NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P : IN THE SUPERIOR COURT OF

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1 J-S NON-PRECEDENTAL DECSON - SEE SUPEROR COURT.O.P n the nterest of: K.N.H. a/k/a K.H., a Mnor, APPEAL OF: S.K.D. a/k/a S.G. a/k/a S.K.G. a/k/a S.D., a Mother, : N THE SUPEROR COURT OF : PENNSYLVANA : : : : : : : No EDA 2015 Appea from the Order May 11, 2015 n the Court of Common Peas of Phadepha County, Famy Court Dvson, No(s): CP-51-AP ; CP-51-DP ; FD: 51-FN BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FLED JANUARY 28, 2016 S.K.D. a/k/a S.G. a/k/a S.K.G. a/k/a S.D. ( Mother ) appeas from the Order grantng the Petton fed by the Department of Human Servces ( DHS ) to nvountary termnate her parenta rghts to her mnor chd, K.N.H. a/k/a K.H. ( Chd ), a daughter born n August 2011, pursuant to 23 Pa.C.S.A. 2511(a)(1), (2), (5), (8), and (b). 1 We affrm. The tra court apty summarzed the factua and procedura hstory of ths case, whch we adopt for the purposes of ths appea. See Tra Court Opnon, 9/9/15, at 1-5. Reevanty, n May 2013, DHS receved a report from Genera Protectve Servces that Mother was found passed out n a shoppng ma 1 DHS aso ncuded M.H. ( Father ) n ts Petton for nvountary termnaton of parenta rghts. n May 2015, Father sgned vountary renqushment pettons.

2 J-S bathroom whe wth Chd, who was two years od at the tme. Mother was transported to the hospta, and t was determned that she had overdosed on heron. Mother eft the hospta that day aganst medca advce. DHS obtaned an Order of Protectve Custody, and Chd was temporary paced at Barng House before beng paced wth her paterna grandparents. On June 10, 2013, the Chd was adjudcated dependent. n the approxmatey 2 years that foowed, Mother was ncarcerated on three separate occasons. Mother refused to partcpate n vstatons wth Chd whe she was n prson. Whe Chd was n the custody of DHS, Mother dd not compete her Famy Servce Pan ( FSP ) objectves and ony vsted Chd 7 tmes. n December 2014, DHS fed an nvountary Termnaton of Parenta Rghts ( TPR ) Petton under 23 Pa.C.S.A. 2511(a)(1), (2), (5), (8) and (b). The tra court conducted a hearng on the Petton on May 11, As Mother was n prson awatng tra, she partcpated va teephone. After hearng the evdence, the tra court termnated Mother s parenta rghts under 23 Pa.C.S.A. 2511(a)(1), (2), (5), (8) and (b). Mother fed a tmey Notce of Appea and a Pennsyvana Rue of Appeate Procedure 1925(b) Concse Statement. On appea, Mother rases the foowng questons for our revew:. Whether the tra court commtted reversbe error when t nvountary termnated Mother s parenta rghts where such - 2 -

3 J-S determnaton was not supported by cear and convncng evdence under [] 23 Pa.C.S.A. 2511(a)(1), (2), (5), and (8)?. Whether the tra court commtted reversbe error when t nvountary termnated Mother s parenta rghts wthout gvng prmary consderaton to the effect that the termnaton woud have on the deveopmenta, physca and emotona needs of [C]hd as requred by [] 23 Pa.C.S.A. 2511(b)? Mother s Bref at 4. We revew an appea from the termnaton of parenta rghts n accordance wth the foowng standard: n an appea from an order termnatng parenta rghts, our scope of revew s comprehensve: we consder a the evdence presented as we as the tra court s factua fndngs and ega concusons. However, our standard of revew s narrow: we w reverse the tra court s order ony f we concude that the tra court abused ts dscreton, made an error of aw, or acked competent evdence to support ts fndngs. The tra judge s decson s entted to the same deference as a jury verdct. n re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (ctatons omtted). Termnaton of parenta rghts s controed by secton 2511 of the Adopton Act. See 23 Pa.C.S.A The burden s upon the pettoner to prove by cear and convncng evdence that ts asserted grounds for seekng the termnaton of parenta rghts are vad. n re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). [C]ear and convncng evdence s defned as testmony that s so cear, drect, weghty and convncng as to enabe the trer of fact to come to a cear convcton, wthout hestance, of the truth of the precse facts n ssue. d. (ctaton and quotaton marks omtted). Further, the tra court s free to beeve a, part, or none of the evdence - 3 -

