J-S85030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: S.S.S., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: Y.O., NATURAL                   :
    MOTHER                                     :
                                               :
                                               :
                                               :
                                               :   No. 1392 WDA 2017

                      Appeal from the Order July 31, 2017
               In the Court of Common Pleas of Allegheny County
               Orphans' Court at No(s): CP-02-AP-0000035-2017


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                                FILED MARCH 06, 2018

       Y.O. (“Mother”) appeals from the order entered on July 31, 2017,

terminating her parental rights to S.S.S., (“Child”), her male, dependent child

born in January 2015, with an unknown father, pursuant to 23 Pa.C.S.A. §

2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S.A. §§ 2101-

2938 the Adoption Act.1 We affirm.

       Based on the testimony at the termination hearing, the trial court set

forth the factual background and procedural history of this appeal as follows.

             The minor is residing at Wesley Spectrum, a foster care
       provider. He was born to [Mother] and an unknown father.
____________________________________________


1In the same order, the trial court involuntarily terminated the parental rights
of “G. Unknown,” and any unknown father of Child. Neither “G. Unknown” nor
any unknown father has filed an appeal from the termination order, nor is “G.
Unknown” or any unknown father a party to the appeal presently before this
Court.
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     [Mother], 20 years old, has demonstrated[,] for years and on
     numerous occasions, that she is not able to control her violent
     outbursts. CYF became involved with [Mother][] as a result of a
     2015 referral, when she was in her teenage years. She has a
     diagnosis of bi-polar disorder and was ordered treatment, to which
     she had not been compliant. According to Ms. Shaheeda Wilks, a
     caseworker who testified at the hearing, CYF received reports that
     on July 14, 2015, [Mother] threatened to kill [Child] via text
     message. This was never objected to by her counsel; therefore,
     the [c]ourt afforded weight to this statement and found that this
     statement, standing on its own, is enough to cause great alarm
     for the minor’s well-being and it is clearly not in the minor’s best
     interest to remain in that type of environment. However, this does
     not end the [c]ourt’s inquiry. Ms. Wilks continued to testify that
     on July 29, 2015, during a dependency hearing, … [M]other had
     to be removed from the courthouse and could not attend the
     hearing because she had a physical altercation with another
     female while inside the courthouse. Following the dependency
     hearing, the child was found dependent under Section 1. [42
     Pa.C.S.A. § 6302(1), definition of “Dependent child”.] A family
     service plan (hereinafter referred to as (FSP) was put into place
     to address the mother’s mental health and anger issues, whereby
     she was ordered to participate with the caseworkers and other
     professionals. [Mother] did attend two meetings; however, during
     one meeting specifically, March 9, 2017, [Mother] became
     verbally aggressive and abusive to the caseworkers and at one
     point had to be removed from the office by security. The violent
     outburst caused by [Mother] prevented her from being able to
     participate in subsequent sessions. Additionally, [Mother] has
     been inconsistent with her mental health treatment, which was a
     goal of the FSP.

Trial Court Opinion, 10/12/17, at 2-3 (unpaginated).

     On March 6, 2017, CYF filed the petition seeking the involuntary

termination of Mother’s parental rights to Child. On July 21, 2017, the trial




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court held an evidentiary hearing on the petition.2 At the hearing, CYF

presented the testimony of Shaheeda Wilks, the CYF caseworker assigned to

the case. CYF then presented the testimony of Amy Rendos, the supervisor

for coach visitation at Project Star. Finally, CYF presented the testimony of

Maria Luczkow, a psychotherapist at Milestones Center who had treated

Mother.3 On July 31, 2017, the trial court entered the order involuntarily

terminating Mother’s parental rights.

       Mother timely filed a notice of appeal, along with a concise statement

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In her brief on appeal, Mother

raises the following issues:

       1. Did the trial court abuse its discretion and/or err as a matter of
       law in granting the petition to involuntarily terminate Mother’s
       parental rights pursuant to 23 Pa.C.S. §2511(a)(1), (2), (5), and
       (8)?

