J-S03015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: F.B.-G., A MINOR                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: S.R.G.                          :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1325 WDA 2016

               Appeal from the Order Entered August 24, 2016
              In the Court of Common Pleas of Allegheny County
           Orphans’ Court Division at No(s): CP-02-AP-000016-2016



BEFORE:      OLSON, SOLANO, and STRASSBURGER*, JJ.

MEMORANDUM BY OLSON, J.:                                  FILED MARCH 3, 2017

        S.R.G. (“Mother”) appeals from the order entered on August 24, 2016,

terminating her parental rights to her female child, F.B.-.G., a/k/a F.M.G.,

a/k/a F.M.B.-G. (“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A.

§ 2511.1 We affirm.

        The trial court set forth the following factual background and

procedural history as follows:



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In that same order, the trial court terminated the parental rights of Child’s
father, R.A.P. (“Father”), and any unknown father. Neither Father nor any
unknown father has filed an appeal from the termination of his parental
rights to Child, nor is any such individual a party to the instant appeal.
J-S03015-17


     [Child] was born [in January of 2014] to [Mother]. [… Children
     Youth and Families (“CYF”) became involved] with Child’s family
     [] in 2010 after CYF received reports that Mother suffered
     mental health and substance abuse problems, was a victim of
     domestic violence, and did not have stable housing, raising
     concerns about the welfare of Child’s older siblings.         CYF
     remained involved with Child’s family, and when Child was
     subsequently born in 2014, CYF applied for emergency
     protective custody of child, four days after Child’s birth, out of
     concern that Mother was not receiving mental health treatment,
     and that Mother did not have stable housing. [The trial court]
     granted CYF’s application on January 9, 2014, and conducted a
     shelter care hearing on January 10, 2014, at which Mother
     provided evidence that she had been receiving mental health
     services and was no longer in need of treatment, and that she
     had obtained suitable housing. Accordingly, Child was returned
     to Mother’s care, with in-home services.

     In April 2014, CYF lost contact with Mother, and efforts by CYF
     to locate her were unsuccessful. N.T., 8/12/2016 at 23. On May
     21, 2014, CYF filed an application for Emergency Protective
     Custody after Women’s Space East reported to CYF that Mother
     had entered their homeless shelter on May 11, 2014, and that
     Mother had resisted efforts by the shelter to find housing for her.
     Id. at 23. On May 21, 2014, [the trial court] entered an order
     for Emergency Protective Custody, and Child was placed in foster
     care. Id. at 24-25. Child has not returned to the care of a
     parent since that date, and was adjudicated dependent on
     August 6, 2014.

     CYF filed a petition for involuntary termination of parental rights
     [] on February 2, 2016, amended on July 27, 2016. [The trial
     court] conducted a hearing on the [termination of parental
     rights] petition on August 24, 2016, and that same day entered
     an order terminating Mother’s parental rights, as well as the
     parental rights of Father, R.A.P. This appeal followed.

Trial Court Opinion, 10/13/2016, at 2-3.

     On September 7, 2016, Mother filed a notice of appeal, along with a

concise statement of matters complained of on appeal pursuant to Pa.R.A.P.




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1925(b). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on

October 13, 2016.

       On appeal, Mother raises the following issues:

    1. Is the [t]rial [c]ourt’s finding a grounds for [i]nvoluntary
       [t]ermination of Appellant’s [p]arental [r]ights under 23
       Pa.C.S.A. § 2511(a)(2), § 2511(a)(5), and § 2511(a)(8) proven
       by a showing of clear and convincing evidence?

    2. [Was] the [t]rial [c]ourt’s finding that [t]ermination of [p]arental
       [r]ights serves the developmental, physical and emotional needs
       and welfare of the Child [ ] proved by clear and convincing
       evidence as required by 23 Pa.C.S.A.§ 2511(b)?

Mother’s Brief, at 5.2

       In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

       [A]ppellate courts must apply an abuse of discretion standard
       when considering a trial court’s determination of a petition for
       termination of parental rights. As in dependency cases, our
       standard of review requires an appellate court to accept the
       findings of fact and credibility determinations of the trial court if
       they are supported by the record. In re: R.J.T., 9 A.3d 1179,
       1190 (Pa. 2010). If the factual findings are supported, appellate
____________________________________________


2
  It appears that Mother initially raised an additional issue: whether the trial
court erred in finding that CYF had proved by clear and convincing evidence
that the conditions which led to the removal of Child had not or could not be
remedied within a reasonable period of time. As she does not raise that
issue in her statement of questions involved portion of her brief, we find that
she waived the issue.       See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal). However, Mother has preserved the challenge to the
extent that the issue is part of the consideration of the Section 2511(a)
factors.



