J-A30012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ADOPTION OF: S.D., A MINOR                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: T.M.A., MOTHER                  :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1273 MDA 2019

                  Appeal from the Decree Entered July 3, 2019
     In the Court of Common Pleas of York County Orphans' Court at No(s):
                                  2019-0009a


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                             FILED FEBRUARY 26, 2020

        Appellant, T.M.A. (“Mother”), appeals from the July 3, 2019 Decree that

granted the Petition for Involuntary Termination of Parental Rights (“TPR

Petition”) filed by D.D. (“Father”) and involuntarily terminated Mother’s

parental rights to S.D. (“Child”). Upon careful review, we affirm.

        The lower court has provided this Court with a well-written, thorough,

and comprehensive Pa.R.A.P. 1925(a) Opinion, which sets forth the relevant

factual and procedural history of this case, and we adopt its detailed recitation

for purposes of this appeal. See Trial Ct. Op., filed 8/19/19, at 1-8. In sum,

Mother and Father are parents to ten-year-old Child. Mother has a history of

substance abuse, including a 2015 guilty plea to a drug offense. Since 2015,

Father has had primary physical custody of Child and Mother has had partial

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A30012-19



physical custody every other weekend. The stipulated custody order provided

that, upon Father’s request, Mother shall take a drug test within forty-eight

hours and in the event she fails the requested drug test, her custody rights

will be automatically suspended until further order of the court. In June 2018,

after Mother failed to exercise her partial physical custody with Child, Father

requested that Mother take a drug test and Mother refused.

      Father filed a Petition for Special Relief and a Petition to Modify Custody,

and on July 23, 2018, after a hearing, the custody court made a finding that

Mother failed or refused to take a drug test and scheduled a custody

conciliation conference, which Mother failed to attend. On August 28, 2018,

the custody court issued an Interim Order, which awarded Father sole legal

and physical custody of Child, suspended Mother’s partial physical custody

rights pending a scheduled custody trial, ordered Mother to attend a custody

workshop, and ordered Mother to undergo a threat of harm evaluation

pursuant to 23 Pa.C.S. § 5329 to determine whether she posed a threat of

harm to Child because of her 2015 drug conviction.

      Mother failed to appear at the pre-trial conference and to provide

documentation that she attended the custody workshop or participated in a

threat of harm evaluation. On January 11, 2019, the custody hearing began.

Mother appeared, and the custody court reinstated her shared legal and partial

physical custody rights to Child. The custody court scheduled the hearing to

resume on March 29, 2019. Notably, Mother failed a drug test on February




                                      -2-
J-A30012-19



27, 2019, and on March 22, 2019, the custody court once again suspended

her custody rights pending the conclusion of the custody trial.

      On the same day the custody trial began, January 11, 2019, Father filed

a TPR Petition pursuant to 23 Pa.C.S. § 2511(a)(1), asserting that Mother had

failed to perform parental duties for the six months immediately preceding the

filing of the Petition. The court scheduled a hearing and continued the custody

proceedings pending the outcome of the hearing.

      At the TPR hearing, the court heard testimony from Child; Father;

Mother; Ashley Turgeon Milspaw, Psy.D., expert in Psychology and bonding

assessment evaluator; Joshua Talarico, Ph.D, drug and alcohol counselor; and

K.S., Mother’s boyfriend’s mother.

      In sum, Father testified that Mother has not seen or contacted Child in

the past six months. Father further testified that Mother did not contact him

to request visitation, call to speak to Child, send or drop off gifts for Child,

write letters to Child, or participate in Child’s educational or medical care

during that time. Father acknowledged that Mother contacted him via text

message one time in October 2018 to ask if she could drop off a gift for Child

and he did not respond. See Trial Ct. Op., filed 8/19/19, at 5.

      Mother testified that she did not check her mail for four months to

receive information about court proceedings, re-engaged in drug and alcohol

counseling and a methadone treatment program in October but still used

marijuana recreationally, asked Father for visitation with Child in August 2018

and Father denied her request, and hired an attorney to pursue visitation with

                                     -3-
J-A30012-19



Child as soon as she had enough money. Mother admitted that she did not

have contact with Child from June 2018 until January 2019 and stated that

she was not in her right state of mind during that time. See id. at 6-7.

      Child testified that he calls his stepmother “Mom” and calls Mother by

her first name. Child stated that Mother has treated him awfully, lies to him

all the time, and has not seen him in six or seven months. Child expressed

that he does not have a close relationship with Mother and does not want her

to be his mother anymore. See id at 4; N.T. Hearing, 4/24/19, at 5-10.

      The court also heard testimony from Dr. Milspaw, who stated that Child

had a bond with Father and his stepmother but did not have a strong bond

with Mother, and Child would not experience emotional harm if the court

terminated Mother’s parental rights. Dr. Talarico testified that since October

2018, Mother was compliant with her methadone treatment program and

drug, and alcohol counseling, but that the program did not test for marijuana

use. See Trial Ct. Op. at 6, 16.

      On July 2, 2019, the court issued a Decree terminating Mother’s parental

rights to Child.

      Mother timely appealed. Both Mother and the trial court complied with

Pa.R.A.P. 1925.

      Mother raises the following issues on appeal:

      1. Whether the [c]ourt improperly found that Father met his
         burden by establishing clear and convincing evidence to
         involuntarily terminate parental rights.



                                    -4-
J-A30012-19


      2. Whether Mother’s actions toward sobriety and regaining her
         custody rights, which began prior to the petition to terminate
         her rights, and continued after the petition, should be
         considered.

      3. Whether Father’s campaign to keep Mother away from [C]hild
         should be considered in Mother’s favor when weighing the
         actions taken by Mother to made contact with [C]hild.

