J-S93001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.A., MINOR CHILD                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: K.D.A., MOTHER

                                                     No. 2571 EDA 2016


                  Appeal from the Order entered July 13, 2016,
                in the Court of Common Pleas of Wayne County,
                     Civil Division, at No(s): No. 3-AD-2016.


BEFORE: DUBOW, SOLANO AND PLATT,* JJ.

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

        Appellant, K.D.A. (“Mother”), appeals from the Order involuntarily

terminating her parental rights to A.A. (“Child”) pursuant to the Adoption

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

SUMMARY OF FACTS AND PROCEDURAL HISTORY

        Child was born in November 2009 to Mother and M.S. (“Father”). On

January 14, 2014, the Wayne County Children and Youth Services (“the

Agency” or “CYS”) filed an Application for Emergency Protective Custody

after Child was found in the physical custody of an inappropriate caretaker

and Mother could not be located. When Mother was eventually located, she


____________________________________________


*
    Retired Senior Judge Assigned to the Superior Court.
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tested positive for illegal substances. Father was not part of the Child’s life

at that point. The trial court granted the Petition, and placed Child in foster

care.

        On February 19, 2014, the court adjudicated Child dependent, and

awarded legal and physical custody to the Agency for placement in foster

care.      The   Agency   initially   established   reunification   as   the    Child’s

permanency goal.       The court held permanency review hearings regularly

throughout the rest of 2014 and into early 2015. During that period, CYS

worked with Mother to assist her with her drug problem, find suitable

housing, and obtain steady employment. At the conclusion of each hearing,

the trial court found that Mother made little or no progress towards meeting

her permanency plan goals.

        After the Child had been in placement for a year, in February 2015,

the Agency petitioned the trial court to change Child’s permanency goals to

adoption and then to proceed to terminate the parental rights of both Mother

and Father.      At that time, however, the trial court acknowledged Father’s

new found interest in Child, and directed the Agency to pursue efforts to

reunify Child and Father.

        The Agency continued to provide assistance for Mother.                 Mother,

however, made minimal effort to visit with the Child and continued to make

minimal progress towards meeting her permanency goals. In particular, she

tested positive on urine screens in May 2015, and failed to obtain housing or

employment.

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       Since the Mother was making minimal effort to visit with the Child or

meet her permanency objectives, on July 27, 2015, the trial court suspended

Mother’s visitation with Child. The suspension of the Mother’s visits with the

Child also permitted the Child to work through issues pertaining to his

relationship with Father.

       By late 2015, however, efforts to reunite Child with Father proved

unsuccessful. In a fifth Revised Permanency plan dated December 11, 2015,

Mother’s goals were to remain clean and sober, to prepare for Child to return

to her care, and to make sure Child maintained good health and consistent

care while in her custody. The Agency’s main concerns regarding Mother at

this time were her continued substance abuse, her establishment of a

residency, and obtaining steady employment.

       On February 24, 2016, the Agency filed another Goal Change Petition

requesting     that   the   trial   court      change   the   permanency   goal   from

reunification to adoption. Following an evidentiary hearing held on February

23, 2016, the trial court, in an Order dated the next day and filed on March

7, 2016, granted the Agency’s Goal Change Petition and changed the goal to

adoption. Mother timely appealed.1




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1
  On December 1, 2016, this Court affirmed the trial court’s order changing
the goal to adoption. See In the Interest of: A.A., A Minor, 1006 EDA
2016 (Pa. Super. filed Dec. 1, 2016), 2016 Pa. Super. Unpub. LEXIS 4376.



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       On March 22, 2016, the Agency filed a Petition for Involuntary

Termination of Parental Rights (“TPR Petition”) pursuant to 23 Pa.C.S. §

2511(a)(1), (2), (5), and (8).         The trial court held an evidentiary hearing

regarding the Agency’s TPR Petition on May 23, 2016.                     The Agency

presented the testimony of a supervisor with knowledge of the case, and

Mother testified on her own behalf.             In addition, both parties introduced

exhibits to support their positions.           At the close of this hearing, the trial

court took the matter under advisement. By Order and Decree entered July

13, 2016, the trial court terminated Mother’s parental rights pursuant to

Section 2511 (a)(1), (2), (5) and (8), and (b) of the Adoption Act. 2 Mother

timely appealed.

ISSUES ON APPEAL

       Mother raises the following issues on appeal:

          1. Whether the Trial Court below erred as a matter of law
             and/or abused its discretion in Terminating [Mother’s]
             Parental Rights[?]

          2. Whether the Trial Court below erred as a matter of law
             and/or abused its discretion in Terminating [Mother’s]
             Parental Rights after first having suspended [her]
             visitation with [Child] a year earlier?

Mother’s Brief at 4. We will address Mother’s claims together.



____________________________________________


2
 The court continued the termination proceedings against Father due to the
court’s uncertainty as to whether he had received appropriate notice.



