J-S46033-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ADOPTION OF: M.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: T.B., MOTHER : : : : : : No. 863 WDA 2023
Appeal from the Decree Entered June 30, 2023 In the Court of Common Pleas of Bedford County Orphans’ Court at No(s): 20 AD 2021
BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: February 8, 2024
T.B. (“Mother”) appeals from the decree granting the petition filed by
foster mother (“H.F.W.”) to involuntarily terminate Mother’s parental rights to
M.S. (“Child”), born in July 2015. We affirm.
The relevant facts and procedural history are as follows. In July 2021,
H.F.W., who has raised Child from the time she was one year old, filed a
motion to terminate Mother’s parental rights. At the hearing on H.F.W.’s
petition in June 2023, Mother appeared pro se.1 H.F.W. testified Child’s aunt
(“Aunt”), whom she knew from work, took custody of Child when Child was
____________________________________________
1 The Orphans’ Court determined that it saw no conflict with the guardian ad
litem (“GAL”) also serving as Child’s legal counsel. Mother stated that she had no objection, and the court permitted the dual representation. See N.T., 6/23/23, at 5-8. J-S46033-23
six months old. See id. at 13.2 When Aunt wanted to have her own child,
H.F.W. assumed physical custody of Child after helping raise her for
approximately six months. See id. at 12-16, 35.3 H.F.W. sought and was
granted primary legal and physical custody of Child with Mother receiving
visitation rights. See id. at 36.
H.F.W. testified she learned, when Child was two years old, Mother
wanted to see her. H.F.W. told Mother she would prefer the meeting to occur
as part of Child’s counseling because Child had rarely seen Mother and did not
know she had “another Mother.” Id. at 32-33.4 H.F.W. testified Mother
sporadically visited Child while monitored by Aunt until the Child was three
years old. See id. at 16-17. H.F.W. testified Mother progressed to
unsupervised visits but had frequent scheduling problems and did not seem
to be interested in seeing Child. H.F.W. testified the court ceased the visits
after Mother failed drug tests and entered rehabilitation. See id. at 38-41,
47, 56.5 H.F.W. testified Mother last saw Child on New Year’s Day, 2020,
2 Mother’s addiction to heroin prevented her from raising Child. See N.T., 6/23/23, at 62.
3 At the time, H.F.W. and M.S.’s father were romantically involved. See N.T., 6/23/23, at 29-31.
4 Child had begun seeing a counselor having been traumatized upon seeing a
photograph of Mother pregnant with her. See id. at 34.
5 H.F.W. testified that when Mother had an unsupervised visit with Child and
her other daughter, the children found Mother asleep on the couch. See N.T., 6/23/23, at 40-41.
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before she moved to Erie, having failed to take advantage of H.F.W.’s offers
to make Child available for visits on a dozen previous occasions. See id. at
53. Mother and Child had their last phone call in December 2020. See id. at
20.6 Child sees Aunt a few times each year and has regular contact with her
half-sister, Mother’s child from another relationship. See id. at 40, 42-44.
H.F.W. testified she owns her home in Osterberg, Pennsylvania, where
she lives with her fiancé, his three Children, and Child, and has worked for six
years in the family hardware store. See N.T., 6/23/23, at 11-12. At the time
of the termination hearing, Child was preparing to enter the third grade and
had lived with H.F.W. for seven and one-half years. See id. at 13.
Child has learning difficulties that are treated with medication. At the
time of the hearing, her grades had improved as the result of an individualized
educational plan (“IEP”), and regular doctors’ appointments to which H.F.W.
takes her. See id. at 17-19. Child engages in a series of extracurricular
activities including cheerleading, softball, and church youth group. See id. at
20-21. H.F.W. pays for all of Child’s activities and expenses and attends to
all her daily needs; Mother has not offered any financial assistance, offered to
perform parental duties for Child, or kept her promise to send Child gifts, and
moved from the Osterberg area to Erie, Pennsylvania, a significant distance
away. See id. at 21-22, 27, 39-40, 52, 57, 114. Child has close relationships
6 H.F.W. testified Mother texted her in July 2021 asking to speak to Child but
H.F.W. refused to permit the call. See N.T., 6/23/23, at 59.
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with H.F.W.’s parents, whom she regards as grandparents, H.F.W.’s extended
family, and H.F.W.’s fiancé’s youngest son. See id. at 23-24, 49. Child
continues to receive counseling to help address her learning difficulties. See
id. at 44-46. Child has never expressed a desire to see Mother. See id. at
46-47, 51.7 H.F.W. testified she believes adoption is in Child’s best interests.
