In Re: Adoption of D.P., minor, Appeal of: M.H. ( 2016 )

J-A10044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF D.P., : IN THE SUPERIOR COURT OF
MINOR CHILD : PENNSYLVANIA
:
:
APPEAL OF: M.H., MOTHER : No. 1650 WDA 2015
Appeal from the Order September 18, 2015
In the Court of Common Pleas of Washington County
Orphans’ Court at No(s): 63-15-0176
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2016
Appellant, M.H. (“Mother”), appeals from the order entered in the
Washington County Court of Common Pleas, which granted the petition of
the Washington County Children & Youth Services Agency (“CYS”) for
involuntary termination of Mother’s parental rights to her minor child, D.P.
(“Child”).1 We affirm.
In its opinions, 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.2
Mother raises two issues for our review:
1
D.P. (“Father”) also appeals from the order which granted involuntary
termination of his parental rights to Child, at docket No. 1615 WDA 2015.
2
We add only that the court granted CYS’ petition for involuntary
termination of Mother’s parental rights under 23 Pa.C.S.A. § 2511(a)(1),
(a)(2), (a)(5), and (b), on September 18, 2015. On Monday, October 19,
2015, Mother timely filed a notice of appeal along with a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
J-A10044-16
WHETHER, BASED UPON THE EVIDENCE PRESENTED AT
THE TIME OF THE TRIAL, THE COURT ERRED IN
TERMINATING [MOTHER’S] PARENTAL RIGHTS PURSUANT
TO SECTIONS 2511(A)(1) AND (2) OF THE ADOPTION
ACT, WHEN MOTHER COULD BE EXPECTED TO REMEDY
THE ISSUES AND CIRCUMSTANCES WHICH
[NECESSITATED] PLACEMENT WITHIN A REASONABLE
PERIOD OF TIME?
WHETHER THE TRIAL COURT ERRED IN FINDING THAT
THE TERMINATION OF [MOTHER’S] PARENTAL RIGHTS
SERVED CHILD’S NEEDS AND WELFARE WHEN TESTIMONY
ESTABLISHED THAT A CLOSE BOND EXISTED AND THAT
DETRIMENTAL HARM WOULD BE SUFFERED IF THE BOND
WOULD BE SEVERED.
(Mother’s Brief at 4).3
After a thorough review of the record, the briefs of the parties, the
applicable law, and the comprehensive opinion of the Honorable Michael J.
Lucas, we conclude Mother’s issues merit no relief. The trial court opinions
discuss and properly dispose of the questions presented. (See Findings of
Fact, Conclusions of Law and Order, filed September 18, 2015, at 10-11;
Trial Court Opinion, filed November 23, 2015, at 14-20) (finding: in 2014,
Mother pled guilty in West Virginia to charges relating to endangerment of
Child; Mother remained incarcerated at time of termination hearing and had
not yet begun services in compliance with permanency plan; at time of
termination hearing, Mother’s release date was between July 2015 and June
2016; Child had been in placement for twenty-two of last thirty-two months
at time of hearing; evidence showed Mother made little progress since
3
Mother does not challenge the court’s termination of her parental rights
under 23 Pa.C.S.A. § 2511(a)(5).
-2-
J-A10044-16
Child’s initial placement with CYS in 2012; Mother also made no progress at
alleviating circumstances which led to Child’s second placement in 2014;
conditions which twice necessitated Child’s placement continue to exist, and
Mother presented no reliable or persuasive evidence to demonstrate that she
can or will remedy those conditions within reasonable period of time; CYS
caseworker credibly testified Mother’s contact with Child was limited during
her incarceration, consisting of “sporadic” phone calls when Mother had
“money on the books,” and gifts of candy;4 from time of incarceration until
termination hearing, Mother provided no financial support for Child; CYS
caseworker expressed concern that if Child were returned to care of his
parents, Child would encounter difficulties due to unhealthy relationship
between Mother and Father; CYS caseworker testified involuntary
termination of Mother’s parental rights will serve Child’s best interests and
need for permanency; Child is doing well in Paternal Grandmother’s home
and Paternal Grandmother wants to adopt Child; although Child has some
bond with Mother, that bond is not beneficial; CYS met its burden for
involuntary termination of Mother’s parental rights under Section
2511(a)(1), (a)(2), (a)(5), and (b)).5 Accordingly, we affirm on the basis of
4
Paternal Grandmother testified Mother also sent Child cards occasionally.
