J-S11044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF S.J.B.

APPEAL OF: J.A.S., NATURAL

MOTHER

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1637 WDA 2019

Appeal from the Order Entered September 24, 2019

in the Court of Common Pleas of Cambria County Orphans' Court at

No(s): 2019-390 IVT

IN RE: ADOPTION OF S.D.B.

APPEAL OF: J.A.S., NATURAL

MOTHER

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1638 WDA 2019

Appeal from the Order Entered September 24, 2019

in the Court of Common Pleas of Cambria County Orphans' Court at

No(s): 2019-391 IVT

IN RE: ADOPTION OF: S.A.B.

APPEAL OF: J.A.S., NATURAL

MOTHER

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1639 WDA 2019

Appeal from the Order Entered September 24, 2019

in the Court of Common Pleas of Cambria County Orphans' Court at

No(s): No. 2019-392 IVT

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
J-S11044-20

- 2 -

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 11, 2020

J.A.S. (“Mother”) appeals from the Order granting the Petitions filed by

the Cambria County Children and Youth Services (“CYS” or the “Agency”)

seeking to involuntarily terminate her parental rights to her minor children, S.A.B. (a female born in August 2013),1 S.D.B. (a male born in June 2015), and S.J.B. (a female born in August 2016) (collectively, “the Children”),

pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and

(b).2 We affirm.

CYS initiated services with regards to the Children in May 2017,

following a report that the Children were left unsupervised at their home. On

June 12, 2017, CYS filed dependency Petitions with regard to the Children. Following a hearing, the Children were removed from the home and placed

into foster care. The trial court adjudicated the Children dependent on July

19, 2017. Mother and Father underwent a psychological evaluation in August

2017. The trial court held a series of permanency review hearings on

____________________________________________

1 The trial court’s Opinion and Order erroneously stated that S.A.B. was born

in August of 2010, but S.A.B.’s birth year is properly noted during the

September 6, 2019 hearing. See Opinion and Order, 9/24/19, at 1; N.T.,

9/6/19, at 7.

2

In its Order, the trial court also involuntarily terminated the parental rights

of the Children’s father, M.T.B. (“Father”). Father has not filed any appeals,

nor has he filed a brief in this appeal.
J-S11044-20

- 3 -

November 29, 2017; May 16, 2018; August 24, 2018; and April 7, 2019. At

the August 24, 2018 hearing, the trial court set the Childrens’ goal to adoption. On April 16, 2019, CYS filed Petitions to involuntarily terminate the

parental rights of Mother and Father to the Children. On June 6, 2019, the

trial court appointed Suzann M. Lehmier, Esquire (“Attorney Lehmier”), as

legal interest counsel and guardian ad litem (“GAL”) for the Children.3 The

trial court also appointed independent legal counsel to represent Mother and

Father.

On September 6, 2019, the trial court held an evidentiary hearing on

the termination Petitions. CYS presented the testimony of Carol Crouse

(“Crouse”), the CYS caseworker assigned to the family since November 2018;

David Geller (“Geller”), a family resource specialist at Independent Family

Service, Inc. (“IFS”); and Dennis Kashurba (“Kashurba”), a licensed

psychologist who testified as a stipulated expert in psychology. See N.T.,

____________________________________________

3 Based on the Children’s respective ages of six, four, and three, the trial court

found that they had an inability to understand the termination proceedings. See Trial Court Opinion and Order, 9/24/19, at 2. The trial court perceived

no conflict between the best interests of the Children and their legal interests,

and appointed Attorney Lehmier to serve as both legal interest counsel and

GAL for the Children. Id.; see In re T.S., 192 A.3d 1080 (Pa. 2018) (holding

that the trial court did not err in allowing the children’s GAL to act as their sole

representative during the termination proceeding because, at two and three

years old, they were incapable of expressing their preferred outcome). The

Children’s legal interest counsel/GAL stated at the termination hearing that

the termination of Mother’s parental rights is in the best interests of the

Children. N.T., 9/6/19, at 143-44.
J-S11044-20

- 4 -

9/6/19, at 6, 68, 84-85. Mother was present, and testified on her own behalf.

Id. Father was not present, but was represented by counsel. Id. at 7.

On September 24, 2019, the trial court entered an Order granting the

Petitions to involuntarily terminate Mother’s and Father’s parental rights to

the Children, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).

On October 30, 2019, Mother filed three separate Notices of Appeal, and

simultaneous Concise Statements of Matters Complained of on Appeal.4 On

December 4, 2019, this Court, acting sua sponte, consolidated the appeals.

Mother raises the following issues for our review:

1. Whether [] Mother alleviated the conditions which led to the

Agency’s filing of a Petition to terminate her parental rights[?]

2. Whether [CYS] had met its burden of terminating Mother’s

parental rights with clear and convincing evidence[?]

Brief for Mother at 4.

