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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: INVOLUNTARY TERMINATION OF               IN THE SUPERIOR COURT OF
PARENTAL RIGHTS TO J.E.D., A MINOR,                   PENNSYLVANIA

                          Appellee

                     v.

APPEAL OF: B.A.D., BIOLOGICAL
MOTHER,

                          Appellant                 No. 1671 MDA 2015


              Appeal from the Order Entered September 9, 2015
               In the Court of Common Pleas of Centre County
                     Orphans' Court at No(s): 4052-2015


IN RE: INVOLUNTARY TERMINATION OF               IN THE SUPERIOR COURT OF
PARENTAL RIGHTS TO J.E.D., A MINOR,                   PENNSYLVANIA

                          Appellee

                     v.

APPEAL OF: C.S., SR., BIOLOGICAL
FATHER,

                          Appellant                 No. 1727 MDA 2015


              Appeal from the Order Entered September 9, 2015
               In the Court of Common Pleas of Centre County
                     Orphans' Court at No(s): 4052-2015

BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 04, 2016

       In these consolidated appeals, B.A.D. (“Mother”) and C.S., Sr.

(“Father”), appeal from the orphans’ court order entered on September 9,

*
    Retired Senior Judge assigned to the Superior Court.
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2015, which involuntarily terminated their parental rights to their minor son,

J.E.D., born in August of 2014.1 After careful review, we affirm.

        The record reveals that Mother has a lengthy prior history of

involvement with Centre County Children and Youth Services (“CYS”) dating

back to 2009. N.T., 7/30/15, at 51. J.E.D. is the fourth of Mother’s children

to be placed in foster care, and Mother’s parental rights to her three older

children have already been terminated.2 Id. at 5-6. Mother currently is in a

relationship with Father, who has a history of engaging in inappropriate

sexual contact with minors.3 Id. at 36-37. In 2007, Father pled guilty to

indecent assault, and was ordered not to “be in the lone company or be in a

supervisory capacity of any person under the age of 18.” Petitioner’s Exhibit

1. Father subsequently completed sex offender treatment at Project Point of

Light. N.T., 7/30/15, at 36. However, in 2013, Father sent a picture of his

genitals to a minor, and it was recommended that Father receive additional

treatment. Id. at 36-38. Father failed to attend sessions consistently, and

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1
  These consecutively listed appeals arise from the same set of facts and
level nearly identical challenges to the orphans’ court order that terminated
the parental rights of both Mother and Father jointly. Accordingly, we
consolidated the appeals for disposition.
2
  Mother’s three older children are B.A.D., D.M.D., and H.R.D. This Court
affirmed the orders and decrees terminating Mother’s parental rights to
these children on July 20, 2015. See In re B.A.D., 125 A.3d 455 (Pa.
Super. 2015) (unpublished memorandum).
3
    Father is not the biological parent of Mother’s three older children.



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he was discharged from the program. Id. at 38, 45; GAL Exhibit 1 (letter

indicating that Father had been discharged due to “failure to return to

complete therapy”).

       CYS obtained an order for protective custody of J.E.D. due to an injury

he sustained on the day after his birth. See Petitioner’s Exhibit 1 (Order for

Emergency Protective Custody). Specifically, J.E.D. fell and struck his head

on the floor of Mother’s hospital room. N.T., 7/30/15, at 8, 10-11, 23, 29,

54. Both Mother and Father were in the room with J.E.D. at the time of his

injury, but the parents reported that they were asleep, and did not witness

J.E.D. fall. Id. at 10-11, 23-24. As a result of this incident, J.E.D. suffered

a skull fracture and subdural hematoma.          Id. at 8, 54.     J.E.D. was

adjudicated dependent by order dated August 28, 2014. A separate order

was entered that same day, which found aggravated circumstances as to

both Mother and Father, and ordered that CYS not provide reunification

services.4 Id.

