J-S50017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF: E.D.S., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: N.M.S., MOTHER                      No. 2218 MDA 2015


             Appeal from the Order dated November 18, 2015,
      in the Court of Common Pleas of Cumberland County, Orphans’
                      Court, at No: 19 Adoptions 2015

IN RE: ADOPTION OF: A.M.S., A MINOR            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: N.M.S., MOTHER                      No. 2219 MDA 2015


             Appeal from the Order dated November 18, 2015,
      in the Court of Common Pleas of Cumberland County, Orphans’
                      Court, at No: 20 Adoptions 2015

BEFORE: MUNDY, STABILE, and FITZGERALD*, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JULY 11, 2016

      Appellant, N.M.S. (Mother), appeals from the November 18, 2015

decree involuntarily terminating her parental rights to her legally adopted

sons, E.D.S., born in July 2000, and A.M.S., born in May 1999. Upon careful

review, we affirm.1

      On March 5, 2015, T.D.S. (Father) and his wife, C.M.S. (Stepmother),

filed petitions for the involuntary termination of Mother’s parental rights to

E.D.S. and A.M.S., biological brothers whom Mother and Father adopted


* Former Justice specially assigned to the Superior Court.
1
  The Guardian ad Litem (GAL) filed a brief in this appeal in support of the
termination decree.
J-S50017-16


from Guatemala in 2005, pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). In

addition, on March 5, 2015, Stepmother filed a petition for adoption of

E.D.S. and A.M.S.

        Hearings were held on the termination petitions on June 26, 2015, July

31, 2015, and October 12, 2015. Father testified on his own behalf, and he

presented the testimony of Tegan Blackbird, Ph.D.; the parties’ daughters,

T.S., age 29, and C.S., age 22; Stepmother; and Deborah L. Salem, a

clinical evaluator. Mother testified on her own behalf, and she presented the

testimony of Annette Cremo, Ph.D., and Laura Pittman, Ph.D.

        In its opinion accompanying the subject decree, the orphans’ court set

forth the relevant factual and procedural history of this case, which the

testimonial and documentary evidence supports.         As such, we adopt it

herein. See Trial Court Opinion, 11/18/15, at 2-5.

        By decree dated and entered on November 18, 2015, the orphans’

court involuntarily terminated Mother’s parental rights to E.D.S. and A.M.S.

On December 17, 2015, Mother timely filed notices of appeal and concise

statements of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(a)(2)(i) and (b), which this Court consolidated

sua sponte. The orphans’ court filed its Rule 1925(a) opinion on January 14,

2016.

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




                                      -2-
J-S50017-16


      1. Whether the [orphans’] court improperly denied Mother’s
      request to deny Father’s petition to involuntarily terminate
      parental rights?

      2. Whether the [orphans’] court abused its discretion by
      terminating Mother’s parental rights?

Mother’s brief at 9.

      We consider Mother’s issues mindful of our well-settled standard of

review.

      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. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

      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):

                                      -3-
J-S50017-16


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

     Instantly, the orphans’ court terminated Mother’s parental rights

pursuant to Section 2511(a)(1) and (b), which provide as follows:

     (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.

                                    ...

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

23 Pa.C.S.A. § 2511(a)(1), (b).

                                    -4-
J-S50017-16


      We have explained:

      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.

In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006). Notably,

with respect to the six-month period prior to filing the termination petition:

      [T]he trial court must consider the whole history of a given case
      and not mechanically apply the six-month statutory provision.
      The court must examine the individual circumstances of each
      case and consider all explanations offered by the parent facing
      termination of his or her parental rights, to determine if the
      evidence, in light of the totality of the circumstances, clearly
      warrants the involuntary termination.

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

addition,

      Section 2511 does not require that the parent demonstrate both
      a settled purpose of relinquishing parental claim to a child and
      refusal or failure to perform parental duties.      Accordingly,
      parental rights may be terminated pursuant to [s]ection
      2511(a)(1) if the parent either demonstrates a settled purpose
      of relinquishing parental claim to a child or fails to perform
      parental duties.

In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998).        Further,

      Once the evidence establishes a failure to perform parental
      duties or a settled purpose of relinquishing parental rights, the
      court must engage in three lines of inquiry: (1) the parent’s
      explanation for his or her conduct; (2) the post-abandonment
      contact between parent and child; and (3) consideration of the
      effect of termination of parental rights on the child pursuant to
      Section 2511(b).

Id. at 92 (citation omitted).

                                     -5-
J-S50017-16



     We have explained “parental duties” as follows:

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

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

     Parental duty requires that the parent act affirmatively with good
     faith interest and effort, and not yield to every problem, in order
     to maintain the parent-child relationship to the best of 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. Parental
     rights are not preserved by waiting for a more suitable or
     convenient time to perform one’s parental responsibilities while
     others provide the child with his or her physical and emotional
     needs.

In re B.,N.M., supra at 855 (citations omitted).

     Moreover,

     It is incumbent upon a parent when separated from his child to
     maintain communication and association with the child. This
     requires an affirmative demonstration of parental devotion,
     imposing upon the parent the duty to exert himself, to take and
     maintain a place of importance in the child’s life.

In re G.P.−R., 851 A.2d 967, 976 (Pa. Super. 2004).


                                    -6-
J-S50017-16


      With respect to Section 2511(b), this Court has explained the requisite

analysis as follows:

      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 63.

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

      In her first issue on appeal, Mother argues that the orphans’ court

improperly denied her request to dismiss Father’s involuntary termination

petition. On the first day of the termination hearing, before any evidence

was presented, Mother’s counsel made a request on the record in open court

that the court dismiss Father’s petition. See N.T., 6/26/15, at 5-6. Counsel

asserted that, within the six months immediately preceding the filing of the

termination petition, Mother filed a petition for special relief and a petition

for modification of the existing custody order.     Id.   The orphans’ court

denied Mother’s request, stating, in part, “Well that’s what the record may

show, the record doesn’t necessarily show yet.      That’s not in the record.

You are telling me that.” Id. at 5-6.


                                     -7-
J-S50017-16


      Mother cites In re Adoption of M.R.D., 128 A.3d 1249 (Pa. Super.

2015) (en banc), appeal granted, 133 A.3d 293 (Pa. 2016), wherein we

stated that, “All explanations considered, if the parent makes reasonable

attempts to overcome obstacles created by the party seeking termination,

then the parent’s failure to pursue legal action more promptly will not alone

justify termination.” Id. at 1262 (citing In re Adoption of L.J.B., 18 A.3d

1098, 1122 (Pa. 2011)).      To the best that we can discern, Mother asserts

that, because she filed a petition to modify custody within six months before

Father filed the termination petition, the court was prohibited from

terminating her parental rights under Section 2511(a)(1).

