J-S52045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.C.                 :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: A.N., MOTHER                  :         No. 1336 EDA 2014

               Appeal from the Decree Entered April 8, 2014
           In the Court of Common Pleas of Montgomery County
                                               -A-0199


BEFORE: GANTMAN, P.J., ALLEN, J., AND FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED AUGUST 20, 2014



Montgomery County Court of Common Pleas, which granted the petition of




     The relevant facts and procedural history of this appeal are as follows.

In February 2012, OCY learned that Mother was incarcerated and four-year-

old Child was living with a relative. After her release from jail on April 2,

2012, Mother resumed caring for Child.       At that point, Mother did not

cooperate with OCY. Specifically, Mother did not notify OCY regarding where

the family was living. Mother did not answer her telephone or return calls

from the OCY caseworker. Mother also tested positive for drugs.

     The court adjudicated Child dependent on May 1, 2012. On June 13,

_____________________________

*Former Justice specially assigned to the Superior Court.
J-S52045-14

2012, OCY placed Child in foster care, where she has remained ever since.



custody of Child.     The FSP objectives included cooperation with OCY,



maintaining sobriety, and avoiding additional incarceration.           OCY provided

Mother   with   services   to   assist   her   in   completing   the    FSP   goals.

Nevertheless, Mother did not successfully complete the FSP goals. Mother

was re-incarcerated from June 21, 2012, to November 17, 2012. After her

release from jail, Mother failed multiple drug tests in 2012 and 2013.

Mother also failed to maintain contact with the OCY caseworker.

     On October 3, 2013, OCY filed a petition for involuntary termination of



March 26, 2014, April 3, 2014, April 4, 2014, and April 8, 2014.

Immediately following the April 8, 2014 hearing, the court entered a final



Mother timely filed a notice of appeal, which included a concise statement of

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

     Mother raises five issues for our review:

         WHETHER THE COURT ABUSED ITS DISCRETION IN


         THERE IS A PARENTAL INCAPACITY OR REFUSAL TO
         PERFORM HER PARENTAL DUTIES, AND THAT ANY SUCH
         INCAPACITY OF MOTHER CANNOT OR WILL NOT BE
         REMEDIED   BY  MOTHER   BECAUSE   MOTHER   HAS
         SUBSTANTIALLY COMPLIED WITH THE GOALS OF THE


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       [FSP] THAT REQUIRED HER TO OBTAIN TREATMENT TO
       ADDRESS HER SUBSTANCE ABUSE AND MENTAL HEALTH
       PROBLEMS, MAINTAIN STABLE HOUSING, INCOME, AND
       CONSISTENTLY VISIT WITH [CHILD] WHILE SHE WAS IN
       PLACEMENT?

       WHETHER THE COURT ABUSED ITS DISCRETION IN
       FINDING THAT THE DEVELOPMENTAL, PHYSICAL AND
       EMOTIONAL NEEDS AND WELFARE OF [CHILD] WILL BE
       BEST SERVED BY THE TERMINATION OF BIRTH
       BIOLOGICAL RIGHTS PURSUANT TO 23 PA.C.S. § 2511(b)
       AS THERE IS A STRONG BOND DOCUMENTED BETWEEN
       MOTHER AND DAUGHTER, AND THAT SEVERANCE OF
       SUCH A BOND SHALL CAUSE IRREPARABLE HARM TO
       MINOR CHILD?

       WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT
       THE FINDINGS OF THE COURT THAT THE AGENCY PROVED
       BY    CLEAR   AND    CONVINCING   EVIDENCE   THE



       WHETHER         THE   COURT   ERRED   IN   GRANTING   THE

       REUNIFICATION TO ADOPTION AS THE GOAL OF
       REUNIFICATION REMAINS THE MOST APPROPRIATE AND
       FEASIBLE GOAL BASED UPON A REVIEW OF THE
       STATUTORY FACTORS SET FORTH IN 42 PA.C.S. §
       6351(f)?

