J-A30024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.P., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
APPEAL OF: A.S., MOTHER
                                                    No. 1334 MDA 2016


                     Appeal from the Decree of July 3, 2016
              In the Court of Common Pleas of Huntingdon County
                  Orphans' Court at No(s): CP-31-OC-12-2016


BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 19, 2016

       Appellant, A.S., appeals from the decree that was entered on June 23,

2016 and made final on July 3, 2016, which involuntarily terminated

Appellant’s parental rights to her minor child, A.P. (born in October 2013)

(hereinafter “Child”). We affirm.

       On March 18, 2016, Huntingdon County Children and Youth Services

Agency (hereinafter “the Agency”), filed a petition for the involuntary

termination of Appellant’s parental rights (hereinafter “TPR Petition”). 1   As

the Agency averred, on August 15, 2014, the trial court entered an order


____________________________________________


1
  On that same date, the Agency filed a petition to involuntarily terminate
the parental rights of Child’s natural father, Z.P. (hereinafter “Father”).
Father was served with the termination petition and the trial court appointed
counsel to represent Father; however, Father did not appear at the
termination hearing. The trial court terminated Father’s parental rights to
Child by decree entered on June 23, 2016 and made final on July 3, 2016.
Father has not filed a notice of appeal from the trial court’s termination
order and Father is not a party to the current appeal.
J-A30024-16


finding that Child was dependent and awarding the Agency legal and

physical custody of Child. The Agency averred:

        At the time [Child] was originally placed, [Appellant] had
        overdosed on heroin and was subsequently arrested for
        burglary and placed in jail. Since that time, [Appellant] has
        either remained in jail or in a halfway house in compliance
        with sentences she received through the criminal justice
        system. [Appellant] absconded from the halfway house on
        February 10, 2016. At the time of this petition, a warrant
        for her arrest has been issued. . . .          [H]er present
        whereabouts are unknown.

TPR Petition, 3/18/16, at ¶¶ 3 and 8 (some internal capitalization omitted).

     Within the TPR Petition, the Agency claimed that:         Appellant was

incapable or unwilling to care for Child; Child “has been in placement in

excess of [12] months;” Appellant has “made little, if any progress in

remedying the issues and concerns which led to [Child’s] placement on

August 15, 2014;” and, “[t]he conditions which led to the removal or

placement of [Child] continue to exist and termination of [Appellant’s]

parental rights would best serve the needs and welfare of [Child].” Id. at

¶¶ 10-26.   The Agency sought termination of Appellant’s parental rights

under 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8). Id. at ¶¶ 13-26.

     The trial court appointed counsel to represent Appellant and then

scheduled a termination of parental rights hearing for June 23, 2016.

However, although Appellant’s counsel appeared for the June 23, 2016

hearing, Appellant did not personally appear at the hearing.




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      During the hearing, the Agency presented the testimony of Agency

caseworker Rose Sanders, who was assigned Child’s case. As Ms. Sanders

testified:

         The case came into us on intake on June 2, 2014[,] . . . that
         there were concerns that [Appellant] was hiding from the
         caseworkers and didn’t want to do drug screens. There
         were concerns that she was using heroin.           She was
         neglecting [Child]. There [were] reports that [Child] was
         crying all the time and had diaper rash and that there were
         concerns with home conditions.

                                      ...

         On July 21st of 2014[, Appellant] overdosed . . . on heroin.

N.T., TPR Hearing, 6/23/16, at 4.

      Ms. Sanders testified that, after Appellant’s overdose, “[Appellant] was

arrested for theft[; s]he was caught in the act and [the police] notified [the

Agency] that they were arresting her.” Id. at 5.    As a result, on August 15,

2014, the trial court declared Child dependent and placed Child in a foster

home. Id. at 4-5.

      On August 27, 2014, Child was transferred from the foster home to

the care of Father. Ms. Sanders testified:

         After [Child] was placed with [Father], there were continued
         concerns of him testing positive for drugs but he was living
         with his parents at the time, so there were other caregivers.
                                      ...

         [O]n December 18[,] 2014, [Father] got kicked out of his
         parents’ home and he was homeless. So on December 19,
         2014, the Agency filed an EPC and we had to chase [Father]
         all over town for about eight hours until we found him and
         [Child] in the middle of the night in the cold.

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                                      ...

