J-S51016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: K.E.H., A MINOR                              IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

APPEAL OF: L.M.H., NATURAL MOTHER               No. 355 MDA 2014


               Appeal from the Order dated January 22, 2014,
              in the Court of Common Pleas of Centre County,


IN RE: C.L.H., A MINOR                              IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

APPEAL OF: L.M.H., NATURAL MOTHER               No. 356 MDA 2014


               Appeal from the Order dated January 22, 2014,
              in the Court of Common Pleas of Centre County,


BEFORE:     BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY OTT, J.:                               FILED OCTOBER 07, 2014



Pleas of Centre County involuntarily terminating her parental rights to her

sons, K.E.H., born in September of 2008, and C.L.H., born in October of
                                   1
                                       We affirm.

      The record reveals the relevant factual and procedural history, as

follows. On April 30, 2012, the Children were placed in the custody of the




1

the biological father of K.E.H., and R.E.K., the biological father of C.L.H., by
orders dated October 28, 2013. Neither of the biological fathers filed a
notice of appeal.
J-S51016-14


abuse involving C.L.H. The report alleged that Mother slapped C.L.H. in the

                                                               uth and nose

closed, resulting in him being unable to breathe. N.T., 10/28/13, at 84, 86.

The Children were adjudicated dependent on May 8, 2012. As a result of the

allegations involving C.L.H., Mother was charged with the crime of simple

assault. Following a trial, she was convicted of the charge and sentenced to

a term of incarceration for ninety days, i.e., from January 17, 2013, to April

19, 2013, after which she was placed on parole.        Id. at 84, 141; N.T.,

1/22/14, at 84.

      Since 2004, CYS had re




health. N.T., 10/28/13, at 50-                                 er son and the

              -brother, was placed in the custody of CYS on two occasions,

the second time being in March of 2011, due to allegations that Mother had



him temporarily in the care of R.H., her oldest son. Id. at 55-56. At the




                                                                  for Mother,

in part: acknowledge and cease use of inappropriate physical discipline;

maintain regular contacts and visits with the Children; cooperate with


                                    -2-
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reunification services; attend counseling regularly to work on emotional and

parenting issues; and

presence proper ways to provide nurturance and discipline.                  See id. at

Exhibit 6, ¶¶ 8-

permanency        goal   was     changed         to         planned   permanent    living

arrangement/long-term foster care with a concurrent goal of adoption. See

id. at Exhibit 24.

        On April 26, 2013, CYS filed petitions for the involuntary termination of

the parental rights of Mother and the respective biological fathers of the

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



parental rights to her older son, A.J.H., who is not a subject of this appeal. 2

An evidentiary hearing was held on October 28, 2013, with respect to A.J.H.

and the Children, and on January 22, 2014, with respect to the Children

only.    CYS presented testimony from the following witnesses, in relevant

part:    Joshua   Martin,   a   detective   at        the    Ferguson   Township   Police

Department; Christie Plazio, a family reunification counselor with the Centre

County Youth Service Bureau, which was a service provider for CYS; and

Casie Lea Rockey, a CYS casework supervisor.                     The Guardian Ad Litem

                                                                             bation and



2
    On December 18, 2013, CYS withdrew the petition for the involuntary


                                       -3-
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parole officer.   Mother testified on her own behalf, and she presented the




                                      o K.E.H. and C.L.H. Mother timely 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.

      On appeal, Mother raises one issue for our review:

      I. Did the Court of Common Pleas err by forever terminating the
      parental rights and duties of [Mother] with regard to K.E.H. and
      C.L.H.?



      We review this appeal according to the following standard:

      [A]ppellate courts must apply an abuse of discretion standard

      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 (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
      A.3d [567,] 572 [(Pa. 2011) (plurality)]. 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

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     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

     error of law or an abuse of discretion. In re Adoption of
     Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 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, 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

     statutory grounds for termination delineated in Section 2511(a).

     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) (citing 23 Pa.C.S.A.

§ 2511). The burden is on the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of



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parental rights are valid.   In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).




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
      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)(2), (b); see also In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc) (stating that this Court need only agree with

any one subsection of 23 Pa.C.S.A. § 2511(a), in addition to Section

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

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     To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

rights under Section 2511(a)(2), 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).

