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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: M.M.P., A MINOR                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: R.A.                                No. 1805 WDA 2014


              Appeal from the Order entered October 2, 2014,
       in the Court of Common Pleas of Allegheny County, Orphans’
                     Court, at No(s): TPR 130 of 2013


IN RE: M.P., A MINOR                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: S.P.                                No. 1806 WDA 2014


              Appeal from the Order entered October 2, 2014,
            in the Court of Common Pleas of Allegheny County,
                  Family Court, at No(s): TPR-13-000130

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED MAY 14, 2015

      R.A. (“Father”), and S.P. (“Mother”) appeal from the orders entered in

the Allegheny County Court of Common Pleas terminating their parental

rights to their child, M.M.P., a/k/a M.P., (“Child”)1 (born in December of

2008), pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption




* Former Justice specially assigned to the Superior Court.
1
 We note that in a separate order the trial court involuntarily terminated the
parental rights of the unknown father of Child. Order, 10/2/14. The
unknown father has not challenged the termination of his parental rights,
and is not a party to this appeal.
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Act.2    We affirm, and grant the petition to withdraw as counsel filed by

Mother’s counsel.

        The trial court aptly set forth the factual background and procedural

history of these appeals in its opinion filed on December 3, 2014, which we

adopt herein.      See Trial Ct. Op., 12/3/14, at 3-9.     On July 31, 2013,

Allegheny County Children, Youth and Families (“CYF”) filed a petition for the

involuntary termination of the parental rights of Father, Mother, and the

unknown father of Child. On August 13, 2013, Amy L. Berecek, Esq. entered

her appearance as the guardian ad litem (“GAL”) for Child. Father’s trial and

appellate counsel, Raymond N. Sanchas, Esq. entered his appearance on

behalf of Father. On January 25, 2014, Mother’s trial and appellate counsel,

Marsha H. Grayson, Esq. entered her appearance on behalf of Mother.         In

January of 2014, Eris Altar-Krupski, Esq. was appointed the GAL for Mother,

who has a history of mental health issues. N.T., 10/2/14, at 133.

        On April 2, 2014, and October 2, 2014, the trial court held evidentiary

hearings on the termination petition. On April 2, 2014, CYF presented the

testimony of Neil Rosenbum, Ph.D., a licensed psychologist, who testified,

via telephone, as an expert witness through the stipulation of the parties.

N.T., 4/2/14, at 4-5.       The hearing was continued to October 2, 2014.

Mother and Father were not present at the October 2, 2014 hearing, despite




2
    23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).
                                       -2-
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efforts to have them attend, but were represented by their counsel at the

hearing. N.T., 10/2/14, at 2-6.

        In orders dated and entered on October 2, 2014, the trial court

terminated the parental rights of Father and Mother to Child pursuant to

section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. On November

3, 2014, Mother filed a notice of appeal and statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).        On that same

date, Father filed a notice of appeal and statement of errors complained of

on appeal.     On December 30, 2014, Mother’s counsel filed a petition to

withdraw as counsel and an Anders3 brief with this Court.

        In the Anders brief, Mother’s counsel raises the following issues:

          1. Whether the Trial Court erred or abused its discretion in
          finding that the Office of Children, Youth and Families met
          their burden of proof and proved by clear and convincing
          evidence that the parental rights of S.P. should be
          terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),
          (5), [and] (8)[?]

          2. Whether the Trial Court erred or abused its discretion in
          finding that the Office of Children, Youth and Families met
          their burden of proof and proved by clear and convincing
          evidence that terminating the parental rights of S.P. best
          meets the needs and welfare of the minor child M.P.
          pursuant to 23 Pa.C.S.A. § 2511(b)[?]

Anders Brief, at 1-2.

        On appeal, Father raises one issue:

          Did the trial court abuse its discretion and/or err as a
          matter of law in concluding that CYF met its burden of

3
    See Anders v. California, 386 U.S. 738 (1967).
                                      -3-
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           proving by clear and convincing evidence that termination
           of Father’s parental rights would best serve the needs and
           welfare of his child pursuant to 23 Pa.C.S.A. § 2511(b)?

Father’s Brief, at 5.

         We begin by addressing the motion to withdraw. See In re X.J. 105

A.3d 1, 3 (Pa. Super. 2014) (stating “[w]hen counsel files an Anders brief,

this Court may not review the merits without first addressing counsel's

request to withdraw.”).

