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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: Z.M.S., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
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    APPEAL OF: J.A.M.S., MOTHER                :   No. 428 EDA 2018

                    Appeal from the Decree January 10, 2018
    In the Court of Common Pleas of Lehigh County Orphans’ Court at No(s):
                                  A2017-0029

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 08, 2018

       J.A.M.S. (“Mother”) appeals from the decree entered January 10, 2018,

in the Court of Common Pleas of Lehigh County, which involuntarily

terminated her parental rights to her minor daughter, Z.M.S. (“Child”), born

in September 2011.1 Because our review of the record supports the findings

and conclusions of the orphans’ court, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

       Child first came to the attention of the Lehigh County Office of Children

and Youth Services (“CYS”) when she was three years old after it received a

referral indicating that police officers discovered Child wandering the streets

without adult supervision. N.T., 9/25/17, at 14. Later, CYS discovered that

Mother’s boyfriend was a Tier III Megan’s Law offender. Id. CYS put a safety
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1 In its decree, the orphans’ court indicated that it entered a separate decree
that same day confirming the consent of Child’s father, D.H, to relinquish his
parental rights. See Decree, 1/10/18, at 2 n. (citing Adjudication, 1/10/18).
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plan in place, which prohibited Mother’s boyfriend from having unsupervised

contact with Child.        Id.    This included a provision prohibiting Mother’s

boyfriend from spending the night at her home. Id. at 15. Mother violated

the safety plan almost immediately, by allowing her boyfriend to spend the

night that very evening. Id. at 14-15. The juvenile court entered an order

for emergency protective custody on July 15, 2015, and adjudicated Child

dependent on September 29, 2015.

       On June 19, 2017, CYS filed a petition to terminate Mother’s parental

rights to Child involuntarily.         The orphans’ court conducted a hearing

September 25, 2017.2 Following the hearing, on January 10, 2018, the court

entered a decree terminating Mother’s parental rights. Mother timely filed a

notice of appeal on January 29, 2018, along with a concise statement of errors

complained of on appeal.

ISSUES ON APPEAL

       Mother now raises the following claims for our review:

       I. Did the [orphans’] court commit an error of law or abuse of
       discretion in its determination that [CYS] sustained its burden of
       proof by clear and convincing evidence that the statutory
       standards set forth in 23 Pa. C.S.A. §2511(a)(1), (2), (5) and (8)
       had been met?

       II. Did the [orphans’] court commit an error of law or abuse of
       discretion in its determination that [CYS] sustained its burden of
       proof by clear and convincing evidence that the termination of
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2 During the hearing, Michael E. Moyer, Esquire, served as Child’s legal counsel
and guardian ad litem. In an order entered June 29, 2017, the orphans’ court
found that there did not appear to be any conflict between Child’s legal
interests and best interests.

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      parental rights best meets the developmental, physical and
      emotional needs and welfare of the child as required by 23 Pa.
      C.S.A. §2511(b)?

Mother’ Brief at 4 (suggested answers omitted).

LEGAL ANALYSIS

      We review a decree terminating parental rights involuntarily in

accordance with the following standard:

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an abuse
      of   discretion    only   upon     demonstration      of    manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely because
      the record would support a different result. We have previously
      emphasized our deference to trial courts that often have first-hand
      observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

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

involuntary termination of parental rights. It requires a bifurcated analysis:

      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



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      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 this case, the orphans’ court terminated Mother’s parental rights

pursuant to Section 2511(a)(1), (2), (5), (8), and (b). We need only agree

with the court as to any one subsection of Section 2511(a), as well as Section

2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.

2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze

the court’s decision to terminate under Section 2511(a)(2) and (b), which

provides as follows:

      (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.

                                      ***

      (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

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      which are first initiated subsequent to the giving of notice of the
      filing of the petition.

23 Pa.C.S. § 2511(a)(2), (b).

      Termination Pursuant to Section 2511(a)(2)

      We first address whether the orphans’ court abused its discretion by

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

      In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
      2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has caused the child to
      be without essential parental care, control or subsistence
      necessary for his physical or mental well-being; and (3) the
      causes of the incapacity, abuse, neglect or refusal cannot or will
      not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). “The grounds for termination due to parental incapacity that cannot

be remedied are not limited to affirmative misconduct. To the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

duties.”    In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations

omitted).

      On October 10, 2018, the Orphans’ Court granted the Petition to

terminate mother’s parental rights. The court based its Decree on Mother’s

failure to comply with nearly all of her court-ordered reunification goals by

failing to complete required services.     The court expressed concern that

Mother focused her energy on maintaining a relationship with an untreated

sex offender rather than participating in services.     The court particularly

emphasized Mother’s failure to complete non-offending parenting treatment,


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which would have aided her in recognizing and avoiding the threat that this

relationship poses to Child. See Decree, 1/10/17 (relying on Adjudication,

1/10/17); see Adjudication at 15-16.