       WHETHER THE COURT HAD SUFFICIENT EVIDENCE TO
       DETERMINE THE APPROPRIATENESS OF CHANGING THE
       GOAL FROM REUNIFICATION TO ADOPTION IN THAT THE
       COURT IS REQUIRED TO CONSULT WITH THE CHILD
       REGARDING THE PERMANENCY PLAN IN A MANNER

       REQUIRED PURSUANT TO 42 PA.C.S. § 6351(e)(1)?

              at 4).

     On appeal, Mother contends she made progress toward alleviating the




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Mother asserts she visited Child, maintained appropriate housing, obtained a

source of income, completed drug and psychiatric evaluations, attended

parenting and anger management classes, and participated in daily

methadone treatments. Mother acknowledges her failed drugs tests, but she

                                                                       ix (6)




Brief at 15). Mother argues her recovery from drug addiction will continue

for the rest of her life, and the fact that she obtained treatment



Mother also insists she has a bond with Child.            Mother complains

environmental factors alone should not form the basis for termination, where



needs.   Mother concludes the court erroneously terminated her parental

rights.1 We disagree.

      Appellate review in termination of parental rights cases implicates the

following principles:


         standard of review is limited to determining whether the
         order of the trial court is supported by competent

1
 To the extent Mother also challenges the goal change from reunification to
adoption, we observe that the April 8, 2014 decree on appeal terminated
              tal rights. It did not simultaneously change the goal to
adoption. Further, the certified record contains nothing related to goal

arguments regarding the propriety of the goal change.


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        evidence, and whether the trial court gave adequate
        consideration to the effect of such a decree on the welfare


In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

           Absent an abuse of discretion, an error of law, or


           employ a broad, comprehensive review of the record

           decision is supported by competent evidence.

        In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
        banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
        (internal citations omitted).

           Furthermore, we note that the trial court, as the
           finder of fact, is the sole determiner of the credibility
           of witnesses and all conflicts in testimony are to be
           resolved by [the] finder of fact. The burden of proof
           is on the party seeking termination to establish by
           clear and convincing evidence the existence of
           grounds for doing so.

        In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
        2002) (internal citations and quotation marks omitted).
        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
        may uphold a termination decision if any proper basis
        exists for the result reached. In re C.S., 761 A.2d 1197,
        1201 (Pa.Super. 2000) (en banc
        are supported by competent evidence, we must affirm the

        opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
        (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d




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J-S52045-14

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).



the following grounds:

        § 2511. Grounds for involuntary termination

           (a) General Rule.
        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.

                                 *    *    *

                 (8) The child has been removed from the
           care of the parent by the court or under a voluntary
           agreement with an agency, 12 months or more have
           elapsed from the date of removal or placement, the
           conditions which led to the removal or placement of
           the child continue to exist and termination of
           parental rights would best serve the needs and
           welfare of the child.

                                 *    *    *

           (b) Other considerations.
        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


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           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), (8); (b).2

terminated where any one subsection of Section 2511(a) is satisfied, along

                                                            In re Z.P., supra

at 1117.



2511(a)(2), 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 perfo                    In

re S.C.B.

make diligent efforts towards the reasonably prompt assumption of full

                              In re A.L.D., 797 A.2d 326, 340 (Pa.Super.

2002) (quoting In re J.W., 578 A.2d 952, 959 (Pa.Super. 1990)).          The

fundamental test in termination of parental rights under Section 2511(a)(2),

was stated in In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the

Pennsylvania Supreme Court announced that under what is now Section



repeated and continued incapacity, abuse, neglect or refusal; (2) that such


2

under Section 2511(a)(1), but the court found that OCY had failed to prove
that termination was warranted under that section.


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J-S52045-14

incapacity, abuse, neglect or refusal caused the child to be without essential

parental care, control or subsistence; and (3) that the causes of the

                                                                           In

Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).

                                                                            ),

the following factors must be demonstrated: (1) The child has been removed

from parental care for 12 months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to

exist; and (3) termination of parental rights would best serve the needs and

                       In re Adoption of M.E.P., 825 A.2d 1266, 1275-76

(Pa.Super. 2003).

