J-A31003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INT. OF: K.S., A MINOR                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: A.S.                                 No. 740 MDA 2015


               Appeal from the Decree entered April 6, 2015
               in the Court of Common Pleas of York County
                   Juvenile Division, at No(s): 2014-0143
                                              CP-67-DP-0000057-2013

BEFORE: PANELLA, J., LAZARUS, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 12, 2016

       A.S. (“Mother”) appeals from the Decree entered on April 6, 2015, in

the Court of Common Pleas of York County, which involuntarily terminated

her parental rights to her male child, K.S., born in June 2011 (“Child”). We

affirm.1

      Mother is the natural mother of Child. Mother currently resides with

Child’s brother, K., as well as Child’s maternal aunt, maternal cousin, and

maternal grandmother.

      A certification of acknowledgment of paternity was filed on October 14,

2014, indicating that there is no claim of acknowledgment of paternity on file

for Child. However, both Mother and Father have held out at all times that




*Retired Senior Judge assigned to the Superior Court.
1
  The trial court also terminated the parental rights of Child’s father, J.S.,
Jr., in the final decree entered on April 6, 2015. Father is not a party to this
appeal, nor did he file a separate appeal.
J-A31003-15


Father is the father of Child, and Father’s counsel has stipulated that Father

is the father of Child.

      The York County Office of Children, Youth & Families (“the Agency”)

filed a Dependency Petition on March 14, 2013. The allegations presented in

the petition included that, on December 23, 2012, the Agency received a

referral regarding the Child due to concerns of the Child’s safety and

environmental concerns—Father had allegedly shot Child in the face with a

B.B. gun. There were also environmental concerns in the household—the

house was filthy and cluttered, and there were no proper sleeping

arrangements for Child.

      The Agency developed a safety plan and it placed Child with H.R. and

S.R. on January 10, 2013. Thereafter, H.R. and S.R. advised the Agency that

they would no longer be able to care for Child, and, on March 2, 2013, Child

was voluntarily moved by agreement of the parents to the home of K.S. and

B.S. B.S. is the daughter of H.R.

      Father has been indicated for child abuse through the Department of

Public Welfare’s Childline for the BB gun incident. The York City Police

Department filed charges of endangering the welfare of a child and reckless

endangerment against Father, who is himself a minor.

      The court held a dependency hearing on April 1, 2013, and adjudicated

Child dependent by agreement of all the parties. The trial court found that

Child had sustained a serious injury without adequate explanation. There

existed   parenting   issues   and   the   parents   lacked   stable   housing   or

                                      -2-
J-A31003-15


employment. The court transferred legal custody to the Agency and placed

the Child with K.S. and B.S. Visitation with the parents was to be supervised.

The primary goal established was reunification and the concurrent goal was

established as placement with a fit and willing relative. Both Mother and

Father were directed to undergo psychological evaluations.

      In addition, Mother and Father were to sign the necessary releases.

They were to maintain safe, stable housing and stable, lawful income. They

were also to cooperate with an in-home team and early-intervention

services.

      An order modifying Child’s placement to a second set of emergency

caretakers was entered on June 5, 2013. In addition, an order modifying

Child’s placement was entered on July 1, 2013. At that time, no other

relatives were available for placement and Child was placed in foster care.

Legal custody remained with the Agency and physical custody was returned

to the Agency. Child was then placed with M.B. and M.B. (“foster parents”),

who are pre-adoptive resources, and Child has remained continuously in

their care.

       On March 20, 2013, September 18, 2013, October 21, 2013, February

26, 2014, and August 4, 2014, family service plans were prepared. The

objectives established in the March 20, 2013 family service plan included:

cooperate with the Agency; cooperate with Justice Works; maintain stable

income; maintain stable housing; address their own physical and mental

health needs; and connect and bond with Child.

                                    -3-
J-A31003-15


      The objectives established for the parents in the September 18, 2013

Family Service Plan included: obtain/maintain the safety of the child/family;

obtain/maintain permanency for the child/family; maintain the well-being of

the child/family; and ensure the family/child have a concurrent plan.

