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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: T.M.M.C., a Minor, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: K.C.C., Father No. 1094 MDA 2014
Appeal from the Decree entered June 3, 2014,
in the Court of Common Pleas of Schuylkill County,
Orphans’ Court, at No(s): A63-062B-14
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 26, 2014
K.C.C. (“Father”) appeals from the Decree granting the Petition filed
by the Schuylkill County Children and Youth Services (“CYS” or the
“Agency”), and involuntarily terminating Father’s parental rights to his
daughter, T.M.M.C. (“Child”), born in June 2010, pursuant to section
2511(a)(2) and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2) and (b).
We affirm.
Child was adjudicated dependent on July 26, 2010, and has remained
in Agency foster care until the present time. N.T., 5/13/14, at 28. She has
been placed with the same foster parents since November 2010. Id. Child’s
two older half-brothers also are placed in the same foster home, as well as
another female foster child. Id. at 35, 37. The foster parents wish to adopt
all four of their foster children. Id. at 37.
On February 19, 2014, the Agency filed a Petition to terminate the
parental rights of Father, who is incarcerated, pursuant to section
J-S66031-14
2511(a)(1), (2), (5), (8), and (b), of the Adoption Act. 1 On May 13, 2014,
the trial court held a hearing on the Petition. At the hearing, the Agency
presented the testimony of Steven Fernsler (“Mr. Fernsler”), a placement
caseworker for CYS assigned to Child’s family. N.T., 5/13/14, at 6. CYS
also presented the testimony of Joseph Sheris, M.A. (“Mr. Sheris”), a
psychologist in private practice with Psychological Associates of Schuylkill
County. Mr. Sheris testified as a stipulated expert in the field of psychology,
handling the completion of sex offender evaluations and making
recommendations for treatment. Id. at 50. Mr. Sheris testified with regard
to his professional involvement with Father. Id. at 51. Father also testified
on his own behalf.
On June 3, 2014, the trial court entered the Decree terminating
Father’s parental rights under section 2511(a)(2) and (b). On July 2, 2014,
Father filed a Notice of Appeal, along with a Concise Statement of Errors
Complained of on Appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Father now presents the following claims for our review:
1. Whether the trial court abused its discretion in determining
that [the Agency] produced clear and convincing evidence that
the conditions and causes of [Father’s] incapacity, abuse,
1
On February 19, 2014, the Agency filed a Petition to confirm the consent of
Child’s mother, J.L.S. (“Mother”), to the termination of her parental rights as
to Child. The trial court addressed the Petition at the termination hearing on
May 13, 2014. Although the Agency’s Petition regarding the termination of
Mother’s parental rights is included in the certified record, the trial court’s
Decree, with regard to that Petition, is not in the certified record. Mother is
not a party to the instant appeal, nor has she filed her own appeal.
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neglect, or refusal which has caused [Child] to be without
essential parental care, control, or subsistence necessary for her
physical or mental well-being cannot or will not be remedied by
[Father], as required by 23 Pa.C.S.[A.] § 2511(a)(2)?
2. Whether the trial court abused its discretion in addressing the
second part of the bifurcated process and determining that the
parental rights of [Father] should be terminated pursuant to 23
Pa.C.S.[A.] § 2511(b)?
Father’s Brief at 4.2
In his first issue, Father asserts that, prior to his incarceration, he was
cooperating with the Agency, and has expressed his desire to continue to do
so upon his release from prison. Id. at 9-10. Father alleges that he has
attempted to maintain a relationship with Child during his incarceration. Id.
at 10. He claims that his failure to complete the goals of his Family Service
Plan (“FSP”) was, in large part, the result of his incarceration since June 19,
2011, and his frequent moves between various federal correctional facilities.
Id. at 11. Father states that his projected date for release from prison is
May 7, 2015, and that he might be released to a halfway house at an earlier
time. Id. at 13.
We review an appeal from the termination of parental rights, in
accordance with the following standard:
2
Father has changed the language from that used in his Concise Statement.
However, Father sufficiently preserved the issues in his brief for our review.
