J-S10045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF J.D.M., JR.           :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: C.M., MOTHER                  :         No. 3090 EDA 2014

            Appeal from the Order Entered September 29, 2014
           In the Court of Common Pleas of Montgomery County
                   Orphans’ Court at No(s): 2013-A0196


IN RE: ADOPTION OF C.D.M.                :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: C.M., MOTHER                  :         No. 3091 EDA 2014

            Appeal from the Order Entered September 29, 2014
           In the Court of Common Pleas of Montgomery County
                   Orphans’ Court at No(s): 2013-A0195


BEFORE: GANTMAN, P.J., STABILE, J., AND PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                   FILED FEBRUARY 12, 2015

     Appellant, C.M. (“Mother”), appeals from the orders entered in the

Montgomery County Court of Common Pleas Orphans’ Court, which granted

the petition of Appellee, the Montgomery Office of Children and Youth

Services (“OCY”), for involuntary termination of Mother’s parental rights as

to her minor children, J.D.M. and C.D.M. (“Children”).1 We affirm.



1
  Children’s birth father is not a party to this appeal. He voluntarily
relinquished his parental rights to Children at the termination hearing on
March 19, 2014.
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S10045-15


     In its opinion, the Orphans’ court fully and correctly sets for the

relevant facts and procedural history of this case.   Therefore, we have no

reason to restate them.

     Mother raises several issues for our review:

        WHETHER THERE WAS SUFFICIENT EVIDENCE TO
        SUPPORT THE FINDINGS OF THIS HONORABLE COURT
        THAT [OCY] PROVED BY CLEAR AND CONVINCING
        EVIDENCE THE REQUIREMENTS OF 23 PA.C.S.A. [§]
        2511(A)(1), (2) AND (8) FOR THE INVOLUNTARY
        TERMINATION OF [MOTHER’S] PARENTAL RIGHTS?

        WHETHER THIS HONORABLE COURT ABUSED ITS
        DISCRETION IN FINDING THAT THE CAUSES OF THE
        ALLEGED INCAPACITY, ABUSE, NEGLECT OR REFUSAL
        CANNOT OR WILL NOT BE REMEDIED BY [MOTHER]
        PURSUANT TO 23 PA.C.S.A. [§] 2511(A)(2), WHEN [OCY]
        FAILED TO MAKE REASONABLE ACCOMMODATIONS FOR
        [MOTHER’S] DISABILITIES, AND FAILED TO PROVIDE
        MEANINGFUL ASSISTANCE IN MAINTAINING STABLE
        HOUSING AND OTHER SERVICES?

        WHETHER THIS HONORABLE COURT ABUSED ITS
        DISCRETION IN TERMINATING THE PARENTAL RIGHTS OF
        [MOTHER] ON THE BASIS OF ENVIRONMENTAL FACTORS
        SUCH    AS   INADEQUATE   HOUSING,   FURNISHINGS,
        INCOME, CLOTHING AND MEDICAL CARE, WHEN THOSE
        FACTORS    WERE    BEYOND    [MOTHER’S]  CONTROL
        PURSUANT TO 23 PA.C.S.A. [§] 2511(B), AND WHEN
        [OCY] FAILED TO MAKE REASONABLE ACCOMMODATIONS
        FOR [MOTHER’S] DISABILITIES AND FAILED TO PROVIDE
        MEANINGFUL ASSISTANCE IN MAINTAINING STABLE
        HOUSING AND OTHER SERVICES?

        WHETHER THIS HONORABLE COURT ABUSED ITS
        DISCRETION IN FINDING THAT THE DEVELOPMENTAL,
        PHYSICAL AND EMOTIONAL NEEDS AND WELFARE OF
        [CHILDREN] WILL BE BEST SERVED BY THE TERMINATION
        OF [MOTHER’S] PARENTAL RIGHTS PURSUANT TO 23
        PA.C.S.A. [§] 2511(B), WHEN THERE IS A STRONG AND
        LOVING BOND BETWEEN [MOTHER] AND THE CHILDREN,

                                   -2-
J-S10045-15


         AND SEVERANCE OF THAT BOND                  WILL    CAUSE
         IRREPARABLE HARM TO THE CHILDREN?