      Contrary to her assertion, M.R.D., supra, is inapplicable for the

proposition Mother asserts. Neither this Court’s decision in that case nor any

case or statutory authority holds that pursuing legal action for custody rights

within six months preceding the filing of a termination petition mandates the

dismissal of the petition.   Rather, a trial court “must consider the whole

history of a given case and not mechanically apply the six-month statutory

provision.” In re B.N.M., supra. Therefore, we conclude that the orphans’

court did not err in failing to summarily dismiss Father’s termination petition

and conducting an evidentiary hearing in this case. Mother’s first issue fails.

      The evidence presented during the hearing demonstrated that,

following the parties’ marital separation in 2009, an agreed-upon July 15,

2010 custody order granted Father primary physical custody and Mother


                                     -8-
J-S50017-16


supervised partial physical custody, which she never exercised.2 Trial Court

Opinion, 11/18/15, at 2-3; Petitioner’s Exhibit 1. On December 28, 2012,

Mother filed a petition for emergency relief, wherein she alleged that Father

has alienated E.D.S. and A.M.S. from her.       Mother requested joint legal

custody, partial physical custody, and counseling for E.D.S. and A.M.S. Trial

Court Opinion, 11/18/15, at 4; Respondent’s Exhibit 5.     This resulted in a

second agreed-upon custody order dated June 24, 2013, which granted

Father sole legal and physical custody. Id.; Petitioners’ Exhibit 5. The order

directed Mother to participate in therapy with a professional selected by the

custody evaluator, Deborah Salem, for the purpose of preparing her to begin

the reunification process with E.D.S. and A.M.S.        Trial Court Opinion,

11/18/15, at 4; Petitioners’ Exhibit 5.

      The orphans’ court found that, following the June 2013 order, “Mother

demonstrated an inability or unwillingness to follow through, resulting in her

failure to see [E.D.S. and A.M.S.] to this date.”       Trial Court Opinion,

11/18/15, at 5. The testimony of Dr. Blackbird, the professional selected by

Ms. Salem, supports the court’s finding. Indeed, Dr. Blackbird testified that

he met with Mother three or four times, and then she discontinued

treatment. N.T., 6/26/15, at 67.

      On February 15, 2015, Mother filed a petition for modification of the

June 2013 custody order. The orphans’ court aptly noted that, “[o]ther than

2
  The order also granted the parties shared legal custody.        Petitioner’s
Exhibit 1.
                                     -9-
J-S50017-16


a text message shortly before the first [day of the termination] hearing,

Mother has not communicated with [E.D.S. and A.M.S.] since July 12, 2010.”

Trial Court Opinion, 11/18/15, at 5.

      Nevertheless, Mother argues in her second issue on appeal that her

conduct did not warrant termination of her parental rights under Section

2511(a)(1).    She argues that the court “completely overlooked all of

Mother’s testimony.    . . .   The [ ] court did not consider the hostile

environment that Father created for Mother and the minor boys while the

parties still lived in the same house.” Mother’s brief at 38. We disagree.

      The court explained in its opinion accompanying the subject decree as

follows.

      This is not a case where Father rebuffed Mother’s repeated,
      plaintive requests to see the boys. To the contrary, the only
      “roadblocks” to Mother maintaining contact with the boys and
      performing parental duties were two court orders. The 2010
      order was entered by stipulation in open court and gave Mother
      an easy path to have immediate supervised visits.          Her
      explanations were hollow regarding her failure to pick up the
      phone and call any of the potential supervisors or to ask the
      court to name a new one. Instead of swallowing her pride and
      moving forward, Mother did nothing and the boys went on with
      their lives.

      The 2013 order recognized Mother’s failures and set forth a step-
      by-step plan. Although she arguably took one step forward by
      meeting with Dr. Tegan Blackbird, Mother failed to follow
      through with him, providing equally hollow excuses.          After
      hearing Deb[orah] Salem’s testimony and reviewing her
      evaluations, Mother’s actions did not surprise us. Although
      much could be said, it all boils down to Mother’s refusal to take
      responsibility for any of the problems that brought the parties to
      court for custody, [ ] and now the termination of her parental


                                       - 10 -
J-S50017-16


     rights. The evidence in support of termination is not only clear
     and convincing, it is compelling.

Trial Court Opinion, 11/18/15, at 9-10.

     Upon review, we conclude that the foregoing factual findings and

credibility determinations against Mother by the court are supported by the

testimonial   and   documentary   evidence.    The   record   overwhelmingly

demonstrates that Mother failed to perform her parental duties since she left

the marital home in July of 2010. Since that time, Mother has neither seen

nor written to E.D.S. or A.M.S. N.T., 7/31/15, at 23, 38-39. She failed to

exercise her agreed-upon supervised partial physical custody set forth in the

July 2010 custody order. Thereafter, she failed to pursue reunification with

her sons by following the agreed-upon June 2013 custody order.          Upon

careful review, we discern no abuse of discretion by the orphans’ court in

finding hollow Mother’s explanations for this conduct. Therefore, we reject

Mother’s argument with respect to Section 2511(a)(1).

     With respect to Section 2511(b), Mother argues that the termination of

her parental rights does not serve the developmental and emotional needs

and welfare of E.D.S. and A.M.S. because the court “recognized that the

minor boys required continuous counsel[]ing not only for the marital discord

of the parties but because of the minor boys[’] abusive and troubling

childhood in Guatemala. Father does not believe that the minor boys require

counsel[]ing if Mother remains out of their lives.” Mother’s brief at 35. As



                                   - 11 -
J-S50017-16


such, Mother argues that, by terminating her parental rights, the court “has

ensured the minor boys will not receive counsel[]ing.” Id. at 55.

      In its Rule 1925(a) opinion, the orphans’ court responded as follows.

      Ironically, our exchange with counsel at the close of the
      proceedings was laden with our concerns that the boys would
      need counseling to deal with this situation. [N.T., 10/12/15, at
      80-85.] Likewise, we were concerned with the counseling the
      boys received over the years. In short, we did consider this, but
      the best counseling in the world would only help the boys deal
      with Mother’ s actions and inactions -- it would not have changed
      the end result of termination.

Trial Court Opinion, 1/14/16, at 8 (footnote omitted).

      We agree with the court that, whether or not Father obtains counseling

in the future for E.D.S. and A.M.S. is irrelevant to the termination of

Mother’s parental rights pursuant to Section 2511(b). Indeed, the emphasis

in a Section 2511(b) analysis is on the nature and status of the parent-child

bond and whether severing that bond will be detrimental to the physical,

developmental, and emotional needs and welfare of the child.        See In re

Adoption of J.M., supra.

      The orphans’ court aptly found:

      The record of this case is replete with evidence that there is no
      bond between the boys and Mother.           Indeed, as noted in
      Deb[orah] Salem’s evaluations, to the extent there was a bond,
      it was unhealthy. Additionally, Mother could not point to any
      evidence that a bond still exists, and her expert failed to
      convince us that reunification counseling should be pursued to
      see if a bond could be forged. . . .

