J-S04002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF: M.G.B., A            :    IN THE SUPERIOR COURT OF
 MINOR                                    :         PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: J.N.L., MOTHER                :
                                          :
                                          :
                                          :
                                          :    No. 2687 EDA 2019

              Appeal from the Order Entered August 15, 2019
  In the Court of Common Pleas of Montgomery County Orphans' Court at
                         No(s): No. 2018-A0023


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                      Filed: April 15, 2020

      J.N.L. (Mother) appeals from the decree entered on August 15, 2019,

that granted the petition filed by the Montgomery County Office of Children

and Youth (OCY or Agency) seeking the involuntary termination of Mother’s

parental rights to M.G.B. (Child), born in June of 2016. We affirm.

      Child was born prematurely at 23 weeks and suffered from neonatal

complications. She spent the first six months of her life hospitalized in Kansas,

where she was born, and remains medically fragile. In May of 2017, when

the Child was ten months old, Mother took Child to Pennsylvania to visit family.

OCY first became involved with the family on May 21, 2017, when Child was

hospitalized for acute alcohol poisoning after Mother mixed vodka instead of

water with formula and fed it to Child through her G-tube.        OCY obtained

custody of Child on June 13, 2017, when she was released from the hospital,

and placed her in the care of her pre-adoptive foster mother at that time.
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Mother was incarcerated from June 2017 through December 2017 on charges

related to the vodka incident.

       On May 3, 2019, the Agency filed its petition for termination of Mother’s

parental rights and alleged grounds under 23 Pa.C.S. § 2511(a)(2), (8), (9)

and (b). The trial court provided a further review of the factual and procedural

history of this case and its reasoning for terminating Mother’s parental rights

by attaching the notes of testimony from the August 14, 2019 hearing to its

Pa.R.A.P. 1925(a) opinion.1 Specifically, the court determined that the Agency

had proven that Mother’s parental rights should be terminated pursuant to

sections (a)(2), (8), (9) and (b). With regard to subsection (a)(2), the court

explained:

       [T]here have been … three periods of time with respect to …
       [M]other. Initially, after … [C]hild was in placement, …[M]other
       was incarcerated on the charges related to providing vodka to …
       [C]hild and injuring … [C]hild. … [M]other was incarcerated until
       December of 2017.

             Thereafter, between December [2017] and approximately
       April of 201[8], the [A]gency was concerned about the existing
       court orders that ordered no contact with … [C]hild and was
       constrained from providing visits and actively working towards
       reunification with … [C]hild and was in a bit of a quandary, as the
       statute both encouraged them to provide reunification efforts, but
       the court orders restricted them from providing visits.

             But beginning after April of 2018, the [A]gency did work
       actively with … [M]other toward reunification, and Ms. Spano[, an
       OCY caseworker,] testified candidly that … [M]other made
____________________________________________


1 At the same hearing, J.B.’s (Father) parental rights to Child were also
terminated. Father filed a separate appeal with this Court, which is addressed
in a separate memorandum at No. 2688 EDA 2019.

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     progress and that the quality of the visits with … [C]hild were
     good, that … [M]other loves … [C]hild and had more than
     satisfactory visits with … [C]hild when she had visits….

           [B]efore January of [20]19, the visits became unsupervised
     with [M]other, and she had a period of time where she had
     unsupervised visits….       [V]isits prior to March had been
     unsupervised. But … in February of 2019, ... [M]other became
     the subject of a protection from abuse order brought by [Mother’s
     paramour,] Mr. [J.] … [Mother] acknowledged in her testimony
     [that] there were several interactions with the police related to
     domestic altercations between herself and Mr. [J.] prior to the
     protection from abuse order being obtained, and in the context of
     the protection from abuse order, she was evicted from the
     residence she shared with Mr. [J.]. That event caused her [to] no
     longer … have a place where she could have visits at her home,
     the home she shared with a friend for a while. The friend did not
     wish to have background checks conducted by the [OCY]. So that
     home could not be qualified as a place for unsupervised visits.

           Consequently, in February of 2019, only one visit occurred
     of four offered, it appears. The first visit, in March of 2019, was
     also canceled as there was no place to have the visit. And in early
     March of 2019, a plan was made to resume visits at the [foster
     agency,] The Village.

            Thereafter, from March 26th of 2019 through July 30th of
     2019, weekly visits were offered. Nineteen weekly visits were
     offered, of which [M]other attended seven. Four visits were
     canceled or not confirmed by … [M]other. Five visits were
     confirmed but [M]other failed to show. And three additional visits
     that [M]other attended, she was significantly late, as much as
     forty-five minutes or one and a half hours late. So her attendance
     between March of 2019 and July of 2019 is of great concern to the
     [c]ourt[.] … [A]lthough she testified that she had trouble with
     transportation and issues with jobs[,] and on some occasions she
     told [her] caseworker of issues like that and on one occasion she
     wasn’t feeling well, nevertheless, the failure to attend so many
     offered visits in that period gives [this court] great concern as to
     whether [M]other has a capacity to meet …[C]hild’s needs on a
     regular ongoing basis, on a 24/7 basis.




