J-S38032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.E.V., A MINOR      :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: N.V., MOTHER                  :         No. 2831 EDA 2016

                Appeal from the Order Dated August 2, 2016
            In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-AP-0000640-2016,
                          FID: 51-FN-002378-2012

IN THE INTEREST OF: A.S.R., A MINOR      :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: N.V., MOTHER                  :         No. 2832 EDA 2016

                Appeal from the Order Dated August 2, 2016
            In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-AP-0000641-2016,
                          FID: 51-FN-002378-2012

IN THE INTEREST OF: S.S.V., A MINOR      :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: N.V., MOTHER                  :         No. 2833 EDA 2016

               Appeal from the Order Entered August 2, 2016
            In the Court of Common Pleas of Philadelphia County
              Family Court at No(s): CP-51-AP-0000642-2016,
                          FID: 51-FN-002378-2012

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED JUNE 27, 2017

     Appellant, N.V. (“Mother”), appeals from the orders entered in the

Philadelphia County Court of Common Pleas Family Court, which changed

___________________________

*Former Justice specially assigned to the Superior Court.
J-S38032-17


the family goal to adoption and granted the petitions of the Department of

Human Services (“DHS”) for involuntary termination of Mother’s parental

rights to her minor children, Z.E.V., A.S.R., and S.S.V. (“Children”). 1   We

affirm.

      In its opinion, the Family Court fully and correctly set forth the

relevant facts and procedural history of this case.   Therefore, we have no

reason to restate them.

      Mother raises five issues for our review:

          WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
          PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. §
          2511(A)(1)?

          WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
          PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. §
          2511(A)(2)?

1
  The Family Court changed the family goal from reunification to adoption
and involuntarily terminated Mother’s parental rights to Children on August
2, 2016. Mother timely filed notices of appeal on September 1, 2016, and a
briefing schedule was ordered on October 19, 2016. Notwithstanding the
initial appeal filing date, the appeals were dismissed on November 7, 2016,
for counsel’s failure to comply with Pa.R.A.P. 3517 (governing filing of
docketing statement).         The docketing statements were received on
November 8, 2016, and the appeals were quickly reinstated sua sponte by
order of November 10, 2016. The appeals were consolidated sua sponte on
November 15, 2016, for disposition. When counsel failed to file an appellate
brief by November 18, 2016, this Court remanded the matter to the Family
Court to determine whether counsel had abandoned Mother on appeal and
retained jurisdiction. The cases were not listed sooner for disposition due to
the delay caused by counsel. Although due on 3/14/17, counsel filed
Mother’s appellate brief on March 16, 2017. The cases were promptly listed
at the conclusion of briefing. We offer this procedural history to explain the
delay in the resolution of this child-fast-track appeal. See In re T.S.M., 620
Pa. 602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching this Court for
unexplained delays in disposition of cases involving at-risk children,
causing them to remain in stasis for substantial, unnecessary time).


                                     -2-
J-S38032-17



         WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
         PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. §
         2511(A)(5)?

         WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
         PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. §
         2511(A)(8)?

         WHETHER THE TRIAL COURT ERRED BY FINDING, UNDER
         23 PA.C.S.A. § 2511(B), THAT TERMINATION OF
         [MOTHER’S] PARENTAL RIGHTS BEST SERVES THE
         CHILDREN’S   DEVELOPMENTAL,    PHYSICAL     AND
         EMOTIONAL NEEDS AND WELFARE?

(Mother’s Brief at 5).

      Appellate review of termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent
         evidence, and whether the trial court gave adequate
         consideration to the effect of such a decree on the welfare
         of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand.       …    We must
            employ a broad, comprehensive review of the record
            in order to determine whether the trial court’s
            decision is supported by competent evidence.

         In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
         banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
         (internal citations omitted).

            Furthermore, we note that the trial court, as the


                                    -3-
J-S38032-17


            finder of fact, is the sole determiner of the credibility
            of witnesses and all conflicts in testimony are to be
            resolved by the finder of fact. The burden of proof is
            on the party seeking termination to establish by
            clear and convincing evidence the existence of
            grounds for doing so.

         In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
         2002) (internal citations and quotation marks omitted).
         The standard of clear and convincing evidence means
         testimony that is so clear, direct, weighty, and convincing
         as to enable the trier of fact to come to a clear conviction,
         without hesitation, of the truth of the precise facts in issue.
         In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
         may uphold a termination decision if any proper basis
         exists for the result reached. In re C.S., 761 A.2d 1197,
         1201 (Pa.Super. 2000) (en banc). If the court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even if the record could support an
         opposite result. In re R.L.T.M., 860 A.2d 190, 191-92
         (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

      DHS filed a petition for the involuntary termination of Mother’s

parental rights to Children on the following grounds:

         § 2511. Grounds for involuntary termination

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

            (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.



