J-S65001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.J.P., A        :   IN THE SUPERIOR COURT OF
MINOR                                :        PENNSYLVANIA
                                     :
                                     :
APPEAL OF: S.H., MOTHER              :
                                     :
                                     :
                                     :
                                     :   No. 563 EDA 2017

             Appeal from the Order Entered February 6, 2017
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-AP-0001044-2016,
                         CP-51-DP-0000155-2016

IN THE INTEREST OF: J.J.H., A        :   IN THE SUPERIOR COURT OF
MINOR                                :        PENNSYLVANIA
                                     :
                                     :
APPEAL OF: S.H., MOTHER              :
                                     :
                                     :
                                     :
                                     :   No. 566 EDA 2017

             Appeal from the Order Entered February 6, 2017
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-AP-0001046-2016,
                         CP-51-DP-0002590-2015
J-S65001-17


    IN THE INTEREST OF: A.M.P., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: S.H., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 569 EDA 2017

                Appeal from the Order Entered February 6, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0001045-2016,
                            CP-51-DP-0002591-2015


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                             FILED NOVEMBER 21, 2017

        S.H., (“Mother”) appeals from the decrees entered on February 6,

2017, granting the petitions filed by the Philadelphia Department of Human

Services (“DHS” or the “Agency”), to involuntarily terminate her parental

rights to her children:       J.J.H., a male born in March 2011,1 and her two

children with J.P. (“Father”), A.M.P., a female born in February 2013, and

J.J.P., a male born in December 2015 (collectively, the “Children”), pursuant

to the Adoption Act, 23 Pa.C.S.A. § 2511.            In separate orders dated and

entered on February 6, 2017, the trial court changed the Children’s




____________________________________________


1
    J.J.H.’s father, J.H., is deceased. N.T., 2/6/17, at 8-9.




                                           -2-
J-S65001-17



permanency goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S.A.

§ 6351.2 We affirm.

       On November 2, 2016, DHS filed petitions for the involuntary

termination of Mother’s and Father’s parental rights to the Children, and for

the change of the Children’s permanency goal to adoption. On February 6,

2017, the trial court held an evidentiary hearing on the termination/goal

change petitions.        DHS presented the testimony of Monica Cook, the

supervisor of Bethanna, the Community Umbrella Agency (“CUA”); and

Katrina Bridges, a CUA social worker who serves as the case manager for

the Children. N.T., 2/6/17, at 17 and 64-65. Father and Mother testified on

their own behalf.3 Id. at 87 and 94.

       The trial court fully set forth the factual and procedural background of

this appeal, as follows:

       On September 13, 2014, [DHS] received a General Protective
       Services (GPS) report alleging that J.J.H. and A.M.P. were
       frequently left at home alone.        The report also alleged
       Philadelphia Police were often called to the home to address
       incidents of domestic violence and that there were broken items
____________________________________________


2
   In the decrees and orders entered on February 6, 2017, the trial court
involuntarily terminated Father’s parental rights to his two children, J.J.P.
and A.M.P., and changed their permanency goal to adoption. Father has
filed separate appeals from the termination decrees and change of goal
orders at Docket Nos. 656 and 657 EDA 2017, respectively, which are not
part of the appeals presently before this panel of the Court.

3
  Attorney Michael Graves, Jr., the court-appointed guardian ad litem
(“GAL”) representing the Children, was present at the termination/goal
change hearing, but did not file a brief on behalf of the Children.



                                           -3-
J-S65001-17


     in the home as a result of the domestic violence. Mother and . .
     . [F]ather were often observed fighting on the streets. The
     report was substantiated.

     On September 29, 2014, the family was referred for In-Home
     Protective Services (IHPS) to address the issues of drug abuse
     and domestic violence issues.

     On October 17, 2014, DHS went to the home [and] learned that
     Mother was enrolled in a methadone maintenance program and
     treatment program being monitored by the Goodman Clinic.
     Mother received individual and group therapy.     Mother was
     receiving dual diagnosis treatment at the Goodman [C]linic and
     had been recently incarcerated. Mother was on probation.

     On October 18, 2014, DHS observed J.J.H. at the home of his
     father and learned J.J.H. was diagnosed as suffering from
     asthma and a heart murmur. J.J.H.’s father reportedly followed
     up with proper medical treatment at Children’s Hospital of
     Philadelphia (CHOP)[.] J.J.H.’s father reported he had full
     custody of J.J.H. and Mother had supervised partial custody.

     On October 24, 2014, the family began receiving IHPS through
     Turning Points for Children (TPFC).

     On January 21, 2015, the family began receiving in-home
     services through [CUA], Bethanna.

