J-S43013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: N.H., A MINOR                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
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    APPEAL OF: S.A., NATURAL MOTHER            :   No. 73 WDA 2017

                   Appeal from the Decree December 19, 2016
               In the Court of Common Pleas of Allegheny County
                   Orphans’ Court at No: CP-02-AP-040-2016

BEFORE:      STABILE, SOLANO, and FITZGERALD*, JJ.

MEMORANDUM BY STABILE, J.:                          FILED SEPTEMBER 21, 2017

        S.A. (“Mother”) appeals from the decree entered December 19, 2016,

in the Court of Common Pleas of Allegheny County, which involuntarily

terminated her parental rights to her minor daughter, N.H. (“Child”), born in

December 2013.1 After careful review, we affirm.

        The orphans’ court summarized the factual and procedural history of

this matter as follows.

              [The Allegheny County Office of Children, Youth and
        Families (OCYF)] originally became involved with the family in
        December of 2009 after receiving a referral alleging Mother was
        actively using drugs and that [Child’s older siblings] were not
        being properly supervised. That case was closed in April of
        2010. There were numerous other referrals made but all were
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  The decree also terminated the parental rights of Child’s father, A.H.
(“Father”). The disposition of Father’s appeal is by separate memorandum.
J-S43013-17


     closed without further court intervention. OCYF received the
     most recent referral on September 20th, 2013, and the concerns
     were similar to the prior referrals. These concerns centered on
     the lack of supervision of the children, Mother’s substance
     abuse, deplorable housing conditions, and domestic violence
     between the parents. Additionally, the oldest child had appeared
     at school with physical marks on his face. An OCYF caseworker
     met with Mother on September 25, 2013, at which time she
     admitted to actively using heroin and suffering from mental
     health issues.     Additionally, Mother reported that she had
     recently filed a Protection From Abuse Petition (hereinafter PFA)
     against Father and that she had relapsed shortly thereafter.
     Mother and the children were listed as protected parties in the
     PFA Petition.

           Shortly after Mother’s admissions, an OCYF caseworker
     went to Father’s home where he found Mother and the children
     despite the active PFA Petition. Mother refused to allow the
     caseworker into the home and eventually the local police had to
     assist OCYF in gaining entry into the home. Mother reported
     that she had spoken to Father and that he had advised her not
     to open the door. The house was observed to be in deplorable
     condition with no running water or working electricity. At that
     time, the caseworker created a safety plan for the family
     wherein Mother agreed to stay with a friend and refrain from
     allowing the children to have contact with Father.

            Approximately one month later, Mother and the children
     were again discovered in Father’s home.         OC[YF] created
     another safety plan for the family [in] December [of] 2013.
     [Child] was born the following day . . . . The child was born at
     approximately 30 weeks, weighed 2 pounds and 6 ounces and
     tested positive for both cocaine and methadone. After the child’s
     birth, Mother admitted to using heroin and crack cocaine three
     days prior. Furthermore, she admitted to using crack cocaine
     throughout her pregnancy.         The City of Pittsburgh Police
     reported receiving a 911 call from Mother on February 2nd, 2014,
     reporting that Father had punched her in the face while at the
     hospital with [Child]. The responding officer observed swelling
     above Mother’s eye and Father was charged with simple assault
     and was also charged with violating the PFA.

           The child remained in the hospital until she was medically
     cleared to return home on February 5th, 2014. The child was

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     permitted to be released into Mother’s care because In-Home
     Services through Holy Family were working with Mother in her
     home and addressing drug and alcohol treatment and parenting.
     However, OCYF made it clear that the child was to attend every
     scheduled medical appointment as she was considered a
     medically fragile child. Mother missed an appointment shortly
     thereafter and OCYF requested and was granted an Emergency
     Custody Authorization on February 19th, 2014. It was also
     reported to OCYF that Mother did not have stable housing and
     had been the victim of yet another domestic violence incident
     with Father. OCYF discovered that Mother withdrew the PFA
     Petition in March of 2014.

           An Adjudicatory Hearing was held on April 1st, 2014 at
     which time both Father and Mother stipulated to Dependency.
     Mother stipulated that the child was born positive for both
     cocaine and methadone, that she was in need of drug and
     alcohol treatment, and that there was an active PFA Petition
     excluding contact between herself[,] the children[,] and Father.
     Father stipulated that he had criminal charges pending as a
     result of an alleged domestic violence incident with Mother and
     inadequate housing. . . .

Orphans’ Court Opinion, 2/10/17, at 2-5 (footnotes omitted).

