J-A30030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: C.J., A MINOR                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: S.D., BIRTH MOTHER              :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1082 WDA 2018


                  Appeal from the Order Entered, July 2, 2018,
              in the Court of Common Pleas of Allegheny County,
              Orphans' Court at No(s): CP-02-AP-0000034-2018.


BEFORE:      SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 31, 2019

       S.D. (Mother) appeals the orphans’ court order involuntarily terminating

her parental rights to her eight-year-old daughter, C.J. (Child), pursuant to

23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b) of the Adoption Act.1 After careful

consideration, we affirm.

       The Allegheny County Office of Children Youth and Families (CYF)

became involved with the family in March 2014 following allegations that C.J.’s

two-year-old sibling was left home alone and naked. 2 Mother was criminally

charged for the incident, leading to a summary disorderly conduct conviction

after Mother completed parenting classes.            CYF worked with Mother to
____________________________________________


1The orphans’ court also terminated the parental rights of C.A.J. (Father),
who does not appeal.

2At the time of the termination hearing, Mother had four other, non-subject
children, three of which are out of her care.


*    Retired Senior Judge assigned to the Superior Court.
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implement a safety program to keep Child in her care, but CYF eventually

removed Child from the home after Mother left Child in a relative’s home

where there was alleged domestic violence. The juvenile court adjudicated

Child dependent in July 2014.

     CYF established goals to facilitate the reunification between Mother and

Child. The goals included: Obtain prenatal care for Mother’s expected child;

resolve all criminal matters; engage in drug/alcohol assessment; submit to a

mental health evaluation; attend random drug screens; attend all medical,

dental, and educational events; and obtain housing. While Mother purportedly

made some progress, the court did not believe she was capable of caring for

Child, who suffers from significant behavioral issues. On May 30, 2017, the

court changed the dependency goal from reunification to adoption.          On

January 30, 2018, CYF filed a petition to involuntarily terminate Mother’s

rights. The orphans’ court held a hearing on June 22, 2018.

     Child’s legal interests were represented by counsel pursuant to 23

Pa.C.S.A. § 2313(a).    After consulting with Child regarding her preferred

outcome, counsel advocated against termination. Nevertheless, the orphans’

court granted CYF’s petition and terminated Mother’s rights. Mother filed this

timely appeal. She presents two issues for our review:

        1. Did the orphans’ court abuse its discretion and/or err as
        a matter of law in granting the petition to involuntarily
        terminate Mother’s parental rights pursuant to 23 Pa.C.S.A.
        § 2511(a)(2), (5), and (8)?

        2. Did the orphans’ court abuse its discretion and/or err as
        a matter of law in concluding that CYF met its burden of

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         proving by clear and convincing evidence that termination
         of Mother’s parental rights would best serve the needs and
         welfare of the child pursuant to 23 Pa.C.S.A. § 2511(b)?

See Mother’s Brief, at 6.

      We adhere to the following standard in termination appeals:

         [A]ppellate courts must apply an abuse of discretion
         standard when considering a trial court's determination of a
         petition for termination of parental rights. As in dependency
         cases, our standard of review requires an appellate court to
         accept the findings of fact and credibility determinations of
         the trial court if they are supported by the record. In re
         R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). If the factual
         findings are supported, appellate courts review to determine
         if the trial court made an error of law or abused its
         discretion. As has been often stated, an abuse of discretion
         does not result merely because the reviewing court might
         have reached a different conclusion. Instead, a decision
         may be reversed for an abuse of discretion only upon
         demonstration of manifest unreasonableness, partiality,
         prejudice, bias, or ill-will.

         As [the Pennsylvania Supreme Court] discussed in R.J.T.,
         there are clear reasons for applying an abuse of discretion
         standard of review in these cases. [The Supreme 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.
         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.




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In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (some internal

citations omitted).

        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.L., 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, weight and convincing

as to enable the trier of fact 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).)

        Termination of parental rights is governed by § 2511 3 of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis:
____________________________________________



3   Section 2511 provides, in relevant part:

           § 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:

                                          ***

            (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.

                                          ***



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           Initially, the focus is on the conduct of the parent. The party
           seeking termination must prove by clear and convincing
           evidence that the parent's conduct satisfies the statutory
           grounds for termination delineated in Section 2511(a). Only
           if the court determines that the parent's conduct warrants
           termination of his or her parental rights does the court
           engage in the second part of the analysis pursuant to
           Section 2511(b): determination of the needs and welfare of
           the child under the standard of best interests of the child.
           One major aspect of the needs and welfare analysis
           concerns the nature and status of the emotional bond
           between parent and child, with close attention paid to the
           effect on the child of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

       In order to affirm the orphans’ court, we need only agree with its

termination decision as to any one subsection of § 2511(a). See In re B.L.W.,

843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We consider § 2511(a)(2)

and (b).