         In In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court

extended the Anders principles to appeals involving the termination of

parental rights. We stated that counsel appointed to represent an indigent

parent on a first appeal from a decree involuntarily terminating parental

rights may, after a conscientious and thorough review of the record, petition

this Court for leave to withdraw representation and must submit an Anders

brief.    In re V.E., 611 A.2d at 1275.    To withdraw pursuant to Anders,

counsel must: 1) petition the Court for leave to withdraw, certifying that

after a thorough review of the record, counsel has concluded the issues to

be raised are wholly frivolous; 2) file a brief referring to anything in the

record that might arguably support the appeal; and 3) furnish a copy of the

brief to the appellant and advise him of his right to obtain new counsel or file

a pro se brief to raise any additional points that the appellant deems worthy

of review. In re V.E., 611 A.2d at 1273. Thereafter, this Court examines

the record and determines whether the appeal is wholly frivolous. Id.


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     Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009), stated that an Anders brief must:

        (1) provide a summary of the procedural history and facts,
        with citations to the record;

        (2) refer to anything in the record that counsel believes
        arguably supports the appeal;

        (3) set forth counsel’s conclusion that the appeal is
        frivolous; and

        (4) state counsel’s reasons for concluding that the appeal
        is frivolous. Counsel should articulate the relevant facts of
        record, controlling case law, and/or statutes on point that
        have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

     Mother’s counsel has complied with the first prong of the test in

Santiago by providing a summary of the procedural history and facts in her

Anders brief. Counsel has also complied with the second prong of the test

in Santiago by referring to any evidence in the record that counsel believes

arguably supports the appeal. Counsel has also set forth her conclusion that

the appeal is frivolous, and stated her reasons for that conclusion, with

appropriate support. Moreover, counsel filed a separate motion to withdraw

as counsel, wherein counsel states that she has made a conscientious

examination of the record, and she has concluded that the appeal is

frivolous. Further, counsel has attempted to identify and fully develop any

issues in support of Mother’s appeal. Additionally, counsel states that she

sent a letter to Mother in which she provided a copy of the Anders brief.


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Counsel states that she informed Mother that she has filed a motion to

withdraw and an Anders brief, and she informed Mother of her rights in

light of the motion to withdraw as counsel. Thus, Mother’s appellate counsel

has satisfied the requirements of Santiago.

     Next, we address the first issue in the Anders brief, that is, whether

the trial court erred in granting the termination petition because the

evidence     was   insufficient    to   support   the   termination   under   section

2511(a)(1), (2), (5), (8).        In reviewing an appeal from the termination of

parental rights, we review the appeal in accordance with 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., [ ] 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. As has been often stated,
           an abuse of discretion does not result merely because the
           reviewing court might have reached a different conclusion.
           Instead, a decision may be reversed for an abuse of
           discretion   only   upon     demonstration     of     manifest
           unreasonableness, partiality, prejudice, bias, or ill-will.

              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,

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         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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations

omitted).

      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
      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.”

Id. (citation omitted).

      The trial court terminated the parental rights of Mother and Father

under section 2511(a)(1), (2), (5), (8), and (b). 4 This Court may affirm the

trial court’s decision regarding the termination of parental rights with regard

to any one subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384



4
  We note that Father has not challenged the termination of his parental
rights under section 2511(a), and has limited his challenge to the sufficiency
of the evidence under section 2511(b). He avers: “Father is not contesting
that there is a basis in the record to support the finding of the trial judge
that grounds for termination under 23 Pa.C.S. §2511(a) were proven by
sufficient evidence.” Father’s Brief at 12.
                                     -7-
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(Pa. Super. 2004) (en banc). We will focus on 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), (b).

     To satisfy the requirements of section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence necessary for his physical or

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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).        The grounds for termination of parental

rights under section 2511(a)(2), 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).

      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 convincing evidence that “[t]he 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.” If and only if
           grounds for termination are established under subsection
           (a), does a court consider “the developmental, physical
           and emotional needs and welfare of the child” under §
           2511(b).

              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 S.P., 47 A.3d at 827 (citation omitted).

      This Court has stated:

         an agency is not required to provide services indefinitely if
         a parent is either unable or unwilling to apply the
         instruction given. The goal of intervention is to rehabilitate
         the family and reunite the child with his family, or to
         terminate parental rights and free the child for adoption, if
         reasonable efforts over an appropriate period of time have
         failed.    Therefore, [the agency’s] duties must have
         reasonable limits. If a parent fails to cooperate or appears
         incapable of benefiting from reasonable efforts supplied
         over a realistic period of time, the agency has fulfilled its
         mandate and upon proof of satisfaction of the reasonable
         good faith effort, the termination petition may be granted.

In re A.L.D. 797 A.2d at 340 (quotation marks and citations omitted).

      A child’s life “simply cannot be put on hold in the hope that [a parent]

will summon the ability to handle the responsibilities of parenting.”      In re

Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010) (citation omitted). Rather, “a

parent’s basic constitutional right to the custody and rearing of his child is

converted, upon the failure to fulfill his or her parental duties, to the child’s

right to have proper parenting and fulfillment of his or her potential in a

permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa. Super. 2004).

