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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.Y.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: X.F., MOTHER :
:
:
:
:
: No. 940 MDA 2019
Appeal from the Decree Entered May 21, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2078-2018
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 27, 2019
X.F. (“Mother”) appeals from the May 21, 2019, orphans’ court decree1
that involuntarily terminated her parental rights to her daughter, S.Y.F., born
in February 2012.2 We affirm.
____________________________________________
1 The decree was dated May 16, 2019; however, the orphans’ court did not
provide notice pursuant to Pa.R.C.P. 236(b) until May 21, 2019. Our appellate
rules designate the date of entry as “the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court
has held that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given.” Frazier v. City
of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).
2 By the same decree, the orphans’ court involuntarily terminated the parental
rights of the biological father, A.O. a/k/a A.O.-S. (“Father”), as well as the
presumptive father, E.P., Jr. (“Presumptive Father”). Father did not
participate in the orphans’ court proceedings nor appeal the decree.
Presumptive Father filed an appeal listed at Superior Court Docket No. 974
MDA 2019, which we addressed in a separate memorandum filed at that
docket number.
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The relevant procedural and factual history are as follows. S.Y.F. has
been in the custody of Lancaster County Children and Youth Social Service
Agency (“CYS” or the “Agency”) since October 19, 2016. N.T., 5/16/19, at 8;
N.T., 4/18/19, at 48; Petitioner’s Exhibit 2, 5/16/19, at 2 (unpaginated). The
circumstances were recounted as follows:
On September 8, 2016, the [CYS] received its most recent referral
of the . . . family. It was reported to the Agency that [Mother]
and her paramour . . . could be heard fighting loudly throughout
the night and the parents were using illegal drugs while in a
parenting role. It was also reported that [S.Y.F.] was often seen
dirty and uncared for.
....
The child, [S.Y.F.], continued to reside with [Mother] and [her
paramour]. There were continued reports received that there
[were] domestic disputes in the home between [Mother] and [her
paramour] as well as continued drug use. The Agency sent a legal
letter notifying the family that if they were not cooperative with
allowing the Agency to complete a home visit, . . . the Agency
would be reporting [S.Y.F.] as a missing person and the Agency
would be consulting the Agency attorney. A home visit was
completed on October 17, 2016, with assistance from Lancaster
City Police. The family was not present. There were continued
concerns regarding the whereabouts of [S.Y.F.], as well as
concerns for violence and drug use in the home.
[S.Y.F.] was placed into Agency custody on October 19, 2016,
when she was located. [The juvenile court adjudicated S.Y.F.
dependent in December 2016.] [Mother] was provided with a Child
Permanency Plan with the goal of reunification. [Mother] last
visited with [S.Y.F.] on February 15, 2017. On January 10, 2018,
the [c]ourt ordered that [a]ggravated [c]ircumstances existed as
to [M]other because there [then] had been a six-month period of
time with no contact with [S.Y.F.] It was also ordered that there
should be no further efforts to reunify [S.Y.F.] with the mother[,
who had not contacted S.Y.F. for almost one year by the date the
court found aggravated circumstances.]
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Petitioner’s Exhibit 2, 5/16/19, at 1-3 (unpaginated); see also N.T., 5/16/19,
at 8. Since July 2018, S.Y.F. has resided with her younger half-sibling, born
during these proceedings on June 2018, in a pre-adoptive foster home.
CYS filed a petition to terminate Mother’s parental rights on September
26, 2018, pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). The
orphans’ court held hearings on the Agency’s petition on October 25, 2018,3
April 18, 2019, and May 16, 2019. CYS presented the testimony of
Presumptive Father,4 Amanda Kauffman, the CYS caseworker assigned to the
family, Ashley Caban, the Supervisor of CYS’s Permanency Unit, and Colby
Tuell, Lancaster Adult Probation and Parole Services probation officer.
Although Mother was represented by counsel, she only appeared during the
hearing on October 25, 2018.5
____________________________________________
3 On October 25, 2018, the orphans’ court incorporated that juvenile court
records into the termination proceedings. N.T., 10/25/18, at 5-7; see also
Order, 10/26/18. Notably, however, the juvenile court records were not
included with the certified record transmitted to this Court. On October 28,
2019, we directed the Clerk of Courts of Lancaster County to certify the
juvenile court record and transmit it to the Prothonotary of this Court as a
supplemental certified record pursuant to Pa.R.A.P. 1926. Per Curiam Order,
10/28/19.
