J-S37017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: O.M.H.                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

APPEAL OF: C.M.G., MOTHER

                                                     No. 37 MDA 2014


             Appeal from the Decree Entered November 27, 2013
               In the Court of Common Pleas of Berks County
                        Orphans' Court at No. 83290


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 25, 2014




27, 2013 decree entered in the Court of Common Pleas of Berks County



affirm.

      On August 19, 2013, Berks County Children and Youth Services



rights to Child alleging, inter alia, that:

      The parent by conduct continuing for a period of at least six
      months immediately preceding the filing of the petition either
      has evidenced a settled purpose of relinquishing parental claim
      to a child or has refused or failed to perform parental duties. 23
      Pa.C.S.A. § 2511(a)(1).

      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 [her] physical
J-S37017-14


       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. 23 Pa.C.S.A. § 2511(a)(2).

       The child has been removed from the care of the parent by the
       court or under a voluntary agreement with an agency for a
       period of at least six months, the conditions which led to the
       removal or placement of the child continue to exist, the parent
       cannot or will not remedy those conditions within a reasonable
       period of time, the services or assistance reasonably available to
       the parent are not likely to remedy the conditions which led to
       the removal or placement of the child within a reasonable period
       of time and termination of the parental rights would best serve
       the needs and welfare of the child. 23 Pa.C.S.A. § 2511(a)(5).

       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.          23
       Pa.C.S.A. 2511(a)(8).

BCCYS Petition for Involuntary Termination of Parental Rights, 8/19/13, at

¶¶ 7-10.1

       Following a hearing conducted on October 30 and November 14, 2013

and submission of briefs by the parties, the trial court issued its decree on

November 27, 2013, finding that the facts alleged in the termination petition




____________________________________________


1

                                            her from whom Mother was
separated. Both men consented to the termination of their parental rights to
Child. N.T., 10/30/13, at 7-8.



                                           -2-
J-S37017-14


rights to Child; and placing Child with BCCYS with authorization to give

consent to or proceed with adoption of Child. Trial Court Decree, 11/27/13.

     Mother filed a timely notice of appeal on December 27, 2013 along

with her statement of matters complained of pursuant to Pa.R.A.P. 1925(a)

in which she raised the same six issues she asks this Court to consider on

appeal:

     1.
          rights in that [BCCYS] failed to show any of the permissible
          grounds for termination of parental rights pursuant to 23
          [Pa.C.S.A. § 2511] and [BCCYS] failed to prove their case by
          clear and convincing evidence as required by law.

     2.
          rights where mother did not abuse or neglect this child, either

          was ever abused or neglected and where mother never
          allowed a child to be abused or neglected and there is no
          legal precedent for termination of parental rights under these
          circumstances.

     3.
          entered   into    evidence,    where    the    records were
          unauthenticated, not relevant to mother (and so marked) and
          were not properly offered as business records.

     4. Whether the Court failed to properly consider the bond
        between mother and child as required by statute and caselaw
        where mother testified that there was a good bond and the
        only evidence of bonding by [BCCYS] was the unqualified
        opinion of a [BCCYS] caseworker who had only seen mother
        and child together on two occasions.


          qualifications were not established for the record.

     5.
          faith and substantial compliance with all [BCCYS] requests
          and directives.

                                      -3-
J-S37017-14



      6. Whether the Court failed to consider the fact [that] both Dr.
                                  counselor showed little insight into

         with men, when there were no issues with the [f]athers of her
         two older children.

                      -5.

      Our Supreme Court recently reiterated the applicable standard of

review as follows:

      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

      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) (internal quotations and citations



                                                                              Id.

(citation omitted).

      In its 1925(a) opinion, the trial court summarized the evidence

presented at the termination hearing as follows:


                                                                   moved

      older daughters.   The Agency received a second report in
      January 2012 that Mother had allowed her paramour, who had a

                                      -4-
J-S37017-14


     history of sexual offenses against children, to have unsupervised
     contact with her minor children.       During the next five (5)
     months, Mother was involved with BCCYS and the Juvenile
     Division of this Court with regards to her older minor children.
     During this period, Mother reported that she would allow her
     unborn child, the subject minor child, to have contact with her
     paramour and that she wanted to be a family with him. Mother

     inappropriate sexual contact with minors.      Based on these
     concerns, BCCYS petitioned for and was granted emergency
     custody of the minor child upon her release from the hospital
     following her birth. The minor child was declared dependent on
     June 29, 2012, and Mother was ordered to cooperate with
     services.

