J-S21018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE MATTER OF THE ADOPTION   :        IN THE SUPERIOR COURT OF
 OF T.L.S.                       :             PENNSYLVANIA
                                 :
                                 :
 APPEAL OF: D.M., NATURAL MOTHER :
                                 :
                                 :
                                 :
                                 :        No. 40 WDA 2020

           Appeal from the Decree Entered December 11, 2019
  In the Court of Common Pleas of Erie County Orphans' Court at No(s):
                         97B In Adoption 2019

 IN THE MATTER OF THE ADOPTION   :        IN THE SUPERIOR COURT OF
 OF B.M.S.                       :             PENNSYLVANIA
                                 :
                                 :
 APPEAL OF: D.M., NATURAL MOTHER :
                                 :
                                 :
                                 :
                                 :        No. 41 WDA 2020

           Appeal from the Decree Entered December 11, 2019
  In the Court of Common Pleas of Erie County Orphans' Court at No(s):
                          97A in Adoption 2019

 IN THE MATTER OF THE ADOPTION   :        IN THE SUPERIOR COURT OF
 OF N.V.S.                       :             PENNSYLVANIA
                                 :
                                 :
 APPEAL OF: D.M., NATURAL MOTHER :
                                 :
                                 :
                                 :
                                 :        No. 42 WDA 2020

           Appeal from the Decree Entered December 11, 2019
  In the Court of Common Pleas of Erie County Orphans' Court at No(s):
                        No. 97 In Adoption 2019


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
J-S21018-20



MEMORANDUM BY DUBOW, J.:                                FILED MAY 15, 2020

       D.M. (“Mother”) appeals from the Decrees entered by the Erie County

Court of Common Pleas on December 11, 2019, involuntarily terminating her

parental rights with respect to her son, N.V.S., born in December 2014, and

two daughters, B.M.S., born in December 2015, and T.L.S., born in September

2018 (“Children”).1 Because the record supports the decision of the orphan’s

court, we affirm the Decrees.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

       We glean the following factual and procedural history from the orphans’

court’s opinion, which is supported by the certified record. In October of 2018,

after T.L.S. tested positive for cocaine and marijuana at birth, Erie County

Office of Children and Youth (“OCY”) obtained Orders for Emergency

Protective Custody of Children. Thereafter, OCY filed Dependency Petitions

and alleged that Children were without proper care and control due to Mother’s

(1) past and current drug addiction; (2) unstable mental health and untreated

mental illness, with diagnoses including bipolar disorder, post-traumatic stress

disorder, and opiate use disorder; (3) unstable and unsafe housing; (4) an

inability to safely parent Children; and (5) a failure to cooperate with OCY,

including her past and current failure to communicate with OCY and to appear

for random urinalysis drug testing. Orphans’ Court Opinion, 2/4/20, at 4.



____________________________________________


1 The court also involuntarily terminated the parental rights of Children’s
Father, C.A.S. (“Father”). Father did not appeal the Decrees terminating his
parental rights, nor has he participated in this appeal.




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       On December 3, 2018, Mother stipulated to the allegations contained in

the Dependency Petitions and the court adjudicated Children dependent.2 The

court developed a Permanent Placement Plan (“Plan”) with a goal of

reunification. Objectives of the Plan included requiring that Mother: refrain

from the use of drugs and/or alcohol and submit to random urinalysis;

participate in an updated drug and alcohol assessment and comply with all

recommendations; complete a mental health assessment and follow all

recommendations; secure and/or maintain safe and stable housing; obtain

and/or maintain gainful employment; participate in and complete services

offered to address home conditions and maintain a safe environment for

Children; participate in and complete a parenting program; and cooperate

with OCY. Id.

       The court held a permanency review hearing on February 6, 2019, and

determined that Mother was not in compliance with the Plan, and had not

made progress toward alleviating the circumstances which necessitated

placement of Children. Mother’s Plan remained the same; however, adoption

was added as a concurrent placement goal for Children.

       The court held a second permanency review hearing on August 19,

2019, and concluded that Mother had minimally complied with the Plan and

made minimal progress toward alleviating the circumstances that led to

placement.     The court changed Children’s placement goal to adoption.

Further, the court relieved OCY from offering further services to Mother and

directed OCY to seek termination of Mother’s parental rights.

____________________________________________


2OCY placed the Children in a “kinship” foster home with the same woman
who was Mother’s foster mother when she was a child.

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       On September 19, 2019, OCY filed Petitions to involuntarily terminate

Mother’s parental rights to Children. The court conducted a hearing on the

Termination Petitions on December 10, 2019.3 OCY presented the testimony

of two caseworker supervisors, Kenneth Parmerter and Tiffany Niedzielski.

Mother, represented by counsel, testified on her own behalf.

