J-S50015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: K.D.M., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: M.M.M., NATURAL                 :
    MOTHER                                     :
                                               :
                                               :
                                               :
                                               :   No. 697 WDA 2019

                 Appeal from the Decree Entered April 5, 2019
      In the Court of Common Pleas of Jefferson County Orphans' Court at
                            No(s): 7A-2019 O.C.


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED SEPTEMBER 27, 2019

        M.M.M. (Mother) appeals from the decree, entered in the Court of

Common Pleas of Jefferson County, terminating her parental rights to her son,

K.D.M. (Child) (DOB: 12/16).1 After our review, we affirm.

        On July 5, 2017, Mother was incarcerated for violation of probation. On

July 6, 2017, Jefferson County Children and Youth Services (Agency) filed an

application for emergency protective custody of Child based on Mother’s

inability to care for Child due to her addiction to illegal narcotics and

incarceration.     Child was six months old.         The court adjudicated Child

dependent on July 24, 2017, and, after exhausting kinship care options, the

Agency placed Child with foster parents on September 20, 2017.             Child

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Natural father is not known.
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continues to reside with foster parents, who are Child’s prospective adoptive

parents.

      The Agency created a family service plan (FSP) for Mother, with the goal

of reunification. Mother was required to attend parenting classes, participate

in regular visitations with Child, attend drug and alcohol treatment, obtain

mental health services, and secure stable housing.

      While Mother was incarcerated, the Agency facilitated six visits with

Child between January 29, 2018 and September 13, 2018. Those visits went

well. Caseworker Jennifer Wirgnoivcz testified that when Mother was released

from incarceration, the Agency arranged three supervised visits at Mother’s

residence, which progressed to an overnight visit. N.T. Termination Hearing

3/29/19, at 7.    Prior to a second scheduled overnight visit, Mother tested

positive for amphetamines and methamphetamines.        Id. at 8. The Agency

suspended further home visits and informed Mother future visits would take

place at the Agency.      The Agency then scheduled ten, two-hour visits,

confirming that the time was convenient for Mother, and arranged for

transportation for Mother to and from the visits at no cost to her.    Mother

missed all ten visits, the last of which was scheduled for November 28, 2018.

Id. at 9-20. Six days later, Mother was again incarcerated, and she chose not

to have Child visit her in jail. Id. at 21.

      Although Mother completed parenting classes, she did not accomplish

her remaining reunification goals.     Mother was discharged from drug and

alcohol treatment due to non-compliance, and she failed to obtain mental

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health services, to participate in the last ten scheduled visitations, and to

obtain stable housing.     Id. at 22-24, 30-36.        Caseworker Wirgnoivcz

characterized Mother’s compliance with the FSP as “minimal.” Id. at 37-38.

      On February 19, 2019, the Agency filed a petition for involuntary

termination of Mother’s parental rights. At that time, Child had been in the

Agency’s custody for over eighteen months.

      Following the March 29, 2019 termination hearing, the court entered an

order terminating Mother’s parental rights to Child.     Mother filed a timely

notice of appeal. Both Mother and the trial court have complied with Pa.R.A.P.

1925. Mother raises the following issues for our review:

         1. Whether the trial court erred in terminating [Mother’s]
            parental rights under 23 Pa.C.S.A. § 2511(a)(2)?

         2. Whether the trial court erred in terminating [Mother’s]
            parental rights under 23 Pa.C.S.A. § 2511(a)(5)?

         3. Whether the trial court erred in terminating [Mother’s]
            parental rights under 23 Pa.C.S.A. § 2511(a)(8)?

         4. Whether the trial court committed an error and/or abuse of
            discretion in finding that termination was in [Child’s] best
            interests in accordance with 23 Pa.C.S.A. § 2511(b)?

Appellant’s Brief, at 4.

      When reviewing an appeal from a decree terminating parental
      rights, we are limited to determining whether the decision of the
      trial court is supported by competent evidence. Absent an abuse
      of discretion, an error of law, or insufficient evidentiary support
      for the trial court’s decision, the decree must stand. Where a trial
      court has granted a petition to involuntarily terminate parental
      rights, this Court must accord the hearing judge’sdecision the
      same deference that we would give to a jury verdict.



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In re: Involuntary Termination of C.W.S.M. and K.A.L.M., 839 A.2d 410,

414 (Pa. Super. 2003).

      In a proceeding to involuntarily terminate parental rights, the
      burden of proof is upon the party seeking termination to establish
      by “clear and convincing” evidence the existence of grounds for
      doing so. The 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.

In re A.L.D., 797 A.2d 326, 336 (Pa.Super.2002) (quoting In re Adoption

of Atencio, 650 A.2d 1064, 1066 (Pa. 1994)).