      The court entered a permanency review order on September 18, 2013.

The court made various findings, including: placement of Child continued to

be necessary and appropriate; Mother was deemed substantially compliant

with the permanency plan and had made substantial progress toward

alleviating the circumstances that necessitated placement; Father was

deemed to have no compliance with the permanency plan and had made no

progress toward alleviating the circumstances that necessitated placement;

legal and physical custody were confirmed with the Agency; and Mother was

afforded   supervised   visitation   weekly   and   was      expected   to   have

unsupervised visitation in the near future. Father was afforded weekly

supervised visitation but did not exercise it at the time.

      A status hearing was held on December 23, 2013. At that time, Mother

continued to struggle with employment and housing issues. The objectives

established for the parents in the October 21, 2013, February 26, 2014, and

August 4, 2014 family service plans remained consistent with the September

18, 2013 plan. A permanency review order was entered on February 26,

2014. The trial court found:      placement continued to be necessary and

appropriate; Mother was substantially compliant with permanency plan and

had made substantial progress toward alleviating the circumstances that

                                      -4-
J-A31003-15


necessitated placement; Father had no compliance with the permanency

plan and made no progress toward alleviating the circumstance that

necessitated placement; primary goal remained reunification; adoption

remained the concurrent goal; legal and physical custody remained with the

Agency; and Mother continued to have supervised visitation for two hours on

a weekly basis. Justice Works and/or the Agency were permitted to modify

Mother’s visitation to partially unsupervised, if deemed appropriate. As part

of the plan, Father was to undergo a drug and alcohol evaluation and

cooperate with random drug testing.

      The court held a status hearing on May 22, 2014. The trial court found

that Mother had lost employment prior to that date. In addition, Mother had

obtained a mental health assessment through TrueNorth Wellness Services

on March 19, 2014. At that time, she was diagnosed with adjustment

disorder with mixed disturbance of emotions and conduct disorder, child

onset type. Attention deficit disorder of childhood with hyperactivity had

been diagnosed from the history of the patient. At that time, Mother was

unwilling to participate in therapy related to the various diagnoses.

      On March 31, 2014, Mother was discharged from TrueNorth Wellness

Services, as she was not seen for any sessions. On December 18, 2014, a

psychiatric evaluation was performed at T.W. Ponessa, wherein Mother was

diagnosed with attention deficit hyperactivity disorder, predominantly a

hyperactive impulsive presentation. As the result of Mother failing to comply

with the recommendations of the evaluation, the trial court entered an order

                                     -5-
J-A31003-15


on May 17, 2014, preventing Mother from having unsupervised contact with

Child.

         The Agency then filed a Motion for Reconsideration. The trial court held

a hearing on June 9, 2014, and Mother indicated that she was willing to

engage in therapy. The court authorized that Mother was to have

unsupervised overnight visits with Child. A permanency review order was

entered on August 4, 2014. The placement continued to be necessary and

appropriate since Mother was minimally compliant with the permanency plan

and had made minimal progress toward alleviating the circumstances that

necessitated placement. The primary goal remained reunification; adoption

remained      the   concurrent   goal.   However,   the   court   determined   the

established primary goal of reunification was not appropriate or feasible.

         A permanency goal was entered on August 4, 2014. Placement

continued to be necessary and appropriate. Mother was minimally compliant

with the permanency plan and had made minimal progress toward

alleviating the circumstances that necessitated placement. However, the

court determined that the established primary goal was not appropriate or

feasible.

         The permanency plan developed on July 17, 2014 was appropriate. In

addition, Mother was not making progress toward reunification, although she

had made progress in the past. Mother still had not achieved stability or

improved parenting skills. Thus, in the permanency order of August 4, 2014,

Mother and Father were ordered to maintain safe, stable housing and stable,

                                         -6-
J-A31003-15


lawful income. Mother was to attend counseling and was to cooperate with

an in-home team and occupational therapy for Child.

      On October 9, 2014, the Agency filed a petition for hearing to change

court-ordered goal from reunification to adoption because Mother had made

only minimal effort toward alleviating the circumstances that necessitated

placement. Father also had not made any progress toward alleviating the

circumstances that necessitated placement. Child had been in foster care

since April 1, 2013. A petition for involuntary termination of parental rights

as to both parents was filed on October 9, 2014.

