In the Int. of: N.J., Appeal of: R.J. ( 2023 )

J-S25016-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN THE INTEREST OF: N.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: R.J., MOTHER :
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: No. 526 EDA 2023
Appeal from the Order Entered February 1, 2023
In the Court of Common Pleas of Philadelphia County
Juvenile Division at CP-51-DP-0000738-2020
IN THE INTEREST OF: N.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: R.J., MOTHER :
:
:
:
:
: No. 527 EDA 2023
Appeal from the Decree Entered February 1, 2023
In the Court of Common Pleas of Philadelphia County
Juvenile Division at CP-51-AP-0000626-2022
IN THE INTEREST OF: N.J.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.J., MOTHER :
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:
: No. 528 EDA 2023
Appeal from the Order Entered February 1, 2023
In the Court of Common Pleas of Philadelphia County
Juvenile Division at CP-51-DP-0000739-2020
J-S25016-23
IN THE INTEREST OF: N.J.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.J., MOTHER :
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:
: No. 529 EDA 2023
Appeal from the Decree Entered February 1, 2023
In the Court of Common Pleas of Philadelphia County
Juvenile Division at CP-51-AP-0000627-2022
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 21, 2023
R.J. (Mother) appeals from the decrees terminating her parental rights
to her two daughters, N.J. and N.J.J. (Children), and from the orders changing
Children’s permanency goals to adoption.1 We affirm.
N.J. was born in May 2008 and N.J.J. was born in July 2015. The
Philadelphia Department of Human Services (DHS) obtained protective
custody of Children in July 2020, after learning Children, then ages 12 and 5,
“were residing in a public park alone, without adult supervision.” N.T., 2/1/23,
at 6. Mother concedes Children “were unsupervised and unkempt from 8:00
a.m. to 7:00 or 8:00 p.m.” Mother’s Brief at 4. Mother agreed to Children’s
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1 Mother “is the sole appellant … as neither Father nor Unknown Putative
Father have filed an appeal to date.” Trial Court's Notice of Compliance with
Rule of Appellate Procedure 1925(a), 4/3/23, at 1 n.1.
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placement in foster care while Mother “worked to secure adequate housing.”
Id.
Children were adjudicated dependent on August 19, 2020. DHS, with
the Community Umbrella Agency (CUA), implemented a parenting plan for
Mother. The trial court ordered Mother to maintain contact with CUA, obtain
suitable housing, visit Children, participate in random drug screens, complete
parenting classes, and be evaluated for mental health and substance abuse
services.
Mother failed to comply with her housing and visitation objectives. More
than two years later, in November 2022, DHS petitioned to terminate Mother’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b).
The trial court held a hearing on February 1, 2023. That same day, the trial
court terminated Mother’s parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8) and (b), and changed Children’s permanency goal to
adoption.
Mother timely filed a notice of appeal at each child’s dependency and
adoption docket, as well as a concise statement of errors complained of on
appeal. In response, the trial court stated it had placed “on the record the
reasons for … terminating parental rights and changing [C]hild[ren]’s
permanency goal to adoption[.]” Trial Court’s Notice of Compliance with Rule
of Appellate Procedure 1925(a), 4/3/23, at 1 (stating the “attached February
1, 2023 transcript details the testimony and evidence that led to the trial
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court’s final determination and is identified as Court’s Exhibit A. (N.T. 2/1/23,
pgs. 1-115 (Court’s Exhibit A)”). The trial court noted that “Mother’s visits
were reverted from community to supervised because of safety risks present
when Mother had [C]hildren in the community;” Mother had not “obtained
adequate housing despite having ample resources to do so;” and “it ha[d]
been 29 months since adjudication and Mother has not demonstrated an
ability to remedy the situation which led to the adjudication of [C]hildren.”
Id. at 2 (citations to notes of testimony omitted). The trial court further
observed “there was no evidence to support a parent-child bond,” because
Children “do not look to Mother to support their needs.” Id. The trial court
concluded termination “would best serve the needs and welfare of [C]hildren.”
Id. On April 14, 2023, this Court consolidated the appeals sua sponte.
Mother presents four issues:
A. Whether the [t]rial [c]ourt erred in terminating the parental
rights of [Mother]?