       2. Did the trial court abuse its discretion and/or err as a matter of
       law in concluding that CYF met its burden of proving by clear and
____________________________________________


2The trial court previously changed Child’s permanency goal to adoption under
the Juvenile Act, 42 Pa.C.S.A. § 6351.

3 Mother, who was represented by counsel at the hearing did not testify, and,
in fact, left the hearing prior to its conclusion. See N.T., Termination Hearing,
7/21/17, at 104-105, 127-128, 148. Child was represented by Attorney Lynne
P. Sherry, who stated, upon questioning by the trial court, that she was
representing Child both as to his legal interests and best interests, as set forth
in In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). There, a plurality
decision, a majority of the Court concluded that counsel may serve both as
the guardian ad litem, representing the child’s best interests, and as the child’s
counsel, representing the child’s legal interests, as long as there is no conflict
between the child’s legal and best interests. Here, the trial court concluded
that there was no such conflict by Attorney Sherry’s dual representation of
Child. See N.T., Termination Hearing, 7/21/17, at 11.

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     convincing evidence that termination of Mother’s parental rights
     would best serve the needs and welfare of the child pursuant to
     23 Pa.C.S. §2511(b)?

  Mother’s Brief, at 6.

     In reviewing an appeal from an order terminating parental rights, we

adhere to 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. 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.

           [T]here 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. 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 S.P., 47 A.3d 817, 826-827 (Pa. 2012) (internal citations

omitted).




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     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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, we have explained that

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

     This Court may affirm the trial court’s decision regarding the termination

of parental rights with regard to any one subsection of § 2511(a). See In re

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

     Section 2511 provides, in relevant part, as follows:

     § 2511. Grounds for involuntary termination

     (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.

                                    ***
     To satisfy the requirements of subsection (a)(2), the moving party must

produce clear and convincing evidence regarding the following elements:




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      (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) (citation

omitted). The grounds for termination of parental rights under subsection

(a)(2) are not limited to affirmative misconduct, but may include acts of

refusal and also the incapacity to perform parental duties. See In re A.L.D.

797 A.2d 326, 337 (Pa. Super. 2002).

      Mother challenges the sufficiency of the evidence to support termination

with regard this subsection. She claims the evidence at the hearing

demonstrated she was working towards satisfying her FSP objectives, and did

not act with a settled purpose of relinquishing her parental rights or refuse to

perform her parental duties. And she offers a litany of reasons in support of

her position.

      Mother maintains she complied with Lifeworks, and participated in a

parenting program until her discharge. Additionally, Mother points out she

attended mental health evaluations, engaged in treatment, and even took

prescribed medication. Mother further states that, although she lacked her

own housing, she resided with relatives. Mother also asserts she visited Child.

Mother complains that CYF argues that she was not fully compliant with any

of her goals, based on her inconsistent participation, discharge from

programs, or refusal to participate. Mother argues that, although CYF

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presented testimonial evidence that she argued, yelled, and threatened

individuals, the testimony demonstrated that Child was not exposed to this

behavior since April 2017, when Ms. Wilks took over the case. Mother further

claims that there was no testimony that she caused any physical harm to

Child.

         Mother concedes that, in the past, she has acknowledged her frustration

and anger control issues, but denies these issues prevent her from being able

to parent Child. According to Mother, CYF is basing its conclusion on her

interaction with the adults assigned to the case. Mother argues CYF is

presuming she cannot parent Child because of her frustration and anger

control issues, and that there is insufficient clear and convincing evidence to

prove that she is incapable of parenting Child. Mother claims she engaged in

appropriate and loving interactions with Child.

         Mother also contends she remedied any parental incapacity, and that

any allegation that she is not ready to parent Child is speculative or unclear.

Mother does not dispute she failed to complete some programs and did not

have a 100% attendance rate. She argues, however, that her actual level of

participation or compliance with mental health therapy, medication, parenting

instruction, and visitation was sufficient to remedy any parental incapacity

directly related to Child.

         With regard to subsection (a)(2), the trial court found the following from

the testimony at the termination hearing:


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           It was the opinion of Ms. Wilks that [Mother’s] unaddressed
     mental health and anger issues have and will affect her ability to
     safely parent the minor.