      4. Whether evidence of the sibling’s strong bond with [C]hild
         should be considered.

      5. Whether the court improperly relied on Father’s bonding
         assessment regarding step[]mother and [C]hild, when the
         expert did not review any collateral resources from Mother or
         reach out to Mother for input.

      6. Whether the [c]ourt improperly considered a “needs and
         welfare analysis prior to fully determining whether Mother’s
         actions justified termination.

Mother’s Br. at 3 (numbering added for ease of disposition).

      When we review a trial court’s decision to grant or deny a petition to

involuntarily terminate parental rights, we must accept the findings of fact and

credibility determinations of the trial court if the record supports them. In re

T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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. (citation omitted). “Absent an abuse of discretion,

an error of law, or insufficient evidentiary support for the trial court’s decision,

the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)

(citation omitted).   We may not reverse merely because the record could

support a different result.    In re T.S.M., 71 A.3d at 267.        We give great

deference to the trial courts “that often have first-hand observations of the

parties spanning multiple hearings.” Id. Moreover, “[t]he trial court is free

                                       -5-
J-A30012-19



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) (citation omitted).

      Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs

termination of parental rights, and requires a bifurcated analysis. “Initially,

the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d

1123, 1128 (Pa. Super. 2017) (citation omitted).           “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).” Id. (citation omitted). If the court determines that the parent’s

conduct warrants termination of his or her parental rights, the court then

engages 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.” Id. (citation omitted).

      Section 2511(a)(1) provides that the trial court may terminate parental

rights if the Petitioner establishes that “[t]he 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.”       23 Pa.C.S. §

2511(a)(1).    The focus of involuntary termination proceedings is on the

conduct of the parent and whether that conduct justifies a termination of

parental rights.   In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).

Although the statute focuses on an analysis of the six months immediately

                                      -6-
J-A30012-19



preceding the filing of the petition, the court must consider the whole history

of a given case and may consider a parent’s inaction before the six-month

statutory provision.   In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008).

Additionally, “[t]he court must examine the individual circumstances of each

case and consider all explanations offered by the parent facing termination of

his parental rights, to determine if the evidence, in light of the totality of the

circumstances, clearly warrants the involuntary termination.” Id. (citations

omitted).

      This Court has repeatedly defined “parental duties” in general as the

affirmative obligation to provide consistently for the physical and emotional

needs of a child:

         There is no simple or easy definition of parental duties.
         Parental duty is best understood in relation to the needs of
         a child. A child needs love, protection, guidance, and
         support. These needs, physical and emotional, cannot be
         met by a merely passive interest in the development of the
         child.   Thus, this [C]ourt has held that the parental
         obligation is a positive duty which requires affirmative
         performance. This affirmative duty . . . requires continuing
         interest in the child and a genuine effort to maintain
         communication and association with the child. Because a
         child needs more than a benefactor, parental duty requires
         that a parent exert himself to take and maintain a place of
         importance in the child’s life.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations, internal

quotation marks, and internal paragraph breaks omitted).

      Moreover, “[p]arental duty requires that the parent act affirmatively

with good faith interest and effort, and not yield to every problem, in order to


                                      -7-
J-A30012-19


maintain the parent-child relationship to the best of his or her ability, even in

difficult circumstances.” Id.   (citation omitted).   “A parent must utilize all

available resources to preserve the parental relationship, and must exercise

reasonable firmness in resisting obstacles placed in the path of maintaining

the parent-child relationship.” Id. (citation omitted). And most importantly,

“[p]arental rights are not preserved by waiting for a more suitable or

convenient time to perform one’s parental responsibilities while others provide

the child with his or her physical and emotional needs.” Id. (citation omitted).

      In her first issue, Mother challenges both the sufficiency and weight of

the evidence. Mother avers that the trial court abused its discretion when it

determined that Father      presented clear     and convincing evidence       to

involuntarily terminate her parental rights. Mother’s Br. at 3, 11. Mother

concedes that she had “little contact” with Child over a six-month period but

argues that the lower court failed to consider that she made efforts to re-

engage in drug and alcohol treatment preceding the filing of the TPR Petition,

her visitation with Child was suspended via a custody order, and Father

disallowed contact with Child. Id. at 12-18. Finally, Mother argues that the

court placed too much focus on Mother’s failed drug test rather than her efforts

to maintain sobriety. Id.

      In her next five issues, Mother raises additional challenges to the weight

of the evidence. Mother argues that the court failed to consider her efforts

towards sobriety, Father’s actions to keep Mother away from Child, and Child’s


                                      -8-
J-A30012-19


bond with his sibling. Id. at 3, 18-22. Mother also contends that the court

placed undue weight on a bonding analysis that did not include an interview

with Mother. Id. at 3, 23-25. Finally, Mother asserts that the court placed

too much weight on a “needs and welfare” analysis rather than focusing on

whether Mother evidenced a settled purpose of relinquishing her parental

claim to Child. Id. at 3, 25-26.

      After a careful review of the parties’ arguments and the record, we

conclude that the record supports the trial court’s findings.    We decline to

reweigh the evidence or usurp the lower court’s credibility determinations.

See In re T.S.M., 71 A.3d at 267; In re M.G., 855 A.2d at 73-74.

Accordingly, we adopt the well-written, thorough, and comprehensive Opinion

of the Honorable N. Christopher Menges as our own. See Trial Ct. Op., filed

8/19/19, at 8-23 (finding that for the six months prior to the filing of the

petition, Mother had no contact with Child, failed to perform parental duties

for Child, made minimal attempts to contact Father or his counsel, and re-

engaged in drug and alcohol counseling but continued to illegally use

marijuana, and concluding that it would be in Child’s best interest to terminate

Mother’s parental rights pursuant to Section 2511(a)(1) and (b)).

