In Re: J.M., Appeal of: J.R., Mother ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.R., MOTHER :
:
:
:
:
: No. 1292 MDA 2021
Appeal from the Decree Entered August 10, 2021
In the Court of Common Pleas of Northumberland County Orphans' Court
at No(s): ADOPTEE #48-2020
IN RE: J.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.R., MOTHER :
:
:
:
:
: No. 1294 MDA 2021
Appeal from the Decree Entered August 10, 2021
In the Court of Common Pleas of Northumberland County Orphans' Court
at No(s): ADOPTEE #49-2020
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 27, 2022
J.R. (“Mother”) appeals from the decrees entered on August 10, 2021,
which terminated her parental rights to her daughters, J.C.M., born in June
2016, and J.M.R., born in January 2014.1 We affirm.
____________________________________________
1 The orphans’ court entered a separate decree terminating the rights of
J.C.M.’s father, J.M. (“Father”). Father has filed an appeal at 1293 MDA 2021.
(Footnote Continued Next Page)
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Northumberland County Children and Youth Services (“CYS”) was
involved with Father on an unrelated matter with another child when Mother,
J.C.M., and J.M.R. moved in with Father. At that time, CYS expanded its
involvement to include Mother and her children. In January 2019, CYS
attempted to administer drug tests to Mother and Father based on concerns
with substance abuse. Mother tested positive for a controlled substance;
Father refused the test. Ultimately, CYS took J.C.M. and J.M.R. into custody
and placed them in kinship care.
Both children were adjudicated dependent based upon concerns with
substance abuse, inadequate housing, lack of parenting abilities, and lack of
employment. Mother and Father were ordered to undergo a drug and alcohol
evaluation, comply with treatment recommendations, obtain stable housing
and employment, visit with the children, and complete parenting classes.2
Orphans’ Court Opinion in Support of Final Decrees, 8/10/21, at unnumbered
1. Due to a lack of engagement with services and contact with the children,
aggravated circumstances were found to exist against both parents in August
2019.
____________________________________________
The orphans’ court also entered a separate decree terminating the rights of
J.M.R.’s father. J.M.R.’s father is unknown and has not filed an appeal. As a
note, we have added each child’s middle initial for clarity within this
memorandum because the children’s first and last initials, as used in the
caption, are identical to those of either Mother or Father.
2 Since the certified record does not include the child permanency plans for
J.C.M. and J.M.R., we glean the concerns at adjudication and the goals for
reunification from the testimony presented at the termination hearings and
the opinion of the orphans’ court in support of the final decrees.
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In February 2020, J.C.M. and J.M.R. changed kinship care and were
placed with P.L. (“Maternal Grandmother”),3 who resides in the state of
Georgia. In June 2020, Mother and Father moved into a residence owned by
Mother’s father (“Maternal Grandfather”) in Georgia. At that time, Mother
began calling the children daily.4
In September 2020, CYS filed petitions to terminate the parental rights
of Mother as to J.C.M. and J.M.R. pursuant to 23 Pa.C.S. § 2311(a)(1), (2),
and (5), based on her failure to complete the respective child permanency
plans.5 Shortly before the petitions were filed, Mother completed a drug and
alcohol evaluation through Georgia Hope and subsequently began the
recommended treatment.6 Mother attended two treatment sessions in
October 2020.
A permanency review hearing was held in November 2020. Mother
secured employment prior to the hearing, but subsequently quit that same
____________________________________________
3 The children have remained in this home since that time. Maternal
Grandmother is a pre-adoptive resource for the children.
4 Maternal Grandmother testified that Mother and Father both have daily
phone calls with the children, but that J.M.R. is “not a big phone talker” and
Mother “doesn’t get on there a lot” so the calls are mainly between Father and
J.C.M. N.T., 5/5/21, at 13; see also id. at 68 (Mother explaining that she
tells her daughter she loves them but mostly lets Father and J.C.M. talk during
the daily phone calls).
5CYS also filed petitions to terminate the parental rights of Father and J.M.R.’s
unknown father.
6 Father also began treatment at Georgia Hope at this time.
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week. Following the hearing, the court found compelling circumstances
existed not to terminate as Mother lived close enough to the children to
establish a relationship and perform parental duties, CYS withdrew the
petitions to terminate, and Mother began attending weekly in-person visits
with J.C.M. and J.M.R., which were supervised by Maternal Grandmother.
Meanwhile, as part of Georgia Hope’s treatment program, Mother was
required to call in daily to determine whether it was her turn for a random
drug test based upon a color-wheel system. However, she failed to make the
daily calls and was not administered a single drug test between September
2020 and January 2021. Mother was discharged from Georgia Hope in January
2021 for non-attendance.
