J-S16009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.Y., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.R., MOTHER :
:
:
:
:
: No. 1931 MDA 2018
Appeal from the Decree Entered October 24, 2018
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2018-0097a,
CP-67-DP-0000311-2016
IN THE INTEREST OF: S.Y., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.R., MOTHER :
:
:
:
:
: No. 1938 MDA 2018
Appeal from the Order Entered October 25, 2018
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000311-2016
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED: MAY 3, 2019
A.R. (“Mother”) appeals from the order entered October 24, 2018, which
changed the permanent placement goal of her daughter, S.Y. (“Child”), born
in June 2012, from reunification to adoption. In addition, Mother appeals from
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the decree entered that same day, which terminated her parental rights to
Child involuntarily.1 After careful review, we affirm.
The record reveals that the York County Office of Children, Youth and
Families (“CYF”) filed an application for emergency protective custody of Child
on December 5, 2016. CYF averred that it first became involved with Child
after receiving a referral on November 8, 2016. Application for Emergency
Protective Custody, 12/5/16, at ¶ 1. The referral raised concerns that Mother
was engaging in substance abuse and suffered from mental health issues, and
that Child was experiencing physical abuse. Id. Mother submitted to a drug
screen, which produced a positive result for attention deficit hyperactivity
disorder medication for which she did not have a prescription. Id. at ¶ 2.
Mother denied any substance abuse and suggested that N.H., her boyfriend’s
mother, may have “‘drugged her.’” Id. at ¶ 3. CYF later discovered that eight
pills of prescription medication belonging to another member of Mother’s
household were missing. Id. at ¶ 4.
CYF averred that it received an additional referral regarding Child on
December 3, 2016. Id. at ¶ 5. The referral indicated that N.H. overheard
Mother in the bathroom with Child, telling her to “‘take it, it will help you
sleep.’” Id. at ¶ 7. When N.H. entered the bathroom, she observed Mother
and Child with a “white powdery substance on the vanity in the bathroom.”
Id. at ¶ 9. Child stated that her “‘belly hurt’” and that Mother “had given her
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1 Child’s father, J.Y., is deceased.
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a white powder that ‘tasted bad.’” Id. at ¶ 10. N.H. took Child to the
emergency room, where she tested positive for opiates. Id. at ¶ 11. Later
that day, police officers confronted Mother about Child’s positive drug screen,
at which time Mother appeared to be under the influence of substances. Id.
at ¶ 16. Mother’s pupils were dilated and her eyes were “‘bouncing all
around.’” Id. The police arrested Mother and charged her with recklessly
endangering another person, endangering the welfare of a child (“EWOC”),
and possession with intent to deliver (“PWID”). Id. at ¶ 19. In the interim,
CYF obtained a verbal order placing Child in protective custody. Id. at ¶ 23-
24. The juvenile court entered an order for emergency protective custody on
December 5, 20162, followed by a shelter care order on December 7, 2016.
CYF filed a dependency petition that same day, including averments identical
to those in the application for emergency protective custody. The court
adjudicated Child dependent on December 20, 2016.
Mother posted bail and was released from incarceration on January 19,
2017. N.T., 9/25/18, at 37. Mother’s bail conditions required her to have no
contact with Child3 and to reside with a family member. Id. at 92-93, 96.
However, Mother’s closest family member was her paternal aunt, who resided
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2Reportedly, Mother had been planning a one-way trip to Texas, and CYF had
concerns that she would take Child and then “flee the area.” Application for
Emergency Protective Custody, 12/5/16, at ¶ 12-14.
3 Mother twice requested that the criminal court change her bail conditions so
that she could have contact with Child, but the court denied her requests.
N.T., 9/25/18, at 93-95.
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in Wabash, Indiana. Id. at 66, 96, 113. Mother remained in Wabash until
January 2018, when she returned to Pennsylvania for the jury trial on her
criminal charges. Id. at 66, 69. Child testified against Mother during her trial,
which was the first time Child had seen Mother since December 2016. Id. at
69. The jury found Mother guilty of PWID, EWOC, and recklessly endangering
another person, and she received a sentence of ten to 20 months’
incarceration.4 Id. at 37. Mother’s sentence prohibited her from having any
contact with Child “unless [CYF] deemed it appropriate.”5 Id. at 39, 41.
Mother remained incarcerated until August 12, 2018, during which time she
had no further contact with Child. Id. at 37, 69-70. After her release, Mother
moved to Texas to live with her father.6 Id. at 38-39. The parole authorities
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4Mother’s conviction is currently on appeal to this Court, and was argued
March 5, 2019.
