In the Int. of: K.V., Appeal of: C.V. ( 2022 )

J-S36003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.V., FATHER :
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: No. 1201 EDA 2021
Appeal from the Order Entered June 7, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
CP-64-DP-0000008-2020
IN THE INTEREST OF: K.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: C.V., FATHER :
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:
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: No. 1202 EDA 2021
Appeal from the Order Entered May 7, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
CP-64-DP-0000009-2020
IN THE INTEREST OF: K.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.V., FATHER :
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:
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: No. 1371 EDA 2021
Appeal from the Order Entered June 9, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
CP-64-DP-0000009-2020
IN THE INTEREST OF: K.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
J-S36003-21
:
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APPEAL OF: C.V., FATHER :
:
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: No. 1372 EDA 2021
Appeal from the Order Entered June 7, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
7-AD-2021
IN THE INTEREST OF: K.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.V., FATHER :
:
:
:
: No. 1373 EDA 2021
Appeal from the Order Entered June 9, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
CP-64-DP-0000008-2020
IN THE INTEREST OF: K.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.V., FATHER :
:
:
:
: No. 1374 EDA 2021
Appeal from the Order Entered June 7, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
8-AD-2021
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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MEMORANDUM BY LAZARUS, J.: FILED JANUARY 25, 2022
C.V. (Father) appeals1 from the orders,2 entered in the Court of Common
Pleas of Wayne County, finding aggravated circumstances, changing the
permanency goal to adoption, and involuntarily terminating his parental rights
to his twin children, K.V. and K.V. (born August 2014) (collectively, Children).
After careful review, we affirm.
On February 2, 2021, officers stopped a vehicle Mother3 was driving and
in which Father and Children were passengers. At the time of the stop, Father
was under the influence. Both Mother and Father admitted that they were
habitual drug users addicted to methamphetamine and cocaine. Children were
not wearing seatbelts. Following a search of the vehicle, law enforcement
found Father in possession of marijuana and a crack pipe. On February 4,
2020, the police observed more drug paraphernalia during a search of Father’s
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1 On September 7, 2021, our Court sua sponte consolidated Father’s appeals
at Nos. 1201-1202 EDA 2021 and Nos. 1372-1373 EDA 2021. See Pa.R.A.P.
513.
2 Father filed separate notices of appeal from each order in each docketed
case. Thus, the concerns raised in Commonwealth v. Walker, 185 A.3d
960, 976 (Pa. 2018), are not implicated in this appeal. See id. at 976-77(establishing “bright-line mandatory instruction to practitioners to file
separate notices of appeal”).
3Children’s Mother’s parental rights were also involuntarily terminated. She
has filed a separate appeal to this Court at Nos. 1369 EDA 2021 and 1370
EDA 2021.
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home.4 At that time, Children had missed approximately 20 days of school
and, ultimately, had to repeat kindergarten.
On February 4, 2020, the court held a shelter care hearing and entered
an emergency protective order temporarily transferring custody of Children to
Wayne County Children and Youth Services (CYS). Father was represented at
the shelter care hearing by appointed counsel. The court ordered supervised
visitation between Father and Children no less than twice per month 5 and
established the following permanency plan and objectives for Father: receive
parenting education classes; obtain drug and alcohol evaluations; and “follow
any and all recommendations, [including] sign[ing] releases for [CYS].”
Permanency Plan Order, 2/11/20; Id. at 2/19/20. Concurrent goals of
reunification and adoption were established.
On February 7, 2020, Father tested positive for methamphetamine,
amphetamine, cocaine, and marijuana. Father also tested positive for
methamphetamine, amphetamine, and marijuana on February 11, 2020.
Children were adjudicated dependent on February 20, 2020, and placed
into a “resource home” in Honesdale, Pennsylvania. During Children’s
placement, Father completed inpatient treatment, but did not follow up with
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4During their initial search of Parents’ residence, police suspected a potential
methamphetamine lab had been erected and was operational within the home.
However, upon further investigation, it was determined not to be one.
5The visitation plan specifically stated that “Parents are responsible for their
own transportation” to and from visits. Visitation Plan, 2/19/20, at 12.
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any recommendations. Father admitted to relapsing and using drugs again,
struggling with mental health issues, including diagnoses of depression and
anxiety. Father attended between 14%-18%6 of his scheduled visits with
Children; the visits were held in-person, virtually, and over the phone.