       On September 25, 2014, the orphans’ court found that Mother was

responsible for J.E.D.’s injuries, and that J.E.D. was the victim of child

abuse, as Mother and Father were J.E.D.’s sole caregivers at the time he fell.

Petitioner’s Exhibit 1.      Mother was arrested on December 16, 2014, and
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4
  On April 6, 2015, this Court affirmed the orders adjudicating J.E.D.
dependent and finding aggravated circumstances. See In the Interest of
J.E.D., 121 A.3d 1121 (Pa. Super. 2015) (unpublished memorandum).




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charged with “Child Endangerment,” due to the injuries suffered by J.E.D. 5

N.T., 7/30/15, 17-18.

       On April 21, 2015, CYS filed a petition to terminate the parental rights

of Mother and Father involuntarily. A termination hearing was held on July

30, 2015.      The orphans’ court heard the testimony of CYS caseworker,

Melanie Robinson; Youth Service Bureau reunification counselor, Raelee

Hulek; and CYS caseworker, Robin Cain.            Following the hearing, on

September 9, 2015, the orphans’ court entered its order terminating the

parental rights of Mother and Father. Mother timely filed a notice of appeal

on September 22, 2015, along with a concise statement of errors

complained of on appeal. Father timely filed a notice of appeal on October

6, 2015, along with his own concise statement of errors complained of on

appeal.

       Mother raises the following issue for our review.        “Whether the

orphans’ court committed an abuse of discretion or error of law when it

concluded that [CYS] established grounds for termination of parental rights

under 23 Pa.C.S.A. §2511(a)(2) or (a)(5)?” Mother’s brief at 4. In addition,

Father raises the following issue for our review. “Was there clear and

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5
  Mother also was charged in connection with an injury suffered by H.R.D.
N.T., 7/30/15, at 17. Mother received a sentence of four to twenty-three
and a half months of incarceration, but she was paroled by the time of the
termination proceedings. Id. at 19.



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convincing evidence presented so as to justify termination of . . . [F]ather’s

parental rights pursuant to either 23 Pa.C.S.A. § 2511(a)(2) or §

2511(a)(5)?” Father’s brief at 4.

      We address these claims 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


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      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).

      In this case, the orphans’ court terminated the parental rights of

Mother and Father pursuant to §§ 2511(a)(2), (5), and (b). We need only

agree with the orphans’ court as to any one subsection of § 2511(a), as well

as § 2511(b), in order to affirm.       In re B.L.W., 843 A.2d 380, 384

(Pa.Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).

Here, we analyze the court’s decision to terminate under §§ 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 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

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     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

23 Pa.C.S. § 2511(a)(2), (b).

     We first address whether the trial court abused its discretion by

terminating the parental rights of Mother and Father pursuant to §

2511(a)(2).

     In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
     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).

     Instantly, the orphans’ court found that the repeated and continued

incapacity, abuse, neglect, or refusal of Mother and Father has caused J.E.D.

to be without essential parental control or subsistence necessary for his

physical and mental well-being.      Trial Court Opinion, 9/9/15, at 3.   The

orphans’ court further found that Mother and Father cannot, or will not,

remedy this situation.   Id.    With respect to Mother, the court emphasized


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the injuries suffered by J.E.D. only one day after his birth. Id. The court

also observed that Mother failed to make progress when provided with

reunification services for her three older children, and that she performed

poorly during her visits with J.E.D. Id. With respect to Father, the orphans’

court emphasized that Father failed to complete Project Point of Light, and

that he continues to pose a risk to minor children. Id.

      Mother and Father argue that CYS failed to present clear and

convincing evidence that they will be unable to remedy the conditions and

causes of their parental incapacity.   Mother’s brief at 10, 13-14; Father’s

brief at 11, 14-15. Mother concedes that she was unable to parent her three

older children on her own. Mother’s brief at 13. However, she asserts that

she has made “concrete progress” in her life, and stresses in particular her

relationship with Father.   Id.   According to Mother, she enjoys a loving,

stable relationship with Father, which stands in stark contrast to the

“alcohol-fueled domestic violence” which she was subjected to in her

previous relationship. Id. Mother insists that she and Father together were

never given the opportunity to demonstrate their parenting abilities.     Id.

