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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P . 65.37 In the Interest of: K.N.H. a/k/a K.H., a Minor , : : IN THE SUPERIOR COURT OF

PENNSYLVANIA : : : : : APPEAL OF: S.K.D. a/k/a S.G. a/k/a S.K.G. a/k/a S.D., a Mother , : : No. 1724 EDA 2015 Appeal from the Order May 11, 2015 in the Court of Common Pleas of Philadelphia County, Family C ourt Division, No(s): CP
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- 0000712
- 2014; CP
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- DP
- 0001129
- 2013; FID: 51
- FN
- 002207
- 2013 BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED JANUARY 28, 2016 S.K.D. a/k/a S.G. a/k/a S.K.G. a/k/a S.D. (“Mother”) appeals from the Order granting the Petition filed by the Department of Human Services (“DHS”) to involuntarily t erminate her parental rights to her minor child, K.N.H. a/k/a K.H. (“Child”), a daughter born in August 2011, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). 1 We affirm. The trial court aptly summarized the factual and procedural history of this case, which we adopt for the purposes of this appeal. See Trial Court Opinion, 9/9/15, at 1
- 5. Relevantly, in May 2013, DHS received a report from General Protective Services that Mother was found passed out in a shopping mall

1 DHS also included M.H. (“Father”) in its Petition for involuntary termination of parental rights. In May 2015, Father signed voluntary relinquishment petitions.J
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bathroom while with C hild, who was two years old at the time. Mother was transported to the hospital, and it was determined that she had overdosed on heroin. Mother left the hospital that day against medical advice. DHS obtained an Order of Protective Custody, and Child was temporarily placed at Baring House before being placed with her paternal grandparents. On June 10, 2013, the Child was adjudicated dependent. In the approximately 2 years that followed, Mother was incarcerated on three separate occasions. Mother refuse d to participate in visitations with Child while she was in prison. While Child was in the custody of DHS, Mother did not complete her Family Service Plan (“FSP”) objectives and only visited Child 7 times. In December 2014, DHS filed an Involuntary Termi nation of Parental Rights (“ITPR”) Petition under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). The trial court conducted a hearing on the Petition on May 11, 2015. As Mother was in prison awaiting trial, she participated via telephone. After hear ing the evidence, the trial court terminated Mother’s parental rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Mother filed a timely Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement. On appeal, Moth er raises the following questions for our review: I. Whether the trial court committed reversible error when it involuntarily terminated Mother’s parental rights where suchJ
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determination was not supported by clear and convincing evidence under [] 23 Pa.C.S .A. § 2511(a)(1), (2), (5), and (8)? II. Whether the trial court committed reversible error when it involuntarily terminated Mother’s parental rights without giving primary consideration to the effect that the termination would have on the developmental, physical and emotional needs of [C]hild as required by [] 23 Pa.C.S.A. § 2511(b)? Mother’s Brief at 4. We review an appeal from the termination of parental rights in accordance with the following standard: In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court’s factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court’s order only if we conclud e that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge’s decision is entitled to the same deference as a jury verdict. In re L.M. , 923 A.2d 505, 511 (Pa. Super. 2007) (cit ations omitted). Termination of parental rights is controlled by section 2511 of the Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner “to prove by clear and convincing evidence that its asserted grounds for seeking the terminatio n of parental rights are valid.” In re R.N.J. , 985 A.2d 273, 276 (Pa. Super. 2009). “[C]lear 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, wi thout hesitance, of the truth of the precise facts in issue.” Id. (citation and quotation marks omitted). Further, the “trial court is free to believe all, part, or none of the evidenceJ
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presented and is likewise free to make all credibility determination s and resolve conflicts in the evidence.” In re M.G. , 855 A.2d 68, 73
- 74 (Pa. Super. 2004). If the competent evidence supports the trial court’s findings, “we will affirm even if the record could also support the opposite result.” In re Adoption of T.B. B. , 835 A.2d 387, 394 (Pa. Super. 2003). Satisfaction of any one subsection of Section 2511(a), along with consideration of Section 2511(b), is sufficient for the involuntary termination of parental rights. In re B.L.W. , 843 A.2d 380, 384 (Pa. Super. 200 4) ( en banc ). In this case, we will review the trial court’s decision to terminate Mother’s parental rights based upon Section 2511(a)(1) and (b), which state the following: § 2511. Grounds for involuntary termination. (a) General rule.
— The rights of a p arent 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. * * * (b) Other considerations.
— The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and em otional 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 notJ
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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.

Parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties. ... [P]arental duty is best understood in relation to the needs of a child. ... [T]his court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty ... requires a continuing interest in the child and a genuine effort to maintain communication and association with the child. In the Interest of J.T. , 983 A.2d 771, 776
- 77 (Pa. Super. 2009) (internal quotations and citations omitted). In regard to incarceration and the preservation of parental rights, we have stated the following: [I]ncarceration of a parent does not, in itself, provide sufficient grounds for termination of parental rights; however, an incarcerated parent’s responsibilities are not tolled during [her] incarceration. ... [P]arental duty requires that the p arent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent
- child relationship to the best of [her] ability, even in difficult circumstances. In the Interest of C.S. , 761 A.2d 1197, 1201 (Pa. S uper. 2000) (citations omitted); see also In re S.P. , 47 A.3d 817, 828 (Pa. 2012). Further, [a] parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the p ath 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 responsibilities while others provide the child with his or her physical and emotional needs.J
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In re K.Z.S. , 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted). In her first claim, Mother asserts that the trial court erred in granting the ITPR Petition because DHS did not satisfy by clear and convincing evidence that her parental rights should be terminated under Section 2511(a). Mother’s Brief at 9. As to the requirements of subsection (a)(1), Mother argues that she completed her FSP objectives by participating in parenting classes, anger management classes, and an in
- patient drug and alcoho l program while she was in prison. Id. at 12. Mother claims that she declined visitation with Child while she was in prison because she did not think it was in Child’s best interests. Id. Mother also claims that she maintained communication with Child by sending letters and cards, and by asking Child’s paternal grandparents and DHS about Child’s welfare. Id. at 12
- 13. The trial court appropriately applied Section 2511(a)(1) to this case, and we adopt its Opinion as to that subsection for the purposes of this appeal. 2 See Trial Court Opinion, 9/9/15, at 7
- 8; see also In re B., N.M. , 856 A.2d 847, 858 (Pa. Super. 2004) (concluding that father showed a settled purpose of relinquishing his parental rights where he sat idle for most of child’s life while m other performed all parental duties, and that father’s wish to not have his “parental rights terminated was insufficient to protect

2 Additionally, we note that Mother’s only explanation for her conduct was that she “had a few bad years.” N.T., 5/11/15, at 38.J
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those rights without acting affirmatively to foster a parental relationship with [c]hild during his incarceration.”). In h er second claim, Mother argues that the trial court failed to give proper consideration of the effect of termination of her rights on Child’s needs and welfare according to Section 2511(b). Mother’s Brief at 14. Mother asserts that DHS social worker Moll y McNeill’s (“McNeill”) testimony that Child had no bond with Mother was inappropriate because McNeill only supervised one visit. Id. at 15. The trial court set forth the relevant law regarding Section 2511(b), and determined that it was in Child’s best interest to terminate Mother’s parental rights. See Trial Court Opinion, 9/9/15, at 12
- 13; see also In re T.S.M. , 71 A.3d 251, 268 (Pa. 2013) (stating that “courts considering termination must also consider whether the children are in a pre
- adoptive home and whether they have a bond with their foster parents.”). Upon our review, the trial court appropriately applied Section 2511(b) to this case, and we adopt its Opinion for the purposes of this appeal. See Trial Court Opinion, 9/9/15, at 12
- 13. Based upo n the foregoing, the trial court did not err in granting the ITPR Petition. Order affirmed.J
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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 1/28/2016I 

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# I Father's parental rights were also subsequ e ntly t e rminated pursuant to his signing voluntary relinqu i shments