     With respect to Section 2511(b), the requisite analysis is 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,


     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).


                                    -7-
J-S51016-14




her parental rights because the issues involving her harsh discipline of the

Children have been resolved. In addition, Mother argues that, shortly after




the worst possibl



a different conclusion had they known that K.E.H. and C.L.H. would not be

                   Id. at 8.

      In its opi

as follows:

      Despite being offered a plethora of services to guide her away
      from harsh discipline and the use of drugs and alcohol, [Mother]
      rejected services and continued to discount as being untrue any
      of the instances where she tested positive for drugs and alcohol.
      [Mother] was generally uncooperative and denied access to her

      health care and the names of relatives for the Family
      Connections process. [Mother] denied any responsibility for the
      incident involving striking [C.L.H.] on the face and pushed the
      blame onto the authorities for not allowing the child to tell his
      full story. . . . She consistently discounted positive drug tests
      and denied using alcohol or drugs. . . . The Court found no
      desire to change in [Mother]; rather, she demonstrated an
      ongoing refusal to comply with simple rules.

      This Court also took into consideration the opinion of the [GAL]
      . . . who had opportunities to spend time getting to know the
      boys and to evaluate their adjustment in the foster home. [The
      GAL] indicated that both boys wish to stay in the [foster] home

      parental rights. This Court found that [Mother] could not offer
      the [C]hildren stability and concluded that termination of her

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       rights would best serve the needs and welfare of [C.L.H.] and
       [K.E.H.].

Trial Court Opinion, 3/24/14, at 7-8. The testimonial evidence supports the

       s findings, as follows.

       Christie Plazio, a reunification counselor with the Centre County Youth

Service Bureau, was involved with this family beginning in December of

2011, when only A.J.S., the older child, was in the custody of CYS, and

continuing thereafter, when the Children were also in the custody of CYS.

Her involvement lasted until November 27, 2012, at which time reunification

services were ended. Ms. Plazio testified on direct examination as follows:

                                                      ification services
       being offered to her? Was she cooperative? . . . .

       A. Overall she was not. [Mother] through the duration of
       services refused to participate in the Family Connections
       process, which is a state mandate.[3] She also refused up until I
       believe October of 2012 to participate in random drug testing.

N.T., 1/22/14, at 12.




                                           4
                                               Id. at 13. For instance, Ms. Plazio


3
    Ms. Plazio    testified that   the   Family Connections     process involves

identifying 40 people and then that list gets cut down to 20 that the family


4
    Ms. Plazio testified that her agency held a status review conference with

[Mother] needed to comply with all of [the] expectations in order for
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explained that her agency conducted unannounced home visits to Mother,

and a procedure was established that, if Mother was not home, the

counselor would leave a business card, and Mother was to place a telephone

call to the counselor whose name was on the business card. Id. The Youth

Service Bureau conducted twenty-nine unannounced visits, and Mother was

home for five them.     Id. at 14.    Mother placed a telephone call to the

visiting counselor only one time out of all the missed visits. Id. at 15. In

addition, Ms. Plazio testified that Mother was to participate in weekly

sessions with the reunification counselors. Id.

times [Mother] either canceled them or [Mother] would ask us to leave

within about approximately a half hour of being there and sessions typically

                      Id. at 9-10; see also id. at 13.

     Ms. Plazio testified regarding an incident that occurred between Mother

and the Youth Service Bur

aptly summarized as follows:


     erratic. She was observed to be agitated and her eyes rolled
     back and her eye[]lids fluttered quickly. On one occasion during
     a visit with [C.L.H.] and [K.E.H.] at the CYS office, [Mother] left
     the room to use the restroom and upon returning, she appeared
     very agitated and could not be calmed down. [When] [s]he was
     told to pull herself together or the visit would be cancelled, she
     swore and screamed at [the] caseworker[s]. . . . She pushed
     her way past a guard through the secured area. She then

services to continue. She chose not to. So when we had the [permanency
review] hearing in November [27, 2012], we had requested to end services
because it was apparent that [Mother] was not going to comply with the


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      the [C]hildren witnessed the incident.

Trial Court Opinion, 3/24/14, at 3 (citations to record omitted); see also

N.T., 1/22/14, at 22-25, 47-48.