4 J-S presented and s kewse free to make a credbty determnatons and resove confcts n the evdence. n re M.G., 855 A.2d 68, (Pa. Super. 2004). f the competent evdence supports the tra court s fndngs, we w affrm even f the record coud aso support the opposte resut. n re Adopton of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Satsfacton of any one subsecton of Secton 2511(a), aong wth consderaton of Secton 2511(b), s suffcent for the nvountary termnaton of parenta rghts. n re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). n ths case, we w revew the tra court s decson to termnate Mother s parenta rghts based upon Secton 2511(a)(1) and (b), whch state the foowng: Grounds for nvountary termnaton. (a) Genera rue. The rghts of a parent n regard to a chd may be termnated after a petton fed on any of the foowng grounds: (1) The parent by conduct contnung for a perod of at east sx months mmedatey precedng the fng of the petton ether has evdenced a setted purpose of renqushng parenta cam to a chd or has refused or faed to perform parenta dutes. * * * (b) Other consderatons. The court n termnatng the rghts of a parent sha gve prmary consderaton to the deveopmenta, physca and emotona needs and wefare of the chd. The rghts of a parent sha not be termnated soey on the bass of envronmenta factors such as nadequate housng, furnshngs, ncome, cothng and medca care f found to be beyond the contro of the parent. Wth respect to any petton fed pursuant to subsecton (a)(1), (6) or (8), the court sha not - 4 -

5 J-S consder any efforts by the parent to remedy the condtons descrbed theren whch are frst ntated subsequent to the gvng of notce of the fng of the petton. 23 Pa.C.S.A Parenta rghts may be termnated pursuant to Secton 2511(a)(1) f the parent ether demonstrates a setted purpose of renqushng parenta cam to a chd or fas to perform parenta dutes. [P]arenta duty s best understood n reaton to the needs of a chd. [T]hs court has hed that the parenta obgaton s a postve duty whch requres affrmatve performance. Ths affrmatve duty requres a contnung nterest n the chd and a genune effort to mantan communcaton and assocaton wth the chd. n the nterest of J.T., 983 A.2d 771, (Pa. Super. 2009) (nterna quotatons and ctatons omtted). n regard to ncarceraton and the preservaton of parenta rghts, we have stated the foowng: []ncarceraton of a parent does not, n tsef, provde suffcent grounds for termnaton of parenta rghts; however, an ncarcerated parent s responsbtes are not toed durng [her] ncarceraton. [P]arenta duty requres that the parent not yed to every probem, but must act affrmatvey, wth good fath nterest and effort, to mantan the parent-chd reatonshp to the best of [her] abty, even n dffcut crcumstances. n the nterest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (ctatons omtted); see aso n re S.P., 47 A.3d 817, 828 (Pa. 2012). Further, [a] parent must utze a avaabe resources to preserve the parenta reatonshp, and must exercse reasonabe frmness n resstng obstaces paced n the path of mantanng the parentchd reatonshp. Parenta rghts are not preserved by watng for a more sutabe or convenent tme to perform one s parenta responsbtes whe others provde the chd wth hs or her physca and emotona needs

