J-S36009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: T.W., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.W., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 386 MDA 2019

               Appeal from the Decree Entered February 15, 2019
                 In the Court of Common Pleas of York County
                     Orphans' Court at No(s): 2018-0164,
                           CP-67-DP-0000328-2017

    IN THE INTEREST OF: T.W., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: T.W., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 390 MDA 2019

               Appeal from the Order Entered February 19, 2019
                 In the Court of Common Pleas of York County
              Juvenile Division at No(s): CP-67-DP-0000328-2017


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                   FILED: AUGUST 23, 2019

        T.W. (“Mother”) appeals from the decree entered February 15, 2019,

that granted the petition of York County Office of Children Youth and Families


____________________________________________


   Retired Senior Judge assigned to the Superior Court.
J-S36009-19



(“CYF”), and involuntarily terminated her parental rights to her son, T.W.

(“Child”) (born September 2017).1              Mother also appeals the order entered

February 19, 2019 that denied Mother’s petition to change Child’s permanent

placement goal from adoption to return to parent. After careful review, we

affirm.

       Shortly after Child’s birth, CYF obtained an order for emergency

protective custody due to concerns regarding Mother’s mental health and lack

of housing.     See Order of Emergency Protective Custody, 9/27/17.              On

November 21, 2017, Child was adjudicated dependent.                    See Order of

Adjudication and Disposition-Child Dependent, 11/21/17. The court ordered

Mother to obtain a psychological and psychiatric evaluation; sign releases

necessary for the release of the results of any evaluation; maintain safe,

stable and appropriate housing; attend counseling; cooperate with an in-home

services team; and attend parenting courses.                 See id.    Further, CYF

implemented a family service plan (“FSP”) that contained similar goals. See

CYF Exhibit 1; N.T., 2/15/19, at 7. Thereafter, the court conducted periodic

review hearings.

       On August 14, 2018, the court changed Child’s permanent placement

goal to adoption. See Permanency Review Order-Amended, 8/14/18, at 2.

Mother’s housing program had discharged her for not paying rent. See id. at

____________________________________________


1 The decree also involuntarily terminated the parental rights of Child’s father,
K.B. (“Father”). Father did not appeal the decree, and has not participated in
this appeal.

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1. Further, Mother was referred for an in-home services team on June 8,

2018, but the referral was closed on July 17, 2018 after Mother did not

schedule appointments.         See id.     Mother had undergone a psychological

evaluation and received a diagnosis of schizoaffective disorder. See id. The

evaluation noted that Mother experiences a disconnect from reality and

needed intensive mental health treatment. See id. The court found Mother

was minimally compliant with the FSP. See id. Mother did not appeal from

the goal change order.

       On October 26, 2018, CYF filed a petition to involuntarily terminate

Mother’s parental rights to Child. On January 4, 2019, Mother filed a petition

to change Child’s permanent placement goal from adoption to reunification

with Mother. On February 15, 2019, the orphans’ court held an evidentiary

hearing on the petitions.2 At the hearing, CYF presented the testimony of

Christina Faye, a CYF caseworker. Mother testified on her own behalf.


____________________________________________


2 At the hearing, Child, who was not yet two years old, had the benefit of both
a guardian ad litem (“GAL”), as well as separate legal counsel. As such, we
find the requirements of 23 Pa.C.S.A. § 2313(a) were satisfied. See In re
Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017) (plurality)
(stating that, pursuant to 23 Pa.C.S.A. § 2313(a), a child who is the subject
of a contested involuntary termination proceeding has a statutory right to
counsel who discerns and advocates for the child’s legal interests, defined as
a child’s preferred outcome); see also In re T.S., 192 A.3d 1080, 1089-1090,
1092-93 (Pa. 2018) (finding the preferred outcome of a child who is too young
or non-communicative unascertainable in holding a child’s statutory right to
counsel not waivable and reaffirming the ability of an attorney-GAL to serve a
dual role and represent a child’s non-conflicting best interests and legal
interests).


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      On February 15, 2019, the orphans’ court entered a decree involuntarily

terminating Mother’s parental rights to Child, and an on February 19, 2019

the court entered an order maintaining Child’s permanent placement goal as

adoption.   Mother timely filed notices of appeal and concise statements of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

This Court, acting sua sponte, consolidated Mother’s appeals.

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

      1.    Did the [c]ourt commit an abuse of discretion in using
      Mother’s mental health disability as main factors in finding that
      her parental rights should be terminated?

      2.    Did the [c]ourt commit an abuse of discretion when it denied
      [Mother’s] Petition to Change Court Ordered Goal from adoption
      to reunification because Mother would have alleviated the
      conditions that led to placement?

