J-S44038-15


                                  2015 PA Super 200

IN RE: ADOPTION OF G.L.L., A MINOR                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


APPEAL OF: ALLEGHENY COUNTY
OFFICE OF CHILDREN, YOUTH AND
FAMILIES
                                                      No. 359 WDA 2015


                    Appeal from the Order February 9, 2015
              In the Court of Common Pleas of Allegheny County
                   Orphans' Court at No(s): TPR 077 of 2014


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                          FILED SEPTEMBER 21, 2015

       Allegheny County Office of Children, Youth and Families (CYF) appeals

from the trial court’s order denying CYF’s petition to involuntarily terminate

the parental rights of S.L.L. (Mother) to her minor child, G.L.L. (Child) (born

6/2008).1     The trial court concluded that termination would not serve the

needs and welfare of G.L.L. pursuant to 23 Pa.C.S. § 2511(b).2 After careful

review, we affirm.

____________________________________________


1
  G.L.L., through his Guardian ad litem (GAL), took the position at trial that
Mother’s rights should be terminated and filed its own appeal.     However,
the GAL has since withdrawn that appeal, finding that the trial court’s
decision to deny CYF’s petition because termination would not serve the
needs and welfare of G.L.L. is supported by the record and was not an abuse
of discretion. See GAL’s Brief, at 9.
2
  The trial court’s order denies CYF’s petition solely on the grounds that
“[t]he Court finds that terminating the rights of the parent does not serve
the needs and welfare of the child.[]” Trial Court Order, 2/9/2015, at 1.
(Footnote Continued Next Page)
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      CYF first became involved with G.L.L. in June 2011 when Mother was

in a psychiatric hospital and could not care for him. In August 2011, CYF

opened a case as a result of deplorable conditions in Mother’s home,

including animal feces and bugs throughout the home. CYF provided Mother

with family group decision-making services,3 which eventually transitioned to

in-home    services,      from    September       2011   through   December   2011.

Ultimately, G.L.L. was removed from his home on February 15, 2012, but

was returned to Mother’s care on February 28, 2102; Mother was provided

crisis in-home services. G.L.L. was adjudicated dependent one month later,

on March 27, 2012. G.L.L. was removed from the family home for a second

time, on April 16, 2012, after CYF received a report of physical abuse

perpetrated by Mother. He has not returned to Mother’s care.

                       _______________________
(Footnote Continued)

However, the court makes no determination with regard to findings on
section 2511(a). We remind the trial court that in termination matters, it
must engage in a bifurcated analysis, see In re D. W., 856 A.2d 1231,
1234 (Pa. Super. 2004), that initially focuses on the conduct of the parent
and whether the party seeking termination has proven by clear and
convincing evidence that the parent's conduct satisfies the statutory grounds
for termination under section 2511(a). Only after determining that the
parent's conduct warrants termination of his or her parental rights under
section 2511(a) must the court engage in the second part of the analysis,
determination of the needs and welfare of the child, under section 2511(b).
C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005).
3
  Family Group Decision Making services describes a variety of practices
aimed at working with and engaging children, youth, and families in safety
and service planning and decisions. These services are often provided to
families where safety concerns exist and prior to children being removed
from their homes.



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      CYF created a family service plan (FSP) for Mother with the following

goals:   stabilizing her mental health; getting G.L.L. needed preventative

health and dental care; obtaining appropriate housing; and maintaining

contact and cooperation with family, friends and relatives as support

resources for G.L.L. To assist her in completing these goals, CYF provided

Mother with parenting classes, referrals for drug and alcohol assessments

and providers, and transportation assistance.

      On April 29, 2014, CYF filed the instant petition for involuntary

termination of Mother’s parental rights to G.L.L., citing 23 Pa.C.S. §§

2511(a)(1), (a)(2), (a)(5), (a)(8), and (b) as the grounds for termination.

The trial court held a termination hearing on January 23, 2015, and denied

CYF’s petition, ultimately concluding that CYF did not prove by clear and

convincing evidence that terminating Mother’s parental rights would serve

the needs and welfare of G.L.L. under section 2511(b).          CYF filed this

appeal, raising the following issue for our consideration:

      Did the Orphan’s Court err as a matter of law and/or abuse its
      discretion in failing to conclude that CYF met its burden of
      proving that termination of Birth Mother’s parental rights would
      serve the needs and welfare of the Child pursuant to 23 Pa.C.S.
      § 2511(b) by clear and convincing evidence?