. maint a in a relationship with the Child during the brief time periods when she was not in objectives , made little effort to be involved with her Child while incarcerated nor did she Child was in the custody of DHS , did not complete her Family Service Plan ( " FSP " ) terminated Mother's paren t al rights because Mother , during nearl y two (2) years that the the parent a l rights of Mother. 1 As discussed in greater detail below , the trial court merits , this Court found th a t clear and convincing e v idence was presented to terminate

. parental rights to her minor female child, K.H. ("Child"). After a full Hearing on the Philadelphia Department of Human Services ( ' DHS") involuntarily terminating her a nd Order entered by this Court on May 11, 2015, grant i ng the Petition filed by the S.K.D. a/k/a S.G. a/k/a , S.K.G

. a/k/a S.D. ( " Mother " ) appeals from the Decree , INTRODUCTION OPINION APPEAL OF: S.K.D. a/kla, S.G. a/k/a, S.K.G. a/k/a, S.D., Mother FAMILY COURT DIVISION JUVENILE BRANCH-DEPENDENCY CP-51-DP-0001129-2013 FN-002207-2013 Superior Court# 1724 EDA2015 IN RE: K.H., a Minor IN THE COURT OF COMMON PLEAS THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, PHILADELPHIA COUNTY Circulated 01/08/2016 03:00 PM

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2 June 10, 2013, Mother tested positive for marijuana. M o ther was incarcerated in Berks assessment with three random screens before the next court date. (DRO 6/10/2013). On Exhibit 2)

. On that date, Mother was ordered to t ake a forthwith drug screen and On June 10 , 2013, the Child was adjudicated Dependent. (DRO 6/10/2013, DHS 5/11/2015, p. 12)

. was placed temporarily at the Baring House and then with her grandparents

. (N.T

. the hospital that same day against medical advice. (N.T. 5/11/2015, p. 22). The Child determined that Mother's condition was a result of a heroin overdose , however she left she was dead due to her being unresponsive. (N.T. 5/11/2015, p. 11). It was was transported to Thomas Jefferson Hospital by paramedics who initially feared that bathroom at the Gallery Shopping Mall in Philadelphia. (N.T

. 5/11/2015 , p. 11). Mother report that Mother, while with her two year old daughter, was found passed out in a testified that on Ma y 30 , 2013 DHS received a General Protective Services ("GPS") Molly McNeill who was found to be a credible witness by this Court. Ms

. McNeill The City Solicitor first presented the testimony from D.H.S. social worker Terminate Mother ' s Parental Rights. Parental Rights. On May 11, 2015, this Court heard testimony on DHS's Petition to On December 30, 2014, DHS filed a Petition to Involuntarily Terminate Mother's TERMINATION HEARING doing well in the pre-adoptive home of her paternal grandparents

. custody. Furthermore , the Child, who was 4 years old at the time of the hearing, wasI 

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### I i incarceration , Mother was admitted into an inpatient drug and alcohol detox program 

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. (N .T. 5/1 1/2015, p. l 7

. \ Ms. McNeill also testified that upon her release from Lebanon County Jail in 

# I 5/11/2015 , p. 23). On September 12, 2014, Mother was released from Lebanon County Mother by phone about her FSP objectives and mailed her a copy of her objectives. (N.T. participated in by phone. (N.T. 5/11/2015, p. 23). At that time Ms. McNeill spoke with (N.T. 5/11/2015, p. 15)

. In June 2014, an FSP meeting was held in which Mother On February 5 , 2014, Mother was again incarcerated in Lebanon County Jail.

Jail. (N.T. 5/11/2015, p . 15). During her incarceration, Mother chose not to participate in Ordered drug screens since testing positive for marijuana in June 2013. Additionally , Ms. McNeill testified that Mother did not avail herself of any of the CourtMother did not visit her Child again until December 2, 2013. (N.T. 5/11/2015, pp.13-14). arranged for Mother and took place on August 10 , 2013. (N.T. 5/11/2015, pp . 13-14)

. opportunity to visit with her Child. (N.T. 5/11/2015, p.29). A supervised visit was supervised bi-weekly visits. (N.T. 5/11/2015, p.13). Mother failed to avail herself of the July 26, 2013, following her release from prison at which time Mother was offered (N.T. 5/11 / 2015, p. 12)