     On February 7, 2015, Bethanna attempted an initial visit [to the]
     family. Bethanna met A.M.P. and J.J.P.’s paternal grandmother
     who reported that Mother was not present and had taken A.M.P.
     with her. Bethanna scheduled another visit with the family on
     February 10, 2015.

     On February 10, 2015, Bethanna met with the family. Bethanna
     observed that [Father’s] behavior was volatile. [Father] and
     Mother engaged in a verbal altercation during a telephone call.
     [Father] verbally abused Mother during the telephone
     conversation while in A.M.P.’s presence. [Father] reported he
     was arguing with Mother because she did not take him to the
     methadone clinic.

     [Father] reported Mother was using crack cocaine with her ex-
     boyfriend and had [begun] using crack cocaine one month

                                   -4-
J-S65001-17


     earlier. [Father] reported Mother had relapsed into drug use due
     to stress associated with the illness suffered by the [C]hildren’s
     maternal great-grandmother.        [Father] stated Mother was
     seeking a Protection from Abuse (PFA) order against him and he
     was unsure if he wanted to remain in the relationship.

     On February 17, [2015,] Bethanna went to the family’s home.
     Mother reported she had a chronic history of drug relapse
     triggered by stress and anxiety. Pursuant to the terms of
     Mother’s probation, she reported she was mandated to attend
     dual diagnosis treatment and therapy. Mother reported she was
     on the waiting list for therapy at a methadone clinic. Mother
     further reported she gave her all her money to [Father] and was
     unable to establish contact with J.J.H[.]’s [f]ather to return J.J.H.
     to his care. Mother believed J.J.H.’s father had relapsed into
     cocaine use.       Mother further explained the [C]hildren’s
     [m]aternal [g]reat-[g]randmother was hospitalized suffering
     which was emotionally difficult for her.

     On February 24, 2015, Bethanna learned that J.J.H. was residing
     with Mother during the week.

     On March 3, 2015, Bethanna went to the home and learned that
     Mother had rendered a positive drug screen for benzodiazepines
     three weeks earlier.         J.J.P. and A.M.P[.]’s [p]aternal
     [g]randmother ensured Bethanna [that Father] was not left
     alone with A.M.P. due to his diminished capacities.

     On March 24, 2015, Bethanna conducted a home visit and
     observed that Mother appeared to be tired and was falling asleep
     at the visit. Mother became more alert as the visit progressed.
     DHS learned that Mother tested positive for benzodiazepines,
     cocaine[,] and opiates on April 29, 2015.

     On May 6, 2015, Bethanna witnessed Mother sniffing shoe repair
     glue while supervising the children. Bethanna addressed these
     behaviors with [A.M.P.’s] [p]aternal [g]randmother, who agreed
     to ensure that Mother was not left alone with J.J.H. and A.M.P.

     DHS learned that on May 15, 2015, Mother tested positive for
     [benzodiazepines], marijuana[,] and cocaine.

     On May 19, 2015[,] Bethanna implemented a Safety Plan with
     Paternal Grandmother and Paternal Aunt which stated they

                                     -5-
J-S65001-17


     would ensure that J.J.H. and A.M.P. were not left alone with
     Mother. Paternal Grandmother and Paternal Aunt would provide
     line of sight supervision of J.J.H. and A.M.P. if either were not
     present in the home.

     On June 9, 2015[,] Bethanna learned Father had rendered a
     positive drug screen for cocaine and reportedly used cocaine
     upon learning Mother was pregnant again.

     DHS learned that on June 23, 2015, Mother tested positive for
     five different drugs including methadone.

     On July 1, 2015[,] Bethanna went to the home. Bethanna
     informed Mother she was observed with A.M.P. and J.J.H.
     without   supervision  of   J.J.P.   and    A.M.P.’s   [p]aternal
     [g]randmother. J.J.P. and A.M.P.’s [p]aternal [g]randmother
     reported she was with the family at the time but left to use the
     restroom. Bethanna reiterated that J.J.P. and A.M.P.’s [p]aternal
     [g]randmother must supervise Mother with the children at all
     times.

     DHS learned that on August 3, 2015, Mother tested positive for
     [c]ocaine, [benzodiazepines], marijuana, fentanyl and opiates.

     On August 14, 2015, Bethanna went to visit the family and found
     A.M.P. and J.J.H. unsupervised at a swimming pool with Mother.

     DHS learned that on August 19, 2015, Bethanna implemented a
     Safety Plan with Paternal Grandmother and Paternal Aunt.

     On August 26, 2015, Bethanna learned that Mother attended a
     prenatal appointment at Thomas Jefferson University Hospital on
     August 20, 2015 and her current pregnancy was diagnosed as
     high risk.

     On September 22, 2015, DHS filed a Dependent Petition for
     J.J.H. and A.M.P. based on the ongoing issues of drug abuse,
     domestic violence and lack of appropriate supervision in the
     home.

