Adoption of: A.S.N., Appeal of: J.L.N.

J-A12029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE ADOPTION OF: A.S.N. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
:
APPEAL OF: J.L.N., NATURAL :
FATHER : No. 135 WDA 2020

Appeal from the Decree Entered November 22, 2019
In the Court of Common Pleas of Warren County
Orphans' Court at No(s): A.N. No. 12 of 2019

IN THE ADOPTION OF: S.L.N. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
:
APPEAL OF: J.L.N., NATURAL :
FATHER : No. 136 WDA 2020

Appeal from the Decree Entered November 22, 2019
In the Court of Common Pleas of Warren County
Orphans' Court at No(s): A.N. No. 13 of 2019

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED MAY 22, 2020

Appellant, J.L.N. (“Father”), appeals from the decrees entered in the

Warren County Court of Common Pleas, which granted the petitions of

Appellee, Warren County Children and Youth Services (“CYS”), for involuntary

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A12029-20

termination of Father’s parental rights to his minor children, A.S.N. and S.L.N.

(“Children”).1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. Procedurally, we add that this Court consolidated Father’s

appeals sua sponte on February 14, 2020.

Father raises the following issues for our review:

DID THE TRIAL COURT PROPERLY RULE THAT TERMINATION
OF [FATHER’S] PARENTAL RIGHTS TO THE CAPTIONED
MINOR CHILDREN WAS WARRANTED, IN TERMS OF
ESTABLISHING BY CLEAR AND CONVINCING EVIDENCE
THAT THE ELEMENTS OF 23 PA.C.S.A. § 2511(A)(1), (2),
(5) AND (8) WERE MET?

DID THE TRIAL COURT PROPERLY RULE THAT TERMINATION
OF [FATHER’S] PARENTAL RIGHTS TO THE CAPTIONED
MINOR CHILDREN WAS WARRANTED IN CONSIDERATION
OF THE DEVELOPMENTAL, PHYSICAL AND EMOTIONAL
NEEDS AND WELFARE OF THE CHILDREN, AS REQUIRED
[BY] 23 PA.C.S.A. § 2511(B)?

(Father’s Brief at 4).

Appellate review of termination of parental rights cases implicates the

following principles:

In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
____________________________________________

1 Mother filed separate appeals from the termination decrees, which are
docketed at No. 140 WDA 2020 and 141 WDA 2020. This Court consolidated
Mother’s appeals sua sponte on February 14, 2020.

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In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … 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 B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).

Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by the finder of fact. The burden of proof is
on the party seeking termination to establish by clear
and convincing evidence the existence of grounds for
doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super.
2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165

(2008)).

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CYS filed a petition for the involuntary termination of Father’s parental

rights to Children on the following grounds:

§ 2511. Grounds for involuntary termination

(a) General Rule.―The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:

(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.

* * *

(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.

* * *

(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

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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). “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., supra at 1117.

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… 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.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

Termination under Section 2511(a)(1) involves the following:

To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence

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of conduct, sustained for at least the six months prior to the
filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties. In addition,

Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.

Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his… conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted). Regarding the six-month period prior to filing the termination

petition:

[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his… parental
rights, to determine if the evidence, in light of the totality of
the circumstances, clearly warrants the involuntary
termination.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted).

The grounds for termination of parental rights under Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

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limited to affirmative misconduct; to the contrary those grounds may include

acts of refusal as well as incapacity to perform parental duties. In re A.L.D.,

797 A.2d 326, 337 (Pa.Super. 2002). “Parents are required to make diligent

efforts towards the reasonably prompt assumption of full parental

responsibilities.” Id. at 340. Under Section 2511(a)(2), “the petitioner for

involuntary termination must prove (1) repeated and continued incapacity,

abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal

caused the child to be without essential parental care, control or subsistence;

and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or

will not be remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super.

1998).

“Termination of parental rights under Section 2511(a)(5) requires that:

(1) the child has been removed from parental care for at least six months; (2)

the conditions which led to removal and 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 Z.P., supra at 1118.

“[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) [t]he 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.