      [W]e are eminently satisfied that [Stepmother] has been the
      mother for at least the past four years and is the only one
      capable of providing that nurturing relationship alongside of

                                    - 12 -
J-S50017-16


      Father. In fact, we are more concerned with the impact on the
      boys’ relationship with [Stepmother] if we attempted Mother’s
      request for reunification counseling. That would be a travesty -
      it might serve to assuage Mother’s feelings of guilt, but it would
      not to be beneficial to the boys in any way, shape[,] or form.
      Indeed, the mere receipt of a text from Mother sent one child
      into a near tailspin.[3]

      [ ] The evidence is clear, convincing and competent to
      demonstrate not only that Mother has failed to perform her
      parental duties, but also that termination of Mother’s parental
      rights will best serve the boys’ physical, developmental, and
      emotional needs and welfare.

Trial Court Opinion, 11/18/15, at 10-11 (emphasis in original).

      Upon careful review of the testimonial evidence, we discern no abuse

of discretion by the court in terminating Mother’s parental rights pursuant to

Section 2511(b).    Further, we conclude that the entirety of the court

opinions comprehensively expound on Mother’s issues, and we adopt and

incorporate the orphans’ court’s November 18, 2015 and January 14, 2016

opinions with this Memorandum in affirming the termination decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016

3
  Father testified that, in May 2015, Mother sent a text message to E.D.S.
wishing A.M.S. a happy birthday. N.T., 6/26/15, at 10. Father testified that
A.M.S. “was so scared [Mother] was going to come and get him. It was
horrible.” Id. at 40.
                                    - 13 -
                     ·--                                              Circulated 06/30/2016 11:57 AM




IN RE: ADOPTION OF                        : IN THE COURT OF COMMON PLEAS OF
E.D.S., a minor                           : CUMBERLAND COUNTY, PENNSYLVANIA

                                          ; 19 ADOPTIONS 2015 ./




IN RE: ADOPTION OF                          IN THE COURT OF COMMON PLEAS OF
A.M.S., a minor                             CUMBERLAND COUNTY, PENNSYLVANIA

                                          : 20 ADOPTIONS 2015

             IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF

                                                                                  -~
                                                                                  r • )
                            APPELLATE PROCEDURE 1925                              ,...::.,
                                                                                  CT>




Masland, J., January 13, 2016:--                                          - r -


                                I.     Introduction                                              a
                                                                                             . I <l
                                                                                                  ~1
                                                                                             ~-
                                                                                              .::.o
       N.M.S. (Mother) has appealed our orders of November 16, 2015                          ·.: rn

terminating her parental rights to her minor children E.D.S. (born Juiy 2000) aMt1
                                                                                                 .,
                                                                                             ,J) 0




A.M.S. (born May 1999). Our orders were accompanied by a fairly detailed

opinion, which we incorporate herein. Understandably, Mother has raised

numerous issues in her relatively concise statement, some of which call for more

than a simple "it's in there" response. Nevertheless, having reviewed our opinion

carefully, we are satisfied that our decision was not only appropriate, but was

also fully supported by the record. Therefore, we will supplement our prior

opinion with a seriatim treatment of Mother's issues, directing the court to

pertinent aspects in the record where necessary. We will not engage in any

further recitation of the factual or procedural background of the case unless it is

crucial to address Mother's claim of error. In short, the appellate courts will have

more than enough to review without our long-windedness.
19 ADOPTIONS 20·,
20 ADOPTIONS 2015

                                        II.     Discussion

A.        Whetherthe Trial Court erred in determiningthat the threshold
analysis had been met by Petitioner Father to proceed with terminationof
parental rights?
          1. The Trial Courtdid not considercustodycourt's denial of
              Appellant'sPetition for Special Relief to recognize Dr. Laurie
               Pittman as a suitablecounselorfor reunificationin December
               2014.
          As we could state repeatedly in this opinion, it is not the case that we

failed to consider, in this instance, the denial of Mother's petition. To the

contrary, we considered all the testimony and exhibits submitted during the

hearings on June 26, 2015, July 31, 2015, and October 12, 2015. However, the

weight we accorded each statement and document varied immensely.

Furthermore, in strlking a balance between issuing an epic opinion and providing

sufficient material for the parties to understand our position, some "scenes"

wound up on the cutting room floor.

          With respect to the Petition for Special Relief, it was noted briefly at the

hearing on June 26, 2015. Initially, T.S. (Father) acknowledged on cross that he

was contacted by Dr. Pittman about counseling but denied the request because

"[t]hat's not the court order." In her direct examination, Mother noted the Petition

was filed on December 8, 2014, and, because it was denied she filed her

modification petition on February 5, 2015.2

           In short, in the context of this case, a filing for special relief two months

before the filing for modification does not change our calculus with respect to the

1
    Notes of Testimony, June 26, 2015, at 42, (hereafter N.T., June 26, at       )
2                                                                            -
    N.T., June 26, at 244-6.

                                                 -2-
19 ADOPTIONS 20 .
20 ADOPTIONS 2015

threshold issue - Father's petitions for termination were not retaliatory in nature.

At best, Mother's request for reunification counseling signals a desire on her part

to revive the ties that languished and died as a result of her own actions. As

such, this speaks more to the issue of the existence of any bond and not Father's

actions in filing for termination.

          Nevertheless, because of this claim of error regarding the petition and in

the interest of seeing if we missed something, we reviewed the custody court's

denial, which was done without any elaboration, on January 9, 2015. Although

the one-sentence order was not entered as an exhibit, it was referenced briefly

by Mother and Dr. Pittman. We note that we would have denied the Petition

summarily as well. Given Dr. Pittman's role as Mother's individual therapist

beginning on July 31, 2014, the prospect of her also serving as reunification

therapist in December 2014, strikes us as highly inappropriate, and indeed, Dr.

Pittman acknowledged that herself.3 Thus, this "error" is inconsequential at best.

          Finally, our November 16 analysis of In re: Adoption of' M.R.D. and

T.M.D.1 Minor Children, 2015 PA Super 32, was proven to be correct by the

December 8        en bane Superior      Court opinion at 2015 PA Super 255. In short,

President Judge Gantman's opinion confirms our conclusion that Father's

motivation for filing to terminate Mother's rights was not retaliatory.

8.        Whether the Trial Court committed reversible error by terminating
Appellant'sparental rights?




3
    Notes of Testimony July 31, 2014, at 234, (hereafter N.T., July 31, at_).

                                                  -3-
19 ADOPTIONS 20·,
                      -                                        +--,



20 ADOPTIONS 2015

       1. The Trial Court completely overlookedall of Appellant's
           testimonywhich has been Appellant'sconcern with the trial
           court's handling of the custodymatter.
       We did not overlook Mother's testimony in general, nor her concerns with

the handling of the custody action in particular. We found her words and her

actions, or lack thereof, regarding the custody action to be unconvincing.     As we

regularly advise juries, they are free to believe "all, part or none" of the testimony

of a witness. We found very little of Mother's testimony convincing and,

therefore, rarely cited it in our opinion, except where noting our acceptance of the

obverse.

