J-S62030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE MATTER OF: THE ADOPTION OF:              IN THE SUPERIOR COURT OF
E.L.-L.S., J.J.S., AND H.J.S.                         PENNSYLVANIA


APPEAL OF: C.A.M., NATURAL MOTHER              No. 755 WDA 2015


               Appeal from the Decree entered April 10, 2015,
           in the Court of Common Pleas of Erie County, Orphans’
               Court, at No(s): 32, 32A & 32B in Adoption 2014

BEFORE: GANTMAN, P.J., JENKINS, and PLATT*, JJ.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 24, 2015

      Appellant, C.A.M., (“Mother”) appeals from the decrees dated April 10,

2015 and amended on April 15, 2015, in the Erie County Court of Common

Pleas Orphans’ Court, terminating Mother’s parental rights to H.J.S. (born in

December of 2007), E.L.-L.S. (born in August of 2010), and J.J.S. (born in

June of 2009 ) (collectively “the Children”).1 We affirm.

      Since October of 2013, Erie County Office of Children and Youth

(“OCY”) has been involved with this family due to Mother’s drug use and

Mother’s domestic violence against Father in front of the Children.       On

October 25, 2013, the trial court issued an emergency protective order

removing the Children from Mother and Father’s care, and placing the

Children in foster care. On October 29, 2013, the trial court held a shelter



* Retired Senior Judge assigned to the Superior Court.
1
   On April 10, 2015, J.S. (“Father”) voluntarily relinquished his parental
rights to the Children, and Father is not a party to this appeal.
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care hearing.    Following the shelter care hearing, Mother and Father

engaged in domestic violence in front of the Children at the courthouse. On

November 13, 2013, the trial court adjudicated the Children dependent.

      On December 18, 2013, following a hearing, the trial court directed

that the Children would remain in foster care, with a goal of reunification

with Mother and Father. The trial court also directed Mother to (1) refrain

from using drugs or alcohol; (2) complete drug and alcohol treatment and

submit to random urine testing; (3) complete parenting classes; (4)

demonstrate the ability to provide for the health, safety, and welfare of the

Children; (5) visit the Children, with all visits contingent on Mother arriving

drug- and alcohol-free; (6) secure employment; (7) secure stable and safe

housing; (8) complete a domestic violence avoidance program; (9) complete

a mental health evaluation; and (10) comply with all further treatment

recommendations.

      On May 12, 2014, following an initial permanency review hearing, the

trial court found Mother minimally compliant with the permanency plan. On

June 4, 2014, following a permanency review hearing, the trial court found

Mother not compliant, having made no progress with the permanency plan.

The trial court ordered the Children’s permanent placement goal changed to

adoption.




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      On July 3, 2014, OCY filed petitions to involuntarily terminate Mother’s

parental rights to the Children.       On April 10, 2015, the trial court held

hearings on the termination petitions. At the hearing, Lisa Hamilton, an OCY

caseworker; Monica Abbate; Shatoia Carroll, an OCY training supervisor;

Nicole Seebach, an OCY coordinator for family dependency; Gaylene Abbott

Fay, an OCY permanency caseworker; A.S., paternal grandmother (“Paternal

Grandmother”); and Mother testified.        On April 10, 2015, the trial court

entered decrees terminating Mother’s parental rights pursuant to 23 Pa.C.S.

§ 2511(a)(1), (2), (5) and (b). On April 15, 2015, the trial court amended

the decrees terminating Mother’s parental rights pursuant to 23 Pa.C.S.

§ 2511(a)(1), (2), (5), (8) and (b).

      On May 11, 2015, Mother 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).2 Mother raises the following issues.

      1. Whether the trial court erred and/or abused its discretion in
         failing to recognize that there was a bond in existence and
         that termination of parental rights would best serve the
         needs and welfare of the Children [?]

      2. Whether the trial court erred and/or abused its discretion in
         failing to find that the [OCY] did not provide evidence that


2
 We observe that it was improper for Mother to file a single notice of appeal
and statement of errors complained on appeal from decrees terminating the
parental rights of Mother. See Pa.R.A.P. 341 (“Where, however, one or
more orders resolves issues arising on more than one docket or relating to
more than one judgment, separate notices of appeal must be filed.”).
Nevertheless, we find her appeal preserved for this Court’s review.
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         [M]other failed to perform parental duties or evidence a
         settled purpose of relinquishing parental claim to the Children
         for a period in excess of six months [?]

      3. Whether the trial court erred and/or abused its discretion in
         finding that the causes of the incapacity, abuse, neglect of []
         Mother cannot or will not be remedied by [Mother?]

Mother’s Brief at 6.

      Our standard of review regarding orders terminating parental rights is

as follows:

      When reviewing an appeal from a decree terminating parental
      rights, we are limited to determining whether the decision of the
      trial court is supported by competent evidence. Absent an
      abuse of discretion, an error of law, or insufficient evidentiary
      support for the trial court’s decision, the decree must stand.
      Where a trial court has granted a petition to involuntarily
      terminate parental rights, this Court must accord the hearing
      judge’s decision the same deference that we would give to a
      jury verdict. We must employ a broad, comprehensive review
      of the record in order to determine whether the trial court’s
      decision is supported by competent evidence.

