J-A21045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF D.A.P., II, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.J.S., NATURAL :
MOTHER :
:
:
: No. 614 WDA 2017
Appeal from the Order entered March 8, 2017
In the Court of Common Pleas of Cambria County
Orphans’ Court at No: No. 2016-964-IVT
BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 16, 2017
D.J.S. (“Mother”) appeals from the March 8, 2017 decree in the Court
of Common Pleas of Cambria County that involuntarily terminated her
parental rights to her son, D.A.P., II (“Child”), born in February of 2006.1
Upon careful review, we affirm.
We summarize the relevant facts and procedural history as follows. In
April of 2015, Cambria County Children and Youth Services (“CYS”) received
a report alleging that Child, who resided with Mother, had not been enrolled
in school since February of 2013. N.T., 1/17/17, at 9; Petitioner’s Exhibit 5,
at 2. Following a hearing on June 6, 2015, the trial court adjudicated Child
dependent and placed him in foster care. N.T., 1/17/17, at 11. In addition,
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1
The March 8, 2017 decree also involuntarily terminated the parental rights
of Child’s father, D.A.P. D.A.P. did not file a notice of appeal.
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the court appointed an educational decision maker and a CASA worker for
this family. Petitioner’s Exhibit 5, at 2.
Child is diagnosed with Attention Deficit Hyperactivity Disorder
(“ADHD”) and autism. N.T., 1/17/17, at 38; N.T., 2/28/17, at 48, 63. At
the time of his placement, Child was nine years old. The CYS caseworker,
Carol Crouse, testified as follows regarding Child’s condition at that time.
[Child] was not able to drink from a straw. He could not hold a
pencil. He could not navigate stairs. He didn’t know what a
sliding board was. He didn’t know what a swing was for. He
was afraid of everything, afraid to go outside, afraid to
participate in any kind of group activities, was not willing to try
new foods of any kind.
N.T., 1/17/17, at 16. Ms. Crouse testified that Child would only eat chicken
nuggets. Id. Further, Ms. Crouse testified that Child “had a very unusual
way of speaking.” Id. at 17. She explained:
If [Child] wanted to do something, he would ask a teacher, me
do that? Or he would say, what that? It was as if he was very
sheltered and he lacked a lot of social skills. He had informed
me that he spent a lot of his time sitting on his bed while his
mother was on the computer.
Id.
John Jubas, Ph.D., the court-appointed educational decision maker,
explained that, in the fall of 2015, Child was chronologically in third grade,
but he was assessed by the Richland School District as being two years
behind academically. N.T., 2/28/17, at 41-42. The school district developed
an Individual Education Program (“IEP”) for Child, and assigned specialists to
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him, including professional educators, an emotional support teacher, and
speech and occupational therapists. Id. at 42.
The court established Child’s placement goal as reunification. Mother
was required to complete the following Family Service Plan (“FSP”)
objectives: cooperate with the Richland School District and Dr. Jubas; enroll
in and complete parenting classes; cooperate with Independent Family
Services (“IFS”), which supervised Mother’s visits with Child; and participate
in a psychiatric evaluation. N.T., 1/17/17, at 12.
On October 25, 2016, CYS filed a petition for the involuntary
termination of Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b). A hearing occurred on January 17 and February 28,
2017. CYS presented the testimony of its caseworker, Ms. Crouse, who
testified that Child’s progress “amazes” her and his teachers. N.T., 1/17/17,
at 48-49. In addition, CYS presented the testimony of Dr. Jubas, who
testified that Child’s progress “has been strongly so encouraging.” N.T.,
2/28/17, at 47. He testified that, at the time of the subject proceedings,
Child was in the fourth grade classroom and only one year behind
academically. Id. at 46-47. Further, CYS presented the testimony of
Jessica Quist, the IFS therapist, who supervised Mother’s visits with Child
and worked with Mother on her parenting skills from approximately August
of 2015, through June of 2016. Finally, CYS presented the testimony of
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Dennis Kashurba, a licensed psychologist, who performed a psychological
evaluation of Mother in May of 2016. Mother testified on her own behalf.
