J-S57021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.L.W., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: J.L.W., JR., FATHER : No. 1004 MDA 2019
Appeal from the Decree Entered May 28, 2019
In the Court of Common Pleas of Columbia County
Orphans’ Court at No: 182-OC-2018,
CP-19-DP-0000045-2016
IN THE INTEREST OF: D.A.L.W., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: J.L.W., JR., FATHER : No. 1005 MDA 2019
Appeal from the Decree Entered May 28, 2019
In the Court of Common Pleas of Columbia County
Orphans’ Court at No: 2018-OC-0000180-RT,
CP-19-DP-0000044-2016
IN RE: L.D.R.W., A MINOR : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
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APPEAL OF: J.L.W., JR., FATHER : No. 1006 MDA 2019
Appeal from the Decree Entered May 28, 2019
In the Court of Common Pleas of Columbia County
Orphans’ Court at No: 181-OC-2018,
J-S57021-19
CP-19-DP-0000046-2016
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 27, 2020
J.L.W., Jr. (“Father”), appeals from the decrees entered May 28, 2019,
which terminated involuntarily his parental rights to his daughters, D.A.L.W.,
born in October 2010, J.L.W., born in March 2014, and L.D.R.W., born in
November 2015 (collectively, “the Children”).1 After careful review, we affirm.
The record reveals that Columbia County Children and Youth Services
(“CYS”) obtained emergency custody of the Children on August 15, 2016.
N.T., 5/1/19, at 18. CYS obtained custody because Mother was residing with
“an alleged perpetrator”2 and because she admitted to using two bags of
heroin earlier that day. Id. In addition, Father was unavailable to care for
the Children because he lacked appropriate housing. Id. The juvenile court
entered shelter care orders on August 22, 2016, and adjudicated the Children
dependent on September 19, 2016.
Following the adjudication, Father visited the Children and participated
in parenting classes through the Time Limited Family Reunification program.
Id. at 30, 50, 88-89; Exhibit CYS-P (visitation log). This arrangement did not
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1The orphans’ court entered decrees that same day confirming the consent of
F.A.W. (“Mother”) and terminating her parental rights voluntarily. Mother did
not file an appeal.
2 CYS’s applications for emergency protective custody specified that Mother
was residing with an alleged perpetrator of child sexual abuse. CYS averred
that the alleged victim of the abuse was one of Mother’s other children, who
is not involved in this appeal.
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last long, however, as Father was incarcerated in May 2017. N.T., 5/1/19, at
52. He pled guilty in October 2017 to a charge of possession with intent to
deliver a controlled substance. N.T., 5/1/19, at 53; Exhibit CYS-I (Father’s
criminal docket). Father reported that he could be released from incarceration
as early as January 2020, assuming that he did not commit any disciplinary
infractions. N.T., 5/1/19, at 64, 107, 117, 136, 140.
Meanwhile, Father requested visits with the Children while incarcerated
at the county jail. Id. at 57, 81. Father requested visits in June 2017 but the
visits did not begin until CYS received a necessary court order in August 2017.
Id. at 81. Father’s visits ended after he was transferred to state prison in
February 2018. Id. at 57. Following the transfer, CYS arranged for Father to
have twice-weekly phone calls with the Children. Id. at 57-58. In addition to
the phone calls, Father began sending the Children letters and artwork, and
contacted the CYS caseworker to inquire about the Children. Id. at 60, 63.
CYS filed petitions to terminate Father’s parental rights to the Children
involuntarily on September 25, 2018. The orphans’ court conducted a hearing
on May 1, 2019. Father remained incarcerated at the time of the hearing and
participated using a videoconferencing system. Father also received court-
appointed counsel. Thereafter, the court entered decrees terminating Father’s
rights on May 28, 2019. He timely filed notices of appeal on June 24, 2019,
along with concise statements of errors complained of on appeal.
Father now raises the following claims for our review:
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A. Did the [orphans’ c]ourt commit an error of law and abuse of
discretion when it terminated the parental rights of [Father] to his
daughters, [the Children,] pursuant to 23 Pa.C.S.A. § 2511 et.
[sic] seq.?
B. Did the [orphans’ c]ourt commit an error of law and abuse of
discretion when it determined the burden of clear and convincing
evidence was met in terminating the parental rights of [Father]
pursuant to 23 Pa.C.S.A. § 2511 et. [sic] seq.?
C. Did the [orphans’ c]ourt commit an error of law and abuse of
discretion when it determined that the conditions that lead [sic]
to the removal or placement of the [C]hildren continue to exist
and that Father could not or would not remedy those conditions
within a reasonable period of time 23 Pa.C.S.[A.] § 2511(5) and
(8)?
