J-S29045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: J.D.M., JR., A/K/A :          IN THE SUPERIOR COURT OF
J.M., A MINOR                          :               PENNSYLVANIA
                                       :
APPEAL OF: E.R.                        :
                                       :
                                       :          No. 1960 WDA 2015

                   Appeal from the Order November 17, 2015
       in the Court of Common Pleas of Allegheny County Orphans’ Court
                       at No(s): CP-02-AP-0000146-2015

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 18, 2016

        E.R. (“Mother”) appeals from the order entered on November 17,

2015, granting the petition filed by the Allegheny County Office of Children

Youth and Families (“CYF” or “Agency”), to involuntarily terminate her

parental rights to his dependent, minor child, J.M., a male born in October of

2010, (“Child”), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5),

(8), and (b).1 We affirm.

        The trial court has set forth the relevant factual background and

procedural history of this case in its opinion filed pursuant to Pa.R.A.P.

1925(a). See Trial Ct. Op., 1/14/16, at 1-2. On September 9, 2015, CYF

filed a petition to involuntary terminate the parental rights of Mother and

*
    Former Justice specially assigned to the Superior Court.
1
  On November 16, 2015, the trial court also involuntarily terminated the
parental rights of J.D.M., also known as J.M., the natural father of Child,
(“Father”). Father has not filed an appeal of his own, and he is not a party
to this appeal or has not filed any brief in this appeal.
J-S29045-16


Father. At the hearing on the petition on November 16, 2015, both Mother

and Father failed to appear, although Mother’s counsel was present to

represent her.   CYF presented the testimony of Laverne Conley, the CYF

caseworker assigned to Child’s family.     N.T., 11/16/15, at 6.   Ms. Conley

explained the family history with CYF, and stated that Child is currently

placed with K.H., Child’s paternal cousin. Id. at 6-13.

      The trial court summarized the expert psychological report of Terry

O’Hara, Ph.D., as follows:

            Terry O’Hara, a licensed [p]sychologist, conducted
         interactional evaluations between the Child and family.
         While Dr. O’Hara was prepared to testify at the November
         16, 2015, hearing, all parties stipulated to Dr. O’Hara’s
         report and therefore Dr. O’Hara did not testify.          Dr.
         O’Hara’s reports concluded that there is no evidence that
         Mother and her paramour are able to appropriately meet
         the needs and welfare of the Child at this time, due to
         their extensive and complex mental health presentations
         and substance abuse histories. Furthermore, Dr. O’Hara
         does not believe that the Mother possesses that stability at
         this time to internalize parenting skills and stabilizing her
         mental health issues should be prioritized.

Trial Ct. Op. at 2 (unpaginated).

      On November 17, 2015, the trial court granted the petition to

involuntarily terminate the parental rights of Mother and Father to Child,

pursuant to Section 2511(a)(2), (5), (8), and (b) of the Adoption Act. On

December 15, 2015, Mother timely filed a notice of appeal along with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b), in which she raised one issue for review.



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J-S29045-16


      In her brief on appeal, Mother raises the same sole question for this

Court’s review, as follows:

         Did the trial court abuse its discretion and/or err as a
         matter of law in concluding that Allegheny County
         Children, Youth and Families met its burden of proving that
         termination of Birth Mother’s parental rights would best
         serve the needs and welfare of the child pursuant to 23
         Pa.C.S.A. § 2511(b) by clear and convincing evidence[?]

Mother’s Brief at 5.

      In reviewing an appeal from an order terminating parental rights, we

adhere to 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., 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 (2011); Christianson v. Ely, [575 Pa. 647, 654-
         55], 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


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J-S29045-16


           presiding over numerous other hearings regarding 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,
           [165,] 650 A.2d 1064, 1066 (1994).

