J-S13015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.G.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.C.R., NATURAL FATHER
No. 1121 WDA 2018
Appeal from the Order Entered July 17, 2018
In the Court of Common Pleas of Butler County
Orphans' Court at No(s): OA NO. 27 of 2018
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER,*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 16, 2019
M.C.R. (Father) appeals from the order, dated July 12, 2018, and
entered on July 17, 2018, that involuntarily terminated his parental rights to
his son, L.G.R. (Child), born in August of 2016.1 After review, we affirm.
On appeal, Father’s brief contains the following two questions for our
review:
1. The [c]ourt erred when it neither allowed nor considered testimony and
evidence concerning Father’s reunification efforts or explanation for lack
thereof after the date Children and Youth Services filed its [p]etition for
[i]nvoluntary [t]ermination. Father contends that 23 Pa.C.S. §
2511(b)[] preclusion from considering such testimony and evidence
violates right to due process under the Pennsylvania and United States
Constitutions.
2. The [c]ourt erred when it did not allow rebuttal testimony or evidence
from Father that his failure to make progress towards reunification was
due to violation of his due process rights in his Allegheny County criminal
case.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1J.N.G. (Mother) signed a consent to adoption in February of 2018 and has
not filed an appeal, nor is she a party to the instant appeal.
J-S13015-19
Father’s brief at 11. Father combines his arguments as to both issues into
one in the argument section of his brief.
We review an order terminating parental rights in accordance with the
following standard:
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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). The burden is upon the petitioner to prove
by clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid. R.N.J., 958 A.2d at 276. Moreover,
we have explained that:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C. & 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
-2-
J-S13015-19
the record could also support the opposite result. In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa. Super. 2003).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the comprehensive opinion authored by the Honorable
Kelley T.D. Streib of the Court of Common Pleas of Butler County, filed on
November 8, 2018. We have also reviewed Judge Streib’s Findings of Fact
and Memorandum, issued on July 12, 2018, and incorporated into the opinion
filed pursuant to Pa.R.A.P. 1925(a)(2). We conclude that Judge Streib’s well-
reasoned opinion properly disposes of the issues raised by Father. Of
particular note, Judge Streib pointed out that Father was not precluded from
producing any testimony or evidence at the termination hearing and that all
evidence and testimony presented was considered. Moreover, Judge Streib
emphasized Father’s failure to contact or take advantage of his liberal
visitation schedule that was in place even before his incarceration began.
Additionally, we agree that it is evident that Father’s incarceration was not the
sole basis for the termination of his parental rights. Accordingly, we adopt
Judge Streib’s opinion as our own and affirm the order appealed from on that
basis.2
____________________________________________
2 Father should also be aware that we could find his constitutional challenge
to the language contained in 23 Pa.C.S. § 2511(b) to be waived for failure to
give notice to the Pennsylvania Attorney General. See Pa.R.A.P. 521 (relating
to notice to attorney general of challenges to constitutionality of statute);
Pa.R.C.P. 235 (same); Fotopoulos v. Fotopoulos, 185 A.3d 1047, 1055
(Pa. Super. 2018) (finding waiver of husband’s constitutional challenge to a
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J-S13015-19
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2019
____________________________________________
rule regarding the allowance of testimony by electronic means where there
was no indication that husband gave notice to the state attorney general and
his argument on appeal was poorly articulated and woefully underdeveloped).
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®
Filed 1/14/2019 12:22:00 PM Superior Court Western District
1121 WDA 2018
IN THE COURT OJI' COMMON PLEAS OF BUTLER COUNTY, PENNSl'LVANIA
ORPHANS' COURT
IND: :
LG.R. O.A. No. 27 of 2011
.................................................................................
J925{•X2l MASQRANDJJM QPINION
M.R. ("Fa1her"} filed his notice of appeal on August 9, 2018. Father is appealing the
Decree of Termination of Parental Rights dated July 12, 2018, and docketed on July 17, 2018.