6 J-S n re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (ctatons omtted). n her frst cam, Mother asserts that the tra court erred n grantng the TPR Petton because DHS dd not satsfy by cear and convncng evdence that her parenta rghts shoud be termnated under Secton 2511(a). Mother s Bref at 9. As to the requrements of subsecton (a)(1), Mother argues that she competed her FSP objectves by partcpatng n parentng casses, anger management casses, and an n-patent drug and acoho program whe she was n prson. d. at 12. Mother cams that she decned vstaton wth Chd whe she was n prson because she dd not thnk t was n Chd s best nterests. d. Mother aso cams that she mantaned communcaton wth Chd by sendng etters and cards, and by askng Chd s paterna grandparents and DHS about Chd s wefare. d. at The tra court appropratey apped Secton 2511(a)(1) to ths case, and we adopt ts Opnon as to that subsecton for the purposes of ths appea. 2 See Tra Court Opnon, 9/9/15, at 7-8; see aso n re B., N.M., 856 A.2d 847, 858 (Pa. Super. 2004) (concudng that father showed a setted purpose of renqushng hs parenta rghts where he sat de for most of chd s fe whe mother performed a parenta dutes, and that father s wsh to not have hs parenta rghts termnated was nsuffcent to protect 2 Addtonay, we note that Mother s ony expanaton for her conduct was that she had a few bad years. N.T., 5/11/15, at

7 J-S those rghts wthout actng affrmatvey to foster a parenta reatonshp wth [c]hd durng hs ncarceraton. ). n her second cam, Mother argues that the tra court faed to gve proper consderaton of the effect of termnaton of her rghts on Chd s needs and wefare accordng to Secton 2511(b). Mother s Bref at 14. Mother asserts that DHS soca worker Moy McNe s ( McNe ) testmony that Chd had no bond wth Mother was napproprate because McNe ony supervsed one vst. d. at 15. The tra court set forth the reevant aw regardng Secton 2511(b), and determned that t was n Chd s best nterest to termnate Mother s parenta rghts. See Tra Court Opnon, 9/9/15, at 12-13; see aso n re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (statng that courts consderng termnaton must aso consder whether the chdren are n a pre-adoptve home and whether they have a bond wth ther foster parents. ). Upon our revew, the tra court appropratey apped Secton 2511(b) to ths case, and we adopt ts Opnon for the purposes of ths appea. See Tra Court Opnon, 9/9/15, at Based upon the foregong, the tra court dd not err n grantng the TPR Petton. Order affrmed

8 J-S Judgment Entered. Joseph D. Seetyn, Esq. Prothonotary Date: 1/28/

9 Crcuated 01/08/ :00 PM THE FRST JUDCAL DSTRCT OF PENNSYLVANA, PHLADELPHA COUNTY N THE COURT OF COMMON PLEAS N RE: K.H., a Mnor FAMLY COURT DVSON JUVENLE BRANCH-DEPENDENCY CP-51-DP FN Superor Court# 1724 EDA2015 APPEAL OF: S.K.D. a/ka, S.G. a/k/a, S.K.G. a/k/a, S.D., Mother OPNON NTRODUCTON S.K.D. a/k/a S.G. a/k/a, S.K.G. a/k/a S.D. ("Mother") appeas from the Decree, and Order entered by ths Court on May 11, 2015, grantng the Petton fed by the Phadepha Department of Human Servces ('DHS") nvountary termnatng her parenta rghts to her mnor femae chd, K.H. ("Chd"). After a fu Hearng on the merts, ths Court found that cear and convncng evdence was presented to termnate. the parenta rghts of Mother.1 As dscussed n greater deta beow, the tra court termnated Mother's parenta rghts because Mother, durng neary two (2) years that the Chd was n the custody of DHS, dd not compete her Famy Servce Pan ("FSP") objectves, made tte effort to be nvoved wth her Chd whe ncarcerated nor dd she mantan a reatonshp wth the Chd durng the bref tme perods when she was not n Father's parenta rghts were aso subsequenty termnated pursuant to hs sgnng vountary renqushments.

