J-S07031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ADOPTION OF: K.C.W., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: K.W., FATHER :
:
:
:
: No. 1285 WDA 2021
Appeal from the Order Entered October 7, 2021
In the Court of Common Pleas of Cambria County Orphans' Court at
No(s): 2021-291-IVT
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 23, 2022
K.W. (Father) appeals from the order entered in the Court of Common
Pleas of Cambria County (orphans’ court) granting the petition filed by
Cambria County Children and Youth Services (CYS) to involuntarily terminate
his parental rights to K.C.W. (Child) (d.o.b. February 2020) pursuant to the
Adoption Act, 23 Pa.C.S. § 2511 (a)(1), (2), (5), (8) and (b).1 He argues that
he would have made progress toward reunification if it were not for the Covid-
19 pandemic and his incarceration. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The October 7, 2021 order also involuntarily terminated the parental rights
of A.B.S. (Mother) to Child. She has appealed the order at docket number
1301 WDA 2021 and is not the subject of this appeal. She will only be
mentioned to the extent necessary to provide a full picture of the pertinent
events.
J-S07031-22
We take the following factual background and procedural history from
our independent review of the record and the trial court’s October 6, 2021
opinion.
I.
A.
CYS became involved in this case when Mother tested positive for
marijuana at the time of Child’s birth in February 2020. Upon being notified
of Mother’s positive drug test, CYS did an investigation that revealed severe
behavioral health, financial and domestic violence issues, as well as the fact
that the house where the parents resided was unsafe for Child. Father also
had outstanding criminal warrants, a history of substance abuse and domestic
violence. Both parents had the aggravating circumstance that their parental
rights to all of their other children had been involuntarily terminated. CYS
took custody of Child in the hospital two days after her birth and Child has not
been returned to parents’ care. Despite the aggravating circumstances, which
could have relieved CYS of its obligations to provide Father with the
opportunity for reunification, the agency elected to move ahead to assist him
in this effort. (See N.T. Termination of Parental Rights (TPR) Hearing,
6/28/21, at 37).
After a February 24, 2020 adjudicatory hearing, the orphans’ court
issued an order in which it directed that Father was to abide by the Family
Service/Permanency Plan in which he was to follow through with all
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recommendations from his psychological evaluations; successfully complete
parenting skills classes; undergo drug and alcohol assessments and random
drug screenings; not be aggressive or violent toward anyone; participate in
anger management and impulse control therapy/counseling; maintain a safe,
clean, adequately furnished home; take all appropriate steps to resolve
outstanding criminal proceedings and warrants; and cooperate fully with all
scheduled visits with CYS caseworkers and service providers, including
Independent Family Services, Inc. (IFS) and the Blair Foundation. Due to
Father’s substance abuse issues and depending on his level of intoxication,
the court ordered that he may not visit with or hold Child if he had a positive
drug/alcohol screen. (See id. at 18-19). The order also expressly provided:
[Mother] and [Father] are not to threaten, harass, or use vulgarity
toward [CYS] caseworker[s] or any service providers. These
actions will result in the filing of a criminal complaint. [Mother]
and [Father] are not to take any actions to instigate others to
make threats toward [CYS] staff.
(Order, 3/02/20, at Finding of Fact 15); (Orphans’ Ct. Op., at 5-6); (N.T. TPR
Hearing, 6/28/21, 18-19). The placement plan was reunification, with a
projected achievement date of six months, and the concurrent goal was to
place Child with a fit and willing relative, if identified.
On February 26, 2020, licensed psychologist Dennis M. Kashurba
evaluated Father to ascertain the appropriate services for him to demonstrate
parenting potential for Child.
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On July 27, 2020, the court held a permanency review hearing. It found
both parents minimally compliant, with both struggling to cooperate with
recommended services. Each had made only minimal progress in alleviating
the circumstances that necessitated placement. The Permanency Plan
provided that the goal continued to be reunification, with a concurrent goal of
adoption. Father and Mother were to continue with the steps outlined in the
March 2, 2020 order, supervised visits were established and both were to
continue to refrain from threatening conduct with caseworkers and service
providers. (See Orphans’ Ct. Op., at 7).