      An evidentiary hearing on the change of goal and termination petitions

was originally scheduled for December 16, 2014. At that time Mother’s

counsel made an oral motion to stay the proceedings based on a bonding

assessment that was completed by the Children’s Home of York. The motion

included a request to increase visits between Mother and Child to determine

whether reunification was possible. The request was not opposed. It was

determined that all contact between Mother and Child was to be supervised,

and the hearing scheduled for December 16, 2014 was continued to

February 19, 2015.

      A permanency review order was entered on January 20, 2015. Mother

was moderately compliant with the permanency plan and had made

moderate progress toward alleviating the circumstances that necessitated

placement. The primary goal remained reunification; adoption remained the

concurrent goal. Visitations between Mother and Child were expanded to

                                    -7-
J-A31003-15


partially supervised. Unsupervised visits between Mother and Child were to

be coordinated so that they would occur when the maternal grandmother

was present in the home. Maternal grandmother did not appear at either the

February 19, 2015 or the March 11, 2015 hearing. The Agency caseworker

did not see Child interact with maternal grandmother, despite the trial

court’s directive that Mother’s visits with Child occur at a time when

maternal grandmother is present.

      At the evidentiary hearing on February 19, 2015, the trial court denied

the Agency’s petition for change of goal. The court determined that the

Agency did not carry its burden to establish that there is a need to change

the goal, nor could the Agency offer a feasible alternative goal.

      Child refers to the foster parents as “Mommy” and “Daddy.” Child

refers to Mother as “Mommy.” Shayla Kearse from the Children’s Home in

York performed two bonding assessments. One assessment examined the

bond between Child and Mother, and the other assessment examined a bond

between Child and the foster parents. Kearse concluded that Child has

established a moderate bond to both Mother and foster father, but that Child

has a stronger bond with foster mother.

      Child attends weekly therapy with Amanda Evans, who is employed by

the Children’s Aid Society as an art therapist. Child has a continuing need for

therapy. In December of 2014, Mother’s visits increased. Child’s behavior

began regressing, and he became more impulsive. Evans is concerned that



                                     -8-
J-A31003-15


Child suffers from an attachment disorder. Child is described as a “friendly”

child who seeks affection from strangers.

        Mother has been involved with a Justice Works Youthcare in-home

team (“Justice Works”) since January 2013. Mother’s cooperation with the

service   has   fluctuated.   The   Justice   Works   team   has   recently   been

supervising visits, working on developing household management skills,

providing transportation, assisting with job searching, verifying compliance

with mental health recommendations, and aiding Mother in assessing

community resources. It delivers Child to Mother’s home and returns him to

his foster parents at the end of each visit. Mother also completed the

Nurturing Parenting program twice through Justice Works, once from

February 2013 until May 2013 and once from August 2014 until November

2014.

        Child has one brother, K., who was born after Child was adjudicated

dependent and remains in Mother’s care. Although Mother has been provided

services through the Agency for the entirety of K.’s life, K. is not subject to

the juvenile court jurisdiction.

        Mother is unemployed. She applied for cash assistance simultaneously

with the filing of the termination petition. Mother’s counsel represented at

the March 11, 2015 hearing that Mother had obtained employment

subsequent to the February 19, 2015 hearing, but evidence was not

presented to the trial court to consider. Neither parent has been incarcerated



                                       -9-
J-A31003-15


since Child was adjudicated, and neither parent has been admitted to a drug

rehabilitation facility. Mother does not possess a bus pass.

      Child has behavioral issues, and he has hit K. At times, Child needs to

be redirected, and he has become more uncontrollable when time with him

is expanded. At one point Mother sat on Child to gain control of him.

