J-S10044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF M.J.A.               :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                                        :
APPEAL OF: T.J., BIOLOGICAL MOTHER      :         No. 2938 EDA 2014

                Appeal from the Order September 12, 2014
           In the Court of Common Pleas of Montgomery County
                   Orphans’ Court at No(s): 2014-A0036


IN RE: ADOPTION OF L.A.A.               :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                                        :
APPEAL OF: T.J., BIOLOGICAL MOTHER      :         No. 2939 EDA 2014

                Appeal from the Order September 12, 2014
           In the Court of Common Pleas of Montgomery County
                   Orphans’ Court at No(s): 2014-A0037


BEFORE: GANTMAN, P.J., STABILE, J., AND PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                  FILED FEBRUARY 11, 2015

     Appellant, T.J. (“Mother”), appeals from the orders entered in the

Montgomery County Court of Common Pleas Orphans’ Court, which granted

the petition of Appellees, D.J. and T.J.J. for involuntary termination of

Mother’s parental rights as to her minor children, M.J.A. and L.A.A.

(“Children”).1 We affirm.



1
  Children’s birth father is not a party to this appeal. He voluntarily
relinquished his parental rights to Children at the termination hearing on
September 11, 2014.
_____________________________

*Retired Senior Judge assigned to the Superior Court.
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      The relevant facts of this case are as follows. Children were born in

2008 and 2009.        Since June 2010, they have lived exclusively with

Appellees, Mother’s uncle and aunt, under an agreement with Mother giving

them sole legal and physical custody of Children.       Mother has a history of

hard drug abuse, primarily heroin, since the age of twelve. Mother has been

incarcerated repeatedly in 2010, 2011, 2013, and 2014.           For the last two

and one-half years, Mother spent a total of eight hours of supervised

visitation with Children. Mother provided no housing or financial support for

Children during this entire time.

      Procedurally,   on   March    17,   2014,   Appellees   filed   petitions   for

involuntary termination of Mother and birth father’s parental rights, based

on 23 Pa.C.S.A. 2511(a)(1)-(2) and (b). On September 11, 2014, the court

held a termination hearing. Following the hearing, on September 12, 2014,

the court granted the petitions and terminated Mother’s parental rights per

Sections 2511(a)(1)-(2) and (b). Mother timely filed a notice of appeal and

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2(ii).

      Mother raises the following issues for our review:

         DID THE TRIAL COURT COMMIT ERROR IN TERMINATING
         THE PARENTAL RIGHTS OF MOTHER, PURSUANT TO 23
         PA.C.S.A. [§] 2511(A)(1), WHERE THE TESTIMONY AT
         TRIAL DEMONSTRATED THAT MOTHER HAD MADE
         COURAGEOUS EFFORTS TO IMPROVE HERSELF AS A
         PERSON AND A PARENT AND AT NO POINT EVIDENCED A
         SETTLED PURPOSE OF RELINQUISHING HER PARENTAL


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         CLAIM OR FAILED OR REFUSED TO PERFORM PARENTAL
         DUTIES?

         DID THE TRIAL COURT COMMIT ERROR IN TERMINATING
         THE PARENTAL RIGHTS OF MOTHER, PURSUANT TO 23
         PA.C.S.A. [§] 2511(A)(2), WHERE THE TESTIMONY AT
         TRIAL DEMONSTRATED THAT MOTHER HAD MADE
         COURAGEOUS EFFORTS TO IMPROVE HERSELF AS A
         PERSON AND A PARENT AND THAT THE CAUSES OF ANY
         INCAPACITY ON THE PART OF MOTHER HAD BEEN, OR
         WERE IN THE PROCESS OF [BEING], REMEDIED?

         DID THE TRIAL COURT [ERR] BY INVOLUNTARILY
         TERMINATING MOTHER’S PARENTAL RIGHTS WHERE THE
         FACTS DID NOT ESTABLISH BY CLEAR AND CONVINCING
         EVIDENCE THAT SUCH TERMINATION WAS IN THE BEST
         INTERESTS OF THE CHILDREN AS CONTEMPLATED BY 23
         PA.C.S.A. [§] 2511(B).

(Mother’s Brief at 2).

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent
         evidence, and whether the trial court gave adequate
         consideration to the effect of such a decree on the welfare
         of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand.       …    We must
            employ a broad, comprehensive review of the record
            in order to determine whether the trial court’s
            decision is supported by competent evidence.

         In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en

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         banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
         (internal citations omitted).

            Furthermore, we note that the trial court, as the
            finder of fact, is the sole determiner of the credibility
            of witnesses and all conflicts in testimony are to be
            resolved by [the] finder of fact. The burden of proof
            is on the party seeking termination to establish by
            clear and convincing evidence the existence of
            grounds for doing so.