      On April 2, 2014, Dr. Rosenblum testified. Maternal Grandmother has

been Child’ primary caregiver for approximately two years. N.T., 4/2/14, at

6. On October 16, 2012, he performed an interactional evaluation of Child

and Mother and Father. Id. at 8, 11. Mother tried to relate to Child and

there is no question that she loves him. Id. at 9. There is a bond between

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them. Id. Child enjoyed spending time with both Mother and Father. Id.

Mother’s parenting skills were inconsistent because of her mental health

problems.     Id. at 10.   “She’s not capable of consistently maintaining an

awareness of [Child] or making appropriate decisions about both short-term

things, such as keeping him safe at all times, and watching him carefully as

well as being able to make independent decisions about his well being.” Id.

      Father’s parenting skills were fairly positive. Id. at 11. He related to

the types of things a young boy would enjoy doing. Id. Child enjoyed, “at

that time, a comfortable attachment and a good relationship with” Father.

Id.

      When he observed Mother and Father together, Child preferred playing

with Father. Id. There was “a lot that [he] didn’t know about Mother and

Father” in terms of them parenting Child together on a long term basis. Id.

at 11-12.     Father worked a lot of hours and “Mother reported being very

isolated.” Id. at 12. Mother and Father downplayed the issue of domestic

violence. Id. Mother would not be able to parent Child on her own.        Id.

Father “did admit to one or two incidents where he claims Mother would

attack him or come after him.” Id. at 13. Father acknowledged Mother’s

mental health problems and the fact that they did not have money for her

medication.    Id.   Mother was inconsistent with medication and treatment.

Id.




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        Father filled out a mental health questionnaire and “was highly

unrealistic in his responses.”      Id. at 13-14.   Father displays impulsive

behavior. Id. at 14. He diagnosed Father has having “adjustment disorder,

not otherwise specified, partner relational problem, parent/child relational

problem . . . .” Id.

        Mother’s interview revealed that she had considerable mental health

problems. Id. at 15. She appeared to be delusional at times and confused

in her thought processes. Id. “Her judgment and insight [were] extremely

poor.”     Id.     Mother has “[s]chizoaffective disorder with a rule-out of

psychotic disorder NOS,[5] and apparent child relational problems and

schizoid personality traits.” Id. at 16. Her global assessment of functioning

score was forty-five which indicates very serious mental health concerns.

Id. He felt he needed more information about Father’s employment history

and possible alcohol abuse and the relationship between Mother and Father.

Id. at 17.       They were living in Virginia and more information was needed

regarding their living situation. Id.

        He concluded “Mother’s mental health problems as they presented

when [he] did [his] evaluation would interfere with her─grossly interfere

with her ability to take primary care of [Child].”       Id. at 38.    Father

understood the severity of Mother’s mental health problems but “overlooked

the significance and the impact and danger to [Child].” Id. at 39.


5
    NOS stands for not otherwise specified.
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      Following Dr. Rosenblum’s testimony, the court ordered CYF “to

schedule updated interactionals and individuals on all parties . . . .” Id. at

46.   A hearing was held on October 2, 2014.      Neither Mother nor Father

appeared at the hearing. N.T., 10/2/14, at 5. Dr. Rosenblum continued his

testimony at the hearing. He conducted evaluations on June 23, 2014 and

July 10, 2014 to assess Child’s needs, relationships with Mother, Father, his

grandmother and his uncle.      Id.    Father acknowledged Mother’s mental

health problems but was not proactive in seeing that she was in treatment

and took her medications. Id. at 11-12. He came to see Child two weeks

before the evaluation but had not seen him since Thanksgiving and

Christmas of 2013. Id. at 12. The previous visit was close to a year prior to

the visits in 2013. Id.

      He conducted testing but the results were “lacking in validity.” Id. at

14.   Father admits to no problems or concerns “for depression, anxiety,

domestic violence, alcohol use, not even any indications of sadness or regret

in regard from being away from [Child].” Id. His diagnosis for Father was

“adjustment disorder, with disturbance of conduct, rule out history of alcohol

abuse, history of partner relational problems, and parent/child relational

problems.” Id. at 15.

      Mother “shows very clear clinical signs of psychotic disorder, most

likely schizo-affective disorder, which combines schizophrenic symptom

along with episodes of mania, and likely depression as well.” Id. at 16. She


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saw Child two to three times a year.         Id. at 18.   She denied having any

friends in Virginia where she lives. Id. She associates with her Mother-in-

law who lives in Virginia.    Id.   The testing results for her were “rather

invalid.” Id. at 19. Mother responded on some tests “no” to every question

or “true to every question . . . .”    Id.     He diagnosed her with “[s]chizo-

affective disorder, bipolar type, parent/child relational problem, history of

partner relational problem, and schizo and independent personality traits.”

