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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: P.T.M. AND K.L.M., MINORS

APPEAL OF: J.H. AND C.N.M., FATHER AND MOTHER : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1539 MDA 2017 Appeal from the Decree Entered September 5, 2017 i n the Court of Common Pleas of Lancaster County , Orphans ’ Court at No(s): 0287

- 2017

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAR CH 21, 2018 J.H. ( “ Father ” ) and C.N.M. ( “ Mother ” ) appeal from the D e c r ee entered on September 5, 2017, granting the P etition filed by the Lancaster County Children and Youth Social Service Agency ( “ Agency ” ) to terminat e their parental rights to their minor, femal e child, K.L.M. ( “ K ” ) (born in April of
2015 )

. Mother additionally challenges the termination of h er parental rights
her minor, m ale child, P.T.M. ( “ P ” ) (born in June of 2009 ). 1 After careful review, we vacate and r emand for additional proceedings in the trial court

.

_________________ __________ ______ ____ _______
1 P ’ s father is R.F.M., whose paternal rights to P were voluntarily terminated by a D ecree entered on June 5, 2017. Trial Court Opinion, 11/2/17, at 1 n.1. R.F.M. has not filed an appeal from the termination of his parental rights, nor is he a party to the instant appeal.J

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In its Opinion, the trial court summarized the factual and procedural history underlying the instant appeal , which we adopt as though fully restated
herein

. See Trial Court Opinion, 11/2/17, at 1

- 1 4. On September 5, 2017, the trial court entered its D ecree terminating the parental rights of Mother to P , and of Mother and Father to K. On October 3, 2017, both parents filed a joint, single N otice of a ppeal from the D ecree , along with a C oncise S tatement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b)

. 2
Father and Mo ther argue that the Agency did not establish , by clear and convincing evidence , the grounds for termination pursuant to 23 Pa.C.S. A. § 2511(a) (1), (2), (5), and/or (8)

. Brief for Appellants at 15

- 57. Father and
Mother further contend that , e ven if the Agency established by clear and convincing evidence grounds for termination pursuant to 2 3 Pa.C.S. A.

_________________ __________ ______ ____ _______
2 On April 16, 2013, the Note to Pa.R.A.P. 341 was amended to state that , where one or more orders resolves issues arising on more than one docket or relating to more than one judgment, an appellant must file se parate notices of appeal from each order or judgment. See Pa.R.A.P. 341 , Note . In General Electric Credit Corp. v. Aetna Casualty and Surety Co. , 263 A.2d 448, 452 ( Pa. 1970), the Pennsylvania Supreme Court stated that “ taking one appeal from several jud gments is not acceptable practice and is discouraged. ” In Commonwealth v. C.M.K. , 932 A.2d 111 , 113 (Pa. Super. 2007), this Court quashed a joint notice of appeal filed by co

- defendants from separate judgments of sentence, citing General Electric , supra and Pa.R.A.P. 512 , Note

. Father and Mother should have filed a separate notice of appeal from the termination D ec rees as to each child , and had the appeals entered on separate dockets. I f they had done so, the appeals would have been consolidated for th e convenience of the panel and the parties , in any event

. See Pa.R.A.P. 513

. We, therefore, do not find the appeals defective, and will address them.J

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§ 2511(a), the Agency did not establish, by clear and convincing eviden ce , the 23 Pa.C.S. A. § 2511(b) requirement, i.e. , that the developmental, physical
and emotional needs and welfare of the children would not be harmed by termination of parental rights. Brief for Appellant s at 52. Father and Mother
assert that the case should be remanded for a proper subsection (b) analysis. In reviewing an appeal from the termination of 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

. In re: R.J.T. , 608 Pa. 9, 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. Id. ; R.I .S. , 36 A.3d [ 567, ] 572 [ (Pa. 2011) (pluralit y opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id. ; see also Samuel Bassett v. Kia Motors America, Inc. , 613 Pa. 371 , 34 A.3d 1, 51 (Pa. 2011); C hristianson v. Ely , 575 Pa. 647 , 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill

- will. Id.
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, even where the facts could support an opposite result, as is often the case in dependen cy 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 factualJ

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findings are supported by the rec ord and the court ’ s legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio , 539 Pa. 161, 650 A.2d 1064, 1066 (Pa. 1994). In re Adoption of S.P
. , 47 A.3d 817, 826

- 27 ( Pa. 2012). 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). “ T he standard of clear and convincing evidence is defined as te stimony 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)).
Thi s Court may affirm the trial court ’ s decision regarding the termination of parental rights with regard to any one subsection of section 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: (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 ref usal 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 andJ

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- causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

* * * (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
* * * (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

* * * (b) Other considerations. -- The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environme ntal 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.J

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With respect to subsection 2511(a)(1), our Su preme 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 betw een 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 directed that
the trial court mu st 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 h er 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).