Father claims that he completed a year of treatment at Project Point of Light,

and that his failure to complete additional treatment was due only to his

indigence and lack of transportation, which should not be held against him.

Father’s brief at 14-15.




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      After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by involuntarily terminating

the parental rights of Mother and Father. During the termination hearing,

Youth Service Bureau reunification counselor, Raelee Hulek, testified that

reunification services were provided to Mother with respect to her three

older children from November 13, 2013, until November 13, 2014.           N.T.,

7/30/15, at 34. Reunification services ended unsuccessfully due to a lack of

progress on the part of Mother.      Id.   Ms. Hulek noted that there were

serious concerns with respect to Mother’s parenting ability, and that Mother

was “visibly overwhelmed” during her three hour visits with the children.

Id. at 39. Ms. Hulek explained that some of these concerns included “failure

to consistently set limits and provide the children with consequences, failure

to supervise the children near busy roads, failure to limit food portion, . . .

failure to support [D.M.D.’s] special needs related to potty training, [and]

concerns regarding supporting [B.A.D.’s] special developmental needs[.]”

Id. at 39-40. In addition, Ms. Hulek noted that Mother sometimes struggled

to manage her emotions during visits, and would occasionally focus on her

cell phone rather than the children. Id. at 40, 48.

      Ms. Hulek further testified that CYS was concerned by Mother’s lack of

appropriate housing. Id. at 34-35. CYS offered to assist Mother in locating

housing on a minimum of thirty-two occasions, “but she did not follow

through with that.” Id. at 35. CYS also offered to assist Mother in finding


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employment so that she could afford an appropriate residence. Id. Mother

accepted this assistance on only two of at least twenty-five occasions. Id.

Mother was briefly able to obtain a part-time cleaning job. Id. However,

she never was able to earn enough income to support herself or her

children.   Id.   Mother also mismanaged her money, spending it on things

like pay-per-view wrestling, rather than a security deposit. Id. at 36. Ms.

Hulek noted that Mother lost her cleaning job after being arrested in

December of 2014. Id. at 35, 42.

      Finally, Ms. Hulek testified that CYS was concerned by Mother’s

ongoing relationship with Father.     Id. at 36.   Ms. Hulek explained that

Father began receiving a second round of sex offender treatment in July of

2014. Id. at 43. Father was supposed to attend group meetings once per

week. Id. However, in September of 2014, Ms. Hulek received a call from

Father’s evaluator at Project Point of Light, Ms. Patricia Clouser, who

reported that Father failed to attend approximately five group meetings. Id.

at 38, 43-44.     In addition, Ms. Clouser believed that Father would benefit

from attending a group for individuals with developmental delays. Id. at 44-

45.   Ms. Hulek acknowledged that this group was located in Clearfield

County, a significant distance for Father to travel, but she explained that she

provided Father with “a few different resources that he could call for

assistance with that [.]” Id. at 45. In addition, Ms. Clouser reported that,

“if all else fails that they were going to try to work out something where


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someone could still come and meet with him in Bellefonte or State College

and   provide   the   same   information     that   he   would   receive   in   a

developmentally delayed group.”     Id.    Ultimately, Ms. Hulek believed that

Father was discharged from his local sex offender group due to lack of

attendance, and that Father never transitioned to the group in Clearfield

County. Id. at 45.

      Accordingly, the record supports the conclusion of the orphans’ court

that the repeated and continued incapacity, abuse, neglect, or refusal of

Mother and Father has caused J.E.D. to be without essential parental control

or subsistence necessary for his physical and mental well-being. Moreover,

Mother and Father cannot, or will not, remedy this situation. Mother has an

extensive prior history with CYS, and she has demonstrated for years that

she is incapable of caring for a child. Indeed, Mother failed to make it more

than a day before J.E.D. suffered a serious injury while in her care. Mother

also continues to maintain her relationship with Father.

