J-S36015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF: D.E.A.                     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: E.A., MOTHER                        No. 1647 WDA 2014


               Appeal from the Order entered August 4, 2014
          in the Court of Common Pleas of Westmoreland County
                  Orphans’ Court, at No(s): 151 of 2013-D

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J.                         FILED AUGUST 26, 2015

     E.A. (“Mother”) appeals from the order entered on August 4, 2014,

terminating her parental rights to her female child, D.E.A., born in March

2010, (“Child”) pursuant to Sections 2511(a)(1), (5), (8), and (b) of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2910. We affirm.1

     The Westmoreland County Children’s Bureau (“the Agency”) initially

obtained custody of Child, along with her older brother, R.A., born in May

2004, on March 3, 2011, after a shelter care hearing. Custody was based on

concerns regarding Mother’s drug use and Father’s intoxication while the

children were in their care.   Both children were adjudicated dependent on

March 22, 2011, and legal custody was transferred to a maternal aunt

(“Maternal Aunt”). The case was closed at that time and general protective

services continued.

* Retired Senior Judge assigned to the Superior Court.
1
  C.B. (“Father”) consented to the termination of his parental rights and the
change of goal to adoption of Child; he is not a party to this appeal.
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        Maternal Aunt was unable to continue caring for Child and Mother was

unable to progress with the offered services.      Child and R.A. were again

adjudicated dependent on December 6, 2011.             Child has been under the

custody of the Agency since that time and was once again placed in foster

care.

        Child’s initial permanency goal was reunification with Mother.         The

agency established the following Family Service Plan (“FSP”) objectives for

Mother, in part: to undergo drug and alcohol evaluations and comply with

any recommended treatment, including random drug screens, to undergo a

mental health evaluation and comply with any recommended treatment, to

set up and follow a budget, to obtain proper housing, and to maintain proper

parenting skills.    Throughout the permanency review periods, Mother

continued    to   make   only   minimal     progress    toward   alleviating   the

circumstances that led to placement and only minimally complied with the

FSP.     Mother continued to test positive for illegal substances, including

marijuana, opiates, and cocaine.

        Mother has had supervised visitation with Child since Child was

removed from Mother’s home at the age of 11 months. Mother’s attempts

to interact with Child following her loss of custody have always been under

the supervision of a social worker.

        Based on Mother’s and Father’s lack of compliance and progress, the

Agency filed a Petition to Involuntarily Terminate Parental Rights on


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February 19, 2014. A hearing was scheduled for February 9, 2014, but was

rescheduled and held on April 10, 2014, and July 14, 2014.              On May 22,

2014, following the initial hearing, Child and her siblings were removed from

the foster home in which they were residing and placed in another foster

home.   The agency removed the children because of concerns about the

quality of parenting by the foster mother.

      During the hearings, the trial court was presented evidence showing

that Mother has continued to battle drug addiction, has been in and out of

drug treatment programs, and has passed and failed periodic drug tests. At

the conclusion of the hearing, the court provided Mother’s counsel with an

opportunity   to   submit   authority   in    support   of   her   position   against

termination of Mother’s parental rights, but no authority was submitted

within the ten-day time period allotted. In an order entered on August 4,

2014, the trial court involuntarily terminated both Mother’s and Father’s

parental rights.

      An issue arose regarding proper service of the trial court’s termination

order on Mother’s counsel, as counsel represented that she had not received

a copy of the order.    Mother’s counsel filed a motion raising the matter

before the trial court and the court granted her request to recognize that the

thirty-day period had not yet run in accordance with Pa.R.A.P. 108(a)(1),

due to the lack of service by the court.        On September 16, 2014, Mother




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filed a notice of appeal and a concise statement of errors complained of on

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

     We review the termination decree according to the following standard.

     [A]ppellate courts must apply an abuse of discretion standard
     when considering a trial court’s determination of a petition for
     termination of parental rights. As in dependency cases, our
     standard of review requires an appellate court to accept the
     findings of fact and credibility determinations of the trial court if
     they are supported by the record. If the factual findings are
     supported, appellate courts review to determine if the trial court
     made an error of law or abused its discretion.         As has been
     often stated, an abuse of discretion does not result merely
     because the reviewing court might have reached a different
     conclusion.     Instead, a decision may be reversed for an abuse
     of    discretion    only   upon     demonstration     of    manifest
     unreasonableness, partiality, prejudice, bias, or ill-will.

