J-S51038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: R.W.A., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: S.B.A., MOTHER                  :       No. 816 MDA 2019


                 Appeal from the Decree Entered April 17, 2019
               in the Court of Common Pleas of Lancaster County
                     Orphans' Court at No(s): 2567 of 2017

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED DECEMBER 12, 2019

       S.B.A. (“Mother”) appeals from the Decree granting the Petition filed by

S.F. (“Paternal Grandmother”) and M.F. (collectively, the “Petitioners” or

“Paternal Grandparents”), and involuntarily terminating Mother’s parental

rights to her minor, male child, R.W.A. (“Child” or “the Child”), pursuant to

the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).1 We affirm.

       The orphans’ court set forth the factual and procedural history of this

matter as follows:

       [The Child] … was born [i]n July [] 2012. When the Child was first
       born, he resided primarily with his parents. In November or
       December of 2012, []Paternal Grandmother[] filed a Petition for
       custody to ensure her visitation rights [concerning the Child,] and
       was granted a shared physical custody schedule. On September
       12, 2013, Paternal Grandmother’s partial custody was expanded
       to three days a week. As time progressed, the Child spent more
       and more time with [] Paternal Grandparents, eventually
       escalating to three weekends a month with the[m] [].

____________________________________________


1Child’s biological father, R.H. (“Father”), consented to the termination of his
parental rights.
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           The Lancaster County Children and Youth Social Service
     Agency (hereinafter “the Agency”) received a referral regarding
     Mother’s and Father’s purported [illicit] drug use in 2016. Paternal
     Grandmother testified that in 2016[,] she was aware that Mother
     and Father were struggling with drug use in their lives and that
     she would frequently get calls requesting that [Paternal
     Grandparents] take the Child immediately. The initial drug test
     for Mother and Father came back invalid [for both parties,] while
     the second urine screen came back positive for opiates [for both].
     At the time the Agency became involved, the family consisted of
     Mother, Father, the Child and Mother’s two daughters from a
     previous relationship. The family left Pennsylvania during the
     assessment period so Mother and Father could enter a
     detoxification program in Florida. Mother testified that she went
     to a detoxification program in Miami, Florida for approximately 13
     days in the summer of 2016.

            The family was accepted by the Agency for services on July
     12, 2016[,] and eventually returned to Pennsylvania. The plan
     developed for the family included goals for Mother and Father to
     “cooperate with Agency services, allow home visits and allow the
     caseworker into the home …[,] maintain stable housing[,] and
     have income to meet the children’s basic needs.” The plan also
     included a substance abuse goal requiring Mother and Father to
     submit to an evaluation and follow any recommendations. There
     was also a parenting goal and an education goal for the two older
     girls in the home.

           The Agency caseworker described Mother as being
     uncooperative with her during the Agency’s involvement. Mother
     had several urine screens that were invalid or unable to be tested;
     specifically, on May 26, 2016, the urine was clear and cold; on
     November 8, the urine was invalid for foul-smelling urine[,] and
     on November 21, Mother and Father both refused a drug screen.

            The Agency caseworker testified that Mother subsequently
     left Pennsylvania after the Agency filed a Petition for emergency
     custody of Mother’s two oldest children. When Mother left
     Pennsylvania with her two daughters, the Child did not go with
     her. Despite the issuance of an emergency Order granting the
     Agency’s request for physical custody, Mother never attended any
     hearings and did not return her two daughters to Pennsylvania.
     The Agency eventually referred the case to the appropriate
     authorities in Florida when it became apparent that Mother was
     not returning to Pennsylvania.


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             In December of 2016, Paternal Grandmother filed a Petition
      for modification of the current custody Order for the Child on an
      emergency basis. Paternal Grandmother’s Petition was granted
      and sole physical and legal custody was awarded by Order dated
      December 9, 2016. The Agency did not file a custody petition for
      the Child[,] as Petitioners had filed for and been awarded custody
      through the Lancaster County family court system. The Child has
      resided with Petitioners since December of 2016. Father did
      complete his goals and his case was closed for services on May
      22, 2017. A custody conference was held on January 25, 2017.
      Mother attended this conference and was represented by counsel.
      Paternal Grandmother and Father also attended the custody
      conference in early 2017. A follow-up custody conference was …
      held on April 25, 2017. Mother was not present for the follow-up
      conference but Mother’s counsel did attend. [Mother’s father]
      testified that he believed Mother was in a drug rehabilitation
      program at the time of the conference.

