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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: X.J.                                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

APPEAL OF: D.C.A., MOTHER                        No. 1004 MDA 2015


                      Appeal from the Decree May 11, 2015,
               in the Court of Common Pleas of Lancaster County,
                     Orphans’ Court, at No(s): 1661 of 2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 13, 2015

        D.C.A. (“Mother”) appeals from the decree entered May 11, 2015, in

the Court of Common Pleas of Lancaster County, which involuntarily

terminated her parental rights to her minor son, X.J. (“Child”), born in July

of 2010. We affirm.

        A prior panel of this Court summarized the relevant factual and

procedural history of this matter, as follows.

           [Child] was removed from Mother’s care as a result of
           Mother’s alleged drug use, and following an incident in
           which [Child] was left unsupervised for an extended period
           of time. Because of Mother’s neglect, [Child] fell out of a
           bassinet/playpen and fractured his arm. The Lancaster
           County Children and Youth Social Service Agency (the
           Agency) filed a petition for temporary custody of [Child],
           along with a shelter care application and motion for a
           finding of aggravated circumstances.          [Child] was
           adjudicated dependent on May 29, 2013.[1]           Mother

*
    Former Justice specially assigned to the Superior Court.
1
  The juvenile court also found aggravated circumstances, and ordered that
the Agency need not make efforts to reunify Mother with Child. Additionally,
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         appealed, and a panel of this Court affirmed the juvenile
         court’s order on November 7, 2013. See In re X.J., 91
         A.3d 1276 (Pa. Super. 2013) (unpublished memorandum).
         Mother did not file a petition for allowance of appeal with
         our Supreme Court.

            Meanwhile, on July 25, 2013, the Agency filed a petition
         to terminate Mother and Father’s parental rights to [Child].
         The orphans’ court held a termination hearing on March
         17, 2014. Mother did not appear at said hearing. The
         orphans’ court issued a decree terminating Mother’s
         parental rights, dated March 17, 2014, and entered April
         21, 2014.[2] Also on April 21, 2014, Mother filed a notice
         of appeal, along with a concise statement of errors
         complained of on appeal pursuant to Pennsylvania Rule of
         Appellate Procedure 1925(a)(2)(i).

In re X.J., 105 A.3d 1, 2-3 (Pa. Super. 2014) (footnotes omitted).

      On November 20, 2014, this Court vacated the April 21, 2014,

termination decree.   Id. at 7.   The panel reasoned that Mother was not

represented by counsel during the March 17, 2014 termination hearing and

was not advised of her right to counsel. Id. The panel remanded the case,

“for a new termination hearing, before which the orphans’ court shall advise

Mother of her counsel rights, appoint counsel for Mother, or affirmatively

determine that Mother does not qualify for counsel.” Id.




the record indicates that Mother’s visits with Child were ended, although it is
not clear whether the visits were ended at the same time Child was
adjudicated dependent. At the latest, Mother’s visits were ended prior to an
October 21, 2013 status review hearing. See N.T., 10/23/13, at 8, 11.
2
  That decree also terminated the parental rights of Child’s father, H.W.R.
H.W.R. did not appeal the termination of his parental rights.




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      On December 11, 2014, the orphans’ court appointed a new attorney

for Mother.     A new termination hearing was held on May 11, 2015.

Following the hearing, the court entered a decree again terminating Mother’s

parental rights.   Mother timely filed a notice of appeal on June 10, 2015,

along with a concise statement of errors complained of on appeal.

      Mother now raises the following issue for our review.        “Whether the

[orphans’] court erred when it terminated the parental rights of the

biological Mother[?]” Mother’s Brief at 7.

      Mother argues that the orphans’ court placed too much weight on her

recent incarceration when deciding to terminate her parental rights. Id. at

10, 12. Mother emphasizes that she was attending mental health treatment

and drug abuse counseling prior to being incarcerated. Id. at 12. Mother

contends that the orphans’ court “should have demonstrated some leniency

and an extension of time should have been afforded.” Id. at 10, 12.

      We consider Mother’s claim mindful of our well-settled standard of

review.

             The standard of review in termination of parental rights
          cases requires appellate courts to accept the findings of
          fact and credibility determinations of the trial court if they
          are supported by the record. If the factual findings are
          supported, appellate courts review to determine if the trial
          court made an error of law or abused its discretion. A
          decision may be reversed for an abuse of discretion only
          upon demonstration of manifest unreasonableness,
          partiality, prejudice, bias, or ill-will.  The trial court’s
          decision, however, should not be reversed merely because
          the record would support a different result. We have
          previously emphasized our deference to trial courts that


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            often have first-hand observations of the parties spanning
            multiple hearings.