        [Father] was caught by the Mount Union Police and the
        State Police [were] involved. They found him walking down
        the street carrying [Child] in freezing weather at like 12:30
        at night. . . . [Child] was dressed but he was dirty. He was
        hungry, he was thirsty and he was freezing. His face was
        red, beet red, from the cold.

Id. at 5-6 and 22.

      Moreover, Ms. Sanders testified that the authorities had to “chase[]

[Father] all over town” even though Father knew that the Agency was

looking for him.     Id. at 6.   According to Ms. Sanders:    “[Father] was in

communication with us on and off on cell phone and refused to meet with us

and refused to talk to us and meet with us face-to-face to discuss what we

were doing.” Id.

      On December 19, 2014, the Agency placed Child in E.H.’s foster home.

Ms. Sanders testified that: Child has remained in E.H.’s home continuously

since placement; E.H.’s home is pre-adoptive; Child is doing very well in

E.H.’s home and is “part of their family;” Child refers to E.H. as “mom” and

“looks at them as his family;” and, “an adoption and a permanent home for

[Child would] be in [Child’s] best interests.” Id. at 6, 10, and 29.

      Ms. Sanders testified that Appellant was incarcerated at the time Child

was placed in E.H.’s home.        Id. at 7.   However, on August 12, 2015,

Appellant was released to a Harrisburg halfway house and “the Agency




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beg[a]n working with her to have visits [with Child] at the halfway house.”

Id. at 8.

        Ms. Sanders testified that, from August 12, 2015 until October 2015,

Appellant had two failed tests for alcohol at the halfway house and, as a

result, Appellant was not permitted to leave the halfway house to visit Child.

Id. at 11. Therefore, Ms. Sanders testified, the Agency twice traveled from

Huntingdon to Harrisburg, with Child, so that Appellant could visit with Child.

Id. However, Ms. Sanders testified:

          [the last visit] didn’t go too well. It ended sooner than
          expected because [Appellant] had a breakdown of sorts
          when she was requested to change [Child’s] diaper and she
          couldn’t bring herself to do it and cried and asked for the
          foster mom to come back in and do it.

Id. at 17.

        Ms. Sanders testified that she last heard from Appellant in October

2015.     Id.   Further, Ms. Sanders testified, Appellant absconded from the

halfway house on November 10, 2015 and, after a warrant was issued for

her arrest, Appellant was arrested and incarcerated at SCI-Muncy. Id. at 8-

9 and 11. Ms. Sanders testified that Appellant was paroled “approximately a

week or two” prior to the TPR hearing. Id. at 9. Nevertheless, Ms. Sanders

testified that Appellant did not communicate with the Agency or with Child

after her arrest. Id. at 9.

        Ms. Sanders also testified that Appellant: does not have the insight or

ability to care for Child; has not been successful in obtaining and


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maintaining a stable home for Child; and, has not remedied the situation

that led to Child being placed and remaining in placement. Id. at 10-11.

     At the conclusion of the hearing, the trial court entered the following

decree:

                                   DECREE NISI

          NOW, this 23rd day of June, 2016, the [trial] court makes
          the following findings of fact, conclusions of law[,] and
          decree nisi:

                                FINDINGS OF FACT

          1. [Appellant] . . . is the natural mother of [Child].

          2. [Appellant] was duly served by [the] Deputy Sheriff of
          Lycoming County, Pennsylvania, with [] service . . . relative
          to a Petition to Involuntarily Terminate Parental Rights
          regarding [Child].

          3. [Appellant] failed to appear at the termination of parental
          rights hearing held June 23, 2016.

          4. [Appellant] has been represented by counsel since
          [Child] was declared dependent on August 15, 2014.
          Similarly, she was represented by counsel in the
          termination proceeding.

          5. At the time of the hearing, [Appellant] failed to attend;
          however, her counsel was in the courtroom and available to
          represent her.

          6. Testimony elicited at the termination hearing indicates
          that [Appellant] was recently paroled from SCI-Muncy.

                             CONCLUSIONS OF LAW

          1. The [trial] court was presented with sufficient factual
          evidence/information to support the involuntary termination
          of [Appellant’s] parental rights.


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         2. Termination of the parental rights of [Appellant] is in the
         best interests of [Child].

         3. The petitions, hearings[,] and procedures followed by the
         Agency are in compliance with the Pennsylvania Adoption
         Act.

