J.S36031/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.J.S., A MINOR, : IN THE SUPER IOR COURT OF : PENNSYLVANIA :

: : APPEAL OF: D.F.M. A/K/A D.S., MOTHER, : : No. 3609 EDA 2013

Appeal from the Order Entered November 14, 2013 In the Court of Common Pleas of Philadelphia County Family Court No(s).: 51- FN -381481-2009 CP

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- AP -0000651-2013 CP

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- DP -0001847-2011 IN THE INTEREST OF: D.M.S., A MINOR, : IN THE SUPER IOR COURT OF : PENNSYLVANIA :

: : APPEAL OF: D.F.M. A/K/A D.S., MOTHER, : : No. 3611 EDA 2013

Appeal from the Order Entered November 14, 2013 In the Court of Common Pleas of Philadelphia County Family Court No(s).: 51- FN -381481-2009 CP

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- AP -0000626-2013 CP

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- DP -0001205-2011 BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 08, 2014

* Former Justice specially assigned to the Superior Court

.J. S36031/14

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D.F.M. a/k/a D.S. (“Mother”) appeals from the orders e ntered in the Philadelphia County Court of Common Pleas on Novembe r 14, 2013, terminating her parental rights to her twin sons, A.J. S. 1 and D.M.S. 2 (collectively “Children”), born May 5, 2008, and changin g Children’s goal to adoption. 3 The trial court terminated Mother’s parental rights pu rsuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). We a ffirm. The trial court summarized the factual and procedural history of this

case as follows:

On [May 5, 2008], [t]he Department of Human Service s [(“DHS”)] learned that [Mother] prematurely gave bir th to twin boys, [Children], at Children’s Hospita l of Philadelphia. [Children] were exposed to illegal dr ugs during the pregnancy and were hospitalized after birt h for three weeks for observation. The [DHS] reports show a lengthy history with the family due to allegations of ongoing substance abuse b y [Mother. DHS] obtained information of numerous evic tion notices and shut off notices for utility services at the f amily home.

* * * On June 11, 2011, [DHS] learned the child, D.S., suffered abrasions to his face and bruises on his body which appeared to be at different stages of healing. Upon a visit to Children’s Hospital of Philadelphia, it was determined that D.S.’s condition was post -concussion

1 A.J.S. and A.S. are the same child.

2 D.M.S. and D.S. are the same child.

3 These appeals were consolidated sua sponte by order of this Court on January 28, 2014.J. S36031/14

- 3 - associated with self-injuring symptoms and symptoms of being developmentally delayed, with delayed gross mot or skills and speech delays. The primary care physician reported D.S.’s parents failed to comply with the recommendation of Early Intervention services. On June 12, 2011, [DHS] did a home assessment of [G.S. (“Father”)] 4 and [Mother] and found the home did not have proper utilities. [DHS] obtained an Order of Protective Custody [(“OPC”)]. A shelter care hearing was held on June 16, 2011, [following which the Master] lifted the OPC and ordere d [ ] D.S. to be temporarily committed to [DHS]. [ ] D.S. was placed in the care of a family member. It was reporte d [Mother] had a history of drug abuse and [Father] use d drugs in front of [Children]. An adjudicatory hearing was held on [June 21, 2011]. D.S. was [deemed] dependent and committed [ ] to [DHS]. The [c]ourt referred [Mother] to the [c]linica l [e]valuation [u]nit for a forthwith drug screen, dual diagnosis, assessment and monitoring. Both parents were ordered to the Achieving Reunification Center (ARC) program for reunification services. On September 3, 2011, [DHS] received a General Protective Services [“GPS”] report which alleged [Mother ] was under the influence of drugs and was causing confusion in the home where [Children] were located. A substantiated report alleged that [Mother] and [Fathe r] were using heroin in front of [Children]. A family member visited the home and removed [Children] from the hom e. The family member refused to return [Children]. On September 8, 2011, [DHS] learned [Mother] was incarcerated in prison in Delaware [C]ounty for [a] probation violation for testing positive for drugs. I t was also alleged [Father] was incarcerated [ ].

