J-S47028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: Z.D.N., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: R.A.P., MOTHER                  :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 650 MDA 2019

                 Appeal from the Order Entered April 10, 2019
    In the Court of Common Pleas of Lackawanna County Orphans’ Court at
                              No(s): A-12-2018

    IN RE: C.J.N., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: R.A.P., MOTHER                  :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 651 MDA 2019

                 Appeal from the Order Entered April 10, 2019
    In the Court of Common Pleas of Lackawanna County Orphans’ Court at
                              No(s): A-13-2018


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 18, 2020

       R.A.P. (Mother)1 appeals from the orders granting the petitions of the

Lackawanna County Office of Youth and Family Services (OYFS) and

involuntarily terminating her parental rights to her sons, Z.D.N., born in

____________________________________________


1The court voluntarily terminated the parental rights of Children’s father, G.N.
(Father). Father did not appeal from the termination of his parental rights,
nor has he participated in this appeal.
J-S47028-19


February 2015, and C.J.N., born in July 2016 (collectively, Children).       We

affirm.

      The trial court set forth the factual and procedural history of this matter

as follows:

      This case concerns the termination of parental rights due to the
      parental medical neglect and mental incapacity of [Mother],
      concerning [Children]. [OYFS obtained emergency protective
      custody of Children] on February 27, 2017 due to a referral
      regarding seven (7) month[-]old infant, C.J.N., who presented to
      the Moses Taylor Emergency Room unresponsive, malnourished,
      . . . and near fatality. Specifically, “severe malnutrition and
      metabolic derangements including hyponatremia, chloremia, AKI,
      and metabolic acidosis complicated by seizure-like activity with no
      EEG correlate and an abnormal MRI . . . continuing to suggest
      some sort of hypoxic event.” C.J.N. received medical treatment
      for approximately three (3) months at Geisinger Medical Center in
      Danville, Pennsylvania. [On April 17, 2017, all parties stipulated
      to the entry of orders finding Children dependent.] C.J.N. treated
      with Pediatric Good Shepherd Rehabilitation Center until release
      to kinship foster placement in May 2017 with paternal grandfather
      [(Foster Parent) with whom Z.D.N. was also placed]. During
      C.J.N.’s hospitalization period, Z.D.N. presented with low
      developmental stages, missed medical visits, and overdue
      immunizations. Z.D.N.’s scoring necessitated early intervention
      services.

      Mother disagreed with the occurrence of neglect or malnutrition,
      and denied any need for medical attention, citing that C.J.N. “just
      had a cold” or “was sick with the flu,” and “he was dehydrated.”
      Mother unwaveringly maintained this position throughout OYFS
      intervention and involvement. As a result, Mother incurred the
      following criminal charges: Endangering the Welfare of a Child, 18
      Pa.C.S. § 4304(a)(1), and Recklessly Endangering Another
      Person, 18 Pa.C.S. § 2705. On January 14, 2019, Mother pled
      nolo contendere to Recklessly Endangering Another Person, 18
      Pa.C.S. § 2705, and received a twenty-four (24) month




                                      -2-
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        probationary period.[2] OYFS did not participate in any plea
        negotiations, recommendations, or conditions.

        OYFS engaged Mother in a family service plan targeted at
        providing an appropriate support system for [Children] with
        appropriate supervision at all times.         Upon release from
        incarceration [in June of 2017], Mother obtained a drug and
        alcohol assessment.       The assessment advised detox from
        Subutex  [3]  combined with inpatient rehabilitation, and a
        completely sober lifestyle. In response, Mother utilized no drug
        and alcohol support. Mother did not attend either inpatient or
        outpatient rehabilitation, did not detox from Subutex, did not
        attend AA or NA programs, and did not obtain a sponsor earning
        “moderate compliance,” and “minimum progress,” with the drug
        and alcohol aspect of the family service plan. Mother cited that
        she chose a Sub[utex] program instead of the recommended
        inpatient, outpatient or partial rehabilitation. OYFS presented
        Mother with several options and opportunities, yet Mother refused
        all services.

        Mother received therapy through Dr. [John] Kuna, but failed to
        obtain a psychiatric evaluation rendering [a] diagnosis. Mother’s
        failure to obtain a psychiatric evaluation earned “minimum
        compliance,” and “no progress,” with the mental health aspect of
        the family service plan. Mother testified that Dr. Kuna provided
        the following non-medical therapy: “calming techniques, coping
        techniques, drug and alcohol. Just different things to help you
        cope with addictions.”