      Decree affirmed.   We direct the parties to attach a copy of the trial

court’s August 19, 2019 Pa.R.A.P 1925(a) Opinion to any future filings.




                                     -9-
J-A30012-19


     Judge Colins joins the memorandum.

     Judge Nichols notes dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




                                    - 10 -
                                                                               Circulated 01/28/2020 02:59 PM




IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PE�S�VAN�
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  MEMORANDUM OPINION IN SUPPORT OF ORDER PURSUANT            RULE                                   TO
 192S{a)(2)(ii) OF THE PENNSYLVANIA RULES OF APJ,>�LLATE PROCEDURE

        AND NOW, this l 91h day of August, 2019, the Court is !in receipt of Mother's

Notice of Appeal and Statement of'Errors Complained of Under Pa.R.A.P. 1925(b), as

required by the Rules of Appellate Procedure for a Children's Fast Track Appeal.
                                                                       ;


Pa.R.A.P l 925(a)(2)(i). Th� Co�irt hereby reaffirms its Order �ted July 2, 2019,

terminating Mother's parental rights to the minor Child,
                                                                       i

                     FACTUAL AND PROCEDURAL HISTORY

       In 2009,                ("Child"), was born on Christmas Day to

("Father"), an� ("Mother"). Two ye_ars later,                      tn December 9, 2011, the
first custody order between the parties was entered by this Honorable Court and docketed
                                                     .         :

at 2011-FC-001479-03. The most recent Stipulated Custody Order was entered on July
                                                                   ;


7, 2015 (the ..Stipulated Order"). Therein, the parties agreed tpat Father would have

primary physical custody of the Child, subject to Mother's rig�-ts of partial physical
                                                                I

                                                                !
custody on alternating weekends from Friday at 6:00 p.m. until Sunday when Father

picks the Child up after work or until 6:00 p.m., if Father doe� not have work.
                                                               i

Additionally, Mother was given partial physical custody right� on Saturdays when Father

                                             1                                                  RECEIVED
                                                                                                 AUG 2 1 2019

                            -----······-········
was working, from 6:30 a.m, until 6:00 p.m. The Stipulated Order further provided that

upon Father's request, Mother will take a drug test within 48 hours, and in the event
                                                                         !
                                                                         '
Mother fails a drug test, then her rights of partial physical custody will be automatically

suspended until further order of court.

       On July 23, 2018, following a hearing on-Father's Petition for Special Relief filed

July 16, 20 I 8, the Court entered an Order stating that Mother had failed or refused to take

a drug test that Father requested, Mother did not exercise her custody rights for a

weekend, and the matter was remanded to a conciliation conference, On August 16,
                                                                     !

2018, a Conciliation Conference was held, but Mother did not appear either in person, by
                                                                     I

telephone, or through counsel. By Interim Order for Custody, Fending Trial dated

August 28, 2018, Mother's lights of legal and physical custody were
                                                               i
                                                                    suspended pending
                                                                     !

a determination being made by the Court as to whether she poses a threat of harm to the

Child as a result of her past drug conviction in 2015, and alleged continued drug use. Per

the said Interim Order, Father was granted sole legal and pr'irnary physical custody of the
                                                                 .        .

Child, and Mother was required to undergo a threat of harm evaluation. It was noted in

the Interim Order that the parties had an enforcement conference with Domestic

Relations scheduled earlier in the same day as the Concillation.Ccnference, and Father

reported that Mother failed to appear (or that conference as well.

        On October 23, 2018, a Pre-Trial Custody Conference was held, and a Custody

Trial was scheduled for December 19, 2018. Again, Mother f�iled to appear before the
                                                                 i


Court either in person, by telephone, or through counsel. The Order Scheduling Custody

                                              2
Trial dated October 23, 2018 also indicated that Mother had not Ned a Criminal
                                                                     i
                                                                     ;

Record/Abuse History Verification Affidavit, and had not completed the Custody
                                                                     !
                                                                     !
Workshop, as required by the August 28, 2018 Interim Order fo1i Custody, Pending Trial.

By Order dated December 12, 2018, the Custody Trial was rescheduled to January 11,

2019.

        The Custody Trial began, but was not completed, and th� second day of the

Custody Trial was scheduled for March 29, 2019. At the conclusion of the first day of

the Custody Trial, the Court entered an Order dated January 11, 2019, wherein the

suspension of Mother's custodial rights was vacated, and the parties were to follow the
                                                                 l




custody schedule as set forth in the Stipulated Order. Additionally, the parties were

directed to arrange for Mother to obtain a Threat of Harm Evaluation.

        On January 11, 2019, the same day the Custody Trial began, Father filed a

Petition for Involuntary Termination of Parental Rights, seeking to terminate Mother's

rtgnts to the Child. Father filed another Petition for Special Refief on February 8, 2019,

again raising concerns over Mother's continued drug use. By Order dated February 20,

2019, Mother was directed to take a drug test at Father's expense. After a hearing on

March 22, 2019, an Order was entered the same day indicating that Mother had in fact,

failed a drug test on February 27, 2019, and thus, her custodial.rights were again

suspended until the final day of the Custody Trial 011 March 29:, 2019. In the meantime, a

Termination of Parental Hearing ("TPR Hearing") was scheduled for April 29, 2019. An



                                             3
Order was entered on March 26, 2019) continuing the custody proceedings until further

order of court pending the outcome of the TPR Hearing.

                                                                      to 19, and the second half
                                                                       ;



        The first half of the TPR Hearing was held on April 29 >

was held on July 2, 2019. At the TPR Hearing held on April 29� 2019, the Court

 interviewed the Child with the parties' respective counsel present, as well the Child's

 GAL. During the interview, the Child referred to Mother as         '11'9', and his step-mother,
- as "Mom." When asked what he calls Mother when he's around her, he said

 "Mom" because he didn't want to hurt her feelings. The Child further stated that Mother

 lies to him repeatedly and he had not seen Mother in six or seven months.

