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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.T.M., A MINOR               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: D.M., MOTHER
                                                      No. 1303 EDA 2016


                     Appeal from the Order March 24, 2016
       in the Court of Common Pleas of Philadelphia County Family Court
                       at No(s): CP-51-AP-0000331-2015
                                 CP-51-DP-0000333-2010

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED January 12, 2017

        D.M. (“Mother”) appeals from the order entered in the Philadelphia

County Court of Common Pleas terminating her parental rights to D.T.M.

(“Child”) (born in 2005).       Mother contends the Department of Human

Services (“DHS”) failed to establish the elements of 23 Pa.C.S. § 2511(a)(1),

(2), (5), (8), and (b). We affirm.

        We adopt the facts as set forth by the trial court. See Trial Ct. Op.,

5/27/16, at 1-4.1     DHS filed a petition to involuntarily terminate Mother’s


*
    Former Justice specially assigned to the Superior Court.
1
  We note that Dr. William Russell testified at the October 15, 2015 hearing.
Mother’s counsel stipulated that Dr. Russell was an expert in the field of
parenting capacity evaluations. N.T., 10/15/15, at 20. Dr. Russell provided
DHS with a parenting capacity evaluation for Mother and a bonding
evaluation. Id. He testified that he followed “the APA standards set forth
for forensic psychologists[.]” Id. at 42. Jessica Merson testified that she
was a child abuse investigator for DHS. Id. at 80. Shereena Johnson of
DHS was assigned to Child’s case. N.T., 11/2/15, at 10. Stephanie Reily
was the case manager from the Wordsworth Community Umbrella Agency
(“CUA”). N.T., 1/8/16, at 4.
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parental rights.   Hearings were held on October 15, 2015, November 2,

2015, and January 8, 2016.         The trial court changed the goal from

reunification to adoption and terminated Mother’s parental rights to Child

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

3/24/16. Mother simultaneously filed a timely notice of appeal and a concise

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

1925(a)(2)(i) and (b), and the trial court filed a responsive opinion.

      Mother raises the following issues for our review:

         1. Did [DHS] sustain their burden that Mother’s rights
         should be terminated when there was evidence that
         Mother had completed and/or had been actively
         completing her permanency goals?

         2. Was there sufficient evidence presented to establish
         that it was in the best interest of [C]hild to terminate
         Mother’s parental rights?

Mother’s Brief at 4.2

      We review appeals from the involuntary termination of parental rights

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

2
  Appellant raised eight issues in her Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215,
1218 n. 2 (Pa. Super. 2011) (holding claims raised in Rule 1925(b)
statement but not identified in statement of questions presented or
developed in argument section of brief abandoned on appeal).




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            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.
            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, 826-27 (Pa. 2012) (citations

omitted).

      A trial court’s decision regarding the termination of parental rights is

controlled 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


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        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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511)

(some citations omitted).

     Section 2511(a) provides in pertinent part:

        (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.

                                *    *    *

           (5) The child has been removed from the care of the
           parent by the court or under a voluntary agreement
           with an agency for a period of at least six months, the
           conditions which led to the removal or placement of the
           child continue to exist, the parent cannot or will not
           remedy those conditions within a reasonable period of
           time, the services or assistance reasonably available to
           the parent are not likely to remedy the conditions which
           led to the removal or placement of the child within a


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            reasonable period of time and termination of the
            parental rights would best serve the needs and welfare
            of the child.

                                  *    *    *

            (8) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency, 12 months or more have elapsed from
            the date of removal or placement, the conditions which
            led to the removal or placement of the child continue to
            exist and termination of parental rights would best
            serve the needs and welfare of the child.

                                  *    *    *

         (b) Other considerations.—The court in terminating the
         rights of a parent shall give primary consideration to the
         developmental, physical and emotional needs and welfare
         of the child. The rights of a parent shall not be terminated
         solely on the basis of environmental factors such as
         inadequate housing, furnishings, income, clothing and
         medical care if found to be beyond the control of the
         parent. With respect to any petition filed pursuant to
         subsection (a)(1), (6) or (8), the court shall not consider
         any efforts by the parent to remedy the conditions
         described therein which are first initiated subsequent to
         the giving of notice of the filing of the petition.

25 Pa.C.S. § 2511(a)(1), (2), (5), (8), (b). “We note that, initially, the focus

in terminating parental rights is on the parent, under Section 2511(a),

whereas the focus in Section 2511(b) is on the child.”      In re C.L.G., 956

A.2d 999, 1008 (Pa. Super. 2008) (en banc) (citation omitted).

         In termination cases, the burden is upon DHS to prove by
         clear and convincing evidence that its asserted grounds for
         seeking the termination of parental rights are valid.