After a January 27, 2021 permanency review hearing, the court ordered
the goal changed from reunification to adoption. It again determined that
Father and Mother were only minimally compliant with the Permanency Plan
and were not cooperating with CYS or other providers. Child had been in
placement for eleven months at that time. In its February 9, 2021 order, the
orphans’ court specifically found:
• [C]hild has been in placement since February of 2020.
• The parents had failed to comply with the requirements of
[C]hild’s Permanency Plan.
• Both parents had active criminal cases.
• Mother still used illegal, unprescribed marijuana.
• Each parent had produced positive drug screens.
• Father tested positive multiple times using different illegal
substances.
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• The parties continued to engage in domestic violence.
• Father has a history of drug abuse.
• Father was not compliant with service providers.
• The parents had been verbally aggressive with the agency
caseworkers and service providers.
• The parents were discharged from anger management
classes at IFS due to noncompliance and being verbally
aggressive.
• The parents had not followed through with the
recommendations of their psychological evaluations.
• Mother continues to not address her mental health issues.
• Aggravating circumstances existed as to both parties as a
result of prior involuntary termination proceedings.
• [C]hild needs a permanent, consistent environment.
• CYS has exhausted all available resources.
• [C]hild’s best interest requires a goal change to adoption,
and the agency has met its burden of proof by clear and
convincing evidence.
(Orphans’ Ct. Op., at 9-10); (see also N.T. TPR Hearing, 6/28/21, at 22-23).
B.
On March 4, 2021, CYS filed a petition to involuntarily terminate the
parental rights of Child’s parents pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5) and (8) and (b) because of severe behavioral health, financial, substance
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abuse, shelter and domestic violence issues.2 (See N.T. TPR Hearing,
6/28/21, at 12). At that time, Child had been out of parents’ care for over
twelve months. The court held hearings on June 28, 2021, September 13,
2021, and September 15, 2021. CYS produced the testimony of Barb Lusczek,
CYS caseworker; Dennis Kashurba, licensed psychologist; Jennifer Drager,
Executive Director for In-Home Family Services with IFS; Tami Yeckley, CFS
caseworker; May Popovich, CYS casework supervisor; Julia Bloom, family
advocate with the Blair Foundation Path House; and Kathy Scaife of IFS.
Father testified on his own behalf.
1.
Ms. Lusczek was the CYS caseworker in this matter from mid-February
2021 forward.3 She testified that the juvenile court found aggravating
circumstances because both parents had their parental rights to a combined
total of seven other children terminated in Blair (Mother) and Dauphin (Father)
Counties. Although Father cooperated somewhat by completing the
psychological evaluation, attending parenting classes and showing some
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2The orphans’ court appointed counsel for each parent and Child. Because of
Child’s age, the court determined there was no conflict between Child’s legal
and best interests.
3 Ms. Lusczek was the third CYS caseworker in this matter. Ms. Cathy Gorba
was the intake caseworker. Ms. Chloe Barrett was the caseworker when Child
came into placement until February 2021 when, as described more above,
Father made the threats that formed the basis for his guilty plea to terroristic
threats. (See N.T. TPR Hearing, 6/28/21, at 47).
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interest in working with IFS for anger management, he was more focused on
social media and blaming others for the removal of Child than on doing what
the court had required of him. She further testified that his long-time drug
addiction was the biggest barrier to reunification and that he had produced
multiple positive drug screens throughout this case. (See N.T. Hearing,
6/28/21, at 16, 20-22, 34).
CYS initially scheduled weekly one-hour in-person visits with Child, but
from March 2020 until May 2020, the visits were changed to half-hour virtual
visits twice a week due to Covid-19. Thereafter, they returned to in-person
visits. At the time of the June 28, 2021 TPR hearing, the last time Father had
seen Child was in January 2021. At the visits, neither parent was attentive to
Child’s needs because they were so focused on arguing with each other. She
did not believe that the parents would put Child’s needs and welfare first.