        Following the Child's interview, the Court heard testimony from Ashley Turgeon

 Milspaw, Psychologist, of Gallant Psychological and Forensic $ervices. Father retained

 the services of Dr. Milspaw to conduct a bonding assessment in February> 2019.

 Dr. Milpaw's report was provided to the Court as Father's Exh�bit 2; the documentation

 reviewed by her in asaisting in her findings was also provided ti> the Court as Father's

 Exhibit 9. In sum, Dr. Milspaw testified that the Child was well bonded with Father and

 his step-mother, but was not bonded with Mother and would not be harmed if the parent-

 child relationship between Mother and the Child was terminated. Dr. Milspaw further

 testified that just as the Child had done when the Child was interviewed by the Court, the

 Child referred to Mother as ., stat�d that she had lied to him in the past, and he

 preferred not to be around her.



                                                   4



                           ---··-·········-········-·········· ..
       Lastly, Father testified at the TPR Hearing on April 29, 2p19. In brief summary,

Father testified that the following events occurred during the six months
                                                                   i
                                                                          leading up to the
                                                                  ;



filing of the Petition for Involuntary Termination of Parental Rights:

               Mother had been evicted from her residence on more than one occasion.
                                                                  i

               Mother failed to exercise her weekend of custody in early June 2018 due
       to her own self-reported mental health issues.          ·

               Mother's last period of custody prior to having her rights suspended was
       Father's Day weekend 2018.                               ·

               In late June/early July 2018, Mother told Father that she was in New York
       at a funeral and could not exercise custody of the Child, 1Nhe11 in fact, she was in
       Ocean City, New Jersey.

                On July 11, 2018, Father requested that Mother take a drug test and she
        failed to do so.                                        ·

               Mother did not participated in the Child's education or medical care in any
        way.
                 From July 11, 2018 to on or about October 61 2�18, Mother had no
        contact with Father or the Child, either face to face, by telephone, text message, e-
        mail, or otherwise. When Mother did contact Father on or about October 6, 2018,
        she requested to bring a gift to the Child, not to exercise custody of the Child.
        Father did not respond to Mother's request.

               Mother did not attempt to contact Father directly; between October 2018
        and January 2019.


              Mother saw the Child in person for the first time.since Father's Day
        weekend 2018 in January 2019 when this Court reinstated Mother's lights.

        At the second part of the TPR hearing held on July 2, 2019, Attorney Erika Lauer,

 Father's former legal counsel, testified that she entered her appearance in this matter on

 September 12, 2018. During the course of her representation, Attorney Lauer stated that
                                               5
Mother contacted her office once in October of 2018, and though Attorney Lauer
                                                                                      '
returned her call, she was unable to speak with Mother. Attorney Lauer indicated that on

or about December 19, 2018, Mother obtained counsel, who she pad one e-mail

correspondence with regarding Mother having contact with the qhild. Attorney Lauer
                                                                                  ;


stated that based on her belief and her client's belief that MotheJ's rights were suspended,

Mother's failure to obtain a threat of harm evaluation, and Mother's failure to complete

parenting classes, Mother's request to have contact with the Child was denied.

       Additionally, Dr. Josh Talarico from Pyramid Health testified that he worked with

Mother regarding her substance abuse problems as a counselor. fHe began treating

Mother in September of 2017. Mother also participated in a methadone treatment

program with Dr. Talarico, and he reported her "clean date" as being October 16, 2018.

Mother had used illegal substances in May, July, August and September of 2018. Even

though Mother is on methadone, she uses marijuana recreationally on and off.
Dr. Talarico stated that as part of the program, Mother had a self-harm assessment

completed, and Mother had never reported a desire to harm herself or others.

         Finally, Mother testified to her version of events as follows:

               That the Child was well bonded with his half-sibling,•• who was 4
       years old.                                              ·

               Mother testified that she believed that there was.a strong bond between
       herself and the Child.                                    '

             Mother stated that she did not take the drug test 1requested by Father in the
        summer of 2018, because she was afraid that Father would not approve of her
        methadone use.

                                                      6



                     ............. ···-··-·-- .....       _   ....   '   ••• ··J•,,,
              On or about August 7, 2018, Mother reached out lo Father and requested
      to see the Child, Father denied her request. Father told Mother that her tights
      were forfeited during this time.                          ·
                                                                 ;



              Mother reached out to Father again in early October of 2018, but Father
      did not respond.
             Mother also contacted Father's then attorney, Erika Lauer, but did not
      speak directly with her.                                ·

             She testified that she had not received prior notices of court proceedings,
      because she had not picked up her mail from her former residence nor from her
      mother in approximately 4 months.

              Mother completed her risk of harm evaluation 011 January 3, 2019, and she
       paid for the FCR child resources class on January 8, 201\9.

              Mother goes on to admit that she did not have contact with the Child
       during the months between Father's Day weekend in 2018 and January 1 l,_2019.
       Mother states that she simply was not in her right state of mind at the time.

       Attorney David Worley, the Child's GAL, informed the.Court that he had met

with the Child without anyone else being present on June 27, 2(H9, and that the Child

again asserted the same information and feelings as he had during the in-camera
interview with the Court on April 24, 2019.

       At the conclusion of the hearing, the undersigned dictated an order on the record

terminating Mother's parental rights to the Child. Several findings of facts were also put

on the record in open court as follows:

             Mother had not seen the Child from Father's Daly weekend 2018 until
       sometime in mid-January 2019.                        ·

                Mother did not have telephone contact with the! Child, did not send gifts
       to the Child, made very minimal attempts to contact Father or his counsel, and did
       not file for relief with the Court. In fact, until December 2019 when mother

                                                  7



                ······· --------····      ················--··
       retained legal counsel, Mother had .no contact with the dourt in this matter since
       2017.