At the termination of parental rights hearing, Father, incarcerated at tho time, 8Pl)C81'ed alongside
his court-appointed counsel. The date of entry of this Court's decree temrinating father's
parental rights is July 17. 2018. See Pa.R.A.P. 108(b), The decree temrinating Father's parental
risJrts 1o L.R. ("Child") was properly served. Attached is the Fmdings of Fact and Memorandum
dated July lZ 2018 which is incorporated herein.
When reviewing an appeal from a decree terminating parenta1 rights, the standard of
review is "Well-sculed:
The standard of review in termination of parental rights cases requires appellate
courts to accept the findings of fact and credibility detaminatiom of 1hc trial
court if they are supported by the record. If the factual ffnctinp are supported,
appellate com1$ review to determine if the trial court made an enor of law or
abused its discretion. A decision may be reversed for an abuse of diacrction only
upon demomtration of manifest unreasonableness, partiality, prejudice, bias, or
m..wn1. The trial court's decision, however, should not ·be reversed merely
because the record would support a. different result. We � previously
emphasb:cd our deference to trial courts that often have first.:Jumd observations of
the parties spanning multiple hearings.
111 r, M.Z.1.M.W., 163 A.3d 462, 464 (Pa. Super. 2017).
Father sets forth 1hc following in his concise statement to matters:
1. The Court erred when it neither alloww:d nor considered 1esthnony and evidence conceming
Father's reunification efforts or explanation for lack theffl>f after the date Children and Youth
:r ·-.•t 1 1·.
Services filed its Petition for Involuntary Termination. Father contends that 23 Pa.C.S. §2511 (b)
preclusion from considering such testimony and evidence violates his right to due process
under the Pennsylvania and United States Constitutions.
2. The Court erred when it did not allow rebuttal testimony or evidence from Father that his failure
to make progress towards reunification was due to violation of his due process rights in his
A11egheny County criminal case.
Father's Concise Statement at 1-2.
The Court will first address Father's Concise Statement 2. Father asserts that "the Court
erred when it did not allow rebuttal testimony or evidence from Father that his failure to make
progress towards reunification was due to violation of his due process rights in his Allegheny
County criminal case." The record does not support Father's claim. At no time did Father's
counsel attempt to introduce rebuttal testimony or evidence. At no time did the court preclude
Father's counsel from introducing any evidence or testimony as to Father's progress. Father's
;r;--c
counsel called two witnesses at trial, Maternal Grandmother, I I 5 , and Father. The
Court sustained two objections as to relevance of testimony on Act 101. Otherwise, all of
Attorney Magnusen's questions and answers were entered into the record. All of Father's
testimony was entered into the record. Father's three exhibits were admitted into the record.
Following Father's testimony the Court inquired: "anything else you want to present to the
Court, Ms. Magnusen?" She responded, "no, ma'am." (T.p. 118 L. 13�15)
The Court permitted all of Father's evidence and testimony. The Court heard and
considered Attorney Magnusen's legal argument.' The Court permitted all of Attorney
1
The Court entertained Attorney Magnusen's legal argument set forth in the transcript. p, 97 L 21 through p. JOO L
25. The Court found the argument Irrelevant (or without merit) to the instant issue. However, the Court permined all
evidence including Father's criminal docket Into the record.
2
Magnusen's cross-examination of other witnesses into the record. At the conclusion of trial,
Attorney Magnusen did not argue or raise any issue as to additional evidence or testimony. There
is nothing in the record to support Father's Concise Statement 2.
In Father's Concise Statement 1, Father asserts two issues. The first is that the Court did
not allow or consider testimony and evidence of Father's reunification efforts after the date of
the filing of the Petition. He also asserts that portions of 23 PaC.S. §251 l(b) are
unconstitutional.
