J-S55013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: L.J.L.C., A            :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.C.B., MOTHER                  :
                                               :
                                               :
                                               :
                                               :   No. 700 MDA 2017

                Appeal from the Decree Entered March 23, 2017
               In the Court of Common Pleas of Lancaster County
                      Orphans’ Court at No(s): 2342-2016


BEFORE:      DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                            FILED SEPTEMBER 25, 2017

        Appellant, T.C.B., (“Mother”), appeals from the decree involuntarily

terminating her parental rights to L.J.L.C. (“Child”) pursuant to the Adoption

Act, 23 Pa.C.S. § 2511(a) and (b). We affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

        Mother and A.L.C. (“Father”) are the parents of Child who was born in

August 2015.       They were never married.         Child was born suffering from

opioid withdrawal, and a referral was made to the Lancaster County Children

and Youth Social Service Agency (“Agency”) with information that indicated

Mother was using drugs, had unstable mental health, and that there was

domestic violence occurring between Mother and Father. More specifically,


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Mother tested positive for opioids a month before Child’s birth and Mother

and Father engaged in a number of arguments while at the hospital for

Child’s birth.

        The Agency opened an assessment of the family and made repeated

attempts to meet with the parents.1              On one occasion, Mother left the

hospital before a visit and did not return for almost an hour.            When the

parents later learned that Child would be transferred to a neonatal intensive

care unit (“NICU”), Mother reacted violently. She threw items in her hospital

room and slammed her hospital bed against the wall.              The Agency made

three unsuccessful attempts to speak with Mother by telephone.

        Mother was discharged on August 30, 2015, but Child remained in the

NICU.     Mother’s contact with Child from the time of her discharge until

Child’s discharge was sporadic, including five days in September when she

had no contact with him.          In addition, Mother’s contacts with Child were

monitored due to the ongoing domestic violence concerns, as well as the

quality of care Mother provided Child.           More specifically, on two occasions

Mother declined to feed Child, and woke him although instructed not to do

so.


____________________________________________


1
   The Agency first became involved with Mother in 2008 after similar
allegations were made involving an older son she had had with a different
father. After the child’s safety was assured the reports were closed. That
child is currently living with his father.




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        Because of these ongoing concerns, Child was discharged, on October

24, 2015, to the custody of the Agency. On November 9, 2015, Child was

adjudicated dependent, and placed in a resource home where he has

remained. The approved child permanency plan included a primary goal of

reunification, and a concurrent goal of adoption.          Both parents were

provided with goals under the plan. Mother’s plan included goals regarding

her mental health, drug abuse, domestic violence, parenting, financial

stability, and safe housing.

        Thereafter, permanency review hearings were held regarding Mother’s

progress on her goals. On November 7, 2016, the Agency filed petitions to

terminate (“TPR Petition”) both Mother’s and Father’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). 2 On December

5, 2016 the Orphans’ Court held a permanency review hearing.            At that

time, the court heard testimony from the Agency’s caseworker assigned to

the family regarding Mother’s progress toward her goals, and from the

court-appointed special advocate (“CASA”) for Child.        At the end of the

hearing, the court concluded that Mother made minimal progress on her

plan, and that legal and physical custody of Child would remain with the

Agency.



____________________________________________


2
    Father voluntarily relinquished his parental rights on March 23, 2017.




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      The Orphans’ Court held an evidentiary hearing regarding the TPR

petition on March 6, 2017.     The caseworker assigned to the family, and a

caseworker who observed Mother’s visitations with Child, testified for the

Agency.    The court also heard an update from Child’s CASA in regard to

Child’s current status within the resource home.      Although Mother did not

present any testimony, her counsel did inform the court that the parties

reached a stipulation regarding one of several unsuccessful discharge reports

from mental health treatment which had been sent in error.          See N.T.,

3/6/17, at 33-34. Following the conclusion of this testimony the Orphans’

Court took the matter under advisement.

