In Re: Adoption of: S.A.W., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF S.A.W., A MINOR 1 IN THE SUPERIOR COURT
OF
PENNSYLVANIA

APPEAL OF: K.L.W., MOTHER

No. 3092 EDA 2017

Appeal from the Decree entered August 22, 2017,
in the Court of Common Pleas of Montgomery County,
Orphans' Court, at No(s): 2017-A0011.

IN RE: ADOPTION OF J.M.W., A MINOR IN THE SUPERIOR COURT
OF
PENNSYLVANIA

APPEAL OF: K.L.W., MOTHER

No. 3092 EDA 2017

Appeal from the Decree entered August 22, 2017,
in the Court of Common Pleas of Montgomery County,
Orphans' Court, at No(s): 2017-A0012.

BEFORE: GANTMAN, P.J., OLSON and DUBOW, JJ.

MEMORANDUM BY DUBOW, J.: FILED JANUARY 17, 2018
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In these consolidated appeals, K.L.W. ("Mother") appeals from the final

decrees involuntarily terminating her parental rights to her daughters, S.A.W.,

age nine, and J.M.W., age six, ("Children") pursuant to the Adoption Act, 23

Pa.C.S. § 2511(a) and (b). We affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

In December 2010, the Montgomery Office of Children and Youth (the

Agency") became involved with Mother and Children due to Mother's mental

health issues and an incident wherein Mother kicked S.A.W., and for which

she was arrested. Thereafter, the Agency put a safety plan in place that

provided Mother was not to be left unsupervised with Children. The Agency

supported J.W. ("Maternal Grandmother") in obtaining custody of S.A.W.

After giving birth to J.M.W., Mother's mental health declined and she was

psychiatrically hospitalized for several months. Maternal Grandmother also

obtained custody of J.M.W. after her birth.

The Agency placed Children in foster care on July 27, 2011, but returned

custody of them to Maternal Grandmother several weeks later because she

was able to exclude Mother from the home and otherwise meet the Children's

needs. At that time, the Agency warned Maternal Grandmother that if Mother

returned to her home, the Agency was likely to become involved again

because of Maternal Grandmother's struggles caring for both Mother and

Children.

In February 2016, the Agency again took custody of Children after

receiving multiple referrals regarding the family. Mother was again residing

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in the home and the referrals indicated physical conflicts in the home, as well

as concerns regarding the condition of the home and possible neglect of

Children. The Agency offered services to Mother, and Mother was able to

complete some of her Family Service Plan goals. Nevertheless, Mother was

unable to demonstrate an ability to care for her own needs and the needs of

Children.

On February 2, 2017, the Agency filed a petition to terminate Mother's

parental rights to Children, as well as a petition to terminate the parental

rights of D.W., J.M.W.'s biological father.' The Orphans' Court held a

permanency review hearing for J.M.W.'s biological father and a termination of

his parental rights hearing on June 21, 2017. Although Mother's

hospitalization prevented her from attending this hearing, the court denied

her counsel's request to continue the matter. At this hearing, the court heard

evidence from the Agency's caseworkers, members of the police regarding

multiple calls to Maternal Grandmother's residence, and a psychiatrist who

was treating J.M.W. J.M.W's father also testified and presented testimony

from Maternal Grandmother.

Mother was present for an August 22, 2017 hearing regarding the

termination of her parental rights. At this time, the Orphans' Court placed on

the record the fact that it had interviewed Children in chambers on June 15,

2017. The court also incorporated the testimony from the June 21, 2017

' K.J.G., S.A.W.'s biological father, had consented to her adoption.

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hearing. Mother then testified on her own behalf. The Orphans' Court issued

its opinion from the bench, in which it stated its reasons for terminating

Mother's parental rights to pursuant to 23 Pa.C.S. §2511(a)(1),(2), (5), and

(b). This timely appeal by Mother follows.

