J-S63001-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: ADOPTION OF: D.N.C. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

:

APPEAL OF: M.C., MOTHER : No. 1837 EDA 2015

Appeal from the Decree entered June 1, 2015,

Court of Common Pleas, Montgomery County,

Orphans’ Court at No. 2015-A0052

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 09, 2015

M.C. (“Mother”) appeals from the June 1, 2015 decree entered by the 

Montgomery County Court of Common Pleas involuntarily terminating her 

parental rights to D.N.C. (“Child”), born in November 2005, pursuant to 23 

Pa.C.S.A. § 2511(a)(2), (8) and (b).1 After careful review, we affirm.2

The record reflects the following relevant facts and procedural history.3 

Mother’s involvement with Montgomery County Office of Children and Youth 

 

1

 In her brief on appeal, Mother also suggests that the orphans’ court 

terminated her rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), and raises an 

argument in opposition to that finding. See Mother’s Brief at 21-25. Our 

review of the record reveals, however, that although subsection (a)(1) was 

raised in the petition seeking to terminate her parental rights to Child, the 

orphans’ court only granted termination pursuant to subsections (a)(2), (8) 

and (b). See Orphans’ Court Decree, 6/1/15; Orphans’ Court Opinion, 

6/1/15, at 10.

2

 On the same date, the orphans’ court also terminated the parental rights 

of B.C. (“Father”), and he has not appealed that decision.

3

 As Father did not appeal from the decree terminating his parental rights to 

Child, we omit from our discussion the propriety of that decree and the facts 

attendant thereto.
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(“OCY”) dates back to 2006. N.T., 5/11/15, at 45-47. Of relevance to the 

case before us, on July 6, 2011, OCY received a report that Mother was 

smoking crack and engaged in prostitution while caring for Child. Id. at 47. 

Upon locating Mother and Child, OCY found them to be living in a 

condemned house, with knives, guns, and drug paraphernalia inside the 

home. Id. OCY obtained an emergency custody authorization and received 

permission to place Child in foster care. Id. On July 19, 2011, Mother 

agreed to the dependency adjudication. Id. at 103.

Mother’s Family Service Plan (“FSP”) goals required her to achieve and 

maintain sobriety; obtain a drug and alcohol evaluation and follow any 

recommendations made; obtain a psychological evaluation and follow any

recommendations made; obtain stable housing and employment; cooperate 

with OCY; and visit with Child. Id. at 50; OCY Exhibit 2. At the time of the 

termination hearing, Mother remained noncompliant with her FSP goals. 

Specifically, she failed to successfully complete drug and alcohol treatment 

and had relapsed numerous times throughout the life of the case; she did 

not provide any proof that she obtained a psychological evaluation; she was 

incarcerated at the time of the termination hearing and had no housing; she 

was working through the prison’s work release program but otherwise had 

not had stable employment; and throughout the nearly four years Child had 

been in foster care, Mother only saw him between three and eight times, 
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with the last visit occurring at court the previous summer. See N.T., 

5/11/15, at 66-68, 125, 155-57, 162-63. 

Since Child was removed from her care, Mother has been incarcerated 

six times – per Mother’s testimony, from August 2011-November 2011; May 

2012-August 2012; October 2012-April 2013; August 2013-October 2013; 

April 2014-July 2014; and January 2015-August 2015 (at which time she will 

have served the maximum sentence on her original charge) – five of which 

occurred because she stopped reporting to her probation officer when she 

relapsed. Id. at 151-52, 168-69. She has had sporadic telephone contact 

with Child and periodically written him letters. Id. at 68. Mother historically 

would contact OCY about Child and inform the caseworker of her 

whereabouts only when she was incarcerated or in treatment, and then 

would disappear for months at a time without contacting OCY. Id. at 138-

41. Mother admitted that she was using drugs when she fell out of contact 

with OCY. Id. at 169.

