J-S15015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.M.J., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: C.J.                            :
                                               :
                                               :
                                               :
                                               :   No. 1541 WDA 2018

             Appeal from the Order Entered September 28, 2018
     In the Court of Common Pleas of Allegheny County Orphans' Court at
                        No(s): CP-02-AP-119-2018


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED APRIL 23, 2019

       C.J. (“Mother”) appeals from the order entered on September 28, 2018,

that involuntarily terminated her parental rights to her child, K.M.J., born in

2017 (“Child”), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5),

(8), and (b).1 We affirm.

       In its Findings of Fact Regarding Contested TPR (“Termination of

Parental Rights”) Hearing, entered on September 28, 2018, the trial court set

forth its findings of fact in this appeal, which we adopt herein. Additionally,



____________________________________________


1 On September 28, 2018, the trial court involuntarily terminated the parental
rights of Mother’s brother, K.J., who is the person Mother eventually indicated
is Child’s father, and of any unknown father to Child pursuant to 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8), and (b). Neither K.J. nor any other individual filed
a brief in this appeal or a notice of appeal from the order terminating his
parental rights. See Trial Court Opinion, 12/10/18, at 2 n.4.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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in its opinion, the trial court set forth the factual background and procedural

history of this appeal as follows.

            [Child] was born on February [ ], 2017; he is one-year old.
      C.J. (hereinafter Mother) is the mother of [Child]. Paternity has
      not been established for K.M.J. At the time of the [c]hild’s birth,
      Mother named [T.J.] as the [f]ather of the [c]hild. However, on
      October 17, 2017, genetic testing ruled him out as a possible
      father.

             In addition to [Child], Mother has three other biological
      [female] children to whom her parental rights were terminated.
      With respect to these children, the [c]ourt previously found that
      these children were the products of incest because genetic testing
      established that the [f]ather of these children was a first degree
      relative (maternal grandfather or biological brother) of Mother.
      The maternal grandfather was ruled out by genetic testing. The
      maternal uncle (K.J.) did not comply with the court’s order to
      submit to genetic testing. Mother later acknowledged that her
      brother K.J. was the biological father of her three older children,
      but denied that he was the father of [Child].1

           [Child] was removed from Mother’s care on February [ ],
      2017. He was adjudicated dependent on March 7, 2017. He has
      remained in care since his removal.

            On June 5, 2018, [t]he Office of Children Youth and Family
      Services (CYF) [or (“the Agency”)] filed a petition for involuntary
      termination of parental rights in the interest of [Child]. On June
      20, 2018, after the TPR petition was filed, [M]other disclosed that
      her brother, K.J., was the biological father of [Child].2
      ___________________________________________________

      1 [Child] and his siblings have genetic illnesses and anomalies
      related to being children of an incestuous relationship with a
      relative of the first degree.

      2As a result of Mother’s late disclosure, CYF filed an Amended TPR
      Petition on July 11, 2018 naming K.J. as [Child’s father] and
      seeking termination of his parental rights[.]

Trial Court Opinion, 12/10/18, at 1-2 (footnotes in original).

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       On September 26, 2018, the trial court held an evidentiary hearing on

the amended TPR petition. The trial court announced its findings in open court

on September 28, 2018. At the hearing, Attorney Jennifer L. McGarrity from

KidsVoice represented Child as his legal interest counsel. Child did not have

a separate guardian ad litem (“GAL”). 2 Attorney Lilian A. Akin represented

CYF, and Attorney Jeffrey K. Eisenberg represented Mother.            K.J. did not

appear at the hearing to contest the termination of his parental rights, nor did

any counsel represent him at the hearing.