        Mother maintained sporadic employment, offset by Mother’s
        ability to obtain and maintain appropriate housing earning
        “moderate compliance,” with the employment aspect of the family
        service plan.


____________________________________________


2 Mother entered into a conditional plea agreement whereby she initially
entered a plea of nolo contendere to endangering the welfare of children, but
could enter a nolo contendere plea to the lesser charge of recklessly
endangering another person if she cooperated with OYFS. Mother’s Ex. 5,
Lackawanna County Court of Common Pleas Nolo Contendere Plea Colloquy,
12/13/17.

3   Subutex is used to treat opioid addiction.

                                           -3-
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     Mother failed to complete the “Safe-Care Program,” which
     encompasses safety, medical, and parent-child interactions.
     [Mother, who was nine-months pregnant in August of 2017,
     missed two appointments for C-sections, and ultimately had a
     stillbirth.] Since August of 2017, Mother did not reengage with
     the “Safe-Care Program.” In fact, by February-March 2018
     Mother became difficult to contact and deemed a no-show at
     appointments.      Importantly, Mother never advanced to the
     “medical” module of the “Safe-Care Program,” which educates
     medical safety. She stated: “I did not complete Safe[-]Care.”

     Similarly, Mother maintained sporadic participation in the OYFS
     “Mother’s Group,” designed to connect and relate parents involved
     with OYFS. Mother only attended eleven (11) of the twenty-nine
     (29) group sessions. Mother did not successfully complete the
     program. Her sporadic attendance rendered any educational
     response or progress futile.    Id.    In fact[,] Mother’s non-
     attendance for three (3) consecutive months triggered her
     unsuccessful discharge. Mother admitted: “I didn’t keep up with
     moms’ groups and stuff.”

     Mother attended line-of-sight visitation with [Children], admitting
     that she carelessly arrived fifteen (15)-twenty (20) minutes late
     for approximately seventy-five (75) percent of her visits.
     Described as “generally late,” Mother lacked any apparent bond
     with C.J.N. Of note, Mother required “redirection,” when observed
     intentionally commenting on C.J.N.’s weight several times. For
     example, “she would make comments about him being fat . . .
     that he was very chunky, he was overweight. And she had to be
     redirected several times not to say that due to the reason . . . of
     him almost starving to death . . . . He was eating too much. That
     he looked like the grandfather.” Mother admitted to making such
     commentary, but minimized the frequency of the comments and
     minimized her intent. In that same line, Mother described C.J.N.
     as a “big boy.” Later on[, during] cross-examination, Mother
     shifted blame to [Father] and recanted commenting about C.J.N.’s
     weight. Her commentary indicated the presence and risk of future
     neglect to [Children], especially an inability to comprehend or
     reconcile why [Children] were in OYFS care. Also, Mother grossly
     discerned the appropriate portions of food or beverage for
     approximately fifty (50) percent or half of the visits. Mother
     incorrectly commented that C.J.N. “drank too much,” or “ate too
     much.” In regard to Z.D.N., Mother lacked a consistent bond,


                                    -4-
J-S47028-19


       both waning and strengthening at times. For these reasons,
       Mother failed to progress upward with visitation alternatives.

       Overall, Mother merely demonstrated “minimum compliance,”
       with the family service plan. Mother failed to achieve progress in
       a protective capacity towards [Children].        Mother failed to
       demonstrate any changed behavior or new efforts to avert future
       medical neglect and near fatality of [Children]. Despite OYFS
       involvement, Mother’s behavior remained unchanged.

Trial Ct. Op., 1/2/20, at 1-5 (record citations and some formatting altered).

       On March 28, 2018, OYFS filed petitions to terminate Mother’s parental

rights to Children. On March 21, 2019, the trial court conducted a hearing on

the petitions. OYFS presented the testimony of four OYFS employees, Kristin

Wight, Theresa Chmelik, Carey Mazur, and Lisa Kanavy. Mother testified on

her own behalf.4      We summarize the relevant aspects of the testimony as

follows.

