J. A02041/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: C.M., A MINOR                      :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
APPEAL OF: SOMERSET COUNTY                :
CHILDREN AND YOUTH SERVICES               :           No. 1365 WDA 2019


                Appeal from the Order Entered August 7, 2019,
              in the Court of Common Pleas of Somerset County
                   Orphans’ Court at No. 16 Adoption 2017


BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 10, 2020

      Somerset County Children and Youth Services (“CYS”) appeals from the

orphans’ court order denying its petition to terminate the parental rights of

K.M. (“Mother”) to her natural male child, C.M. (“Child”), born in February of

2012. After careful review, we vacate and remand for further proceedings.

      The orphans’ court set forth its findings of fact at the November 28,

2017 hearing on CYS’s petition for involuntary termination of Mother’s

parental rights, as follows:

            [C]hild is currently five years of age.

            The natural mother of the [C]hild is [K.M.] and the
            natural father of the [C]hild is [J.A.1]

            This case was referred to the CYS agency
            approximately two years ago when an initial referral
            was received on or about October 21, 2015, related to

1 The record reflects that the orphans’ court terminated J.A.’s parental rights
to C.M. by order entered on November 28, 2017. J.A. did not appeal the
termination order.
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          alleged drug usage and [M]other’s boyfriend at the
          time having overdosed on heroin. At that time,
          natural father was incarcerated.

          Based on the investigation conducted by [CYS, CYS]
          created a Safety Plan for the [C]hild, which provided
          that [M]other would not have any unsupervised
          contact with the [C]hild. The supervised visitation or
          custody between [M]other and [C]hild was to be
          supervised by the maternal grandparents.

          On or about November 4, 2015, [CYS] conducted a
          home visit and discovered that [M]other was having
          unsupervised contact and custody with the [C]hild.
          The police were summoned; and it was discovered
          that [M]other not only was having unsupervised
          custody of the [C]hild, but was in possession of a
          controlled substance and drug paraphernalia while in
          the presence of the [C]hild. As a result, the [C]hild
          was removed from the custody of [M]other and
          maternal grandparents and emergency custody was
          granted to the agency and the child was placed into
          foster care with [J.P. and L.P.]

          A Shelter Care Hearing was conducted; after which, a
          Dependency Petition was filed on November 10, 2015.

          The [C]hild was adjudicated dependent on
          December 16, 2015. As a result of the adjudication,
          Court-Ordered goals were set into place and a Child
          Permanency Plan was developed. The goals were
          consistent for both [M]other and natural father.

          The [orphans’ c]ourt has taken judicial notice of the
          Juvenile Dependency proceedings regarding [the
          C]hild that are filed [at a separate docket in] Somerset
          County . . . .

          ....

          With respect to [M]other, supervised visitation was
          scheduled and those visits were conducted at the
          Somerset County Children’s Aid Home. [M]other



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            currently lives   with   her   parents   in   Windber,
            Pennsylvania.

            Although it was a Court-Ordered condition and goal,
            [M]other did not complete a mental health evaluation,
            although [M]other has been receiving mental health
            counseling.

            On or about February 29, 2016, [M]other successfully
            completed inpatient rehabilitation at the Turning Point
            Chemical Dependency Facility.         Upon successful
            discharge from that program, it was recommended
            that [M]other undergo intensive outpatient treatment
            at Twin Lakes Center.

            On or about July 27, 2016, [M]other relapsed and was
            unsuccessfully discharged from the Twin Lakes
            Center. Thereafter, on December 7th, 2016, [M]other
            tested positive for barbiturates after a drug screen
            was conducted. On or about December 13, 2016,
            [M]other entered inpatient rehabilitation treatment at
            the Twin Lakes Center.            Mother successfully
            completed inpatient treatment at Twin Lakes Center;
            and upon discharge, was recommended to complete
            outpatient treatment. In April 2017, [M]other was
            unsuccessfully discharged from the outpatient
            treatment program at Twin Lakes Center based on her
            failure to follow the attendance policy. More recently,
            on May 10, 2017, another drug screen was conducted
            and [M]other tested positive for cocaine, heroin and
            marijuana.[2]

            With respect to the incident on October 21, 2015,
            [M]other was arrested and charged with various drug
            charges, child endangerment charges, corruption of
            minors’ charges and recklessly endangering another
            person. Mother was convicted [of] or pled guilty [to]
            several of those charges and was sentenced to
            probation by the [sentencing c]ourt in Somerset
            County, Pennsylvania.