                                      DECREE NISI

         The parental rights of [Appellant] regarding [Child] . . . are
         hereby terminated nisi.       Huntingdon County Children’s
         Services is directed to obtain [Appellant’s] current address
         from either SCI-Muncy or the Pennsylvania Board of
         Probation and Parole. Thereafter, a copy of these findings
         of fact, conclusions of law[,] and decree nisi shall be served
         on [Appellant] at her address by both certified mail and first
         class mail.

         [APPELLANT] SHALL HAVE TEN [] DAYS FROM THE DATE
         THIS DECREE NISI IS MAILED TO FILE OBJECTIONS OR
         EXCEPTIONS IN THE OFFICE OF THE CLERK OF THE
         ORPHANS’ COURT FOR HUNTINGDON COUNTY.

         IF NO WRITTEN OBJECTIONS OR EXCEPTIONS ARE FILED
         WITHIN THE TIME ALLOWED, THIS DECREE NISI SHALL
         BECOME FINAL WITHOUT THE NEED FOR ANY FURTHER
         ACTION BY THE COURT.

Trial Court Decree, 6/23/16, at 1-3 (some internal capitalization omitted).

       Appellant did not file exceptions to the decree2 and, on July 3, 2016,

the decree became final by its own terms. Id. at 3.

       On July 18, 2016, Appellant (through counsel) filed a timely notice of

appeal from the termination decree.            Following a remand from this Court,
____________________________________________


2
   Appellant did not need to file exceptions to preserve her claim on appeal.
See Pa.O.C.R. 7.1 (effective until October 31, 2016) (providing that the
filing of exceptions is optional).




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the trial court issued a Pennsylvania Rule of Appellate Procedure 1925(a)

opinion in support of its decree.         Within the trial court’s opinion, the trial

court declared that it terminated Appellant’s parental rights to Child under

23 Pa.C.S.A. §§ 2511(a)(2), (5), (8) and (b). Further, the trial court recited

the relevant facts that, it held, the Agency had proven by clear and

convincing evidence and which supported its decision in this matter.            See

Trial Court Opinion, 11/29/16, at 1-8.

       Appellant now raises the following claim to this Court:

         Did the [trial court] err when it terminated [Appellant’s]
         parental rights to [Child], given that the evidence presented
         was insufficient as a matter of law to support a termination
         of [Appellant’s] parental rights, and that [Appellant] had
         made efforts and progress towards alleviating the conditions
         that led to the placement of [] Child?

Appellant’s Brief at 4.3

____________________________________________


3
  We note that Appellant did not file her statement of errors complained of
on appeal contemporaneously with her July 18, 2016 notice of appeal, as
required by Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).
Pa.R.A.P. 1925(a)(2)(i) (“[t]he concise statement of errors complained of on
appeal shall be filed and served with the notice of appeal”). Nevertheless,
Appellant later filed her concise statement on September 1, 2016 and, within
this concise statement, Appellant listed the issue she currently raises on
appeal. In accordance with our binding precedent in In re J.T., 983 A.2d
771 (Pa. Super. 2009), we conclude that Appellant’s late filing of her concise
statement does not result in the waiver of her claim on appeal. In re J.T.,
983 A.2d at 774-775 (“[i]f late filing of the 1925 statement waived [the
m]other's appeal rights in this case, there has been per se ineffectiveness of
counsel just as there was for the appellant in [Commonwealth v. Burton,
971 A.2d 428 (Pa. Super. 2009) (en banc)]. We conclude that, as in
Burton, in parental termination cases a late filing of a required 1925
statement does not mandate a finding of waiver”).



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     On appeal, Appellant claims that the evidence was insufficient to

support the termination of her parental rights. We have explained:

        In a proceeding to terminate parental rights involuntarily,
        the burden of proof is on the party seeking termination to
        establish by clear and convincing evidence the existence of
        grounds for doing so. The standard of clear and convincing
        evidence is defined as testimony that is so clear, direct,
        weighty[,] and convincing as to enable the trier of fact to
        come to a clear conviction, without hesitance, of the truth of
        the precise facts in issue. It is well established that a court
        must examine the individual circumstances of each and
        every case and consider all explanations offered by the
        parent to determine if the evidence in light of the totality of
        the circumstances clearly warrants termination.

In re Adoption of G.L.L., 124 A.3d 344, 346 (Pa. Super. 2015) (internal

quotation marks and citations omitted).

     In reviewing an appeal from an order terminating 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., 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)
        (plurality 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., 34
        A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 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.