                    Mother has trouble maintaining sobriety.

       The Court goes on to opine that most of the custody isst�es in this matter center

around Mother's drug use. Mother chose a drug lifestyle over tjer son. And thus,

through her own actions, Mother has failed to or refused to perform parental duties with

respect to the Child.

                                                   ISSUES ON APPEAL

           Mother raises the following issues in her l 92S(b) Statement, each will be

discussed in turn below.

       1           The Court did not meet its burden ofestablishing clear and convincing
                   evidence to involuntarily terminate parental rights.

       IL          Clear and convincing evidence was not established to show that Mother,
                   by conduct continuing for a period ofat least six months immediately
                   preceding the filing of a petition either has evidenced a settled purpose of
                   relinquishing parental claim to the child or refused or failed to perform
                   parental duties.                                                  ·

        Ill         Whether the evidence established that Mother destred to retain her rights
                    and attempted to exercise her rights, despite Fai:her refusing to allow
                    Mother to have contact.                          ·

        IV.         Whether the Court can terminate parental right$ during an active custody
                    matter, after a parent's rights have been improperly suspended and
                    Mother was seeking to re-establish the suspended rights.

        V.          Whether Mother's actions towards sobriety and regaining her custody
                    rights, which began prior to the petition to terminate her rights, and
                    continued ajier the petition, should be considered.



                                                             8



           ······················-··· .. ···········---�-   --- ····--······-······ t···   .. ·····-······
        VI.         Whether Father's campaign to keep Mother awa�from the child should be
                    rewarded by terminating Mother's rights.

        VIL         Whether Mother 's misunderstanding of the custody matter should be used
                    against her in terminating her parental rights. · .

        VJIL        Whether the Court's attempt to expedite the heastng and minimize
                    testimony was a violation ofMother's Due Process rights, and additional
                    hearing testimony should be taken.              ·

       IX           Whether evidence of the sibling's strong bond with the child should be
                    considered:                                    ·

       X            Whether the Court improperly relied on Father 'f bonding assessment
                    regarding step-mother and child, when the expert did not review any
                    collateral resources from Mother or reach out tq Mother for input.

       XI           Whether the Court improperly relied on factors other than the actions of
                    Mother within the six months prior to the petition.

       X/1         Whether the Court improperly considered a "needs and welfare analysis"
                   prior to fully determining whether Mother's actions justified termination.

              Statement of Errors Complained of Under Pa.R.A.F.. l 925{b), filed July 30,
              2ru�                                                         ·

                                          DISCUSSION

       The Pennsylvania Superior Court has previously held ttat in reviewing an appeal

from a decree terminating parental rights, the reviewing court rs limited to "determining

whether the decision of the trial court is supported by competent evidence. Absent an

abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's

decision, the decree must stand." In the Matter of B.L. W, 843:A.2d 380 (Pa. Super.
                                                                       ;
                                                                       ;


2004). When a trial court has involuntarily terminated parental! rights, the reviewing

                                                 9



                ......   -"-·······,···---···--·-·--·-----·     ······•·
court "must accord the hearing judge's decision the same deference that [it] would give to

a jury verdict." Id The reviewing court "must employ a broadj comprehensive review
                                                                     '
of the record in order to determine whether the trial court's decision is supported by

competent evidence." Id.
                                                                     '
       The termination of parental rights is based on 23 Pa. C.S.¥\.. §2511, generally.

Specific to this case, the relevant parts of the statute is as follows:

                (a) General rule - The rights of a parent in regard to a child may be
                    terminated after a petition filed on any ofthe 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.

               (b) Other considerations - The court 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) (I), (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. §251 J(a) and (b).

       I.      The Court did not meet its burden ofestablishing clear and convincing
               evidence to involunmrily terminate parental rigl,ts.

       It is denied that the Court did not meet its burden of establishing clear and

convincing evidence to involuntarily terminate Mother's parental rights. As provided in
                                                                     i
23 Pa. C.S.A. §2511 (a)(J), Mother's continuing conduct for a period of at least six (6)

                                               10



                       ----·--·-----
months immediately preceding the filing of the petition evidenc�d Mother's refusal or

failure to perform parental duties for the Child, because between Father's Day weekend,
                                                                '
2018 and January 11, 2019, Mother had no telephone contact with the Child, did not send

gifts to the Child, performed no parental duties for the Child (sJch as attending to the .
                                                                      i
                                                                      '
Child's educational or medical needs), made very minimal attempts to contact Father or

his counsel, and did not file for relief with the Court.

        The language in the Stipulated Order is clear and unambiguous. Specific to drug

testing, the Stipulated Order provides that "upon Father's reque�t, Mother will take a

drug test within 48 hours .. .if Mother fails a drug test, then her rights of partial physical

custody will be automatically suspended until further order of court." Stipulatedfor

Custody Order, p. 3, July 7, 2015. While it is admitted that Mother did not fail the drug

test requested by Father in the summer of 2018, she did refuse, and/or failed to take the

drug test. This Court chooses not to split hairs on failing a test o] failing to take a test. ·

Mother's refusal to take the drug test leads the Court to believe �hat Mother would have

probably failed the drug test had she taken it at that time. Mother's own testimony that

she had relapsed around that time and was using methadone confirms the Court's

suspicions. Mother also testified that she did not take the drug test, because she did not

want Father to know that she was using methadone. The suspen�ion of Mother's rights

during the months between June 2018 and January 2019 were a consequence of Mother's

own poor decision making and failure to remedy the problem simply by complying with
                                                                      !

