J-S48017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: E.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.R. No. 586 MDA 2014
Appeal from the Decree entered February 26, 2014,
in the Court of Common Pleas of Northumberland County,
Orphans’ Court, at No(s): 45 of 2013
IN RE: ADOPTION OF: A.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.R. No. 587 MDA 2014
Appeal from the Decree entered February 26, 2014,
in the Court of Common Pleas of Northumberland County,
Orphans’ Court, at No(s): 46-2013
IN RE: ADOPTION OF: I.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.R. No. 588 MDA 2014
Appeal from the Decree entered February 26, 2014,
in the Court of Common Pleas of Northumberland County,
Orphans’ Court, at No(s): 47-2013
IN RE: ADOPTION OF: A.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.R. No. 589 MDA 2014
Appeal from the Decree entered February 26, 2014,
in the Court of Common Pleas of Northumberland County,
Orphans’ Court, at No(s): 48-2013
BEFORE: DONOHUE, JENKINS, and PLATT*, JJ.
* Retired Senior Judge assigned to Superior Court.
J-S48017-14
MEMORANDUM BY JENKINS, J.: FILED JANUARY 23, 2015
Appellant, N.R. (“Father”), appeals from the decrees involuntarily
terminating Father’s parental rights to A.M. (born in December of 2004), I.R.
(born in May of 2007), A.R. (born in March of 2000), and E.R. (born in
September of 2001) (collectively “the Children”).1 We affirm.
This family became known to Northumberland County Children and
Youth Services (“CYS”) in April of 2007 after allegations of an unsupervised
child wandering around the city of Sunbury. After a safety plan was
approved for the family, the case was closed. In 2010, General Protective
Services (“GPS”) became involved with the family due to allegations of
domestic violence, poor home conditions, and because the family was going
to be evicted from their apartment. After Mother made arrangements for
new housing and doctor appointments for the Children, the case was closed.
In late 2010 and early 2011, GPS referrals were received alleging the
family’s lack of basic utilities, Mother’s drug use, domestic violence, potential
eviction, various unidentified individuals who visited the home, drug use,
and truancy. On February 18, 2011, Mother signed a Voluntary Entrustment
Agreement, placing the Children in CYS’s custody. The Children were placed
1
On February 27, 2014, the trial court entered its decrees terminating
D.M.’s (“Mother”) parental rights to the Children. Mother is not a party to
this appeal, but filed a separate appeal at docket nos. 639, 640, 641, 642
MDA 2014.
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in the care of Paternal Grandparents. On March 23, 2011, the Children were
adjudicated dependent.
On August 14, 2013, CYS filed petitions for the involuntary termination
of Father’s parental rights, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8) and (b). On February 21, 2014, the trial court held a hearing on the
petitions. At the hearing, Jennifer Donmoyer, a family service worker for
CYS; Sara Blair McIntyre, a CYS caseworker; Maternal Grandmother;
Paternal Grandmother; and Father testified.
On February 27, 2014, the trial court entered its decrees terminating
Father’s parental rights to the Children. On March 27, 2014, Father filed his
notices of appeal and concise statements of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated the
cases sua sponte on April 25, 2014.
Father raises the following issues for our review:
1. Whether the trial court erred in determining that
Northumberland County Children and Youth Services (CYS)
presented clear and convincing evidence that grounds for
involuntary termination exist?
2. Whether the trial court erred in determining that the best
interest of the Children would be served by terminating
parental rights?
Father’s Brief at 16.
Our standard of review regarding orders terminating parental rights is
as follows:
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When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an
abuse of discretion, an error of law, or insufficient evidentiary
support for the trial court’s decision, the decree must stand.
Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a
jury verdict. We must employ a broad, comprehensive review
of the record in order to determine whether the trial court’s
decision is supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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.
Id. at 806. We have previously stated:
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.”
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
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., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If 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). Additionally,
this Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
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B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581
Pa. 668, 863 A.2d 1141 (2004).
In terminating Father’s parental rights, the trial court relied upon
Section 2511(a)(1), (2), (5), (8), and (b) which provide:
§ 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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(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.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency for a period of at least six months, the
conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to the
parent are not likely to remedy the conditions which led to
the removal or placement of the child within a reasonable
period of time and termination of the parental rights would
best serve the needs and welfare of the child.
***
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(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the date
of removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
***
(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.A. § 2511.
We have conducted a careful review of the briefs of the parties, the
relevant law, the certified record, and the thorough opinion of the Honorable
William Harvey Wiest, dated April 29, 2014. We conclude that competent
evidence supports the trial court’s termination of Father’s parental rights to
the Children under Sections 2511(a)(1) and (b).
We note the trial court’s decree does not specifically address Section
2511(b). However, the trial court’s accompanying memorandum does
address Section 2511(b). It is clear the trial court felt that the termination
of Father’s rights is in the best interest of the Children. To the extent
evidence of a bond between Children and Father was before trial court, the
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trial court did not abuse its discretion in discounting that bond due to
Father’s continued incarceration. See In re Adoption of S.P., 47 A.3d 817,
830-831 (Pa. 2012) (stating that trial courts must review the individual
circumstances for every child to determine how a parent’s incarceration will
factor into an assessment of the child’s best interests).
Accordingly, on the basis of the well-analyzed discussion in the trial
court opinion dated April 29, 2014, we affirm the decrees terminating
Father’s parental rights to the Children under Sections 2511(a)(1), and (b),
and adopt that opinion as this Court’s own.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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-, )\
OPINION BELOW
IN THE COURT OF CQMMON PLEAS
OF NORTHUMBERLAND COUNTY, PA
IN RE: ADOPTION OF
E.R, a minor child ORPHAN'S COURT DIVISION
ADOPTEE #45 of 2013
OPINION PURSUANT TO Pa,RAP. 1925(a)
Factual and Procedural Background
. The family in the above-captioned case becanie involved with Northumberland County
Children and YOuth services in April of 2007, after allegations of an unsupervised child
wandering around in the city of Sunbury. The matter was referred for a safety plan assessment,
a plan was approved and the case was closed,
J) General. Protective Services (GPS) became involved with the family again in 2010
responding to ailegations of domestic violence, poor home conditions', and the possibility that
..
the family would be evicted from their apartment. After the natural mother made new
arrangements for a residence and successfully scheduled doctors' appOintments for the
children, the case was again closed.
More GPS referrals were received In late 201 0 Into early 2011 regarding the family's lack
of basic utilities, natural mother's drug use, domestic violence, and potential eviction, There
were also allegations of various unidentified individuals who frequented the home2 • After
investigation, the home was found to be without hot water and the natural mother admitted to
having smoked marijuana. The family continued to remain involved with the GPS division of the
. Northumberland County Children and Youth Services, during their involvement through
February 2011, the family struggled with domestic violence, truancy, lack of employment,
danger of eVictions, and related drug use. On February 18th 2011, the natural mother signed a
Voluntary Entrustment Agreement, placing her children (including the above-captioned child) In
))
1 Specifically, It was alleged that one minor child had several "flea oites."
'The Dependency petition In the case suggested that there were a "lot of 'Puerto Ricans' In a~ put of the home at
all hours of the day and night:'
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the care and custody of Northumberland County Children and ~uth Service~ who, LlttljJn,
placed the children in the home of the paternal grandparents, . . . .and ~
The child was adjudicated Dependent on March 23'd 2011. The child was placed In .
foster care by the Agency. However, the placement was actually in the kinship home o~
T..--witL
On June 23'd 2013, Northumberland County Children and Youth Services (the Agency)
filed a Motion for a Finding of Aggravated Circumstances alleging aggravated circumstances
against the natural mother in that, while her identity or whereabouts were known, she failed to
maintain substantial and continuing contact with the child for a period of six months.
On July 17'h 2013, the Court found by clear and convincing evidence that the aggravated
circumstance alleged eXisted as against the natural mother. The Court further ordered that NO
efforts at reunification between the child and the Natural Mother need be made.
Consistent throughout the review period, that is the time during which the children were
in care, the parents maintained little progress and efforts. Natural father was incarcerated (and
)I
continues to be) during the entire time period in which his children were in the Agency's
custody. During his time of incarceration, the Natural father provided no documentation of any
services, programs, or activities he was engaged in or completed. He did communicate with the
Children through letters. Natural mother, while ordered to participate in parenting classes, find
gainful employment, and obtain housing, was minimally compliant. During the early part of the
case, Natural Mother had visitation with the children, but from approximately mid-Summer of
2012 until sometime in early spring of 2013, she had no contact with the Agency and, to the
Court's knowledge, did not contact the children.
On,August 14th 2013, the Agency flied a Petition to Involuntarily Terminate the Parental
Rights of Natural Mother and Natural Father. The children had spent thirty-six (36) months in
the care and custody of the Agency, albeit in the home of their paternal grandmother and
grandfather.
l The Order of AdJudit;ation and Disposition Indicates that placement was in Foster Care. The initial. permanency
)! review order .indicated "Foster Care - Kinship."
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On January 16th 2014, the Natural Mother filed a motion requesting the Court to direct
.' .
the Agency to make a referral for a homestudy through the Interstate Compact. Thehomestudy
would presumably have been performed on the maternal grandmother, who resided in New
York. The Court denied the same. ",1&/.
On February 21 st 2014 at the Termination Proceedirlg, the Natural Mother moved, in
open court arid on the record, for the relief requested in the motion. The Court denied the
same, holding that the matter was better raised in proceedings before Dependency Court.