       As to OYFS’s concerns regarding Mother’s ability to care for Children

safely, Ms. Wight, the OYFS caseworker, testified that Children came into



____________________________________________


4 The case was initially heard before Judge Michael J. Barrasse on July 16,
2018. However, by order dated January 11, 2019, Judge Barrasse recused
himself. A different jurist presided over the hearing on March 21, 2019. At
the hearing on March 21, 2019, Mother was represented by counsel, and
Attorney Kevin O’Hara represented Children as guardian ad litem and legal
counsel. See In re T.S., 192 A.3d 1080, 1089-90, 1092-93 (Pa. 2018)
(reaffirming the ability of an attorney-guardian ad litem to serve a dual role
and represent a child’s non-conflicting best interests and legal interests); In
re Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017) (plurality)
(stating that, pursuant to 23 Pa.C.S. § 2313(a), a child who is the subject of
a contested involuntary termination proceeding has a statutory right to
counsel who discerns and advocates for the child’s legal interests, defined as
a child’s preferred outcome).

                                           -5-
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OYFS care shortly after Mother transported C.J.N. to the hospital unresponsive

and malnourished on February 27, 2017. N.T., 3/21/19, at 22, 25, 32. At

that time, C.J.N. had seizure-like activity due to malnutrition, as well as severe

diaper rash. Id. at 94. C.J.N. was diagnosed with failure to thrive. Id. Ms.

Wight described C.J.N.’s condition as a “near fatality.” Id. at 32.

       Ms. Wight noted that, in August of 2017, during OYFS intervention with

Children, Mother was expecting another child and missed two scheduled C-

sections.     Id. at 47-48.   At a meeting with OYFS on August 23, 2017,

caseworkers encouraged Mother to call the hospital to schedule a C-section.

Id. Mother eventually went to the hospital several days later, but suffered a

stillbirth.   Id. at 52. Ms. Wight testified that the stillbirth raised further

concerns because Mother did not respond the OYFS’s urging to receive medical

care and “[w]hen she did then receive the medical care, there was a death

that occurred with her unborn child.”       Id. at 51.   Ms. Wight had further

concerns about Mother’s “ability to listen to feedback and be in a realistic

mindset about what was happening and to continue with reality.” Id. at 52.

       Ms. Wight indicated that throughout Children’s time in care, Mother

denied that anything occurred that could have led to C.J.N.’s condition in

February of 2017. Id. at 32, 37. Mother suggested that OYFS was “out to

get her.” Id. at 104-05. Ms. Wight explained that it was an ongoing concern

that “[a]fter the case with [OYFS] was indicated and it was deemed a near

fatality, [and] after seeing medical records and speaking with us about what


                                      -6-
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the doctors had said about that, [Mother] did not feel that occurred.” Id. at

37. Ms. Wight noted that “if [Mother] didn’t recognize what happened, she

can’t adequately protect [Children] from that occurring again and cannot take

the protect[ive] measures to trust doctors, to take [Children] to doctors, and

to follow-up on medical needs that were extremely life-threatening in this

case.” Id. at 38.

      Additionally, as part of the family service plan, Mother was asked to

participate in a Safe-Care program to learn about safety, health, and bonding

and parent-child interaction.   Id. at 44.     Theresa Chmelik, who ran the

program, testified that Mother completed the safety aspect of the program,

but did not complete the health or parent-child module. Id. at 118-19, 121.

Further, Mother failed to complete the parent-child interaction portion. Id. at

120-21.

      Ms.   Chmelik   noted   that   she   temporarily   suspended   Safe-Care

programming after the stillbirth in August of 2017, because Mother was too

upset and emotional during sessions. Id. at 119.     Ms. Chmelik attempted to

meet with Mother in February and March of 2018. Id. at 120-21. Mother

failed to show for a meeting on March 19, 2018, nine days before OYFS filed

the petition to terminate Mother’s parental rights.      See id. at 121.   Ms.

Chmelik contacted Mother, and Mother stated she forgot about the meeting.

Id. at 121. Ms. Chmelik thereafter closed out her involvement in the case.

Id.


                                     -7-
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      Lisa Kanavy, a visitation supervisor, expressed concerns that Mother

referred to C.J.N. as “very chunky,” “chubby,” and overweight at visits,

although Ms. Kanavy did not think C.J.N. appeared overfed. Id. at 133, 147.

Ms. Kanavy redirected Mother because C.J.N. was brought into care because

he “nearly starved to death.” Id. at 133. Additionally, Ms. Kanavy testified

that, at approximately one-half of Mother’s thirty visits, Mother failed to

recognize the appropriate amount of food or water to give C.J.N. Id. at 153.

