J-A23030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: A.M. AND T.M.             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: L.M.                               No. 1994 WDA 2013


            Appeal from the Order entered November 15, 2013,
           in the Court of Common Pleas of Washington County,
                                        -13-0934, 63-13-0935

BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                     FILED SEPTEMBER 26, 2014

     L.M

parental rights to his daughters, A.M., born in June of 2005, and T.M., born

in February of 2002.1 Upon careful review, we affirm.

     The   record reveals that    Father   and the      children relocated   to

Washington County, Pennsylvania, from Brooke County, West Virginia, at an

unspecified time following the April 2009 involuntary termination of the



Brooke County.2 Trial Court Order, 11/15/13, at ¶¶ 3-4. The Washington




                                                                   ourt found


1
  We note that the briefing schedule for this case was delayed due to the
common pleas court sending the complete certified record to this Court
nearly three months after the record was due.
2
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that an issue remained as to whether the children could be returned to

Father at that time and continued supervised visits with Father and the
           3
               Id. at 3 (footnote omitted).    The Circuit Court eventually



subsequently relocated to Washington County.

       On April 11, 2011, the Washington County Children & Youth Social

                          became involved with the family when T.M., then

age nine, reported to her school teacher that Father had beaten her with a

board.    Trial Court Order, 11/15/13, at ¶¶ 2, 5.   As a result, Father was

charged with the crime of recklessly endangering another person, to which

he pleaded guilty. Id. at ¶ 7. Father was sentenced to a term of probation

for twelve months. Id. As a condition of his sentence, Father participated in

parenting counseling and anger management. Id. CYS initially removed the

children from the home, but did not file a dependency petition.          CYS

returned the children to Father and provided in-home services.          N.T.,

11/15/13, at 47. CYS closed its case in December of 2011. Id.

       On September 19, 2012, T.M. reported to her school teacher that



11/15/13, at ¶ 9. By order dated September 20, 2012, the children were

3
    The order of the Circuit Court of Brooke County involuntarily terminating

during the subject proceedings. See N.T., 11/15/13, at 46. However, the
exhibit is not included in the certified record before this Court.
                                     -2-
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placed in the custody of CYS. Id. at ¶ 10. The children were adjudicated

dependent on November 20, 2012. N.T., 11/15/13, at 22.

     In addition, on September 20, 2012, the Washington County Adult

Probation Office detained and incarcerated Father for violating his probation

                                   Id. at ¶ 11. On November 7, 2012, Father

was found to be in violation of his probation, and was re-sentenced to an

intermediate punishment program for a term of 23 months, the first two

months of which he was incarcerated, followed by six months of intensive

supervision. Id. As a condition of his sentence, Father again participated in

parenting counseling and anger management. Id.

     On July 29, 2013, CYS filed petitions for the involuntary termination of



A termination hearing was held on November 15, 2013, during which CYS

presented testimony from the following witnesses: Azure Hixenbaugh, CYS

                                                        Ad Litem

the dependency proceedings; and Megan Van Fossan, the supervisor of

special services in the McGuffey School District. Father was present for the

hearing, but he did not testify.    Father presented the testimony of Elana

Carroll, a caseworker for Try Again Home Visitation, and David Cincinnati, a

CYS adoption caseworker.




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23 Pa.C.S.A. § 2511(a)(2), (5), and (b).       Father timely filed a notice of

appeal and a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b).4

       On appeal, Father presents three issues for our review:

       I. Did the Court err as a matter of law and/or abuse its discretion
       in finding that clear and convincing evidence was provided to

       Pa.C.S.A. § 2511(a)(2), when a significant amount of evidence
       was provided that [Father] had successfully completed all
       serv[ice]s ordered of him and has been able to implement skills
       learned?

       II. Did the Court err as a matter of law and/or abuse its
       discretion in finding that clear and convincing evidence was

       23 Pa.C.S.A. § 2511(a)(5), when a significant amount of
       evidence was provided that [Father] had successfully completed
       all serv[ice]s ordered of him and has been able to implement
       skills learned?

