In the Interest of: G.C., Appeal of: C.C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: G.C., a Minor IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: C.C., Natural Mother No. 999 WDA 2014

Appeal from the Order entered May 23, 2014,

in the Court of Common Pleas of Bedford County, Orphans’

Court, at No(s): CP-05-DP-0000013-2010, No. 23 for 2012

IN THE INTEREST OF: G.C., a Minor IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: BEDFORD COUNTY

CHILDREN AND YOUTH SERVICES No. 1001 WDA 2014

Appeal from the Order entered May 23, 2014,

in the Court of Common Pleas of Bedford County,

Orphans’ Court Division, at No(s): CP-05-DP-0000013-2010,

No. 23 for 2012

IN THE INTEREST OF: G.C., a Minor IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: G.C., a Minor No. 1002 WDA 2014

Appeal from the Order entered May 23, 2014,

in the Court of Common Pleas of Bedford County,

Orphans’ Court Division, at No(s): CP-05-DP-0000013-2010,

No. 23 for 2012

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

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MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2015

C.C. (“Mother”), G.C. (“Child”), through his guardian ad litem (“GAL”),

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

appeal from the May 23, 2014 Order granting CYS’s Petition to involuntarily

terminate Mother’s parental rights to Child, who was born in July 2009,

pursuant to section 2511 of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2),

(5), (8) and (b), and changing Child’s permanency goal to adoption with

respect to Mother, pursuant to section 6351(f) of the Juvenile Act, 42

Pa.C.S.A. § 6351(f). The Order further denied the involuntary termination of

the parental rights of T.C. (“Father”), and the denial of the change of Child’s

permanency goal as to Father. We affirm the termination of Mother’s

parental rights and the change of goal to adoption as to Mother, and reverse

and remand, in part, with regard to Father’s parental rights and goal change,

with directions to the trial court to apply the appropriate standard in its bond

analysis.

The trial court adequately and accurately set forth the factual

background and procedural history of these appeals in its Opinion entered on

May 23, 2014. We set forth only as much of the factual background and

procedural history as is necessary to our disposition of the appeals.

On October 15, 2012, CYS filed its Petition to Terminate the parental

rights of Mother and Father to Child, and to change the permanency goal for

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Child to adoption. The trial court held hearings relating to the Petition on

April 16, 2013, May 15, 2013, May 31, 2013, August 7, 2013, October 8,

2013, February 26, 2014, and March 18, 2014, and made the following

factual determinations:

[Mother] is 44 years of age[,] having been born [in 1970].

[Father] is 52 years of age[,] having been born [in 1962]. The

parties met on [sic] 2008 and were married [in March 2009] in

Winchester, Virginia. Both parties have grown children from

previous relationships. [Father] also has two other minor

children both of whom [sic] he has regular contact. The parties’

final separation was November 17, 2010, although they

periodically still have contact. As noted, the minor child, [G.C.],

was born [in July 2009]. [Mother] had DUI convictions in 1992,

2005, and 2013. As was noted, the case began with reports of

her being under the influence of alcohol while acting as sole care

provider for [Child].

Trial Court Opinion, 5/23/14, at 9.

On August 7, 2010, Child was removed from his parents’ home and

placed in foster care. Id. at 3. On August 20, 2010, Child was returned to

the physical custody of Father, but remained in protective custody. Id. On

November 5, 2010, Child was adjudicated dependent, and physical custody

was given to Child’s parents. Id.

On December 7, 2010, Child was removed from his parents’ physical

custody for a second time, based on an argument between the parents, and

he was placed in foster care. Id. at 5. Pursuant to a Consent Order entered

on May 4, 2012, the trial court returned Child to his parents’ shared physical

custody, as the parents were separated at that time. Id. at 6. On June 20,

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2012, Child was taken into protective custody, the shelter care hearing was

continued, and Father was granted physical custody of Child in the interim.

Id. at 7. On July 11, 2012, the trial court returned physical custody to the

parents on a shared basis, with provisions. Id. at 7-8. On July 24, 2012,

CYS filed a Petition for emergency protective custody. Id. at 8. The trial

court granted interim physical custody to Mother, with Father to have

periods of supervised physical partial custody, pending a hearing. Id. After

the hearing, on August 14, 2012, the trial court entered an Order continuing

CYS’s legal custody of Child, granting Mother physical custody, and granting

Father periods of supervised partial physical custody. Id.

