J-S38014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: N.E.-M., A MINOR                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: M.P., NATURAL MOTHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 222 WDA 2018

               Appeal from the Order Entered January 11, 2018
     In the Court of Common Pleas of Allegheny County Orphans' Court at
                       No(s): CP-02-AP-0000025-2016,
                             CP-02-AP-025-2016


BEFORE:      BOWES, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                               FILED AUGUST 06, 2018

       M.P. (“Mother”) appeals from the order entered January 11, 2018 in the

Court of Common Pleas of Allegheny County, that granted the petition of the

Allegheny County Office of Children, Youth and Families (“CYF”), and

involuntarily terminated her parental rights to her son, N.E.-M.1 After careful

review, we affirm.

       N.E.-M. was born in February 2014. In addition to N.E.-M., Mother has

two other sons with M.E.-M. (“Father”), A.E.-M. (born June 2010), and A.I.E.-

M. (born July 2016). CYF became involved with N.E.-M. in June 2014, due to

concerns about N.E.-M. receiving inappropriate medical care, his weight,

failure to thrive, and possible neglect, as well as Mother’s substance abuse

____________________________________________


1 The order, which is dated December 15, 2017, also terminated the parental
rights of the child’s father, M.E.-M, who did not appeal.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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history. N.T., 7/21/17, at 130. CYF investigated and attempted to work with

N.E.-M.’s family to ensure Mother and Father made and attended medical

appointments, N.E.-M. gained appropriate weight, and the family followed

through with all medical recommendations. Id. at 132. Subsequently, CYF

became aware Mother was hospitalized in a coma. Id. at 132, 137. Based

on prior concerns of domestic abuse, CYF scheduled a follow-up meeting with

the family on August 8, 2014, to perform a safety assessment. Id. at 132-

33. During the visit, the two caseworkers became concerned that Father was

impaired as Father slurred his speech throughout the visit. Id. at 133. Father

reported that he took several Xanax. Id. He appeared unresponsive to the

children, as the caseworkers needed to repeatedly prompt Father to pay

attention to N.E.-M., who was crying. Id. at 133-34. Further, N.E.-M. was

underfed and Father made concerning comments regarding missed medical

appointments. Id. As a result, CYF scheduled a doctor’s appointment for the

afternoon of August 8th. Id. at 134.

      CYF staff took Father and N.E.-M. to the doctor’s appointment. Id. at

135. The appointment revealed N.E.-M. had lost additional weight, and he

needed to go to Children’s Hospital to be admitted for an evaluation. Id. at

136. CYF offered to take Father and N.E.-M. to the hospital.      Id.   Father

became resistant and angry. Id. He gave N.E.-M. to the CYF staff so they

could transport N.E.-M. to the hospital. Id. at 137. Father left the room and

became physically aggressive in the hallway. Id. Eventually, the police were

called.   Id.   Due to safety concerns, CYF obtained an emergency custody

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authorization, and transported N.E.-M. to the hospital.       Id.   The hospital

admitted N.E.-M. for treatment.     Id.   On August 11, 2014, the trial court

entered a shelter care order transferring legal and physical custody of N.E.-M.

to CYF.    The trial court adjudicated N.E.-M. dependent on September 24,

2014.     N.E.-M. has not returned to Mother’s care, and has resided in his

current, pre-adoptive foster home since September 2015. Id. at 151.

        On February 18, 2016, CYF filed a petition for the involuntary

termination of Mother’s and Father’s parental rights to N.E.-M. By order dated

May 24, 2017, the trial court appointed KidsVoice, the guardian ad litem

appointed during the prior juvenile proceeding, as counsel for N.E.-M., then

three years old. However, apparently in reaction to the child’s subsequent

statement to the court-appointed psychologist that he might like to visit his

parents in their home, KidsVoice filed an emergency motion to withdraw from

representation. On September 26, 2017, the trial court granted the motion

summarily and appointed the Office of Conflict Counsel as legal counsel

pursuant to 23 Pa.C.S. § 2313(a).

