J. A29015/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: E.H., A MINOR                :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                                    :
APPEAL OF: R.H., BIRTH MOTHER,      :         No. 966 WDA 2015
                                    :
                       Appellant    :


               Appeal from the Order Entered May 12, 2015,
            in the Court of Common Pleas of Allegheny County
          Orphans’ Court Division at No. CP-02-AP-000031-2015



IN RE: L.K., A MINOR                :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                                    :
APPEAL OF: R.H., BIRTH MOTHER,      :         No. 967 WDA 2015
                                    :
                       Appellant    :


               Appeal from the Order Entered May 12, 2015,
            in the Court of Common Pleas of Allegheny County
          Orphans’ Court Division at No. CP-02-AP-000033-2015



IN RE: R.-J.K., A MINOR             :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                                    :
APPEAL OF: R.H., BIRTH MOTHER,      :         No. 968 WDA 2015
                                    :
                       Appellant    :


               Appeal from the Order Entered May 12, 2015,
            in the Court of Common Pleas of Allegheny County
          Orphans’ Court Division at No. CP-02-AP-000032-2015


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
J. A29015/15




MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 30, 2015

      In these consolidated appeals, R.H. (“Mother”) appeals from the orders

in the Allegheny Court of Common Pleas that involuntarily terminated her

parental rights to three children, E.H., a male, born in December of 2007;

L.K., a female, born in October of 2011; and R.-J.K., a male, born in

November of 2010 (collectively, “the Children”).    Upon careful review, we

affirm.1

      We summarize the factual and procedural history as follows.         The

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

involved with this family as a result of allegations by Mother that R.K., the

father of L.K. and R.-J.K., hit Mother’s son, E.H., in the ear, causing it to

bleed. (Trial court opinion, 7/10/15 at 4.) E.H. was adjudicated dependent

on August 10, 2012, but he remained in Mother’s physical custody.

      The Children were placed in kinship care with their maternal

grandmother by a shelter care order dated February 15, 2013, due to




1
  In separate orders, the orphans’ court involuntarily terminated the parental
rights of R.O.B., the natural father of E.H., and of any unknown father.
R.O.B. did not file a notice of appeal, and he is not a party to Mother’s
appeals. Further, the orphans’ court denied the petitions for the involuntary
termination of the parental rights of R.K., the natural father of L.K. and
R.-J.K.    The guardian ad litem (“GAL”) filed notices of appeal, the
dispositions of which are by separate memorandum. The GAL has filed an
appellee brief in the instant appeals, wherein it argues in support of the
orders involuntarily terminating Mother’s parental rights.


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Mother’s incarceration at the Allegheny County Jail.2 The shelter care order

directed that the Children be returned to Mother’s care upon her release

from jail. Mother was released on February 20, 2013, but she informed CYF

that she was not able to resume care of the Children. (Trial court opinion,

7/10/15 at 5.)    L.K. and R.J.-K. were adjudicated dependent on March 6,

2013.     At that time, CYF removed the Children from the home of their

grandmother and placed them in kinship care with their maternal aunt,

where they resided at the time of the subject proceedings.

        CYF established the following Family Service Plan (“FSP”) goals for

Mother: to maintain sobriety; stabilize mental health; eliminate verbal and

physical abuse in the family; obtain and maintain appropriate housing;

participate in a parenting program; maintain contact and cooperation with

CYF; and maintain the financial demands of daily living.                    (Notes of

testimony, 4/10/15 at 16.)       In addition, CYF scheduled supervised visits,

which Mother has been “relatively consistent” in attending. (Id. at 25.)

        On   February   4,   2015,   CYF   filed   petitions   for   the   involuntary

termination of the parental rights of Mother and the Children’s respective

fathers pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).              A


2
  Mother testified on cross-examination by counsel for CYF that she was
incarcerated for “[a] speeding ticket that turned into a warrant.” (Notes of
testimony, 4/10/15 at 135.) In addition, the record reveals a criminal
history for Mother including being convicted of the crime of endangering the
welfare of children following an incident in January of 2011, when she was
driving with a suspended license while E.H. and R.-J.K. were in the car.
Further, marijuana was found in the car. (Id. at 7-8.)