____________________________________________


2 In In re Adoption of L.B.M., ___ Pa. ___, 161 A.3d 172 (2017) (plurality),
our Supreme Court held that 23 Pa.C.S. § 2313(a) requires the appointment
of counsel to represent the legal interests of any child involved in a contested
involuntary termination proceeding. The Court defined a child’s legal interest
as synonymous with his or her preferred outcome. In In re T.S., ___ Pa.
___, 192 A.3d 1080 (2018) (filed August 22, 2018), the Supreme Court held
that the trial court did not err in allowing the children’s GAL to act as their sole
representative during the termination proceeding because, at two and three
years old, they were incapable of expressing their preferred outcome. The
Court explained, “if the preferred outcome of the child is incapable of
ascertainment because the child is very young and pre-verbal, there can be
no conflict between the child’s legal interests and his or her best interests; as
such, the mandate of Section 2313(a) of the Adoption Act that counsel be
appointed ‘to represent the child,’ 23 Pa.C.S. § 2313(a), is satisfied where the
court has appointed an attorney-[GAL] who represents the child’s best
interests during such proceedings.” Id. at ___, 192 A.3d at 1092-1093. Here,
attorney McGarrity served as Child’s legal interests counsel, and stated that
Child, who was only one year and seven months old at the time of the hearing,
was essentially non-verbal, and unable to express a subjective, articulable
preference for counsel to advance. N.T., 9/28/18, at 276. Attorney McGarrity
stated that the termination of Mother’s parental rights served both Child’s
legal and best interests. Id. at 277. Thus, we agree with Attorney McGarrity
that the mandates of L.B.M. and T.S. were satisfied based on Child’s pre-
verbal age. N.T., 9/28/18, at 276.

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        CYF first presented the testimony of Beth Bliss, Psy.D., a licensed

psychologist in private practice who does contract work with Allegheny

Forensic Associates. N.T., 9/26/18, at 5. Dr. Bliss is court-appointed through

Allegheny Forensic Associates, and testified as an expert in psychology. Id.

at 6.     Next, CYF presented the testimony of Jennifer Mattey, the CYF

caseworker assigned to the family.     Id. at 92-93.   Mother presented the

testimony of Monica Phillippone, who has served as Mother’s parenting coach

through Justice Works Youth Agency since June of 2018.       Id. at 200-201.

Mother then testified on her own behalf. Id. at 206. Finally, Child presented

the testimony of Child’s foster mother, B.L. (“Foster Mother”). Id. at 242.

        At the conclusion of the testimony, each counsel made a closing

argument. Id. at 270. As noted supra, Attorney McGarrity asserted that the

termination of Mother’s parental rights to Child, who was only one year and

seven months old at the time of the hearing, served both Child’s legal and his

best interests. Id. at 277.

        On September 28, 2018, the trial court entered the order that

involuntarily terminated Mother’s parental rights to Child pursuant to the

Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). On October 25,

2018, Mother timely filed a notice of appeal, along with a concise statement




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of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b).3

        On appeal, Mother raises two issues:

        1. Did the trial court abuse its discretion and/or err as a matter of
        law in granting the petition to involuntarily terminate Mother’s
        parental rights pursuant to 23 Pa.C.S. §2511(a)(2), (5), and (8)?

        2. Did the trial court abuse its discretion and/or err as a matter of
        law in concluding that CYF met its burden of proving by clear and
        convincing evidence that termination of Mother’s parental rights
        would best serve the needs and welfare of the child pursuant to
        23 Pa.C.S. §2511(b)?

Mother’s Brief, at 6.

        In her first argument, Mother argues that the trial court abused its

discretion and/or erred as a matter of law in concluding that there was

sufficient evidence to support the termination of her parental rights under

section 2511(a)(2), (5), and (8). Mother’s Brief, at 13. Mother contends that

there was insufficient and conflicting evidence to support a clear and

convincing finding that she cannot care for Child. Id. Mother states that she

was sufficiently complying with the goals for reunification set forth by the trial

court. Id. Mother urges that she had completed some goals, was continuing

to work on others, and was still progressing with positive changes to her life

and ability to care for Child. Id. Mother contends that CYF’s evidence was


____________________________________________


3The trial court entered an opinion with is finding of fact from the termination
hearing on September 28, 2018, the same day it entered the termination
order. The trial court entered a second opinion on December 10, 2018,
pursuant to Pa.R.A.P. 1925(a)(2)(ii).

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based mostly on CYF’s speculative concerns, as well as CYF’s unwillingness to

trust Mother, which are matters Mother cannot resolve for CYF. Id. Mother

suggests that CYF is placing blame on her for her incestuous conception of

Child, as opposed to recognizing Mother as a victim of trauma. Id. at 13-14.

      In her second issue, Mother argues that the trial court abused its

discretion and/or erred as a matter of law in concluding that the termination

of her parental rights under section 2511(b) best serves Child’s needs and

welfare. Id. at 14. Mother asserts that the termination of her parental rights

unnecessarily and permanently terminates the loving bond and relationship

between Child and her.     Id.    Mother states that Child has a strong and

beneficial bond with her and that there is love between them, and the only

way to provide this benefit to Child is to restore her parental rights.   Id.