As to Father's assertion that the court did not "allow" testimony and/or evidence of
Father's reunification efforts, the Court would incorporate the explanation set forth above as to
Concise Statement 2. At no time was Father precluded from offering testimony or evidence on
the record.
The Court did consider all of the evidence and testimony placed on the record.' The
Court is unclear as to Father's argument to the first half of Concise Statement 1, but will attempt
to address all possible averments.
The Petition for Involuntary Termination of Parental Rights of Natural Father, ••••211 2
/II,&, e. , was docketed April 9, 2018 which alleged that Father had not completed
all goals set forth in Child's permanency plan, specifically that Father failed to complete court
ordered services within the time frame set forth under the Adoption and Juvenile Acts and that
his continued incarceration clearly evidence that he could not or would not timely remedy the
conditions which led to Child ts placement. Father was served with notice on May 24, 2018.
2
Father did not assert in his Concise statement of Matters Complained of on Appeal that the Agency failed to prove
by clear and convincing evidence all elements of23 Pa.C.S.A. § 2511 (a)( I), (2), (5), (8) and ( I l). Therefore, this
Court will not address its analysis under §25 I I(a).
3
Firstly, Father's post-petition filing reunification efforts are specifically prohibited under
§251 l(b) as to sections 251 l(a)(l) and (8) in the instant matter.
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)( I),
(6) or (8), the court shall not consider any efforts by the parent to remedy the conditions
described therein which are flrst initiated subsequent to the giving of notice of the filing
of the petition.
23 Pa.C.S.A §251 l(b)
Secondly, as to §251 l(a)(2), (5), and (11), the Court should consider all efforts on behalf
of Father in its analysis pursuant to §2511 (b) as they would relate to the developmental, physical
and emotional needs and welfare of the child. This could also include the bond between parent
and child as well as what negative impact, if any, the termination of parental rights would have
on Child. In the instant matter, the Court gave full consideration to all of the above.
The Court gave significant weight to Father's lack of contact with Child. Child was
detained by the Butler County Children and Youth Agency on August 23, 2016. For the next four
months, Father visited Child regularly as per the Child's permanency plan which permitted visits
between Father and Child two times per week for two hours at a time. However, in 2017, prior to
Father's incarceration, his attendance at scheduled visits became sporadic. Father visited one
time out of eight opportunities in February, 2017. Father visited twice out of eight opportunities
in March. Father visited four out of possible eight opportunities in April. Father did not attend
4
' .
any visits in May.3 Father visited once in June, July and August with an opportunity for twenty
four visits total. Again, Father did not attend any visits in September, and one visit in October
prior to his arrest He had the opportunity for three other visits in October before his arrest that
he did not attend. Some of the above visits lasted only minutes. During 2017, Father did not have
any other contact with Child through telephone calls, cards, letters, pictures, or gifts.
Likewise, from the time of Father's incarceration on October 16, 2017 until the date of
trial, June 4, 2018, Father made no attempts to maintain a relationship with Child through cards,
letters, pictures, or gifts from prison. Father did not present any evidence that he was prohibited
from doing so.'
From August 23, 2016 to June 4, 2018 Father had sporadic supervised visits with Child.
Otherwise, Father has no contact or connection with child. During this time, Child was fifteen
days old to approximately twenty-two months old. Father and Child did not live as an intact
family. There was no evidence of a positive bond between Child and Father. While visits
between Father and Child were appropriate and went well, there was no evidence that the bond
between Father and Child was any more than that of an uncle or family friend. There was no
evidence of a negative bond between Father and Child.
There was, however, evidence of a positive bond between Child and the Maternal
Grandmother and Step-Grandfather. Also, Child lived with two half-siblings with whom Child
l Father was hospitalized for 14 days from May 4· 18, 2017, and could not participate in visitation with Child. Father
also testified that he did not visit with Child in May for fear of Child becoming 111. Father was still addressing his
recovery in late June, 2017.