       III. Did the Court err as a matter of law and/or abuse its
       discretion in determining the termination of Fat
       rights would serve the needs/welfare of the children and not be
       harmful to the children as required under 23 Pa.C.S.A. §
       2511(b), when the evidence clearly showed a strong and
       beneficial parent-child bond that would [ ] be detrimental to the
       children if broken?



       We review this appeal according to the following standard:

       [A]ppellate courts must apply an abuse of discretion standard

       termination of parental rights. As in dependency cases, our
       standard of review requires an appellate court to accept the

4
    Father subsequently filed an amended notice of appeal and a concise

court docket number.
                                       -4-
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     findings of fact and credibility determinations of the trial court if
     they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
     A.3d 1179, 1190 (Pa. 2010).           If the factual findings are
     supported, appellate courts review to determine if the trial court
     made an error of law or abused its discretion. Id.; R.I.S., 36
     A.3d [567,] 572 [(Pa. 2011) (plurality)]. As has been often
     stated, an abuse of discretion does not result merely because
     the reviewing court might have reached a different conclusion.
     Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
     34 A.3d 1, 51 ([Pa.] 2011); Christianson v. Ely, 838 A.2d 630,
     634 (Pa. 2003). Instead, a decision may be reversed for an
     abuse of discretion only upon demonstration of manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. Id.

     As we discussed in R.J.T., there are clear reasons for applying
     an abuse of discretion standard of review in these cases. We
     observed that, unlike trial courts, appellate courts are not
     equipped to make the fact-specific determinations on a cold
     record, where the trial judges are observing the parties during
     the relevant hearing and often presiding over numerous other
     hearings regarding the child and parents.       R.J.T., 9 A.3d
     at 1190. Therefore, even where the facts could support an
     opposite result, as is often the case in dependency and
     termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the

     error of law or an abuse of discretion. In re Adoption of
     Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).

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

     Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis:

     Our case law has made clear that under Section 2511, the court
     must engage in a bifurcated process prior to terminating
     parental rights. Initially, the focus is on the conduct of the
     parent. The party seeking termination must prove by clear and

     statutory grounds for termination delineated in Section 2511(a).


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J-A23030-14


      termination of his or her parental rights does the court engage in
      the second part of the analysis pursuant to Section 2511(b):
      determination of the needs and welfare of the child under the
      standard of best interests of the child. One major aspect of the
      needs and welfare analysis concerns the nature and status of the
      emotional bond between parent and child, with close attention
      paid to the effect on the child of permanently severing any such
      bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A.

§ 2511). The burden is on the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of

parental rights are valid.   In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).




provide as follows:5

      (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.


5
  It is well-settled that this Court need only agree with any one subsection of
Section 2511(a), in addition to Section 2511(b), in order to affirm the
termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). A
related to Section 2511(a)(5).
                                     -6-
J-A23030-14


                                     ...

     (b) Other considerations.--The court in terminating the rights
     of a parent shall give primary consideration to the
     developmental, physical and emotional needs and welfare of the
     child. The rights of a parent shall not be terminated solely on
     the basis of environmental factors such as inadequate housing,
     furnishings, income, clothing and medical care if found to be
     beyond the control of the parent. With respect to any petition
     filed pursuant to subsection (a)(1), (6) or (8), the court shall not
     consider any efforts by the parent to remedy the conditions
     described therein which are first initiated subsequent to the
     giving of notice of the filing of the petition.

23 Pa.C.S.A. §§ 2511(a)(2), (b).

     To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

rights under Section 2511(a)(2), 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).

     With respect to section 2511(b), the requisite analysis is as follows:

     Subsection 2511(b) focuses on whether termination of parental
     rights would best serve the developmental, physical, and

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J-A23030-14


      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
         angibles such as love, comfort, security, and stability are

      In addition, we instructed that the trial court must also discern
      the nature and status of the parent-child bond, with utmost
      attention to the effect on the child of permanently severing that
      bond. Id. However, in cases where there is no evidence of a
      bond between a parent and child, it is reasonable to infer that no
      bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
      2008).    Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      On appeal, Father argues the evidence was insufficient to support




the parenting and anger management courses were displayed during the two

                             Id.



nurturing parenting skills, Father was unable to implement such skills.