4 Father is not a party to this appeal.J. S36031/14

- 4 - On September 21, 2011, [DHS] obtained an [OPC] for A.S. An initial permanency review hearing was held for [ ] D.S. on September 21, 2011 [ ]. The [c]ourt ordered D.S. to remain committed to [DHS]. The [c]ourt received a report of noncompliance from [CEU] regarding [Mother’ s] court ordered drug screens. A shelter care hearing was held for [ ] A.S. on September 22, 2011. [A.S.] was adjudicated dependent and committed to DHS on October 3, 2011.] The [c]ourt lifted the OPC and ordered the temporary commitment t o [DHS] to stand. [Neither Mother] nor [Father] atten ded the hearing. A permanency review hearing was held on December 13, 2011 for [ ] A.S. The [c]ourt ordered [Children ] to remain as placed and committed to [DHS]. [Mother and Father] remain incarcerated. On April 23, 2012, [Father] pled guilty to criminal charges of theft and was sentenced to a maximum of 23 months [sic] incarceration. [Father] had a lengthy hi story of incarcerations from 2006 to present. A Family Service Plan [(“FSP”)] meeting was held by [DHS]. The [FSP] objectives for the parents were (1) to continue to occupy suitable housing for family with suit able space, heat and all other operable utilities, (2) to a chieve and maintain recovery from drug and/or alcohol proble ms (3) to sign authorization forms to allow the release of copies of the evaluation and progress reports (4) to comply with all treatment recommendation [sic] includi ng therapy and/or medications as prescribed. The objectives specifically identified for [M]other were (1) continue to attend drug/alcohol program and comply with requirements, (2) participate in mental health evalua tion and treatment and (3) to maintain employment. The matter was then listed on a regular basis . . . an d evaluated for the purpose of determining or reviewin g the permanency plan of the child [sic] with the goal of reunification of the family.J. S36031/14

- 5 - In subsequent hearings, the DRO’s [sic] reflect the [c]ourt’s review and disposition of evidence presented addressing the lack of compliance with suitable housing, and drug and alcohol treatments. Trial Ct. Op., 2/6/14, at 2-3 (unpaginated). We ad d that since 2011, Children have lived with their paternal grandmother . (“paternal grandmother”). On October 29, 2013, DHS filed petitions to terminate Mother’s parental rights to Children. The petitions alleged g rounds for termination pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Following a hearing on the petitions on November 14, 2013, the t rial court granted DHS’s petitions, changed Children’s goals to adoption, and terminated Mother’s parental rights. Mother timely appealed on December 13, 2013

. 5 Mother raises the following issues for our review:

1. Did [DHS] sustain [its] burden that [Mother’s] rights should be terminated?

2. Did the trial court err in determining that it was in the best interest of [Children] to terminate [Mother’s] pa rent al rights by finding there was no bond between [Children ] and [Mother].

Mother’s Brief at 5. Our standard and scope of review is well-established:

In an appeal from an order terminating parental rig hts, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court’s factual

5 Mother and the trial court complied with Pa.R.A.P. 1925.J. S36031/14

- 6 - findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court’s ord er only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge’s de cision is entitled to the same deference as a jury verdict.

In re L.M. , 923 A.2d 505, 511 (Pa. Super. 2007) (citations omit ted). “[O]ur standard of review requires [u]s to accept the findings of fact and credibility determinations of the trial court if they are supporte d by the record.” In re Adoption of S.P. , 47 A.3d 817, 826 (Pa. 2012).

Furthermore:

Termination of parental rights is controlled by statute

. See 23 Pa.C.S.A. § 2511 . . . . Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights

. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies th e statutory grounds for termination delineated in Sectio n 2511(a). Only if the court determines that the paren t’s conduct warrants termination of his or her parental rig hts does the court engage in the second part of the analysi s pursuant to Section 2511(b): determination of the nee ds and welfare of the child under the standard of best interests of the child. One major aspect of the needs a nd welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permane ntly severing any such bond. Id.

In re L.M. , 923 A.2d at 511 (some citations omitted). We have previously stated:

The standard of clear and convincing evidence is defined as testimony that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truthJ. S36031/14

- 7 - of the precise facts in issue.” It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.

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

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

A parent must utilize all available resources to preser ve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilit ies while others provide the child with his or her physica l and emotional needs.