ISSUES ON APPEAL

Mother raises the following issues on appeal:

1. Whether the Honorable Court below committed an error
of law and/or abuse of discretion when it held that [the
Agency] had proved by "clear and convincing evidence"
that [Mother's] parental rights should be terminated
pursuant to 23 Pa.C.S. §2511(a)(1).
2. Whether the Honorable Court below committed an error
of law and/or abuse of discretion when it held that [the
Agency] had proved by "clear and convincing evidence"
that [Mother's] parental rights should be terminated
pursuant to 23 Pa.C.S. §2511(a)(2).
3. Whether the Honorable Court below committed an error
of law and/or abuse of discretion when it held that [the
Agency] had proved by "clear and convincing evidence"
that [Mother's] parental rights should be terminated
pursuant to 23 Pa.C.S. §2511(a)(5).

See Mother's Brief at 4-5.

LEGAL ANALYSIS

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." In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012). "If the factual findings are supported,

appellate courts review to determine if the trial court made an error of law or

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abused its discretion." Id. We may reverse a decision based on an abuse of

discretion only upon demonstration of "manifest unreasonableness, partiality,

prejudice, bias, or ill -will." Id. We may not reverse, however, merely because

the record would support a different result." Id. at 827.

We give great 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). The Orphans' Court is free to believe all, part, or none

of the evidence presented and is likewise free to make all credibility

determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d

68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination

of parental rights, this Court need only agree with any one subsection under

Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).

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). We

have explained that "[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. (citations omitted).

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Termination Pursuant to 2511(a)(1)
Section 2511(a)(1) provides that the trial court may terminate parental

rights if the Petitioner establishes that for six months, the parent

demonstrated a settled intent to relinquish a parental claim or a refusal or

failure to perform parental duties:

a) The rights of parent in regard to a child may be
a
terminated after a petition filed on any of the following
grounds:

(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of
the petition has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.

23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as requiring

the Petitioner to demonstrate a settled intent to relinquish a parental claim to

a child or a refusal or failure to parent:

To satisfy the requirements of section 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform
parental duties.

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
This Court has defined "parental duties" in general as the obligation to
provide safety, security and stability for the child affirmatively and
consistently:

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There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this Court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty ... requires continuing interest in the
child and a genuine effort to maintain communication and
association with the child. Because a child needs more than
a benefactor, parental duty requires that a parent exert
himself to take and maintain a place of importance in the
child's life.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations

omitted).

Moreover, a parent must exercise reasonable firmness in resisting

obstacles placed in the path of maintaining the parent child relationship:

Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every
problem, in order to maintain the parent -child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize 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.
Id.
And most importantly, "parental rights are not preserved by waiting for

a more suitable or convenient time to perform one's parental responsibilities

while others provide the child with her physical and emotional needs." Id.
In the instant case, the trial court properly concluded that the Agency

met the requirements of Section 2511(a)(1). The Orphan's Court found that,

in the relevant period prior to the Agency filing the TPR petition, indeed for

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the Children's entire lives, Mother has never independently provided parental

care or duties. The court explained:

Even where parent desires to preserve a parental role or
a
relationship in a case where the parent is incapable of
providing basic necessities and will continue to suffer such
mental incapacity, the focus of the Court must not be on the
parent's wishes or desire but whether the parent can
adequately meet the children's needs for security, safety,
permanency and well-being.
In this case, [Mother] has not been able to sustain herself
and live independently and has not been able to meet the
needs of [Children] as a parent throughout their lives. From
2010 until 2012, when [the Agency] first opened a case to
provide services to this family, [the Agency] established a
safety plan for [Children] that assured that [they] would not
be left unsupervised with [Mother]. [Maternal
Grandmother] had custody of [Children] from that time,
from the time in 2012 when [the Agency's] case was closed,
that first case, until February of 2016 when [Children] were
removed from [Maternal Grandmother's] home and placed
in foster care.

N.T., 8/22/17, at 40-41.

Mother summarizes her argument with regard to the Orphans' Court

conclusion as follows:

[Mother] testified that she has been with [Children] since
their births. In February of 2016, when [Children] were
removed from the home by [the Agency,] physical custody
[of them] was with [Maternal Grandmother]. [Mother] was
living with [Children and Maternal Grandmother] at that
time. [Mother] has complied with the request[s] of [the
Agency] including mental health evaluation, mental health
treatment and parenting classes. [Mother] has continued to
visit with [Children] and is willing and able to continue to
raise her children.