One week later, on August 22, 2012, CYS filed a Petition for

emergency protective custody, based on Mother’s testing positive for

Klonopin on July 16, 2012, and for alcohol on July 26, 2012. Id. The trial

court explained that,

[M]other successfully wore an alcohol monitoring ankle bracelet

(SCRAM) and remained alcohol free from February[] 2012

through May of 2012. However, as noted, on July 16, 2012[,]

[Mother] tested positive for Klonopin, a controlled substance she

did not have a prescription for[,] and[,] on July 26, 2012[,]

[Mother] tested positive for alcohol.

Id. at 9-10.

On August 24, 2012, the trial court entered an Order continuing legal

custody with CYS, granting physical custody to CYS, and continuing to Order

that the parents engage in random drug testing. Id. at 8-9. On October 15,

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2012, CYS filed its Petition to involuntarily terminate the parental rights of

Mother and Father, and to change Child’s permanency goal to adoption.

Thus, Child has been in and out of foster care since early August 2010, and

has remained in foster care since August 2012.

After the completion of the hearings, on May 23, 2014, the trial court

issued its Order involuntarily terminating Mother’s parental rights to Child

and changing Child’s permanency goal to adoption with regard to Mother,

while denying the involuntary termination of Father’s parental rights to

Child, and refusing to change Child’s permanency goal to adoption with

regard to Father.1

On June 18, 2014, CYS filed a Notice of Appeal, but failed to file a

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

1925(a)(2)(i). On June 19, 2014, the trial court entered an Order directing

CYS to file a concise statement within twenty-one days. On June 20, 2014,

Mother filed a Notice of Appeal, and a Concise Statement. On June 23,

2014, the GAL filed a Notice of Appeal and Concise Statement.2

1

Father timely appealed the May 23, 2014 Order, which we docketed at No.

1000 WDA 2014. Father withdrew his appeal on November 5, 2014.

2

On June 23, 2014, CYS filed its Concise Statement. See In re K.T.E.L.,

983 A.2d 745, 747 (Pa. Super. 2009) (addressing the effect of Pa.R.A.P.

905(a)(2), and observing that there is no per se rule mandating quashal or

dismissal of a defective notice of appeal in children’s fast track cases, i.e.,

when the concise statement does not accompany the notice of appeal, and

no party is prejudiced thereby).

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Mother presents the following issues for our review:

A. Whether the Trial Court erred and/or abused its discretion in

determining that [] CYS established a legal basis for terminating

the parental rights of [Mother] pursuant to 23 Pa.C.S.A.

§ 2511(a)(2), (5), (8), and (b)?

B. Whether the Trial Court erred and/or abused its discretion in

determining that the conditions leading to placement of [Child],

substance abuse, and acrimony between the [] parents[,]

continue to exist and will not be remedied, given that such

findings are not supported by the record?

C. Whether the Trial Court erred and/or abused its discretion in

determining that “[Mother] invariably returns to excessive

drinking,” and using such as a basis for terminating her parental

rights, given that the record does not support such a

determination?

D. Whether the Trial Court erred and/abused its discretion by

failing to consider [Mother’s] efforts at rehabilitation with regard

to her alcohol abuse?

E. Whether the Trial Court erred/abused its discretion by failing

to determine the effect of severing the bond between [Mother]

and [Child], given such consideration is required under 23

Pa.C.S.A. § 2511(b)?

Mother’s Brief at 3.3

CYS presents the following issues on appeal:

1. Whether the Trial Court erred as a matter of law or committed

an abuse of discretion by denying [CYS’s] request to change the

goal to adoption for [Father?]

3

In her Concise Statement, and in the Statement of Questions Involved

section of her brief, Mother does not challenge the change of goal to

adoption. Accordingly, Mother has waived this issue. See Krebs v. United

Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any

issue not set forth in or suggested by an appellate brief’s statement of

questions involved and concise statement is deemed waived).

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2. Whether the Trial Court erred as a matter of law or committed

an abuse of discretion by denying [CYS’s] Petition to [T]erminate

the parental rights of [Father] … under § 2511(a)(5)[?]

3. Whether the Trial Court erred as a matter of law or committed

an abuse of discretion by denying Bedford County Children and

Youth’s Petition to terminate the parental rights of [Father] …

under § 2511(a)(8)[?]