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      courts review to determine if the trial court made an error of law
      or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa.
      2011) (plurality opinion). As has been often stated, an abuse of
      discretion does not result merely because the reviewing court
      might have reached a different conclusion.        Id.; see also
      Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51
      (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
      Instead, a decision may be reversed for an abuse of discretion
      only upon demonstration of manifest unreasonableness,
      partiality, prejudice, bias, or ill-will. Id.

      As [our Supreme Court] discussed in R.J.T., there are clear
      reasons for applying an abuse of discretion standard of review in
      these cases. [The Pennsylvania Supreme Court] observed that,
      unlike trial courts, appellate courts are not equipped to make the
      fact-specific determinations on a cold record, where the trial
      judges are observing the parties during the relevant hearing and
      often presiding over numerous other hearings regarding the child
      and parents. R.J.T., 9 A.3d at 1190. Therefore, even where the
      facts could support an opposite result, as is often the case in
      dependency and termination cases, an appellate court must
      resist the urge to second guess the trial court and impose its
      own credibility determinations and judgment; instead we must
      defer to the trial judges so long as the factual findings are
      supported by the record and the court’s legal conclusions are not
      the result of an error of law or an abuse of discretion. In re
      Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

      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).

      Moreover, we have explained:

      [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. (internal citation and quotation omitted).

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     This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of Section

2511(a).    See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).   We will focus on Section 2511(a)(2), before examining Appellant’s

claim pertaining to Section 2511(b).

     Section 2511(a)(2) provides as follows:

     § 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:

                                     ***

           (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.

23 Pa.C.S.A. § 2511(a)(2).

     To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence necessary for his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

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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, 337 (Pa. Super. 2002).

      Mother argues that the trial court erred in terminating her parental

rights under Section 2511(a)(2) because CYF failed to prove, by clear and

convincing evidence, that grounds existed to support the termination.

Mother asserts that the primary reason that CYF removed Child from her

care was that Mother had mental health issues and lacked consistent

housing. Mother states that her Family Service Plan (“FSP”) goals were to

obtain mental health treatment and stable housing, and to maintain

visitation with Child. Mother admits she had not completed all of her FSP

goals at the time of the hearing, but she contends that she made progress

toward completion of all of those goals.

      Mother asserts that she had several mental health evaluations, after

which there was no recommendation for treatment. Mother states that, in

her last evaluation, Dr. Patricia Pepe recommended that Mother have mental

health treatment because Mother disclosed abuse by her mother.                 Mother

testified   that   she   was   willing   to    follow   through   with   Dr.   Pepe’s

recommendation.

      Mother further avers that, at the time of the hearing, she had stable

housing that would be appropriate for Child and that her utility payments


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were current.   Mother states that CYF had recently inspected her housing

and found it to be appropriate for Mother’s visits with Child.

      Mother also alleges that she consistently maintained visitation with

Child during certain times.     Mother claims that, at times, transportation

issues made it difficult for her to maintain consistent visitation. Additionally,

Mother states that the caseworker and the in-home worker testified that

there were never any concerns of inappropriate interaction reported with

regard to her visits with Child. Moreover, Mother states that the caseworker

testified that Mother’s interactions with Child have always been positive, and

that she observed a bond between Mother and Child. Mother claims that Dr.

Pepe, in both her evaluation and testimony, indicated that Mother is very

appropriate in her interaction with Child; Child is very comfortable with

Mother; and Mother exhibited positive parenting skills and had a good

understanding of Child’s developmental needs.       Mother acknowledges that

Dr. Pepe recommended the termination of Mother’s parental rights. Mother,

however, emphasizes that Dr. Pepe testified that it would be beneficial to

Child to have some contact with Mother. See Mother’s Brief, at 11-15.

      The trial court found as follows with regard to Section 2511(a)(2):

      A review of the record and testimony provides clear and
      convincing evidence that termination was warranted under 23
      Pa.C.S.A. []§ 2511(a)(2)] . . . as to Mother, and that termination
      of Mother’s rights best served the needs and welfare of Child. In
      making its determination, [the trial court] relied on the credible
      testimony of David Sprague of CYF who testified that on June 20,
      2014, CYF implemented a Family Service Plan which included
      goals that Mother secure stable housing (given Mother’s history

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     of difficulty maintaining a stable home), achieve financial
     stability, and regularly visit with Child. N.T. 8/12/16, at 25, 32.
     However, since Child was removed from Mother’s care, Mother
     has lived in several locations, including women’s shelters, and
     has experienced evictions and periods of homelessness, despite
     the provision of services to assist her in securing stable housing.
     Mother has additionally experienced ongoing difficulty paying
     rent and utilities, despite receiving budget counseling services
     provided by Holy Family Institute, and services to help her
     obtain housing and pay her bills, including referrals to Urban
     League and Greater Valley which provided Mother with rent
     assistance. Id. at 25-30. Moreover, Mother has experienced
     difficulty maintaining consistent visitation with Child. Although
     Mother visited with Child consistently from April 2014 to
     December 2014 when Child was brought to Mother’s house,
     when Mother was required to travel away from her home in
     order to visit with Child, Mother’s visits became sporadic. Id. at
     32-34. Mother attributed her failure to attend all her visits with
     to transportation difficulties. Id. at 91.

