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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE ADOPTION OF:              IN THE SUPERIOR COURT OF
             J.Z.A.A.                                PENNSYLVANIA




APPEAL OF: S.F., NATURAL MOTHER

                                                    No. 413 WDA 2016


                 Appeal from the Order February 19, 2016
               In the Court of Common Pleas of Erie County
               Orphans' Court at No(s): 17 in Adoption 2015

IN THE MATTER OF THE ADOPTION OF:              IN THE SUPERIOR COURT OF
                   R.J.R.                            PENNSYLVANIA




APPEAL OF: S.F., NATURAL MOTHER

                                                    No. 414 WDA 2016


                 Appeal from the Order February 19, 2016
               In the Court of Common Pleas of Erie County
               Orphans' Court at No(s): 74 in Adoption 2015




BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 09, 2016

     S.F. (Mother) appeals from the trial court’s decrees involuntarily

terminating her parental rights to her minor children, J.Z.A.A. (born 1/2014)

and her half-sister, R.J.R. (born 1/2004). Due to Mother’s continued refusal
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to acknowledge the severity of and treat her domestic violence issues with

J.Z.A.A.’s biological father,1 the court properly terminated her parental

rights. Thus, we affirm.

        In a prior change of goal appeal, our Court reiterated the relevant

facts of this case:

        On October 11, 2012, Mother [voluntarily] placed R.[J].R. in the
        care of J.M., Mother’s cousin. On April 29, 2014, J.M. contacted
        the Erie County Office of Children and Youth [OCY], and asked
        that R.[J.]R. be removed from her home.            R.[J].R. was
        adjudicated dependent by order entered May 20, 2014. On
        September 10, 2014, [OCY] placed R.[J.]R. back in the care of
        Mother.

        Less than a week later, on September 16, 2014, Mother took
        J.[Z.A.]A. to the hospital, where it was determined that J.A. had
        suffered a spiral fracture to her arm. Mother provided several
        inconsistent explanations of how this injury took place, none of
        which was medically acceptable. As a result of these events,
        inter alia, R.[J.]R. and J.[Z.A.]A. were placed in foster care.

        On December 18, 2014, [OCY] filed a petition for permanency
        hearing, in which it recommended terminating the parental
        rights of Mother involuntarily. A permanency hearing was held
        on February 6, 2015. Following the hearing, on February 12,
        2015, the court entered an order changing J.[Z.A.]A.’s
        permanency goal to adoption. The court also entered its order
        ending Mother’s services and visitation with respect to R.[J.]R.

In the Interest of R.R. & J.A., Nos. 433 & 434 WDA 2015, at 2 (Pa.

Super. filed 8/31/2015) (unpublished memorandum).          Mother filed timely

notices of appeal from the February 12, 2015 orders and, on August 31,

2015, our Court affirmed the orders changing the permanency goal of
____________________________________________


1
    Children have different biological fathers.



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J.Z.A.A. to adoption and ending services and visitation with respect R.J.R.

Id.

        On September 18, 2015, OCY filed a petition to involuntarily terminate

Mother’s rights to J.Z.A.A. and R.J.R.           After a hearing, the court entered

decrees terminating Mother’s parental rights to J.Z.A.A. on the basis of

sections 2511(a)(1), (a)(2), (a)(5) and (b) of the Adoption Act (“the Act”) 2,

and to R.J.R. on the basis of sections 2511(a)(1), (a)(2), and (b) of the Act. 3

This timely appeal follows.

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

        (1)   Whether the Orphans’ Court committed an abuse of
              discretion and/or error of law when it concluded that the
              Office of Children and Youth established, by clear and
              convincing evidence, grounds for termination of parental
              rights under 23 Pa.C.S.A. Section 2511(a)(1), specifically
              that appellant evidenced a “settled purpose of
              relinquishing her parental claim and refused to perform
              parental duties” in the 6 month period preceding the filing
              of the petition.

        (2)   Whether the Orphans’ Court committed an abuse of
              discretion and/or error of law when it concluded that the
              Office of Children and Youth established, by clear and
              convincing evidence, grounds for termination of parental
              rights under 23 Pa.C.S.A. Section 2511(a)(2); specifically
              that the evidence demonstrated a “repeated and continued
              incapacity, abuse, neglect or refusal of appellant that
              caused the child to be without essential parental care” and
____________________________________________


2
    23 Pa.C.S. §§ 2101-2910.
3
  If an appellate court determines that a trial court ruling is correct, it can
affirm on any basis supported by the record. In re Adoption of Z.S.H.G.,
34 A.3d 1283 (Pa. Super. Ct. 2011).



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            that the conditions cannot or will not be remedied by
            appellant.

      (3)   Whether the Orphans’ Court committed an abuse of
            discretion and/or error of law when it concluded that the
            Office of Children and Youth established, by clear and
            convincing evidence, grounds for termination of parental
            rights under 23 Pa.C.S.A. Section 2511(a)(5).