5
Mother complains the court should not have considered Paternal
Grandmother’s testimony that she would permit continuing contact between
Mother and Child upon termination of Mother’s parental rights. Mother failed
to raise this claim in her Rule 1925(a)(2)(i) statement, so it is waived. See
Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (holding
-3-
J-A10044-16
the trial court’s opinions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
DATE: 6/9/2016
generally that any issues not raised in Rule 1925 concise statement will be
deemed waived on appeal); In re L.M., 923 A.2d 505 (Pa.Super. 2007)
(explaining waiver rules under Rule 1925 apply in context of family law
cases).
-4-
Circulated 05/23/2016 04:20 PM
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY,
PENNSYLVANIA
ORPHANS COURT DIVISION
IN THE INTEREST OF
1). ~- Case No. 63-15-0176
Minor Child
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
ORDER
1. On February 11, 2015 the Agency filed a petition to involuntarily terminate
the parental rights of.rY'·"-. Crn,o\1\.v' and 'D· (). (''~"),
1)
2. f"'otw..r O,(\cf `` are the biological parents of. o. e. ( 0\i \d,a four
11
(4) year old boy, born l :, 2010.
3. Service of the petition was effectuated by certified mail with a return receipt
signed by ,. fe.tthev" on March 16, 2015 and by a restricted mail service upon
rn o't'ie/ while she was incarcerated at the Washington County
Correctional Facility.
4. The procedural record of dependency proceedings at docket number DP
184-2012 indicates that U,\\d was first adjudicated a dependent child on
September 14, 2012.
5. The Honorable John F. DiSalle found U,\\c\ to be dependent based upon
testimony that. rt\o~ left t)"l1\d '.' then less than 2 years old,
unaccompanied in a vehicle while she went into a grocery store.
Caseworker Henry went to the family home that day and observed
M<>~« to be erratic, agitated and unable to focus. (l')Offl4V' could not
change ~ \d., 's diaper and requested . fa.tneJ 's assistance. A domestic
argument then ensued. (ho1Vl(..,r" ~ refused a drug test and ~u. tested
positive for benzodiazepines. Later that same day, ·~-e-1'" called the
police and requested that. mo1'hd ">; be involuntarily committed. During
this visit, Caseworker Henry observed °"~ to be "dirty."
6. Judge DiSalle also credited testimony of Caseworker Reynolds who stated
that rvi o~ previously had her parental rights for another child
terminated on May 31, 2010. Caseworker Reynolds indicated ~o-mc./
had a "lengthy drug history including consumption of cocaine and opiates.
At the time of the initial adjudication hearing,·: Y't\0-thif . was prescribed
Suboxone, Subutex and Lamictal .. f'i'O~ . acknowledged she was
under the care of a psychiatrist, Dr. Shahoud, and received treatment from
Western Behavioral Health. Judge DiSalle placed CMl\ci in a kinship
placement. Judge DiSalle found aggravating circumstances regarding
i1\0~ but did not excuse the Agency from exercising reasonable efforts to
reunify CMHcl with ('(lo~.
7. On November 16, 2012, an initial permanency review hearing was held.
The findings from the proceeding indicate that }~c...'W'U' . had completed
mental health and a drug and alcohol evaluation. Dr. Rodney Williams
determined that. Fa,~ suffered from opiate dependence. ft:Atv\u began
counseling and was prescribed both Subutex and Suboxone, Dr. Williams
also evaluated rn o·n,v...< ·. Dr. Williams diagnosed m-o-"hu- as
suffering from Bipolar disorder and opiate dependence. N · f> • ., a
paternal aunt, and the placement provider, testified that both \'v1oin e1"
and Father- appeared "high" when visiting with C,,,i \d,
8. On February 15, 2013 Master Roberts conducted another permanency
review hearing. Master Roberts noted the progress both In °tn~ and
pa-rvux had made in treatment, but recommended continued placement
and supervised visits. The Honorable Katherine B. Emery accepted the
recommendation.
9. Further permanency review hearings were held on March 15, 2013, May IO,
2015 August 26, 2013 and November 12, 2013. On August 26, 2013 Judge
Emery returned tM1\CA to the home of ,=:Q'Wt.Qf . Judge Emery found on
November 12, 2013 that (.'..h-\d was safe in his father's care and that.
ft\~ should have supervised visits.
IO.On May 3, 2014 the Agency petitioned this court to terminate dependency
and represented that CM!\O was safe and doing well.
11. Within less than two (2) months, this court conducted another merit hearing
as a result of a newly filed petition alleging l.M, \ ts dependency. At the
time of the hearing, both 'M o~ : and . Fa~ were incarcerated in
West Virginia due to an incident on June 16, 2014. Specifically, this court
found both were arrested due to their intoxication while in a moving vehicle
with cni\d;. As both were incarcerated, CM,\J. had no parental control, care
or supervision. This court directed that :C\-\, \A~ be placed in the ~are of his
paternal grandmother,·: f>· f>. ·. The Court directed that both
mot,,v./ and· FCi.thtA" ; have mental health and drug and alcohol evaluations.