In her first claim, Mother argues that the trial court erred in terminating

her parental rights because the evidence presented at the hearings was

insufficient to support the terminations. Id. at 7. Mother acknowledges that

____________________________________________

4 Mother also filed accompanying Motions to Appeal Nunc Pro Tunc, arguing

that Mother’s placement in the drug rehabilitation facility hindered her ability

to file timely Notices of Appeal from the termination Order. On October 31,

2019, the trial court granted Mother’s Motions to appeal nunc pro tunc.
J-S11044-20

- 5 -

her incarceration5 has presented difficulties in parenting the Children. Id. at

10. Mother recognizes that she was unable to attend multiple scheduled visits

with the Children because of her incarceration, but argues that CYS “did not

afford her visits with the [C]hildren while she was incarcerated or in a drug

rehabilitation facility.” Id. at 11-12. Mother asserts that, even while

incarcerated, she would regularly send the Children cards and letters, sought

to work with the IFS program, and took parenting classes. Id. at 12. Further,

Mother states that when she was not incarcerated, in drug rehabilitation, or

subject to an active warrant, she would participate in visits with the Children

and regularly talk to the Children via telephone. Id. Moreover, Mother asserts

that she has recognized the severity of her need for drug rehabilitation, and

is taking steps to remedy the issue through her stay at the drug rehabilitation

facility. Id. Finally, Mother argues that even if the statutory requirements of

section 2511 have been met, the termination of her parental rights would not

serve the needs and welfare of the Children based on her parental bond with

the Children. Id. at 12-13.

Regarding our review of termination orders, we have stated as follows:

[E]ven 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

____________________________________________

5 Mother testified that she has been in and out of prison and inpatient drug

rehabilitation facilities from September 2017 to the date of the termination

hearing in September 2019, excepting a four-month period from December

2018 to April 2019. N.T., 9/6/19, at 111-12.
J-S11044-20

- 6 -

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) (citation 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).

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), along

with consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004). The trial court considered section 2511(a)(1), (2) and (b),

which 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:

(1) The parent by conduct continuing for a period of at

least six months immediately preceding the filing of the

petition either has evidenced a settled purpose of

relinquishing parental claim to a child or has refused or

failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect

or refusal of the parent has caused the child to be without

essential parental care, control or subsistence necessary

for his physical or mental well-being and the conditions and

causes of the incapacity, abuse, neglect or refusal cannot

or will not be remedied by the parent.

* * *
J-S11044-20

- 7 -

(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.A. § 2511(a)(1), (2), (b). With respect to subsection 2511(a)(1), our Supreme Court has held as

follows.

Once the evidence establishes a failure to perform parental duties

or a settled purpose of relinquishing parental rights, the court

must engage in three lines of inquiry: (1) the parent’s explanation

for his or her conduct; (2) the post-abandonment contact between

parent and child; and (3) consideration of the effect of termination

of parental rights on the child pursuant to Section 2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

Further, this Court has stated:

the trial court must consider the whole history of a given case and

not mechanically apply the six-month statutory provision. The

court must examine the individual circumstances of each case and

consider all explanations offered by the parent facing termination

of his or her parental rights, to determine if the evidence, in light

of the totality of the circumstances, clearly warrants the

involuntary termination.

In re B.,N.M., 856 A.2d 847, 854-55 (Pa. Super. 2004) (citations omitted).

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
J-S11044-20

- 8 -

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. See 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 has addressed the termination of parental rights of

incarcerated parents under section 2511(a)(2), stating that “incarceration,

while not a litmus test for termination, can be determinative of the question

of whether a parent is incapable of providing essential parental care, control,

or subsistence.” In re Adoption of S.P., 47 A.3d at 830 (citation and internal

quotation marks omitted). Particularly, “the length of the remaining

confinement can be considered as highly relevant to whether the conditions

and causes of the incapacity ... cannot[,] or will not[,] be remedied by the

parent, sufficient to provide grounds for termination pursuant to 23

Pa.C.S.[A.] § 2511(a)(2).” Id. (internal quotation marks omitted).

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). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
J-S11044-20

- 9 -

2008). 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.[A.] § 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 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).

When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well. Additionally, section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

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).

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

concluding 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
J-S11044-20

- 10 -

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 or her] mental and emotional

health than the coincidence of biological or natural parenthood.

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 In re K.Z.S., 946 A.2d at 763 (affirming involuntary

termination of parental rights, despite existence of some bond, where

placement with mother would be contrary to child’s best interests). “[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) (internal citations omitted). This Court has

explained that a parent’s own feelings of love and affection for a child, alone,

do not prevent termination of parental rights. In re Z.P., 994 A.2d at 1121.