4 As Presumptive Father was incarcerated at SCI-Camp Hill, he participated
via telephone.
5 S.Y.F.’s legal interest and her best interests were represented during these
proceedings by one of two guardians ad litem: Jeffrey Gonick, Esquire,
represented the child on October 25, 2018; and Gina M. Carnes, Esquire,
represented her on April 18, 2019 and May 16, 2019, respectively. Notably,
Attorney Carnes testified that she spoke with then-seven-year-old S.Y.F. and
did not discern a conflict between the child’s best interests and her legal
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By decree dated May 16, 2019, and entered May 21, 2019, the orphans’
court involuntarily terminated the parental rights of Mother pursuant to 23
Pa.C.S. § 2511(a) and (b).6 Thereafter, on June 12, 2019, Mother, through
counsel, filed a timely 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 issue for our review:
I. Whether the [c]ourt erred in terminating Mother’s parental
rights?
II. Whether the [c]ourt erred in concluding that the [CYS] met its
burden in proving that Mother’s parental rights should be
terminated when there was evidence that she had been actively
working on and completing the goals on her child permanency
plan?
Mother’s brief at 8 DHS filed a brief in support of the termination of Mother’s
parental rights. The guardian ad litem neglected to file a brief in this appeal.
____________________________________________
interest, i.e., the child’s preference to remain with her half-sibling in the pre-
adoptive foster home. N.T., 5/16/19, at 21-22. Hence, this case complies
with our Supreme Court’s mandate announced in In re Adoption of L.B.M.,
161 A.3d 172, 174-75, 180 (Pa. 2017) and In re T.S., 192 A.3d 1080, 1089-
90, 1092-93 (Pa. 2018), that children in contested termination of parental
rights proceedings must be appointed counsel to represent their legal interest.
See also In re: Adoption of K.M.G., ___ A.3d ___, 2019 WL 4392506
(Pa.Super. September 13, 2019) (en banc) (holding, while this Court has
authority only to raise sua sponte the issue of whether trial court appointed
legal counsel, it lacks authority to delve into quality of counsel’s representation
sua sponte).
6 The decree does not specify the subsections under which the orphans’ court
terminated Mother’s parental rights. However, the language utilized in the
decree, as supported by the conclusions set forth in the orphans’ court’s
opinion, parallel 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Trial Court
Opinion, 7/31/19, at 36-38; Decree, 5/21/19.
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In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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
abused its discretion.” Id. “[A] decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” Id. The
trial court’s decision, however, should not be reversed merely
because the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings. See In re R.J.T., [9 A.3d 1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial 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.
& J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by § 2511 of the Adoption
Act, 23 Pa.C.S. §§ 2101-2938, and requires a bifurcated analysis of the
grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under [§] 2511, the court must
engage in a bifurcated process prior to terminating parental rights.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
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that the parent’s conduct satisfies the statutory grounds for
termination delineated in [§] 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 [§] 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 have
defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
In the case sub judice, the orphans’ court terminated Mother’s parental
rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). In order to
affirm a termination of parental rights, we need only agree with the trial court
as to any one subsection of § 2511(a), as well as § 2511(b). See In re
B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Instantly, we affirm
the orphans’ court’s decision to terminate Mather’s parental rights pursuant
to § 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:
....
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
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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), and (b).
With regard to termination of parental rights pursuant to § 2511(a)(2),
we have indicated:
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
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
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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)
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(quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002)). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [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.” In re
A.L.D., supra at 340 (internal quotation marks and citations omitted).
In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court,
in addressing § 2511(a)(2), concluded that
incarceration is a factor, and indeed can be a determinative factor,
in a court’s conclusion that grounds for termination exist under §
2511(a)(2) where the repeated and continued incapacity of a
parent due to incarceration has caused the child to be without
essential parental care, control or subsistence and that the causes
of the incapacity cannot or will not be remedied.
Id. at 828; see also In re D.C.D., 105 A.3d 662, 675 (Pa. 2014) (holding
that incarceration prior to the child’s birth and until the child was at least age
seven renders family reunification an unrealistic goal and the court was within
its discretion to terminate parental rights “notwithstanding the agency’s
failure” to follow court’s initial directive that reunification efforts be made).
