J-A07014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: SOMERSET COUNTY No. 1420 WDA 2014
CHILDREN & YOUTH SERVICES
Appeal from the Order entered July 24, 2014,
in the Court of Common Pleas of Somerset County, Orphans’
Court, at No(s): 14 Adoption 2013
BEFORE: BENDER, P.J.E., LAZARUS, and MUNDY, JJ.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2015
Somerset County Children and Youth Services (“CYS”) appeals from
the order entered July 24, 2014, in the Court of Common Pleas of Somerset
County, which denied its petitions to terminate involuntarily the parental
rights of D.P. (“Mother”) and A.C. (“Father”) to their minor son, A.C.
(“Child”). After careful review, we reverse the subject order, and remand for
the orphans’ court to enter decrees terminating the parental rights of Mother
and Father.
Child was born in February of 2012. At the time of his birth, Child
tested positive for oxycodone and methadone. Both Mother and Father
admitted to CYS that they took prescription drugs that had not been
prescribed for them, and a safety plan was implemented. On May 25, 2012,
Mother and Father submitted to drug screens. On May 31, 2012, CYS
received the results of these screens, indicating that both parents tested
positive. That same day, CYS sought and received an order of protective
J-A07014-15
custody for Child. A dependency petition was filed on or about June 1, 2012,
and Child was adjudicated dependent by order dated June 5, 2012.
On October 7, 2013, CYS filed petitions to terminate involuntarily the
parental rights of Mother and Father. A hearing was held on July 14, 2014,
during which the orphans’ court heard the testimony of Psychologist Dennis
Kashurba, CYS caseworker Andrea Palguta, CYS casework supervisor Teya
Lopaze, Father, and Father’s mother, P.C. (Grandmother). Mother failed to
appear at the hearing.1 On July 24, 2014, the court entered its order
denying the termination petitions. CYS timely filed a notice of appeal on
August 22, 2014, along with a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
CYS now raises the following issues for our review.
I. Whether [CYS] proved by clear and convincing evidence at
least one statutory ground for the termination of [] Father’s
parental rights[?]
A. Whether the [orphans’] court erred as a matter of
law, or abused its discretion by requiring [CYS] to
show it made reasonable efforts to reunify [Child]
with [] Father while incarcerated in order to meet its
burden[?]
B. Whether [CYS] proved by clear and convincing
evidence that the termination of [] Father’s parental
rights would best serve the needs and welfare of
[Child?]
1
At the beginning of the hearing, Mother’s counsel stated that he attempted
to contact Mother, but was unable to reach her. N.T., 7/14/14, at 9-10.
-2-
J-A07014-15
II. Whether [CYS] proved by clear and convincing evidence at
least one statutory ground [for] the termination of [] Mother’s
parental rights[?]
A. Whether [CYS] proved by clear and convincing
evidence that the termination of [] Mother’s parental
rights would best serve the needs and welfare of
[Child?]
CYS’s brief at 4 (orphans’ court answers and unnecessary capitalization
omitted).
We consider the claims presented by CYS mindful of our well-settled
standard of review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
-3-
J-A07014-15
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, CYS petitioned to terminate the parental rights of Mother
and Father pursuant to Sections 2511(a)(1), (2), (5), (8), and (b), which
provide as follows:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of 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
-4-
J-A07014-15
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.
(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(a)(1), (2), (5), (8), and (b).
In its opinion accompanying the subject order, the orphans’ court
concluded that CYS failed to present clear and convincing evidence that the
parental rights of Father should be terminated under any of these sections.
The court reasoned as follows, in pertinent part:
The removal of the Child [] from the parents on May 25,
2012, at a point in time when the Child was three months of
age, resulted from a positive test for drugs … in violation of the
-5-
J-A07014-15
existing safety plan. Accordingly, the reunification plan
consisted of the parents demonstrating that they were no longer
dependent on drugs….
