J-S39013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

APPEAL OF: R.W.
                                                     No. 1786 WDA 2013


                   Appeal from the Order September 20, 2013
              In the Court of Common Pleas of Washington County
                      Orphans' Court at No(s): 63-12-354


BEFORE: BENDER, P.J.E., WECHT, J. and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 04, 2014



2013, that granted the petition filed by the Washington County Children and



rights to her minor

pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23

Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).1 We affirm.

       On February 6, 2011, CYS first became involved with this family after



left clavicle fracture, multiple acute rib fractures on her left side, multiple

healing rib fractures on her right side, transverse fracture of her right femur,
____________________________________________


1

form, voluntarily relinquishing his parental rights to Child. Father does not
challenge the termination of his parental rights to Child, nor is he a party to
this appeal.




*Retired Senior Judge assigned to the Superior Court.
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multipl

fractures of the left metatarsal foot, and failure to thrive.     Mother has a

history of mental health issues, and has been involved in mental health

treatment since she was an adolescent. Mother had been a dependent child



includes self-cutting, suicidal ideation and a history of hearing voices.


      On February 6, 2011, as a result of the referral, CYS entered into a

Voluntary Placement Agreement with Mother and Father that Child was

removed from the care of Mother and Father on February 11, 2011. Child

was placed into CYS shelter care due to the serious injuries she had suffered

after being assaulted by Father, and

to the serious injuries inflicted on the child, both Father and Mother were

charged with criminal offenses.


      On March 7, 2011, an Emergency Shelter Care order was entered

                                                re. On March 22, 2011, at the

time for the scheduled hearing before the Juvenile Hearing Master, Mother

and Father entered into an agreement that Child would continue in CYS

foster shelter care until further order of court. Since then, Child has been in

placement. On April 12, 2011, Child was adjudicated as a dependent child.




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        As a result of the injuries inflicted to Child, Father was charged with

Aggravated Assault, Endangering the Welfare of a Child, and Recklessly

Endangering Another Person, to which he pled guilty on December 9, 2011.2



the Welfare of a Child, to which she entered a plea of guilty on February 13,

2012.    Mother was sentenced to twenty-three months in the Intermediate

Punishment program.



rights. On August 22, 2012, a hearing was held on that petition. The trial

court found that CYS did not establish by clear and convincing evidence for

the t

        On February 4, 2013, the agency re-filed a petition for involuntary



and September 3, 2013, hearings were held on that petition. At the hearing,

CYS presented the testimony of Heather Miller, a parent educator for the

Blair Foundation; Neil Rosenblum, Ph.D., a licensed psychiatrist; Lindsey

Syster, a family resource specialist for Justice Works Youth Care; Puja

Shroff, a therapist; Foster Mother; David Cincinnati, a CYS caseworker;


____________________________________________


2
  In exchange for his plea, Father received a sentence of twenty-
to forty-                                                                -four
                                                            dings, Father was
incarcerated in a State correctional institution.



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rights to Child pursuant to section 2511(a)(2), (5), (8), and (b) of the

Adoption Act.

       On November 4, 2013, Mother filed a notice of appeal, along with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2) and (b).3       In her brief on appeal, Mother raises two issues, as

follows.

       1. Did the trial court err in finding that competent evidence
          established the statutory grounds for termination of

            2511(a)(2), (5) and (8)?

       2.

            parental rights pursuant to 23 Pa.C.S.A. § 2511(b)?



       We review an appeal from the termination of parental rights with the

following standard.

              [A]ppellate courts must apply an abuse of discretion

       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.,
____________________________________________


3

withdraw as counsel, and granted Mother fourteen days to appeal. On
January 31, 2014, this Court granted Mothe
to file her brief, and ordered the record to be remanded to the trial court to
insure that the record is complete.




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     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.,
     [613 Pa. 371, 455,] 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., [608 Pa. at
     28-30], 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

     error of law or an abuse of discretion. In re Adoption of
     Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).

     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



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     enable the trier of fact to come to a clear conviction, without


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



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). Here, we will focus on section 2511(a)(2).

     Section 2511 provides, in relevant part, as follows:

     § 2511. Grounds for involuntary termination

                       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.

           ***

                                      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.


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23 Pa.C.S. § 2511.


      We have stated:

             In order to terminate parental rights pursuant to 23
      Pa.C.S.A. § 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)

(citations omitted).

      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
      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


            This 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., 616 Pa. at 326-327, 47 A.3d at 827.



inquiry with regard to subsection 2511(a)(2).

           As set forth above, Mother was discharged unsuccessfully

     inability to demonstrate the application of parenting skills.
     Mother was unable to apply the skills that she presumably
     learned, and she had to be prompted to have interaction with
     [C]hild.   Although Mother did successfully complete Justice
     Works Youth Care "Nurturing Parenting Program" in May of
     2013, the family resource specialist representing that provider

     closure of the program. The family resource specialist further
     testified that there were conc
     on her own: that Mother was not able to apply the lessons that
     she had completed and that Mother did not demonstrate
     independent parenting. In the two years since [Child] was
                                                  s to demonstrate
     her incapacity as a parent.

