J-S13002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF E.I.M., A MINOR                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: A.L.H., MOTHER
                                                      No. 3071 EDA 2016


               Appeal from the Decree Entered September 6, 2016
              In the Court of Common Pleas of Montgomery County
                      Orphans' Court at No(s): 2016-A052


IN RE: ADOPTION OF N.J.M., A MINOR                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: A.L.H., MOTHER
                                                      No. 3072 EDA 2016


               Appeal from the Decree Entered September 6, 2016
              In the Court of Common Pleas of Montgomery County
                      Orphans' Court at No(s): 2016-A053


IN RE: ADOPTION OF L.C.M., A MINOR                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: A.L.H., MOTHER
                                                      No. 3073 EDA 2016


               Appeal from the Decree Entered September 6, 2016
              In the Court of Common Pleas of Montgomery County
                      Orphans' Court at No(s): 2016-A054


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 28, 2017

        A.L.H. (“Mother”) appeals from the decrees entered September 6,

2016, that granted the petitions filed by the Montgomery County Office of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Children and Youth (“OCY”) to involuntarily terminate her parental rights to

her minor children, L.C.M. (born in October of 2013), E.I.M. (born in January

of 2012), and N.J.M. (born in August of 2010), (collectively “Children”),

pursuant to sections 2511(a)(1), (2), (8), and (b) of the Adoption Act, 23
                            1, 2
Pa.C.S. §§ 2101-2938.              After careful review of the record and applicable

law, we affirm.

       At the conclusion of the termination hearing on September 1, 2016,

the orphans’ court set forth the following findings of fact:

             This family became known to [OCY] after absconding from
       Bucks County Office of Children & Youth supervision related to
       the abuse of daughter, L.[C.]M.

              [Mother] and her three [C]hildren lived with her paramour
       in Montgomery County when son[,] [E.I.M.,] endured traumatic
       injuries that required his hospitalization for approximately three
       months. During the criminal investigation that resulted from this
       incident, [Mother] was uncooperative, ultimately pleading guilty
       to criminal charges of endangering the welfare of [C]hildren, and
       lying to authorities or unsworn falsification, as well as serving
       approximately one year in custody at the Montgomery County
       Correctional Facility.

             [OCY] involvement started upon the hospitalization of the
       son[,] E[.I.]M. The relationship between birth parents and OCY
       is characterized as evasive by [Father] and combative by
       [Mother].
____________________________________________


1
  The orphans’ court issued the decrees on September 1, 2016 at case
numbers 3071, 3072, and 3073 EDA 2016; however, the decrees were not
entered on the docket until September 6, 2016.
2
   The parental rights of the Children’s father, J.C.M. (“Father”), were
terminated by separate decrees entered on the same date. Father has filed
separate appeals. See Docket Nos. 3142, 3144, and 3147 EDA 2016.



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                                         …
               During much of this time period at issue here[,] [Mother]
       has been incarcerated. It is extremely difficult for this [c]ourt to
       consider [Mother] as a credible witness, especially regarding her
       statement that she wants the best for her [C]hildren.             In
       addition to the crimen falsi of her conviction for unsworn
       falsification, [M]other’s attitude through her testimony that only
       she knows what is best for her [C]hildren illustrates that she
       lacks the maturity and the will to see the bigger picture. We are
       here today as a result of her actions regarding her [C]hildren
       thus far.

N.T. Hearing, 9/1/16, at 167-169.

       On February 23, 2016, OCY filed petitions for the involuntary

termination of Mother’s parental rights regarding each of her three Children.

After hearing testimony from OCY and Mother at the termination hearing on

September 1, 2016, the orphans’ court issued final decrees, terminating

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (8), and

(b).

       On September 16, 2016, Mother filed timely notices of appeal in each

of the three underlying matters,3 along with timely Pa.R.A.P. 1925(b)

concise statements of errors complained of on appeal. In her brief, Mother

presents the following issue for our review:          “Whether the trial court

committed an error of law and/or abuse of discretion when it held that [OCY]

had proven by ‘clear and convincing evidence’ that [Mother’s] parental rights

____________________________________________


3
  The appeals at 3071, 3072 and 3073 EDA 2016 were consolidated sua
sponte by per curiam order of this Court, as all of these matters involve
related parties and issues. Order, 10/24/16.



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should be terminated pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (8)?”

Mother’s Brief at 4.