            The testimony of Ms. Wilks also demonstrated that [Mother]
     failed the parenting goal the agency determined was necessary.

            On May 31, 2016, [Mother] was to attend and complete the
     Arsenal Program to specifically address her emotional outbursts
     and anger issues. Her case file was closed out because she failed
     to attend her orientation on two separate occasions. [Mother] was
     given another chance to attend Arsenal; however, she was
     discharged and her case file was closed out a second time because
     she threatened to kill the staff members and made other
     inappropriate remarks to other clients. It should be noted that
     despite all of this, [Mother] was given a third chance to complete
     the parenting goal as a referral to the Family Resource Program
     was made by the agency. [Mother] never called to enroll in the
     program. In addition, Ms. Maria Luczkow, from Milestones Center,
     which is an outpatient psychotherapy clinic, testified [Mother] was
     to have 37 sessions of therapy to address her emotional and
     mental health well-being. She only attended 16 of the 37. It is
     important to note that when confronted by Ms. Luczkow, as to her
     inconsistent participation in the therapy, [Mother] threatened to
     kill her if she showed up for court. Needless to say, the service
     was terminated.

           [Mother] failed the housing goal set out by the FSP. The
     agency made three referrals to the Urban League to address
     housing for [Mother] but she failed to participate and fully comply;
     therefore, failing the goal of obtaining and maintaining
     independent housing.

            [Mother] failed the agency FSP visitation goal. Specifically,
     [Mother] was given numerous opportunities to have supervised
     visits. She had been inconsistent with the visits, only attending 27
     of 68 visits in the time period of September 2015 through
     November 2016; had to have some of those visits she attended
     cut short due to her irrational emotionally [sic] outbursts, which
     caused a safety concern for the minor, the service providers, and
     CYF caseworkers; and due to her violent outbursts, two case
     workers had to be assigned due to safety concerns.2
     ___________________________________________________


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      2 The [trial court] specifically notes that, in addition to [Mother’s]
      violent and irrational behaviors exhibited in the context of this
      case, as the record is replete with her violent outbursts, she faced
      criminal prosecution in the 5th Judicial District-Crim. Div. for
      simple assault and terroristic threats as her own mother was the
      victim. She punched her mother in the face and was placed on
      adult probation, as this case was in pendency, and was ordered
      by The Hon. Joseph K. Williams, III, to complete anger
      management and a mental health evaluation. (See CP- 02-CR-
      0015862-2015)[.]

Trial Court Opinion, 10/12/17, at 2-4 (unpaginated).

      After a careful review of the record, we find the trial court appropriately

found Mother had (1) a 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 mental well-being; and (3) the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.

      Mother attempts to minimize her frustration and anger management

issues, claiming that she has addressed them. Her anger and threats, she

explains, only involved adults and concerned the removal of Child from her.

And she asserts any future impact on her ability to parent Child is speculative.

We disagree.

      We find no merit to Mother’s argument that she is ready to, and capable

of, parenting Child. Far from it. There is competent, clear and convincing

evidence in the record that supports the trial court’s determinations with

regard to subsection (a)(2), and its termination of Mother’s parental rights to




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Child under that section. Thus, we find no abuse of discretion in the

termination of Mother’s parental rights pursuant to subsection (a)(2).

      Next, we address Mother’s second issue, i.e., that the trial court abused

its discretion in terminating her parental rights to Child pursuant to § 2511(b).

That subsection provides as follows:

      (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.

      The focus in terminating parental rights under § 2511(a) is on the

parent, but it is on the child pursuant to § 2511(b). See In re Adoption of

C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the

evidence in support of termination under section 2511(b), our Supreme Court

has 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. … [T]he
      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.



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In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (most citations and internal

quotation marks omitted; brackets added and in original).

      Subsection (b) does not mandate a formal bonding evaluation. See In

re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). And when evaluating a

parental bond, “the court is not required to use expert testimony. Social

workers and caseworkers can offer evaluations as well.” Id. (citations

omitted). Although it is often wise to have a bonding evaluation and make it

part of the certified record, “[t]here are some instances … where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008) (citation omitted). “The extent of any bond

analysis, therefore, necessarily depends on the circumstances of the particular

case.” Id. (citation omitted).