Father had not done anything to show CYS that he could perform parental
duties on behalf of Child or that he would do what was necessary to enable
him to do so. Specifically, although he attended some parenting classes and
complied with getting the psychological evaluation, “there has been no
follow[-]through, no change in lifestyle, no application of what was learned
through the visits.” Ms. Lusczek assumed Father was drug-free at the time of
the June 28, 2021 TPR hearing because of being incarcerated, but stated that
he has not voluntarily remedied any issues and will have to deal with sobriety
when no longer confined. Father also relied on Mother for his housing, and
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there were still domestic violence, anger management and parenting issues.
(See id. at 23, 25-26, 29-31, 38).
Ms. Lusczek testified that by the time of the June 28, 2021 hearing,
Father had produced eight positive drug screens, continued to engage in
domestic violence, had not been compliant with the service providers, had
been verbally aggressive with CYS caseworkers and service providers and had
not followed through on recommendations. Additionally, Father threatened
his CYS caseworker, Ms. Barrett, and her child, in February 2021, resulting in
charges being filed and his guilty plea to terroristic threats. As a result of this
guilty plea, Father was incarcerated and unable to visit with Child. (See id.
at 22, 27-28).
Neither parent had done anything to demonstrate that they were able
to meet the emotional, physical, daily needs of Child or to take responsibility
for her initial removal. Instead, their focus remained on blaming CYS, their
caseworker, service providers and the foster family. (See id. at 31).
Ms. Lusczek stated that Child was developmentally on target, bonded
with her foster family4 and was doing well with them. She was sixteen-
months-old at the time of the June 28, 2021 TPR hearing and had been with
____________________________________________
4 The foster family is an adoptive resource and Child’s sibling also lives with
them. (See N.T. TPR Hearing, 9/13/21, at 63).
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the foster family for approximately one year at that time. The foster family
ensured that all of Child’s needs were met. (See id. at 24-25).
CYS believed that it would be in Child’s best interest to be adopted due
to drug and alcohol concerns about Father and his failure to do what he needed
to do to make a life better for Child. Ms. Lusczek testified that there was no
bond between Child and Father and severing his parental rights would not
negatively impact Child. It would promote her developmental, physical and
emotional needs because she was doing so well in her foster home and bonded
with the foster parents. She stated that a bond could have been developed
with the infant Child despite Covid-19 restrictions because she has seen it
happen in other families. (See id. at 34-36, 60).
2.
Ms. Popovich worked with Father in her supervisory role at CYS
beginning in early March 2020. CYS investigated Child’s home after receiving
the referral upon her birth and discovered that there was no hot water or
refrigerator, there were bedbugs and the home was in deplorable condition.
There were extreme anger issues, both Father and Mother committed
domestic violence and Father had several criminal charges and drug issues.
She described Child’s parents as being extremely argumentative and
uncooperative, explaining that she had worked with many families in her
nearly ten-year career with CYS and had “never been called so many F-words
and swear words and stuff as [she] was with this family.” (N.T. TPR Hearing,
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9/13/21, at 43). “They continuously harassed the caseworker[, her,] their
attorneys and a judge on Facebook. They were very aggressive.” (Id.).
Although they initially signed releases for medical and therapeutic records,
they revoked them when the goal was changed to adoption. They refused to
meet with the CYS caseworker or to allow her to enter the home to assess if
they had made any recommended changes. (See at 42-44, 47-48).
To explain the argumentative, contentious and threatening situation
created by the parents, Ms. Popovich also testified about CYS filing a contempt
action against the parents for violating the Court’s March 2, 2020 order
directing them to refrain from threatening, harassing or using vulgarity toward
CYS caseworkers or service providers. She explained that their numerous
social media posts demonstrated that they did not appear at all concerned
about Child, but instead claimed they were victims themselves, calling CYS
kidnappers and accusing them of sex trafficking and of allowing children to be
sexually abused by putting them into the Mennonite sect. They harassed CYS
caseworkers on social media that were not even involved in this case, posted
photographs, phone numbers and court documents in an attempt to gain
sympathy for themselves and made accusations about anyone in the court
system involved in their case, including a judge and their own attorney. Both
parents were held in contempt. (See id. at 49-53).