           Mother has certainly had a reasonable time to remedy the

     no evidence that Mother could remedy those conditions if given
     additional time.

           Furthermore, it was apparent from the testimony that
     Mother continues to demonstrate poor decision making. At the
     time of the hearing, Mother was cohabitating with a gentlemen
     who was thirty years her senior, whom she had met three
     months before he moved in with her. Mother was also sharing
     her home with another couple whose children are in foster care
     with [CYS]. The father of those children is a registered sex
     offender, for conviction of a sex offense involving a minor.
     Although Mother claimed that the registered sex offender did not
     stay at her home every day, she admitted that he sleeps there,

     residence.


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          Mother further acknowledged during her testimony that
     she continues to be unable to accept the nature and cause of

     [C]hild suffered the fractures to her rib cage at birth, that she
     "shot out and the nurse caught her." Mother also stated that
     she had "learned how to be stern with [CYS] when asked if she
     had the ability to keep [C]hild safe and protect her from harm,


Trial Court Opinion, 12/27/13, at 11-12.    The trial court found clear and

convincing evidence in the record that the repeated and continued

incapacity, abuse, neglect or refusal of the Mother had caused Child to be

without essential parental care, control or subsistence necessary for her

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

Mother. Id. at 12.

     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. 79

cooperate, after a long period of uncooperativeness regarding the necessity

or availability of services, may properly be rejected as untimely or

disingenuous.   Id.                                           ther does not

have the ability to protect [C]hild and maintain a safe environment for




evidence also demonstrated                    continued incapacity, abuse,




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neglect or refusal to parent could not or would not be remedied, despite



                                                                           y seeks for

this Court to make credibility and weight determinations different from those



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.

that [a parent] will summon the ability to handle the responsibilities of

              Id.

custody and rearing of his child is converted, upon the failure to fulfill his or



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

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

      After our careful review of the record in this matter, we find that the



competent evidence in the record. In re Adoption of S.P., 616 Pa. at 325-

326, 47 A.3d at 826-827.

determinations regarding section 2511(a)(2) are supported by sufficient,

competent evidence in the record.

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

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


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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.

      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

      developmental, physical and emotional needs and welfare of the

      of   the   child   have   been   properly   interpreted   to
                                                           include
                                                                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

      consideration of the emotional bonds between the parent and

      effect on the child of permanently severing the parental bond.
      In re K.M., 53 A.3d at 791.

See also In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      Mother argues that she has some bond with Child and that Mother was

willing to do anything necessary for return of Child. See

20.

      The trial court found as follows:

                                                               abuse of
      discretion for the Trial Court to find that termination would best
      serve the needs and welfare of the child, the Court submits that
      the record overwhelmingly supported this conclusion. [Child]
      suffered horrific injuries at the hands of her Father and Mother.
      Mother failed to recognize the hazardous environment her child
      was in, failed to protect [C]hild, and continues to have difficulty


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      does not have the present ability to parent independently or to
      provide a safe home for [C]hild. Mother has difficulty making
      decisions and makes inappropriate decisions which place herself
      and [C]hild in danger.     At the time of the termination
      proceedings, Mother had allowed a registered sex offender to
      reside in her home.

Trial Court Opinion, 12/27/13, at 12-13.

      Further, the trial court found that there is no bond between Child and

Mother. Id. at 9.

            [C]hild displays anxiety in response to her visits with
      Mother, and as a result suffers from hives after the visits.
      Mother never established a primary attachment with [C]hild.
      [C]hild clearly demonstrates a lack of emotional attachment with
      Mother. Mother does not display affection with the child. Mother
      has no bond or meaningful relationship with the [C]hild but,
      rather, only a peripheral relationship with [C]hild. There was no
      evidence of any significant relationship between Mother and
      [C]hild and no evidence presented of any adverse consequences
      should this relationship be terminated. On the contrary, the
      testimony unequivocally demonstrated that the termination of

      detrimental to [C]hild.

Trial Court Opinion, 12/27/13, at 13. This Court has observed that no bond

worth preserving is formed between a child and a natural parent where the



bond with the natural parent is attenuated.        In re K.Z.S., 946 A.2d 753,

764 (Pa. Super. 2008).

      Additionally,   as   part   of   its   bonding   analysis,   the   trial   court

                                                                         See In re:

T.S.M., ___ Pa. at ___, 71 A.3d at 267-268 (stating that existence of a bond

attachment of a child to a parent will not necessarily result in the denial of a

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termination petition, and the court must consider whether the child has a

bond with the foster parents).   The trial court found, as follows:


     [C]hild has a strong primary attachment with her foster mother,
                         -
     relationship with her foster mother, with whom she is thriving,

     degree of emotional trauma which [Child] would experience if
     removed from her current placement would be considerable and

     would be considerably undermined if further reunification efforts
     were pursued.

Trial Court Opinion, 12/27/13, at 13-14.

     As there is competent evidence in the record that supports the trial



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

court did not abuse its discretion as to section 2511(b).             See In re

Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27. Accordingly, we



     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2014




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