      Ms. Kanavy testified that OYFS could not ensure that Mother could safely

care for either of the children because Mother never acknowledged her part in

what occurred with C.J.N.     Id. at 156.   Indeed, Ms. Kanavy noted that,

throughout    her   involvement,   Mother      asserted   that   C.J.N.’s   initial

hospitalization was the result of a cold. Id. at 151. The visits remained line-

of-sight, due to Mother’s criminal charges and lack of progress and compliance

with the family service plan. Id. at 137-38.

      Ms. Wight noted that OYFS did not consider Mother’s failure to attend

Children’s follow up medical appointments in its decision to seek termination

of Mother’s parental rights. Ms. Wight explained that Foster Parent harbored

resentment towards Mother and did not inform Mother or OYFS of the dates

and times of the appointments, making it impossible for Mother to attend.

N.T., 3/21/19, at 66-70.      Ms. Wight acknowledged that, given C.J.N.’s

diagnosis, it would have been important for Mother to attend Children’s

medical appointments. Id.


                                     -8-
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      As to Mother’s nolo contendere plea, Ms. Kanavy testified that she spoke

with Mother’s counsel in the criminal matter and reported that Mother’s visits

with Children went well. Id. at 145. However, Ms. Wight stated that she did

not know how Mother met the conditions of the plea agreement and noted

that she had difficulty contacting the District Attorney’s office. Id. at 111-12.

      As to other portions of the family service plan, Ms. Wight testified that,

although Mother received mental health treatment throughout the case, she

failed to obtain a psychiatric evaluation as required. N.T., 3/21/19, at 32-33.

Further, Mother failed to attend a drug and alcohol treatment program to wean

herself from Subutex, although Ms. Wight acknowledged that Mother’s drug

screens were consistently negative for non-prescribed drugs. Id. at 26-29,

71-73, 90-91.     Moreover, Mother failed to participate consistently in a

mother’s group run by OYFS. Id. at 163.

      As to Children’s best interest, Ms. Wight testified that, when Z.D.N. was

initially removed from Mother’s care, he was behind developmentally. Id. at

39. After a month or two with his Foster Parent, Z.D.N. no longer needed

early intervention. Id. Further, she noted that C.J.N. was generally healthy

following his release from rehabilitation to his paternal grandfather’s home in

May 2017. Id. at 39-40.

      Ms. Wight further testified that Children are doing well together in the

foster home as they have stability, support, and extended family. Id. at 40.

Ms. Wight observed numerous interactions in the foster home, and Children


                                      -9-
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appeared very comfortable and loving. Id. at 42. Ms. Wight believed that

Children are bonded to their foster family, noting they run up to Foster Parent

and his wife. Id. Ms. Wight testified it would be in Children’s best interests

to terminate Mother’s parental rights. Id. at 54-55.

       Ms. Kanavy testified that Mother is very engaging with both Children.5

Id. at 133. Ms. Kanavy asserted that visits went well and Mother was very

nurturing, brought toys and gifts, and would engage with Children throughout.

Id. at 145.

       Nevertheless, Ms. Kanavy testified that C.J.N. is not bonded to Mother.

Id. at 134-35. Ms. Kanavy acknowledged that there is a bond between Mother

and Z.D.N., and that the bond increased, decreased, and then increased over

the course of Mother’s supervised visitations. Id. at 150. Despite the bond

between Z.D.N. and Mother, Ms. Kanavy testified that the bond should be

severed because of the safety risk Mother poses to Z.D.N. Id. at 155-56.

Further, Ms. Kanavy testified that it was important to maintain the bond

between Children. Id. at 156.

       Mother testified on her own behalf. Mother stated that she took C.J.N.

to a pediatrician on January 27, 2017, and was told that because he had a

fever, diarrhea, and was vomiting, he had an ear infection. Id. at 182. The

pediatrician prescribed an antibiotic. Id. According to Mother, C.J.N. began


____________________________________________


5 Ms. Kanavy noted that, although Mother visited consistently, Mother was late
for 75% of her visits. N.T., 3/21/19, at 136-37.

                                          - 10 -
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recovering, but “just over three weeks later[, C.J.N] started with his fever and

vomiting and diarrhea.” Id. By February 26, 2017, C.J.N. looked “horrible,”

and she took him to the emergency room. Id.