See Krebs v. United Ref. Co. of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (stating that any issue not set forth in or suggested by an
appellate brief’s statement of questions involved and concise statement is
deemed waived).
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[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. Id.; [In re]
R.I.S., 36 A.3d 567[, 572 (Pa. 2011) (plurality opinion)]. As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v. Kia
Motors America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the 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. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
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The standard of clear and convincing evidence is defined as
testimony that 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.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, we focus on section 2511(a)(2), as did the trial court in its
June 3, 2014 Opinion, which it adopted in its Rule 1925(a) Opinion.
Section 2511 provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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
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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)(2), (b).
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), three elements must be met:
(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)
(citations omitted).
Our Supreme Court has explained our inquiry under section
2511(a)(2) as follows:
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.”[].
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature,
however, in enacting the 1970 Adoption Act, concluded
that a parent who is incapable of performing parental
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duties is just as parentally unfit as one who refuses to
perform the duties.
In re Adoption of S.P., 47 A.3d at 827 (citations omitted).
Moreover, our Supreme Court has held that a parent’s incarceration
may be considered as a factor in the termination analysis:
[We] now definitively hold that incarceration, while not a
litmus test for termination, can be determinative of the question
of whether a parent is incapable of providing “essential parental
care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether
“the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent” sufficient
to provide grounds for termination pursuant to 23 Pa.C.S.
§ 2511(a)(2). See e.g. Adoption of J.J., 515 A.2d [883,] 891
[(Pa. 1986)] (“[A] parent who is incapable of performing
parental duties is just as parentally unfit as one who refuses to
perform the duties.”); [In re:] E.A.P., [944 A.2d 79, 85 (Pa.
Super. 2008)] (holding termination under § 2511(a)(2)
supported by mother’s repeated incarcerations and failure to be
present for child, which caused child to be without essential care
and subsistence for most of her life and which cannot be
remedied despite mother’s compliance with various prison
programs). If a court finds grounds for termination under
subsection (a)(2), a court must determine whether termination
is in the best interests of the child, considering the
developmental, physical, and emotional needs and welfare of the
child, pursuant to § 2511(b). In this regard, trial courts must
carefully review the individual circumstances for every child to
determine, inter alia, how a parent’s incarceration will factor into
an assessment of the child’s best interest.
In re Adoption of S.P., 47 A.3d at 830-31.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). A parent’s vow to
cooperate, after a long period of uncooperativeness regarding the necessity
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or availability of services, may properly be rejected as untimely or
disingenuous. Id. at 340.
After a careful review of the record, we cannot grant Father relief on
his claim. We adopt the trial court’s discussion of section 2511(a)(2) as this
Court’s own.3 See Trial Court Opinion, 6/3/14, at 3-6. The clear and
convincing evidence of record confirms the trial court’s determination that
Father did not remedy the conditions that caused Child to come into care;
and that Father has been, and continues to be, unable to provide proper
care for Child, warranting the involuntary termination of his parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2). See Trial Court Opinion, 6/3/14, at
3-6; see also In re Adoption of S.P., 47 A.3d at 826-27.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of subsection (b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
Super. 2008) (en banc) (providing that, once a court determines that the
parent’s conduct warrants termination of his or her parental rights pursuant
to section 2511(a), the court then conducts the second part of the analysis,
pursuant to section 2511(b), to determine “the needs and welfare of the
3
We note that the trial court’s discussion cites this Court’s decision in In re
Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010), and In re Adoption of S.P.,
864 A.2d 588 (Pa. Super. 2004), with regard to an incarcerated parent.
See Trial Court Opinion, 6/3/14, at 5. The trial court’s discussion of these
cases is consistent with our Supreme Court’s decision in In re Adoption of
S.P., 47 A.3d at 826-27. Thus, we will not disturb it, and adopt it with the
additional citation to our Supreme Court’s decision in In re Adoption of
S.P., as we have set forth in this Memorandum.
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child under the standard of best interests of the child.”). This Court has
stated that the focus in terminating parental rights under section 2511(a) is
on the parent, but it is on the child pursuant to section 2511(b). Id. at
1008.