2We note that the record reflects that the petition for involuntary termination
of Mother’s parental rights was filed on June 20, 2017.


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          Additionally, more recently, [M]other was charged on
          or about September 7, 2017, relating to an incident
          that occurred on November 2nd, 2015, in Cambria
          County. Mother recently pled guilty to a felony drug
          charge in that case and is scheduled to be sentenced
          by the [sentencing c]ourt in Cambria County,
          Pennsylvania, in January 2018.

          [M]other has attended numerous visits with the
          [C]hild since the [C]hild has been removed from her
          custody with those visits having been scheduled by
          [CYS].

          Additionally, the [orphans’ c]ourt finds that [M]other
          has provided the [C]hild with cards, letters and
          drawings while the [C]hild has been in the custody
          and care of [CYS].

          Additionally, [M]other has provided the [C]hild with
          gifts during numerous visits and has also provided the
          [C]hild with birthday gifts and Christmas gifts.

          The [orphans’ c]ourt finds that [M]other has also had
          consistent telephone contact with the [C]hild on an
          approximate weekly basis.

          ....

          With respect to the [C]hild’s placement, the [orphans’
          c]ourt finds that [CYS] did consider the maternal
          grandparents for kinship care.           However, the
          consideration was not granted due to maternal
          grandparents not being truthful with [CYS] and also
          failing to supervise visitation and custody between the
          [C]hild and [M]other.

          The [orphans’ c]ourt finds that while [M]other was
          incarcerated, visits were conducted every two weeks
          with the [C]hild and then subsequently increased to
          one time per week.

          [M]other has attended some medical appointments
          for the [C]hild when she was notified by the foster
          parents of those appointments.


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          The [orphans c]ourt finds that [M]other has
          maintained a relationship with the foster parents and
          has contact with them with respect to the [C]hild and
          the [C]hild’s current activities and well-being.

          The [orphans’ c]ourt finds that when the [C]hild talks
          with [M]other, the [C]hild addresses [M]other as
          mommy.

          The [orphans’ c]ourt finds that [M]other, in
          connection with criminal charges, has successfully
          completed the Somerset County Daily Reporting
          Center Program.

          The [orphans’ c]ourt further finds that from the time
          of placement of the [C]hild, [M]other has relapsed as
          a result of drug usage at least three to four times since
          the placement of the [C]hild. Mother is currently
          treating her drug addiction with a Methadone
          treatment.

          The [orphans’ c]ourt finds that during visitation with
          the [C]hild, [M]other tries to plan crafts to do with the
          [C]hild and also attempts to engage in meaningful
          contact with the [C]hild during those visits.

          Mother, at the time of this hearing, is currently
          unemployed although [M]other does receive some
          benefits through welfare and food stamps.

          A Bonding and Attachment Assessment was
          completed by Miss Carol Patterson with an interview
          and observation session conducted on March 2nd,
          2017, with [M]other and [C]hild. Subsequently, on
          March 21, 2017, an interview and observation session
          was conducted between the [C]hild and the foster
          parents. Finally, on April 20, 2017, an interview and
          observation session was conducted between natural
          father and [C]hild.

          During each of these interview and observation
          sessions, an interview with [M]other, natural father
          and foster parents consisting of one hour was


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              conducted. Additionally, an observation session of
              two hours was then conducted with the [C]hild and
              the adults.

              ....

              Miss Patterson further determined that the [C]hild’s
              ability to form a bond and attachment with [M]other
              during the first three years of his life was negatively
              compromised by [M]other’s active drug addiction.
              Miss Patterson believes that the [C]hild possesses a
              limited bond with [M]other.

              Miss Patterson further opined that if reunification is
              possible, then it would be in the [C]hild’s best
              interests to be reunited with [M]other.

              The [orphans’ c]ourt finds Miss Patterson’s statement
              or position that because the [C]hild has a strong bond
              with the foster parents, it would not be harmful if
              limited -- if the limited bond between the [C]hild and
              [M]other was terminated to be contradictory.

Notes of testimony, 11/28/17 at 119-128.3

              [I]t is clear from the testimony and evidence that
              [M]other has struggled with drug addiction
              throughout the lifetime of the [C]hild, and it is clear
              that the [C]hild was removed from [M]other’s care as
              a result of issues that have arisen in connection with
              [M]other’s choice to use illegal drugs.

Id. at 132.

