J-S32030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: M.X.O., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

APPEAL OF: T.A., MOTHER                         No. 66 WDA 2015


            Appeal from the Order entered December 11, 2014,
          in the Court of Common Pleas of Blair County, Orphans’
                        Court, at No(s): 2014 AD 61

IN THE INTEREST OF: A.M.O., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

APPEAL OF: T.A., MOTHER                         No. 68 WDA 2015


            Appeal from the Order entered December 11, 2014,
          in the Court of Common Pleas of Blair County, Orphans’
                       Court, at No(s): 2014 AD 61A

BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                               FILED JULY 22, 2015

      T.A. (“Mother”) appeals the decrees dated December 11, 2014, and

entered on December 12, 2014, that granted the petitions filed by the Blair

County Children, Youth, and Families (“CYF,” “BCCYF,” or the “Agency”),

seeking to involuntarily terminate her parental rights to M.X.O., a male born

in March 2006, and A.M.O., a female born in December 2007, (collectively,

the “Children”), pursuant to sections 2511(a)(2), (5), (8), and (b) of the

Adoption Act, 23 Pa.C.S.A. § 2511(2), (5), (8), and (b).1 We affirm.




1
  In the same decrees, the trial court involuntarily terminated the parental
rights of the Children’s father, T.O. (“Father”). Father has not filed a notice
J-S32030-15


     The trial court adequately and accurately set forth the factual

background and procedural history of this appeal in its opinion entered on

January 27, 2015, which we incorporate herein.        See Trial Court Opinion,

1/27/15, at 1-13. The trial court stated that, on September 25, 2104, after

the 48-month permanency/dispositional review/goal change hearing held on

September 22, 2014, the court entered a permanency review order changing

the permanency goal for the Children to adoption pursuant to section

6351(f) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f). Id. at 12.

     On     October   28, 2014,   CYF   filed   petitions   for   the   involuntary

termination of the parental rights of both Mother and Father with regard to

both of the Children. On December 4, 2014, the trial court held a hearing

with regard to CYF’s Motion for 51st Month Interim Permanency/Dispositional

Review Hearing, which was combined with the involuntary termination

proceedings. At the time of the hearing, A.M.O. was living in South Dakota

with Mother’s aunt, S.B., who is the twin sister of Mother’s mother, L.A.

M.X.O. was removed from S.B.’s home, and was residing in a Residential

Treatment Facility (“RTF”) in Pennsylvania. At the hearing, CYF presented

the testimony of Taylor Zindel, the CYF ongoing caseworker assigned to the

Children.    N.T. Hearing, 12/4/14, at 10-11.         CYF then presented the




of appeal from the decrees terminating his parental rights, nor is he a party
to the instant appeal.


                                    -2-
J-S32030-15


testimony of A.M.O.’s pre-adoptive foster mother, S.B., via telephone. Id.

at 28 and 31. Mother testified on her own behalf. Id. at 42.

     After the hearing, in orders dated December 11, 2014, the trial court

made the following factual findings regarding Mother.

        [Mother] still has not established any structure or stability
        in her life. By her own admission, she is an addict and
        recognizes this will be a life-long struggle for her. She is
        still residing with her parents, who have a history of
        domestic violence and [] addiction []. They have been ruled
        out as a resource for the [C]hildren. [Mother] has not had
        any personal visits with the [C]hildren since they were
        transitioned to South Dakota. She is permitted to have
        written communication that is supervised by each child’s
        therapist. M.X.O. has not demonstrated any interest in
        receiving such letters, until just recently when he wrote a
        letter in return to his mother.         [Mother’s Exhibit 1].
        [Mother] is in intensive outpatient treatment at Home
        Nursing Agency for co-occurring drug and alcohol and
        mental health issues. Per the report dated December 1,
        2014, her responsiveness is considered “good,” her attitude
        toward service is “excellent,” and her progress toward goals
        is “good.”     [Petitioner’s Exhibit 1].   The sexual abuse
        allegations wherein [Mother] was named as the perpetrator
        and M.X.O. as the victim child were unfounded. [Mother]
        passed a polygraph test, and M.X.O. underwent a forensic
        interview, and there was no evidence that these allegations
        were true.