     [On] October 1, 2015, an Adjudicatory Hearing for J.J.H. and
     A.M.P. was held before the Honorable Vincent L. Johnson. Judge
     Johnson ordered CUA to locate J.J.H. and A.M.P. for placement
     with the agency. The [c]ourt ordered police assistance was to

                                   -6-
J-S65001-17


     be afforded, if necessary. The address and location of the
     children was ordered to be kept confidential. Judge Johnson
     further ordered Mother to refrain from contact with J.J.H. and
     A.M.P. except during court-ordered visits. Mother was referred
     to [C]linical Evaluation Unit (CEU) for a drug screen, dual
     diagnosis assessments and weekly drug screen. Judge Johnson
     ordered a Parenting Capacity Evaluation (PCE).            DHS
     subsequently learned that Mother tested positive for
     benzodiazepines and methadone at the CEU.

     On October 5, 2015, J.J.H. and A.M.P. were placed in the home
     of their [m]aternal aunt and uncle through Bethanna.

     [In] November 2015, J.J.H.’s father died.

     On December 14, 2015, J.J.H.’s [p]aternal [g]randparents filed a
     motion to intervene pursuant to custody of J.J.H.

     On December 17, 2015, a Permanency Review hearing for A.M.P.
     and J.J.H. was held before Judge Johnson, who ordered A.M.P.
     and J.J.H. remain committed to DHS. Mother was re-referred to
     the CEU for a drug screen, dual diagnosis assessments,
     monitoring, and three random drug screens prior to the next
     court date. The [c]ourt found that Mother had exhibited no
     [compliance] with the permanency plan. It was reported Mother
     was not attending Family School. [T]he [c]ourt ordered that
     Family School make note of how many time[s] Mother fell asleep
     during the Family School session. The [c]ourt ordered Mother’s
     Family School sessions be suspended if she continued to “nod
     off” in class. CUA was directed to provide the Child [A]dvocate
     with the documentation of Mother’s participation in drug and
     alcohol treatment.

     [In] December 2015[,] Mother gave birth to J.J.P. at the Hospital
     of the University of Pennsylvania (HUP).

     On December 21, 2015[,] DHS received a GPS report which
     alleged that Mother and J.J.P. tested positive for opiates at the
     time of J.J.P.’s birth. . . . J.J.P. was born [at] 37 weeks and five
     [days’] gestation weighing six pounds and 12 ounces. Mother
     was involved in a car accident prior to J.J.P.’s birth. Mother had
     violated the conditions of her parole and was incarcerated for 45
     days. Mother was released from incarceration on November 12,
     2015. The report was determined to be valid.

                                    -7-
J-S65001-17



     On December 23, 2015, DHS made a visit to the Hospital of
     University of Pennsylvania (HUP) and met with Mother. Mother
     stated she had been prescribed opiates, however [she] could not
     provide proof of the prescription. DHS observed that Mother
     appeared to [be] under the influence of an unknown substance.

     DHS learned that on at least two other occasions, Mother was
     under the influence of drugs when she visited J.J.P.

     On January 14, 2016, J.J.H.’s paternal grandparents filed an
     amended motion to intervene.

     On January 15, 2016, DHS learned that Mother was often
     disruptive when she attended therapy at the Goldman Clinic.
     Mother rendered a positive drug screens in December 2015 and
     January 2016.

     On January 21, 2016, J.J.P. was ready to be discharged from the
     hospital. DHS obtained an Order of Protective Custody (OPC)
     and J.J.P. was placed in the Lutheran Children and Family
     Service foster home.

     At the Shelter Care hearing for J.J.P. held on January 22, 2016,
     the Court lifted the OPC, ordered the temporary commitment to
     DHS stand. Mother was referred to Clinical Evaluation Unit (CEU)
     for drug screen, an assessment and monitoring. The [c]ourt
     ordered Mother to receive three random drug screens unless she
     actively participat[ed] in a treatment program.

     On January 29, 2016, an Adjudicatory Hearing for J.J.P. was held
     before the Honorable Lyris F. Younge[,] who discharged J.J.P.’s
     temporary commitment to DHS, adjudicated him dependent and
     committed him to DHS. Judge Younge ordered Mother referred
     to the CEU for monitoring and a drug screen. DHS was ordered
     to assess the appropriateness of a mother/baby drug treatment
     program for Mother and J.J.P. Mother was granted twice weekly
     supervised visits.

     On February 29, 2016, a Motion Hearing for J.J.H. was held
     before Judge Younge, who denied the motion to intervene and
     ordered that J.J.H. remain as committed to DHS.