       Mother acknowledged that in January of 2017, the pediatrician told her

to take C.J.N. to a primary care physician as soon as possible.       However,

Mother believed that the pediatrician meant to bring C.J.N. for immunizations

as soon as possible. Id. at 243. Mother testified that she “went to registration

to make the appointment,” but was told she already had a preexisting

appointment for immunizations on March 16, 2017. Id. at 238.

       When asked whether she agreed with C.J.N.’s diagnosis of failure to

thrive, Mother responded she was “having a tough time with this,” and

explained that C.J.N. appeared well-nourished and well-developed in January

of 2017, but “then all of a sudden” she was accused of “neglecting [C.J.N] his

entire life.”6 Id. at 184. Mother noted that C.J.N. had a lactose sensitivity

and issues with his formula, which caused some weight issues. Id. at 231-

32. However, Mother conceded that while C.J.N. was in her care, his weight

for his age decreased from around the 40th percentile at the time of his birth

to under the 1st percentile at seven months old. Id. at 232.




____________________________________________


6 On cross-examination, counsel for OYFS confronted Mother with a report
from C.J.N.’s February 26, 2017 hospitalization which indicated that C.J.N.’s
weight was low at the January 27, 2017 appointment. See id. at 237.

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      With respect to the missed C-section appointments and the stillbirth in

August of 2017, Mother claimed that she was unaware of her first appointment

until OYFS told her about it.    Mother then had to reschedule the second

appointment “because [Father] was laying on the floor tripping on cough pills.”

Id. at 208. Mother then attended a visit with Children and then went to the

hospital.

      With respect to Safe-Care, Mother admitted that she did not complete

the programming. Id. at 209. Mother noted that Ms. Chmelik suspended the

programming because Mother “treated it like a counselling session” and “got

too emotional.” Id. When Ms. Chmelik attempted to restart the programming

in February of 2017, there was an initial misunderstanding where the

appointment would take place. Id. at 211. Mother stated she was not aware

of the March of 2017 appointments explaining that her phone might have run

out of minutes and she did not see a text message. Id. Mother testified that

she later asked Ms. Chmelik about restarting, but Ms. Chmelik told her “it was

a waste of everybody’s time and that they were going to file for termination

of [her] rights.” Id. at 230.

      Mother acknowledged calling C.J.N. “chunky” at one visit because his

diaper was too small.     Id. at 204-06.      Mother asserted that OYFS was

attributing Father’s statements to her. Id. at 242. Mother stated that C.J.N.

is a “big boy,” but insisted she “never made fun of him . . . or called him fat .

. . .” Id. at 205. Mother asserted that she asked to have increased levels of


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visitations with Child, but was told that her pending criminal charges required

line-of-sight visits. Id. at 206.

      Mother insisted that she was in substantial compliance with the family

service plan. Mother noted that she was permitted to plead guilty to a lesser

charge based on her compliance with the conditional guilty plea agreement.

Id. at 222-23. Mother emphasized that she was regularly visiting Children,

but acknowledged she was usually late for visits. Mother said she has been

addressing her addiction and mental health issues.         Id. at 187.   Mother

testified that she underwent a mental health evaluation in February of 2018.

Id. at 213. Mother has been seeing Dr. Kuna for mental health therapy. Id.

at 187. Mother and has been using Subutex since August 2014 and has not

had a relapse. Id. Although the most recent family service plan called for

Mother to wean off of Subutex, Mother stated her physicians did not want her

to go off the medication while she was pregnant. Id. at 190. Mother testified

she explored inpatient rehabilitation programs, but was told no one would take

her when she was pregnant.          Id. at 191.   Mother further noted that she

obtained independent housing and was employed. Id. at 195-96.

      Referring to missed doctor’s appointments and OYFS’s refusal to provide

increased visitation, Mother asserted that OYFS did not allow her to progress

toward reunification with Children. Id. at 226. She summarized her position

as follows:

      I just want [Children]. I want to progress. I want to be reunified
      with [Children].

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       I’m not asking to have them back today. Give me a chance to
       actually prove to you that they’re safe at home and that I can take
       care of them. Let me actually follow my family plan like I was
       supposed to from the beginning. I have nothing holding me back
       now. I can be unsupervised with them if [OYFS] would allow it.