        [Mother] has been in and out of treatment for years, and
        still struggles with her addiction issues.     She has also
        undergone counseling for personal relationships, anger
        management, art therapy, cognitive behavioral therapy, and
        other mental health services.       Despite a multitude of
        services, [Mother] has been unable to demonstrate that she
        can consistently provide a safe, secure[,] and stable
        placement for approximately four years now. [Mother]
        testified that she would relinquish her rights if the
        [C]hildren would be adopted by her cousin. She has had
        three [] [driving under the influence] convictions. [Mother]
        has a mental health diagnosis of post[-]traumatic stress

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         disorder[,] anxiety[,] depression[,] bi-polar condition[,] and
         obsessive compulsive disorder. She is currently on three []
         different medications.

Trial Court Opinion, 1/27/15, at 14, quoting Trial Court Order, 12/11/14, at

¶ 3 (some internal capitalization omitted).

      On   December     12,   2014,   the   trial   court   entered   the   decrees

involuntarily terminating Mother’s parental rights to the Children, pursuant

to sections 2511(a)(2), (5), (8), and (b) of the Adoption Act. On January

23, 2015, this Court, acting sua sponte, consolidated the appeals.

      On December 22, 2014, Mother timely filed notices of appeal, along

with concise statements of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).

      On appeal, Mother raises two issues:

         I. Whether the [trial court] gave sufficient weight and
         consideration to the progress [Mother] made in mental
         health treatment in finding that clear and convincing
         evidence existed to terminate [her] parental rights?

         II. Whether clear and convincing evidence existed that the
         developmental, physical[,] and emotional needs of the
         [C]hildren would be met by terminating parental rights?

Mother’s Brief at 6.

      Mother argues that the trial court erred in terminating her parental

rights because the court failed to give sufficient weight and consideration to

the progress she has made in mental health treatment. See Mother’s Brief

at 13.     Mother asserts that she made progress in her mental health

treatment that alleviated the circumstances that led to the placement of the

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Children. Mother also contends that the trial court erred and/or abused its

discretion in finding that CYF established, through clear and convincing

evidence, that the termination of her parental rights to the Children would

serve their best interests. Mother argues that the Children’s developmental,

physical, and emotional needs are not being met in their current placements.

Mother asserts that the Children’s needs were better met when they had

regular contact with her.

      We review the appeal from the termination of parental rights in

accordance with 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 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.

        As [the Pennsylvania Supreme Court] discussed in R.J.T.,
        there are clear reasons for applying an abuse of discretion
        standard of review in these cases. [The R.J.T. 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

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J-S32030-15


         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
         [appellate courts] 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal

citations omitted).

      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., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

      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).

      The trial court terminated Mother’s parental rights under sections

2511(a)(2), (5), (8), and (b). We will focus on sections 2511(a)(2) and (b),

which provide as follows:

         § 2511. Grounds for involuntary termination


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        (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.

                                     ...

        (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.

      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



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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   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).

      Our Supreme Court set forth our inquiry under section 2511(a)(2) as

follows.

           As stated above, § 2511(a)(2) provides statutory grounds
           for termination of parental rights where it is demonstrated
           by clear and convincing evidence that “[t]he 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.” If and only if grounds for termination are
           established under subsection (a), does a court consider “the
           developmental, physical and emotional needs and welfare of
           the child” under § 2511(b).

           [The Supreme] Court has addressed incapacity sufficient for
           termination under § 2511(a)(2):

              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.



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        In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986),
        quoting In re: William L., 383 A.2d 1228, 1239 (Pa.
        1978).

In re Adoption of S.P., 47 A.3d at 827.

     This Court has stated that a parent is required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.

In re A.L.D. 797 A.2d at 337.     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. at 340.

     The trial court explained its decision to terminate Mother’s parental

rights under section 2511(a)(2) as follows:

        [Mother] first argues that [the trial court] did not give
        sufficient consideration and weight to the evidence that
        [Mother] has made progress in her mental health treatment
        and that allegations of sexual abuse as against M.X.O. were
        unfounded. . . . [The trial court does] not believe that
        [Mother] has made sufficient progress in her mental health
        treatment. Even as recently as our Permanency Review
        Order of December 11, 2014, [the trial court] specifically
        found that “[d]espite a multitude of services, [Mother] has
        been unable to demonstrate that she can consistently
        provide a safe, secure and stable home environment for her
        children.”