Further, both were directed to complete parenting education.
12. On September 29, 2014, December 29, 2014 and March 23, 2015 Master
Roberts conducted permanency review hearings. With regard to
l' ~Q'tv\M" did not return to his mother's home but
resided with his brother in Washington, Pennsylvania. f'.Q~ however,
was granted liberal supervised visitation in his mother's home with ~\ct·
Master Roberts specifically recommended and this court ordered that·
1" o\°",W' could not be present for such visitation. fY' o~ ; was granted
supervised visitation at the Washington County Correctional Facility.
15.Testimony at the termination hearing from Caseworker Lindsay indicated
that lk\i\d is doing well in the home of his paternal grandmother. Ms.
Lindsay testified that· P V · ' 's home is "home" for. Ch,\ ti···
1 P • () · . is
a pre-adoptive resource who is also willing to serve as a permanent legal
custodian for u,., \d,, Ms. Lindsay testified that f'. ~' is willing to enter
into a voluntary agreement for continuing contact with both parents. See 23
Pa.C.S.A. § 2731, et. seq.
16.Ms. Lindsay credibly testified that after both Fa1rlcx and IY)«hV"
were incarcerated in West Virginia, their contact with (). i\ cl was limited.
('0 o~ ) sent no cards, letters or gifts to `` · f c.m,u "sporadically"
called Q'l,\G\ when :· Fd111..t..r' ~ had "money on his books." According to Ms.
Lindsay, Q\,li,d would get upset when talking with his father. From the time
of their incarceration to the date of the hearing, rt\ tn.V' and rn° ~
provided no financial support for C:K\, \cl .
17.At the time of the hearing, Ch'i\d had been in an out of home placement for
22 of the last 32 months.
18. Ms. Lindsay acknowledged that tit\H. is willing to enter a voluntary agreement
for continuing contact. The Court finds that severing the bond with
~-tNXwill not cause irreparable harm to Ch\\ci because e.e, . will
permit ongoing contact with ~ to the extent such is safe and
appropriate for en i ,o1.
29. After weighing the testimony presented, the Court finds that the bond
_between .U,,\d and Cf\o-\'-nu is not a beneficial to <:Jr1,\o\ and should not
be preserved. The court finds that such bond can be severed without
irreparably harming Ch,\cl:
Conclusions of Law:
1. Pursuant to 23 Pa.C.S.A. § 2511 (a)(l), (2) and (5) clear and convincing
evidence was presented to terminate the parental rights of t'Y"loth.L-(.
2. Pursuant to 23 Pa.C.S.A. § 2511 (a)(l) clear and convincing evidence
was presented to terminate the parental rights of r~.
3. The developmental, physical and emotional needs and welfare of en\\ d
require that his bond with ~ be severed. " ... A child's life
simply cannot be put on hold in the hope that the parent will summon the
ability to handle the responsibilities of parenting." In re Adoption of
ME.P., · 825 A.2d 1266, 1276 (Pa.Super.2003).
4. The developmental, physical and emotional needs and welfare of Cvi i \d
require that his bond with F~ · be severed. When a 851 A.2d 967, 975-76 (Pa.Super.2004) (quoting In re B.L.L., 787.A.2d
1007, 1016 (Pa.Super.2001)) (emphasis added). Essentially, this
legislation shifted away from an "inappropriate focus on protecting the
rights of parents" to the priority of the "safety, permanency and well-
being" of the child. In re C.B., 861 A.2d 287, 295 (Pa.Super.2004),
appeal denied, 582 Pa. 692, 871 A.2d 187 (2005). "While this 18-month
time frame may in some circumstances seem short, it is based on the
policy that a child's life simply cannot be put on hold in the hope that the
parent will summon the ability to handle the responsibilities of
qty;t A.2.t.\8\i2
parenting." In re NC., A 824 (internal citations and quotation
marks omitted). In re R.M.G., 2010 Pa. Super. 103, 124, 997 A.2d 339,
349 (Pa. Super. Ct. 2010).
ORDER
AND NOW, this 18TH day of September, 2015 following trial and review of
written arguments submitted by the parties, the Court grants the petition of the
Agency to terminate the parental rights of: f'n atYte..Y and F"ai>'lM"
to the minor child): P. P. The Agency proved by clear and
convincing evidence statutory grounds for involuntary termination. Further, the
evidence, taken as a whole demonstrated that termination of parental rights will
best serve the developmental, physical, and emotional needs of the child.