10 custody. Furthermore, the Chd, who was 4 years od at the tme of the hearng, was dong we n the pre-adoptve home of her paterna grandparents. TERMNATON HEARNG., On December 30, 2014, DHS fed a Petton to nvountary Termnate Mother's Parenta Rghts. On May 11, 2015, ths Court heard testmony on DHS's Petton to Termnate Mother's Parenta Rghts. The Cty Soctor frst presented the testmony from D.H.S. soca worker Moy McNe who was found to be a credbe wtness by ths Court. Ms. McNe testfed that on May 30, 2013 DHS receved a Genera Protectve Servces ("GPS") report that Mother, whe wth her two year od daughter, was found passed out n a bathroom at the Gaery Shoppng Ma n Phadepha. (N.T. 5/11/2015, p. 11). Mother was transported to Thomas Jefferson Hospta by paramedcs who ntay feared that :: she was dead due to her beng unresponsve. (N.T. 5/11/2015, p. 11). t was determned that Mother's condton was a resut of a heron overdose, however she eft the hospta that same day aganst medca advce. (N.T. 5/11/2015, p. 22). The Chd was paced temporary at the Barng House and then wth her grandparents. (N.T. 5/11/2015, p. 12). On June 10, 2013, the Chd was adjudcated Dependent. (DRO 6/10/2013, DHS Exhbt 2). On that date, Mother was ordered to take a forthwth drug screen and assessment wth three random screens before the next court date. (DRO 6/10/2013). On June 10, 2013, Mother tested postve for marjuana. Mother was ncarcerated n Berks 2 1 j

11 County Prson from June 21, 2013 unt Juy 5, (N.T. 5/11/2015, p. 13). nta FSP Objectves were estabshed for Mother n Juy Mother was to engage n drug and acoho treatment, mantan recovery and foow a recommendatons for her recovery. (N.T. 5/11/2015, p. 12). Ms. McNe testfed that she got n contact wth Mother on Juy 26, 2013, foowng her reease from prson at whch tme Mother was offered supervsed b-weeky vsts. (N.T. 5/11/2015, p.13). Mother faed to ava hersef of the opportunty to vst wth her Chd. (N.T. 5/11/2015, p.29). A supervsed vst was arranged for Mother and took pace on August 10, (N.T. 5/11/2015, pp.13-14). Mother dd not vst her Chd agan unt December 2, (N.T. 5/11/2015, pp.13-14). Addtonay, Ms. McNe testfed that Mother dd not ava hersef of any of the Court- Ordered drug screens snce testng postve for marjuana n June On February 5, 2014, Mother was agan ncarcerated n Lebanon County Ja. (N.T. 5/11/2015, p. 15). n June 2014, an FSP meetng was hed n whch Mother partcpated n by phone. (N.T. 5/11/2015, p. 23). At that tme Ms. McNe spoke wth Mother by phone about her FSP objectves and maed her a copy of her objectves. (N.T. 5/11/2015, p. 23). On September 12, 2014, Mother was reeased from Lebanon County Ja. (N.T. 5/11/2015, p.15). Durng her ncarceraton, Mother chose not to partcpate n any vstaton wth her Chd. (N.T. 5/11/2015, pp.15-16). After beng reeased from ncarceraton, Mother was admtted nto an npatent drug and acoho detox program whch she competed. Mother was then admtted to a rehabtaton program on October \ 29, 2015, buteft aganst staff advce on November 6, (N.T. 5/1 1/2015, p. 7. \ Ms. McNe aso testfed that upon her reease from Lebanon County Ja n 3 :,. :------: r

12 September 2014, Mother was offered supervsed vsts wth the Chd at the agency. (N.T. 5/11/2015, p.16). Despte beng offered ths opportunty, Mother ony vsted her Chd two (2) tmes n November 2014, two (2) tmes n December 2014 and one (1) tme n January (N.T. 5/11/2015, p. 17). Ms. McNe testfed that addtona FSP objectves were added for Mother whch ncuded parentng, housng, vstaton and to compy wth Court Orders and condtons of probaton. (N.T. 5/11/2015, p.18). Ms. McNe stated that she never receved any documentaton that Mother had competed any drug and acoho programs. (N.T. 5/11/2015, pp.17-18, 20). Addtonay, Ms. McNe testfed that Mother had severa dfferent addresses and dd not have stabe housng. (N.T. 5/11/2015, p.18). On January 12, 2015, Mother was agan arrested and ncarcerated for Aggravated Assaut, Theft by Recevng Stoen Property, Drvng Under the nfuence, Feeng Poce and reated offenses. (N.T. 5/11/2015, p.20). Fnay, Ms. McNe testfed that, n her opnon, the Chd woud not suffer any rreparabe harm f Mother's rghts were to be nvountary termnated. (N.T. 5/11/2015, p.21 ). Ms. McNe based her opnon upon the fact that the Chd was we bonded wth her grandparents who were meetng a of her needs. (N.T. 5/11/2015, pp.21-23). To the contrary, the Chd had no bond wth Mother who had ony seen the Chd seven tmes n neary two (2) years. (N.T. 5/11/2015, pp.21-24). Based upon these facts, Ms. McNe concuded that t woud be n the Chd's best nterest to be adopted. (N.T. 5/11/2015, pp ). Mother aso testfed va phone at whch tme she admtted that she never 4