4. Whether the Trial Court erred as a matter of law or committed

an abuse of discretion by failing to consider the overwhelming

evidence that established that the developmental, physical and

emotional needs and welfare of [Child] would best be served by

changing the goal to adoption for [Father] and by terminating

the parental rights of [Father?]

5. Whether the Trial Court erred as a matter of law or committed

an abuse of discretion by denying permanency for [Child?]

***

9. Whether the competent evidence was presented to support

the trial court’s determination that custody of [Child] should not

be returned to [Father?]

Brief for CYS at 22-23.4

Child, through the GAL, raises the following claims for our review:

1. Whether the Trial Court erred when termination of [F]ather’s

parental rights and change of goal to adoption was denied,

where the evidence established that [F]ather willingly failed to

perform even basic parental duties; refused to take any steps to

remedy the conditions which led to [Child’s] placement; and

4

Although CYS framed issues 1 through 5 somewhat differently in its

Concise Statement, we conclude that the issues are sufficiently preserved for

appellate review. Issue 9, which is directly related to those issues, was

implicitly preserved for review. Issues 6 through 8 address the termination

of Mother’s parental rights, which we will addressed in the context of

Mother’s appeal.

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where, with overwhelming evidence established that termination

and change of goal to adoption was in [Child’s] best interest

under § 2511 of the Adoption Act (23 Pa.C.S.A. § 2511),

specifically[,] 23 Pa.C.S.A. § 2511(a)(2); []23 Pa.C.S.A.

§ 2511(a)(5); and []23 Pa.C.S.A. § 2511(a)(8)[?]

2. Whether the Trial Court erred by failing to evaluate the nature

and strength of the emotional bond and relationship of Child with

the parents and foster parents giving primary consideration to

the developmental, physical and emotional needs and welfare of

the child per 23 Pa.C.S.[A.] § 2511(b)[?]

3. Whether the Trial Court erred/abused its discretion by using

contradicting and/or erroneous information when developing its

factorial [sic] analysis in the Memorandum Opinion dated May

23, 2014[?]

4. Whether the Trial Court erred/abused its discretion since the

original filing of the Petition for Involuntary Termination of

Parental Rights/Change of Goal to Adoption in 2012; by denying

[Child] permanency[,] even after the final [O]rder dated May 23

2014[,] by terminating [M]other’s parental rights and changing

the goal to adoption, but fail[ing] to terminate [F]ather’s

parental rights; which denied [Child] the opportunity to be

adopted[?]

5. Whether the Trial Court erred as a matter of law or

committed an abuse of discretion by denying [CYS’s] request to

change the goal to adoption for [Father?]

6. Whether the Trial Court erred as a matter of law or

committed an abuse of discretion by denying [CYS’s] Petition to

terminate the parental rights of [Father] … under

§ 2511(a)(5)[?]

7. Whether the Trial Court erred as a matter of law or

committed an abuse of discretion by denying [CYS’s] Petition to

terminate the parental rights of [Father] … under

§ 2511(a)(8)[?]

8. Whether the Trial Court erred as a matter of law or

committed an abuse of discretion by failing to consider the

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overwhelming evidence that established that the developmental,

physical and emotional needs and welfare of [Child] would best

be served by changing the goal to adoption for [Father] and by

terminating the parental rights of [Father?]

Brief for GAL, at 22-24.5

On appeal from the termination of parental rights, we review the

appeal in accordance with 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.; In re

R.I.S., [613 Pa. 371, 455,] 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., 613 Pa. 371[,

455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa.

647, 654-55], 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., [608 Pa. at

5

Although the GAL did not directly raise issues 5 through 8 in her Concise

Statement filed on behalf of Child, we do not find that she waived the issues,

as they are implicit in the preserved issues. See Krebs, 893 A.2d at 797.

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28-30], 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., 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).

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.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

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 Mother’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

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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.

***

(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.

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 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

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1266, 1272 (Pa. Super. 2003); accord In re Adoption of S.P., 47 A.3d at

827. 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).

A decision to terminate parental rights, never to be made

lightly or without a sense of compassion for the parent,

can seldom be more difficult than when termination is

based upon parental incapacity. The legislature,

however, in enacting the 1970 Adoption Act, concluded

that a parent who is incapable of performing parental

duties is just as parentally unfit as one who refuses to

perform the duties.