Mother, essentially argues that the termination of parental rights was
not warranted because she was making progress toward completion of her
goals despite her incarceration. Mother’s brief at 12-17. In particular, as to
drug and alcohol and mental health treatment, Mother indicates that she was
enrolled in a treatment program in April 2019. Id. at 15. Mother further
asserts that it was error for S.Y.F. not to be present at the hearing and
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questioned by the court. Id. at 17. For the reasons we explain, infra, no
relief is due.
In finding statutory grounds for terminating Mother’s rights, the
orphans’ court reasoned:
Instantly, the Agency proved bases for the termination of
Mother’s parental rights on four separate statutory grounds,
specifically, under 23 [Pa.C.S. § 2511(a)(1), (2), (5), and (8).]. .
The Agency filed the Petition to Terminate Parental Rights
on September 26, 2018. Mother’s last visit with S.Y.F. was on
February 15, 2017. For a period of nineteen months, Mother
demonstrated a settled purpose of relinquishing her parental claim
to S.Y.F. and she failed to perform any parental duties for S.Y.F.
Mother had no contact with the Agency from February 2017 until
Mother gave birth to another child in June of 2018.
Over the course of the case, Mother demonstrated an
incapacity and refusal to provide parental care necessary for
S.Y.F.’s physical and mental well-being. S.Y.F. was placed with
the Agency on October 19, 2016. Mother’s visits with S.Y.F.
ceased on February 15, 2017. Mother had never made any effort
to work on her objectives which were contained in the original
child’s permanency plan which had a primary permanency goal of
reunification with Mother. Subsequently, aggravated
circumstances were established due to Mother’s lack of contact
with S.Y.F. Mother’s refusal to address any of the child’s
permanency plan objectives and refusal to maintain contact with
S.Y.F. establish that Mother is incapable of parenting. The result
is that S.Y.F has been without essential parental care and Mother
has demonstrated a refusal to remedy her incapacity to parent. A
refusal to perform parental duties is as critical as affirmative
misconduct. [See In re Adoption of C.D.R.], 111 A.3d 1212,
1216 (Pa.Super. 2015)[.]
S.Y.F. has been removed from Mother’s care by the court
for a period exceeding 6 months. The conditions which caused
S.Y.F. to be placed with the Agency continue to exist and Mother
effectively refused the assistance which the Agency originally
offered her. The conditions which led to the removal of S.Y.F.
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from Mother’s care continue to exist because Mother did hardly
anything to remedy them. The record more than amply
demonstrates that Mother showed little interest in [S.Y.F.] over a
period of years.
Trial Court Opinion, 7/31/19, at 40-41.
A review of the record supports the orphans’ court’s finding of grounds
for termination under § 2511(a)(2). The certified record reveals that Mother
failed to maintain contact with S.Y.F. and CYS and to complete her goals aimed
at reunification with S.Y.F. In addition, Mother was incarcerated on several
occasions which prohibited her from performing her parental duties.
Significantly, S.Y.F. came into custody on October 19, 2016. N.T.,
5/16/19, at 8. Mother’s last visit with S.Y.F. was on February 15, 2017, and
the court found aggravated circumstances on January 10, 2018, due to a lack
of contact with S.Y.F. Id. at 8, 10. Specifically, Agency caseworker, Amanda
Kauffman, testified that, at the time aggravated circumstances were found,
Mother had not had contact with S.Y.F. for almost a year. Id. In addition,
visitation was suspended. Id. at 9. Further, since becoming caseworker in
August 2017, Ms. Kauffman’s only contact with Mother was when she went to
the hospital after Mother gave birth to S.Y.F.’s younger half-sister. Id. at 8-
9.
Moreover, Ms. Kauffman indicated that she had no documentation that
Mother was working toward her reunification goals. Id. at 10. Rather, Ms.
Kauffman confirmed that, to her knowledge, all of Mother’s reunification goals
were incomplete as of April 1, 2019. Id. As stated by Ms. Kauffman, “She
did not work on her plan to be reunified with [the child]. She’s been in and
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out of . . . prison twice since that time, I believe. And we’ve -- I’ve had no
contact with her by the time that I was finished with the case.” N.T., 5/16/19,
at 9.