13 competed a drug and acoho program. (N.T. 5/11/2015, p.36). She testfed that she was n an npatent program for about 3 weeks but eft because she was angry. (N.T. 5/11/2015, p.37). Furthermore, n reference to her Chd's pacement, Mother testfed that she recognzed that her daughter was where she needed to be and that her Chd had stabty wth her grandparents. (N.T. 5/11/2015, pp. APPELLANT'S foowng: ARGUMENTS ). At the end of the Hearng, ths Court granted D HS' s Petton to Termnate Parenta Rghts of Mother. n her Statement of Matters Companed of on Appea, Mother avers the 1. The tra court abused ts dscreton and commtted ega error n termnatng mother's parenta rghts snce the Department of Human Servces dd not meet ts burden by cear and convncng evdence of estabshng suffcent grounds that mother had evdenced a setted purpose of renqushng a cam to her chd or had refused or faed to perform parenta dutes under 23 Pa.C.S (a)(). 2. The tra court abused ts dscreton and commtted ega error n termnatng mother's parenta rghts snce the Department of Human Servces dd not meet: ts burden by cear and convncng evdence of estabshng suffcent grourds under 23 Pa.C.S (a)(2). 3. The tra court abused ts dscreton and commtted ega error n termnatng mother's parenta rghts under 23 Pa.C.S. 251 (a)(5) because the Department of Human Servces to prove by cear and convncng evdence the present and contnued ncapacty of mother to provde essenta care necessary for her chd's physca and menta we-beng. 4. The tra court abused ts dscreton and commtted ega error n termnatng mother's parenta rghts under 23 Pa.C.S. 251 (a)(8) because the Department of Human Servces to prove by cear and convncng evdence that the condtons whch ed to the chd's pacement contnued to exst.. '

14 ' ' 5. The tra court dd err n termnatng mother's parenta rghts snce the Department of Human Servces dd not meet ts burden by cear and convncng evdence of showng that the best nterest of the chd was served by termnatng mother's parenta rghts pursuant to Secton 2511 (b) of the Adopton Act. STANDARD OF REVEW When revewng an Appea from a Decree termnatng parenta rghts, an Appeate Court s mted to determnng whether the decson of the Tra Court s supported by competent evdence. Absent an abuse of dscreton, an error of aw, or nsuffcent evdentary support for the Tra Court's decson, the Decree must stand. Where a Tra Court has granted a Petton to nvountary Termnate Parenta Rghts, an Appeate Court must accord the hearng judge's decson the same deference that t woud gve to a jury verdct. The Pennsyvana Superor Court need ony agree wth a J ' ; j Tra Court's decson as to any one subsecton under 23 Pa.C.S.A. 251 (a) n order to affrm a termnaton of parenta rghts. n re D.A.T., 91 A.3d 197 (Pa. Super. 2014). A. The Tra Court Propery Found that the Department of Human Servces Met ts Burden by Cear and Convncng Evdence To Termnate Mother's Parenta Rghts Pursuant to 23 Pa.C.S.A. 2511(a)(), (2), (5) and (8). Termnaton of parenta rghts s governed by 23 Pa.C.S.A n termnaton cases, the burden s upon DHS to prove by cear and convncng evdence that ts asserted grounds for seekng termnaton of parenta rghts are vad. n the nterest ofb.c.,36. A.3d 601, (Pa. Super. 2012). n the nstant case, DHS's Petton asked the Court to termnate Mother's parenta rghts under 251 (a)(),(2), (5), and (8). n ght of Mother's faure for two (2) years to meet her FSP objectves, her decson not to be 6