      Mother responds by touting her parenting abilities. Mother’s Brief at 13-

15. She argues that she was appropriate and caring toward Child during their

weekly, one-hour visits together, and that her abilities improved as time went

on.   Id.   Mother blames her failure to complete non-offending parenting

treatment on the treatment providers and CYS. Id. She suggests that she

may have been more likely to succeed in non-offending parenting treatment

if it emphasized individual rather than group therapy, and included referrals

for treatment of her depression and suspected post-traumatic stress disorder.

Id. at 14-15. Mother maintains that the CYS caseworker spent her time “lying

in wait,” trying to catch Mother with her boyfriend, rather than addressing

Mother’s needs and trying to help her. Id. at 14.

      After a thorough review of the record in this matter, we conclude that

the Orphans’ court did not abuse its discretion.      During the termination

hearing, CYS presented the testimony of caseworker, Laura Craig. Ms. Craig

testified that the trial court ordered Mother to complete a series of

reunification goals. N.T., 9/25/17, at 16. These goals included complying

with CYS; cooperating with visitation; participating in Child’s medical

appointments; working with in-home services; obtaining and maintaining a

safe and stable residence and a legal source of income; cooperating with non-

offending parenting treatment; and not allowing any contact between her

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boyfriend and Child until he successfully completes a sex offender treatment

program as confirmed by CYS. Id. at 16, 26.

       Ms. Craig testified that Mother complied with at least some of these

goals. Mother attended all of her weekly, one-hour supervised visits with Child

and all of Child’s medical appointments. Id. at 26. CYS also referred Mother

for in-home services though JusticeWorks.           Id. at 27.     JusticeWorks

discharged Mother successfully, during a time when she was living with her

parents, working at a fast-food restaurant, and attending visits consistently.3

Id. at 27, 40.

       However, Mother failed to comply with the remainder of her goals.

Concerning the goal that Mother obtain and maintain a safe and stable

residence, Ms. Craig testified that Mother moved repeatedly. Id. at 20-21.

She explained,

       [Mother] was with her mom and dad at their house. She has said
       that she was living in a tent. She said she was living with a friend
       that she couldn’t get the address to. Back to her parents. And
       then she recently said that she was living in Palmerton, but all of
       her mail was being returned from Palmerton. And when I asked
       her about that, she said that she then did move back with her
       parents. So right now, she is staying with her parents.

Id.

       Mother also failed to complete non-offending parenting treatment. Ms.

Craig testified that Mother began treatment at Confront. Id. at 18. Confront

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3 Ms. Craig testified that Mother obtained “a couple” jobs, including working
at the fast-food restaurant, but failed to keep them. N.T., 9/25/17, at 27, 45-
46.

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discharged Mother unsuccessfully in January 2016, due to her failure to attend

and participate consistently.         Id.      CYS then referred Mother to another

program at Forensic Treatment Services (“FTS”). Id. FTS discharged Mother

unsuccessfully in August 2016, due again to her failure to attend and

participate.   Id. In addition, FTS discharged Mother due to her refusal to

acknowledge that she was still in a relationship with her boyfriend. Id. at 18,

44. Ms. Craig explained that CYS personnel continued to observe Mother and

her boyfriend together, even after Mother claimed that she had ended their

relationship. Id. at 18-20. Most recently, CYS sent certified mail containing

notice of the termination hearing to the boyfriend’s home, and Mother signed

for the mail.4 Id. at 20.

       Ms. Craig further testified that the trial court ordered Mother to complete

a psychological evaluation before attempting another round of non-offending

parenting treatment.       Id. at 55.       The court ordered Mother to obtain the

evaluation in August 2016, but she failed to comply until March 2017. Id. at

55-56. Ms. Craig reported that FTS is now willing to accept Mother back for

further treatment, but not until she writes the program a letter “saying why

her treatment would be different this time.” Id. Mother claimed to Ms. Craig

that she sent FTS a letter “over the summer,” but FTS indicates that it has not

received it. Id. at 56-57.



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4 Ms. Craig noted that CYS never received any indication that Mother’s
boyfriend attended sex offender treatment. N.T., 9/25/17, at 16.

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      Accordingly, the record confirms that Mother is incapable of parenting

Child and she cannot or will not remedy her parental incapacity. Mother failed

to maintain safe and stable housing for Child. More critically, Mother remained

in a relationship with an untreated sex offender and failed to complete two

separate non-offending parenting treatment programs. Mother’s suggestion

that she may have been more likely to complete treatment if it focused on

individual rather than group therapy and included certain referrals is pure

speculation and does not warrant reversal of the termination decree. By the

time of the hearing in this matter, Child had been in foster care for well over

two years, and was in need of permanence and stability. Because it is clear

that Mother will not be able to provide that permanence and stability at any

point in the foreseeable future, the record supports the findings and

conclusions of the orphans’ court with respect to Section 2511(a)(2).