In re K.Z.S. , 946 A.2d 753, 759 (Pa. Super. 2008) (citation omit ted).

Before filing a petition for termination of parent al rights, the Commonwealth is required to make reasonable effor ts to promote reunification of parent and child. Howeve r, the Commonwealth does not have an obligation to make such efforts indefinitely. The Commonwealth has an intere st not only in family reunification but also in each child ’s right to a stable, safe, and healthy environment, and the t wo interests must both be considered. In re Adoption of R.J.S. , 901 A.2d 502, 507 (Pa. Super. 2006) (citations omitted). “Where an incarcerated parent faces termination of paren tal rights, it is critical that the fact of incarceration and the practica l limits it imposes on the parent/child relationship not obscure the focus of the statutory inquiry.”

In re P.S.S.C. & P.D.S.C. , 32 A.3d 1281, 1285 (Pa. Super. 2011). Furthermore, this Court has held:J. S36031/14

- 8 - “[U]nder 23 Pa.C.S.[ ] § 2511(a)(1), incarceration alo ne cannot support termination due to a parent’s fail ure to perform parental duties. Moreover, a parent’s absence and failure to support a child due to incarceration is not conclusive on the issue of whether the parent has abandoned the child. Nonetheless, a parent’s responsibilities are not tolled during incarceration, an d therefore the court must inquire whether the parent utilized those resources available while he or she was i n prison to continue a close relationship with the child

. Id. at 1286 (citations omitted). The trial court found that DHS presented sufficient gro unds to terminate Mother’s parental rights under the followin g provisions of Section

2511: § 2511. Grounds for involuntary termination (a) General rule.ふ The rights of a parent in regard to a child may be terminated after a petition filed on an y of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filin g of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused o r 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 orsubsistence necessary for his physical or mental wellbeing and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedie d by the parent.

* * * (5) The child has been removed from the care of the parent by the court or under a voluntary agreem ent with an agency for a period of at least six months, th eJ. S36031/14

- 9 - 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 wh ich 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 welfar e of the child.

* * * (8) The child has been removed from the care of the parent by the court or under a voluntary agreem ent 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 termination of parental rights would best serve the needs and welfare of the child.

* * * ( b) Other considerations. ふThe court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfar e of the child. The rights of a parent shall not be ter minated 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 t o subsection (a)(1), (6) or (8), the court shall not conside r 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), (b). This Court may affirm the trial court’s decision regard ing the termination of parental rights with regard to any on e subsection of section 2511(a). See In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 2004) ( en banc ).J. S36031/14

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In her first issue, Mother argues DHS failed to present sufficient evidence in support of termination pursuant to any of the subsections of Section 2511(a). Mother’s Brief at 13. Specifically, she claims that she never evidenced a settled purpose of relinquishing her parental rights to

Children. Id. at 12. She states that she completed most of her FSP goals, and was actively completing the remaining goals, was co mpliant with her probation, including random drug screens, was enrolled i n a drug program, and had re-engaged in mental health treatment. Id. She concedes, however, that she had only been re-engaged in mental health treatment for a few months, but claims that she needed to find suitab le housing after being released from prison before she could seek mental health treatment.

Id. at 13. Because we may affirm the trial court’s decision as to any subsection of Section 2511(a), we focus our analysis on whether t he trial court properly terminated Mother’s rights pursuant to Section 2511(a)( 8). Our Court has explained:

termination under subsection (a)(8) does not require evaluating [a parent’s] willingness or abilit y to remedy the conditions that initially caused placement, nor does it require an evaluation of the availability or efficac y of [DHS] services. Though the state is required to make reasonable efforts to promote family stability and preserve family unity we cannot require [DHS] to exte nd services beyond what our legislature has deemed a reasonable time after state intervention or require Herculean efforts by [DHS] or other agencies after the goal has changed to adoption. Nor, in the interests of the child ren, should we. The state’s interest in preservingJ. S36031/14