        [Mother’s] mental health issues are significant, as she has
        been diagnosed with [post-traumatic] stress disorder,
        anxiety, depression, bipolar and obsessive compulsive
        disorder. Despite her significant mental health diagnosis,
        she has never consistently invested in mental health
        treatment over the course of time.

        Relative to the allegations of sexual abuse wherein [Mother]
        was identified as the perpetrator and M.X.O. as the victim,
        such was determined to be unfounded. Quite frankly, [the
        trial court was] taken aback when this allegation arose, and

                                    -9-
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        not surprised when this allegation was deemed to be
        unfounded. As a result, [the trial court] afforded absolutely
        no weight to this allegation of sexual abuse in [its] findings,
        nor in [its] decision to involuntarily terminate the parental
        rights of [Mother].

Trial Court Opinion, 1/27/15, at 15 (some internal capitalization omitted).

      There is ample, competent, clear and convincing evidence in the

record to support the trial court’s determination that Mother has not

demonstrated any ability to remedy the circumstances which led to the

Children’s placement, nor is there any indication that she could remedy such

circumstances in the foreseeable future, even with continued services in

place. After a careful review of the record, we find that the trial court aptly

discussed the evidence against the requirements of section 2511(a)(2). We

will not impose our own credibility determinations and re-weigh the

evidence. We must defer to the trial judge’s determination, 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 S.P., 47 A.3d at 826-27.

      After we determine that the requirements of section 2511(a) are

satisfied, we proceed to review whether the requirements of section 2511(b)

are satisfied.   See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc). This Court has stated 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). Id. at 1008.


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      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently 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. § 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)], this 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).

      We have stated that, in conducting a bonding analysis, the court is not

required to use expert testimony, but may rely on the testimony of social

workers and caseworkers.       In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.

2010).     This Court has observed that no bond worth preserving is formed

between a child and a natural parent where the child has been in foster care

for most of the child’s life, and the resulting bond with the natural parent is

attenuated.     In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).        It is

appropriate to consider a child’s bond with her foster parent.     See In re:

T.S.M., 71 A.3d at 268.

      With regard to Mother’s second issue, the trial court explained its

decision to terminate Mother’s parental rights under section 2511(b) as

follows.

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        In her second error complained of on appeal, [Mother]
        argues that the court did not give sufficient consideration
        and weight to the evidence that [Mother] has a bond with
        the [C]hildren despite the efforts of the current foster
        parent (S.B.) to sever that bond. First of all, there is
        absolutely no credible evidence whatsoever that S.B. has
        engaged in any action or efforts to sever the bond between
        [Mother] and the subject children. [Mother] reached out to
        S.B., the maternal great-aunt (who is the twin sister of the
        [Mother’s] own mother) to assume custody of the [C]hildren
        during the course of this dependency proceeding. In all
        respects, [the trial court] found S.B. to be very credible and
        sincere in her willingness to serve as a permanent resource
        for these children, despite their significant issues. The
        significant issues that the [C]hildren are suffering are
        directly related to the traumatic and chaotic history that
        they had while residing in the care, custody and control of
        [Mother]. [The trial court has] no question that [Mother]
        loves her children, but [it does] not find that a healthy bond
        exists by and between them. In fact, both children stated
        on numerous occasions that they desired to remain with
        their maternal great-aunt, S.B., in South Dakota rather than
        return to [Mother’s] care in Pennsylvania. In fact, M.X.O.
        became visibly distraught and was shaking when he learned
        that he was returning to Pennsylvania, being fearful that
        such return meant returning to the custody of [Mother].

Trial Court Opinion, 1/27/15, at 15.

      Mother also contends that S.B., as the legal custodian of the Children,

has impeded her contact with the Children.        See Mother’s Brief at 20.

Mother claims that A.M.O. was excited to receive a holiday art project from

Mother, but S.B. testified that A.M.O. “raged” after receiving it. Id. at 21.

She asserts that M.X.O.’s behavior worsened as a result of the lack of

contact with Mother. Id. She blames M.X.O.’s being moved to an RTF in

South Dakota in January of 2013 on S.B., as M.X.O.’s legal custodian. Id.