B. Whether the [c]ourt erred in changing the goal to adoption?
C. Whether the [c]ourt erred in terminating [M]other’s parental
rights by granting [DHS’s] [p]etition to [t]erminate Mother’s
[p]arental [r]ights when it did not meet its burden by clear and
convincing evidence of showing that the best interest of
[C]hildren is adoption pursuant to section 2511(b) of the
Adoption Act?
D. Whether the errors committed by the [c]ourt below deprived
[Mother] of her rights to due process and equal protection
under the law?
Mother’s Brief at 3.
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Mother has abandoned her second and fourth issues. See Mother’s Brief
at 9-15 (failing to develop claims that the trial court erred in changing
Children’s goal to adoption, and violated Mother’s constitutional rights to due
process and equal protection). This Court has held that any issue “identified
on appeal but not developed in the appellant’s brief is abandoned and,
therefore, waived.” See Int. of D.N.G., 230 A.3d 361, 363 n.2 (Pa. Super.
2020) (citation omitted). Accordingly, Mother has waived her second and
fourth issues.2
Mother’s remaining first and third issues pertain to termination of her
parental rights pursuant to 23 Pa.C.S.A. § 2511(a) and (b). We review the
termination of parental rights for an abuse of discretion. In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012).
[O]ur standard of review requires [us 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. As has been often stated, an
abuse of discretion does not result merely because the reviewing
court might have reached a different conclusion. Instead, a
decision may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
As [the Supreme Court] discussed in In re: R.J.T., [9 A.3d 1179,
1190 (Pa. 2010)], there are clear reasons for applying an abuse
of discretion standard of review …. [U]nlike trial courts, appellate
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2 As Mother has abandoned her issue regarding Children’s goal change, we
affirm the orders at CP-51-DP-0000739-2020 and CP-51-DP-0000738-2020
without further discussion. See Int. of D.N.G., 230 A.3d at 363 n.2.
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courts are not equipped to make fact-specific determinations on a
cold record, where trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an opposite result,
as is often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the trial court
and impose its own credibility determinations and judgment;
instead, we must defer to the trial judges so long as the factual
findings are supported by the record and the court’s legal
conclusions are not the result of an error of law or an abuse of
discretion.
Adoption of S.P., 47 A.3d at 826-27 (some citations omitted). The petitioner
has the burden to provide clear and convincing evidence that its asserted
grounds for termination are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.
Super. 2009).
Preliminarily, Mother claims she is “unsure of the trial court’s position”
because it declined to file an opinion in response to Mother’s concise
statement. Mother’s Brief at 8. Mother assails the trial court’s “broad
reference to the record” in its Notice of Compliance with Rule of Appellate
Procedure 1925(a). Id. She further asserts she “should not have to guess
the reason for the trial court’s ruling,” and suggests this Court remand this
case to the trial court to file an opinion. Id. This claim lacks merit.
The trial court was not required to file an opinion. The trial court stated
it had placed “on the record the reasons” for terminating Mother’s parental
rights. Trial Court’s Notice of Compliance with Rule of Appellate Procedure
1925(a), 4/3/23, at 1. Rule of Appellate Procedure 1925 provides:
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(2) Children's fast track appeals. In a children’s fast track appeal:
(i) The concise statement of errors complained of on appeal shall
be filed and served with the notice of appeal.
(ii) Upon receipt of the notice of appeal and the concise statement
of errors complained of on appeal required by Pa.R.A.P. 905(a)(2),
the judge who entered the order giving rise to the notice of appeal,
if the reasons for the order do not already appear of record,
shall within 30 days file of record at least a brief opinion of the
reasons for the order, or for the rulings or other errors complained
of, which may, but need not, refer to the transcript of the
proceedings.
Pa.R.A.P. 1925(a)(2) (bold emphasis added). “Rule 1925 does not require a
trial judge to issue an opinion in all cases. Instead, a statement is only
necessary where the reasons for the order do not already appear of record.”
Liles v. Balmer, 653 A.2d 1237, 1244 (Pa. Super. 1994). Upon review, we
agree with the trial court that its reasons for terminating Mother’s parental
rights appear in the transcript from the termination hearing. We thus address
Mother’s substantive issues.
I. Section 2511(a) – Grounds for Termination
Mother argues the trial court erred in terminating her parental rights
under Subsections 2511(a)(1), (2), (5), and (8). We need only agree with
the trial court as to any one Subsection of Section 2511(a), as well as
Subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Instantly, we examine Mother’s challenge under Subsection
2511(a)(2). Subsection 2511(a)(2) provides for termination when:
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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.