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2003). “Section 2511(a)(8) sets a 12–month time frame for a parent to

remedy the conditions that led to the children’s removal by the court.” In re

A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the 12–month period has

been established, the court must next determine whether the conditions that

led to the child’s removal continue to exist, despite the reasonable good faith

efforts of CYS supplied over a realistic time. Id. Termination under Section

2511(a)(8) does not require the court to evaluate a parent’s current

willingness or ability to remedy the conditions that initially caused placement

or the availability or efficacy of CYS services. In re Adoption of T.B.B., 835

A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P., supra.

Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond, paying

close attention to the effect on the child of permanently severing the bond.”

Id. Significantly:

In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.

When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.

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In re Z.P., supra at 1121 (internal citations omitted).

“The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his… rights terminated.” In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance.

This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.

Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a
place of importance in the child’s life.

Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his… ability, even in difficult circumstances. A
parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with …her physical and

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emotional needs.

In re B., N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of his… child is converted, upon

the failure to fulfill his… parental duties, to the child’s right to have proper

parenting and fulfillment of [the child’s] potential in a permanent, healthy,

safe environment.” Id. at 856.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Gregory J.

Hammond, we conclude Father’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, dated January 22, 2020, at 6-17) (finding: (1)

Children have been in CYS’ care since June 2018; for entire time Children have

been in placement, Father has made no real effort to maintaining his sobriety,

finding stable housing, or securing employment; Father abandoned rehab

after only 9 days and missed numerous drug and alcohol therapy

appointments; Father mostly worked “under the table” at unverified jobs;

Father ignored phone calls and avoided house calls from his caseworkers;

Father took all available services and assistance for granted without actually

trying to use them to better himself and reunite with Children; court does not

believe Father will treat these services any differently once he is released from

incarceration; Father’s persistent drug use, criminal acts, and lack of

motivation demonstrate Father’s refusal or inability to parent; termination of

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Father’s parental rights was proper under Section 2511(a)(1), (2), (5), and

(8); (2) although Children had some good moments with their parents, these

moments do not make up for uncertainty Children presently face; Dr. von

Korff, CYS expert and licensed clinical psychologist, testified that Children will

benefit from having permanency in secure environment as soon as possible;

parents have not spent any significant time alone with Children in over 1½

years; Dr. von Korff testified that termination is in Children’s best interest,

regardless of any parental bond; thus, termination of Father’s parental rights

was proper under Section 2511(b)). Accordingly, we affirm based on the trial

court’s opinion.

Decrees affirmed.

Judge Colins joins this memorandum.

Judge Kunselman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/22/2020

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 Circulated 05/13/2020 10:21 AM
Received 2/13/2020 4:53:57 PM Superior Court Western District

IN THE COURT OF COMMON PLEAS
OF THE 37TH JUDICIAL DISTRICT OF PENNSYLVANIA
WARREN COUNTY BRANCH
ORPHANS' COURT DIVISION

IN RE: ADOPTION OF
A.:). N. AN 12 of2019
D.O.B. 07. /15

IN RE: ADOPTION OF AN 13 of2019
____5, L..N.
D.O.B. 08/ /16

MEMORANDUM OPINION

Presently before the Court for consideration are Notices of Appeal and Statements of

Matters Complained of on Appeal filed by ("Mother") and J . L . N.
_ ("Father") on December 23, 2019 in response to the Court's Involuntary Termination of

Parental Rights to their minor children, A.S.N. and S.L.N. ("Children"). Mother and Father both

assert that the Court did not have enough evidence to terminate their parental rights under the

bases of 23 Pa. C.S.A. §251 l(a)(l), (2), (5), and (8). The Court first directs the Superior Court to

this Court's findings and opinion set forth on the record at the conclusion of the hearing. (TPR

Tr. at 239:5-269:17). This opinion is intended to supplement these findings and opinion. Also, as

the cases were consolidated for hearing; the matters complained of on appeal by the parents are

identical; and the findings of fact and legal issues are largely overlapping; this Court has entered

a single opinion in these matters. The Court issues the following Opinion pursuant to Pa. R.A.P.