D. Did [Father’s] filing appropriately follow Pa.R.A.P. 341 because
each appeal for each child only appealed one court order,
specifically, the [decrees] terminating Father’s parental rights?
Father’s Brief at 5-6 (suggested answers omitted).3
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3 Regarding Father’s issue “D,” he filed three separate notices of appeal from
the decrees terminating his parental rights. In the notices of appeal, Father
indicated that he intended to appeal from the termination decrees only. He
also attached only the termination decrees to the notices of appeal. However,
the notices of appeal included the docket numbers from both the Children’s
termination and dependency matters. This Court issued an order on July 17,
2019, directing Father to show cause why we should not quash his appeal.
See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding that
the failure to file separate notices of appeal from an order resolving issues on
more than one trial court docket “requires the appellate court to quash the
appeal”); Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa. Super.
2019) (“We read our Supreme Court’s decision in Walker as instructing that
we may not accept a notice of appeal listing multiple docket numbers, even if
those notices are included in the records of each case.”). Father responded
on August 1, 2019, stating that he intended to appeal the termination decrees
and included the dependency docket numbers solely for reference. He further
requested that his notices of appeal be amended to remove the dependency
docket numbers. Given that it is clear Father intended to appeal only from
the decrees terminating his parental rights, and given that he filed one notice
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We apply the following standard of review when considering an appeal
from a decree terminating parental rights involuntarily:
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).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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 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.
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of appeal for each decree, we discern no violation of Walker, and we do not
quash his appeal.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the instant matter, the orphans’ court terminated Father’s parental
rights pursuant to Section 2511(a)(1), (5), (8), and (b).4 We need only agree
with the court as to any one subsection of Section 2511(a), as well as Section
2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s
decision to terminate pursuant to Section 2511(a)(8) and (b), which provides
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:
***
(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
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4 While the orphans’ court cites Section 2511(a)(2) in its opinion, it provides
no substantive analysis of the requirements of that subsection. In addition,
CYS requested termination in its petitions pursuant to Section 2511(a)(1), (5),
(8), and (b) only.
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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)(8) and (b).
We first consider whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(8):
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). It is
important to note that Section 2511(a)(8) does not require consideration of a
parent’s willingness or ability to remedy the conditions that led to the removal
of his or her child. In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa. Super.
2006). In addition, this Court defines what constitutes the relevant conditions
somewhat broadly. We have held, for example, that a parent failed to remedy
the conditions that led to her child’s placement when the placement resulted
primarily from the parent’s positive drug test for cocaine and the parent was
later incarcerated for drug offenses. See In re C.L.G., 956 A.2d 999, 1006
(Pa. Super. 2008) (en banc) (“Mother’s conviction and subsequent term of
incarceration derives directly from her ‘drug issues,’ it is a part of the original
reasons for the removal of C.L.G. from Mother’s care and forms a basis for the
termination of Mother’s parental rights pursuant to Section 2511(a)(8).”).
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In this case, Father contends that the evidence presented during the
hearing did not support the termination of his parental rights. Father’s Brief
at 14, 23. He argues that he did everything he could to maintain a relationship
with the Children by visiting them, sending them letters, and calling them on
the phone, even while incarcerated. Id. at 15-18, 21-22, 24, 27. Father also
asserts that his release from incarceration is imminent and that he will work
quickly following his release “to obtain housing and remedy any outstanding
conditions.” Id. at 15, 19, 24, 28. He extols the progress he made prior to
his incarceration, which included obtaining housing, completing five parenting
classes, and testing negative on drug screens. Id. at 15-16, 24, 27. Father
explains that, upon his release, he intends to reside in a halfway house, regain
custody of the Children, and move to North Carolina with his girlfriend, R.H.
Id. at 26. Finally, he stresses that the orphans’ court interviewed D.A.L.W.,
and that the child expressed her desire to live with both him and her foster
parents. Id. at 18. Father insists that he and the Children share a bond. Id.
at 21-22.
The orphans’ court explained its decision to terminate Father’s parental
rights in its opinion, as follows:
Father alleges that he has made great efforts to keep in []
contact with the [C]hildren while he has been in prison. That is
true. However, the past is prologue to the future. The [C]hildren
were removed from Mother’s care largely because of her
continuing drug use and living conditions on August 15, 2016.
Father was not an available resource to take care of the [C]hildren
at that time. For almost nine months, from August 15, 201[6],
until he went to prison on May 3, 2017, Father made token efforts
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to comply with the family service plan and to provide a safe and
permanent home for the [C]hildren. It was not until he was jailed
for drug delivery (again) that he corresponded with the [C]hildren
and called them regularly.