     As we [have] discussed[, …] there are clear reasons for applying
     an abuse of discretion standard of review in these cases. We
     observed that, unlike trial courts, appellate courts are not
     equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents.          Therefore, even
     where the facts could support an opposite result, as is often the
     case in dependency and termination cases, an appellate court
     must resist the urge to second guess the trial court and impose
     its own credibility determinations and judgment; instead we
     must defer to the trial judges so long as the factual findings are
     supported by the record and the court’s legal conclusions are not
     the result of an error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations

omitted).

     Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.



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     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 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) (citing 23 Pa.C.S.A. §

2511). The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of

parental rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).

     Applying this process to this case, we first look at the termination of

Mother’s rights to Child under section 2511(a).    The trial court terminated

Mother’s rights pursuant to subsections (a)(1), (a)(5), and (a)(8).       This

Court need only agree with the trial court’s decision as to any one subsection

of section 2511(a) in order to affirm the termination.    See In re B.L.W.,

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

     We will therefore examine the facts under section 2511(a)(1) and (b),

which provide as follows.

      § 2511. Grounds for involuntary termination


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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:

         (1) The parent by conduct continuing for a period of at
         least six months immediately preceding the filing of the
         petition either has evidenced a settled purpose of
         relinquishing parental claim to a child or has refused or
         failed to perform parental duties.

                                    ***

     (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)(1), (b).

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence to support the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows.

           To satisfy the requirements of section 2511(a)(1), the
     moving party must produce clear and convincing evidence of
     conduct, sustained for at least the six months prior to the filing
     of the termination petition, which reveals a settled intent to
     relinquish parental claim to a child or a refusal or failure to
     perform parental duties. In addition,

           Section 2511 does not require that the parent
           demonstrate both a settled purpose of relinquishing
           parental claim to a child and refusal or failure to
           perform parental duties. Accordingly, parental rights
           may be terminated pursuant to [s]ection 2511(a)(1)

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            if the parent either demonstrates a settled purpose
            of relinquishing parental claim to a child or fails to
            perform parental duties.

            Once the evidence establishes a failure to perform
            parental duties or a settled purpose of relinquishing
            parental rights, the court must engage in three lines
            of inquiry: (1) the parent’s explanation for his or her
            conduct; (2) the post-abandonment contact between
            parent and child; and (3) consideration of the effect
            of termination of parental rights on the child
            pursuant to [s]ection 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).

      Regarding the definition of “parental duties,” this Court has stated as

follows.

      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 child’s life.

      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 to the best of his or her
      ability, even in difficult 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

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       convenient time to perform one’s parental responsibilities while
       others provide the child with . . . her physical and emotional
       needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

       In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court instructed

that

          [t]o be legally significant, the [post-abandonment] contact
          must be steady and consistent over a period of time,
          contribute to the psychological health of the child, and
          must demonstrate a serious intent on the part of the
          parent to recultivate a parent-child relationship and must
          also demonstrate a willingness and capacity to undertake
          the parental role. The parent wishing to reestablish his
          parental responsibilities bears the burden of proof on this
          question.

Id. at 1119 (quoting In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999)).

       The trial court found that, for a period of at least six months prior to

the Agency’s filing of the petition to terminate Mother’s parental rights,

Mother failed to perform parental duties on behalf of Child.       While Mother

may not have had a settled purpose to relinquish her claim to Child, she

failed to perform parental duties for Child for a period of time exceeding two

years while Child was placed in the care of family members and in the

Agency’s care.    The trial court found that Mother was not the primary

caretaker of Child, and she did not take care of Child’s daily needs with

regard to discipline, education, health care, bathing, bedtime, and feeding.

       The evidence revealed that Mother had visitation throughout Child’s

dependency,    but   the   visits   were   always   supervised   through   Family


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Resources and then through Total Family Services. Carla Rhodes, a licensed

social worker from Total Family Service testified at the hearing that Mother

and Child merely co-existed during the visits. Ms. Rhodes stated that she

could not recall one time when Child requested that Mother play with her.

Mother would frequently choose to bring non-interactive activities, such as

movies, instead of using the time to interact with Child.    Ms. Rhodes further

testified that, even when given the opportunity to conduct activities with

Child, Mother failed to take the opportunity to help or teach Child.        For

example, when Child was unable to do as Mother directed with glue, Mother

took the glue from Child, and used it herself rather than helping Child to

complete the task.

      During visits between Mother and Child, Child’s two siblings were

generally present. Ms. Rhodes testified that, during the visits, Child’s older

brother would step in and take over the parenting role to fulfill Mother’s

shortfalls in caring for all three children.   Ms. Rhodes noted that Child does

not recall a time of living with Mother on a daily basis, and is not familiar

with Mother in a parenting role.