      By opinion and decree entered on March 23, 2017, the Orphans’ Court

terminated Mother’s parental rights pursuant to 23 Pa.C.S. §2511(a)(1),(2),

(5), (8), and (b). This timely appeal by Mother follows.

ISSUES ON APPEAL

      Mother raises the following issues on appeal:

          I. Did the [Orphans’ Court] err and abuse its discretion in
             terminating the parental rights of Mother by failing to
             give proper weight to Mother’s efforts to complete the
             reunification plan?

          II. Did the [Orphans’ Court] err and abuse its discretion in
              terminating the parental rights of Mother by failing to
              give proper weight to the relationship and bond
              between Mother and [Child]?

Mother’s Brief at 7.




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LEGAL ANALYSIS

      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.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse

of discretion only upon demonstration of “manifest unreasonableness,

partiality, prejudice, bias, or ill-will.”   Id.   We may not reverse, however,

“merely because the record would support a different result.” In re T.S.M.,

71 A.3d 251, 267 (Pa. 2013) (citation omitted).

      We give great deference to trial courts that often have first-hand

observations of the parties spanning multiple hearings. Id. The Orphans’

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).          In

addition, in order to affirm the termination of parental rights, this Court need

only agree with any one subsection under Section 2511(a).            See In re

B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

      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). We


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have explained that “[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. (citations omitted).

      Termination Pursuant to 2511(a)(1)

      Section 2511(a)(1) provides that the trial court may terminate

parental rights if the Petitioner establishes that for six months, the parent

demonstrated a settled intent to relinquish a parental claim or a refusal or

failure to perform parental duties:

      a)    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 has evidenced a settled purpose of
                 relinquishing parental claim to a child or has
                 refused or failed to perform parental duties.


23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as

requiring the Petitioner to demonstrate a settled intent to relinquish a

parental claim to a child or a refusal or failure to parent:

      To satisfy the requirements of section 2511(a)(1), the moving
      party must produce clear and convincing evidence of conduct,
      sustained for at least the six months prior to the filing of the
      termination petition, which reveals a settled intent to
      relinquish parental claim to a child or a refusal or failure to
      perform parental duties.




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In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

         This Court has defined “parental duties” in general as the obligation to

affirmatively and consistently provide safety, security and stability for the

child:
            There is no simple or easy definition of parental 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 … 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.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations

omitted).

         Moreover, a parent must exercise reasonable firmness in resisting

obstacles placed in the path of maintaining the parent child relationship:

            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 his or 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.

Id.

         And most importantly, “parental rights are not preserved by waiting

for   a more      suitable   or   convenient time   to   perform one’s parental

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responsibilities while others provide the child with her physical and

emotional needs.” Id.

       In the instant case, the Orphans’ Court properly concluded that the

Agency met the requirements of Section 2511(a)(1).        The Orphan’s Court

found that, in the relevant period prior to the Agency filing the TPR petition,

indeed for the majority of Child’s young life, Mother’s progress towards her

goals has been minimal. The court explained:

              At the time of this writing, [Child] has been in
          placement for the last 18 months of his entire 20 months
          of life, having spent the first two months in the NICU. This
          Court is concerned that forcing [Child] to remain in the
          uncertainty of placement, after almost two years already in
          placement, while continuing to wait for Mother to change,
          will be harmful to him. The requirements of 23 Pa.C.S.
          §2511(a) . . . have been met.

                                          ***

             Mother’s efforts have been minimal. In 18 months,
          Mother has not been successfully discharged from mental
          health, drug and alcohol, or domestic violence treatment,
          she had not begun or completed parenting training,[3] and
          has never secured stable income or suitable housing.
          Arguably, the only goal that Mother has made any
          progress on is her irregular attendance at weekly
          visitation.

                                          ***

             Here, Mother’s continued inability to care for [Child] or
          to complete permanency plan goals for reunification
          supports the termination decision of the Orphans’ Court.
____________________________________________


3
  The record indicates that due to Mother’s non-compliance, the drug and
alcohol treatment team never cleared her to begin parenting classes. See
N.T., 12/5/16, at 11-12.



