J-S70044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.R., a        :      IN THE SUPERIOR COURT OF
Minor                              :            PENNSYLVANIA
                                   :
                                   :
                                   :
                                   :
APPEAL OF: O.R.R., Mother          :           No. 1023 EDA 2016

                Appeal from the Decree dated March 7, 2016
           in the Court of Common Pleas of Philadelphia County
         Family Court Division at No(s): CP-51-AP-0000709-2015,
            CP-51-DP-0000888-2012, FID: 51-FN-001587-2012

IN THE INTEREST OF: E.A.R., a      :      IN THE SUPERIOR COURT OF
Minor                              :            PENNSYLVANIA
                                   :
                                   :
                                   :
                                   :
APPEAL OF: O.R.R., Mother          :
                                   :
                                   :   No. 1079 EDA 2016

               Appeal from the Decree Dated March 7, 2016
           In the Court of Common Pleas of Philadelphia County
             Family Court at No(s): CP-51-AP-0000710-2015,
            CP-51-DP-0000887-2012, FID: 51-FN-001587-2012

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                  FILED NOVEMBER 23, 2016

     O.R.R. (“Mother”) appeals from the Decrees granting the Petitions filed

by the Philadelphia Department of Human Services (“DHS”) for the

involuntary termination of her parental rights to her female child, E.A.R.,

born in February 2005, and her male child, R.R., born in February 2006
J-S70044-16


(“Children”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2) and

(b)1 We affirm.

       In its Opinion, the trial court set forth the relevant factual and

procedural background, which we adopt herein for the purpose of this

appeal.    See Trial Court Opinion, 5/31/16, at 1-2 (unnumbered).        Mother

filed separate, timely appeals from the trial court’s Decrees,2 and thereafter

filed a court-ordered Concise Statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2) and (b).3

       On appeal, Mother raises the following issues for our review:

       1. Whether the trial court committed reversible error when it
          involuntarily terminated Mother’s parental rights[,] where
          such determination was not supported by clear and
          convincing evidence under [] 23 Pa.C.S.A. § 2511(a)(1), (2),
          (5), and (8)?

       2. Whether the trial court committed reversible error when it
          involuntarily terminated Mother’s parental rights without
          giving primary consideration to the effect that the termination
          would have on the developmental, physical and emotional

____________________________________________


1
  The trial court also terminated the parental rights of Children’s father, R.R.,
a/k/a R.R., Sr., a/k/a D.R. (“Father”).        Father has not appealed the
termination of his parental rights to Children, and is not a party to the
instant appeal.
2
  In its Decrees, the trial court also granted DHS’s Petitions to change the
permanency goals for Children to adoption under the Juvenile Act, 42
Pa.C.S.A. § 6351. However, Mother does not challenge this aspect of the
Decrees.
3
  On May 2, 2016, this Court, acting sua sponte, consolidated Mother’s
appeals.



                                           -2-
J-S70044-16


          needs of [Children,]          as     required   by   []   23   Pa.C.S.A.
          § 2511([b]).

Mother’s Brief at 4.4

              [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. If the factual
       findings are supported, appellate courts review to determine if
       the trial court made an error of law or abused its discretion. As
       has been often stated, an abuse of discretion does not result
       merely because the reviewing court might have reached a
       different conclusion. Instead, a decision may be reversed for an
       abuse of discretion only upon demonstration of manifest
       unreasonableness, partiality, prejudice, bias, or ill-will.

       … [U]nlike 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. 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.




____________________________________________


4
  Although, in her first issue, Mother purports to challenge the termination
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), her argument is
limited to subsection 2511(a)(2). See Mother’s Brief at 8-11. Additionally,
the trial court terminated Mother’s parental rights to Children under 2511(a)
based solely on subsection 2511(a)(2). See Trial Court Opinion, 5/31/16, at
2 (unnumbered).




                                             -3-
J-S70044-16


In re Adoption of S.P., 47 A.3d 817, 826–27 (Pa. 2012) (citations

omitted).


      Termination of parental rights is controlled by section 2511 of the

Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is on 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). “[C]lear 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. (citation and quotation marks omitted).