l 925(a)(2).
 FACTUAL AND PROCEDURAL BACKGROUND

In early 2018, Mother, Father, and Children were identified by New York State child

welfare agencies as homeless as they were found to be residing in either their vehicle or various

hotels. Mother and Father's alleged illegal drug use was also at issue and on May 16, 2018, they

both tested positive for methamphetamine and amphetamines. After being informed that

Chautauqua County, New York child welfare authorities were preparing to detain Children,

Mother and Father decided to move the family into the home of Mother's father, 'Vo M,
. in Warren County, Pennsylvania. On or about May 18, 2018, Warren County

Children and Youth Services ("CYS") met with the family and assisted them in obtaining

medical assistance insurance for Children. Less than two (2) weeks later, i V, M.. asked the

family to leave his home because he suspected Mother and Father were using drugs. This was

proven to be true on June 1, 2018, when they both tested positive for methamphetamine.

Mother and Father left Children with a friend, 1 C., W, who ultimately contacted

Warren County CYS on June 11, 2018 to inform them that she would no longer be able to
-
provide care for Children. While Children were in the homes of V. M. and' C..W., they

were given much needed medical care by addressing out-of-date vaccinations and untreated

MERSA. On June 13, 2018, Warren County CYS filed a petition for, and was granted,

emergency custody of Children, who have remained in Warren County CYS custody since that

date. A Shelter Care hearing was held on June 14, 2018 and a Dependency hearing was

subsequently held on September 5, 2018 where both Mother and Father were drug tested with

positive results. Father tested positive for Suboxone and Mother tested positive for

2
amphetamines and Suboxone while also facing Retail Theft (F-3) charges in Warren and

McKean Counties. Mother testified that she had been treating with Subutex for eight (8) years

and Father had been treating with Subutex for six (6) years. At the time of the September

hearing, their housing situation was still not fully resolved as they only had a verbal sublet

agreement accompanied by several incident reports to the local police for domestic and

landlord/tenant disputes.

Starting on October 12, 2018, Mother served two (2) months in the Warren County

Prison for Felony Retail Theft and was also convicted of Felony Retail Theft in McKean County,

for which she was sentenced to two (2) years of probation, supervised by Warren County Adult

Probation Department. While incarcerated, Mother declined visits with Children and while

Father did attend supervised visits with Children, he was unable to maintain permanent housing.

A Permanency Review hearing was held on December 18, 2018 where the Court found

that although the Mother and Father visited Children, they failed to meaningfully address their

drug, alcohol, and mental health addictions/treatments, failed to obtain housing, and failed to

secure employment and/or income. Following the hearing, both Mother and Father tested

positive for Subutex, for which they were still obtaining prescriptions from a Subutex clinic.

The Juvenile Court found minimal compliance with the permanency plan and no progress

towards finding a solution for the circumstances which originally caused Children's initial

placement.

A second Permanency Review hearing, held over the course of three (3) days, ended on

May 21, 2019 where Mother and Father were found to be living in an appropriate home (EOC-

subsidized housing) for themselves and Children. Mother was working a part-time job, attending

most of her individual drug and alcohol counseling appointments, had obtained a mental health

3
evaluation, and had not tested positive for drugs since December 2018. Father was working

"under the table" in New York and had only attended 40% of his scheduled outpatient drug and

alcohol treatment sessions. He admitted himself for nine (9) days to a program which he left

prematurely on April 17, 2019 and did not seek any other subsequent drug or alcohol treatment.

He did obtain a mental health evaluation; however, he was dishonest throughout its entirety

regarding his drug use. Immediately following the second Permanency Review hearing on May

21, 2019, Father tested positive for methamphetamine, amphetamines, and buprenorphine. The

Juvenile Court conditioned continued supervised visitation between Father and Children upon

his enrollment in a drug and alcohol program as well as testing negative for drugs.

From May to July 2019, Mother continuously requested that CYS allow Children to visit

with Father due to his enrollment in drug and alcohol treatment and his alleged sobriety. CYS

originally declined her requests, but on July 2, 2019 they arranged for Father to be drug tested at

the Warren County Adult Probation Office where he was found to be concealing drug-free urine.

He was immediately arrested and pled guilty one week later.

