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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: P.T.M. AND K.L.M., MINORS               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                                               :
                                               :
APPEAL OF: J.H. AND C.N.M.,                    :
FATHER AND MOTHER                              :
                                               :      No. 1539 MDA 2017

              Appeal from the Decree Entered September 5, 2017
              in the Court of Common Pleas of Lancaster County,
                      Orphans’ Court at No(s): 0287-2017


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 21, 2018

       J.H. (“Father”) and C.N.M. (“Mother”) appeal from the Decree entered

on September 5, 2017, granting the Petition filed by the Lancaster County

Children and Youth Social Service Agency (“Agency”) to terminate their

parental rights to their minor, female child, K.L.M. (“K”) (born in April of

2015). Mother additionally challenges the termination of her parental rights

her minor, male child, P.T.M. (“P”) (born in June of 2009).1       After careful

review, we vacate and remand for additional proceedings in the trial court.




____________________________________________


1 P’s father is R.F.M., whose paternal rights to P were voluntarily terminated
by a Decree entered on June 5, 2017. Trial Court Opinion, 11/2/17, at 1 n.1.
R.F.M. has not filed an appeal from the termination of his parental rights, nor
is he a party to the instant appeal.
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       In its Opinion, the trial court summarized the factual and procedural

history underlying the instant appeal, which we adopt as though fully restated

herein. See Trial Court Opinion, 11/2/17, at 1-14.

       On September 5, 2017, the trial court entered its Decree terminating

the parental rights of Mother to P, and of Mother and Father to K. On October

3, 2017, both parents filed a joint, single Notice of appeal from the Decree,

along with a Concise Statement of errors complained of on appeal, pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b).2

       Father and Mother argue that the Agency did not establish, by clear and

convincing evidence, the grounds for termination pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), and/or (8). Brief for Appellants at 15-57. Father and

Mother further contend that, even if the Agency established by clear and

convincing evidence grounds for termination pursuant to 23 Pa.C.S.A.


____________________________________________


2 On April 16, 2013, the Note to Pa.R.A.P. 341 was amended to state that,
where one or more orders resolves issues arising on more than one docket or
relating to more than one judgment, an appellant must file separate notices
of appeal from each order or judgment. See Pa.R.A.P. 341, Note. In General
Electric Credit Corp. v. Aetna Casualty and Surety Co., 263 A.2d 448,
452 (Pa. 1970), the Pennsylvania Supreme Court stated that “taking one
appeal from several judgments is not acceptable practice and is discouraged.”
In Commonwealth v. C.M.K., 932 A.2d 111, 113 (Pa. Super. 2007), this
Court quashed a joint notice of appeal filed by co-defendants from separate
judgments of sentence, citing General Electric, supra and Pa.R.A.P. 512,
Note. Father and Mother should have filed a separate notice of appeal from
the termination Decrees as to each child, and had the appeals entered on
separate dockets. If they had done so, the appeals would have been
consolidated for the convenience of the panel and the parties, in any event.
See Pa.R.A.P. 513. We, therefore, do not find the appeals defective, and will
address them.

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§ 2511(a), the Agency did not establish, by clear and convincing evidence,

the 23 Pa.C.S.A. § 2511(b) requirement, i.e., that the developmental, physical

and emotional needs and welfare of the children would not be harmed by

termination of parental rights. Brief for Appellants at 52. Father and Mother

assert that the case should be remanded for a proper subsection (b) analysis.

      In reviewing an appeal from the termination of 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 (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 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, 34
      A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575 Pa. 647, 838
      A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed
      for an abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. Id.

            As we discussed in R.J.T., there are clear reasons for
      applying an abuse of discretion standard of review in these cases.
      We observed that, unlike trial courts, appellate courts are not
      equipped to make the fact-specific determinations on a cold
      record, where the trial judges are observing the parties during the
      relevant hearing and often presiding over numerous other
      hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
      Therefore, even where the facts could support an opposite result,
      as is often the case in dependency and termination cases, an
      appellate court must resist the urge to second guess the trial court
      and impose its own credibility determinations and judgment;
      instead we must defer to the trial judges so long as the factual

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      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 (Pa. 1994).

