with his foster parents

also does not entitle her to relief. In support of this position, Mother cites to

In re B.L.L., 787 A.2d 1007 (Pa. Super. 2001). In B.L.L., a panel of this

Court rejected an appellant parent’s argument in an involuntary termination

case that the trial court erred by refusing to schedule an additional hearing

in order to allow B.L.L. to testify. Id. at 1011. The Court then went on to


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discuss this issue further by summarizing some of the differences between

custody, involuntary termination, and adoption proceedings.       Id. at 1012-

16. The Court observed that, while a child’s preference as to where he or

she wants to live is a relevant consideration in custody and adoption

proceedings, “the preference of a child . . . and his rights to be heard on the

record, is not relevant to termination proceedings, as the child is not electing

a choice between two otherwise fit parents with whom he will be able to be

placed.”   Id.; see also id. at 1014 (“The testimony or preferences of the

child(ren) is not required or permitted in an involuntary proceeding as the

child cannot cede his right to minimal proper nurturing.”).

      While it is true that a child’s preference is not an independently

relevant or permissible factor in termination proceedings, we disagree with

Mother’s contention that the preference of a child can never be considered

by a trial court, as a child’s preference can provide valuable insight into

other important aspects of a case. Here, Child’s preference for living with

his foster mother is evidence of (1) Child’s bond with his foster mother, (2)

Child’s lack of a crucial bond with Mother, and (3) the fact that Child will not

suffer a serious detriment if Mother’s parental rights are terminated. All of

these are relevant, and necessary, considerations in the instant matter.

      Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by terminating involuntarily Mother’s parental rights to

Child, we affirm the decree of the orphans’ court.


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     Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2015




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