15 nvoved n the fe of the Chd whe ncarcerated, and her mnma efforts to estabsh and mantan a reatonshp wth the Chd durng the bref perod tme that she was not ncarcerated, the Tra Court propery granted DHS's Petton to Termnate. 1. The Tra Court propery granted the Petton pursuant to 23 Pa.C.S.A 2511(a)(). Secton 2511 (a)() provdes that "parenta rghts may be termnated, f, for a perod of at east sx months, a parent ether demonstrates a setted purpose of renqushng parenta cam to a chd or fas to perform parenta dutes." n the nterest of J.T., 983 A.2d 771 (Pa. Super. 2009). ' - The Tra Court found cear and convncng evdence that Mother demonstrated a setted purpose of renqushng parenta cam to the Chd and faed to perform any parenta dutes. Mother was ncarcerated for haf of the Chd's fe durng whch tmes she chose not to be nvoved n her Chd's fe. Mother was offered supervsed vsts wth her Chd when she was not ncarcerated. Despte beng offered supervsed vsts at the -1 agency, Mother ony vsted her Chd seven (7) tmes. Mother's refusa to parent was aso demonstrated by the fact that Mother faed to compy wth her FSP objectves. Mother faed to obtan sutabe housng for her Chd. Most mportanty, Mother, by her own admsson, never competed her major goa of competng drug and acoho treatment. Mother competed a detox program but then eft an npatent rehabtaton program after 3 weeks because she was angry. Aso, as stated above, Mother faed to partcpate n vstaton wth her Chd. These mnma objectves -1 7

16 woud have demonstrated Mother's nterest n carng for her Chd. However, Mother made tte f any effort to fuf these objectves. Mother was ncarcerated durng haf of the fetme of the Chd. Whe ncarceraton aone s not suffcent to support termnaton under any subsecton, "parenta responsbtes are not toed durng ncarceraton." n re: D.J.S., 1999 PA Super 214, 737 A.2d 283, 286 (Pa. Super. 1999). Further, "[a] parent desrng to retan 1 parenta rghts must exert hmsef to take and mantan a pace of mportance n hs chd's fe." Adopton of Baby Boy A., 512 Pa 517, 517 A.2d 1244, 1246 (Pa. 1986). Wth respect to faure to perform parenta dutes under subsecton (a)(), as we as,f ncapabty under subsecton (a)(2), the Court must nqure whether the parent, whe ncarcerated, utzed those resources avaabe whe he or she was n prson to mantan a cose reatonshp wth the chd. d. Mother dd not utze any resource avaabe to her to mantan a reatonshp wth her Chd. Mother's refusa to compy wth her mnma FSP objectves and to mantan a reatonshp wth the Chd demonstrated ncapacty, abuse, negect, or refusa whch caused the Chd to be wthout essenta parenta care. See n re: Adopton of W.J.R., 2008 PA Super 131, 952 A.2d 680, (Pa. Super. 2008)(affrmng tra court's decson to termnate parenta rghts of ncarcerated father). Consequenty, ths Court concuded that Mother demonstrated a setted purpose of,1 renqushng parenta cam to the Chd and faed to perform her parenta dutes. For these reasons, the tra court found that DHS met ts burden under 23 Pa.C.S.A (a) (1 ). 8