After Father's arrest, Mother was requested to submit to a drug test. Upon arrival at the

Warren County Courthouse, she was immediately arrested and charged with furnishing drug-free

urine, make/repairs/sell/etc. offensive weapons (brass knuckles found in her purse) and

misdemeanor counts of possession of controlled substance by a person not registered and

furnishing drug-free urine. She has been incarcerated on probation and parole violation charges

arising from this incident since July 2, 2019 and she also has pending charges in Warren County

and in New York.

Father was released from incarceration on July 9, 2019 and was subsequently arrested

three (3) days later from a traffic stop resulting in felony charges of Aggravated Assault,

4
Possession with Intent to Deliver Controlled Substance, Endangering the Welfare or Children,

and additional misdemeanors.

Children have been in placement for fourteen (14) months and during this time Mother

and Father have had short-lived progress (if any), participated in trying to deceive authorities

regarding their alleged sobriety, and have not addressed their addictions in any meaningful or

successful way. Both Mother and Father are currently incarcerated and due to pending felony

offenses, could possibly be incarcerated for a significant amount of time in the near future.

On August 29, 2019, Warren County Children and Youth Services filed a Petition for

Involuntary Termination of Parental Rights ("Petition") of Natural Mother and Natural Father.

An evidentiary hearing was held on November 21, 2019 where Attorney Rene H. Johnson

represented Warren County CYS, Attorney Cynthia K. D.- Klenowski represented Mother,

Attorney Alan M. Conn represented Father, and Attorney Andmoragan C. Sharp represented

Children's legal and best interests. After the hearing and review of the record, the Court

terminated the parental rights of Mother and Father pursuant to 23 Pa. C.S.A. §251 l(b) and 23

Pa. C.S.A. §251 l(a)(l), (2), (5), and (8). A Decree of Termination was filed the following day.

On December 18, 2019, Father filed a Motion to Proceed in Forma Pauperis, Notice of

Appeal, and Statement of Matters Complained of on Appeal. Mother also filed a Motion to

Proceed in Forma Pauperis, Notice of Appeal, and Statement of Matters Complained of on

Appeal on December 23, 2019. Considering the fact that Mother and Father filed separate

appeals alleging the same issues, the Court will address each issue, by parent, for the sake of

judicial economy.

5
 CONCLUSIONS OF LAW

The first issue raised by both Mother and Father is whether the Court erred in finding that

Warren County CYS proved by clear and convincing evidence that for a period of at least six (6)

months immediately preceding the filing of the petition that Mother and Father either showed

settled purposes of relinquishing parental claim to Children or refused or failed to perform their

parental duties. Pa. C.S.A. §2511(a)(l). The Petition was filed on August 29, 2019 which makes

the six (6) month period run from the beginning of February 2019 until the end of August 2019.

However, the Court cannot simply look at this six (6) month time period without taking into

consideration the entire history of the case. "The court should consider the entire background of

the case and not simply: mechanically apply the six-month statutory provision. The court must

examine the individual circumstances of each case and consider all explanations offered by the

parent facing termination of his ... parental rights ... " In re Z.P ., 994 A.2d 1108, 1117 (Pa.

Super. 2010) (citing In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004)). The Court will

consider the period of time from when Children were first put into placement, June 2018, until

the time the Petition was filed in August 2019.

Mother claims that she maintained a relationship with Children and a role in their lives

even while they were placed outside of her home and that she utilized the resources available to

her in order to fulfill her parental duties as much as she could. The Court only needs to find that

a parent either shows a· settled purpose of relinquishing parental claim to their children or has

refused or failed to perform their parental duties. Seeing as Mother made substantial progress

towards her sobriety, found a job and a suitable home at the time of the May 2019 dependency

hearing, the Court does not find that Mother showed a settled purpose of relinquishing her

6
parental claim. However, the Court does find that Mother failed to perform her parental duties,

not only during the six (6) months prior to the filing of the Petition, but going back to June 2018

when the girls were initially put into placement.