      We note that:

      In a proceeding to terminate parental rights involuntarily, the
      burden of proof is on the party seeking termination to establish
      by clear and convincing evidence the existence of grounds for
      doing so. The 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

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       issue." It is well established that a court must examine the
       individual circumstances of each and every case and consider all
       explanations offered by the parent to determine if the evidence
       in light of the totality of the circumstances clearly warrants
       termination.

In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted).     We review a trial court’s decision to involuntarily terminate

parental rights for an abuse of discretion or error of law. In re A.R., 837

A.2d 560, 563 (Pa. Super. 2003).               Our scope of review is limited to

determining whether the trial court’s order is supported by competent

evidence. Id.

       CYF asserts that it proved, by clear and convincing evidence, that

termination of Mother’s parental rights would serve the needs and welfare of

G.L.L. under section 2511(b).           To support its position, CYF argues that:

Mother has made minimal progress with regard to maintaining sobriety and

obtaining stable housing since G.L.L. has been out of her care; termination

of G.L.L.’s relationship with foster parents would be detrimental to G.L.L.;

and that an open adoption would meet the needs and welfare of G.L.L.

       Section 2511(b) of the Adoption Act4 states:

       (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
____________________________________________


4
    See 23 Pa.C.S. §§ 2101-2938.




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     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. § 2511(b) (emphasis added). Moreover, in In re K.J., 936 A.2d

1128 (Pa. Super. 2007), our Court found that before granting a petition to

terminate under section 2511(b), a court must:

     [C]arefully consider the intangible dimension of the needs and
     welfare of a child--the love, comfort, security, and closeness--
     entailed in a parent-child relationship, as well as the tangible
     dimension. Continuity of relationships is also important to a
     child, for whom severance of close parental ties is usually
     extremely painful. The trial court, in considering what situation
     would best serve the children's needs and welfare, must
     examine the status of the natural parental bond to
     consider whether terminating the natural parents' rights
     would destroy something in existence that is necessary
     and beneficial.

Id. at 1134 (emphasis added).

     CYF’s claim that Mother’s minimal progress with regard to maintaining

sobriety and obtaining stable housing since G.L.L. has been out of her care

justifies termination under section 2511(b) is misplaced. A determination of

whether the parent's conduct justifies termination of parental rights under

section 2511(a) is distinct from and not relevant to a needs and welfare

analysis under section 2511(b). In re Adoption of R.J.S., 901 A.2d 502,

508 (Pa. Super. 2006).      However, the record establishes that Mother

obtained her own housing prior to the termination proceedings and, although

Mother’s mental health and drug use has caused instability in her life, she



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has managed to consistently visit with G.L.L. and has not let these issues

affect her interactions with him. N.T. Termination Hearing, 1/23/15, at 31-

32. Moreover, Dr. Neil Rosenblum concluded in his report “that Mother has

made significant strides and improvement in her overall adjustment . . .

[and] no longer presents as being severely depressed[, . . .] has reinitiated

mental health treatment . . . and has become much more functional and

productive in her behavior and personal adjustment.”            Psychological

Evaluation by Neil D. Rosenblum, Ph.D., 2/5/14, at 13.

         Next, CYF claims that termination of Mother’s parental rights is

supported by the fact that ending G.L.L.’s relationship with foster parents

would be detrimental to him. While the security that G.L.L. may have with

his foster parents is a factor to be considered under section 2511(b), see In

re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011), one cannot discount the fact

that a major aspect of a section 2511(b) analysis is the status of the parent-

child bond and the effect that severance of that bond would have on the

child.    Here, all parties acknowledge that there is a demonstrated bond

between Mother and G.L.L. See N.T. Termination Hearing, 1/23/15, at 86

(CYF attorney states “[c]learly there’s a bond between [Mother] and

[G.L.L.]”); id. at 29 (expert psychologist testifies that Mother and G.L.L.’s

relationship is “meaningful” and she has been a “constant” for him).      Dr.

Rosenblum, psychologist who conducted several evaluations of G.L.L. and

Mother, testified that not only is there a meaningful relationship between

Mother and G.L.L., but that G.L.L. “certainly would be harmed” were that

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relationship terminated. Id. at 29. Specifically, Dr. Rosenblum testified that

G.L.L. would feel a loss if Mother’s rights were terminated due to the number

of years that he lived with her before he was removed from the home and

the fact that Mother visits with him twice a week. Id. at 30.