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. In re D.W., 856 A.2d 1231, 1234 (Pa. Super. 2004).
      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). In re B.L.L., 787 A.2d
      1007, 1013–14 (Pa. Super. 2001). Only after determining that
      the parent’s conduct warrants termination of his or her parental
      rights must the court engage in the second part of the analysis:
      determination of the needs and welfare of the child under the
      standard of best interests of the child. C.M.S., [884 A.2d 1284,
      1286–87 (Pa. Super. 2005)]; A.C.H., [803 A.2d 224, 229 (Pa.
      Super. 2002) ]; B.L.L. Although a needs and welfare analysis is
      mandated by the statute, it is distinct from and not relevant to a
      determination of whether the parent’s conduct justifies
      termination of parental rights under the statute. One major aspect
      of the needs and welfare analysis concerns the nature and status
      of the emotional bond between parent and child.

In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa. Super. 2006).

      Here, the court found clear and convincing evidence that termination

was proper under sections 2511(a)(2), (a)(5) and (a)(8). While the trial court


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found that the Agency met its burden of proof under each section quoted

above, we need only agree with its decision as to any one subsection in order

to affirm the termination of parental rights. See In re J.E., 745 A.2d 1250

(Pa. Super. 2000); see also In re J.I.R., 808 A.2d 934, 940 n. 6 (Pa. Super.

2002).   Here, we consider whether the court properly terminated Mother’s

parental rights pursuant to sections 2511(a)(2) and (b).

      The Adoption Act governs the involuntary termination of a parent’s

parental rights to a child and provides, in relevant part, 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.

                                     *    *    *

      (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), (b).

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      This Court has stated:

      In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
      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). “The

grounds for termination 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 perform parental duties.” In

re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).       A parent is required to

make diligent efforts towards the reasonably prompt assumption of full

parental responsibilities. Id.

      Mother argues that there was “no testimony or evidence presented that

[she] had an incapacity that caused [Child] to be without essential parental

care and control.” Appellant’s Brief, at 6. This argument misapprehends the

record. Evidence of Mother’s actions and her own testimony, in addition to

the caseworker’s testimony, supports the court’s finding that termination was

warranted under section 2511(a)(2).     Mother was incarcerated when Child

was six months old. Despite the Agency’s best efforts to reunify Mother with

Child, Mother failed to comply with the terms of both her FSP and her

probation. As a result, she was re-incarcerated; upon release, she missed ten

scheduled visits with Child. Mother acknowledged at various points during



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those missed visits that she would be unable to pass a drug test. As the trial

court observed:

      Ultimately, [Mother] allowed her addiction to take priority over her
      son, and the record indicates that she cannot or will not remedy
      within a reasonable period of time the conditions that led to
      [Child’s] removal in the first place. While she was out on parole,
      Mother had multiple opportunities to establish a firm relationship
      with her son. [The Agency] wanted her to succeed, believed she
      would, and thus instituted an accelerated reunification protocol.
      Even after her first documented failure on October 5, 2018, the
      Agency made every reasonable effort to encourage and
      accommodate Mother’s rehabilitation, both as an addict and as a
      parent, while simultaneously ensuring [Child’s] safety. Even after
      visits were relocated to the Agency, for instance, [Caseworker]
      Wirgnoivcz set up transportation through Justice Works and
      engaged other social services on Mother’s behalf. [Caseworker
      Wirgnoivcz] also reached out time after time—missed
      appointment after missed appointment— in an effort to re-engage
      Mother and get her to comply with her service plan so she could
      be reunited with her son. Mother consistently rejected [the
      caseworker’s] help. After seeing [Child] four times in less than a
      month, []Mother completely neglected him. Ten visits were
      arranged for her, . . . and ten visits were missed. Some Mother
      did not even attempt to excuse. She knew, though, that her drug
      use was the reason for her neglect and even told [Caseworker]
      Wirgnoivcz that she would not be back unless she could pass a
      urine test. At the same time, she declined the drug treatment
      that might have helped her control her addiction. She then went
      to prison for the second time since [child] was born and was again
      rendered incapable of caring for him because of it.

Trial Court Opinion, 4/8/19, at 8.

      At the hearing, Mother also acknowledged that she was “not able to be

what [Child] needs me to be[.]”      N.T. Termination Hearing, supra at 87.

Mother stated she was willing “to sign [over] my rights for my son[,]” but

preferred that he be placed with her cousin so that she could be a part of his



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life. Id. Mother testified that her cousin had met Child when he was one

week old, has not seen Child since, and does not have a relationship with

Child.     Id. at 88.   As the Orphans’ Court aptly noted, if termination is

appropriate, the next inquiry focuses “on the needs and best interests of the

child, not his or her biological family.”    Trial Court Opinion, supra at 9

(emphasis in original).