By decree dated March 8, 2017, and entered on March 9, 2017, the
orphans’ court granted the involuntary termination petition. On March 23,
2017, Mother’s court-appointed counsel, Suzann M. Lehmier, Esquire,
requested the withdrawal of her appearance. On March 24, 2017, the court
granted her request and appointed Gregory Neugebauer, Esquire, to
represent Mother in any appeal proceedings. On April 13, 2017, Attorney
Neugebauer filed a petition to file a notice of appeal nunc pro tunc, which
the orphans’ court granted on April 18, 2017. Mother timely filed a notice of
appeal and a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b). On May 1, 2017, the orphans’ court filed
an opinion pursuant to Rule 1925(b), wherein the court relied on its findings
set forth in the subject decree.
On appeal, Mother raises the following issue for our review:
1. Whether the [c]ourt either abused its discretion or committed
an error of law when it granted the [p]etition for [i]nvoluntary
[t]ermination of [p]arental [r]ights, thereby terminating the
parental rights of [Mother] to [Child][?]
Mother’s Brief at 2.
We consider Mother’s issue according to the following standard.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
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or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
We need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we
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conclude that the certified record supports the decree pursuant to Section
2511(a)(2) and (b), which provides as follows.2
(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. § 2511(a)(2), (b).
This Court has stated as follows.
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
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2
Based on this disposition, we need not consider Mother’s issues with
respect to Section 2511(a)(1), (5), and (8).
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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) (citation
omitted)). Further, we have stated, “[t]he 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 A.L.D., 797 A.2d 326,
337 (Pa. Super. 2002) (citations omitted).
With respect to Section 2511(b), this Court has stated that,
“[i]ntangibles such as love, comfort, security, and stability are involved in
the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial court
“must also discern the nature and status of the parent-child bond, with
utmost attention to the effect on the child of permanently severing that
bond.” Id. (citation omitted). However, “[i]n cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946 2d
753, 762-763 (Pa. Super. 2008) (citation omitted).
On appeal, Mother argues that the orphans’ court abused its discretion
pursuant to Section 2511(a)(2) because Child’s educational needs can be
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met without terminating her parental rights. In essence, she asserts the
only concerns keeping Child in placement is his schooling. Mother asserts
the schooling concerns have been remedied with the assistance of Dr. Jubas,
the court-appointed educational decision maker, with whom she promises to
cooperate. The competent record evidence belies Mother’s argument.
Contrary to Mother’s assertions, the certified record demonstrates that
Mother’s repeated and continued incapacity due to her mental health has
caused Child to be without essential parental care, control, or subsistence
necessary for his physical and mental well-being. Further, the record
demonstrates that the causes of Mother’s incapacity cannot or will not be
remedied.
Dennis Kashurba, who performed a psychological evaluation of Mother,
testified that Mother is diagnosed with bipolar disorder; anxiety disorder not
otherwise specified; depressive disorder not otherwise specified;
parent/child relational problem and relational problem not otherwise
specified; and paranoid personality disorder with schizotypal features. N.T.,
1/17/17, at 76.
The orphans’ court found significant the prognosis of Jessica Quist, the
IFS therapist, as follows.
The prognosis of the . . . family continues to remain very
questionable due to [Mother’s] mental health symptoms.
[Mother’s] ongoing lack of insight into her mental health
[symptoms] continues to be a major barrier for the family.
. . .[Mother’s] continued inability to acknowledge/recognize the
need for change of her parenting for [Child’s] needs and her
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continued lack of developing positive relationships with
educational providers [sic]. . . . [Mother] continues to make
comments during the visits with [Child] that ‘I was doing a
better job with teaching him while he was at home.’[3] . . .
[Mother’s] mental health symptomology is also a concern with
regards to having any insight into [Child’s] needs. [Mother] has
stated irrational ideas regarding [Child] and the others involved
in his care. [Mother’s] preoccupation with these ideas makes it
difficult to redirect her into focusing on developing her parenting
skills.