Id. at 20. Her GAF score was fifty, indicating “severe difficulty in personal

functioning.” Id.

        Two and one-half years have transpired since child came into care and

“it’s clear . . . that Mother is definitely not capable of caring for” Child “and

that her mental health problems remain very serious, and largely not

improved.” Id. at 30.

        Christopher Michael Ciccarelli, family service caseworker for CYF

testified. Id. at 51-52. There were no services offered to Mother by CYF

because she was living in Virginia and CYF cannot provide services out of

state. Id. at 65, 102. CYF was ordered to do an Interstate Compact 6 with

Virginia and it was done November 5, 2012.          Id. at 62.   On January 16,

2013, it was closed due to lack of cooperation between the family.           Id.

When Child was removed from Mother, Father was in Virginia. Id. at 117.




6
    See Interstate Compact on the Placement of Children, 62 P.S. § 761.
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He was not providing care for Child. Id. at 118. Mother and Father were

both in Virginia Beach as of May 25, 2012. Id. at 119.

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

trial court’s determinations are supported by competent evidence in the

record. See In re Adoption of S.P., 47 A.3d at 826-827; In re Adoption

of M.E.P., 825 A.2d at 1272.      Accordingly, we find that the trial court’s

determinations regarding section 2511(a)(2), with regard to Mother and

Father, are supported by sufficient evidence in the record.       See In re

R.N.J., 985 A.2d at 276.

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

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

are satisfied. 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 stated as follows.

             [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
      “[i]ntangibles 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. 1993)], this Court held that the
      determination of the child’s “needs and welfare” requires
      consideration of the emotional bonds between the parent and

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     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).

     This Court has stated:

        Being a parent means assuming responsibility so that a
        real bond develops, not just having a casual relationship
        with one’s children.     Children often know, love, and
        sometimes have an enjoyable time with parents who have
        little to do with their upbringing, and even with parents
        who physically and mentally abuse them. The key is
        whether a bond has developed.

In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).

     We have stated that, in conducting a bonding analysis, the court is not

required to use expert testimony, but may rely on the testimony of social

workers and caseworkers. In re Z.P., 994 A.2d at 1121. In In re K.Z.S.,

946 A.2d 753 (Pa. Super. 2008), this Court observed that no bond worth

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

has been in foster care for most of the child’s life, and the resulting bond

with the natural parent is attenuated. Id. at 764.

     Dr. Rosenblum testified that he did an interactional evaluation of Child

with Maternal Grandmother.       N.T., 10/2/14, at 20.    She had been the

primary caregiver for approximately two years since Child was removed from

Mother’s care in May of 2012. Id. at 21. Prior to the evaluation Child was

primarily residing with Uncle.   Id.    Grandmother takes care of Child while

Uncle is working.    Id.   Child and Uncle have “an exceptionally close


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relationship.”   Id. at 25. Child views Maternal Grandmother and Uncle as

his primary caregivers. Id. at 37.

      The trial court found “[t]o the extent that [Child] has a bond or

attachment to his parents, it is based only on memories and is in fact

residual, and apparently only evidenced by how well he gets along with them

at the interactionals. [Child] clearly recognizes his Uncle and Grandmother

to be his primary caregivers.        The stronger bond and attachment is to

them.” Trial Ct. Op. at 8. Mother and Father did not put themselves in a

position to assume daily parenting responsibilities for Child so that they

could develop a real bond with Child. See In re K.Z.S., 946 A.2d at 764.

Father and Mother resided in Virginia, and allowed Child to remain in

Pennsylvania, first in the care of Maternal Grandmother for approximately a

year and a half, and, later, with Uncle, who wishes to adopt him. See In re

J.L.C., 837 A.2d at 1249.

      This Court finds competent evidence in the record to support the trial

court’s determinations that Child’s needs and welfare are being provided by

Uncle. We conclude that both Mother’s and Father’s appeals lack merit as to

section 2511(b). See In re: T.S.M.; 71 A.3d at 267; In re Adoption of

S.P., 47 A.3d at 826-27. Accordingly, we affirm the orders terminating the

parental rights of Mother and Father pursuant to Section 2511(a)(2) and (b).

      Further, we have reviewed the Anders brief. We have found the trial

court had sufficient evidence upon which to terminate Mother’s parental


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rights, and that her appeal is frivolous. Accordingly, we grant the motion to

withdraw filed by Mother’s counsel.