Father has demonst

Trial Court Opinion, 2/24/14, at 5.    Upon careful review, we discern no



rights.

      The evidence reveals that Father was court-ordered to participate in

parenting and anger management classes, as well as a mental health


                                    -8-
J-A23030-14


assessment. N.T., 11/15/13, at 22. Ms. Hixenbaugh, the CYS caseworker

for this family until May of 2013, testified on cross-

counsel t

                         Id. at 30-31; see also id. at 32. She testified that

Father was successfully discharged from parenting classes.            Id. at 33.

                                             rent CYS adoption caseworker,



       Id. at 118. With respect to whether Father successfully completed

parenting classes through the Justice Works program, Mr. Cincinnati testified



completed their program. They do not put a successful or not successful so

                                                               Id.   In sum, Mr.

Cincinnati testified that Father had completed the program through Justice

Works. Id.

      With respect to supervised visits, Father was permitted one visit per

week for two hours.     Id. at 23.   In addition, he was permitted one ten

minute telephone call per week with each child.          Id.    Ms. Hixenbaugh

testified that Father attended all visits with the children, and that he has

behaved appropriately during the visits.   Id. at 31.     Likewise, Ms. Carroll,



with the children

                                           Id. at 103. Further, Mr. Kocevar,


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J-A23030-14


the GAL in the dependency proceedings, testified that Father was consistent

with his telephone calls to the children. Id. at 56.

      Nevertheless, Ms. Hixenbaugh, Mr. Cincinnati, and Mr. Kocevar

                                                                          Id.

at 24-26, 58-59, 124-125, 127. Despite Father pleading guilty to the charge

                            n that he beat her with a board, Ms. Hixenbaugh

testified as follows on direct examination:

      Q. Did you ever have any direct discussions with [Father]
      concerning this case in terms of what actions he took against
      either or both children?

      A. [Father] has denied both times that he has ever touched
      [T.M.].

Id. at 24. Further, Ms. Hixenbaugh testified:

      Q. Why do you believe that [Father is] unable to effectively
      parent these children?

              had several parenting classes. His ability to retain and

      had anger management classes. What he has learned, he is just
      not able to implement and at one point we gave [Father] the
      benefit of the doubt because he was participating in services and
      we returned the children to his care. . . . The children were

      the coal mining belt occurred and again, [T.M.] has unexplained
      injuries and no one can explain how she got them and [Father
      is] the primary caregiver.

Id. at 25. Ms. Hixenbaugh subsequently testified on cross-examination by



      Q. [ ] Why exactly was [Father] targeted for [involuntary
      termination of his parental rights]?


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J-A23030-14



        case was identified as going toward termination due to the
        history of his case, [T.M.] having two different incidents of
        having severe bruising and him throwing his hands in the air

        there is no reasonable explanation. . . .

Id.

                                     -ordered   services,   he   has   refused   to

acknowledge and take responsibility for his inappropriate actions toward

T.M.6




                                          ial Court Opinion, 2/24/14, at 5. Ms.

Van Fossan, the supervisor of special services in the McGuffey School

District, which the children attended, testified that T.M. has an I.Q. of 81.7

N.T., 11/15/13, at 73. Ms. Van Fossan also testified that T.M. has significant

behavioral issues.       Id. at 69.      Ms. Van Fossan testified on direct



prior to the incident involving Father hitting T.M. with a board, as follows:

        Q. Were any of these behavioral issues addressed by you or
        other members of [the school district] with her father?


6

N.T., 11/15/14, at 92. She testified that incidents occurred involving Father

behavioral issues. Id. at 90-91.
7

evidence that she has special needs. N.T., 11/15/14, at 84.
                                       - 11 -
J-A23030-14


       A. Numerous times.

       Q. Were any solutions ever reached with regard to dad and her
       actions?

       A. We finally came to a crisis point. . . . Dad never got her
       Medicaid card so she ran out of medication so she was
       unmedicated for a very extended period of time because to
       switch from West Virginia Medicaid to Pennsylvania Medicaid
       takes some time. . . .[8] The psychiatrist had given her      [ ]
       three different medications to help her control the impulsive
       behaviors.    [T.M.] was referred to East App which is the
       elementary student assistance program because of the increased
       defiance and behaviors.       Met with dad on three different
       occasions and dad refused to sign the permission to evaluate.
       . . . Dad finally did sign the permission to evaluate for Special
       Ed services. . . .