Mother's Brief at 7.

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Our review of the record refutes Mother's claims. Moreover, her

arguments largely focus on the credibility of her own testimony, a

determination that we cannot disturb on appeal. In re M.G., supra. In

addition, the Orphan's Court acknowledged the fact that Mother has lived with

[Children] for most of their lives, but did not perform any parental duties. For

this reason, the court concluded that the Agency provided clear and convincing

evidence to support the termination of Mother's parental rights pursuant to

Section 2511(a)(1). The court explained:

Although [Mother] was for the most of that time a member
of the same household, she was not consistently nor did she
have custody of or parental responsibility for [Children].
Indeed, [Mother's] presence in the household created
problems and increased the conflict and chaos in the home
to the detriment of [Children].
In summary, [Mother] has not been able to sustain and
support herself consistently, has suffered from severe
mental health issues, which the Court notes she is
strenuously attempting to address, and has recently spent
quite a bit of time in the hospital and is attempting to
achieve stability for herself. Her health issues have resulted
in lengthy hospitalization, and she has not been capable of
providing for [Children] as a parent. For more than six
years, [Mother] has not provided [Children] with a home,
food clothing or consistent nurturing or loving environment.
While [Mother's] recent hospitalization for her mental health
concerns is unfortunate and the Court acknowledges that
she loves [Children] and doesn't fault her for seeking
needed medical care, nevertheless, it is the hospitalization
and her absences from [Children's] lives that are relevant
to a determination of whether she has or lacks the capacity
to provide for [Children] as a parent.
This Court concludes that [the Agency] has met its burden
demonstrating by clear and convincing evidence a basis for
terminating the parental rights of [Mother] with respect to

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[Children] in that she lacks the capacity to parent [Children]
and, as a result, [Children] have been without essential
parental care, control or some assistance necessary for their
physical and mental well-being, and the conditions and
causes of the incapacity cannot or will not be remedied by
the parent.
The Court notes that [Mother] has stated passionately how
much she loves [Children], which I believe, and that she at
this time is intending to get an apartment and wishes to
parent [Children] on her own in her new home. However,
she having never had sole custody of [Children] and the
opportunity and obligations that go with parenting on a full-
time basis, I cannot conclude that she's prepared to fulfill
those responsibilities or has the capacity to do so.
N.T. 8/22/17, at 41-43.2
Accordingly, the court did not abuse its discretion in terminating

Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), and we need

not consider the other subsections under Section 2511(a). B.L.W., supra.

Termination Pursuant to Section 2511(b)
Although Mother does not contest the Orphans' Court's determination

that the Agency met its burden under 23 Pa.C.S. § 2511(b), our review of the

record supports the court's determination that terminating Mother's parental

rights is in the best interest of Children. As the court explained:

In this case, the testimony clearly establishes that although
there is affection and [Mother] loves [Children], [she] has
not maintained sufficient and consistent contact such that
there is a healthy parental bond between [Children] and
[Mother].

2We note the Orphan's Court did not delineate between sections 2511(a)(1)
and 2511(a)(2) in make the above comments and conclusions.

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The caseworkers observed that [Children's] needs are met
by the foster parents and that [Mother] acted more like an
older sister than like a parent.
***

[Mother's desire] to start over at this time in each case is
insufficient for this Court to have confidence that [she] could
meet [Children's] needs for consistent and reliable love,
affection, support, structure and responsibility.
I conclude, based upon all of the testimony, that the
emotional needs and welfare of [Children] can best be met
by termination of the parental rights of [Mother] so that
[Children] may be freed for adoption and permanency, and
I conclude that [Children] will not suffer a detriment as a
result of the termination of [Mother's] parental rights[.]
I do find, based upon the testimony of the caseworkers, that
a bond has developed between foster parents and
[Children].

N.T., 8/22/17, at 51-53

CONCLUSION

In sum, our review of the record supports the Orphans' Court's

determination that the Agency met its statutory burden of proving by clear

and convincing evidence that Mother's parental rights should be terminated

pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). Accordingly, we affirm.

Decrees affirmed.
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Judgment Entered.

J seph D. Seletyn,
Prothonotary

Date: 1/17/18

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