       On December 11, 2019, the court entered Decrees involuntarily

terminating Mother’s parental rights to Children pursuant to 23 Pa.C.S. §

2511(a)(1), (2), (5), and (b). Thereafter, Mother filed timely Notices of

Appeal and Concise Statements of Errors Complained of on Appeal pursuant

to Pa.R.A.P. 1925(c)(4). This Court sua sponte consolidated the appeals on

January 14, 2020.

ISSUES ON APPEAL

       Mother raises the following issues on appeal:

       A. Whether the orphans’ court committed an error of law and/or
       abused its discretion when it concluded that termination of
       parental rights was supported by clear and convincing evidence
       pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (5)?

       B. Whether the orphans’ court committed an error of law and/or
       abused its discretion when it concluded that termination of
       parental rights was supported by clear and convincing evidence
       pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 3.




____________________________________________


3 The court appointed Christine Konzel, Esq., to serve as legal counsel and
guardian ad litem for Children. The court noted that there was no conflict in
Children’s legal and best interests. See Orphans’ Court Opinion, 2/4/20, at 1
n.1.


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LEGAL ANALYSIS

    In reviewing cases in which the orphans’ court involuntarily terminated

parental rights, appellate courts must accept the findings of fact and credibility

determinations of the orphans’ court if the record supports them.              In re

T.S.M., 71 A.3d 251, 267 (Pa. 2013).            If the record supports the factual

findings, appellate courts then determine if the orphans’ court made an error

of law or abused its discretion. Id. Where the competent record evidence

supports the court’s findings, we must affirm the orphans’ court decree even

though the record could support an opposite result.              In re Adoption of

Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

    “The trial court is free to believe all, part, or none of the evidence

presented, and is likewise free to make all credibility determinations and

resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73–74 (Pa. Super.

2004) (citations omitted). Appellate courts defer to the orphans’ court that

often   has   “first-hand   observations   of    the   parties    spanning   multiple

hearings.”    In re T.S.M., supra at 267 (citations and quotation marks

omitted).     Importantly, “[t]he court cannot and will not subordinate

indefinitely a child’s need for permanence and stability to a parent’s claims of

progress and hope for the future. Indeed, we work under statutory and case

law that contemplates only a short period of time . . . in which to complete

the process of either reunification or adoption for a child who has been placed

in foster care.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.

2006) (emphasis in original; citations omitted).

    In addressing petitions to terminate parental rights involuntarily, the

Adoption Act requires the court to conduct a bifurcated analysis. See 23



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Pa.C.S. § 2511(a) and (b). Courts first focus on the conduct of the parent,

and, if the party seeking termination presents clear and convincing evidence

that the parent’s conduct meets one of the grounds for termination set forth

in Section 2511(a), then the court will analyze whether termination of parental

rights will meet the needs and welfare of the child, i.e., the best interests of

the child, as provided in Section 2511(b). Courts particularly focus on the

existence of the child’s bond with the parent, if any, and the potential effect

on the child of severing such bond. In re L.M., 923 A.2d 505, 511 (Pa. Super.

2007). A parent’s basic constitutional right to the custody and rearing of his

child is converted, upon the failure to fulfill his 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).

    While the court here found that OCY met its burden of proof under 23

Pa.C.S. § 2511(a)(1), (2), (5), and (b), we need only agree with its decision

as to any one subsection of Section 2511(a), as well as Section 2511(b), in

order to affirm the termination of parental rights. See In re B.L.W., 843

A.2d 380, 384 (Pa. Super. 2004) (en banc).

Termination Pursuant to Section 2511(a)(2)

    We first conclude that the court properly exercised its discretion by

terminating Mother’s parental rights pursuant to Section 2511(a)(2). Section

2511(a)(2) provides for termination of parental rights where the petitioner

demonstrates 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



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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.” 23 Pa.C.S. § 2511(a)(2); In re Adoption of S.P., 47 A.3d 817, 827

(Pa. 2012) (citations omitted).

    The grounds for termination of parental rights under Section 2511(a)(2)

due to parental incapacity are not limited to affirmative misconduct; those

grounds may also 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). This

Court has long recognized that a parent is required to make diligent efforts

towards     the     reasonably    prompt   assumption    of   full   parental

responsibilities.   Id.   At a termination hearing, the orphans’ court may

properly reject as untimely or disingenuous a parent’s vow to follow through

on necessary services when the parent failed to co-operate with the agency

or take advantage of available services during dependency proceedings. Id.

at 340.

      Here, Mother contends that her testimony established that she

participated in the services provided by OCY and “attempted” to comply with

the Plan. Mother’s Brief at 12-13. Mother asserts that OCY failed to present

clear and convincing evidence that she has a continuing incapacity to perform

parental duties pursuant to 23 Pa.C.S. § 2511(a)(2). Id.