         WHETHER THIS HONORABLE COURT ERRED IN GRANTING
         [OCY’S] PETITION TO CHANGE THE GOAL FROM
         REUNIFICATION TO ADOPTION WHEN THE GOAL OF
         REUNIFICATION REMAINS THE MOST APPROPRIATE AND
         FEASIBLE GOAL BASED ON THE STATUTORY FACTORS SET
         FORTH IN 42 PA.C.S.A. [§] 6351(F)?

         WHETHER THIS HONORABLE COURT ERRED IN GRANTING
         [OCY’S] PETITION TO CHANGE THE GOAL FROM
         REUNIFICATION TO ADOPTION WHEN [OCY] FAILED TO
         MAKE   REASONABLE  EFFORTS    TO   FINALIZE THE
         PERMANENCY PLAN GOAL OF REUNIFICATION?

         WHETHER THIS HONORABLE COURT HAD SUFFICIENT
         EVIDENCE TO DETERMINE THE APPROPRIATENESS OF
         CHANGING THE GOAL FROM REUNIFICATION TO
         ADOPTION WHEN THE COURT DID NOT CONSULT WITH
         THE CHILDREN REGARDING THE PERMANENCY PLAN
         PURSUANT TO 42 PA.C.S.A. [§] 6351(E)(1)?

(Mother’s Brief at 4-5).2

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent
         evidence, and whether the trial court gave adequate
         consideration to the effect of such a decree on the welfare
         of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972


2
   Mother’s brief on appeal presents no legal argument based on Section
6351, as recited in Mother’s issues 5 through 7. Mother merely quotes the
statute and draws conclusions based on her interpretation of the facts and
circumstances of the case. Therefore, we give these issues no further
attention.
                                    -3-
J-S10045-15


A.2d 5, 8 (Pa.Super. 2009)).

           Absent an abuse of discretion, an error of law, or
           insufficient evidentiary support for the trial court’s
           decision, the decree must stand.       …    We must
           employ a broad, comprehensive review of the record
           in order to determine whether the trial court’s
           decision is supported by competent evidence.

        In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
        banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
        (internal citations omitted).

           Furthermore, we note that the trial court, as the
           finder of fact, is the sole determiner of the credibility
           of witnesses and all conflicts in testimony are to be
           resolved by [the] finder of fact. The burden of proof
           is on the party seeking termination to establish by
           clear and convincing evidence the existence of
           grounds for doing so.

        In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
        2002) (internal citations and quotation marks omitted).
        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
        may uphold a termination decision if any proper basis
        exists for the result reached. In re C.S., 761 A.2d 1197,
        1201 (Pa.Super. 2000) (en banc). If the court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an
        opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
        (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

     After a thorough review of the record, the briefs of the parties, the


                                     -4-
J-S10045-15


applicable law, and the well-reasoned opinion of the Honorable Lois E.

Murphy, we conclude Mother’s issues merit no relief.     The Orphans’ court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Orphans’ Court Opinion, filed September 29, 2014, at 5-

17) (finding: Children were removed from Mother on September 21, 2011,

at Mother’s own initiative by calling OCY; Mother suffers from multiple

medical and mental health issues, including multiple sclerosis and bipolar

disorder; Mother acknowledges history of drug abuse, including abuse of

prescription   drugs,   methamphetamines,    amphetamines,     and   cocaine;

Mother, for some time, actively worked toward reunification with Children

per OCY’s goals; however, among other circumstances, Children’s birth

father was released from jail and took from Mother money meant for

housing, and Mother subsequently lost housing; Mother appeared intoxicated

on some visits with Children; Mother missed approximately 50 percent of

visits and 60 percent of scheduled phone calls; Mother allowed birth father

to be present on unsupervised visits with Children, though birth father was

not to attend because he was found intoxicated previously while around

Children; Mother failed to obtain recommended long-term outpatient

psychotherapy; Mother tested positive in drug tests on at least eight

occasions; Mother acknowledged history of health, financial, and housing

instability; Mother refused to provide current address to OCY caseworker;