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

quotation marks omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated

analysis.

            Initially, the focus is on the conduct of the parent. The
            party seeking termination must prove by clear and
            convincing evidence that the parent’s conduct satisfies the
            statutory grounds for termination delineated in Section
            2511(a). Only if the court determines that the parent’s
            conduct warrants termination of his or her parental rights
            does the court engage in the second part of the analysis
            pursuant to Section 2511(b): determination of the needs
            and welfare of the child under the standard of best
            interests of the child. One major aspect of the needs and
            welfare analysis concerns the nature and status of the
            emotional bond between parent and child, with close
            attention paid to the effect on the child of permanently
            severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      In this case, the orphans’ court terminated Mother’s parental rights

pursuant to Sections 2511(a)(1), (2), (5), and (8). We need only agree with

the orphans’ court as to any one subsection of Section 2511(a), as well as

Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc). Here, we analyze the court’s decision to terminate

under Sections 2511(a)(2) and (b), which provide as follows.




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        (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. § 2511(a)(2), (b).

     We first address whether the orphans’ court abused its discretion by

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

        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.



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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted).   “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) (citations omitted).   “[A] parent’s incarceration is relevant to the

section (a)(2) analysis and, depending on the circumstances of the case, it

may be dispositive of a parent’s ability to provide the ‘essential parental

care, control or subsistence’ that the section contemplates.” In re A.D., 93

A.3d 888, 897 (Pa. Super. 2014) (citation omitted).

     The record reveals that Mother first became known to the Agency in

1993. Agency’s Ex. 2, at 1. In March of 1993, the Agency received reports

indicating that Mother’s daughter, N., had been sexually abused by her

father, M.A. Id. In May of 1993, the Agency received reports that Mother

was failing to provide adequate care for N., and for her other daughter, D.

Id. Protective services were provided to the family. Id.

     In March of 1996, the Agency received a report indicating that Mother

was abusing drugs and alcohol and failing to supervise her daughters. Id. at

2. Mother was involuntarily committed to a mental health facility, and the

children were placed in foster care. Id. During this time, it was discovered

that D. had cigarette burns on her back.     Id.      D. reported that Mother




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caused the burns, and a founded report of child abuse was issued in June of

1996. Id.

     In July of 1996, the Agency received a report that Mother had allowed

unsupervised contact between her daughters and M.A.         Id.   A report of

sexual abuse was indicated as to Mother in September of 1996. Id. Mother

was provided with a reunification plan to regain custody of the children. Id.

However, Mother failed to comply, and her parental rights to N. and D. were

involuntarily terminated in February of 2000. Id.

     Mother gave birth to a son, J., in July of 2005. Id. J. was placed in

foster care only a few days after his birth, due to concerns regarding

Mother’s drug use and “untreated mental health,” and because an

emergency caregiver had not been identified.     Id.   Mother again failed to

comply with the Agency’s reunification plan, and Mother’s parental rights to

J. were involuntarily terminated in August of 2007.3 Id.

     With respect to the instant matter, Agency caseworker, Rene Dolly,

testified that she was assigned to Child’s case on March 31, 2014.      N.T.,

5/11/15, at 4-5. Ms. Dolly “had a few phone calls” with Mother in March of

2015, and met with Mother at the Agency at some point prior to March. Id.

at 6, 8-9.   During this meeting, Mother signed releases so that Ms. Dolly

could speak with Mother’s counselor at T.W. Ponessa. Id. at 7. Ms. Dolly

3
 Mother also gave birth to a son, T., in 1992, who was privately adopted.
Agency’s Ex. 2, at 1. It is not clear when the adoption of T. took place.




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contacted Mother’s counselor, who reported that Mother was attending

substance abuse and mental health counseling. Id. Mother was attending

treatment weekly, and she was compliant with her treatment goals. Id. at

7-8.

       Ms. Dolly also spoke with Mother’s Dauphin County probation officer,

who reported that Mother was on probation due to 2012 convictions of

endangering the welfare of a child and use or possession of drug

paraphernalia. Id. at 8-9. Mother was incarcerated in Dauphin County just

prior to the March 17, 2014 termination hearing, and remained incarcerated

for an unspecified period of time.    Id. at 9.    Mother’s Lancaster County

probation officer reported that Mother was on probation due to 2014

convictions for driving under the influence, use or possession of drug

paraphernalia, and disorderly conduct.         Id. at 9-10.   As part of her

probation, Mother was required to complete, inter alia, an “alcohol highway

safety class.” Id. at 10. Mother failed to comply with the requirements of

her probation, and was incarcerated in April of 2015. Id. at 11. Ms. Dolly

explained Mother’s incarceration as follows.