Id. at 227.

       At the conclusion of the hearing, the trial court noted Mother’s apparent

apathy at prior hearings, her failure to comply with the parenting plan, and its

belief that reunification with Mother would be detrimental to Children. See

id. at 253-54.       On April 10, 2019, the trial court entered the orders

involuntarily terminating Mother’s parental rights to Children.

       Mother timely filed notices of appeal and concise statements of errors

complained of on appeal on April 22, 2019. Following a remand from this

Court, the trial court authored an opinion pursuant to Pa.R.A.P. 1925(a).7

       On appeal, Mother raises the following issues:

       1. Whether the [trial court] erred as a matter of law and/or
          manifestly abused its discretion in determining [OYFS]
          sustained its burden of proving the termination of [Mother’s]
          parental rights is warranted under Sections 2511(a)(2),
          2511(a)(5) and/or 2511(a)(8) of the Adoption Act?


       2. Even if this Court concludes [OYFS] established statutory
          grounds for the termination of [Mother’s] parental rights,
          whether the [trial court] nevertheless erred as a matter of law
          and/or manifestly abused its discretion in determining [OYFS]
          sustained its additional burden of proving the termination of
          [Mother’s] parental rights is in the best interests of [Children]?
____________________________________________


7 Although none of the parties had the benefit of the trial court’s Rule 1925(a)
opinion when they prepared their briefs, no party has asked to supplement
their initial briefs after the trial court filed its opinion.

                                          - 14 -
J-S47028-19



Mother’s Brief at 5.

      Mother first argues that OYFS did not meet its burden of proof with

respect to Section 2511(a)(2), (5), and (8). Mother asserts:

      As argued before the trial court, at least one (1) [j]udge disagreed
      with [OYFS’s] characterization of Mother’s compliance and
      progress with the [family service plan]. If that were not the case,
      Mother would not have been permitted to withdraw her conditional
      nolo contendere plea to Endangering the Welfare of a Child in
      exchange for her nolo contendere plea to Recklessly Endangering
      Another Person which was specifically premised on her compliance
      with [OYFS].

Id. at 19 (record citations and some capitalization omitted).

      Mother further argues that OYFS mischaracterized her compliance with

the requirements of her family service plan.      Id. at 16.    She notes that

although OYFS characterized Mother’s compliance with the drug and alcohol

objective of her family service plan as moderate, OYFS did not previously

object to her participation in a Subutex program and could not offer evidence

of a single occasion when Mother relapsed. Id. at 20. Mother contends that

she submitted negative drug screens and was not referred to a court

treatment program. Id.

      Further, Mother argues that the failure of Foster Parent and OYFS to

inform Mother of Children’s medical appointments amounted to “lost

opportunities for education of Mother” and prevented Mother from bonding

with Children.   Id.   Mother similarly contends that she was not given the

opportunity for visitation beyond line-of-site visits, and that OYFS was not


                                     - 15 -
J-S47028-19


justified in maintaining line-of-site visits based on Mother’s pending criminal

charges.    Id. at 21.   Mother asserts that the failure to offer unsupervised

visitation prevented her from bonding with Children. Id. at 20. Essentially,

Mother claims that she would have been able to overcome these deficiencies

if she had been afforded the opportunity to attend Children’s medical

appointments or had unsupervised visits. Id. at 21-22.

      We apply the following standard of review when considering an appeal

from an order involuntarily terminating parental rights:

      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).

      The termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938, and requires a bifurcated analysis of

the grounds for termination followed by the needs and welfare of the child.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. 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

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      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). We

have defined clear and convincing evidence as that which 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

C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of

Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).

      Here, the trial court terminated Mother’s parental rights pursuant to

Section 2511(a)(2), (5), (8), and (b). We need only agree with the court’s

determinations as to any one subsection of Section 2511(a), as well as Section

2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). Therefore, we initially analyze the trial court’s decision under Section

2511(a)(8) which provides 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:

                                   *     *      *

         (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

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         parental rights would best serve the needs and welfare of the
         child.

23 Pa.C.S. § 2511(a)(8).

      Once the trial court determines that the twelve-month period exists, it

must next consider whether the conditions that led to the child’s removal

continue to exist. In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). The

“relevant inquiry in this regard is whether the conditions that led to removal

have been remedied and thus whether reunification of parent and child is

imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa. Super.