She also testified about Father’s terroristic threats incident. She said
that consistent with his threatening social media behavior, on the February
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2021 day in question, he was driving his car when he saw his caseworker, Ms.
Barrett, outside shoveling snow. He turned the car around, got out and
threatened both her and her child. CYS removed Ms. Barrett from the case
and had to move her to another location. Her child went to live with relatives
out of fear for the child’s safety. (See id. at 48-49, 58).
Ms. Popovich also explained that although Father and Mother were
referred to IFS for anger management, they were uncooperative and
unsuccessfully discharged. Father was referred for drug and alcohol services
but was discharged due to his disruptive behavior and his failure to follow
through with all meetings. He tested positive for drugs and was put on a
Suboxone treatment, but because he refused to sign releases, CYS did not
have any further information on that or if he sought anger management
services elsewhere as directed. (See id. at 55-56).
When asked if Father and Mother were receiving a lesser standard of
care in the reunification attempt due to their treatment of CYS, Ms. Popovich
responded that they actually got more than most cases did. For example,
most cases have one visit per week with a child, while they were given two.
They were provided with every service available to CYS and they chose not to
work with them. When they seemed unable to work with CYS service
providers, CYS suggested other sources they could use. Thus, CYS was
providing them with everything they needed to achieve reunification. (See
id. at 65).
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3.
Blair Foundation Path House family advocate Ms. Bloom testified that
her role was supervising the visits and doing active parenting with the family.
Ms. Bloom estimated only approximately eighteen out of the fifty-four visits
at Blair Foundation were virtual. She had witnessed other infants going
through a similar visitation situation during the Covid-19 pandemic, and the
parents in those situations had been able to follow the required steps for
reunification and created a bond with their infants. However, although Ms.
Bloom completed the active parenting book with Father, a bond was not
established between Father and Child because he did not take her advice
about how to establish one. Father and Mother did not apply the active
parenting curriculum to the visits at all and instead of maximizing the
visitation time, Father often argued with Mother, had to be asked to step out
from the visits on a few occasions and refused to be part of another visit.
Father did not know where Child was developmentally and, although Child had
started talking and was very talkative at her foster home, she would not talk
to her parents at the visits. When Father visited with Child in August 2021,
Child appeared to be afraid of him because she had not seen him since his last
visit in January 2021. Ms. Bloom testified that since Father had failed several
drug screens, he would not be able to care for Child alone and, because of the
consistent fighting between the parents, she would not put Child in their care.
(See N.T. TPR Hearing, 9/13/21, at 12-16, 19-20, 22-25, 28, 32).
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Ms. Bloom observed Child with the foster parents when they would drop
her off and pick her up from visits with her biological parents. She described
Child as “light[ing] up” when with them. Ms. Bloom observed a bond between
Child and her foster parents, was happy when with them and very upset when
taken from them for a visit. She agreed that changing Child’s goal to adoption
was in her best interest because her needs were met and she was in a safe
environment with the foster parents. (See id. at 24-25).
4.
Ms. Scaife of the IFS Home Management Program worked with Child’s
family on the living conditions at the home from February 2020 until January
2021. (See N.T. TPR Hearing, 9/13/21, at 74). On her first visit, she observed
that leaking pipes had soaked the kitchen floor, the refrigerator was not
working and there was no hot water tank. She worked with both Father and
Mother together and noticed that Father got agitated very easily, but they
were compliant. Father had a hot water tank installed and some leaks had
been repaired. IFS was able to obtain a refrigerator, some furniture and
household items for them. Despite these improvements, she recommended
that Child not be returned to Father and Mother’s custody because of their
anger/relationship issues. Because of those continued problems, she
supported the goal change to adoption. (See id. at 74-78).
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5.