            We have previously stated:




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           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.” It is well established
           that a court must examine the individual
           circumstances of each and every case and consider
           all explanations offered by the parent to determine if
           the evidence in light of the totality of the
           circumstances clearly warrants termination.

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted).

     In the case at bar, the trial court found that the facts alleged in DHS’s

petition as to subsections 2511(a)(1), (2), (5), (8) and (b) were established

by clear and convincing evidence. Trial Ct. Op., 7/12/13, at 3-11. In In re

B.L.W., 843 A.2d 380 (Pa. Super. 2004) (en banc), this Court opined:

“While the trial court found that [DHS] met its burden of proof under each

section quoted above, we need only agree with its decision as to any one

subsection in order to affirm the termination of parental rights.” Id. at 384

(citations omitted). We consider whether the trial court erred in terminating

Mother’s parental rights under Section 2511(a)(8).

           We have explained this Court’s review of a challenge to
        the sufficiency of the evidence to support the involuntary
        termination of a parent’s rights pursuant to § 2511(a)(8),
        as follows:

           In order to terminate parental rights pursuant to 23
           [Pa.C.S.] § 2511(a)(8), the following factors must be
           demonstrated: (1) The child has been removed from
           parental care for 12 months or more from the date
           of removal; (2) the conditions which led to the
           removal or placement of the child continue to exist;
           and (3) termination of parental rights would best
           serve the needs and welfare of the child.


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         In Re Adoption of M.E.P., 825 A.2d 1266, 1275–1276
         (Pa. Super. 2003). . . . “Notably, termination under
         Section 2511(a)(8), does not require an evaluation
         of Mother’s willingness or ability to remedy the
         conditions that led to placement of her children.” Id.
         at 511.

In re K.M., 53 A.3d 781, 789 (Pa. Super. 2012) (emphasis added).

      We have observed the following about the “needs and welfare”

analysis pertinent to Sections 2511(a)(8) and (b):

         [I]nitially, the focus in terminating parental rights is on the
         parent, under Section 2511(a), whereas the focus in
         Section 2511(b) is on the child.           However, Section
         2511(a)(8) explicitly requires an evaluation of the “needs
         and welfare of the child” prior to proceeding to Section
         2511(b), which focuses on the “developmental, physical
         and emotional needs and welfare of the child.” Thus, the
         analysis under Section 2511(a)(8) accounts for the needs
         of the child in addition to the behavior of the parent.
         Moreover, only if a court determines that the parent’s
         conduct warrants termination of his or her parental rights,
         pursuant to Section 2511(a), does a 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.” Accordingly,
         while both Section 2511(a)(8) and Section 2511(b) direct
         us to evaluate the “needs and welfare of the child,” we are
         required to resolve the analysis relative to Section
         2511(a)(8), prior to addressing the “needs and welfare” of
         [the child], as proscribed by Section 2511(b); as such,
         they are distinct in that we must address Section 2511(a)
         before reaching Section 2511(b).

In re C.L.G., 956 A.2d at 1008-09 (Pa. Super. 2008).

      Mother contends the trial court erred in terminating her parental rights

pursuant to Section 2511(a)(8). “Ms. Riley’s extensive testimony that there

were no barriers to reunification clearly established that the conditions which


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led to the removal or placement of [C]hild were no longer present.”

Appellant’s Brief at 18.

      In the case sub judice, the trial court opined:

         Child in this case has been in DHS custody since March 22,
         2012, for a total of four years.        Child was removed
         because Mother was a safety threat to Child’s life. Mother
         abused drugs and physically abused Child.         Child has
         chronic respiratory problems which were made worse by
         Mother’s failure to attend doctor’s appointments. Mother
         has not acknowledged and accepted her role in
         endangering Child’s life. Mother has not attended Child’s
         medical appointments, despite court orders. Mother is not
         involved in Child’s schooling─Mother does not attend
         school meetings. Mother spends all the time at her visits
         talking with Child about school, but does not know where
         Child attends school or goes to therapy. Mother has
         attended most court hearings. Mother has not attended
         visits with Child in over three weeks because she had
         become upset with CUA.           The court heard credible
         testimony from Dr. Russell that Mother would not be able
         to parent safely for a year or more. Mother has not
         successfully completed her drug and alcohol program.
         Child is currently placed in a safe and stable pre-adoptive
         home. Foster Mother provides for all Child’s needs, and
         has a loving bond with Child. The DHS social worker
         testified that it would be in Child’s best interest to
         terminate Mother’s parental rights and allow Foster Mother
         to adopt Child.        Child refers to Foster Mother as
         “grandmom” and in the past expressed a desire to remain
         with Foster Mother.        Child needs permanency.      The
         conditions leading to removal continue to exist, as Mother
         is not able to acknowledge her role in child’s life-
         threatening medical issues.       The testimony of DHS’s
         witness was unwavering and credible. Mother is not ready,
         willing or able as of today to parent [Child].