      (4)   Whether the Orphans’ Court committed an abuse of
            discretion and/or error of law when it concluded that the
            Office of Children and Youth established, by clear and
            convincing evidence, grounds for termination of parental
            rights under 23 Pa.C.S.A. Section 2511(b), when the
            evidence established a significant bond.

      (5)   Whether the Orphans’ Court committed an abuse of
            discretion and/or error of law when it admitted into
            evidence, over objection, the dependency court summaries
            used during the juvenile court proceedings when said
            summaries contained hearsay.

      (6)   Whether the Orphans’ Court committed an abuse of
            discretion and/or error of law by failing to sequester Office
            of Children and Youth witnesses despite a request to do so
            by appellant.

Appellant’s Brief, 4/15/16, at 6.

      In a proceeding to terminate parental rights involuntarily, the
      burden of proof is on the party seeking termination to establish
      by clear and convincing evidence the existence of grounds for
      doing so. The standard of clear and convincing evidence is
      defined as testimony that is so “clear, direct, weighty and
      convincing as to enable the trier of fact to come to a clear
      conviction, without hesitance, of the truth of the precise facts in
      issue.” It is well established that a court must examine the
      individual circumstances of each and every case and consider all
      explanations offered by the parent to determine if the evidence
      in light of the totality of the circumstances clearly warrants
      termination.

In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party

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seeking termination of parental rights bears burden of proving by clear and

convincing evidence that at least one of eight grounds for termination under

23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs

and welfare of child set forth in 23 Pa.C.S. § 2511(b)).

      In her first issue, Mother claims that the court improperly terminated

her parental rights to Children under section 2511(a)(1) where the court-

imposed change of goal prevented her from visiting with Children, causing

them to be estranged through no fault of her own.

      Pursuant to section 2511(a)(1):

      (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.

23 Pa.C.S. § 2511(a)(1) (emphasis added).

      We first note that parental conduct language of section 2511(a)(1) is

disjunctive, not conjunctive. Therefore, termination is proper if either one of

the conditions in the statute is proven by clear and convincing evidence. In

re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) Here, the reason that the

goal for J.Z.A.A. was changed to adoption, which led to visits being stopped,

was a result of Mother and J.Z.A.A.’s biological father’s inability to resolve

their domestic violence issues to the extent that they could safely parent

R.J.R. and J.Z.A.A. In the Interest of R.R. & J.A., Nos. 433 & 434 WDA

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2015, at 4 (Pa. Super. filed 8/31/2015) (unpublished memorandum), citing

Juvenile Court Opinion, 3/31/2015, at 12, 17. In addition, while Mother had

attended visits, doctor’s appointments, urine screens,4 and parenting classes

to fulfill family service plan goals, she had been slow to address her mental

health needs.      Id. at 7.     Most notable, however, is the fact that Mother

consistently failed to attend domestic violence intervention programs which

demonstrated her continued lack of commitment toward remedying her on-

going history of domestic violence.5           Id.   All of these factors support a

finding under section 2511(a)(1) that Mother has failed to perform her

parental duties for at least six months prior to the filing of the termination

petition. The court’s order of cessation of visits and services had nothing to

do with its ultimate determination to terminate Mother’s rights under section

2511(a)(1). Rather, the court’s decision was based on the fact that because

Mother chose to avoid attending domestic violence programs and mental

health treatment, she was not able to perform any parental duties for the

year that Children remained in foster care prior to the filing of the
____________________________________________


4
    Mother is being treated for her opiate addiction.
5
  In fact, Mother had to start the domestic violence program over two times
due to the fact that she violated program policies.            N.T. Termination
Hearing, 2/19/16, at 16. Even though Mother completed the program the
day before the termination hearing, we recognize that under section 2511(b)
of the Act, a court shall not consider any efforts by a parent to remedy the
conditions described in a termination petition which are initiated subsequent
to receiving notice of the filing of the petition. 23 Pa.C.S. § 2511(b).




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termination petition.        In re T.D., 949 A.2d 910 (Pa. Super. 2008).

Accordingly, this claim is meritless.6

       In her next claim, Mother argues that the court erred in terminating

her   rights   to   Children     under    section   2511(b)   when    the   evidence

demonstrated that she had a significant parent-child bond.              Specifically,

Mother claims that the facts of the case “clearly establish that there was a

unique bond between Mother and R.J.R.” Appellant’s Brief, at 11.