In June 2018, Children were put into placement because of Mother and Father's drug use,

Jack of medical attention, and inability to maintain a suitable place to live. Mother and Father

have not had custody of Children since then. Although Mother attended most of her scheduled

visits with Children, there were times that these visits were missed. "There were a few they

missed. One of them usually would miss due to illness .. t"ic\\,�r missed one after she worked her

first shift at Whirley, because she was just too tired." TPR Tr. at 192:9-13. Mother worked at

Whirley for a few weeks, but quit soon after. She also worked at Dairy Queen for a short time,

but was Jet go. There has been no real concerted effort on Mother's part to find and maintain

employment. Parental duties involve more than just showing up, when it is convenient or

enjoyable, for a few hours to visit with your children. Mother repeatedly failed drug tests, was

arrested, and continued living with Father even though the Court advised against it. At a

dependency hearing in May 2019, the Court advised Mother that it would be in her and

Children's best interests to no longer live with Father due to her attempt at sobriety, but they

continued to live together until they were both arrested on July 2, 2019. "[I]f anything, she

advocated for him. And, continued to plan for the four of them to be reunited as a family. She at

no time presented that she was going to parent without him." TPR Tr. at 203:17-21. Since

Children were put into placement, Mother has failed to perform her parental duties by continuing

to partake in the actions and behaviors that led to her children being taken away in the first place.

Father claims that he attended regular visits with Children prior to his incarceration and

that he made efforts to receive help and treatment for his substance abuse issues by attending

7
drug and alcohol treatment. Father's explanation for his failure to perform his parental duties is

because of his drug issues, criminal charges, lack of employment, and lack of stable housing.

The Court finds that Father both evidenced a settled purpose of relinquishing his parental claim

to the Children and that he failed to perform his parental duties.

From the time Children were put into placement in June 2018, Father never had a period

of time where he gave any real effort to his sobriety, finding stable housing, or finding

employment. Because of the severity of his addiction issues, the Court entered an order stating

that Father had to be involved in treatment and testing clean in order to have contact with his

children. "Father abandoned rehab after only nine (9) days. In his words, he said ·that there

were ... people there that were using and dealing. And, that it wasn't to his benefit to be there."

TPR Tr. at 113:20-22. Wanting to make a change and actually making a change are two very

different ideas. "He always stated that he wanted the help. But, he didn't follow through with

the help ... and there were many times at the visit that he would appear somewhat impaired." ·

TPR Tr. at 114:15-22. Father's only verifiable employment was from March 1, 2019 until early

April, when he worked at Targeted Pet Treats. Otherwise, he was working "under the table"

which meant that any income, jobs performed, or hours worked were unverified. Father's

persistent drug use, numerous criminal acts, and lack of motivation to better himself in order to

get his children back are a few of the many reasons why the Court finds that he has evidenced a

settled purpose of relinquishing his parental claim to Children and that he has failed to perform

his parental duties.

The second issue raised by both Mother and Father is whether the Court erred in finding

that Warren County CYS proved by clear and convincing evidence that their repeated and

continued incapacity, abuse, neglect, or refusal caused Children to be without essential parental

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care, control, or subsistence necessary for their physical or mental well-being and the conditions

and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by Mother

or Father. Pa. C.S.A. §2511(a)(2). This section "emphasizes the child's present and future need

for essential parental care, control, or subsistence necessary for his physical or mental well-

being." In re E.A.P., 944 A.2d 79, 82 (Pa Super. 2008). As such, "the orphan's court should

not ignore a child's need for a stable home and strong, continuous parental ties ... this factor is

particularly important when the disruption of the family has already occurred and there is no

reasonable prospect for reuniting it." In re Adoption of K.M.G., 219 A.3d 662, Co13 (Pa. Super.

2019) (citing In re E.A.P.).

Mother claims that she utilized the resources available to her to fulfill her parental duties

in order to care for Children to the extent that she could and presented evidence that any

limitations to performing parental duties would be rectified within one year. Children have been

in placement since June of 2018 arid since that time, Mother has not only continued her drug use,

but she has also been arrested and is currently incarcerated. Dr. Von Korff, a clinical

psychologist, testified at the hearing about his interviews and evaluations of both parents. His

professional opinion regarding Mother's addiction issues and her potential to overcome those

issues in the near future painted a bleak picture. "I would approach any, any, sort of

rehabilitative work with her, with a great deal of caution and skepticism and require evidence."