     The main condition which led to the min



     biological father of the subject minor child, has a significant
     history of inappropriate sexual contact with children. Unaware of
     this history, Mother allowed her minor children to have
     unsupervised contact with her paramour, including allowing him
     to bathe her older daughters. However, what concerns the Court
                                          after she learned of her

     Mother first became aware that BCCYS had serious concerns with
     her paramour and his contact with her children in January 2012,
     when she signed two (2) safety plans limiting and later

     in March 2012, when she received the dependency petitions
     relating to her older daughters, that [Father] had been charged
     with rape and indecent assault of pre-school aged children.
     Instead of taking immediate steps to remove [Father] from her
     life and, thereby, eradicate any potential risk to her minor
     children, Mother remained in contact with [Father] until January
     2013. Even more concerning to this Court, Mother did not end
     contact with [Father] because she realized the risk that he posed
     to her children; instead, Mother ended contact only after
     [Father] physically assaulted her. Mother also continued to
                        ] history of inappropriate sexual contact with
     minors.




                                   -5-
J-S37017-14


       The Court believes that the main condition which led to the


       conclusion that Mother remains unable to protect the minor child
       from harm. Dr. Rotenberg, an expert in the field of psychiatry,
       evaluated Mother in June 2013. Based on that evaluation, Dr.
       Rotenberg concluded that Mother was unable to place the needs
       of her children above her own, that Mother rationalized the
       inequities of her paramour and that no therapy or medication
       would change these conditions. In addition, when Dr. Rotenberg
       discussed [Father] with Mother, Dr. Rotenberg concluded that
       Mother continued to vi

       Furthermore, Dr. Rotenberg concluded that Mother remained
       attached to [Father]. Ms. Karaisz, an expert in the field of non-
       offending parent treatment, began treatment with Mother in
                                                                   -based
       non-offending parent treatment, Ms. Karaisz believed that
       Mother failed to internalize or benefit from any of the treatment.
       After treating Mother for over a year in which she saw Mother for
       forty-six (46) sessions, Ms. Karaisz continued to believe that
       Mother has minimal insight into the problems which initially
       brought her to treatment and would require close monitoring to
       protect herself and her children from harm. The testimony of

       the Court to conclude that the condition which led to the minor

       services which could reasonably help Mother remedy this
       condition.

                                                 -8 (footnotes and references to

notes of testimony and exhibits omitted; emphasis in original).2


____________________________________________


2
  We note Mother was born on April 21, 1987. On July 24, 2007, Mother
gave birth to A.M., fathered by C.M. with whom Mother had a three-year
                                                                -81.   On
February 8, 2010, Mother gave birth to H.S., fathered by J.S. whom Mother
married in May 2010. Id. at 182. Their nearly three-year long relationship
ended in approximately August of 2011. Id. Shortly thereafter, Mother
(Footnote Continued Next Page)


                                           -6-
J-S37017-14


                                                                                     f

fact and determinations of credibility if they are supported by the record. In

re T.S.M., 71 A.3d at 267. We have reviewed the record and conclude the

factual findings and credibility determinations are supported by the record

and are accurately and aptly summarized in the excerpt of the trial court

opinion set forth above. Therefore, it becomes incumbent upon this Court to

determine if the trial court committed error of law or abused its discretion by

terminatin                                       Id. With those standards in mind, we

consider the issues raised by Mother.



fifth issues together and we shall do likewise.             In her first issue, Mother

contends the trial court erred in terminating her parental rights because

BCCYS failed to prove any grounds for termination under 23 Pa.C.S.A.

§ 2511.3 In her second issue, she alleges trial court error for terminating

                       _______________________
(Footnote Continued)

became involved with Father, id. at 186, who was born on February 22,
1986 and is the father of Child involved in these proceedings.

Neither A.M. nor H.S. is the subject of the instant proceedings. A.M. is
presently in the custody of her paternal grandmother while H.S. is in her

Court Opinion, 1/24/14 at 5-6 n. 2, 3. Father consented to the adoption of
Child on September 25, 2013. The trial court entered a decree confirming
that consent on October 30, 2013. N.T., 10/30/13, at 7-8.
3
  Mother notes that the trial court restricted its bases for termination to
§ 2511(a)(5) and (8), even though BCCYS also raised (a)(1) and (2) as




                                            -7-
J-S37017-14




her fifth issue, Mother argues that the trial court failed to consider her good

faith and substantial compliance with all BCCYS requests and directives.

                     -5.

                                                                            In re

N.A.M., 33 A.2d 95, 99 (Pa. Super. 2011).        This Court has explained the

bifurcated process as follows:

       Initially, the focus is on the conduct of the parent. The party
       seeking termination must prove by clear and convincing

       grounds for termination delineated in Section 2511(a).     Only if

       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.

Id. at 99-100 (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).

       We fir

satisfies the statutory grounds for termination under either § 2511(a)(5) or

(8).4 Under § 2511(a)(5), parental rights may be terminated if the child has

____________________________________________


4



Id. at 100, citing In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).