It is noteworthy that while Father’s primary goal was to
eradicate his involvement with drugs, he successfully completed
an inpatient treatment program with the Cove Forge Treatment
Center, and his successful completion was reported to agents of
[CYS]. Although there were treatment recommendations
assigned to Father upon his release, his incarcerations in early
2013 and subsequent sentence in the state corrections system
made [] compliance with those treatment recommendations
impossible.
As Father was removed from the ability to visit with his
son and show meaningful progress towards the stated goals in
the permanency plan, [CYS] failed to adapt its program goals
consistent with an incarcerated parent. From that point forward
the goals as to visitation with the child, attendance at medical
appointments, maintaining stable employment, following
treatment recommendations, and the like were meaningless
because incarceration precluded pursuit of those goals. At that
point in time [CYS] failed to adjust and monitor Father’s
progress based on the activities that he was capable of
performing within the state corrections system. There are many
programs within the state corrections system which focus on an
inmate’s post-release freedom from drug dependency as well as
job skills, parenting skills, and other life skills, which would
permit an inmate to become reunited with his minor children.
[CYS] continued to measure Father’s compliance with the plan
and progress towards achievement of goals based on his conduct
as if he was not incarcerated. While it might be argued as to
whose duty it was to report Father’s treatment progress within
the state correction system, it simply wasn’t done.
***
If it is the role of [CYS] to promote the goal of
reunification, it seems to the [c]ourt that when the parental
goals focus on matters which only a parent out in the community
can do, it is incumbent on [CYS] to modify the goals upon the
incarceration of a parent to fit the reunification plan. Here,
Father has completed drug and alcohol inpatient treatment and
has furthered his drug abstinence through corrections
-6-
J-A07014-15
opportunities for AA, NA, substance abuse education, parenting
skills and the like for which an inmate should be given credit in
pursuit of his goals. [CYS] had little knowledge of Father’s
achievements during his incarceration and further was
apparently unaware of his upcoming release from prison in
September, 2014. Considering the original “circumstances that
made placement necessary” centered on Father’s positive drug
screen and his duty to seek treatment and prove follow-up
results, Father’s success in inpatient drug treatment followed up
by drug programs within the correction’s system should have
been reported to the Dependency Judge. These “successes” add
up to demonstrate progress toward the goals that matter and for
which Father has the capacity to complete.
Orphans’ Court Opinion, 7/24/14, at 17-21 (unpaginated).
Notably, the court offered no discussion as to why it was denying the
termination petition with respect to Mother. In its opinion pursuant to
Pa.R.A.P. 1925(a), the court explained its decision not to terminate Mother’s
parental rights as follows:
[I]t is our position that the termination of parental rights, when
posed against both birth parents, is ineffective to promote an
adoption when the termination is not granted as to both parents.
Under the circumstances where the court determines that the
parental rights of one parent should be retained, as in the
instant case, that parent may well go forward as the primary
custodian of the child. As a result, where the parental rights of
the other parent are still intact, the primary custodial parent
should be in a position to pursue child support. At that point,
the primary custodial parent is performing parental duties,
perhaps to the exclusion of the other parent, and the family is no
longer a burden to [CYS]. Assuming that the primary custodial
parent is properly parenting the child, it is of little import to the
court and to society that the noncustodial parent is
nonfunctioning. Further, over time, as in the instant case, the
other parent may overcome a drug dependency and thereafter
become an appropriate and caring parent. Under this scenario,
the time required by this noncustodial parent is not at the
expense of [CYS] and may otherwise play out as needed during
-7-
J-A07014-15
when the custodial natural parent is appropriately providing all
parental services.
The [c]ourt did not address the involuntary termination
factors as to Mother because it determined that the rights should
not be terminated as to Father…. The primary purpose of
termination of parental rights proceedings is to achieve a
position where an adoption can proceed. The statutory provision
for termination are found under the general chapter heading of
“Proceedings Prior To Adoption” which subdivision is under Title
23. Domestic Relations, Part III. Adoption.
Orphans’ Court Opinion, 11/5/14, at 2-3 (unpaginated).