      Child has completed occupational therapy. Due to the fact that

occupational therapy appointments were scheduled during Mother’s visits

with Child in the summer of 2014, Mother was to make arrangements to get

Child to the appointments. However, the Agency provided the transportation

to the appointments since Mother failed to do so. Mother did accompany

Child to those appointments, but not to any appointment scheduled outside

of the time she had scheduled visits with Child. Child was assessed by Early

Intervention, but Child did not have developmental delays. Mother feeds

Child when he is at her home for visits and occasionally provides him with

clothing.

      Mother attends therapy sessions at T.W. Ponessa and she participated

in an intake appointment on July 28, 2014 for the purpose of completing a

mental health assessment. The counselors expressed concern that Mother

was only attending therapy because the trial court had directed her to do so.

Mother began to address personal issues, anxiety, and depression. In

November 2014, Mother obtained a new therapist, due to the departure of

her previous therapist, and began addressing the utilization of behavioral

strategies, management of outbursts of anger, and areas of distress. During

                                    - 10 -
J-A31003-15


Mother’s involvement with T.W. Ponessa, Mother has missed only one

session and cancelled one.

      Mother and Father did not consent to the termination of their parental

rights to Child. However, Father believed that it is in Child’s best interest for

the parental rights of Father to be terminated, and for the Child to be

adopted.

      Hearings were held on February 19, 2015 and on March 11, 2015. In

a final decree and adjudication filed on April 6, 2015, the parental rights of

Mother and Father were involuntarily terminated. Mother filed a timely

appeal.

      Mother raises two issues on appeal.

      1. Whether the trial court erred in terminating the parental
         rights of Mother pursuant to Sections 2511(a)(1), (2), (5),
         and (8) of the Adoption Act?

      2. Whether the trial court erred in concluding that termination of
         parental rights would best serve the needs and welfare of
         [Child] pursuant to Section 2511(b)?

Mother’s Brief at 5.

      We review the termination decree according to the following standard.

      [A]ppellate courts must apply an abuse of discretion standard
      when considering a trial court’s determination of a petition for
      termination of parental rights. As in dependency cases, our
      standard of review requires an appellate court to accept the
      findings of fact and credibility determinations of the trial court if
      they are supported by the record. If the factual findings are
      supported, appellate courts review to determine if the trial court
      made an error of law or abused its discretion. As has been often
      stated, an abuse of discretion does not result merely because
      the reviewing court might have reached a different conclusion.

                                     - 11 -
J-A31003-15


     Instead, a decision may be reversed for an abuse of discretion
     only upon demonstration of manifest unreasonableness,
     partiality, prejudice, bias, or ill-will.
     [T]here are clear reasons for applying an abuse of discretion
     standard of review in these cases. We observed that, unlike trial
     courts, appellate courts are not equipped to make the fact-
     specific determinations on a cold record, where the trial judges
     are observing the parties during the relevant hearing and often
     presiding over numerous other hearings regarding the child and
     parents. Therefore, even where the facts could support an
     opposite result, as is often the case in dependency and
     termination cases, an appellate court must resist the urge to
     second guess the trial court and impose its own credibility
     determinations and judgment; instead we must defer to the trial
     judges so long as the factual findings are supported by the
     record and the court’s legal conclusions are not the result of an
     error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations

omitted).

     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 parent and child, with close attention
     paid to the effect on the child of permanently severing any such
     bond.




                                    - 12 -
J-A31003-15


In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A.

§ 2511). The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted statutory grounds for seeking the termination of

parental rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super.

2009).

     Instantly, the decree terminated Mother’s parental rights pursuant to

section 2511(a)(1), (2), (5), and (8). This Court must agree with only one

subsection of section 2511(a), in addition to § 2511(b), in order to affirm

the termination of parental rights. See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). Herein, we review the decree pursuant to §

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

     § 2511. Grounds for involuntary termination

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

                                   ***

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

                                   ***

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

                                   - 13 -
J-A31003-15


     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.

     To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

rights under section 2511(a)(2), 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. See In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

     After a careful review of the record, we find that the trial court aptly

discussed the evidence against the requirements of section 2511(a)(2) and

(b). The trial court properly determined that Child has a need for essential

parental care, control, or subsistence that Mother has failed to provide for

Child for most of his life. Based on the credible evidence provided, it does

not appear that Mother has attended many of Child’s therapy appointments.