                                                                      i
the drug test that Father had requested. Furthermore, while Mother's rights of partial

                                                11
                                                                   !

physical custody were suspended, no language in the Stipulated Order prevented Mother
                                                                   i
from having telephone contact with the Child or sending the Chi}d gifts during that time.
                                                                   i
                                                                   I


        Therefore, the Court did meet its burden of establishing clear and

convincing evidence to involuntarily terminate Mother's parental rights, because
                                                                   I
                                                                   i

Mother's continuing conduct for a period of at least six (6) months immediately

preceding the filing of the petition evidenced Mother's refusal or/ failure to perform

parental duties for the Child.


        II.    Clear and convincing evidence was not established to show that Motlier,
               by conduct continuing fora period of at least siximonths immediately
               preceding the filing of a petition either has evidenced a settled purpose
               of relinquishlng parental claim to the child or refused or/ailed to
               perform parental duties.                           ·


       It is denied that the Court did not establish clear and convincing evidence to show

that Mother by her own conduct evidenced a settled purpose of relinquishing parental
                                                                       i

claim to the Child or refused or failed to perform parental duties. \Father and Mother both

testified that Mother did not have contact with the Child from approximately June 17,

2018 to January 11, 2019. Prior to not complying with the drug test Father requested,

Mother declined to exercise her period of custody in late June/early July of 2018. As

previously stated, the language of the Stipulated Order is clear. Yet, Mother took no
                                                                           !


steps to correct the situation she created for herself. She did not advise Father at any time

that she was willing to take another drug test, nor did she seek reli�f from the Court. In

fact, Mother testified that she did not receive notice of the proceedings following Father's

                                             12



                      ·---------------········· ····+····
        first petition for special relief because she did not collect her mail for four (4) months.

        This is not how reasonable and responsible adults act.· Mother ind Father also both
                                                                        '
        testified that from June 17, 2018 to January 11, 2019, Mother failed to or refused to

        perform parental duties for the Child, because Mother did not attend to the Child's
                                                                              i
                                                                              '
        mental, emotional, physical needs; and Mother did not perform !daily caregiving duties

        for the Child, such as preparing meals, bathing, and the like.

               Therefore, the Court did establish clear and convincing evidence to show that

        Mother evidenced a settled purpose of relinquishing parental claim to the Child or

        refused or failed to perform parental duties, because ample evidence was presented at the

        TPR hearing to demonstrate that Mother refused or failed to attend to the Child's mental,

        emotional, and physical needs for a period of at least six (6) months.


               III.       Whether tile evidence established that Mother desired to retain her
                          riglzts and attempted to exercise Iler rights, despite Father refusing to
                          allow Mother to have contact.

               It is denied that there was sufficient evidence to established that Mother desired to

        retain her rights and attempted to exercise her rights, despite Father refusing to allow

        Mother to have contact. While the Court does not doubt that Mother loves the Child, her

        actions are quite inconsistent with a "desire to retain her rights"! to the Child. Being a
                                                                              '
        parent is not a part-time job; one cannot simply pick and choose when itis convenient to

        be a parent, which is exactly how Mother behaves. Based on the evidence presented,

        Mother made no attempts to exercise her parental rights from June 17, 2018 through

        January 11, 2019. Mother declined to exercise at least one of'her custodial periods,
                                                  13


"   -             "   "      -       _   - --------             .., ..   __       .
                                                                           '
                                                                           'i


Mother violated the Stipulated Order causing her rights to be suspended, and Mother did

not seek relief to have her rights be re-instated. While it is not relevant to the time period
                                                                           '
required by statute for termination of parental rights, this Court wants to note that it gave

Mother the benefit of the doubt and reinstated her rights on J anuary 11, 2019, and Mother
                                                                           i

failed yet another drug test in February of 2019, thus, suspending her rights again.

Mother has chosen drugs over the Child and shows a continuing pattern of doing so.

        Mother mischaracterizes the suspension of her parental tights as Father not

allowing her contact with the Child. The provision regarding drug testing in the

Stipulated Order is self-enforcing, Mother has no one to blame but herself for her

conduct. Father did not prevent Mother from mailing gifts or letters to the Child, and

Father did not prevent Mother from pursuing her own legal action if she felt Father was

acting unfairly in restricting her access to the Child.

        Therefore, there was sufficient evidence presented at the TPR hearing to establish

that Mother did not desired to retain her rights and that she fail�d to attempt to exercise

her custodial rights, because she failed to make any remedial measures to have her

custodial rights reinstated.

        IV.                  Whether the Court can terminate parental rights during an active
                             custody matter, after a parent's rights have been improperly suspended
                             and Mother was seeking to re-establish the suste1ide<I riglus.

         It is denied that the Court committed an error in terminating Mother'sparental

rights while an active custody matter was pending. It is further'denied that Mother's



                                                        14



       ..................   ·····-···-···--···-----------··--· ----··
                         custodial rights were improperly suspended and that Mother w�s actively seeking to re-

                         establish her suspended rights.

                                The Court did not commit an error in suspending Mother's parental rights to the

                         Child. Mother's custodial rights were suspended pursuant to th� Stipulated Order which
                                                                                           i
                                                                                           ;


                         the parties entered into on July 7, 2015, not by any action of'thd Court. The specific

                         language relative to the drug testing provision in the Stipulated Order is clear,

                         unambiguous, and self-enforcing. The Court is puzzled by Mother's blanket assertion

                         that her rights were "improperly" suspended, as the Ianguage in: the Stipulated Order

                         seems self-explanatory. As to Mother's assertation that she was "seeking to re-establish

                         the suspended rights," the Court finds this equally as puzzling. Looking solely at the

                         custody matter, and not considering the petition to involuntary terminate parental rights,

                         Mother did succeed in having her parental rights reinstated in J anuary 2019. However,
                                             .                                             '
                         within a few short weeks, in February 2019, Mother failed another drug test, thus,

                         causing her parental rights to be suspended again. Pederal law reoogriizes marijuana as

                         an illegal substance and so does this Court, Mother's failure tostay drug-free is beyond

                         concerning. Mother claims that she is seeking to re-establish her suspended rights, yet

                         she continues the same course of conduct and poor decision making which led to her

                         rights being suspended in the first place.