On appeal, CYS argues that the court abused its discretion by denying
the termination petitions. CYS contends that it presented clear and
convincing evidence to establish that the parental rights of both Mother and
Father should be terminated, and that the court improperly required CYS to
show that it made reasonable efforts to reunify Father with Child. CYS’s
brief at 12-25. We agree with CYS, and conclude that the orphans’ court
abused its discretion by refusing to terminate the parental rights of Mother
and Father pursuant to Sections 2511(a)(8) and (b).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(8), the following factors must be demonstrated: (1) The
child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
“Notably, termination under Section 2511(a)(8), does not require an
evaluation of [a parent’s] willingness or ability to remedy the conditions that
-8-
J-A07014-15
led to placement of [the] children.” In re Adoption of R.J.S., 901 A.2d
502, 511 (Pa. Super. 2006) (citations omitted).
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. However, in cases where there is no evidence of a bond
between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some
citations omitted).
[W]hile both Section 2511(a)(8) and Section 2511(b) direct us
to evaluate the “needs and welfare of the child,” we are required
to resolve the analysis relative to Section 2511(a)(8), prior to
addressing … Section 2511(b); as such, they are distinct in that
we must address Section 2511(a) before reaching Section
2511(b).
In re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc).
Initially, we note that the court erred by declining to terminate
Mother’s parental rights simply because the parental rights of Father were
being preserved. Our Supreme Court expressly rejected this proposition
nearly 40 years ago in In re Burns, 379 A.2d 535, 541 (Pa. 1977)
(“Nothing in the Adoption Act requires that an agency, which has assumed
custody of a child, must establish grounds for the involuntary termination of
both parents, before it can obtain such a decree as to either.”). While
-9-
J-A07014-15
Burns was decided under a prior version of the Adoption Act, nothing in the
current Act contradicts the Court’s decision. Indeed, as acknowledged by
the orphans’ court, this Court more recently reached a similar result in In re
C.W.U., Jr., 33 A.3d 1 (Pa. Super. 2011). In that case, a trial court
“conceded that it refused to terminate Father’s parental rights because the
court did not wish to leave Child without a father, in light of the fact that it
was not terminating Mother’s parental rights at this time.” Id. at 9. This
Court reversed, holding that there was no competent evidence to support
the trial court’s decision. Id.
Additionally, as explained infra, the evidence presented by CYS in this
matter overwhelmingly supported the termination of both parents’ parental
rights. During the hearing, Ms. Andrea Palguta testified that she was the
CYS caseworker assigned to this matter from January 30, 2012, prior to
Child’s birth, until January 5, 2013. Id. at 34-35, 43. Ms. Palguta explained
that, as a result of Child’s adjudication of dependency, Mother and Father
were ordered to, inter alia, “complete drug and alcohol evaluations; comply
with whatever treatment recommendations came from that evaluation; …
complete random drug screens and to give at least three consecutive
negative drug screens ….” Id. at 42-43. Ms. Palguta stated that both
Mother and Father completed drug and alcohol evaluations. Id. at 43-44.
However, they did not comply fully with the recommended treatment. Id. at
44. Ms. Palguta noted that, between the September 4, 2012 permanency
- 10 -
J-A07014-15
review hearing and the November 6, 2012 permanency review hearing,
Father reported to CYS that that he was receiving drug treatment from a
“Dr. Cober,” and that he “was going to enter a 90-day drug and alcohol
treatment program in Harrisburg, but … we received no verification that he
ever did that.” Id. at 52-53.
Additionally, during Ms. Palguta’s time on the case, neither parent had
three consecutive negative drug screens. Id. at 44, 58-59. Ms. Palguta
explained that at least seven drug screens would have been requested from
Mother during her time as the caseworker. Id. at 62-63. Of those seven
tests, Mother provided four samples and tested positive three of those four
times. Id. at 63. Ms. Palguta stated that Father at one point refused a drug
screen, and that there were “other times” when the parents admitted to
using drugs. Id. at 50. Specifically, Mother admitted to using another
person’s Percocet on July 10, 2012. Id. Father refused a drug screen that
same day “stating that he could not product [sic] any urine because of
severe dehydration from diarrhea.” Id. Finally, Ms. Palguta testified that
Child appeared very comfortable with his foster family. Id. at 66. She
noted that, when Child would not see Father for a long period of time, he
developed “kind of a stranger anxiety around him.” Id. Child appeared
“fairly comfortable” with Mother. Id. at 67.