                                  -8-
J-S65001-17


     On March 17, 2016, a Permanency Review Hearing for J.J.H.,
     A.M.P.[,] and J.J.P. was held before Judge Younge, who ordered
     that they remain committed to DHS. As to J.J.H., Judge Younge
     ordered that Mother be referred to the Behavioral Health System
     (BHS) for an evaluation and a consultation. As to all three
     children, Judge Younge ordered that Mother’s visits [be]
     suspended until the next court date after Mother was escorted
     from the courtroom after she displayed erratic behavior during
     the hearing. Judge Younge found that Mother was regularly
     attending a methadone maintenance program at the Goldman
     Clinic and had been successfully discharged from treatment at
     the Kirkbridge Center, and ordered that the Goldman Clinic
     provide treatment reports to CUA for the next court hearing.

     On April 26, 2016, J.J.H. and A.M.P. were moved to a foster
     home through A Second Chance after it was learned that J.J.H.
     and A.M.P. were seen in an automobile and at a methadone
     clinic with Mother.

     On June 2, 2106, a Permanency Review Hearing for J.J.H.,
     A.M.P.[,] and J.J.P. was held before Judge Younge[,] who
     ordered that the [C]hildren remain committed to DHS. Judge
     Younge ordered the judicial removal of J.J.H. and A.M.P. from
     their foster home. Judge Younge ordered the foster parents be
     prohibited from any contact or visits with J.J.H. and A.M.P.
     Judge Younge issued a Stay Away Order as to the foster parents
     who reportedly threatened [] the entire CUA (Bethanna) agency
     including the CUA social worker and social worker supervisor.
     Judge Younge ordered the foster parents[’] home never to be
     considered as a foster home in the future. Mother was referred
     to CEU for drug screens and her visits were suspended until
     further order of the [c]ourt. Mother was ordered to obtain and
     provide documentation of her participation in a drug and alcohol
     treatment program and submit it to the Court. The [C]hildren’s
     addresses were ordered to remain confidential.

     On September 1, 2016, a Permanency Review Hearing for J.J.H.,
     A.M.P.[,] and J.J.P. was held before Judge Younge[,] who
     ordered the [C]hildren remain as committed to DHS. The [c]ourt
     found that Mother had been sentenced to three years of
     additional probation pursuant to a violation of her probation.
     Judge Younge further noted Mother attended an outpatient drug
     and alcohol treatment program at the Goldman Clinic and had
     been discharged from the Achieving Reunification Center (ARC).

                                  -9-
J-S65001-17


      Mother was referred to CEU for drug screens, monitoring and
      random drug screens prior to the next court date. Mother’s visits
      remained suspended until further order of the [c]ourt. The
      [c]ourt ordered no family members be considered as placement
      resources for J.J.H., A.M.P.[,] and J.J.P.

      The matter was the listed on a regular basis before judges of the
      Philadelphia Court of Common Pleas, Family Court Division-
      Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42
      Pa.C.S.A. § 6351, and evaluated for the purpose of reviewing the
      permanency plan of the [Children].

      In subsequent hearings, the Dependency Review Orders reflect
      the [c]ourt’s review and disposition as a result of evidence
      presented, primarily with the goal of finalizing the permanency
      plan.

      On February 6, 2017, during the Termination of Parental Rights
      Hearing for [M]other, the Court found by clear and convincing
      evidence that Mother’s parental rights of J.J.H., A.M.P.[,] and
      J.J.P. should be terminated pursuant to the Juvenile Act.
      Furthermore, the [c]ourt held it was in the best interest of the
      [C]hildren that the goal be changed to [a]doption.

Trial Court Opinion, 7/19/17, at 1-6.

      In decrees and orders entered on February 6, 2017, the trial court

involuntarily terminated Mother’s parental rights to the Children and

changed their permanency goal to adoption. On February 12, 2017, 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) with regard to the

termination decrees and goal change orders. On March 1, 2017, this Court,

acting sua sponte, consolidated Mother’s appeals.

      In her brief on appeal, Mother raises the following issues:

      1. Whether the trial court erred and/or abused its discretion by
      terminating the parental rights of Mother [] pursuant to 23

                                    - 10 -
J-S65001-17


       Pa.C.S.A. [§] 2511(a)(1) where Mother presented evidence that
       she tried to perform her parental duties[?]

       2. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of Mother [] pursuant to 23
       Pa.C.S.A. [§] 2511(a)(2) where Mother presented evidence that
       she has remedied her situation by maintaining housing, taking
       parenting classes and intensive drug treatment counselling and
       has the present capacity to care for her children[?]

       3. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of Mother [] pursuant to 23
       Pa.C.S.A. [§] 2511(a)(5) where evidence was provided to
       establish that the [C]hildren were removed from the care of the
       Mother and Mother is now capable of caring for her children[?]