      Termination Pursuant to Section 2511(b)

      We next consider whether the orphans’ court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(b). We have

set forth the requisite analysis as follows:

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. While a parent’s emotional bond with his or her child
      is a major aspect of the subsection 2511(b) best-interest analysis,



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      it is nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and

citations omitted).

      Our   Supreme    Court    has    noted   that   “[a]s   with   dependency

determinations, we emphasize that the law regarding termination of parental

rights should not be applied mechanically but instead always with an eye to

the best interests and the needs and welfare of the particular child[ ]

involved.” In re T.S.M., 71 A.3d 251, 268-69 (Pa. 2013).

      This Court recognized in In re A.D., 93 A.3d 888, 897-98 (Pa. Super.

2014), that the “mere existence of an emotional bond does not preclude the

termination of parental rights,” and that “[t]he court may equally emphasize

the safety needs of the child under subsection (b).” Id. (citations omitted).

“Obviously, attention must be paid to the pain that inevitably results from

breaking a child’s bond to a biological parent, even if that bond is unhealthy,

and we must weigh that injury against the damage that bond may cause if left

intact.” In re. T.S.M, supra at 69.


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      In the instant case, Mother contends that severing Child’s bond with her

would cause Child to suffer irreparable harm.        Mother’s Brief at 18.     She

maintains that CYS presented only minimal testimony as to the nature and

depth of this bond, which was inconclusive at best and irrelevant at worst. Id.

at 18-19. Mother insists that Child’s bond with her is more significant than

Child’s bond with her foster parents, as evidenced by Child’s practice of

referring to her as her “real Mommy,” and referring to her foster parents as

her “pretend Mommies.” Id. at 19.

      The evidence considered by the court pertaining to the Child’s bond with

Mother included the following. Mother’s visitation coach, Shereeann Lewis-

McBean, testified that she began supervising Mother’s weekly, one-hour visits

in April 2016. N.T., 9/25/17, at 94. During the early visits, Mother and Child

would spend most of their time eating a snack, and “[t]here wasn’t much

engaging or anything productive.”      Id. at 96-97. Mother would try to get

Child to hug her but Child would resist. Id. at 96. Ms. Lewis-McBean reported

that Mother is now better at engaging Child during visits and that Mother and

Child exhibit signs of bonding. Id. at 98. Child will sometimes be reluctant

to leave Mother when visits are over and will try to extend visits by beginning

new activities. Id. at 98-99. Child is also more willing to hug Mother and say,

“I love you,” at the end of visits, “without [Mother] having to pry it out of her.”

Id. at 99.    Ms. Lewis-McBean added that Child seems confused by her

circumstances, and questions Mother frequently about “having multiple




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Mommies.” Id. at 99-100, 109. Child refers to Mother as her “real Mommy,”

and to her foster parents as her “pretend Mommies.” Id. at 100.

      Child’s counsel presented the testimony of court-appointed special

advocate, Lisa Tejada. Ms. Tejada testified that she observed sixty-five of

Mother’s visits with Child. Id. at 112. Based on her observations, Ms. Tejada

did not believe that Mother and Child share a meaningful bond. Id. at 113.

She explained, “[Child] is reluctant to hug her mom at times. Very reluctant

to say I love you. Many times [Mother] will tell [Child] I love you, I love you,

quite a few times, and sometimes [Child] would respond and other times she

would just leave and not say anything.” Id. at 113-14. Ms. Tejada recalled

that one of Mother’s recent visits had to be cancelled, and that Child did not

appear to be disappointed or upset. Id. at 116.

      Ms. Tejada further testified that Child is aware that her foster parents

may adopt her, and appears to be looking forward to the adoption. Id. at

116. She recalled that she and Ms. Craig (the CYS caseworker) visited Child

at her foster home recently, and during the visit, Child asked Ms. Craig

whether “she would be able to come back and be at her adoption.” Id. at

115-16

      The Orphans’ court resolved the conflicting testimony regarding the

Child’s bond with Mother by concluding that the Child has “a fairly strong

emotional bond” with Mother. Adjudication, 1/10/18, at 19-21. As required

by Section 2511(b), the court weighed that conclusion against the Child’s need

for safety, stability, and security, and determined that termination would best

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serve Child’s needs and welfare.    In reaching its determination, the court

weighed the Child’s bond with Mother against the damage that the bond may

cause to Child if left intact. Specifically, the court emphasized that Mother’s

failure to comply with reunification services, which included her failure to

complete non-offender’s parenting treatment, and her maintaining a romantic

relationship with a lifetime-registrant child sex offender—a relationship that

was the reason for the removal of the Child over two years prior to the

hearing—would not serve the safety needs of the Child.         The court also

considered the positive and beneficial relationship Child has with her foster

parents, a pre-adoptive resource, as a factor weighing in favor of termination

for the sake of the Child’s needs and welfare.

      Based on the foregoing, we conclude that the Orphans’ court did not

abuse its discretion by terminating Mother’s parental rights to Child

involuntarily. Therefore, we affirm the court’s January 10, 2018 decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2018




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