1IJf-
During' the period of lime in which the children were in care, the Natural Father, tt '7.
T 7 was incarcerated. During his incarceration, he wrote several letters which were
received and reviewed by the caseworkers at the Agency, the caseworkers testified that they
had written him back concerning the children. The Agency provided him with a copy of the
Child's Perm anency Plan, and never received any indication that the Natural Father did not
understand or questioned the plan. Natural Father did sign the same on February 16111 2012 ..
The caseworker testified that as of April 2011, Natural Father was not engaged In any
,I) services. However, as of April 2013, the Natural father was 'taking as many classes that w[ere]
offered at SCI-Dallas. Due to each facility being different, they do not - they do not have the
same things in .each prison." See Transcript of Proceedings. February 21 st 2014, pg 14. While
In prison, Natural Father had regular vIsitation with the children. The children were transported
by their grandmother, the kinship-foster parent. Natural Father was "very appropriate" during
visitation with the children. See Transcript of Proceedings on February 21s1 2014, pg 26. He
sent the children pictures and letters, and kept In regular contact with the children. In some
lengthy discussion, the caseworker was cross examined on the availability of services for the
Natural Father while he was incarcerated. Specifically:
'Q: All right. Without looking at any orders, you don't know what you can say.
what he was court ordered to do, to participate in. Is that a fair
statement?
A: That is fair. And due to being incarcerated, like I said earlier, not each
facility has the same things. And it's tough for us to even know what is in
each one because it changes from place to place or even month to
)l month. So I think that was, in turn, why it was not spelled out as specific
and said that when he wQuld be released, he would need to let us know
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specifically when he was out to become active with the full plan of what
he needed to do."
See Transcript of Proceedings from February 21'1 2014, pg 28-9.
Natural Father's maximum sentence date was June 13th 2014. According to the
caseworker, the Natural Father was up for parole several times in during the three years the
children were in placement, he was denied each time. The caseworker testified that it was her
belief that he was denied by virtue of his behavior in prison. During the leUer correspondence
between the Natural Father and the caseworker, the Natural Father communicated his desire to
be there for his children and his strong desire that the children not be adopted. The caseworker
testified that she received letters from the Natural Father approximately monthly. She also
testified that during'her supervision of the visitation between the Natural Father and the children,
Natural Father was entirely appropriate with the children, and the children were excited to see
their father. Natural Father would mail some minor artwork, portraits, and other small gifts and
keepsakes to the children whenever he could acquire the same.
The Natural Mother suffered from issues pertaining to domestic disputes and consistent
transiency. What appears to be most disturbing is that Natural Mother apparently disappeared
for some time and was unreachable by the Agency. Mother maintained limited visitation with
her children. Specifically, between August of 2011 and Christmas of 2012, Natural Mother had
no visits with her children. Regarding Mother's transiency, she lived in several towns and citles
in Pennsylvania, and then moved to New Yorkand New Jersey all during the time period that
the children were in care. Mother made a great case at the termination hearing on February
21,1 2014 regarding the fitness and availability of maternal grandmother as a resource home for
the children. During the time of her request, Mother lived with the maternal grandmother in New
York. Apparently, Mother had requested that the Agency permit the children to live with her in
New York several times prior to Court on February 21'12014.
Throughout the three years in placement, the kinship-foster family has provided for the
needs of the children. An example of the level of devotion to the continued permanence of the
children, is the fact that at the onset of placement, the youngest child was significantly behind in
his immunization records, the grandmother successfully got him up to date. In her testimony,
the grandmother testified as follows:
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A Well, taking care of the four children, it requires 110 PElrcent of me. So
whether It's school, doctor's appointments, dentist appointment. Three of the
children - well, four of them were in counseling. Three of them now remain in
counseling, which is sometimes weekly, every other week. Numerous
appointments, basketball game. We lost this one. But basketball games,
events, activities. You know, to me, I can - that's a. full-time job basically.
See TranSCript of Procel;idings on fabruary 21 s/ 2014, pg 57.
At another juncture In the case, the grandmother proffered testimony that was very
Indicative of the effects on ALL children of removal from the home.
Q: ... what were they like when they first came to Jive with you three years
ago?
A: I - I think -I guess I would say they were a .little afraid. They always kind
of stayed together. Like they kind of needed each other, They was very
)) interwoven with one another. They always kind of always kept a bag kind
of packed not knowing what was going to happen and stuff and, you
know, just always concerned about what's for dessert, what we're going
to eat, you know, and different things like that.
So' J think in the beginning, they might have been a little bit afraid,
not sure. You know, but they felt happy to be with us because here and
now we were getting things that were consistent and structure and
attention, and - you know, so -
~ Transcrief from Proceedings on February 21.1 2014, pg 58-9.
Of note, at the termination proceeding, the permanency caseworker testified as follows
regarding the oldest child:
UA,R. was not very open with me, at that time. She was very upset about being
in the foster care system. It took a while. She grew and opened up, and now she's actually on
a good working relationShip with me to a point where she'll discuss things. She is very
comfortable In the home. She's actually told me she has corne to a means of understanding
.i) that they just need to find somewhere to be, and she's fine with everything that the agency has
been trying to do for her." See Transcript of Proceedings from February 21" 2014, pg. 22.
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The Agency had discerned that the kinship-foster family was willing to be permanent
resources for two of the four children, the daughter of the grandmother', was willing to be a
permanent resource for two of the children. The kinship-foster family and the daughter's family
lived a reasonable distance from each other, which would facilitate contln ued contact and
interaction between the children and their siblings.
In discussion with the children regarding the suggested permanency options, the
grandmother characterized their relative reactions;
A All different reactions. [AR.] just wants to be finished with Children and
Youth. Adopt me. Do Whatever you got to do. I Just want to be finished.
[ER) pretty much goes along with [AR.). She has been the mother for them
when there wasn't really wasn't a mother figure there. So [AR.] kind of feels
like the three boys are her chfldren. And I try to tell her, I'm the mother. One
qusen in the castle. It would be me. So she - they listen to her because
that's who they're accustomed to. So [E.R.) will do what [AR.] kind of say.
They've been trained that way.
)1 Whereas, the two younger ones - [AM.] is pretty independent. He's excited,
He wants to g,o with {grandmother's daughter]. He wants to be with her.
O. R.] is just totally different., He's a little bit - he's not sure. They said we're
going to mommy, they say we're going here, and he just kind of goes along
with the crowd because of his age, I would say.
The grandmother testified that she believed that the children were 'bonded" to the
natural father, however, she testified that she believed that the children would not suffer
irreparable harm from a severing of that bond.
The Court entered final orders of termination following the hearing, both parents appeal.
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srandmother Is ~ctually the stepilran~ther for the children, as she Is married to the paternal grandfaiher.
4 The
The step.-grandmother's daughter r_..__ is the other permanent resource. She is not biological family,
however, she has visited with the kl~amily al every holiday and the children are very familiar with the
daughter's family. As such, It Is this Court's opinion thatthe daughter's family Is within the detinltlon of a "kinship'
placement.
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The grounds for involuntary termination of parental rights are set forth in section 2511 of
title 23 of the Pennsylvania Consolidated Statute~. Specifically sections (a)(1); (a)(2); (a)(5);
and (a)(8) appear substantially as follows:
23 Pa.C.SA §2511 (a)
(1) The parent by conduct continuing for a period of at least six months immediately
preceding the filing of the petition either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform parental duties.
(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.
(5) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency for a period of at least six mO,nths, the conditions which led
to the removal or placement of the child continue to exist, the parent cannot or will not remedy
those conditions within a reasonable period of time, the services or assistance reasonably
available to the parent are not likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and termination of the parental rights
would best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, 12 months or more have elapsed from the date of removal
or placement, the conditions which led to the removal or placement of the child continue to exist
and termination of parental rights would best serve the needs and welfare of the child.
See 23 Pa C.SA §2511.
Subsection-(b)-Of-the statute provides that 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
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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 cons'ider any efforts by the parent to remedy the
conditions described therein which are first Initiated subseqJ,Jent to the giving of notice of the
filing of the petition.
The term "needs and welfare" is a legal concept that "denotes certain minimum
requirements that all children are entitled to-adequate housing, clothing, food and love." In Re
Coast, 561 A.2d 762,770 (Pa Super. 1989); In reAdoption of Michae/J. C., 473 A.2d 1021,
. 1029 (Pa. Super. 1984). "Thus, needs and welfare has both a tangible dimension, food, clothing
and shelter, and an intangible dimension, parental love." In fe PA8., 570 A.2d 522, 525 (Pa.
Super 1990); In re J. w., 578 A.2d 952, 957 (Pa. Super. 1990). "It is universally agreed that the
bond of *539 parental affection is unique and irreplaceable. When parents act in accordance
with the natural bonds of parental affection, preservation of the parent-child bond is prima-facie
in the best interest of the child and the state has no justification to terminate that bond.' In fe
J. w., 578 A.2d at 958. "If,as here, ties with natural parents are present and are an active force
I) in the child's life, then needs and welfare becomes a concept that argues against termination,
rather than fosters it." In re P.A.8., 570 A.2d at 52.5. Moreover, pursuant to section 2511 (a)(5),
a court "must examine the status of the natural parental bond to consider whether terminating
the natural parents' rights would destroy something in existence that is necessary and
beneficial." lsi.
