J-S39030-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: E.A.B., THE NATURAL
MOTHER

                                                            No. 246 WDA 2017


                    Appeal from the Decree January 17, 2017
                In the Court of Common Pleas of Fayette County
                    Orphans' Court at No(s): 51 ADOPT 2015


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                                   FILED AUGUST 7, 2017

       E.A.B.   (“Mother”)     appeals     from   the   January   17,   2017   decree

involuntarily terminating her parental rights to her now five-year-old son,

A.C. III. We affirm.

       A.C. III was born during March 2012 of Mother’s marriage to A.C., Jr.

(“Father”).1 He has two older siblings that were the subject of various child

service agencies’ involvement with the family.            The siblings also were the

____________________________________________


1
  The status of Father’s parental rights to A.C. III are not clear from           the
certified record. While Father did not attend the termination hearing,            his
counsel appeared and relayed Father’s desire to voluntarily relinquish             his
parental rights. However, the record does not disclose the status of              the
relinquishment proceedings.



* Retired Senior Judge assigned to the Superior Court.
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victims of sexual abuse, which led to Mother pleading guilty to two counts of

endangering the welfare of children. On March 10, 2014, the Fayette County

Court of Common Pleas Criminal Division imposed twenty-three months

intermediate punishment, with three months house arrest. As a condition of

her sentence, Mother was required to participate in sexual offender

evaluation and treatment.

      At birth, A.C. III tested positive for opiates, and Mother, a recovering

heroin addict, tested positive for methadone.      The result of Father’s drug

test was positive for marijuana. The juvenile court temporarily placed A.C.

III into emergency custody, but the child was returned to the family after

Mother and Father submitted negative drug tests.

      At some point subsequent to A.C. III’s birth, Mother and Father

separated. During April 2014, Mother left A.C. III in Father’s extended care;

however, Father was unable to care for his son, and Fayette County Child

and Youth Services (“CYS”) intervened.         Then-two-year-old A.C. III was

filthy, lacked adequate clothing, and suffered from severe tooth decay.

Mother could not be located. Father executed a consent to placement, and

on May 15, 2014, the trial court adjudicated A.C. III dependent, and placed

A.C. III with O.N. and C.N. (collectively “Foster Parents”), whom he refers to

as “mom” and “dad,” in what is now his pre-adoptive foster home.

      A.C. III’s   initial   permanency goal    was reunification.   Mother’s

compliance with CYS’s reunification efforts was inconsistent. She attended

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seventeen of forty mental health counseling sessions scheduled with Psych-

Med Associates in New Castle, Pennsylvania. Only two of Mother’s twenty-

three absences were excused cancellations.         Moreover, Mother did not

advise her counselors about the court-ordered focus of her treatment.

Instead, she requested medical management and therapy for a previously

diagnosed bipolar disorder. Mother eventually abandoned treatment and has

not made contact with her counselors since March 11, 2016.

      As it relates to visitation with A.C. III, Mother neglected to have any

physical contact with her son between April 2014 and January 2015. When

she finally did attempt to initiate contact, the supervised visitations were

inconsistent. Between January and August 2015, Mother attended fourteen

of the thirty weekly visitations.    Furthermore, she was resistant to CYS’s

parenting recommendations and after several visitations that were stressful

for A.C. III, the agency transferred supervision to CPP Behavior Health, the

facility that was administering A.C. III’s behavioral therapy.           Again,

however, Mother disregarded the supervisors’ suggestions.          Specifically,

Mother ignored the child therapist’s explicit recommendation to forego

bringing A.C. III unhealthy snacks, referring to herself as “mommy,” or

initiating physical contact.   Mother defied all three imperatives on the first

visitation scheduled at the new facility.

      Moreover, the supervised visitations continued to be a source of stress

for A.C. III. He referred to Mother as “this lady I see” and had previously

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articulated his concern that “She [is] going to take me away from mommy

and daddy and make me sleep in bunk beds at her house[.]” N.T., 2/22/16,

at 4.       In addition, the therapist observed that following his sustained

interactions with Mother, A.C. III’s typically calm demeanor would become

aggressive “almost to the point of defiant.” Id. at 10.

        Mother’s last visitation with her son occurred on December 30, 2015.

On January 8, 2016, she called to cancel visits scheduled for the ensuing two

weeks, purportedly due to her preparations for a surgical procedure on

January 25, 2016. Following surgery, Mother failed to attend the next three

scheduled      visitations,   and   then   on    February   18,   2016,   she   called

unexpectedly and requested to visit with A.C. III immediately. That request

was denied.

        Meanwhile, on November 23, 2015, CYS filed a petition to terminate

Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and

(8) and (b). The orphans’ court appointed counsel to represent Mother and

A.C. III, respectively, and on January 17, 2017, it granted CYS’s termination

petition.     On the same date, the orphan’s court entered an opinion

delineating the reason for its decision. This timely appeal followed, wherein

Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement

of errors complained of on appeal concomitant with her notice of appeal.