In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 891 (Pa.

1986) (quoting In re: William L., 477 Pa. 322, 383 A.2d 1228,

1239 (Pa. 1978)).

In re Adoption of S.P., 47 A.3d at 827.

This Court has stated that a parent is required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.

In re A.L.D. 797 A.2d at 337. 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. Id. at 340.

After we determine that the requirements of section 2511(a) are

satisfied, we proceed to review whether the requirements of subsection (b)

are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

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Super. 2008) (en banc). 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). Id. at 1008.

In reviewing the evidence in support of termination under section

2511(b), our Supreme Court recently explained that

if 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. § 2511(b). The emotional needs and welfare of the child

have been properly interpreted to include “[i]ntangibles such as

love, comfort, security, and stability.” In re K.M., 53 A.3d 781,

791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.

1993)], this Court held that the determination of the child’s

“needs and welfare” requires consideration of the emotional

bonds between the parent and child. The “utmost attention”

should be paid to discerning the effect on the child of

permanently severing the parental bond. In re K.M., 53 A.3d at

791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

In conducting a bonding analysis, the court is not required to use

expert testimony, but may rely on the testimony of social workers and

caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). As this

Court has observed, no bond worth preserving is formed between a child

and a natural parent where the child has been in foster care for most of the

child’s life, and the resulting bond with the natural parent is attenuated. In

re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).

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Here, the trial court rendered the following findings with regard to

Mother:

In July of 2013 [Mother] appeared intoxicated for a

supervised visit with [Child; M]other concedes this. The next

day she went back to the Agency to recover a cell phone; at that

time she appeared intoxicated and was administered a

breathalyzer test which produced a reading of .289%.

Kay Fair, the custody supervisor, testified on October 18,

2013 [sic] that at the visits in the summer of 2013 [Mother], in

her opinion, was sober for one-half the visits and under the

influence for the other half of the visits. The [c]ourt suspended

[Mother’s] periods of supervised partial custody in August of

2013. (Order of August 7, 2013).

[A.R.], [Mother’s] grown daughter[,] testified on October

8, 2013[,] that [Mother] . . . had a drinking problem when the

witness was being raised by her. [A.R.] conceded when [Child]

was born, [Mother] would drink alcohol[,] but [A.R.] and her

older sister “were around.” [A.R.] also admitted that [Mother]

was intoxicated before the placement and[,] since placement[,

A.R.] had seen [Mother] drink alcohol. [A.R.] agrees . . . [that

M]other had been drinking prior to her July, 2013 supervised

visit. [A.R.] also stated [that Child] was always excited to see

[Mother]. The Agency concedes [that Mother] maintains a clean

and tidy residence[,] which is stocked with adequate food.

[Mother] also admitted in her testimony on October 8, 2013

that[,] in 2012[,] her drinking was out of control. The Agency

presented a report from a laboratory stating that on July 26,

2012, [Mother] had alcohol in her system. (Plaintiff’s exhibit

#1).

Trial Court Opinion, 5/23/14, at 10 (some paragraph breaks added).

As to Father, the trial court rendered the following findings:

[Father] is a self[-]employed painting contractor. [Father]

works regularly[,] taking him away from home during the week.

It was this circumstance that left [Child] at home with [Mother]

much of the time. [Father] testified[,] on October 16, 2012[,]

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that he suffers from chronic pain due to a back injury and also

hip problems. His physician has him on a methadone regime to

alleviate the pain. [Father] concedes [that] at times[,] due to

his condition[,] he has run out of medication a day early. At the

February 26, 2014 hearing[, Father] stated the [d]octor has

increased his methadone. [Father] further concedes that[,] as a

result of his injury[,] … he did have a drug abuse problem

between 2005 and 2007. [Mother,] in her testimony[,] indicated

that at times after their separation, [Father] would occasionally

use coke or cocaine after [Child’s] birth and after their

separation. [Mother] said [that Father] did not use these

substances on a regular basis and[,] at times[,] he would use

her prescription medicine.