      The trial court determined that, while Mother was consistent in

attending her visitation with Child, Mother did not utilize the opportunities to

interact with Child and perform her parental duties during the visitations.

Thus, the trial court did not err in terminating Mother’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1) based on Mother’s continued failure


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to perform parental duties on behalf of Child for a period of more than six

months preceding the filing of the termination petition in this case.

      We have stated that

      a parent’s basic constitutional right to the custody and rearing of
      his child is converted, upon the failure to fulfill parental duties,
      to the child’s right to have proper parenting and fulfillment of his
      or her potential in a permanent, healthy, safe environment.
      Moreover, the parent wishing to reestablish [his or her] parental
      responsibilities bears the burden of proof relative to post-
      abandonment contact.

In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en banc)

(citations and internal quotation marks omitted). We will not toll the well-

being and permanency of the children indefinitely in the hope that a parent

will summon the ability to handle the responsibilities of parenting them.

See id. at 1007-1008.

      After we determine that the requirements of Section 2511(a) are

satisfied, we proceed to review whether the requirements of subsection (b)

are satisfied.   See id. at 1009.    This Court has stated that the focus in

terminating parental rights under subsection (a) is on the parent, but it is on

the child pursuant to subsection (b). See id. at 1008.

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently 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. …

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      [Our Supreme 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: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and some quotation

marks omitted).

      Regarding subsection (b), the trial court set forth the case law that

provides that the best interest of the child is determined after consideration

of the needs and welfare of the child, and that CYS must prove that

termination is in the child’s best interest by clear and convincing evidence.

      The trial court received testimony from Carol Hughes, a licensed

psychologist.   Ms. Hughes conducted a bonding assessment with Child,

which consisted of observations on June 18, 2013, and on October 17, 2013.

The first observation occurred at the foster home; the second observation

occurred at a supervised observation.

      Ms. Hughes noticed that Child did not seek Mother’s assistance when

she needed help with a task. Instead, Child sought help from Ms. Hughes.

The only interaction that Ms. Hughes observed between Child and Mother

occurred when Child was mirroring the interaction between her older sibling

and Mother.

      Ms. Hughes also questioned whether Mother would be capable of

interacting with Child in a way that would aid her development, and whether

Mother would engage with Child to promote healthy attachment experience.


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Ms. Hughes further determined that Child had no “security in a bond” with

Mother, and had only affection for her. N.T., 7/14/2014, at 40. Ms. Hughes

noted that Child does not exhibit an expectation that Mother is going to

demonstrate involvement with her.

      Also, according to Ms. Rhodes Child did not seek hugs and kisses from

Mother. Ms. Rhodes observed that, out of the 135 times that she observed

Mother, she only saw approximately twelve times when Mother sought

affection from Child. Thus, after one year of services from her agency with

no progress toward reunification, Ms. Rhodes recommended that Mother’s

parental rights be terminated.

      In addition, Susan Storer, an agency caseworker, along with Ms.

Hughes and Ms. Rhodes, recommended           termination of Mother’s parental

rights to best provide for the needs and welfare of Child.

      The trial court also determined that termination serves the best

interests of Child. Child has been in placement for almost three years. Child

was not even a year old at the time of the initial adjudication and barely a

year old at the second adjudication. The court found that the majority of the

life that Child has known has occurred outside of Mother’s care. Ms. Hughes

opined that there would be no significant impact to Child’s development if

Mother’s rights were terminated.     Ms. Hughes stated that Child needs a

caregiver who can provide her with stability and quality parenting.     Child




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needs a caregiver who can provide her with positive and healthy attachment

experiences.

      We observe that Child’s placement did change unexpectedly in May

2014. Child was moved with her siblings to a new pre-adoptive foster home

due to allegations of physical discipline by her former foster mother.    Ms.

Storer testified at the hearing that Child is doing well, and that her new

foster parents are qualified to care for her and love her.   Although Child’s

new foster parents have the potential to be a pre-adoptive home, the statute

requires a child remain in foster parents’ placement for at least six months

before an adoption can occur.

      We find that the trial court appropriately considered all of the factors

for a bond analysis under subsection (b), and its discussion is consistent

with our Supreme Court’s decision in In re: T.S.M. Further, we find the trial

court’s conclusions supported by competent evidence in the record. See In

re: Adoption of S.P., 47 A.3d at 826-27.

      Accordingly, we affirm the trial court’s order terminating Mother’s

parental rights to the Children under Section 2511(a)(1) and (b).

      Order affirmed.

      Judge Jenkins concurs in the result.

      Judge Strassburger files a concurring memorandum in which Judge

Jenkins joins.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2015




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