In re S.H., 879 A.2d 802, 805 (Pa.Super.2005). In termination cases, 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.

Id. at 806.   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 issue.” In re J.L.C. & J.R.C., 837 A.2d 1247, 1251

(Pa.Super.2003).


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     The trial court is free to believe all, part, or none of the evidence

presented and is likewise free to make all credibility determinations and

resolve conflicts in the evidence.     In re M.G., 855 A.2d 68, 73-74

(Pa.Super.2004). If competent evidence supports the trial court’s findings,

we will affirm even if the record could also support the opposite result. In

re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.2003). Additionally,

this Court “need only agree with [the trial court’s] decision as to any one

subsection in order to affirm the termination of parental rights.”    In re

B.L.W., 843 A.2d 380, 384 (Pa.Super.2004) (en banc), appeal denied, 863

A.2d 1141 (Pa.2004).

     In terminating Mother’s parental rights, the trial court relied upon

Sections 2511(a)(1) and (b) of the Adoption Act which provide as follows:

     (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:

           (1) The parent by conduct continuing for a period of
           at least six months immediately preceding the filing
           of the petition either has evidenced a settled purpose
           of relinquishing parental claim to a child or has
           refused or failed to perform parental duties.

                                     ***

     (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.

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence to support the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows:

           To satisfy the requirements of section 2511(a)(1), the
     moving party must produce clear and convincing evidence of
     conduct, sustained for at least the six months prior to the filing
     of the termination petition, which reveals a settled intent to
     relinquish parental claim to a child or a refusal or failure to
     perform parental duties. In addition,

            Section 2511 does not require that the parent
            demonstrate both a settled purpose of relinquishing
            parental claim to a child and refusal or failure to perform
            parental duties.   Accordingly, parental rights may be
            terminated pursuant to [s]ection 2511(a)(1) if the parent
            either demonstrates a settled purpose of relinquishing
            parental claim to a child or fails to perform parental
            duties.

            Once the evidence establishes a failure to perform
            parental duties or a settled purpose of relinquishing
            parental rights, the court must engage in three lines of
            inquiry: (1) the parent’s explanation for his or her
            conduct; (2) the post-abandonment contact between
            parent and child; and (3) consideration of the effect of
            termination of parental rights on the child pursuant to
            [s]ection 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

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     Regarding the definition of “parental duties,” this Court has stated:

     There is no simple or easy definition of parental duties. Parental
     duty is best understood in relation to the needs of a child. A
     child needs love, protection, guidance, and support. These
     needs, physical and emotional, cannot be met by a merely
     passive interest in the development of the child. Thus, this
     Court has held that the parental obligation is a positive duty
     which requires affirmative performance.

     This affirmative duty encompasses more than a financial
     obligation; it requires continuing interest in the child and a
     genuine effort to maintain communication and association with
     the child.

     Because a child needs more than a benefactor, parental duty
     requires that a parent exert himself to take and maintain a place
     of importance in the child’s life.

     Parental duty requires that the parent act affirmatively with good
     faith interest and effort, and not yield to every problem, in order
     to maintain the parent-child relationship to the best of his or her
     ability, even in difficult circumstances. A parent must utilize all
     available resources to preserve the parental relationship, and
     must exercise reasonable firmness in resisting obstacles placed
     in the path of maintaining the parent-child relationship. 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 . . . her physical and emotional
     needs.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super.2004), appeal denied, 872

A.2d 1200 (Pa.2005) (internal citations omitted).

     On appeal, Mother argues that the trial court erred in terminating her

parental rights to the Children. Mother’s Brief at 4.    Mother argues that,

although she did not comply with all court ordered services, she made

continued progress. Mother’s Brief at 13.

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      In terminating Mother’s parental rights pursuant to section 2511(a)(1),

the trial court reviewed the record and the evidence presented, and

concluded that it was clear from the record that, for a period of six months

leading up to the filing of the petition for involuntary termination, Mother

failed to perform any parental duties for the Children. Trial Court Opinion,

6/26/15 (“Trial Court Opinion”), at 8.

      The trial court found

            There is little doubt Mother failed to perform her parental
      duties by any measure imaginable and that failure existed for
      over six months before the [termination] petition was filed by
      [OCY]. [Mother] is a drug addict, refuses to recognize it, and
      does nothing about it, to the detriment of [the C]hildren. By her
      own admission, she used drugs when she had custody of [the
      C]hildren yet thought nothing was wrong with doing so.

            Equally disturbing is her refusal to recognize the traumatic
      impact her toxic relationship with [F]ather has had on [the
      Children] and how their safety continued to be jeopardized
      because of his violent nature. She saw nothing wrong exposing
      [the C]hildren to his dangerous conduct and refused to follow
      through [Protection from Abuse] proceedings when she obviously
      suffered physical injuries at the hands of [F]ather.