       2. The Trial Courtdid not considerAppellant'stestimonyregarding
           years of counsellingshe received priorto filing that petition
           throughcustodycourt.
       Paradoxically, we are not unsympathetic toward Mother's need for

counseling and acknowledge that the record reflects her meeting with several

counselors over the years. Unfortunately for Mother, the record reflects a failure

to follow through on the custody court's clear directions regarding counseling in

its order of June 24, 2013, which we included in our earlier opinion and excerpt

herein for ease of reference:

              1. Sole legal and physical custody        of A.M.S. and
                 E.D.S. shall be with Father.

              2. Deb Salem shall select a therapist for Mother and
                 shall notify counsel for both parties.

              3. Within 14 days, Mother shall contact the selected
                 therapist and schedule an appointment. She shall
                 then notify Deb Salem of the date of the
                 appointment, and Deb Salem will then discuss the



                                          -4-
19 ADOPTIONS 20
                    ..   .-..,
                                                           --
20 ADOPTIONS 2015

                 goals and context of the therapy with the selected
                 therapist.

             4. Mother's therapist shall contact Deb Salem when
                he or she believes Mother has reached the point
                where she is imminently ready to begin the
                reunification process.

             5. Deb Salem will then instruct Father to begin
                preparatory therapy for the boys. Said therapy
                shall occur for six weeks.

             6. At the end of the six weeks of preparatory therapy
                for the boys, a reunification strategy shall be
                developed jointly by Mother's therapist, the boy's
                therapist, and Deb Salem.

             7. The parties shall cooperate with the selected
                strategy that has been developed.

       Instead of focusing on this course of counseling, which would have

provided the reunification she claims to desire, Mother wants credit for doing her

own thing. Had she abided by these directions, we might not be writing this

opinion.

       3. The Trial Courtdid not identifyDeborah Salem's errorsor failures
           regarding her involvementin the custodyproceedings.
      We did not "identify" Ms. Salem's errors or failures because we found

none. She is not a flawless evaluator, but had we presided over the custody

action, we would have welcomed and followed her guidance. Moreover,

regardless what we might have done, the parties chose to follow her guidance in

the stipulated custody order of July 2010, and they were directed to follow her

guidance in the 2013 order as set forth above.

       Mother's counsel may suggest a few errors, but our review of Ms. Salem's

testimony yielded no "smoking guns." Rather, we found confirmation of Mother's

                                       -5-
19 ADOPTIONS 20·.
20 ADOPTIONS 2015

failures throughout Ms. Salem's testimony. We are confident Ms. Salem's

evaluations and testimony will be closely reviewed; therefore, we point to three

statements that encapsulate her efforts:

          a. Her Approach - "Essentially, every custody evaluator has
             one job and it is to look into and investigate the best
             interests of the children.       It isn't to weigh-in on
             somebody's side. It isn't to proffer an opinion for any one
             specific person, but rather to look directly at the
             children."4

          b. Her Desire - "I did not believe it was fair not to give
             [Mother] another chance . . . and I thought with the right
             intervention, with dad having primary, that it could be
             worked out. And nothing would be better for the boys
             then [sic] for them to know it wasn't going to be a repeat
             performance."5

          c. Her Disappointment - "And the most profound thing I
             want to repeat is, there was never the need to have
             therapy and pay for therapy before supervised contact
             with the boys could begin. If you read the court order,
             that was not at all a requirement. And I believe it was in
             [Mother's] and the boys' best interest to begin to see
             each other right away ... There was no - that wasn't the
             restriction."6

           In sum, Ms. Salem was not only credible and convincing, but was also

compassionate. Would that Mother had appreciated this.

          4. The Trial Court did not considerthe PetitionerFather's failureto
               complywith the Orders for Custody.
          We did not operate under the delusion that Father was a paragon of virtue

throughout this saga. That was clear from his own testimony, not to mention Ms.

Salem's even-handed assessment. We recognize the need for zealous

advocacy, but this argument only confirms Mother's delusion that everyone else
4
    N.T., July 31, at 149.
5
    N.T., July 31, at 159.
6
    N.T., July 31, at 175-6.

                                           -6-
19 ADOPTIONS 20.
                             --..,
                                                                --
20 ADOPTIONS 2015

is to blame. Further argument on our part would appear abusive and we will

yield to Father's counsel on this point.

          5. The Trial Court did not considerDr. Laurie Pittman'sassessment
              of Petitioner Father allowing the parties'adult daughters to
              testify.
          In family matters, we would rather chew tinfoil than hear a child testify

against a parent ... a parent testify against a child ... a brother testify against his

brother ... but, alas, such is the lot of family law judges.   Dr. Pittman's

assessment that Father was a bad father for allowing his adult daughters to

testify is wonderful in theory; however, the record in this case would not be

complete without the testimony of the daughters.       Further, if Mother could have

benefited from their testimony, as with her manipulation of the boys, she would

have placed them on the stand in an instant.

          6. The Trial Court did not considerAppellant'sconcerns and issues
              with Dr. Tegan Blackbird.
          We found Mother's concerns with Dr. Blackbird to be appallingly

insignificant when viewed in light of what she knew she had to do for

reunification.      As Ms. Salem's noted incredulously, "somehow the payment of

therapy and other things just seemed to be the reason [for not following through

with Dr. Blackbird] ... "7 We share Ms. Salem's incredulity regarding Mother's

excuses. Conversely, Dr. Blackbird was credible and, despite Mother's excuses,

offered the clearest avenue to reunification.




7
    N.T., July 31, at 176.

                                            -7-
19 ADOPTIONS 20.
20 ADOPTIONS 2015

          7. The Trial Courtdid not considerDr. Laurie Pittman'sassessment
              of the minor'sneed for counsellingduringthe custody
              proceedings.
          Ironically, our exchange with counsel at the close of the proceedings was

laden with our concerns that the boys would need counseling to deal with this

situation.8 Likewise, we were concerned with the counseling the boys received

over the years. In short, we did consider this, but the best counseling in the

world would only help the boys deal with Mother's actions and inactions - it

would not have changed the end result of termination.

          8. The Trial Courtdid not considerthe PetitionerFather's violent
              conducttowards Appellant.
          We are not shocked with Mother's approach to this appeal. She must take

the focus off her behavior and place it elsewhere. Father and the court are the

obvious and usual suspects. Thus, there are several claims of error dealing with

our lack of appreciation of how horrible Father was to Mother. No doubt, the

parties were the worst of spouses, but laying some blame at Father's feet does

not justify Mother's failure to be a mother. As noted, we did not accept much of

Mother's testimony as being credible. Perforce, this tempered our view of

Mother's allegations about Father's conduct.