In re Adoption of 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). “The

standard of clear and convincing evidence is defined as testimony that is so

“clear, direct, weighty and convincing as to enable the trier of fact to come to

a clear conviction, without hesitance, of the truth of the precise facts in issue.”

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). See

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

provides, in relevant part, as follows:

      § 2511. Grounds for involuntary termination

      (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:

          (1) The parent by conduct continuing for a period of at
          least six months immediately preceding the filing of the
          petition either has evidenced a settled purpose of
          relinquishing parental claim to a child or has refused or
          failed to perform parental duties.

          (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

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         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
         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.


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      With respect to subsection 2511(a)(1), our Supreme Court has held as

follows:

      Once the evidence establishes a failure to perform parental duties
      or a settled purpose of relinquishing parental rights, the court
      must engage in three lines of inquiry: (1) the parent’s explanation
      for his or her conduct; (2) the post-abandonment contact between
      parent and child; and (3) consideration of the effect of termination
      of parental rights on the child pursuant to Section 2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

      Further, this Court has directed that

      the trial court must consider the whole history of a given case and
      not mechanically apply the six-month statutory provision. The
      court must examine the individual circumstances of each case and
      consider all explanations offered by the parent facing termination
      of his or her parental rights, to determine if the evidence, in light
      of the totality of the circumstances, clearly warrants the
      involuntary termination.

In re B.,N.M., 856 A.2d 847, 854-55 (Pa. Super. 2004) (citations omitted).

      To satisfy the requirements of subsection 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

subsection 2511(a)(2), due to parental incapacity that cannot be remedied,

are not limited to affirmative misconduct; to the contrary, those grounds may

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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).

      When we review the trial court’s analysis of subsection 2511(a)(5), we

consider the following:

      Under [subsection] 2511(a)(5), we, thus, review the record to
      determine whether [a child has] been removed from [the parent]
      for six months and whether [the parent] can remedy the
      conditions leading to the removal of [the child]. See[] In the
      Interest of Lilley, 719 A.2d 327, 334 (Pa. Super. 1998) (the
      child has been removed from the parents by the court and the
      conditions which led to placement of the child continue to exist
      and have not been remedied within a reasonable time and
      termination of parental rights would best serve the needs and
      welfare of the child). We also note that in considering the
      importance of stability to a child’s welfare, the reasons why the
      child has been with the third party for so long must be taken into
      account. In Re: Adoption of Steven S., 417 Pa. Super. 247,
      612 A.2d 465, 471 (1992), appeal denied, 533 Pa. 661, 625 A.2d
      1194 (1993).

In re Adoption of T.B.B., 835 A.2d 387, 395 (Pa. Super. 2003).

      Further, to terminate parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(8), it must be demonstrated that “(1) [t]he child has been removed

from parental care for 12 months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to exist;

and (3) termination of parental rights would best serve the needs and welfare

of the child.” In re Adoption of M.E.P., 825 A.2d at 1275-76. “Section

2511(a)(8) sets a 12-month time frame for a parent to remedy the conditions

that led to the children’s removal by the court.” In re A.R., 837 A.2d 560,

564 (Pa. Super. 2003). Once the 12-month period has been established, the


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trial court must next determine whether the conditions necessitating

placement persist, despite the reasonable good faith efforts Agency supplied

over a realistic period of time.     Id.    Terminating parental rights under

subsection (a)(8) does not require the trial court to evaluate a parent’s current

“willingness or ability to remedy the conditions that initially caused

placement.” T.B.B., 835 A.2d at 396 (citation omitted).

      In its Opinion, the trial court provided a comprehensive summary and

analysis of the evidence supporting termination pursuant to subsections

(a)(1), (2), (5), and (8). See Trial Court Opinion, 11/2/17, at 2-14, 15-19.

Our review discloses that the trial court’s decision to terminate the parental

rights of Father and Mother under subsections (a)(1), (2), (5), and (8), is

supported by competent, clear and convincing evidence in the record, and we

discern no abuse of discretion in this regard. We therefore adopt the trial

court’s Opinion as to termination of Father’s and Mother’s parental rights

pursuant to subsections (a)(1), (2), (5) and (8). See Trial Court Opinion,

11/2/17, at 15-19.