Trial Ct. Op. at 11 (citations omitted). We discern no abuse of discretion in

the trial court’s determination that termination of parental rights pursuant to

Section 2511(a)(8) would best serve the needs and welfare of Child. See In


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re S.P., 47 A.3d at 826-27.       We defer to the trial judge’s credibility

determinations.   See id.     The totality of the circumstances warrants

termination pursuant to Section 2511(a)(8).       See In re K.M., 53 A.3d at

789; In re R.N.J., 985 A.2d at 276.

     We now consider the needs and welfare of Child as required by section

2511(b). See In re C.L.G., 956 A.2d at 1008-09. Mother argues the trial

court erred in its conclusion pursuant to Section 2511(b), relying upon the

testimony of Ms. Reily, the CUA case manager. Appellant’s Brief at 20-21.

     With regard to subsection 2511(b), this Court has stated:

        The trial court also must discern the nature and status of
        the parent-child bond, with utmost attention to the effect
        on the child of permanently severing that bond. The
        extent of the bond-effect analysis necessarily depends
        upon the unique facts and circumstances of the particular
        case.

                                 *    *    *

        Moreover, the mere existence of an emotional bond does
        not preclude the termination of parental rights. . . .

           [I]n addition to a bond examination, the trial court
           can equally emphasize the safety needs of the child,
           and should also consider the intangibles, such as the
           love, comfort, security, and stability the child might
           have with the foster parent. Additionally, this Court
           stated that the trial court should consider the
           importance of continuity of relationships and whether
           any existing parent-child bond can be severed
           without detrimental effects on the child.

In re K.M., 53 A.3d at 791 (citations omitted).

        [C]oncluding a child has a beneficial bond with a parent
        simply because the child harbors affection for the parent is


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         not only dangerous, it is logically unsound. If a child’s
         feelings were the dispositive factor in the bonding analysis,
         the analysis would be reduced to an exercise in semantics
         as it is the rare child who, after being subject to neglect
         and abuse, is able to sift through the emotional wreckage
         and completely disavow a parent . . . Nor are we of the
         opinion that the biological connection between [the parent]
         and the children is sufficient in of itself, or when
         considered in connection with a child’s feeling toward a
         parent, to establish a de facto beneficial bond exists. The
         psychological aspect of parenthood is more important in
         terms of the development of the child and its mental and
         emotional health than the coincidence of biological or
         natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (citations and

quotation marks omitted).

      Thus, the court may emphasize the safety needs of the child. See In

re K.Z.S., 946 A.2d 753, 763-64 (Pa. Super. 2008) (affirming the

involuntary termination of the mother’s parental rights, despite the existence

of some bond, where placement with the mother would be contrary to the

child’s best interests, and any bond with the mother would be fairly

attenuated when the child was separated from her, almost constantly, for

four years).

       It is well-settled that “we will not toll the well-being and permanency

of [a child] indefinitely.”   In re C.L.G., 956 A.2d at 1007 (citing In re

Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that 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”)).




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      The trial court determined that the facts of this case supported a

finding that termination would best serve Child’s needs and welfare.       The

court opined:

         Dr. Russell, who performed a bonding evaluation on
         Mother and Child, testified that they have a definite bond,
         but not a parental one. Mother has not been the primary
         caretaker in Child’s life for over three and a half years.
         More recently, Mother has not visited with Child in three
         weeks because she was upset with CUA.              Child has
         developed a resilient and independent personality as a
         result, and Dr. Russell testified that Child would not suffer
         any irreparable harm if Mother’s parental rights were
         terminated.     Child has displayed fear of returning to
         Mother’s care, and did not want to reunify with her.
         Mother has not acknowledged Child’s past medical neglect
         or the part Mother played in allowing Child’s condition to
         worsen to life─threatening levels. Child has a strong,
         loving bond with Foster Mother, who seeks to adopt Child.
         Foster Mother provides for all of Child’s needs, including
         her extensive medical needs. Child refers to Foster Mother
         as “grandmom” and in the past expressed a desire to
         remain with Foster Mother. It would be in Child’s best
         interest to be adopted by foster Mother.

Trial Ct. Op. at 12.

      After a careful review, we find the record supports the trial court’s

factual findings, and the court’s conclusions are not the result of an error of

law or an abuse of discretion with regard to Section 2511(b).       See In re

S.P., 47 A.3d at 826-27.         We defer to the trial court’s credibility

determinations. See id.; see also In re K.Z.S., 946 A.2d at 763-64. We,

therefore, affirm the order terminating Mother’s parental rights with regard

to Child under Sections 2511(a)(8) and (b).

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2017




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