With regard to his progress and compliance with service plan objectives,
CYS deemed Father to have “minimally” complied/progressed at the June
2020 and June 2021 hearings, and “no[t to have]” complied at the September
2020, December 2020, and March 2021 permanency hearings. N.T. Goal
Change/Termination Hearing, 6/7/21, at 16-17. CYS caseworker Sarah Hoger
testified that she or another caseworker would tell Parents what the
concurrent goal was throughout the process, what the expectations were for
each Parent with regard to their individual service plans, and would also leave
voicemails and send emails to Father telling him to call CYS to set up visits.
Id. at 39.
Father was incarcerated from April 5, 2021; he was still incarcerated at
the time of the parties’ goal change/termination hearing on June 7, 2021.
While in jail, Father completed a childcare program and attended all of his PA
Treatment and Healing (PATH) appointments. Id. at 32. Father wrote letters
to Children while incarcerated and also saw a prison psychiatrist who stabilized
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6 At the aggravated circumstances hearing, CYS caseworker Hoger testified
that Father attended 16 out of 112 scheduled visits. N.T. Aggravated
Circumstances Hearing, 5/6/21, at 5. However, at the goal
change/termination hearing, Hoger testified that Father attended 18 out of 98
visits. N.T. Goal Change/Termination Hearing, 6/7/21, at 13.
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his medications to treat his depression and anxiety. Id. Moreover, a CYS
caseworker went to the prison directly to see Father to set up visits with
Children. N.T. Aggravated Circumstances Hearing, 5/6/21, at 14-15, 18.
A CYS caseworker testified that Father had trouble attending in-person
visits due to lack of transportation so the agency made accommodations by
providing him transportation to visits and also offering him telephonic and
virtual visits. Id. at 39-40. That same caseworker testified that, since his
incarceration, Father set up visits with Children, and during those visits
Children seem “happy to see their father.” Id. at 33. However, the
caseworker acknowledged that the agency had trouble reaching Father from
May through July 2020 and then again from August 2020 through March 2021
after his phone was disconnected. Id. at 35; see N.T. Aggravated
Circumstances Hearing, 5/6/21, at 27 (social worker in charge of arranging
visitation for Father testified she reached out to Father via email and telephone
“an average of five times a week, sometimes several times in a day . . . [over]
the last six months” prior to aggravated circumstances hearing; Father only
answered phone one time and hung up on social worker). Father’s service
plan required him “to provide the agency with any changes in the family’s
address, children’s address, or family circumstances within 24 hours.” Service
Plan, 2/19/20, at 14. See N.T. Aggravated Circumstances Hearing, 5/6/21,
at 12-13 (caseworker testifying Father never updated his phone number after
phone number on file disconnected and did not respond to CYS emails); see
also id. at 28 (social worker testifying that email she used to contact Father
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over six-month period “works” because paternal grandmother used same
email to arrange virtual visits with Children).
Father testified that he could not accomplish his service plan goals in
the 15-month period that Children have been in placement. Id. at 73. While
Father testified that he is now in a much better place emotionally and mentally
than he was when Children were first put into placement, he also stated that
it would take him “three months or so” after his release from jail to “have
everything on track” and achieve his service objectives. Id.
On April 19, 2021, CYS filed a motion for aggravated circumstances with
regard to Father. See generally 42 Pa.C.S. § 6302 (disposition best suited
to protection and physical, mental, and moral welfare of Children). Counsel
was appointed to represent Father in May 2021, prior to the aggravated
circumstances hearing.7 On May 7, 2021, the trial court held a hearing and
concluded that clear and convincing evidence established that aggravated
circumstances exist as to Father where he “failed to maintain substantial and
continuing contact with [Children] for a period of six months.” Id. at §
6302(1)(ii) (defining “Aggravated circumstances”). The trial court also
determined that CYS no longer needed to make reasonable efforts to reunify
Child with Father. Id. The court gave the following oral ruling:
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7However, a caseworker testified that, as per routine procedure, during each
court hearing (beginning with the date of placement) CYS would give Father
paperwork to fill out to have the court appoint an attorney for him. Id. at 36.
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C[YS] today provided information and testimony in regards to
helping [Father] with drug and alcohol addiction issues[,] as well
as mental health services for [F]ather, and the same is evidenced.
If you just go back through the findings of this [c]ourt and the
permanency plan sheets, it’s all written down in there, there’s
clearly a failure on behalf of [F]ather to make an effort to visit
with [C]hildren over the past six months. Testimony from [CYS]
is clear they attempted to do so on multiple occasions. There’s
also evidence that [F]ather has failed to update [CYS] on a phone
number or provide information on how to best reach him.