Father has no bond with the younger two children. He has
not seen them in over two years. He has not had them in his
custody in over three years. They do not know him. [D.A.L.W.]
is old enough to remember him and have a bond. However, in
her young mind she does not understand the ramifications of
suddenly being in her Father’s custody in a strange place with
different people. She does not understand that the chance for a
healthy physical and emotional life will be greatly jeopardized if
she is taken from her stable, healthy environment and placed in a
very undefined environment.
Father’s plan for the [C]hildren is frightening. His significant
other appears to be well-meaning. But she spent time in jail last
year and is now living in North Carolina waiting for Father’s
possible release in January 2020. Father may likely be released
from prison in January 2020, but that is uncertain. It is
questionable whether his addition[al] six years of supervision
could be transferred to North Carolina. His prior income appears
to be from illicit drug sales. There is no financial plan for taking
care of the [C]hildren. There was no plan prior to his incarceration
in 2016 through May[]3, 2017.
Orphans’ Court Opinion, 5/24/19, at 8-10.
After a careful review, we conclude that the record supports the decision
of the orphans’ court to terminate Father’s parental rights pursuant to Section
2511(a)(8). As detailed above, the orphans’ court removed the Children from
Father’s care5 on August 15, 2016. By the time of the termination hearing on
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5 Significantly, this Court has explained that a trial court may only terminate
the rights of a parent pursuant to Section 2511(a)(8) if the subject child “has
been removed from the care of the parent[.]” 23 Pa.C.S.A. § 2511(a)(8); see
In re C.S., 761 A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (concluding that
termination was inappropriate under Sections 2511(a)(5) and (8) “because
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May 1, 2019, the Children had remained in foster care for over thirty-two
months, well beyond the twelve-month requirement of Section 2511(a)(8).
Moreover, it is clear that Father had failed to remedy the conditions that
led to the Children’s removal. As the record confirms, the primary reason that
Father was unable to care for the Children at the time of their removal was
his lack of appropriate housing. N.T., 5/1/19, at 18. Father remained without
appropriate housing during the hearing, due to his incarceration. Further, it
was not clear when, if ever, he would obtain appropriate housing.6 Contrary
to Father’s assertions on appeal, he testified that a January 2020 release date
was not guaranteed and that he may not be released until later if he commits
any disciplinary infractions before that date.7 Id. at 117, 136, 140 (“Like if I
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the record reflects that C.S. was never in Appellant’s care and, therefore, could
not have been removed from his care.”). Father’s testimony at the hearing
appeared to indicate that the Children spent most of their time living with him
after he and Mother separated, but prior to CYS’s involvement. N.T., 5/1/19,
at 107-09. Father added that, when CYS became involved, “I was staying at
[Mother’s] sister’s house, so yes, I was still around the girls, both of us was.
[sic]” Id. at 110. Therefore, we conclude that the Children were “removed
from the care” of both Father and Mother pursuant to Section 2511(a)(8).
6 In reaching this conclusion, we observe that Section 2511(b) prohibits trial
courts from terminating parental rights based solely on environmental factors,
such as inadequate housing, “if found to be beyond the control of the parent.”
23 Pa.C.S.A. § 2511(b). In this matter, the orphans’ court did not find that
Father’s lack of housing was beyond his control. Father’s lack of housing was
a direct result of his criminal activity, which was clearly within his control.
7Father testified that his parole would not expire until 2026. N.T., 5/1/19, at
140.
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get a write-up, then that could stop me from getting out.”). Even assuming
that Father obtains his release in January 2020, his ability to maintain long-
term stability for the Children afterward is questionable at best. It is important
to note that this is only Father’s most recent drug-related criminal conviction.
Father admitted that he incurred prior drug-related convictions in 2006 and
2015.8 Id. at 131-32. Father testified that, after his release, he planned to
reside in a halfway house, regain custody of the Children, and then move to
North Carolina with his girlfriend, R.H., assuming that he is able to transfer
his parole there. Id. at 118-19. Troublingly, the record reveals that R.H. has
a significant criminal record of her own. She testified that she spent time in
jail during the previous year and was now on probation because of an incident
during which “I gave a friend a ride and I didn’t know that he was robbing a
pizza delivery guy.” Id. at 166.
Finally, terminating Father’s parental rights will best serve the Children’s
needs and welfare.9 The record confirms that Father has made significant
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8 Father’s criminal docket reveals that he received numerous charges in 2015,
several of which were drug related, but that he pled guilty to only conspiracy
to commit flight to avoid apprehension. See Exhibit CYS-H (Father’s criminal
docket).
9 Both Section 2511(a)(8) and (b) require that a court considering termination
of parental rights assess the needs and welfare of the subject child or children.
