J-S73045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: K.K., A :            IN THE SUPERIOR COURT OF
MINOR CHILD                 :                 PENNSYLVANIA
                            :
                            :
APPEAL OF: K.K., MOTHER     :
                            :
                            :
                            :
                            :            No. 850 WDA 2016

               Appeal from the Decree Entered May 17, 2016
           In the Court of Common Pleas of Washington County
            Orphans’ Court at No(s): CP-63-DP-0000174-2015


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, and JENKINS, JJ.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 15, 2016

     K.K. (“Mother”) appeals the decree of the Court of Common Pleas of

Washington County, Orphans’ Court, entered May 17, 2016, that granted the

petition filed by Washington County Children and Youth Social Services

Agency (“CYS”) to terminate her parental rights to her child, K.K. (“Child”)

(born in September of 2015), and to change Child’s permanency goal to

adoption.1 We affirm.

     The trial court related the factual and procedural history as follows:

           [Child] was born opiate dependent [in September of
     2015]. [M]other received no prenatal care. [Child] at birth
     experienced severe withdrawal symptoms and remained in the
     hospital until October 8, 2015 and she was then transferred to
     another facility until November 24, 2015, when she was


1
  The trial court also terminated the parental rights of Child’s father, A.H
(“Father”). Father did not appeal that termination.
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     discharged and placed in a pre-adoptive foster home, where she
     has remained.

            Shortly after [Child]’s birth, CYS filed a dependency
     petition. On October 6, 2015, the [j]uvenile [c]ourt found that
     [Child] was dependent; the dependency [c]ourt also found that
     an aggravated circumstance was present and relieved CYS of
     any efforts to reunify [C]hild and her parents.           At the
     dependency hearing, because no reunification efforts or services
     were required, no visitation between the parents and [C]hild was
     ordered. The dependency order and findings were not appealed.
     The aggravated circumstance found by the dependency [c]ourt
     was based on the fact that both Mother and Father had their
     parental rights involuntarily terminated as to other children on
     June 24, 2015 by [the trial court].        [M]other and Father
     appealed that termination order and the Superior Court affirmed
     the termination in a non-precedential decision dated February
     12, 2016.

            At the termination hearing on March 29, 2016,[2] [M]other
     testified that she was in a methadone treatment program and
     compliant, worked full-time and recently moved in with her
     parents. The [trial court] found that [M]other’s testimony that
     she was living with her parents was not credible; Mother had
     testified at a previous hearing regarding her older children
     before [the trial court] in May 2015 that she had moved to her
     parents’ home, but at [Child]’s birth, a few months later, in
     September of 2015, she was residing with Father and not with
     her parents. [M]other was drug tested regularly since [Child]’s
     birth; the last positive drug test was in December 2015.

            The CYS caseworker, Andrew Albright, testified that the
     home the parents occupied and where [M]other was present in
     October 2015 had broken windows, garbage strewn throughout
     and was not appropriate. After [C]hild’s birth, [M]other was
     released from the hospital on September 21, 2015 and did not
     contact [C]hild or [the] hospital for several days. She came for
     a visit with [C]hild a few days later and visited thereafter every
     few days. After the dependency hearing on October 6, 2015,
     [M]other’s visitation was required to be supervised by an
     approved family member. Initially, paternal grandfather and his

2
 On January 8, 2016, CYS filed a petition to involuntarily terminate Mother’s
parental rights to Child.
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      wife accompanied Mother to the visits, but they then moved to
      Florida and were unavailable. Visitation with Mother then ceased
      in November 2015.

Trial Court Opinion, 7/8/16, at 1-3.

      On May 17, 2016, the trial court terminated Mother’s parental rights to

Child pursuant to sections 2511(a)(2) and (b) of the Adoption Act. Mother

filed a notice of appeal on June 13, 2016, along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      Mother raises three issues on appeal:

         1. Whether the [trial c]ourt erred in analyzing and applying
            aggravated circumstances in considering the request to
            terminate [Mother]’s parental rights?

         2. Whether the evidence supported a finding that [Mother]
            could not and would not remedy the causes for placement
            of [C]hild?

         3. Whether the evidence supported a termination                of
            [Mother]’s parental rights pursuant to 2511(b)?

Mother’s Brief at 4.

      We review an appeal from the termination of parental rights in

accordance with 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. As has been often
      stated, an abuse of discretion does not result merely because
      the reviewing court might have reached a different conclusion.

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      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness,
      partiality, prejudice, bias, or ill-will.

            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) (some internal

citations omitted).

      As the petitioner, DHS carries the burden 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 (Pa.Super.2009).

Moreover:

      [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. at 276 (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super.2003)).

This Court may affirm a trial court’s decision regarding the termination of




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parental rights with regard to any one subsection of section 2511(a). In re

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

     Here, the trial court terminated Mother’s parental rights under

Subsection (a)(2), 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:

                                      ***

            (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.

23 Pa.C.S. § 2511(a)(2).

     We have stated:

     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) (citations

omitted).

     Mother’s first and second arguments challenge the trial court’s

determination that CYS sustained its burden of proving that her parental


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rights to Child should be terminated pursuant to Section 2511(a)(2). In her

brief, Mother argues that the trial court erred in applying aggravated

circumstances in considering the request to terminate Mother’s parental

rights. Mother’s Brief at 9. Mother also contends that the trial court erred in

finding by clear and convincing evidence that the causes of the incapacity,

abuse, neglect, refusal cannot or will not be remedied by Mother. 3 Id. at

16.   Mother additionally claims that termination requires “a significant time

period to be considered.” Id. at 14.