                                           -8-
J-S37017-14


                                        or a period of at least six months, the

conditions leading to removal continue to exist, the parent cannot or will not

remedy those conditions within a reasonable period of time, the services

reasonably available to the parent are not likely to remedy the conditions

that led to the removal, and termination would best serve the needs and

welfare of the child. Under the provisions of (a)(8), parental rights may be

terminated if the child has been removed from the care of the parent, 12

months or more have elapsed from the date of removal, conditions that led

to the removal continue to exist, and termination of parental rights would

best serve the needs and welfare of the child.

        Subsections (a)(5) and (8) each require that a period of time elapse

between rem

parental rights, i.e., six months under (a)(5) and twelve months under



directly from the hospital on June 29, 2012.       N.T., 10/30/13, at 58-60.



2013.     Petition for Involuntary Termination of Parental Rights, 8/19/13.

Nearly 14 months elapsed from the time of removal until the time BCCYS

filed its petition, satisfying the time requirements under both (a)(5) and (8).

        Subsections (a)(5) and (8) each also require that the conditions

leading to the removal of a child continue to exist and subsection (5) also

considers whether the parent cannot or will not remedy the condition. The


                                     -9-
J-S37017-14


trial court determined the main condition leading to the removal of Child was

                                                                  -7. Based on

the expert testimony of Dr. Larry Rotenberg and BCCYS counselor Julie

Kar



continues to exist and that there are no other services which could

reasonably help Mother remedy this cond                 Id. at 8 (citing In the

Interest of Lilley, 719 A.2d 327, 332 (Pa. Super. 1998) (termination

petition may be granted if parent appears incapable of benefitting from the

reasonable efforts supplied over a realistic period of time)).

      Addressing




                                                           this assertion would



appears to relate to the speculative claim that Mother would allow Father to

                                                  Id.

                                 his thorough research has failed to uncover

any case in which the Commonwealth has sought termination of a non-

                                                                             Id.

                                                                      its ruling.

The trial court did not find that Mother abused Child or her other children.


                                     - 10 -
J-S37017-14


Rather the trial court concluded that Mother failed to appreciate the risk of

harm and was unable to protect Child from future harm. T.C.O. at 6. As

this Court has

affirmative misconduct; those grounds may include acts of incapacity to

                                In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008),

(quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002)).5




Mother was unable to place the needs of her children above her own, that

Mother rationalized the inequities of her paramour and that no therapy or

                                                                -8 (citing N.T.,

10/30/13, at 14). Further, Ms. Karaisz acknowledged that Mother completed

the non-offending parent treatment and pursued domestic violence and



concluded that Mother failed to internalize or benefit from the treatment.

Id. at 8 (citing N.T., 11/14/13, at 140-41). Based on her 46 sessions with

____________________________________________


5
  We recognize that the trial court based its termination on (a)(5) and (8)
and did not specifically address (a)(2), which does consider whether a child
                                                                 eated and


absence of proof of abuse by Mother, we believe a reference to (a)(2) is
warranted under the circumstances.



                                          - 11 -
J-S37017-14




                                                                Id. (citing N.T.,

11/14/13, at 144-45).

       The record supports the



remedy that condition as required in (a)(5) and (8).6



both § 2511(a)(5) and (8), the trial court appropriately considered the best

interests of the child, giving primary consideration to the developmental,

physical and emotional needs and welfare of the child pursuant to

§ 2511(b). See In re N.A.M., 33 A.3d at 100. The trial court concluded:


       will serve the best interests of [Child]. As discussed above, the
       Court does not think that Mother is able to safely provide for the
                                      e child is currently living in a foster
       home which meets those needs.

____________________________________________


6
  Subsections (a)(5) and (8) also require that termination of rights will serve
the needs and welfare of a child. In its analysis of § 2511(a), the trial court
did not specifically address the needs and welfare of Child in the context of
§ 2511(a). However, it did conduct an analysis of the best interests of Child
in its discussion of § 2511(b) and considered the effect of severing the bond

                                    onsideration 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
        In re T.S.M., 71 A.3d at 267 (internal quotation omitted). The trial

permanently severing the parental bond and supports a finding that




                                          - 12 -
J-S37017-14


T.C.O. at 10 (emphasis in original). The court also considered the testimony




                                                  Id. at 11 (quoting N.T.,

10/30/13, at 76-77). She also stated that the foster parents present as a

long-term resource for Child. Id. Ms. Kipp also described Chil



during the end of the visits when [Child] did go back to her foster mother,

                                                                 Id.

      The trial c

explained:

      [T]he correct analysis under [§ 2511(b)] is what effect
      permanently severing this bond would have on the child. In re
      L.M., 923 A.2d 505, 511 (Pa. Super. 2007). The minor child has
      been i
      to her foster family and the Court does not believe that

      bond remains will have any permanent effect on the minor child.