      In its Opinion, the court disagreed and explicitly “rejected Mother’s

testimony on all relevant points as inconsistent, self-serving, and at times

dishonest.” Orphans’ Court Opinion, 2/4/20, at 10. The court did not find

Mother’s testimony that she was undergoing treatment for drug addiction

credible and rejected her myriad excuses for failing to attend urine drug



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screens.    Notably, the court found it “chilling” that Mother “expressed no

appreciation for the effects of her behavior on the Children. She showed no

insight into the nature and extent of her drug addiction or the problems it has

caused for the Children.” Id.

      Conversely, the court accepted Mr. Parmerter’s and Ms. Niedzielski’s

accounts of Mother’s and Children’s involvement with OCY and the kinship

parent as truthful and accurate.    Mr. Parmerter credibly testified regarding,

inter alia, his contact with Mother and Children, the services offered to Mother,

and   Mother’s    failure   to   complete   or   participate   fully   in   those

services.   Specifically, Mr. Parmerter recounted that OCY was unable to

implement the court-ordered home program because Mother did not allow

OCY to inspect her home. Id. Mr. Parmerter also explained that Mother was

inconsistent in maintaining contact with OCY. Id. Notably, Mother failed to

appear for over 100 court-ordered urinalysis drug screenings, and tested

positive for marijuana, Suboxone, methamphetamine, and/or cocaine on the

few occasions she was tested.      Id.   Due to Mother’s non-compliance with

random urinalysis, she was not permitted to visit with Children. Although

Mother did submit to drug and mental health evaluations, she avoided

entering into any Plan-sanctioned treatment programs.            Id. at 4. Mr.

Parmerter testified in favor of terminating Mother’s parental rights because

the Children are placed together in a kinship home and are doing well. Id. at

6.

      The court concluded that Children lacked essential parental care for

fourteen months at the time of the termination hearing, and that Mother’s

long-standing drug addiction was the source of her repeated and continued



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parental incapacity. Id. The court further determined that Mother could not

remedy her incapacity. Id.

     Having reviewed the record, we conclude that it supports the findings of

the court that Mother has not provided Children with the essential parental

care, control and subsistence necessary for their mental and physical well-

being, and that Mother is unable to remedy the causes of her parental

incapacity, neglect or refusal any time in the foreseeable future. Thus, Mother

is not entitled to relief.

Termination Pursuant to Section 2511(b)

     We also conclude that, pursuant to Section 2511(b), the court properly

determined that termination of Mother’s parental rights would be in the best

interests of Children. With respect to Section 2511(b), we consider whether

termination of parental rights will best serve Children’s developmental,

physical, and emotional needs and welfare. See In re Z.P., 994 A.2d 1108,

1121 (Pa. Super. 2010). “In this context, the court must take into account

whether a bond exists between child and parent, and whether termination

would destroy an existing, necessary and beneficial relationship.” Id.

     It is sufficient for the orphans’ court to rely on the opinions of social

workers and caseworkers when evaluating the impact that termination of

parental rights will have on a child. Id.      The orphans’ court may equally

emphasize the safety needs of the child and may consider intangibles, such

as the love, comfort, security, and stability the child might have with the foster

parent. See In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately,

the concern is the needs and welfare of a child. In re Z.P., supra at 1121.




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      Mother argues that OCY failed to present clear and convincing evidence

that termination of her parental rights would be in the best interest of

Children.   Mother’s Brief at 15.   In terminating Mother’s parental rights,

however, the court considered the bond between Mother and Children, and

found little to no evidence that severing the bond between Mother and

Children would have any detrimental effect on Children. Orphans’ Court

Opinion, 2/4/20, at 13. The court observed that, due to the young age of

Children at the time of separation, and the lapse of over twelve months since

they have had any contact with Mother, “it is unlikely any bond between

Mother and Children persists.” Id. The court credited the testimony of Ms.

Niedzielski, who described the strong bond Children share with their kinship

placement who they call “grandma.” Id. at 6. The court further credited the

testimony of Ms. Niedzielski that, due to Children’s young ages when they

were removed from Mother’s care, and given that they have not seen Mother

for over a year, “Children seek and receive parental nurturing from the

adoptive resource parent.” Id. The court explicitly concluded that, “even if

the court were to find an ongoing bond, it would be in the best interests of the

Children to sever that bond for the sake of achieving safety, consistency, and

permanency for the Children.” Id.

    Our review of the record supports the orphans’ court’s findings. We do

not discern an error of law or abuse of discretion with respect to the court’s

conclusion. Thus, we affirm the court’s determination that the involuntary

termination of Mother’s parental rights is in the best interests of Children.

    Decrees affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2020




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