TPR Tr. at 53:15-18. Not only is the severity of Mother's drug addiction concerning, but her

inability to take responsibility for her past actions does not bode well for the future. "It is

curious given that, that at no time did she ever express any concern, regret, remorse, guilt,

anxiety about her incarceration and her unavailability to the children." TPR Tr. at 30:23-25-

31:1-4. This inability to take responsibility for her addiction issues and her role in her children

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being in placement shows that there is no end in sight for Mother's incapacity as a parental

figure.

Mother is currently incarcerated and has pending charges in Warren County and New

York State. Her release date from prison is not specifically known at this time, but regardless,

she will be facing potential prison time for the new charges. Coupling that with the fact that in

the expert's opinion, the Mother has a great amount of difficult work to do in order to be

mentally and emotionally available for her children, it is apparent to the Court that she would not

be able to remedy her incarceration and/or addiction issues within a year. "[Ejither way in which

she wants to frame this, it comes out poorly with respect to her parenting. And, I really rather

think that her state of mind is one of fixing blame on others." TPR Tr. at 64:5-9. Most telling is

Mother's own opinion regarding the timeline of her potential recovery: "I mean, I think it will be

longer than a year, to be completely stable .. .I am not going to be able to give them what

somebody else can give them, obviously, right away. I am not going to be able to. I know this. I

have a lot to work on." TPR Tr. at 139:3-9. Considering the opinion of the expert and Mother

herself, there is clear and convincing evidence that Mother's incapacity as a parent cannot and

will not be remedied.

Father claims that he did not have an incapacity, abuse, neglect, or refusal related to

Children and that evidence shows that any incapacity can and will be remedied in the near future.

Father has continuously placed the importance of finding and using drugs over the welfare of his

daughters. He only lasted in rehab for nine (9) days and continuously missed drug and alcohol

therapy appointments, ignored phone calls, and avoided house calls from his case workers.

When Connie Snyder, a case worker for Warren County CYS, was asked about obtaining

progress reports on Father's treatment, she responded by saying, "It was never really any

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progress made." TPR Tr. at 115:19. While having every opportunity at his disposal, and the

unwavering support of therapists and caseworkers, Father made no actual attempt at facing and

overcoming his addiction issues, even with the knowledge that it was his only option in getting

his daughters back. Father is currently incarcerated and even if he were to be released within a

year, his lack of compliance with drug and alcohol treatment in the past does not give the Court

much hope for the future. In addition, not only did Father not complete his entire evaluation

with the expert, Dr. Korff, but he did not return to the hearing after the lunch break and did not

testify on his own behalf. These actions alone speak volumes about his blatant refusal to be a

parent and the fact that his incapacity as a parent is unwavering.

The third issue raised by both Mother and Father is whether the Court erred in finding

that Warren County CYS proved by clear and convincing evidence that Children were removed

from their care by the Court or under voluntary agreement with an agency for a period of at least

six (6) months, the conditions which led to the removal or placement of Children continue to

exist, Mother and Father cannot or will not remedy those conditions within a reasonable period

of time, the services or assistance reasonably available to Mother and Father are not likely to

remedy the conditions which led to the removal or placement of Children within a reasonable

period of time and termination of the parental rights would best serve the needs and welfare of

Children. Pa. C.S.A. §2511(a)(5). Warren-Forest Human Services took dependency of Children

in June 2018 because Mother and Father were homeless and both tested positive for

methamphetamine, Currently, both Mother and Father are incarcerated and all resources of

services and assistance have been exhausted.