Father testified that the most important thing to him in this situation is
Child. He stated that he no longer used heroin and that the two times he
tested positive for alcohol before visits with Child was from drinking the
previous night. According to Father, CYS had mistaken him for someone else
when they reported anger issues and that is why he mistrusted them. He
testified that he was unable to get a job because CYS had him attending too
many group sessions and that, once he did find a job, they increased his days
with IFS because they wanted him to fail. By the time of his testimony on
September 15, 2020, he was no longer incarcerated on the terroristic threats
charge. (See N.T. TPR Hearing, 9/15/21, at 61, 65-66, 68, 70-71, 76).
Although he alleged that Ms. Barrett was incapable of doing her job, he
said his threatening actions against her were due to months of frustration with
CYS, not her personally, and he claimed that CYS was planning for his
incarceration all along, targeting him and Mother from the beginning based on
their perception of Mother, not on his actions. He said it was impossible to
form a bond with his infant daughter through Facetime and, contrary to CYS
testimony, he did interact with her. He believed that most of the information
obtained by CYS was from his mother, who was biased against him and whom
he characterized as evil. Father posted on social media because CYS is part
of a “nationwide problem” that agitates and disgusts him because they require
parents to attend services so that the agency can get funding. He admitted
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that he still needs to remedy the problems that led to Child’s removal but
asked that he be given more time. (See id. at 69, 72-73, 77-83).
On October 6, 2021, the orphans’ court entered an order finding clear
and convincing evidence to support involuntarily terminating the parental
rights of Father pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). Father
timely appealed and filed a contemporaneous statement of errors.5 See
Pa.R.A.P. 1925(a)(2)(i).
II.
A.
The orphans’ court terminated Father’s parental rights pursuant to
Section 2511(a)(1),(2), (5), (8) and (b) of the Adoption Act, which provide:
(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
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5 We review the orphans’ court’s order for an abuse of discretion. See In re
G.M.S., 193 A.3d 395, 399 (Pa. Super. 2018) (citation omitted). Moreover,
“[w]e give great deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.” In re Interest of
D.F., 165 A.3d 960, 966 (Pa. Super. 2017). “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 S.H., 879 A.2d
802, 805 (Pa. Super. 2005). “The trial court is free to believe all, part, or
none of the evidence presented and is likewise free to make all credibility
determinations and resolve conflicts in the evidence.” In re A.S., 11 A.3d
473, 477 (Pa. Super. 2010). “If competent evidence supports the trial court’s
findings, we will affirm even if the record could also support the opposite
result.” Id.
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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 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.
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23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).
It is well-settled that “[w]e need only agree with [the trial court’s]
decision as to any one subsection of Section 2511(a) and subsection (b) in
order to affirm the termination of parental rights.” Int. of K.M.W., 238 A.3d
465, 473 (Pa. Super. 2000) (citation omitted). For the following reasons, we
conclude that the orphans’ court correctly determined that CYS met its burden
of proof under subsections 2511(a)(2) and (b).
B.
Father argues that the orphans’ court erred in finding that CYS produced
clear and convincing evidence to support the termination of his parental rights.
Although he admits that he “failed to take the steps to reunify with [C]hild,”
he argues that “Covid-19 has had such a tremendous and disastrous[] effect
on his case that it would be improper not to adjust the lens through which his
actions are viewed.” (Father’s Brief, at 11). Specifically, he points to the fact
that he had virtual visits with the Child that rendered him unable to maximize
reunification efforts, and that when the visits were again in-person, “he was
incarcerated and could not meaningfully participate.” (Id. at 13).
We first address the court’s termination of Father’s parental rights
pursuant to Section 2511(a)(2). See Int. of K.M.W., supra at 473.
In a termination proceeding, the moving party must produce clear and
convincing evidence with respect to the following elements to terminate
parental rights pursuant to Section 2511(a)(2): (1) repeated and continued
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incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or
refusal caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.
2003).
Pursuant to Section 2511(a)(2), parents are “required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” In re J.R.E., 218 A.3d 920, 925 (Pa. Super. 2019) (citation
omitted). “A parent’s vow to cooperate, after a long period of
uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous.” See id. (citation omitted).
