In re the Adoption of A.K.M.

OLSZEWSKI, Judge,

concurring and dissenting:

After a careful and painstaking review of this termination of parental rights case, I have come to the conclusion that the lower court was correct in terminating appellant’s rights in S.M.C. I disagree, however, with the lower court’s decision to terminate the parental rights of appellant in her daughter, A.K.M. While I am somewhat reluctant to make this split decision, I believe the facts of this case justify this result.1

The concept of family has traditionally been given a place of esteem in our culture. As a result, the United States Supreme Court has historically recognized that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (plurality opinion); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974); Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). When a state therefore moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Santosky v. Kramer, 455 U.S. 745, 753-754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599, 606 (1982).

*591It is our responsibility in reviewing a parental termination decision to examine all evidentiary resources and to survey the entire record in order to “ensure that the trial court has satisfactorily examined all evidentiary resources, has conducted a full hearing, and has set forth its decision in a full discursive opinion.” In re Adoption of James J., 332 Pa.Super. 486, 491, 481 A.2d 892, 894 (1984) (en banc). I do not hesitate to add, however, that this court must not overstep its bounds and assume that it has the duty or privilege of making its own independent determination of fact.2 Nevertheless, this limitation does not preclude us from “employing a broad and searching review for the protection of the parties in ensuring that the inquiry of the lower court is complete and that its decision was made in accordance with the due process clause of the Fourteenth Amendment in protecting the fundamental liberty interest of natural parents in their child.” Id., 332 Pa.Superior Ct. at 491, 481 A.2d at 895. As a result, this court must not reverse an order terminating parental rights, unless it is apparent that the trial court abused its discretion, committed an error of law, or lacked evidentiary support for its findings. Id., 332 Pa.Superior Ct. at 494, 481 A.2d at 896.

The central theme surrounding this case can be characterized by the words of the Irish playwright, critic, and social reformer, George Bernard Shaw, when he wrote: “Parentage is a very important profession; but no test for it is ever imposed in the interest of the children.” With this in mind, I respectfully disagree with my colleagues’ decision to reverse the lower court’s judgment terminating appellant’s parental rights in S.M.C. I agree, however, with their decision to reverse the lower court’s judgment terminating appellant’s parental rights in A.K.M.

Since my colleagues have aptly stated the facts, I need not reiterate them here. Nevertheless, some clarification is *592necessary to justify my conclusion to terminate appellant’s rights in one child but not in the other.

Appellant was adjudicated a dependent child at a young age and was placed under the care of Children’s Services. At the age of sixteen, appellant’s first child, A.K.M., was born. A.K.M. lived with appellant for nearly two years before being placed in the home of her maternal grandparents. She remained there for four years until she was removed to a foster home. Appellant’s younger daughter, S.M.C., lived with her mother for fifteen months, before the appellant voluntarily relinquished custody of this child to a close friend. When this friend was no longer able to care for the child, S.M.C. was adjudicated a dependent child and placed in a foster home. It is this Court’s understanding that this family wishes to adopt S.M.C., who is now four years old.

Since S.M.C. was placed in a foster home, appellant has had only five visits with this child over a six month period. Although the visits were “friendly,” there is testimony from the foster parent that the child became unusually quiet and reserved before visits with her natural mother and unruly and upset after these visits. It appears that appellant is not motivated to strengthen her ties with S.M.C. and whatever communication exists is the result of agency initiation. Clearly, the appellant has chosen to exclude S.M.C. from her family, whether guided by indifference or intent. It is doubtful whether S.M.C. even recognizes appellant as her mother, or A.K.M. as her sister.

I therefore conclude that clear and convincing evidence of the appellant’s repeated, continued, and irremediable incapacity and neglect has been shown pursuant to Sec. 2511(a)(2). In addition, I find support in the record that the parent has failed to remedy the conditions which initially occasioned S.M.C.’s removal from her care. Consequently, I feel that the termination of parental rights would best serve the needs and welfare of this child under Sec. 2511(a)(5).