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LEGAL ANALYSIS

      The standard of review in termination of parental rights cases requires

appellate courts “to accept the findings of fact and credibility determinations

of the trial court if they are supported by the record.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported,

appellate courts review to determine if the trial court made an error of law

or abused its discretion.” Id. We may reverse a decision based on an abuse

of discretion only upon demonstration of “manifest unreasonableness,

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

merely because the record would support a different result.” Id. at 827.

      We give great 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). The trial court is free to believe all, part, or none

of the evidence presented and is likewise free to make all credibility

determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d

68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination

of parental rights, this Court need only agree with the trial court’s decision

under any one subsection of Section 2511(a). See In re B.L.W. 843 A.2d

380, 384 (Pa. Super. 2004) (en banc).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We


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have explained that “[t]he standard of clear and convincing evidence is

defined as testimony that is so clear, direct, weighty and convincing as to

enable the trier of fact to come to a clear conviction, without hesitance, of

the truth of the precise facts in issue.” Id. (citations omitted).

      Termination Pursuant to 2511(a)(1)

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

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

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

failure to perform parental duties:

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

            (1)   The parent by conduct continuing for a period of at
                  least six months immediately preceding the filing of
                  the petition has evidenced a settled purpose of
                  relinquishing parental claim to a child or has
                  refused or failed to perform parental duties.

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

requiring the Petitioner to demonstrate a settled intent to relinquish a

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

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


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

omitted).

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

provide safety, security and stability for the child affirmatively and

consistently:

         There is no simple or easy definition of parental duties.
         Parental duty is best understood in relation to the needs of
         a child. A child needs love, protection, guidance, and
         support. These needs, physical and emotional, cannot be
         met by a merely passive interest in the development of the
         child.   Thus, this Court has held that the parental
         obligation is a positive duty which requires affirmative
         performance. This affirmative duty … requires continuing
         interest in the child and a genuine effort to maintain
         communication and association with the child. Because a
         child needs more than a benefactor, parental duty requires
         that a parent exert himself to take and maintain a place of
         importance in the child’s life.

Id.

      Moreover, a parent must exercise reasonable firmness in resisting

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

         Parental duty requires that the parent act affirmatively
         with good faith interest and effort, and not yield to every
         problem, in order to maintain the parent-child relationship
         to the best of his or her ability, even in difficult
         circumstances.     A parent must utilize all available
         resources to preserve the parental relationship, and must
         exercise reasonable firmness in resisting obstacles placed
         in the path of maintaining the parent-child relationship.

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

omitted).

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

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



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responsibilities while others provide the child with her physical and

emotional needs.” Id.

     In the instant case, the trial court properly concluded that the Agency

met the requirements of Section 2511(a)(1).     The court found that, in the

relevant period prior to the Agency’s filing of the TPR Petition on March 22,

2016, Child had remained in placement, and Mother had failed to meet her

established goals.   In fact, the trial court found that, at times, Mother’s

whereabouts were unknown:

        This Court finds that Mother evidenced a settled purpose of
        relinquishing her parental rights. Furthermore, Mother
        evidenced a failure or refusal to perform parental duties for
        the six month period preceding the filing of the [TPR
        Petition].

        As a result of this Court’s July 27, 2015, order that
        suspended Mother’s visits, Mother has not seen [Child]
        since that date. However, lack of visitation alone is not
        dispositive.

        In the case at bar, Mother’s visits were suspended more
        than 18 months after [Child] entered placement. Pursuant
        to the February 26, 2016, permanency review order,
        Mother showed minimal compliance.        Mother provided
        intermittent AA/NA meeting attendance and refused a
        random urine screen for drugs on 11/13/15. Mother failed
        to provide [the Agency] with her residence. Furthermore,
        when [the Agency] created a plan to help Mother become
        clean and sober Mother made no effort to comply with the
        plan. As a result, Mother has made it difficult for [the
        Agency] to contact her because she had made her
        whereabouts unknown to them.

                                   ***

        Here, Mother failed to perform parental duties and
        evidenced a settled purpose to relinquish her parental
        rights. Mother’s explanation for the conduct that gave rise


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         to [Child’s] placement was that she was in “active
         addiction”, she was “irresponsible”, and she “did not put
         her son first in her life”. These explanations do not justify
         her inability to perform parental duties. [Child] identified
         [the foster parents] as “Mom and Dad”. Prior to her visits
         being suspended, Mother’s interactions were observed as
         being “one-sided”. When Mother initiated the “hugs and
         kisses” [Child] was reluctant to reciprocate. [Child] is
         enrolled in RD Wilson School and is thriving, pursuant to
         the February 24, 2016 Permanency Review Order.
         Therefore, Mother established a failure to perform parental
         duties.

         On the other hand, [the Agency] has cared for [Child]
         since January 17, 2014. According to [an employee of the
         Agency], it would be detrimental to remove him from [the
         foster parents’] care. Not only does [Child] consider [the
         foster parents] his “mom” and “dad,” but he also does not
         initiate interactions with Mother.

         Therefore based on the aforementioned reasons, [the
         Agency] has established grounds for termination under
         section 2511(a)(1) by clear and convincing evidence that
         Mother refused or failed to perform her parental duties.