Ms. Teya Lopaze testified that she is a casework supervisor for CYS,
and that this case “was assigned to a caseworker in my unit in January of …
- 11 -
J-A07014-15
2013.” Id. at 68. Ms. Lopaze explained that, from the time she had the
case until the time the termination petitions were filed, neither parent
submitted three consecutive negative drug screens. Id. at 70, 87. Father
did complete drug treatment in 2012. Id. at 71, 95. However, Ms. Lopaze
noted that, when Father was discharged, “it was recommended that he do
intensive outpatient counseling, attend 90 AA/NA meetings within 90 days of
discharge, [and] retain a sponsor within three to five days of discharge ….”
Id. at 95. To her knowledge, Father did not complete these
recommendations. Id. at 97-98.
Ms. Lopaze further explained that Mother completed a drug evaluation
at Twin Lakes in March of 2013, but that CYS did not receive any
confirmation that Mother completed the recommended drug treatment. Id.
at 71, 87. The last drug screen administered to Mother took place on April
2, 2013. Id. at 79. Mother tested positive for opiates and cocaine. Id. Ms.
Lopaze stated that CYS was not able to administer additional drug screens to
Mother because, following her final visit with Child on June 11, 2013, “she
has not made herself available. We didn’t even know her whereabouts.” Id.
at 79-80, 83. At the time of the termination hearing, Ms. Lopaze still did not
know where Mother was. Id. at 87. Ms. Lopaze noted that Child is doing
well in foster care. Id. at 69. She opined that it would be in Child’s best
interest for the parental rights of Mother and Father to be terminated. Id.
at 88-89.
- 12 -
J-A07014-15
Psychologist Dennis Kashurba testified as an expert in bonding studies
between parents and their children. N.T., 7/14/14, at 12-14. Mr. Kashurba
explained that he was unable to observe the Child with Father or Mother, as
Father was incarcerated, and Mother failed to appear for her scheduled visit.
Id. at 16. However, Mr. Kashurba noted that the bond between Child and
his foster parents “seems to be quite appropriate,” and that the foster home
was “more than adequate.” Id. at 18. Mr. Kashurba stated that Child had
been in the foster home since he was approximately three months old, and
that he would view his foster parents as his “mom and dad.” Id. at 19. Mr.
Kashurba opined that it would be a detriment to Child’s development to
remove him from his current placement. Id. at 21. Mr. Kashura further
opined that the parental rights of Mother and Father should be terminated,
and that this would not have a negative impact on Child. Id. at 21. Mr.
Kashurba noted that he has “no information to suggest” that Child has a
bond with either Father or Mother, and that it is unlikely that the parents will
be able to develop a parent/child relationship with Child within a reasonable
amount of time.2 Id. at 20-25.
Father, who still was incarcerated at the time of the hearing and
testified by phone, indicated that he has criminal records in seven
Pennsylvania counties: Allegheny, Blair, Cambria, Fayette, Indiana,
2
In his psychological bonding study, admitted during the hearing as Exhibit
F, Mr. Kashurba reported that Child’s foster father “reiterated that he and his
wife wish to be considered as adoptive parents for [Child] ….” Exhibit F at 4.