Testimony has shown that he has failed to respond to numerous
phone calls and emails by the agency to initial contact with these
minor children over the period of time of the last six months, and,
thus[,] aggravate[ed] circumstances do exist.
N.T. Aggravated Circumstances Hearing, 5/6/21, at 29.
On May 12, 2021, CYS filed petitions seeking to involuntarily terminate
Mother’s parental rights based on 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and
(b). On June 7, 2021, the trial court held a goal change/termination hearing8
at which Mother, Father, and CYS caseworker Hoger testified. Following the
hearing, the court granted CYS’ petitions and terminated Mother’s and Father’s
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8Guardian ad litem, John Martin, II, Esquire, was appointed on February 5,
2020, and represented Children at the termination hearing.
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parental rights pursuant to sections 2511(a)(2) and (b)9 of the Adoption Act.10
Father filed, contemporaneously, a timely notice of appeal and Pa.R.A.P.
1925(a)(2) concise statement of errors complained of on appeal. Father
presents the following issues for our consideration:
(1) Whether the trial court erred as a matter of law and abused
its discretion in finding aggravating circumstances exist as
to Father and no efforts are to be made to preserve the
family and reunify [Children] with Father and changed the
goal to adoption[.]
(2) Whether the trial court erred as a matter of law and abused
its discretion in finding that Father failed to maintain
substantial and continuing contact with [Children] for a
period of six months, when the six months had not expired
and when the evidence presented at trial supported a finding
that Father was denied contact with [Children] due to the
COVID-19 pandemic[.]
(3) Whether the trial court erred as a matter of law and abused
its discretion in failing to appoint counsel for Father prior to
[CYS]’s filing of the [m]otion of [f]inding of [a]ggravated
[c]ircumstances[.]
(4) Whether the trial court erred as a matter of law and abused
its discretion in failing to find that [CYS] did not timely
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9 See 23 Pa.C.S. § 2511(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.”).
10 23 Pa.C.S. §§ 2101-2938.
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contact and accommodate Father with visitation and
communication with [Children.]
(5) Whether the trial court erred as a matter of law and abused
its discretion in terminating Father’s parental rights[.]
Father’s Brief, at 9-10.
Father first challenges the trial court’s finding that aggravated
circumstances existed under the Juvenile Act and that “[n]o efforts [were] to
be made to preserve the family and reunify [Children] with Father.”
Aggravated Circumstances Order, 5/7/21.
In an appeal from an order finding aggravated circumstances, we review
for an abuse of discretion. In the Interest of L.Z., 111 A.3d 1164, 1174
(Pa. 2015). In dependency cases, “an appellate court [] accept[s] the findings
of fact and credibility determinations of the trial court if they are supported by
the record, but [we] do[] not [have] to accept the [trial] court’s inferences or
conclusions of law.” Id. (citation omitted).
The Juvenile Act provides that a child may be adjudicated dependent if
the child meets the requirements of one of ten definitions listed in 42 Pa.C.S.
§ 6302. If a juvenile court determines that a child is dependent, and
aggravated circumstances have been alleged by either the county agency or
by the child’s attorney, the court must also determine if aggravated
circumstances exist. 42 Pa.C.S. § 6341(c.1). If the court determines that
aggravated circumstances do exist, the court must then consider whether
reasonable efforts should be made to reunify the child with his or her parent.
Id. Following a finding of aggravated circumstances, a court may end
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reasonable efforts at its discretion. In re L.V., 127 A.3d 831, 839 (Pa. Super.
2015) (citation omitted).
Instantly, the trial court found aggravated circumstances with regard to
Father under the following Juvenile Act provision:
(1) The child is in the custody of a county agency and[]:
***
(ii) the identity or whereabouts of the parents is
known and the parents have failed to maintain
substantial and continuing contact with the
child for a period of six months.
42 Pa.C.S. § 6302(1)(ii) (emphasis added).
Here, Children were removed from Father on February 4, 2020, and
declared dependent on February 20, 2020. Father was incarcerated on April
5, 2021, and aggravated circumstances were found to exist on May 7, 2021.
Therefore, for more than one year Father either completely failed to or
minimally progressed or complied with his plan goals. Father admittedly
continued to sink deeper and deeper into his drug addiction and also refused
to treat his significant mental health issues when given the opportunity to do
so by CYS. While the pandemic certainly made in-person treatment difficult,
if not impossible, Father could have exercised the option of virtual telehealth
appointments. Instead, Father chose to walk out during intake for one of his
services and also to refuse treatment altogether.