. Ms. McNeill testified that she got in contact with Mother on alcohol treatment, maintain recovery and follow all recommendations for her recovery. Objectives were established for Mother in July 2013. Mother was to engage in drug and County Prison from June 21, 2013 until July 5 , 2013. (N.T. 5/11/2015 , p . 13)

. Initial FSP 

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4 Mother also testified via phone at which time she admitted that she never 21-22). concluded that it would be in the Child's best interest to be adopted. (N.T. 5/11/2015, pp. nearly two (2) years. (N.T. 5/11/2015, pp.21-24). Based upon these facts, Ms. McNeill contrary, the Child had no bond with Mother who had only seen the Child seven times in her grandparents who were meeting all of her needs. (N.T. 5/11/2015, pp.21-23). To the p.21 ). Ms. McNeill based her opinion upon the fact that the Child was well bonded with irreparable harm if Mother's rights were to be involuntarily terminated. (N.T. 5/11/2015, Finally, Ms. McNeill testified that, in her opinion, the Child would not suffer any and related offenses. (N.T. 5/11/2015, p.20). Assault, Theft by Receiving Stolen Property, Driving Under the Influence, Fleeing Police On January 12, 2015, Mother was again arrested and incarcerated for Aggravated different addresses and did not have stable housing. (N.T. 5/11/2015, p.18). 5/11/2015, pp.17-18, 20). Additionally, Ms. McNeill testified that Mother had several documentation that Mother had completed any drug and alcohol programs. (N.T. of probation. (N.T. 5/11/2015, p.18). Ms. McNeill stated that she never received any included parenting, housing, visitation and to comply with Court Orders and conditions Ms. McNeill testified that additional FSP objectives were added for Mother which January 2015. (N.T. 5/11/2015, p. 17). two (2) times in November 2014, two (2) times in December 2014 and one (1) time in 5/11/2015, p.16). Despite being offered this opportunity, Mother only visited her Child September 2014, Mother was offered supervised visits with the Child at the agency. (N.T.

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5 4. The trial court abused its discretion and committed legal error in terminating mother ' s parental rights under 23 Pa

. C.S.§251 l(a)(8) because the Department of Human Services to prove by clear and convincing evidence that the conditions which led to the child's placement continued to exist. 3

. The trial court abused its discretion and committed legal error in terminating mother's parental rights under 23 Pa.C.S.§251 l(a)(5) because the Department of Human Services to prove by clear and convincing evidence the present and continued incapacity of mother to provide essential care necessary for her child's physical and mental well-being. 2. The trial court abused its discretion and committed legal error in terminating mother's parental rights since the Department of Human Services did not meet : its burden by clear and convincing evidence of establishing sufficient grourids · under 23 Pa.C.S.§2511 (a)(2). 1. The trial court abused its discretion and committed legal error in terminating mother ' s parental rights since the Department of Human Services did not meet its burden by clear and convincing evidence of establishing sufficient grounds that mother had evidenced a settled purpose of relinquishing a claim to her child or had refused or failed to perform parental duties under 23 Pa.C.S. § 2511 (a)(l). following: In her Statement of Matters Complained of on Appeal, Mother a v ers the APPELLANT'S ARGUMENTS this Court granted D HS' s Petition to Terminate Parental Rights of Mother. stability with her grandparents. (N.T. 5/11 / 2015, pp . 38-39). At the end of the Hearing, that she recognized that her daughter was where she needed to be and that her Child had 5/11/2015, p . 37)

. Furthermore, in reference to her Child's placement , Mother testified in an inpatient program for about 3 weeks but left because she was angry. (N.T. completed a drug and alcohol program. (N.T. 5/11/2015, p.36). She testified that she wasI 

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6 Mother ' s failure for two (2) years to meet her FSP objectives, her decision not to be terminate Mother's parental rights under §251 l(a)(l),(2), (5) , and (8). In light of A.3d 601 , (Pa

. Super. 2012)

. In the instant case , DHS ' s Petition asked the Court to grounds for seeking termination of parental rights are valid