Mother argues that termination should be denied when a bond is shown to be

beneficial. Id. Mother urges that Child’s needs and welfare encompass more

than just his bare necessities.     Id.   Mother contends that the trial court

erroneously adopted CYF’s position that the only type of relationship between

a parent and a child that will be problematic if severed is a necessary bond,

as opposed to a beneficial bond. Id. Mother complains that the trial court

minimized the bond that Child has with her. Id. Mother asserts that CYF’s

position deprives Child of the benefits of her love and affection. Id.

      In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:


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            [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. 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., [614 Pa. 275,
     284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
     Christianson v. Ely, [575 Pa. 647, 654-655], 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., [608 Pa. at 28-
     30], 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 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 Atencio, [539
     Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).

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


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      Moreover, we have explained:

      [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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

      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). In the current

case, we affirm the trial court’s decision to terminate Mother’s parental rights

to Child under Section 2511(a)(2) and (b), which provides, in relevant part,

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:

                                     ***

         (2) The repeated and continued incapacity, abuse, neglect
         or refusal of the parent has caused the child to be without
         essential parental care, control or subsistence necessary
         for his physical or mental well-being and the conditions and
         causes of the incapacity, abuse, neglect or refusal cannot
         or will not be remedied by the parent.

                                     ***

       (b) Other considerations.--The court in terminating the rights
      of a parent shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child. The rights
      of a parent shall not be terminated solely on the basis of
      environmental factors such as inadequate housing, furnishings,
      income, clothing and medical care if found to be beyond the

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      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. § 2511.

      The Supreme Court set forth our inquiry under section 2511(a)(2) as

follows.

             As stated above, § 2511(a)(2) provides statutory grounds
      for termination of parental rights where it is demonstrated by clear
      and convincing evidence that “[t]he 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.” . . .

            This Court has addressed             incapacity   sufficient    for
      termination under § 2511(a)(2):

           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 1970 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.

      In re Adoption of J.J., [511 Pa. 599, 605,] 515 A.2d 883, 891
      (Pa. 1986) (quoting In re: William L., [477 Pa. 322, 345,] 383
      A.2d 1228, 1239 (Pa. 1978).

In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.

      This Court has long recognized that a parent is required to make diligent

efforts    towards   the   reasonably   prompt    assumption    of   full   parental

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


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parent’s vow to cooperate, after a long period of uncooperativeness regarding

the necessity or availability of services, may properly be rejected as untimely

or disingenuous. Id. at 340.

      In its findings of fact, the trial court stated the following.

      1. [Child] is placed in the care of [B.L.] and [M.L.] through Every
      Child. Child’s biological sisters reside in this home and have been
      adopted by the [L.’s]. He has remained in their care for twenty
      (20) months, or for his entire life. He is doing well in the home
      and the [L.’s] are able to meet all of his special needs.

      2. Due to the close genetic relationship between [Child’s]
      biological parents, he (as well as his siblings) have many special
      needs, including: tremors, hypertonia, speech and developmental
      delays, weak eyes, GERD, low weight and height, microcephaly,
      cleft palate, difficulty feeding and eating, etc. Consequently,
      [Child] has many medical appointments including: urology,
      neurology (Dr. Cummings), Genetics (Dr. Madden), E & T
      specialist (Dr. Cho), ARCH Clinic, endocrinology (Dr. Salahh),
      feeding clinic, orthopedic team, cleft and craniofacial clinic,
      ophthalmology       (Dr.    Philibad),   Gastroenterology,   Child
      Development Unit, and his pediatrician (Dr. Eichmann). In
      addition, [Child] receives services through Alliance for Infants
      Toddlers -- physical therapy, developmental therapy and a
      nutritionist.

      3. At the time of [Child’s] birth and until June of 2018, Mother
      denied that her brother, [K.J.,] was the [f]ather of [Child]. After
      genetic testing confirmed that [Child’s] father was a first[-]degree
      relative of Mother, Mother acknowledged that her brother, [K.J.,]
      was in fact the father of [Child]. Mother reported that she
      engaged in a sexual; [sic] act with her brother due to her
      being upset about the termination of parental rights to her
      daughters. [Child] is Mother’s fourth child through incest.