2009).   Section 2511(a)(8) also requires a court to assess the needs and

welfare of the relevant child or children.    The needs and welfare analysis

“under Section 2511(a)(8) accounts for the needs of the child in addition to

the behavior of the parent” and must be addressed separately before

considering the best interests of a child. See In re C.L.G., 956 A.2d 999,

1008-09 (Pa. Super. 2008) (en banc).

      Section 2511(a)(8), however, does not require consideration of a

parent’s willingness or ability to remedy the conditions that led to the removal

of his or her child. In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa. Super.

2006). Further, a trial court is not required to consider whether the agency

supplied reasonable reunification services. See In re Adoption of C.J.P.,

114 A.3d 1046, 1055 (Pa. Super. 2015) (noting that “nothing in the language

of Section 2511(a)(8) suggests that reasonable reunification services are

necessary to support the termination of parental rights”).



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J-S47028-19


      In its opinion, the trial court concluded that the most concerning aspect

of the case was “Mother’s repeated denial of responsibility, failure to

acknowledge C.J.N.’s near fatality, and minimization of his medical condition.”

Trial Ct. Op., 1/2/20, at 7. The trial court noted, “Mother demonstrated an

inability to conceptualize reality and comprehend her own behavior and the

ensuing consequences.”     Id.     The trial court credited OYFS evidence that

Mother continued the same behavior, failed to utilize the services provided,

and placed Children at risk for future neglect. Id. Furthermore, the trial court

noted that shortly after OYFS took Children into custody, Mother neglected

prenatal care, missed scheduled C-sections, and suffered a stillbirth. Id.

      The trial court explained:

      [Children] were removed from Mother’s care on February 27,
      2017, approximately two (2) years prior to [OYFS’s] termination
      petition. As previously discussed, Mother’s apathetic behavior
      persists, she has been inconsistent in her participation with
      services provided, and she has demonstrated an inability to apply
      any skills imparted through those services in parenting the minor
      children after more than two years. Mother failed to demonstrate
      any changed behavior. Mother has no drug and alcohol support,
      and[,] despite Mother’s visits with Dr. Kuna, the mental health
      and behavioral concerns that led to the filing of this dependency
      action continue to exist and show the risk of future neglect.

                                    *     *      *

      [T]he bond between Mother and C.J.N. is utterly lacking, while the
      bond between Mother and Z.D.N. is inconsistent. This [c]ourt
      noted that C.J.N. showed apprehension during visitation, bouts of
      crying, and excitement when reunited with his paternal
      grandfather. C.J.N. has been in kinship foster care longer than he
      has been in the custody of his Mother. Z.D.N. required early
      intervention support, and has since significantly improved
      developmentally.      Both [Children] attended all medical
      appointments and present with appropriate immunizations. As

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J-S47028-19


      such, this [c]ourt finds termination of Mother’s rights to be in
      [Children’s] best interests.


Trial Ct. Op., 1/2/20, at 8-10.

      Following our review, we find competent evidence supports the trial

court’s conclusions that the termination of Mother’s parental rights was

appropriate under Section 2511(a)(8). Children were removed from Mother’s

care in February 2017, more than one year prior to the filing of the termination

petitions in March 2018, and the hearing in March 2019.         Mother did not

remedy the primary issue that led to Children’s removal, her ability to safely

care for their health.    Mother failed to complete the Safe-Care module

addressing children’s health, made inappropriate comments about C.J.N.’s

weight, and improperly measured food or water. Moreover, Mother did not

acknowledge C.J.N.’s medical diagnosis and continued to believe that his

condition, which was classified as a “near fatality,” was the result of a cold or

the flu. Mother has no bond with C.J.N. While Mother maintains a bond with

Z.D.N., the record supports the trial court’s finding that Mother continues to

“show the risk of future neglect.” Id. at 9.

      While Mother’s argues that her plea of nolo contendere to a lesser

criminal charge demonstrates her compliance with OYFS, the testimony

regarding OYFS’s involvement consisted of Ms. Kanavy recalling that she

informed Mother’s criminal counsel that visits went well.         Regardless of

whether Mother interacted well with Children at the visits, the safety concerns



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J-S47028-19


that led to Children’s removal continued to exist. See I.J., 972 A.2d at 11-

12.