Decree, 3/8/17, at ¶ 10 (quoting Petitioner’s Exhibit 13, at 3 (unpaginated)).
Ms. Quist testified that, in addition to supervising Mother’s visits with
Child, she tried to help Mother improve her communication skills with Child
and with the Richland School District. N.T., 2/28/17, at 6. Ms. Quist
testified that Mother had “delusional conspiracy” theories regarding Child’s
elementary school and his teachers. Id. at 10. Further, she testified that
Mother “had a negative attitude with regard to [Child’s] education.” Id. at
9. She testified that Mother “criticized a lot of things that [Child] would like
to share with her about how the week went with school. That basically she
didn’t appear to think that the way the classes were at Richland School
District were appropriate to meet [Child’s] needs.” Id. Moreover, Ms. Quist
testified that Mother did not recognize the progress that Child was making.
She testified on direct examination as follows.
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3
Ms. Crouse, the CYS caseworker, acknowledged on cross-examination by
the Guardian Ad Litem that she was unaware of any state-mandated
homeschooling lesson plan that Mother followed during the years that Child
was not in school. N.T., 1/17/17, 50.
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Q. You indicated that [Mother] would make comments about
[Child’s] comprehension and things like that to him and that he
would appear to be upset. What would his demeanor be like?
A. He would appear to be almost defeated. [Mother] would say
his comprehension is not what it should be. [She would say,]
[ ]
“ I was teaching him much better when he was at home.[”] . . .
[T]he longer I worked with [Child], the better you saw his
socialization. He needed a little more time to express what he
was trying to say. He needed to think about it. But you could
tell he was improving and talking a lot more. But [Mother] did
not appear to see that as any kind of progress with [Child]. . . .
Id. at 11-12.
In addition, Ms. Quist testified that Mother had “irrational ideas”
involving Child’s foster family. Specifically, she testified that Mother thought
the foster family was “trying to ruin [Child], and she would say that directly
in front of [Child], and criticize the foster family repeatedly for not taking
care of him.” Id. at 13. She testified that Child “was actually very hurt by
[Mother’s] statements about the foster family because he had grown to care
for them. . . .” Id. Further, the foster family was meeting Child’s needs.
Id. at 36-37.
Importantly, with respect to Mother’s parenting skills, Ms. Quist
testified that her skills had declined during the approximately nine months
she worked with her. N.T., 2/28/17, at 14-15.
Q. Was [Mother] open to suggestions – or would you give her
suggestions on how to improve her parenting?
A. I would politely make suggestions, but [Mother] would politely
decline any suggestions. We did suggest some activities and
things like that to do. And she would never be mean, but she
would politely decline and say she had plans for things to do with
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[Child]. But as far as school, the situation with his education,
[Mother] did not want to take any [suggestions regarding]
getting along with the school district, even improve the
relationship so she could even talk to the educators more, she
didn’t wish to do that.
Id. at 14.
Dr. Jubas testified he had meetings with Mother to share information
about Child’s IEP and the progress he was making. N.T., 2/28/17, at 43.
He described Mother during those meeting as being “very agitated . . . as to
what we were trying to do. . . .” Id. at 44. He explained that Mother
“was just not a real supporter of the Richland School[, but she provided]
no[] detail as to what was wrong with the school.”4 Id. at 58.
Moreover, Mr. Kashurba testified with respect to his overall conclusions
following the psychological evaluation he performed on Mother in May 2016,
as follows.
[Mother] had sufficient intellectual ability to learn appropriate
parenting strategies. However, it does appear that her mental
health issues are likely to adversely affect her ability to
implement these independently in the foreseeable future.
. . . [H]er current psychotropic medication regimen would appear
to have addressed her primary affective spectrum symptoms of
anxiety and depression. . . .
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4
Ms. Crouse testified that Dr. Jubas’ meetings with Mother occurred at the
CYS office and not on school property because Child “had relayed that his
mother was not happy with the school district and that she had made
threats to go blow the school up, so the district was very wary of having her
come to their school.” N.T., 1/17/17, at 15.
