J-S49030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF N.R.B.                         IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: R.B.S., NATURAL MOTHER

                                                       No. 510 WDA 2017


                Appeal from the Order Entered February 24, 2017
             In the Court of Common Pleas of Westmoreland County
                      Orphans' Court at No(s): 100 of 2015

    IN RE: ADOPTION OF I.E.B.                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




    APPEAL OF: R.B.S., NATURAL MOTHER

                                                      No. 511 WDA 2017


                Appeal from the Order Entered February 24, 2017
             In the Court of Common Pleas of Westmoreland County
                      Orphans' Court at No(s): 99 of 2015

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 31, 2017

        R.B.S. (“Mother”) appeals from the orders granting the petitions of

Children and Youth Services (“CYS”) for the involuntary termination of her

parental rights to her daughter, I.E.B., born March 2008, and her son,
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S49030-17


N.R.B., born October 2010 (collectively, “the Children”).             Upon careful

review, we affirm.

       CYS’s involvement in this case dates back to the birth of I.E.B. in

2008, when CYS received a report that Mother had used drugs during her

pregnancy.     In the ensuing years, Mother has engaged in a cycle of drug

abuse, incarceration, and rehabilitation programs. See Trial Court Opinion,

4/21/17, at 3 (“[t]he fundamental reason for the filing of the Petition and for

the dependency proceeding is [Mother’s] inability to remain free of illegal

drugs and incarceration or institutionalization”).           Mother’s lifestyle has

caused both Children to be placed in the care of family members, although

the Children were not adjudicated dependent until October 2, 2013.             The

Children were placed in their current foster home on August 19, 2014. N.T.,

11/18/16, at 17.

       CYS petitioned for the termination of Mother’s parental rights on

October 23, 2015.1 Termination hearings were conducted on November 17

and 18, 2016, and February 6, 2017.              The trial court entered the orders

terminating Mother’s parental rights to the Children on February 16, 2017.

Mother timely filed two notices of appeal (one for each Child). On April 24,




____________________________________________
1
   CYS also petitioned for the termination of the parental rights of R.J.B.
(“Father”), and he was a party to the proceedings before the trial court. The
trial court terminated both Mother and Father’s parental rights on
February 16, 2017. Father is not a party to this appeal.


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2017 this Court consolidated the two appeals sua sponte. Mother presents

two issues for our review:

      1. When [CYS] is specifically tasked by the legislature with
         providing contact between the parent and the subject
         children, but makes no efforts to allow any type of contact,
         which ultimately results in the once strong bonds to be
         severely disabled and for the children to suffer mental
         anguish, is it proper for the Court to then use the lack of a
         bond and the resultant issues and altered perspective of the
         children as a factor in the termination proceeding?

      2. When [CYS] is required to offer services, that when fully
         complied with and applied should lead to the primary goal of
         reunification, but selectively provide them and/or cause[s]
         the children to resent visits, is it proper for the Court to then
         use the resultant issues as a factor in the termination
         proceeding?

Mother’s Brief at 4.

      We recognize:

      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).




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     Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. § 2511, 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). The

burden is on the petitioner seeking termination to prove by clear and

convincing evidence that the asserted statutory grounds for seeking the

termination of parental rights are met.   In re R.N.J., 985 A.2d 273, 276

(Pa. Super. 2009).

     The trial court determined there was clear and convincing evidence to

terminate Mother’s parental rights to the Children pursuant to 23 Pa.C.S. §

2511(a)(2)(5)(8), and (b), which state:

     (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.

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              ...

              (5) The child has been removed from the care of the
              parent by the court or under a voluntary agreement with
              an agency for a period of at least six months, the
              conditions which led to the removal or placement of the
              child continue to exist, the parent cannot or will not
              remedy those conditions within a reasonable period of
              time, the services or assistance reasonably available to the
              parent are not likely to remedy the conditions which led to
              the removal or placement of the child within a reasonable
              period of time and termination of the parental rights would
              best serve the needs and welfare of the child.

              ...

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

       (b) Other considerations.—The 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.

       Mother does not challenge the trial court’s determination that her

conduct satisfied the statutory grounds for termination set forth in Section

2511(a).     Rather, in both of her issues she focuses on Section 2511(b).2

____________________________________________
2
 Mother fails to divide her argument into two sections, in contravention of
Pa.R.A.P. 2119(a) (“the argument shall be divided into as many parts as
(Footnote Continued Next Page)

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The essence of Mother’s argument is that the trial court erred in determining

that termination would be best for the Children’s needs and welfare because

CYS “made no efforts toward setting up any type of contact despite Mother’s

many requests” and “the lack of contact caused the once strong bond to

dwindle.” Mother’s Brief at 7.3

                 Needs and Welfare under Section 2511(b)

      Mother faults CYS for her lack of contact with the Children, and claims

that her parental rights were improperly terminated because “it was not

Mother who created the on-again, off-again relationship, it was caused by

the agency.”      Mother’s Brief at 13.           Mother concludes, “this case is a

travesty” because CYS did “not make any type of visits or contact available

for many months on end, [and] did so at the expense of the children whose

trauma would have been lessened by constant contact.”                Id.   Mother’s

argument is unavailing.