“The grounds for termination of parental rights under Section 2511(a)(2) due
to parental incapacity that cannot be remedied are not limited to affirmative
misconduct; to the contrary, those grounds may include acts of refusal as well
as incapacity to perform parental duties.” In re S.C., 247 A.3d 1097, 1104
(Pa. Super. 2021) (citation omitted).
Where the parent is incarcerated:
the fact of incarceration does not, in itself, provide grounds for the
termination of parental rights. However, a parent’s
responsibilities are not tolled during incarceration. The focus is
on whether the parent utilized resources available while in prison
to maintain a relationship with his ... child. An incarcerated parent
is expected to utilize all available resources to foster a continuing
close relationship with his ... children.
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* * *
Although a parent is not required to perform the impossible, he
must act affirmatively to maintain his relationship with his child,
even in difficult circumstances. A parent has the duty to exert
himself, to take and maintain a place of importance in the child’s
life.
In re Z.P., 994 A.2d 1108, 1120 (citation omitted). Further, “[t]he cause of
incarceration may be particularly relevant to the Section 2511(a) analysis,
where imprisonment arises as a direct result of the parent’s actions which
were part of the original reasons for the removal of the child.” Id. (citation
and internal quotation marks omitted).
Instantly, the orphans’ court explains that:
The relationship between [Child’s parents ] and CYS can be
described in a few words as noncooperative and hostile. Each
parent talked a good game on direct and cross-examination. Each
parent asked for more time to improve, blaming everyone else for
their shortfalls. As stated by the Pennsylvania Superior Court in
In Re: Adoption of R.J.S., 901 A.2d 502[,] 513 (Pa. Super.
2006) …
The Court cannot and will not subordinate
indefinitely a child’s need for permanency and stability to
a parent’s claims of progress and hope for the future.
Indeed, we work under statutory and case law that
contemplates only a short period of time … in which to
complete the process of either reunification or adoption for
a child who has been placed in foster care.
… Petitioner, [CYS] has established a legal basis for
terminating the parental rights of [Father.]
(Orphans’ Ct. Op., at 10).
It is undisputed that Child, approximately sixteen-months-old at the
time of the first TPR hearing, had been in foster placement since birth. CYS
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presented clear and convincing evidence that the conditions that led to Child’s
placement continued to exist.
Father argues that he initially complied with the court’s order that he
complete a psychological evaluation and complete parenting classes, showed
an interest in working with a provider to address anger management issues
and began attending in-person visitation. (See Father’s Brief, at 12) (citing
N.T. TPR Hearing, 6/28/21, at 20). Although he admittedly “failed to take the
steps to reunify with [C]hild,” he asserts that, “but for Covid, [and his
incarceration he] would have been able to make the necessary progress to
reunite.” (Id. at 9, 11); (see id. at 12). The evidence of record belies his
argument.
Ms. Lusczek testified that Father’s goals, including addressing his legal
issues, attending anger management classes and remaining drug-free,
remained the same throughout the life of this case, and that he was more
focused on social media and blaming others than he was on making efforts to
reunify with Child. (See N.T. Hearing, 6/28/21, at 20). He had multiple
positive drug test results during the life of this case, which was a barrier to
reunification. (See id. at 21-22). He was discharged from the anger
management program at IFS due to his own volatile actions during the
attempted treatment. (See id. at 22). Ms. Popovich testified that Father was
given more reunification attempts than most because he was given two visits
per week instead of one and was provided with every service available to CYS,
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of which he elected not to avail himself, and the agency even provided him
with alternative sources. (See N.T. Hearing, 9/13/21, at 65). Despite
Father’s claims that he did not have the benefit of in-person visits with his
Child and that he could not meaningfully participate when the visits returned
to in-person because of his incarceration, Ms. Bloom testified that only
eighteen out of the fifty-four visits offered to Father were virtual due to Covid-
19. (See Father’s Brief, at 13); (N.T. Hearing, 9/13/21, at 32). Of the
approximately thirty-six in-person visits he had in the two years since Child’s
birth and removal, Father argued with Mother, refused to be part of one visit
and had to be asked to leave on others because of his volatile actions. (See
N.T. Hearing, 9/13/21, at 14-16, 23-24).