With regard to section 2511(b), Father argues that the trial court
should not have proceeded to address the second part of the bifurcated
analysis, because it improperly determined that section 2511(a)(2) was
satisfied. Father’s Brief at 14. As the competent evidence of record
supports the trial court’s determination that section 2511(a)(2) was
satisfied, Father’s second claim is without merit. Nevertheless, our careful
review of the certified record, in accordance with our case law, reveals that
there was competent evidence in the record to support the termination of
Father’s parental rights to Child under section 2511(b).
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
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In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
As to the bond analysis, the court is not required to use expert
testimony, but may rely on the testimony of social workers and caseworkers.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). This Court has
observed that no bond worth preserving is formed between a child and a
natural parent where the child has been in foster care for most of the child’s
life, and the resulting bond with the natural parent is attenuated. In re
K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).
Here, Father failed to “exhibit [the] bilateral relationship which
emanates from the parent[’]s willingness to learn appropriate parenting….”
In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008). The trial court found,
from the testimony of Mr. Fernsler, that Father had a complete absence from
Child’s life since June 2011, except for a few letters and inquiries about her
well-being. Trial Court Opinion, 6/3/14, at 7. The trial court also found that
Father failed to place himself in a position to develop a real bond with Child.
Id.; see also In re J.L.C., 837 A.2d at 1249. In fact, the trial court found
from the testimony that there was an absence of any meaningful relationship
between Child and Father, and that Child would not even recognize Father if
she saw him. Trial Court Opinion, 6/3/14, at 7.
Additionally, as part of its bonding analysis, the trial court
appropriately examined Child’s relationship with her foster parents. See In
re: T.S.M., 71 A.3d at 267-68 (stating that existence of a bond attachment
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of a child to a parent will not necessarily result in the denial of a termination
petition, and the court must consider whether the child has a bond with the
foster parents). The trial court found that Child has a bond with her foster
parents, who have served as her foster parents since she was five months
old. Trial Court Opinion, 6/3/14, at 7. Moreover, the trial court considered
that the foster parents are pre-adoptive with regard to Child and her two
older half-siblings. Id.
The trial court found that Child is a happy, healthy, and normal child,
who has been well-cared for by her foster parents. Id. The trial court
determined that the foster parents have provided for Child on a daily basis,
and have taken care of all of her medical needs, behavioral issues, and
emotional needs. Id. Although Child is not in school, the trial court found,
Child’s foster parents are able to work with any scholastic issues, should any
arise. Id. After considering Child’s relationship with Father and her foster
parents, the trial court found that termination of Father’s parental rights
would better meet Child’s needs and welfare. Id. The trial court also found
that the termination of Father’s parental rights would not have a detrimental
effect on Child, as she lacked any meaningful bond with Father, and would
be in her best interests. Id.
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Child’s needs and
welfare, and the absence of any bond with Father, that, if severed, would
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J-S66031-14
cause Child to suffer irreparable harm, we conclude that the trial court did
not abuse its discretion in finding competent evidence to support the
termination of Father’s parental rights under section 2511(b). See In re
Adoption of S.P., 47 A.3d at 826-27. Accordingly, we affirm the Decree
terminating Father’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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\
COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
No. A63-062B-14
Contested Involuntary Termination
Counsel of Record: Karen E. Rismiller, Esquire - for the Petitioner
Thomas J. Campion, Esquire - for the Natural Father
James G. Conville, Esquire - for the Minor Child
OPINION OF COURT
BALDWIN, P.J.
Schuylkill County Children and Youth Servic~s (~ereinafter "Agency") filed a 1:>\3~ition to
k,c, ~
involuntarily terminate the parental rights of , hereinafter_ _ ),
V,,", ij'\(\ C. .. ',\ e li\~ \ btl'
the natural father of .'. n (hereinat~~r'IIII)~Th~'Agency began
h: \~:s
providing services to the family prior irth due to drug and alcohol issues, home
. Ch~\~
conditions and inadequate supervision. _ was born on June 3, 2010. She was adjudicated
\...\r\: \,l
dependent on July 26, 2010, and has remained in Agency foster care until the present. _
has been with the same foster parents since November 2010.