      Next, we address Father’s and Mother’s claim that the trial court abused

its discretion in terminating their parental rights to their children pursuant to

section 2511(b). See Brief for Appellants at 50-55. Father and Mother assert

that the trial court improperly failed to conduct a separate analysis pursuant

to subsection (b), requiring remand to the trial court for a full analysis

pursuant to that subsection. See id. at 55.


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        The focus in terminating parental rights under subsection 2511(a) is on

the parent, but it is on the child pursuant to subsection 2511(b). See In re

Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In

reviewing the evidence in support of termination under section 2511(b), our

Supreme Court has stated the following:

               [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.[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
        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 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) (citation omitted).

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances … where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

        A parent’s abuse and neglect are likewise a relevant part of this analysis:

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      A child’s feelings toward a parent are relevant to the section
      2511(b) analysis. Nonetheless, concluding 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 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 [his or her] 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).      “[A] parent’s basic constitutional right to the

custody and rearing of … her child is converted, upon the failure to fulfill … her

parental duties, to the child’s right to have proper parenting and fulfillment of

[the child’s] potential in a permanent, healthy, safe environment.”           In re

B.,N.M., 856 A.2d at 856 (internal citations omitted).

      With regard to section 2511(b), the trial court stated the following:

             When the Agency has met its burden under [s]ection
      2511(a), the [c]ourt must also look to the requirements of
      [s]ection 2511(b) before terminating any parental rights. “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


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      to the giving of notice of the filing of the petition.”[FN] 23 Pa.C.S.A.
      § 2511(b). Section 2511(b) centers judicial inquiry upon the
      welfare of the child rather than the fault of the parent. In re A.R.,
      837 A.2d [at 565]. “Considering what situation would best serve
      the child’s needs and welfare, the court must examine the status
      of the bond between the natural parent and the child to consider
      whether terminating the parent’s rights would destroy an existing,
      necessary and beneficial relationship.” [T.B.B., 835 A.2d at 396].

            On appeal, the parents assert that the [c]ourt’s Order is not
      supported by evidence, and not in the best interests of the
      children. A review of the record, however, indicates otherwise.
      ___________________________________________________

      [FN]The parents’ Concise Statement asserts that this final sentence
      of section 2511(b) violates their due process and equal protection
      rights because the Agency can still use the setbacks and failures,
      occurring after the Petition is filed, against the parents. The
      [c]ourt notes that, in this matter, both the progress and setbacks
      or failures of these parents occurred before the February 2017
      Petition was filed; that the setbacks or failures continued
      afterwards did not alter the [c]ourt’s decision.

Trial Court Opinion, 11/2/17, at 15-16 (footnote in original).

      Although the trial court stated that the termination of Father’s and

Mother’s parental rights was in the best interests of the children, it failed to

discuss subsection (b) with regard to the evidence of record. Rather, the trial

court focused its analysis of the evidence strictly on subsection (a).           A

consideration of both subsections (a) and (b) is necessary for the involuntary

termination of parental rights. Therefore, we are constrained to vacate the

Decree, and remand the matter to the trial court for a full section 2511(b)

analysis. See T.S.M., supra; In re K.Z.S., supra.

      On remand, the trial court has the discretion to take additional

testimony and receive more evidence to complete the section 2511(b) best

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interests analysis.     Accordingly, although we discern no abuse of the trial

court’s discretion with regard to 23 Pa.C.S.A. § 2511(a), we vacate the Decree

and remand the case for the trial court’s consideration and analysis under 23

Pa.C.S.A. § 2511(b).          The trial court shall hold further evidentiary

proceedings, if necessary, and then enter a new decree.3

       Decree vacated.         Case remanded with instructions.    Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018




____________________________________________


3  Because of our disposition, we do not reach the parents’ argument
concerning whether the second portion of section (b) is unconstititutional as
violative of the guarantee to due process, and the trial court’s reasoning for
rejecting that argument. See Trial Court Opinion, 11/2/17, at 15 n.5, supra.

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