      4. OCYF established the following goals for Mother: maintain
      stable and safe housing; engage in parenting to learn to meeting
      [sic] the basic and special needs of her [c]hild; engage in therapy
      to address trauma and victimization and to gain insight into how
      her intimate relationship with her brother is harmful to her and


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     her child;; [sic] [and to] obtain and maintain sobriety (as she has
     used marijuana during pregnancy).

     5. Mother has appropriate housing. [Child] has unsupervised
     visitation at Mother’s home and there have been no concerns
     about the housing.

     6. Mother has been cooperative with services. She is working with
     Maria Allen from the Duquesne Family Support Center and
     coached parenting with. [sic] Justice Works. Mother also has a
     family support partner through Allegheny Family Network.

     7. Mother has unsupervised visitation with [Child] three times per
     week (including overnight visitation). During this visitation,
     Mother is expected to demonstrate that she can meet the basic
     needs of her child as well as his special needs. Mother is required
     to make and attend appointments for [Child].

     8. Mother appears to be loving and nurturing towards [Child]. He
     appears to have a nice bond with his [m]other.

     9. Mother has been able to demonstrate that she can meet the
     basic needs of her [c]hild. She makes and attends most medical
     appointments.

     10. Mother seems to understand [Child’s] basic needs and some
     of his special needs. The caseworker does have some concerns
     that Mother is not able to recognize medical issues that arise.
     [Child] returned from visitation with [M]other with a double ear
     infection and ruptured ear drum (March 15, 2018), diaper rash,
     ringworm, impetigo, and hard or bloody stool. Mother states that
     [Child] does not have these issues or signs of distress when he is
     in her care. With respect to the impetigo, Mother did tell the
     transported [sic] that [Child] had diaper rash. However the rash
     on his genitals was blistered and scabbed[,] and the rash
     ultimately spread to his mouth. Mother used Desitin and
     petroleum jelly to treat the impetigo.

     11. At times, Mother struggles at appointments to report family
     history, ask questions and advocate for [Child’s] needs.

     12. Mother is engaged in trauma-based therapy with Gae Maffei
     through Holy Family Institute. Mother attends 90-minute therapy
     sessions two to four times per month. Mother did not disclose

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      to her therapist the fact that her brother is the father of
      [Child] or that the TPR petition had been filed.

      13. [The trial court finds] that Mother has done a good job of
      demonstrating that she can meet the basic needs of [Child].
      However, [the trial court did] not find that Mother has
      demonstrated that she understands the impact of continuation of
      an incestuous relationship with her brother upon her children.
      Mother has not been honest with the [A]gency, the court, or her
      therapist about the relationship with her brother.         On one
      occasion, while the caseworker, Ms. Mattey[,] was in Mother’s
      home[,] an unknown male attempted to enter Mother’s home.
      Mother blocked the caseworker from seeing who it was and did
      not permit the unknown male to have access into her home.
      Mother’s explanation for this incident made no sense and[,]
      accordingly, [the trial court did] not find her explanation to be
      truthful. While, [sic] [the trial court could] not conclusively say
      that it was Mother’s brother at the door, [the court could] not
      think of another reason that Mother would hide this person from
      the [c]aseworker, so [the court could not] not exclude this
      possibility.

      14. Mother has had an active case with Allegheny County OCYF
      since July of 2015. During this time[,] she was expected to
      demonstrate that [she] should could engage in healthy
      relationships and that she understood that the relationship with
      her brother was harmful to herself and her children.

      15. After parental rights to her daughters were terminated,
      Mother engaged in [an] unprotected sexual relationship
      with her brother. She hid the fact that she was pregnant
      and failed to seek prenatal care. After [Child’s] birth, she
      named someone else at [sic] the [c]hild’s father and
      adamantly denied that her brother was the father of her
      son.   It was only after genetic testing revealed that
      [Child’s] father was a first-degree relative of Mother that
      she acknowledged that her brother, [sic] was in fact the
      father of her child (on June 20, 2018 after the TPR petition
      had been filed).

Trial Court Findings of Fact Regarding Contested TPR Hearing, 9/28/18, at 3-

5 (emphasis in original).


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     With regard to the considerations under section 2511(a)(2), the trial

court found as follows:

     Based upon the evidence presented, I find that the
     circumstances that led to the removal, adjudication, of
     dependency and continued placement of [Child] continue
     to exist for the reasons set forth below.