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          Unfortunately, [M]other never progressed to the
     unsupervised overnight visits that were contemplated by [OCY],
     and [OCY] cannot establish that she has that capacity.

           Furthermore, it was established in the testimony … that …
     [M]other was not candid with her evaluators about her history of
     drug use, which she acknowledged she was not candid [about],
     and while she was having in-home services for the period between
     December of 2017 and February of 2019 that helped her both with
     her drug and alcohol issues and stability, after February of 2019[,]
     she has not continued to have mental health support or drug and
     alcohol support.     This raises additional concerns that are
     consistent with the concerns raised by her failure to be able to
     continue to make visits on a regular basis, on a weekly basis with
     … [C]hild.

           [Mother is] optimistic that she has a job beginning in
     September, but her testimony was a bit evasive and less than
     candid about her employment and her ability to continue to afford
     the apartment where she’s living. And her testimony – some of
     her testimony was contradicted by Mr. [J.]. And [this court]
     find[s] Mr. [J.], who is an unbiased witness and who was called
     here under subpoena and has no interest in the outcome of this
     case, was more credible than [Mother’s] testimony on the issues
     where they differed, including on her mental health status in
     February of 2019 and thereafter.

           Given that she was not candid with her mental health and
     drug and alcohol evaluators and is no longer in treatment, … and
     has failed to make visits repeatedly and [has] been late for visits
     repeatedly, and given her lack of candor to the [c]ourt on many
     issues, [this court] conclude[s] that [OCY] has established by
     clear and convincing evidence an incapacity to meet … [C]hild’s
     needs that has caused … [C]hild to be without essential parental
     care, control, or some assistance necessary for her physical and
     mental well-being.

           [This court] also conclude[s] that the conditions that led to
     the incapacity of … [M]other will not be remedied in a reasonable
     time frame.

N.T., 8/14/19, at 258-63.




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      The trial court also explained its reasoning relating to its conclusion that

the Agency had proven that subsections (a)(8) and (a)(9) applied.

Additionally, the court discussed the facts and reasoning pursuant to section

(b), stating:

           In this case, the testimony has established that with respect
      to … [M]other, there is clearly affection and a bond between
      [Mother] and … [C]hild. However, [Mother] has not lived with …
      [C]hild for more than a period of approximately four months of …
      [C]hild’s three years – more than three years now. The first six
      months she was a parent present at the hospital while … [C]hild
      was being cared for 24/7 in the hospital, but … [C]hild was only in
      her full-time care for a period of four months, ending with the
      tragic events that severely injured … [C]hild and resulted in her
      hospitalization and [M]other’s incarceration on very serious
      charges.

          Thereafter, [M]other simply has not made progress sufficient
      to permit the [A]gency to have confidence in her stability, her
      employment, her housing stability, … her mental health stability,
      and her stability regarding drug and alcohol use. All the issues
      that were from the beginning of the case which [were] the
      [A]gency’s concerns, some of which may have led to the tragic
      mistake or incident that caused … [C]hild to ingest vodka,
      continue to be concerns today and have not been adequately
      resolved.

           … [M]other has not provided a home for … [C]hild or provided
      that stability, love and affection that can give a secure
      attachment. While there’s an attachment and affection, the
      [c]ourt finds that it has not been established sufficient with the
      secure attachment.

          In the meantime, … [C]hild has been raised in a home that is
      described as loving and secure where she is bonded and attached.

           Under the circumstances of this case, while it’s always difficult
      to terminate the rights of a birth parent who has been involved
      with … [C]hild and who loves … [C]hild and whom … [C]hild loves,
      the [c]ourt concludes that under all of the circumstances,


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      termination of parental rights so … [C]hild may remain secure,
      safe, and loved in a loving home and achieve permanence will not
      be detrimental to … [C]hild.

          Therefore, from all of the evidence and testimony, [this court]
      conclude[s] that termination of … [M]other’s parental rights best
      serves the needs and welfare of [Child] and will not irreparably
      harm her.

Id. at 265-67.

      On appeal, Mother raises the following issues for our review:

      A. Did the trial court commit an error of law and/or abuse its
         discretion when it held that [the Agency] had proven by “clear
         and convincing evidence” that [Mother’s] parental rights should
         be terminated pursuant to 23 Pa.C.S. [§] 2511(a)(2) and 23
         Pa.C.S. [§] 2511(a)(8) where … [M]other had made, and was
         making, substantial progress on her Family Services Plan(s)
         goals as proven by the testimony and evidence produced at the
         hearing[?]