17 2. The Tra Court propery granted the Petton to Termnate Parenta Rghts pursuant to 23 Pa.C.S.A. 251(a) (2). Secton 251 (a) (2) requres that "repeated and contnued ncapacty, abuse, negect or refusa of the parent has caused the chd to be wthout essenta parenta care, contro or subsstence necessary for hs physca or menta we-beng and the condtons and causes of the ncapacty, abuse, negect or refusa cannot or w not be remeded by the parent." 23 Pa.C.S.A. 251 (a) (2). These grounds are not mted to affrmatve msconduct; "to the contrary those grounds may ncude acts of refusa as we as ncapacty to perform parenta dutes." n Re: N.A.M., 33 A.3d 95 (Pa. Super. 2011). The Supreme Court, n n re Geger, 459 Pa. 636, 331 A.2d 172, 174 (1975), enuncated the fundamenta test n termnaton of parenta rghts under what s now 251 (a)(2) as requrng the Pettoner to prove "( ) repeated and contnued ncapacty, abuse, negect or refusa; (2) that such ncapacty, abuse, negect or refusa caused the chd to be wthout essenta parenta care, contro or subsstence; and (3) that the causes of the ncapacty, abuse, negect or refusa cannot or w not be remeded." See aso n re: Adopton of K.J., 938 Pa. Super at The grounds for termnaton of parenta rghts under 23 Pa.C.S.A (a) (2), due to parenta ncapacty that cannot be remeded, are "not mted to affrmatve msconduct." Unke 2511( a)( ), 2511( a)(2) does not emphasze a parent's refusa or faure to perform parenta dutes, but nstead emphaszes the chd's present and future need for essenta parenta care, contro or subsstence necessary for hs physca or menta webeng. n re Z.P., 994 A.2d 1108 (Pa. Super. 2010). ~ 9 j

18 Parenta duty requres that the parent act affrmatvey wth a good fath nterest and effort, and not yed to every probem, n order to mantan the parent-chd reatonshp to the best of hs or her abty, even n dffcut crcumstances. n re E.M., 908 A.2d 297 (Pa. Super. 2006). n other words, a tra court can fnd an ncapacty to parent by fndng affrmatve msconduct, acts of refusa to parent as we as an ncapacty to parent. n re: S.C.B., 990 A.2d 762 (Pa. Super. 2010). As dscussed above, the Tra Court found that Mother evdenced both an ncapacty and refusa to parent. The Mother's faure to mantan a reatonshp wth the Chd when the Chd was n foster care demonstrated her ncapacty and refusa to parent. n addton, there s no queston that Mother's faure to mantan contact wth the Chd demonstrated that Mother eft her young Chd wthout parenta care necessary for her physca or menta we-beng. Fnay, the Court was not persuaded that Mother coud resove her dependency ssues n the near future. Mother had never obtaned sutabe housng for the Chd and was not recevng necessary drug and acoho treatment. Further, Mother never demonstrated that she was abe to provde proper parenta care for her Chd. At the tme of the Termnaton Hearng, Mother was back n prson awatng Tra on charges of Aggravated Assaut, Theft by Recevng Stoen Property, Drvng Under the nfuence, Feeng Poce and reated offenses. A chd's fe may not be put on hod n the hope that the parent w summon the abty to hande the responsbtes of parentng. n re: Adopton of M.E.P., 825 A.2d 1 ', 1266 (Pa.Super. 2003). Mother has shown a "repeated and contnued ncapacty and 10

19 \ refusa" to parent the Chd. Ths Court fnds that Mother w not be abe to resove the dependency ssues n the near future. Consequenty, for a of the above reasons ths Court termnated Mother's parenta rghts pursuant to 251 (a) (2). 3. The Tra Court propery granted the Petton to Termnate Parenta Rghts Pursuant to 23 Pa.C.S.A. 251(a)(S) and (a)(8). Termnaton of Parenta Rghts under Secton 2511 (a)(5) requres that: (1) the chd has been removed from parenta care for at east sx months; (2) the condtons whch ed to remova and pacement of the chd contnue to exst; and (3) termnaton of parenta rghts woud best serve the needs and wefare of the chd. 23 Pa.C.S.A. 251 (a)(5). The requrements to termnate pursuant to secton 251 (a)(8) are smar. "[T]o termnate parenta rghts pursuant to 23 Pa.C.S.A. 251 (a)(8), the foowng factors must be demonstrated: ( 1) the chd has been removed from parenta care for 12 months or more from the date of remova; (2) the condtons whch ed to the remova or pacement of the chd contnue to exst; and (3) termnaton of parenta rghts woud best serve the needs and wefare of the chd." n re: K.T.E.L., 983 A.2d 745 (Pa. Super. 2009). The Court found cear and convncng evdence to termnate Mother's parenta rghts pursuant to Sectons 251 (a)(5) and (a)(8) for the same reasons dscussed above. n addton, the Court found t was n the Chd's best nterests to termnate Mother's J \ rghts because the Chd was resdng n a pre-adoptve home for neary two (2) years and was bonded wth her grandparents who were meetng a her needs.