In January 2021, CYS sought and was granted the right to reinstate the
petitions to terminate the parental rights of Mother and Father. The orphans’
court held hearings on the petitions to terminate on April 8, 2021, and May 5,
2021.7 CYS presented the testimony of several individuals from CYS, as well
as a counselor from Georgia Hope and Maternal Grandmother. Maternal
Grandmother testified that Mother and Father visited the children weekly and
called daily. While the visits had gone well and the children were happy to
see their parents, Maternal Grandmother did not believe Mother and Father
____________________________________________
7 The court appointed Cindy Kerstetter, Esquire, as the guardian ad litem
during the dependency proceedings. Attorney Kerstetter was appointed as
legal counsel during the termination proceedings “after certifying on the
record that there was no conflict between what was best for the girls and the
girls’ desired outcome.” Orphans’ Court Opinion in Support of Final Decrees,
8/10/21, at unnumbered 2 n.2.
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were ready to care for the children as they did not have jobs or a car and had
not been drug tested. She testified that if the parents’ rights were terminated,
she would permit them to remain part of the children’s lives via visits, calls,
and holiday celebrations.
Mother testified on her own behalf, as did Father. At the time of the
hearing, Mother was incarcerated8 and Father was residing in a hotel while he
sought new housing. Regarding Mother’s substance abuse issues, the
counselor from Georgia Hope testified that Mother’s case had been reopened
on March 8, 2021. According to Mother, she underwent a new evaluation after
her case was reopened, but still had not been drug tested. Finally, Attorney
Kerstetter stated that the children loved their parents and, if allowed, would
live with them.
Following the hearings, the orphans’ court issued decrees terminating
Mother’s parental rights as to J.C.M. and J.M.R. pursuant to § 2511(a)(2), (5),
(8), and (b). Mother filed timely notices of appeal and concise statements
pursuant to Pa.R.A.P. 1925(a)(2). This Court consolidated the appeals sua
sponte. The orphans’ court did not file a Rule 1925(a) opinion or statement
in lieu of opinion with this Court. Mother presents the following issues for our
consideration:
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8 Mother was incarcerated on pending criminal charges. At the termination
hearing, the court attempted to avoid any testimony pertaining to the conduct
underlying the charges. Nonetheless, it appears that the charges related to a
time where Mother, without permission, removed the children from the care
of their initial kinship foster home based upon allegations of abuse. See N.T.,
5/5/21, at 10, 19, 57, 65, 74.
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I. Whether the trial court erred and/or abused its discretion in its
determination that [CYS] presented clear and convincing evidence
to terminate Mother’s rights under 23 Pa.C.S.A. § 2511(a)(2),
2511(a)(5), and 2511(a)(8)[.]
II. Whether the trial court erred and/or abused its discretion in
finding the termination of her parental rights would best serve the
development, physical, and emotional needs and welfare of the
children.
Mother’s brief at 12 (cleaned up).
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. 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
emphasized [the appellate court’s] 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) (cleaned up). “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).
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Termination of parental rights is governed by § 2511 of the Adoption
Act 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
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) (cleaned up).
Termination is proper when the moving party proves grounds for
termination under any subsection of § 2511(a), as well as § 2511(b). T.B.B.,
supra at 395. Mother asserts that CYS failed to establish by clear and
convincing evidence the statutory grounds for termination of her parental
rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). To affirm the
termination of parental rights, we need only agree with the orphans’ court as
to any one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W.,
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843 A.2d 380, 384 (Pa.Super. 2004) (en banc). We focus our analysis
on § 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 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), (b).
First, we address whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to § 2511(a)(2). Termination
under this subsection requires that the moving party prove the following
elements: “(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
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of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In re C.M.K., 203 A.3d 258, 262 (Pa.Super. 2019) (citation omitted).
Termination is not limited to affirmative misconduct but may be based upon
parental capacity that cannot be remedied. Id. (citation omitted). Finally,
“[p]arents are required to make diligent efforts toward the reasonably prompt
assumption of full parental duties.” Id. (citation omitted).
Mother argues that the orphans’ court abused its discretion in granting
termination because she “had secured stable housing in Georgia” and was
“participating with Georgia Hope.” Mother’s brief at 17.9 Mother highlights
her positive visits with J.C.M. and J.M.R. Id. Additionally, she refutes CYS’s
contention that she is addicted to a controlled substance and claims that she
“is willing to be drug tested.” Id. at 18. At the termination hearing, Mother
testified that she was willing to comply with the ordered services but did not
do so because CYS did not set them up, and that her initial discharge from
Georgia Hope was due to a misunderstanding about scheduling with a new
counselor. N.T., 5/5/21, at 76-80.