          9. The Trial Court did not considerDr. Laurie Pittman'sassessment
              of Appellant.
          We considered Dr. Pittman's relatively brief testimony in its entirety, and in

conjunction with all the other testimony, we formed an opinion of Mother's

behavior. The testimony of Dr. Pittman augmented our views, but given that her


8
    Notes of Testimony, October 12, 2015, at 80-85, (hereafter N.T., October 12, at_).

                                                 -8-
19 ADOPTIONS 20 .
                     -.                                     ·-
20 ADOPTIONS 2015

primary source of information was Mother, who was only partially credible, we did

not accept her assessment as a means to transform Mother into the victim role

she has assumed.

      10. The Trial Court did not recognize Appellant'scompliance with
          custody orders' recommendations.
      Mother's compliance with a few aspects of the custody orders was far

outweighed by her non-compliance, which has been amply discussed already.

C.    Whether the Trial Court committed reversible error in determining
that the best interestof the Children would be served by terminating
parental rights?
      Although the best interest of the children was covered substantially in our

November opinion, we will briefly address Mother's specific claims of error.

      1. The Trial Court did not considerDr. Tegan Blackbird'stestimony
          that the minorwas receptive to reunification.
      To say that the boys were receptive to reunification is an overstatement. It

was our impression that the boys were "tentatively" receptive to meeting with

Mother, not that they were receptive to the entire reunification process.

Regardless, Mother never allowed matters to proceed to even the first meeting.

      We suggest that the court review Dr. Blackbird's testimony as a whole and

not an isolated statement. Taken as a whole, we concluded the following:

              a. Dr. Blackbird's goal was to help Mother become
                 more aware of her own issues and the needs of
                 the boys in preparation for reunification.

              b. Unlike Mother's individual therapists/counselors,
                 Dr. Blackbird was aware of the animosity and
                 hostility coming from both parents and noted that
                 Mother needed to work through her anger and her
                 feelings of victimization.


                                        -9-
19 ADOPTIONS 20 .
20 ADOPTIONS 2015

              c. On September 17, 2013, Dr. Blackbird laid the
                 groundwork for an initial meeting between the
                 boys and Mother. Despite their strong resistance
                 to having any relationship with Mother, Dr.
                 Blackbird successfully moved the boys towards a
                 willingness to at least meet with Mother.

              d. On September 18, 2013, Dr. Blackbird attempted
                 to challenge Mother to address the 2% years of no
                 contact with the boys. Unfortunately, because
                 Mother discontinued treatment after she was
                 confronted with her own behavior in this fourth and
                 final session, they never reached the point
                 contemplated     in the 2013 order. Thus, Dr.
                 Blackbird never contacted Ms. Salem to inform her
                 that Mother was "imminently ready to begin the
                 reunification process."

       In sum, because of Mother's failure to follow through on the second

chance afforded her, we resolved that the boys must not be forced, over two

years later, down another road of trauma and disappointment.

       2. The Trial Courtdid not considerthe issuespresented by the
          minor not attending counsellingthroughoutthe custody
          proceedings.
       There were many troubling aspects of this case. However, the nature and

frequency of the counseling received by the boys was far from determinative.

Notably, the counseling the boys received following the 2010 order, coupled with

Mother's failure to avail herself of supervised visits, resulted in a positive change

in their demeanor as recognized by Dr. Blackbird and Ms. Salem. Admittedly,

their attitudes and outlook were improved largely because of Mother's unforced

absence and the feeling that the relationship with her was over - things that may

require counseling down the road. Nevertheless, we will not fault Father for living

in a state of denial created by Mother.


                                          -10-
19 ADOPTIONS 20 .
20 ADOPTIONS 2015

       3. The Trial Court did not consider the issues in which the minor
          attended counselling with Wendy Woods.
       Please see the previous response.

       4. The Trial Court did not consider Stephanie Cesare, Esquire's, the
           Guardian ad Litem, recommendation         in her Report of the
           Guardian ad Litem dated June 24, 2015.
       We found the report of the GAL to be helpful and appreciated her

questions to the witnesses in our effort to ferret out the truth as the hearings

progressed.   We also found her summation helpful. Notably, at no point did the

GAL state definitively whether she believed termination was appropriate.      In a

very tactful and proper manner, she pointed out her concerns with both parties

and her overriding concerns for the boys. As with almost every other aspect of

this case, the information from and through the GAL confirmed the need for

termination, not reunification.

       5. The Trial Court did not consider Petitioner Father's abhorrent
           conduct towards Appellant in considering the well-being of the
           minor.
       As often happens when counsel repeatedly ask the same questions in

court, we respond with simply "asked and answered."

       6. The Trial Court did not consider Dr. Laurie Pittman's testimony
           regarding the necessity for counselling for the minor, the concern
           for the lack of counselling and the issue with Petitioner allowing
           the parties' adult children to testify.
       Our concerns with the boys future needs for counseling were and are

genuine, but they do not trump Mother's failure to be a mother. Please refer to

our response to error B. 7.



                                         -11-
19 ADOPTIONS 20 .
20 ADOPTIONS 2015

       7. The Trial Court did not address Appellant'stestimonyor Father's
          failureto workwith Appellant regarding adoptingnew
          supervisorsto monitorchildren.
       Sadly, the error here is that Mother cannot accept responsibility for failing

to pick up the phone and contacting any of the proposed supervisors.

       8. The Trial Court did not considerPetitionerFather's failures
          regarding the custodyorders and the responsibilityof Father to
          have the minorparticipate in counselling.
       Asked and answered.

                                Ill.   Conclusion

       We regret that in responding to Mother's claims we may sound harsh and

insensitive. We hope that it was not unduly so and have tried to temper and

cleanse our remarks where possible. Nevertheless, our ultimate goal is not to

provide balm for the parties, but for the boys. Sadly, we have concluded that can

only be accomplished by termination of Mother's rights.

                                                 By the Court,



                                                ~{?
                                                 Albert H. Masland, J.

Jeanne B. Costopoulos, Esquire
For Petitioners

Damian J. Destefano, Esquire
For Nanci Mariko Samento

Stephanie Cesare, Esquire
Guardian ad /item for the Children

:sal




                                        -12-
                                                                                              ORPHANS' COURT DIVISION
                                                                                              COURTOFCOMMONPLEASOF
In Re: EDS & AMS                                                                              CUMBERLAND COUNTY
                                                                                              PENNSYLVANIA

                                                                                              NO. 19ADOPT2015&20ADOPT2015

                                                                      CERTIFICATE       OF SERVICE OF ORDER




JUDGE'S INITIALS:                          A!...!.!..!H.!.!.M!...__                                                                _

TIMESTAMPDATE:                             ~o~,1~14~n~o~1~6----------------------~

INRE:                                      =O~P~IN~I=O~N'------------------------~
...................................................................                 ,                                       ,

SERVICE TO:                     JEANNE COSTOPOULOS. 5000 RITTER RD STE 20?. MECHANICSBURG                               PA 17055
                                DAMIAN DESTEFANO. ?331 MARKET ST. CAMP HILL PA 17011
                                STEPHANIE CESARE. 2 W HIGH STREET. CARLISLE PA 17013