It is well-settled that “we will not toll the well-being and permanency of [a

child] indefinitely.” In re Adoption of C.L.G., 956 A.2d at 1007 (citing In

re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that 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.”)).
J-S11044-20

- 11 -

In considering section 2511(a)(1), (2), and (b), the trial court stated as

follows:

15. The [trial court] recognizes that [Mother] is also

attending drug and alcohol [rehabilitation], a 13-month

program, a very restrictive program, which has a six- month aftercare plan. If she completes it, she will have

come a long way. However, that is a big “if” based upon

her prior history. Secondly, how long do these [C]hildren

have to wait for permanency? It has already been 27

months since placement[,] and they need and deserve

permanency.

16. These parents were each given an additional six

months to show progress and neither did. It was only after

the [P]etitions were filed that [Mother] began attending

[inpatient drug rehabilitation]. How long will these positive

efforts last? It is obvious to the [trial court] that these

parents love their [C]hildren, but that love has not

translated into changing their behavior long term. As

noted, CYS even kept providing services after the goal

change to adoption. It didn’t result in any positive change.

17. [CYS] has established a legal basis for terminating

the parental rights of [Mother] and [Father].

* * *

19. The testimony concerning a bond between [Mother

and Father] and each child is at variance. [Crouse] opines

that there are no bonds. [Gelles] says as to [Mother] that

there is a bond between [Mother] and the [C]hildren. [The

trial court], based upon the length of time the [C]hildren

have been in placement and the interaction of the parents

and [C]hildren as described by [Crouse], finds that there

are no bonds. Further, the [trial court] finds that there are

strong bonds between the foster parent and the [C]hildren,

all three of whom live together in placement. These three

[C]hildren are doing well in placement.

20. In terminating the parental rights of these parents,

[the trial court] has found that this will best meet the
J-S11044-20

- 12 -

developmental, physical, and emotional needs and welfare

of the [C]hildren.

Trial Court Order, 9/24/19, at 12-15.

Pursuant to section 2511(a)(1), the trial court considered testimony

establishing that, for at least the six months preceding the filing of the

termination Petition, Mother displayed a settled purpose to relinquish her

parental rights and/or refused or failed to perform her parental duties with

regard to the Children. The trial court also considered Mother’s explanation

for her conduct, consisting of her running from the law and her history of

incarcerations, and her substance abuse. The trial court considered Mother’s

post-abandonment contact with the Children, consisting of phone calls and

attending visits with the Children only when she was not incarcerated or had

active outstanding warrants. N.T., 9/6/19, at 63-64, 120. The trial court

considered that Mother sent letters and cards to the Children when she was

incarcerated. Id. at 47, 113-14.

With regard to section 2511(a)(2), the trial court found that Mother’s

lack of progress with her court-ordered goals, and her incarcerations and time

spent in drug rehabilitation facilities had caused the Children to be without

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

mental well-being. The trial court had ordered Mother to attend her mental

health, as well as drug and alcohol, assessments, and to comply with

recommendations throughout the history of the case, but she failed to

successfully do so. Id. at 34-35. The trial court credited the testimony of
J-S11044-20

- 13 -

Crouse, who testified that Mother was unable to provide a safe, stable home

for the Children, or stable employment to provide for the Children. Id. The

trial court also considered the testimony of Gelles, who testified that, although

the Children and Mother love each other, termination was in the best interest

of the Children because of Mother’s inability to care for the Children, and

Mother’s lack of progress in demonstrating an ability to care for them. Id. at

73-74. Accordingly, the trial court’s determination that CYS satisfied the

requirements of section 2511(a)(1) and (2) is supported by competent

evidence in the record. In re Adoption of S.P., 47 A.3d at 826-27; In re:

T.S.M., 71 A.3d at 267.

Moreover, the trial court also considered the effect of termination of

Mother’s parental rights on the Children pursuant to section 2511(b). The trial

court found that the termination of Mother’s parental rights would have no

negative effect on the Children based on Mother’s failure to address the

Childrens’ needs, welfare, and best interests while the Children had been in

foster care. See N.T., 9/6/19, at 29. The trial court credited Crouse’s

testimony that, based on her observations of the Children, the Children have

bonded with their foster mother and foster mother’s family; the Children are

not visibly upset when visits with their parents would end; the Children are

not bonded to Mother; and that termination would not cause the Children

emotional harm, but would instead promote their emotional, physical, and

developmental needs and welfare. Id. at 30-36, 39, 47, 58-60. Further, the
J-S11044-20

- 14 -

trial court credited Gelles’s testimony, wherein he stated his belief that the

Children would not be emotionally harmed by termination, despite the mutual

love between Children and Mother, considering the Childrens’ level of bonding

and comfort with the foster parent. Id. at 73-75.

After a careful review, we conclude that competent evidence in the

record supports the trial court’s factual findings regarding section 2511(a)(1), (2), and (b), and its conclusions are not the result of an error of law or an

abuse of discretion. See In re Adoption of S.P., 47 A.3d at 826-27; In re:

T.S.M., 71 A.3d at 267. We therefore affirm the Order terminating Mother’s

parental rights with regard to the Children under section 2511(a)(1), (2), and

(b).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/11/2020