Subsection (a)(8) sets a 12-month time frame for a parent to remedy the conditions
which led to placement. Once the twelve month period has been established, the court must
next determine whether the conditions which led to the child's placement continue to exist,
despite the reasonable and good faith efforts of the Agency, supplied over a realistic tlmeframe .
. In order to terminate under section 2511 (a)(8), the Court is not required to evaluate a parent's
current willingness or ability to remedy the conditions that initially caused placement or the
availability or efficacy of potential services. Sea In fa K.Z.S., 946 A.2d 753, 759 (Pa. Super.
2008). The Superior Court provided a detailed analYSis of the termination ground listed at 23
Pa. C.SA §2511 (a)(8) in the recent Case of In fa T. M. T., 64 A3d 1119 (Pa. Super. 2013).
. .
The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test,
I) can be determinative in a termination proceeding. Saa In ra Adoption of S.P., 47 A.3d 817 (Pa.
2012). Each termination of parental rights caSe involving an incarcerated parentmusl be
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evaluated on its own facts, bearing in mind thaUhe child's needs for consistent parental care
and stability cannot be put aside or put on hold simply because the parent is doing what he is
supposed to do in prison. See In re E.A.P" 944 A.2d 79 (Pa. Super. 2008). Incarceration does
not relieve a parent of the duty to exercise reasonable firmness in maintaining a secure bond
with the child. In the Interest of AP., 693 A2d 240 (Pa. Super. 1997). In termination of
parental rights cases involving an incarcerated parent, a parent's basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the
child's right to have proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment; moreover, the parent wishing to reestablish her parental
responsibilities bears the burden of proof relative to post-abandonment contact. See f!l.@.
C.L.G., 956 A.2d 999 (Pa. Super. 2008), When a parent is incarcerated, the focus in
termination of parental rights action is on whether the parent utilized resources available while in
prison to maintain a relationship with his child. In re B.N.M., 856 A2d 847 (Pa. Super. 2004).
In a case where the incarcerated parent wrote leiters, fOlWarded some chil,d support, and
)) sent gifts to the child, the Court found that these actions did not Indicate a serious intent to re-
cultivate a parent-child relationship and a willingness and capacity to undertake a parental role,
and thus termination WaS appropriate. See ~ In re O.J.S., 737 A.2d 283 (Pa. Super. 1999).
The Court also found that the natura! father in that case failed to utilize given resources and to
take an affirmative approach to fulfill his parental duties and failed to follow through on inquires
with prison offiCials and county social workers. ~ Id.
DiscussiOn:
As to Natural Father the decision reached has not been done so lightly. Natural Father
indicates a willingness and a desire to reunify with his children. In addition, his children express
a desire to reunify with him. He is appropriate with them during visits, and consistently strives to
be a presence in their lives despite his incarceration. The caseworker testified that he does
'everything he can' while incarcerated. Clearly we have a father Who is striving to be a parent,
,desp~e being noticeably absent from the lives of his children.
However, Father has been incarcerated fO~ over three years. His maximum sentence
Ii dattil is June 2014. He was not granted parole despite his requests IiInd application for It. As
noted above, the Court will not pula child's life on hold and await a parent who is fil, willing, and
9
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11/24/201402:08 PM
))
able. Father would most likely n'o! be fit and willing to provide care and control upon his release.
As this Court is very familiar with the process by which released ex-convicts attempt to re-
integrate and the hardships associated therewith, this Court is unwilling to force the children to
wait any longer. Father is entirely appropriate with them, and It is likely that he loves them
greatly, as they do him. However, this Court is encouraged by the prospect of adoption by the
paternal grandfather and his step-daughter of the children. This kinship penmanent placement
. will pe rmit, albeit on Father's initiative only, continued contact between the children and their
natural father. The fact that the words 'termination' and "adoption' imply permanence and
suggest a severance from a relationship with a natural parent has little effect in this case. This
Court will not turn a blind eye to the praCtical considerations of the children's age and the fact
that they acknowledge and love their father, There will be continued contact with the Natural
Father and the children, and it will likely occur without this Court's Intervention. Knowing, as we
do, that that will be an easier process as the Children are placed with kin makes this Court's
decision that much more bearable.
As to the Natural Mother, the' Court found aggravated circumstances as to her lack of
)) involvement during the dependency case. It is severely disheartening to associate this situation
with an absence of over six (6) months. This Court cannot fathom the tack of a desire to contact
the chitdren during that time. It, coupled with the troubling tranSiency, causes this Court to find
that termination would certainly suit the best interests of the childref) as to Natural Molher. In
addition, by virtue of the finding of aggravated Circumstances, the natural mother has satisfied
the statutory provisions which allow for termination when: there has been no contact between
the parent and the child for a period of six (6) months; the conditions which led to placement
continue to exist (lack of permanent living arrangements) and the fact that Mother has eXhibited
little interest in parenting her children until the. eleventh hour.
Conclusion
This Court hereby concludes that termination of the. parental rights of both the Natural
Father and the Natural Mother as to the minor children is required by the statutory provisions
governing the same and would. undOUbtedly serve the children's best interests.
BY THE COURT:
))
Wm. Harvey Wiest, Judge
10
36
IN THE COURT OF COMMON PLEAS Circulated
-., 12/09/2014
.z:- 12:02 PM
OF NORTHUMBERLAND COUNTY, PA c.r~: ~
c::",
2: 0 ::0
IN RE: ADOPTION OF OJ> N
A.R. a minor child ORPHAN'S COURT DM~ON\D
:-
) -0 ::x
ADOPTEE # 46 of 201 ~g 'R
CI 1'0
W
OPINION PURSUANT TO Pa.R.A.P. 1925(a)
Factual and Procedural Background
The family in the above-captioned case became involved with Northumberland County
Children and Youth services in April of 2007, after allegations of an unsupervised child
wandering around in the city of Sunbury. The matter was referred for a safety plan assessment,
a plan was approved and the case was closed.
General Protective Services (GPS) became involved with the family again in 2010
responding to allegations of domestic violence, poor home conditions 1, and the possibility that
the family would be evicted from their apartment. After the natural mother made new
arrangements for a residence and successfully scheduled doctors' appointments for the
children, the case was again closed .
. More GPS referrals were received in late 2010 into early 2011 regarding the family's lack
of basic utilities, natural mother's drug use, domestic violence, and potential eviction. There
were also allegations of various unidentified individuals who frequented the home2 • After
investigation, the home was found to be without hot water and the natural mother admitted to
having smoked marijuana. The family continued to remain involved with tile GPS division of the
Northumberland County Children and Youth Services, during their involvement through
February 2011, the family struggled with domestiC violence, truancy, lack ()f employment,
danger of evictions, and related drug use. On February 18 th 2011, the natural mother signed a
Voluntary Entrustment Agreement, placing her children (including the abov'e-captioned child) in
1 SpeCifically, it was alleged that one minor child had several "flea bites."
2 The Dependency petition in the case suggested that there Were a "lot of 'Puerto Ricans' in an out of the home at
all hours of the day and night."
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the care and custody of Northumberland County Children and Youfh Services who, in turn,
placed the children in the home of the paternal grandparents, William and Theolo Rivera.
The child was adjudicated Dependent on March 23'd 2011. The child was placed in
foster care by the Agency. However, the placement was actually in the kinship home of IHT
T~3.
On June 23 m 2013, Northumberland County Children and Youth Services (the Agency)
filed a Motion for a Finding of Aggravated Circumstances alleging aggravated circumstances
against the natural mother in that, while her identity or whereabouts were known, she failed to
maintain substantial and continuing contact with the child for a period of six months.
On July 17th 2013, the Court found by clear and convincing evidence that the aggravated
circumstance alleged existed as against the natural mother. The Court further ordered that NO
efforts at reunification between the child and the Natural Mother need be made.
Consistent throughout the review period, that is the time during which the children were
in care, the parents maintained little progress and efforts. Natural father was incarcerated (and
continues to be) during the entire time period in which his children were in the Agency's
custody. During his time of incarceration, the Natural father provided no documentation of any
services, programs, or activities he was engaged in or completed. He did communicate with the
children through leiters. Natural mother, while ordered to participate in parenting classes, find
gainful employment, and obtain housing, was minimally compliant. During the early part of the
case, Natural Mother had visitation with the children, but from approximately mid-Summer of
2012 until sometime in early spring of 2013, she had no contact with the Agency and, to the
Court's knowledge, did not contact the children.
On August 14th 2013, the Agency filed a Petition to Involuntarily Terminate the Parental
Rights of Natural Mother and Natural Father. The children had spent thirty-six (36) months in
the care and custody of the Agency, albeit in the home of their paternal grandmother and
grandfather.
'The Order of Adjudication and Disposition indicates that placement was in Foster Care. The initial permanency
review order indicated "Foster Care - Kinship,'I.
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On January 16th 2014, the Natural Mother filed a motion requesting the Court to direct
the Agency to make a referral for a homestudy through the Interstate Compact. The homestudy
would presumably have been performed on the maternal grandmother, who resided in New
York. The Court denied the same.
On February 21 st 2014 at the Termination Proceeding, the Natural Mother moved, in
open court and on the record, for the relief requested in the motion. The Court denied the
same, holding that the. matter was better raised in proceedings before Dependency Court.
