J-S53002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: X. E. A., A MINOR          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
APPEAL OF: F. M. R., MOTHER
                                                     No. 817 EDA 2017


             Appeal from the Decree Entered February 2, 2017
           In the Court of Common Pleas of Philadelphia County
                           Family Court at No(s):
                         CP-51-AP-0000919-2015
                         CP-51-DP-0001708-2013


IN THE INTEREST OF: X. A. A., A MINOR          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
APPEAL OF: F. M. R., MOTHER
                                                     No. 822 EDA 2017


             Appeal from the Decree Entered February 2, 2017
           In the Court of Common Pleas of Philadelphia County
                           Family Court at No(s):
                         CP-51-AP-0000954-2015
                         CP-51-DP-0001721-2013


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 11, 2017

      F.M.R. (“Mother”) appeals from the decrees entered February 2, 2017,

in the Court of Common Pleas of Philadelphia County, which involuntarily

terminated Mother’s parental rights to her minor twin children, daughter

X.E.A., and son X.A.A. (collectively, “the Children”) (born in August of

2013), pursuant to sections 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b) of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938. After careful review of the record

and applicable law, we affirm.
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     The trial court set forth the following findings of fact in its Pa.R.A.P.

1925(a) opinion:

           On August 10, 2013, [Philadelphia County Department of
     Human Services, Children and Youth Division (“DHS”)] received
     a General Protective Services (“GPS”) Report stating Mother
     gave birth to the twin Children [in August of 2013] at Temple
     University Hospital (“TUH”). The GPS alleged the [Children]
     were born at 36 weeks gestation and each weighed less than five
     (5) pounds at birth. Prior to the birth of her Children, Mother
     had been arrested on May 6, 2013[,] due to an active bench
     warrant.   On August 13, 2013, DHS obtained an Order of
     Protective Custody (“OPC”) for Child[,] X.E.A. On August 14,
     2013, DHS obtained an OPC for Child[,] X.A.A.

          An adjudicatory hearing was held on August 30, 2013.
     The Honorable Jonathan Irvine adjudicated the Children
     dependent due in part to Mother’s incarceration at the Curran-
     Fromhold Correctional Facility.

           Mother was released from prison on February 2, 2015. At
     the permanency review hearing on February 9, 2015, Mother
     appeared before the Honorable Jonathan Irvine, who ordered[:]
     (1) that the Children remain as committed; (2) Mother was to
     visit the Children weekly; (3) Mother was referred to the
     [c]ourt’s Clinical Evaluation Unit (“CEU”) for a dual diagnosis and
     random drug screens; and that (4) Mother be referred to the
     Achieving Reunification Center (“ARC”) for services.

           On May 12, 2015, CEU completed a Progress Report
     regarding Mother stating that she failed to complete a drug and
     alcohol assessment as ordered by the [c]ourt. On November 4,
     2015, Mother gave birth to another child. Mother had failed to
     receive substance abuse treatment during her pregnancy and
     was discharged from the ARC program twice for noncompliance.

            On or about December 22, 2016, DHS filed the underlying
     Petition to Terminate Mother’s Parental Rights to the Children[,]
     X.E.A. and X.A.A. On February 2, 2017, this [c]ourt terminated
     Mother’s parental rights to Children pursuant to 23 Pa.C.S.[] §
     2511(a)(1)[,](2)[,](5)[,] and (8). The [c]ourt also ruled that
     termination of Mother’s parental rights was in the best interests
     of the Children pursuant to 23 Pa.C.S.[] § 2511(b). The [c]ourt
     ordered that the Children’s goal be changed to adoption.

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Trial Court Opinion (“TCO”), 4/24/17, at 2-3 (citations to record omitted).

      Thereafter, Mother timely filed notices of appeal on March 2, 2017,

along with concise statements of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).   This Court consolidated Mother’s appeals

sua sponte on April 3, 2017.

      Mother now raises the following issues for our review:

      A. Whether the trial court committed reversible error when it
         involuntarily terminated [M]other’s parental rights where such
         determination was not supported by clear and convincing
         evidence under the Adoption Act[,] 23 Pa.C.S.[] §
         2511(a)(1), (a)(2), (a)(5), and (a)(8)[,] as [M]other made
         progress towards working and meeting her [Single Case Plan
         (“SCP”)] goals, namely staying drug free, working towards
         obtaining housing, working on parenting skills, and other
         goals, during [the Children’s] placement?

      B. Whether the trial court committed reversible error when it
         involuntarily terminated [M]other’s parental rights without
         giving primary consideration to the effect that the termination
         would have on the developmental[,] physical[,] and emotional
         needs of [the Children,] as required by the Adoption Act[,] 23
         Pa.C.S.[] § 2511(b)?

Mother’s Brief at 4.

