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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF T.T.H., A MINOR             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: S.S.S., MOTHER

                                                   No. 1130 MDA 2016


                   Appeal from the Decree June 14, 2016,
               in the Court of Common Pleas of York County,
                   Orphans' Court, at No(s): 2016-0020a



IN THE INTEREST OF T.T.H., A MINOR             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: S.S.S., MOTHER

                                                   No. 1133 MDA 2016


              Appeal from the Order entered June 14, 2016,
              in the Court of Common Pleas of York County,
           Juvenile Division at No(s): CP-67-DP-0000154-2014.


BEFORE: OTT, DUBOW, PLATT, JJ.

MEMORANDUM BY DUBOW, J.:                       FILED DECEMBER 09, 2016

     Appellant, S.S.S. (“Mother”) appeals from the Decree involuntarily

terminating her parental rights to her son, T.T.H. (“Child”), pursuant to the
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Adoption Act, 23 Pa.C.S. § 2511(a) and (b), and from the Order changing

the permanency goal from reunification to adoption.1 We affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

        Counsel stipulated to the majority of the pertinent facts.   Child was

born in September 2011. At the time Mother and T.B.H., the putative father

(“Father”), were not wed, but have since married.2 On July 24, 2014, the

York County Office of Children, Youth and Families (“the Agency”) filed an

application for emergency protective custody following Mother’s arrest for,

inter alia, attempted murder, robbery, and conspiracy. In an order entered

the next day, the Agency presented sufficient evidence to demonstrate that

continuation or return of Child to either parent was not in Child’s best

interest. The trial court reached the same conclusion in a shelter care Order

dated August 4, 2014, and awarded legal and physical custody of Child to

the Agency. The Agency placed Child in emergency foster care.

        On August 6, 2014, the Agency filed a dependency petition, and the

court adjudicated Child dependent on August 11, 2014.         The court once

again awarded legal and physical custody to the Agency for placement of

Child in foster care, with a goal of reunification.


____________________________________________


1
    This Court sua sponte consolidated Mother’s Appeals.
2
 The Orphans’ Court also terminated Father’s parental rights. The Agency
avers that he has not filed an appeal. Agency’s Brief at 6.




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       Over the ensuing year and a half, the Agency provided Mother with

Family Services Plans (“FSP”).           In each subsequent permanency review

Order, the court concluded that Mother had minimally complied with the

FSPs, despite the reasonable efforts made by the Agency, although she did

complete a parenting program offered at the York County Prison.3         As a

result of her incarceration and Father’s minimal compliance with his FSP,

there was a continued need to place Child outside the care of his parents.

       On March 8, 2016, the Agency filed a Petition for the Involuntary

Termination of Mother’s Parental Rights (“TPR petition”), pursuant to 23

Pa.C.S. § 2511(a)(1), (2), (5), and (8), and (b).          That same date, the

Agency filed a petition to change the court-ordered goal in the dependency

proceeding to adoption.

       On April 29, 2016, Mother pled guilty to attempted robbery and

conspiracy to commit robbery. The court sentenced her to a term of thirty

to sixty months’ incarceration in a state correctional facility.


____________________________________________


3
  We note that the Agency caseworker testified at the termination hearing
that since August 2015, Mother had had bi-weekly, half-hour, contact visits
with Child, and spoke with Child on the phone two to three times per month
when she would call Father’s cell phone during Father’s supervised visits
with Child. The case manager also testified that although the visits between
Mother and Child went well, Child’s bond with his foster parents is stronger
than the bond with Mother. See N.T. Hearing, 5/19/16, at 83. The CYS
case manager acknowledged that prison regulations barred Mother from
having visits with Child for the first year of her incarceration due to the
homicide charge pending against Mother.



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      On May 27, 2016, the Orphans’ Court held an evidentiary hearing on

both Agency Petitions.    The Agency presented the testimony of one of its

caseworkers, as well as Child’s therapist, and a family resources specialist.

Mother declined the opportunity to testify on her own behalf. The Agency

stated that it had identified a prospective adoptive family.