                                   ***

     After careful review of the evidence and testimony of record,
     [the trial court] concluded that Mother is unable to parent Child.
     Mother has consistently failed to timely comply with the goals
     established in the [FSPs]. [The trial court] recognizes that even
     though a bond exists between Mother and Child, and Mother
     exhibits some positive parenting skills, Mother has been unable
     to secure stable housing, experienced repeated periods of
     homelessness, and neglected to responsibly manage her
     finances despite assistance, resulting in a failure to provide a
     stable and secure environment for Child. In addition, Mother did
     not maintain regular visitation with Child, particularly when
     required to make the effort to travel on those occasions when
     Child was not brought to her home. Because of Mother’s lack of
     any consistent effort to give priority to her parenting, and her
     lack of consistent progress in completing her goals, Child
     continues to remain in care. Moreover, Mother’s history of
     mental illness, including her allegations that she fabricated
     symptoms of schizophrenia, have affected her ability to provide
     Child with consistency, stability and a secure home environment,
     and indicate a continuing failure to prioritize Child’s needs.




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Trial Court Opinion, 10/13/2016, at 6-9. As such, the trial court found clear

and convincing evidence that termination of Mother’s parental rights under

Section 2511(a)(2) was merited.

      We agree that termination was warranted pursuant to Section

2511(a)(2), as Mother clearly lacks parental capacity, and the evidence

showed that she will be unable to remedy that situation within a reasonable

period of time, if ever. As there is competent evidence in the record that

supports the trial court’s findings and credibility determinations, we find no

abuse of the trial court’s discretion in finding that Mother’s parental rights be

terminated under Section 2511(a)(2).        In re Adoption of S.P., 47 A.3d

817, 826-827 (Pa. 2012).

      In her second issue presented, Mother asserts only that the trial court

erred in finding that CYF proved by clear and convincing evidence that the

termination of her parental rights best meets the needs and welfare of Child

as set forth in 23 Pa.C.S.A. §2511(b). See Mother’s Brief, at 16-17.

      Section 2511(b) provides, as follows:

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

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23 Pa.C.S.A. § 2511(b).

      We have explained that the focus in terminating parental rights under

Section 2511(a) is on the parent, but it is on the child pursuant to Section

2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super

2008) (en banc). In reviewing the evidence in support of termination under

Section 2511(b), our Supreme Court has stated as follows:

      [I]f the grounds for termination under subsection (a) are met, a
      court “shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child.” 23
      Pa.C.S.A. § 2511(b). The emotional needs and welfare of the
      child have been properly interpreted to include “[i]ntangibles
      such as love, comfort, security, and stability.” In re K.M., 53
      A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481,
      485 (Pa. 1993)], [our Supreme Court] held that the
      determination of the child’s “needs and welfare” requires
      consideration of the emotional bonds between the parent and
      child. The “utmost attention” should be paid to discerning the
      effect on the child of permanently severing the parental bond.
      In re K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      When evaluating a parental bond, no formal bonding evaluation or

expert testimony is required; social workers and caseworkers may offer their

evaluation and opinion. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010)

(internal citations omitted).   Although it is often wise to have a bonding

evaluation and make it part of the certified record, “[t]here are some

instances . . . where direct observation of the interaction between the parent

and the child is not necessary and may even be detrimental to the child.” In

re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008).

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      A parent’s abuse and neglect are, likewise, a relevant part of this

analysis. We have stated that

      concluding a child has a beneficial bond with a parent simply
      because the child harbors affection for the parent is not only
      dangerous, it is logically unsound. If a child’s feelings were the
      dispositive factor in the bonding analysis, the analysis would be
      reduced to an exercise in semantics as it is the rare child who,
      after being subject to neglect and abuse, is able to sift through
      the emotional wreckage and completely disavow a parent . . .
      Nor are we of the opinion that the biological connection between
      [the parent] and the children is sufficient in of itself, or when
      considered in connection with a child’s feeling toward a parent,
      to establish a de facto beneficial bond exists. The psychological
      aspect of parenthood is more important in terms of the
      development of the child and [his or her] mental and emotional
      health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations

and quotation marks omitted).      Thus, the trial court may emphasize the

safety needs of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa.