Mother’s brief at 6.

      We review these claims mindful of our well-settled standard of review:

      The standard of review in termination of parental rights cases
      requires appellate courts 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. A decision may be reversed for an abuse
      of   discretion    only   upon     demonstration      of    manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely because
      the record would support a different result. We have previously
      emphasized our deference to trial courts that often have first-hand
      observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).


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     Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. § 2101-2938, which requires a bifurcated analysis:

     Initially, the focus is on the conduct of the parent. The party
     seeking termination must prove by clear and convincing evidence
     that the parent’s conduct satisfies the statutory grounds for
     termination delineated in Section 2511(a). Only if the court
     determines that the parent’s conduct warrants termination of his
     or her parental rights does the court engage in the second part of
     the analysis pursuant to Section 2511(b): determination of the
     needs and welfare of the child under the standard of best interests
     of the child. One major aspect of the needs and welfare analysis
     concerns the nature and status of the emotional bond between
     parent and child, with close attention paid to the effect on the child
     of permanently severing any such bond.

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

     In this case, the orphans’ court terminated Mother’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), as well as (b). This

Court may affirm the orphans’ court’s decision regarding the termination of

parental rights with regard to any one subsection of Section 2511(a), as well

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

(en banc). Here, we will focus our analysis on Section 2511(a)(2) and (b),

which 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

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         causes of the incapacity, abuse, neglect or refusal cannot
         or will not be remedied by the parent.

                                     ***

      (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) and (b).

      Our Supreme Court has described Section 2511(a)(2) as follows:

      A decision to terminate parental rights, never to be made lightly
      or without a sense of compassion for the parent, can seldom be
      more difficult than when termination is based upon parental
      incapacity.   The legislature, however, in enacting the 1970
      Adoption Act, concluded that a parent who is incapable of
      performing parental duties is just as parentally unfit as one who
      refuses to perform the duties.

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

      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) the

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


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(Pa. Super. 2003). Termination of parental rights under Section 2511(a)(2),

is not limited to affirmative misconduct; to the contrary, acts of refusal as well

as incapacity to perform parental duties can satisfy the requirements. In re

A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

      This Court has long recognized that a parent is required to make diligent

efforts   towards   the   reasonably   prompt    assumption    of    full   parental

responsibilities. Id. at 340. A parent’s vow to cooperate, after a long period

of uncooperativeness regarding the necessity or availability of services, may

properly be rejected as untimely or disingenuous. Id.

      In her first issue, Mother asserts the orphans’ court erred in considering

her mental health status, as “[i]ndividuals with mental health issues will not

[be] cured.” See Mother’s brief at 11-12. Mother contends that her mental

illness should not be used as a reason to terminate her parental rights, arguing

that her mental illness is manageable but not curable, and that she complied

with her treatment plan. See id. at 12-13.

      The orphans’ court rejected Mother’s interpretation of its ruling.

Specifically, the court found that “Mother has established a long history of not

seeking treatment for her mental health disability and not cooperating with

any proposed treatment for her mental health disability.”           Orphans’ Court

Opinion, 4/1/19, at 12.

      The court observed that Mother was diagnosed with unspecified

schizoaffective disorder in late 2017. See id. Mother continued to deny any

mental health issues while self-reporting that she did not take her prescribed

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medications. See id. at 13. Further, three separate in-home services teams

were closed unsuccessfully due to Mother’s lack of cooperation. See id. The

court acknowledged Mother’s testimony that, since January of 2019, she was

under the care of a psychiatrist and was compliant with her medication, but

noted Mother’s compliance did not occur until after the petition for involuntary

termination was filed. See id. at 13-14. The court concluded that Mother

was unwilling to address her mental health issues. See id. at 22. Accordingly,

the court terminated Mother’s parental rights pursuant to Section 2511(a)(2).

See id. at 14.

      Our review of the record supports the orphans’ court’s determination.

CYF caseworker Faye testified that Mother’s primary goals were to maintain

stable housing, address Mother’s mental health issues, and work with in-home

service providers. See N.T., 2/15/19, at 7.

      Mother lost her housing in September of 2018, and Mother did not

provide CYF with a physical or mailing address. See id. at 11. Mother was

offered services through Pressley Ridge, Catholic Charities, and JusticeWorks.

See id. at 22. All closed unsuccessfully. See id. Moreover, Mother did not

complete any parenting classes.     See id. at 57-58.     During visits, Mother

engaged Child in conversations that were not age appropriate. See id. at 18.

At the time of the termination hearing, CYF continued to have concerns

regarding   Mother’s   mental    health,   and   Mother    had   not   provided

documentation showing her mental health issues were being addressed. See

id. at 24. Faye categorized Mother’s progress as minimal.     See id. at 7.