4
Exhibit I reflects Father filed a Motion for use of Tablet for Work to Confinn Visit with Natural Son In Foster
Care on or about February 22, 2017, approximately four months after his incarceration which was denied on March
17, 2017
5
had a positive and loving bond. Child is thriving in the current placement and is involved in
family activities. Child is up-to-date in medical care. Child is safe in the current placement.
Given all of the above, the Court concluded that to terminate Father's parental rights
would best meet the needs and welfare of Child. The Court further concluded that the harm, if
any, to Child in terminating Father's parental rights was outweighed by Child's need for
permanency and a loving and stable home.
Father's attorney argues that the court should consider Father's reunification efforts prior
to and post petition. Her argument was that Father was arrested on October 16, 2017 for an
alleged probation violation and that his Gagnon I hearing was timely held on October 27, 2017.
Following that hearing, Father hired an attorney who filed "numerous motions" in Allegheny
County including a Writ of Habeas Corpus. Father argued to the criminal court that he needed to
be released from custody so that he could continue to reunify s with his child. Father was not
released, and the Gagnon II hearing was held on or about April 17, 2018. Father was then
sentenced to one to three years incarceration.
The only evidence of Father's reunification "efforts" post-petition was Father's criminal
attorney attempting to get his Gagnon II hearing scheduled earlier and Father's requests to be
released from custody. The court does not find that these steps provide evidence of Father
progressing toward the goals set forth in the Child's permanency plan. Father never disputed the
probation violations which led to his arrest on October 16, 20 I 7. If true, these violations would
in fact demonstrate that Father had made no progress toward reunification. Rather, Father argues
that the sentencing which occurred at his Gagnon IJ hearing was not timely and that the
aggravated factors applied were not applicable.
s The goal for Father and Child at the dependency matter was reunification.
6
In essence, Father argues that he ran out of time. However, he did not present evidence
that he was progressing to a point that he and Child were close to reunification and closing the
dependency matter. In fact, in his Concise Statement Father did not dispute that there was clear
and convincing evidence sufficient to meet §2511 (a) which is the part of the statute focused on
the actions of Father. Section 251t(b) is focused on the relationship between Father and Child
and considering the needs and welfare of Child.
Father is asking the Court to speculate that if he had been released sooner on his
probation violation sentence, that he would have been able to successfully progress toward the
timely closure of the dependency matter. The Court cannot so speculate, and the record does not
support that position.
Father's next argument in his Concise Statement I is that portions of §251 l(b) are
unconstitutional. The relevant portions of the statute state, "with respect to any petition filed
pursuant to subsections (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." This Court did not consider Attorney Magnusen's
constitutional argument since it was not raised at the trial.6 Father testifies that he wilJ appeal the
termination of his rights and continue to appeal because he wants to remain in his child's life.
Then the testimony turns specifically to the goal change which is scheduled at the dependency
docket concurrent with the Orphan's Court matter.
Q. And what would be your reaction to that?
A. I think the law needs changed.
Q. Did we discuss the constitutionality of that law?
6
Attorney Magnusen asked her client lf he "felt" the law was unconstltuttonal.
7
Mr. Montgomery: Again, that type of an argument, I am going to object as
relevant for - - there is no relevance in this courtroom. I mean, that would be, I guess, an
argument on appeal.
Ms. Magnusen; Your Honor, that is an argument on appeal, but I have to
establish something in this court in order to argue it on appeal.
The Court: Go ahead, Ms. Magnusen,
Ms. Magnusen: Thank you.
Q. Do you feel that law is unconstitutional?
A. Yes.
Q. And didn't we discuss that the Motion for Goal Change could be filed whenever CYS
wanted to; it doesn't necessarily have to be at the end of the case?
A. Yes.
Q. And what feelings did you express to me about the constitutionality of that?
A. Well, what happened to the first 12 months I wasn't incarcerated, you know? And then
just - I'm getting out of jail. My minimum is in four months.