BY THE COURT
Circulated 05/23/2016 04:20 PM
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
ORPHAN'S COURT DIVISION
In re: Adoption of
D.P., ~-63-0C-2015-0176
1615 WDA 2015
A minor child, 1650 WDA 2015
Appeals of D.P. and M.H., parents.
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The Court provides its opinion pursuant to Pa. R.A.P. 1925(A)(i~·
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Appellants D.P. ("Father") and M.H. ("Mother") challenge this Court's September
18, 2015 Order terminating their parental rights.
Procedural History
I. First Placement
In September of 2012, the Washington County Children & Youth Services
Agency ("The Agency") received a report that Mother, M.H., left D.P., her minor
child, unattended in a car without license plates while she shopped for groceries,
that the child was unsecured in the vehicle, and that mother urinated on the floor of
the grocery store. Agency Caseworker Christal Reynolds filed a Dependency
Petition on September 11, 2012. In addition to this report, she indicated that she
had visited the home of the parents. As part of this home visit, Mother was unable
to change the child's diaper without assistance, she appeared unable to focus on
tasks, and she refused a drug test. Father tested positive for benzodiazepines at the
home visit, and later provided a prescription for such from recent dental work.
Father, who did not have a valid driver's license, would not permit Mother to drive
his car due to his concerns about her medication and drug usage.
Juvenile Hearing Office Jessica Roberts held a merit hearing on September
14, 2012. After hearing testimony from the parents, a paternal aunt, and the
Agency Caseworker, she recommended that D.P. be found a dependent child under
42 Pa.C.S. § 6302(1), in that he was a child without parental care, custody, or
control. She recommended this on the basis that both Mother and Father were
abusing prescription drugs and/or narcotics, Mother was suffering from mental
illness, and the home and D.P. appeared unclean. Furthermore, Ms. Reynolds
testified at the hearing that M.H. had a "lengthy drug history including
consumption of cocaine and opiates", a mental health diagnosis of bipolar disorder,
and had a criminal history. The Honorable John F. DiSalle approved this
recommendation.
Hearing Officer Roberts also found aggravating circumstances pursuant to
42 P.S. § 6302. On May 31, 2010, the Court involuntarily terminated M.H.'s
parental rights to her child T .H. On that basis, Ms. Roberts recommended
aggravated circumstances be found to exist, but she did not excuse the Agency
2
from making reasonable efforts to reunify the family. She ordered both parents to
undergo drug and alcohol evaluations and to partake in a parenting education
program. She also ordered Mother to continue with her mental health therapy.
Finally, Ms. Roberts ordered D.P. placed with his paternal aunt and uncle,. N · P •
()..(')C\ ~ . v.
Ms. Roberts held the initial permanency review hearing on November 16,
2012. All parties attended. At that time, the parties stipulated to a finding of
continuing dependency. Paternal Aunt N • P. testified that she believed both
Mother and Father to be under the influence during their periods of supervised
visitation. She also testified that she witnessed them argue with each other during
visitation. Prior to the hearing, Father underwent a drug and alcohol evaluation,
which returned a diagnosis of opiate dependence. Ms. Roberts reported he was
taking Suboxone and Subutex, a treatment for opiate withdrawal, and pursuing
therapy. Mother also completed her evaluations and received a diagnosis of bipolar
I disorder and opiate dependence. She was also prescribed Suboxone and Subutex,
as well as Lamictal, a drug for mood stabilization. Mother was also taking part in
therapy. Both parents were participating in parenting education courses. Ms.
Roberts ordered continued services and visitation, but ordered that visitation would
be moved to Try-Again Homes should any further issues occur with the parents at
r-1 • f • · Si home.
3
Ms. Roberts held a Permanency Review Hearing on February 15, 2013. All
parties attended. The parties again stipulated to a finding of continued dependency.
At that hearing, no issues were reported regarding visitation, and both parents had
passed Agency drug tests. Ms. Roberts reported that both parents were compliant
with treatment recommendations, were participating in services, and were
completing their parenting education programs. Mother tested positive for
methamphetamines, but Ms. Roberts, after hearing significant debate over whether
this was a false positive or not, did not make a finding if this constituted drug use.
Ms. Roberts increased the parents' visitation and permitted it to take place
supervised by the parenting education provider, the Bair Foundation, in the
parents' home. She ordered the parents to continue with parenting education
through the Bair Foundation, and to continue with drug and mental health
treatment.
Ms. Roberts held a further Permanency Review Hearing on 'March 15, 2013.