      With respect to random drug testing, Ms. Plazio testified that Mother

participated in three tests while she was the fa

Id. at 18. Mother participated in the first random drug test on October 5,

2012, and it was positive for THC (marijuana), alcohol, opiates, and cocaine.

Id. at 20.      The second test was on October 27, 2012, but Ms. Plazio



apparently leaked on the way to the lab, and the label was difficult to read,

                                   Id. Mother participated in the third test on

November 7, 2012, and it was positive for THC and alcohol. Id. Ms. Plazio

testified on direct examination:

      Q. Did [Mother] refuse to be tested on occasion?

      A. There were occasions where she did refuse.

      Q. For any particular reason offered?

      A. For many of the occasions it was simply that she stated . . .

      services I believe our last session she told us that she refused to

      not give a damn.

Id. at 17-18.

      Finally, Ms. Plazio testified:

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      Q. Do you believe that [Mother] has remedied the situations
      that caused the removal of these children to the point where she
      can take care of [C.L.H.] and K.E.H.]? At least up to the point
      that your agency

      A. I was going to say up to the point where reunification
      services were involved, no.

Id. at 51-52.

      Casey     Rockey,   a CYS     casework      supervisor,   testified   on   direct



                                    5
is THC, on January 17, [20              N.T., 1/22/14, at 59. Ms. Rockey testified

as follows on direct examination:


      and [K.E.H.] at this point?

      A.   Our position remains that [C.L.H.] and [K.E.H.] should be

      rights. . . .

      Our position is that throughout our involvement with [Mother]
      that conditions that warranted the removal of the children
      continue to exist as evidenced by the most recent drug and
      alcohol test. In addition to her drug and alcohol test, she had

      has really not been cooperative with our agency, refused access
      to the home, and even was not able to refrain from using
      physical discipline on her children, which resulted in [C.L.H.] and
      [K.E.H.] coming into the care and custody of the agency.

Id. at 62-63. In addition, Ms. Rockey testified as follows:

      Q.   Do you believe that [Mother] can remedy [the conditions


      A. No, we do not.


5
                                       arole officer, testified that his office
conducted the drug test on January 17, 2014. N.T., 1/22/14, at 84.
                                         - 12 -
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      Q. Are there any services or assistance that [CYS], the Youth
      Service Bureau, or any other agency available in Centre County
      or elsewhere could offer or make available to [Mother] that
      would remedy the conditions which cause[d] both [C.L.H.] and
      [K.E.H.] to be in placement. . . ?


      to reunification, we attempted to provide in-home Family
      Intervention Crisis Services, they have a family preservation
      component, which [Mother] ultimately was uncooperative with,
      not only on a voluntary level but after the Court ordered her
      participation in that program.

                                        ...

      Q. So, no services for them that could remedy those conditions



      assured by the [CYS] office and [Mother] has continued to deny
      us access to her home.

N.T., 10/28/13, at 125-126.



Mother was paroled on her sentence for simple assault in April of 2013, and

that her parole term expires in December of 2017. N.T., 1/22/14, at 84, 86.

Mr. Jordan testified that Mother had two parole violations recently, one was

the positive drug test on January 17, 2014, and the other was she traveled

out of state without permission. Id. at 87. Mr. Jordan testified that, as a

result of these parole violations, M

                                                    Id.

      Mother acknowledged on direct examination that her relationship with



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have since learned that in order for my children to be better represented I

have to take a look at the way h

           Id.

have started to understand, you know, how my reaction toward certain

things    how it will be viewed to others, so     meaning, you know, we have

worked on my tone, the way that I answer things, and overall just my

                                                                          Id.

at 104.

      Nevertheless, even though convicted by a jury of simple assault

against C.L.H., Mother continues to dispute that she committed the crime

during her cross-examination by counsel for CYS. Id. at 127-128. Indeed,

Mother disputed that she used inappropriate physical discipline with any of

her children. She testified on direct examination that,

      Not
      strict background that means you do what you say and you say

      children in the way that I want them to conduct themselves, not
      by physical, but by setting boundaries and moving forward with
      those boundaries.

Id. at 93; see also id. at 120-121. In addition, Mother denied that she has

a history of illegal drug use or that she currently has a drug problem. Id. at

127-128. In fact, Mother

                                                Id. at 128.