23 Pa.C.S.A. § 2511(a)(2).
The petitioner must prove “(1) repeated and continued incapacity,
abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal
caused the child to be without essential parental care, control or subsistence;
and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied.” In re A.H., 247 A.3d 439, 443 (Pa. Super. 2021)
(citation omitted). Grounds for termination “are not limited to affirmative
misconduct, but concern parental incapacity that cannot be remedied.” Id.(emphasis added).
Mother claims DHS did not present clear and convincing evidence to
support termination under Section 2511(a)(1), (2), (5), and (8). Mother’s
Brief at 7. However, Mother fails to divide her argument into “as many parts
as there are questions to be argued; and [indicate] at the head of each part—
in distinctive type or in type distinctively displayed—the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.” See Pa.R.A.P. 2119(a). Mother references Subsection
(a)(1), but does not discuss Subsections (a)(2), (5) or (8). See Mother’s Brief
at 9-14. Nonetheless, Mother argues the evidence does not support
termination because Mother has been “consistently employed,” continued to
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visit Children, completed parenting classes, was determined not to “need
treatment to address substance abuse issues,” and leased a house (although
“there were issues regarding the landlord’s title”). Id. at 11-12.
DHS counters that the evidence supports termination under Subsection
(a)(2) based primarily on Mother’s failure to obtain suitable housing.
According to DHS:
Children entered care because Mother left them outside in a park
all day for many days at a time, without food or drink. N.T. pp.
6:19-7:3. The Children were not allowed to be in maternal
grandmother’s home, where Mother worked as a home health
aide. Id. at p. 7:6-9. The Children had to stay outside so they
would not be seen by maternal grandmother’s case manager[,]
who could visit. Id. Mother had no appropriate place for the
Children in 2020, and she has no appropriate place for them
now. Mother still lives with maternal grandmother. Id. at p.
80:16-22. She had an interview for the Rapid Re-Housing
Program but declined it because she had made plans to move to
New Jersey instead. Id. at p. 30:23-31:14. [Mother] never
moved to New Jersey. Id. DHS offered her first and last month’s
rent. Id. at p. 31:15-17. She did not take advantage of it. Id.
Mother claims that DHS should have made more aggressive efforts
to help her find housing, see Appellant Br. p. 13, but Mother did
not take advantage of the multiple programs that were offered to
her.
DHS’s Brief at 25.
Upon review, we agree. CUA case manager, Erica Butler, testified to
working with the family for “the life of the case.” N.T., 2/1/23, at 6. She
stated that Mother’s objectives from the beginning included obtaining
appropriate housing and visiting Children (as well as completing parenting
classes, random drug screens, and a behavioral health evaluation/treatment).
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Id. at 12. Although Mother has maintained employment and completed
parenting classes, Ms. Butler described Mother’s “overall compliance” as
“minimal.” Id. at 36, 50.
Ms. Butler confirmed that Mother’s substance abuse assessment
resulted in “a recommendation of no treatment needed.” Id. at 26. However,
Ms. Butler also stated that Mother had admitted to her that she smokes
marijuana, and Ms. Butler had concerns about Mother using other substances
based on “some insights” from Children. Id. at 26-27.
Regarding visitation, Ms. Butler testified that Mother obtained
“expanded” unsupervised visitation “in the community.” Id. at 13. Yet in July
2022, the court ordered that Mother’s visitation “revert[] back to supervised
at the agency because of concerns” about “what was occurring during those
visits.” Id. at 13-14, 16 (Ms. Butler stating N.J.J. was “running away” during
visits, and N.J. “reported she observed [Mother] grab her by the arm really
hard”). Ms. Butler also stated, “there were a lot of consecutive visits [Mother]
missed or [] were no-shows or cancelations.” Id. at 14.
Ms. Butler further testified about Mother’s lack of suitable housing for
Children. Id. at 30. When Children came into DHS’s care in the summer of
2020, Mother lived with her mother, “in a home under Pathways, and the
home wouldn’t allow [C]hildren to reside there.”3 Id. at 7. Mother has never
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3 The record does not contain details about “Pathways.”