Mother’s probation officer, Colby Tuell, testified that, since his last
contact with Mother on June 26, 2018, two bench warrants have been issued
for her arrest for “failure to report to appointments.” Id. at 5. Additionally,
aside from past charges of burglary, robbery, and criminal conspiracy, Mother
was charged with retail theft on April 2, 2019. Petitioner’s Exhibit, 5/16/19,
at 5.
Hence, the record substantiates the conclusion that Mother’s repeated
and continued incapacity, abuse, neglect, or refusal has caused S.Y.F. to be
without essential parental control or subsistence necessary for her physical
and mental well-being. See In re Adoption of M.E.P., supra at 1272.
Moreover, Mother cannot or will not remedy this situation. See id. Mother’s
repeated incarceration is a barrier to performing parental duties and, when
Mother is at liberty from confinement she does not make diligent efforts
towards the reasonably prompt assumption of her responsibilities. Hence, we
do not disturb the trial court’s determination that CYS established by clear and
convincing evidence the statutory grounds to terminate Mother’s parental
rights pursuant to § 2511(a)(2).
As to subsection (b), our Supreme Court outlined the inquiry as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
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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. However, as
discussed below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., supra at 267. “In 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 A.2d 753, 762-63
(Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “[T]he court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, § 2511(b) does not require a formal bonding evaluation.”
In re Z.P., supra at 1121 (internal citations omitted).
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the [§] 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. . . .
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In re Adoption of C.D.R., supra at 1219 (quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
Instantly, the orphans’ court reasoned,
Termination of Mother’s parental rights will serve the needs and
welfare of S.Y.F. by giving [S.Y.F.] the permanency and stability
she needs and desires.
S.Y.F. has been removed from the care of Mother for a
period exceeding twelve months. Again, the conditions which
caused S.Y.F. to be removed from Mother continue to exist.
Mother is incapable of caring for S.Y.F. at this time. The needs
and welfare of S.Y.F. will be best served by granting termination
of Mother’s parental rights.
....
The court must next determine whether terminating
Mother’s and Father’s parental rights to S.Y.F. will best serve the
developmental, physical and emotional needs and welfare of
S.Y.F. 23 [Pa.C.S. § 2511(b)]. “Intangibles 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)[.] S.Y.F. has not seen Mother since February
15, 2017. Two years and four months have passed. Expert
testimony is not necessary to establish the existence or the
nonexistence of a bond between parent and child. The court is
confident in finding that no bond exists between Mother and
S.Y.F., and [S.Y.F.] unambiguously stated her own wishes
regarding her future - that she be adopted by her resource family.
S.Y.F. is entitled to the stability and permanency that the
termination of Mother’s parental rights will afford her.
Trial Court Opinion, 7/31/19, at 41-42.
Again, the record supports the trial court’s finding that S.Y.F.’s
developmental, physical and emotional needs and welfare favor termination
of Mother’s parental rights pursuant to § 2511(b). See T.S.M., supra at 267.
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Critically, S.Y.F. has been placed in her current foster home with her
younger half-sister, with whom she is very bonded, since July 2018. N.T.,
5/16/19, at 14, 18; N.T., 4/18/19, at 16-17. The CYS caseworker, Amanda
Kauffman, testified that S.Y.F. is doing well and is comfortable in the home,
which is a pre-adoptive resource. Id. at 16; 17. Ms. Kauffman reported that
S.Y.F. calls the foster parent “mom.” N.T., 5/16/19, at 15. Further, S.Y.F.
has some trauma-related memory loss issues for which she has undergone
evaluation and been recommended to undergo further evaluation and therapy.
N.T., 5/16/19, at 14-15; N.T., 4/18/19, at 16, 42-43. Ms. Kauffman testified
that S.Y.F.’s foster parent is able to meet these needs. N.T., 5/16/19, at 15.
As such, Ms. Kauffman opined that it is in S.Y.F.’s best interest to remain in
the current foster home. Id. at 16.
While Mother may profess to love S.Y.F., a parent’s own feelings of love
and affection for a child, alone, will not preclude termination of parental rights.
In re Z.P., supra at 1121. At the time the termination hearings concluded,
S.Y.F. had been in placement for approximately two and half years, and is
entitled to permanency and stability. As we stated, a child’s life “simply
cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” Id. 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,
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healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856 (Pa.Super.
2004) (citation omitted).
Accordingly, based upon our review of the certified record, we find no
abuse of discretion and conclude that the orphans’ court did not err in
terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and
(b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2019
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