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       Mother testified that she completed a psychiatric evaluation January 9,

2019, and that she had attempted to obtain one earlier. See id. at 69. She

further testified that she was compliant with her current treatment program.

See id. at 70. Mother observed, “it’s a journey going through therapy because

you have to find a really good therapist, you know what I mean, that you are

comfortable with.” See id. at 71. Mother asserted that her mental health

was stable enough to take care of Child.3 See id. at 81.

       Despite Mother’s testimony that her mental health was stable, the

psychiatric evaluation and treatment notes that Mother submitted as exhibits

largely confirmed CYF’s concerns.              Mother acknowledged she became

homeless in December 2018 and was currently residing in a shelter.        See

Mother’s Exhibit A, Psychiatric Evaluation, at 1.         Mother confirmed she

continued to experience auditory and visual hallucinations. See id. Mother

identified her prescribed medication, but suggested she rarely took the

medication as prescribed. See id. at 2. Moreover, Mother acknowledged she

ran out of her medication over a month prior to the evaluation. See id.

       The evaluation noted Mother had a long history of mental health services

and was very inconsistent with both medication dosing and attendance. See

id. at 3. A progress note authored by Lila Hughes, M.S.W., from January 15,

2019, observed that Mother was “not accepting of her past diagnosis of

Schizoaffective disorder.”        See Mother’s Exhibit A, Progress Note, at 1.
____________________________________________


3 Mother has seven children, none of whom are in her care.           See N.T.,
2/15/19, at 58.

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Further, Ms. Hughes questioned whether Mother continued to take her

medications as prescribed as Mother’s response was indecisive. See id. at 2.

     Although Mother argues that her mental health is an improper factor for

the orphans’ court to consider, our Supreme Court has previously rejected a

similar argument, holding:

           [the] statutory basis for terminating involuntarily the rights
     of a parent with a mental or physical impairment is Section 311(2)
     of the Adoption Act of 1970, 23 Pa.C.S. § 2511(a)(2). The statute
     makes it clear that grounds for termination can consist of lack of
     capacity and not just affirmative misconduct. Judicial inquiry is to
     be centered on the best interest of the child, rather than the fault
     of the parent. . . . [W]e are satisfied that the same legal standard
     and burden of proof should be applied for the involuntary
     termination of parental rights of a parent with a mental and/or
     physical impairment as is applied to any other parent. We wish
     to emphasize, however, that the focus in such cases is the effect
     which an impairment has on the person’s ability to provide
     parental care, not the mere fact of impairment or the fact that the
     impairment may make the parent less desirable than another
     parent. The purpose is to protect the welfare of the child. So long
     as the parent makes a sincere effort and takes advantage of the
     services offered to improve his condition and ability to fulfill
     parental obligations, and the child’s essential physical and
     emotional needs are met, there should not be a termination of
     parental rights. The fact that a parent suffers from a physical or
     mental disability is not, and never was, the only relevant factor in
     determining whether his or her parental rights should be
     terminated, or whether there should be a different legal standard
     applied.

            What is important is the demonstrated willingness and
     ability of the parent to perform, at a minimal level, his or her
     parental duties. A parent’s performance “must be measured in
     light of what would be expected of an individual in circumstances
     in which the parent under examination finds himself.”

In re Adoption of J.J., 515 A.2d 883, 893 (Pa. 1986) (footnote omitted).



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      Accordingly, contrary to Mother’s argument, her mental health history

was an appropriate factor for the orphans’ court to consider. The orphans’

court considered Mother’s non-compliance with her mental health treatment,

as well as her overall failure to comply with her FSP, and determined Mother

is incapable of parenting Child and cannot or will not remedy her parental

incapacity. The orphans’ court did not abuse its discretion or commit an error

of law in reaching this conclusion, and, accordingly, Mother’s first issue does

not merit relief.

      We next consider whether the orphans’ court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(b).           The

requisite analysis is as follows.

      Section 2511(b) focuses on whether termination of parental rights
      would best serve the developmental, physical, and emotional
      needs and welfare of the child. As this Court has explained,
      Section 2511(b) does not explicitly require a bonding analysis and
      the term ‘bond’ is not defined in the Adoption Act. Case law,
      however, provides that analysis of the emotional bond, if any,
      between parent and child is a factor to be considered as part of
      our analysis. While a parent’s emotional bond with his or her child
      is a major aspect of the subsection 2511(b) best-interest analysis,
      it is nonetheless only one of many factors to be considered by the
      court when determining what is in the best interest of the child.

            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.


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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quotation

marks and citations omitted).