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provided a copy of any lease, or obtained “an appropriate place of residence
to reunify with Children.” Id. Ms. Butler testified that DHS provided Mother
with at least five referrals for housing. Id. at 30-31; 56-57. She explained
that Mother provided one option for assessment, but subsequently indicated
she “no longer lived there because she was unable to get the utilities in her
name.” Id. at 70. Ms. Butler added that Mother “was renting a room in the
house … with other occupants, so that wouldn’t be a reunification resource …
with only one bedroom for [C]hildren and [Mother].” Id. According to Ms.
Butler, housing was critical “because [C]hildren would have nowhere to live.
They would be homeless.” Id. at 31-32. Ms. Butler opined that Children could
not be safely returned to Mother. Id. at 36.
Another CUA case manager, Tariyah Jenkins, testified that she visited
Children’s respective pre-adoptive foster homes. Id. at 74. Ms. Jenkins
observed that Children were safe, and the foster families were meeting
Children’s needs. Id. Ms. Jenkins also interacted with Mother, who provided
a lease to a home which Ms. Jenkins “walked through.” Id. at 76. When
asked whether the house was appropriate, Ms. Jenkins replied, “It still needed
a lot of construction done to it … but the room was clean.” Id. Ms. Jenkins
stated that she told Mother to contact her when the house was completed,
and Mother indicated “[s]he would, but she didn’t.” Id. at 77.
Mother testified at the time of the hearing that she had lived in the same
home for “eight, nine months,” although DHS had not visited. Id. at 79.
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Mother clarified the home was a one-bedroom apartment she shared with her
mother. Id. at 80 (Mother explaining she was unable to move into the home
Ms. Jenkins visited because she “could not get the utilities switched over.”).
Mother conceded she did not have a “current place of residence” where
“Children can be reunified” with her. Id. at 92.
Mother also testified she had been diagnosed with PTSD and depression,
but was not “actively engaged” with a mental health care provider. Id. at 95.
She stated she was not “actively using marijuana,” but was “going to get [her]
medical card.” Id.
At the conclusion of evidence, the trial court observed, “This is an
unfortunate situation, but [DHS] has met their burden by clear and convincing
evidence through testimony of credible witnesses ….” Id. at 104. The trial
court stated:
This case has been opened since the adjudication in August
of 2020, for 29 months. The issue that resulted in [C]hildren
coming into care is the same issue we still have today, and
[M]other unfortunately has not been unable to make progress,
and is not, today, in any position to be reunited with these
[C]hildren.
… And [M]other’s own testimony is that she is not ready and does
not have an available place in which to be reunited with her
[C]hildren today.
N.T., 2/1/23, at 105.
The trial court addressed Subsections 2511(a)(1), (2), (5) and (8). Id.
at 105-09. Regarding Subsection 2511(a)(2), the court concluded:
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[Mother] has not demonstrated an ability to remedy the
situation which led [C]hildren coming into care, as housing has
been – for a large part of this case, since the spring of last year,
was the sole objective and [Mother] has not advanced towards
having an appropriate location to be reunified with [C]hildren.
She hasn’t demonstrated an ability to provide [C]hildren
with basic needs that [C]hildren are lacking, which is shelter, and
she’s not been able to demonstrate an ability to remedy that
situation.
[Mother] has had ample time. [Mother] has had ample
resources referred to her. … [Mother] has had ample opportunity
throughout the life of this case to change the situation which led
to [C]hildren coming into care, but has not done so.
Id. at 106-07.
The record supports the trial court’s conclusion that Mother’s repeated
and continued incapacity has caused Children to be without essential parental
care that cannot or will not be remedied, as provided in Subsection
2511(a)(2). Consequently, Mother’s first issue regarding grounds for
termination does not merit relief.
II. Section 2511(b) – Needs and Welfare
We next address Mother’s challenge to termination under Section
2511(b). If the court determines termination is warranted under Subsection
2511(a), it must then consider Children’s needs and welfare:
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. …
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23 Pa.C.S.A. § 2511(b).
This Court has stated repeatedly 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). 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). The 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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
However,
in cases where there is no evidence of a bond between a
parent and child, it is reasonable to infer that no bond exists.
Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the
particular case.
Importantly, the question is not merely whether a bond
exists, but whether termination would destroy this
existing, necessary and beneficial relationship.
In re A.H., 247 A.3d at 444–45 (citations omitted, emphasis added).