Mother is unable to provide Children with essential parental care, control, or


                                    -5-
J-S10045-15


sustenance necessary for their physical and mental well-being; the causes of

Mother’s incapacity, abuse, neglect, or refusal cannot or will not be

remedied; Mother has not provided housing, met Children’s needs, or

maintained consistent parent-child relationship; OCY proved by clear and

convincing evidence that Mother failed and refused to perform her parental

duties for 36 months, beyond 6-month period prior to filing of petitions;

conditions leading to placement of Children continue to exist and cannot or

will not be remedied by Mother; Mother lacks capacity to meet all obligations

of providing safe, secure, and nurturing home for Children; OCY met its

burden of proof under Section 2511(a)(1), (a)(2), and (a)(8); per Section

2511(b), parental bond between Mother and Children is attenuated; Children

have developed significant bond with foster parents; Children are very well

loved and entrenched in foster home; Children’s emotional needs and

welfare are best met by termination of Mother’s parental rights, and Children

will not suffer irreparable harm as result of termination; OCY made

reasonable efforts to attempt to reunify Children with Mother, but court

found adoption appropriate; OCY established basis for terminating Mother’s

parental rights to Children).   Accordingly, we affirm the termination of

Mother’s parental rights to Children on the basis of the Orphans’ court

opinion.

     Orders affirmed.




                                    -6-
J-S10045-15

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/12/2015




                          -7-
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         THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
                          PENNSYLVANIA
                             ORPHANS' COURT DIVISION



                       IN RE: ADOPTION OF J.D.M., JR.
                         IN RE: ADOPTION OF C.D.M.


                     ORPHANS' CT. NUMBER: 2013-A0196
                     ORPHANS' CT. NUMBER: 2013-A0195



                                        OPINION



Murphy,J.                                                                September&'

       Before me are Petitions to Terminate the Parental Rights of Birth Mother, c'M.,
                                            ~IAIh(Y         .
to her two sons, J.D.M., Jr. who was born        2009 and   IS   5 Y, years old, and C.D.M.,

who was born J'tJ.1»12007 and is 7 years old. The Petitions were filed on October 17, 2013

and allege 3 grounds as a basis for terminating parental rights. These grounds are found

in § 2511(a)(I), § 2511(a)(2), and 2511(a)(8) of the Adoption Act. If anyone of these

grounds is established and proven, by clear and convincing evidence, then termination of

rights will occur.   The Office of Children & Youth of Montgomery County (hereinafter

"OCY") filed Petitions to Terminate the Parental Rights of Birth Father, J.M., with

respect to each of the children, C.D.M. and J.D.M., Jr. On March 19,2014 in open

court, the Birth Father requested modification of the Petition to be a Petition to Confirm

the Voluntary Relinquishment of Parental Rights with respect to each of the children. In

open court, J.M. voluntarily, deliberately and knowingly relinquished all of his parental


                                                                 IIII rt.'C:m ~lt~~~r.t311111
                                                                   2013-AOI96. IO           FilingID: 1683263
                                                                               1925(a) Opinion
                                                       Receipt # Z153543                    Fee $0.00
                                                                D. Bruce Hanes. Esg. - Monteo Register of Wills
                                                       9129/20142:52:33 PM - M. JD 1R
                                                                               Circulated 01/29/2015 11:00 AM




rights to each of the children on March 19,2014. J.M. was represented by counsel and

had an adequate opportunity to consult with his counsel before relinquishing his parental

rights. Based upon this relinquishment, the Court concluded that his relinquishment of

parental rights was voluntary and has concluded that it is appropriate to enter a Final

Decree tenninating all of his parental rights with respect to C.D.M. and J.D.M., Jr.

       The Office of Children & Youth requested that this Court proceed to a hearing on

its Petitions for Involuntary Tennination of Parental Rights of Birth Mother, C.M. and its

applications to change the goal in these proceedings to adoption. The Court conducted a

joint pennanency review hearing to consider the request for a change of goal and

tennination of parental rights hearing with respect to Birth Mother, C.M.

       With respect to the Petition for Involuntary Tennination of Birth Mother's

Parental Rights, OCY must prove its case by clear and convincing evidence. The

standard of clear and convincing evidence as a threshold to tennination was established

by the United States Supreme Court in the case of Santosky v. Kramer, 455 U.S. 745

(1982). This standard is defined as testimony that is so clear, direct, weighty and

convincing as to enable me to come to a clear conviction, without hesitancy, of the truth

of the precise facts in issue. It is not necessary that the evidence be uncontradicted ...

provided it 'carries conviction to the mind' or carries 'a clear conviction of its truth.'

LaRocca Trust, 41 J Pa. 633, 192 A.2d 409 (1963).

       The requirements under 25JJ(a)(I) are as follows: "The parent has failed or

refused to perfonn parental duties for the 6 months immediately preceding the filing of

the Petition; or has evidenced a settled purpose of relinquishing his [or her] parental

claim to the child."