       4. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of Mother [] pursuant to 23
       Pa.C.S.A. [§] 2511(a)(8) where evidence was presented to show
       that Mother is now capable of caring for her children after she
       completed parenting classes, secured and maintained housing
       and continued her drug treatment program[?]

       5. Whether the trial court erred and/or abused its discretion by
       terminating the parental rights of Mother [] pursuant to 23
       Pa.C.S.A. [§] 2511(b) where evidence was presented that
       established the [C]hildren had a close bond with [] Mother and
       [they] had lived with [] Mother for the most part of their lives.
       Additionally, Mother consistently visited with her children when
       she was permitted to visit them]?]

Mother’s Brief at 7.4


____________________________________________


4
  Mother waived any challenge to the change of the Children’s permanency
goal by her failure to raise the issue in her concise statement and in the
statement of questions involved in her brief on appeal. See Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both his concise statement of errors complained of on appeal and the
statement of questions involved in his brief on appeal).



                                          - 11 -
J-S65001-17


     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., 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., 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 [] discussed in R.J.T., there are clear reasons for applying an
     abuse of discretion standard of review in these cases. [The
     R.J.T. Court] 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
     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, 650 A.2d 1064, 1066 (Pa. 1994).

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

                                    - 12 -
J-S65001-17


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

banc). We will consider section 2511(a)(1) and (2) together, as did the trial

court. 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 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,

                                     - 13 -
J-S65001-17


      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.

      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 stated:

      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, 854-855 (Pa. Super. 2004) (citations

omitted).

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

must produce clear and convincing evidence regarding the following



                                    - 14 -
J-S65001-17



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 regard to a parent’s incarceration, in In re Adoption of S.P., our

Supreme Court reiterated the standard of analysis pursuant to section

2511(a)(1) for abandonment and added as follows:

     [a]pplying [In re: Adoption of McCray,] the provision for
     termination of parental rights based upon abandonment, now
     codified as § 2511(a)(1), we noted that a parent “has an
     affirmative duty to love, protect and support his child and to
     make an effort to maintain communication and association with
     that child.” [331 A.2d 652, 655 (Pa. 1975)]. We observed that
     the father’s incarceration made his performance of this duty
     “more difficult.” Id.

                                    ...

     [A] parent’s absence and/or failure to support due to
     incarceration is not conclusive on the issue of abandonment.
     Nevertheless, we are not willing to completely toll a parent’s
     responsibilities during his or her incarceration. Rather, we must
     inquire whether the parent has utilized those resources at his or
     her command while in prison in continuing a close relationship
     with the child. Where the parent does not exercise reasonable

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      firmness in declining to yield to obstacles, his other rights may
      be forfeited.

In re Adoption of S.P., 47 A.3d at 828 (quoting In re: Adoption of

McCray, 331 A.2d at 655 (footnotes and internal quotation marks omitted in

original)).   Further, the Supreme Court stated, “incarceration neither

compels nor precludes termination of parental rights.” In re Adoption of

S.P., 47 A.3d at 828 (adopting this Court’s statement in In re Z.P., 994

A.2d 1108, 1120 (Pa. Super. 2010)).

      The Supreme Court addressed the relevance of incarceration in

termination decisions under section 2511(a)(2) as follows:

      [I]ncarceration is a factor, and indeed can be a determinative
      factor, in a court’s conclusion that grounds for termination exist
      under § 2511(a)(2) where the repeated and continued incapacity
      of a parent due to incarceration has caused the child to be
      without essential parental care, control or subsistence and that
      the causes of the incapacity cannot or will not be remedied.

In re Adoption of S.P., 947 A.3d at 829.

      After revisiting its decision in In re: R.I.S., 36 A.3d 567 (Pa. 2011),

regarding incarcerated parents, the Supreme Court stated:

      [W]e now definitively hold that incarceration, while not a litmus
      test for termination, can be determinative of the question of
      whether a parent is incapable of providing “essential parental
      care, control or subsistence” and the length of the remaining
      confinement can be considered as highly relevant to whether
      “the conditions and causes of the incapacity, abuse, neglect or
      refusal cannot or will not be remedied by the parent,” sufficient
      to provide grounds for termination pursuant to 23 Pa.C.S.
      § 2511(a)(2). See e.g. Adoption of J.J., 515 A.2d at 891 (“[A]
      parent who is incapable of performing parental duties is just as
      parentally unfit as one who refuses to perform the duties”); [In
      re:] E.A.P., [944 A.2d 79, 85 (Pa. Super. 2008)] (holding
      termination under § 2511(a)(2) supported by mother’s repeated

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     incarcerations and failure to be present for child, which caused
     child to be without essential care and subsistence for most of her
     life and which cannot be remedied despite mother’s compliance
     with various prison programs). If a court finds grounds for
     termination under subsection (a)(2), a court must determine
     whether termination is in the best interests of the child,
     considering the developmental, physical, and emotional needs
     and welfare of the child pursuant to § 2511(b). In this regard,
     trial courts must carefully review the individual circumstances for
     every child to determine, inter alia, how a parent’s incarceration
     will factor into an assessment of the child’s best interest.