      Satisfaction of any one subsection of Section 2511(a), along with

consideration of Section 2511(b), is sufficient for the involuntary termination

of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).   In this case, we will review the trial court’s decision to terminate

Mother’s parental rights based upon section 2511(a)(2) and (b), which state

the following:

      (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.

                                       -4-
J-S70044-16


         ***

      (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.

23 Pa.C.S.A. § 2511(a)(2), (b).

      In her first issue, Mother contends that DHS did not prove by clear and

convincing evidence that her parental rights to Children should be

terminated pursuant to subsection 2511(a)(2). Mother’s Brief at 8. Mother

concedes that Erica Williams, Psy.D. (“Dr. Williams”), an expert in child

psychology, testified that Mother “did not present with the necessary

capacity to provide safety and permanency for either child.” Id. (citing N.T.,

3/7/16, at 10). Mother further concedes that DHS social worker, Lawrence

Barnes (“Barnes”), testified that Children are cognitively delayed and have

special educational needs that Mother is unable to meet. Mother’s Brief at

11 (citing N.T., 3/7/16, at 22). Nevertheless, Mother points to Dr. Williams’s

testimony that Mother did present with some strengths, including having

obtained housing, having a financial plan to provide for Children, and her

ongoing compliance with DHS objectives.       Mother’s Brief at 11.   Mother

further claims that she followed all of the recommendations in her parenting



                                    -5-
J-S70044-16


capacity evaluation.   Id.   On this basis, Mother argues that DHS failed to

meet its burden under subsection 2511(a)(2). Id.

      In its Opinion, the trial court addressed Mother’s first issue, set forth

the relevant law, and determined that it lacks merit.         See Trial Court

Opinion, 5/31/16, at 3 (unnumbered). A careful review of the record in this

matter discloses that the trial court’s 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. See id.; see also In re Adoption of S.P., 47

A.3d at 826-27. While Mother found stable housing and had a financial plan,

her mental health issues prevented her from providing Children with safety

and permanency.     Thus, we will not disturb the trial court’s determination

that DHS satisfied the requirements of subsection 2511(a)(2) by clear and

convincing evidence. See Trial Court Opinion, 5/31/16, at 3 (unnumbered).

      In her second issue, Mother challenges the trial court’s determination

that termination of her parental rights to Children would be in Children’s

best interests pursuant to subsection 2511(b).      Mother’s Brief at 12-14.

Mother acknowledges Barnes’s testimony that Children had indicated to him

that they did not want to return to Mother, and that Children would not

suffer any emotional harm if Mother’s parental rights were terminated. Id.

at 13 (citing N.T., 3/7/16, at 26-27, 30).       However, Mother points to

Barnes’s further testimony that he had not personally witnessed any of her

visits with Children; he believed that there was a parental bond between


                                     -6-
J-S70044-16


Mother and R.R.; and that, prior to 2015, R.R. consistently stated that he

wished to return to Mother. Mother’s Brief at 13 (citing N.T., 3/7/16, at 30).

Mother asserts that, because the evidence established that there was a

necessary and beneficial relationship between her and Children, DHS did not

satisfy its burden of proving that termination is in the best interests of

Children. Mother’s Brief at 14.

      Regarding   subsection   2511(b),   the   court   inquires   whether   the

termination of Mother’s parental rights would best serve the developmental,

physical and emotional needs and welfare of Children.       See In re C.M.S.,

884 A.2d 1284, 1286-87 (Pa. Super. 2005).               Whereas the focus in

terminating parental rights under subsection 2511(a) is on the parent, under

subsection 2511(b), the focus is on the child.    In re Adoption of C.L.G.,

956 A.2d 999, 1008 (Pa. Super. 2008). “Intangibles such as love, comfort,

security, and stability are involved in the inquiry into the needs and welfare

of the child.” See In re C.M.S., 884 A.2d at 1287 (citation omitted). The

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

utmost attention to the effect on the child of permanently severing that

bond. Id.; see also In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010)

(stating that “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.”).     “[W]e will not toll the

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


                                    -7-
J-S70044-16


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.”)). Additionally, “the strength of [the] emotional bond between a

child and a potential adoptive parent is an important consideration in a ‘best

interests’ analysis.” In re I.J., 972 A.2d 5, 13 (Pa. Super. 2009); see also

In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating 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.”).