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        Section 2SII(a)(2) provides that 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.

        Under 2SII(a)(8), the test is:   "The child has been removed from the care of the

parent by the court or under a voluntary agreement with an agency, 12 months or more

have elapsed from the date of removal or placement, the conditions which led to the

removal or placement of the child continue to exist and termination of parental rights

would best serve the needs and welfare of the child."

        With respect to the alleged ground under section (a)(8), the children have been

removed from the care of the parent from September 21, 20 II until present, a period of

36 months.

        With respect to this ground (a)(8), the time period having been satisfied, the

principal question I must answer is whether the conditions that led to removal of the

children from the home continue to exist as of the time the Petition was filed. I must

also determine whether termination of parental rights will best serve the needs and

welfare of the children.

        Under ground (a)(1) I must consider whether the parent has failed or refused to

perform parenting responsibilities for the six months preceding the filing of the petition;

or whether the parent has evidenced a settled purpose of relinquishing a parental claim.

        Under section (a)(2), I must consider whether OCY has proven abuse or neglect

by clear and convincing evidence or whether OCY has proven incapacity to parent. In



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this case, there has been no proof of abuse of the children. Therefore, I must evaluate

whether OCY has proven by clear and convincing evidence that the parent lacks the

capacity to parent the children, and to provide the minimum requirements to which all

children are entitled.

       The Pennsylvania Superior Court has identified certain irreducible minimum

requirements to which all children are entitled from their parents, including adequate

housing, clothing, food, love and supervision. In re Diaz, 669 A.2d 372 (Pa. Super.

1995). "The necessary implication is that a parent who cannot or will not meet the

irreducible minimum requirements within a reasonable time following state intervention

may properly ... have parental rights terminated." In re J.   w., A. w.,   V. W. and J. w., 396

Pa. Super. 379, 390-91,578 A.2d 952, 958 (1990). Thus a petition seeking to terminate

parental rights may be based upon a lack of capacity even in the absence of affirmative

misconduct. In re E.M, 533 Pa. 115,620 A.2d 481 (1993).

        The Supreme Court of Pennsylvania has held that it is not a violation of

constitutional rights for an individual's parental rights to be terminated due to the

parent's disabilities or handicaps that prevent the parent from being able to provide

proper care for the parent. In re William L., 477 Pa. 322, 383 A.2d 1228 (1978). As the

Supreme Court explained in reaching its decision:

                A decision to terminate parental rights, never to be made
                lightly or without a sense of compassion for the parent, can
                seldom be more difficult than when termination is based
                upon parental incapacity. The Legislature, however, in
                enacting the ... Adoption Act, concluded that a parent who
                is incapable of performing parental duties is just as
                parentally unfit as one who refuses to perform the duties.
                383 A.2d at 1239.




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       For example, in In the Interest of Lilley, the trial court terminated the parental

rights of a mother who suffered from depression and chronic mental illness. In the

Interest ofLilley, 719 A.2d 327 (Pa Super. 1998). In upholding the decision of the lower

court, the Superior Court noted that the natural mother had not been able to sustain

herself in independent living and had not been able to achieve the family service plan

goals that would permit reunification with her son. Id. at 328. "She could not assume

the role of parent and had not exercised that role except for limited visits, ... and is

presently and for the foreseeable future incapable of fulfilling the role of mother and

caretaker" for her child. Id. at 331. In cases in which the parent is incapable of

providing basic necessities and will continued to suffer such parental incapacity, the

focus of the Court must be not on the parent's wishes and desires, but the child's need for

security, safety, permanency and well-being. Id. at 334 (citing Adoptions and Safe

Family Act, § 101(b)(7)). "The child's safety is the paramount concern.... Substitute

care is a temporary setting. It is not a place for children to grow up." Adoptions and

Safe Family Act, § 10I(b)(7).

       The following facts were developed at the hearing. The Birth Mother, C.M.,

(hereinafter "Birth Mother") called OCY on her own initiative requesting assistance with

her children on or about June 27,2011. Birth Mother, according to her own testimony

and the testimony of the caseworkers, suffers from multiple medical and mental health

issues, including bipolar disorder. She also reports that she suffers from multiple

sclerosis. N.T. p. 184. In addition, Birth Mother acknowledges a history of drug abuse,

including abuse of prescription drugs, both prescribed and unprescribed for her, as well

as illegal substances, including methamphetamines, amphetamines, and cocaine. Birth



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Father also has a history of drug use and incarceration for periods of time and was

incarcerated at the time of the hearing.