      Moreover, we acknowledge that Mother complied with portions of the

family service plan. However, Mother’s argument that she would be able to

parent Children safely if OYFS afforded her greater opportunities to attend

Children’s medical appointments or have unsupervised visits is entirely

speculative. Moreover, it appears that Mother asserts that OYFS should have

offered more or different services to her. However, the trial court can reject

such arguments. See C.J.P., 114 A.3d at 1055 (“nothing in the language of

Section 2511(a)(8) suggests that reasonable reunification services are

necessary to support the termination of parental rights.”).

      Therefore, having reviewed the record, the trial court’s opinion, and

Mother’s arguments on appeal, we affirm the trial court analysis with respect

to Section 2511(a)(8) was appropriate. See T.S.M., 71 A.3d at 267.

      Mother next argues that OYFS failed to establish “the best interests of

[Children] would be served by terminating [Mother’s] parental rights at this

time.” Mother’s Brief at 23 (emphasis in the original). Mother contends that

her inability to participate in meaningful visitation programs prevented her

from maintaining a bond with Z.D.N. or developing a bond with C.J.N. Id.

Mother asserts that she was prevented from progressing past supervised

visits, and that OYFS had no reason for not permitting her to do so.      Id.




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Mother further argues that her efforts were thwarted because she was not

notified of Children’s medical appointments. Id. at 24.

      Section 2511(b) states:

      (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. § 2511(b).

      Our Supreme Court has stated as follows:

      [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 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.       However, as discussed below,
      evaluation of a child’s bonds is not always an easy task.

T.S.M., 71 A.3d at 267 (some citations omitted).

      With respect to Section 2511(b), the trial court concluded that

termination of Mother’s parental rights best met Children’s needs and welfare,

reasoning:




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      This [c]ourt finds that [Children, who were] placed in kinship
      foster care for approximately two years[,] deserve the
      permanency and stability that they are currently enjoying
      together.     [Children’s] placement in kinship foster care is
      appropriate, stable, involved, and supported.           Importantly,
      [Children] have a recognizable bond with each other. [Foster
      Parent’s] bond with [Children] is “positive.”         For example,
      “[Children] are very comfortable, very loving, . . . they run up to
      [him], they run up to [his wife,] . . . they’re very comfortable in
      the home . . . [, Foster Parent] began providing care and
      nourishment . . . and that’s who [C.J.N.] looks to for support and
      safety. . . . [C.J.N.] calls [Foster Parent] “Bear,” so he definitely
      looks to them as a positive support and his family, that’s his
      family.” Moreover, [Foster Parent] has provided increased family
      interaction and communication with several aunts and uncles.

      Contrastingly, the bond between Mother and C.J.N. is utterly
      lacking, while the bond between Mother and Z.D.N. is
      inconsistent. This [c]ourt noted that C.J.N. showed apprehension
      during visitation, bouts of crying, and excitement when reunited
      with [Foster Parent]. C.J.N. has been in kinship foster care longer
      than he has been in the custody of his Mother. Z.D.N. required
      early intervention support, and has since significantly improved
      developmentally.      Both minor children attended all medical
      appointments and present with appropriate immunizations. As
      such, this [c]ourt finds termination of Mother’s rights to be in the
      minor children’s best interests.

Trial Ct. Op., 1/2/20, at 9-10 (record citations and some formatting altered).

      The credited testimony supports the trial court’s determination that it

would best serve the needs and welfare of Children to involuntarily terminate

Mother’s parental rights pursuant to Section 2511(b). Although Mother argues

that Foster Parent and OYFS placed barriers to her forming a bond with

Children by limiting her ability to attend medical appointments and limiting

visits with Children to line-of-sight, Mother’s argument is too speculative.

Although Mother asserts that she should be given more time to develop or


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strengthen a bond with Children, preserving Mother’s parental rights would

serve only to deny Children the permanence and stability to which they are

entitled. See In re Adoption of C.D.R., 111 A.3d 1212, 1220 (Pa. Super.

2015) (reiterating that “it would not be in [the child’s] best interest for his life

to remain on hold indefinitely in hopes that Mother will one day be able to act

as his parent.”). Accordingly, the trial court did not err in terminating Mother’s

parental rights to Children pursuant to Section 2511(b). See T.S.M., 71 A.3d

at 267.

      For the foregoing reasons, we affirm the orders involuntarily terminating

Mother’s parental rights to Children.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2020




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