See id. at 52.
Mother’s mother, “T.W.” testified Mother’s heroin use and Aunt’s
pregnancy led them and Mother to seek H.F.W.’s help caring for Child because
H.F.W. was dating Weist’s son. T.W. stated H.F.W. has prevented her from
seeing Child. See id. at 64. T.W. testified that Mother is now fit to be a
mother to Child because she had two jobs, a wife, and a home, and has not
used drugs for three years. See id. at 68. T.W. also stated she tried to
contact an attorney in August 2021 to seek visitation rights for herself. See
id. at 70.
Mother stated H.F.W. has kept her from contact with Child and told her
she would be taken from the property if she tried to see her. Mother testified
she wants to be in Child’s life, has a business, and is married. See id. at 77-
80. Mother stated she never filed a petition for custody in the nearly four
years since the court granted her visits with Child and has no explanation for
not doing so. See id. at 82-83, 97. She also testified she had no contact
with Child when she moved to Erie. See id. at 97. ____________________________________________
7 Child’s biological father has consented to the termination of his parental rights. See N.T., 6/23/23, at 51.
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After hearing argument from both parties and the GAL, who advocated
for termination, the Orphans’ Court articulated its basis for finding the
evidence satisfied 23 Pa.C.S.A. § 2511(a)(1), and (b), and granted the
involuntary termination petition. See id. at 102-17.8
Mother filed a timely, counseled notice of appeal and later filed a
statement pursuant to Pa.R.A.P. 1925(b).9 The Orphans’ Court wrote a Rule
1925(a) opinion.
On appeal, Mother raises the following issue for our review:
Whether the trial erred/abused its discretion in determining [H.F.W.] had established a legal basis for terminating [T.B.’s] parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), as the court failed to give appropriate weight to [H.F.W.’s] efforts to thwart the mother-daughter relationship, and as such the court’s finding is not supported by the record.
Mother’s Brief at 5 (capitalization and spacing standardized).
8 During her testimony, Mother asserted the presiding judge represented her
as counsel at a prior dependency hearing. See N.T., 6/23/23, at 84-85. Although the judge had “zero recollection” of representing Mother, see id.
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J-S46033-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ADOPTION OF: M.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: T.B., MOTHER : : : : : : No. 863 WDA 2023
Appeal from the Decree Entered June 30, 2023 In the Court of Common Pleas of Bedford County Orphans’ Court at No(s): 20 AD 2021
BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: February 8, 2024
T.B. (“Mother”) appeals from the decree granting the petition filed by
foster mother (“H.F.W.”) to involuntarily terminate Mother’s parental rights to
M.S. (“Child”), born in July 2015. We affirm.
The relevant facts and procedural history are as follows. In July 2021,
H.F.W., who has raised Child from the time she was one year old, filed a
motion to terminate Mother’s parental rights. At the hearing on H.F.W.’s
petition in June 2023, Mother appeared pro se.1 H.F.W. testified Child’s aunt
(“Aunt”), whom she knew from work, took custody of Child when Child was
____________________________________________
1 The Orphans’ Court determined that it saw no conflict with the guardian ad
litem (“GAL”) also serving as Child’s legal counsel. Mother stated that she had no objection, and the court permitted the dual representation. See N.T., 6/23/23, at 5-8. J-S46033-23
six months old. See id. at 13.2 When Aunt wanted to have her own child,
H.F.W. assumed physical custody of Child after helping raise her for
approximately six months. See id. at 12-16, 35.3 H.F.W. sought and was
granted primary legal and physical custody of Child with Mother receiving
visitation rights. See id. at 36.
H.F.W. testified she learned, when Child was two years old, Mother
wanted to see her. H.F.W. told Mother she would prefer the meeting to occur
as part of Child’s counseling because Child had rarely seen Mother and did not
know she had “another Mother.” Id. at 32-33.4 H.F.W. testified Mother
sporadically visited Child while monitored by Aunt until the Child was three
years old. See id. at 16-17. H.F.W. testified Mother progressed to
unsupervised visits but had frequent scheduling problems and did not seem
to be interested in seeing Child. H.F.W. testified the court ceased the visits
after Mother failed drug tests and entered rehabilitation. See id. at 38-41,
47, 56.5 H.F.W. testified Mother last saw Child on New Year’s Day, 2020,
2 Mother’s addiction to heroin prevented her from raising Child. See N.T., 6/23/23, at 62.
3 At the time, H.F.W. and M.S.’s father were romantically involved. See N.T., 6/23/23, at 29-31.
4 Child had begun seeing a counselor having been traumatized upon seeing a
photograph of Mother pregnant with her. See id. at 34.