            On May 10, 2017, after granting Mother a period in which to
      object[,] and after receiving no objection, the court entered an
      Order granting primary physical and legal custody of the Child to
      Paternal Grandmother and partial physical custody to Father.
      Mother was directed to have no contact with the Child pending
      further order of court. [Mother’s father] testified that Mother has
      not seen the Child since December of 2016.

Orphans’ Court Opinion, 4/17/19, at 3-6 (citations to the record and footnote

omitted, some capitalization altered).

      On November 16, 2017, Paternal Grandparents filed a Petition seeking

to involuntarily terminate Mother’s parental rights and to adopt Child. Father

informed the court that he would consent to the termination of his parental

rights to Child, if Mother’s parental rights were terminated, and he would

consent to adoption. In January 2018, the court appointed Pamela Breneman,

Esquire, to act as Child’s guardian ad litem, who subsequently opined that

termination of Mother’s parental rights was in Child’s best interest.




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        The court conducted hearings on Petitioners’ Petition on June 13, 2018,

and July 30, 2018.2 Petitioners presented the testimony of the family support

caseworker for the Agency, Father, and that of Petitioners. Mother presented

the testimony of her father and mother, and that of Mother’s daughter.

Further, Mother testified on her own behalf.3

        In Mother’s brief contesting the termination, she objected that the court

had failed to appoint legal counsel for Child, pursuant to 23 Pa.C.S.A.

§ 2313(a) (requiring a court to appoint counsel to a child in a contested

termination of parental rights proceeding). Accordingly, in November 2018,

the court appointed Angela Rieck, Esquire (“Attorney Rieck”), as legal counsel

for Child. The court instructed Attorney Rieck to determine whether the record

needed to be re-opened to present testimony on behalf of Child. Attorney

Rieck thereafter sent a letter to the court stating that she had reviewed the

hearing transcripts and met with Child, and that it was unnecessary for the

court to re-open the record.         Although Attorney Rieck questioned whether

Child, who was then six years old, completely understood the proceedings,

she represented that Child had clearly expressed that he wanted to remain in

the care of Petitioners.

        On April 17, 2019, the court entered a Decree involuntarily terminating

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

____________________________________________


2Mother lives primarily in Florida, and a number of hearings were postponed
due to issues relating to service of court Notices.

3   Mother did not attend the hearing on June 13, 2018, as she was in prison.
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and (b). Mother thereafter timely filed a Notice of Appeal simultaneously with

a Pa.R.A.P. 1925 Concise Statement of errors complained of on appeal.

       Mother now presents the following issues for our review:

       1. Did the lower court erroneously terminate [] Mother’s parental
          rights?

       2. Whether the lower court failed to properly weigh the evidence
          in assessing whether [] termination was appropriate?

       3. Whether the lower court failed to properly weigh the best
          interests of the Child by terminating [] Mother’s parental
          rights?

Mother’s Brief at 5 (capitalization omitted).4

       We review these claims, which we will address simultaneously due to

their relatedness, 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
       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).

____________________________________________


4 While Mother stated her issues somewhat differently in her Rule 1925(b)
Concise Statement, we find them sufficiently preserved for our review.
Further, in Mother’s brief, her arguments overlap between the various
sections.
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      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 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 orphans’ court terminated Mother’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (2), as well as (b). This Court may

affirm an orphans’ court’s decision regarding the termination of parental rights

with regard to any one subsection of section 2511(a), as well as a

consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc).        Here, we will focus our analysis on section

2511(a)(1) and (b), which provides as follows:

      § 2511. Grounds for involuntary termination

      (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.

                                      ***
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      (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)(1), (b).

      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 Section 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., 708 A.2d 88, 91 (Pa. 1998) (emphasis

in original) (citation omitted); see also In re Burns, 379 A.2d 535, 540 (Pa.

1977) (discussing parental duties and stating that “[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.”).

      With respect to Section 2511(a)(1), Mother asserts that there is no clear

and convincing evidence that she had abandoned Child or demonstrated a

settled purpose of relinquishing her parental claim. Brief for Mother at 25.

Mother’s argument rests primarily on her own testimony that she returned to

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Pennsylvania from Florida and made diligent efforts, primarily with Father, to

see Child. Id. at 25-26. Further, Mother asserts that she attempted to contact

Child via phone several times, and mailed him a birthday card. Id. at 26, 31.

Mother also relies on the testimony of her witnesses, including her daughter,

to establish that Mother attempted to have a relationship with Child. Id. at

26.