      The record is clear that Mother, by her actions for all of the Children’s

lives, is responsible for her lack of contact with the Children. With regard to

I.E.B., the trial court determined:


                       _______________________
(Footnote Continued)
there are questions to be argued; and shall have at the head of each part –
in distinctive type or in type distinctively displayed – the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent”).
3
 Again, Mother disregards Pa.R.A.P. 2119 insofar as she cites no case law to
support her argument.


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J-S49030-17


               The facts clearly show that [I.E.B.] bears the scars of the
      dislocation and separation caused by the on-again, off-again
      relationship the Child has had with Mother[]. Further, the Child
      has suffered from the worry and anguish caused by nothing else
      but her parents’ illicit behavior. The bond between Mother and
      the Child has been disfigured and shattered. The Child is now in
      a place where she can feel secure and enjoy some measure of
      stability.    The Child’s behavior has improved and, not
      surprisingly, the Child wants to remain with her foster parents.
      Even at the Child’s tender age, the Child intuitively recognizes
      that Mother [] will never be able to provide the home she wants
      and needs. Mother [] ha[s] already caused too much pain in this
      Child’s life. Accordingly, pursuant to § 2511(b), the Court finds
      that termination of Mother’s rights is in the best interests of the
      Child.

Trial Court Opinion, 4/21/17, at 9 (citations to the record omitted).

Addressing N.R.B., the trial court repeated its determination:

             The facts clearly show that [N.R.B.] bears the scars of the
      dislocation and separation caused by the on-again, off-again
      relationship the Child has had with Mother[]. Further, the Child
      has suffered from the worry and anguish caused by nothing else
      but her parents’ illicit behavior. The bond between Mother and
      the Child has been disfigured and shattered. The Child is now in
      a place where she can feel secure and enjoy some measure of
      stability.    The Child’s behavior has improved and, not
      surprisingly, the Child wants to remain with his foster parents.
      Mother [] ha[s] already caused too much pain in this Child’s life.
      Accordingly, pursuant to § 2511(b), the Court finds that
      termination of Mother’s rights is in the best interests of the
      Child.

Trial Court Opinion, 4/21/17, at 9 (citations to the record omitted).

      The record supports the trial court’s conclusions. Mother concedes her

addiction and the fact that she “was incarcerated for large portions of time

while the [C]hildren were in agency care.” Mother’s Brief at 8, 12. Mother

assails CYS for not facilitating more frequent and regular contact between


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Mother and the Children while she was incarcerated, but disregards the

failed protective services CYS provided to the parties prior to CYS’

assumption of custody of the Children in 2013, and before CYS petitioned for

the termination of Mother’s parental rights on October 23, 2015. As stated

in the petition, “[t]he family has been receiving services from [CYS]

continuously since [November 2011].” Petition for Involuntary Termination

of Parental Rights, 10/23/15, at 10.      For approximately four years, CYS

provided Mother with parenting instruction and supervision, mental health

treatment, and drug and alcohol treatment.         Id.    Nevertheless, at a

permanency review hearing on March 10, 2014, the court determined

Mother “had only minimal compliance . . . as she was unsuccessfully

discharged from both mental health treatment and drug and alcohol

treatment. Mother additionally tested positive for illegal drugs on multiple

occasions and was homeless. All previously ordered services were to remain

and Mother was additionally ordered to obtain stable housing and attend an

orientation for Family Drug Court.” Id.

      In addition, while Mother concedes her drug addiction, she disregards

the impact her history of incarceration and drug rehabilitation, including her

placements throughout Pennsylvania, has had on her capacity to parent and

maintain contact with the Children. CYS explained:

             Mother’s incarceration history is extensive, however,
      relative to the period during which the Children were in Agency
      custody, Mother was first incarcerated in 2014. She remained
      incarcerated until she was paroled from State Correctional

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      Institution (hereinafter ‘SCI’) Muncy in April 2015 to community
      corrections at Renewal, Inc. She remained at Renewal, Inc. until
      July 2015 when she absconded after a positive drug test.
      Mother was arrested for this violation in August 2015. She was
      released to Gateway Rehab where she remained until September
      22, 2015. Mother was then to report to a halfway house, which
      she did not, resulting in another parole violation. Mother was
      ultimately    re-incarcerated    on  December      8,   2015  at
      Westmoreland County Prison where she remained until being
      transferred to SCI Cambridge Springs on April 17, 2016. She
      was released from SCI Cambridge Springs on June 8, 2016 to
      Promise Place halfway house where she remained until August 2,
      2016.