Q. Your release date is October?
A. 16th. You know, to say that you can't be involved with your son by legal statute just
because I'm incarcerated for another four months is kind of crazy to me.
Q. So you want to test that-
A. Absolutely.
Q. - constitutionality of that law?
A. Yes.
T.p. 105 L 17- p. 107 L 1
8
Throughout the latter part of the exchange Attorney Magnusen is clearly referencing the
law relevant to goal changes in juvenile dependency matters. She clearly stipulates that the
relevancy of the testimony is to establish grounds for appeal.7 At no time prior to the close of
trial does Attorney Magnusen raise the constitutional issue that some or part of 23 Pa.C.S.
§2511 (b) is unconstitutional, nor did she argue that the Petition should be denied on those
grounds. Additionally, Father's parental rights were not terminated solely because he was
incarcerated as his testimony reflects. Rather, the Court gave futl consideration to all Father did
and did not do from the time of child's detention to the termination hearing. Father's counsel did
raise a constitutional argument at the start of trial requesting that the Petition be dismissed as
violative of his due process rights. Specifically, Attorney Magnusen argued:
MS. MAGNUSEN: Well, the involuntary termination is based on a statute, as you well
know, that only gives 12 to 15 months for reunification. If the parent is incarcerated, no matter
how well they did at the beginning, even if they get incarcerated at the last week before the
hearing, they cannot reunify. He clearly cannot take the child because is incarcerated. Whereas
parents who are not incarcerated don't have - they have a chance at least to have the hearing and,
at the hearing, be reunified with their child. My client doesn't just for the simple fact that he is
· incarcerated.
THE COURT: How is that violative of his due process rights?
MS.MAGNUSEN: He does not have the due process of completing the reunification
plan which is entered as an Order of Court. So -
T. p. 6 L17- p.7. L7
7
Father did not file an appeal to this Court's Order at DP No. 51 of20J6 on July 13, 2018 changing the goal.
9
That specific due process argument was not raised in Father's Concise Statement of Errors
Complained on Appeal, thus, it is waived.
Lastly, Father asserts that a portion of §2511 (b) "violates his right to due process".
Undoubtedly, the tennination of parentaJ rights implicates a parent's Fourteenth Amendment
right to due process. Ste In the Interest of A.P., 692 A.2d 240, 242 (Pa. Super. 1997) (stating
that parents have a "fundamental liberty interest .•. in the care, custody, and management of
their children") (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). An individual whose
parental rights are to be terminated must be given due process of law, as the termination of
parental rights is a constinnionally-protected act See In rt Interest ofK.B., 763 A.2d 436, 439
(Pa. Super. 2000) (citing Santosky, supra). In the instant matter, Father's due process rights were
not violated.
For all of the above-stated reasons, the Court requests that this Court affirm the order
dated July 12, 2018, terminating Father's parental rights to Child.
The Butler County Clerk of Orphans' Court is hereby directed to transmit the record to
the Superior Court of Pennsylvania immediately.
BY THE COURT:
Kell
Bme
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.,
IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA
ORPHANS' COURT
IN RE:
L.G.R. O.A. No. 27 of 2018
FINDINGS OF FACT AND ORDF.R OF COURT
AND NOW, this 12th day of July, 2018, following a full hearing on the Involuntary
IJ/d.,, e.
Tennination of Parental Rights of Natural Father, •••••••••• (''Father"), the
Court makes the following findings of fact,
Petitioner is Butler County Children and Youth Services Agency ("Agency"). Father
at/J . (Jr;
appeared and was represented by counsel. Natural Mother, (''Mother").
appeared and was represented by counsel. Mother executed an Adoption Consent I on February
27, 2018. L.0.R. ("Child11) was born on August •. 2016.