       In June 20 11, Birth Mother concluded that she was struggling to care for her

children due to limited financial resources, her health and mental health issues and a lack

of adequate housing. At Birth Mother's request, OCY took custody of the children and

placed them in a foster home in September of2011. Between September and November

of 2011, OCY was contacted by a family member who wished to offer her home as a

placement for the two children. The foster mother, R.M., testified that she took the two

boys into her home in an effort to be of assistance to her family members and that she

expected the placement to be for a short term of possibly six (6) months to a year while

the birth parents obtained financial and housing security. N.T. p. 59.

       In approximately December of 20 11, Birth Mother and Birth Father leased an

apartment in Boyertown. During the time that the birth parents had the apartment, OCY

caseworker noted that Birth Mother was making good progress on achieving the goals of

her family service plan. The caseworker noted, as did Birth Mother that she was "really

working hard" to achieve her goals and to reunify with her children. She had obtained an

apartment, obtained employment, and was working effectively with her OCY caseworker

and also with a time limited family reunification caseworker. She had affectionate and

successful visits with her children on a weekly basis. OCY increased her visits to

overnight weekend visits at her apartment. OCY was actively working toward reunifying

Birth Mother with her children in September and October of 20 12. In approximately

October 2012, however, when the Birth Father was released from jail and returned to the

apartment, issues arose that caused significant challenges for Birth Mother. She reported



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to Dey that the Birth Father took money from the apartment that she had been planning

to use for rent. With the assistance of Dey, she received some emergency housing

assistance to help her maintain her apartment. Incidents of violence occurred at the

residence when the Birth Father was home, according to Birth Mother's testimony. In

February of2013, the Birth Mother lost the apartment. She had not advised Dey that

she was at risk of losing the apartment. During this period according to her own

testimony, she became very depressed as a result of numerous setbacks, including the

loss of her apartment, trouble in her relationship with her husband and the continuing

placement of her children in foster care.

       R.M., the foster mother who supervised many of the visits between Birth Mother

and her children described certain problems that have occurred with regard to Birth

Mother's visits with the children and phone calls to the children. For example, on March

12, 2013, when the children were visiting Birth Mother at their maternal grandmother's

home, the foster mother arrived to find Birth Mother and her mother "screaming and

yelling" at each other and broken glass on the living room floor. N.T. pp. 29-31. She

described the situation as very loud and testified that the children were crying. She said

that the two children were very upset driving back to her home, but that she was able to

calm them down with their usual nighttime routine. N.T. pp. 29-32.

       R.M. also testified that Birth Mother has at times cancelled visits or been unable

to make visits due to a lack of transportation. She explained that when their Birth Mother

failed to appear at a visit, this was upsetting to both of the boys. N. T. pp. 32-33. She

estimated that Birth Mother failed to arrive for scheduled visits approximately three times

during the summer of 20 12 and also failed to arrive for at least two visits at Dey.



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       Although, for the most part, the witnesses described Birth Mother's behavior at

visits at generally appropriate and affectionate, R.M. testified that there were times when

Birth Mother appeared under the influence. N.T. p.p. 33-34. R.M. explained that by

observing Birth Mother's speech, her walking and her behavior in general, she concluded

that at times she was under the influence at visits with the children. N.T. p. 34. Birth

Mother missed approximately 50% of the visits that foster mother tried to arrange with

the Birth Mother. Birth Mother has never visited the pre-school or school attended by

either ofthe children. Although the foster mother agreed that Birth Mother should call

the children once a week on Sunday evenings, she reported that Birth Mother did not call

consistently and that only approximately 40% ofthe scheduled phone calls were made,

with the result that Birth Mother missed the opportunity to call the children

approximately 60% of the time. On at least five of the phone calls with their Birth

Mother, the foster mother noted that the children were upset because of some of the

things she said to them over the phone and on at least one occasion, she appeared to be

under the influence when she made a phone call to the children. N.T. pp. 34-37.

       The foster mother also noted that the Birth Mother engaged in inappropriate

behavior in front of the children, including fighting and arguing with other people

including Birth Father, Birth Mother's mother and the foster mother. N.T. p. 38-39.