Mother claims that she presented evidence to show that she. was working to address the

concerns that led to the removal and placement of Children. She also claims that she was

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utilizing the services available to her and that any limitations to performing her parental duties

would be rectified within one (1) year. Mother is attempting to get into a drug and alcohol

program while incarcerated however, she had the opportunity to benefit from these types of

programs before she was incarcerated, and she did not do so. In September 2018, the Court

ordered drug and alcohol treatment for both parents, yet Mother made every attempt to keep her

case worker in the dark regarding her progress. "[W]e were having problems with, especially

Mo\'1e<' revoking releases. So, we would no longer be able to speak to providers about

how she was progressing." TPR Tr. at 109:24-25-110:1-2. This behavior leads the Court to

believe that this type of behavior will happen again upon her release from prison. Mother and

Father were given funds through the rehousing program after their stay at Faith Inn which

allowed them to pay a deposit and rent on a residence. However, since both are currently

incarcerated, they can no longer maintain that living arrangement. Mother was arrested for

furnishing false urine at the time of a random drug test while engaging in drug and alcohol

treatment and she only maintained employment for a matter of weeks. Mother has taken

advantage of any services and assistance available to her, and these programs have done nothing

to rectify her situation. As such, the Court does not find any evidence presented to show that she

will treat these same services and assistance any differently if and when she is released from

prison. The Court will address the issue of any possible negative impact on Children in its 23

Pa. C.S.A. §2511(b) analysis in the final portion of this Opinion.

Father claims that he can remedy the conditions that led to the removal and placement of

his daughters in a reasonable time by using available services and/or assistance. He also claims

that termination of his parental rights would have a negative impact on Children. Connie

Snyder, Mother and Father's caseworker provided constant, ongoing, and meaningful services

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for both Mother and Father. They both participated in drug and alcohol treatment and mental

health evaluations. Father only lasted in rehab for nine (9) days and picked right up where he

left off with his drug use. He lied about being in remission from his drug addiction during his

mental health evaluation in order to avoid having to participate. When Father met with Dr. von

Korff to be evaluated for the termination hearing, he did not fully participate. "I received a blank

answer sheet in return. I wasn't really surprised. t(MhQ.< had a very challenging interview

with me. It was very emotionally draining for him to do the work we had to do." TPR Tr. at

38:5-8. This is just another example of Father's inability to do what needs to be done in order to

get his children back.

Mother and Father were also given free housing and then later were given the funds to

put towards their own home. However, none of these services changed the behavior of Father.

He continued to use drugs and continued to carelessly take all of the available services and

assistance for granted without actually trying to use those services to better himself and get his

daughters back. One of the most significant events that occurred which helped solidify this

Court's determination regarding termination of Father's parental rights was the fact that he left

half way through the termination hearing and never returned. "While Court was in recess for a

lunch break, Father informed Deputy that he would not be returning for the remainder of the

hearing." TPR Tr. at 117:15-17. He did not testify at the hearing and simply gave up and left.

This Court does not believe that Father will treat these same services and forms of assistance any

differently once he is released from incarceration and as such, the Court does not believe that

Father will be able to remedy the conditions that led to the removal and placement of his

daughters. The Court will address the issue of any possible negative impact on Children in its

23 Pa. C.S.A. §251l(b) analysis in the final portion of this Opinion.

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 The next issue raised by both Mother and Father is whether the Court erred in finding that

Warren County CYS proved by clear and convincing evidence that Children were removed from

their care by the Court or under a voluntary agreement with an agency, twelve (12) months or

more have elapsed from the date of removal or placement, the conditions which led to the

removal or placement of Children continue to exist and termination of parental rights would best

serve the needs and welfare of Children. The Court has already noted that Children have been in

placement since June 2018, which makes their time in placement close to eighteen (18) months.

As evidenced in the above analysis, the conditions that led to the removal and placement of

Children continue to exist today.

The final issue raised by both Mother and Father is that it is not in Children's' best

interest to terminate their parental rights pursuant to 23 Pa. C.S.A. §2511(b). First, "we review

whether termination of parental rights would best serve the developmental, physical, and

emotional needs and welfare of the child." In re Adoption of K.M.G. at 674 (citing In re

Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010)). It is well established that,

"[i]ntangibles such as love, comfort, security, and stability are involved in the inquiry into needs

and welfare of the child." In re Adoption of K.M.G. at 674 (citing In re C.M.S., 884 A.2d

1284,1287 (Pa. Super. 2005)). The emotional bond between Children and their parents is very

important as well 'as the negative effect the termination could possibly have on Children. Dr. von

Korff freely admitted that there were good aspects of the relationship between the parents and

Children. "I don't think these kids could be as well-adjusted as they are given their history and

their current circumstances, if there hadn't been good moments with their parents." TPR Tr. at

32:15-18. However, good moments from the past do not make up for the uncertainty Children

are presently facing. Dr. von Korff noted what is most important for Children right now: "These

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are children who will be benefited by having permanency in a secure environment as soon as that

is possible. And, both permanency and security are things that the children very much need."