The termination of parental rights is governed by statute. The party seeking termination
must prove by clear and convincing evidence that the parent's conduct satisfies at least one of
the nine statutory grounds delineated in Section 2511 (a) of the Pennsylvania Adoption Act,
23 Pa. C.S. §2101 et seq. See also In re I.J., 972 A.2d 5, 9 (Pa.Super. 2009). If the court
determines that the parent's conduct warrants termination, it must then engage in an analysis of
the best interests of the child pursuant to Section 2511 (b) and take into consideration the
developmental, physical, and emotional needs of the child.
The termination of parental rights carries with it a constitutional significance because of
the importance of the rights involved. In re K.B., 763 A.2d 436 (Pa.Super. 2000). In order to
support the termination of parental rights, clear and convincing evidence must be presented to
I
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\
enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the facts at
issue. In re Adoption of Atencio, 650 A.2d 1064 (Pa. 1994).
F~er's
In this case, the Agency sought the involuntary termination of ~parental
rights pursuant to 23 Pa.C.S. §2511 (a)(1), (a)(2), (a)(5), (a)(8) and Section 2511 (b). A finding
under anyone of those sections is sufficient to support a termination of parental rights. We find
that the Agency produced clear and convincing evidence that Carrington's parental rights should
be terminated pursuant to Section 2511 (a)(2) which specifically provide as follows:
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. §2511 (a)(2).
In addition, if the court finds that the grounds have been established for terminating
parental rights, then the court must engage in additional analysis as required by Section 2511 (b)
which provides as follows:
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 ....
23 Pa.C.S. §2511(b).
A child needs love, protection, guidance and support, and these physical and emotional
needs cannot be met by a merely passive interest in the development of the child by the natural
parent. In re Shives, 525 A.2d 801 (Pa.Super. 1987). The satisfaction of these needs requires
the natural parent's affirmative performance, including a genuine effort to maintain
communication and association with the child. Id. Thus, when a child has been removed from
the care of the natural parents and placed in foster care, the natural parents have an "affirmative
duty" to work toward the return of the child. In re Adoption of J.J., 515 A.2d 883, 890 (Pa.
1986) (citation omitted).
The Agency is also required to make reasonable efforts to promote the reunification of a
child with the natural parents. In re I.J" supra. However, this obligation is not indefinite, and
2
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the Agency must respect a child's right to a stable, safe and healthy environment, so that when
reasonable efforts at reunification have failed, the Agency must work toward terminating the
parental rights and placing the child with adoptive parents. Id. As we have repeatedly
acknowledged, a "child's life simply cannot be put on hold in the hope that the parent will
summon the ability to handle the responsibilities of parenting." Id. at 9. A parent who cannot, or
will not, meet the minimum requirements of care within a reasonable time may properly be
considered unfit and have his parental rights terminated. In re Z.P., 994 A.2d 1108 (Pa.Super.
2010).
In order to satisfy the requirements of section 2511 (a)(2), the Agency must produce
clear and convincing evidence of the following: (1) the parent's repeated and continuing
incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal has
caused the child to be without the essential parental care, control or subsistence necessary for
his physical or mental well-being; and (3) that the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272
(Pa.Super. 2003) (citation omitted).
;::C\;+~"'- .-
We know from the record that the Agency began working with '-sometime in
C~; \~i~
early 2010 prior t o . s birth and subsequent placement with the Agency. According to the
FC\.+~e"
Family Service Plan (FSP), _ was to address issues of drug and alcohol abuse, mental
health problems and participate in Agency services, including keeping the Agency informed
about his whereabouts. The Agency was most concerned that he undergo sexual offenders
~
treatment to address his issues of repeated sexual contact with minors. ~Ied no
contest to indecent assault without consent in 2002, indecent assault on a person less than
16 years old in 2003, and statutory sexual assault, indecent assault, and recklessly endangering
another per~n in 2005.
l-o,.+~.e. ...