      B. Did the trial court commit an[] error of law and/or abuse its
         discretion when it terminated [Mother’s] parental rights
         pursuant to 23 Pa.C.S [§] 2511(b) on the basis that the
         developmental, physical, emotional needs and welfare of …
         [C]hild [were] best served by termination of … [M]other’s rights
         where she had made, and was making[] substantial progress
         on the Family Services Plan(s)[?]

Mother’s brief at 6.

      We review an order terminating parental rights in accordance with the

following standard:

            When reviewing an appeal from a decree terminating
      parental rights, we are limited to determining whether the
      decision of the trial court is supported by competent evidence.
      Absent an abuse of discretion, an error of law, or insufficient
      evidentiary support for the trial court’s decision, the decree must
      stand. Where a trial court has granted a petition to involuntarily
      terminate parental rights, this Court must accord the hearing
      judge’s decision the same deference that we would give to a jury
      verdict. We must employ a broad, comprehensive review of the


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      record in order to determine whether the trial court’s decision is
      supported by competent evidence.

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879

A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:

      The 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. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

The trial court is free to believe all, part, or none of the evidence presented

and is likewise free to make all credibility determinations and resolve conflicts

in the evidence.   In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004).           If

competent evidence supports the trial court’s findings, we will affirm even if

the record could also support the opposite result. In re Adoption of T.B.B.,

835 A.2d 387, 394 (Pa. Super. 2003).

      We are guided further by the following: Termination of parental rights

is governed by section 2511 of the Adoption Act, which requires a bifurcated

analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating parental
      rights. 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 emotional bond between

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      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) (citing 23 Pa.C.S. § 2511,

other citations omitted). The burden is upon the petitioner to prove by clear

and convincing evidence that the asserted grounds for seeking the termination

of parental rights are valid. R.N.J., 985 A.2d at 276.

      With regard to section 2511(b), we direct our analysis to the facts

relating to that section. This Court has explained that:

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
      such as love, comfort, security, and stability are involved in the
      inquiry into the needs and welfare of the child.” In addition, we
      instructed that the trial court must also discern the nature and
      status of the parent-child bond, with utmost attention to the effect
      on the child of permanently severing that bond. Id. However, in
      cases where there is no evidence of a bond between a parent and
      child, it is reasonable to infer that no bond exists. In re K.Z.S.,
      946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
      of the bond-effect analysis necessarily depends on the
      circumstances of the particular case. Id. at 763.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

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

to sections 2511(a)(2), (8), (9) and (b). We need only agree with the trial

court as to any one subsection of section 2511(a), as well as section 2511(b),

in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).   Here, we analyze the court’s decision to terminate under section

2511(a)(2) and (b), which provide as follows:



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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:

                                   ***

           (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. § 2511(a)(2), (b).

     We first address whether the trial court abused its discretion by

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

     In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
     2511(a)(2), the following three elements must be met: (1)
     repeated and continued incapacity, abuse, neglect or refusal; (2)
     such incapacity, abuse, neglect or refusal has caused the child to
     be without essential parental care, control or subsistence
     necessary for his physical or mental well-being; and (3) the
     causes of the incapacity, abuse, neglect or refusal cannot or will
     not be remedied.




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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). “The grounds for termination due to parental incapacity that cannot

be remedied are not limited to affirmative misconduct. To the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

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

omitted).

      Here, in regards to section 2511(a)(2), Mother argues that the trial court

abused its discretion in failing to accept her testimony pertaining to the steps

she has taken to substantially comply with her Family Service Plan (FSP) goals

and regarding her ability to care for the Child moving forward. Mother’s brief

at 17. Mother claims that she “has taken all steps necessary to be reunited

with her child and [to] make herself the best person she can be to care for

her child.” Id. at 18. She avers that she “took parenting classes while in

prison, obtained evaluations, counseling and treatment[,] and attended a

feeding clinic for the [C]hild….”   Id. (citations to record omitted).   Mother

insists that “she can currently care for the [C]hild and has housing, clothes

and toys.” Id. (citations to record omitted). These assertions are insufficient

to convince this Court that the trial court erred in ordering the termination of

Mother’s parental rights.

      According to OCY, “Mother has exhibited a repeated and continued

incapacity to parent … Child for a period of two years, due to ongoing

instability, failure to maintain recommended mental health and substance


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abuse treatment, failure to maintain consistent visitation with … Child[,] and

failure to demonstrate an ability to meet … Child’s needs.” OCY’s brief at 11.

OCY recognizes that Mother made progress from April 2018 through February

2019, but then reports that Mother “completely destabilized” at that time. Id.

      She lost her housing and stopped visiting with … Child on a
      consistent basis from March 2019 through July 2019. Mother’s
      inability to attend visits with … Child consistently demonstrates
      her inability to be the stable, available caregiver that … Child
      needs. Mother obtained new housing and changed employment
      several times, but was just in the beginning stages of potentially
      regaining stability at the time of the hearing.