     1. Throughout the life of the dependency case for [Child], Mother
     has been cooperative with the [A]gency and with providers.

     2. Mother has made progress in her maintaining housing, sobriety,
     and demonstrating that she can meet [Child’s] basic needs.

     3. Mother has made progress with meeting [Child’s] very special
     needs. She makes and attends most medical and therapeutic
     appointments for her son. However, [the trial court] share[s] the
     concerns of the caseworker, foster mother and Dr. Bliss as to
     whether she can meet all his special needs on a day[-]to[-]day
     basis without oversight from the court and the [A]gency.

     4. Due to [Child’s] complicated genetics, he has medical and
     therapeutic needs that require many medical appointments,
     medications, therapies and at times, surgeries. [Child] needs a
     parent who understands his needs and who can advocate for
     him[,] and who is able to effectively question doctors and other
     professionals. At this point, although Mother has made progress,
     [the court does] not find that she is able meet his special needs.

     5. On the other hand the foster parents, the [L.’s], have been able
     to effectively meet the needs of [Child] and his siblings[,] who
     share his genetic history and have many special needs as a result.
     As Dr. Bliss pointed out, Mr. and Mrs. [L.] are an effective team,
     the point being that they are team. [The trial court finds] that
     Mother lacks the support needed to meet [Child’s] needs if
     services close out.

     6. Mother has three other children to whom her rights were
     terminated.    The father of these three children is Mother’s
     brother[, K.J.]. At the time of [Child’s] birth, paternity was not
     established. The person that Mother named father, [sic] was ruled
     out through genetic testing. It was after genetic testing revealed
     that [Child’s] father was a first-degree relative of Mother, [sic]

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      that Mother admitted that her brother, [K.J.,] was also the
      [f]ather of [Child]. This admission occurred fourteen months
      after the child entered care and after the filing of the
      petition for termination of parental rights. Mother was not
      truthful with the [A]gency or the court about [Child’s] paternity.
      There are still concerns that Mother may have contact with her
      brother, which is not safe for Mother or [Child]. Accordingly, [the
      court has] serious doubts that she understands that the intimate
      relationship with her brother is harmful to herself or her child or
      that she will refrain from such a relationship in the future.

      7. Mother has a concerning history of trauma as a victim of abuse
      at the hands of her father and her brother. No doubt, this history
      has impacted Mother’s ability to make good decision[s] for herself
      and for her children. While [the trial court has] empathy for
      Mother as a victim, [the court also has] great concern for the
      welfare of [Child,] who has no choice in who his parents are.

      8. While [the trial court] agreed that Mother may be and still is
      powerless to disengage from her family and remains in every
      sense a victim, she is also an adult who made a choice for the
      fourth time to have contact with her brother, engage in a sexual
      act and conceive a child, knowing the risks to the health of her
      child.

      9. Of great concern to this court is the fact that Mother lied about
      the paternity of [Child] and that she has not disclosed this
      information to her therapist.

Trial Court Findings of Fact Regarding Contested TPR Hearing, 9/28/18, at 8-

9.

      Mother argues that the evidence showed that she can parent with the

support in place, and has been parenting Child three days a week.            See

Mother’s Brief, at 19. She asserts that the trial court based its decision on

more speculative concerns, as opposed to actual evidence, that Mother cannot

care for Child without support in place. Id. We disagree. The trial court fully

and adequately set forth its basis for terminating Mother’s parental rights

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based on the evidence that showed that, although Mother has made progress

in her parenting abilities and has been cooperative with the Agency, Mother

cannot adequately parent Child with his special needs because she does not

have supports of her own in place once Agency involvement would be

concluded. The trial court’s concerns that Mother has continued to make poor

decisions and exercise poor judgment in continuing to have unprotected

sexual intercourse with her brother, although she has been the victim of

trauma, are problematic to her ability to parent Child. Thus, we affirm the

trial court’s termination of Mother’s parental rights pursuant to section

2511(a)(2). S.P., 47 A.3d at 826-27.

     Next, we proceed to consider the sufficiency of the evidence to support

the termination of Mother’s parental rights pursuant to section 2511(b). This

Court has stated that the focus in terminating parental rights under section

2511(a) is on the parent, but it is on the child pursuant to section 2511(b).