      The orphans’ court then entered an order denying CYS’s petition to

involuntarily terminate Mother’s parental rights to the Child. CYS filed a timely

appeal, together with a concise statement of errors complained of on appeal




3 We omitted the orphans’ court’s findings with respect to Child’s natural
father, J.A., as they are not relevant to this appeal.


                                       -6-
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pursuant to Pa.R.A.P. 1925(a)(2)(i).    This court docketed that appeal at

No. 1900 WDA 2017. The orphans’ court filed a Rule 1925(a)(2)(ii) opinion

wherein it referred this court to that part of the November 28, 2017

termination hearing transcript that set forth its rationale for denying CYS’s

termination petition.   A previous panel of this court then vacated the

termination order and remanded to the orphans’ court to determine whether

a conflict existed between the Child’s legal and best interests which would

require appointment of separate legal counsel. See In re: C.M., a minor,

No. 1900    WDA    2017,    unpublished    memorandum       (Pa.Super   filed

November 15, 2018). Mother filed a timely petition for allowance of appeal to

our supreme court, which it denied on February 14, 2019. This court then

remanded and remitted the record to the orphans’ court on March 12, 2019.

     On August 7, 2019, the orphans’ court held the remand hearing. At the

hearing, the Child’s guardian ad litem (“GAL”) stated that she interviewed

the Child on May 6, 2019, and that he

           was so strong and adamant in saying that he does
           want to be adopted; and he wished to stay with [his
           foster parents]; and he refers to them as Mama Bear
           and Papa Bear; and the reasons why he wanted to
           stay was his foster brothers and sisters; and that he
           liked the school that he attended and he didn't wish
           to change that; and he just wants to be where he is
           forever. . . .

           He did not mention his [M]other. . . .

Notes of testimony, 8/7/19 at 11. Based on the Child’s preferred outcome,

the GAL confirmed that no conflict exists between the Child’s best and legal


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interests and concluded that it is, therefore, in the Child’s best and legal

interests to terminate Mother’s parental rights and allow the Child to be

adopted by his foster parents. (Id.) Nevertheless, the orphans’ court entered

the order now before us that denied CYS’s termination petition. 4 CYS raises

the following issues for our review:

            [1.]   Whether [CYS] proved by clear and convincing
                   evidence at least one statutory ground for the
                   termination of Mother’s parental rights[?]

            [2.]   Whether the [orphans’] court erred and/or
                   committed an abuse of discretion by considering
                   efforts made by Mother to remedy the
                   conditions which were initiated after the filing of
                   the petition to terminate her parental rights[?]

            [3.]   Whether the [orphans’] court erred and/or
                   committed an abuse of discretion by failing to
                   find that terminat[ion] of Mother’s parental
                   rights would best serve the needs and welfare
                   of the [C]hild[?]

CYS’s brief at 4 (full capitalization omitted).

            Our scope and standard of review are settled.
            Whether the orphans’ court grants or denies the
            petition to involuntarily terminate parental rights, we
            are limited to determining whether the decision of the
            [orphans’] court is supported by competent evidence.

                   Where the [orphans’] court’s findings are
                   supported by competent evidence of

4 We note that CYS filed a timely notice of appeal, together with a concise
statement or errors complained of on appeal pursuant to Rule 1925(a)(2)(i).
The orphans’ court filed a Rule 1925(a)(2)(ii) opinion wherein it “respectfully
decline[d] to supplement the record as [it] believes [its] rationale and reasons
for the [August 7, 2019 order are] fully and concisely explained in the
November 28, 2017 and the August 7, 2019 [h]earing [t]ranscripts[.]”
(Orphans’ court opinion, 9/17/19 at 2.)


                                       -8-
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                  record, we must affirm the [orphans’]
                  court   even though the record could
                  support an opposite result.

                  ....

                  In a proceeding to involuntarily terminate
                  parental rights, the burden of proof is
                  upon 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.

            Moreover, [i]t is clear that in a termination
            proceeding, the focus [initially] is on the conduct of
            the parents.

In re R.L.T.M., 860 A.2d 190, 191-192 (Pa.Super. 2004) (internal quotation

marks and citations omitted; some brackets in original).

      Here, the orphans’ court denied CYS’s petition to terminate Mother’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), which

provide:

            § 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


                                     -9-
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                      refused or failed to perform parental
                      duties.

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

               ....

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


                                  - 10 -
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                        or placement of the child continue
                        to exist and termination of parental
                        rights would best serve the needs
                        and welfare of the child.