        The trial court conducted hearings on CYF’s petition on July 21, 2017,

December 8, 2017, and December 15, 2017. CYF presented the testimony of,

inter alia, Kaitlyn Leo, the CYF caseworker, and Patricia Pepe, Ph.D., the court-

appointed psychologist who performed a series of psychological and

interactional evaluations and issued six reports on the family. Mother did not

testify. N.E.-M.’s counsel did not call any witnesses, but he cross-examined




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CYF’s witnesses and argued in favor of terminating Mother’s parental rights. 2

By order dated December 15, 2017, and entered January 11, 2018, the trial

court involuntarily terminated Mother’s parental rights to N.E.-M. pursuant to

23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).

       Thereafter, on February 9, 2018, Mother filed a timely notice of appeal,

along with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i).
____________________________________________


2 Our recent jurisprudence obligates counsel appointed under § 2313(a) to
inquire as to the preference of his client, and we typically vacate the
termination decree and remand for additional proceedings when the certified
record does not demonstrate that counsel has made a satisfactory effort to
make that determination. See e.g., In re T.M.L.M., 184 A.3d 585 (Pa.Super.
2018) (remand for appointment of counsel due to attorney’s failure to
interview 6 year-old child to ascertain child’s preferred outcome); In re
Adoption of M.D.Q., __ A.3d __, 2018 WL 3322744 (Pa.Super. 2018)
(remanded to determine preference of 6 year-old child); In re Adoption of
D.M.C., __ A.3d __, 2018 WL 3341686 (Pa.Super. 2018) (remand to ensure
representation of 14 year-old child’s preference—telephone conversation was
insufficient for attorney to determine preference and properly advocate for
child’s legal interests).

However, unlike each of the foregoing cases, where remand was necessary to
determine the preferences of two 6 year olds and a teenager, it is unlikely
that the three-year-old child in the case at bar is capable of providing any
input about his preferred outcome in this case, much less actually articulating
a preference in favor of preserving parental rights. Indeed, the only hint of a
preference occurred when, in the presence of Mother and Father, three-year-
old, N.E.-M. identified his foster parents as his “family,” and noted a desire
to visit Mother and Father at their home. In light of counsel’s presumptive
effectiveness and mindful that some of the supervised visitations had occurred
at Mother’s home, we do not interpret the child’s isolated remark as indicative
of a preference. Thus, we discern no reason to remand the case for further
proceedings. See In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017) (there
is no conflict between a child’s best and legal interests when child is unable to
express preferred outcome).


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      Mother raises the following issue for review:

   1. Did the trial court abuse its discretion and/or err as a matter of
      law in concluding that termination of . . .Mother’s parental rights
      would serve the needs and welfare of [N.E.-M.] pursuant to 23
      Pa.C.S. § 2511(b)[?]

Mother’s brief at 6.

      We review this 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 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 § 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.

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

       We have defined clear and convincing evidence as that which is so

“clear, direct, weighty and convincing as to enable the trier of fact to come to

a clear conviction, without hesitance, of the truth of the precise facts in issue.”

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

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

       Instantly, Mother’s argument only implicates the trial court’s analysis

pursuant to § 2511(b),3 which provides as follows:

       (b) Other considerations.--The court in terminating the rights
       of a parent shall give primary consideration to the developmental,
       physical and emotional needs and welfare of the child. The rights
       of a parent shall not be terminated solely on the basis of
       environmental factors such as inadequate housing, furnishings,
       income, clothing and medical care if found to be beyond the
       control of the parent. With respect to any petition filed pursuant
       to subsection (a)(1), (6) or (8), the court shall not consider any
       efforts by the parent to remedy the conditions described therein
       which are first initiated subsequent to the giving of notice of the
       filing of the petition.

23 Pa.C.S. § 2511(b).

       This Court has stated that the focus in terminating parental rights under

§ 2511(a) is on the parent, but it is on the child pursuant to § 2511(b). See

____________________________________________


3 Mother acknowledges CYF “did clearly and convincingly establish threshold
grounds for termination pursuant to 23 Pa.C.S. §2511(a)(2).” Mother’s brief
at 16. Accordingly, Mother concedes CYF established, by clear and convincing
evidence, “[t]he 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.” See 23 Pa.C.S. § 2511(a)(2).