*593The situation surrounding the appellant’s relationship with her older daughter, A.K.M., is quite different. Present in the record are the following undisputed facts which demonstrate that appellee did not meet its burden in terminating appellant’s parental rights in A.K.M. pursuant to Secs. 2511(a)(2) and (a)(5).3

Despite appellant’s frequent moves and emotional crises following the birth of A.K.M., this child remained with appellant for twenty-two months until she was placed in the home of her maternal grandparents. A.K.M. remained there for four years before she was removed to a foster home. Unlike S.M.C., A.K.M. developed a deep relationship with appellant and her family. Since January of 1984, appellant has exhibited signs of maturity and stability and has become more involved in caring for A.K.M. on a daily basis. For instance, she would feed, clothe, clean, and discipline the child, prepare her for school, and take an interest in her development and studies. Nevertheless, I am disheartened in learning that while appellant limited her relationship to one man, her participation in parenting classes, GED courses, and mental health counseling, although improved, was remiss and inconsistent. Yet despite an imperfect attendance record, I note sufficient interest to demonstrate that appellant’s situation is remediable.

In addition, I find that A.K.M. was never without essential parental care, as required for termination under Sec. 2511(a)(2). The Pennsylvania Supreme Court in In re Adoption of R.W.B., 485 Pa. 168, 176, 401 A.2d 347, 351 (1979), held that a parent may fulfill his or her responsibility for parental duties by making reasonable arrangements for the temporary care of a child when the parent’s inability to care for the child resulted from the parent’s personal crisis.

After a careful and studied review of the record in light of the statutory requirements under 23 Pa.C.S.A. Sec. 2511, *594I find that it would be unconscionable to permanently sever the appellant’s natural ties with her daughter, A.K.M., since appellee failed to show by clear and convincing evidence that appellant’s parental rights should be terminated pursuant to 23 Pa.C.S.A. Secs. 2511(a)(2) and (a)(5).4 Although appellant has not been an ideal mother, I have reason to believe that a positive nurturing parent-child relationship exists. In this case, the parens patriae interest favors preservation, not severance, of natural familial bonds. Santosky v. Kramer, 455 U.S. at 766-767, 102 S.Ct. at 1402, 71 L.Ed.2d at 615.

Although my colleagues did not address the remaining issues raised by appellant since they decided to reverse the lower court decision with respect to both children, I will address the merits of these claims, since in one instance I have decided to affirm the lower court.

Appellant argues that the lower court improperly considered the best interests of the children in terminating appellant’s parental rights. I disagree. The legislative directive and statutory language under 23 Pa.C.S.A. Sec. 2511(b) indicates that the judiciary, when faced with a termination decision, “shall give primary consideration to the needs and welfare of the child.”5 Based on my review of the trial court opinion, I find the appellant’s contention is without merit.

Lastly, appellant argues that the trial court failed to acknowledge the interference caused by Children’s Services in appellant’s relationship with her children. I find no merit in this argument. While Children’s Services was involved in appellant’s familial relationship, it is noteworthy that a six-month period of separation as ordered by “the court or *595under a voluntary agreement with an agency,” must precede a termination order pursuant to Sec. 2511(a) of the Act. I sympathize with the appellant and acknowledge her increased burden, but it is impossible to preempt agency involvement, especially when a child has been adjudicated dependent and placed under foster care.

. As a general rule in custody cases, absent compelling reasons to the contrary, siblings should be raised in the same household. This rule, however, must yield to the principle that the best interests of each individual child must be given primary consideration. Commonwealth ex rel. Newcomer, 301 Pa.Super. 239, 447 A.2d 630 (1982). Since the statute or case law in parental termination cases is silent on this issue, we believe that if similar concepts were to be adopted in the case before us, compelling reasons, as outlined above, justify our findings.

. The scope of review in termination cases is to be distinguished from that review employed in custody cases. In the latter type case, this Court, in In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) (en banc), held that it was required to exercise independent judgment and would not adhere to an abuse of discretion standard.

. It is well established that a decision to terminate parental rights should be based on a current and future inability to care for a child and not on a parent’s past performance. Matter of Adoption of Ferrante, 334 Pa.Super. 53, 67, 482 A.2d 1076, 1084 (1984).

. It is noteworthy that the decision reversing termination is made without prejudice. Thus, if Children’s Services finds it necessary in the future, it may initiate termination proceedings against appellant.

. While this Court has acknowledged a difference between the “needs and welfare" terminology and "best interests” standard in In re Adoption of Michael J.C., 326 Pa.Super. 143, 473 A.2d 1021 (1984), the Pennsylvania Supreme Court, on review, did not address the distinction drawn by the Superior Court. See 506 Pa. 517, 486 A.2d 371 (1984).