         In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
         2002) (internal citations and quotation marks omitted).
         The standard of clear and convincing evidence means
         testimony that is so clear, direct, weighty, and convincing
         as to enable the trier of fact to come to a clear conviction,
         without hesitation, of the truth of the precise facts in issue.
         In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
         may uphold a termination decision if any proper basis
         exists for the result reached. In re C.S., 761 A.2d 1197,
         1201 (Pa.Super. 2000) (en banc). If the court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even if the record could support an
         opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
         (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

      Section 2512 governs who may bring a petition to terminate parental

rights, and what the petition must contain, as follows:

         § 2512. Petition for involuntary termination

         (a) Who may file.─A petition to terminate parental
         rights with respect to a child under the age of 18 years
         may be filed by any of the following:

            (1) Either parent when termination is sought with
            respect to the other parent.

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           (2)   An agency.

           (3) The individual having custody or standing in loco
           parentis to the child and who has filed a report of
           intention to adopt required by section 2531 (relating to
           report of intention to adopt).

           (4) An attorney representing a child or a guardian ad
           litem representing a child who has been adjudicated
           dependent under 42 Pa.C.S.A § 6341(c) (relating to
           adjudication).

        (b) Contents.─The petition shall set forth specifically
        those grounds and facts alleged as the basis for
        terminating parental rights. The petition filed under this
        section shall also contain an averment that the petitioner
        will assume custody of the child until such time as the child
        is adopted. If the petitioner is an agency it shall not be
        required to aver that an adoption is presently
        contemplated nor that a person with a present intention to
        adopt exists.

                                 *    *    *

23 Pa.C.S.A. § 2512. If the petitioner is not an agency, then the petition

must include “an averment that an adoption is presently contemplated or

that a person with a present intention to adopt exists.” In re Adoption of

J.F.D., 782 A.2d 564, 567 (Pa.Super. 2001). In any event, the burden of

proof remains with the petitioning party, who must establish valid grounds

for termination by clear and convincing evidence.    In re J.L.C., 837 A.2d

1247, 1251 (Pa.Super. 2003).

     Appellees sought termination of Mother’s parental rights on the

following grounds:

        § 2511. Grounds for involuntary termination

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           (a) General Rule.―The rights of a parent in regard to a
           child may be terminated after a petition filed on any of the
           following grounds:

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

              (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 control of the
           parent. With respect to any petition filed pursuant to
           subsection (a)(1), (6) or (8), the court shall not consider
           any efforts by the parent to remedy the conditions
           described therein which are first initiated subsequent to
           the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1)-(2), (b).      “Parental rights may be involuntarily

terminated where any one subsection of Section 2511(a) is satisfied, along

with consideration of the subsection 2511(b) provisions.” In re Z.P., supra

at 1117.

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

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        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…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.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

     Under Section 2511(b), the court must consider whether the child’s

needs and welfare will be met by termination.       In re C.P., 901 A.2d 516

(Pa.Super. 2006).

        Intangibles such as love, comfort, security, and stability
        are involved when inquiring about the needs and welfare of
        the child. The court must also discern the nature and
        status of the parent-child bond, paying close attention to
        the effect on the child of permanently severing the bond.

Id. at 520 (internal citation omitted). “In this context, the court must take

into account whether a bond exists between child and parent, and whether

termination     would   destroy   an   existing,   necessary   and   beneficial

relationship.” In re Z.P., supra at 1121.

     The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state may properly be

considered unfit and have her parental rights terminated. In re B.L.L., 787

A.2d 1007 (Pa.Super. 2001). This Court has said:

              There is no simple or easy definition of parental

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           duties. Parental duty is best understood in relation
           to the needs of a child.        A child needs love,
           protection, guidance, and support. These needs,
           physical and emotional, cannot be met by a merely
           passive interest in the development of the child.
           Thus, this court has held that the parental obligation
           is a positive duty which requires affirmative
           performance.

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

           Because a child needs more than a benefactor,
           parental duty requires that a parent exert himself to
           take and maintain a place of importance in the
           child’s life.

        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of…her ability, even in difficult circumstances.
        A parent must utilize all available resources to preserve
        the parental relationship, and must exercise reasonable
        firmness in resisting obstacles placed in the path of
        maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with [the child’s] physical
        and emotional needs.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations and quotation marks omitted).

“[A] parent’s basic constitutional right to the custody and rearing of…her

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

child’s right to have proper parenting and fulfillment of his…potential in a

permanent, healthy, safe environment.” Id. at 856.


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      Regarding Mother’s complaints on appeal, the Orphans’ court reasoned

as follows:

         Frankly, as I listen to this evidence, I really don’t conclude
         that there were any obstacles placed in mother’s path. I
         know she says she didn’t feel welcome. I know she says
         that she wasn’t encouraged. There’s a difference between
         not feeling encouraged and having obstacles placed in your
         path. So I really don’t think that that aspect of the law
         matters.

