J-S89018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.Z.G., A MINOR                IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA




APPEAL OF: M.T., MOTHER

                                                       No. 1924 EDA 2016


                   Appeal from the Order Entered May 24, 2016
               In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000246-2016
                                        FID 51-FN-472320-2009




IN THE INTEREST OF: B.T., A MINOR                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA




APPEAL OF: M.T., MOTHER

                                                       No. 1928 EDA 2016


                   Appeal from the Order Entered May 24, 2016
               In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000245-2016
                                        FID 51-FN-472320-2009


BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                          FILED JANUARY 09, 2017

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
J-S89018-16



       M.T. (“Mother”), appeals from the decrees entered May 24, 2016 in

the Philadelphia County Court of Common Pleas, which involuntarily

terminated her parental rights to her sons K.Z.G., born in August 2007, and

B.T., born in September 2014.1 We affirm.

       On August 1, 2014, the Philadelphia Department of Human Services

(“DHS”) received a General Protective Services (“GPS”) report alleging that

Mother was in a mental health facility, had left K.Z.G. with an inappropriate

caregiver, and lacked appropriate housing. That same day, DHS obtained an

order of protective custody (“OPC”) and placed K.Z.G. in a foster home. On

August 4, 2014, the trial court held a shelter care hearing, after which it

lifted the OPC and ordered K.Z.G. temporarily committed to the custody and

care of DHS. The trial court subsequently held an adjudicatory hearing on

September 9, 2014, after which K.Z.G. was adjudicated dependent and

committed to the custody and care of DHS. At that time, DHS and the trial

court were aware that Mother had a significant drug history and had failed to

care for her children in the past.

       On September 16, 2014, DHS received a GPS report stating that

Mother tested positive for phencyclidine (“PCP”) at B.T.’s birth the day

before, had not received any prenatal care, had a history of failing to care


____________________________________________


       1
        The trial court also terminated the parental rights of M.G., K.Z.G.’s
putative father, and any putative father of B.T. Neither M.G. nor any
putative father of B.T. has filed an appeal.



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for her children, and had a history of drug abuse.        The GPS report also

provided that B.T. had tested positive for PCP. When B.T. was released from

the hospital on January 9, 2015, DHS obtained an OPC for B.T. On January

12, 2015, the trial court held a shelter care hearing, after which it lifted the

OPC and ordered B.T. temporarily committed to the custody and care of

DHS. The trial court subsequently held an adjudicatory hearing on January

21, 2015, after which B.T. was adjudicated dependent and committed to the

custody and care of DHS.

        The trial court, through a Master, held permanency review hearings

regarding the placement of K.Z.G. and B.T. throughout 2015. Mother was

incarcerated in December 2015 and she is not eligible for release until May

2017.

        On March 16, 2016, DHS filed petitions for a goal change to adoption

and petitions seeking involuntarily termination of Mother’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).       On May 24,

2016, the trial court held a hearing on the termination petitions.       At the

hearing, the trial court heard testimony from Karima Muhammad, a

Community Umbrella Agency case manager from Asociación Puertorriqueños

en Marcha (“APM”), and Mother. Thereafter, the trial court entered decrees

terminating Mother’s parental rights to K.Z.G. and B.T.

        On June 21, 2016, Mother timely filed a notice of appeal, together with

a statement of matters complained of on appeal, pursuant to Pennsylvania




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Rule of Appellate Procedure 1925 (“Rule 1925”).     The trial court issued a

Rule 1925(a) opinion. See Trial Ct. Op., 8/3/16, at 1 (“1925(a) Op.”).

      Mother raises five issues on appeal:

      1. Whether the trial court erred and/or abused its discretion
         by terminating the parental rights of Mother, M.T. pursuant
         to 23 Pa. C.S.A. sections 2511(a)(1) where Mother
         presented evidence that she made efforts to perform her
         parental duties.