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         This Court cannot gamble with the safety and welfare of
         [Child].     Mother has had ample opportunities to
         demonstrate her ability to be an acceptable parent but has
         failed to do so.

Orphans’ Court Opinion, 3/23/17, at 11-13.

      Mother summarizes her argument with regard to the Orphans’ Court

conclusion as follows:

             The [Orphans’ Court] erred and abused its discretion by
         failing to give appropriate weight to Mother’s efforts to
         complete the plan for reunification, including evidence that
         she was in counseling for mental health and domestic
         violence; was addressing her drug addiction through
         methadone treatment; she had secured employment; the
         visits between Mother and [Child] had improved; and there
         was evidence of a bond and positive relationship between
         Mother and [Child].

Mother’s Brief at 11. According to Mother, “she had made progress on the

Plan and could have completed it if the [Orphans’ Court] had given her more

time. Id. at 9.

      Our review of the record refutes Mother’s claims.     We find that her

arguments focus on the credibility of the witnesses, a determination that we

cannot disturb on appeal.        In re M.G., supra.         Although Mother

characterizes portions of the testimony of the Agency’s witnesses as

demonstrating more than minimal progress, and again notes the stipulation

entered with regard to an error in one report, the weight accorded the

totality of the testimony presented was in the exclusive province of the

Orphans’ Court as fact finder. Id. In addition, although there was evidence

that most recently Mother’s visits with Child have improved and she finally


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completed a psychiatric evaluation, “the court shall not consider any efforts

by the parent to remedy the conditions described [in subsection (a)(1)]

which are first initiated subsequent to the giving of the notice of the filing of

the [TPR] petition.” 23 Pa.C.S. § 2511(b).

      Accordingly, the court did not abuse its discretion in terminating

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), and we need

not consider the other subsections under Section 2511(a). B.L.W., supra.

Termination Pursuant to Section 2511(b)

      We also agree with the Orphans’ Court’s determination that the

Agency met its burden under 23 Pa.C.S. § 2511(b), and that terminating

Mother’s parental rights is in the best interest of Child.

      With respect to Section 2511(b), our analysis shifts focus from

parental actions in fulfilling parental duties to the effect that terminating the

parental bond will have on the child. Section 2511(b) “focuses on whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child.” In re: Adoption of J.M.,

991 A.2d 321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court

found that “intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” In addition,

the orphans’ court must also discern the nature and status of the parent-




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child bond, with utmost attention to the effect on the child of permanently

severing that bond. Id.

      In cases where there is no evidence of a bond between a parent and a

child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d

753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis

necessarily depends on the circumstances of the particular case. Id. at 763.

      In this case, the Orphan’s Court found that Mother does not share a

close bond with Child. Rather, a beneficial bond exists between Child and

his resource parents, who have provided for Child’s daily needs for the

majority of his life. The court explained:

            The Court does not see a bond between Mother and
         [Child] that is sufficient to prevent the termination of
         Mother’s parental rights. In truth, [Child] is bonded with
         his resource parents and they are the only parents and
         family that he has known since being discharged from the
         NICU when he was six weeks old. The CASA’s November
         20, 2016, Report for instance, noted that [Child] could not
         be comforted by Mother[] after a minor injury, and that
         only his resource mother was able to quiet him. [Child]
         deserves the certainty of remaining with parents he loves
         and is bonded to, and does not deserve a Mother who is
         unwilling to care for him in a healthy and appropriate
         manner[.]

Orphan’s Court Opinion, 3/23/17, at 13 (citation omitted).

      Once again, the credibility of the witness’s testimony, and the weight

to be given it, are matters exclusively within the province of the Orphans’

Court as fact finder. In re M.G., supra. Thus, Mother’s claim fails.




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     CONCLUSION

     In sum, our review of the record supports the Orphans’ Court’s

determination that the Agency met its statutory burden of proving by clear

and convincing evidence that Mother’s parental rights should be terminated

pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). Accordingly, we affirm.

     Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




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