5 The record is inconsistent as to whether Mother requested visits with Child
after her criminal trial in January 2018. The CYF caseworker first testified that
Mother requested visits sometime after February 2018, but that she did not
follow up that request by filing a petition. N.T., 9/25/18, at 68-69. Later, the
caseworker agreed that Mother did not request visits after her trial. Id. at
106-07. The caseworker explained that Mother did not request visits with
Child while serving her sentence, and that CYF did not believe visits at the jail
would have been appropriate anyway. Id. at 109. In addition, CYF did not
believe that visits would have been appropriate after Mother’s release from
incarceration, “as a result of filing for termination[.]” Id. at 102.
6 CYF learned through the Interstate Compact on the Placement of Children
that both Mother’s paternal aunt and father have prior histories of involvement
with child protective services in their respective states. N.T., 9/25/18, at 97.
The trial court indicates in its opinion that Mother moved to Texas to live with
her father because her parole conditions required her to live with a relative.
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in Texas report that Mother obtained employment,7 passed a drug screen on
September 20, 2018, and completed parenting classes while incarcerated in
Pennsylvania. Id. at 40. In addition, Mother received referrals for mental
health and drug and alcohol evaluations.8 Id. She will remain under
supervision until August 1, 2019. Id. at 41.
CYF filed petitions to change Child’s permanent placement goal from
reunification to adoption and terminate Mother’s parental rights involuntarily
on July 31, 2018. The court held a hearing on the petitions on September 25,
2018,9 after which it entered an order changing Child’s goal and a decree
terminating Mother’s rights on October 24, 2018. Mother timely filed notices
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Trial Court Opinion, 10/24/18, at 13. Our review of the certified record does
not support the existence of this requirement.
7The record indicates only that Mother has engaged in part-time employment
while not incarcerated. N.T., 9/25/18, at 67.
8 Mother’s parole conditions include complying with a mental health and drug
and alcohol evaluation, and parenting classes. N.T., 9/25/18, at 39. Mother
completed a prior mental health and drug and alcohol evaluation at the Bowen
Center in Indiana, but did not comply with the evaluation’s recommendation
that she attend therapy. Id. at 66-67, 84, 92, 99
9Child had one attorney during the proceedings, who acted as both her legal
counsel and guardian ad litem, and argued in support of changing Child’s goal
and terminating Mother’s parental rights. As explained in greater detail below,
no conflict existed between Child’s best interests and legal interests. Child’s
preferred outcome in this case is that she remain in her foster home and that
Mother either live with her in the foster home or visit her there. N.T., 9/25/18,
at 23-32.
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of appeal, along with concise statements of errors complained of on appeal on
November 21, 2018.10
Mother now raises the following claims for our review:
I. Whether the trial court erred in terminating the parental rights
of [Mother] pursuant to Sections 2511(a)(1), (2),[](5) and (8) of
the Adoption Act?
II. Whether the trial court erred in concluding that termination of
parental rights would best serve the needs and welfare of the child
pursuant to Section 2511(b) of the Adoption Act?
III. Whether the trial court erred in concluding [Mother] failed to
meet many of the goals and terminating her parental rights as she
was preclude[d] from doing so in large part due to incarceration
and bail conditions that prohibited her from having any contact
with the minor child and when she was permitted contact [CYF]
refused to permit contact between Mother and the minor child?
IV. Whether the trial court erred in changing the goal from
reunification to adoption?
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10 It appears that Mother’s counsel produced a single notice of appeal,
including the docket numbers from both the goal change and termination
cases, which was then photocopied and filed separately on both dockets. This
Court issued a rule to show cause order on December 14, 2018, out of concern
that counsel may have failed to comply with our Rules of Appellate Procedure
by filing only a single notice of appeal. See Pa.R.A.P. 341, Note (“Where . . .
one or more orders resolves issues arising on more than one docket or relating
to more than one judgment, separate notices of appeal must be filed.”);
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding that the
failure to file separate notices of appeal from an order resolving issues on
more than one docket “requires the appellate court to quash the appeal”).
Counsel replied on December 24, 2018, averring that he filed two separate
but identical notices of appeal. Thus, counsel asserted that he had complied
with Rule 341 and Walker. In light of counsel’s averments, and this Court’s
recent decision in In the Matter of: M.P., 2019 WL 850581 at *2 (Pa. Super.
filed Feb. 22, 2019) (declining to quash due to the appellant’s noncompliance
with Rule 341 but announcing that this Court would quash any noncompliant
appeals filed after February 22, 2019), we decline to quash Mother’s appeal.
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Mother’s brief at 5-6 (unnecessary capitalization, trial court answers, and
suggested answers omitted).