       Although the trial court did not expressly state in its Opinion that there

is no bond between Children and Mother, it determined that Children share a

parental bond with their foster parents, that E.A.R. does not look to Mother

as her primary caregiver, and that R.R. looks to the foster family for love,

comfort, care and support.             See Trial Court Opinion, 5/31/16, at 4

(unnumbered).        The trial court further determined that Children were

previously placed in foster care when the family resided in Georgia, 5 and

that, upon moving to Pennsylvania, Children have been in foster care since

May 2012.      See id. at 2, 3 (unnumbered).       The trial court also credited
____________________________________________


5
  Our review of the record confirms that Children spent several years in
foster care while the family resided in Georgia. See N.T, 3/7/16, at 21
(wherein Barnes testified that Children were placed in foster care in Georgia
when they were approximately 1½ and 1-years-old, respectively, and that
they remained in foster care in Georgia for two or three years).




                                           -8-
J-S70044-16


Barnes’s testimony that Children would not suffer permanent emotional

harm if Mother’s rights were terminated, and that it would be in Children’s

best interests if Mother’s parental rights were terminated and their

permanency goal changed to adoption. See id. at 4 (unnumbered) (citing

N.T., 3/7/16, at 26-27).6

       Thus, even if Mother and Children are still bonded, that bond is

outweighed in the instant matter by Mother’s inability to remedy the causes

of Children’s placement, and by Children’s need for permanence and

stability. See Adoption of C.J.P., 114 A.3d 1046, 1054-55 (Pa. Super.

2015); see also In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.

2006) (holding that “[t]he court cannot and will not subordinate indefinitely

a child’s need for permanence and stability to a parent’s claims of progress

and hope for the future.”). While Mother may love Children, a parent’s own

feelings of love and affection for a child, alone, will not preclude the

termination of parental rights. See In re Z.P., 994 A.2d at 1125. Rather,

“a parent’s basic constitutional right to the custody and rearing of his child is

converted, upon the failure to fulfill his or her parental duties, to the child’s

right to have proper parenting and fulfillment of his or her potential in a

____________________________________________


6
  Our review of the record further reveals that Mother has a history of
significant mental health issues, including depression, multiple personality
disorder, hallucinations, schizophrenia and suicidal ideations. See N.T,
3/7/16, at 11, 16, 17; see also Report of Forensic Evaluation, 2/23/15, at
6-7 (unnumbered).



                                           -9-
J-S70044-16


permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa. Super. 2004). Accordingly, we conclude that the competent evidence of

record supports the trial court’s determination that Children would not suffer

any emotional harm from the termination of Mother’s parental rights, and

that the termination of Mother’s parental rights would serve Children’s best

interests. See Trial Court Opinion, 5/31/16, at 4 (unnumbered); see also

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

       Accordingly, we affirm the Decrees terminating Mother’s parental

rights to Children pursuant to section 2511(a)(2) and (b) of the Adoption

Act.

       Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




                                      - 10 -
                                                                             Circulated 11/09/2016 03:53 PM




                            IN THE COURT OF COMMON PLEAS

                           FOR THE COUNTY OF PHILADELPHIA

                                  FAMILY COURT DIVISION



IN RE: E.R.                                           CP-51-DP-0000887-2012

                                                      CP-51-AP-0000710-2015
IN RE: R.R.                                           CP-51-DP-0000888-2012

                                                      CP-51-AP-000070-2015


APPEAL OF: O.R.R., Mother                             1023 EDA 2016

                                                      1079 EDA 2016




                                            OPINION



Irvine, J.

This appeal rises from this Court's order on March 7, 2016 terminating the parental rights
                     Ito e 'I                                                                 of
                              , mother. Mother's parental rights were
                                                                      terminated pursuant to the
petitions filed on behalf of the Department of Human Services (DHS) by the city of Philadelphia
Solicitor's Office.