     Orders affirmed. Motion to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/14/2015




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                                                                    Circulated 04/27/2015 02:46 PM




       IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                           ORPHANS' COURT DIVISION

RE: IN THE INTEREST OF: M.P. a.k.a.     CHILDREN'S FAST TRACK APPEAL
M.M.P., minor child
                                        OPINION
APPEALS OF: R.A., natural father;
S.P., natural mother                    Docket No.: JV-12-1114
                                        TPR No.:    13-130
                                        1805 WDA 2014 & 1806 WDA 2014

                                        BY:
                                        Honorable Kathryn Hens-Greco
                                        440 Ross Street
                                        Suite 5077
                                        Pittsburgh, PA 15219

                                        COPIES TO:

                                        Counsel for Allegheny County
                                        Children, Youth and Family Services:
                                        Paula J. Benucci, Esq.
                                        Fort Pitt Commons, Suite 101
                                        445 Fort Pitt Blvd
                                        Pittsburgh, Pa 15219

                                       Counsel for M.P. as Guardian ad Litem:
                                       Amy Lynn Berecek, Esq.
       U')                             Kids Voice
       ("")
                                       437 Grant Street, Suite 700
       N                               Pittsburgh, Pa 15219
       s:
        ~
        <")                            Counsel for S.P.:

-u..     ~
          '
          ...
                                       Marsha Grayson, Esq.
                                       Grayson Law Firm, LLC
                                       401 Wood Street
          ~                            Pittsburgh, PA 15222

                                       Counsel For R.A ..
                                       Raymond Sanchas, Esq.
                                       Juvenile Court Project
                                       436 Seventh A venue, Fl 11
                                       Pittsburgh, Pa 15219
                                                                                         Circulated 04/27/2015 02:46 PM




         IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                             ORPHANS' COURT DIVISION


    RE: IN THE INTEREST OF: M.P. a.k.a,                      CHILDREN'S FAST TRACK APPEAL
    M.M.P., minor child
                                                               Docket No.: JV-12-1114
    APPEALS OF: R.A., natural father;                          TPR No.: 13-130
    S.P., natural mother                                       1805 WDA 2014 & 1806 WDA 2014




                                                    OPINION

HENS-GRECO, J.                                                                         December 3, 2014


          On October 2, following a one-day' hearing on the above captioned matter in which neither parent

appeared' but was represented by counsel, this Court issued an order granting the petition of the Allegheny

County Office of Children, Youth and Families ("CYF") for involuntary termination of the parental rights

of R.A. ("Father"), the natural father of M.P. (DOB 12/19/2008) and of S.P. ("Mother"), the natural mother

of M.P., pursuant to 23 Pa. C.S.A. §§ 2511(a)(l), (a)(2), (a)(5), (a)(8), and 2511(b). For the reasons set

forth below, the Order of this Court terminating parents' rights to the child M.P. should be affirmed.




I
  The trial was initially scheduled for April 2, 2014. At said dale, testimony from psychologist Dr. Neil Roseblum
revealed that updated interactional evaluations would better assist the Court in making a determination. See
Testimony of Transcript, dated April 2, 2014, at 45. The case was continued until August 20, 2014, where it was
continued again to October 2, 2014. Both parties received notice of the October 2, 2014 hearing date as indicated
by their counsel. See Testimony of Transcript, October 2, 2014, at 5-6.
2
  The CYF Caseworker and Mother's GAL indicated that Mother was aware of the TPR hearing, but that she had
apparently been recently released from the hospital and could not attend. See Transcript of Testimony, at 3-4.
She also indicated, however, that she did not want to testify by phone. The Caseworker testified that, according to
Mother, Father forgot about the hearing. Id., at 80. The Caseworker also testified that Mother was very amicable
to her brother adopting M.P., but that her only request was that she wants to see M.P.
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         CYF based its petition to terminate Father's parental rights on 23 Pa.C.S.A. §§ 251 l(a)(l), (a)(2),

 (a)(5), and (a)(8). These subsections provide for the involuntary termination of parental rights if the

 petitioner can establish any of the following grounds:


         (a)(l) 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. [ ... ]


        (a)(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. [ ... ]


        (a)(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.[ ... ]


        (a)(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 elate of removal or placement,
        the conditions which led to the removal or placement of the child continue to exist and the
        termination of the parental rights would best serve the needs and welfare of the child.