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hearing on the petitions occurred on April 10, 2015, during which CYF

presented   the     testimony   of   its   caseworker,   Sharon   Martin,   and

Neil Rosenblum, Ph.D., who performed psychological evaluations.         Mother

testified on her own behalf. R.K., the father of L.K. and R.-J.K., testified on

his own behalf, and he presented the testimony of David Richardson, the

program director at the Center for Family Excellence.

      By orders dated May 12, 2015, the orphans’ court granted the

petitions for the involuntary termination of Mother’s parental rights pursuant

to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).           The orphans’ court

accompanied the subject orders with 19 findings of fact. On June 22, 2015,

Mother filed notices of appeal and concise statements of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this court

consolidated sua sponte.3 The orphans’ court filed its Rule 1925(a) opinion

on July 10, 2015.

      On appeal, Mother presents the following issue for our review:

            1.      Did the [orphans’] court abuse its discretion
                    and/or err as a matter of law in concluding that

3
  A notice of appeal must be filed within 30 days after entry of the order
from which the appeal is taken. See Pa.R.A.P. 903(a). Rule 108(b)
provides that the date of entry of an order is “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b)”. Pa.R.A.P. 108(b). In this case,
there is no date of entry on the certified docket of the subject orders. As
such, the appeal period has not been triggered, and therefore, Mother’s
appeals are timely. See In re L.M., 923 A.2d 505 (Pa.Super. 2007)
(declining to quash appeal as untimely where the docket does not show that
notice of entry of involuntary termination of parental rights order was
given).


                                      -4-
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                  CYF met its burden of proving by clear and
                  convincing evidence that termination of
                  Mother’s parental rights would best serve the
                  needs and welfare of the [C]hildren pursuant
                  to 23 Pa.C.S.[A.] § 2511(b)?

Mother’s brief at 9.

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

review.

            [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., 608 Pa. 9, 9 A.3d
            1179, 1190 (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., [614 Pa. 275, 284,] 36 A.3d
            [567,] 572 [(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.,
            [613 Pa. 371, 455,] 34 A.3d 1, 51 (Pa. 2011);
            Christianson v. Ely, 575 Pa. 647, [654-655,] 838
            A.2d 630, 634 (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


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            the child and parents. R.J.T., [608 Pa. at 28-30], 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, 539 Pa.
            161, 650 A.2d 1064, 1066 (1994).

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

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 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.

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

      The relevant provisions of Section 2511 in this case are 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:


                                     -6-
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               ....

               (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.

               ....

               (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


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                         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. With respect to any petition
                   filed pursuant to subsection (a)(1), (6) or (8),
                   the court shall not consider any efforts by the
                   parent to remedy the conditions described
                   therein which are first initiated subsequent to
                   the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).

      Instantly,   Mother    does     not     raise   an   issue     with   respect   to

Section 2511(a).       Rather,      her     sole   issue   on      appeal   relates   to

Section 2511(b).    Mother argues that the testimony of Dr. Rosenblum and

her own testimony demonstrates that a bond exists between her and the

Children.   Further, Mother argues that terminating her parental rights will

not serve the Children’s needs and welfare because it will end all visits

between her and the Children.         Further, with respect to L.K. and R.-J.K.,

Mother asserts that they are not eligible for adoption since their father’s

parental rights have not been terminated. As such, Mother argues there will

be no possibility of continued visits in the form of post-adoption contact


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between her and L.K. and R.-J.K. Upon careful review, we reject Mother’s

assertions.

      With respect to Section 2511(b), this court has described the requisite

analysis as follows:

              Subsection 2511(b) focuses on whether termination
              of    parental    rights  would    best   serve   the
              developmental, physical, and emotional needs and
              welfare of the child. In In re C.M.S., 884 A.2d
              1284, 1287 (Pa.Super. 2005), this Court stated,
              “Intangibles such as love, comfort, security, and
              stability are involved in the inquiry into the needs
              and welfare of the child.” In addition, we instructed
              that the trial court must also discern the nature and
              status of the parent-child bond, with utmost
              attention to the effect on the child of permanently
              severing that bond. Id. However, in cases where
              there is no evidence of a bond between a 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). Accordingly, the extent of the bond-effect
              analysis necessarily depends on the circumstances of
              the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

      In considering the affection that a child may hold for his or her natural

parents, this court has explained:

              [C]oncluding 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


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              when considered in connection with a child’s feeling
              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 its 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).