On August 23, 2016, the Agency detained Child, and Child was adjudicated dependent on
August 31, 2016, due to concerns that Motlier was using illegal substances at the time of Child's
birth. Al the Adjudication hearing on August 31. 2016. Father made the following admission:
a. That he is the Natural Father of'jhe Minor Child;
b. That he was not under the influence of any drugs or alcohol affecting his
decision making;
c. That he can read, write[,] and understand the English language:
d. That he has read the amended (Dependency) Petition and reviewed the contents
with his Counsel prior to the hearing:
e, That he understands the contents of the amended I Dependency] Petition;
23 Pa.C.S.A. § 271 l(a).
f. That he understands thal he has a right to a hearing requiring the Agency to
prove the allegation by clear and convincing evidence;
g. That he specifically admitted to the following: lt)ha1 he acknowledged paternity
of the Minor Child at the hospital and expects his name to be on the birth
certificate; that he was aware that the Minor Child, while at the hospital, tested
positive for Suboxone, cocaine, and THC; that he was aware that the Minor Child
was transferred to a-iother hospital and treated for Neonatal Abstinence Syndrome
with morphine; and, he has two misdemeanor charges for Indecent Assault
pending , .. and a prior conviction for selling pornography;
h. That he understands by making this admission he is ijiving up the right to a
hearing;
i, Thal there was no threats or promises made to him for this admission;
j. That he enters this admission voluntarily: and
k. That he is satisfied with the representation he has received from his Counsel.
Master's Supplemental Findings and Recommendations as to Adjudication Hearing of August
11, 2016, at 3-4 (unnumbered).
At the time of Child's detention, father was facing multiple felony charges. On January
18, 2017, Father was convicted of Corruption of Minors2 and Indecent Assault of a Person Less
than 16 years of Age3 and he was sentenced to five years' probation and required to register as a
tier 2 Megan's Law offender for twenty five years. Se« Exhibit 2. Father was also prohibited
from using the internet.
At the outset of the case, Father regularly attended the supervised visitation with Child at
the Kinship home, and visits went well. Visits were to occur two times per week for two hours
at a time. However, Father's attendance to visitation throughout 2017 became sporadic. Father
attended one visitin February, two visits in March, four visits in April, no visits in May, one visit
18 Pa.C.S.A. § 6301 .
.)
18 Pa.C.S.A. § 3126(a)(8}.
2
in June. one visit in July. one visit in August, no visits in September, and one visit in October.
The Court notes lhal Father was hospitalized for a two-week period in May 2017. which
contributed to his inability to attend visitation during May and June. Father's last visit with
Child was on October J3, 2017.
On October 12, 2017, it was reported that Father had been around children, in direct
violation of his probation. Father was arrested at his home on October 16, 2017. At the lime of
his arrest, Father's probation officer recovered internet accessible devices at his home.
Following his arrest. Father tested positive for cocaine, and he was subsequently sentence to one
to three years' incarceration for violating his probation. Father is currently incarcerated at the
Allegheny County jail, and his earliest possible release date is October 16, 2018. The Agency
has not received any cards, letters, or glfls for Child on behalf of Father during his incarceration.
Child and Child's two half·siblings were placed with Maternal Grandmother and Step-
;:r;r: te:r:
Grandfather, •-•••11111i1• on August 24, 2016, where they arc all cared for and
bonded with the Kinship providers. Child is doing well in his current placement and is involved
in_ family activities and benefits from ample family engagement Child is safe in his placement
and up-to-date regarding any and all medical and educational appointments. The Kinship
providers are ready, willing, and able to adopt Child.
LEGAL STANDARD
The Agency liJed the present petition against Father on Ar,ril 9, 2018, pursuant to 23
Pa.C.S.A. §§ 251 l(a)(l),(2). (S), (8), and (I I). The grounds for involuntary tennination of
parental rights are set forth in Section 25 J J (a), Title 23 of Pennsylvania Consolidated Statutes
which provides in pertinent part:
(a) General rule.s-The rights of a parent in regard to a child may be terminated
after a petition filed on any of the following grounds:
3
. '
'•
.