____________________________________________


           (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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      In her brief, Mother argues that CYF’s case rested on the agency’s

concerns about Mother’s mental health, specifically, that Mother was incapable

of parenting Child due to Child’s special needs. See Mother’s Brief, at 17.

Mother contends that Child does not display those combative behavioral issues

in Mother’s presence. Id. Thus, Mother’s alleged inability to deal with Child’s

special needs is an improper basis for termination. As evidence that she has

the ability to parent, Mother points to the fact that the juvenile court saw it fit

to return to Mother’s care a non-subject infant. Id.

      Child argues that Mother has made significant progress on her goals.

See Child’s Brief, at 14. She similarly contends that Child’s “behavioral issues

don’t escalate around Mother….” Id. Moreover, all parties and the orphans’

court recognize that Child has a bond with Mother. Thus, Mother and Child

claim that termination does not serve Child’s best interests.

      The Supreme Court set forth our inquiry under section § 2511(a)(2) as

follows:

           As stated above, § 2511(a)(2) provides statutory grounds
           for termination of parental rights where it is demonstrated
           by clear and convincing evidence that “[t]he 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.” If and only if grounds for termination are
           established under subsection (a), does a court consider “the
           developmental, physical and emotional needs and welfare
           of the child” under § 2511(b).

           [Our Supreme] Court has addressed incapacity sufficient for
           termination under § 2511(a)(2):

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            A decision to terminate parental rights, never to be made
            lightly or without a sense of compassion for the parent,
            can seldom be more difficult than when termination is
            based upon parental incapacity. The legislature,
            however, in enacting the 1970 Adoption Act, concluded
            that a parent who is incapable of performing parental
            duties is just as parentally unfit as one who refuses to
            perform the duties.

In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).

      The record supports the orphans’ court conclusion that Mother is

incapable of parenting Child.

      Since the inception of Child’s dependency case, Mother has made only

minimal progress. Mother has struggled with her goal of obtaining housing.

Throughout the life of the case, more than four years, Mother moved from

friend to friend, relative to relative.       Id., at 16.   She only achieved

independent housing, with the help of services, two weeks before the orphans’

court issued its findings of fact, and she has not established that this will be

stable.

      Mother continues to use marijuana, which was not prescribed. The court

described her use as possibly chronic. See Findings of Fact, at ¶ 15. Over the

course of the dependency case, Mother attended only one-third of her 63 drug

screens. Of those she attended, half were positive. Her last positive screen

was shortly before CYF filed the termination petition.      Her illicit drug use

means Mother constantly risks some sort of criminal liability. Even the most

innocuous inference is that Mother’s drug use constitutes a sort of self-

medication for issues she has yet to treat.


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         To that end, the orphans’ court recognized Mother’s own history of being

a dependent child in foster care.      The court ordered Mother to engage in

appropriate therapy.      She was referred repeatedly to various agencies for

evaluation and mental health therapy. She never complied. Id., at ¶ 18.

         Meanwhile, Child has significant special needs that require skilled

parenting. She has been in seven different placements since her removal.

Child is diagnosed with Disruptive Behavior Disorder; Reactive Attachment

Disorder; Attention Deficit Hyperactivity Disorder; and Oppositional Defiant

Disorder.     Child has serious behavioral issues including “extreme physical

aggression and ‘meltdowns.’” Id., at ¶¶ 19-21. She has incurred psychiatric

hospitalizations to ensure she was not a danger to herself or to others. The

court concluded that Mother cannot meet the heightened parenting demands

a child with special needs poses. Indeed, the court concluded that Mother is

unfamiliar with Child’s psychological needs. Id., at ¶ 31.

         Mother and Child argue that the juvenile court determined that Mother

was fit enough to return the Child’s infant sibling to her care. They reason

that if Mother is capable of parenting the baby, she is capable of parenting

Child.     But caring for an infant and caring for a special needs child with

aggression issues require different skillsets. Moreover, we cannot ignore the

difficulty that parenting multiple children poses.

         Upon our review of the transcript of testimony, the exhibits admitted at

trial, the orphans’ court opinion and findings of fact, we conclude that CYF met

its burden in proving that termination was warranted under § 2511(a)(2).

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     We turn now to § 2511(b), the second step of the termination analysis.

     The focus under this section shifts from the parent to the child. 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 § 2511(b), our

Supreme Court has stated:

        [I]f the grounds for termination under section (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 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).

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

        [C]oncluding 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. “The continued attachment to
        the natural parents, despite serious parental rejection
        through abuse and neglect, and failure to correct parenting
        and behavior disorders which are harming the children
        cannot be misconstrued as bonding.” Nor are we of the
        opinion that the biological connection between appellant and
        the children is sufficient in of itself, or when considered in

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         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 the existence of some bond, where placement with mother could be

contrary to the child’s best interests). A parent’s basic constitutional right to

the custody and rearing of the child is converted, upon the failure to fulfil 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. See In re

B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004).