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[ ] [N]evertheless, her thought processes appear to be
significantly impaired as evidenced by her tendency to permit
the events from long ago to dominate the here and now of her
circumstances and those of her son. At this point, it does not
appear likely she will be able to ameliorate her mental health
issues . . . before her son has been in placement for 15
consecutive months.
N.T., 1/17/17, at 77-78. Mr. Kashurba explained that Mother had been
receiving psychiatric treatment for fifteen years. Id. at 80. Further, when
he evaluated Mother, Child had been in placement for approximately eleven
and one-half months. Id. Therefore, Mr. Kashurba testified, “I don’t see
how within a reasonable period of time one could be assured that [Mother’s
mental] issues could be resolved.” Id. at 79.
Finally, Ms. Crouse testified on direct examination that Mother’s
telephone conversations with Child were recently reduced to ten minutes per
week and to be supervised by the foster parent for the following reason.
[Mother] was on the phone with [Child] and the foster mother
had exited the home. She was only in the front yard. And
[Mother] had told [Child], [‘]the foster mother left you alone,
she’s not allowed to do that, you should go hide up in the attic
and call 911.[’] And that greatly frightened [Child].
N.T., 1/17/17, at 19-20. Ms. Crouse testified that Mother’s parental rights
should be terminated “due to the longevity and the severity of her mental
health.” Id. at 33. She continued as follows.
It’s difficult as adults whenever we talk to [Mother] sometimes.
It’s extremely difficult to expect a ten-year-old little boy to be
able to reach his mother and to respond accordingly to her
because he is afraid that he’s going to make her angry with his
responses, and he walked on eggshells whenever he’s around
her.
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Id. Based on the foregoing, we conclude that the testimonial evidence
overwhelmingly supports the termination of Mother’s parental rights
pursuant to Section 2511(a)(2).
With respect to Section 2511(b), Mother argues that the orphans’
court abused its discretion because there is no record evidence that Mother’s
“interactions were either unhealthy or harmful to the Child.” Mother’s Brief
at 14. In addition, Mother asserts, “Child stands to lose . . . an extremely
important bond.” Id. The competent record evidence again belies Mother’s
argument.
This Court has explained as follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
The orphans’ court found as follows.
12. . . . Mother expressed that she does have a bond with
[Child], and, no doubt, loves her son. However, her actions, or
failure to act, speak louder than her words. Considering the
testimony of the caseworker and court-appointed educational
decision maker, this child has made amazing progress since
being placed with a foster family and is now in elementary school
full-time. As testified, he is like a “sponge,” absorbing all that
his mother kept from him for over two years. . . . The [c]ourt
placed little weight on [Mother’s] testimony. As the caseworker
stated . . . “This child deserves to have a family who make sure
that Child continues to grow and that he reaches his full
potential.”
13. In terminating the parental rights of [Mother], this [c]ourt
has found that this will best meet the development[al], physical
and emotional needs and welfare of the child.
Decree, 3/8/17, at ¶ 12 (citing Petitioner’s Exhibit 11). The testimonial
evidence supports the court’s findings.
Dr. Jubas testified, in part:
Q. . . . Were some of [Child’s] issues [at the time of his
placement] a result of [his] autism or do you believe that they
are more [as] a result of an isolated, unstimulated [home]
environment?
A. . . . [A]ny child with any disability, if properly schooled in the
home setting in the early years[,] certainly has time for growth
and development in those particular skills [that Child was lacking
at placement]. . . . At this point there was every indication and
observation that this child wasn’t given a very strong educational
early setting in the home.
Q. And that could . . . be a reason for [Child’s developmental] delays?
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A. It certainly gives a strong approach to it, yes.
N.T., 2/28/17, at 70-71.5
Dr. Jubas testified that Child’s progress “is extremely high,” which he
credits to Child’s teacher and to his comfort level with the Richland School
District. N.T., 2/28/17, at 60. In addition, Ms. Crouse testified that Child “is
a very sweet young man. He adores going to school. He would become
very upset whenever he learned it was Friday and that he would be off
Saturday and Sunday.” N.T., 1/17/17, at 22. Ms. Crouse explained that
Child did not initially “understand that Saturday and Sunday were a weekend
and that he would be staying at home and not attending school.” Id.