23 Pa.C.S.A. § 2311(a)(1), (2), (5), and (8). Having denied the petition under

Sections 2511(a)(1), (2), (5), and (8), the orphans’ court did not conduct a

needs and welfare analysis under Section 2511(b). See In re B.L.L., 787

A.2d 1007, 1014 (Pa.Super. 2001) (stating that child’s needs and welfare are

discrete considerations determined after applicable statutory termination

requirements have been met).

      In denying CYS’s termination petition under Sections 2511(a)(1), (2),

(5), and (8), the orphans’ court made the following conclusions of law:

            The evidence indicates that [M]other has not
            evidenced a settled purpose of relinquishing her
            parental claims or parental rights to the [C]hild.

            The [orphans’ c]ourt also finds that although [M]other
            has struggled with her drug addiction, [M]other has
            made many attempts to continue to provide parental
            care to the [C]hild through the form of having
            visitation with the [C]hild and consistent telephone
            contact with the [C]hild and also by providing the
            [C]hild with correspondence and gifts.

            The [orphans’ c]ourt also finds that although the
            [C]hild has been removed from [M]other’s care for a
            period in excess of 12 months, that [M]other has
            consistently attempted to remedy the conditions that
            have caused the removal; that being, her addiction to
            drugs.

            [M]other has been involved in inpatient rehabilitation
            at least two times and has attempted to follow
            through -- follow through – excuse me -- with
            outpatient counseling after each of the inpatient


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           rehabilitation treatments. Unfortunately, [M]other has
           not been able to successfully stay sober when she is
           not in an inpatient setting, which has caused her on
           at least two occasions to be unsuccessfully discharged
           from the outpatient treatment programs.

           Nonetheless, the [orphans’ c]ourt finds that [M]other
           has genuinely tried to deal with her drug addiction;
           although, unfortunately, not successfully given that
           [M]other has relapsed at least three to four times in
           the past two years.

           However, I do find that [M]other’s attempts to
           positively deal with her drug addiction have been
           genuine and that [M]other has made significant
           efforts to continue to be a parental figure to the
           [C]hild and be a part of the [C]hild’s life.

           ....

           Since the [orphans’ c]ourt has found that clear and
           convincing grounds for involuntary termination do not
           exist under Section 2511(a), [it] will not conduct an
           analysis under Section 2511(b).

Notes of testimony, 11/28/18 at 133, 136.5

     Thereafter, at the August 7, 2019 remand hearing, the orphans’ court

again denied CYS’s termination petition for “the reasons stated on the record

for [its] decision on November 28, 2017”; specifically, that “[M]other has not

evidenced a settled purpose of relinquishing her parental claims or parental

rights to the [C]hild” and even though “the [C]hild has been removed from

[M]other’s care for a period in excess of 12 months, that [M]other has

consistently attempted to remedy the conditions that have caused the


5We omitted the orphans’ court’s conclusions of law with respect to Child’s
natural father, J.A., as they are not relevant to this appeal.


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removal; that being, her addiction to drugs.” (Notes of testimony, 8/7/19 at

34-36.) Our review of the record compels the conclusion that the orphans’

court abused its discretion and erred as a matter of law because competent

evidence fails to support its decision to deny the termination petition.

      A court may terminate parental rights under Section 2511(a)(1) when

the parent demonstrates a settled purpose to relinquish parental claim to a

child or fails to perform parental duties for at least six months prior to the

filing of the termination petition. In re I.J., 972 A.2d 5, 10 (Pa.Super. 2009).

“Although the six[-]month period immediately preceding the filing of the

petition is most critical to the analysis, the court must consider the whole

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

statutory provision.” Id. (citation omitted).

      With respect to the history of this case, the record reflects that it was

Mother’s illegal drug use that caused Child to be removed from her care in

October 2015. Following Child’s removal, Mother relapsed at least “three to

four” times. (Notes of testimony, 11/28/17 at 126.) Mother has also been

convicted of drug-related crimes, as well as child endangerment and

corruption of minors, which latter convictions directly resulted from her illegal

drug use. Six months prior to the filing of the petition to terminate Mother’s

parental rights, Mother was unsuccessfully discharged from an outpatient

treatment program because she failed to follow the attendance policy.