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

      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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

      Moreover, we have explained:

           [t]he 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.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

      This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a).    In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

The trial court terminated Mother’s parental rights under Section 2511(a)(2),

(5), (8), and (b). Trial Ct. Op. at 2 (unpaginated). Section 2511(a)(2), (5),

(8), and (b) provide as follows:

           § 2511. Grounds for involuntary termination


                                       -4-
J-S29045-16



       (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.

                               *    *    *

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

                               *    *    *

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

                               *    *    *

       (b) Other considerations.—The court in terminating the
       rights of a parent shall give primary consideration to the


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J-S29045-16


           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.

         This Court has explained that the focus in terminating parental rights

under Section 2511(a) is on the parent, but, under Section 2511(b), the

focus is on the child. In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008)

(en banc).

         In her brief on appeal, Mother waives any challenge to Section

2511(a), and concedes that the record supports the trial court’s finding that

CYF sustained its burden of proof pursuant to Section 2511(a)(2), (5), and

(8). Rather, she focuses her challenge on Section 2511(b). Mother’s Brief

at 11.

         We review the termination of Mother’s parental rights 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 “[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


                                      -6-
J-S29045-16


           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).

      Mother argues that the termination of her parental rights offers no

benefit to Child, in that he recognizes her as a parental figure and refers to

her as “Mommy.” Mother asserts that Child’s placement with K.H. may offer

stability for Child, but Child recognizes that K.H. is not his parent. Mother

asserts that she has a positive relationship with Child and he understands

that Mother is his parent.     Mother claims that Child does not suffer any

confusion regarding his relationship with K.H. or his placement in K.H.’s

home that would necessitate the termination of Mother’s parental rights.

      Mother states that there is no indication from the record that the

termination of her parental rights will diminish the stability of Child’s

placement with K.H. or that maintaining the parental relationship with an

alternative form of permanency would be confusing or detrimental to Child.

Mother suggests that by maintaining the parental relationship with her, Child

could continue a relationship with her.     Mother’s Brief at 8, 14.    Mother

argues there is no caselaw that would prevent a child from living outside his

parental home while, at the same time, maintaining a relationship with his

parents.    Id. at 13.   Accordingly, Mother urges that the record does not

support the trial court’s finding that CYF met its burden of proving by clear



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and convincing evidence that the termination of her parental rights meets

Child’s needs and welfare. Id. at 8, 14. We disagree.

      We have stated that in conducting a bonding analysis, the court is not

required to use expert testimony, but may rely on the testimony of social

workers and caseworkers.     In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.

2010).   It is appropriate to consider a child’s bond with his or her foster

parents. See In re T.S.M., 71 A.3d at 268.

      In addition, in In re T.S.M., our Supreme Court set forth the process

for evaluation of the existing bonds between a parent and a child and the

necessity for the court to focus on concerns of the quality of the attachment

and the availability of an adoptive home.      The Supreme Court stated the

following:

         [C]ontradictory considerations exist as to whether
         termination will benefit the needs and welfare of a child
         who has a strong but unhealthy bond to his biological
         parent, especially considering the existence or lack thereof
         of bonds to a pre-adoptive family. As with dependency
         determinations, we emphasize that the law regarding
         termination of parental rights should not be applied
         mechanically but instead always with an eye to the best
         interests and the needs and welfare of the particular
         children involved. See, e.g., R.J.T., [9 A.3d 1179, 1190
         (Pa. 2010)] (holding that statutory criteria of whether child
         has been in care for fifteen of the prior twenty-two months
         should not be viewed as a “litmus test” but rather as
         merely one of many factors in considering goal change).
         Obviously, attention must be paid to the pain that
         inevitably results from breaking a child’s bond to a
         biological parent, even if that bond is unhealthy, and we
         must weigh that injury against the damage that bond may
         cause if left intact. Similarly, while termination of parental
         rights generally should not be granted unless adoptive


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        parents are waiting to take a child into a safe and loving
        home, termination may be necessary for the child’s needs
        and welfare in cases where the child’s parental bond is
        impeding the search and placement with a permanent
        adoptive home.