         Q. And do you know what led to her most recent
         incarceration?

         A. Yes. [Mother] had a recent hearing in front of Judge
         Wright because she had not completed the alcohol safety
         class. When she appeared in front of Judge Wright, he felt
         that she was visibly intoxicated at that point and had
         ordered her to have a screen that day before she left the
         courthouse.     And [Mother] did not appear for her
         screening, and they ended up picking her up in New York.


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Id.; Agency’s Ex. 3, at 1-2.      Mother’s Lancaster County probation officer

expected that Mother would remain incarcerated “for some time.”          N.T.,

5/11/15, at 12.

      Based on this evidence, the orphans’ court found that Mother has a

history of parental incapacity.    Orphans’ Court Op., 7/7/15, at 7-8.    The

court reasoned that Mother has harmed Child, both physically and

emotionally, and that Mother has shown “no indication whatsoever that she

can change her ways of dealing with her child. . . . The [c]ourt has nothing

before it in the record but a sad history of abuse and neglect.” Id.

      After careful review, we conclude that the orphans’ court did not abuse

its discretion by involuntarily terminating Mother’s parental rights to Child.

See In re T.S.M., 71 A.3d at 267.         For over twenty years, Mother has

demonstrated that she is incapable of being a parent. See, e.g., Agency’s

Ex. 2, at 1. Mother has had ample opportunities to remedy her substance

abuse, mental health, and legal issues, and she has repeatedly failed to do

so. See, e.g., id. Mother’s parental incapacity has left Child without proper

parental care, control, or subsistence, and the record substantiates the

orphans’ court’s determination that Mother cannot, or will not, remedy this

incapacity. Mother is not entitled to relief.




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     We next consider whether the orphans’ court abused its discretion by

terminating Mother’s parental rights under Section 2511(b). 4        We have

discussed our analysis under Section 2511(b) as follows.

              Subsection 2511(b) focuses on whether termination of
          parental rights would best serve the developmental,
          physical, and emotional needs and welfare of the child. In
          In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this
          Court stated, “Intangibles such as love, comfort, security,
          and stability are involved in the inquiry into the needs and
          welfare of the child.” In addition, we instructed that the
          trial court must also discern the nature and status of the
          parent-child bond, with utmost attention to the effect on
          the child of permanently severing that bond.             Id.
          However, in cases where there is no evidence of a bond
          between a parent and child, it is reasonable to infer that
          no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.
          Super. 2008). Accordingly, the extent of the bond-effect
          analysis necessarily depends on the circumstances of the
          particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

     Ms. Dolly testified that she visits Child once a month or once every two

months.    N.T., 5/11/15, at 14.     Child seeks out his pre-adoptive foster

parents for love, care, and comfort, and to meet his basic needs. Id. at 15.

Child gets along with the foster parents’ biological sons, and they “act like

very typical siblings . . . .” Id. A bonding assessment was conducted by Dr.

Suzanne Ali, who concluded that disrupting the bond between Child and his


4
  While Mother does not discuss Section 2511(b) in the argument section of
his brief, we will nonetheless consider this issue. See In re C.L.G., 956
A.2d 999, 1010 (Pa. Super. 2008) (en banc) (considering Section 2511(b)
despite the appellant’s failure to challenge the orphan court’s analysis).




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foster parents would be detrimental to Child. Id. Ms. Dolly indicated that

terminating Mother’s parental rights would be in the best interest of Child, so

that Child can be adopted and have a stable and permanent home. Id. at

15-16.   Maintaining Child in foster care would cause greater harm to him

than terminating Mother’s parental rights. Id. at 16.

      The orphans’ court found that it would best serve Child’s needs and

welfare to be adopted by his foster family. Orphans’ Court Op., 7/7/15, at

9. The court emphasized that Child is bonded with his foster family and that

Child has no relationship with Mother. Id.

      We again discern no abuse of discretion. See In re T.S.M., 71 A.3d

at 267. The record indicates that Child has had no visits with Mother since

at least October of 2013.    Thus, there is no reason to believe that Child

continues to share a necessary or beneficial bond with Mother. Conversely,

Child is bonded with his foster family, with whom he has resided since

December of 2012.     The record supports the orphan court’s determination

that Child’s needs and welfare would best be served by terminating Mother’s

parental rights and allowing Child to be adopted by his foster parents. See

id.

      For the foregoing reasons, we affirm the decree of the orphans’ court

involuntarily terminating Mother’s parental rights to Child.




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     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015




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