CYS Brief at 6-7 (footnotes omitted).     We note that the Children are from

Westmoreland County, where this case originated.              SCI Muncy is in

Lycoming County; Renewal, Inc. is in Allegheny County; Gateway Rehab is

in Beaver County; SCI Cambridge Springs is in Crawford County; and

Promise Place is in Dauphin County. In light of Mother’s history, CYS cannot

be blamed for the “lack of contact [which] caused the once strong bond to

dwindle” and “causing the on-again, off-again relationship” with the

Children. Mother’s Brief at 7, 13.

      We have stated:

      Before filing a petition for termination of parental rights, the
      Commonwealth is required to make reasonable efforts to
      promote reunification of parent and child. In re Adoption of
      M.E.P., 825 A.2d 1266, 1276 (Pa.Super.2003). However, the
      Commonwealth does not have an obligation to make such efforts
      indefinitely. The Commonwealth has an interest not only in
      family reunification but also in each child’s right to a stable, safe,
      and healthy environment, and the two interests must both be
      considered. Id. “A parent's basic constitutional right to the
      custody and rearing of his or her child is converted, upon the
      parent’s failure to fulfill his or her parental duties, to the child's
      right to have proper parenting and fulfillment of his or her

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     potential in a permanent, healthy, safe environment.” In re
     B.L.W., 843 A.2d 380, 388 (Pa.Super.2004) (en banc), appeal
     denied, 581 Pa. 668, 863 A.2d 1141 (2004) (quoting In re
     B.L.L., 787 A.2d 1007, 1013–14 (Pa.Super.2001)).

In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006). “While a

parent’s emotional bond with his or her child is a major aspect of the

subsection 2511(b) best-interest analysis, it is nonetheless only one of many

factors to be considered by the court when determining what is in the best

interest of the child.” In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.

Super. 2015) (citations omitted); see also In re T.D., 949 A.2d 910, 920–

23 (Pa. Super. 2008), appeal denied, 970 A.2d 1148 (Pa. 2009) (affirming

the termination of parental rights where “obvious emotional ties exist

between [child] and Parents, but Parents are either unwilling or unable to

satisfy the irreducible minimum requirements of parenthood”).

     CYS presented ample evidence in this case that termination of

Mother’s parental rights would serve the Children’s needs and welfare. For

example, Psychologist Carol Patterson testified as an expert “in the field of

bonding and attachment for children and as a psychologist.” N.T., 11/17/16,

at 16.   Ms. Patterson prepared an evaluation based on interviews with

Mother, Father, and the Children’s foster parents. She noted that CYS had

been involved with the family since the birth of I.E.B. in 2008, due to both

parents’ history of drug abuse, incarceration and mental health issues. In

her August 18, 2016 observation of the Children with Mother, she observed

I.E.B. “did not refer to her mother in any way” and “did not initiate any

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affectionate behavior toward her mother.”            Id. at 30-31.     Ms. Patterson

stated that N.R.B. appeared anxious and “did not initiate or participate in

any active conversation with his mother, and actually displayed regressive

behavior.”    Id. at 33.       Ms. Patterson opined, “I think the Children were

never sure if and when the parents were ever going to show up. So a visit

would be scheduled, one of them might be in rehab or incarcerated, and the

visit didn’t happen.    So eventually I’m sure these Children finally said, we

don’t care anymore.”          Id. at 38-39.      Ms. Patterson concluded that both

Children “displayed no bond” with Mother. Id. at 47.

      With regard to the Children’s current placement, Ms. Patterson

testified:

            Well, the Children had several placements prior to their
      final placement with this foster home in August 2014. They
      have been placed with a maternal uncle, placed with maternal
      grandfather.     They had been placed in two different foster
      homes. The Children were obviously not in stable positions
      when they were with their parents in any way. The parents were
      in and out of incarcerations, in and out of rehab facilities. There
      was no stability for these Children until August 2014. That lack
      of stability obviously causes emotional and behavioral problems,
      which the Children displayed with these foster parents. . . . [But
      t]hey obtained stability. They were in a home. They started
      school. They were being cared for, nurtured. They had rules
      and boundaries; all those things that help them grow . . . So
      they found that in August 2014.

N.T., 11/17/16, at 37-38.         The Children refer to their foster parents as

mommy and daddy and evidence a bond with them. Id. at 41; 129. Ms.