                                *    *    *

        [The Adoption and Safe Families Act of 1997, P.L. 105-89]
        ASFA[,] was enacted to combat the problem of foster care
        drift, where children . . . are shuttled from one foster
        home to another, waiting for their parents to demonstrate
        their ability to care for the children. See In re R.J.T., 9
        A.3d at 1186; In re Adoption of S.E.G., [901 A.2d 1017,
        1019 (Pa. 2006)].          This drift was the unfortunate
        byproduct of the system’s focus on reuniting children with
        their biological parents, even in situations where it was
        clear that the parents would be unable to parent in any
        reasonable period of time. Following ASFA, Pennsylvania
        adopted a dual focus of reunification and adoption, with
        the goal of finding permanency for children in less than
        two years, absent compelling reasons. See, 42 Pa.C.S. §
        6301(b)(1); 42 Pa.C.S. § 6351(f)(9) (requiring courts to
        determine whether an agency has filed a termination of
        parental rights petition if the child has been in placement
        for fifteen of the last twenty-two months).

In re T.S.M., 71 A.3d at 268-69.

     We have stated that the existence of a bond or attachment of a child

to a parent will not necessarily result in the denial of the termination

petition. See In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). This

Court will not prolong instability for children when it is clear that their

biological parents are unable to provide for their basic needs in the near

future. See In re T.S.M., 71 A.3d at 270.

     In the present matter, the trial court adequately considered the

developmental, physical, and emotional needs of Child. Moreover, the trial


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court thoroughly considered Child’s bond with Mother, and the effect of

severing that bond.   The trial court based its decision on Mother’s current

inability to provide proper parental care and control and her inability to meet

Child’s needs and welfare. See Trial Ct. Op. at 4 (unpaginated). The trial

court properly considered that, although there was evidence of a bond

between Child and Mother, it was in Child’s best interests to sever that bond.

See id.; In re T.S.M., 71 A.3d at 268-69.

      After a careful review of the record in this matter, including the notes

of testimony from the hearing on November 16, 2015, and the expert report

of Dr. O’Hara, we find that the competent evidence in the record supports

the trial court order. As we stated in In re Z.P., a child’s life “simply cannot

be put on hold in the hope that [a parent] will summon the ability to handle

the responsibilities of parenting.”   Id. at 1125.   Rather, “a parent’s basic

constitutional right to the custody and rearing of his child is converted, upon

the failure to fulfill 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) (emphasis added). As the trial court’s 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, we affirm the trial court’s decision with

regard to subsection (b). In re S.P., 47 A.3d at 826-27.




                                      - 10 -
J-S29045-16


      Accordingly, we affirm the trial court’s order involuntarily terminating

Mother’s parental rights based on the trial court opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2016




                                    - 11 -
                                                                             Circulated 03/30/2016 05:29 PM




         IN THE COURT OF COI\t1MON PLEAS OF ALLEGHENY COUNTY,
                                PENNSYLVANIA


  IN RE: ADOPTION        OF:                            ORPHAN'S COURT DIVISION

  J.M.                                                  CP-02-AP-0000146-2015

  a minor.                                             Superior Court No.
                                                        1960 WDA 2015


                                             OPINION
 K.R. MULLIGAN, J.

         J.R. (Mother), appeals my November 16, 2015, Order of Court terminating her

 parental rights to her minor child J.M. (Child).

         At the November 16, 2015, termination-hearing caseworker Laverne Conley

 testified to the history of the case. The Child was born on October 18, 2010, to Mother.

 The biological father of the child is J.M.S. (Father). The Child entered the care of the

 Office of Children, Youth and Families, (CYF) on February 20, 2014. The Child was

found on the streets in Bellevue near a Laundromat clothed only in a soiled diaper. The

Father and Father's paramour were on the floor of the Laundromat. The Father had to be

revived with Narcan. At the time of this incident, Mother was in a mental .institution.