      2. Whether the trial court erred and/or abused its discretion
         by terminating the parental rights of Mother, M.T. pursuant
         to 23 Pa. C.S.A. sections 2511(a)(2) where Mother
         presented evidence that she has remedied her situation by
         participating in a drug and alcohol program and parenting
         classes.

      3. Whether the trial court erred and/or abused its discretion
         by terminating the parental rights of Mother, M.T. pursuant
         to 23 Pa. C.S.A. sections 2511(a)(5) where evidence was
         provided to establish that the child was removed from the
         care of the Mother and Mother is capable of caring for the
         child when released from incarceration.

      4. Whether the trial court erred and/or abused its discretion
         by terminating the parental rights of Mother, M.T. pursuant
         to 23 Pa. C.S.A. sections 2511(a)(8) where evidence was
         presented to show that Mother is capable of caring for the
         child when released from incarceration.

      5. Whether the trial court erred and/or abused its discretion
         by terminating the parental rights of Mother, M.T. pursuant
         to 23 Pa. C.S.A. sections 2511(b) where evidence was
         presented that DHS never observed the child with the
         Mother at any time.

Mother’s Br. at 7.

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

review:




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            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).

      Termination of parental rights is governed by section 2511 of the

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

analysis. We have stated:

      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.

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

petitioner must “prove by clear and convincing evidence that [the] asserted

[statutory] grounds for seeking the termination of parental rights are valid.”

In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).         This Court need only

agree with the trial court’s determination under any one subsection of



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section 2511(a), along with section 2511(b), in order to affirm the

termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super.

2004) (en banc).

     We conclude that the trial court properly terminated Mother’s parental

rights under sections 2511(a)(2) and (b), which provide:

        (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).

     To terminate parental rights under section 2511(a)(2), the moving

party must produce clear and convincing evidence regarding the following

elements: “(1) repeated and continued incapacity, abuse, neglect or refusal;


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(2) such incapacity, abuse, neglect or refusal has caused the child to be

without essential parental care, control or subsistence necessary for his

physical or mental well-being; and (3) the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.”          In re Adoption of

M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).

       Our Supreme Court has instructed that incarceration:

            while not a litmus test for termination, can be
            determinative of the question of whether a parent is
            incapable of providing “essential parental care, control or
            subsistence” and the length of the remaining confinement
            can be considered as highly relevant to whether “the
            conditions and causes of the incapacity, abuse, neglect or
            refusal cannot or will not be remedied by the parent,”
            sufficient to provide grounds for termination pursuant to
            23 [Pa.C.S.] § 2511(a)(2). [See In re: E.A.P., 944 A.2d
            79, 85 (Pa. Super. 2008)] (holding termination under §
            2511(a)(2) supported by mother’s repeated incarcerations
            and failure to be present for child, which caused child to be
            without essential care and subsistence for most of her life
            and which cannot be remedied despite mother’s
            compliance with various prison programs).

In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (some internal

citations omitted).2

____________________________________________


       2
           Further, the Supreme Court stated that:

            If a court finds grounds for termination under subsection
            (a)(2), a court must determine whether termination is in
            the best interests of the child, considering the
            developmental, physical, and emotional needs and welfare
            of the child pursuant to § 2511(b). In this regard, trial
            courts must carefully review the individual circumstances
            for every child to determine, inter alia, how a parent’s
(Footnote Continued Next Page)


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      Mother argues that the trial court abused its discretion by terminating

her parental rights.        Mother’s Br. at 15.       According to Mother, she has

“participated in several programs, while incarcerated, to meet her goals and

objectives.”   Id. at 16.        With respect to all four grounds for termination

considered by the trial court, Mother asserts that she cooperated with DHS

in order to meet a number of objectives, including participation in drug and

alcohol counseling, parenting classes, and employment through the prison

kitchen. Id. at 15-18.

