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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.C. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.C. No. 2172 MDA 2015
Appeal from the Decree November 17, 2015,
in the Court of Common Pleas of Lancaster County, Orphans’
Court, at No(s): 2014-1720
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 17, 2016
N.C. (“Mother”) appeals from the decree dated and entered November
17, 2015, in the Court of Common Pleas of Lancaster County by the
Honorable Jay J. Hoberg, granting the petition filed by Lancaster Children
and Youth Service Agency (“CYS”) to involuntarily terminate Mother’s
parental rights to the minor, male child, E.C. (born in December of 2012)
(“Child”), pursuant to section 2511(a)(1), (2), (6), and (8) and (b) of the
Adoption Act, 23 Pa. C.S.A. § 2511(a)(1), (2), (6), and (8) and (b).1 We
affirm.
The trial court has set forth the relevant history of this case in its
Opinion. See Trial Court Memorandum Opinion, 11/17/15, at 2-9. We
adopt the trial court’s recitation for purposes of this appeal. See id. On
August 21, 2014, CYS filed a petition to terminate the parental rights of
1
On December 15, 2015, the trial court terminated V.B.-F.’s (“Father”)
parental rights to Child. Father is not a party to this appeal, nor did he file a
separate appeal.
*Former Justice specially assigned to the Superior Court.
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Mother to Child. On October 7, 2014 and August 11, 2015, the trial court
held hearings on that petition. At the hearings, Robert Pratt, a CYS
supervisor, Suzanne Ail, Ph.D., a clinical psychologist; Angela Sypolt, CYS
caseworker; Franziska Sexton, Mother’s life coach; and Mother testified. On
November 17, 2015, the trial court terminated Mother’s parental rights to
Child.
On December 15, 2015, Mother timely filed a notice of appeal, along
with a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother raises the following issues on appeal:
1. Was the decision of the trial court based on insufficient
evidence?
2. Was the decision of the trial court against the weight of the
evidence?
Mother’s Brief, at 4.
In reviewing an appeal from a decree 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.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. Id.; R.I.S.,
[614 Pa. 275, 284,] 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
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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, 654-655],
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
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., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (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).
Moreover, we have explained:
[t]he 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)).
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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). Accordingly, for the purpose of our review, we will focus on the
termination of Mother’s parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(8). The relevant statutory provisions state, in pertinent part:
§ 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:
* * *
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
* * *
(b) Other considerations.—[…] 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(a)(8) and (b).
When considering a termination petition, the trial court must initially
focus on the conduct of the parent and determine whether statutory grounds
for termination under Section 2511(a) are met. In re Adoption of R.J.S.,
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901 A.2d at 508. Subsection (a)(8) requires clear and convincing proof “(1)
that the child has been removed from the care of the parent for at least
twelve (12) months; (2) that the conditions which had led to the removal or
placement of the child still exist; and (3) that termination of parental rights
would best serve the needs and welfare of the child.” Id. at 511. In a
Section 2511(a)(8) analysis, the focus is solely on whether the conditions
which led to the child’s initial placement continue to exist. “Termination
under Section 2511(a)(8) does not require the court to evaluate a parent’s
current willingness or ability to remedy the conditions that initially caused
placement or the availability or efficacy of Agency services.” In re Z.P., 994
A.2d 1108, 1118 (Pa.Super. 2010) (citations omitted). This Court has
explained:
We recognize that the application of Section (a)(8) may
seem harsh when the parent has begun to make progress
toward resolving the problems that had led to removal of
her children. … However, by allowing for termination when
the conditions that led to removal of a child continue to
exist after a year, the statute implicitly recognizes that a
child’s life cannot be held in abeyance while a parent
attempts to attain the maturity necessary to assume
parenting responsibilities. The 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 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.
In re Adoption of R.J.S., 901 A.2d at 513 (emphasis in original) (citations
omitted). “A parent is required to exert a sincere and genuine effort to
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maintain a parent-child relationship; the parent must use all available
resources to preserve the parental relationship and must exercise reasonable
firmness in resisting obstacles placed in the path of maintaining the parent-
child relationship.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)
(internal quotation omitted).
Furthermore, “we are instructed that we may not consider any effort
by the parent to remedy the conditions described in subsection[](a)(8) if
that remedy was initiated after the parent was given notice that the
termination petition had been filed.” In re Z.P., 994 A.2d at 1121 (citation
omitted); 23 Pa.C.S.A. § 2511(b). Further, this evidentiary limitation
applies to the entire termination analysis. Id. The court, however, may
consider post-petition efforts if the efforts were initiated before the filing of
the termination petition and continued after the petition date. Id.
In her appellate brief and Rule 1925(b) statement, Mother first argues
the decision of the trial court was based on insufficient evidence. Id. at 4.
Mother also avers that the decision of trial court was against the weight of
the evidence. Id. While Mother does not state with specificity her issues of
appeal in her Rule 1925(b) statement and in her brief, we do not deem the
issues waived, and we review the issues in Mother’s brief challenging the
termination of parental rights. See Commonwealth v. Laboy, 936 A.2d
1058 (Pa. 2007).
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After careful review of the record, including the notes of testimony
from the October 7, 2014 and August 11, 2015 hearings, the parties’ briefs,
and the well-reasoned decision of the Honorable Jay J. Hoberg, we affirm on
the basis of the trial court’s decision. See Trial Court Memorandum Opinion,
11/17/15, at 11-19 (holding Child has been removed from Mother’s custody
for thirty-two months; the conditions which led to the removal still exist
including Mother’s instability, mental health issues, and relationship with
Father; CYS presented credible evidence regarding the needs, welfare and
best interests of Child; Child’s resource family meets Child’s developmental
and emotional needs; and Child has stability and permanency in his resource
home). Accordingly, having perceived no abuse of discretion, we affirm the
trial court’s decree. See In re Adoption of S.P., 47 A.3d at 826-27.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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