Trial Court’s Opinion, 7/13/16, at 6-7.

      Mother argues that the termination of her parental rights is not

supported by the evidence because the Agency failed to meet its burden

under Section 2511(a)(1).       She asserts that the trial court erred in

terminating her parental rights to Child “after having previously barred [her]

from contact with [Child],” and “despite [her] slow and cumbersome – but

progressive – steps to reconnect with [Child].”         Mother’s Brief at 9.

According to Mother, “since the spring of 2015, she had completed a drug

and alcohol inpatient program and was hoping to rekindle her relationship

with [Child].   However, the Trial Court entered the visitation suspension

Order.” Id. at 20.

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      Our review of the record refutes Mother’s claims. As noted by the trial

court, supra, Mother’s inability to visit with Child after the trial court

suspended her visits did not interfere with her permanency objectives of

remaining sober and obtaining housing and employment. Although Mother

testified that she had recently made great strides in overcoming her

addictions, she provided minimal evidence of her completion of any of her

permanency plan goals. It was for the trial court to determine, as a matter

of credibility, the weight to be given Mother’s assertions.       In re M.G.,

supra.

      Moreover, when the trial court gave the Mother the opportunity to visit

with the Child, the Mother only visited sporadically. Consequently, Mother’s

argument that the suspension of the visits interfered with her ability to meet

her objectives is disingenuous.

      Finally, we note that the trial court was not to consider Mother’s efforts

made after the TPR petition was filed when considering termination under 23

Pa.C.S. § 2511(a)(1).      See 23 Pa.C.S. § 2511(b) (providing that “[w]ith

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 [TPR Petition].”

      Accordingly, the court did not abuse its discretion in terminating

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




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      Termination Pursuant to Section 2511(b)

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

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

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

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

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

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

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

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

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

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

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

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

the Orphans’ Court must also discern the nature and status of the parent-

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

severing that bond. Id.

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

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

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

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

      In the instant case, the trial court found that Mother’s sporadic visits

with the Child were “one-sided” in that Child seldom initiated affection with

her. Thus, the court found that little or no bond exists between them. In

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addition, the Agency submitted a letter “signed” by Child in which he stated

his desire to remain with his foster parents.      Accordingly, the court found

that termination of Mother’s parental rights would not have a negative

impact on Child, and that a healthy bond existed between Child and the

foster parents:

         Based upon the evidence and testimony presented, this
         Court finds that it is in the best interest of [Child] to
         terminate the parental rights of Mother. In regards to
         Mother, her housing, employment, and income are
         unknown to this Court and [the Agency]. What is known is
         that Mother has been nearly absent in [Child’s] life for the
         past two (2) years. The parent-child bond between Mother
         and [Child] is almost non-existent. [Child] responded to
         an inquiry from [the Agency’s employee] by saying, in
         reference to foster mother and father, “I want to stay here
         with mom and dad.” Furthermore, [Child] has bonded
         with [foster parent’s] children. [Child] is six (6) years of
         age and [Mother] has been absent in excess of two (2) of
         those years. Furthermore, Mother only vaguely evidenced
         a willingness to comply with the permanency plan after
         Father had established paternity and showed [an] interest
         in reuniting with [Child]. Therefore, any attempts Mother
         made to comply with the permanency plan were futile and
         only initiated due to Father arriving on the scene.

         Since [Child] moved in with [the foster parents] on
         January 17, 2014, he has been loved and provided for by
         [them]. This period in [Child’s] life is the only period of
         stability [Child] has ever had. [Child] deserves to grow up
         in a home with stability with parents on whom he can
         depend.

Trial Court’s Opinion, 7/13/16, at 12.

      Mother argues that, “[e]xcept for a ‘letter’ from [Child] the record

lacks any” finding that termination is in Child’s best interest, “especially after



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[her]    contact   with   [Child]   was    terminated   almost   a   year   prior   to

termination.”      Mother’s Brief at 27.       According to Mother, “there is no

testimony of any bond between [Child] and his foster parents or the lack of

a bond with Mother.” Mother’s Brief at 28.

        Our review of the record refutes Mother’s assertions. Although given

the opportunity, Mother presented no testimony regarding the strength of

her bond with Child. Rather, Mother testified only that she loves Child, and

that she was never given the opportunity to be a parent. N.T., 5/23/16, at

80-81. To the extent Mother implies that the trial court Order suspending

her visits with Child vitiated her parenting “opportunity,” we note that the

record establishes that, even prior to the entry of the 2015 Order, Mother’s

visits with child were not consistent. See id., at 24 (Mother completed only

38 of 74 scheduled visits between July 2014 and July 2015). Moreover, the

Agency’s employee testified that, in her opinion, little or no bond existed

between them. Finally, although neither foster parent personally testified as

to a bond with Child, the Agency’s employee’s testimony regarding its

existence was a matter of credibility for the trial court. In re M.G., supra.

        CONCLUSION

        In sum, our review of the record supports the trial court’s conclusion

that the Agency met its statutory burden of proving by clear and convincing

evidence that Mother’s parental rights should be terminated pursuant to 23

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

        Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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