In re Adoption of S.P., 47 A.3d at 830-31.

     With regard to section 2511(a)(1), Mother challenges the sufficiency of

the evidence to support termination, claiming that the evidence at the

hearing clearly demonstrated that she had taken substantial steps toward

satisfying her Family Service Plan (“FSP”) objectives, and did not act with a

settled purpose of relinquishing her parental rights or refuse to perform her

parental duties. Mother’s Brief, at 10 and 15. Mother states that she has

completed her parenting goal and was attending domestic violence classes.

Id. at 15.   Mother also states that she was visiting the Children regularly

when she was permitted to do so.

     With regard to section 2511(a)(2), Mother challenges the sufficiency

of the evidence to support termination, as she claims that she has remedied

the conditions that caused the placement [of the] Children by substantially

completing her FSP goals of attending parenting classes, attending visitation

with the Children, and attending domestic violence classes. Id. at 10 and

15-16. Mother states that she visited regularly with the Children, when she

was permitted to visit, and that she has completed her inpatient treatment


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J-S65001-17



at the Goldman Clinic and continues to attend treatment at the clinic. Id. at

16. Mother claims that she is now able to care for the Children and provide

a safe home for herself and the Children. Id.

     In its opinion, the trial court stated as follows:

     To satisfy § 2511(a)(1), the moving party must produce clear
     and convincing evidence of conduct sustained for at least six (6)
     months prior to filing of the termination petition, which reveal a
     settled intent to relinquish parental claim to a child or a refusal
     or failure to perform parental duties. It is clear from the record
     that for a period of six (6) months leading up to the filing of the
     Petition for Involuntary Termination, [M]other failed to perform
     parental duties for the [C]hildren. The [c]ourt found by clear
     and convincing evidence that [M]other refused or failed to
     perform her parental duties.

     In the instant matter, the social worker testified Mother lacked
     the ability to complete her Single Case Plan objectives of
     maintaining and achieving sobriety from substance abuse
     problems, complying with court ordered Parenting Capacity
     Evaluation, certificate from Family School, visitation and
     housing. Furthermore[,] the social worker testified there were
     issues with domestic violence. The social worker testified Mother
     was referred to ARC[;] however[, she] did not complete
     parenting courses[.]      Evidence was offered to show ARC
     discharged Mother due to noncompliance. Furthermore [the]
     social worker testified Mother’s lack of engagement in the Single
     Case meetings was an issue due to lack of sobriety.

     The social worker testified [to] concern Mother tested very high
     positive in October 2015 for [benzodiazepines] as the case
     initiated. Furthermore, the social worker testified there were
     inconsistencies in the level of use of [benzodiazepines]
     throughout the life of the case. Testimony revealed concern
     Mother     was  using     additional  substances    aside   from
     [benzodiazepines] as well as methadone.

     A parent has an affirmative duty to act in her children's best
     interest. “Parental duty requires that the parent not yield to
     every problem, but must act affirmatively, with good faith


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J-S65001-17


     interest and effort, to maintain the parent-child relationship to
     the best of his or her ability, even in difficult circumstances.” In
     re Dale A., II, 683 A.2d 297, 302 (Pa. Super. 1996). In
     reference to the parental contact, “to be legally significant, the
     contact must be steady and consistent over a period of time,
     contribute to the psychological health of the child, and must
     demonstrate a serious intent on the part of the parent to
     recultivate a parent-child relationship, and must demonstrate
     and willingness and capacity to undertake the parenting role”.
     In re D.J.S., 737 A2d 283, 286 (Pa. Super. 1999) (quoting In
     re Adoption of Hamilton, 549 A.2d 1291, 1295 (Pa.Super.
     1988)).

     In the present matter, J.J.H. and A.M.P. have been in DHS
     custody for [27] months and J.J.P. has been in custody for [13]
     months []. The testimony of [the] social worker stated Mother’s
     behavior necessitated several changes in the [C]hildren’s
     placement on several occasions. The social worker’s testimony
     revealed [M]other made in inappropriate statements during visits
     with the [C]hildren and visits were suspended by Court Order[.]
     Furthermore, [the] social worker testified Family School was
     discontinued by [the c]ourt order after a report was submitted
     regarding Mother’s erratic behavior and lack of sobriety in the
     sessions. The social worker testified Family School reported
     Mother fell asleep in the restroom attending to A.M.P.’s needs.
     Furthermore, [the] social worker’s testimony revealed concern
     for [the] safety and stability for [the C]hildren due to Mother’s
     frequent incarcerations in prison.