       METHOD OF MAILING:                                                                     ENVELOPES PROVIDED BY:

       ~ USPS                                                                                 O PETITIONER
       DRRR                                                                                   ~ JUDGE
       O HAND DELIVERED                                                                       O CLERK OF ORPHANS COURT
       OOTHER __

MAILED:          01/14/2016


..............................................                  ,         ,                                                 .
SERVICE TO:




       METHOD OF MAILING:                                                                     ENVELOPES PROVIDED BY:

       ousrs                                                                                  O PETITIONER
       DRRR                                                                                   0JUDGE
       O HAND DELIVERED                                                                       O CLERK OF ORPHANS COURT
       OOTHER __

MAILED:
                                                                          Circulated 06/30/2016 11:57 AM




IN RE: ADOPTION OF                             : IN THE COURT OF COMMON PLEAS OF
E.D.S., a minor                                : CUMBERLAND COUNTY, PENNSYLVANIA

                                               : 19 ADOPTIONS 2015




IN RE: ADOPTION OF                             : IN THE COURT OF COMMON PLEAS OF
A.M.S., a minor                                : CUMBERLAND COUNTY, PENNSYLVANIA

                                              faooPTIONS2015
                              IN RE: TERMINATION OF PARENTAL RIGHTS

                                         ORDER OF COURT

               AND NOW, this      /l~ay of November, 2015, following hearings on
June 26, 2015, July 31, 2015, and October 12, 2015, the Petitions for Involuntary

Termination of Parental Rights of N.S. with respect to E.D.S. (born July 2000)

and A.M.S. (born May 1999) are hereby GRANTED and her parental rights are

TERMINATED forever, with all the effects of such decree as provided in Section

2521 of the Adoption Act, including extinguishment of the power or right to object

to or receive notice of adoption proceedings.

               Sole physical and legal custody of E.D.S. and A.M.S. is hereby awarded

to Petitioner, T.S.

                                                      By the Court,



   •       1




   =-- )
                  G   ·-
                      '."_)
   L:'""

   c:
                      u
   r
19 ADOPTIONS 201ti
20 ADOPTIONS 2015

Jeanne B. Costopoulos, Esquire
For Petitioners

Damian J. Destefano, Esquire
For Nanci Mariko Samento

Stephanie Cesare, Esquire
Guardian ad /item for the Children

:sal




                                     -2-



                                           """""   __   ,   __
IN RE: ADOPTION OF                         : IN THE COURT OF COMMON PLEAS OF
E.D.S., a minor                            : CUMBERLAND COUNTY, PENNSYLVANIA

                                           : 19 ADOPTIONS 2015




IN RE: ADOPTION OF                           IN THE COURT OF COMMON PLEAS OF
A.M.S., a minor                              CUMBERLAND COUNTY, PENNSYLVANIA

                                           : 20 ADOPTIONS 2015

                    IN RE: TERMINATION OF PARENT AL RIGHTS

                           OPINION AND ORDER OF COURT

Masland, J., November 18, 2015:--

                                  I.   Introduction

       Before the court are the Petitions for Involuntary Termination of the

Parental Rights of N.M.S. (Mother) filed by T.S. (Father) and C.S. (Adoptive

Mother) regarding the minor children E.D.S. (born July 2000) and A.M.S. (born

May 1999). Because the parties are well aware of the tortuous procedural and

factual background of this case, we will save the full recitation for a likely 1925

opinion for the Superior Court.

       As a wiser jurist than I advised me, "tough cases do not get easier with

time." This case may be simple from the perspective of what must be done;

however, doing it is far from easy. Although this matter has been prolonged far

too long by the parties themselves, my characteristic reluctance to terminate has

extended their anxiety longer than warranted.

       Therefore, we will not countenance the quixotic, time-consuming

measures that would be required by Mother's last-ditch request to fan embers
19 ADOPTIONS 201 b
20 ADOPTIONS 2015

that have long since grown cold. Instead, in recognition that there are no bonds

to salvage, we will terminate Mother's parental rights - the only measure that will

provide hope for the children. Nevertheless, out of recognition for the pain this

will cause Mother, we issue this opinion with only the basic, unembellished facts

necessary to support our decision.

                                  II.    Background

       Mother and Father adopted the minor children in 2005, in an international

adoption that removed them from a physically abusive home in Guatemala.          The

children, natural brothers, joined a seemingly well-adjusted family that included

three now-adult sisters, B.S., Ti.S. and C.S.

       Sadly, within four years the marriage had deteriorated to the point that

Father filed for divorce in November of 2009. We will not recite the myriad of

allegations that arose as to the cause of the marital problems.   Suffice it to say

that neither Mother nor Father was the best of spouses.    More importantly for our

purposes, the first custody order issued on July 15, 2010, not only noted the

parties' intense animus for one another, but also recognized deficits in their

parental abilities, particularly Mother's.

       Significantly, the July 2010 order was the result of a comprehensive

stipulation presented in open court, which resulted primarily from a detailed

custody evaluation conducted by Deb Salem. Father was awarded legal custody

and primary physical custody, and Paragraph 2(8) 1 and 2 of the order granted

Mother partial custody of the boys as follows:

                     Alternating weekends, Saturdays and Sundays
               from 10:00 a.m. to 4:00 p.m., not overnight, and every


                                             -2-
                     ....   -..

19 ADOPTIONS 201 b
20 ADOPTIONS 2015
              Thursday from 3:00 p.m. to 9:00 p.m.All contact
              between mother and the boys will be supervised.
             The supervisor for mother's time with the boys can be
             mutually agreed upon by both parents and their
             respective counsel and need not be a professionally
             paid supervisor. The parties specificallyagree that
             Angel Garcia or the youth leaders from either Grace
             Community Church in Mechanicsburg or West Shore
             Free in Mechanicsburg are acceptable supervisors.
             In the event these supervisors are unwilling or
             unavailable to provide supervision, and the
             parties cannot agree on an alternate supervisor,
             either party may request a conciliationconference
             or hearing before the judge to make a final
             determination without the need of additional
             pleadings.

                    Mother's access to the boys will be limited
             to the supervised schedule set forth above until
             there is certaintythrough her chosen therapistin
             collaborationwith the chosen therapist for the
             boys that mother can carry out what is needed to
             stop the alienation strategies with the boys. With
             these interventions in place, it is hoped that there will
             be a gradual         increase   in mother's    time to
             unsupervised     alternating weekends,     from Friday
             through Sunday overnight, with a possible right of first
             refusal to care for the boys at times when father is
             working and she is not. (emphasis added)

      Although there was much disagreement in our hearings regarding the

import and ramifications of the order, for background purposes it is important to

note solely that despite an agreement that awarded Mother partial custody, albeit

supervised, Mother never exercised her rights under this order. Indeed, the

custody action was dormant for over two years, with the arguable exception of

Mother's Petition for Special Relief filed on January 27, 2011. That petition

alleged, inter alia, that Father had posted derogatory remarks, photos and other

matters on Facebook, which caused Mother "great mental and physical pain



                                        -3-
                     .-~


19 ADOPTIONS 2010
20 ADOPTIONS 2015

[and] have also caused undeterrninabledamage to the minor children; but, have

now grown to such a degree that [Mother] fears for her safety." ,I 13. Mother's

prayer for relief in this Petition sought removal of the alleged defamatory postings

and expressed concern that the children "may gain access to" the materials.