All parties attended and again stipulated to continuing dependency. The Bair
Foundation reported "bizarre behavior" from Mother during supervised visits on
March 7 and 9 2013. The Bair Foundation report indicated a concern for her
mental health. Ms. Roberts indicated that Father's medical providers reported he
had a positive prognosis for recovery.
4
Both parents had completed a segment of their parenting education courses.
Mother was drug tested by the Agency on February 15, 21, and 26, 2013. She
tested positive for THC and methamphetamine use. Mother presented drug tests by
a third party laboratory that indicated she underwent testing on December 10,
2012, January 10, February 4, February 18, March 4, and March 12, 2013 and
tested positive only for her prescribed medication. Ms. Roberts did not decrease
visitation but ordered both parents to submit to random drug testing at the
discretion of the Agency.
Ms. Roberts held a further Permanency Review Hearing on May 10, 2013.
Father did not waive his right to have the hearing heard before a Judge, and thus
the hearing was continued to August 26, 2013.
At that time, the Honorable Katherine B. Emery conducted a Permanency
Review Hearing. All parties attended. Judge Emery found that D.P. remained a
dependent child under the care of the Agency, but ordered him to be returned to the
home of his father. Judge Emery ordered supervised visitation for Mother for two
times per week for a period of four hours each, to be supervised by the Bair
Foundation. She further ordered both parties to continue with drug and alcohol
services, and to submit to random drug testing, and for Mother to continue with her
mental health treatment. Judge Emery also ordered that in addition to his ongoing
services, Father was to have no contact with Mother while the child is in his
5
custody. Judge Emery scheduled a Permanency Review Hearing for November 12,
2013.
On November 12, all parties appeared. The parties stipulated to D.P.'s
continued dependency. D .P. remained in the care of his father. Judge Emery
increased Mother's visitation to three times per week. Judge Emery ordered
Mother to continue with her drug, alcohol, and mental health services and drug
testing. She did not order services for Father.
On January 29, 2014, the Court permitted the Agency to request termination
of court supervision by motion prior to the next Permanency Review Hearing. The
Agency presented such a motion on March 3, 2014. At that time, D.P. was in the
care of his father and the Agency averred that the child was safe and doing well.
The Court granted the motion and terminated supervision.
II. Second Placement
The Agency became involved with Mother and Father again on June 3,
2014, after receiving allegations that Father was abusing narcotics. On June 16,
2014, both parents were arrested at a gas station in West Virginia for being
intoxicated in a moving vehicle. D.P. was present. Both were incarcerated and D.P.
was placed in the case of his paternal grandmother, · 0 ,·
r
t?.
t The Agency
filed a Petition for Dependency on June 18, 2014.
6
· The Court held a merit hearing on July 1, 2014. At that time, Father, ? • -9.
, the Agency Solicitor, two agency caseworkers, the Guardian ad Litem Frank
C. Kocevar, Esq. and counsel for both parents, Tamera Reese, Esq. and Erick
Rigby, Esq. attended. The parties stipulated to this finding of dependency due to
the parents' ongoing incarceration in the State of West Virginia. The Court found
D.P. to be a dependent child pursuant to 42 Pa.C.S. § 6302(1).
The Court ordered D.P. be placed in kinship foster care with· p. P.,
D.P.'s paternal grandmother. The Court ordered both parents to take part in drug
and alcohol evaluations, mental health evaluations, and parenting education
programs upon release from incarceration. Both were afforded supervised
visitation with D.P., upon release from incarceration, in the home of ~. f.
The Court assigned the case to Juvenile Hearing Officer Jessica Roberts.
III. Compliance and Progress
Ms. Roberts heard the Initial Permanency Review on September 29, 2014.
Counsel for all parties appeared and Father participated by phone. At that time,
both parents remained incarcerated. Because the parents could not undergo
services while incarcerated out of state, Ms. Roberts found no compliance with the
permanency plan and no progress towards alleviating the circumstances which
necessitated the original placement for either parent. Ms. Roberts ordered the
primary placement goal to be a return of D.P. to his parents, with a concurrent goal
7
of adoption. Ms. Roberts continued the ordered services and visitation from the
Order of Adjudication. She indicated that both parents were being held in West
Virginia for their charges there, and that Mother was to be incarcerated at the
Washington County Correctional Facility upon her release from incarceration in
West Virginia due to a probation violation. Ms. Roberts indicated that D.P. was
doing well in his grandmother's care.
Ms. Roberts held a Permanency Review Hearing on December 29, 2014.
Counsel for all parties appeared and Mother participated by telephone. D.P. ·
remained in the care of ? · f> · Both parents remained incarcerated. Because of
their incarceration, Ms. Roberts found that the parents had not complied with the
permanency plan and that they had made no progress in alleviating the
circumstances which necessitated the original placement.