5 H.F.W. testified that when Mother had an unsupervised visit with Child and
her other daughter, the children found Mother asleep on the couch. See N.T., 6/23/23, at 40-41.
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before she moved to Erie, having failed to take advantage of H.F.W.’s offers
to make Child available for visits on a dozen previous occasions. See id. at
53. Mother and Child had their last phone call in December 2020. See id. at
20.6 Child sees Aunt a few times each year and has regular contact with her
half-sister, Mother’s child from another relationship. See id. at 40, 42-44.
H.F.W. testified she owns her home in Osterberg, Pennsylvania, where
she lives with her fiancé, his three Children, and Child, and has worked for six
years in the family hardware store. See N.T., 6/23/23, at 11-12. At the time
of the termination hearing, Child was preparing to enter the third grade and
had lived with H.F.W. for seven and one-half years. See id. at 13.
Child has learning difficulties that are treated with medication. At the
time of the hearing, her grades had improved as the result of an individualized
educational plan (“IEP”), and regular doctors’ appointments to which H.F.W.
takes her. See id. at 17-19. Child engages in a series of extracurricular
activities including cheerleading, softball, and church youth group. See id. at
20-21. H.F.W. pays for all of Child’s activities and expenses and attends to
all her daily needs; Mother has not offered any financial assistance, offered to
perform parental duties for Child, or kept her promise to send Child gifts, and
moved from the Osterberg area to Erie, Pennsylvania, a significant distance
away. See id. at 21-22, 27, 39-40, 52, 57, 114. Child has close relationships
6 H.F.W. testified Mother texted her in July 2021 asking to speak to Child but
H.F.W. refused to permit the call. See N.T., 6/23/23, at 59.
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with H.F.W.’s parents, whom she regards as grandparents, H.F.W.’s extended
family, and H.F.W.’s fiancé’s youngest son. See id. at 23-24, 49. Child
continues to receive counseling to help address her learning difficulties. See
id. at 44-46. Child has never expressed a desire to see Mother. See id. at
46-47, 51.7 H.F.W. testified she believes adoption is in Child’s best interests.
See id. at 52.
Mother’s mother, “T.W.” testified Mother’s heroin use and Aunt’s
pregnancy led them and Mother to seek H.F.W.’s help caring for Child because
H.F.W. was dating Weist’s son. T.W. stated H.F.W. has prevented her from
seeing Child. See id. at 64. T.W. testified that Mother is now fit to be a
mother to Child because she had two jobs, a wife, and a home, and has not
used drugs for three years. See id. at 68. T.W. also stated she tried to
contact an attorney in August 2021 to seek visitation rights for herself. See
id. at 70.
Mother stated H.F.W. has kept her from contact with Child and told her
she would be taken from the property if she tried to see her. Mother testified
she wants to be in Child’s life, has a business, and is married. See id. at 77-
80. Mother stated she never filed a petition for custody in the nearly four
years since the court granted her visits with Child and has no explanation for
not doing so. See id. at 82-83, 97. She also testified she had no contact
with Child when she moved to Erie. See id. at 97. ____________________________________________
7 Child’s biological father has consented to the termination of his parental rights. See N.T., 6/23/23, at 51.
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After hearing argument from both parties and the GAL, who advocated
for termination, the Orphans’ Court articulated its basis for finding the
evidence satisfied 23 Pa.C.S.A. § 2511(a)(1), and (b), and granted the
involuntary termination petition. See id. at 102-17.8
Mother filed a timely, counseled notice of appeal and later filed a
statement pursuant to Pa.R.A.P. 1925(b).9 The Orphans’ Court wrote a Rule
1925(a) opinion.
On appeal, Mother raises the following issue for our review:
Whether the trial erred/abused its discretion in determining [H.F.W.] had established a legal basis for terminating [T.B.’s] parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), as the court failed to give appropriate weight to [H.F.W.’s] efforts to thwart the mother-daughter relationship, and as such the court’s finding is not supported by the record.