         We conclude that there is competent, clear and convincing evidence in

the record to support the court’s determination that Mother has not

demonstrated any ability to remedy the circumstances that led to Child’s

placement, nor is there any indication that she could remedy such

circumstances in the near future. The record supports the court’s findings

that Mother was incapable of parenting Child, that Child had been left without

proper parental care and control, and that Mother cannot, or will not, remedy

her parental incapacity. See 23 Pa.C.S.A § 2511(a)(2); M.E.P., supra at

1272. We find no error or abuse of discretion. In re S.P., 47 A.3d 817, 826-

27 (Pa. 2012).

         Next, we consider whether the Orphans’ Court abused its discretion by

terminating Mother’s parental rights pursuant to section 2511(b). See In re

Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc). This

Court has stated that the focus in a termination proceeding under section

2511(a) is on the parent, but under section 2511(b) it shifts to the child. Id.

at 1008. In reviewing the evidence in in support of termination under Section

2511(b), our Supreme Court recently stated:

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      [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.[A.] § 2511(b). The emotional needs and welfare of the
      child have been properly interpreted to include “[i]ntangibles such
      as love, comfort, security, and stability.” In re K.M., 53 A.3d
      781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485
      (Pa. 1993)], this Court held that the determination of the child’s
      “needs and welfare” requires consideration of the emotional bonds
      between the parent and child. The “utmost attention” should be
      paid to discerning the effect on the child of permanently severing
      the parental bond. In re K.M., 53 A.3d at 791.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

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

testimony, but may rely on the testimony of social workers and caseworkers.

In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). Further, it is appropriate

to consider a child’s bond with his foster parents. See In re T.S.M., 71 A.3d

at 268.

      Mother argues that Caseworker Wirgnoivcz’s testimony established that

a bond existed between Mother and Child.           She points to Caseworker

Wirgnoivcz’s description of Mother and Child’s interactions during visits:

      The interactions were good. Mom did take the child, and she did
      play with him. The interactions were appropriate. She supervised
      him there, and some of the visitation they did appear bonded.
      There were no concerns.

Appellant’s Brief, at 9, citing N.T. Termination Hearing, supra at 62. We point

out, however, that this assessment pertained to the six visits prior to Mother’s

re-incarceration and prior to her missing ten scheduled visits. With respect to

Child’s bond with his foster parents, Caseworker Wirgnoivcz testified:


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      [C]hild is doing phenomenal. He is thriving in the home. [Foster
      parents] have him actively participating in [H]ead [S]tart. They
      come to the home and work with him on his milestones. He is
      advanced in several of the areas. They have him actively involved
      with working on hi[s] swimming. They have made all of his
      medical appointments, and he is doing very well, up to date on all
      of his immunizations. So there are no concerns at this time.

N.T. Termination Hearing, supra at 49. Caseworker Wirgnoivcz emphasized

that Child “has a strong bond with [foster parents]; “[h]e is very close to

them, and he’s doing very well with them and responding to them.” Id. at

57.

      Guardian ad litem Kerith Strano Taylor, Esquire, and Joseph D. Ryan,

Esquire, counsel for Child, also testified. Both agreed that Child’s bond was

with his foster family, and that termination would be in Child’s best interests.

Id. at 95-97.

      Our Supreme Court has noted that “the mere existence of a bond or

attachment of a child to a parent will not necessarily result in the denial of a

termination petition.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “Common

sense dictates that courts considering termination must also consider whether

the children are in a pre-adoptive home and whether they have a bond with

their foster parents.” Id. at 268.         Moreover, in weighing the bond

considerations pursuant to Section 2511(b), “courts must keep the ticking

clock of childhood ever in mind. Children are young for a scant number of

years, and we have an obligation to see to their healthy development quickly.”

Id. at 269.




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      Mother has so much as conceded that she is unable to place herself in

position to parent Child. See In re Z.S.W., 946 A.2d 726, 732 (Pa. Super.

2008) (a child’s life “simply cannot be put on hold in the hope that [a parent]

will summon the ability to handle the responsibilities of parenting”). At the

time of the hearing, Child had been with foster parents for over eighteen

months, since September of 2017.        Foster parents have met all of Child’s

physical and emotional needs, and he looks to them for comfort and care. It

is clear that Child has a strong bond with them.       The record supports the

Orphans’ Court’s determination that the termination of Mother’s parental

rights to Child is in his best interests, and that Child would not suffer any harm

from the termination of Mother’s parental rights.

      Accordingly, we conclude that the Orphans’ Court correctly determined

that the Agency met its burden of proof under 23 Pa.C.S.A. § 2511(a)(2) and

(b). We affirm the court’s decree terminating Mother’s parental rights.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2019




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