. In the Interest ofB.C. , 36

. cases , the burden is upon DHS to prove b y clear and convincing evidence that its asserted • · Termination of parental rights is governed by 23 Pa.C.S.A. §2511. In termination A. The Trial Court Properly Found that the Department of Human Services Met Its Burden by Clear and Convincing Evidence To Terminate Mother's Parental Rights Pursuant

to 23 Pa.C.S.A

. §2511(a)(l), (2), (5) and (8). affirm a termination of parental rights

. In re D

. A.T

. , 91 A.3d 197 (Pa. Super. 2014). Trial Court's decision as to any one subsection under 23 Pa

. C

. S

. A. §251 l(a) in order to would give to a jury v erdict. The Pennsylvania Superior Court need only agree with a · Appellate Court must a ccord the hearing judge's decision the same deference that it Where a Trial Cou r t has g ranted a Petition to Involuntaril y Terminate Parental Rights , an insufficient evidentiary support for the Trial Court's decision , the Decree must stand. supported by competent evidence

. Absent an abuse of discretion, an error of law , or Appellate Court is limited to determining whether the decision of the Trial Court is When reviewing an Appeal from a Decree terminating parental rights , an STANDARD OF REVIEW 5

. The trial court did err in terminating mother's parental rights since the Department of Human Services did not meet its burden by clear and convincing evidence of showing that the best interest of the child was served by terminating mother's parental rights pursuant to Section 2511 (b) of the Adoption Act.



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7 above, Mother failed to participate in visitation with her Child. These minimal objectives an inpatient rehabilitation program after 3 weeks because she was angry. Also, as stated completing drug and alcohol treatment. Mother completed a detox program but then left Most importantly, Mother, by her own admission, never completed her major goal of comply with her FSP objectives. Mother failed to obtain suitable housing for her Child. Mother's refusal to parent was also demonstrated by the fact that Mother failed to agency, Mother only visited her Child seven (7) times. her Child when she was not incarcerated. Despite being offered supervised visits at the she chose not to be involved in her Child's life. Mother was offered supervised visits with parental duties. Mother was incarcerated for half of the Child's life during which times settled purpose of relinquishing parental claim to the Child and failed to perform any The Trial Court found clear and convincing evidence that Mother demonstrated a A.2d 771 (Pa. Super. 2009). parental claim to a child or fails to perform parental duties." In the Interest of J.T., 983 at least six months, a parent either demonstrates a settled purpose of relinquishing Section 2511 (a)(l) provides that "parental rights may be terminated, if, for a period of 1. The Trial Court properly granted the Petition pursuant

to 23 Pa.C.S.A §2511(a)(l). incarcerated, the Trial Court properly granted DHS's Petition to Terminate. and maintain a relationship with the Child during the brief period time that she was not involved in the life of the Child while incarcerated, and her minimal efforts to establish,f 

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8 (1 ). these reasons, the trial court found that DHS met its burden under 23 Pa.C.S.A. §2511 (a) relinquishing parental claim to the Child and failed to perform her parental duties. For Consequently, this Court concluded that Mother demonstrated a settled purpose of decision to terminate parental rights of incarcerated father). 2008 PA Super 131, 952 A.2d 680, 682-683 (Pa. Super. 2008)(affirming trial court's caused the Child to be without essential parental care. See In re: Adoption of W.J.R., relationship with the Child demonstrated incapacity, abuse, neglect, or refusal which her Child. Mother's refusal to comply with her minimal FSP objectives and to maintain a Mother did not utilize any resource available to her to maintain a relationship with a close relationship with the child. Id. incarcerated, utilized those resources available while he or she was in prison to maintain incapability under subsection (a)(2), the Court must inquire whether the parent, while With respect to failure to perform parental duties under subsection (a)(l), as well as child's life." Adoption of Baby Boy A., 512 Pa 517, 517 A.2d 1244, 1246 (Pa. 1986). parental rights must exert himself to take and maintain a place of importance in his Super 214, 737 A.2d 283, 286 (Pa. Super. 1999). Further, "[a] parent desiring to retain incarceration alone is not sufficient to support termination under any subsection, Mother was incarcerated during half of the lifetime of the Child. While