Id. at 69-70.



strategies in terms of holding [T.M.] accountable for her behaviors and

appropriate consequences for a child that age[.] [W]e met with him actually

numerous times even after that to talk about what he could do in the home.

        Id. at 71.   Ms. Van Fossan expressed concern that Father did not

understand the issues



       Q. [Y]ou . . . made the comment . . . that you questioned
       whether dad was understanding?

       A. Yes.

       Q. Can you elaborate on that?     Understanding what you were
       telling him?

8
    Ms. Van Fossan explained
                                              Id. at 80.
                                    - 12 -
J-A23030-14



      A. What I told him, what the school psychologist told him, what
      the school social worker told him, what the classroom teacher

      had a conversation back and forth like this is

      going on there. Our school psychologist really was concerned.

Id. at 94.

      Based on the foregoing, we discern no abuse of discretion by the



2511(a)(2). Indeed, the testimony of Ms. Hixenbaugh and Ms. Van Fossan



neglect or refusal has caused the children to be without essential parental

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




      Father additionally asserts the evidence was insufficient to support

termination of his parental rights pursuant to Section 2511(b). Father relies

on the testimony of Ms. Carroll, who supervised his visits with the children,

in arguing that the children have a bond with him that would be detrimental

to them if severed.

      With respect to the bond analysis pursuant to section 2511(b), our



of a child to a parent will not necessarily result in the denial of a termination




                                     - 13 -
J-A23030-14


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

quoted with approval, as follows:

      [A]s Judge Tamilia eloquently observed while speaking for the

                       st abused of children will often harbor some
                                                     In re K.K.R.-S.,
      958 A.2d 529, 535 (Pa. Super. 2008). Thus, Judge Tamilia
      cautioned against denying termination of parental rights based
      solely on the fact that a child has an attachment to the parent:

      serious parental rejection through abuse and    neglect, and failure
      to correct parenting and behavior disorders     which are harming
      the children cannot be misconst                         Id. at 535
      (quoting In re Involuntary Termination          of C.W.S.M., 839
      A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J.,   dissenting).

In re T.S.M., 71 A.3d at 267 (footnote omitted). In addition, the T.S.M.

                          sense dictates that courts considering termination

must also consider whether the children are in a pre-adoptive home and

                                                           Id. at 268 (citation

omitted).

      In this case, Ms. Carroll testified that the

usually bring them to their visits with Father. N.T., 11/151/4, at 105. Ms.



follows:


      [the children] get out of that car and they see [Father]?

      A. I see [Father] walking down the steps usually and the girls
      come running to him and throw their arms around him and hug
      him.

      Q. So they understand who he is?

                                    - 14 -
J-A23030-14



          A. Yes.

          Q. They appear to enjoy being around him?

          A. Yes.

          Q. Do they appear afraid of him?



          Q. As a matter of fact, you said they come running up to him?

          A. Yes, they do come running up to him all the time and they
          instantly start talking about their day to him.

Id. at 105. Upon inquiry with respect to whether the children seem sad to



                                                  Id. at 106-107. She did not

testify with respect to T.M. ever indicating the same at the conclusion of

visits.

          Ms. Hixenbaugh testified that the children are in pre-adoptive and

separate foster homes.        N.T., 11/15/13, at 14.     She testified that the

children see each other daily.9 Id. at 48. Ms. Hixenbaugh testified that they



Cincinnati, the CYS adoption caseworker, testified that the children are doing

well in their foster homes. Id. at 126.



9
                                       -in-
11/15/14, at 48. Ms. Hixenbaugh testified that the children ride to and from
school together on the same school bus, and they participate in family
functions together with their foster families. Id. at 50.
                                       - 15 -
J-A23030-14

     Upon careful review, we discern no abuse of



serve the developmental, physical, and emotional needs and welfare of the

children where Father refuses to acknowledge his inappropriate physical acts

toward T.M., and the children are doing well with their foster families.




rights. Accordingly, we affirm the order t

pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014




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