Notably, Mother did not request any relief related to physical custody of the boys.

      On December 28, 2012 Mother filed Petition for Emergency Relief that

expressed concern regarding alienation and requested joint legal custody, partial

physical custody and counseling for the boys. Deb Salem was again appointed

by the court to conduct an updated evaluation. The court relied upon her

recommendations, when it issued its order of June 24, 2013, which provided:

              1. Sole legal and physical custody of A.M.S. and
                 E.D.S. shall be with Father.

             2. Deb Salem shall select a therapist for Mother and
                shall notify counsel for both parties.

             3. Within 14 days, Mother shalt contact the selected
                therapist and schedule an appointment. She shall
                then notify Deb Salem of the date of the
                appointment, and Deb Salem will then discuss the
                goals and context of the therapy with the selected
                therapist.

             4. Mother's therapist shall contact Deb Salem when
                he or she believes Mother has reached the point
                where she is imminently ready to begin the
                reunification process.

              5. Deb Salem wit! then instruct Father to begin
                 preparatory therapy for the boys. Said therapy
                 shall occur for six weeks.

             6. At the end of the six weeks of preparatory therapy
                for the boys, a reunification strategy shall be
                developed jointly by Mother's therapist, the boy's
                therapist, and Deb Salem.

                                        -4-
19 ADOPTIONS 201b
20 ADOPTIONS 2015

                 7. The parties shall cooperate with the selected
                    strategy that has been developed.

       The saddest and most salient fact in this case is that following this second

order, in which our colleague laid out the best of plans, Mother demonstrated an

inability or unwillingness to follow through, resulting in her failure to see the boys

to this date. And, as with her previous failures, Mother blames everything on

forces and individuals outside of her control. Mother's litany of culprits is

comprehensive, but, as we will discuss below, we fail to see the conspiracy to

thwart her desire to be a mother. Rather, her actions and inactions speak

volumes.    Other than a text message shortly before the first hearing, Mother has

not communicated with the boys since July 12, 2010.

       Three significant dates remain. On January 10, 2015, Father married his

current wife, C.S. On February 15, 2015, Mother filed a Petition for Modification

of the 2013 order. The termination petitions were filed on March 4, 2015.

       A pre-trial conference was held on May 7, 2015, with counsel and the GAL

in attendance.     Hearings were held on June 26, 2015, July 31, 2015, and

October 12, 2015.

                                  Ill.   Discussion

       A.      The Petitions for Termination - Retaliatory or Preventive?

       Mother's threshold argument against termination is that the petitions for

termination were retaliatory in nature, having been filed in response to her

petition for modification of the custody order. Mother's pretrial memorandum

relied on the Superior Court opinion of In re: Adoption of: M.R.D. and T.M.D.,

Minor Children, 2015 PA Super 32; however, the majority and dissenting


                                          -5-
19 ADOPTIONS 2015
20 ADOPTIONS 2015

opinions were withdrawn on April 1, 2015 and the court, sitting en bane, heard

argument on June 30, 2015. Although not controlling, we have reviewed the

M.R.D. opinions carefully, as well as In re Adoption of L.J.B., 18 A.3d 1098 (Pa.

2011), upon which the majority in M.R.D. relied heavily.

       Because termination cases are highly fact dependent, our review of both

M.R.D. and L.J.B. satisfies us that the lives of E.D.S and A.M.S need not await

further refinement of the law from our appellate courts. Irrespective of the

outcome of M.R.D., we anticipate a Supreme Court review. Though we may

benefit from the abstract theory, if the Superior Court renders a decision before

we are called to write an opinion for that court, the concrete details of this case

defy comparison and eschew further delay.

       Not surprisingly, we are more inclined toward President Judge Gantman's

dissenting opinion in M.R.D., which gave deference to the trial court, noting:

              I think the majority misapplies the appropriate
              standard of review.           Although the majority
              acknowledges the Orphans' court found Maternal
              Grandfather's testimony credible, the majority
              improperly reweighs the evidence and decides the
              principal purpose of Mother and                Maternal
              Grandfather's petition for involuntary termination of
              Father's parental rights was to punish or retaliate
              against Father for seeking custody. I think the
              majority infuses the petition with punitive intent.
              Contrary to the majority's view, I maintain we should
              permit the Orphans' court to sit as the fact-finder in
              the case and respect the court's findings on the
              credibility of the witnesses and the motivation for their
              actions.


              In this statement, the court made clear it believed
              Mother and Maternal Grandfather's objective in filing
              their petition was to protect Children and not to

                                         -6-
                        -·~.                                          ........

19 ADOPTIONS 201 o
20 ADOPTIONS 2015

               retaliate or get even with Father. The timing of their
               petition is not dispositive of punitive intent, particularly
               in light of the court's conclusion otherwise. We are an
               error-correcting Court, without authority to reverse
               credibility determinations, which the record supports,
                                                          1
               simply to reach a different conclusion.

               Dissenting Opinion at 19-20 (emphasis in the original;
               citations omitted)

       Mother believes that the timing of the filings is determinative. We

disagree. While, in theory, it may appear that everything is "an equal and

opposite reaction" to something else, in reality such conclusions often lack the

requisite depth of analysis. Based on all the evidence, we find the termination

petitions were neither retaliatory nor punitive in nature ... or even by design.

Initially, we note that Father's marriage to C.S. occurred one month before

Mother's petition was filed. Technically, his marriage was a necessary precursor

to termination, as Father could not have filed in the absence of a prospective

step-parent's intention to adopt. See 23 Pa.C.S. § 2512(b). Practically, its timing

was based on confirming a genuine relationship - it was not a plan to foil

Mother's then-unknown intention to file for modification.

       Further, as our Supreme Court has noted, the legislative intent for

involuntary terminations:

                Is not to punish an ineffective or negligent parent, or
                provide a means for changing the surname of the
                child. Rather, the purpose of involuntary termination
                of parental rights is to dispense with the need for
                parental consent to an adoption when, by choice or
                neglect, a parent has failed to meet the continuing
                needs of the child.


1
 We are aware that this is an unreported and withdrawn opinion. Although it informs us, our
decision is independent of its analysis.

                                              -7-
19 ADOPTIONS 201 b
20 ADOPTIONS 2015

lnre: B.E., 377 A.2d 153, 156(Pa.1977).