- 13 -
J-A07014-15
Somerset, and Westmoreland. Id. at 114.3 Father has been convicted of a
variety of criminal offenses, including retail theft, fleeing and eluding police,
simple assault, tampering with evidence, criminal trespass, public
drunkenness, disorderly conduct, possession of drug paraphernalia, and drug
possession. Id. at 114-18. Father also conceded that he has a drug
problem. Id. at 119. According to Father, he previously completed a drug
rehabilitation program, which he attended from “November -- I believe 13th
to early December” of 2012. Id. at 105, 113. Father claimed that
“somehow CYS contacted the Welfare Office and had my insurance
terminated,” and that these “insurance issues” prevented him from getting
into treatment sooner. Id. at 110, 112. Father admitted that he failed to
complete the recommended follow-up treatment, but insisted that “[w]e
don’t have 90 and 90 in Johnstown,” and that he did the best he could by
attending four Narcotics Anonymous and/or Alcoholics Anonymous meetings
per week. Id. at 119. Father was incarcerated shortly after he completed
treatment, “in the beginning of January.” Id. at 113. Father’s last visit with
Child took place in October of 2012, and lasted five minutes. Id.
Father further testified that he participated in “the therapeutic
community while incarcerated here, which is another alcohol and drug
treatment,” and that he also attends Narcotics Anonymous, Alcoholics
Anonymous, and “Smart Recovery” meetings on a weekly basis, as well as
3
Father neglected to mention his prior conviction in Cumberland County,
which would bring the total to eight. N.T., 7/14/14, at 117.
- 14 -
J-A07014-15
parenting classes. Id. at 105-06. Father indicated that he would be
released from incarceration on approximately September 10, 2014, and that
he would immediately report to a “Community Correction’s Residency Center
for alcohol and drug treatment, which can range anywhere from 14 to 90
days.” Id. at 105, 123-25.
Grandmother testified that Father loves Child, and that she would
assist Father in caring for Child upon his release. Id. at 134-35.
Grandmother conceded that Father has a drug problem, that he has been in
rehabilitation programs “[m]ultiple times,” and that he continues to relapse.
Id. at 138.4
Accordingly, the record confirms that CYS presented clear and
convincing evidence to support the termination of both parents’ parental
rights. With respect to Section 2511(a)(8), Child was removed from the
care of Mother and Father on May 31, 2012. At the time of the July 14,
2014 termination hearing, Child had been in the custody of CYS for over two
years. As acknowledged by the orphans’ court, Child was removed due to
drug use, and it was incumbent on both parents to remedy this problem, or
at least get it under control, in order to regain custody of Child. Neither
parent did so. Mother’s final drug test with CYS, which took place on April 2,
4
Grandmother also testified that she considered acting as a kinship
placement for Child. N.T., 7/14/14, at 133. Following Grandmother’s
testimony, Ms. Palguta and Ms. Lopaze were recalled as witnesses, and
testified concerning CYS’s consideration of Grandmother as a possible
kinship placement. Id. at 145-49.
- 15 -
J-A07014-15
2013, was positive for opiates and cocaine. While Mother underwent a drug
evaluation at Twin Lakes, CYS did not receive any confirmation that she
completed drug treatment. The record is simply devoid of evidence that
Mother remedied the conditions which resulted in Child’s placement.
Similarly, Father admitted during the hearing that he has a drug
problem. While Father completed an inpatient drug treatment program in
late 2012, Father did not complete the recommended follow-up treatment,
including intensive outpatient counseling, prior to his incarceration.
Moreover, the record does not suggest that Father was able to complete
adequate, or equivalent, drug treatment during his time as an inmate. To
the contrary, Father testified that he was going to be released from
incarceration directly into a facility where he would receive an additional 14
to 90 days of treatment. Thus, at the time Father received notice of the
termination petition in this matter, he too had failed to remedy the
conditions which resulted in Child’s placement.