_ h a s been incarcerated continuously since July 2011, has spent time in
several facilities, and has been in federal prison in Arizona since January 2014 for various drug
fc,- -\ \-.- Q. r
charges. Prior to his incarceration,_was working toward some of his FSP goals. He
3
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had completed two random drug screens by the Agency; one was positive and one was
negative. He had been diagnosed with a schizoaffective disorder, bipolar type, after a
voluntarily commitment in July 2010. He was attending an out-patient mental health program
fc...-\'-'e..r
but had not fully completed that treatment due to his incarceration. _ d i d make himself
available to the Agency; and although the Agency did not always know his whereabouts, he did
keep in touch with them and provided his address on an irregular basis. He was polite and
c- "'; \~)
courteous and attended most of his scheduled supervised visits with _ but his visits never
fq~~(,../
progressed to unsupervised or to visits outside the office. _ d i d not get treatment for
his sexual offender's tendency. He claimed that he did not complete professional treatment for
his sexual issues because the group setting made him very uncomfortable, as he was with a
group of "other child molesters" and would have preferred one-on-one sessions. [N.T., p. 69].
f<."'l·\-\..-.e..V"
_ _ also said that he did not complete his treatment because he lost his job and was
unable to keep paying for the sessions. The Agency was very concerned w i t h _
"minimization" of his sexual deviancy and past offenses and discussed its concerns with him on
a regular basis, including as recently as January of 2014. [N.T., p. 39].
Fu.+\'e.
With regard to
fa-. \--~ell- iiiiilj's progress on his FSP goals since his incarceration in July
2011, _ underwent a mental health evaluation in January 2014 and completed a self-
~-r
help anger management workbook entitled "Cage Your Rage." [N.T., p. 71]. _
provided no proof of completion of such a program and said he was "awaiting" his certificate
from that program. [N.T., p. 71]. He also explained that he did not participate in programs while
incarcerated because the facilities lost);lll of his paperwork, and he was limited due to being
f",-:- T'nc.-v--
housed in the Special Housing Unit. . . also reported that his counselors never got
back to him about the availability of programs. He is currently taking driver's education classes,
but stated that he is on a "waiting list" for the major programs he needs. [N.T., p. 71]. He could
not provide any information on how long it might take for him to be able to take any of these
programs and admitted that he was not ev~n sure if they were going to have any of those
~~V-
programs for the rest of the year. _ s t a t e d that his maximum release date is May 7,
4
( Circulated 11/10/2014 04:07 PM
2015, and that he is awaiting a halfway house date, but was not sure when that date might be.
He also expects to be on parole for an additional three years. He anticipates getting a job after
his release, but he is also trying to work on "getting [his] SSI back on track." [N.T., p. 74]. _('
fa.. -\- ""-e.r C. h, d.. )
While incarcerated, _ has sent two or three letters to the Agency and to _
herself. His letters to the Agency would ask about her and how she was doing, but the letters
_saw _
often contained attempts to minimize his sexual offenses. [N.T., p. 32]. The last time
~\-"c.r Ck \.\..
was June 2011. The Agency has sent him pictures O f . at his
request. He has not called the foster parents because he was afraid that they would think that
he was trying to "harass" them or cause a problem. [N.T., p. 76]. He has not sent gifts or paid
support.
The failure or refusal to perform parental duties should be measured "in light of what
would be expected of an individual in similar circumstances" to the parent under examination.
Lookabill v. Moreland, 485 A.2d 1204, 1206 (Pa.Super. 1984). The totality of the
circumstances surrounding the parent's failure to perform parental duties must be considered,
including the effect of certain barriers on the contact between the parent and the child. In re
Z.P., supra.
The fact that a parent is incarcerated alone is not a sufficient basis for terminating the
parent's rights for a failure to perform parental duties. In re Adoption of S.P., 864 A.2d 588
(Pa.Super. 2004). However, a parent's responsibilities are not tolled during incarceration. In re
Z.P., supra at 1120, (quoting In re C.L.G., 956 A.2d 999, 1006 (Pa.Super. 2008). The
performance of parental duties by an incarcerated parent is made more difficult while in prison,
but where the parent "does not exercise reasonable firmness in declining to yield to the
obstacles," his rights may be forfeited. In re McCray's Adoption, 331 A.2d 652, 655 (Pa.