- 11 - family unity must be weighed along with the state’s interest in protecting children, and a child’s right to a healthy and stable environment. A child’s life simply cannot be put on hold in the hope that the parent wi ll summon the ability to handle the responsibilities of parenting. In re Adoption of M.E.P. , 825 A.2d 1266, 1276 (Pa. Super. 2003) (citations omitted) (emphasis in original). In support of the petitions to terminate Mother’s pare ntal rights, DHS presented the testimony of Barbara Forest, DHS social wo rker. Ms. Forest testified that D.S. and A.S. were adjudicated depende nt in June and September 2011, respectively. 6 N.T., 11/14/13, at 11. Although Mother has completed some of her FSP objectives, she did not have a ppropriate housing, had not provided verification of employment, and was not engaged

in mental health treatment. Id. at 18, 21. Mother had also failed to participate in random drug screens, and, when she did ap pear for drug testing, she has had positive results. Id at 12-14. Ms. Forest testified that, at the time of the hearing, she was still not comfortab le recommending that Mother have unsupervised visitation with Children. Id. at 20. Ms. Forest recommends that Children be adopted by their [paterna l grandmother] with whom they have lived since 2011. Id. at 21. Paternal grandmother is bonded with Children, meets their basic needs, and prov ides them with stability. Id. at 21-22. Ms. Forest reiterated her recommendation t hat the

6 In fact, A.S. was adjudicated dependent on October 3, 2011.J. S36031/14

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goal be changed to adoption because, even though Mothe r has completed some of her FSP objectives, “there has been a long time of non

- compliance” and Children need permanency. Id. at 23. In the instant case, the trial court made the follow ing findings:

Mother’s repeated incarceration prevented her from completing her objectives for reunification with [Child ren]. Furthermore, testimony revealed [M]other’s whereabout s were frequently unknown for long periods of time.

* * *

. . . D.S. and A.S. have been in foster care for respectively for [sic] twenty-nine and twenty-six mont hs. The testimony established [Children] are in a stable environment and adoption was in the best interest [sic ] of [Children].

* * * The testimony established [M]other neglected to meet the protective parental care needs for [Children]. Furthermore, testimony evidenced and confirmed that [M]other has an extensive criminal history. Moreover, testimony revealed [M]other’s repeated incarceration caused instability in the care of [Children]. Furthermore, testimony established [M]other admitted a history of drug usage and mental health issues. Lastl y, [M]other repeatedly failed to participate in court or dered random drug screens. Trial Ct. Op. at 4-5 (citations to the record omitte d). The trial court’s conclusion that Mother has not, withi n the requisite statutory period, resolved the issues that led to Child ren’s placement is adequately supported by the record. The testimony an d record evidence establishes that Children have been in placement in ex cess of two years, andJ. S36031/14

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Mother has not advanced beyond having supervised visita tion with Children. We acknowledge Ms. Forest’s testimony that Mother has comp leted some of her FSP objectives. However, it is undisputed that Mot her has not met all of the goals established by DHS, including consistently part icipating in mental health, drug and alcohol treatment, and obtaining em ployment. On appeal, Mother seeks to have this Court re-weigh the evidence. Our standard of review, however, does not permit us to invade the cre dibility determinations of the trial court and re-weigh the evidence, absent a n abuse of discretion.

See In re S.P. , 47 A.3d at 826. As we find there is competent evidence in the record t o support the trial court’s credibility and weight determinations, we find no abuse of the court’s discretion in concluding that DHS sustained its burd en with regard to Section 2511(a)(8). See In re Adoption of R.J.S. , 901 A.2d at 507; In re Adoption of M.E.P. , 802 A.2d at 1276. Mother’s second issue on appeal challenges the trial court’ s determination that termination of her parental righ ts pursuant to Section 2511(b) is in Children’s best interests. Mother notes t hat the trial court made a specific finding as to the nature of the relatio nship between her and Children when it stated, “I have no doubt that Mothe r loves her children. I

have no doubt that the children love Mom.” Mother’s B rief at 16 (citing N.T. at 62). But, she claims that the court “never made a de cision as to how theJ. S36031/14

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boys would be affected by the termination of [Mother ’s] parental rights.”

Mother’s Brief at 16. With regard to Section 2511(b), this court has state d:

Once the statutory requirement for involuntary termination of parental rights has been established un der subsection (a), the court must consider whether the child’s needs and welfare will be met by termination pursuant to subsection (b). In this context, the court must take into account whether a bond exists between child and parent , and whether termination would destroy an existing, necessary and beneficial relationship.