During the period of time in which the children were in care, the Natural Father, Nicolas
Rivera, was incarcerated. During his incarceration, he wrote several letters which were
received and reviewed by the caseworkers at the Agency, the caseworkers testified that they
had written him back concerning the children. The Agency provided him with a copy of the
Child's Permanency Plan, and never received any indication that the Natural Father did not
th
understand or questioned the plan. Natural Father did sign the same on February 16 2012.
The caseworker testified that as of April 2011, Natural Father was not engaged in any
services. However, as of April 2013, the Natural father was "taking as many classes that w[ere1
offered at SCI-Dallas. Due to each facility being different, they do not - they do not have the
same things in .each prison.' See Transcript of Proceedings, February 21 st 2014, pg 14. While
in prison, Natural Father had regular visitation with the children. The children were transported
by their grandmother, the kinship-foster parent. Natural Father was "very appropriate' during
visitation with the children. See Transcript of Proceedings on February 21 st 2014, pg 26. He
sent the children pictures and letters, and kept in regular contact with the children. In some
lengthy discussion, the caseworker was cross examined on the availability of services for the
Natural Father while he was incarcerated. Specifically:
"Q: All right. Without looking at any orders, you don't know what you can say
what he was court ordered to do, to participate in. Is that a fair
statement?
A: That is fair. And due to being incarcerated, like I said earlier, not each
facility has the same things. And it's tough for us to even know what is in
each one because it" changes from place to place or even month to
month. So I think that was, in turn, why it was not spelled out as specific
and said that when he would be released, he would need to let us know
3
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specifically when he was out to become active with the full plan of what
he needed to do."
See Transcript of Proceedings from February 21 s1 2014, pg 28-9.
Natural Father's maximum sentence date was June 13 th 2014. According to the
caseworker, the Natural Father was up for parole several times in during the three years the
children were in placement, he was denied each time. The caseworker testified that it was her
belief that he was denied by virtue of his behavior in prison. During the letter correspondence
between the Natural Father and the caseworker, the Natural Father communicated his desire to
be there for his children and his strong desire that the children not be adopted. The caseworker
testified that she received letters from the Natural Father approximately monthly. She also.
testified that during 'her supervision of the visitation between the Natural Father and the children,
Natural Father was entirely appropriate with the children, and the children were excited to see
their father. Natural Father would mail some minor artwork, portraits, and other small gifts and
keepsakes to the children whenever he could acquire the same.
) The Natural Mother suffered from issues pertaining to domestic disputes and consistent
transiency. What appears to be most disturbing is that Natural Mother apparently disappeared
for some time and was unreachable by the Agency. Mother maintained limited visitation with
her children. Specifically, between August of 2011 and Christmas of 2012, Natural Mother had
no visits with her children. Regarding Mother's transiency, she lived in several towns and cities
in Pennsylvania, and then moved to New York and New Jersey all during the time period that
the children were in care. Mother made a great case at the termination hearing on February
st
21 2014 regarding the fitness and availability of maternal grandmother as a resource home for
the children. During the time of her request, Mother lived with the maternal grandmother in New
York. Apparently, Mother had requested that the Agency permit the children to live with her in
New York several times prior to Court on February 21 st 2014.
Throughout the three years in placement, the kinship-foster family has provided for the
needs of the children. An example of the level of devotion to the continued permanence of the
Children, is the fact that at the onset of placement, the youngest child was significantly behind in
his immunization records, the grandmother successfully got him up to date. In her testimony,
the grandmother testified as follows:
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A. Well, taking care of the four children, it requires 110 percent of me. So
whether it's schOOl, doctor's appointments, dentist appointment. Three of the
children - well, four of them were in counseling. Three of them now remain in
counseling, which is sometimes weekly, every other week. Numerous
appointments, basketball game. We lost this one. But basketball games,
events, activities. You know, to me, I can - that's a full-time job basically.
See Transcript of Proceedings on February 21 st 2014, pg 57.
At another juncture in the case, the grandmother proffered testimony that was very
indicative of the effects on ALL children of removal from the home.
Q: ... what were they like when they first came to live with you three years
ago?
A: I - I think -I guess I would say they were a little afraid. They always kind
of stayed together. Like they kind of needed each other. They was very
interwoven with one another. They always kind of always kept a bag kind
of packed not knowing what was going to happen and stuff and, you
know, just always concerned about what's for dessert, what we're going
to eat, you know, and different things like that.
So I think in the beginning, they might have been a little bit afraid,
not sure. You know, but they felt happy to be with us because here and
now we were getting things that were consistent and structure and
attention, and - you know, so-
See Transcript from Proceedings on February 21 st 2014, pg 58-9.
Of note, at the termination proceeding, the permanency caseworker testified as follows
regarding the oldest child:
"A.R. was not very open with me, at that time. She was very upset about being
in the foster care system. It took a while. She grew and opened up, and now she's actually on
a good working relationship with me to a point where she;1I discuss things. She is very
comfortable in the home. She's actually told me she has come to a means of understanding
that they just need to find somewhere to be, 'and she's fine with everything that the agency has
been trying to do for her." See Transcript of Proceedings from February 21 st 2014, pg. 22.
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The Agency had discerned that the kinship-foster family was willing to be permanent
resources for two of the four children, the daughter of the grandmother', was willing to be a
permanent resource for two of the children. The kinship-foster family and the daughter's family
lived a reasonable distance from each other, which would facilitate continued contact and
interaction between the children and their siblings:
In discussion with the children regarding the suggested permanency options, the
grandmother characterized their relative reactions:
A All different reactions. [AR.] just wants to be finished with Children and
Youth. Adopt me. Do whatever you got to do. I just want to be finished.
[E.R] pretty much goes along with [AR]. She has been the mother for them
when there wasn't really wasn't a mother figure there. So [AR] kind of feels
like the three boys are her children. And I try to tell her, I'm the mother. One
queen in the castle. It would be me. So she - they listen to her because
that's who they're accustomed to. So [E.R] will do what [AR] kind of say.
They've been trained that way.
Whereas, the two younger ones - [AM.] is pretty independent. He's excited.
He wants to go with [grandmother's daughter]. He wants to be with her.
[I.R.] is just totally different. He's a little bit - he's not sure. They said we're
going to mommy, they say we're going here, and he just kind of goes along
with the crowd because of his age, Iwould say.
The grandmother testified that she believed that the children were "bonded" to the
natural father, however, she testified that she believed that the children would not suffer
irreparable harm from a severing of that bond.
The Court entered final orders of termination following the hearing, both parents appeal.
Rule of Law
• The grandmother is actually t~e.step-grandmother for the children, as she is married to the paternal grandfather.
The step-grandmothers daughfeiY.. . g ..' is the other permanent resource. She is not biological family,
however, she has visited with the kinship-foster family at every holiday and the children are very familiar with the
daughter's family. As such, it is this Court's opinion that the daughter's family is within the definition of a "kinship"
placement.
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The grounds for involuntary termination of parental rights are set forth in section 2511 of
title 23 of the Pennsylvania Consolidated Statutes. Specifically sections (a)(1); (a)(2); (a)(5);
and (a)(8) appear substantially as follOWS:
23 Pa.C.SA §2511 (a)
(1) The parent by conduct continuing for a period of at least six months immediately
preceding the filing of the petition either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform parental duties.
(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.
(5) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency for a period of at least six months, the conditions which led
to the·removal or placement of the child continue to exist, the parent cannot or will riot remedy
those conditions within a reasonable period of time, the services or assistance reasonably
available to the parent are not likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and termination of the parental rights
would best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, 12 months or more have elapsed from the date of removal
or placement, the conditions which led to the removal or placement of the child continue to exist
and termination of parental rights would best serve the needs and welfare of the child.
See 23 Pa C.SA §2511.
Subsection (b) of the statute provides that: 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
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)
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)(l), (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.
The term 'needs and welfare" is a legal concept that 'denotes certain minimum
requirements that all children are entitled to-adequate housing, clothing, food and love." In Re
Coast, 561 A.2d 762, 770 (Pa Super. 1989); In re Adoption of Michael J.C., 473 A.2d 1021,
1029 (Pa. Super. 1984). "Thus, needs and welfare has both a tangible dimension, food, clothing
and shelter, and an intangible dimension, parental love. ' In re P.A.B., 570 A.2d 522, 525 (Pa.
Super 1990); In re J. W., 578 A.2d 952, 957 (Pa. Super. 1990). "It is universally agreed that the
bond of *539 parental affection is unique and irreplaceable. When parents act in accordance
with the natural bonds of parental affection, preservation of the parent-child bond is prima-facie
in the best interest of the child and the state has no justification to terminate that bond." In re
J. W, 578 A.2d at 958. 'If, as here, ties with natural parents are present and are an active force
in the child's life, then needs and welfare becomes a concept that argues against termination,
rather than fosters it." In re P.A.B., 570 A.2d at 525. Moreover, pursuant to section 2511 (a)(5),
a court 'must examine the status of the natural parental bond to consider whether terminating
the natural parents' rights would destroy something in existence that is necessary and
beneficial." Id.
Subsection (a)(8) sets a 12-month time frame for a parent to remedy the conditions
which led to placement. Once the twelve month period has been established, the court must
next determine whether the conditions which led to the child's placement continue to exist,
despite the reasonable and good faith efforts of the Agency, supplied over a realistic timeframe.