      At the conclusion of the hearing, the Orphans’ Court took the matter

under advisement.     By final decree entered June 14, 2016, the Orphans’

Court terminated Mother’s parental rights based upon Section 2511(a)(1),

(2), (5), and (8), and (b).     By order entered that same day, the court

changed the permanency goal to adoption.

      These consolidated appeals by Mother follow.

ISSUES ON APPEAL

      Mother raises the following issues on appeal:

         1. Whether the [Orphans’] court abused its discretion in
            terminating    parental    rights  under    23   Pa.C.S.
            2511(a)(1)[,] (2)[,] (5)[,] and (8) in that Mother was
            incarcerated and performed parental duties to the best
            of her ability given her incarceration including contact
            visits, telephone contact, and sending cards and letters
            to her son and the [Orphans’] Court erred in finding
            that termination of the parental rights would best serve
            the needs and welfare of [Child] due to [Child] having a
            bond with Mother and a bond with siblings.

         2. Whether the [Orphans’] court abused its discretion in
            changing the court ordered goal in that the change of
            goal is not in [Child’s] best interest due to his bond with
            Mother and his potential for loss of contact with siblings
            and the trial court erred in finding that Mother has
            provided no parental duties in that Mother was
            incarcerated and performed parental duties to the best


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             of her ability given her incarceration including contact
             visits, telephone contact, and sending cards and letters
             to [Child].

Mother’s Brief at 4 (excess capitalization omitted).

      Because evidence regarding the permanency plan goal change and

TPR petitions substantially overlap, and the legal standards to be applied are

the same, we will first address Mother’s termination issues.        See In the

Interest of R.J.T., 9 A.3d 1179, 1191 n.14 (noting that courts should

combine hearings on these two petitions since the evidence substantially

overlaps and allows for faster permanency for the child).

LEGAL ANALYSIS

      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.” In re Adoption of

S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported,

appellate courts review to determine if the trial court made an error of law

or abused its discretion.” Id. We may reverse a decision based on an abuse

of discretion only upon demonstration of “manifest unreasonableness,

partiality, prejudice, bias, or ill-will.”   Id.   We may not reverse, however,

merely because the record would support a different result.” Id. at 827.

      We give great 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). The Orphans’ Court is free to believe all, part, or

none of the evidence presented and is likewise free to make all credibility

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determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d

68, 73-74 (Pa. Super. 2004).

      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). We

have explained that “[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. (citations omitted).

      It is well-settled that “a parent’s basic constitutional right to the

custody and rearing of his or her 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 permanent, health, safe environment.”

In re. B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004). “Parental rights are

not preserved by waiting for a more suitable or convenient time to perform

one's parental responsibilities while others provide the child with his or her

physical and emotional needs.” Id. at 855 (citation omitted).

      Section 2511 of the Adoption Act provides grounds for the involuntary

termination of parental rights.    See 23 Pa.C.S. §§ 2511(a).        In order to

affirm the termination of parental rights, this Court need only agree with the

trial court’s conclusion pertaining to any one subsection under Section

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


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     Termination Pursuant to Section 2511(a)(2), (5), and (b)

     Here, the trial court terminated Mother’s parental rights under Section

2511(a)(1), (2), (5), (8) and (b). We will analyze the trial court’s decision

to terminate Mother’s parental rights under Section 2511(a)(2), (5), and (b),

which provide:

     (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.

                                   ***

     (5) The child has been removed from the care of the parent by
     the court … for a period of at least six months, the conditions
     which led to the removal or placement of the child continue to
     exist, the parent cannot or will not remedy those conditions
     within a reasonable period of time, the services or assistance
     reasonably available to the parent are not likely to remedy the
     conditions which led to the removal or placement of the child
     within a reasonable period of time and termination of the
     parental rights would best serve the needs and welfare of the
     child.

                                   ***


     (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

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      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. § 2511.

      This Court has stated:

      In order to terminate parental rights pursuant to 23 Pa.C.S. §
      2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has 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.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)

(internal citations omitted).

      Our Supreme Court has observed that the Section 2511(a)(2) grounds

for termination must be demonstrated by clear and convincing evidence. In

addition, the Court noted:

      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) (internal citations and

some internal quotation marks omitted).