                                  *    *    *

         I don’t have any difficulty concluding that you have failed
         to perform parental duties as required by children of the
         ages of yours between the time of 2010 -- really from the
         time they were born up until the present. And these
         children are of tender years even now. I wrote down the
         exact, and I think it was 6.8 and 5.7 in months or
         something like that. That period of time up through age
         six is such a critical, critical, critical time. They are
         soaking everything up like a sponge, and they need so
         much help and guidance and direction, and all that stuff.

         The truth of the matter is you haven’t really provided them
         anything. You may have wanted to, but between your
         drug addiction and everything else that’s impacting you,
         you just didn’t do it. So you did fail to do it, and there’s
         certainly no other way to conclude that looking at the facts
         here.

                                  *    *    *

         Now, what ought to be done under the circumstances
         (when you’re a parent with a child of the ages your
         children are) is what is in their best interest. The lifestyle
         that you chose for yourself in those years was not in your
         children’s best interest. The drugs took over your life, and
         it grossly affected your judgment, and it affected your
         ability to be a parent. That’s what we mean by incapacity,
         and it’s a continuing one. And then it says at the very
         end, “and will not be remedied.” Now, it doesn’t mean
         forever, but it does mean within a reasonable time.

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       What’s a reasonable time?          Reasonable is always
       determined by the circumstances and frequently by the
       ages of the children. So, again, I’m dealing with children
       who are five and six, closer to six and seven, and time is
       running out for them to receive the parental care that they
       need. …

                               *     *      *

       What does that incapacity consist of? By your admission,
       you’ve been abusing drugs since the age of 12. That
       would be 15 years. By your admission, six convictions,
       two inpatient programs, three outpatient programs, an AA
       program, an NA program that you didn’t like or you didn’t
       feel was doing you any good, and a drug court, which I am
       very familiar with because I've gone and watched those
       graduations. And I know that the very few people who get
       selected to go in it, who are very fortunate to be selected
       to go in it, get what’s a very intensive supervision from
       their probation officers. You know it, too. You had much,
       much more strict and intense supervision than the normal
       person on probation and parole all designed because, hey,
       we think we can save this person. If we can get them
       through to graduation, we can turn their life around. …

       I think of all these things, all these efforts that have been
       made on your behalf. I think about the schooling that you
       were offered, good private schooling….

                               *     *      *

       But I don’t think that with what you have done in the first
       six and five years of your children’s lives allows you to say
       somewhere, maybe in a couple years, I can be a mom,
       because here’s what the law says about that: [i]f you meet
       the definitions in these sections, then the law says: [n]ow
       we look to what the best interests of the children are
       because we can’t make them wait indefinitely. Their lives
       are being formed, being shaped. They are going to be
       adults.    They are affected by that.         They need an
       upbringing. The law says that if you do the things as we
       define them here and the Court determines that it’s been
       proven by clear and convincing evidence, then, then your


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        constitutional right no longer prevails, and now we’re going
        to look at what is best for those kids.

        So I make that shift at this point, what’s best for
        [Children].   So I look at everything I heard about
        [Appellees], and I credit your honesty on this, you
        acknowledge they’ve done a great job. Even if you hadn’t,
        I know they’ve done a great job. That’s a no-brainer.
        They didn’t do it because they’re making money out of this
        or because anybody is giving them an award somewhere,
        but whatever they do is because they obviously love
        parenting, and they obviously love your children, and…they
        do.

                                *     *      *

        So those are all my rationale, my findings of fact, my
        conclusions of law. I think grounds have been made out
        under [2511](a)(1) and (a)(2).        I think it’s both an
        incapacity and neglect under Section (a)(2). I think it’s a
        failure to perform parental duties under (a)(1)….

                                *     *      *

        This matter will be listed for an adoption hearing−a final
        adoption hearing in the regular course after the appellate
        periods have run.

(N.T. Termination Hearing, 9/11/14, at 219-27).    We accept the Orphans’

court’s reasoning. The record makes clear Mother has an entrenched drug

problem that led her over many years to make poor choices in life, including

multiple incarcerations, most recently in 2014. Mother willingly gave legal

and physical custody of Children at a very early age to Appellees, who have

served as Children’s parents for over four years, meeting all parental

obligations. Mother consistently failed to assume her parental duties such

that Children believe Appellees are their real parents. The record contains


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no evidence that severing any bond that might exist between Children and

Mother would cause the Children adverse effects. The record supports the

Orphans’ court’s decision to terminate Mother’s parental rights. Accordingly,

we affirm.

       Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2015




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