On these occasions, the children have become upset seeing their Birth Mother express her

anger. On one occasion following a permanency review hearing in January of2014,

Birth Mother confronted the foster mother in the parking lot and argued in front of the

boys. N. T. p. 40-41. Although the foster mother agreed that Birth Mother has never

physically abused the boys and that she loves the boys and is affectionate toward them,



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she noted that on at least one occasion when it was clear to her that Birth Mother was

under the influence of some substance which impaired her judgment, she was unsure

whether Birth Mother would have been able to stop the boys from running into the street

or engaging in a dangerous activity.

       OCY Caseworker George Oscovitz testified that Birth Mother's progress during

20 II, after placement of the children, was "rocky". He described Birth Mother as

"combative". N.T. p. 112. However, he noted that she began to progress and that in

Mayor June of 20 12, she attempted to get drug and alcohol evaluations, was maintaining

an apartment, and was working two jobs. N.T. p. 112. Visits were initially scheduled for

one time per week but were increased in duration and by the summer of 20 12, OCY had

begun weekend and overnight visits with the children at the Birth Mother's apartment.

During the summer of2012, Mr. Oscovitz noted few concerns and noted that visits were

going well and Birth Mother had activities planned for the children. N.T. p. 112-113.

During the period November of2011 through September 2012, according to Mr.

Oscovitz, 31 visits were offered and 7 of these visits were cancelled. N.T. p. 116. On or

about October 7,2012, Birth Mother reported that Birth Father was watching the

children, but during the time that he was watching the children, he was drinking and

doing drugs and her older son had to watch the younger children. N.T. p. 117. During

the same period, she continued to struggle financially. At one point, due to the Birth

Father's behavior, OCY determined that visits at the apartment could not continue if the

Birth Father was present. After this decision, however, OCY learned that Birth Father

was present at the apartment at the time of a scheduled visit. Thereafter, visits were




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moved to the maternal grandmother's home. N.T. p. 120. Thereafter, visits were again

changed to the Pottstown OCY office. N.T. p. 121.

       Birth Mother lost her job in December of2012 and lost her housing in February

of2013 and was struggling financially. In April 2013, Birth Mother attended three of

four scheduled visits but cancelled one because she reported she was unable to get a ride.

In June, July and August of2013, Birth Mother attended only two of seven visits offered.

       Although Birth Mother did obtain a psychological evaluation, the evaluation

recommended that she engage in long-term out-patient psychotherapy. While she

admitted that she finds herself in need of counseling from time-to-time when she is, as

she put it, "really feeling like I'm going to have a nervous breakdown", she also admitted

that she has not engaged in consistent and long-term psychotherapy as recommended.

N.T. p. 221.

       Birth Mother also admitted that she has, at times, used illegal substances,

including methamphetamines and cocaine, and used prescription drugs that were not

prescribed for her. Birth Mother testified that she has medical issues that require pain

medications as well as anxiety medication and medication for ADHD. She tested

positive in drug testing administered by OCY on at least eight occasions: September 14,

2011, February 7, 2012, April 12, 2012, May 19, 2012, September 6, 2013, October 10,

2013, December 26, 2013, and February 18,2014. Exhibit OCY-12. In October 2013,

Birth Mother admitted to her caseworker that at times she has used methamphetamines.

At a permanency review hearing on January 6, 2014, Birth Mother testified before Master

Imms that she has used illegal drugs during 2013 and that she used Xanax and cocaine

since September of2013. Both Mr. Oscovitz and R.M. also testified that she told them at



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times that she had used illegal drugs. On October 3, 2013 at the OCY Pottstown office,

she admitted to drug use. On January 24, 2014, Birth Mother was arrested in a hotel

room where marijuana, methamphetamines and drug paraphernalia were present. Birth

Mother's criminal charges were dismissed.

       Birth Mother did not demonstrate any insight into her need for long-term

psychotherapy or formal drug treatment. Recently, in February of2014, she was

admitted to Valley Forge Medical Center for a detox program. She was discharged on

February 10,2014 before completing the program. She stated that she was unable to

complete the program because she had to appear in Court before a Magisterial District

Judge. The discharge instructions she received from Valley Forge Medical Center

recommended that she enter a 12-step program. Despite this recommendation, since her

discharge from that program, she has not sought additional treatment for her addictions

nor has she attended Alcoholics Anonymous or Narcotics Anonymous.