Id.   Mother also stopped attending mental health and drug and alcohol

treatment in February of 2019. Additionally, OCY states:

      Mother has not been able to meet … Child’s needs for stability,
      security, and permanency. Mother’s incapacity to care for … Child
      will not be remedied within a reasonable amount of time. Mother
      has already had two years while … Child has been living in foster
      care to demonstrate her ability to resolve her incapacities. Mother
      has either been unable or unwilling to maintain consistent contact
      with … Child, consistently attend mental health and drug and
      alcohol treatment or achieve the stability needed to meet all of
      the needs of … Child. Any additional length of time that … Child
      would be forced to remain in foster care and wait still longer for
      Mother to remedy her incapacities is not a reasonable amount of
      time. … Child’s need for permanency is urgent….

Id. at 12-13. Finally, OCY notes that although it has attempted during the

two years of Child’s placement “to assist Mother in resuming parental

responsibility, those efforts failed and … Child cannot be made to wait still

longer while Mother continues to work on her goals.” Id. at 13.

      Mother attempts to deflect the blame from herself for her failure to

comply with her FSP goals. She points out that there was a no contact order


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in place at the time she was released from prison and claims that no

reunification efforts were put in place by the court until June of 2018, so she

could not “even attempt to be in compliance” until then. Mother’s brief at 16.

This does not excuse her failure, however, to maintain regular visits with Child

and to meet her FSP goals going forward. As counsel for Child stated:

      After a slow start[] due to her incarceration, Mother began to
      progress with her goals. However, Mother then sabotaged herself
      by having several domestic incidents with her paramour, one of
      which resulted in a PFA being filed against her. From that time
      on, Mother became inconsistent with visits, lost her stable
      housing, and stopped attending mental health and drug and
      alcohol treatment. Mother even failed to attend court hearings,
      including the protection from abuse hearing.

Child’s brief at 16-17 (unnecessary capitalization omitted). We deem the trial

court’s determination under section 2511(a)(2) to be well-supported by the

record, and we discern no abuse of discretion.

      As for the trial court’s analysis under section 2511(b), Mother argues

that the court erred in failing to consider the strong bond between her and

Child. In support of her claim, Mother avers that she and Child bonded at

birth and while at the hospital, “as evidenced by the fact that [M]other was

the only person [C]hild would take the bottle from as an infant.” Mother’s

brief at 22. She states that “the bond grew stronger and stronger” the more

Child saw her and that Child trusts her for her care. Id. While we recognize

that a bond does appear to exist between Mother and Child, see N.T.,

8/14/19, at 265 (trial court’s stating “the testimony has established that with

respect to the birth [M]other, there is clearly affection and a bond between

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[Mother] and the [C]hild”), Mother’s assertions do not outweigh the trial

court’s well thought-out determination that termination of her parental rights

best serves the needs and welfare of Child and will not irreparably harm her.

      We deem the trial court’s reasoning for its decision to terminate Mother’s

parental rights pursuant to section 2511(b) to be fully supported by the

record. Moreover, we note the following testimony of Ms. Hofer, Child’s court-

appointed attorney, when asked about her observation of Child in her foster

home:

      MS. HOFER:        She is very happy. She appears very happy in
                        her home. She gets along very well with her
                        foster mother and her foster brother. She
                        seems very happy there.

                        The children are bonded well together.      They
                        play well together.

                        The foster mom seems very attentive to her
                        needs. She just seems—you can tell it’s a
                        loving, stable home. I was glad to see her
                        there.

N.T., 8/14/19, at 270.      Ms. Hofer added that, given Child’s age, “the

presumption would be she would want to stay with a loving and stable

environment where her needs are met, and I believe that’s where she is.” Id.

at 271.   The foster mother “attends to … [C]hild’s physical needs as she

receives intensive medical care, treatment, and evaluation.” Child’s brief at

26-27. Child has bonded with the foster mother and “is thriving with her[,] …

[and] she looks to her for support and security.” Id. at 27. The foster mother




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“is ready, willing, and able to parent [C]hild, and she wants to have … Child

be a permanent part of the family.” Id.

      OCY also concurs in the trial court’s determination:

      Mother has missed numerous visits since February 2019 and has
      not been a stable, consistent caregiver for … Child. … Child has
      been placed in a loving foster home and has developed a secure,
      loving bond with her foster mother over the last two years. …
      Child has made substantial progress in her development since
      being placed in the foster home. Consequently, the trial court
      properly concluded Child’s needs would best be met by
      termination of Mother’s parental rights.

OCY’s brief at 19. We ascertain no abuse of discretion or error of law by the

trial court.

      Accordingly, we affirm the decree terminating Mother’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/20




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