      The trial court found that termination was appropriate under section

2511(a)(2). In support of its conclusion, the trial court cited the September

15, 2015 suspension of Mother’s visits with the children after she appeared

intoxicated at the visits, which were never reinstated; 3 Mother’s refusal to

participate in drug screens and a mental health evaluation; and Mother’s

incarceration since December 2015. 1925(a) Op. at 4. The trial court also

found that Mother made no effort to complete any of DHS’s and APM’s

single-case-plan objectives, which required Mother to “1) complete drug and

alcohol   treatment,      2)   complete      mental   health   treatment,   3)   obtain


                       _______________________
(Footnote Continued)

          incarceration will factor into an assessment of the child’s
          best interest.

In re Adoption of S.P., 47 A.3d at 830-31.
      3
       Mother’s resumption of visits with the children was conditioned on
her compliance with random drug screens and treatment.



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appropriate housing, 4) comply with random drug screens, 5) complete [an]

anger management class . . . and, 6) complete [a] parenting class.” 4 Id. at

3.

       The trial court’s credibility determinations and factual findings are

supported by the record and it did not abuse its discretion by terminating

Mother’s parental rights under section 2511(a)(2).         While Muhammad

recognized that Mother is enrolled in a parenting class in prison, she

confirmed that Mother has never completed drug and alcohol treatment,

mental health treatment, or anger management.        N.T, 5/24/16, at 23-24.

Muhammad also stated that Mother did not make herself available to APM,

was not compliant with court-ordered random drug screens, and did not

avail herself of drug and alcohol treatment until she was incarcerated. Id.

at 25-27. Further, DHS entered into evidence reports showing that Mother

failed two drug screens, failed to appear without excuse for two others, and

possibly tampered with another drug screen.       Id. at 26.    The evidence

further established that Mother failed to comply with the court’s permanency

plan and that her visits with the children were suspended and remained

suspended because she did not participate in drug screens and treatment.

Id. at 28.


____________________________________________


       4
        Although the trial court made this finding during its discussion of
section 2511(a)(1), it also is relevant to the issue of whether termination is
proper under section 2511(a)(2).



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       Mother testified that, during her incarceration, she is receiving drug

and alcohol treatment and taking a parenting class.     Id. at 38. However,

Mother did not present evidence that she attempted to comply with her

objectives before incarceration. We have long held that “adequate parenting

requires ‘action as well as intent’ . . . . [as] [p]arents are required to make

diligent efforts toward the reasonably prompt assumption of full parental

responsibilities.”5     In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002)

(quoting In re J.W., 578 A.2d 952, 959 (Pa.Super. 1990)).          Further, “a

parent’s vow to cooperate, after a long period of uncooperativeness

regarding the necessary or availability of services, may properly be rejected

as untimely or disingenuous.” Id. at 340. Here, the evidence shows that:

Mother failed to raise her children in a safe environment, as she lacked

adequate housing and abused drugs; Mother continued to lack adequate

housing and abuse drugs after the children were removed from her custody;

and she is now incapable of caring for them during her incarceration. When

presented with help from DHS and APM, she rejected their assistance and

refused to make any effort towards meeting her objectives, attempted to

conceal her drug usage from the court, and failed to comply with minimum


____________________________________________


       5
        “[A] parent’s basic constitutional right to the custody and rearing of
his or her child is converted, upon the failure to full his or her parental
duties, to the child’s right to have proper parenting and fulfillment of his or
her potential in a permanent, healthy, safe environment.” In re B., N.M.,
856 A.2d 847, 856 (Pa.Super. 2004).



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objectives of screening and treatment to resume visitation with the children.

Under similar circumstances, we have upheld the termination of parental

rights, as this pattern of behavior, regardless of incarceration, demonstrates

incapacity to properly parent.6 In re C.L.G., 956 A.2d 999, 1008 (Pa.Super.

2008) (en banc) (evaluating parent’s pattern of pre-incarceration behavior

and possible effect on child). In sum, we conclude that the record supports

the trial court’s findings of fact and the trial court did not abuse its discretion

in terminating Mother’s parental rights under section 2511(a)(2).