       With respect to the recommendation that she receive long-term counseling, she

stated "I go to counseling when 1 need to" and "I attend when 1 am really feeling like 1

will have a nervous breakdown". NT p. 221. However, she has not demonstrated a

commitment to or ability to consistently participate in necessary mental health treatment.

       Birth Mother admitted to taking Xanax that was not prescribed for her as well as

using cocaine, pain pills and methamphetamine. With respect to methamphetamine, she

admitted that she used this drug once when with Birth Father, and once after she lost the

apartment in February 2013. She disputes the accuracy of some of the positive drug tests

results obtained by OCY. However, she also failed to provide urine samples for drug

tests on January 2,2014, January 22,2014 and January 27, 2014, despite being advised



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that the failure to provide a sample would result in OCY viewing this failure as the

equivalent as a positive drug screen.

       Birth Mother described in her own words a history of not only health instability,

mental health instability, and drug use but also financial instability and housing

instability. N.T. p. 184. At times she has lived with her mother, her stepfather, and her

birth father. Each of these residences poses problems for Birth Mother

       Since Birth Mother lost her apartment in February 2013, she has had numerous

addresses. Most recently, she refused to provide her current address to her OCY

caseworker. N.T. pp. 138-139.

       Birth Mother is a troubled person who loves her two sons and says that she wants

what is best for them. Her problems relating to her health issues, her drug addiction

which she has not effectively treated, and her financial instability have been exacerbated

by Birth Father's incarceration and inability to contribute to their household. Perhaps the

most telling and moving statement by Birth Mother herself was that she did not regret

calling OCY initially to obtain assistance and stability for her children when she could

not care for them. N.T. p. 218. She continues to attempt to obtain employment and

obtain a new residence. However, she has not adequately addressed her drug use and her

mental health issues in a sustained way that may assist her in achieving and maintaining

stability. Despite her acknowledged drug use, her lack of insight was evident when she

contradicted her own testimony, stating, "1 never had a problem with drugs."

       Birth Mother cares deeply for her two sons and wants what is best for them. She

testified she is "willing to do anything" for them. N.T. p. 218.




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       Although Birth Mother desperately wishes to maintain a place of importance in

the lives of her sons and a relationship with them, she has not addressed her mental health

or substance abuse issues and has not demonstrated that she is capable of providing them

with the stable home environment that she knows they need and deserve. She recognized

that they need this stability when she called DCY initially and acknowledged that she was

struggling and unable adequately to provide the safe, stable home environment that they

need and deserved. Despite her passionate expression of her love and affection for the

children, she could not articulate a plan to address her needs as well as their needs and

has been unable in the three years since they were placed with DCY to maintain a

residence, financial stability and recovery from drug addiction.

       Evidence of drug testing with the Petitioner reveals positive tests on numerous

occasions from September 14, 2011 through February 2014. Birth Mother's continued

drug use and continued mental health issues and lack of financial stability and housing

stability make it impossible for her to provide the parental care, control, housing,

nutrition, comfort, support and consistency necessary for the children's physical and

mental well-being. I find that Petitioner has presented clear and convincing evidence

that Birth Mother's continued drug use and continuing mental health issues create a

parental incapacity and has resulted in neglect of parental duties and an inability to

provide a safe and secure home for the children. Moreover, both the drug use and the

mental health issues are among the conditions that led to the removal of the children from

the parent's care which carmot and will not be remedied by Birth Mother. While Birth

Mother has been sober for brief periods of time she has repeatedly relapsed, leaving her

children without adequate parental care and supervision.



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       Mother has been unable to provide children with the essential parental care,

control, or subsistence necessary for their physical and mental well-being, and the causes

of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the Birth

Mother. Birth Mother's desire for an opportunity to improve her parenting in the future

is insufficient to overcome the findings that she has been incapable of meeting the needs

of her children to date. In this case, the testimony clearly established that, although Birth

Mother loves and plays with the children, the Birth Mother has not provided safety and

security for her children.

       In this case, the Birth Mother has not provided a home, has not met the children's

needs, and has not maintained a consistent and strong parent-child relationship. Her

desire to start over at this time is insufficient to meet the needs of her children for

consistent and reliable love, affection and responsibility.