(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 core, 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
wider a voluntary agreement with an agency for a period of at least six
months, the conditions which Jed to the removal or placement of the child
continue to exist, the parent cannot or wilJ 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, I twelve) 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.
(1 J) The parent is required to register as a sexual offender under
[42 Pa.C.S.A. § 9799.10 cl seq. I or to register with a sexual offender
registry in another jurisdiction or foreign country.
23 Pa.C.S.A. §§ 251 l(a).
"It is well-established that a court must examine the individual circumstances of each and
every case and consider all explanations offered by the parent to determine if the evidence in
light of the totality of the circumstances clearly warrants the involuntary termination." In rt
4
E.D.M., 708 A.2d 88, 91 (Pa. 1998}. Moreover, an appellate court need only lo agree with a trial
court's decision as to any one subsection allowing for termination of parental rights in order to
affirm termination of parental rights. 111 rtS.M.B., 856 A.2d 1235, 1240 (Pa. Super. 2004).
Once statutory grounds for termination of parental rights have been met, the Court must
then consider whether tennination serves the needs and welfare or the chi Id. One major aspect
of the needs and welfare analysis concerns the nature and status of the emotional bond between
parent and child. In re C.LF., 956 A.2d 999 (Pa. Super. 2008). In reviewing the nature and
status of the emotional bond, the Court may consider any evidence relevant to the issue. /11 rt
Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006).
LF.GAL A�AI.VSIS
The Court holds that based upon the facts. clear and convincing evidence was presented
lo allow for a tcnnination as to 23 Pa.C.S.A, §§ 2S 11 (a)( 1). (2), (5), (8), & (11 ). The credible
and undisputed facts indicate by clear and convincing evidence that Child has been removed
from Father's care since August 2016. Since Child's removal from the home. Father's
participation in services and visitation has been sporadic. A� a result. Father has failed 10 make
any progress towards reunification. Furthermore, Fa1her has not attempted to contact Child by
telephone or other means since Father's incarceration in November 2017. As a result, the Court
finds that the conditions which led to Child's removal continue lo exist and are not likely to be
remedied within a reasonable period of time. Therefore, it is by clear and convincing evidence
that the statutory grounds of§§ 251 l(a)( I). (2), (5), & (8) have been met.
To meet the requirements of section 251 J(a)( 11 ), the this Court must 11nd by clear and
convincing evidence that Father is required lo register as a sexual offender under 42 Pa.C.S.A. §
9799.10 et seq. or to register with a sexual offender registry in another jurisdiction or foreign
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country. See 23 Pa.C.S.A. § 2511 (a)( 11 ). To that end, the record is clear that Father is required
to register as a sexual offender as result of his Corruption or Minors and Indecent Assault of a
Person Less than 16 years of Age convictions on January 18, 2017. Therefore, it is by clear and
convincing evidence that the statutory grounds of§ 2511 (a)( 11) have been met.
Having found that the statutory grounds of§ 2511 (a) have been met. the Court turns to a
review of whether terminating Father's parental rights would meet the needs and welfare of
Child. To that end, Child has been living in a pre-adoptive home with his half-siblings since
August 2016, where he is bonded with the Kinship family. Child is included in family activities
and maintains relationships with the maternal side of the family. Child attends family activities
and other family events.
Child is bonded with the pre-adoptive Kinship family. Furthermore, Father has not
visited Child since October 2017 and has had little to no contact with Child. The undisputed
evidence demonstrates that termination of Father's parental rights would best serve the needs and
welfare of the Child. The Court has given primary consideration to the developmental. physical.
and emotional needs and welfare of Child and determines that the needs and welfare of Child are
best met by the termination of Father's parental right. As such. it is in Child's best interest that
Father's parental rights are terminated, Therefore, Fatbers parental rights are hereby terminated
and the Court enters the following;
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