See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en

banc).   In reviewing the evidence in support of termination under section

2511(b), our Supreme Court has stated as follows:


            [I]f the 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. § 2511(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., [533
     Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], this Court held that
     the determination of the child’s “needs and welfare” requires

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        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: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances . . . where

direct observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

        A parent’s abuse and neglect are likewise a relevant part of this analysis:

        concluding a child has a beneficial bond with a parent simply
        because the child harbors affection for the parent is not only
        dangerous, it is logically unsound. If a child’s feelings were the
        dispositive factor in the bonding analysis, the analysis would be
        reduced to an exercise in semantics as it is the rare child who,
        after being subject to neglect and abuse, is able to sift through
        the emotional wreckage and completely disavow a parent . . . Nor
        are we of the opinion that the biological connection between [the
        parent] and the children is sufficient in of itself, or when
        considered in connection with a child’s feeling toward a parent, to
        establish a de facto beneficial bond exists. The psychological
        aspect of parenthood is more important in terms of the
        development of the child and [his or her] mental and emotional
        health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

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of the child, including “the love, comfort, security, and stability the child might

have with the foster parent.” In re G.M.S., 193 A.3d 395, 401 (Pa. Super.

2018) (citation omitted); see also In re K.Z.S., 946 A.2d at 763 (affirming

involuntary termination of parental rights, despite existence of some bond,

where placement with mother would be contrary to child’s best interests).

      Regarding the needs and welfare analysis of section 2511(b), the trial

court made the following findings of fact.

      1. Over the life of this case (including [Child’s] siblings) Mother
      has been evaluated by Dr. Beth Bliss several times. Specifically
      Dr. Bliss completed the evaluations: August 2016—interactional
      evaluation with Mother and her daughters and an individual
      evaluation of Mother; June 2017—individual evaluation with
      Mother and interactional evaluation with Mother, [Child] and her
      daughters; January 2018—interactional evaluation with Mother
      and [Child] and an individual evaluation with Mother; August 8,
      2018 —interactional evaluation with [Child] and his foster
      parents; August 15, 2018—interactional evaluation with Mother
      and [Child] and an individual evaluation with Mother. (See
      reports of Dr. Bliss contained within CYF Exhibit 1).

      2. Most recently, Dr. Bliss has diagnosed mother with Post-
      Traumatic Stress Disorder, Dependent Personality Disorder,
      Borderline Intellectual Functioning, and Intellectual Disability, Mild
      (Provisional)[.]

      3. Dr. Bliss testified that[,] over time, Mother has made
      improvement in her parenting skills and appears to be able to
      meet the basic needs of her child.

      4. During the August 2018 interactional evaluation, Dr. Bliss found
      that Mother was mostly able to simultaneously attend to [Child]
      and answer the evaluator’s questions. Mother attended to his
      basic needs, such as wiping his nose when it was running. She
      selected developmentally appropriate toys and fed him snacks
      during the appointment. Mother was warm and affectionate with
      [Child], and he smiled at her and jumped into her arms a couple


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     of times. He was clearly comfortable with her and attached to
     her.

     5. Dr. Bliss stated that[,] during earlier evaluations, Mother
     repeatedly insisted that she did not have sex with the same man
     who is the father of her daughters, stating that she could not find
     him. During the August 2018 evaluation, Mother admitted that
     she engaged in consensual sex with her brother. She stated that
     she had some belief that he may be her brother after her first
     daughter was born. After that, she still maintained a relationship
     with him and conceived their other two daughters because there
     was still some doubt as to whether he was her brother or not.
     Mother told Dr. Bliss that she was feeling depressed about having
     lost her daughters, and she drank heavily with her cousin, his
     friend, and her brother. That night, she engaged in sex with the
     cousin’s friend. However, two days later, she saw her brother
     again and had sex with him. Thus, she was uncertain who [sic]
     of the two men [Child’s] father was until genetic testing confirmed
     [he] was her brother’s child.