Id.

      The tria

supported by clear and convincing evidence found in the record and we find

no error of law or abuse of discretion in its ruling.   There is no basis for

                                         irst, second and fifth issues.




                                   - 13 -
J-S37017-14




trial court commented:

                                                             six (6) in
     which Mother contends that the Court failed to consider that Dr.
     Rotenberg and Ms. Karaisz showed little insight into her past and
     wrongfully attributed her as having trouble with men. The Court
     did, in fact, consider the entirety of Dr. Rotenberg and Ms.
                                                  -examination of the
     extent of their expert opinions. As the Court understood and
     accepted their testimony as relevant to the issue of termination,
                                                     iled relationships
     demonstrated her instability and dependence on the men in her
     life. The Court considered this information as relevant to its
     conclusion that Mother is unable to protect the minor child from
     harm. While the experts may not have been aware of the details

     damaging to their overall expert conclusions.      Therefore, the


T.C.O. at 8-9 n.4 (references to notes of testimony omitted).



court acknowledges, the expert witnesses did not know certain details of the

relationships between Mother and the fathers of her two older daughters.

However, Dr. Rotenberg not only examined Mother but also had background




with features of dependency and narcissism. N.T., 10/30/13, at 24-26 and

33-34.   Ms. Karaisz had the benefit of 46 sessions with Mother and

appreciated that Mother completed non-offending parent treatment and

pursued domestic violence and mental health programs, yet failed to

                                   - 14 -
J-S37017-14


internalize or benefit from the treatment. N.T., 11/14/13, at 116-21. Our



sixth issue for lack of merit.

      In her third issue, Mother alleges trial court error for admitting BCCYS

exhibits, contending the exhibits were not authenticated, not relevant, and



                                                            Commonwealth

v. Wantz, 84 A.3d 324, 336 (Pa. Super. 2014).

      During the October 30, 2013 hearing, BCCYS offered a packet of

exhibits into evidence through the adoption caseworker. N.T., 10/30/13, at



marked as relevant to Father, rather than to Mother, and were therefore

irrelevant for the proceedings.   Counsel also objected on the grounds the

records were hearsay. Id. at 48-54.



Commonwealth v. Wood, 637 A.2d 1335 (Pa. Super. 1994), stating:

      The question of whether documents should be admitted under


      either the person who made the entries or the custodian of the
      records at the time the entries were made. Moreover, the law
      does not require that a witness qualifying business records even
      have personal knowledge of the facts reported . . . [as] long as
      the authenticating witness can provide sufficient information
      relating to the preparation and maintenance of the records to
      justify a presumption of trustworthiness[.]




                                    - 15 -
J-S37017-14


T.C.O. at 9, quoting Wood, 637 A.2d at 1350. The trial court determined

that the witness was able to identify



prepared simultaneously with the information being obtained and maintained

                       Id. at 10 (references to notes of testimony omitted).




inappropriate sexual contact with childr

allowing [Father] to have unsupervised contact with her minor children and

in failing to remove him from her life. These documents were only relevant

                      Id. We find no abuse of discretion in the trial c



      In the final issue raised by Mother, listed in her brief as her fourth

issue, Mother asserts that the trial court failed to give proper consideration

to the bond between Mother and Child, noting that Mother testified there

was a good bond while the only evidence of bonding presented by BCCYS



                                                                       noting




                                    - 16 -
J-S37017-14


second issue, we do so again in the context of the challenge to the



      When considering the bond between a parent and child, this Court has

recognized:


      precedent to order a formal bonding evaluation by an expert. In
      re [K.K.R.-S.], 958 A.2d 529, 533 (Pa. Super. 2008). Indeed,

      to rely upon the observations and evaluations of social workers.
      In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). Moreover,
      the mere existence of an emotional bond does not preclude the
      termination of parental rights. As we explained in In re A.S.,
      [11 A.3d 473, 483 (Pa. Super. 2010)]:

        [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 K.M., 53 A.3d 781, 791 (Pa. Super. 2012).

                                                  imony concerning her bond

with Child but also properly considered the testimony of the caseworker and

concluded that severing the bond with Mother would not have any

permanent effect on Child. T.C.O. at 11. Our review of the record supports

that finding.




                                         Id. The caseworker concluded that

                                   - 17 -
J-S37017-14




terminating parental rights would pose a significant risk because [Mother]

has not demonstrated that she is able to protect herself, let alone [C

Id. at 77-



issue lacks merit.



findings of fact and credibility determinations are supported by the record

and, therefore, we accept them.     We find no error of law or abuse of

discretion in its determination that BCCYS proved grounds for termination of

                                      (a)(5), (a)(8) and (b) and did so by




      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




                                   - 18 -