In order to terminate under section 2511 (a)(8), the Court is not required to evaluate a parent's
current willingness or ability to remedy the conditions that initially caused placement or the
availability or efficacy of potential services. See In re K.z. S., 946 A.2d 753, 759 (Pa. Super.
2008). The Superior Court provided a detailed analysis of the termination ground listed at 23
Pa. C.SA §2511(a)(8) in the recent case of In re T. M. T., 64 A.3d 1119 (Pa. Super. 2013).
The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test,
can be determinative in a termination proceeding. See In reAdoption ofSP., 47 A.3d 817 (Pa.
2012). Each termination of parental rights case involving an incarcerated parent must be
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evaluated on its own facts, bearing in mind that the child's needs for consistent parental care
and stability cannot be put aside or put on hold simply because the parent is doing what he is
supposed to doin prison. See In re EA.P., 944 A.2d 79 (Pa. Super. 2008). Incarceration does
not relieve a parent of the duty to exercise reasonable firmness in maintaining a secure bond
with the child. In the Interest of A.P., 693 A.2d 240 (Pa. Super. 1997). In termination of
parental rights cases involving an incarcerated parent, a parent's basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the
child's right to have proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment; moreover, the parent wishing to reestablish her parental
responsibilities bears the burden of proof relative to post-abandonment contact. See In re
C.L.G., 956 A.2d 999 (Pa. Super. 2008). When a parent is incarcerated, the focus in
termination of parental rights action is on whether the parent utilized resources available while in
prison to maintain a relationship with his child. In re B.N.M., 856 A.2d 847 (Pa. Super. 2004).
In a case where the incarcerated parent wrote letters, forwarded some child support, and
sent gifts to the child, the Court found that these actions did not indicate a serious intent to re-
CUltivate a parent-child relationship and a willingness and capacity to undertake a parental role,
and thus termination was appropriate. See M"ln ie O.J.S., 737 A.2d 283 CPa. Super. 1999).
The Court also found that the natural father in that case failed to utilize given resources and to
take an affirmative approach to fulfill his parental duties and failed to follow through on inquires
with prison officials and county social workers. See Id.
Discussion:
As to Natural Father the decision reached has not been done so lightly. Natural Father
indicates a willingness and a desire to reunify with his children. In addition, his children express
a desire to reunify with him. He is appropriate with them during visits, and consistently strives to
be a presence in their lives despite his incarceration. The caseworker testified that he does
"everything he can" while incarcerated. Clearly we have a father who is striving to be a parent,
despite being noticeably absent from the lives of his children.
However, Father has been incarcerated for over three years. His maximum sentence
date is June 2014. He was not granted parole despite his requests and application for it. As
noted above, the Court will not put a child's life on hold and await a parent who is fit, willing, and
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-
able. Father would most likely not be fit and willing to provide care and control upon his release.
As this Court is very familiar with the process by which released ex-convicts attempt to re-
integrate and the hardships associated therewith, this Court is unwilling to force the children to
wait any longer. Father is entirely appropriate with them, and it is likely that he loves them
greatly, as they do him. However, this Court is encouraged by the prospect of adoption by the
paternal grandfather and his step-daughter of the children. This kinship permanent placernent
will permit, albeit on Father's initiative only, continued contact between the children and their
natural father. The fact that the words "termination" and "adoption" imply permanence and
suggest a severance from a relationship with a natural parent has little effect in this case. This
Court will not turn a blind eye to the practical considerations of the children's age and the fact
that they acknowledge and love their father. There will be continued contact with the Natural
F ather and the children, and it will likely occur without this Court's intervention. Knowing, as we
do, that that will be an easier process as the children are placed with kin makes this Court's
decision that much more bearable.
As to the Natural Mother, the Court found aggravated circumstances as to her lack of
involvement during the dependency case. It is severely disheartening to associate this situation
with an absence of over six (6) months. This Court cannot fathom the lack of a desire to contact
the children during that time: It, coupled with the troubling transiency, causes this Court to find
that termination would certainly suit the best interests of the children as to Natural Mother. In
addition, by virtue of the finding of aggravated circumstances, the natural mother has satisfied
the statutory provisions Which aI/ow for termination when: there has been no contact between
the parent and the child for a period of six (6) months; the conditions which led to placement
continue to exist (Jack of permanent living arrangements) and the fact that Mother has exhibited
little interest in parenting her children until the eleventh hour.
Conclusion
This Court hereby concludes that termination of the. parental rights of both the Natural
Father and the Natural Mother as to the minor children is required by the statutory prOVisions
governing the same and would, undoubtedly serve the children's best interests.
BY THE COURT:
\_,'Gl~
Wm. Harvey Wiest, Judge
10
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:%.~
CO:::o
IN THE COURT OF COMMON PLEAS crn
:;On
OF NORTHUMBERLAND COUNTY, PA -;February 21't 2014 at the Termination Proceeding, the Natural Mother moved, in
open court and on the record, for the relief requested in the motion. The Court denied the
same, holding that the matter was better raised in proceedings before Dependency Court.
During the period of time in which the children were in care, the Natural Father"'SIIi·••
",, AJ ~
~was incarcerated. During his incarceration, he wrote several letters which were
received and reviewed by the caseworkers at the Agency, the caseworkers testified that they
had written him back concerning the children. The Agency provided him with a copy of the
Child's Permanency Plan, and never received any indication that the Natural Father did not
understand or questioned the plan. Natural Father did sign the same on February 16th 2012.
The caseworker testified thaI as of April 2011, Natural Father was not engaged in any
services. However, as of April 20'13, the Natural father was "taking as many classes that w[ere]
offe"red at SCI-Dallas. Due to eachfacilily being different, they do not - they do not have the
same things in each prison: See Transcript of Proceedings. February 21 st 2014, pg 14. While
in prison, Natural Father had regular visitation with the children. The children were transported
by their grandmother, the kinShip-foster parent. Natural Father was "very appropriate' during
visitation with the children. See Transcript of Proceedings on February 21 st 2014, pg 26. He
sent the children pictures and letters, and kept in regular contact with the children. In some
lengthy discussion, the caseworker was cross examined on the availability of services for the
Natural Father while he was incarcerated. Specifically:
"Q: All right. Without looking at any orders, you don't know what you can say
what he was court ordered to do, to participate in. Is that a fair
statement?
A: That is fair. And due to being incarcerated, like I said earlier, not each
facility has the same things. And it's tough for us to even know what is in
each one because it changes from place to place or even month to
month. So I think that was, in turn, why it was not spelled out as specific
and said that when he would be released, he wO'uld need to Ie! us know
3
49
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specifically when he was out to become active with the full plan of what
he needed to do."
See Transcript of Proceedings from February 21'1 2014, pg 28-9.
Natural Father's maximum sentence date was June 1310 2014. According to the
caseworker, the Natural Father was up for parole several times in during the three years the
children were in placement, he was denied each time. The caseworkertestifjed that it was her
belief that he was denied by virtue of his behavior in prison. During the letter correspondence
between the Natural Father and the caseworker, the Natural Father communicated his desire to
be there for his children and his strong desire that the children not be adopted. The caseworker
testified that she received letters from the Natural Father approximately monthly. She also
testified that during her supervision of the visitation between the Natural Father and the children,
Natural Father was entirely appropriate with the children, and the children were excited to see
their father. Natural Father would mail some minor artwork, portraits, and other small gifts and
keepsakes to the children whenever he could acquire the same.
The Natural Moiher suffered from issues pertaining to domestic disputes and consistent
transiency~ What appears to be most disturbing is that Natural Mother apparently disappeared
for some time and was unreachable by the Agency. Mother maintained limited visitation with
her children. Specifically. between August of 2011 and Christmas of 2012, Natural Mother had
no visits with her children. Regarding Mother's tranSiency, she lived in several towns and cities
in Pennsylvania, and then moved to New York and New Jersey all during the time period that
the children were in care. Mother made a great case at the termination hearing on February
21" 2014 regarding the fitness and availability of maternal grandmother as a resource home for
the children. During the time of her request, Mother lived with the maternal grandmother in New
York. Apparently, Mother had requested that the Agency permit the children to live with her in
New York several times prior to Court on February 21" 2014.
Throughout the three years in placement, the kinShip-foster family has provided for the
needs of the children. An example of the level of devotion to the continued permanence of the
children, is the fact that at the onset of placement, the.youngest child was significantly behind in
his immunization records, the grandmother successfully got him up to date. In her testimony,
the grandmother testified as follows:
4
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A. Well, taking care of the four children, it requires 110 percent of me. So
whether ii's school, doctor's appointments, dentist appointment. Three of the
children - well, four of them were in counseling. Three of them now remain in
counseling, which is sometimes weekly, every other week. Numerous
appointments, basketball game. We lost this one. But basketball games,
events, activities. You know, to me, I can - that's a full-time job basically.
See Transcript of Proceedings on February 21 st 2014, pg 57.
At another juncture in the case, the grandmother proffered testimony that was very
indicative of the effects on ALL children of removal from the home.
Q: ... what were they like when they first came to live with you three years
ago?
A: I - I think - I guess I would say they were a little afraid. They always kind
of stayed together. Like they kind of needed each other. They was very
interwov.en with one another. They always kind of always kept a bag kind ..
of packed not knowing what was going to happen and stuff and, you
know, just always concerned about what's for.dessert, what we're going
to eat, you know, and different things like that.