       To be sure, at one level, Father harbors sufficient animus to want nothing

less than to punish Mother, who has been both ineffective and negligent for five

years. And, the petitions were at least a partial reaction to Mother's resurfacing.

Nevertheless, we find the overriding purpose of the termination petitions was to

provide for the boys' futures and protect them from the past. Thus, we will not

quibble over what it takes for a reaction to be punitive. We have yet to see a

litigant who is "pure in heart," perhaps because we are too tainted to perceive.

But, if that is the test we are to impose in this or any matter, precious little relief

will trickle from our spigots.

       Just as the petitions sought to prevent the infliction of unnecessary

trauma, our order does likewise. Sadly, no matter how much we claim that our

intent is not to punish Mother, we recognize that from her perspective, that is the

effect. We regret that fact, but do not apologize - we are more concerned for the

boys' wellbeing.

                           B.     Groundsfor Termination

       Having passed the threshold, we find that Petitioners have proven by clear

and convincing evidence that termination of Mother's parental rights is

appropriate pursuantto 23 Pa.C.S. § 2511 (a)(1 ), which provides as follows:

                       (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


                                           -8-
19 ADOPTIONS 201       o
20 ADOPTIONS 2015

                       parental claim to a child or has refused or
                       failed to perform parental duties.

       Although Mother's Petition for Modification falls within the 6-month "look

back" period, in the context of the last five years of this saga, we will not accord it

an elevated status. A solitary petition in a sea of indifference is not evidence that

she has no settled purpose of relinquishing her parental claim, and it does not

counter the evidence of her refusal and failure to perform any parental duties.

       This is not a case where Father rebuffed Mother's repeated, plaintive

requests to see the boys. To the contrary, the only "roadblocks" to Mother

maintaining contact with the boys and performing parental duties were two court

orders. The 2010 order was entered by stipulation in open court and gave

Mother an easy path to having immediate supervised visits. Her explanations

were hollow regarding her failure to pick up the phone and call any of the

potential supervisors or to ask the court to name a new one. Instead of

swallowing her pride and moving forward, Mother did nothing and the boys went

on with their lives.

       The 2013 order recognized Mother's failures and set forth a step-by-step

plan. Although she arguably took one step forward by meeting with Dr. Tegan

Blackbird, Mother failed to follow through with him, providing equally hollow

excuses. After hearing Deb Salem's testimony and reviewing her evaluations,

Mother's actions did not surprise us. Although much could be said, it all boils

down to Mother's refusal to take responsibility for any of the problems that

brought the parties to court for custody, divorce and now the termination of her




                                          -9-
                      .-.
19 ADOPTIONS 2010
20 ADOPTIONS 2015

rights. The evidence in support of termination is not only clear and convincing, it

is compelling.

                                     C.     Bond

       Having found that Petitioners have satisfied the requirements of Section

2511(a), we proceed to the "best interest" analysis under Section 2511(b), as set

forth below:

                       (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.

       The record of this case is replete with evidence that there is no bond

between the boys and Mother. Indeed, as noted in Deb Salem's evaluations, to

the extent there was a bond, it was unhealthy. Additionally, Mother could not

point to any evidence that a bond still exists, and her expert failed to convince us

that reunification counseling should be pursued to see if a bond could be forged.

That is the epitome of an exercise in futility. As painful as that summary may

sound to Mother, we will avoid further moralizing until an appeal is filed.

       On the other side of the analysis, we are eminently satisfied that Adoptive

Mother has been the mother for at least the past four years and is the only one

capable of providing that nurturing relationship alongside of Father. In fact, we



                                          -10-
19 ADOPTIONS 2010
20 ADOPTIONS 2015

are more concerned with the impact on the boys' relationship with Adoptive

Mother if we attempted Mother's request for reunification counseling. That would

be a travesty - it might serve to assuage Mother's feelings of guilt, but it would

not be beneficial to the boys in any way, shape or form. Indeed, the mere receipt

of a text from Mother sent one child into a near tailspin.

       tn conclusion, the prospects for reunification are so slim that anything

other than termination is a disservice. The evidence is clear, convincing and

competent to demonstrate not only that Mother has failed to perform her parental

duties, but also that termination of Mother's parental rights will best serve the

boys' physical, developmental, and emotional needs and welfare. Accordingly,

the following order will be entered:

                                    ORDER OF COURT

       AND NOW, this       /J'~ay        of November, 2015, following hearings on
                          •
June 26, 2015, July 31, 2015, and October 12, 2015, the Petitions for Involuntary

Termination of Parental Rights of N.S. with respect to E.D.S. (born July 2000)

and A.M.S. (born May 1999) are hereby GRANTED and her parental rights are

TERMINATED forever, with all the effects of such decree as provided in Section

2521 of the Adoption Act, including extinguishment of the power or right to object

to or receive notice of adoption proceedings.

       Sole physical and legal custody of E.D.S. and A.M.S. is hereby awarded

to Petitioner, T.S.




                                         -11-
                    .. -...



19 ADOPTIONS 201 b
20 ADOPTIONS 2015


Jeanne B. Costopoulos, Esquire
For Petitioners

Damian J. Destefano, Esquire
For Nanci Mariko Samento

Stephanie Cesare, Esquire
Guardian ad /item for the Children

:sal




                                     -12-
                                                                          ORPHANS' COL  DIVISION
                                                                          COURT OF COMMON PLEAS OF
In Re: AMS                                                                CUMBERLAND COUNTY
                                                                          PENNSYLVANIA

                                                                          NO. 20 ADOPT2015

                                                     CERTIFICATE OF SERVICE OF ORDER




JUDGE'S    INITIALS:        !..CA,.,_H,.,_,MC!...-                                                                       _

TIME STAMP DATE:            2..l.,__,_l/-- '-8""/=20,,_,l-"-5-----------------------
                                             'l

INRE:                       ~O~R~D~E~R~O=F~C=O~U~RTC!...-                                                                    ~


SERVICE TO:            JEANNE COSTOPOULOS, 5000 RITTER RD, STE 202. MECHANICSBURG                             PA 17055
                       STEPHANIE CESARE. 2 W HIGH ST, CARLISLE PA 17013
                       DAMIAN DESTEFANO, 2331 MARKET STREET, CAMP HILL PA 17011

    METHOD OF MAILING:                                                    ENVELOPES PROVIDED BY:

    [Zl USPS                                                              D PETITIONER
    0RRR                                                                  [Zl JUDGE
    O HAND DELIVERED                                                      O CLERK OF ORPHANS               COURT
    OOTHER __

MAI LED: I I /18/2015




SERVICE TO:




    METHOD OF MAILING:                                                    ENVELOPES PROVIDED BY:

    0USPS                                                                 D PETITIONER
    ORRR                                                                  0JUDGE
    O HAND DELIVERED                                                      O CLERK OF ORPHANS COURT
    OOTHER __

MAILED:




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                                                                  /   Clerk of Orphans' Cotf!"("