Drug testing by the Probation Office was presented by way

of a document submitted by the Probation Office. [Father] was

subject to random drug testing from September 2010 through

August of 2013. In November and December of 2010[, Father]

tested positive for cocaine. This is consistent with [Mother’s]

testimony. [Father] also tested positive for cocaine in May of

2011. [Father] did test positive for benzodiazepine a number of

times[;] however, except for four occasions[, Father] had

prescriptions for said substance. From May 13, 2011[,] through

August 8, 2013, [Father] did not fail any drug test. Those times

he tested positive for benzodiazepine he had a valid prescription.

As in the Mother’s case[,] the Agency had no objections to the

condition of [] Father’s home. The Agency has requested [that

Father] undergo evaluation for drug and alcohol treatment. But

each time [Mr. Kashurba] did not feel that [Father] was in need

of treatment.

Dennis Williamson [“Mr. Williamson”], Director of Family

Counseling, testified in the case. [Father], at the Agency’s

request, contacted Mr. Williamson for counseling in mid-2012.

The Agency wished [Father] to undergo counseling for stress

management and anger. [Father] attended 12 sessions. In

these sessions, Mr. Williamson did not witness any uncontrolled

loss of temper. [Father] paid $50.00 per session. Mr.

Williamson noted that [Father] was patient with [Child] and

nothing in the sessions indicated he could not parent [Child].

Mr. Williamson testified he has had 33 years of practice in

counseling parents with a focus on fathers. Mr. Williamson was

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present at a team meeting on August 8, 2012. Representatives

were present from Alternative Community Resource Program

(ACRP) and Mental Health/Mental Retardation (MH/MR). At this

meeting[,] the Father walked out in a fit of anger after 15

minutes. Mr. Williamson observed the occurrence after [Father]

was informed of the Agency’s intention to possibly seek

termination of his parental rights. Mr. Williamson said he

believed the Father’s leaving was an error. But [the]

[c]ounselor’s impression was that [Father] felt he was being

“railroaded” by the Agency. When asked, the [c]ounselor stated

that [Father] has never appeared impaired at any of his

counseling sessions.

An issue was also raised regarding [Father’s] financial

support for [Child]. [Father] is subject to a child support [O]rder

regarding [Child] … for 2011. A review of this file shows that in

the last three years[, Father] has paid $22,655.87 in child

support. It is also true that [Father] has at times been held in

contempt for non-payment, but has paid civil contempt purge

amounts several times. He is currently $4,086.56 in arrears, but

has made regular support payments throughout the history of

the case.

Trial Court Opinion, 5/23/14, at 11-13 (some paragraph breaks added,

citation omitted).

The trial court made the following determinations with regard to

Child’s bond with both natural parents and with his foster parents:

Both the Agency and the parties presented bonding

assessment information. The Agency presented the testimony of

Dennis Kashurba [“Mr. Kashurba”]. Mr. Kashurba was qualified

as an expert in child behavior. Mr. Kashurba did an initial

bonding assessment on September 17, 2012[,] and an

addendum on March 19, 2013. [Mr. Kashurba] found that

[Child] does have an emotional bond with his biological

parents[,] but his bond … is at least as strong with the foster

parents and probably a stronger bond as he has resided with the

foster parents for approximately one-half of his life. Further,

greater stability exists with the foster parents. The addendum

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report of March 19, 2013[,] was based on reports provided by

the [CYS] case supervisor. A review of these documents

indicated a behavioral regression on [Child’s] part. However, on

[cross-examination, Mr. Kashurba] conceded he had not been

provided with copies of the reports of the visits between [Child]

and the biological parents. (Hearing April 16, 2013, page 21,

lines 5-9). Further counsel for the biological parents was not

made aware by the Agency personnel that a supplementary

report was being prepared.

The parents called Peggy Nadenichek [“Ms. Nadenichek”]

as their expert. There was no objection to her testimony in the

area of child behavior. Ms. Nadenichek indicated that there

was[,] in fact[,] a bond between [Child] and [Mother]. (April 16,

2013, page 40, lines 15-16). [Ms. Nadenichek] stated [that,]

based on her observation of [Mother] and [C]hild[,] there was an

existing bond. (April 16, 2013, pages 43, line 25; and 44, line

1). Regarding [Father], [Ms. Nadenichek] noted [that Child]

referred to [Father] as “Daddy [T.]”. (April 16, 2013, page 48,

lines 8-10). [Ms. Nadenichek] described the contact between

Father and [Child] “as vibrant, playful and imaginative, very

affectionate”. (April 16, 2013 page 48, lines 14-17). Further in

her conversations with [Father, Ms. Nadenichek] stated she

found nothing in [Father’s] responses that gave her any

concerns. (April 16, 2013, page 52, lines 8-21).