                                    - 14 -
J-A31003-15


Mother also has continued to rely on the assistance of the Agency and

service providers for transportation. Mother still does not have a bus pass so

that she could visit Child or take him to his various appointments.

      In addition, Mother needed to complete the parenting class twice

because concerns about her ability to safely parent Child arose in the

summer of 2014. At that time, Mother sat on Child as the way to control his

behavior. Mother also finally obtained a mental health evaluation. The

evaluation revealed concerns that Mother may pose a threat of harm to Child

if she does not receive counseling. During her counseling sessions, the

counselors expressed a concern that Mother attends counseling because the

court directs Mother to participate in the sessions. Despite the assistance of

Justice Works, Mother remains unemployed and is unable to parent Child.

      Mother lacks the motivation to achieve any objectives on her own, and

has not demonstrated an ability to independently provide for the emotional,

developmental, and physical needs of Child without an extensive amount of

assistance. Therefore, this Court finds competent evidence to support the

trial court’s determination that Mother lacks the capacity to parent Child

under § 2511(a)(2).

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court stated that

      if the grounds for termination under subsection (a) are met, a
      court “shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child.” 23
      Pa.C.S. § 2511(b). The emotional needs and welfare of the child

                                    - 15 -
J-A31003-15


      have been properly interpreted to include “[i]ntangibles such as
      love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
      791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
      1993)], this Court held that the determination of the child’s
      “needs and welfare” requires consideration of the emotional
      bonds between the parent and child. The “utmost attention”
      should be paid to discerning the effect on the child of
      permanently severing the parental bond. In re K.M., 53 A.3d at
      791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      With regard to section 2511(b), the evidence reveals that the

termination of parental rights is in Child’s best interests. The record shows

that Mother has not yet demonstrated an ability to adequately address

Child’s needs, particularly his emotional and developmental needs. In

addition, concerns arise regarding the potential impact that Mother’s

troubled history will have on her ability to provide structure and consistency

to Child on a permanent basis.

      The evidence also reveals that the Child has a strong emotional bond

with his foster parents, especially foster mother, with whom he has been

living for an extended period of time, and who take care of all of his needs.

Child’s foster parents address his speech issues, read to Child, deal with

Child’s attachment disorder, and help Child create a relationship between

himself and the other children who reside with the foster parents. On the

other hand, Mother chose to present limited evidence of her bond with Child,

relying mostly on the testimony of her Justice Works team members and the

bonding assessment. Mother’s only offer of testimony included little more


                                    - 16 -
J-A31003-15


than testimony that she loves Child and has not purchased gifts for Child

because he is delivered to her house for visits. Evidence clearly shows that

Mother is unable to safely parent child and meet his emotional and

developmental needs. The trial court correctly found that there is no

evidence that Child would be adversely affected if his relationship with

Mother is severed.

      The competent evidence in the record shows Mother failed to “exhibit

[the] bilateral relationship which emanates from the parent[’s] willingness to

learn appropriate parenting . . . .” In re K.K.R.S., 958 A.2d 529, 534 (Pa.

Super. 2008). She did not put herself in a position to assume daily parenting

responsibilities so that she could develop a real bond with Child. See In re

J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).

      Although Mother may love Child and desire an opportunity to serve as

his mother, a parent’s own feelings of love and affection for a child, alone,

will not preclude termination of parental rights. See In re Z.P., 994 A.2d

1108, 1121 (Pa. Super. 2010). A child’s life “simply cannot be put on hold in

the   hope   that   [a   parent]   will    summon   the   ability   to   handle   the

responsibilities of parenting.”      Id. at 1125. Rather, “a parent’s basic

constitutional right to the custody and rearing of his child is converted, upon

the failure to fulfill his or her parental duties, to the child’s right to have

proper parenting and fulfillment of his or her potential in a permanent,




                                          - 17 -
J-A31003-15


healthy, safe environment.” In re B., N.M., 856 A.2d at 856. As such,

Mother’s issue fails with respect to section 2511(b).

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

to the Child.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/12/2016




                                    - 18 -