     On March 2, 2016, OCYF filed a petition to involuntarily terminate

Mother’s parental rights to Child.       The orphans’ court conducted a

termination hearing on July 22, 2016, and September 23, 2016. Following

the hearing, on December 19, 2016, the court entered the decree

complained of on appeal, in which it terminated Mother’s parental rights.

Mother timely filed a notice of appeal on January 10, 2017, along with a

concise statement of errors complained of on appeal.

     Mother now raises the following issue for our review.        “Did the

[orphans’] court abuse its discretion and/or err as a matter of law in

concluding that termination of [Mother’s] parental rights would serve the



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needs and welfare of the child pursuant to 23 Pa.C.S.[A.] §[]2511(b)?”

Mother’s Brief at 5.

      We consider Mother’s issue mindful of our well-settled standard of

review.

      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
      court’s decision, however, should not be reversed merely
      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) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.


      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory
      grounds for termination delineated in Section 2511(a). Only if
      the court determines that the parent’s conduct warrants
      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


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     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) (citations omitted).

     In this case, the orphans’ court terminated Mother’s parental rights

pursuant to Section 2511(a)(2), (5), (8), and (b), which provides as follows.

     (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) 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.

                                    ***

           (8) 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


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           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.

                                     ***

     (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), (5), (8), and (b).

     On appeal, Mother concedes that OCYF presented clear and convincing

evidence that her parental rights should be terminated pursuant to Section

2511(a).   Mother’s Brief at 10 (“[O]CYF, the petitioner, did clearly and

convincingly establish threshold grounds for termination pursuant to 23

Pa.C.S.[A.] §[]2511(a)(2).”).   Thus, we need only consider whether the

orphans’ court abused its discretion by terminating Mother’s parental rights

pursuant to Section 2511(b). The requisite analysis is as follows.

     Section 2511(b) focuses on whether termination of parental
     rights would best serve the developmental, physical, and
     emotional needs and welfare of the child. As this Court has
     explained, Section 2511(b) does not explicitly require a bonding
     analysis and the term ‘bond’ is not defined in the Adoption Act.
     Case law, however, provides that analysis of the emotional bond,
     if any, between parent and child is a factor to be considered as
     part of our analysis. While a parent’s emotional bond with his or

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      her child is a major aspect of the subsection 2511(b) best-
      interest analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.

            [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 Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      In its opinion, the orphans’ court found that OCYF presented

overwhelming evidence in support of its petition to terminate Mother’s

parental rights.      Orphans’ Court Opinion, 2/10/17, at 15.        The court

explained that Child recognizes Mother and is minimally bonded to her, but

that “it is both unrealistic and unhealthy to expect [Child] to wait in

abeyance while the parents attempt to attain stability.” Id. at 13. The court

emphasized Mother’s lack of stability, as well as Child’s bond with her foster

parents. Id. at 13-15.

      In response, Mother argues that the orphans’ court failed to consider

the effect that terminating her parental rights would have on Child. Mother’s

Brief at 13. Mother further argues that the court conducted a “balancing and




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fault-based analysis” of Section 2511(b), which focused improperly on her

failings as a parent, rather than Child’s needs and welfare. Id.

         After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion.         During the termination

hearing, OCYF presented the testimony of psychologist, Terry O’Hara, Ph.D.

Dr. O’Hara testified that he conducted several evaluations of Mother, which

included individual evaluations, as well as interactional evaluations with

Child.    N.T., 9/23/16, at 29, 32, 51-53.       Based on these evaluations, Dr.

O’Hara opined that Mother is incapable of providing for Child’s needs and

welfare, due to her lack of stability, her parenting deficits, and her lack of

attunement with Child. Id. at 52.

         Concerning lack of stability, Dr. O’Hara testified that Mother suffers

from opioid addiction with ongoing relapses. Id. at 32-33. When Dr. O’Hara

evaluated Mother in April 2015, she reported relapsing three to five times

during “the past year,” by using heroin and cocaine. Id. at 33. When Dr.

O’Hara evaluated Mother again in October 2015, she reported drinking beer

and using cocaine during the previous month. Id. at 34. Finally, when Dr.

O’Hara evaluated Mother in June 2016, she reported consuming “90

Neurontin tablets over three days” in March 2016, as well as “taking an

unprescribed Benzodiazepine.”2 Id. at 34-35.