Ms. Roberts indicated that the parents were awaiting trial on charges of
endangering the welfare of a minor child, and that they did call D.P. when they
were able to. Ms. Roberts scheduled a further Permanency Review hearing for
March 23, 2015.
Counsel for all parties appeared on March 23, 2015. Mother remained
incarcerated in the Washington County Correctional Facility, but Father was
released from incarceration in West Virginia on January 11, 2015.
8
Ms. Roberts found no compliance and no progress for Mother, due to her
continued incarceration. She indicated that Mother had an impending hearing that
could result in her imminent release. She found substantial compliance and
progress for Father, indicating that he had taken part in his ordered drug and
alcohol evaluation and was taking part in twice-weekly outpatient treatment. At
that time, Father was no longer taking Suboxone, a treatment for opiate
withdrawal, was attending Narcotics Anonymous meetings, and had tested
negative on all Agency-ordered drug tests. She further found he was taking-part in
parenting education classes. The primary placement goal at this hearing remained
return to parent.
Ms. Roberts modified the parties' visitation withD.P., permitting mother
supervised visitation at the Washington County Correctional Facility and Father
liberal supervised visitation in r. 9. "s home. She retained all previously
ordered services, and scheduled a hearing for June 15, 2015.
The Agency filed its Petition to Involuntarily Terminate the rights of both
Mother and Father on February 11, 2015. The Court held a Hearing on the
Agency's petition on May 27, 2015.
Appellate Standard of Review
In an appeal from an order terminating parental rights, the appellate court is
limited to determining whether the decision of the trial court is supported by
9
competent evidence. In the Interest of S.H., 879 A.2d 802, 805 (Pa. Super. 2005),
appeal denied, 586 Pa. 751, 892 A.2d 824 (2005) (quoting In re C.S., 761 A.2d
1197, 1199 (Pa. Super. 2000)). "[The appellate court is] bound by the findings of
the trial court which have adequate support in the record so long as the findings do
not evidence capricious disregard for competent and credible evidence." In re
M.G., 855 A.2d 68, 73 (Pa. Super. 2004) (quoting In re Diaz, 447 Pa. Super. 327,
669 A.2d 372, 375 (1995)). The trial court, not the appellate court, is charged with
the responsibilities of evaluating credibility of the witnesses and resolving any
conflicts in the testimony. Id. at 73-74; In re Adoption of A. C.H., 803 A.2d 224,
228 (Pa, Super. 2002). In carrying out these responsibilities, the trial court is free
to believe all, part, or none of the evidence. In re M.G., 855 A.2d at 73-74. When
the trial court's findings are supported by competent evidence of record, [the
appellate court] will affirm "even if the record could also support an opposite
result." In the Interest of S.H., 879 A.2d at 806. Absent an abuse of discretion, an
error of law, or insufficient evidentiary support, the trial court's termination order
must stand. In re C.M.S., 884 A.2d 1284, 1286 (Pa. Super. 2005).
Grounds for Termination
The party seeking termination of parental rights must prove by clear and
convincing evidence that the parents' conduct satisfies the statutorygrounds for
termination. In re Adoption of C.D.R., I U A.3d 1212 (Pa. Super. 2015). The Court
10
must examine the individual circumstances of each and every case and consider all
explanations offered by the parent(s) to determine if the evidence in light of the
totality of the circumstances clearly warrants termination. In re J.L.C., 837 A.2d
1247 (Pa. Super. 2003).
The statute permitting the termination of parental rights outlines certain
irreducible minimum requirements of care that parents must provide for their
children. 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 may properly have his or her rights terminated. In re K.Z.S., 946 A.2d
753 (Pa. Super. 2003), citing In re B.L.L, 787 A.2d 1007 (Pa. Super. 2001).
The Agency requested the Court to terminate the parental rights of the
parents pursuant to Subsections 1, 2, and 5 of chapter 2511 of the Adoption Act,
enumerated below:
(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
11
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.
23 Pa.C.S.A. § 2511(a)(l), (2), and (5).
Pennsylvania appellate courts have observed that 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. A 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. In re J.T., 983 A.2d 771
(Pa. Super. 2009), citing In re Burns, 474 Pa. 615, 379 A.2d 535, 540 (1977).
Pursuant to Subsection (a)(l), the Court must determine if the Agency
established by clear and convincing evidence that for at least the six months prior
to the filing of the termination petition, Mother and Father failed to perform their
parental duties or evidenced settled purposes to relinquish their parental rights. §
2511(a)(l), see also In re Adoption ofR.J.S., 901 A.2d 502 (Pa. Super. 2006).