TPR Tr. at 45:19-22. Until they were put in placement, Children were living a transient

existence by residing in cars, hotels, and on available couches at their parents' friends' homes.

There was neither a sense of permanency nor security in their lives. While D�. von Korff

believes Children will experience the loss of their biological parents, he also believes that finding

them a secure and permanent home is of more importance at this crucial time in their young

lives. "I certainly think that the children faced with two dilemmas are better off having security

at the age of three and four and permanency, then, and then addressing the loss issues." TPR Tr.

at 61:1-5. The negative impact the Children will experience because of their parents' parental

rights being terminated will be outweighed by the positive impact of finding a permanent home

where they will find much needed security and stability.

While the Court believes the parents love Children, that love does not mean that the

parents' rights cannot be terminated. "[T]he orphan's court must examine the depth of the bond

to determine whether the bond is so meaningful to the child that its termination would destroy an

existing, necessary, and beneficial relationship." In re Adoption· of K.M.G. at 675 (citing In re

A.D., 93 A.3d 888, 897 (Pa. Super. 2014)). Dr. von Korff performed bonding and attachment

evaluations for his expert report, but it is important to note that he never actually witnessed the

parents interacting with the children. "(T]he Court had decided that: fQ�e.< and the children

should not have contact. And, Mo-W\e( indicated that she did not want the children brought to

the jail, so no opportunity was afforded to meet with the children and parents jointly." TPR Tr.

at 15:8-14. While Dr. von Korff points out that Children are affectionate, warm, and

comfortable with a wide variety of adults, he does not solely attribute their well-adjusted

15
behaviors to be solely based on their bond with their parents. "[M]y inclination is to suspect that

a good deal of the security that they show right now is a function of living within the stable

environment." TPR Tr. at 48:14-17. Although there has been a loving relationship between

parents and Children, there has not been any significant time spent alone as a family in over a

year and a half. Children have become close with their foster parents and have not seen their

parents sincethey were incarcerated in July 2019, and according to their caseworker, they do not

ask about their parents anymore. TPR Tr. at 188:10. Dr. van Korff ultimately makes it clear that

regardless of any parental bond, the termination of their parental rights is in Childrens' best

interest. "I believe they have received many episodes of warm parenting from �e.< and

from f"\o-t'ne< but, they have also been subject to a great deal of chaos and uncertainty and

unavailability of their parents, either because they are incarcerated or they are drug involved or

they are drug seeking or they are not available .. .It's quite a happy finding that the children are as

well as they are. But, I would strongly encourage that the Court and the agency find means to

give them permanency as soon as possible." TPR Hearing Tr. 46:1-13.

Finally, Mother and Father should have their parental rights terminated because their

children were put into placement because of their choices and actions. They had full control of

their decisions to be homeless, unemployed, and seekers and users of drugs. While the Court

understands the complexity and devastation of addiction issues, it is ultimately up to the parents

to give their best efforts to use the services and assistance available to them in order to get their

lives on track so they can be parents to their daughters. "Frankly, I think the worst-case scenario

for these girls is for them to come to believe or come to a reality that they begin to interact with

these parents again, followed by the inevitable relapse, reincarcerations. I think that is most

likely what would happen if we gave these parents another chance. And, I think that would be

16
devastating." TPR Tr. at 265:13-22. Mother and Father have both demonstrated that they are

not able to provide safety, permanency, and stability for Children and as such, it is in their best

interest for Mother and Father's parental rights to be terminated.

For the reasons stated above, the Court finds that Warren County CYS provided clear and

convincing evidence to support the termination of Mother and Father's parental rights.

No further Opinion shall issue.

January 22, 2020

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