                                      -4-
J-S38032-17


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

                               *    *    *

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

                               *    *    *

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

                               *    *    *

       (b) Other considerations.―The court in terminating
       the rights of a parent shall give primary consideration to
       the developmental, physical and emotional needs and
       welfare of the child. The rights of a parent shall not be
       terminated solely on the basis of environmental factors
       such as inadequate housing, furnishings, income, clothing
       and medical care if found to be beyond the control of the
       parent. With respect to any petition filed pursuant to


                                   -5-
J-S38032-17


        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), (2), (5), (8), and (b). “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., supra at 1117.

        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 …her parental rights does
        the court engage in the second part of the analysis
        pursuant to Section 2511(b): determination of the needs
        and welfare of the child under the standard of best
        interests of the child.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

     Termination under Section 2511(a)(1) involves the following:

        To satisfy the requirements of [S]ection 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 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 Section 2511(a)(1) if
           the parent either demonstrates a settled purpose of
           relinquishing parental claim to a child or fails to
           perform parental duties.



                                    -6-
J-S38032-17


            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 …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).

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

omitted).     Regarding 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 …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), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted).

      The     grounds    for   termination   of   parental   rights   under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary, those grounds may

include acts of refusal as well as incapacity to perform parental duties. In

re A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.”    Id. at 340.      The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania


                                        -7-
J-S38032-17


Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).

      “Termination of parental rights under Section 2511(a)(5) requires

that: (1) the child has been removed from parental care for at least six

months; (2) the conditions which led to removal and placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Z.P., supra at 1118.

      “[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) [t]he child has been removed from

parental care for [twelve] months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to

exist; and (3) termination of parental rights would best serve the needs and

welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76

(Pa.Super. 2003).

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.    In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability



                                    -8-
J-S38032-17


are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

paying close attention to the effect on the child of permanently severing the

bond.” Id. Significantly:

        In this context, the court must take into account whether a
        bond exists between child and parent, and whether
        termination would destroy an existing, necessary and
        beneficial relationship.

        When conducting a bonding analysis, the court is not
        required to use expert testimony. Social workers and
        caseworkers can offer evaluations as well. Additionally,
        Section 2511(b) does not require a formal bonding
        evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have …her rights terminated.” In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

        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 [C]ourt 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


                                    -9-
J-S38032-17


        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 [herself] 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…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 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of …her child is converted,

upon the failure to fulfill…her parental duties, to the child’s right to have

proper parenting and fulfillment of [the child’s] potential in a permanent,

healthy, safe environment.” Id. at 856.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Vincent W.

Furlong, we conclude Mother’s issues merit no relief.     The Family Court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Family Court Opinion, filed October 17, 2016, at 7-11)

(finding: under Section 2511(a), Children have been out of Mother’s care for

at least four years; record demonstrated Mother has not complied with her



                                   - 10 -
J-S38032-17


2012 FSP objectives or subsequent court orders since 2012; Mother has

consistently tested positive for drugs, and Mother has been inconsistent and

sporadic in her attendance to court-ordered drug and alcohol counseling;

Mother tested positive for drugs as recently as July 22, 2016; ARC

discharged Mother for nonparticipation; Mother failed to achieve stable

housing; Mother’s visitation with Children was sporadic and inconsistent, and

her lack of sobriety was of concern; Mother has not taken interest in

Children’s education and medical care; under Section 2511(b), Children love

their Mother but their bond with her is weak; Children do not want to be

reunified with Mother because they do not trust her; Children share parent-

child bond with kinship parents; Children look to kinship parents for love,

comfort, care, and support; record and testimony presented at termination

hearing provided clear and convincing evidence to terminate Mother’s

parental rights under 23 Pa.C.S.A. § 2511 (a)(1),(2),(5), and (8); court

further found, pursuant to 23 Pa.C.S.A. § 2511(b), that termination of

Mother’s parental rights would not have detrimental effect on Children and

would be in Children’s best interest). Accordingly, we affirm on the basis of

the Family Court opinion.

      Orders affirmed.

      Justice Fitzgerald did not participate in the consideration or decision of

this case.




                                    - 11 -
J-S38032-17

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017




                          - 12 -
Circulated 06/07/2017 11:40 AM