      Likewise, contrary to Father’s argument on appeal, the record

demonstrates that he was discharged from Project Point of Light due to his

failure to attend local group meetings, and not due to a lack of

transportation. Father’s history as a sex offender, combined with his failure

to complete treatment at Project Point of Light, confirm that he continues to

present a serious risk to any minor placed in his care. It was proper for the

court to conclude that J.E.D. should no longer be denied permanency. See


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M.E.P., 825 A.2d at 1276 (“A child’s life simply cannot be put on hold in the

hope that the parent will summon the ability to handle the responsibilities of

parenting.”) (citations omitted).

       We next consider whether the orphans’ court abused its discretion by

terminating the parental rights of Mother and Father pursuant to § 2511(b).6

We have discussed our analysis under § 2511(b) 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).

       Here, the orphans’ court found that terminating the parental rights of

Mother and Father would best serve the needs and welfare of J.E.D.          Trial

Court Opinion, 9/9/15, at 4. The court observed that J.E.D. is bonded with

his foster parents, and with Mother’s three older children, who reside in the
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6
  While Mother and Father do not discuss § 2511(b) in the argument section
of their briefs, we will nonetheless consider this issue. See In re C.L.G.,
956 A.2d 999, 1010 (Pa.Super. 2008) (en banc) (considering § 2511(b)
despite the appellant’s failure to challenge the trial court’s analysis).



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same foster home. Id. In contrast, the court concluded that visiting with

Mother and Father is stressful to J.E.D., and that J.E.D. has not developed a

significant bond with his parents. Id.

      Again, we discern no abuse of discretion.       CYS caseworker, Melanie

Robinson, testified that Mother and Father initially were offered three hour-

long visitations with J.E.D. per week, but sessions were reduced to twice per

month for two hours each. N.T., 7/30/15, at 20. Ms. Robinson explained

that the parents attended visitations with J.E.D. consistently. Id. at 24-25.

However, Ms. Robinson described numerous problems which arose during

the visits.    For example, J.E.D. would sometimes cry during visits “for

extended periods of time.” Id. at 20. The staff supervising the visits would

encourage the parents to use certain techniques in order to soothe J.E.D.,

but Mother and Father were not always receptive to those suggestions. Id.

at 20-21.     Ms. Robinson stated that J.E.D. is thriving in his pre-adoptive

foster home. Id. at 21-22. She indicated that J.E.D. displays “a very clear

bond” with his three older half-siblings, as well as his foster parents and the

foster parents’ biological children. Id.

      CYS caseworker, Robin Cain, testified that visitations are stressful to

J.E.D., and that he “spent the majority of the visits screaming and crying.”

Id. at 56.    Ms. Cain explained that Mother and Father were reluctant to

accept any recommendations from the visitation staff for the “first several

months” of visits.     Id. at 56-57.       Ms. Cain opined that J.E.D. has no


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significant bond with his biological parents, and that he instead is bonded

with his pre-adoptive foster parents and his half-siblings. Id. at 60-61. Ms.

Cain believed that it would be detrimental for J.E.D. to be removed from his

foster family, because it is the only home he has ever known.                  Id.

Significantly, Foster Parents are a permanent resource for both J.E.D. and

his three half-siblings.

      Thus, we find that the record confirms that terminating the parental

rights of Mother and Father will best serve J.E.D.’s developmental, physical

and emotional needs and welfare.          J.E.D. has spent nearly his entire life

residing with his pre-adoptive foster parents, and he is bonded with his

entire foster family, including his older half-siblings. J.E.D. does not appear

to be bonded with Mother or Father, and it is clear that J.E.D. will not suffer

irreparable emotional harm if their parental rights are terminated.

      Accordingly,    we   affirm   the    orphans’   court   order   involuntarily

terminating the parental rights of Mother and Father pursuant to 23 Pa.C.S.

§ 2511(a)(2) and (b).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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