We begin by reviewing the order changing Child’s permanent placement
goal from reunification to adoption. We review the trial court’s order pursuant
to an abuse of discretion standard of review. In re R.J.T., 9 A.3d 1179, 1190
(Pa. 2010). As such, we must accept the trial court’s findings of fact and
credibility determinations if the record supports them, but we need not accept
the court’s inferences or conclusions of law. Id.
The Juvenile Act governs proceedings to change a child’s permanent
placement goal. See 42 Pa.C.S.A. §§ 6301-6375. Trial courts must apply the
following analysis:
Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act,
when considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the placement;
(2) the extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances
which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal for
the children; (5) a likely date by which the goal for the child might
be achieved; (6) the child’s safety; and (7) whether the child has
been in placement for at least fifteen of the last twenty-two
months. The best interests of the child, and not the interests of
the parent, must guide the trial court. As this Court has held, a
child’s life simply cannot be put on hold in the hope that the parent
will summon the ability to handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation
marks omitted).
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In its opinion, the trial court found that Mother has made only minimal
progress toward achieving reunification with Child since the adjudication of
dependency. Trial Court Opinion, 10/24/18, at 7. The court found that Mother
has had no contact with Child. Id. at 8. While Mother completed a mental
health and drug and alcohol evaluation in Indiana while on bail prior to her
criminal trial, which recommended she obtain therapy, Mother did not report
any therapeutic involvement. Id. at 9-10. The court further found that
Mother has failed to obtain stable and appropriate housing. Id. at 10-11. The
court observed that Mother’s paternal aunt, and her father, with whom she
resided during the termination hearing, both have histories of involvement
with child protective services in their respective states. Id. Finally, the court
explained that Mother has taken no responsibility for her circumstances and
that Child reports that she would not feel safe alone with Mother. Id. at 11.
Mother challenges the trial court’s findings, arguing that she attempted
to comply with her Family Service Plan (“FSP”) goals, but that her efforts at
reunification “were often prevented by obstacles outside of her control.”
Mother’s brief at 32-33. Specifically, Mother maintains that compliance with
her FSP goals would have required her to have contact with Child. Id. at 33.
Mother emphasizes that she requested modification of her bail conditions so
that she could have contact with Child, but to no avail. Id. Mother further
contends that she attended parenting classes and the “Thinking for a Change”
program while incarcerated, participated in counseling, obtained employment,
and maintained sobriety. Id. at 34.
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Our review of the record supports the trial court’s conclusion that a goal
change to adoption would be in Child’s best interest. At the time of the hearing
in September 2018, Child had been in foster care for nearly two years. Child
was four and a half at the time she entered foster care and, by the time of the
hearing, was approaching six and a half. Meanwhile, Mother was no closer to
achieving reunification. As detailed above, a jury convicted Mother of criminal
charges in January of 2018. Mother remained incarcerated until August 12,
2018, after which she moved to Texas to reside with her father. Mother’s
residence in Texas is not appropriate for Child, because Mother’s father also
has a prior history of involvement with child protective services in that state.
Moreover, Mother has failed to demonstrate that she can maintain the stability
and sobriety necessary to care for Child. It is clear that Mother will not be in
a position to provide Child with a safe and permanent home at any point in
the foreseeable future.11
In addition, the record reveals that Child does not share a parental bond
with Mother and instead shares a bond with her pre-adoptive foster parents.
The trial court conducted an interview of Child in camera, during which Child
referred to her foster parents as her “mom and dad.” Id. at 19. Child agreed
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11 While Mother argues that she was unable to comply with her FSP goals
because of the no-contact order preventing her from visiting with Child, the
record does not support this claim. The CYF Caseworker testified that Mother’s
most important FSP goals were to cooperate with CYF, obtain stable housing,
and lead a drug-free life. N.T., 9/25/18, at 63-64. Mother did not require
contact with Child in order to comply with these goals.
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that Mother was her biological mother and referred to her as the person “I got
born with.” Id. at 22. However, she stated that she would not feel safe being
alone with Mother, and that she would prefer to continue living in her foster
parents’ “safe house.” Id. at 23-24, 32. Child explained, “I just really miss
[Mother] and I want her -- like I don’t want to move -- like move back to her
house.” Id. at 23. Child proposed that Mother should also come live with her
foster parents and stated that she would “be sad” if Mother were not able to
move into her foster home. Id. at 23-24. Nonetheless, Child confirmed that
she would still want to continue living with her foster parents and would “just
want [Mother] to visit me there.”12 Id. at 25, 29, 32. Therefore, we discern
no abuse of discretion by the court in changing Child’s permanent placement
goal from reunification to adoption.