        The Rule 1925(b) statement raised one broad issue, which Mother

reiterates on appeal as follows:

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            Did the Trial Court err by abusing its discretion in
      terminating the natural parent's rights as petitioner failed to
      sustain its burden of proof by clear and convincing evidence to
      show that the parent evidenced a settled purpose of
      relinquishing a settled claim to the child or refused to perform
      parental duties?

Mother’s brief at 6.

      This Court reviews the determination of the orphans’ court for an

abuse of discretion.      In re D.C.D. 105 A.3d 662, 670-671 (Pa. 2014)

(“When reviewing a trial court's decision to grant or deny a termination of

parental rights petition, an appellate court should apply an abuse of

discretion    standard,   accepting   the   findings   of   fact   and   credibility

determinations if they are supported by the record, and reversing only if the

trial court made an error of law or abused its discretion.”). This is a highly

deferential standard and, to the extent that the record supports the court’s

decision, we must affirm even though evidence exists that would also

support a contrary determination. In re A.S., 11 A.3d 473, 477 (Pa.Super.

2010). CYS has the burden of proving the statutory grounds for termination

by clear and convincing evidence. In re Adoption of L.J.B., 18 A.3d 1098

(Pa. 2011).

      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 the Interest of T.M.T., 64 A.3d

1119, 1124 (Pa.Super. 2013). As noted, CYS invoked the statutory grounds



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to terminate Mother’s parental rights pursuant to § 2511(a)(1), (2), (5), (8)

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:

        (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.

        (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 or under a voluntary agreement with an agency
        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.

           ....

        (8) The child has been removed from the care of the parent
        by the court or under a voluntary agreement with an
        agency, 12 months or more have elapsed from the date of
        removal or placement, the conditions which led to the
        removal or placement of the child continue to exist and



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        termination of 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
      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)(1), (2), (5), (8) and (b).

      Instantly, the orphans’ court decree did not specifically identify which

statutory basis it relied upon to terminate Mother’s parental rights.

However, the court’s concomitant opinion analyzed CYS’s overwhelming

evidence in favor of termination in light of subsection (a)(1) and (b). Hence,

we review the court’s determination in view of the grounds outlined in that

provision.

      With respect to § 2511(a)(1), this Court has explained,

            A court may terminate parental rights under Section
      2511(a)(1) where the parent demonstrates a settled purpose to
      relinquish parental claim to a child or fails to perform parental
      duties for at least the six months prior to the filing of the
      termination petition.    The court should consider the entire
      background of the case[.]

In re A.S., supra at 482 (citations omitted). While the statute targets the

six months immediately preceding the filing of the petition to terminate, the

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trial court must consider the entire history of the case and not apply the six-

month statutory period mechanically.          In re K.Z.S., 946 A.2d 753, 758

(Pa.Super. 2008).

      Accordingly, in order to prevail, CYS was required to produce clear and

convincing evidence of Mother’s conduct that fulfills either one of the two

requirements outlined in § 2511(a)(1).        In re D.J.S., 737 A.2d 283, 285

(Pa.Super. 1999) (“parental rights may be terminated pursuant to Section

2511(a)(1) if   the   parent   either   demonstrates   a   settled   purpose   of

relinquishing parental claim to a child or fails to perform parental duties.”)

Our Supreme Court has noted that parental duty under § 2511(a)(1)

includes “an affirmative duty to love, protect and support” the child and “to

make an effort to maintain communication with that child.” In re Adoption

of S.P., 47 A.3d 817, 828 (Pa. 2012). When the parent’s fulfillment of those

duties is made more difficult by impediments, “we must inquire whether the

parent has utilized those resources at his or her command . . . in continuing

a close relationship with the child.” Id.

      Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the court must then engage

in three additional 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




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pursuant to Section 2511(b). In re Z.S.W., 946 A.2d 726, 730 (Pa.Super.

2008).

      Mother’s argument assails the orphans’ court’s determination that she

failed to perform her parental duties and its implicit finding that she

neglected to exercise reasonable efforts to overcome the impediments that

she believes that Foster Parents and A.C. III’s therapist placed in her way

during the supervised visitations. Specifically, she asserts, “The Trial Court

Transcript reflects that the Appellant[’s] . . . efforts to both see and parent

her child were frustrated by both the foster family, and CPP Behavioral

Health. (N.T., February 22nd, 2016, at 19 through 21).” Mother’s brief at

11.   Mother does not challenge the orphans’ court’s needs and welfare

analysis or its determination that no parent-child bond exists between

Mother and A.C. III.

      After a thorough review of the certified record, the parties’ briefs, and

the pertinent law, and following our examination of the opinion authored by

the distinguished Nancy D. Vernon, we find that she has ably distilled CYS’s

evidence in favor of terminating Mother’s parental rights pursuant to

2511(a) and (b), addressed the relevant issues, and performed the

necessary needs-and-welfare analysis. We adopt her reasoning as our own.

Accordingly, we affirm on the basis of her well-reasoned opinion dated

January 17, 2017.

      Decree affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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