"parental responsibilities are not tolled during incarceration." In re: D.J.S., 1999 PA made little if any effort to fulfill these objectives. would have demonstrated Mother's interest in caring for her Child. However, Mother

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I j 9 being. In re Z.P ., 994 A.2d 1108 (Pa. Super. 2010).essential parental care, control or subsistence necessary for his physical or mental wellperform parental duties, but instead emphasizes the child's present and future need for Unlike §2511 ( a)(l ), §2511 ( a)(2) does not emphasize a parent's refusal or failure to parental incapacity that cannot be remedied, are "not limited to affirmative misconduct." The grounds for termination of parental rights under 23 Pa.C.S.A. 2511 (a) (2), due to re: Adoption of K.J., 938 Pa. Super at 1133. of the incapacity, abuse, neglect or refusal cannot or will not be remedied." See also In abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the 251 l(a)(2) as requiring the Petitioner to prove "(l ) repeated and continued incapacity, enunciated the fundamental test in termination of parental rights under what is now

child to be without essential parental care, control or subsistence; and (3) that the causes The Supreme Court, in In re Geiger, 459 Pa. 636, 331 A.2d 172, 174 (1975), incapacity to perform parental duties." In Re: N.A.M., 33 A.3d 95 (Pa. Super. 2011). misconduct; "to the contrary those grounds may include acts of refusal as well as parent." 23 Pa.C.S.A. §251 l(a) (2). These grounds are not limited to affirmative causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the or subsistence necessary for his physical or mental well-being and the conditions and or refusal of the parent has caused the child to be without essential parental care, control Section 251 l(a) (2) requires that "repeated and continued incapacity, abuse, neglect pursuant to 23 Pa.C.S.A. § 251l(a) (2). 2. The Trial Court properly granted the Petition to Terminate Parental Rights

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10 1266 (P a. Super. 2003). Mother has shown a "repeated and continued incapacity and ability to handle the responsibilities of parenting. In re: Adoption of M.E.P ., 825 A.2d A child's life ma y not be put on hold in the hope that the parent will summon the related offenses. Theft by Receiving Stolen Property , Driving Under the Influence , Fleeing Police and Hearing , Mother was back in prison awaiting Trial on charges of Aggravated Assault , she was able to provide proper parental care for her Child

. At the time of the Termination receiving necessary drug and alcohol treatment. Further, Mother never demonstrated that in the near future

. Mother had never obtained suitable housing for the Child and was not Finally , the Court was not persuaded that Mother could resolve her dependency issues physical or mental well-being

. demonstrated that Mother left her young Child without parental care necessary for her addit i on, there is no question that Mother ' s failure to maintain contact with the Child when the Child was in foster care demonstrated her incapacity and refusal to parent. In and refusal to parent. The Mother's failure to maintain a re l ationship with the Child As discussed above , the Trial Court found that Mother evidenced both an incapacity S

. C.B. , 990 A

. 2d 762 (Pa

. Super. 2010)

. affirmative misconduct, acts of refusal to parent as well as an incapacity to parent. In re: (Pa. Supe r. 2006). In other word s, a trial court can find an incapacity to parent by finding the best of his or her ability , even in difficult circumstances. In re E.M., 908 A.2d 297 effort, and not yield to every problem, in order to maintain the parent-child relationship to Parental duty requires that the parent act affirmatively with a good faith interest and

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II was bonded with her grandparents who were meeting all her needs. rights because the Child was residing in a pre-adoptive home for nearly two (2) years and In addition , the Court found it was in the Child ' s best interests to terminate Mother ' s rights pursuant to Sections 251 l(a)(5) and (a)(8) for the same reasons discussed above. The Court found clear and convincing evidence to terminate Mother's parental needs and welfare of the child." In re : K.T.E.L., 983 A.2d 745 (Pa

. Super. 2009). of the child continue to exist; and (3) termination of parental rights would best serve the more from the date of removal; (2) the conditions which led to the removal or placement be demonstrated : ( 1) the child has been removed from parental care for 12 months or terminate parental rights pursuant to 23 Pa.C.S.A. §251 l(a)(8), the following factors must The requirements to terminate pursuant to section 251 l(a)(8) are similar. "[T]o to removal and placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child. 23 Pa.C