The current foster parents are anxious to proceed with an

adoption. The Agency and the [GAL] support adoption by the

foster parents.

Trial Court Opinion, 5/23/14, at 13-14 (some paragraph breaks added).

The trial court made the following determinations with regard to the

termination of Mother’s parental rights under section 2511(a)(2) and (b):

Regarding [Mother], the record demonstrates clearly that

the Agency has met its burden. The record supports that Mother

clearly has a bond with [Child]. However, [Mother’s] consistent

and long[-]term abuse of alcohol shows [that] she is incapable of

providing a safe environment for [Child]. This is most

convincingly indicated by the July, 2013 visit when [Mother]

appeared intoxicated for a supervised visit with [Child].

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[Mother] can[,] for periods of up to several months, control her

abuse of alcohol[;] however, inevitably she returns to excessive

drinking. [Child’s] bond with the foster mother, who is anxious

to adopt [Child], is very strong. It is reasonable under these

circumstances to consider [Child’s] bond with the foster family.

In Re: T.S.M., a minor, 71 A.3d [at 268.] The fact of an

existence of a bond between parent and child will not necessarily

result in a denial of termination of parental rights. In Re:

K.K.R.S., 958 A.2d 529[, 535] (Pa[.] Super[.] 2008). In this

case the injury to [Child] resulting from termination is far

outweighed by the benefits gained by the adoption into a stable

home. For these reasons[,] regarding [Mother’s] interest[,] the

[c]ourt will change the goal to adoption and terminate her

parental rights.

Trial Court Opinion, 5/23/14, at 15-16.

The evidence supports the trial court’s finding that Mother’s continued

incapacity, abuse, neglect or refusal to parent could not or would not be

remedied, as she continued to have problems with alcohol abuse. The

record is replete with evidence of the instances in which Mother failed to

maintain sobriety, even with the knowledge that her ability to parent Child

was at stake. Mother’s argument, regarding section 2511(a)(2), essentially

asks this Court to substitute our credibility and weight determinations for

those of the trial court. While Mother may claim to love Child, a parent’s

own feelings of love and affection for a child, alone, will not preclude

termination of parental rights. In re Z.P., 994 A.2d at 1121.

The evidence reflects that Mother has failed to “exhibit [the] bilateral

relationship which emanates from the parent[‘s] willingness to learn

appropriate parenting . . . .” In re K.K.R.S., 958 A.2d at 534. A child’s life

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“simply cannot be put on hold in the hope that [a parent] will summon the

ability to handle the responsibilities of parenting.” In re Z.P., 994 A.2d at

1125. Rather, “a parent’s basic constitutional right to the custody and

rearing of his child is converted, upon the failure to fulfill his or her parental

duties, to the child’s right to have proper parenting and fulfillment of his or

her potential in a permanent, healthy, safe environment.” In re B., N.M.,

856 A.2d 847, 856 (Pa. Super. 2004). Here, the record reflects that Child

was removed from Mother’s care on multiple occasions, and often, very close

together in time. Our careful review discloses that the trial court’s credibility

and weight determinations are supported in the record, as is its termination

of Mother’s parental rights under section 2511(a)(2).

The competent evidence of record also supports the trial court’s

finding that there is no positive bond between Child and Mother worth

preserving that would cause Child harm, if severed. See In re T.S.M., 71

A.3d at 270-71. CYS presented evidence that Child has been removed from

Mother’s care on repeated occasions, only to be placed again in foster care.

In addition to finding that Child has a stronger bond with his foster parents

than with Mother, the trial court found that Child’s foster care parents wish

to adopt Child, provide him with stability, and satisfy all of Child’s emotional

needs and welfare. As the trial court’s determinations regarding section

2511(b), with regard to Mother, are supported by the competent evidence of

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record, and we discern no abuse of discretion or error in this regard, we

affirm the trial court’s involuntary termination of Mother’s parental rights to

Child.