The orphans’ court acknowledged that Mother has had regular contact
and visits with the children but nonetheless concluded that she has “failed to
remedy the circumstances which led to placement.” Orphans’ Court Opinion
____________________________________________
9 We note with displeasure that Mother’s counsel, who also represents Father
in his separate appeal, appears to have re-used portions of Father’s brief
herein. See Mother’s brief at 15, 17, 19 (using male pronouns for Mother and
referencing a single child instead of J.C.M. and J.M.R.); see also id. at 1
(basing this Court’s jurisdiction on the right to appeal from a judgment of
sentence).
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in Support of Final Decrees, 8/10/21, at unnumbered 4. Specifically, Mother
has “avoided services meant to better [her] parenting and functioning[,]” her
“substance abuse concerns remain[,]” she has not “maintained
employment[,]” and she has “not taken advantage of the services offered by”
CYS. Id.
The assessment of the orphans’ court is supported by the certified
record. At the time of the termination hearing, J.C.M. and J.M.R. had been in
care for over two years based upon substance abuse concerns and the lack of
adequate housing, parenting abilities, and employment. Mother was aware of
the child permanency plans and, more specifically, her need to address her
substance abuse issues. N.T., 4/8/21, at 31, 33 (ordered to complete drug
testing, drug and alcohol counseling, and parenting). However, during that
period, Mother failed to remedy the underlying concerns.
With respect to the primary concern, Mother’s substance abuse, Mother
did not undergo a drug and alcohol evaluation until September 2020, which
was nineteen months after J.C.M. and J.M.R. were placed in kinship care. Id.
at 5, 38, 45, 51. Despite being recommended for treatment, Mother only
attended two sessions, failed to comply with the color-wheel system for calling
to be drug tested, and was discharged for non-attendance. Id. at 5-7, 10-11.
Coincidentally, it was not until after CYS requested reinstatement of the
petitions to terminate Mother’s parental rights that she sought to reopen her
treatment program with Georgia Hope. Id. at 69 (after being advised that
CYS intended to seek reinstatement of the termination petitions, Mother and
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Father told their CYS caseworker, Kim Carpenter, that they “want[ed] to start
services again to comply with the [c]ourt-ordered services and the child
permanency plans”). As of the second termination hearing, Mother had
undergone a new evaluation but still had not been drug tested.10 Id. at 5-9;
N.T., 5/5/21, at 86-87. While Mother argues she is willing to be drug tested,
the certified record bears out that she has generally avoided drug testing since
J.C.M. and J.M.R. were placed in kinship care. See N.T., 4/8/21, at 6, 10, 70
(unable to remember to call into Georgia Hope’s color-wheel system every day
during initial enrollment), id. at 29-30 (unable to provide urine sample
following adjudication hearing in February 2019); id. at 36-37 (unable to
provide sufficient urine sample for analysis in May 2019).
As to the other concerns, Mother was discharged from court-ordered
parenting classes in June 2019 for non-attendance. Id. at 71. Rebecca Horst,
one of the CYS resource workers assigned to the case, testified that Mother
failed to complete the parenting, budgeting, and community resource services
offered by CYS. Id. at 56, 62. Aside from approximately one week around
the November 2020 permanency review hearing, Mother has not been
employed. Id. at 70; N.T., 5/5/21, at 83, 86. As to stable housing, Mother
and Father had been living in a residence provided by Maternal Grandfather
____________________________________________
10 Mother’s testimony was unclear as to whether she had completed any
treatment sessions following her new evaluation. Compare N.T., 5/5/21, at
70 (stating she did not have her initial appointment because she was
incarcerated prior to it being scheduled); with id. at 86-87 (stating that
overall, she has attended two evaluations and three counseling sessions with
Georgia Hope).
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in Georgia beginning in June 2020. N.T., 4/8/21, at 76. However, at the time
of the second termination hearing Mother was incarcerated on pending
charges and Father was residing in a hotel while looking for an apartment
because Maternal Grandfather had asked him to leave the residence. N.T.,
5/5/21, at 8-9, 19, 24, 45.
Stated simply, Mother has failed to substantially comply with her court-
ordered goals or remedy the causes leading to her incapacity. While it is
commendable that Mother is again attempting to receive treatment,
the statute implicitly recognizes that 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). Accordingly,
the orphans’ court did not abuse its discretion in finding statutory support for
termination pursuant to § 2511(a)(2).
We now turn to § 2511(b). This Court has explained the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, “Intangibles
such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In addition, we
instructed that 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. 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. In re K.Z.S.,
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946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).
Mother argues that termination is against the best interests of her
children. Mother’s brief at 19. She assails the decision of the orphans’ court
not to order a bonding assessment. Id. According to Mother, prior to her
incarceration she had begun treatment at Georgia Hope as CYS wished and,
following her release, plans to return to Georgia and obtain appropriate
housing. Id. at 19-20.
As a general matter, Pennsylvania does not require the orphans’ court
to enlist a formal bonding evaluation or base its needs and welfare analysis
upon expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2011).