      We review an appeal from the termination of parental rights under 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. In re: R.J.T., …
      9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are
      supported, appellate courts review to determine if the trial court
      made an error of law or abused its discretion. Id.; R.I.S., 36


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     A.3d [567,] 572 [(Pa. 2011) (plurality opinion)]. As has been
     often stated, an abuse of discretion does not result merely
     because the reviewing court might have reached a different
     conclusion. Id.; see also Samuel Bassett v. Kia Motors
     America, Inc., … 34 A.3d 1, 51 (Pa. 2011); Christianson v.
     Ely, … 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may
     be reversed for an abuse of discretion only upon demonstration
     of manifest unreasonableness, partiality, prejudice, bias, or ill-
     will. Id.

           As we discussed in R.J.T., 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. R.J.T., 9 A.3d at
     1190.    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
     Atencio, … 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

     In termination cases, the burden is upon the petitioner to prove by

clear and convincing evidence that the asserted grounds for seeking the

termination of parental rights are valid. In re S.H., 879 A.2d 802, 806 (Pa.

Super. 2005). We have previously stated:

     The standard of clear and convincing evidence is defined as
     testimony that 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 J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation

marks omitted).


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      Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis.

      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 interest 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. § 2511;

other citations omitted).

      This Court must agree with only one subsection of 2511(a), in addition

to section 2511(b), in order to affirm the termination of parental rights. See

In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we

review the decrees pursuant to sections 2511(a)(2) and (b), which provide

as follows:

      (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



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            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) and (b).

     We first address whether the trial court abused its discretion by

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

     In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
     2511(a)(2), the following three elements must be met: (1)
     repeated and continued incapacity, abuse, neglect or refusal; (2)
     such incapacity, abuse, neglect or refusal has caused the child to
     be without essential parental care, control or subsistence
     necessary for his physical or mental well-being; and (3) the
     causes of the incapacity, abuse, neglect or refusal cannot or will
     not be remedied.

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

omitted).   “The grounds for termination due to parental incapacity that

cannot be remedied are not limited to affirmative misconduct.          To the

contrary, those grounds may include acts of refusal as well as incapacity to

perform parental duties.”    In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002) (citations omitted).

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A


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     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
     [C]ourt has held that the parental obligation is a positive duty
     which requires affirmative performance.

In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).

     Moreover, this Court has previously stated:

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

Id. Where a parent does not “exercise reasonable firmness in declining to

yield to obstacles, his [parental] rights may be forfeited.”   In re A.S., 11

A.3d 473, 481 (Pa. Super. 2010).

     Instantly, Mother argues that the evidence demonstrates her attempt

to establish a loving relationship with the Children. See Mother’s Brief at 7.

Additionally, Mother claims that her efforts to remain close to the Children

and her attempt to complete her objectives “exhibited that she was trying to

eradicate any neglect or abuse that caused [the Children] to be placed in

foster care.” Id. at 8. However, the record clearly belies Mother’s claims.

     First, Mother’s own testimony contradicts her claim that she attempted

to complete her objectives. Mother stated at the termination hearing that

there was “no point” in her attending ARC services because “it don’t benefit

[her],” and that “it’s too much weight for [her] to handle.”             N.T.

Termination, 2/2/17, at 56-57. Mother also indicated that she did not have


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transportation to get to the ARC programs. Id. at 57. She admitted that

she   was   aware   she   could   request   transportation   tokens   from   [the

Community Umbrella Agency (“CUA”)] 48 hours in advance of her

appointments, but that she never complied with the 48-hour requirement.

Id. at 57-58.

      Moreover, DHS reports:

            Mother was compliant with services while still incarcerated.
      However, once Mother was released from prison and expected to
      show initiative in order to complete her SCP objectives, she was
      unable to do so and thus failed in meeting her objectives. She
      did not attend services at ARC, failed to maintain contact with
      the CUA, and failed to attend the majority of her visits.

            Not only did Mother lack the initiative to pursue
      reunification with Children, she also struggled with her limited
      capacity to undertake the parental role.         When given the
      opportunity to take on a limited parental roll in a supervised
      setting, Mother failed to attend the majority of her visits. Of the
      few visits she did attend with Children, all of which were
      supervised, she would curse in front of them. Beyond these
      limited visits, Mother never took care of Children on a daily
      basis. Mother’s behavior and lapses demonstrated that Mother
      lacked both the intent and willingness to parent and the
      “reasonable firmness” required by § 2511(a)(2).

DHS’s Brief at 17-18 (citations to record omitted).

      The trial court concluded that “[t]he record demonstrated Mother’s

ongoing unwillingness to provide care or control for the Children[,] to

perform any parental duties[,] and a failure to remedy the conditions that

brought the Children into care.” TCO at 4. The court emphasized the fact

that the Children had never once lived with Mother and had received

parental care from their foster parents since birth. Id. at 5. The court also


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found persuasive the testimony of the CUA Representative, who noted that

Mother’s SCP objectives were: (1) to maintain contact with CUA; (2) to visit

the Children; (3) to complete random drug screens; (4) to comply with the

ARC program; and (5) to complete a CEU assessment. Id.