However, the Section 2511(a)(8) needs and welfare analysis is distinct from
the Section 2511(b) needs and welfare analysis, and courts must address each
separately. See C.L.G., 956 A.2d at 1009 (“[W]hile both Section 2511(a)(8)
and Section 2511(b) direct us to evaluate the ‘needs and welfare of the child,’
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efforts to maintain a relationship with the Children during his incarceration. It
is also clear that the oldest of the Children, D.A.L.W., who was six-and-a-half
years old at the time of Father’s incarceration, and eight-and-a-half years old
at the time of the hearing, shares a bond with Father. During an in camera
interview, she stated that she would like to live with both her foster parents
and her biological parents. Id. at 12, 15 (“I want to go back with my mom
and dad, too. . . . Maybe every two weeks I switch, like I visit then I
switch.”).10, 11
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. . . they are distinct in that we must address Section 2511(a) before reaching
Section 2511(b).”).
10 The record supports the finding of the orphans’ court that the younger two
children, J.L.W. and L.D.R.W., do not share a bond with Father, as they were
both very young at the time of his incarceration. J.L.W. was three years old
at the time of Father’s incarceration and five years old at the time of the
hearing, while L.D.R.W. was one-and-a-half years old at the time of Father’s
incarceration and three-and-a-half years old at the time of the hearing.
We note that Father cites to page ninety-three of the reproduced record,
which corresponds to page ninety-three of the notes of testimony, for the
proposition that J.L.W. also shares a bond with him. See Father’s Brief at 22
(“The caseworker testified that, when she last saw J.L.W. and her [f]ather
together they appeared to be bonded.”). However, the testimony Father cites
clearly refers to D.A.L.W. rather than J.L.W.
11 The orphans’ court appointed counsel to represent D.A.L.W.’s legal interests
during the termination proceedings. The court also appointed a separate GAL,
who represented the legal interests of J.L.W. and L.D.R.W., as well as the best
interests of all three of the Children. At the court’s direction, counsel and the
GAL submitted letters after the hearing, explaining their respective positions.
Counsel opposed termination, emphasizing that D.A.L.W. wanted to maintain
contact with her biological parents. However, the GAL supported termination,
contending that it would be in the Children’s best interests. Both counsel and
the GAL have filed briefs in this Court arguing their positions.
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However, the Children’s relationship with Father was only one of many
factors for the orphans’ court to consider. The record demonstrates that the
Children share a significant bond with their pre-adoptive foster parents who,
unlike Father, have shown that they are capable of providing the Children with
safety, stability, and permanence. See T.S.M., 71 A.3d at 268 (“Common
sense dictates that courts considering termination must also consider whether
the children are in a pre-adoptive home and whether they have a bond with
their foster parents.”). The Children have resided with the foster parents since
August 2017. N.T., 5/1/19, at 20. CYS caseworker, Kerri Shaylor, testified
that she has observed the Children in the foster home, and that they appear
“happy, they’re always dressed appropriately, have clean clothes, their hair is
always done nice, . . . they interact with the other children in the home. They
call the foster parents ‘mom and dad’ at this point.” Id. at 67. Given that
Father failed to remedy the conditions that led to the Children’s placement for
over thirty-two months, given that he will not be able to remedy those
conditions, and given that the Children are thriving in foster care, it was within
the discretion of the orphans’ court to conclude that termination would best
serve the Children’s needs and welfare. See In re Adoption of C.D.R., 111
A.3d 1212, 1220 (Pa. Super. 2015) (“Clearly, it would not be in Child’s best
interest for his life to remain on hold indefinitely in hopes that Mother will one
day be able to act as his parent.”). Thus, we affirm the decrees terminating
Father’s parental rights pursuant to Section 2511(a)(8).
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We next consider whether the orphans’ court committed an abuse of its
discretion by terminating Father’s parental rights pursuant to Section 2511(b).
The requisite analysis is as follows:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the [S]ection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d 95, 103 (Pa. Super.
2011) (quotation marks and citations omitted).
For the reasons already discussed, the record supports the conclusion
of the orphans’ court that terminating Father’s parental rights will best serve
the needs and welfare of the Children pursuant to Section 2511(b). By the
time of the hearing in this matter, the Children had remained without parental
care for over thirty-two months, during which Father failed to remedy his lack
of appropriate housing. Father was incarcerated in May 2017. By May 2019,
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he could provide the court with only a speculative plan for acquiring housing,
which required that he obtain his release at the earliest possible date, regain
custody of the Children, and then move to North Carolina to live with R.H.
While the Children maintain a relationship with Father, and while D.A.L.W. in
particular has expressed a desire to spend half of her time living with Father,
it is the Children’s pre-adoptive foster parents who have shown that they are
capable of providing the safety, stability, and permanence the Children need.
As this Court has emphasized, “a child’s life 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).
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by terminating Father’s parental rights to the Children
involuntarily. Therefore, we affirm the court’s May 28, 2019 decrees.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/27/2020
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