In re Z.P. , 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations om itted). This Court has explained that the focus in terminating par ental rights under Section 2511(a) is on the parent, but it is on the chil d pursuant to Section 2511(b). In re Adoption of C.L.G. , 956 A.2d 999, 1008 (Pa. Super. 2008). In analyzing the parent-child bond, the court is not r equired to order that an expert perform a formal bonding evaluation. In re K.K.R.-S. , 958 A.2d 529, 533 (Pa. Super. 2008).

While a parent’s emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child. The mere existence of an emotional bond does not preclude the termination of parental rights. See In re T.D. , 949 A.2d 910 (Pa. Super. 2008) (trial court’s decision to terminate pare nts’ parental rights was affirmed where court balanced str ong emotional bond against parents’ inability to serve nee ds of child).

In re N.A.M. , 33 A.3d 95, 103 (Pa. Super. 2011) (some citations om itted).J. S36031/14

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With respect to Children’s best interests, DHS presented t he tes timony of Adrianna Garcia, a social worker at Children’s Choic e and Children’s

caseworker. Ms. Garcia testified that Children are bon ded with Paternal

Grandmother. N.T. at 29- 30. She testified that she has observed Mother’s visits with Children and that Mother struggles to discip line them in an appropriate way. Id. at 31. She also suspected Mother was under the influence of drugs or alcohol at one visit. Id. at 32. Ms. Garcia believes that, “[W]hile [Children] do know who their Mother i s and do have a connection with her, they have a strong bond with [Pat ernal Grandmother], who has been providing for them. If she was no longe r in their lives, they would struggle more to proceed.” Id. at 32-33. Ms. Garcia does not believe

it would cause Children irr eparable harm to terminate Mother’s parental rights. Id. at 33-34. The trial court’s opinion belies Mother’s contention tha t it failed to

address the effect that termination would have on Chil dren. The trial court

concluded that termination of Moth er’s parental rights “was in the best interests of [Children]” and changing Children’s goal to adoption would “provide[ ] longterm stability and permanency for [Chi ldren].” Trial Ct. Op. at 6. Specifically, the court found:

Testimony established [M]other ’s untreated mental health issues and drug abuse presented safety concerns for [Children]. The testimony of the social worker reveal ed concerns regarding [Mother’s] behavior during visits wi th [Children].J. S36031/14

- 16 - . . . In the instant matter, the testimony established that the child [sic] would not suffer any irreparable emoti onal harm if [M]other’s parental rights were terminated. [Children] have bonded with their foster parent, [P aternal Grandmother]. Testimony described the relationship between [Children] and their foster parent as very cl ose and strong. Furthermore, testimony established their foster parent provides longterm stability and permanen cy for [Children]. Lastly in the instant matter, the social worker for [D HS] testified credibly. Her testimony regarding [M]other’s history of drug abuse and failure to seek mental healt h treatment was consistent.

* * * . . . [T]he court finds that its ruling will not cause [Children] to suffer irreparable harm and it is in th e best interest of the child [sic] as a result of testimony regar ding the child’s [sic] safety, protection, mental, physical an d moral welfare, to terminate the parental rights.

Id. (citations omitted).

The trial court did not abuse its discretion in findi ng the lack of a

ben eficial bond between Mother and Children and that Ch ildren’s needs and welfare will be best served by terminating her parent al rights pursuant to Section 2511(b). Although the court found that Mothe r and Children love each other, and that Mother attempted to maintain a relationship with Children by attending some visitation with them, “the mere existence of an emotional bond does not preclude termination of paren tal rights.” See In re

N.A.M. , 33 A.2d at 103. Therefore, the trial court did no t abuse its

d iscretion in determining that the termination of Moth er’s parental rightsJ. S36031/14

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would be in the best interests of Children. See id. ; In re Z.P. , 994 A.2d at 1121; In re Adoption of M.E.P. , 802 A.2d at 1276. For all the foregoing reasons, we affirm the trial co u rt’s orders granting the petitions to terminate Mother’s parental rights and changing Children’s goals to adoption.

Orders affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/8/2014