      Under Section 2511(b), the court must consider whether termination

                                                  In re C.P., 901 A.2d 516



                                                                          Id.



exists between child and parent, and whether termination would destroy an

                                                 In re Z.P., supra at 1121.



                    In re Diaz, 669 A.2d 372, 377 (Pa.Super. 1995).

         When parents act in accordance with the natural bonds of
         parental affection, preservation of the parent-child bond is
         prima facie in the best interest of the child, and the state
         has no justification to terminate that bond. On the other


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        hand, a court may properly terminate parental bonds
        which exist in form but not in substance when
        preservation of the parental bond would consign a child to
        an indefinite, unhappy, and unstable future devoid of the
        irreducible minimum parental care to which that child is
        entitled.

Id. (quoting In re J.W., supra at 958) (emphasis in original).



certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

                                                                      In re

B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

           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 court has held that the parental obligation
           is a positive duty which requires affirmative
           performance.

           This affirmative duty encompasses more than a
           financial obligation; it requires continuing interest in
           the child and a genuine effort to maintain
           communication and association with the child.

           Because a child needs more than a benefactor,
           parental duty requires that a parent exert himself to
           take and maintain a place of importance in the


        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship


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                                              ifficult circumstances.
         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


         and emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations and quotation marks omitted).




                                          Id. at 856.

       Instantly, the court adjudicated Child dependent on May 1, 2012. On

October 3, 2013, OCY filed the petition for involuntary termination of

Moth

termination petition. On March 26, 2014, Mother presented testimony from

Dr. Diana Rosenstein, the court-appointed psychologist who conducted the

bonding evaluation in February 2014. During the evaluation, Dr. Rosenstein

observed that Mother and Child were excited to see each other.          Mother

brought age-

was warm and affectionate.      Based upon her observations, Dr. Rosenstein

confirmed that Child did have a bond with Mother. When asked about how




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J-S52045-14

Rosenstein explained that Child would have mixed feelings:

           I think she clearly values her relationships with both of the
           parents.[3] I saw signs of ambivalent feelings of both
           parents.      There were flares of anger in each


           know how much she understands about the reasons for it.
           I think she has a very general understanding that

           exactly what happened to cause her to be in foster care.

                                    *     *      *


           with [Foster Mother] is something that she values greatly.


           that.

(See N.T. Termination Hearing, 3/26/14, at 28.)

        On cross-examination, Dr. Rosenstein testified that Mother simply

ignored Child on the occasions where Child acted out or seemed frustrated.

Dr. Rosenstein also characterized Mother as a reluctant participant in the



                                           Id. at 61). Dr. Rosenstein explained



                                                                            Id. at



regarding the possibility of an untreated mental illness.         Ultimately, Dr.

Rosenstein opined that Child should remain with Foster Mother:


3
    Father voluntarily relinquished his parental rights to Child on April 3, 2014.


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J-S52045-14

         I


         living arrangements.   [Child] needs some clarity about
                                       st of her childhood.

(Id. at 78).

      At the hearing conducted on April 3, 2014, OCY presented testimony



worked with Mother since January 2013.        Ms. Hall testified that Mother

currently receives a daily dose of methadone, participates in routine

medication checks, and attends individual counseling sessions every other

week. Although Mother showed signs of stabilization, she tested positive for

drugs other than methadone on five occasions between January 2013 and

October 2013. Ms. Hall also indicated that Mother failed to go to the clinic

for her daily methadone on twenty-five occasions during the same period.

      At the same hearing, OCY presented testimony from Leslie Hallinan,

wh

testified that OCY commenced in-home services for Mother in May 2012.



OCY attempted to assist Mother in achieving her FSP goals and obtaining

reunification with Child. While Ms. Hallinan acknowledged that Mother was

receiving drug treatment at the methadone clinic, Ms. Hallinan noted Mother

had tested positive for drugs other than methadone on six occasions

between April 2012 and January 2014.        Mother also failed to respond to



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J-S52045-14

multiple requests for additional drug screenings during the same period.