So I think in the beginning, they might have been a little bit afraid,
not sure. You know, but they felt happy to be with us because here and
now we were getting things that were consistent and structure and
attention, and - you know, so-
See Transcript from Proceedings on February 21 st 2014, pg 58-9.
Of note, at the termination proceeding, the permanency caseworker testified as follows
regarding the oldest child:
"A.R. was not very open with me, at that time. She was very upset about being
in the foster care system. It took a while. She grew and opened up, and now she's actually on
a good working relationship with me to a point where she'll discuss things. She is very
comfortable in the home. She's actually told me she has come to a means of understanding
that they just need to find somewhere to be, and she's fine with everything that the agency has
been trying to do for her." See Transcript of Proceedings from February 21 st 2014, pg. 22.
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The Agency had discerned that the kinship-foster family was willing to be permanent
resources for two of the four children, the daughter of the grandmother4 , was willing to be a
permanent resource for two of the children. The kinship-foster family and the daughter's family
lived a reasonable distance from each other, which would facilitate continued contact and
interaction between the children and their siblings.
In discussion with the children regarding the suggested permanency options, the
grandmother characterized their relative reactions:
A All different reactions. [AR] just wants to be finished with Children and
Youth. Adopt me. Do whatever you got to do. I just want to be finished.
[E.R] pretty much goes along with [AR.]. She has been the mother for them
when there wasn't really wasn't a mother figure there. So [AR.] kind of feels
like the three boys are her children. And I try to tell her, I'm the mother. One
queen in the castle. It would be me. So she - they listen to her because
that's who they're accustomed to. So [E.R.] will do what [AR.] kind of say.
They've been trained that way.
Whereas, the two younger ones - [AM.] is pretty independent. He's excited.
He wants to go with [grandmother's daughter]. He wants to be with her.
[I.R] is just totally different. He's a little bit - he's not sure. They said we're
going to mommy, they say we're going here, and he just kind of goes along
with the crowd because of his age, I would say.
The grandmother testified that she believed that the children were "bonded" to the
natural father, however, she testified that she believed that the children would not suffer
irreparable harm from a severing of that bond.
The Court entered final orders of termination following the hearing, both parents appeal.
Rule of Law
~~::t~:_:~:~t~::~se;:t~:'~~~~/ftep-g;nd_mot;~:
• & ::et:;h~~i:::~~:~~~~:o:~~:.e~~: :;~:ta~~;~~i::~~~:;er.
however, she has visited with the kinShip-foster family at every holiday and the children are very familiarwith the
daughter's family. As such, it is this Court's opinion that the daughter's family is within the definition of a "kinship"
placement.
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The grounds for involuntary termination of parental rights are set forth in section 2511 of
title 23 of the Pennsylvania Consolidated Statutes. Specifically sections (a)(1); (a)(2); (a)(5);
and (a){S) appear substantially as follows:
23 Pa.C.SA §2511 (a)
(1) The parent by conduct continuing for a period of at least six months immediately
preceding the filing of the petition either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform parental duties.
(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.
(5) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist, the parent cannot or will not remedy
those conditions within a reasonable period of time; the services or assistance reasonably
available to the parent are not likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and tennination of the parental rights
would best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, 12 months or more have elapsed from the date of removal
or placement, the conditions which led to the removal or placement of the child continue to exist
and termination of parental rights would best serve the needs and welfare of the child.
See 23 Pa C.SA §2511.
Subsection (b) of the statute provides that: 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
7
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)
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)(l), (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.
The term "needs and welfare" is a legal concept that "denotes certain minimum
requirements that all children are entitled to-adequate housing, clothing, food and love: In Re
Coast, 561 A.2d 762,770 (Pa Super. 1989); In re Adoption of Michael J.e., 473 A.2d 1021,
1029 (Pa. Super. 1984). "Thus, needs and welfare has both a tangible dimension, food, clothing
and shelter, and an intangible dimension, parental love: In re P.A.B., 570 A.2d 522, 525 (Pa.
Super 1990); In ro J, W, 578 A.2d 952, 957 (Pa. Super. 1990). "It is universally agreed that the
bond of '539 parental affection is unique and irreplaceable. When parents act in accordance
with the natural bonds of parental affection, preservation of the parent-child bond is prima-facie
in the best interest of the child and the state has no justification to terminate that bond: In re
J. W, 578 A,2d at 958. "If, as here, ties with natural parents are present and are an active force
in the child's life, then needs and welfare becomes a concept that argues against termination,
rather than fosters it." In re PAB., 570 A.2d at 525. Moreover, pursuani to section 2511(a)(5),
a court "must examihe the status of the natural parental bond to consider whether terminating
the natural parents' rights would destroy something in existence that is necessary and
beneficial." Id.
Subsection (a)(8) sets a 12-month lime frame for a parent to remedy the conditions
which led to placement Once the twelve month period has been established, the court must
next determine whether the conditions which led to the child's placement continue to exist,
despite the reasonable and good faith efforts of the Agency, supplied over a realistic timeframe.
In order to terminate under section 2511 (a)(8), the Court is not required to evaluate a parent's
current Willingness or ability to remedy the conditions that initially caused placement or the
availability or efficacy of potential services. See In re K-Z.S., 946 A.2d 753, 759 (Pa. Super.
2008). The Superior Court provided a detailed analysis of the termination ground listed at 23
Pa. C.SA §2S11(a)(8) in the recent case of Inre T.M.T., 64A.3d 1119 (Pa. Super. 2013).
The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test,
can be determinative in a termination proceeding. See In re Adoption of S.P., 47 A.3d 817 (Pa.
2012), Each termination of parental rights case involving an incarcerated parent must be
8
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evaluated on its own facts, bearing in mind that the child's needs for consistent oarental care
and stability cannot be put aside or puf on hold simply because the parent is doing what he is
supposed to do in prison. See in fa EAP., 944 A.2d 79 (Pa. Super. 2008). Incarceration does
not relieve a parent of the duty to exercise reasonable firmness in maintaining a secure bond
with the child. In the interest of A.P., 693 A,2d 240 (Pa. Super. 1997). In termination of
parental rights cases involving an incarcerated parent, a parent's basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the
child's right to have proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment; moreover, the parent wishing to reestablish her parental
responsibilities bears the burden of proof relative to post-abandonment contact. See l!J...@.
CLG., 956 A.2d 999 (pa. Super. 2008). When a parent is incarcerated, the focus in
termination of parental rights action is on whether the parent utilized resources available while in
prison to maintain a relationship with his child. In re B.N.M., 856 A.2d 847 (Pa. Super. 2004).
In a case where the incarcerated parent wrote letters, forwarded some child support, and
sent gifts to the child, the Court found that these actions did not indicate a serious intent to re-
cultivate a parent-child relationship and a willingness and capacity to undertake a parental role;
and thus termination was appropriate. See!Mk. In re D.J. S., 737 A,2d 283 (Pa. Super. 1999).
The Court also found that the natural father in that case failed to utilize given resources and to
take an affirmative approach to fulfill his parental duties and failed to follow through on inquires
with prison officials and county social workers. See Id.
Discussion:
As to Natural Father the decision reached has not been done so lightly. Natural Father
indicates a willingness and a desire to reunify. with his children. In addition, his children express
a desire to reunify with him. He is appropriate with them during visits, and consistently strives to
be a presence in their lives despite his incarceration. The caseworker testified that he does
"everything he can" while incarcerated. Clearly we have a father who is striving to be a parent,
despite being noticeably absent from the lives of his children.
However, Father has been incarcerated for over three years. His maximum sentence
date is June 2014. He was not granted parole despite his requests and application for it. As
noted above, the Court will not put a child's life on hold and await a parent who is fit, willing, and
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able. Father would most likely not be fit and willing to provide care and control upon his release.
As this Court is very familiar with the process by which released ex-convicts attempt to re-
integrate and the hardships associated therewith, this Court is unwilling to force the children to
wail any longer. Father is entirely appropriate with them, and it is likely that he loves them
greatly, as they do him. However, this Court is encouraged by the prospect of adoption by the
patemal grandfather and his step-daughter of the children. This kinship permanent placement
wm permit, albeit on Father's initiative only, continued contact between the children and their
natural father. The fact that the words "termination" and "adoption" imply permanence and
suggest a severance from a relationship with a natural parent has little effect in this case. This
Court wifJ not tum a blind eye to the practical considerations of the children's age and the fact
that they acknowledge and love their father. There will be continued contact with the Natural
Father and the children, and it wifJ likely occur without this Court's intervention. Knowing, as we
do, that that will be an easier process as the children are placed with kin makes this Court's
decision that much more bearable.
As to the Natural Mother, the Court found aggravated circumstances as to her lack of
involvement during the dependency case. It is severely disheartening to associate this situation
with an absimce of over six (6) months. This Court cannot fathom the lack of a desire to contact
the children during that time. It, coupled with the troubling tranSiency, causes this Court to find
that termination would certainly suit the best interests of the children as to Natural Mother. In .
addition, by virtue of the finding of aggravated circumstances, the natural mother has satisfied
the statutory provisions which aJlow for termination when: there has been no contact between
the parent and the child for a period of six (6) months; the conditions which led to placement
continue to exist (lack of permanent living arrangements) and the fact that Mother has exhibited
little interest in parenting her children until the eleventh hour.
Conclusion
This Court hereby concludes that termination of the parental rights of both the Natural
Father and the Natural Mother as to the minOr children is required by the statutory provisions
goveming the same and would, undoubtedly serve the children's best interests.