23 Pa. C.S.A. §§ 2511 (a)(l), (a)(2), (a)(S), (a)(8). Once the statutory grounds for involuntary termination

of parental rights have been clearly shown, the Court must consider whether the termination would meet the

needs and welfare of the child under subsection §2511(b):


       (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)(l), (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 petitions.
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  23 Pa. C.S.A. § 2511 (b). A party seeking termination of parental rights must establish by clear and

  convincing evidence that the parent's conduct satisfies at least one of the statutory grounds for termination;

  if it is determined that this burden of proof has been met, then the trial court must next consider the second

 step of the process, which entails a determination of whether termination best serves the needs and welfare

 of the child. In re S.D. T., Jr., 934 A.2d 703 (Pa. Super. 2007). In reviewing an order terminating parental

 rights, the appellate court "is 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." In re S.H., 879 A.2d 802, 809 (Pa. Super. 2005).

 Furthermore, the trial court is "the sole determiner of the credibility of witnesses and resolves all conflicts

 in testimony." Id.

         With the above standards in mind, and based on the testimony of three witnesses at trial (CYF

 Caseworker Christopher Ciccarelli, psychologist Dr. Neil D. Rosenblum, and Mother's guardian ad litem

Eris Atar-Krupski), the Court found the following facts, which persuaded the Court that grounds for

termination had been firmly established:

        The family came to the attention of CYF on May 9, 2012 following allegations that the child's

welfare was in jeopardy after Mother had locked herself and M.P. in a closet in the home of Maternal

Grandmother. See Transcript of Testimony ("T.T."), dated October 2, 2014, at pages 58-59. It became

immediately apparent to CYF that Mother had mental health issues. During the initial incident, Mother

made allegations about the Secret Service, x-rays, and satellites for 20-30 minutes. ld., at 59. Mother

refused to let the authorities look at the child so that they could ensure his health and safety. The child was

also very tiny and unclean. Id. CYF was also concerned about his nutrition. Id. CYF obtained an

Emergency Custody Authorization to remove the child. Id. Mother was involuntarily committed lo the

psychiatric unit at McKeesport Hospital. Id.; Id., at 61. M.P.' s shelter hearing was held on May 11, 2012.
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  The child was placed in the home of Maternal Grandmother;        upon her release, Mother returned to Virginia

  to be with Father.   The child was never in either of the parents' custody again. Rather, M.P. lived with his

  Maternal Grandmother     for roughly a year and a half until it became apparent that Maternal Grandmother,

  due to health concerns, could not be a full time pre-adoptive   resource.   At that point, Uncle, Mother's

 bother, made himself available.    He has been the primary caregiver since.

          In her Statement of Errors, Mother quite broadly argues: "1. The Trial Court erred in finding that the

 Office of Children, Youth and Families met their burden of proof and proved by clear and convincing

 evidence that the parental rights of ["Mother"]   should be terminated pursuant to 23 Pa.C.S.A.     §§

 251 l(a)(l ), (2), (5), (8) and (b ). See Mother's Notice of Appeal and Statement of Errors, at <J[l.

         Father's Statement of Errors is narrower: "1. The trial court abused its discretion and/or en-eel as a

 matter of law in concluding that CYF met its burden of proving by clear and convincing evidence that

 termination of Father's parental rights would best serve the needs and welfare of the child pursuant to 23

Pa.C.S. §2511 (b). Such termination immediately, permanently and unnecessarily deprives the child of the

love, companionship and affection of his biological father with whom he is bonded. 2. The trial court

abused its discretion in terminating Father's parental rights when a more appropriate and less restrictive

option of Subsidized Permanent Legal Custodianship was available." See Father's Concise Statement of

Errors Complained of on Appeal, at ~[1[1-2.

        M.P. was adjudicated dependent on July 23, 2012. See T.T., at 56. CYF sought to file under

"Aggravated Circumstances" as the parents left the Commonwealth and thus failed to maintain substantial

and continuing contact for a period of six months. ld., at 63. As such CYF was relieved of the requirement

that it make reasonable efforts to reunify the parents with the child. Id. Still, CYF did establish multiple

Family Service Plans ("FSPs") so as to facilitate reunification. Id., at 64. And because the parents lived in

Virginia, CYF sought to obtain the assistance of its Virginia counterpart via an Interstate Compact. The
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 Interstate Compact was initiated on November 5, 2012, but the parents refused to cooperate and so the

 potential for services in Virginia ended in January 2013. Id., at 62. Nevertheless, CYF established FSP

 "Goals" to aid the parents' reunification.

          The parents' first goal was to work with the agency and agency providers. Id., at 65. The second

 goal was to ensure that the child was supervised at all times. Id., at 68. This meant that the parents were to

 identify appropriate caregivers and to obtain and maintain a bond with the child through regular visits. Id.,

 at 68-69. The third goal was to maintain contact and cooperation with agency and service providers. Id., at

 78. The fourth goal provided that Mother and Father will obtain a mental health and drug and alcohol

 assessment, and follow any and all recommendations. ld., at 85. The parents were to attend counseling to

 address any and all anger management concerns. Id. Both were to successfully complete any appropriate

parenting classes. Id.