Mother’s Brief at 5 (capitalization and spacing standardized).
8 During her testimony, Mother asserted the presiding judge represented her
as counsel at a prior dependency hearing. See N.T., 6/23/23, at 84-85. Although the judge had “zero recollection” of representing Mother, see id. at 85, she stopped the testimony and conducted a colloquy to determine if Mother sought recusal. Mother declined to seek recusal, as did H.F.W. See id. at 86-89. The judge reiterated she had no memory of the case and was satisfied she had no bias or conflict. See id. at 89-90. Mother does not raise a recusal issue on appeal, and we decline to raise one sua sponte. See In re Smith, 874 A.2d 131, 137 n.5 (Pa. Super. 2005) (en banc) (stating that Superior Court should not raise non-jurisdictional issues sua sponte).
9 Although Mother failed to comply with Pa.R.A.P. 1925(a)(2)(i), Mother’s counsel had only recently assumed representation and sought, and was granted, an extension of time to file the statement of matters complained of on appeal. See Order, 7/28/23.
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An appellate court reviews an involuntary termination order for an abuse
of discretion, which limits its review to a determination of whether competent
evidence supports the termination court’s decree. See In re Adoption of
C.M., 255 A.3d 343, 358 (Pa. 2021). An appellate court must accept the
Orphans’ Court’s findings of fact and credibility determinations which the
record supports. See Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa. 2021).
Where the record supports the Orphans’ Court’s factual findings, an appellate
court may not disturb that court’s ruling absent an error of law or abuse of
discretion. See In re Adoption of L.A.K., 265 A.3d 580, 591 (Pa. 2021).
An abuse of discretion exists where there is a demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. See id.
Section 2511 of the Adoption Act, 23 Pa.C.S.A. § 2511, governs the
involuntary termination of parental rights. If the Orphans’ Court determines
the petitioner established grounds for termination under section 2511(a) by
clear and convincing evidence, then it must assess the petition under section
2511(b), which focuses on the Child’s needs and welfare. See In re T.S.M.,
71 A.3d 251, 267 (Pa. 2013).
In this case, the Orphans’ Court terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), 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:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of
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the petition either has evidenced a settled purpose of relinquishing parental claim to a Child or has refused or failed to perform parental duties.
*****
(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) . . . the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b).
Concerning proof of subsection 2511(a)(1), this Court has stated:
To satisfy the requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a Child or a refusal or failure to perform parental duties. In addition,
[s]ection 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a Child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to [s]ection 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a Child or fails to perform parental duties.
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent’s explanation for his or her conduct; (2) the post- abandonment contact between parent and Child; and (3) consideration of the effect of termination of parental rights on the Child pursuant to [s]ection 2511(b).
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In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted). Clear and convincing evidence is that which is so clear, direct,
weighty, and convincing as to allow the trier of fact to reach a clear conviction,
without hesitance, of the truth of the precise facts in issue. See In re C.S.,
761 A.2d 1197, 1201 (Pa. Super. 2000).
The Orphans’ Court must consider the whole history of a given case and
not mechanically apply the six-month statutory provisions. See In re D.J.S.,
737 A.2d 283, 286 (Pa. Super. 1999); see also In re B., N.M., 856 A.2d 847,
855 (Pa. Super. 2004) (stating the Orphans’ Court must consider the
explanations offered by the parent facing termination of parental rights, to
determine if the evidence clearly warrants the involuntary termination).
Regarding post-abandonment conduct:
to be legally significant, [it] . . . must be steady and consistent over a period of time, contribute to the psychological health of the Child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-Child relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to reestablish h[er] parental responsibilities bears the burden of proof on this question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (internal citation omitted).
Regarding the definition of “parental duties,” this Court has stated:
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a Child. A Child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the Child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance.
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This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the Child and a genuine effort to maintain communication and association with the Child.
Because a Child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the Child’s life.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-Child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship[] and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-Child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the Child with . . . her physical and emotional needs.
In re B., N.M., 856 A.2d at 855 (internal citations and quotations omitted)
(emphasis added); see also In re E.S.M., 622 A.2d 388, 393 (Pa. Super.
1993) (noting while the failure to perform parental duties is excused where it
is the product of obstructive tactics, a parent cannot obtain the benefit of that
excuse unless she has exercised reasonable firmness in attempting to
overcome the obstructive behavior).