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In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc).

In reviewing the evidence in support of termination under § 2511(b), our

Supreme Court has stated as follows.

     [I]f the grounds for termination under subsection (a) are met, a
     court “shall give primary consideration to the developmental,
     physical and emotional needs and welfare of the child.” 23 Pa.C.S.
     § 2511(b). The emotional needs and welfare of the child have
     been properly interpreted to include “[i]ntangibles such as love,
     comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
     (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
     this Court held that the determination of the child’s “needs and
     welfare” requires consideration of the emotional bonds between
     the parent and child. The “utmost attention” should be paid to
     discerning the effect on the child of permanently severing the
     parental bond. In re K.M., 53 A.3d at 791.

In re: T.S.M., supra at 267 (Pa. 2013).

     A parent’s abuse and neglect are likewise a relevant part of this analysis:

     concluding a child has a beneficial bond with a parent simply
     because the child harbors affection for the parent is not only
     dangerous, it is logically unsound. If a child’s feelings were the
     dispositive factor in the bonding analysis, the analysis would be
     reduced to an exercise in semantics as it is the rare child who,
     after being subject to neglect and abuse, is able to sift through
     the emotional wreckage and completely disavow a parent . . . Nor
     are we of the opinion that the biological connection between [the
     parent] and the children is sufficient in of itself, or when
     considered in connection with a child’s feelings toward a parent,
     to establish a de facto beneficial bond exists. The psychological
     aspect of parenthood is more important in terms of the
     development of the child and [his or her] mental and emotional
     health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa.Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

of the child. In re K.Z.S., 946 A.2d 753, 763 (Pa.Super. 2008) (affirming



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involuntary termination of parental rights, despite existence of some bond,

where placement with mother would be contrary to child’s best interests).

Indeed, “a parent’s basic 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).

      Mother asserts that the trial court improperly utilized “fault-based and

comparative analyses” with regard to its decision to terminate her parental

rights pursuant to § 2511(b). Mother’s brief at 21. She objects to the trial

court referencing her compliance, or lack thereof, with court-ordered goals.

Id. Mother also contends that the trial court improperly considered N.E.-M.’s

relationship with his foster parents, and the perceived benefits of N.E.-M.

remaining with his foster parents through adoption. Id. We disagree.

      Here, the trial court considered Mother’s compliance with her court-

ordered goals in connection with the developmental, physical, and emotional

needs and welfare of N.E.-M. With respect to supervised visitation, the trial

court noted Mother’s numerous missed visits, her lack of progress and

parenting skills, safety issues that occurred during the visits, and Mother

attending supervised visits with slurred speech or a lack of balance.       Trial

Court Opinion, 3/12/18, at 12-13.      The trial court also discussed Mother’s

inability to independently schedule medical appointments, or to verbalize

N.E.-M.’s medical history, or his educational and medical needs. Id. at 13.

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Additionally, the trial court recounted Dr. Pepe’s evaluations, including Dr.

Pepe’s conclusion that N.E.-M. has a significant bond with his foster parents

and recognizes them as his primary and psychological parents. Id. at 14. The

trial court also credited Dr. Pepe’s testimony that N.E.-M. does not exhibit

signs of a primary attachment to Mother. Id. The trial court concluded:

     Mother has been provided with ample resources to address
     parenting, domestic violence, mental health treatment, and drug
     and alcohol treatment. She has made minimal progress on each
     of her court ordered goals. Mother has not been consistent with
     mental health treatment or drug and alcohol treatment
     throughout the history of the case. Mother has not attended
     random drug screens consistently. She has engaged in domestic
     violence therapy sporadically. Mother has been unable to care for
     her own safety and has never been able to create a safe and stable
     environment for her child. She has never been able to make
     enough progress to have the child returned to her care. Mother
     does not possess the ability to parent her child or meet his basic
     needs. The child has a secure attachment and bond with his foster
     parents. He has been in care since his removal in August of 2014.
     The child deserves the comfort, support and permanency that his
     current foster home offers to him.