Neal M. Masciantonio, counsel for mother, filed a timely appeal from the March 7, 2016
                                                                                             order
terminating parental rights with attached Concise Statements of Errors, Affidavits of Service, and
other related documents necessary to perfect this appeal._

Factual and Procedural Background
A summary of the relevant procedural history is set forth as follows:

The children were born as follows: E.R., was on February 3, 2005 and R.R. on February     1,   2006.
On May 21, 2012, DHS received a General Protective Services (GPS) report alleging that E.R. and
R.R. were at the Hospital at the University of Pennsylvania (HUP). The children's father was
recuperating from brain surgery at HUP. The mother, O.R.R., was incarcerated. The family had
recently relocated to Philadelphia from Atlanta, Georgia. The father was unable to care for the
children due to his health issues. The report further alleged that the children were diagnosed with
special needs. The children had previously been in foster care while the family resided in Georgia.

On May 22, 2012, DHS obtained an order of Protective Custody (OPC) for the children.
                                                                                     The
children were placed in foster care.

A shelter care hearing was held on May 24, 2012 before the Honorable Jonathan
                                                                              Q. Irvine. Judge
Irvine lifted the OPC and ordered the temporary commitment of the children to the care
                                                                                           and
custody of DHS.

On June 25, 2012, an adjudicatory hearing was held before the Honorable Jonathan Q.
                                                                                        Irvine.
Judge Irvine adjudicated E.R. and R.R. dependent and committed them to the care and
                                                                                    custody of
DHS.

The matter was listed on a regular basis before Judges of the Philadelphia Court of Common
                                                                                           Pleas
-                         -
  Family Court Division Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42
                                                                                              Pa
C.S.A. §6351, and evaluated for the purpose of determining or reviewing the permanency plan
                                                                                              of
the child.

In subsequent hearings, the DRO's reflect the Court's review and disposition as a result of
                                                                                            evidence
presented, addressing, and primarily with, the goal of finalizing the permanency plan.

On March 7, 2016, a Termination of Parental Rights hearings for O.R.R., the mother, was held
                                                                                                    in
this matter. The Court found by clear and convincing evidence that the mother's parental
                                                                                             rights of
E.R. and R.R. should be terminated pursuant to the Pennsylvania Juvenile Act.
                                                                                    Furthermore, the
Court held it was in the best interest of the children that the goal be changed to adoption.

The instant timely appeal of the father follows.

Discussion:

The grounds for involuntary termination of parental rights are enumerated in the Adoption
                                                                                          Act at
23 Pa. C.S.A. §2511. In the present case, mother's parental rights were
                                                                            terminated based on
§2511(a) (2), and §2511(b).

§2511(a) provides that parental rights may be terminated based on any one of the grounds
enumerated therein:

       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:
In proceedings to involuntary terminate parental rights the burden of proof is on the party
                                                                                            seeking
termination to establish by clear and convincing evidence the existence of grounds for termination.
In re Adoption ofAtencio, 539 Pa. 161, 650 A.2d 1064 (1994)

A parent has an affirmative obligation to act in his child's best interest. In reference
                                                                                         to parental
contact, "to be legally significant, the contact must be steady and consistent over a period of
time, contribute to the psychological health of the child, and must demonstrate a serious intent on
the part of the parent to recultivate a parent -child relationship, and must demonstrate a
willingness and capacity to undertake the parental role ". In re D.J.S., 737 A2d 283,286 (1999)
(quoting In re Adoption of Hamilton, 379 Pa. Super. 274, 549 A.2d 1291, 1295 (1988)).


In the instant matter, the children have been in placement care for over forty -three months.
                                                                                                The
testimony established that the children reside in safe homes with their needs being met. (N.T., 3-
7-16, p. 28) Furthermore, the Court found that the termination of the mother's parental rights is in
the best interest of the children. (N.T., 3 -7 -16, pgs. 26 -27).

Section 2511 (a) (2) requires that "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 condition 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).