      With respect to incarceration, our Supreme Court has held:




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      [I]ncarceration, while not a litmus test for termination, can be
      determinative of the question of whether a parent is incapable of
      providing “essential parental care, control or subsistence” and
      the length of the remaining confinement can be considered as
      highly relevant to whether “the conditions and causes of the
      incapacity, abuse, neglect or refusal cannot or will not be
      remedied by the parent,” sufficient to provide grounds for
      termination pursuant to 23 Pa.C.S. § 2511(a)(2). See e.g.
      Adoption of J.J., 515 A.2d [883, 891 (Pa. 1986)] (“[A] parent
      who is incapable of performing parental duties is just as
      parentally unfit as one who refuses to perform the duties.”); [In
      re;] E.A.P., 944 A.2d [79,] 85 [(Pa. Super. 2008] (holding
      termination under § 2511(a)(2) supported by mother's repeated
      incarcerations and failure to be present for child, which caused
      child to be without essential care and subsistence for most of her
      life and which cannot be remedied despite mother's compliance
      with various prison programs). If a court finds grounds for
      termination under subsection (a)(2), a court must determine
      whether termination is in the best interests of the child,
      considering the developmental, physical, and emotional needs
      and welfare of the child pursuant to § 2511(b). In this regard,
      trial courts must carefully review the individual circumstances for
      every child to determine, inter alia, how a parent's incarceration
      will factor into an assessment of the child's best interest.

Id. at 830-31.

      In the instant case, the Orphans’ Court observed that Mother has been

incarcerated since July 2014 when the Child was adjudicated dependent, and

recently received a sentence for thirty to sixty months’ incarceration.

      Mother has provided no parental duties for the minor child for
      the past two (2) years and will not be able to so until she is
      released from prison.
                               ***
      Overall, Mother has made no progress … towards alleviating the
      circumstances which caused the minor child to be placed and
      [has] not assumed any major parental duties for minor child.

                                      ***
      Neither parent is in a position to obtain custody of the minor
      child at this time. The minor child is currently residing with a


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       foster family and testimony established that the child is
       comfortable in their home. Minor child has a bond with the
       foster family and looks to them for comfort and security.

       The [c]ourt finds that the conditions which led the minor child to
       placement outside the care and custody of Mother … continue to
       exist. Mother has been incarcerated since the adjudication of
       dependency and has made no progress towards alleviating the
       circumstances which initially led to minor child’s placement.

       …[T]he [c]ourt finds that the Agency clearly and convincingly
       established that termination of parental rights is justified
       pursuant to Sections 2511(a)(2), (5), and (8) of the Adoption
       Act.

Adjudication, dated 6/14/16, at 9-13.

       Mother argues that the Orphans’ Court erred in terminating her

parental rights pursuant to Section 2511(a)(2) and (5) because “mother was

the primary care giver prior to her incarceration,” and “has time served and

will not be incarcerated in state prison long before she is released.”

Appellant’s Brief at 14-15.4 She also avers that “Mother believes that since

she has been sentenced, she now has a good idea of how long she will be

incarcerated and feels it is reasonable to wait to save the mother[/]son

bond.” Id. at 15.

       Since the dependency adjudication hearing in July 2014, when child

was just two years old, up to the day of the involuntary termination hearing

in May 2016, Mother has been incarcerated. Her ability to see Child twice a

____________________________________________


4
 Mother does not provide any details to support her averment that she will
not be “in state prison long.” The record is devoid of any indication as to
Mother’s potential release date in consideration of credit for time served.



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month does not provide Mother with the capability of providing essential

parental care, control or subsistence. Without evidence of when Mother will

be released, it is speculative for her to assert that the trial court erred in

involuntarily terminating her rights because her prison sentence will not be

long. She received her sentence of thirty to sixty months’ incarceration just

weeks before the parental rights termination hearing, after Child had already

lived half his life away from Mother. Unfortunately, the “conditions which led

to the removal . . . of the child continue to exist,” Mother “cannot or will not

remedy those conditions within a reasonable period of time, the services or

assistance reasonably available to the parent are not likely to remedy the

conditions which led to the removal or placement of the child within a

reasonable period of time[,] and termination of [Mother’s] parental rights

would best serve the needs and welfare of the child.”            23 Pa.C.S. §

2511(a)(2) and (5).