____________________________________________


2
  Mother also was charged with driving under the influence (“DUI”). OCYF
presented the testimony of Officer Greg Early, of the Green Tree Police
(Footnote Continued Next Page)


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      Dr. O’Hara also expressed concern that Mother remains in contact with

Father, despite numerous allegations of domestic violence.       Id. at 40-41.

Dr. O’Hara explained that he reviewed several PFA petitions and police

reports, and that “[Mother] has alleged that [Father] had tackled her,

grabbed her, slammed her head off concrete, punched her in the face with a

closed fist, kicked her, grabbed her by her neck, strangled her, threw her to

the ground. That these instances have been witnessed by the children.” Id.

at 39-40.    Mother often recants her allegations of domestic violence, “and

then seems to blame the county and externalize all responsibility for why

persons are seeing domestic violence as a relevant issue here.” Id. at 41.

      Concerning Mother’s relationship with Child, Dr. O’Hara testified that

Mother did well during her initial interactional evaluation in August 2014.

Id. at 52. “She showed affection, she interacted well with [Child]. She was

calm and relaxed.         She was . . . attentive, and I thought that [Child]

interacted well with her mother as well.”         Id.   However, Mother’s most

recent interactional evaluation, in February 2016, “was one of the most

difficult interactionals I have observed in my approximately 15 years doing

these evaluations.” Id. at 51. He explained, “[Mother] cried for much of the

interactional with [Child]. I thought that she may be under the influence of

a substance as a result of her being very agitated and tangential.”     Id. at

                       _______________________
(Footnote Continued)

Department, who testified that Mother was arrested and charged with DUI
on March 4, 2016. N.T., 9/23/16, at 5-7.



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51-52. Dr. O’Hara did not observe any evidence of an attachment between

Mother and Child.3 Id. at 79.

       In addition, Dr. O’Hara testified that Child is thriving in the care of her

foster parents, with whom she has lived for over thirty months. Id. at 83.

Dr. O’Hara explained that he evaluated Child with her foster parents on

three occasions. Id. at 50. “During her interactions with her foster parents

[Child] is autonomous, euthymic, curious and frequently directs herself to

her foster parents. They also, in my opinion, have excellent parenting skills

as well.”   Id. at 49.     Removing Child from the care of her foster parents

would be “very psychologically detrimental for her.” Id. at 83.

       Ultimately, Dr. O’Hara opined that Child should be adopted by her

foster parents. He summarized his conclusions as follows.

            [Child], in my opinion, due to her circumstances, she is in
       need of permanency. Permanency is the foundation of a lot of
       psychological developmental themes, including autonomy and
       independence and identity.

____________________________________________


3
  Foster care home supervisor, Danielle Schmitt, provided a more positive
description of Child’s relationship with Mother.

       I think they have a nice relationship.        [Child] does go to
       [Mother] at the beginning of visits typically. [Mother] is very
       understanding if [Child] has a difficult time when we first get to
       visits. If she hesitates a little bit, she usually gives her some
       space and let’s [sic] her adjust to the surroundings and things
       like that. And then she will go to her. She is very loving
       towards [Child] during the visits.

N.T., 9/23/2016, at 95.



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             I’ve assessed [Child’s foster parents] as possessing a
      significant amount of stability, strong parenting skills, and in my
      opinion [Child] has consistently exhibited security and
      attachments with her foster parents over time.

            I don’t have evidence that [Mother] has the stability
      necessary to care for a child at this time and I don’t have
      evidence that she would be able to care for [Child’s] physical or
      psychological needs. She is easily overwhelmed. She is clearly
      not stable, as evidenced by the DUI and the use of 90 Neurontin
      over three days, which could cause serious injuries to her, and
      also render her not able to specifically be present for her child.
      She continues to remain in close contact with [Father]. She
      shows very poor parenting skills with [Child]. If [Child] were to
      be placed with her mother at this time she would be at high risk
      for domestic violence, psychological instability, substance abuse
      and homeless.

            So as a result of these factors and considerations, it’s my
      opinion within a reasonable amount of psychological certainty
      that [Child] should be adopted by her foster parents, and the
      benefit of adoption would outweigh any potential detriment in
      termination of parental rights with regard to [Father] and
      [Mother].

Id. at 56-57.

      Thus, the record confirms that terminating Mother’s parental rights

would best serve Child’s needs and welfare. Mother is incapable of parenting

Child safely, due to unresolved drug abuse and domestic violence concerns.

In addition, it would be psychologically detrimental to remove Child from the

care of her foster parents, with whom she has lived for nearly her entire life.