       In this case, Dr. Rosenblum performed individual psychological

evaluations of the Children and Mother. He testified on direct examination

that E.H., age seven at the time of the subject proceedings, “maintains a

strong relationship and an attachment to” Mother.                   (Notes of testimony,

4/10/15 at 59.) Dr. Rosenblum did not testify with respect to the existence

of a bond between Mother and L.K. or R.-J.K., then ages three and four.

       Dr. Rosenblum recommended on direct examination that “a goal of

adoption is consistent with [the Children’s] needs and welfare.” (Id. at 76.)

He continued:

              Q.     And do you believe . . . if the parents’ rights
                     are terminated, that that would have a
                     significant negative impact on the [C]hildren?

              A.     I think it’s going to have an impact on [E.H.].
                     I can’t say significant negative impact. I think
                     he looks forward to his visits with his
                     mother. . . . At this time they are occurring
                     once a week. And I would recommend if the
                     [c]ourt does move toward a termination of
                     parental rights that the [C]hildren do have
                     some continued contact with parents that
                     would be at least once a month for a few
                     months, because . . . I don’t see [R.-J.K.] or
                     [L.K.] being affected, but I think [E.H.] is


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                   going to need some time to work through the
                   separation.

Id.   Dr. Rosenblum further clarified on cross-examination by Mother’s

counsel:

              Q.   [] [S]hould mother’s rights be terminated, you
                   felt that there should still be some contact for
                   at least a few months[?]

              A.   Well, at least for a few months. I mean, to be
                   perfectly honest, I . . . would like to see
                   mother have ongoing contact, period. I mean,
                   this is her family. . . .

                   She has such strong parenting skills that I
                   think it would be a shame if they can’t work
                   something out where she can continue to see
                   her children. She loves them, and she’s good
                   with them. The fact that she can’t take care of
                   them is unfortunate, but I believe they will
                   benefit from having a continued relationship
                   with her. And I would recommend that that be
                   explored.

Id. at 79-80.

      Mother testified on direct examination:

              Q.   What effect do you think it would have on
                   these children if your visits ended?

              A.   It would be astronomically detrimental for all
                   of my children to not have that contact with
                   . . . me . . . .

Id. at 130.

      In its Rule 1925(a) opinion, the orphans’ court found that a bond

exists between Mother and the Children.       (Trial court opinion, 7/10/15 at

12.) The court stated that it considered Dr. Rosenblum’s recommendation


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for continued visits between Mother and the Children. (Id.) In addition, the

court considered Dr. Rosenblum’s belief that Mother “has intuition with

respect to parenting.”       (Id. at 11.)     Nevertheless, the court found that

Mother “has shown no desire to be consistent.” (Id.) Further, the orphans’

court found that “Mother was unable to parent, as she failed to comply with

the goals established in the Family Service Plans.” (Id.) Significantly, the

court found that Mother has not remedied her addiction to illegal drugs, and

that her housing has not been consistent. (Id.) The court concluded that

“Mother’s continued behavior alone has caused the [C]hildren to be out of

her care[,]” and that the Children deserve stability and permanency.

        Upon careful review, we discern no abuse of discretion by the orphans’

court    in   concluding   that,   despite   the   Children’s   bond   with   Mother,

terminating her parental rights will serve the developmental, physical, and

emotional needs and welfare of the Children pursuant to Section 2511(b).

See In re Adoption of C.D.R., 111 A.3d 1212, 1220 (Pa.Super. 2015)

(concluding that the mother’s bond with her child was outweighed by the

mother’s “repeated failure to remedy her parental incapacity,” and by her

child’s need for permanence and stability).           Further, we reject Mother’s

argument regarding the impossibility of her having post-adoption contact

with L.K. and R.-J.K. because their father’s parental rights have not been

terminated.       Even if L.K. and R.-J.K. were available for adoption,

consideration of post-adoption contact is speculative and not relevant to the



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Section 2511(b) analysis. In this case, the testimony of Dr. Rosenblum set

forth above supports the termination of Mother’s parental rights pursuant to

Section 2511(b) with respect to L.K. and R.-J.K. Accordingly, we affirm the

orders involuntarily terminating Mother’s parental rights.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2015




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