In the five years Child lived with Mother prior to his removal from her 

care in 2011, Mother lived in eight different locations. Id. at 169-71. 

Following Child’s removal, Child resided in five different foster homes. Id. at 

69. The first disrupted when the foster mother obtained employment and 

did not have suitable childcare for Child; the next three disrupted because of 

Child’s behaviors, which the caseworker described as “argumentative,” 

“angry,” “obstinate,” and “rude.” Id. at 69-70. Child was then placed with 
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Father’s friends, where Child was doing well and did not have behavioral 

concerns, but they indicated that they would not be an adoptive resource for 

Child several days before OCY placed Child with them. Id. at 70-71. 

OCY conducted “child specific recruitment” and subsequently located 

an adoptive resource for Child. Id. at 26. Child was scheduled to begin 

visits with this family the week after the termination hearing, with placement 

to occur in June 2015, as his current foster parents would not keep him 

beyond the last day of the school year. Id. at 30, 71-72. Child has received 

services to talk about and prepare him for adoption, and although he was 

initially upset by the idea, Child is reportedly in agreement with adoption. 

Id. at 30, 65-66. 

OCY filed a petition to involuntarily terminate Mother’s parental rights 

to Child on March 11, 2015. On May 11, 2015, the orphans’ court held a 

hearing and took testimony on the petition. The orphans’ court entered its 

decree on June 1, 2015 terminating Mother’s parental rights to Child 

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

Mother filed a timely notice of appeal, and concomitantly filed her 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i). On appeal, she challenges the sufficiency of the evidence to 

support the decree terminating her parental rights to Child. See Mother’s 

Brief at 4-5.
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We review a decree terminating a parent’s rights for an abuse of 

discretion or error of law. In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 

2012). We must accept the credibility determinations and factual findings of 

the trial court that are supported by the record. Id. This Court may not 

reverse a termination decree simply because we would have reached a 

different result based on the same facts. Id.

Under section 2511 of the Adoption Act, the trial court must engage in 

a bifurcated process. First, the trial court must examine the parent’s 

conduct under section 2511(a). In re Adoption of R.J.S., 901 A.2d 502, 

508 (Pa. Super. 2006). The burden of proof is on the petitioner to establish 

by clear and convincing evidence the existence of grounds for termination 

under section 2511(a). In re J.L.C. and J.R.C., 837 A.2d 1247, 1251 (Pa. 

Super. 2003). If termination is found by the trial court to be warranted 

under section 2511(a), it must then turn to section 2511(b), and determine 

if termination of the parent’s rights serves the children’s needs and welfare. 

In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).

This Court need only agree with the trial court’s decision as to any one 

subsection of section 2511(a) in order to affirm the termination. See In re 

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 

A.2d 1141 (Pa. 2004). We will therefore examine the facts under section 

2511(a)(2), which states:
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(a) General rule.--The rights of a parent in regard 

to a child may be terminated after a petition filed on 

any of the following grounds:

* * *

(2) The repeated and continued incapacity, abuse, 

neglect or refusal of the parent has caused the child 

to be without essential parental care, control or 

subsistence necessary for his physical or mental 

well-being and the conditions and causes of the 

incapacity, abuse, neglect or refusal cannot or will 

not be remedied by the parent.

23 Pa.C.S.A. § 2511(a)(2). 

Mother contends that because she was expecting to be released from 

incarceration in August 2015 and had made efforts to achieve sobriety that 

there was no support for the orphans’ court’s conclusion that she was 

incapable of parenting Child. Mother’s Brief at 25, 27-28. Mother asserts 

that she expressed her intention to obtain housing following her release and 

that she wants to have Child returned to her care, and the orphans’ court 

therefore erred by terminating her parental rights pursuant to subsection 

(a)(2). Id. at 29. The orphans’ court found that Mother’s repeated 

incarcerations have “significantly impaired” her ability to parent Child. 