     Section 2511(a)(2) requires that “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 her physical or mental well-being and the condition
     and causes of the incapacity, abuse, neglect, or refusal, cannot
     or will not be remedied by the parent. 23 Pa.C.S.A. § 2511
     (a)(2).

     Termination of parental rights under § 2511(a)(2) is not limited
     to affirmative misconduct but 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).

     The [c]ourt’s decision was reflective of testimony which revealed
     Mother’s struggle with drug [addiction] and minimal progress

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J-S65001-17


      with treatment. Moreover, the [c]ourt found Mother’s repeated
      and continued inappropriate behavior in [c]ourt and specifically
      during visits with the [C]hildren.

                                     ...

      For the foregoing reasons, the [c]ourt finds that the [DHS] met
      its statutory burden by clear and convincing evidence regarding
      the termination of parental rights pursuant to 23 Pa.C.S.
      § 2511(a)(1) [and] (2)[.]

Trial Court Opinion, 7/19/17, at 6-8 and 9 (some internal citations omitted).

      After a careful review of the record, it is clear that the trial court’s

conclusion that Mother failed to perform parental duties with regard to the

Children, and its termination of her parental rights under section 2511(a)(1),

are supported by competent, clear and convincing evidence in the record.

In re Adoption of S.P., 47 A.3d at 826-827.       Likewise, we find that the

trial court’s conclusion regarding section 2511(a)(2) is supported by clear

and convincing evidence.     Id.   Specifically, Mother has demonstrated a

repeated and continued incapacity, abuse, neglect or refusal that has caused

the Children to be without essential parental care, control or subsistence

necessary for her physical or mental well-being, and the conditions and

causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied by Mother. Thus, we find no abuse of discretion in the trial court’s

termination of Mother’s parental rights to the Children pursuant to section

2511(a)(1) and (2).

      This Court has stated that the focus in terminating parental rights

under section 2511(a) is on the parent, but it is on the child pursuant to



                                    - 20 -
J-S65001-17


section 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 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 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).

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

     In order to terminate the parental rights, the party seeking
     termination must prove by clear and convincing evidence that
     the termination is in the best interest of the child. 23 Pa.C.S.
     § 2511(b); In re Bowman, 647 A.2d 217 (Pa. Super. 1994).
     The best interest of the child is determined after consideration of
     the needs and welfare of the child. The trial court must examine
     the individual circumstances of each case and consider all
     explanations offered by the parent facing termination of [her]
     parental rights to determine if the evidence, in the light of the
     totality of the circumstances, clearly warrant[s] involuntary
     termination.

     When determining the best interest of the child, many factors
     are to be analyzed, “such as love, comfort, security, security and
     stability. In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa.
     Super. 2003). Another factor that a court is to consider is what,
     if any, bond exist[s] for the child.        In re Involuntary
     Termination of C.W.S.M[.] and KA.L.M., 839 A.2d 410, 415
     (Pa. Super 2003).


                                   - 21 -
J-S65001-17


     Pursuant to Section 2511(b), the trial court must take [into]
     account whether a natural parental bond exists between child
     and parent, and whether termination would destroy an existing,
     necessary and beneficial relationship. In re C.S., 761 A.2d
     1197 (Pa. Super. 2000).

     Here, [the] social worker testified [that] J.J.H, A.M.P.[,] and
     J.J.P. were placed in the same home and bonded with each other
     and their foster parent.        Furthermore, the social worker
     testified[,] the [C]hildren were placed in a foster home willing to
     provide permanency for all three children together.

     The [c]ourt found the social [worker’s] testimony to be credible.
     The [c]ourt stated concern about Mother’s struggles with drug
     addiction and the full gravity of her addiction. The [c]ourt
     reasoned it [sic] decision on the lack stability of Mother’s
     parental capacity and insight in this particular matter. The
     [c]ourt referenced DHS records of repeated domestic violence
     issues which Mother admitted in her testimony. The [c]ourt
     found convincing the evidence introduced where Mother posted
     case information on public access social media after a stern
     warning from the [c]ourt. The [c]ourt expressed concern for the
     safety of the parties and court personnel in the courtroom due to
     [the] inflammatory nature of the comments and information
     Mother posted on social media to undermine the integrity of the
     judicial process. The [c]ourt held Mother in contempt of a
     previous [c]ourt [o]rder preventing[] the use of social media by
     Mother. Mother was incarcerated for 60 days for the violation.
     The [c]ourt also issued an [o]rder of [p]rotection for the social
     workers assigned to the case. The Court also ordered a [s]tay
     [a]way order for Mother and her family due to the threats
     produced by Mother on social [media]. The [c]ourt expressed
     grave concern regarding Mother’s inappropriate behavior,
     inappropriate actions and exercise of poor judgement[sic][.] The
     [c]ourt expressed a safety concern if the [C]hildren were
     reunified with Mother. Hence, the [c]ourt concluded [that] the
     [C]hildren would not suffer irreparable or detrimental harm if
     Mother’s rights were involuntary[sic] terminated.