       Based on the foregoing facts, this Court finds that, with respect to each of the

children, OCY had proven by clear and convincing evidence that Birth Mother has failed

and refused to perform her parental duties for a lengthy period beyond the six-month

period prior to the filing of the petitions, that the conditions that led to placement of the

children continue to exist and cannot or will not be remedied by the Birth Mother, and

that Birth Mother, C.M., lacks the capacity to meet all of the obligations of a parent to

provide a safe, secure and nurturing home for her children.

       This Court finds that OCY has met its burden of proof under § (a)(l), § (a)(2) and

§ (a)(8) by clear and convincing evidence.

        At this point, this Court must consider the needs and welfare of each child.

Section 2511 (b) of the Adoption Act requires this Court to give primary consideration to



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the developmental, physical and emotional needs and welfare ofthe children. The

Superior Court, interpreting the Adoption Act, has held that "the health and safety of the

child supercedes all other considerations." In re Interest of Lilley, cited supra at 333. In

considering the children's needs and welfare, this Court must consider the role of the

parental bond in the child's life and to fully consider whether a parental bond exists to

such an extent that severing this natural relationship would be contrary to the needs and

welfare of the child. In re E.M, 533 Pa. 115,620 A.2d 481 (1993). In reviewing the

evidence in support oftermination under section 2511 (b), the Pennsylvania Supreme

Court recently stated as follows:

       [I]fthe grounds for termination under subsection (a) are met, a court 'shall
       give primary consideration to the developmental, physical and emotional
       needs and welfare of the child." 23 Pa.C.S. § 251 I (b). The emotional
       needs and welfare of the child have been properly interpreted to include
       "[i]ntangibles such as love, comfort, security, and stability." In re K.M, 53
       A.3d 781,791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
       1993)], this Court held that the determination of the child's "needs and
       welfare" requires consideration of the emotional bonds between the parent
       and child. The "utmost attention" should be paid to discerning the effect
       on the child of permanently severing the parental bond. In re K.M, 53
       A.3d at 791.

In re r.S.M, 71 A.3d 251, 267 (Pa. 2013).


       The Pennsylvania Supreme Court has observed the delicate balance between

preserving the family unit and preventing a state of constant uncertainty and limbo for a

child who has no reasonable prospects for returning home to the care of his or her natural

parent. In such a case, our Supreme Court has said:

               The policy of restraint in state intervention is intended to
               protect, where, as here, disruption of the family has already
               occurred and there is no reasonable prospect for reuniting it
               without serious emotional harm to the child. . .. the issue
               is not whether the state should intrude to disrupt an on-


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               going family relationship, but where the state should seek
               to preserve in law a relationship that no longer exists in
               fact, with the result that the child is consigned indefinitely
               to the limbo of foster care or the impersonal care of
               institutions. In re William L., supra at 348-49, 383 A.2d at
               1241.
       In this case, I find that although Birth Mother sincerely loves her children, the

parental bond between Birth Mother and each child is attenuated, as she has been

incapable of providing for them in a mature parental way.

       By contrast, I find that a significant bond has developed between the foster

parents and the children. Caseworker Stephen Pulansky testified that the two boys are

"very well loved in their foster home", and that "both children sought out Mr. and Mrs.

[M.l to have all of their needs met". Caseworker George Oscovitz testified that "the

children are really entrenched with the [foster1family." He also testified that in his

opinion the children would not suffer irreparable harm if the parental rights of Birth

Mother were terminated.

       This Court concludes that the emotional needs and welfare of the children can

best be met by termination of the parental rights of Birth Mother, and that the children

will not suffer a detriment as a result oftermination of the parental rights oftheir Birth

Mother.

       In addition, I find that the children are safe in their current placement, that their

needs are being met in the foster home, and OCY made reasonable efforts to attempt to

reunify the children with their Birth Mother. At this time, I find it is appropriate to

change the goal to Adoption.

       In addition, I find that the Office of Children and Youth has established a basis for

terminating the parental rights of Birth Mother, C.M., to each of the children, and that


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termination of parental rights will best serve the needs and welfare of each of the

children.

                                              BY THE COURT:




Copies mailed 9/.3t? 114 to:
Christina Terebelo, Esquire
Rochelle O'Herrick - Paralegal OCY
Craig Bluestein, Esquire
Brendan Campbell, Esquire - Father's Atty.
Carla Monahan - Birth Mother - 259 Montgomery Ave, Hillcrest Village,
       Boyertown, PA 19512


O~~  Secretary




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