     6. Mother was able to explain some of [Child’s] special needs to
     Dr. Bliss. She told Dr. Bliss the following:

        Ms. Johnson stated that [Child] receives developmental
        therapy weekly, physical therapy every other week, and a
        nutritionist nurse twice per month. He visits with her from
        Monday to Thursday, including overnights, and Ms.
        Johnson is present for all of his services and appointments.
        She stated that he is diagnosed with hypertonia, which
        means he has tight muscles. She also stated that he has
        “deep reflexes” but was unable to describe this further
        except to state that it has “something to do with the
        coughing that he has.”         [Mother] stated that he is
        underweight but gaining, so the nutritionist suggested a
        high calorie diet for him, including whole milk mixed with
        half-and-half, plus putting butter on all of his foods. She
        said that he receives WIC [a special supplemental nutrition
        program for Women, Infants and Children,] but it goes to
        the foster parents, not her. Finally, [Mother] stated that
        she is receiving parenting coaching every Wednesday for
        two hours, and they have not voiced any concerns with her
        parenting.




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J-S15015-19


     7. With respect to the interaction between [Child] and his foster
     parents, Dr. Bliss observed that [Child] showed a secure
     attachment to his foster parents. Both foster parents were warm
     and affectionate with him, and the foster father often smiled at
     him.

     8. In Dr. Bliss’ opinion, the foster parents worked well as a team
     to be able to attend to [Child] while also answering the evaluator’s
     questions, and they both appear knowledgeable about his special
     needs.      Both [foster] parents promoted developmentally-
     appropriate skill acquisition[,] and were playful and energetic with
     him. [Child] appeared attached to his foster parents, seeking
     them out when he got near the stranger evaluator, smiling at
     them, and appearing happy and natural in his interactions with
     them.

     9. In Dr. Bliss’s opinion, Mother’s insight and judgment are limited
     and prognosis is guarded. The fact that she jumped to having
     unprotected consensual sex with her brother as a means of coping
     with her emotions regarding losing custody of her daughters is
     worrisome at best. Mother was aware that [Father] was her
     brother, that her children have medical and developmental issues
     related to shared genetics, and that she lost custody of her
     children primarily because of her previous sexual relationships
     with her brother, yet she still used the poor judgment to engage
     in this relationship with him again. Although Mother has showed
     [sic] some progress with her willingness to admit to these
     problems and work with service providers, she is still a vulnerable
     person who has shown a pattern of returning to unhealthy family
     members despite their histories. Dr. Bliss continues to have
     significant concern that Mother is either still currently in contact
     with her family members or else is likely to be again in the future.
     Accordingly, Dr. Bliss recommends [a]doption by the [L.’s] to best
     meet the needs and welfare of [Child]. She does recommend that
     the foster parents and Mother work through mediation to discuss
     the possibility of an open adoption.

     10. In Dr. Bliss’s opinion, the safety of [Child] would be at risk if
     Mother continued to have a relationship with her brother.

Trial Court Opinion Findings of Fact Regarding Contested TPR Hearing,

9/28/18, at 5-7.


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J-S15015-19


      In accordance with its findings of fact relative to section 2511(b), the

trial court made the following conclusions.

      Based upon the evidence presented, I find that termination
      of parental rights of the parents to [Child] best serve[s]
      the needs and welfare of [Child] for the reasons set forth
      below.

         1. [K.J.,] has not had contact with [Child] and has not
         parented him. He is a Megan’s Law sex offender. [Child]
         has no relationship with [K.J.].

         2. Paternity has not legally been established. No one has
         claimed paternity to [Child].

         3. There is no doubt that Mother loves her son. This is
         evident from the descriptions of all who have observed
         Mother engaging with [Child]. However, [the trial court
         found] that [Child] would not be safe in the full[-]time and
         permanent custody of his [m]other at this time. It is
         evident to this court, [sic] that Mother needs long-term
         therapy to confront and manage her own victimization and
         to heal.

         4. Although [Child] has a positive bond with his [m]other,
         [the trial court found] that his primary bond is with his
         foster parents, with whom he has primarily resided for his
         entire life. Placement with the [L.’s] has also allowed
         [Child] to develop a relationship with his siblings, which
         sometimes is equally if not more important than the bond
         with a parent.

         5. [The trial court agreed] that continued contact with
         Mother would be in [Child’s] best interest. There is value
         in this relationship. However, [the court did not] find that
         if [Child] were adopted by the [L.’s] and contact with
         [M]other were to end, that this would be harmful to him
         given his age and his positive and loving bond with his
         foster parents and his siblings. Accordingly, [the trial court
         found] that the need for [Child] to have a safe, loving, and
         permanent home outweighs his need to maintain a
         relationship with his [m]other.