Father was also offered 112 visits; he attended 16 of those visits. See
supra at n.5. Eight of the visits were in-person, six were virtual and two were
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held over the phone while he was in rehabilitation. N.T. Aggravated
Circumstances Hearing, 5/6/21, at 6. The last time Father saw Children was
October 2020. Id.
Prior to his incarceration, Father had attended three inpatient/outpatient
services, id. at 44, only one of which led to a successful discharge. Id. at 45.
Father was “encouraged” by CYS to participate in drug and alcohol services to
treat his addiction issues. A CYS caseworker testified that CYS set up drug
and alcohol services for Father in September 2020,11 but Father walked out
during the intake process “stating that he didn’t want to attend in[]patient
services.” Id. See id. at 9 (caseworker testifying Father “stated that he did
not need rehab[ilitation] or drug and alcohol services”). Father also failed to
treat his mental health issues before his incarceration despite CYS urging him
to set up mental health services to address his depression and anxiety issues,
id. at 10, and providing him with a list of behavioral health centers to address
those concerns. Id. at 11.
CYS caseworker Hoger testified that, assuming Father completed all of
his plan goals (obtain housing and employment and treat his mental health,
drug, and alcohol problems), the earliest Children could be returned to him
would be one year after his release from prison. Id. Caseworker Hoger also
testified that CYS no longer believed that reunification was an appropriate
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11 The record incorrectly states September 2021. See id.
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goal, asked that the goal to be changed to adoption, and stated that Children
could likely be adopted within three months. Id. at 18.
It is well-established that parents have an affirmative duty to maintain
a place of importance in their children’s lives:
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 or her
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.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
“This affirmative duty . . . requires continuing interest in the child and a
genuine effort to maintain communication and association with the child.” Id.(quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003)). Finally,
“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 [the child’s] physical and emotional needs.” In re B., N.M., supra at
855.
Due to prison policy during the COVID-19 pandemic, Father claims he
was not permitted to have in-person visits in January 2021 until the
aggravated circumstances hearing in May 2021. Father’s Brief, at 14. Father
contends that during this time period, CYS did not arrange for video or phone
visitation, despite his requests for same. Id. Counsel for Father argues that
“[i]n light of the world-wide pandemic, more time should have been given to
Father, given his mental and substance abuse illnesses that were not properly
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addressed until he was incarcerated.” Id. at 17. Finally, Father alleges that
he was not appointed counsel until two weeks after CYS’ aggravated
circumstances motion was filed. Id.
At the aggravated circumstances hearing, CYS caseworker Hoger
testified that while there was a ten-day quarantine period for Father when he
was first incarcerated in April 2021, the pandemic did not “affect[ Father’s]
ability to see [Children] in any way over the last six months.” N.T. Aggravated
Circumstances Hearing, 5/7/21, at 12, 18. Visits were held virtually until
March 2, 2021, returned to in-person briefly, and then held virtually again.
Id. at 12. However, during the in-person period, CYS offered virtual visitation
as an option to Father. Id. Caseworker Hoger testified that during those
months, CYS tried to contact Father to set up visits, “but he did not attend
any of them.” Id.
In its Rule 1925(a) opinion, the trial court found that although CYS
“encouraged and advocated for Father to receive drug and alcohol
rehabilitative services [and] mental health treatment[,] . . . Father . . . did
not cooperate with [CYS] to obtain rehabilitative services necessary in order
to [fulfill] parental duties.” Trial Court Opinion, 7/8/21, at 2-3. The court also
noted:
CYS presented Father with multiple opportunities to maintain
substantial and continuing contacts with the minor children, and
he failed to take advantage of those opportunities. Because
Father only attended 16 out of the possible 112 visits,[12] and he
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12 See supra at n.4.
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failed to take advantage of the 96 other opportunities to spend
time with the minor children, this [c]ourt found that Father did not
meet his parental duty.
Id. at 4.
After an exhaustive review of the record, including the notes of
testimony from the aggravated circumstances hearing, we conclude that the
trial court correctly found that aggravated circumstances existed with regard
to Father. The court deemed credible CYS’ evidence that Father had not taken
advantage of services offered for him to accomplish his service plan
objectives. Moreover, Father’s contention that because of the pandemic he
did not have access to the necessary services and that CYS placed unrealistic
expectations on him to succeed in his goals is simply disingenuous. He was
given over a year to comply and progress and never exceeded “minimal”
compliance over that time period. Further, many of Father services and visits
were offered as virtual options to accommodate COVID-19 protocols.