       The CUA Representative testified that Mother had not maintained
       consistent contact with CUA since August 2016.          The CUA
       Representative also testified that Mother was sporadic with
       visitation of the Children. Specifically, Mother was scheduled to
       visit the Children on a weekly basis but made only five (5) visits
       since October 4, 2016. The CUA Representative testified that
       Mother had failed to complete the ARC program.[1] The CUA
       Representative also testified that Mother failed to complete a
       court ordered parenting program, and that Mother was
       unemployed and did not have suitable housing.[2] By her own
       testimony, Mother confirmed that she was unemployed and did
       not have stable housing.[3]




____________________________________________


1 Mother was referred to ARC for parenting, housing, employment, and
mental health services. At the time of the termination hearing, Mother had
not completed any of these programs. Rather, the CUA Representative
testified that Mother was “closed out from ARC” due to lack of attendance.
N.T. Termination at 17-19.

2 Mother was not placed on a list to receive appropriate housing, because
she failed to complete the ARC housing program. Id. at 18. Instead,
Mother had numerous living arrangements since her release from prison,
including staying with a friend, staying at a shelter, moving in with her mom
and, most recently, residing with her uncle. Id. at 59.

3 When asked what effort she made to try to obtain housing, Mother
testified: “I don’t have a job. So, there was no point in me getting a house
for myself.”     Id. at 60.     Mother also testified that because of her
incarceration, she has been unable to find a job, and that she relies on her
mother and siblings for financial support. Id. at 60-61, 68.



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Id. at 5-6 (citations to record omitted). The trial court found the testimony

of the CUA Representative to be credible and accorded it great weight. Id.

at 6.      After careful review, we deem the court’s decision to terminate

Mother’s parental rights, pursuant to section 2511(a)(2), to be well-

supported by the record.

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

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

are met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.

2008) (en banc).       This Court has stated that the focus in terminating

parental rights under section 2511(a) is on the parent, but the focus is on

the child pursuant to section 2511(b). 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 “intangibles 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.
        1992)], 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., 71 A.3d 251, 267 (Pa. 2013).




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      Here, the trial court concluded that it would be in the Children’s best

interests for Mother’s parental rights to be terminated.           The court

emphasized that the Children have never lived with Mother and that they

have received parental care from their foster parents since birth. TCO at 4-

5.   Mother argues that the trial court erred in terminating her parental

rights, because DHS failed to provide the court with clear, competent, and

convincing evidence that termination was in the best interest of the Children,

pursuant to 23 Pa.C.S. § 2511(b). Mother’s Brief at 6. Mother claims that

she offers the Children “love, comfort, security, and closeness-entailed in a

parent-child relationship,”   id. at 10, and further suggests that the record

reflects her efforts to comply with her objectives “in attempts to make

herself a better parent and reunify with her [C]hildren because [she] loves

her [C]hildren.” Id. at 11.

      Again, we conclude that the record supports the trial court’s decision

to terminate Mother’s parental rights. The CUA Representative testified that

Mother has never lived with or cared for the Children, nor has she ever

maintained consistent contact with them.      See N.T. Termination at 11-15,

20. In contrast, DHS reports:

      Children share a strong maternal bond with their Foster Mother,
      with whom they have lived since birth. Foster Mother was their
      primary parental bond. Foster Mother provided Children with
      love, safety, stability, and support. Children knew no other
      person as their motherly figure. Children would run to Foster




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       Mother at the end of visits with Mother.[4] Foster Mother took
       care of them when they were sick and made sure that they
       received proper education. Children were thriving with Foster
       Mother.

DHS’s Brief at 23.

       In reaching its conclusion that termination of Mother’s parental rights

would be in the best interests of the Children pursuant to 23 Pa.C.S. §

2511(b), the trial court explained that it relied on the CUA Representative’s

testimony that: (1) Mother had never cared for the Children and that she

lacked the ability to care for them on a full-time basis; (2) the Children’s

pre-adoptive foster mother was able to meet the Children’s medical and

educational needs; (3) the Children were bonded to their foster mother; (4)

it would be in the Children’s best interest to be adopted; and (5) termination

of Mother’s parental rights would not harm the Children and would be in the

Children’s best interest. TCO at 6.

       As there is competent evidence in the record that supports the trial

court’s credibility and weight assessments regarding the Children’s needs

and welfare, and the absence of any bond with Mother, we conclude that the

court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d

at 826-27. Accordingly, we affirm the decrees terminating Mother’s parental

rights to the Children.


____________________________________________


4  Even Mother testified that at the end of her visits with the Children, “[i]t’s
like they’re in a rush to leave…. Like when the foster mom comes, it’s like
they in a rush to leave. Like they want to go.” N.T. Termination at 65.



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     Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2017




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