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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

In Re: Adoption of: L.T.D., a Minor         IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA




Appeal of: T.D., Mother                    No. 1552 MDA 2015




              Appeal from the Order entered August 10, 2015
         in the Court of Common Pleas of Northumberland County
                Orphans’ Court Division, at No(s): 4 of 2015


In Re: Adoption of: J.S.D., a Minor         IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA




Appeal of: T.D., Mother                    No. 1554 MDA 2015




              Appeal from the Order entered August 10, 2015
         in the Court of Common Pleas of Northumberland County
                Orphans’ Court Division, at No(s): 5 of 2015


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J                        FILED APRIL 26, 2016
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      T.D. (“Mother”) appeals from the orders entered on August 10, 2015,

in   the   Court   of   Common   Pleas   of    Northumberland   County,   which

involuntarily terminated her parental rights to her minor son, J.S.D., born in

December 2012 and to her minor daughter, L.T.D., born in November 2013

(“Children”). We affirm.

      The trial court summarized the relevant facts and procedural history as

follows. Prior the initial placement of either child, Mother had an extensive

history with Children & Youth Services (“CYS”) dating from 2010 and

culminating in the involuntary termination of her parental rights of two older

children in August 2012.

      J.S.D. was initially placed into foster care on December 20, 2012,

following a referral from the medical staff on the day he was born and

issuance of a verbal order by the court. At the time, the parents’ home was

deemed inappropriate. J.S.D. was adjudicated dependent on March 18,

2013. A finding of aggravated circumstances was also made with respect to

both parents due to the prior involuntary terminations of parental rights.

Following reports of initial progress, J.S.D. was returned to the physical

custody of his parents on May 8, 2014, with CYS retaining legal custody.

      L.T.D. was born in November 2013, and was not placed into foster

care, due to the progress on the part of the parents. However, the situation

quickly deteriorated and seven weeks after the physical custody of J.S.D.

was returned to the parents, foster placement of both Children was

necessary.

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      A CYS caseworker observed bruising on J.S.D.’s body within a week

after he was returned to the parents’ physical custody. The parents claimed

that J.S.D. was pinching himself, but several of the bruises were in locations

inconsistent with self-inflicted injury. Shortly thereafter, CYS received a

General Protective Services (“GPS”) referral. Investigation of the referral

revealed that J.S.D. was covered with bruises on both his face and his body.

      Based on the parents’ inability to assure the safety of the Children in

the home, the Children were placed in foster care on July 3, 2014. L.T.D.

was adjudicated dependent on September 17, 2014, and an order finding

aggravated circumstances as to both parents was entered on September 18,

2014. Both Children have remained in the physical and legal custody of CYS

from July 3, 2014 until the present.

      On September 17, 2014, the parents were ordered by the court to:

obtain and maintain appropriate housing; obtain and maintain financial

stability; attend anger management, behavioral health services, resource

work, and family center classes (parenting classes); and submit to drug

testing. In addition, the parents were given periods of supervised visitation

weekly.

      CYS filed a petition for involuntary termination of parental rights of

Mother for both Children on February 2, 2015. The trial court held hearings

on April 29, 2015, May 5, 2015, and August 5, 2015. Following the hearings,

on August 10, 2015, the trial court entered orders granting CYS’s petition for

the involuntary termination of Mother’s parental rights.

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      Mother timely appealed. This Court, sua sponte, consolidated the

appeals.

      Mother raises the following issue on appeal:

      Is the decision of the Orphans’ Court to terminate Mother’s
      parental rights under 23 Pa.C.S.A. § 2511(a)(1), 23 Pa.C.S.A. §
      2511(a)(2), 23 Pa.C.S.A. § 2511(a)(5), and 23 Pa.C.S.A. §
      2511(b) supported by competent credible evidence, in the best
      interests of the children or justified by necessity?

Mother’s Brief at 3.

      We review the appeal from the termination of parental rights in

accordance with the following standard.

             [A]ppellate courts must apply an abuse of discretion
      standard when considering a trial court’s determination of a
      petition for termination of parental rights. As in dependency
      cases, our standard of review requires an appellate court 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. As
      has been often stated, an abuse of discretion does not result
      merely because the reviewing court might have reached a
      different conclusion. Instead, a decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will.

            [T]here 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. 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

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      record and the court’s legal conclusions are not the result of an
      error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations

omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

      Moreover, we have explained that

      [t]he standard of clear and convincing evidence is defined as
      testimony that is so “clear, direct, weighty and convincing as to
      enable the trier of fact to come to a clear conviction, without
      hesitance, of the truth of the precise facts in issue.”

Id. (citation omitted).

      This court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). Here, the trial court terminated Mother’s parental rights under,

among other subsections, section 2511(a)(1) and (b), which provide as

follows.

      § 2511. Grounds for involuntary termination

      (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:

            (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


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         relinquishing parental claim to a child or has refused or
         failed to perform parental duties.

         ***

     (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)(1), (b).

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence supporting the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows.

           To satisfy the requirements of section 2511(a)(1), the
     moving party must produce clear and convincing evidence of
     conduct, sustained for at least the six months prior to the filing
     of the termination petition, which reveals a settled intent to
     relinquish parental claim to a child or a refusal or failure to
     perform parental duties.

                                    ***

             Once the evidence establishes a failure to perform
         parental duties or a settled purpose of relinquishing
         parental rights, the court must engage in three lines of
         inquiry: (1) the parent’s explanation for his or her
         conduct; (2) the post-abandonment contact between
         parent and child; and (3) consideration of the effect of
         termination of parental rights on the child pursuant to
         Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).

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         [T]o be legally significant, the [post-abandonment] contact
         must be steady and consistent over a period of time,
         contribute to the psychological health of the child, and
         must demonstrate a serious intent on the part of the
         parent to recultivate a parent-child relationship and must
         also demonstrate a willingness and capacity to undertake
         the parental role. The parent wishing to reestablish his
         parental responsibilities bears the burden of proof on this
         question.

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted). See

also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en

banc).

      Section 2511 does not require that the parent demonstrate both a

settled purpose of relinquishing parental claim to a child and refusal or

failure to perform parental duties, as the word or joins the two portions of

the statute. See In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa.

1998).

      Further, regarding the definition of “parental duties,” this Court has

stated as follows.

      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 court has
      held that the parental obligation is a positive duty which requires
      affirmative performance.

      This affirmative duty encompasses more than a financial
      obligation; it requires continuing interest in the child and a
      genuine effort to maintain communication and association with
      the child.


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      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.

      Parental duty requires that the parent act affirmatively with good
      faith interest and effort, and not yield to every problem, in order
      to maintain the parent-child relationship to the best of his or her
      ability, even in difficult circumstances. 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. Parental
      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 . . . her physical and emotional
      needs.

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

      After a review of the certified record and the briefs of the parties, we

conclude that the trial court did not abuse its discretion by involuntarily

terminating Mother’s parental rights to the Children, and affirm the orders of

the trial court based on the concise and well-written opinion by the

Honorable Anthony J. Rosini.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/26/2016




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