Patterson    opined    that    both   Children    “displayed   a   strong   bond   and

attachment” with their foster family.         Id. at 48. Ms. Patterson’s “ultimate

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conclusion” was that reunification with Mother was not in the Children’s best

interests, and that termination of Mother’s parental rights and adoption in

their current foster home would be best for the Children’s needs and welfare.

Id. at 48-49.

      Licensed therapist Sacha Martin testified to working primarily with

children who experienced trauma, including the Children in this case.     Ms.

Martin worked with the Children for a two and a half year period, up until the

termination hearings.    Ms. Martin observed great improvement in both

Children’s stability and mental health, which she attributed to their current

placement. N.T., 11/17/16, at 127-128. She also related I.E.B.’s desire –

for the past two years – to remain in her foster placement. Id. at 123, 125.

Similarly, N.R.B. has expressed his desire to live in the foster home “going

forward.” Id. at 127. Ms. Martin opined that if the Children were removed

from their foster placement, “you would see a decompensation in their

behaviors . . . it would be very traumatic to remove them at this point.” Id.

at 128. The Children consider their foster parents to be their parents. Id.

at 157.

      Supervised Visitation Specialist Tracy Pletcher began working with the

family in August of 2013. In that time, Ms. Pletcher had not observed “any

improvement” in the contact between Mother and the children. Id. at 175.

As recently as the week before the first termination hearing in November of

2016, the Children indicated their worry about being unsupervised with


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Mother, and that Mother “might take them somewhere.” Id. at 170. The

Children have expressed to Ms. Pletcher their desire to stay with their foster

family and be adopted. Id. Ms. Pletcher did not perceive “any harm” from

the termination of Mother’s parental rights. Id. at 181, 185. Conversely,

Ms. Pletcher expressed concern that without termination, the Children would

be “in limbo, and we’re still waiting to see if [Mother] can [be] consistent.

[The Children] are doing well. We have not had that [in the past].” Id. at

184.

       Based on the foregoing, we find Mother’s issues pertaining to CYS and

the Children’s needs and welfare to be without merit.

                 Separate Legal Counsel for the Children

       Mother’s brief contains a single sentence in her Summary of the

Argument that states, “the children were not provided an attorney to

represent their legal interests[.]” Mother’s Brief at 7. She apparently claims

that the Children were entitled to separate legal counsel under our Supreme

Court’s recent decision in In re Adoption of L.B.M., 161 A.3d 172 (Pa.

2017). Both CYS and the Children’s guardian ad litem have discussed the

case in their briefs and argue that that L.B.M. is inapplicable to this case.

We agree.

       In L.B.M., the Supreme Court addressed Section 2313(a) of the

Adoption Act, 23 Pa.C.S. § 2313(a), which requires the trial court to appoint

counsel for children in termination of parental rights cases. In part II-B of


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the lead opinion, Justice Wecht concluded that a trial court is required to

appoint counsel to represent a child’s legal interests even when the child’s

guardian ad litem, who is appointed to represent the child’s best interests, is

an attorney.   However, four members of the Court disagreed with such a

strict application of Section 2313(a).        Rather, they opined, in separate

concurring and dissenting opinions, that separate representation would be

required only if the child’s best interests and legal interests conflicted. In In

re D.L.B., ___ A.3d ___, 2017 WL 2590893 at *5-6 (Pa. Super. 2017), this

Court concluded that the combined opinions of those four justices stated the

governing rule of the L.B.M. decision and that, as a result, appointment of

separate counsel would be required only if such a conflict is shown.         We

agree with and are bound by the interpretation of L.B.M. in In re D.L.B.

      Here, there is no evidence of any conflict between the interests

advocated by Attorney Petonic as guardian ad litem and the interests of the

Children, and our review of the record does not reveal any conflict between

the Children’s legal interests and best interests. Accordingly, we agree with

CYS and the guardian ad litem that the Children were properly represented

during the termination proceedings and no relief on this issue is due.

                                  Conclusion

      We have explained that a parent’s own feelings of love and affection

for a child, alone, do not prevent termination of parental rights. In re Z.P.,

994 A.2d at 1121.      Further, this Court has stated: “[A] parent’s basic


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constitutional right to the custody and rearing of . . . her child is converted,

upon the failure to fulfill . . . her parental duties, to the child’s right to have

proper parenting and fulfillment of [the child’s] potential in a permanent,

healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.

2004) (internal citations omitted). It is well-settled that “we will not toll the

well-being and permanency of [a child] indefinitely.”        In re Adoption of

C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.

Super. 2008) (noting that 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.”)).

      For the reasons discussed above, we discern no abuse of discretion by

the trial court.    Therefore, we affirm the orders terminating Mother’s

parental rights.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017




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