         Mother and Father largely did nothing. Neither parent worked with the agency nor sought agency

approved services. CYF was unable to contract directly for services in Virginia where the parents lived. Id.

As to whether the parents' identified appropriate alternative caregivers, CYF argues that the parent's did not

so identify. Rather, the responsibility was left to CYF when it was forced to place the child with Maternal

Grandmother due to lack of parental care. Id., at l 07. That Mother and Father apparently acquiesced to the

placement is immaterial. Having said that, this issue is not as concerning to the Court as is the issue of

visitation.   Since the child was removed from Mother in May 2012, the parents have seen the child less

than a handful of times. After the child was removed and Mother was released from the hospital in May

2012, she left the Commonwealth and went to be with Father in Virginia. She did not visit the child until

October 2012. Id., at 71. The next visit came in December 2012. The next was on August 19, 2013. Id., at

72. After that, Mother spent a couple of weeks in Pittsburgh - from November 19, 2013 until December 7,



                                                       5
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  2013 - following a physical fight between Mother and Father. Id., at 72-74. The parents appeared at the

  first scheduled day of the present TPR hearing on April 2, 2014. They also submitted to an evaluation

  conducted by Dr. Rosenblum in June 2014. Id., at 75. Mother purportedly makes regular phone calls to

  M.P., though as discussed below, phone calls are an inadequate substitution for regular physical visits. The

 visitation goal was not achieved.

         In terms of the contact and cooperation goal, the CYF caseworker noted that Mother does make

 calls to the agency. Id., at 78. However, cooperation is limited. For one thing, Father leaves the

 responsibility of contacting CYF to Mother. Id., 92. While the parents live together, Mother's mental

 limitations prevent her from being particularly cooperative. Mother was appointed a GAL, who testified

 that because Mother lives out of state, the GAL could not be as effective as she could be for other clients.

 Although the GAL noted that she attempted to facilitate cooperation between CYF and Mother, the GAL

 testified that Mother was unable to follow through with a requested task. Id., at 142. The issue here is

 medical release forms. CYF sought to verify that Mother was obtaining and maintaining appropriate

mental health treatment. Because Mother resided in Virginia, CYF had an even harder time verifying that

Mother's treatment was legitimate. Mother could have verified that she was in treatment by signing the

releases, but she did not do so. Mother indicated that she would, but evidently because of her mental state

she did not. Her GAL sought to aid Mother but to no avail. And thus, not only was Mother

"uncooperative" in terms of the third FSP goal, but it also must be noted that she was unable to achieve her

fourth goal: address mental health issues through appropriate treatment.

        Mother's mental health problems are rather significant. Dr. Rosenblum testified that Mother shows

very clear clinical signs of a psychotic disorder, most likely schizo-affective disorder. which combines

schizophrenic symptoms along with episodes of mania and likely depression. Id., at 16. Her thinking tends

to be very confusing and disjointed. Id. She cannot stay focused. Id. She has difficulty concentrating and
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 responding effectively to questions. Id. Dr. Rosenblum also has concerns about Father. Though Father

 acknowledged Mother has some emotional problems, he denies that it impairs Mother's ability to function.

 Id., at 11-12.   He does not believe that he has ever had any problems with drugs, alcohol or anger

 management, or domestic violence, despite credible allegations of such. Id., at 11.      The parents' lack of

 cooperation with the agency or ability to stay consistent with treatment poses serious concerns. Father told

 Dr. Rosenblum that he tries to see M.P. when he can. But this translates to less than a handful of times over

 the course of two and a half years. Dr. Rosenblum testified that this shows either a lack of motivation or a

 lack of awareness or both. Id., at 13. Father either does not know what M.P.' s needs are, or he knows but

does not care. Id. This lack of awareness and lack of motivation is also what led to the child's removal. It

is also why the child is still out of Father's care for over two years.

         Mother did not complete a mental health assessment. Id., at 85. She was able to provide two

unsubstantiated letters that she completed a parenting class and that she was participating in mental health

services in Virginia. Id., at 86-87. But even that documentation was, if not suspect, devoid of any

substantial information . CYF could not assess whether Mother had been in meaningful and consistent

treatment, let alone whether that treatment resulted in improved functioning. See Id., at 114-115.     Dr.

Rosenblum read Mother's documentation to mean that Mother was in therapy less than fifty percent of the

recommended treatment course. Id., at 47. What is more, such documentation came not only after CYF

filed for termination, but after the first day of the present TPR hearing. See Id., at 66. See also Footnote I.,

infra. Mother's mental instability should not be understated as it was the reason for the child's removal

and the reason why Mother has been unable to reunify with her child after two years.