Furthermore, in examining the parent's conduct, the court must look not only to the
six (6) months before the petition but also examine the totality of the circumstances
12
of the case, including the parent's explanation and overall circumstances. In re B.,
N.M., 856 A.2d 847 (Pa. Super. 2004), citing In. re D.J.S., 737 A.2d 283, 286 (Pa.
Super. 1999).
"[ A] parent who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties." In re Adoption of S.P.,
616 Pa. 309, 47 A.3d 817 (Pa. 2012), citing Adoption of J.J., 511 Pa. 590, 515
A.2d 883, 891 (Pa. 1986). While parental incarceration is not a litmus test for
termination, it can be determinative of the question of whether a parent is
incapable of providing essential parental care, control, or subsistence and the
length of the remaining confinement can be considered as highly relevant to
whether "the conditions and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent," sufficient to provide grounds for
termination pursuant to 23 Pa.C.S. § 2Sll(a)(2). In re Adoption of S.P., 616 Pa.
309, 332, 47 A.3d 817, 830 (2012).
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 at
855, citing In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003).
Parental rights are not preserved by waiting for a more suitable or
convenient time to perform one's parental responsibilities while others provide the
13
child with his or her physical and emotional needs. In re B., N.M., 856 A.2d 847,
855, citing In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999).
Agency Caseworker Tiffany Lindsay, Paternal Grandmother f · f ·
Try-Again Homes Caseworker Bradley Poland, and Father testified at the
termination hearing.
Ms. Lindsay credibly testified that after both parents were incarcerated in
West Virginia, their contact with D.P. was limited. Credible testimony indicated
that Mother sent no cards or letters to D.P. The parents "sporadically" called D.P.
when they had "money on the books." According to Ms. Lindsay, D.P. would get
upset when talking with his father. Furthermore, from the time of their
incarceration to the date of the hearing, neither Mother nor Father provided
financial support for D.P.
Bradley Poland, a Try Again Homes caseworker, testified regarding the
interaction of each parent with D.P. Mr. Poland observed and supervised each
parent with D.P. With regard to Mother, Mr. Poland testified that D.P. appeared to
like the visits, though D.P. would not discuss the visits. In contrast, D.P. always
mentioned his visits with his father and was excited to see his father. Father
credibly testified that when he visits D.P. in the home of t?. , he will wait
until D.P. falls asleep to leave so as not to upset D.P. by his departure.
14
Ms. Lindsay stated that D.P. needs permanency and his interests are best
served by termination and adoption by his paternal grandmother. Ms. Lindsay
expressed sincere concern that if D.P. were returned to his parents he would
encounter difficulties due to the unhealthy relationship Mother and Father have.
Father corroborated this testimony and indicated "Me and [Mother] can't be
together again."
In 2014, both Mother and Father pleaded guilty to charges relating to child
endangerment in Marion County, West Virginia. At the time of the hearing, Father
indicated he was participating in drug and alcohol counseling, a 12 step program,
mental health treatment, and grief counseling concerning the loss of his daughter.
He described long-term use of Oxycontin dating back to 1999. He admitted to
abusing Xanax.
Mother remained incarcerated and had not begun services in compliance
with the permanency plan. On March 25, 2015, the Honorable Valarie Costanzo
sentenced Mother to a total of three (3) to twelve (12) months at the Washington
County Correctional Facility at docket numbers CP-63-CR-2282-2013 and CP-63-
CR-113-2013. This term was imposed consecutively to the balance of a prior
sentence for driving on a suspended license that she was serving on probation
when she was arrested in West Virginia. Mother testified that she could be released
as early as July 2015 and as late as June 2016.
15
At the time of the termination hearing, D .P. had been in an out of home
placement for twenty-two (22) of the last thirty-two (32) months. Mother and
Father were both incarcerated for over six months preceding the filing of the
petition for termination. Father had been released from incarceration at the time of
the hearing, but was still taking part in services necessary to remedy the conditions
that led to placement. Even where a parent makes earnest efforts, the court cannot
and will not subordinate indefinitely a child's need for permanence and stability to
a parent's claims of progress and hope for the future. In re Adoption of R.J.S. 901
A.2d 502, 513 (Pa. Super. 2006). . : .
Mother has made little progress since the placement of the child in 2012.
She was ordered to undergo a drug and alcohol evaluation and to follow all
recommended treatment as part of the disposition of the first merit hearing in 2012.
When D.P. was returned to Father in 2014, the Court ordered Father to have no
contact with Mother while D.P. was in his custody. At the time of termination of
court supervision in June 2014, Mother was still undergoing treatment for drug
use. She has made no progress at alleviating the same circumstances since the
second placement.