      This Court has determined that, “unlike Sections (a)(1), (5), and (8),

Section 2511(a)(2) does not provide a statutory time constraint on

termination.     Rather, Section 2511(a)(2) addresses situations where

remedial aid by an agency is not required, i.e. when there is a finding of

aggravated     circumstances[.]”    In   re   A.S.,   11   A.3d   473,   481–82

(Pa.Super.2010).

      Here, Mother’s inability to parent Child predates Child’s birth. Courts

have previously terminated Mother’s parental rights to her other three

children. Further, the scope of CYS’s involvement with the family indicates

that Mother has been and remains unable or unwilling to remedy the

conditions that led to Child’s placement. Moreover, the trial court found that

the circumstances have not changed significantly:



3
 Mother does not contest the first and second prong of the test set forth in
In re Adoption of M.E.P., 825 A.2d at 1272.
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      [M]other’s last positive drug test was in December of 2015 and
      both parents are only in the beginnings of long-term drug
      treatment. Simply, with the involuntary termination of parental
      rights, the parents have already been declared as unfit and they
      are not afforded another opportunity with a new baby absent
      extraordinary circumstances.

Trial Court Opinion, 5/17/16, at 3. In light of the aggravating circumstances

of the case – the prior termination of Mother’s rights to her three other

children, coupled with Mother’s long history of drug use and lack of

consistency in drug treatment – we find the trial court properly terminated

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

      Finally, we address Mother’s last issue. Therein, Mother argues that

the trial court erred in finding that Mother’s parental rights should be

terminated under Section 2511(b). Mother’s Brief at 10.

      Following a determination that the requirements of Section 2511(a)

have been satisfied, we proceed to review whether the requirements of

Section 2511(b) have been satisfied. In re Adoption of C.L.G., 956 A.2d

999, 1009 (Pa.Super.2008) (en banc).       The focus in terminating parental

rights under Section 2511(a) is on the parent, but under Section 2511(b),

the focus is on the child. Id. at 1008.

      Section (b) provides as follows:

      (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

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      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).       In reviewing evidence offered in support of

termination under section 2511(b), our Supreme Court recently stated:

      [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 at 485, 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).       Moreover, we have observed

that no bond worth preserving is formed between a child and a natural

parent where the child has been in foster care for most of the child’s life,

and the resulting bond with the natural parent is attenuated. In re K.Z.S.,

946 A.2d 753, 764 (Pa.Super.2008).

      When conducting a bonding analysis, the court is not required to use

expert testimony.    In re Z.P., 994 A.2d 1108, 1121 (Pa.Super.2010).

Further, while Mother may love Child, a parent’s own feelings of love and

affection for a child, alone, will not preclude termination of parental rights.

Id. at 1121. As we stated in In re Z.P., a child’s life “simply cannot be put

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


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responsibilities of parenting.”   Id. at 1125.     Rather, “a parent’s basic

constitutional right to the custody and rearing of his child is converted, upon

the failure to fulfill his or her parental duties, to the child’s right to have

proper parenting and fulfillment of his or her potential in a permanent,

healthy, safe environment.”       In re B., N.M., 856 A.2d 847, 856

(Pa.Super.2004).

      The trial court found that CYS proved, by clear and convincing

evidence, that termination best served the needs and welfare of [C]hild.

Trial Court Opinion, 7/8/16, at 7. Specifically, the trial court found “no bond

existed between [C]hild and [M]other as she has never lived with her Mother

and has only been in physical contact with her Mother a handful of times.”

Id. Moreover, the trial court found “no detrimental effects would occur as to

[C]hild if the parental rights were terminated.” Id. The guardian ad litem

strongly supported termination of Mother’s parental rights. N.T., 3/29/16,

143-44. Furthermore, the guardian ad litem found that there was no bond

between Mother and Child, and that termination of Mother’s parental rights

would not have any negative effect on Child. N.T., 3/29/16, at 20.

      As part of its bonding analysis, the trial court appropriately examined

Child’s relationship with Mother and her caregivers. See In re T.S.M., 71

A.3d at 267–268 (stating that existence of a bond attachment of a child to a

parent will not necessarily result in the denial of a termination petition, and

the court must consider whether the child has a bond with the foster


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parents).   Specifically, the trial court found “[C]hild is in a pre-adoptive

home where she has been since being released from the hospital and is

bonded and thriving with them.”    Trial Court Opinion, 7/8/16, at 7.

      The record reveals that Mother’s inability to care for Child was due to

her inability and unwillingness to manage her own drug addiction.       Mother

failed to “exhibit [the] bilateral relationship which emanates from the

parent[’s] willingness to learn appropriate parenting . . . .” In re K.K.R.S.,

958 A.2d 529, 534 (Pa.Super.2008). Because competent evidence exists in

the record to support the trial court’s credibility and weight assessments

regarding Child’s needs and welfare and the absence of any bond with

Mother, we conclude that the trial court did not abuse its discretion in finding

that Mother’s appeal as to Section 2511(b) lacks merit.            See In re

Adoption of S.P., 47 A.3d at 826–827. Accordingly, we affirm the decree

terminating Mother’s parental rights.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




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