BY THE COURT:
Wm. Harvey Wiest, Judge
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IN THE COURT OF COMMON PLEAS Ul'-
c:: 1"1
<:;
:>:J
OF NORTHUMBERLAND COUNTY, PA
z!2
OJ:;o
N
\D
IN RE: ADOPTION OF C::fT(
:;:0
A. M. a minor child ORPHAN'S COURT DI~§1oN;:
) . -o:;C
ADOPTEE # 48 of 201:r 8 ~
N
OPINION PURSUANT TO Pa.R.A.P. 1925(a)
Factual and Procedural Background
The family in the above-captioned case became involved with Northumberland County
Children and Youth services in April of 2007, after allegations of an unsupervised child
wandering around in the city of Sunbury. The matter was referred for a safety plan assessment,
a plan was approved and the case was closed.
General Protective Services (GPS) became involved with the family again in 2010
responding to allegations of domestic violence, poor home conditions" and the possibility that
the family would be evicted from their apartment. After the natural mother made new
arrangements for a residence and successfully scheduled doctors' appointments for the
children, the case was again closed.
More GPS referrals were received in late 2010 into early 2011 regarding the family's lack
of basic utilities, natural mother's drug use, domestic violence, and potential eviction. There
were also allegations of various unidentified individuals who frequented the home2 . After
investigation, the home was found to be without hot water and the natural mother admitted to
having smoked marijuana. The family continued to remain involved with the GPS division of the
Northumberland County Children and Youth Services, during their involvement through
February 2011, the family struggled with domestic violence, truancy, lack of employment,
danger of evictions, and related drug use. On February 18th 2011, the natural mother signed a
Voluntary Entrustment Agreement, placing her children (including the above-captioned child) in
I Specifically, it was alleged that one minor child had several "flea bites."
2 The Dependency petition in the case suggested that there were a "lot of 'Puerto Ricans' in an out of the home at
all hours of the day and night."
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placed the children in the home of the paternal grandparents, ~ and T.
the care and custody of Northumberland County Children and Youth Services who, in turn,
The child was adjudicated Dependent on March 23rd 2011. The child was placed in
RM
foster care by the Agency. However, the placement was actually in the kinship home of I\4S
••
_ _ _3 {)I1/!.,
On June 23rd 2013, Northumberland County Children and Youth Services (the Agency)
filed a Motion for a Finding of Aggravated Circumstances alleging aggravated circumstances
against the natural mother in that, while her identity or whereabouts were known, she failed to
maintain substantial and continuing contact with the child for a period of six months.
On July 17th 2013, the Court found by clear and convincing evidence that the aggravated
circumstance alleged existed as against the natural mother. The Court further ordered that NO
efforts at reunification between the child and the Natural Mother need be made.
Consistent throughout the review period, that is the time during which the children were
in care, the parents maintained little progress and efforts. Natural father was incarcerated (and
continues to be) during the entire time period in which his children were in the Agency's
custody. During his time of incarceration, the Natural father provided no documentation of any
services, programs, or activities he was engaged in or completed. He did communicate with the
children through letters. Natural mother, while ordered to participate in parenting classes, find
gainful employment, and obtain housing, was minimally compliant. During the early part of the
case, Natural Mother had visitation with the children, but from approximately mid-Summer of
2012 until sometime in early spring of 2013, she had no contact with the Agency and, to the
Court's knowledge, did not contact the children.
On August 14th 2013, the Agency filed a Petition to Involuntarily Terminate the Parental
Rights of Natural Mother and Natural Father. The children had spent thirty-six (36) months in
the care and custody of the Agency, albeit in the home of their paternal grandmother and
grandfather.
'The Order of Adjudication and DispOSition indicates that placement was in Foster Care. The initial permanency
review order indicated "Foster Care - Kinship."
2
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On January 16th 2014, the Natural Mother filed a motion requesting the Court to direct
the Agency to make a referral for a homestudy through the Interstate Compact. The homestudy
would presumably have been performed on the maternal grandmother, who resided in New
York. The Court denied the same.
On February 21 st 2014 at the Termination Proceeding, the Natural Mother moved, in
open court and on the record, for the relief requested in the motion. The Court denied the
same, holding that the matter was better raised in proceedings before Dependency Court.
During the period of time in which the children were in care, the Natural Father, Nicolas
Rivera, was incarcerated. During his incarceration, he wrote several letters which were
received and reviewed by the caseworkers at the Agency, the caseworkers testified that they
had written him back concerning the children. The Agency provided him with a copy of the
Child's Permanency Plan, and never received any indication that the Natural Father did not
th
understand or questioned the plan. Natural Father did sign the same on February 16 2012.
The caseworker testified that as of April 2011, Natural Father was not engaged in any
services. However, as of April 2013, the Natural father was "taking as many classes that w[ere]
offered at SCI-Dallas. Due to each facility being different, they do not - they do not have the
same things in each prison: See Transcript of Proceedings, February 21 st 2014, pg 14. While
in prison, Natural Father had regular visitation with the children. The children were transported
by their grandmother, the kinship-foster parent. Natural Father was "very appropriate" during
visitation with the children. See Transcript of Proceedings on February 21 st 2014, pg 26. He
sent the children pictures and letters, and kept in regular contact with the children. In some
lengthy discussion, the caseworker was cross examined on the availability of services for the
Natural Father while he was incarcerated. Specifically:
"Q: All right. Without looking at any orders, you don't know what you can say
what he was court ordered to do, to participate in. Is that a fair
statement?
A: That is fair. And due to being incarcerated, like I said earlier, not each
facility has the same things. And it's tough for us to even know what is in
each one because it changes from place to place or even month to
month. So I think that was, in turn, why it was not spelled out as specific
and said that when he would be released, he would need to let us know
3
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specificaJly when he was out to become active with the full plan of what
he needed to do:
See Transcript of Proceedings from February 2'1& 2014, pg 28-9.
th
Natural Father's maximum sentence "date was June 13 2014. According to the
caseworker, the Natural Father was up for parole several times in during the three years the
children were in placement, he was denied each time. The caseworker testified that it was her
belief that he was denied by virtue of his behavior in prison. During the letter correspondence
between the Natural Father and the caseworker, the Natural Father communicated his desire to
be there for his children and his strong desire that the children not be adopted. The caseworker
testified that she received letters from the Natural Father approximately monthly. She also
testified that during 'her supervision of the viSitation between the Natural Father and the children,
Natural Father was entirely appropriate with the children, and the children were excited to see
their father. Natural Father would mail some minor artwork, portraits, and other smaJi gifts and
keepsakes to the children whenever he could acquire the same.
The Natural Mother suffered from issues pertaining to domestiC disputes and consistent
transiency. What appears to be most disturbing is that Natural Mother apparently disappeared
for some time and was unreaChable by the Agency. Mother maintained limited visitation with
her children. Specifically, between August of 2011 and Christmas of 2012, Natural Mother had
no visits with her children. Regarding Mother's transiency, she lived in several towns and cities
in Pennsylvania, and then moved to New York and New Jersey all during the time period that
the Children were In care. Mother made a great case at the termination hearing on February
21 st 2014 regarding the fitness and availability of maternal grandmother as a resource home for
the Children. During the time of her request, Mother lived with the matemal grandmother in New
York. Apparently, Mother had requested that the Agency permit the children to live with her in
New York several times prior to Court on February 21 st 2014.
Throughout the three years in placement, the kinShip-foster family has provided for the
needs of the children. An example of lhe level of devotion to the continued permanence of the
children, is the fact that at the onset of placement, the youngest child was significantly behind in
his immunization records, the grandmother successfully got him up to date. In her testimony,
the grandmother testified as follows:
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A. Well, taking care of the four children, it requires 110 percent of me. So
whether it's school, doctor's appointments, dentist appointment. Three of the
children - well, four of them were in counseling. Three of them nOw remain in
counseling, which is sometimes weekly, every other week. Numerous
appointments, basketball game. We lost this one. But basketball games,
events, activities. You know, to me, I can - that's a full-time job basically.
See Transcript of Proceedings on February 21$' 2014, pg 57.
At another juncture in the case, the grandmother proffered testimony that was very
indicative of the effects on ALL children of removal from the home.
Q: .,. what were they like when they first came to live with YOll three years
ago?
A: I - I think - I guess I would say they were a little afraid. They always kind
of stayed together. Like they kind of needed each other. They was very
interwoven with one another. They always kind of always kept a bag kind
of packed not knowing what 'was going to happen and stuff and, you
know, just always concerned about what's for dessert, what we're going
to eat, you know, and different things like that.
So I think in the beginning, they might have been a little bit afraid,
not sure. You know, but they felt happy to be with us because here and
now we were getting things that were consistent and structure and
attention, and - you know, so-
See TranSCript from Proceedings on February 21 81 2014, pg 58-9.
Of note, at the termination proceeding, the permanency caseworker testified as follows
regarding the oldest child:
"A.R. was not very open with me, at that time. She was very upset about being
in the fOster care system. It took a while. She grew and opened up, and now she's actually on
a good working relationship with me to a point where she'll discuss things. She is very
comfortable in the home. She's actually told me she has come to a means of understanding
that they just need to find somewhere to be, and she's fine with everything that the agency has
been trying to do for her." See Transcript of Proceedings frQ[Tl February 21$1 2014, pg. 22.