      Here, Child’s advocacy against termination has certainly given us pause.

The CYF expert witness, psychologist Dr. Eric Bernstein, performed two

evaluations leading up to the termination. He characterized Child’s bond with

her Mother as a strong one. “Mother is everything, and [Child] strongly loves

her mother and wants to be with her. I don’t see that necessarily changing.”

N.T., at 25. And Mother’s visitation had been poor prior to the birth of Child’s

youngest sibling, but Mother had been consistent with her visitation since

September 2017, albeit after the petition was filed.          The psychologist

recommended ongoing contact with Mother if the court terminated parental


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rights; but Mother does not believe the pre-adoptive foster parent will allow

for such contact.

        Yet, the psychologist still recommended termination. The orphans’ court

agreed and adopted the psychologist’s findings as its own.4 The psychologist

concluded Mother is unable to meet Child’s needs and welfare:

           Mother is also unfamiliar with the [Child]’s needs,
           specifically related to mental health and that [the Child has]
           aggression and behavioral difficulties.          To consider
           reunification would arguably require Mother to be well-
           informed of her children’s needs including related to mental
           health, behavior, and education.        That she views the
           children as exceptionally adjusted without any difficulties
           raises questions and concerns about how she will ultimately
           support their needs if reunified. […] I appreciate that during
           her pregnancy she abstains from using any substances, but
           whether she will maintain this abstinence for the future also
           is in question. She has a history of impulsivity and lack of
           planning. Her decision to engage in a relationship in the
           summer of 2017, which resulted in pregnancy reflects just
           that. She and the child’s father have yet to in any way
           discuss the raising of their unborn[5] child and how each will
           meaningfully participate in providing for his everyday needs.
           She appears to be more focused upon the present than so
           much planning for necessary responsibilities in the future. I
           have concerns about how she will consistently fulfill a full-
           time role of meeting the children’s needs and her own.




____________________________________________


4 The psychologist conducted two evaluations and corresponding reports. The
first evaluation was in September 2017. The second evaluation was in April
2018.

5   This child was born by the time the court held the termination hearing.

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See Findings of Fact, at ¶ 31 (quoting Exhibit 1, Psychologist’s evaluation from

September 2017). The psychologist’s opinion did not change after his second

evaluation. Again, the orphans’ court adopted his findings as its own:

         Mother needs to find more effective ways of managing
         stress and emotions than through the use of drugs. I
         strongly encourage Mother to attend drug and alcohol
         counseling with a dual diagnosis component to also address
         her mental health.      The more comprehensive level of
         support she receives ultimately the more likely she will
         maintain abstinence and work to increase her level of insight
         and skills to manage intense emotions. She should also
         receive an evaluation from a psychiatrist in conjunction with
         her mental health and drug and alcohol treatment. Her
         failure to consistently attend counseling in the recent past
         raised significant concerns about her commitment to health
         and recovery. I offer her a guarded prognosis with respect
         to following through with long-term compliance to mental
         healthcare.

         As much as she is an appropriate candidate to receive a
         comprehensive level of treatment, I am not convinced that
         she will maintain consistent investment in such treatment.
         It is this issue that is [important] when considering whether
         she will be able to maintain not only her own needs but also
         the needs of her children. When considering [Child] for
         example who clearly has a number of diagnoses and need
         for specialized support and services, I have serious concerns
         about Mother supporting and facilitating all of [Child’s]
         treatment and meeting her needs.            She has limited
         understanding and appreciation for [Child’s] difficulties.
         She did not know the names of the medication or [Child’s]
         therapist information.

Id., at ¶ 32 (citing the psychologist).

      These findings are supported by the record. The court was forced to

appoint Child an educational and medical decision-maker, because CYF could

not obtain from Mother her consent to allow Child to receive services. See


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N.T., at 106. Mother is either unfamiliar with Child’s special needs or denies

that Child has them.        Mother’s inability to parent has harmed Child’s

development.

        While Child does share a bond with Mother, it is clear that this bond has

negatively impacted Child.      Child acted out when Mother missed visits. Id.,

at 122. Mother’s inconsistency in Child’s life has caused Child to act in anger

and resentment.      The psychologist testified Mother’s absences and Child’s

subsequent disappointment has significantly – and negatively – impacted their

bond.     Child regresses and struggles to control herself when faced with

disappointments from Mother. Id., at 26; see also Exhibit 2, at 13. Sadly,

Mother denies that Child has difficulties.

        At the hearing, the psychologist testified, “I cannot think of any scenario

in which [Child] comes out unscathed.” See N.T., at 53. But the record is

clear. Mother cannot meet Child’s emotional or developmental needs. It is

all the more tragic that Child still seeks to be in Mother’s care, despite the fact

that Mother has stunted her development.

        Upon our review, we similarly conclude that CYF met its burden in

proving that termination was warranted under § 2511(b).

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2019




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