      The orphans’ court, in addressing Section 2511(a)(1), stated in its

Opinion as follows:

             Mother has done nothing to parent the Child since last
      seeing him in December of 2016. Any attempts by Mother’s family
      to contact the Child are also irrelevant as it relates to the
      termination proceeding for Mother. Mother has failed to attend to
      the Child’s physical or emotional needs.         Mother is to be
      commended for seeking help with her substance abuse
      problems[,] but time cannot stand still waiting for her to complete
      her various treatment programs and incarcerations. Mother chose
      to flee Pennsylvania with her two daughters and not return after
      the family cruise in December of 2016. She chose to remain in
      Florida[,] with [her] two [daughters] remaining in her custody[,]
      at the expense of the Child, whom she left behind. Since Mother
      left, the Child’s daily needs have been provided for by Petitioners.
      They sought counseling services for [Child]. They take him to the
      doctor and ensure he is safe.

             Mother was aware of where Petitioners lived, where they
      worked, [and had] their cell phone numbers and the telephone
      number of their residence. Mother had the ability to access the
      legal system to seek visitation with the Child and she already had
      a custody lawyer. Mother failed to use any of the information or
      resources available to her to see [Child]. Furthermore, she stood
      by and allowed Paternal Grandparents to care for [Child] without
      providing any support for him.

            Mother, for a period of at least six months prior to the filing
      of the [P]etition to terminate her parental rights, has failed to
      perform her parental duties as they relate to the Child. Petitioners


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      have met their burden to terminate Mother’s parental rights under
      section 2511(a)(1).

Orphans’ Court Opinion, 4/17/19, at 11-12 (footnote omitted). Additionally,

the orphans’ court assessed Mother’s testimony, and opined that it was

incredible and vague. Id. at 10; see also id. at 11 (finding that the testimony

presented by Mother’s parents was also vague). Our review discloses that the

record supports the orphans’ court’s findings and determination, and we may

not disturb its credibility determinations, nor do we discern any abuse of its

discretion. See In re M.J.S., 903 A.2d 1, 8 (Pa. Super. 2006) (stating that

this Court may not reverse the credibility determinations of the orphans’ court

absent an abuse of discretion).     Accordingly, we affirm on this basis in

concluding that there was clear and convincing evidence to support

termination of Mother’s parental rights under Section 2511(a)(1).          See

Orphans’ Court Opinion, 4/17/19, at 10-12.

      Turning to Section 2511(b), the court must consider whether the

termination of Mother’s parental rights would best serve the developmental,

physical and emotional needs and welfare of Child. See In re C.M.S., 884

A.2d 1284, 1286-87 (Pa. Super. 2005). “Intangibles such as love, comfort,

security, and stability are involved in the inquiry into the needs and welfare

of the child.” Id. at 1287 (citation omitted). The court 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.   When evaluating a

parental bond, “the court is not required to use expert testimony.        Social


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workers and caseworkers can offer evaluations as well. Additionally, section

2511(b) does not require a formal bonding evaluation.” In re Z.P., 994 A.2d

1108, 1121 (Pa. Super. 2010) (internal citations omitted).

      Here, Mother argues that she desires to have the same bond with Child

that she does with her other children, and that there was a bond between her

and Child. See Brief for Mother at 23-24. Mother asserts that it was in Child’s

best interest to wait until Child comprehends the full impact of terminating

Mother’s parental rights, so that Mother could continue to improve her life and

have a relationship with Child. Id. at 28, 39-40. Additionally, Mother argues

that the court should have “appointed a counselor and/or therapist to assess

the mother-child relationship and what was in the best interests of the

[C]hild.” Id. at 42-43.

      In addressing Section 2511(b), the orphans’ court credited testimony

that Child’s life was not stable prior to December 2016, particularly where

Mother and Father used drugs in front of Child.      Orphans’ Court Opinion,

4/17/19, at 16; see also id. (finding that Child’s life had been “unstable,

unsafe and transient.”).   Further, the court observed that, after custody

transferred to Paternal Grandmother, Mother did nothing to ensure ongoing

contact with Child. Id. In Mother’s absence, Petitioners took on the parental

role in Child’s life. Id. at 16-17. The court credited testimony from M.F.,

Paternal Grandmother’s husband, that Child does not mention Mother. Id. at

17. Further, the court considered the guardian ad litem’s position that Child

spoke very little about Mother, and that Child was very comfortable with

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Petitioners, wherein there was a “genuine caring atmosphere in the home.”