       While a caseworker testified that Mother had a strong bond with

R.J.R., she indicated she did not know that it was a healthy bond since it

“produced a lot of anxiety for [the child].”             N.T. Termination Hearing,

2/19/16, at 73, 75. In fact, an OCY caseworker testified that Mother’s bond

with R.J.R. was an “unhealthy situation,” id. at 136, 151, where Mother

would spend her visits with R.J.R. disciplining her rather than using the time

to build a positive relationship with her child and develop emotional stability

and growth between them.            Id. at 137.     The caseworker further testified

that such growth is especially critical for a child, like R.J.R., who suffers from

reactive attachment disorder, post-traumatic stress disorder (PTSD), and

attention-deficit/hyperactivity disorder (ADHD).
____________________________________________


6
 In her next two issues, Mother contends that the court erred in terminating
her rights under section 2511(a)(2) and (a)(5). Having concluded that the
court properly terminated Mother’s rights to Children under section
2511(a)(1), we need not address the remaining subsections of 2511(a) on
appeal. In re Adoption of Z.S.H.G., supra.




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      When asked whether termination would be in the best interests of the

Children, the OCY caseworker opined that termination would be in R.J.R.’s

best interests due to the child’s need for a stable, consistent environment

that would provide attention to “medication, therapy [and] intensive

services, probably far into the future, . . . [as Mother] is [not] capable of

managing that for her.”    Id. at 142.    The caseworker also testified that

termination would not have a negative effect on any existing bond between

Mother and R.J.R.    Id. at 143.   With regard to J.Z.A.A., the caseworker

testified that termination is in her best interests since Mother has shown to

be a direct threat to Child’s safety as evidenced by Mother’s inability to

explain J.Z.A.A.’s spiral fracture. Moreover, as J.Z.A.A. was removed from

Mother’s care when she was only eight months old and has remained in

foster care since her placement, it can be inferred that she is not bonded

with Mother.   In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (in

cases where there is no evidence of bond between a parent and child, it is

reasonable to infer that no bond exists; extent of bond-effect analysis

necessarily depends on circumstances of particular case).

      Under the circumstances, the trial court’s decision to terminate

Mother’s parental rights to Children under section 2511(b) is supported by

the record. See In re T.S.M., 71 A.3d 251 (Pa. 2013) (mere existence of

bond or attachment of child to parent will not necessarily result in denial of

termination; child’s attachment to parent, despite serious parental neglect




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and failure to correct parenting and behavior disorders harming child, cannot

be misconstrued as bonding).

       Mother next contends that the trial court improperly admitted

dispositional court summaries (used during prior dependency proceedings)

at the termination hearing and that those summaries contained hearsay

evidence.    However, Mother fails to identify exactly what portions of the

designated statements constitute hearsay. Rather, she makes the sweeping

claim that such statements “should not be admitted ‘en masse’ in a

proceeding involving termination of parental rights.” Appellant’s Brief, at 12.

We remind Mother that it is not our job as an appellate court to flesh out her

legal arguments.

       Moreover, it is within the sound discretion of the trial court to

determine whether to admit or exclude evidence, and we may reverse only

upon a showing of an abuse of discretion or error of law. Winshel v. Jain,

925 A.2d 782 (Pa. Super. 2007).        Instantly, OCY’s attorney acknowledged

at the termination hearing that Mother had stipulated to the dependency

petition, as set forth in the Master’s recommendation. Finally, the court took

judicial notice of the document as a court record. See Pa.R.E. 201(b) (court

may judicially notice fact that is not subject to reasonable dispute because

it:   (1) is generally known within trial court’s territorial jurisdiction; or (2)

can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned). We find no error.




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      Finally, Mother contends that the trial court erred when it failed to

sequester OCY witnesses, who were not the immediate caseworker, where

OCY witnesses’ testimony could “piggyback” on each other’s testimony.

      Our Court’s standard of review for a trial court’s decision on

sequestration of witnesses is abuse of discretion.       Commonwealth v.

Stevenson, 894 A.2d 759 (Pa. Super. 2006). The court will not reverse a

trial judge’s decision to grant or deny sequestration absent a clear abuse of

discretion. Id. Moreover, an appellant must demonstrate that he or she was

actually prejudiced by a trial judge’s sequestration order before any relief

may be warranted.     Id.   A request for sequestration must be specific and

supported by a showing that the interests of justice require it. Id.

      Pursuant to Pa.R.E. 615, a court is not authorized to sequester:

      (a) a party who is a natural person;

      (b) an officer or employee of a party that is not a natural person
      (including the Commonwealth) after being designated as the
      party’s representative by its attorney;

      (c) a person whose presence a party shows to be essential to
      presenting the party’s claim or defense; or

      (d) a person authorized by statute or rule to be present [which
      includes the guardian of a minor].

Pa.R.E. 615. Instantly, the trial court did not sequester the OCY witnesses

because they were agency employees, and, thus, prohibited from being

sequestered under Rule 615(b).     Moreover, each OCY witness’s testimony

was given in chronological order of their involvement in the matter. Because

no “piggybacking” occurred, Mother is not able to show that she was actually


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prejudiced by the court’s decision.    Stevenson, supra.   Thus, no relief is

warranted.

     Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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