. S.A

. §251 l(a)(5). has been removed from parental care for at least six months; (2) the conditions which led Termination of Parental Rights under Section 2511 (a)(5) requires that: (1) the child Court terminated Mother's parental rights pursuant to §251 l(a) (2).
3. The Trial Court properly granted the Petition to Terminate Parental Rights Pursuant

to 23 Pa.C.S.A. §251l(a)(S) and (a)(8). dependency issues in the near future. Consequently, for all of the above reasons this refusal" to parent the Child

. This Court finds that Mother will not be able to resolve the

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12 went so far as to say that when she got out of prison it was not her intention to remove acknowl e dged that her child was in a stable environment with her grandparents. Mother it would be in the Child ' s best interest to be adopted. Additionally , Mother Child se v en times in nearly two years. Based upon these facts, this Court concluded that contrar y , the Child had no bond with Mother who was incarcerated and had only seen the was well bonded with her grandparents who were meeting all of her needs. To the be involuntarily terminated

. Ms. McNeill based her opinion upon the fact that the Child her opinion, the Child would not suffer any irreparable harm if Mother's rights were to · adoptive home with her grandparen ts nearly her entire life

. M s . McNeill testified that, in The Child was two years old at the time of the hearing , and had resided in a pre- (Pa.Super. 2008). the emotional bond between parent and child. In re: C.T. and G.T.F ., 944 A.2d 779 " [ojne major aspect of the needs and welfare analysis concerns the nature and status of than the fa ult of the parent. " In re K

. Z

. S. , 946 A.2d 753 (Pa

. Super. 2008). Further, §2511 (b ). " Section 2511 (b) centers judicial inquiry upon the welfare of the child rather developmental, ph y sical and emotional needs and welfare of the child." 23 Pa.C.S

. A. terminating the rights of a parent, the Court "shall give primary consideration to the C.A

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. and A.A

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. . 453 Pa. Super. 277, 683 A

. 2d 911, 917-18 (Pa. Super. 1996 ). In interests of the child pursuant to 23 Pa

. C.S.A. §251 l(b). In the Matter of the Adoption of satisfied , it must then determine whe t her the termination of parental rights serves the best After the Trial Court finds that the statutory grounds for termination have been B. The Trial Court Properly Found That Termination of Mother's Parental Rights was in the Child's Best Interests and That OHS Met Its Burden Pursuant

to 23 Pa.C.S.A. §251l(b).

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1 3 DATE ALLANL~.~ BY THE COURT: CONCLUSION terminating Mother's parental rights. developmental physical and emotional needs and welfare of the Child are best served by never cared for the Child, and the Child is in a nurturing and loving foster home, the Since the Child has spent approximately two (2) years in foster care, Mother has Child from the g randparents care.

This Court finds that DHS met its burden by clear and convincing evidence for terminating Mother ' s parental rights pursuant to 23 Pa.C.S.A. §25ll(a) and (b) and for 

# I the foregoing reasons, this Court respectfully requests that the Decree and Order of 

# I .j May 11, 2015 terminating Mother's Parental Rights be Affirmed. 

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### DATE ALLAN L. TERESHKO, Sr. J. Regin a Tuchinsky , Esq

. Patricia A. Korey, Esq

. D e fenders Association Child Advocacy Unit 1 44 1 Sansom St Philadelphi a , PA For Minor Child Cynthia Keller , Esq. C a itlin Dunston. Esq. Phila Solicitor's Office One Parkwa y, 1515 Arch S t
. 16 111 flr. Philadelphia, PA 19102 DHS Counsel Carlin Saafir. Esquire Beggin & Greshes 1 218 Chestnut 

### si. Ste

. 500 Philadelphia. PA 19107 C ouns e l for Father Neal M a sciantonio , Esq. 1 806 Callowhill Street Philadelphia, PA 19130 C ounsel for Mother, Appellant 

### I hereby certify that a true and correct copy of the foregoing Opinion is served upo n the followin g parties by the manner as designated: Family Court Delivery Mail Box. 

### CERTIFCATE OF SERVICE