We next turn our attention to the decree terminating Mother’s parental
rights to Child involuntarily. We review the trial court’s decree in accordance
with the following standard of review:
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
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
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12Significantly, Mother conceded during her testimony that, since Child “hasn’t
seen or spoken to me in so long, she hardly knows who I am.” N.T., 9/25/18,
at 127.
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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).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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).
In the instant matter, the trial court terminated Mother’s parental rights
to Child pursuant to Sections 2511(a)(1), (2), (5), (8), and (b). We need only
agree with the court as to any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we
analyze the court’s decision pursuant to Sections 2511(a)(2) and (b), which
provide as follows:
(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:
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***
(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(a)(2), (b).
We begin by considering whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(2):
. . . . 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)
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). “The grounds for termination due to parental incapacity that cannot
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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).
Child came into placement because of the criminal charges filed against
Mother. Even though Mother has appealed her conviction, the court found
that Mother continues to lack stable housing and full-time employment, and
that she has chosen to live with either her paternal aunt in Indiana or father
in Texas, both of whom have prior histories of involvement with child
protective services, and pose a threat of harm to Child. Trial Court Opinion,
10/24/18, at 16-17.
Mother, however, maintains that CYF produced insufficient evidence to
terminate her parental rights involuntarily. Mother’s brief at 15. She focuses
her argument on Section 2511(a)(1), and makes little if any effort to challenge
the trial court’s findings as to Sections 2511(a)(2), (5), and (8). She asserts
that her incarceration impaired her ability to obtain housing and employment,
but that she tried to perform her parental duties by participating in programs
while incarcerated. Id. at 15-16, 22-23, 30. Mother also blames her failure
to achieve reunification on the no-contact provisions of her bail and criminal
sentence. Id. at 16-21, 28-30. She emphasizes that she made two attempts
to have her bail conditions changed so that she could have contact with Child,
but that her efforts were unsuccessful. Id. at 16-19.
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The record supports the trial court’s finding that Mother is incapable of
parenting Child, and that she cannot or will not remedy her parental incapacity
pursuant to Section 2511(a)(2). As discussed above, Mother is in no position
to parent Child safely, and will not be able to correct that situation at any point
in the foreseeable future. Mother continues to lack appropriate housing for
Child, and she has failed to demonstrate that she can maintain stability and
sobriety. As this Court has stated, “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.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006).
We next assess whether the trial court committed an abuse of discretion
by terminating Mother’s parental rights to Child involuntarily pursuant to
Section 2511(b). The requisite analysis is 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 [S]ection 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
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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.
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 trial court found that Child does not have a parental bond with
Mother. Trial Court Opinion, 10/24/18, at 17. Instead, the court found that
Child has a parental bond with her foster family and that Child looks to the
foster family for safety and comfort and that she wants to continue living in
her foster home, where she can achieve the stability she deserves. Id. at 16,
18. Therefore, the court concluded that terminating Mother’s parental rights
would best serve the needs and welfare of Child. Id. at 18.
In response, Mother maintains that she has a bond with Child and that
Child misses her and wants to continue seeing her. Mother’s brief at 25-27.
She also maintains that the trial court acted improperly by terminating her
parental rights based solely on her financial limitations and inability to obtain
housing. Id. at 25-26; see 23 Pa.C.S.A. § 2511(b) (“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.”).
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We discern no abuse of discretion by the trial court in concluding that
termination of Mother’s parental rights would best serve Child’s needs and
welfare. As we explained in our analysis of the court’s goal change order, the
record indicates that Child shares a strong parental bond with her pre-adoptive
foster parents. While Child states that she misses Mother, she wants to
continue living in her foster home. Child stated that she would not feel safe
being alone with Mother, and that she would either want Mother to live with
her at the foster home, or visit her there. Accordingly, the record confirms
that Child does not share a parental bond with Mother, and that terminating
Mother’s parental would not cause Child to suffer irreparable harm.13
Based on the foregoing, we conclude that the trial court did not abuse
its discretion or commit an error of law by changing Child’s goal to adoption
or by terminating Mother’s parental rights involuntarily. Therefore, we affirm
the court’s order and decree.
Order affirmed. Decree affirmed.
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13 We reject Mother’s assertion that it was improper for the trial court to
terminate her parental rights based on environmental factors beyond her
control. Section 2511(b) provides that a court may not terminate parental
rights “solely on the basis” of environmental factors. 23 Pa.C.S.A. § 2511(b).
It is clear that the court did not terminate Mother’s parental rights solely on
this basis.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2019
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