Additionally, it would best serve the needs and welfare of Child to
terminate the parental rights of Mother and Father. Child is doing well with
his foster family, which has cared for and bonded with Child for years. In
contrast, Mother and Father have spent a significant portion of this time
incarcerated, or otherwise absent from Child’s life. Father in particular
appears to be incorrigible, as he has an 18-year criminal history spanning
numerous Pennsylvania counties. As this Court has stated, “a child's life
- 16 -
J-A07014-15
cannot be held in abeyance while a parent attempts to attain the maturity
necessary to assume parenting responsibilities. The court cannot and will
not subordinate indefinitely a child's need for permanence and stability to a
parent's claims of progress and hope for the future.” In re Adoption of
R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
With respect to Section 2511(b), it is apparent that Child has little, if
any, bond with his parents. Child was removed from his parents’ care when
he was about three months old. At the time of the termination hearing,
Child had not visited with Mother since June of 2013, and Child had not
visited with Father since October of 2012. Mr. Kashurba testified that it
would not be detrimental to Child if the parental rights of Mother and Father
were terminated. Mr. Kashurba opined, however, that Child would suffer
harm if removed from his current foster placement.5 Again, it is abundantly
clear that termination would best serve the needs and welfare of the Child.
While the orphans’ court observes that CYS did not adjust Father’s
reunification goals to accommodate his incarceration, nothing in the
Adoption Act supports the court’s position. Notably, in its opinion
5
The orphans’ court did not address Section 2511(b), except to state in its
opinion pursuant to Pa.R.A.P. 1925(a) that it placed “little weight” on Mr.
Kashurba’s testimony because, inter alia, Mr. Kashurba “did not have any
basis with which to evaluate the natural parent bonding inasmuch as
[F]ather was incarcerated and [M]other’s whereabouts were unknown.”
Orphans’ Court Opinion, 11/5/14, at 3. To the extent the orphans’ court
concluded that termination would not be in Child’s best interest, we conclude
that the court abused its discretion by reaching a decision that was
unreasonable and unsupported by evidence of record.
- 17 -
J-A07014-15
accompanying the subject order, the orphans’ court discussed and relied
upon In re D.C.D., 91 A.3d 173, 179 (Pa. Super. 2014), reversed, 105 A.3d
662 (Pa. 2014), in which a panel of this Court stated that an agency must
first make reasonable efforts to reunify a parent with his or her child before
filing a petition to terminate parental rights. D.C.D. recently was reversed
by our Supreme Court. We have discussed the Supreme Court’s decision as
follows:
In In re D.C.D., 105 A.3d 662 (Pa. 2014), our Supreme Court
analyzed the language of Section 2511(a)(2) of the Adoption
Act, as well as Section 6351 of the Juvenile Act, 42 Pa.C.S.A. §
6351. The Court reasoned that, while “reasonable efforts may
be relevant to a court’s consideration of both the grounds for
termination and the best interests of the child,” neither of these
provisions, when read together or individually, requires
reasonable efforts. The Court also concluded that reasonable
efforts were not required to protect a parent’s constitutional
right to the care, custody, and control of his or her child. While
the Supreme Court in D.C.D. focused its analysis on Section
2511(a)(2), we find the Supreme Court’s reasoning equally
applicable to Section 2511(a)(8). Like Section 2511(a)(2),
nothing in the language of Section 2511(a)(8) suggests that
reasonable reunification services are necessary to support the
termination of parental rights.
In re Adoption of C.J.P., 2015 WL 1668310 at *7, 2015 Pa. Super. LEXIS
181 at *21 (Pa. Super. 2015) (some citations omitted).
Critically, our Supreme Court in D.C.D. observed that “the remedy for
an agency’s failure to provide services is not to punish an innocent child,
by delaying her permanency through denying termination, but instead
to conclude on the record that the agency has failed to make reasonable
efforts ….” 105 A.3d at 675 (citations omitted, emphasis added). Here, the
- 18 -
J-A07014-15
orphans’ court’s opinion reveals that it did precisely what our Supreme Court
has instructed that courts should not do, i.e., not giving due regard to Child
for the perceived failings of CYS.
Accordingly, because we conclude that the orphans’ court abused its
discretion by denying CYS’s petitions to terminate the parental rights of
Mother and Father, we reverse. We remand this matter for the orphans’
court to enter decrees terminating the parental rights of both Mother and
Father pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b).
Order reversed. Case remanded for further proceedings consistent
with this Memorandum. Jurisdiction relinquished.
Judge Mundy joins this memorandum.
Judge Lazarus files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
- 19 -