      After a positive drug test in January 2014, Ms. Hallinan attempted to

contact Mother.    Ms. Hallinan could not reach Mother by telephone, and




seemed to

the influence of a controlled substance.              (See N.T. Termination Hearing,

4/3/14, at 93.)     Ms. Hallinan stressed that these incidents underscored



         I reach out to [Mother] constantly over the phone, and I
         try to make as many home visits as possible. The majority

         meetings, numerous contacts, again, [where] I have
         addressed her about the cooperation and that she needs to
         answer my phone calls or she needs to at least return my
         phone calls, that we need to be in communication.

(Id. at 95).



remain with Foster Mother:

         [Child]   flourishes   in   her    foster      home.     She   does


         being loved.    Foster mom creates an environment of
         structure with boundaries, with organization and a sense of
         normalcy. That she knows exactly what to expect pretty
         much every day at all times.

                                     *     *      *



                                         - 13 -
J-S52045-14

        I do not feel that [Mother] understands the seriousness

        currently. Mom discredits the issues of her drug and
        alcohol and her mental health.

(Id. at 112-13). Ms. Hallinan concluded Child would not suffer permanent




                                       Id. at 115).

     Based upon the foregoing, the court concluded that the termination of



        [Mother] appears to be pursuing recovery through her
        treatment at the methadone clinic, and that is to her
        credit.   She has currently a stable home and has
        addressed many of the conditions, including completing a
        parenting    class   and   anger    management      class.
        Nevertheless, the lack of cooperation with [OCY], the
        inconsistent responsiveness to request[s] for random drug
        screens, concerns about [the] consistency and stability of

        communicate with [OCY] in her own best interest, all
        continue to be serious problems that have prevented
        timely reunification with her daughter.

        The Superior Court talking about the application of Section

        may seem harsh when the parent has begun to make
        progress toward resolving the problems that have led to

        when conditions that led to her removal continue to exist
        after a year, the statute implicitly recognizes that the

        unable to perform the actions necessary while assuming
        parenting responsibilities. The [c]ourt cannot and will not


        future.   Indeed, we work under statutory case law that



                                  - 14 -
J-S52045-14

       process of either reunification or adoption for a child that
       has been placed in foster care.


       Section 2511(a)(2). There is evidence in the record that
       supports a finding of incapacity to parent which includes
       the f
       cooperation, canceling of meetings with the psychologist
       on short notice, canceling of meetings and missing of
       meetings with [OCY] and failure to return phone calls, and
       be present for scheduled meetings with the caseworker, is
       related to her anxiety disorder, as birth mother maintains[,
       this] is nevertheless evidence that the [c]ourt must
       consider in terms of whether [Mother] has the capacity to
       do everything that is necessary to adequately parent and
       supervise her child.

       It is also relevant that despite the lengthy history of
       psychiatric issues and substance abuse, birth mother
       minimizes her need for psychiatric and psychological care
       and does not adequately address her mental health issues.

       Also relevant is that despite being in the midst of a
       contested court hearing regarding her parental rights, she
       has no long-term plans for her child. She was unable to
       name the school that her child would attend if she should
       come to live with her.

                               *     *      *



       and activities. Birth mother also did not demonstrate an
       ability to form a trusting, open communication with the
       caseworker or with the foster m
       father, other adults important to the child and her welfare.

                               *     *      *

       Based upon the evidence in the record, much of which I

       evidence in the exhibits as well, the [c]ourt finds grounds
       to terminate parental rights under Section 2511(a)(8) and
       2511(a)(2) on the basis of incapacity.


                                   - 15 -
J-S52045-14



                                   *     *      *

          In this case, I find that there is a parental bond between
          the birth mother and this child. However, I find that the
          bond that has developed between the foster mother and
          the child is stronger, and it would be in the best interest of
          [Child] that she be able to find a permanent home through
          adoption with her foster mother and maintain the safety
          and security that she has found there.

(See N.T. Termination Hearing, 4/8/14, at 45-48, 49, 52).            The record



minimum parental care for Child.        See In re Z.P., supra; In re B.L.L.,

supra

rights to Child.

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




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