In her issue on appeal, Mother asserts the Orphans’ Court failed to
properly weigh the evidence. She argues H.F.W. kept Child from her, told her
she would be taken off of the property if she came to H.F.W.’s house, and did
not respond to her text messages. See Mother’s Brief at 11-15. Mother
further contends when she gave H.F.W. custody, she intended it to be a
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temporary situation, she could not afford an attorney, and “did not think it
would be smart to fight a case like hers on her own.” See id. at 12.
The Orphans’ Court’s opinion refers this Court to the reasons it offered
for termination at the hearing. See Orphans’ Court Opinion, 9/5/23, at 3-4.
There, the Orphans’ Court found Mother ceased being able to care for Child at
the time Child was six months old due to drug addiction, Child essentially lived
with H.F.W. from the time she was one year old, H.F.W. became Child’s sole
caregiver, Mother resumed visits with Child after her release from state prison
in 2019, and in November 2019, Mother was granted unsupervised visitation,
then moved a considerable distance away to Erie within six months. See N.T.
6/23/23, at 108-10, 114. The court also found H.F.W. tried at least one dozen
times to arrange for Mother to visit Child after Mother got out of rehabilitation
following a relapse, but Mother did not do so. See id. at 111. The court found
inconsistencies in Mother’s testimony she took gifts to H.F.W.’s house on
holidays and birthdays, when she simultaneously claimed she was always
denied the ability to see Child. See id. at 112. The Orphans’ Court assigned
significance to the facts H.F.W. has lived at the same address for “quite awhile
[sic]” and did not block Mother from calling or texting her. See id. at 112-
13. Further, the court found Mother last spoke to Child on the phone in
December 2020, and did not credit the suggestion H.F.W. prevented Mother
from seeing Child from the time she was six months old. See id. at 113-14.
Finally, the Orphans’ Court noted Mother moved away from Child six months
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after agreeing to visitation rights and failed to seek a modification of the court
order or file anything in court and when asked why not, testified, “Well, I have
no answer. I didn’t know what to do so I did nothing.” See id. at 114. Based
on this evidence, the Orphans’ Court found the evidence satisfied the
requirements of 23 Pa.C.S.A. § 2511(a)(1).
After careful review, we conclude that the record supports the Orphans’
Court’s findings of fact and conclusions of law and that the court did not abuse
its discretion in its weighing the evidence and granting H.F.W.’s involuntary
termination petition. The record supports the Orphans’ Court’s finding that
Mother made limited attempts to contact Child. Mother did not pursue
additional custody, moved away from where Child lived, did not call her after
December 2020, and did not provide financial support for Child and undertook
no parental responsibilities. See N.T., 6/23/23, at 12 -21, 27, 32-41, 52-53,
57, 82-83, 97, 114. Mother failed to establish that she made reasonable
efforts to overcome any obstacles H.F.W. placed to obstruct her access to
Child. See In re E.S.M., 622 A.2d. at 393.
The record also supports the Orphans’ Court’s determination that Mother
failed to perform her parental duties for more than the six months prior to the
filing of the July 2021 termination petition, notwithstanding the impediments
her imprisonment and H.F.W.’s limited cooperation represented. In re B.,
N.M., 856 A.2d at 855; In re E.S.M., 622 A.2d at 393. Because we discern
no error of law or abuse of discretion, Mother has failed to present a basis for
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us to disturb the Orphans’ Court’s finding of grounds for termination pursuant
to Section 2511(a)(1).10
Based on the foregoing, we affirm the decree involuntarily terminating
Mother’s parental rights.
Decree affirmed.
DATE: 2/8/2024
10 Mother failed to preserve a section 2511(b) claim. Even if she had, it would be meritless. A section 2511(b) analysis focuses on the developmental, physical, and emotional needs and welfare of the Child, see 23 Pa.C.S.A. § 2511(b), including “[i]ntangibles such as love, comfort, security, and stability,” In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012), and a consideration of the parent-child bond. See In re E.M., 620 A.2d 481, 485 (Pa. 1993). Relying on testimony that Child looks to H.F.W. as her mother to meet all her daily physical, education, emotional, and medical needs and had done so for the preceding seven-and-one-half years and does not identify Mother as her mother, the Orphans’ Court found no bond between Mother and Child and, moreover, found Child identifies H.F.W. as her mother. See N.T., 6/23/23, at 116-17. The record evidence supports the Orphans’ Court’s finding, and we would have no basis to disturb that determination.
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