     The [t]rial [c]ourt found by clear and convincing evidence that
     [DHS] met [its] statutory burden pursuant to 23 Pa.C.S.A.
     § 2511 (a) (2), (5), (8) & (b) and that it was in the best interest
     of the [C]hildren[] to change their goal to adoption[.]


                                   - 22 -
J-S65001-17


                                        ...

        For the foregoing reasons, the [c]ourt [found] that [DHS] met its
        statutory burden by clear and convincing evidence regarding the
        termination of parental rights pursuant to 23 Pa.C.S. § 2511(b).
        Furthermore, the [c]ourt [found] that its ruling will not cause
        J.J.H., A.M.P.[,] and J.J.P. to suffer irreparable harm and it is in
        the best interest of the [C]hildren based on the testimony
        regarding the [C]hildren’s safety, protection, mental, physical
        and moral welfare, to terminate [M]other’s parental rights.

Trial Court Opinion, 7/19/17, at 8-9 (some internal citations omitted).

        Mother argues that DHS failed to satisfy the statutory requirements for

termination under section 2511(b).         Mother asserts that the two older

children lived with her for most of their lives, and that all three of the

Children have a bond with her.         Mother’s Brief at 12 and 18.       Mother

contends that she “should have been provided with realistic goals that would

have permitted her [to have] unsupervised visitation with her children.” Id.

at 18. Mother urges that the requirements of section 2511(b) are not met

because the best interests of the Children are not served by termination of

her parental rights. Id.

        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

                                       - 23 -
J-S65001-17


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:

      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). Thus, the court may emphasize the safety

needs of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary

termination of parental rights, despite existence of some bond, where

placement with mother would be contrary to child’s best interests).           “[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 847, 856

(Pa. Super. 2004) (internal citations omitted).           Here, the trial court



                                      - 24 -
J-S65001-17


appropriately considered the safety of the Children as weightier than any

affection the young children might feel for Mother.

      Further, this Court has held that a parent’s love of her child, alone,

does not preclude a termination. See In re L.M., 923 A.2d 505, 512 (Pa.

Super. 2007) (stating that a parent’s own feelings of love and affection for a

child, alone, will not preclude termination of parental rights).    It is well-

settled that “we will not toll the well-being and permanency of [a child]

indefinitely.”   In re Adoption of C.L.G., 956 A.2d at 1007 (citing In re

Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that 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.”)).

      After a careful review of the record, we find that termination of

Mother’s parental rights to the Children was warranted pursuant to section

2511(b), as the evidence showed that the Children’s developmental, physical

and emotional needs and welfare will best be met by the termination of

Mother’s parental rights. Further, the evidence showed that there is no bond

between Mother and the Children that is worth preserving.          As there is

competent evidence in the record that supports the trial court’s findings and

credibility determinations, we find no abuse of the trial court’s discretion in

terminating Mother’s parental rights to the Children under section 2511(b).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27.

      Additionally, we find Mother’s contention, in relation to subsection (b),


                                      - 25 -
J-S65001-17


that DHS did not set reasonable goals for her to meet is akin to her arguing

that DHS did not make reasonable efforts to reunify the Children with her.

See Mother’s Brief, at 18. When reviewing a termination decree on appeal,

we do not consider whether DHS made reasonable efforts.       Our Supreme

Court has rejected the argument that the provision of reasonable efforts by

the county children’s services agency is a factor in termination of the

parental rights of a parent to a child. See In the Interest of: D.C.D., a

Minor, 105 A.3d 662, 673-674, 676 (Pa. 2014) (rejecting the suggestion

that an agency must provide reasonable efforts to enable a parent to reunify

with a child prior to the termination of parental rights, and rejecting the

suggestion that section 2511 of the Adoption Act should be read in

conjunction with section 6351 of the Juvenile Act, particularly section

6351(f)(9)(iii)).   Thus, based on our Supreme Court’s holding in In the

Interest of: D.C.D., a Minor, we find no merit to Mother’s argument.

      We, therefore, affirm the trial court’s decrees terminating Mother’s

parental rights to the Children, and the orders changing the Children’s

permanency goal to adoption.

      Decrees and orders affirmed.




                                     - 26 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




                          - 27 -