While Child has a somewhat positive relationship with Mother, it was within

the court’s discretion to conclude that the benefits of permanency through

adoption would outweigh whatever harm Child might experience if her

relationship with Mother is ended.    As this Court has stated, “a child’s life


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cannot be held in abeyance while a parent attempts to attain the maturity

necessary to assume parenting responsibilities.       The court cannot and will

not subordinate indefinitely a child’s need for permanence and stability to a

parent’s claims of progress and hope for the future.”       In re Adoption of

R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

        Before concluding our review, we note that Mother filed a reply brief in

this Court on March 31, 2017, directing our attention to our Supreme Court’s

recent holding in In Re Adoption of L.B.M., 2017 Pa. LEXIS 1150, 2017

WL 2257203 (Pa. 2017).          In L.B.M., the Court held that trial courts must

appoint counsel to represent the legal interests of any child involved in a

contested involuntarily termination proceeding pursuant to 23 Pa.C.S.A. §

2313(a).4 The Court explained that a child’s legal interests are distinct from

his or her best interests, in that a child’s legal interests are synonymous with

the child’s preferred outcome, while a child’s best interests must be


____________________________________________


4
    Section 2313(a) provides as follows.

        (a) Child.--The court shall appoint counsel to represent the
        child in an involuntary termination proceeding when the
        proceeding is being contested by one or both of the parents.
        The court may appoint counsel or a guardian ad litem to
        represent any child who has not reached the age of 18 years and
        is subject to any other proceeding under this part whenever it is
        in the best interests of the child. No attorney or law firm shall
        represent both the child and the adopting parent or parents.

23 Pa.C.S.A. § 2313(a).



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determined by the court. 2017 Pa. LEXIS 1150 at 2-3; 2017 WL 2257203 at

1.

      In her reply brief, Mother contends that Child had a guardian ad litem

(“GAL”) during the termination proceedings, but not legal counsel, and that

Section 2313(a) “is not satisfied by the appointment of the [GAL] even when

that GAL is an attorney.”     Mother’s Reply Brief at 1.    Mother does not

contend that this matter should be remanded for the appointment of

separate counsel, but merely contends “that the record before this Court

needs to be clear[.]” Id.

      Mother is mistaken in her interpretation of L.B.M.      This Court has

explained that case’s holding as follows.

      As a point of information, Justice Wecht's opinion in L.B.M states
      that the trial court is required to appoint a separate,
      independent attorney to represent a child’s legal interests even
      when the child’s GAL, who is appointed to represent the child’s
      best interests, is an attorney. Justice Wecht would hold that the
      interests are distinct and require separate representation. While
      Justice Wecht, joined by Justices Donohue and Dougherty,
      sought to so hold, four members of the court, Chief Justice
      Saylor and Justices Baer, Todd, and Mundy disagreed in different
      concurring and dissenting opinions with that part of the lead
      opinion's holding. Specifically, while the other justices agreed
      that the appointment of counsel for the child is required in all
      TPR cases and that the failure to do so by the trial court is a
      structural error, they did not join that part of Justice Wecht's
      opinion which sought to hold that the GAL may never serve as
      counsel for the child. Rather, such separate representation
      would be required only if the child’s best interests and legal
      interests were somehow in conflict. . . .

In re D.L.B., 2017 Pa. Super. LEXIS 436 at 14-15, 2017 WL 2590893 at 5

(Pa. Super. 2017).

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      In this case, we discern no conflict between Child’s best interests and

legal interests.   With respect to Child’s best interests, GAL, Amy Berecek,

Esquire, represented Child during the termination hearing, and GAL, Andrea

Spurr, Esquire, represents Child on appeal. Attorney Berecek supported the

termination of Mother’s parental rights during the hearing, and Attorney

Spurr supports termination in her brief to this Court. See N.T. 9/23/16, at

150-55; GAL’s Brief.

      With respect to Child’s legal interests, our review of the record does

not reveal that the GALs’ position differed from Child’s preferred outcome.

Child was just over two and a half years old at the time of termination

hearing, and it is clear that she was too young to provide any input on

whether Mother’s parental rights should be terminated.           Moreover, the

record confirms that Child has only a limited relationship with Mother. Child

is attached to her foster parents, and removing Child from her foster parents

would be “very psychologically detrimental for her.” N.T., 9/23/16, at 56,

83. Thus, we conclude that Child’s GALs represented both her best interests

and legal interests, and that this dual role did not run afoul of L.B.M.

      Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by terminating Mother’s parental rights to Child

involuntarily. We therefore affirm the court’s December 19, 2016 decree.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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