      Mother testified on cross-examination by the GAL:



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       Q. So is it your expectation that this judge would say today that
       the [C]hildren are back with you or restart reunification? What
       is it that you want today?

       A. Well, what    I would love for my children to be   to return to

       heart. But I do understand that my previous behavior before
       perhaps has put a little damper on that being just clear set. So I
       am prepared and willing to receive any kind of reunification that
       I am able to participate in to obtain my children. I am willing to
       work towards that, as I have been doing since they have been in
       care.

Id.

                                                                         Id. at

170.

                                                                              rt




continued incapacity, abuse, neglect or refusal to acknowledge her use of

inappropriate physical discipline and her illegal drug abuse, in addition to her

lack of cooperation with CYS and reunification services, has caused the

Children to be without essential parental care, control or subsistence

necessary for their physical or mental well-being. Further, the causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied within



reunification is disingenuous when she has already had the opportunity to

demonstrate that she can provide proper parental care.             See In re

Adoption of M.E.P., supra

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

                                                    )).

      We next review the termination orders pursuant to Section 2511(b),



serve the developmental, physical, and emotional needs and welfare of the

Children.

      With respect to the bond analysis pursuant to Section 2511(b), our



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

            In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).        The T.S.M. Court

quoted with approval, as follows:

      [A]s Judge Tamilia eloquently observed while speaking for the


      positive emotion t                             In re K.K.R.-S.,
      958 A.2d 529, 535 (Pa. Super. 2008). Thus, Judge Tamilia
      cautioned against denying termination of parental rights based
      solely on the fact that a child has an attachment to the parent:

      serious parental rejection through abuse and neglect, and failure
      to correct parenting and behavior disorders which are harming
                                                            Id. at 535
      (quoting In re Involuntary Termination of C.W.S.M., 839
      A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J., dissenting).

In re T.S.M., 71 A.3d at 267 (footnote omitted). Further, the T.S.M. Court



have an obligation to see to their healthy development quickly. When courts




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fail . . . the result, all t

Id. at 269.

      In this case, the record demonstrates that the Children may harbor

some positive emotion toward Mother.          See N.T., 1/22/14, at 81; N.T.,

10/28/13, at 146-147, 158-159.          However, by the last day of the

termination hearing, the Children were in a pre-adoptive foster home, where

they had resided for a short time, since December 3, 2013, and Ms. Rockey,



                N.T., 1/22/14, at 60. Ms. Rockey testified, in part,

      I last visited the home on January 16th, was able to speak with

      in this home. I talked with them about our recommendation and
      used the term forever home and they were comfortable and
      excited.

Id.

              Id.

children are absolutely adoptable whether or not they are adopted by this

                    Id. at 66.    The GAL also expressed support for the

                                                           ren had indicated a

desire to remain with their foster family. Id. at 205-206, 208-209.

      In this appeal, Mother asserts that, after the termination orders were




                                     - 17 -
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                                                     Id. To the extent Mother

argues that this Court reverse the termination orders because the Children

allegedly are no longer in a pre-adoptive home, we reject her claim.

     This Court cannot consider that which is not part of the record in this

matter, nor allegations of events that occurred after the record was closed

before the orph                 See generally, Jahanshahi v. Centura

Development Co., Inc., 816 A.2d 1179, 1183 (Pa. Super. 2003);

Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996).             See

also Larson v. Diveglia

consistently maintained that the practice of alleging facts in a brief upon




termination of parental rights is not a proper consideration of this Court in

reviewing the termination orders.

     Moreover, the T.S.M.

provides that a pending adoption is not a prerequisite to termination of

parental rights involving agencies            In re T.S.M., 71 A.3d at 268; see

also 23 Pa.C.S. § 2512(b)

shall not be required to aver that an adoption is presently contemplated nor

                                                               herefore, even if

the Children were not in a pre-adoptive placement at the time of the




                                     - 18 -
J-S51016-14




     Upon careful review, we disce



best serve the developmental, physical, and emotional needs and welfare of

the Children pursuant to Section 2511(b).   See In re B.,N.M., 856 A.2d



right to the custody and rearing of . . . her child is converted, upon the



parenting and fulf




and (b).

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2014




                                  - 19 -