Ms. Quist, who supervised visits between Mother and Child, testified,
“[o]ftentimes . . . [Mother] didn’t pay attention to [Child] during the visits.”
N.T., 2/28/17, at 18. She testified that Mother had poor communication
with Child. Id. at 19. Ms. Quist explained on direct examination,
[Child] would often try to speak and he was often interrupted,
not allowed to finish what he was saying. . . . [Mother] told
[Child] she didn’t like to hear certain things that he had to say,
especially when it came to his interest of dinosaurs and things
like that. She told him it bothered her and she didn’t want to
hear it. It wasn’t promoted that [Child] could fully express
himself to her.
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5
Similarly, Ms. Crouse testified on direct examination that Child “had told
the foster parents that he was not allowed to draw, and he is a very talented
little artist. He loves to draw. I think that he led a very sheltered life [while
in Mother’s custody].” N.T., 1/17/17, at 18.
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Id. As a result, she testified that, over time, Child “didn’t appear to make as
much effort to try to talk to his mother.” Id.
Ms. Quist testified with respect to the nature of the bond between
Mother and Child as follows.
At times they appeared to get along very well and then it was
other times it was amiss with, depending on [Mother’s] mood,
[Child] would often just get his coat and get his stuff and run out
the door as soon as the visit was over. [Mother] would have to
ask for a hug goodbye or a kiss goodbye. He did not usually
offer that freely. I didn’t see any bond actually getting better
with him over time.
Id. at 20. In short, she testified on direct examination,
Q. Do you see a strong parent/child relationship [between
Mother and Child]?
A. No.
Id. Ms. Quist testified that it is in Child’s best interest for Mother’s parental
rights to be terminated. Id. at 20-21.
Similarly, Ms. Crouse testified that she personally supervised some
visits between Mother and Child, and that she did not observe a bond
between them. N.T., 1/17/17, at 19, 27. She described the visits as
follows.
The visits were very cold and clinical. [Child] would show
affection at the end of the visit if he was asked. I did not hear
[Child] refer to his mother by mom. There were times that he
would refer to his mom as the foster parent. . . .
When time was winding down, [Child] would begin gathering up
anything that he brought with him. He put his coat on, put his
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hat on, and he would make the announcement[,] [“]I’m ready to
go home.[”] And by home, he meant the foster home.
Id. Further, Ms. Crouse testified, Child “has made statements that, if he
had to go back home to his mother, he would walk out the door[,] and he
would walk back to the foster home.” Id. at 25.
Ms. Crouse testified that Child is doing “extremely well with the foster
parents. He has flourished. He doesn’t leave the foster home unless he
gives the foster mother a kiss on each cheek and one on her forehead. . . .
He is affectionate with the foster father.” N.T., 1/17/17, at 23. As such, she
testified that Child is bonded with his foster family. Id. at 25.
Importantly, Ms. Crouse testified on direct examination with respect to
whether the involuntary termination of Mother’s parental rights will serve the
needs and welfare of Child, as follows.
Q. Do you believe that . . . if there is any . . . minuscule bond
[that] does exist [between Mother and Child], that severing that
bond is in the best interests of [Child]?
A. Yes, I do.
Q. Do you believe that severing that bond would promote
[Child’s] developmental, physical and emotional needs?
A. Yes, I do.
Q. Why do you feel that way?
A. Because of the condition that [Child] was in when he entered
care and the amount of progress that he’s made since he’s been
in care[.] [I]f [Child] were to be returned home[,] I would fear
that he would regress back to the child that he was upon his
placement.
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N.T., 1/17/17, at 31.
Based on the foregoing testimony, and our review of the entire record
before this Court, we conclude that the evidence overwhelmingly supports
the termination of Mother’s parental rights pursuant to Section 2511(b).
Mother’s arguments on appeal are without merit. Accordingly, we affirm the
decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2017
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