Thereafter, and 41 days before the termination petition was filed, Mother



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tested positive for cocaine, heroin, and marijuana. The record further reflects

that at the time of the November 28, 2017 termination hearing, Mother was

on probation for drug-related convictions and was also awaiting sentencing

after pleading guilty to a felony drug charge; specifically, possession with

intent to deliver heroin.   (Notes of testimony, 11/28/17 at 102.)       At this

juncture, we note that Mother testified that her drug of choice is heroin. (Id.

at 101.) Mother further testified that although she attended two outpatient

treatment programs, the terms of her probation required her attendance. (Id.

at 103.) Mother further testified her relapses “prove that [she] is not well

enough to be a mother and take care of [Child.]” (Id. at 98.)

      Clearly, Mother’s decision to use illegal drugs instead of parent the Child

evidenced a settled purpose of relinquishing her parental claim. Additionally,

as a result of Mother’s drug addiction, she has failed to perform any parental

duties. This failure was evidenced for the six months prior to the filing of the

petition, continued after the petition was filed, and has been a problem

throughout the history of this case. CYS established by clear and convincing

evidence that Mother’s conduct satisfies Section 2511(a)(1).

      Similarly, Mother’s illegal drug use has led her to repeated and

continued incapacity that has caused the Child to be without essential parental

care, control, or subsistence necessary for his physical and mental well-being

under Section 2511(a)(2). Although Mother has attempted to become sober,

she has consistently relapsed and has never achieved sobriety. Indeed, by



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Mother’s own admission, her drug addiction has made her incapable of

parenting.   (Notes of testimony 11/28/17 at 98.)     Additionally, the record

demonstrates that Mother either cannot or will not remedy her drug addiction.

CYS established by clear and convincing evidence that Mother’s conduct

satisfies Section 2511(a)(2).

      The statutory grounds for Sections 2511(a)(5) and (8) require that the

Child has been removed from Mother’s care for periods of six and twelve

months, respectively, and the conditions which led to the removal continue to

exist. The Child was removed from Mother’s care on October 25, 2015. At

the time the termination petition was filed on June 20, 2017, the Child had

been removed from Mother’s care for twenty months, and Mother had yet to

achieve sobriety. We further note that at the time of the termination hearing,

the Child had been removed from Mother’s care for a period of two years, and

Mother still had not attained sobriety. Additionally, at the time of the remand

hearing, the Child had been removed from Mother’s care for a period of three

years and ten months, and Mother still had not become sober. CYS satisfied

the statutory grounds to terminate Mother’s parental rights pursuant to

Sections 2511(a)(5) and (8).

      The final consideration is the needs and welfare of the Child pursuant to

Section 2511(b), which provides:

             (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


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                   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(b).

      Here, because the orphans’ court denied the termination petition under

Sections 2511(a)(1), (2), (5), and (8), it made no findings under

Section 2511(b).    Therefore, on remand, the orphans’ court must consider

whether a bond exists between the Child and Mother and whether termination

of Mother’s parental rights would destroy an existing, necessary, and

beneficial relationship. See In re B., N.M., 856 A.2d 847, 859 (Pa.Super.

2004) (citation omitted). When considering Section 2511(b), we instruct the

orphans’ court to carefully examine the certified record which reflects that

Child has lived with his foster family, who wants to adopt him, since Mother’s

drug abuse resulted in Child’s removal from her care in October 2015 and

Child’s placement in the foster home on November 4, 2015. For more than

half of the Child’s life, his foster family has taken care of his daily needs. Child

has stated his “strong and adamant” preference to be adopted and stay with

his foster family “forever.” (Notes of testimony, 8/7/19 at 11.) Additionally,

psychologist Carol Patterson testified that the Child has a strong bond with his



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foster parents and termination of parental rights would not cause him

developmental, physical, or emotional harm. (Notes of testimony, 11/28/17

at 26-27, 33.) The CYS caseworker testified that it is in Child’s best interest

to be adopted. (Id. at 65.) The GAL also supports termination of Mother’s

parental rights so that Child may be adopted by his foster parents. (See notes

of testimony, 8/7/19 at 11.)

      Finally, we remind the orphans’ court that our supreme court has stated

that, “[c]ommon sense dictates that courts considering termination must also

consider whether the children are in a pre-adoptive home and whether they

have a bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa.

2013). The court directed that, in weighing the bond considerations pursuant

to Section 2511(b), “courts must keep the ticking clock of childhood ever in

mind.” Id. at 269. The T.S.M. court observed, “[c]hildren are young for a

scant number of years, and we have an obligation to see to their healthy

development quickly.     When courts fail . . . the result, all too often, is

catastrophically maladjusted children.” Id.

      Order vacated.   Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2020




                          - 18 -