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        As [the Pennsylvania Supreme Court] discussed in R.J.T.,
        there are clear reasons for applying an abuse of discretion
        standard of review in these cases. [The Supreme Court]
        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
        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 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 Atencio, [539 Pa. 161,
        165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).

     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).   See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). The trial court terminated Appellant’s parental rights under section

2511(a)(2), (5), (8), and (b). We will focus on section 2511(a)(2) and (b),

which provide 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:
                                     ...

           (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-


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

                                     ...

        (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.

     In her brief, Appellant contends that the Agency did not meet its

burden of proof with regard to section 2511(a)(2).      Specifically, Appellant

claims that the Agency did not prove that “the conditions and causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied by the

parent.” See id. Appellant argues:

        While it may be true that [Appellant] struggles with
        responsible and adult behavior, these allegations overlook
        the significant efforts that [Appellant] made in addressing
        those concerns. The [trial] court [] recognized those efforts
        on multiple occasions, noting that [Appellant] had
        completed a drug and alcohol education program, a victim
        awareness program, and the “Tools for Success” program
        while incarcerated.      The [trial] court also noted that
        [Appellant] had participated in drug and alcohol counseling,
        obtained a high school diploma, and became certified as a
        fiber optics installer. Although she has had a long struggle
        with drug abuse, [Appellant] consistently tested negative
        for illegal drug use after she was paroled. Perhaps most


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        importantly, she began visits with her son, which she had
        sought and been denied while she was incarcerated.

Appellant’s Brief at 8 (internal 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 incapacity, abuse, neglect or refusal has
        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.

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).

      The trial court concluded its analysis of section 2511(a)(2) as follows:

        The Agency’s initial concerns with [Appellant] have not
        changed. She has had a drug problem for a majority of the
        dependency proceedings. [Child] was declared dependent
        due to [Appellant] overdosing on heroin. [Appellant] was
        not able to parent because she was incarcerated. When
        [Appellant] did go to a halfway house, not only did she test
        positive for alcohol, she then absconded. Subsequently, she
        was arrested and jailed until June 2016. [Appellant] has
        made a series of poor decisions that led to her serving time
        in prison and residing in a halfway house. Once paroled,
        she failed to communicate with the Agency in an effort to
        reestablish a bond with [Child].

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                                      ...

        While incarceration alone is not a basis for involuntary
        termination of parental rights, the [trial court] may inquire
        about the parent utilizing resources at her command while
        in prison to continue and pursue a close relationship with
        the child. [Appellant] did petition [the trial court] for visits
        in prison, but that [was] the extent of her utilizing
        resources. She was not in contact with the Agency. Even
        when [Appellant] resided at the halfway house, she failed
        alcohol tests and her supervised visits were stopped. Her
        ongoing substance abuse issues make her a danger to
        [Child].

Trial Court Opinion, 11/29/16, at 7-8 (internal citations omitted).

      After a careful review of the record in this matter, we find the trial

court’s 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 at 826-27.          We, therefore, affirm the

termination of Appellant’s parental rights with regard to Child under section

2511(a)(2).

      Next, we review the termination of Appellant’s parental rights under

section 2511(b).    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. 2008) (en banc).

      In reviewing the evidence in support of termination under section

2511(b), our Supreme Court stated as follows.




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        [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)], [the
        Pennsylvania Supreme] 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).

      Appellant does not claim that the evidence was insufficient to support

the termination of her parental rights under section 2511(b). Nevertheless,

as the trial court stated, the evidence was indeed sufficient to support

termination under that subsection:

        [Appellant’s] last visit [with Child] was in October 2015, and
        the visit was cut short due to [Appellant] having a
        “breakdown.” . . . She has not had a visit or contact with
        [Child] since October 2015. [Child] has clearly bonded with
        his foster family [and the foster family has indicated that
        they wish to adopt Child]. Severing the parent-child bond is
        in [Child’s] best interest as [Appellant] will never be in a
        position to provide a stable environment for [Child].

Trial Court Opinion, 11/29/16, at 8.

      After a careful review of the record in this matter, we find the trial

court’s 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 at 826-27. In its opinion, the trial court


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found that Child has been in placement in the same foster home for

approximately two years – and ever since Child was one year old.

Accordingly, it was proper to find that no bond exists and that Child would

suffer no permanent emotional harm if Appellant’s parental rights were

terminated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). 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”). We, therefore, affirm the

termination of Appellant’s parental rights with regard to Child under section

2511(b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




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