In fact, Father’s incarceration of which he now complains was due to his
criminal actions against a caseworker attempting to provide him with
reunification opportunities in this case. Not only were his actions criminal, but
they also violated the express terms of the March 2, 2020 Permanency Plan
order that he not threaten, harass or use vulgarity toward anyone at CYS or
its service providers. Rather than working with his caseworkers so that he
might reunify with Child, he focused on his anger and hatred toward CYS. In
addition to his myriad social media posts, he threatened Ms. Barrett and her
child, which resulted in the filing of criminal charges, his guilty plea to
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terroristic threats and his incarceration. (See N.T. 6/28/21, at 28).6 For him
to utilize his own actions in this case that resulted in incarceration as a
justification for his failure to bond with Child is not convincing. Moreover, it
does not excuse his inaction in working toward reunification prior to the
incarceration.
Based on the foregoing, despite Covid-19 and Father’s incarceration,
CYS provided clear and convincing evidence that due to his continued
incapacity, he is unable to provide Child with the essential care necessary for
her physical and mental well-being. The orphans’ court did not abuse its
discretion in finding that CYS presented sufficiently clear and convincing
evidence to support termination based on Section 2511(a)(2).
C.
Having determined that the court properly found that termination of
Father’s parental rights was appropriate under subsection 2511(a)(2), we now
consider whether termination is in Child’s best interest pursuant to subsection
2511(b).7
____________________________________________
6 Father also complains that he did not have a consistent relationship with his
caseworker. (See Father’s Brief, at 13). However, any inconsistency in
caseworkers was in large part due to Father’s criminal actions that resulted in
his caseworker’s removal for her own safety. In any event, as we stated above
regarding his incarceration excuse, it does not alter the fact that he failed to
avail himself of offered services.
7 Father does not specifically address Section 2511(b). (See Father’s Brief,
at 11-14). However, we include our analysis of this section to provide a full
review of the orphans’ court’s decision.
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With respect to Section 2511(b), our analysis focuses on the
effect that terminating the parental bond will have on the child.
In particular, we review whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. It is well settled that intangibles
such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.
One major aspect of the “needs and welfare” analysis
concerns the nature and status of the emotional bond that the
child has with the parent, with close attention paid to the effect
on the child of permanently severing any such bond. The fact that
a child has a bond with a parent does not preclude the termination
of parental rights. Rather, the trial 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. Notably, where there is no evidence
of a bond between the parent and child, it is reasonable to infer
that no bond exists.
It is sufficient for the trial court to rely on the opinions of
social workers and caseworkers when evaluating the impact that
termination of parental rights will have on a child. The trial court
may consider intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent.
Int. of K.M.W., supra at 475 (case citations and most quotation marks
omitted).
Ms. Bloom testified that Father and Child really did not have a bond.
(See N.T. TPR Hearing, 9/13/21, at 20). She stated that both biological
parents failed to take her advice about what they could do to establish a bond
with Child. (See id. at 28). When Father visited with Child in August 2021,
Child appeared to be frightened of him since he had not visited with her since
February 2021. (See id. at 20, 28). Child was bonded with her foster family
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and Ms. Bloom agreed that changing her goal to adoption was in her best
interest. (See id. at 25).
Ms. Lusczek also testified that Child was developmentally on target and
had a bond with her foster family, which provided her with love, comfort,
security and stability. (N.T. TPR Hearing, 6/28/21, at 24-25). She opined
that it would be in Child’s best interest to stay with the foster parents and that
severing any bond with her biological parents would not negatively impact her
in any way. (See N.T. TPR Hearing, 6/28/21, at 33-36). Ms. Popovich stated
that the foster family was an adoptive resource and that Child’s sibling also
lived there. (See N.T. TPR Hearing, 9/13/21, at 63). Hence, the record
supports the orphans’ court’s finding that the credible CYS witnesses
established that the termination of Father’s parental rights would best serve
Child’s interest pursuant to Section 2511(b) and we find no abuse of discretion
in its decision to terminate Father’s parental rights to Child and in changing
its goal to adoption.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2022
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