1975).
Fc~·-i-\...~v-
We acknowledge that~was working on some goals prior to his incarceration,
and that his incarceration and frequent moves to other facilities have placed obstacles in front of
5
Circulated 11/10/2014 04:07 PM
C,,; \~s
him. He has made a minimal effort to keep in contact and be informed about~ well-
being. However, we cannot overlook the fact that the reason he was not able to complete the
goals, including the most serious issue regarding his repeated sexual offending, is the choices
. ~
he has made. Although _ h a s participated in a few programs, he has not addressed
Fe"+\""(2.\1
the Agency's most important concern about his minimization of his sexual offenses. _
describes his sexual contact with minors as actions "taken out of context" and "blown out of
proportion." [N.T., p. 26]. He also describes his actions as those of being "at the wrong place at
~
the wrong time" and a "bad decision." [N.T., p. 26]. Notably, however, is t h a t _ was
not adequately addressing the sexual issues even prior to his incarceration.
c\..,;\A ~
_ h a s already waited three years for _ to get himself together and cannot
wait indefinitely. Her needs - emotional, financial, and otherwise - have been taken care of by
~
her foster parents for almost her entire life. ~actions exhibit a continued desire to
satisfy his own needs ahead of his child's. ~as not acted in a manner to remedy the
C~)\~ .
problems that have caused him to be unable to care f o r . We have no reason to believe
that he will be able to address those issues within a reasonable period. His release date is
~
almost a year away. _ may not have willfully abandoned his daughter, but he has
willfully engaged in conduct that caused him to be separated from her for a very long time and
to have others care for her everyday needs and basic necessities.
In deciding the sensitive question of the involuntary termination of parental rights, we are
mindful of the irreversible nature and the serious emotional impact which necessarily follow
such an action. In re Adoption of Ostrowski, 471 A.2d 541 (Pa.Super. 1984). It is well-
established that the court must engage in a bifurcated process in terminating parental rights. In
re D.W., 856 A.2d 1231 Wa.Super. 2004). Initially, the court must focus on the conduct of the
parent, and only after determining that the parent's conduct warrants the termination of parental
rights does the court engage in the second part of the analysis, that is, determining the needs
and welfare of the child under the standard of the best interests of the child. In re C.L.G., 956
6
Circulated 11/10/2014 04:07 PM
A.2d 999 (Pa.Super. 2008). A major aspect of the needs and welfare analysis concerns the
"nature and status of the emotional bond between parent and child." In re Adoption of R.J.S.,
supra. at 509 (citing In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005)). We must be careful
not to destroy something necessary and beneficial to the child. In re Z.P., supra.
c.\-", \~
We know t h a t . is a happy, healthy, and normal child who has been well taken care
of by her foster parents. Her foster parents have provided for her on a daily basis and she has
been in the same foster home since November 2010, where she resides with her two brothers.
The foster parents have taken care of all her medical needs, behavioral issues, and emotional
needs. She is not of school age yet, but her foster parents are able to work with any scholastic
c.~; ~ \
issues should there be any. The foster parents have expressed an interest in adopting_.
There is an absence of evidence to indicate that there is any meaningful relationship
~<.,+\-"~r C\-..:~, c:. \.,,;,~
between _ a n d , . _ h a s not seen him since June 2011 and would not
~k"e.r
recognize him. ~ has sent a few letters, but has not otherwise attempted to maintain
any bond that might have existed prior to his incarceration. He has inquired a few times about
her well-being, but not acted further.
We conclude that there is no evidence showing that the minor child's needs and welfare
rCi..t""'<..... '..5
are better served by continuing " ' - p a r e n t a l rights. Instead, the termination of
~
the parental rig~S ~\' is in the best interest, needs, and
welfare of
7