20 B. The Tra Court Propery Found That Termnaton of Mother's Parenta Rghts was n the Chd's Best nterests and That OHS Met ts Burden Pursuant to 23 Pa.C.S.A. 251(b). After the Tra Court fnds that the statutory grounds for termnaton have been satsfed, t must then determne whether the termnaton of parenta rghts serves the best nterests of the chd pursuant to 23 Pa.C.S.A. 251 (b). n the Matter of the Adopton of ' ' C.A.W. and A.A.W Pa. Super. 277, 683 A.2d 911, (Pa. Super. 1996). n termnatng the rghts of a parent, the Court "sha gve prmary consderaton to the deveopmenta, physca and emotona needs and wefare of the chd." 23 Pa.C.S.A. 2511(b). "Secton 2511 (b) centers judca nqury upon the wefare of the chd rather than the faut of the parent." n re K.Z.S., 946 A.2d 753 (Pa.Super. 2008). Further, "[ojne major aspect of the needs and wefare anayss concerns the nature and status of the emotona bond between parent and chd. n re: C.T. and G.T.F., 944 A.2d 779 (Pa.Super. 2008). The Chd was two years od at the tme of the hearng, and had resded n a preadoptve home wth her grandparents neary her entre fe. Ms. McNe testfed that, n her opnon, the Chd woud not suffer any rreparabe harm f Mother's rghts were to be nvountary termnated. Ms. McNe based her opnon upon the fact that the Chd 1 1 was we bonded wth her grandparents who were meetng a of her needs. To the contrary, the Chd had no bond wth Mother who was ncarcerated and had ony seen the Chd seven tmes n neary two years. Based upon these facts, ths Court concuded that t woud be n the Chd's best nterest to be adopted. Addtonay, Mother acknowedged that her chd was n a stabe envronment wth her grandparents. Mother went so far as to say that when she got out of prson t was not her ntenton to remove.1 12 '

21 Chd from the grandparents care. Snce the Chd has spent approxmatey two (2) years n foster care, Mother has never cared for the Chd, and the Chd s n a nurturng and ovng foster home, the deveopmenta physca and emotona needs and wefare of the Chd are best served by termnatng Mother's parenta rghts. ' j J CONCLUSON Ths Court fnds that DHS met ts burden by cear and convncng evdence for termnatng Mother's parenta rghts pursuant to 23 Pa.C.S.A. 25(a) and (b) and for the foregong reasons, ths Court respectfuy requests that the Decree and Order of May 11, 2015 termnatng Mother's Parenta Rghts be Affrmed..j DATE BY THE COURT: ALLANL~.~. '

22 CERTFCATE OF SERVCE hereby certfy that a true and correct copy of the foregong Opnon s served upon the foowng partes by the manner as desgnated: Famy Court Devery Ma Box. Nea Mascantono, Esq Caowh Street Phadepha, PA Counse for Mother, Appeant Carn Saafr. Esqure Beggn & Greshes 1218 Chestnut s. Ste. 500 Phadepha. PA Counse for Father Cyntha Keer, Esq. Catn Dunston. Esq. Pha Soctor's Offce One Parkway, 1515 Arch St fr. Phadepha, PA DHS Counse Regna Tuchnsky, Esq. Patrca A. Korey, Esq. Defenders Assocaton Chd Advocacy Unt 1441 Sansom St Phadepha, PA For Mnor Chd ALLAN L. TERESHKO, Sr. J. DATE