             She failed to complete a domestic violence class required
      by the treatment plan, missing several classes, coming close to
      suspension from the program and ultimately failing to complete
      it.   Noteworthy here is one more example of her dishonesty:
      she was told by the program facilitator that paramours of
      participants are not to be present during sessions, yet [F]ather
      was present. When confronted about his presence, she lied,
      maintaining no one was in the room she should not be in session
      with.

Trial Court Opinion at 8-9.


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     Ms. Hamilton testified that Mother did not remain drug free.     N.T.,

4/10/15, 16-17.    Mother tested positive for drugs including marijuana,

hydrocodone, and oxycodone on nine out of 26 drug screen tests. Id. at 16.

Ms. Hamilton testified Mother had a mental health assessment at Erie

County Care Management, and that Mother reported to her that she was

attending Stairways Behavioral Health’s dual diagnosis program (“Stairways

Program”).    Id. at 18-19.    However, Stairways Program reported that

Mother was not receiving services from them.     Id. at 19.   Ms. Hamilton

testified that Mother did not follow through with the services for drug and

alcohol treatment, Mother did not complete the domestic violence program,

and Mother did not prove that she maintained employment and stable

housing. Id. at 20, 22, 23. Ms. Hamilton testified that Mother did complete

a parenting skills program. Id. at 21.

     The testimony established prior reunification between the Children and

Mother was unsuccessful due to her lack of compliance with court-ordered

goals, her continued drug use, and her lack of cooperation with OCY. The

trial court found that Mother failed to fulfill her parental duties and

responsibilities for two years. Mother explained her conduct by blaming her

drug use and on Father’s bad influence on her.     N.T., 4/10/15, at 175.

Moreover, Mother stated that she had a parent-child bond with the Children,

but no evidence established Mother took the necessary steps to establish a


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parent-child bond or utilize available resources to preserve the parental

relationship.   Id. at 171.   Therefore, the trial court properly terminated

Mother’s parental rights pursuant to section 2511(a)(1). We will not disturb

the trial court’s determinations. In re M.G., 855 A.2d 68, 73-74.

      The trial court must also consider how terminating Mother’s parental

rights would affect the needs and welfare of Children pursuant to 23 Pa.C.S.

§ 2511(b).      Pursuant to section 2511(b), the trial court’s inquiry is

specifically directed to a consideration of whether termination of parental

rights would best serve the developmental, physical, and emotional needs of

the child.   See In Re C.M.S., 884 A.2d 1284, 1286-87 (Pa.Super.2005),

appeal denied, 897 A.2d 1183 (Pa.2006).           “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).    We have instructed

that the trial 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. See id.

      Here, the trial court found the termination of Mother’s parental rights

would serve the Children’s developmental, physical, and emotional needs

and welfare. Trial Court Opinion at 8-9. The trial court found that Mother’s

missed visits were traumatic for the Children. Id. at 11.




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      Mrs. Abbott-Fay explained that the Children needed trauma focus

therapy as the result of verbal and physical domestic violence at Mother and

Father’s home.     N.T., 4/10/15, at 114.       She testified that terminating

Mother’s parental rights would not detrimentally affect the Children because

the Children have made significant gains in their foster home, and they need

permanency and stability. Id. at 123. Mrs. Abbot-Fay further testified that

the Children do not miss their Mother, and “were very tense and very

resistive to connect to [Mother].” N.T., 4/10/15, at 116-117, 126. She also

stated that the Children are thriving in their foster home, and “need to move

forward.” Id. at 123. Ms. Abbott-Fay testified Mother loves the Children,

but the “bond that [Mother and the Children] have does not demonstrate a

healthy bond.”     Id. at 122.   While Mother professes that she loves the

Children, this Court has held that a parent’s love of her child, alone, does

not preclude a termination.       See In re L.M., 923 A.2d 505, 512

(Pa.Super.2007);    see   also   In    re   K.K.R.-S.,   958   A.2d   529,   535

(Pa.Super.2008) (noting 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).

      Ms. Hamilton testified that Mother had an attachment to the Children,

but that Mother’s negatives, including her continued drug use and missed

visits with the Children, outweighed the benefit of Mother’s attachment to


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the Children. N.T., 4/10/15, at 33. She further testified that the Children

need permanency, and that Mother was not compliant with the trial court or

Mother’s treatment plan. Id. at 33. Ms. Hamilton testified that it was in the

Children’s best interest for Mother’s parental rights to be terminated, and

that the Children’s foster parents are meeting the Children’s needs. Id. at

34.

      The trial court found that Mother and the Children have an unhealthy

bond. Trial Court Opinion at 12. The trial court stated that, “whatever bond

may have existed between the [C]hildren and [M]other was seriously eroded

by her conduct, soon deteriorating to the point where it became unhealthy, if

not non-existent.” Id.

      After this Court’s careful review of the record, we find that the

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

that there was no bond between Mother and the Children which, if severed,

would be detrimental to the Children, and that the termination of Mother’s

parental rights would best serve the needs and welfare of the Children.

Thus, we will not disturb the trial court’s determinations. See In re M.G.,

855 A.2d at 73-74.    We affirm the decrees terminating Mother’s parental

rights on the basis of section 2511(a)(1) and (b).

      Decrees affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2015




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