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J-S15015-19


Trial Court Opinion Findings of Fact Regarding Contested TPR Hearing,

9/28/18, at 9-10 (emphasis in original).

      Our Supreme Court has stated that the mere existence of a bond or

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

termination petition, and that “[e]ven the most abused of children will often

harbor some positive emotion towards the abusive parent.” See T.S.M., 71

A.3d at 267 (quoting K.K.R.-S., 958 A.2d at 535). The Supreme Court stated,

“[t]he continued attachment to the natural parents, despite serious parental

rejection through abuse and neglect, and failure to correct parenting and

behavior disorders which are harming the children cannot be misconstrued as

bonding.”) See In re: T.S.M., 620 Pa. at 629, 71 A.3d at 267 (quoting In re

Involuntary Termination of C.W.S.M., 839 A.2d 410, 418 (Pa. Super.

2003) (Tamilia, J. dissenting)).   Thus, we will not disturb the trial court’s

decision. In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27.

      The evidence supports the trial court’s decision to terminate Mother’s

parental rights to Child pursuant to section 2511(b). Dr. Bliss testified that,

although Child had shown a developed bond with Mother when she evaluated

them in August of 2018, the bond was beneficial but not necessary. N.T.,

9/26/18, at 19, 40. Dr. Bliss described a necessary bond as a bond that would

cause undue trauma to Child or life-long problems if the bond were removed

or taken away from him. Id. at 41-42. Dr. Bliss testified that she did not

believe the termination of Mother’s parental rights would be traumatic for


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Child, although he might exhibit some behaviors that post-adoption services

could appropriately address.   Id. at 25, 26, 41. Dr. Bliss testified that, if

Mother’s parental rights were terminated, she would recommend that Child’s

contact with Mother be stopped abruptly, because, based on Child’s young

age, he would adjust better to the termination. Id. at 54-55. Dr. Bliss opined

that, the older that Child gets, the more understanding he would develop

about the bond he has with Mother, and stopping his contact with Mother

would be more detrimental at that stage. Id. Dr. Bliss recommended the

termination of Mother’s parental rights, and she stated that the termination

meets Child’s needs and welfare, and Foster Parents are an appropriate

adoption resource for Child. Id. at 22, 24, and 73. Dr. Bliss testified that

removing Child from the home of Foster Parents, where he is doing well, would

be detrimental to him at any age. Id. at 73.

     Caseworker Mattey testified that Child has positive interactions with

Mother, approaching her when he is sleepy and wants attention. Id. at 120.

She stated that Mother is loving and attentive, and proud of Child’s progress.

Id. at 120-121. Caseworker Mattey testified that, based on Child’s young

age, CYF was seeking adoption to ensure that Child’s needs and welfare will

be met without further Agency involvement. Id. at 122-123. CYF was not

concerned that the termination of Mother’s parental rights would have a

detrimental effect on Child. Id.




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      The competent evidence in the record supports the trial court’s

determination that, although Child is bonded with Mother, he did not have a

necessary and beneficial relationship with her, and that he would not be

irreparably harmed by the termination of her parental rights. In re: T.S.M.,

620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013). The competent evidence

supports the trial court’s concern regarding Child’s safety in Mother’s care as

well. In re K.K.R.-S., 958 A.2d at 535; In re K.Z.S., 946 A.2d at 763.

      While Mother testified that she loves Child, a parent’s own feelings of

love and affection for a child, alone, will not preclude termination of parental

rights. Z.P., 994 A.2d at 1121 (Pa. Super. 2010). We stated in In re Z.P., a

child’s life “simply cannot be put on hold in the hope that [a parent] will

summon the ability to handle the responsibilities of parenting.” Id. at 1125.

Rather, “a parent’s basic constitutional right to the custody and rearing of his

child is converted, upon the failure to fulfill his or her parental duties, to the

child’s right to have proper parenting and fulfillment of his or her potential in

a permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa. Super. 2004). See also K.Z.S., 946 A.2d at 759 (“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 his or her

physical and emotional needs.” (citation omitted)).       Here, the trial court’s

concerns that Mother has not created a safe and healthy environment for

Child, and cannot meet his special needs on her own, are based on sufficient,


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competent evidence of record.   Accordingly, we affirm the trial court’s order

terminating Mother’s parental rights to Child pursuant to section 2511(a)(2)

and (b) of the Adoption Act.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2019




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