Mother argues termination is not in Children’s best interests because it
“would permanently sever and destroy [Children’s] bond and relationship with
[M]other.” Mother’s Brief at 14. Mother claims the trial court “did not give
primary consideration to the developmental, physical and emotional needs of
[C]hildren.” Id.
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Conversely, DHS asserts that termination is in Children’s best interests
because “Mother does not have parent-child bond” with Children. DHS’s Brief
at 29. DHS claims Children are bonded with their pre-adoptive foster families
“and want to be adopted by the foster parents.” Id. According to DHS,
termination “would best serve the Children’s needs and welfare by helping
them achieve safety, reliability and permanency.” Id. at 30.
Again, the record comports with DHS’s argument. The CUA caseworker,
Ms. Butler, opined that based on her observations, Mother and Children do not
have a parent-child relationship. Id. at 22, see also id. at 37. Ms. Butler
testified:
The children [are] really bonded with their foster mom, and they
look to the foster mom as more of the parent []. I think they love
[M]other and are excited for visits, but I also think they haven’t …
established the same type of bond that they have with their foster
parent.
Id. Ms. Butler repeated, “I don’t believe there’s a parent-child bond for the
children.” Id. at 72.
Ms. Butler further testified that Children would not experience
“irreparable harm” if Mother’s parental rights were terminated. Id. at 36.
According to Ms. Butler, neither child wanted to reunify with Mother. Id. She
stated that N.J. is “doing really well” in her pre-adoptive kinship placement.
Id. at 39-40. Ms. Butler opined that adoption was in N.J.’s best interests, in
part “because [N.J.] is asking [DHS] to remain where she is.” Id. at 41.
Likewise, Ms. Butler stated that N.J.J. is in a pre-adoptive placement, where
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she is “very bonded” with her pre-adoptive foster mother. Id. at 43. Ms.
Butler testified that N.J.J. indicated that she wants to be adopted, and Ms.
Butler opined that adoption was in N.J.J.’s best interest. Id. at 44.
Mother testified in opposition to termination, describing her relationship
with N.J. as “rocky” and “kind of strained,” and stating that she has “a good
relationship” with N.J.J. Id. at 89. Mother did not know where N.J. attended
school, and stated that N.J.J. “was going to Belmont.” Id. at 96. Mother
testified, “I have a bond with all my kids.” Id. at 90. She explained, “they’re
my kids and I love them. I want the best for them.” Id. at 91. She added
that “people go through hard times, people struggle, but I’m not a bad mom
and I do the best I can, being that I do it myself, with no help.” Id.
The record refutes Mother’s claim that the trial court did not consider
her bond with Children, and termination is contrary to Children’s needs and
welfare. After hearing the evidence, the trial court concluded, “With regard
to 2511(b), [DHS] has met its burden as well[.]” N.T., 2/1/23, at 109. The
trial court reasoned:
While [Mother] does love [C]hildren – the [c]ourt does not
doubt that – there is not a parent-child bond because [C]hildren
do not look to [Mother] to meet their daily needs that children
look to parents to [meet].
So while [Mother] has a relationship with [C]hildren that this
[c]ourt does not question, it is not a parent-child relationship, as
[Mother] is not providing for [C]hildren in the fashion that parents
provide for children. They do not look to [Mother] for any
emotional support or any stability or to meet any of their daily
needs.
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… [C]hildren would not suffer irreparable harm as a result
of termination of parental rights, as [Mother] has not been
consistently visiting with [C]hildren, [who] don’t want to visit with
[Mother.]
[Mother] is someone [Children] may enjoy visits with, who
are also very disappointed when [Mother] doesn’t appear on time
for the visits and they need to be canceled, but that does not
establish a parent-child relationship in this case.
The fact [Mother] has love for [C]hildren does not create the
parent-child relationship, and the fact that there may be some
bond and [C]hildren know [M]other … does not make it a parent-
child bond.
[DHS] has met its burden by clear and convincing evidence
under 2511(b).
Id. at 109-11.
Our review reveals no abuse of discretion or error in the trial court’s
consideration of the evidence and application of the law in finding that
termination was in Children’s best interests and warranted under Section
2511(b). Thus, Mother’s third issue does not merit relief.
For the above reasons, we affirm the decrees terminating Mother’s
parental rights and the orders changing Children’s permanency goal to
adoption.
Decrees affirmed. Orders affirmed.
Judge McCaffery joins the memorandum.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2023
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