Similar conditions were the cause of placement in 2012. D.P. was returned
to Father in 2014 after being in placement for eleven months. However, he was to
be placed again ten months after return and two months after the termination of
16
court supervision. The conditions that twice necessitated the placement of D.P.
continue to exist, and no reliable or persuasive evidence was presented
demonstrating that these conditions will be remedied by either parent within a
reasonable period of time. The Agency proved by clear and convincing evidence
that grounds for termination existed pursuant to 23 Pa.C.S.A. § 2511(a)(l), (2), and
(5).
Bond
Initially, the focus is on the conduct of the parent. Only when the court
determines that the parent's conduct warrants termination of his or her parental
rights does the court engage in the second part of the analysis pursuant to 23
Pa.CS.A. § 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). In determining if termination best meets the needs of the child, the Court
must examine the nature and strength of the parent-child bond and the effect of the
severance of that bond. In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005).
Attention must be paid to the pain that inevitably results from breaking a
child's bond to a biological parent, even if that bond is unhealthy, and the Court
must weigh that injury against the damage that bond may cause if left intact. In re
T.S.M., 71 A.3d at 269.
17
The law regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests and the needs and
welfare of the particular children involved. In re T.S.M., 620 Pa. 602, 71 A.3d 251
(Pa. 2013), citing In re R.J.T., 608 Pa. 9, 9 A.3d 1179 (Pa. 2010).
The credible testimony provided by Mrs. Lindsay > f. f. > and Father
indicated that a bond exists between D.P. and his Father. that can be beneficial.
However, Father has not maintained a safe and stable home, as evidenced by
D.P.'s necessary placement for twenty-two (22) of the last thirty-two (32) months,
and his drug treatment is not complete. A child's life simply cannot be put on hold
in the hope that the parent will summon the ability to handle the responsibilities of
parenting. In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003).
Ms. Lindsay testified that D.P. has a bond with both of his parents. Ms.
Lindsay indicated that such bond will continue because ~ ;f. is committed to
permitting contact between D.P. and his birth parents.
Ms. Lindsay testified that D.P. is doing well in the home of \?. p, She
testified that f. P. 'S home is now "home" for D.P. Furthermore, ~. r. · is
a pre-adoptive placement resource who is also willing to serve as a permanent legal
custodian. Mrs. Lindsay also indicated that ~ · f. is willing to enter into a
voluntary agreement for continuing contact with both parents pursuant to 23
Pa.C.S.A. § 2731 et. seq.
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?· ~· credibly indicated to the court that she was willing to permit
ongoing contact between D.P. and his parents, but would not permit Mother to be
in her home because Mother is "violent." Specifically, Mother assaulted p . .P.
and Mother burned Father's vehicle. Mother herself admitted to burning
Father's vehicle approximately "two years ago."
~. r. '.S willingness to permit future contact was a factor the Court
considered in determining if termination met the best interests of D.P. The effect of
the severance of the parent-child bond will not be as severe because of Paternal
Grandmother's credible assurance that she would permit contact between D.P. and
his parents. The severance of the legal bond between parent and child does not
inherently necessitate ending any relationship between parent and child. P. P,
.
credibly testified that she would enter into a post-adoption agreement. For these
reasons, the Court found that severing the bond between D.P. and Father would not
cause irreparable harm to D.P. See In re C.L., CP-63-0C-2010-802 (Pa.Com.Pl.
2010), aff'd at 32 A.2d 837.
At the hearing, Mother remained incapacitated, and the Court found that
there is not a possibility she can remedy the circumstances that necessitated
placement in the foreseeable future. D.P. was initially returned to his Father alone,
and Mother was permitted only supervised visitation. She has displayed no
compliance with court-ordered services and has made no progress to alleviate the
19
circumstances that necessitated placement. Testimony indicated that mother's
contact with D.P. consisted of infrequent phone calls and mailed gifts of candy. On
this basis, the Court found that a beneficial bond did not exist between Mother and
D.P ., and thus severing the bond would not cause harm to D.P.
For the above reasons, the Court found that termination was in the best
interest of D.P.
Conclusion
As both parents have not alleviated the circumstances that twice necessitated
placement, requiring this case to continue with the goal of reunification gives rise
to the real possibility that D.P. may end up placed inkinship or foster care three
times in as many years. The Agency met its burden by clear and convincing
evidence, and the credible evidence indicated that it was in the best interests of
D.P. to have the parent-child bond terminated. To deny the Agency's meritorious
petition would be to unnecessarily delay permanency for D.P. The Court
appropriately terminated the rights of both parents. As such, this Court's order
should be affirmed.
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