      A parent’s abuse and neglect are likewise a relevant part of this analysis:

      [C]oncluding a child has a beneficial bond with a parent simply
      because the child harbors affection for the parent is not only
      dangerous, it is logically unsound. If a child’s feelings were the
      dispositive factor in the bonding analysis, the analysis would be
      reduced to an exercise in semantics as it is the rare child who,
      after being subject to neglect and abuse, is able to sift through
      the emotional wreckage and completely disavow a parent … Nor
      are we of the opinion that the biological connection between [the
      parent] and the children is sufficient in of itself, or when
      considered in connection with a child’s feeling toward a parent, to
      establish a de facto beneficial bond exists. The psychological
      aspect of parenthood is more important in terms of the
      development of the child and [his] mental and emotional health
      than the coincidence of biological or natural parenthood.



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In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

of the child. See, e.g., In re K.Z.S., 946 A.2d at 763. “[A] parent’s basic

constitutional right to the custody and rearing of … her child is converted,

upon the failure to fulfill … her parental duties, to the child’s right to have

proper parenting and fulfillment of [the child’s] potential in a permanent,

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

2004) (citation omitted).

      With regard to subsection (b), the trial court stated the following:

            The minor has been placed in his pre-adoptive home since
      August 20, 2016. Furthermore, he has not been in [Mother’s] care
      since July 29, 2015[,] and most importantly, for the life of this
      case, i.e. from the time the child was found dependent until the
      present, the minor and [Mother] have never re-unified. Lastly, 12
      months have elapsed from the date of the minor’s placement
      and/or removal from the unknown father.

            The [trial court] also heard testimony from the caseworker
      regarding observations of the minor’s interaction with the foster
      family. It was testified by Ms. Wilks that she personally observed
      interactions between the minor and the foster family and observed
      him to be “happy” in that regard and his needs were being met.
      It was the opinion of the caseworker that termination and adoption
      were in the minor’s best interest. It is also the same opinion
      shared by [the trial court].

            The evidence discussed above amply supported the [trial
      court’s] conclusion that the child’s bond with the mother “no
      longer helps but rather hinder[s] this child”.3 Therefore, the [trial
      court] properly concluded that the potential damage that may
      result from prolonging this relationship substantially outweighs
      the pain that may be caused by severing any remaining bond.
      ___________________________________________________

      3   In re P.A.B., 570 A.2d 522, 526 (Pa. Super. 1990).

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Trial Court Opinion, 10/12/17, at 4-5 (unpaginated).

      Mother maintains the trial court failed to properly consider her

undisputed love for Child, and the effect of Child severing his relationship with

Mother and all of his maternal relatives, including his infant, male sibling, C.,

who was born in January 2017. We disagree.

      The trial court appropriately considered the safety of Child as weightier

than any affection the young child might feel for Mother or vice versa. A

parent’s love of his child, alone, does not preclude a termination. See In re

L.M., 923 A.2d 505, 512 (Pa. Super. 2007). Nor will we “toll the well-being

and permanency of [a child] indefinitely[,]” In re Adoption of C.L.G., 956

A.2d at 1007 (citation omitted), while a parent tries to get her act together.

      We find no merit to Mother’s argument concerning the separation of the

siblings. Child’s sibling, C., was born seven months prior to the termination of

Mother’s parental rights. C. was also dependent, had not been reunified with

Mother, and had not lived with Child. The trial court properly weighed the

argument that Mother’s counsel made at the hearing concerning the

separation of the siblings in this case. The trial court appropriately concluded

that the separation of the siblings in this matter served Child’s best interests,

for the reasons expressed by the trial court concerning Child’s safety, as set

forth above. Thus, we reject Mother’s contention that the trial court abused

its discretion in separating Child from his sibling.




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      After a careful review of the record, we find ample competent evidence

to support the trial court’s findings and credibility determinations. We,

therefore, find no abuse of the trial court’s discretion in terminating Mother’s

parental rights to Child under subsection (b).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2018




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