      In addressing Section 2511(b), the orphans’ court observed that Child

was doing well in the home of his foster mother, who is a permanent resource

for Child. Orphans’ Court Opinion, 4/1/19, at 18-19. The court concluded

there was a strong bond between Child and his foster mother, and little to no

bond between Child and Mother. See id. at 19. The court also concluded that

Mother was unable to provide a stable and safe environment for Child. See

id.   Accordingly, the court determined that terminating Mother’s parental

rights best met Child’s needs and welfare. See id.

      Mother argues the court erred in its consideration of Child’s needs and

welfare, contending that the court failed to conduct an independent

examination of whether or not termination best serves the needs and welfare

of Child. See Mother’s brief at 14. Mother faults the court for concluding that

she had little or no bond with Child and that Child’s parental bond is with his

foster mother. See id. Mother argues she did what was “within her power to

create a bond.” See id. at 15.

      Our review of the record confirms that the orphans’ court did not err in

concluding that Child’s needs and welfare are best met by terminating

Mother’s parental rights.   Faye opined that there was not a strong bond

between Mother and Child, noting that Child was removed from Mother’s care

shortly after his birth. See N.T., 2/15/19, at 18. Child is safe and happy in

his foster home. See id. at 20-21. Faye further testified that Child is strongly

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bonded to his foster mother, who is a pre-adoptive resource. See id. at 21,

26. Mother offered limited testimony regarding her relationship with Child,

focusing primarily on the clothes and supplies she purchased for him and

perceived deficiencies in the foster parents’ care for Child. See id. at 74-75,

79-81.

        The record amply supports the court’s finding that it would best serve

the needs and welfare of Child to terminate Mother’s parental rights pursuant

to Section 2511(b). Child has been out of Mother’s care for nearly his entire

life. Child is thriving in his foster home, and is strongly bonded to his foster

mother, who is a pre-adoptive resource. Remaining in his foster home will

allow Child to achieve permanence and stability. See T.S.M., 71 A.3d at 269

(stressing the need to expedite the placement of dependent children “in

permanent, safe, stable, and loving homes.”). Accordingly, Mother’s second

issue fails.

        In her final issue, Mother argues the orphans’ court erred in denying her

petition to change Child’s permanent placement goal from adoption.            The

Juvenile Act governs proceedings to change a child’s permanent placement

goal.    See 42 Pa.C.S.A. §§ 6301-6375.        Orphans’ courts must apply the

following analysis:

        Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act, when
        considering a petition for a goal change for a dependent child, the
        juvenile court is to consider, inter alia: (1) the continuing
        necessity for and appropriateness of the placement; (2) the extent
        of compliance with the family service plan; (3) the extent of
        progress made towards alleviating the circumstances which


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      necessitated the original placement; (4) the appropriateness and
      feasibility of the current placement goal for the children; (5) a
      likely date by which the goal for the child might be achieved; (6)
      the child’s safety; and (7) whether the child has been in placement
      for at least fifteen of the last twenty-two months. The best
      interests of the child, and not the interests of the parent, must
      guide the trial court. As this Court has held, a child’s life simply
      cannot be put on hold in the hope that the parent will summon
      the ability to handle the responsibilities of parenting.

In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation

marks omitted).

      The court denied Mother’s petition to change Child’s permanency goal

from adoption to reunification with Mother because Mother failed to obtain

stable housing and Mother’s mental health issues were not stabilized. See

Orphans’ Court Opinion, 4/1/19, at 14.        The court observed that Mother

located housing with her family the week prior to the hearing and began

attending therapy a “few short weeks before the date of the hearing.” See

id. at 15.   The court concluded that Mother’s past failure to maintain her

mental health for any substantial length of time made the court unhopeful

that Mother’s progress would continue. See id. at 16.

      Mother contends that her mental health issues should have afforded her

additional time to demonstrate progress. Mother’s brief at 15-17. She argues

that she was engaging in treatment and had located housing. See id. at 15-

16. Further, Mother contends that CYF mishandled her case by not assigning

people who could effectively communicate with her. See id. at 16.

      Upon our careful and thorough review of the record in this matter, we

conclude that the orphans’ court applied the appropriate legal principles to the

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record, and that the record supports the court’s findings.     Further, it is

apparent that, contrary to Mother’s arguments, CYF provided appropriate

efforts towards reunification, and Mother failed to take advantage of those

services. The orphans’ court did not commit an abuse of discretion in denying

Mother’s petition to change Child’s permanent placement goal from adoption

to reunification with Mother.

      Accordingly, we affirm the decree involuntarily terminating Mother’s

parental rights, and the order denying Mother’s petition to change Child’s

permanent placement goal from adoption to reunification.

      Decree affirmed. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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