Trial Court Opinion, 3/12/18, at 14-15 (footnote omitted).

     The certified record supports the trial court’s conclusion that N.E.-M.’s

developmental, physical, and emotional needs and welfare are served by

terminating Mother’s parental rights. N.E.-M. has not returned to Mother’s

care and has resided in his current foster home since September 2015. N.T.,

7/21/17, at 151. As noted, the foster home is an adoptive resource. Id.

N.E.-M. spontaneously provides affection to his foster parents, playing with

them and offering hugs. N.T., 12/8/17, at 75. Kaitlyn Leo, the caseworker,



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testified N.E.-M. calls his foster parents “mommy” and “daddy.” Id. at 75-76.

Ms. Leo observed a significant bond between N.E.-M. and his foster parents.

Id.

      Likewise, Dr. Pepe opined that N.E.-M. clearly considers his foster

parents to be his primary and psychological parents.     Id. at 133-34, 148.

Although Dr. Pepe noted some bonding behavior between N.E.-M. and Mother,

she testified that N.E.-M. made a good transition to his foster home,

consistently interacted with his foster parents, and exhibited multiple bonding

behaviors with his foster parents suggestive of a primary attachment. Id. at

122, 127. N.E.-M. appeared very happy and connected to his foster parents,

and had a great deal of separation anxiety when they were not there. Id. at

127, 134. Dr. Pepe testified that when she asked N.E.-M. to draw a picture

of his family, the picture clearly depicted him living with his foster parents.

Id. at 146, Exhibit 6 at 17. After drawing the picture, N.E.-M. stated he has

to stay with his foster parents, but wanted to visit Mother and Father. N.T.,

12/8/17, at 146. Dr. Pepe opined N.E.-M. might wonder where his biological

parents are at some point, but that it is more important for him to have

permanency through adoption. Id. at 149. While N.E.-M. might miss Mother,

Dr. Pepe did not believe termination of Mother’s parental rights would cause

severe psychological trauma. Id. at 150. Conversely, Dr. Pepe opined N.E.-

M. would be deeply and negatively impacted if he were removed from his

foster parents. Id. at 155.




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      While Mother argues the trial court erred by inappropriately undertaking

a fault-based analysis, this Court has recently held:


      [f]inally, we reject Mother’s assertion that the orphans’ court
      placed an undue emphasis on her failings as a parent. Mother is
      correct that Section 2511(b) focuses on the welfare of Child, and
      not Mother’s parental incapacity. However, it is beyond cavil that
      Mother’s incapacity, and the likelihood that she will never remedy
      that incapacity, which she has conceded, is an important
      consideration when determining what is best for Children. See
      C.D.R., 111 A.3d at 1220 (citing In re Adoption of M.E.P., 825
      A.2d 1266, 1276 (Pa. Super. 2003) ) (“Clearly, it would not be in
      Child’s best interest for his life to remain on hold indefinitely in
      hopes that Mother will one day be able to act as his parent.”).

In re G.M.S., __ A.3d __, 2018 WL 3371967 at *6 (Pa.Super. filed July 11,

2018).

      Here, Mother has similarly conceded her parental incapacity, and the

trial court appropriately considered Mother’s actions in evaluating whether

involuntarily terminating Mother’s parental rights serves N.E.-M.’s needs and

welfare.    With regard to Mother’s argument that the trial court improperly

engaged in a comparative analysis with respect to N.E.-M.’s relationship with

his foster parents, we again discern no abuse of discretion or error of law. To

the contrary, our Supreme Court has explained that a child’s relationship with

his or her pre-adoptive foster parents is an important part of the § 2511(b)

analysis.    T.S.M., supra at 268 (“Common sense dictates that courts

considering termination must also consider whether the children are in a pre-

adoptive home and whether they have a bond with their foster parents.”).

Based on the foregoing, we conclude the trial court did not abuse its discretion


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or commit an error of law by involuntarily terminating Mother’s parental rights

to N.E.-M. Therefore, we affirm the trial court’s order.


      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2018




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