Super. 2008) (affirming the involuntary termination of the mother’s parental

rights, despite the existence of some bond, where placement with the

mother would be contrary to the child’s best interests, and any bond with

the mother would be fairly attenuated when the child was separated from

her, almost constantly, for four years).

      Our Supreme Court has observed that the mere existence of a bond or

attachment of a child to a parent will not necessarily result in the denial of a

termination petition, and that “[e]ven the most abused of children will often

harbor some positive emotion towards the abusive parent.”          See In re:

T.S.M., 71 A.3d at 267 (citation omitted).          Our Supreme Court has

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instructed, “[t]he continued attachment to the natural parents, despite

serious parental rejection through abuse and neglect, and failure to correct

parenting and behavior disorders which are harming the children cannot be

misconstrued as bonding.” Id. (citation omitted).

      We have explained that a parent’s own feelings of love and affection

for a child, alone, do not prevent termination of parental rights. In re Z.P.,

994 A.2d at 1121.       Further, this Court has stated: “[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.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.

2004) (citations omitted).      It is well-settled that “we will not toll the

well-being and permanency of [a child] indefinitely.”        In re Adoption of

C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.

Super. 2008) (noting that a child’s life “simply cannot be put on hold in the

hope that [a parent] will summon the ability to handle the responsibilities of

parenting.”)).

      Herein, regarding Section 2511(b), the trial court concluded:

      [The trial court] additionally considered the credible testimony of
      Dr. Patricia Pepe who conducted psychological evaluations of
      Mother, and who indicated that Mother has a positive
      relationship with Child. Dr. Pepe testified that she observed
      Child interact with Mother, that Child was “spontaneously
      affectionate” with Mother, and that Mother “consistently and
      positively interacted” with Child, and exhibited positive and
      appropriate parenting skills. [N.T. 8/12/16,] at 76. However,

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     Dr. Pepe observed that Mother had a history of “chronic
     instability,” in particular with regard to maintaining housing, and
     that Mother consciously engaged in conduct that put her at risk
     for homelessness, such as refusing to pay rent because she
     believed that her apartment needed repairs, resulting in her
     eviction. Id. at 77-78. Dr. Pepe further testified that Mother
     often displayed poor judgment and a lack of rational thinking, in
     particular with regard to her finances, the mishandling of which
     contributed to her inability to maintain stable housing, and also
     with regard to her failure to make it a priority to arrange
     transportation to visit Child and maintain regular contact with
     her. Id. at 80. Dr. Pepe’s psychological evaluations indicated
     that Mother has a history of depression, and was diagnosed with
     schizoaffective disorder in April, 2011 after reporting that she
     suffered hallucinations.

     However, in October, 2011, Mother reported that she had not
     actually suffered hallucinations, but that she had fabricated her
     account of experiencing hallucinations in order to receive social
     services.    Dr. Pepe did note, however, that Mother was
     hospitalized at Western Psychiatric Institute and Clinic from June
     to September, 2011. Id. at 62.

     Dr. Pepe further testified that she observed Child interact with
     her foster mother, and testified that foster mother was
     “consistently responsive to the child” who referred to her as
     “mommy,” and that Child exhibited a “positive and primary
     attachment” to foster mother. N.T., 8/12/16, at 75. In addition,
     Tanaeya Anderson of Auberle, which provides foster care
     services, testified that Child has a “very tight bond” with her
     foster mother, and that the relationship between Child and foster
     mother is “very natural” “almost to the point where you can’t tell
     [Child] that’s not mom and you can’t tell foster mom that’s not
     her daughter.” N.T., 8/12/16, at 57. Ms. Anderson testified that
     foster mother is able to meet Child’s developmental, physical,
     and emotional needs. Id.

                                   ***

     [] Child is currently in a foster home that is able to provide for
     her needs. In light of the foregoing, [the trial court] conclude[d]
     that CYF proved by clear and convincing evidence the grounds
     for involuntary termination of Mother’s parental rights pursuant
     to § 2511(b) and that terminating Mother's parent rights best

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      serves the developmental, physical and emotional needs and
      welfare of the child.

Trial Court Opinion, 10/13/2016, at 7-9.

      We agree with the trial court’s assessment.        There was sufficient,

competent evidence of record for the trial court to find that no bond exists

such that the Child would suffer permanent emotional harm from the

termination of Mother’s parental rights. Hence, we agree that termination of

Mother’s rights was proper under Section 2511(b).

      After a careful review of the record in this matter, we find the record

supports the trial court’s factual findings, and the court’s conclusions are not

the result of an error of law or an abuse of discretion. In re Adoption of

S.P., 616 Pa. at 325-26, 47 A.3d at 826-27. We, therefore, affirm the order

terminating Mother’s parental rights with regard to Child under Section

2511(a)(2) and (b).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2017




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