      On February 5, 2014, Dr. Rosenblum conducted individual evaluations

of G.L.L. and Mother, as well as an interactional evaluation of G.L.L. with

Mother.     Dr. Rosenblum’s report indicates that G.L.L. stated Mother (as

opposed to foster mother) is his favorite mom because he used to live with

her, that he misses Mother, and that he likes seeing her.        Psychological

Evaluation by Neil D. Rosenblum, Ph.D., 2/5/14, at 4.      With regard to his

evaluation of Mother, Dr. Rosenblum found that Mother clearly loves her

son, visits him on a fairly regular and consistent basis, had made significant

changes in her life over the past few months, which included moving into a

new home and obtaining a job, and meets with a therapist on a weekly basis

to stay calm and positive and effectively deal with her depression. Id. at 5.

      Dr.   Rosenblum    made   the   following   observations   following   his

interactional evaluation with G.L.L. and Mother: G.L.L. was pleased to see

Mother; Mother was very appropriate in her interactions with G.L.L.; Mother

was patient and attentive to G.L.L.; Mother has a nice rapport with G.L.L.;

Mother was nurturing with G.L.L.; and G.L.L. wanted to stay longer with

Mother at the end of the session. Id. at 7.

      Dr. Rosenblum opined that termination of Mother’s rights would have a

negative impact on G.L.L. due to his close attachment to her. While he did

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not    recommend      reunification,    he     did   recommend   continuing   G.L.L.’s

relationship with Mother through open adoption under 23 Pa.C.S.A. § 2731.5

However, before the parties could effectuate an open adoption, Mother’s

parental rights would have to be terminated.                Instantly, there is no

guarantee that Mother and G.L.L. would continue to have contact post-

termination. Open adoption is a purely voluntary arrangement requiring the

consent of the adoptive parents in order to enter into an agreement with

birth relatives for ongoing communication or contact that is in the best

interest of the child.      See In re K.H.B., 107 A.3d 175, 184 (Pa. Super.

2014) (open adoption statute by its plain language makes agreement

optional, and such agreement is plainly not required by section 2511); see
____________________________________________


5
    The purpose of section 2731 is:

        [T]o provide an option for adoptive parents and birth relatives to
        enter into a voluntary agreement for ongoing communication or
        contact that:

           (1) is in the best interest of the child;

           (2) recognizes the parties' interests and desires for
           ongoing communication or contact;

           (3) is appropriate given the role of the parties in the child's
           life; and

           (4) is subject to approval by the courts.

23 Pa.C.S.A. § 2731. An agreement under Act 101 "shall be filed with the
court that finalizes the adoption of the child[,]" 23 Pa.C.S.A. § 2735(a),
[and] “[t]he agreement shall not be legally enforceable unless approved by
the court, which the court shall approve when the statutory conditions are
satisfied.” Id. at §§ 2735(b), (c).



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also N.T. Termination Hearing, 1/23/15, at 93 (guardian ad litem admits

that “you can’t hold it against the foster parents if they decide that they do

not want to have contact . . . with [M]other” through an open adoption).

Therefore, we do not find that the uncertainty of an open adoption is

appropriate or relevant in a termination analysis under section 2511(b).

     We note that as an appellate court we cannot re-weigh the evidence or

the credibility assessments made by the trial court. Rather,

     [e]ven where the facts could support an opposite result, as is
     often the case in . . . termination cases, an appellate court must
     resist the urge to second guess the trial court and impose its
     own credibility determinations and judgment; instead it must
     defer to the trial judges so long as the factual findings are
     supported by the record and the trial court's legal conclusions
     are not the result of an error of law or an abuse of discretion.

In the Interest of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

     Here, the trial court appropriately gave primary consideration to the

“developmental, physical and emotional needs and welfare of [G.L.L.],” 23

Pa.C.S. § 2511(b), and concluded that “the testimony was not so clear and

convincing as to persuade the Court to come to a clear conviction in the

matter.”   Trial Court Opinion, 4/8/15, at 9.     The court found that the

negative impact of keeping G.L.L. in foster care was outweighed by the

permanent damage      he   would sustain were      Mother’s parental rights

terminated. Compare In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008)

(termination under section 2511(b) upheld on appeal where parent-child

bond could be severed without detrimental effects on child).      See In re

C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc) (court must

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consider whether natural parental bond exists between child and parent, and

whether termination would destroy existing, necessary and beneficial

relationship).

      Accordingly, we find the trial court did not abuse its discretion in

concluding that termination under section 2511(b) was not in the best

interests of G.L.L., In re A.R., supra, where “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 781, 791 (Pa. Super. 2012).        We,

therefore, affirm the trial court’s order denying CYF’s petition to terminate

Mother’s parental rights.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2015




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