      We review an appeal from the termination of parental rights under 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.,
      608 Pa. 9, 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. Id.; R.I.S.,
      36 A.3d [567,] 572 [(Pa. 2011) (plurality opinion)]. As has been
      often stated, an abuse of discretion does not result merely
      because the reviewing court might have reached a different
      conclusion. Id.; see also Samuel Bassett v. Kia Motors
      America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
      Christianson v. Ely, 575 Pa. 647, [654-655,] 838 A.2d 630,
      634 (Pa. 2003). Instead, a decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. Id.

            As we discussed in R.J.T., there are clear reasons for
      applying an abuse of discretion standard of review in these
      cases. We 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 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 we 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
      Atencio, 539 Pa. 161, [165,] 650 A.2d 1064, 1066 (Pa. 1994).


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

      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. In re S.H., 879 A.2d 802, 806 (Pa.

Super. 2005). We have previously stated:

      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., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation

marks omitted).

      Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis.

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

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511;

other citations omitted).




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      This Court must agree with only one subsection of 2511(a), in addition

to section 2511(b), in order to affirm the termination of parental rights. See

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

review the decree pursuant to section 2511(a)(2) and (b), 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:
                                    …

           (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. § 2511(a)(2) and (b).

      We first address whether the trial court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(a)(2).

      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)

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      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) (citation

omitted).   “The grounds for termination 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) (citations omitted).

      Instantly, OCY asserted that Mother suffers from an incapacity to

parent her Children, due to her failure to acknowledge the unexplained

injuries suffered by two of her children and the fact that she lacks stability

and has failed to maintain a significant parental relationship with the

Children that would meet their emotional needs.       See OCY’s Brief at 20.

OCY further argues:

      Mother has a criminal conviction of endangering the welfare of a
      child related to the incident that brought E.I.M. and his siblings
      to OCY’s attention in January of 2015. She has failed to discuss
      her role in this incident and she has failed to understand E.I.M.’s
      extensive injuries and resulting special needs. Mother’s history
      of involvement with OCY in two counties for unexplained injuries
      to her very young children, and her failure to acknowledge her
      role in these injuries, renders her incapable of safely caring for
      the [Children] and resuming full-time care of them.

Id. (citations to the record omitted).




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      Moreover, our Supreme Court addressed, in S.P., the relevance of

incarceration in termination decisions under section 2511(a)(2).    The S.P.

Court held that:

      Incarceration is a factor, and indeed can be a determinative
      factor, in a court’s conclusion that grounds for termination exist
      under § 2511(a)(2) where the repeated and continued incapacity
      of a parent due to incarceration has caused the child to be
      without essential parental care, control or subsistence and that
      the causes of the incapacity cannot or will not be remedied.

S.P., 47 A.3d at 828.

      Here, the orphans’ court found Mother’s incarceration a relevant

factor, as she was in custody during much of the time frame at issue. The

court went on to elaborate that:

      As the [S.P.] Court definitively ruled …, [the lower court] may
      consider the effect of a parent’s incarceration in addressing the
      evidence offered to support a petition to terminate parental
      rights. This [c]ourt must also consider whether even when not
      incarcerated the parents have provided or have failed to provide
      the children with essential parental care, control or subsistence
      necessary for their physical or mental well-being. Parents are
      required to make diligent efforts towards the reasonably prompt
      assumption of full parental responsibilities…. 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, thus, a trial court may properly refuse
      to consider a parent’s indication that he or she wishes an
      opportunity to improve their parenting in the future.

N.T. Hearing at 171 (citations omitted).

      Here, Mother avers that she was not offered visitation with her

Children while incarcerated, but that she did complete a parenting class.

Mother further states that E.I.M. was harmed by a negligent act of not



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taking him for care sooner and promises “that would never happen again.”

Mother’s Brief at 8. However, the orphans’ court rejected Mother’s promise

and stated: “Based on [Mother’s] lack of credibility, her combativeness with

efforts from the staff of OCY, and the failure to comply with many of their

Family Service Plan requirements leads this [c]ourt to that rejection.” N.T.

Hearing at 172. Moreover, the court noted that, “completing the parenting

course while in custody is admirable, but [the court] didn’t hear from [her]

testimony on the stand a willingness to do more.” Id. Mother’s perceived

lack of interest in pursuing parenting courses led the court to seriously

question Mother’s assertion that she wants what is best for her Children. Id.