                                The termination of parental rights is a collateral matter to the custody case. It is

                         not improper for the Court to consider Father's petition during �n on-going custody case,
                                                                                           i
                         because the conduct of the parties during the custody litigation is at the center of whether

                                                                      15


......................   ··············--·········-·---------------
                                                                    !


the parental rights of a patty should be terminated. Specifically. whether or not both

patties are performing parental duties for the Child, and have been
                                                                 i
                                                                    for an excess of six. (6)

months prior to the date of the filing of the petition for termination of parental rights.

       Therefore, the Court did not commit an error in terminating Mother's parental
                                                                    ;


rights while an active custody matter was pending, because the events and conduct of the

parties in the custody litigation within the six (6) months prior t� the filing of the

termination petition are relevant to the termination of parental rights litigation.


        V.      Whether Motfle,.•s actions towards sobriety and regaining her custody
               rig/its, wlticlt began prior to tne petition to terminate her rig/its, and
               continued after tile petition, should he considered.

       It is admitted that Mother's actions towards sobriety and regaining her custody

rights which began prior to the petition to terminate her rights should be considered. It is

denied that Mother's actions towards sobriety and regaining her custody rights which

occurred after the petition was. filed should be considered.

        Pursuant to 23 Pa.C.S.A. §251 l(a)(l), the relevant time period to consider

parental conduct for the pW]JOSe of determining whether or not parental rights should be

terminated is six ( 6) months prior to the date of the filing of the petition to involuntarily

terminate parental rights. Looking solely at that time period, Mother did make steps

towards sobriety, specifically, she started a methadone treatment program and was in

counseling for her drug addiction. However, as Mother herself testified to, she also had a

relapse during that time and continued to use marijuana (which is a substance that she
was not being tested for as part of her methadone treatment). 1he Court considered all
                                               16
of this in its decision. With respect to Mother's attempts to regain her custody rights

during this time period, as stated previously herein, the Court �oes not consider Mother's
                                                                   i


actions consistent with those of an individual actively seeking �o regain their custodial

rights. Just as actions are taken into consideration by the Court, inaction is also taken
                                                                   !

                                                                   '
into consideration.

Pursuant to 23 Pa.C.S.A. §251 l(b), "[w]ith 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.CS.A. §251 l(b).   !It is clear under the statute
that the Court cannot consider Mother's actions towards sobriety and regaining her

custody rights which occurred after the petition was filed. TheiCourt takes note of the

fact that Mother failed a drug test in February 2019, only a   few short weeks after
Mother's custodial rights to the Child were reinstated by this Court, resulting in her

custodial rights being suspended again.

       Therefore, pursuant to 23 Pa.C.S.A. §2511 (a)(l) and (b], the Court

may consider Mother's actions towards sobriety and regaining her custody

rights which began prior to the petition to terminate her rights Should be considered,

however, the Court cannot consider Mother's actions towards Sobriety and regaining her

custody tights which occurred after the petition was filed.


        VJ.    Whether Father's campaign to keep Motlier m�ay from tlu: child should
               be rewarded by terminating Mother's rights. ·

                                              17



                      ----------······-·-                  .
        Mother's sixth issue raised is a matter of opinion and nqt an allegation of
                                                                  '

abuse of discretion, error of law, or a claim of insufficient evidence, thus, this Court

defers to the record in this matter, as well as the related custody matter, as the Court

believes the records are clear and the Court cannot offer any further explanation on the
                                                                  '
                                                                  '
issue raised by Mother.


        Vil.    Whether Mother's misunderstanding of the cu$fo<ly matter s/1011/tl be
                used against her in terminating her parental rigltts.


        It is denied that Mother's misunderstanding of the custody matter was used
                                                                  '
against her in terminating her parental rights. Mother stated th�t she believed that her

custodial rights were suspended because, Father told her so. Mother's reliance on

Father's interpretation of the Stipulated Order was oflittle importance in the Court's

decision. What was important to the Cami was Mother's conduct in attempting to regain

her custodial rights. Mother appeared to just accept her fate rather than fighting for the

Child. Again, nothing prohibited Mother from seeking court intervention if she felt her

custodial rights were rightly or wrongly being violated by Father, Therefore, the Court

did not commit an abuse of discretion, because the Court did not use Mother's

misunderstanding of the custody matter against her in terminating her parental rights.


       VIII.   Whether the Court's attempt to expedite the heariug and minimize
               testimony was a violation ofMother's Due Process rights, and additional
               hearing testimony should be taken.             :



                                             18



                ·······-··········-----�---�--
        It is denied that the Court committed an abuse of discretion or error of law and

that Mother's due process rights were violated because additional testimony as not taken.

The Court heard testimony from the Child, Mother, Father, and their collateral witnesses.

Each counsel was given the opportunity to cross-examine all witnesses, as well as re-
                                                                  ;
                                                                  ;


direct their own witnesses. As is shown in the record, the Court had to redirect counsel

for both patties numerous times to stay focused and stay on testimony that was relevant.

The Court heard lengthy testimony presented by both sides that provided _no guidance to

the Court on whether or not Mother's parental rights should beterminated, However,

despite the length of the proceedings, the facts of this case are pretty straight forward, and

the parties themselves through their own testimony admitted most of the relevant factors.