“Common sense dictates that courts considering termination must also
consider whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.” In re T.S.M., supra, at 268. In
weighing the bond considerations pursuant to § 2511(b), “courts must keep
the ticking clock of childhood ever in mind.” Id. at 269. “Children are young
for a scant number of years, and we have an obligation to see to their healthy
development quickly. When courts fail . . . the result, all too often, is
catastrophically maladjusted children.” Id. A court cannot “toll the well-being
and permanency” of a child indefinitely in the hope that a parent “will summon
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the ability to handle the responsibilities of parenting.” In re C.L.G., 956 A.2d
999, 1007 (Pa.Super. 2008) (en banc) (citation omitted).
In relation to § 2511(b), the orphans’ court provided as follows:
[The orphans’ c]ourt finds credible the testimony of the
caseworkers, resource worker, and Maternal Grandmother that
the children see maternal grandparents as their primary
caretakers. The parents are not “parental” figures for the
children. The children are both young and need permanence.
Th[e orphans’ c]ourt is also mindful of the fact that because the
[m]aternal [g]randparents are the adoptive resource, it is unlikely
that the parents will ever be shut out of their children’s lives. It
was testified to extensively that the parents visit “whenever they
want” and they do have a bond with their children. Because
legally terminating their parental rights will not change the actual
relationship the parents have with their children, the effect of
severing that bond in a termination is minimal.
Orphans’ Court Opinion in Support of Final Decrees, 8/10/21, at unnumbered
4-5.
This assessment is supported by the certified record. At the termination
hearing, it was evident that a bond exists between Mother and J.C.M. and
J.M.R., the children love her, and she has had regular and appropriate in-
person contact with them since November 2020. However, we find the
orphans’ court’s description of the visits as “akin to ‘playdates’ as opposed to
parental interactions” accurate. Orphans’ Court Opinion in Support of Final
Decrees, 8/10/21, at unnumbered 4. For example, Maternal Grandmother
generally chooses the locations for the visits and provides activities or crafts
for the family. N.T., 5/5/21, at 5-7. Mother and Father usually provide food
for the children during the weekly visits, but sometimes are not able to afford
food and Maternal Grandmother will cover that expense when necessary. Id.
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at 5-6. Finally, despite Mother, Father, J.C.M., and J.M.R. all being physically
together during visits, they generally do not spend time together as a family.
Instead, Mother typically visits solely with J.M.R. while Father spends time
with J.C.M. N.T., 4/8/21, at 72; N.T. 5/5/21, at 8.
Significantly, it is Maternal Grandmother who provides the parental care
for J.C.M. and J.M.R., as well as the intangibles such as “love, comfort,
security, and stability[.]” J.M., supra at 324. Ms. Carpenter testified that
since living with Maternal Grandmother, J.C.M. and J.M.R. have been brought
up to date on their vaccinations and received significant dental work due to a
lack of prior dental care. N.T., 4/8/21, at 78. Maternal Grandmother further
testified that the children have been in therapy, participated in extracurricular
activities, are doing very well in school, and have been thriving in every way
possible since living with her. N.T., 5/5/21, at 4.
At the time of the hearings, J.C.M. and J.M.R. expressed, through their
counsel, that they loved Mother and would live with her if possible. N.T.,
5/5/21, at 96. While the children still express this abstract wish in their brief
to this Court, they acknowledge the reality that Mother has not addressed the
issues that led to placement in the first place. Moreover, they have settled
into a regular routine with Maternal Grandmother over the past two years and
have flourished at school. As such, they now desire to remain living with
Maternal Grandmother. See J.C.M. and J.M.R.’s brief at 2-4.
Critically, Maternal Grandmother testified at the termination hearing
that little would change in terms of Mother’s contact with the children if her
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parental rights were terminated. Specifically, while acknowledging that daily
phone calls might not continue, Maternal Grandmother envisioned that Mother
would still visit with the children, call them, and partake in holiday
celebrations. N.T., 5/5/21, at 15-16.
The certified record demonstrates that J.C.M. and J.M.R. are best served
by terminating the parental rights of Mother in anticipation of an adoption by
Maternal Grandmother. Stated plainly, J.C.M. and J.M.R. have thrived since
being in Maternal Grandmother’s care, as she has provided a stable, loving
environment that consistently satisfied their developmental, physical, and
emotional needs and welfare. Moreover, the record is clear that while a
parental bond will legally be severed, Mother will remain part of the children’s
lives even after termination. As such, the record supports the assessment of
the orphans’ court that the effect of legally severing the parental bond
between Mother and J.C.M. and J.M.R. will not result have detrimental effects
on either child.
Based on the foregoing, we affirm the decrees of the orphans’ court
terminating Mother’s parental rights as to J.C.M. and J.M.R.
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Decrees affirmed.
Judge McCaffery joins this Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2022
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