         This Court notes Mother's inability to comply with any of the FSP Goals illustrates that the

conditions which led to M.P. 's removal are still in place, that Mother is either unable or unwilling to

remedy these conditions, and that the statutory timeframe for such remedy has passed. As Father does not
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 appeal the §2511 (a) aspects of this Court's termination decision, the Court need not speak to his lack of

 compliance, except to note that it is as dismal as Mother's if not more so.

        The crux of the appeal, for both Mother and Father, is truly the §251 l(b) analysis. That is, whether

 termination of the parents' rights was in M.P. 's best interests. Father argues a secondary, related issue of

 whether the Court erred because it chose to terminate rather than find a Subsidized Permanent Legal

 Custodianship (SPLC) arrangement. The record is clear and the evidence is convincing that termination is

 in M.P.'s best interests and that such an arrangement is far heller than an SPLC.

        Following his removal in May 2012, M.P. resided primarily with his Maternal Grandmother. At the

time, M.P. was 3 years old. After spending approximately a year and a half with Grandmother, it became

clear Grandmother could not adopt M.P. ld., at 33. For one thing, she was diagnosed with cancer. ld., at

26. She also had other health concerns. Finally, she also wanted to keep open the possibility that Mother

might return to Pittsburgh and that she might help Mother address her mental health. Id., at 40. Since such

time, M.P. has resided primarily with his Uncle, Mother's Brother. Id., at 33.    Though Dr. Rosenblum was

initially apprehensive of this arrangement, after an interactional evaluation in June, Dr. Rosenblum now

recommends termination of the parents' rights and adoption by Uncle.

        According to Dr. Rosenblum, M.P.'s attachment with his parents is residual and not strong. Id., at

39; 37. See also Exhibit 2. He remembers his parents and is happy to see them. But he does not have an

active attachment to them. Id., al 37. M.P. does not look to Mother to take care of him. Id. Fort wo and a

half years, neither parent has been in any kind of regular contact with M.P. Id. Meanwhile, Grandmother

has played a strong role in the child's life. Id. She continues to do so even as Uncle has taken the primary

parent role. Dr. Rosenblum said Uncle "stepped up to the plate." Id., at 24. Dr. Rosenblum testified that

his interactional evaluation with Uncle revealed "clear progress" and that he was "very impressed" with

Uncle, who feels very emotionally invested in M.P. ld., at 25. M.P. is learning to view Uncle as an

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 authority figure similar to Grandmother.   Id. M.P. enjoys playing with Uncle, who naturally has more

 energy than Grandmother. Id., at 26. Dr. Rosenblum found Uncle to be capable, mature and responsible.

Id., at 27.

         To the extent that M.P. has a bond or attachment to his parents, it is based only on memories and is

in fact residual, and apparently only evidenced by how well he gets along with them at the interactionals.

M.P. clearly recognizes his Uncle and Grandmother to be his primary caregivers. The stronger bond and

attachment is to them. It is true that Mother maintained regular phone contact with M.P., but Dr.

Rosenblum explained why such contact is really not a substitute.     Even Skype, which Mother does not

have, is not the sort of face-to-face contact that M.P. needs lo establish an attachment. ld., al 13. Had M.P.

been an older child, who lived with his biological parents some time longer, then maybe such regular phone

contact could be influential. But that is not the case here. Per §251 ltb), termination is in M.P.'s best

interests.

        Finally, Father argues that an SPLC would be a better option for M.P. See Father's Statement, at <JI

2. But an SPLC cannot be a viable option in this case, because it does not offer the permanence that M.P.

needs. Id., at 39. An SPLC could be challenged down the road by either parent, whereas adoption clearly

points to a long-standing permanent resolution. Id. In other words, M.P. would not be given a clear-cut

sense of closure, an understanding of who is going to be his primary parent figure for the duration of his

childhood, and adolescent years. Id. Besides, Dr. Rosenblum notes that adoption is unlikely to jeopardize

the Mother's ability to maintain contact with the child, as he will be living with her brother and visiting with

her mother. Id., at 40. An SPLC arrangement has the potential to cause disruption down the road. Dr.

Rosenblum testified that if Mother's mental health stabilized, and then later in life sought custody of M.P.,

it would add to M.P. 's confusion. Id., at 41. Adoption leaves the door open for Mother while at the same

time ensuring that M.P. has permanency. Id., at 41. -42.



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        After a careful review of all the evidence set forth above, this Court concluded that CYF had carried

the burden of proving by clear and convincing evidence that the parents' rights should be terminated and

that the child's best interests will be served thereby. For these reasons, the decision of the Court should be

affirmed.

                                                       BY THE COURT:




                                                     10