Orphans’ Court Opinion, 6/1/15, at 8. Furthermore, the court found, “Even 

when not incarcerated, [Mother has] failed to provide [C]hild with the 

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

mental well-being,” and that Mother has not and cannot remedy her 

incapacity. Id. The orphans’ court found Mother’s promises to turn things 
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around after her release from this round of incarceration were not worthy of 

belief. Id.

“The grounds for termination 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. Ct. 

2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002)). 

Furthermore, 

the language in subsection (a)(2) should not be read 

to compel courts to ignore a child's need for a stable 

home and strong, continuous parental ties, which 

the policy of restraint in state intervention is 

intended to protect. This is particularly so where 

disruption of the family has already occurred and 

there is no reasonable prospect for reuniting it.

In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (emphasis supplied) (citing 

In re William L., 383 A.2d 1228, 1240 (Pa. 1978)). As we have stated 

many times, “[a] child’s life simply cannot be put on hold in the hope that 

the parent will summon the ability to handle the responsibilities of 

parenting.” In re I.J., 972 A.2d 5, 9 (Pa. Super. 2009) (quoting In re 

Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003)).

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. 

...This Court cannot and will not subordinate 

indefinitely a child’s need for permanence and 

stability to a parent’s claims of progress and hope for 
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the future. Indeed, we work under statutory and 

case law that contemplates only a short period of 

time, to wit eighteen (18) months, in which to 

complete the process of either reunification or 

adoption for a child who has been placed in foster 

care. ... [A] parent desiring to retain parental rights 

must exert himself to take and maintain a place of 

importance in his child’s life.

In re E.A.P., 944 A.2d at 83 (internal citations omitted).

Our review of the record supports the orphans’ court’s decision. Child 

was removed from Mother’s care by OCY based upon concerns regarding her 

drug and alcohol use, stability, housing, and criminal activity. These 

problems rendered her incapable of parenting Child at the time of his 

removal. Mother continued in her drug use throughout the life of this case, 

rarely seeing Child over the nearly four years he was out of her care. She 

had no housing at the time of the termination hearing, as she was 

incarcerated (again) following a relapse (her fifth). Although she has made 

several efforts to achieve sobriety, these efforts have failed, leaving her in 

no better position to parent Child than she was at the time of his removal. 

Although Mother promised that she was going to turn things around 

and get on the rights path following her release from incarceration, she had 

no plans as to how she was going to remain clean and take care of herself 

and Child, stating only that she planned to move somewhere new so she 

could “start over.” N.T., 5/11/15, at 167. The record reflects that Mother 

made similar promises in a letter to OCY that she wrote during a prior 
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incarceration, but failed to follow through. See Mother’s Exhibit 4. 

Furthermore, Mother admitted that she could not identify when she might

be in a position to parent Child, stating only that she would be capable of 

parenting him “in due time” following her release from incarceration. Id. at 

161, 174. Mother’s promise to make Child a priority now, when she has 

failed to do so for approximately half of his life, was properly rejected by the 

orphans’ court. See In re A.L.D., 797 A.2d at 340 (“a parent’s vow to 

cooperate, after a long period of uncooperativeness regarding the necessity 

or availability of services, may properly be rejected as untimely or 

disingenuous”); In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super. 

2002) (stating that the trial court, as finder of fact, makes all determinations 

of witness credibility). 

In the four years leading up to the termination hearing, Mother has 

failed to refrain from drug use for any appreciable amount of time, resulting 

in her nearly continuous incarceration. Mother has not regularly visited or 

otherwise communicated with Child, having last seen him approximately a 

year prior to the termination hearing. She has been incapable of providing 

parental care, control or subsistence for his physical and mental well-being, 

and this incapacity persisted to the day of the termination hearing. We 

therefore find no error or abuse of discretion in the orphans’ court’s decision 

to terminate Mother’s parental rights to Child pursuant to 23 Pa.C.S.A. 