Based on this incident CYF requested dependency based on neglect and endangerment.

The Child was adjudicated dependent on March 7, 2014, at which time the Child was

removed from the care of both the Mother and Father and since has not been returned to

the care of either.    Laverne Conley testified that there were other concerns in addition

to the Laundromat incident. The Child's medical care was not up to date. There was a

history of repetitive hospitalization on part of the Mother. Both Mother and Father have
  a history of drug and alcohol abuse. Both Mother and Father had some criminal issues as

  well as a prior report indicating that the child was not being properly cared for.

            Terry O'Hara Ph.D., a licensed Psychologist, conducted interactional evaluations

  between the Child and family. While Dr. O'Hara was prepared to testify at the

  November 16, 2015, hearing, all parties stipulated to Dr. O'Hara's report and therefore

 Dr. O'Hara did not testify. Dr. O'Hara's reports concluded that there is no evidence that

 Mother and her paramour are able to appropriately meet the needs and welfare of the

 Child at this time, due to their extensive and complex mental health presentations and

 substance abuse histories. Furthermore, Dr. O'Hara does not believe that the Mother

 possesses that stability at this time to internalize parenting skills and stabilizing her

 mental health issues should be prioritized.

        Both Mother and Father failed to appear at the November 16, 2015, termination

 hearing although Mother was represented.

        Following the hearing, I granted CYF's TPR petition and found that CYF met its

burden of proof by clear and convincing evidence that grounds for termination against

both Mother and Father existed under 23 Pa. C.S.A §2511 (a) subsections (2), (5), and (8),

and that termination met the needs and welfare of the child pursuant to 23 Pa. C.S.A

§251 l(b)

        In the Mother's Concise Statement of Matters Complained of on Appeal Mother

claims that the trial court abused its discretion and/or erred as a matter of law in

concluding that Allegheny County Children, Youth and Families met its burden of

proving that termination of Birth Mother's Parental Rights would meet the needs and
  welfare of the child pursuant to 23 Pa. C.S.A §251 l(b), by clear and convincing

  evidence.

          Mother does not appeal my findings that grounds exist for termination of her

  parental rights under Pa. C.S.A §251 l(a). However, Mother argues in her Concise

  Statement of Errors Complained of on Appeal that despite not appealing the grounds for

  termination, that the termination was inappropriate due to a needs and welfare analysis

 pursuant to Pa. C.S.A §2511 (b). The Pennsylvania Superior Court has repeatedly found

 "that parent 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

 immediate physical and emotional needs." In Re Adoption o/Godzak, 719 A.2d 365, 368

 (Pa. Super. 1998).

        The Supreme Court has instructed us that [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." Pa. C.S.A §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 A3d 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 serving the parental bond. In re K.M, 53 A3d at

791.

In re: TS.M, 620 Pa. 602, 71 A.3d 251, 267 (2013).
         It is clear that both the Mother and Father are in no position to meet the needs and

 welfare of the child as evidenced by their past behavior as well as their failure to appear

 at the November 16, 2015 termination hearing.

         Laverne Conley testified that she had the opportunity to observe the Child in the

 pre-adoptive foster home and he is doing extremely well. Lavern Conley further testifies

 that the Child's socialization has improved enormously. His communication skills are

 much more solid and he is a much calmer child.

         In Dr. O'Hara's opinion, stability, security, and permanency are of urgent

 importance for the Child due to his historical lack of stability and security. Several

 developmental themes depend upon a foundation of security and stability and in Dr.

 O'Hara's opinion, the Child's pre-adoptive foster parent is able to provide this for the

Child. Finally, it is Dr. O'Hara's belief that the benefits of adoption for the Child to the

pre-adoptive foster parent outweigh any potential detriment in the termination of parental

rights for the Child's Mother and Father.

        For the above reasons, the order of November 16, 2015, should be affirmed.




Date: Januaiy 14, 2016