Id. Additionally, the court noted Father’s testimony that Mother made no

request to see Child. Id. The court further determined as follows:

              The Child deserves stability, permanence and safety. He
       should not be made to wait until it is convenient for Mother or
       Father to parent. Mother asserts that her rights should not be
       terminated as she is not calling for the Child to be removed from
       the home of Petitioners at this time and that an ongoing custody
       order could protect against any of Petitioners’ concerns. But
       childhood is short and the Child deserves a stable home where his
       physical, emotional and safety needs are met. To allow Mother to
       try to inject herself back into the life of the Child now[,] or at some
       unknown time in the future[,] does not provide the Child with any
       stability or feeling of permanence.

             Based upon the evidence presented, and having resolved all
       issues of credibility, the [c]ourt finds … that Petitioners have
       established by clear and convincing evidence that the parental
       rights of Mother should be terminated as requested, and that the
       termination will promote and enhance the developmental, physical
       and emotional needs and welfare of the Child.

Id. at 18.    Our review discloses that the record supports the court’s findings,

and we discern no abuse of its discretion in determining that Child’s best

interests are served through the termination of Mother’s parental rights.5

       Finally, Mother argues that the orphans’ court erred when it appointed

counsel for Child, Attorney Rieck, after the close of testimony. See Brief for


____________________________________________


5 To the extent Mother asserts that expert testimony was needed to evaluate
the bond between her and Child, this is clearly belied by the law. See In re
Z.P., supra. Further, while Mother may profess to love Child, a parent’s own
feelings of love and affection for a child, alone, will not preclude termination
of parental rights. See In re Z.P., 994 A.2d at 1121. By the time of the
termination hearings, the credited testimony established that Mother had not
seen Child since December 2016, which constituted a substantial portion of
his young life.
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Mother at 26-27. Though Mother acknowledges that the court gave Attorney

Rieck an opportunity to review the record, Mother contends that the late

appointment of counsel was insufficient, as Child’s interests were not

protected throughout the proceedings.        Id. at 27.   Further, according to

Mother, “[b]oth the guardian ad litem and [Attorney Rieck] stated Child did

not fully comprehend the effect of the termination of [] Mother’s rights.” Id.

at 38-39.

     The orphans’ court rejected Mother’s claims, reasoning as follows:

           [T]he court, out of an abundance of caution, did appoint
     [Attorney Rieck] for the Child and provided that attorney with the
     opportunity to review the record and open the matter for further
     testimony if counsel deemed it appropriate. In accordance with
     the court’s deadline, [Attorney Rieck] informed the court that
     opening the record was unnecessary. Any possible error due to
     the delay in the appointment of counsel for the Child was remedied
     by allowing counsel ample time to review the record and reopen
     the matter if counsel deemed it necessary.

            The second issue raised by Mother … is the failure to
     consider the Child’s lack of understanding of the proceeding, which
     is not persuasive. There is no statutory requirement that a child
     subject to a petition for adoption “fully comprehend” the
     termination of the rights of the biological parents. To require that
     a child fully comprehend termination would result in the
     unwarranted delay of adoption for years for all children. Under
     Mother’s theory, an infant would wait years while it developed
     language and comprehension skills before an adoption could be
     completed. To make the Child wait in limbo for some unspecified
     amount of time until the Child could fully comprehend the
     implications of terminating Mother’s parental rights only serves
     Mother’s interest and is to the detriment of what is in the best
     interests of the Child. Childhood is short. The Child deserves
     stability and permanence during his childhood[,] and this stability
     has been provided by the Paternal Grandparents.

Orphans’ Court Opinion, 6/11/19, at 2-3 (some capitalization altered).


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      We discern no error of law or abuse of discretion in the court’s analysis.

Moreover, the court complied with our Supreme Court’s dictates in In re

Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), which held that 23

Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal

interests   of   any   child   involved    in   contested   involuntary   termination

proceedings.     Id. at 183; see also id. (noting that legal interests are

synonymous with the child’s preferred outcome, but the child’s best interests

are determined by the court). Here, the record reflects there was no conflict

between Child’s preferred outcome and his best interest, and the appointment

of the guardian ad litem satisfied the requirements of Section 2313, regardless

of the late appointment of legal counsel for Child.            Further, there is no

requirement that a child “fully comprehend” the impact of the termination of

parental rights. Rather, the Supreme Court has determined that when a child

is pre-verbal, and therefore clearly unable to “fully comprehend” the impact

of the termination of parental rights, there is no conflict between the child’s

best and legal interests. See In re T.S., 192 A.3d at 1092-93. Child was

verbal and expressed his preferred outcome, which was to live with

Petitioners. Attorney Rieck conveyed Child’s preferred outcome to the court,

and the court did not err by entering its Decree before Child “fully

comprehended” the impact that termination of Mother’s parental rights might

have on him.

      Decree affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2019




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