2511(a)(2).
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We now turn to subsection (b), which states:

(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.

23 Pa.C.S.A. § 2511(b). Under section 2511(b), we inquire whether 

termination of parental rights would best serve the developmental, physical 

and emotional needs and welfare of the child. In re C.M.S., 884 A.2d 1284, 

1286-87 (Pa. Super. 2005). “Intangibles such as love, comfort, security, 

and stability are involved in the inquiry into the needs and welfare of the 

child.” Id. at 1287 (citation omitted). 

The trial court must also discern the nature and status of the parentchild bond, with utmost attention to the effect on the child of permanently 

severing that bond. Id. The mere finding of a parent-child bond does not 

preclude termination of parental rights. Rather, the trial court must examine 

the status of the bond to determine whether its termination “would destroy 

an existing, necessary and beneficial relationship.” In re Adoption of 

T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). “[A] court may properly 

terminate parental bonds which exist in form but not in substance when 

preservation of the parental bond would consign a child to an indefinite, 

unhappy, and unstable future devoid of the irreducible minimum parental 
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care to which that child is entitled.” In re J.W., 578 A.2d 952, 958 (Pa. 

Super. 1990) (emphasis in original). Expert testimony is not required for 

the trial court to determine if there is a positive bond between a parent and 

his child. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).

Mother asserts that because she loves Child and raised him to the age 

of five there is necessarily a bond between them, the severance of which 

“would be detrimental to [Child].” Mother’s Brief at 34. In assessing the

bond between Mother and Child, the orphans’ court found that “although 

there is affection and [Mother] cares for [C]hild, [Mother has] not 

maintained sufficient and consistent contact and [has] not provided a loving, 

stable and nurturing home for [C]hild. As a result, any bond that exists is 

not a healthy parental bond between [C]hild and [Mother].” Orphans’ Court 

Opinion, 6/1/15, at 9. The orphans’ court thus concluded that because 

Mother has not provided Child with a home, met his needs, provided him 

with much needed stability, or maintained a parent-child relationship with 

him, Child’s needs and welfare are best met by terminating Mother’s 

parental rights to Child. Id. at 10.

The record supports the orphans’ court’s decision in this regard as 

well. George G. Oscavich, Jr., the OCY caseworker assigned to Child’s case 

since August 2012, testified that Child never mentioned Mother to him. 

N.T., 5/11/15, at 68. Oscavich had asked Child about Mother, but Child 

“never discusses her.” Id. at 116. From Oscavich’s observations, Mother 
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and Child no longer had a relationship, and Child would not be harmed by 

terminating whatever bond did exist. Id. at 69. According to Oscavich, 

Child is very “matter of fact” about the proposition of his parents’ rights 

being terminated and he appears to have “already separated himself and 

that his expectation is that he will be moving on,” as Child “wants a mother 

and a father. He wants stability.” Id. at 136.

Child is diagnosed with ADHD. Id. at 71. In his brief lifetime, he has 

had thirteen different homes – five placements through OCY and eight when 

he resided with Mother. Id. at 69, 169-71. There has been nothing stable 

in his life, least of all his relationship with Mother. Child has seen Mother 

between three and eight times over the last four years, with intermittent 

phone calls and letters in between. 

Child now has the opportunity for a fresh start with a new family that 

OCY is optimistic will be a permanent family for him. Id. at 26-28, 71-72. 

The prospective adoptive parents have adopted in the past, are aware of 

Child’s diagnosis and behavioral issues, enjoy the same activities that Child 

does, have pets and a nephew and niece around Child’s age. Id. at 72. 

OCY has talked to Child about adoption, and particularly about adoption by 

this couple, and Child was excited about it. Id. at 30, 72.

Based on the record before us, we find no error or abuse of discretion 

in the orphans’ court’s conclusion that Child’s developmental, emotional and 
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physical needs and welfare are best met by terminating Mother’s parental 

rights. We therefore affirm.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/2015