     As OCY points out in its brief, Mother’s incarceration was not the sole,

nor greatest, factor in the court’s determination to terminate Mother’s

parental rights under section 2511(a)(2).    Contrary to Mother’s assertion

that she was “doing well before incarceration and after,” see Mother’s Brief

at 6, OCY argues that Mother’s incapacity was apparent both pre-

incarceration and post-incarceration.     In support of its argument, OCY

provides:

     Mother has [] suffered from chronic housing instability that
     prevents her from providing the Children with the structure and
     stability that they need. Mother’s inability to maintain stable
     housing arose even before she was incarcerated. Since her
     release, Mother has not obtained appropriate housing to which
     the Children could return. At the time of [the] termination of
     parental rights hearing, Mother could not provide her address to
     OCY or the [c]ourt, and she had no firm plan of where she would
     live with the Children. Her future was still unknown. Mother’s
     chronic inability to maintain stable housing renders her incapable


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      of caring for [her Children]. Mother also had no income or form
      of stable employment to assist her in caring for the Children.

      Mother has not demonstrated an ability to meet the emotional
      needs of the Children, as she has failed to maintain a significant
      relationship or demonstrated the ability to meet their needs
      during supervised visitation. Even when they did have contact
      over one year ago, the Children were never sad or disappointed
      when it was time to say good-bye to her. The quality of the
      visits themselves were poor, as Mother lacked the ability to
      properly care for three children, was consistently on her phone,
      and was unable to set age appropriate limits, and had
      inappropriate interactions with the Children. Mother has thus
      demonstrated an incapacity to meet the Children’s emotional
      needs, by essentially disappearing from their lives and not
      providing them the attention, love and care they require from a
      parent.

OCY’s Brief at 20-21.

      Based on the foregoing, the orphans’ court held that OCY met its

burden under section 2511(a)(2) by clear and convincing evidence.          N.T.

Hearing at 175.      After careful review, we conclude that the court’s

determinations are well supported by the record.

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

satisfied, we proceed to reviewing whether the requirements of subsection

(b) are met.   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.

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently stated as follows:




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      [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 “intangibles 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.
      1992)], 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).

      Mother avers that she maintained contact with her children up until

her visitations were cut off at the time of incarceration and argues that she

is bonded with her children. See Mother’s Brief at 9. However, in support of

its conclusion that termination of Mother’s parental rights is in the best

interests of the Children, the orphans’ court expressly stated:

      [T]he testimony clearly established that although there is
      affection and each parent cares for the [C]hildren, the birth
      parents have not maintained sufficient and consistent contact
      and there is minimal parental bond between the [C]hildren and
      either birth parent.

      I find that the parental bond between [Mother] and the two sons
      exists, however, this [c]ourt finds that the two sons would suffer
      no detrimental harm by terminating the parental rights. I find
      that there is no bond between [Mother] and [L.C.M].

N.T. Hearing at 177-178.

      “Courts considering termination must also consider whether the

children are in a pre-adoptive home and whether they have a bond with




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their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013). In this

case, OCY reports,

      all three Children are placed in pre-adoptive homes where all of
      their needs are met. N.J.M. and L.C.M. know their foster parents
      as [their] mom and dad and she [sic] calls them “mommy” and
      “daddy,” they both interact with the siblings in the foster home
      as if they are their biological siblings. E.I.M.’s foster parent is
      able to provide for his long-term needs, given his extensive
      special needs.

OCY’s Brief at 28.

      Based on the testimony and evidence produced at the termination

hearing, the orphans’ court concluded:

      [T]hese birth parents have not provided a home, have not met
      their children’s needs, and have not maintained a consistent and
      strong parent-child relationship. The parent[s’] desire, namely
      [Mother’s] desire, to start over at this time is insufficient to meet
      the [C]hildren’s needs for a consistent and reliable love, affection
      and responsibility. I conclude that the emotional needs and
      welfare of the [C]hildren can best be met by terminating the
      parental rights of both birth parents and that the [C]hildren will
      not suffer a detriment as a result of termination of the parental
      rights of birth parents.

      Therefore, I find from the evidence and testimony that
      termination of … [Mother’s] rights best serves the needs and
      welfare of each of the [C]hildren, and termination of the parental
      rights of [Mother] … will not irreparably harm any of the
      [C]hildren.

N.T. Hearing at 178.

      As there is competent evidence in the record that supports the

orphans’ court credibility and weight assessments regarding the Children’s

needs and welfare, and the absence of any bond with Mother, we conclude

that the court did not abuse its discretion as to section 2511(b). See S.P.,


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47 A.3d at 826-27. Accordingly, we affirm the order terminating Mother’s

parental rights to the Children.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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