In re J.I.R.

Dissenting Opinion by

BENDER, J.

¶ 1 I respectfully dissent. I believe that the Department of Human Services (DHS) failed to establish by clear and convincing evidence that the termination of L.C.’s parental rights is warranted based on the record before this Court. Moreover, I would conclude that the lower court’s decision does not adequately explain that it considered the totality of the circumstances and explanations given by L.C. as required in In re KB., 763 A.2d 436, 439 (Pa.Super.2000) (stating that “the family court must examine the totality of circumstances. and consider all explanations offered by the parents” in light of the fact that “at stake is the termination of rights with constitutional significance”). Furthermore, because I would so conclude, I do not believe that this Court is able to reach the separate consideration of the best interest of the child as explained in In re B.L.L., 787 A.2d 1007, 1013-14 (Pa.Super.2001) (stating that “the best interest of the child is not the first and only consideration. The court must initially find that the statutory requirements for termination of parental rights have been met.... The needs and welfare of the child are a discrete consideration to be determined only after the statutory requirements for termination have been met.”)

¶ 2 Initially, the Majority recognizes that incarceration alone does not provide sufficient grounds for termination, but that the parent must act affirmatively to the best of his or her ability. However, the *941Majority then states that “[u]pon review of the record, we find L.C.’s incarceration was not a significant factor in terminating her parental rights and that the court gave due consideration to the evidence L.C. presented indicating she made efforts to improve herself while incarcerated.” Majority op. at 938. In reviewing the lower court’s decision I do not find any indication that such consideration was given. The court’s entire decision states as follows:

FINDINGS OF FACT

1. On July 6, 2001, a goal change/involuntary termination hearing was held before Honorable Nicholas M. D’Alessan-dro in Courtroom “E,” 1801 Vine Street, Philadelphia, PA 19102, to terminate the parental rights of mother and father in the above-captioned matter.

2. The subject of the termination hearing was J.I.R., a/k/a J.C. (“child”), who was born October 6, 1999, in Philadelphia, Pennsylvania.

3. The mother never visited, planned for or provided financial assistance to child. Mother’s parental rights have been involuntarily terminated with reference to five other children.

4. The putative/natural/presumptive father never visited, planned for or provided financial assistance to nor has he had any involvement with this child.

5. Testimony presented indicated that J.I.R., a/k/a J.C. was born positive for cocaine, severely premature with medical conditions and as a result, this child has serious developmental issues.

6. The child was adjudicated dependent on December 3, 1999. The child has been in foster care since the age of three months where he still remains to the present and the foster mother wishes to adopt.

7. Dawn George, DHS Social Worker and Henry Ortiz, Delta Community Supports Social Worker both testified at the hearing of July 6, 2001, that it would be in the best of interests of this child to be adopted.

CONCLUSIONS OF LAW

1. The child has been without essential parental care, control and subsistence necessary for his physical and mental well-being.

2. Under the Juvenile Act, 42 Pa. C.S.A. Sec. 6351 and 55 Pa.Code Sec. 3140.74, the disposition best suited to the protection and physical, mental and moral welfare of the above-named child is Adoption.

3. The basis for terminating the parental rights of the parents of this child are established by the following: 23 Pa. C.S.A. Sec. 2511(a)(1), (2), (5), and (8).

These Findings of fact and conclusions of Law shall serve as my Opinion in the matter.

Trial Court Opinion (T.C.O.), 7/6/01.

¶3 Although the lower court does not mention L.C.’s incarceration, it also does not in any way even allude to any evidence L.C. presented about efforts she made to improve herself while in prison. The court failed to acknowledge L.C.’s assertions that she successfully completed parenting classes and attended substance abuse treatment during her incarceration. No mention was made that L.C. attempted to have J.I.R. relocated to an agency near the correctional facility so that she could visit with her son and participate in the planning for his development. In fact, the Majority also notes DHS’s failure to take “appropriate steps to ensure L.C. received direct notification of all relevant matters” and DHS’s lack of a response to “L.C.’s requests for information regarding temporary custody arrangements she sought and *942photographs of and visits with the child.” Majority op. at 939.

¶ 4 I find other aspects of this case troubling, including the failure of caseworkers to attempt to involve L.C. in the meetings where the goals for reunification were formulated and dismissing L.C.’s non-attendance simply by stating she was incarcerated.7 Also of concern is DHS’s forbearance for only nine months from the dependency adjudication to the determination to seek a goal change from reunification to adoption, Ms. George’s inability at the hearing to provide documentation from the agency’s file, and substantial reliance as an aggravating circumstance on the fact that L.C.’s rights to other children had been terminated.

¶ 5 Although I am not convinced that the agencies involved deliberately obstructed L.C.’s efforts to comply with the family service plan goals and her attempts to rehabilitate,8 I am also cognizant of the fact that prisons offer the various rehabilitative programs to encourage those incarcerated individuals to learn to undertake their proper place in society and fulfill their role as parents. By emphasizing the termination of L.C.’s parental rights to other children and not acknowledging her successful completion of the prison programs, the message sent to L.C. and others in her circumstances is clearly that “we have given up on you, so do not even bother.”

¶ 6 The Majority finds and I agree that prior terminations of parental rights are a factor that a court should consider, but again both caseworkers’ testimony and what appears as significant reliance by the lower court emphasizes this factor in this ease almost to the exclusion of everything else. Furthermore, I am at a loss to explain the abbreviated opinion issued by the lower court. Finding of Fact No. 3, stating that “mother never visited, planned for or provided financial assistance to child,” is the only finding that directly impacts the statutory requirement “that conditions which led to the removal or placement of the child continue to exist....” 23 Pa.C.S. § 2511(a)(8). This statement does not acknowledge L.C.’s incarceration, and could be defined as a conclusion of law, which, quite simply, I believe is inadequate to explain the court’s decision to terminate a parent’s right to her child, a right that has “constitutional significance.” KB. Without an in-depth explanation about what facts the lower court relied upon, I believe the Majority steps into the shoes of the court that is responsible for determining facts and credibility. The decision here is based on inferences the Majority draws from the record without the benefit of knowing whether the lower court properly weighed the facts presented to it.

¶ 7 Finally, because I believe that DHS failed to carry its burden of proving by clear and convincing evidence that L.C.’s parental rights should be terminated and also because the lower court failed to consider L.C.’s testimony or explain what evidence it relied upon, I would reverse the decree issued in this matter.

. The Majority only indicates that L.C. was invited to but failed to attend family service plan meetings. Majority op. at 936.

. See In re Baby Boy H., 401 Pa.Super. 530, 585 A.2d 1054 (1991) (obstructive tactics on the part of the social agency will excuse failure perform parental duties).