Courts have further held that the implications of a parent's limited success with services geared to
remedy the barriers to effective parenting can also satisfy the requirements of §2511 (a) (2). In the
matter of B.L.W., 843 A.2d 380 (Pa. Super. 2004), the Court's grave concerns about Mother's
ability to provide the level of protection, security and stability" that her child needed was sufficient
to warrant termination. Id. at 388

Termination of parental rights under §2511(a)(2) is not limited to affirmative misconduct but may
include acts of refusal as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d326,
337 (Pa. Super.2002).

In the instant case, Dr. Erica Williams, an expert witness in family psychology conducted a
parenting capacity evaluation (PCE) with the mother. Dr. Williams testified that the mother "did
not present with the necessary capacity to provide safety and permanency for either child" (N.T.,
3 -7 -16, p. 10). Furthermore, the DHS social worker testified that E. R. has
                                                                                      attention deficit
hyperactivity disorder (ADHD) and R.R. has autism. The children are cognitively delayed and
have special educational needs. The mother is unable to meet the special needs of the children.
(N.T., 3 -7 -16, p. 22). Moreover, the DHS social worker stated that the mother does not have the
capacity to provide adequate safety for the children (N.T., 3 -7 -16, p. 23). Lastly, the children had
previously been in foster care for at least two years due to failure to thrive. (N.T., 3 -7 -16, p. 21).
In order to terminate the parental rights, the party seeking termination must prove by clear and
convincing evidence that the termination is in the best interest of the child. 23 Pa. C.S.A. §2511(b);
In re Bowman, 436 Pa. Super. 647 A.2d 217 (1994). The best interest of the child is determined
after consideration of the needs and welfare of the child. The trial court must examine the
individual circumstances of each case and consider all explanations offered by the parent facing
termination of his parental rights to determine if the evidence in light of the totality of the
circumstances clearly warrants involuntary termination.

When determining the best interest of a child, many factors are to be analyzed, "such as love,
comfort, security and stability. In re Adoption of T.B.B., 787 A.2d 1007, 1013 -1014 (Pa. Super.
2003). Another factor that a court is to consider is what, if any bond exists for the child. In re
Involuntary Termination of C. W S.M and K.A.L.M., 839 A.2d 410,415 (Pa. Super. 2003).

The termination of parental rights is controlled by 23 Pa. C.S.A §2511(a). Under this statute, the
trial court must engage in a bifurcated process in which it initially focuses on the conduct of the
parent under Section 2511 (a). In the Interest of B.C., 36 A.3d 601 (Pa. Super. 2012). If the trial
court determines that the parent's conduct warrants termination under Section 2511 (a), it must
then engage in an analysis of the best interest of the child under Section 2511(b). See id.

Pursuant to Section 2511 (b), the trial court must take in account whether a natural parental bond
exists between child and parent, and whether termination would destroy an existing, necessary and
beneficial relationship. In Re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000).

In the instant matter, E.R. does not look to the mother as her primary caregiver. (N.T. 3 -7
                                                                                             -16, p.
27) The child, R.R., shares his parental bond the foster parents (N.T., 3 -7 -16, p. 25 -26). R.R.
looks to the foster family for love, comfort, care and support (N.T., 3 -7 -16, p. 25).     Furthermore,
the children indicated to the social worker that they do not want to return to the mother. (N.T., 3-
7-16, pgs., 26 -27, and 30). Moreover, the testimony indicated that the children would not suffer
permanent emotional harm if the mother's rights were terminated. (N.T., 3 -7 -16, pgs. 26 -27).
Lastly, the social worker testified that it would be in the best interest of the children if the mother's
parental rights were terminated and the children's goal changed to adoption. (N.T., 3 -7 -16, pgs.
26 -27).

The Trial Court found by clear and convincing evidence that the Department of Human Services
met their statutory burden pursuant to 23 Pa. C.S.A. § 2511 (a) & (b) and that it was in the best
interest of the children to change the goal to adoption (N.T., 3 -7 -16, p.38).
Conclusion:

Accordingly, the Trial Court's Decree entered on March 7, 2016 terminating the parental rights of
O.R.R. should properly be affirmed.



                                                   By the Court




                                                                                              J.