Accordingly, we conclude that the court properly determined that Father failed
to maintain substantial and continuing contact with Children for a period of six
months, 42 Pa.C.S. § 6302(1)(ii), and, thus, aggravated circumstances
existed and the court did not abuse its discretion in concluding that CYS no
longer had to make reasonable efforts to reunify Children with Father. In re
L.V., supra.
With regard to Father’s claim that he was unrepresented at the time CYS
filed the motion for aggravated circumstances, the court noted that “[i]t is this
[c]ourt’s standard practice to ask if Father wants an attorney, and the court
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made every effort and asked Father whether he wanted to obtain legal
representation.” Trial Court Opinion, 7/8/21, at 4. The court then stated that
Father either failed to appear for the hearing, rejected the offer for court-
appointed counsel “at other stages of the litigation[,] or failed to request the
appointment of counsel.” Id. at 5.
Our review of the record supports the court’s conclusions. First, Father
admittedly was represented at the aggravated circumstances hearing, where
he was able to present evidence. Second, the record is replete with docket
entries indicating that Father was given notice that he had a right to
representation at all stages of the proceedings, and, that if he could not afford
an attorney, one would be provided for him. Finally, Father was told that he
would need to fill out CYS paperwork in order to determine if he qualified for
a court-appointed attorney. Because a parent waives his or her right to
counsel if that parent is provided with clear instruction on how to petition for
the appointment of counsel, but fails to take action, In re A.R., 125 A.3d 420,
424 (Pa. Super. 2015) (citation omitted), we find no merit to Father’s claim.
Finally, Father argues that the trial court improperly terminated his
parental rights under section 2511(a)(2)13 where CYS did not schedule mental
health appointments for Father and where “in light of the worldwide pandemic
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13 See 23 Pa.C.S. § 2511(a)(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.”).
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and mandatory closure of businesses, CYS and the trial court should not have
been so strict in the deadlines for Father to comply with the [p]ermanency
[p]lan.” Father’s Brief, at 31. Father references a June 2020 letter, written
by Jerry Milner, Association Commissioner for the Administration for Children
and Families of the Department of Health and Human Services (Children’s
Bureau), wherein he urges agencies to “carefully consider whether it is
appropriate to terminate a parent’s rights pursuant to the 15/22
requirement[14] . . . in light of the devastating impact that the COVID-19
pandemic has had on child welfare systems[.]” Id. at 32. The letter also
urges “[a]dditional consideration is particularly important when a parent’s
access to services that are necessary to work toward reunification (such as
drug rehabilitation or ability to have parent-child family time) have been
compromised as a result of the pandemic.” Id.
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14 Father is referencing 42 Pa.C.S. § 6351(f)(9), which states:
[I]f the child has been in placement for at least 15 of the last 22
months or the court has determined that aggravated
circumstances exist and that reasonable efforts to prevent or
eliminate the need to remove the child from the home or to
preserve and reunify the family need not be made or continue to
be made, [the court shall] determine whether the county agency
has filed or sought to join a petition to terminate parental rights
and to identify, recruit, process and approve a qualified family to
adopt the child.
Id. (emphasis added).
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Again, the fact remains that Father had plenty of opportunities to receive
treatment for his drug and mental health issues after Children’s placement
and well before he was incarcerated. In addition, Father had the opportunity
for almost 100 virtual or telephonic visits with Children over that 14-month
span. As a parent, Father was required to “act affirmatively with good faith
interest and effort . . . in order to maintain the parent-child relationship to the
best of his or her ability, even in difficult circumstances.” In re B., N.M.,
supra. Unfortunately, Father was unable to meet this task.
While Father maintains he has been complying with his service goals
since he has been incarcerated, these efforts are just too little too late.
Children now experience stability in their resource home—stability they have
never had before. See N.T. Goal Change/Termination Hearing, 6/7/21, at 40-
42 (CYS caseworker testifying Children have shown significant progress in
school since living with foster family, Children have made “a one hundred and
eighty degree turn from where [they ] started[] in regards to their education,”
and emotionally Children have worked through coping skills and are managing
anger and expressing emotions “very well”). Although Children admittedly
miss Parents, they no longer have “remorse or anxiety following the[ir] visits
[with Parents].” Id. at 43 (“[T]hey don’t show any distress or sadness at all
when visits end with [P]arents.”). See In re B., N.M., supra at 856 (“[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
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permanent, healthy, safe environment.”). Accordingly, the record supports
the court’s conclusion that clear and convincing evidence exists to terminate
Father’s parental rights to Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2022
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