Similarly, the change of goal from reunification to adoption, as to

Mother, is supported by the evidence of record. In a change of goal

proceeding, the best interests of the child, and not the interests of the

parent, must guide the trial court, and the parent's rights are secondary. In

re A.K., 936 A.2d 528, 532-33 (Pa. Super. 2007). The burden is on the

Agency to prove the change in goal would be in the child's best interests. In

the Interest of M.B., 674 A.2d 702, 704 (Pa. Super. 1996). For the same

reasons addressed in the trial court’s bond analysis, the change of goal to

adoption, as to Mother, is supported in the record and we discern no abuse

of discretion or error in this regard.

We next address the appeals filed by CYS and the GAL. CYS claims

that the trial court improperly denied termination of Father’s parental rights,

where Father had failed to meet any of the goals established by CYS. Brief

for CYS at 32. CYS directs our attention to evidence that Father “had never

completed an anger management program, that he continued to test

positively for drugs for which he was not prescribed, and that he had not

completed a drug treatment program.” Id. at 32 (citing N.T., 5/31/13, at

49, 50). According to CYS, Father consistently denied having a drug

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problem. Brief for CYS at 34. CYS further points out evidence that Father

became angry when a caseworker attempted to discuss his failed drug

screen. Id. at 34 (citing N.T., 5/31/10, at 15-16).

The GAL argues that Father

was using drugs and having anger issues[,] resulting in domestic

violence in the home; and those issues continued as follows: (a)

October 2010-Positive for Valium which was not prescribed[, see

N.T., 5/31/13, at 12]; (b) November 2010-Altercation between

[Mother] and [Father] resulting in [Mother] sustaining a broken

ankle when [Father] pushed her down the stairs[, see id. at 13-

14]; (c) December 2010-Drug screen came back positive[, see

id. at 14-15, 21-23]; (d) December 21, 2010-Screaming at and

becoming angry with caseworker[, see id. at 14-16]; (e) As of

December 2010[,] there were nine drug screens where three

were positive for [c]ocaine and [b]enzodiazepine and four were

refusals in that [Father] failed to appear[, see id. at 17]; (f) July

2, 2012-[Father] became very nasty/angry with [Child] and

called [Child] a little bastard[, see id. at 28-29]; [(g)] July 2,

2012-[Mother] reported that [Father] stole some of her

prescription medication[, see id. at 29]; [(h)] July 24, 2012-

drug screen positive for benzodiazepine[, see id. at 32].

Brief for GAL at 35-36 (citation reformatted).

Our review discloses that CYS sought termination of Father’s parental

rights pursuant to, inter alia, subsection (a)(2). In denying the Petition to

terminate Father’s parental rights, the trial court stated the following:

As to [Father], the picture is not as clear. [Father] is gruff

talking and has lost patience with [CYS] and at times this

[c]ourt. But there is little to indicate that [Child] does not have

a healthy and happy relationship with [Father]. [Child] has been

removed from [Father’s] care over concerns with drug usage[;]

however, as noted above, he suffers from a back injury, does

hard manual labor, and frequently works out of state. There is

some evidence [that] at times[, Father] takes more methadone

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than recommended by the [d]octor, and at times when he

cannot get a prescription filled[,] he will take some pain

medicine without a prescription. However, there is almost no

evidence of impairment [at] any time[,] especially those periods

he exercised custody. The [c]ourt does not attempt to justify

[Father] taking valium without a prescription, but the fact

remains [that Father] frequently works out of state, and may

well have difficulty getting a prescription refilled. It should be

noted that from February 28, 2011 through January 23, 2012[,

Father] had a prescription for Benzodiazepine. Given the

positive bond existing between Father and son[,] and given that

[Father] has regularly paid support and exercised custody when

allowed by the [c]ourts to do so; it is not in [Child’s] best

interest to terminate [Father’s] parental rights. In regards to

change of goal and termination in the Father’s case[,] the

[P]etition is denied.

Trial Court Opinion, 5/23/14, at 19-20. In summary, the trial court denied

termination because (1) it found Father’s drug usage excusable; (2) Father

exhibited no impairment during visits with Child; (3) there is a positive bond

between Father and Child; and (4) Father regularly paid support. See id.