      Most importantly, as noted above, “parental rights are not preserved

by waiting for a more suitable . . . time to perform one’s parental

responsibilities while others provide the child with her physical and

emotional needs.” In re. B., N.M., 856 A.2d at 855.

      Accordingly, the court did not abuse its discretion in terminating

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and (5).




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Termination Pursuant to Section 2511(b)

      We also agree with the Orphans’ Court’s determination that the

Agency met its burden under 23 Pa.C.S. § 2511(b), and that terminating

Mother’s parental rights is in the best interest of Child.

      With respect to Section 2511(b), our analysis shifts focus from

parental actions in fulfilling parental duties to the effect that terminating the

parental bond will have on the child. Section 2511(b) “focuses on whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child.” In re: Adoption of J.M.,

991 A.2d 321, 324 (Pa. Super. 2010).

      In In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005), this Court found

that “intangibles such as love, comfort, security, and stability are involved in

the inquiry into the needs and welfare of the child.”        Id. at 1287 (citation

omitted). In addition, the Orphans’ 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. (citation omitted).

      In the instant case, the Orphans’ Court found that Mother’s bond with

Child has diminished due to her incarceration and, accordingly, the court

found that termination of her parental rights would not have a negative

impact on Child.     The court further found that a healthy bond existed

between Child and the foster parents:

         The Court has thoroughly evaluated [Child’s] relationships
         in this matter. . . . The Court finds that [Child] had a
         bond with Mother but that bond has diminished since

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         Mother’s incarceration.     It is the foster parents who
         provide for [Child]’s daily needs and act as [his] parental
         figures. [Child] looks to the foster family for security and
         is upset when he has to leave their care. At this point, the
         Court believes that termination of Mother’s . . . parental
         rights will have no negative impact of [Child]. The Court
         also finds that the bond between the foster parents is
         strong and healthy. Testimony established that [Child] is
         happy in their care. The bond that [Child] has with the
         foster parents can provide safety, security and
         permanency for [Child]. Termination of parental rights will
         best meet the needs of [Child] and permit [him] to achieve
         the stability that he deserves.

Adjudication, at 14-15.

      Mother argues that the Orphans’ Court erred in concluding that

termination of her parental rights would best serve the needs and welfare of

Child because “[Child] has a bond with [Mother] and a bond with siblings.”

Mother’s Brief at 10. According to Mother, she still possesses her parental

rights to Child’s older sister and, by severing her parental rights to Child, the

Orphans’ Court “has also effectively terminated rights to the older siblings,

which [Mother] feels is an abuse of discretion and does not serve the needs

and welfare of [Child].” Id. at 18.

      Based on the testimony of the Agency’s witnesses, the Orphans’ Court

acknowledged a bond between Mother and Child, but found that the bond

had “diminished over time due to her incarceration preventing frequent

visitation.” Trial Court Opinion, dated 8/3/16, at 1. The Orphans’ Court also

reiterated its conclusion that Child “has a closer bond with the foster parents

and would go to [them] over Mother when seeking comfort and care.” Id.

Finally, our review of the record supports the court’s further conclusion that


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testimony at the TPR hearing “established that [Child] has regular contact

with his siblings and extended family members and that the foster parents

intend to continue said contact.” Id. Thus, Mother’s claim regarding Child’s

potential loss of a bond with his siblings fails.

      Finally, with respect to the trial court’s decision to change Child

permanency goal to adoption, we note that when considering a goal change

Motion the court looks to the best interests of the child rather than those of

the child’s parents.    See R.J.T., 9 A.3d at 1183-84.     The Agency must

establish that the requested goal change option is best suited to the child’s

safety, protection, and physical, mental, and emotional welfare. Id.

      In light of our above analysis, we conclude that the Orphans’ Court did

not err in changing Child’s permanency goal to adoption.

      CONCLUSION

      In sum, our review of the record supports the Orphans’ Court’s

determination that the Agency met its statutory burden of proving by clear

and convincing evidence that Mother’s parental rights should be terminated

pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b), and did not err in

changing the permanency goal to adoption.




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     Decree affirmed. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




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