       Next, we review the termination of Mother’s parental rights pursuant

to section 2511(b).         When a trial court determines that grounds for

termination exist under section 2511(a), the trial court must then consider

“whether termination of parental rights would best serve the developmental,

physical, and emotional needs and welfare of the child[ren].”         In re M.T.,

101 A.3d 1163, 1181 (Pa.Super. 2014). While section 2511(a) focuses on

the parent’s conduct, section 2511(b) focuses on the child.         In re C.L.G.,

956 A.2d at 1008.        “We have emphasized that 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 trial court when determining what is in the best interest of the child.”
____________________________________________


       6
         Further, “Pennsylvania law does not compel [continued efforts at
reunification] just because an incarcerated parent participates in prison
programs . . . . [as t]he complete circumstances of the case must be
considered.” In re Z.P., 994 A.2d 1108, 1125 (Pa.Super. 2010).



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In re A.D., 93 A.3d 888, 897 (Pa.Super. 2014). “In cases where there is no

evidence of any bond between the 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).

“The trial court should also examine the intangibles such as the love,

comfort, security, and stability the child might have with the foster parent.”

Id. at 763.

      Mother argues that the trial court abused its discretion by terminating

her parental rights pursuant to section 2511(b). According to Mother, DHS

did not present sufficient evidence concerning the effect, or lack thereof,

that termination would have her children.       Mother’s Br. at 19.     Mother

asserts that Muhammad never observed interactions between Mother and

the children, and “[t]herefore, it is naturally impossible for the social worker

to make an accurate assessment or recommendation as to the parental bond

between Mother and the children.”         Id.    Further, Mother claims that

Muhammad could not state “there would be no irreparable harm to the

children when she never saw [them] interact with . . . Mother.”        Id.   We

disagree.

      The trial court found that termination of Mother’s parental rights was

appropriate under section 2511(b).     In support of its conclusion, the trial

court cited the children’s placement in pre-adoptive homes, where their

foster parents have met their daily needs. 1925(a) Op. at 5. The trial court

also found that the children lack a parent-child bond with Mother, as Mother

refused to participate in the children’s services and K.Z.G. never asked to

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J-S89018-16



visit with Mother.      Id.    Based on those facts, the trial court found that

“neither child would suffer irreparable harm if [Mother’s] parental rights

were terminated,” and “it would be in the best interest of both children [if

Mother’s] parental rights were terminated and they were freed for adoption.”

Id. at 6.

       We conclude that the record supports the trial court’s determination

that there was no bond between Mother and the children that, if severed,

would be detrimental to the children, and that termination of Mother’s

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

Muhammad testified that Mother made no effort to resume visits with the

children, let alone participate in any of their services, and that it was in the

children’s best interests to terminate Mother’s parental rights.          N.T.,

5/24/16, at 26-27, 29. Further, Muhammad testified that K.Z.G. stated “he

didn’t like [Mother[,] . . . [Mother] made him angry,” and he never asked to

visit with Mother.     Id. at 29-30. Muhammad also testified that the foster

parents met the children’s daily needs. Id. at 29. She also believed that

neither K.Z.G. nor B.T., whom Mother has not seen in at least a year, has a

bond with their Mother, and that neither child would suffer irreparable harm

if the trial court terminated Mother’s parental rights.7      Id.   Mother also


____________________________________________


       7
       We have long held that section 2511(b) “does not require a formal
bonding evaluation” and “[w]hen conducting a bonding analysis, . . . court[s
are] not required to use expert testimony.” Z.P., 994 A.2d at 1121. Social
(Footnote Continued Next Page)


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testified that she had not seen the children for approximately one year. Id.

at 39. Therefore, the trial court did not abuse its discretion by terminating

Mother’s parental rights pursuant to section 2511(b).

      Accordingly, we affirm the decrees terminating Mother’s parental rights

based on section 2511(a)(2) and (b).

      Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




                       _______________________
(Footnote Continued)

workers and caseworkers may offer their evaluations as to the parent-child
bond. Id.



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