Upon review, the palpable conflict and error in the court’s reasoning

leads us to reject its determination under section 2511(a)(2). Although the

trial court recognized that Child was removed from Father’s custody because

of his drug usage, it overlooked or excused uncontroverted evidence that

Father had not completed any drug treatment program, as requested by

CYS, and had failed drug screening tests. See N.T., 5/31/13, at 49 (wherein

CYS presented testimony that Father had failed to complete a drug

treatment program); see id. at 15, 17, 21-23, 32 (wherein evidence was

presented regarding Father’s failed drug screens). The trial court excused

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the failed drug screening tests because, it reasoned, there was no evidence

that Father had cared for Child while impaired. Trial Court Opinion, 5/23/14,

at 19. We conclude that such reasoning is flawed, given this Court’s

discussion in In re Z.P.

In In re Z.P., this Court recognized that “[n]either the language of the

Act, nor our case law, supports [the] position that Section 2511(a)(2)

requires a showing that a putative parent have an opportunity to inflict

substantial physical or mental harm upon a child before the state can

intervene[.]” In re Z.P., 994 A.2d at 1117. Given Father’s history of drug

usage, and Child’s removal based, in part, upon such usage, the trial court’s

reasoning in this regard is flawed, and constitutes an abuse of discretion.

Contrary to the trial court’s conclusion, the evidence of record

demonstrates that Father is not capable of meeting the essential needs of

Child and will be unable to do so within a reasonable time. Further, the

clear, convincing, competent evidence of record supports the termination of

Father’s parental rights under Section 2511(a)(2).

If a ground for termination is demonstrated by clear and convincing

evidence under Section 2511(a), the court next considers whether

termination is in the best interests of the child pursuant to subsection (b).

Regarding the bond analysis,

[t]he “utmost attention should be paid to discerning the

effect on the child of permanently severing the parental bond.

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However, as discussed below, evaluation of a child’s bonds is not

always an easy task.

The Superior Court has emphasized that the mere

existence of a bond or attachment of a child to a parent will not

necessarily result in the denial of a termination petition. “[E]ven

the most abused of children will often harbor some positive

emotion towards the abusive parent.” “The continued

attachment to the natural parent, despite serious parental

rejection through abuse and neglect, and failure to correct

parenting and behavior disorders which are harming the children

cannot be misconstrued as bonding.”

Common sense dictates 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.

***

[C]ontradictory considerations exist as to whether

termination will benefit the needs and welfare of a child who has

a strong but unhealthy bond to his biological parent, especially

considering the existence or lack thereof of bonds to a pre-

adoptive family. As with dependency determinations, we

emphasize that the law regarding termination of parental rights

should not be applied mechanically, but instead always with an

eye to the best interests and the needs and welfare of the

particular children involved. . . . Obviously, attention must be

paid to the pain that inevitably results from breaking a child’s

bond to a biological parent, even if that bond is unhealthy, and

we must weigh that injury against the damage that bond may

cause if left intact. Similarly, while termination of parental rights

generally should not be granted unless adoptive parents are

waiting to take a child into a safe and loving home, termination

may be necessary for the child’s needs and welfare in cases

where the child’s parental bond is impeding the search and

placement with a permanent adoptive home.

In weighing the difficult factors discussed above, courts

must keep the ticking clock of childhood ever in mind. Children

are young for a scant number of years, and we have an

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obligation to see to their healthy development quickly. When

courts fail . . . the result, all too often, is catastrophically

maladjusted children.

In re T.S.M., 71 A.3d at 267-69 (citations omitted).

Here, the trial court denied termination “given the positive bond

existing between Father and [Child] and given that Father has regularly paid

support and exercised custody when allowed by the Courts to do so[.]” Trial

Court Opinion, 5/23/14, at 19-20. As stated above, the trial court’s

consideration of Father’s child support compliance was improper. Further,

the trial court’s bond analysis is incomplete, as the court failed to consider

and weigh the positive bond it found between Child and the foster parents,

and the stability and care provided by the foster parents. The trial court’s

reliance upon Father’s bond with Child, alone, fails to meet the requirements

of section 2511(b).

As the trial court’s section 2511(b) analysis is, at best, incomplete, we

are constrained to reverse the trial court’s Order denying CYS’s Petition and

change of goal as to Father, and remand the matter for the trial court’s

application of the appropriate standard in its section 2511(b) bond analysis.

On remand, the trial court may take additional evidence, if necessary, to

comply with this directive.

Order granting Petition and goal change as to Mother affirmed. Order

denying Petition and goal change as to Father reversed. Case remanded for

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further proceedings consistent with this Memorandum. Superior Court

jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/29/2015

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