T o satisfy the requirements of sub 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 withou t 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
sub section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary , those grounds mayJ

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include acts of refusal as well as incap acity to perform parental duties. In re

A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
When we review the trial court ’ s analysis of sub section 2511(a)(5), we consider the following:
Under [subsection] 2511(a)(5), we, thus, review the record to determine whether [a child has] been removed from [the parent] for six months and whether [the parent] can remedy the conditions leading to the removal of [the child]. See [] In the Interest of Lilley

, 719 A.2d 3 27, 334 (Pa. Super. 1998) (the child has been removed from the parents by the court and the conditions which led to placement of the child continue to exist and have not been remedied within a reasonable time and termination of parental rights would best s erve the needs and welfare of the child). We also note that in considering the importance of stability to a child ’ s welfare, the reasons why the child has been with the third party for so long must be taken into account. In Re: Adoption of Steven S. , 417 Pa. Super. 247, 612 A.2d 465, 471 (1992), appeal denied, 533 Pa. 661, 625 A.2d 1194 (1993). In re Adoption of T.B.B. , 835 A.2d 387, 395 (Pa. Super. 2003). Further, to terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8), it must be demonstrat ed that “ (1) [t]he child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve th e needs and welfare
of the child. ” In re Adoption of M.E.P. , 825 A.2d at 1275

- 76

. “Section 2511(a)(8) sets a 12

- month time frame for a parent to remedy the conditions
that led to the children ’ s removal by the court. ” In re A.R. , 837 A.2d 560, 564 (Pa. Super. 2003). Once the 12

- month period has been established, theJ

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trial court must next determine whether the conditions necessitating placement persist, despite the reasonable good faith efforts Agency supplied over a realistic pe riod of time. Id. Terminating parental rights under
sub section (a)(8) does not require the trial court to evaluate a parent ’ s current

“ willingness or ability to remedy the conditions that initially caused placement. ” T.B.B. , 835 A.2d at 396 (citation om itted). In its Opinion, the trial court provided a comprehensive summary and analysis of the evidence supporting termination pursuant to subsections (a)(1), (2) , (5), and (8). See Trial Court Opinion, 11/2/17, at 2

- 14, 15

- 19.
Our review discloses that t he trial court ’ s decision to terminat e the parental rights of Father and Mother under sub section s (a) (1), (2), (5 ) , and (8), is supported by competent, clear and convincing evidence in the record , and we discern no abuse of discretion in this regard

. We therefore adopt the trial

court ’ s Opinion as to termination of Father ’s and Mother’s parental rights
pursuant to subsections ( a)(1), (2), (5) and (8). See Trial Court Opinion, 11/2/17, at 15

- 19. Next, we address Father ’ s and Mother ’ s claim that the trial court abused its discretion in terminating their parental rights to their children pursuant to section 2511(b). See Brief for Appellant s at 50

- 55. Father and Mother assert that the trial court improperly failed to conduct a separate analysis pursuant

to sub secti on (b), requiring remand to the trial court for a full analysis pursuant to that subsection. See id. at 55.J

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T he focus in terminating parental rights under sub section 2511(a) is on the parent, but it is on the child pursuant to sub section 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 the following:

[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 inclu de

“ [i]ntangibles such as love, comfort, security, and stability. ” 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 an d 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) (citation omitted)

. 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
ci tations 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:J

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A child ’ s feelings toward a parent are relevant to the section 2511(b) analysis. Nonetheless, 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 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 betwee n [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 d evelopment 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). “ [A] parent ’ s basic cons titutional 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 at 856 (internal citations omitted). With regard to section 2511(b), the trial court stated the following: When the Agency has met its burden under [s] ection 2511(a), the [c]ourt must al so look to the requirements of [s] ection 2511(b) before terminating any parental rights. “ 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 cou rt shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequentJ

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to the giving of notice of the filing of the petition. ” [FN] 23 Pa.C.S. A. § 2511(b). Section 2511(b) centers judicial inquiry u pon the welfare of the child rather than the fault of the parent. In re A.R. , 837 A.2d [at 565]

. “ Considering what situation would best serve the child ’ s needs and welfare, the court must examine the status of the bond between the natural parent and the child to consider whether terminating the parent ’ s rights would destroy an existing, necessary and beneficial relationship. ” [ T.B.B. , 835 A.2d at 396]. On appeal, the parents assert that the [c]ourt ’ s Order is not supported by evidence, and not in the b est interests of the children. A review of the record, however, indicates otherwise.

___________________________________________________ [FN] The parents ’ Concise Statement asserts that this final sentence of section 2511(b) violates their due process an d equal protection rights because the Agency can still use the setbacks and failures, occurring after the Petition is filed, against the parents. The [c]ourt notes that, in this matter, both the progress and setbacks or failures of these parents occurred before the February 2017 Petition was filed; that the setbacks or failures continued afterwards did not alter the [c] ourt ’ s decision. Trial Court Opinion, 11/2/17, at 15

- 16 (footnote in original).

A lthough the trial court stated that the termination of Father ’ s and
Mother ’ s parental rights was in the best interests of the children, it failed to
discuss sub section (b) with regard to the evidence of record . Rather, the trial

court focused its analysis of the evidence strictly on sub section (a). A
consid eration of both sub section s (a) and (b) is necessary for the involuntary termination of parental rights. Therefore, we are constrained to vacate the

D ecree, and remand the matter to the trial court for a full section 2511(b) analysis. See T.S.M. , supra ; In re K.Z.S. , supra
. On remand, the trial court has the discretion to take additional testimony and receive more evidence to complete the s ection 2511(b) bestJ

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interests analysis. Accordingly, although we discern no abuse of the trial

court ’ s discretion w ith regard to 23 Pa.C.S.A. § 2511(a), we vacate the Decree
and remand the case for the trial court ’ s consideration and analysis under 23 Pa.C.S.A. § 2511(b). The trial court shall hold further evidentiary proceedings, if necessary, and then enter a new decree. 3
Decree vacated . Case remanded with instructions. Jurisdiction

r elinquishe d

.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/21/2018

_________________ __________ ______ ____ _______
3 Because of our disposition, we do not reach the parents ’ argument concerning whether the second portio n of section (b) is unconstititutional as violative of the guarantee to due process, and the trial court ’ s reasoning for rejecting that argument. See Trial Court Opinion, 11/2/17, at 15 n.5, supra
.