The Court does not believe that any other collateral witnesses would have been helpful in

this matter, or resulted in a different outcome.

        Therefore, the Court did not commit an abuse of discretion or error of law

Which resulted in Mother's due process rights being violated, because each party was

given ample opportunity to present their case to the Court.


       IX      Wkether evidence of the sibling's strong bond ;1,1itlt the child should be
               considered.


       It is admitted that the sibling bonds should be concerned in the decision to

terminate the parental rights of a party. Pursuant to 23 Pa.C.S.�. §251 l(b), "(t)he court.

terminating the rights of a parent shall give primary consideration to the developmental,

physical and emotional needs and welfare of the child." Id. This Court holds sibling
                                             19



         ······················-·-�--                            -------··                  .
bonds in high regard in custody matters, after all siblings are often each other's first

playmates and first best friends. The Child has a younger siste] in Mother's household

and is soon going to be a big brother for the second time in Father's household.

        Sibling bonds are veryimportant to the developmental �nd emotional needs of a
                                                                  i
                                                                  ;


child, but just like all bonds, the siblings must have time together and actually physically

be around each other for such a bond to form, In this matter, t�e Court did give

consideration to the Child's bond with his younger sister, but did not give it much weight.

Mother's actions have made it difficult for the Child to approp�iately bond with his sister

as the Child has not been able to have frequent and continuing contact with his sister.

Further, the termination of parental rights, does not necessarily mean the termination of

sibling relationships. Post-adoption, the parties are free to make arrangements to

continue the sibling relationship between the children, should the parties choose to do so.

       Therefore, the Court did not abuse its discretion or commit an error of law,

because the Court should have, and did in fact consider the sibling bond between the

Child and his younger sister in the decision to terminate Mother's parental rights, but the

weight given to that bond was very slight.

       X       Whether the Court improperly relied 01t Father's bonding assessment
               regarding step-motlier and ckiid, when tile expert did 1101 review any
               collateral resources from Mother 01· reach out (o Motlier for input.

       It is denied that the Court improperly relied on Father's bonding assessment

regarding step-mother and the Child, when the expert did not review any collateral
                                                                  ;



resources from Mother or reach out to Mother for input. The Court did not put as much

                                             20
                                                                  !

emphasis on the bonding
                      .
                        assessment as Mother asserts, in fact, !the
                                                               i
                                                                    bond between the

Child and his step-mother is of no importance in determining 411ether or not Mother's

parental rights should be terminated. The Court is aware that tlie bonding assessment
                                                                  i

was done without input from Mother, but there was little other �vidence that Mother had
                                                                  !
a strong bond with the Child.

       When considering to terminate parental rights, the Couri must look at "the

developmental, physical and emotional needs and welfare of th� child." Id The bond

between a parent and a child is not always a healthy bond. A child can be very well

bonded with their parent, but in a manner that is destructive to t11e child's well-being.

Furthermore, just as the bond between siblings needs time and attention to grow, so does

the bond between a parent anda child. Here, Mother admitted that she had no contact
                                                                      I




with the Child from June 17, 2018 to January 11, 2019. The Child stated during his in-

camera interview that he had not seen Mother for months, and referred toher as "Tori."

The Child also expres sed a strong opinion during the in-camera interview, and several

months later to his GAL that he did not want to see Mother. Th� bonding assessment

indicated that the Child would not be harmed by terminating Mdther's parental rights,

because there was not a strong bond between the Child and Mother. This Court agrees;

however, the Court bases its finding on the Court's own observaticns
                                                               !
                                                                     and evidence, and

not the recommendation of Father's bonding assessment.

       Therefore, the Court did not abuse its discretion, commi�an en-or of law, or rely
                                                                          l
on insufficient evidence with respect to its consideration of Father's bonding assessment

                                              21



                     ·--------------··········· ··•·                          ······-···
in deciding to terminate Mother's rights, because the Court did: not rely on the bonding

assessment as a deciding factor in whether or not Mother's parental rights should have

been terminated.


       XI.      Whether the Co1111 improperly relied 011facto1fs other than the actions
               of M.other wit/till the six months prior {O the petitiOll.

       It is denied that the Court improperly relied on factors other than the actions of

Mother within the six (6) months prior to the petition. The Court is to consider the

developmental, physical and emotional needs and welfare of the child, this may or may

not be limited to the direct actions of Mother. For example; how Mother's actions effect

the Child, is a relevant factor. The Court noted on the record that Mothers drug addiction

has been at the center of the patties' custody dispute, and certainly in the termination

proceeding as well. The Court gives the appropriate weight to all the evidence presented

before it, but that does not mean equal weight. Mother's pattern of bad decision making

and lack of responsibility weigh most heavily against her. Therefore, the Court did not

abuse its discretion, commit an error of law or rely on insufficient evidence in

considering other factors than Mother's own actions.


       XII.    Whether the Court improperly considered a "needs and welfare
               analysis" prior to fully determining whether Mot/zer's actions justified
               termination.

       It is denied that the Court improperly considered a "needs and welfare analysis',

prior to fully determining whether Mother's actions justified termination. Again, the
Court gives the appropriate, but not equal weight to all the evidence before it. The needs
                                             22                  :
and welfare of the Child are the prominent concern in this matter; thus, it seems

appropriate that at least in some capacity the Court would give some consideration to the
                                                                 i


subject. Therefore, the Court did not abuse its discretion, commit an e1T01' of law or rely

on insufficient evidence in considering a "needs and welfare aualysis."
                                                                 !

                                                                 '

                                     CONCLUSION

       For the foregoing reasons, this Court hereby reaffirms   ils Order dated July 2,
2019, terminating Mother's parental rights to the minor Child, .• ,




                                                                           GES,JUDGE




                                             23