Mother also suggests that M.X.O. was moved to the RTF in Pennsylvania in

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January of 2014, partly because he was getting out of control at visits with

S.B., and was having “meltdowns” with her.       Id. at 21.   Mother contends

that S.B. is not meeting the Children’s needs and welfare, because the

Children were doing much better when they were receiving regular contact

and visitation with Mother. Id. at 22.

     The trial court responded to Mother’s additional argument as follows.

        [Mother] raises on additional argument as it relates to
        M.X.O. She submits that [the trial court] failed to give
        significant consideration to the best interest of M.X.O. as
        the termination of parental rights resulted in [his] being
        confined to a residential treatment facility hours away from
        family members and without realistic expectation of ever
        being returned to a family setting within a reasonable period
        of time. In response, [the trial court] acknowledge[d] that
        [it is] troubled that M.X.O. is currently in a residential
        treatment facility and would certainly prefer him to be in a
        home setting with a family member. It was the initial hope
        and goal that the transfer of the [C]hildren to their maternal
        great-aunt, S.B., in South Dakota would result in
        permanency, with the specific goal being changed at the
        time of such transfer to P.L.C. (relative). It does appear
        that permanency with S.B. will be achieved for A.M.O.
        Unfortunately, the relationship between the siblings is not a
        healthy one[,] and they needed to be separated for the
        reasons [the trial court] set forth in [its] Permanency
        Review Orders. However, S.B. has ensured that there is
        ongoing contact and communication between the siblings.
        Necessary services for A.M.O. are being provided in S.B.’s
        home. Unfortunately, M.X.O.’s needs were much more
        significant and have resulted in separation from his sibling,
        and a return to Pennsylvania[,] and placement in a
        residential treatment facility that is best suited to address
        his significant needs. It remains the goal of [the trial] court
        and BCCYF to place M.X.O. with a family member. A
        potential family resource has been identified[;] however, it
        is necessary that M.X.O.’s behavior be stabilized before he
        can be safely transitioned into a family setting.         Even
        though [the trial court is] troubled with M.X.O.’s situation,

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         [it is] fully satisfied that a return to [Mother’s] custody is
         not the answer.

         Therefore, based on the above, [the trial court] respectfully
         submit[s] that BCCYF established by clear and convincing
         evidence the statutory grounds for involuntary termination
         of parental rights under 23 Pa.C.S.A. § 2511(a)(2), (a)(5),
         (a)(8) and (b).

         [The trial court] also submits that the record established by
         clear and convincing evidence, after taking into
         consideration the developmental, physical and emotional
         needs and welfare of the subject children, that the
         termination of parental rights of [Mother] (and [Father])
         would best serve [the Children’s] needs and welfare. As a
         result of the foregoing, [the trial court] respectfully
         request[s] your Honorable Court to affirm [the trial] court’s
         entry of the TPR Decrees of December 11, 2014.

Trial Court Opinion, 1/27/15, at 15-16 (emphasis in original).

       There is ample, competent, clear, and convincing evidence in the

record to support the trial court’s finding that S.B., the Children’s maternal

great-aunt, meets all of A.M.O.’s needs and welfare, and that M.X.O.’s

significant needs and welfare are being met in the RTF where he resides in

Pennsylvania. Although the trial court did not expressly discuss the effect of

severing the bond between the Children and Mother in its December 11,

2014 orders, the court indicated in its opinion that it found clear and

convincing evidence that a return of the Children to Mother would not be

healthy for them, especially for M.X.O.       The trial court found that A.M.O.,

who had been in placement with S.B. for 51 months, desires to remain with

S.B.



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      The competent evidence in the record supports the trial court’s

determination that that the termination of Mother’s parental rights would

serve the Children’s best interests and that the Children would not suffer any

harm from the termination of Mother’s parental rights. Our Supreme Court

has stated 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,

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

Supreme Court stated, “[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.”       See In re: T.S.M., 71 A.3d at 267

(internal quotations and citations omitted).     Thus, we will not disturb the

trial court’s decision. In re Adoption of S.P., 47 A.3d at 826-27.

      While Mother may claim to love the Children, a parent’s own feelings

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

parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We

stated in In re Z.P., 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.” Id. 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


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her parental duties, to the child’s right to have proper parenting and

fulfillment   of   his   or   her   potential     in   a   permanent,   healthy,   safe

environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).

      Accordingly, we affirm the trial court’s decrees terminating Mother’s

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

Adoption Act.

      Orders affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2015




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