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The Agency had discerned that the kinship-foster family' was willing to be permanent
resources for two of the four children, the daughter of the grandmother', was willing to be a
permanent
. resource for' "two of the children. The kinship-foster family and the daughter's
.' ..
family
lived a reasonable distal')ce from each other, which would facilitate continued contact and
interaction between the children and their siblings.
In discussion with the children regarding the suggested permanency options, the
grandmother characterized their relative reactions:
A All different reactions. [A R.] just wants to be finished with Children and
Youth. Adopt me. Do whatever you got to do. I just want to be finished.
[E.R.] pretty much goes along with [AR.]. She has been the mother for them
when there wasn't really wasn't a mother figure there. So [AR.] kind of feels
like the three bOYS are her children. And I try to tell her, I'm the mother. One
queen in the castle. It would be me .. So she - they listen to her because
that's who they're accustomed to. So [E.R.] will do what [AR.] kind of say.
They've been trained that way.
.
Whereas, the two younger ones -- [A.M.] is pretty independent. He's excited.
He wants to go with [grandmother's daughter]. He wants to be with her.
[I.R.] is just totally different. He's a little bit - he's not sure. They said we're
going to. mommy, they say we're going here, and he just kind of goes along
with the crowd because of his age., I would say.
The grandmother testified that she believed that the children were "bonded" to the
natural father, however, she testified that she believed
. . that
. the children would
. not suffer
irreparable harm from a severing of that bond.
The Court entered fiilal orders pf termination following the hearing, both parents appeal.
Rule of Law
'The grandmother is act.lJally ~e .st.ep.-grandmother for the children, as she is married to the paternal grandfather.
The step-grandmothers daugilt',,?I_ is ,"tlk) is the other permanent resource. She is not biological family,
however, ·she has visited with the kinship-fo$t~r family at everY holiday and the child;en are verY familiar with the
daughter's family. As sucil, itis til is Cowt's opiniMthat the daughter's family Is within the'definition <;,f a "kinship"
placement.
6
'-'.' .
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. The grounds forinvoluntary termination of parental rights are set forth in section 2511 of
,
title 23 oUhe Pennsylvania Consolidated Statutes, Specifically sections (a)O); (a)(2); (a)(5);
and (a)(8) appear substantially as follows:
23 Pa.C,SA §2511 (a)
(1) The parent by conduct continuing for a period of at least six months immediately
preceding the filing of the petition either has eVidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and contiriued incapacity, abuse, neglect or refusal of the parent has
caused ihe 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.
(5) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency for a period of at least six months, the conditions which led
to the· removal or placement of the child continue to exist, the parent cannot or will not remedy
those conditions within a reasonable period of time, the services or assistance reasonably
available to the parent are not likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and termination of the parental rights
would best serve the needs and welfare of the child,
(8) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, 12 months or more have elapsed from the date of removal
or placement, the conditions which led to the removal or placement of the child continue to exist
and termination of parental rights would best serve the needs and welfare of the child,
See 23 Pa C,S.A. §2511,
Subsection (b) of the statute provides that: 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
7
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)
environmental factors such as inadequate housing, fumishings, 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.
The term "needs and welfare" is a legal concept that "denotes certain minimum
requirements that all children are entitled to-adequate housing, clothing, food and love." !!1..&t.
Coast, 561 A.2d 762, 770 (Pa Super. 1989); In re Adoption of Michael J.e.. 473 A.2d 1021,
1029 (Pa. Super. 1984). "Thus, needs and welfare has both a tangible dimension, food, clothing
and shelter, and an intangible dimension, parental love." In re P,A.B .. 570 A.2d 522, 525 (Pa.
Super 1990); In re J. W, 578 A.2d 952,957 (Pa. Super. 1990). "It is universally agreed that the
bond of *539 parental affection is unique and irreplaceable. When parents act in accordance
with the natural bonds of parental affection, preservation of the parent-child bond is prima-facie
in the best interest of the child and the state has no justification to terminate that bond." f.!.!.J§.
J. W.. 578 A.2d at 958. "If. as here, ties with natural parents are present and are an active force
in the child's life, then needs and welfare becomes a concept that argues against termination,
rather than fosters it." In ra P.A.B., 570 A.2d at 525. Moreover. pursuant to section 2511 (a)(5),
a court "must examine the status of the natural parental bond to consider whether terminating
the natural parents' rights would destroy something in existence that is necessary and
beneficial." Id.
Subsection (a)(8) sets a 12-month time frame for a parent to remedy the conditions
which led to placement. Once the twelve month period has been established, the court must
next determine whether the conditions which led to the child's placement continue to exist,
despite the reasonable and good faith efforts of the Agency, supplied over a realistic timeframe.
In order to terminate under section 2511(a)(8), the Court is not required to evaluate a parent's
current willingness or ability to remedy the conditions that initially caused placement or the
availability or efficacy of potential services. See In re K.Z.S., 946 A.2d 753, 759 (Pa. Super.
2008). The Superior Court provided a detailed analysis of the termination ground listed at 23
Pa. C.S.A. §2511(a)(8) in the recent case of Inre T.M. T., 64 A. 3d 1119 (Pa. Super. 2013).'
The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test,
can be determinative in a termination proceeding. See In re Adoption of S.P., 47 A.3d 817 (Pa.
2012). Each termination of parental rights case involving an incarcerated parent must be
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evaluated on its own facts; bearing in mind that the child's needs for consistent parental care
and stability cannot be put aside or put on hold simply because the parent is doing what he is
supposed to do in prison. See In re E.A.P., 944 A.2d 79 (Pa. Super. 2008). Incarceration does
not relieve a parent of the duty to exercise reasonable firmness in maintaining a secure bond
with the child. In the Interest of A.P., 693 A.2d 240 (Pa. Super. 1997). In termination of
parental rights cases involving an incarcerated parent, a parent's basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the
child's right to have proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment; moreover, the parent wishing to reestablish her parental
responsibilities bears the burden of proof relative to post-abandonment contact. See In re
C.L.G., 956 A.2d 999 (Pa. Super. 2008). When a parent is incarcerated, the focus in
termination of parental rights action is on whether the parent utilized resources available while in
prison to maintain a relationship with his child. In re B.N.M., 856 A.2d 847 (Pa. Super. 2004).
In a case where the incarcerated parent wrote letters, forwarded some child support, and
sent gifts to the child, the Court found that these actions did not indicate a serious intent to re-
cultivate a parent-child relationship and a willingriess and capacity to undertake a parental role,
and thus termination was appropriate. See 1liL,ln re D.J.S., 737 A.2d 283 (Pa. Super. 1999).
The Court also found that the natural father in that case failed to utilize given resources and to
take an affirmative approach to fulfill his parental duties and failed to follow through on inquires
with prison officials and county social workers. See Id.
Discussion:
As to Natural Father the decision reached has not been done so lightly. Natural Father
indicates a willingness and a desire to reunify with his children. In addition, his children express
a desire to reunify with him. He is appropriate with them during visits, and consistently strives to
be a presence in their lives despite his incarceration. The caseworker testified that he does
"everything he can" while incarcerated. Clearly we have a father who is striving to be a parent.
despite being noticeably absent from the lives of his children.
However, Father has been incarcerated for over three years. His maximum sentence
date is June 2014. He was not granted parole despite his requests and application for it. As
noted above, the Court will not put a child's life on hold and await a parent who is fit, willing, and
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able. Father would most likely not be fit and willing to provide care and control upon his release.
As this Court is very familiar with the process by which released ex-convicts attempt to re-
integrate and the hardships associated therewith, this Court is unwilling to force the children to
wait any longer. Father is entirely appropriate with them, and it is likely that he loves them
greatly, as they do him. However, this Court is encouraged by the prospect of adoption by the
paternal grandfather and his step-daughter of the children. This kinship permanent placement
will permit, albeit on Father's initiative only, continued contact between the children and their
natural father. The fact that the words 'termination" and "adoption" imply permanence and
suggest a severance from a relationship with a natural parent has little effect in this case. This
Court will not turn a blind eye to the practical considerations of the children's age and the fact
that they acknowledge and love their father. There will be continued contact with the Natural
Father and the children, and it will likely occur without this Court's intervention. Knowing, as we
do, that that will be an easier process as the children are placed with kin makes this Court's
decision that much more bearable.
As to the Natural Mother, the Court found aggravated circumstances as to her lack of
involvement during the dependency case. It is severely disheartening to associate this situation
with an absence of over six (6) months. This Court cannot fathom the lack of a desire to contact
the children during that time. It, coupled with the trOUbling transiency, causes this Court to find
that termination would certainly suit the best interests of the children as to Natural Mother. In
addition, by virtue of the finding of aggravated circumstances, the natural mother has satisfied
the statutory prOVisions Which allow for termination when: there has been no contact between
the parent and the child for a period of six (6) months; the conditions which led to placement
continue to exist (lack of permanent living arrangements) and the fact that Mother has exhibited
little interest in parenting her children until the eleventh hour.
Conclusion
This Court hereby concludes tMt termination of the parental rights of both the Natural
Father and the Natural Mother as to the minor Children is required by the statutory provisions
governing the same and WOUld, undoubtedly serve the children's best interests.
BY THE COURT:
'----.>:::: . \ ~ ~.Jy
Wm. Harvey Wiest, Judge
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In Re: Adopt of E.R., Appeal of: N.R.
Combined Opinion