In the Interest of: D.R.S.C., a Minor ( 2015 )

J-S60017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.R.S.C., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: S.C., MOTHER
No. 1091 EDA 2015
Appeal from the Order Entered March 24, 2015
In the Court of Common Pleas of Chester County
Orphans' Court at No(s): AD-2014-0051
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 14, 2015
S.C. (Mother) appeals from the trial court’s order involuntarily
terminating her parental rights1 to her minor son, D.R.S.C (born 11/2003).
Mother’s counsel has also filed an application to withdraw pursuant to In Re:
Adoption of V.E., 611 A.2d 1267 (Pa. Super. 1992). After careful review,
we affirm and grant counsel’s petition to withdraw.
Chester County Department of Children, Youth and Families (CYF)
removed D.R.S.C. from Mother and Father’s2 care for two relevant periods,
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1
We review a trial court’s decision to involuntarily terminate parental rights
for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563
(Pa. Super. 2003). Our scope of review is limited to determining whether
the trial court’s order is supported by competent evidence. Id. Therefore,
even where the facts could support an opposite result, as is often the case in
termination cases, an appellate court must resist the urge to second guess
the trial court and impose its own credibility determinations and judgment.
In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
2
Father’s parental rights to D.R.S.C. have also been involuntarily
terminated. However, he is not a party to this appeal.
J-S60017-15
November 2010-August 2011 and April 20133-present.4 D.R.S.C.’s removal
was a result of unsafe housing conditions and poor parental judgment.
Specifically, Mother has a history of mental health problems, including
emotional instability, and had been the victim of domestic violence at the
hands of Father. CYF provided Mother numerous services to address the
concerns that led to D.R.S.C.’s placement, including in-home services, family
preservation and intervention services, housing assistance, life skill services,
counseling, and family group decision making courses.
While Mother did attend all supervised visits with D.R.S.C., she made
minimal to no progress toward her initial goal of reunification and, as a
result, CYF filed its petition to terminate her parental rights on July 10,
2014. After two days of termination hearings held on February 12, 2015
and March 17, 2015, the trial court involuntarily terminated Mother’s
parental rights to D.R.S.C. pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5),
(8), and (b). Specifically, the court determined that: (1) Mother had made
minimal progress toward alleviating the circumstances that led to D.R.S.C.’s
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3
Removal from the home was precipitated by Mother being evicted and
having to live in her truck, as well as D.R.S.C. not being properly cared for.
N.T. Termination Hearing, 2/12/15, at 22-23, 51.
4
CYF has been involved with Mother and Father and their other children,
T.F.C., III (age 17), and C.C (age 15), continuously since November 2009 –
years before D.R.S.C. was even born. Father’s history of substance abuse,
domestic violence and poor judgment combined with Mother’s history of
mental instability and inadequate parenting caused CYF to place T.F.C., III,
and C.C. in foster care.
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placement; and (2) termination would best serve the needs and welfare of
D.R.S.C. Although the court recognized that Mother and D.R.S.C. have a
bond, testimony revealed that the bond was unhealthy and that the damage
of leaving the bond intact would cause more harm to D.R.S.C. than if the
bond were severed. N.T. Termination Hearing, 2/12/15, at 66. Finally, and
most impactful on the court, was Mother’s “continuing lack of insight after all
this time . . . as to why her parental rights should be terminated.” Trial
Court Opinion, 3/23/15, at 8.
This timely appeal follows, in which counsel seeks to withdraw from
representation. In V.E., supra, our Court held:
Counsel appointed to represent an indigent parent on a first
appeal from a decree involuntarily terminating his or her
parental rights, may, after a conscientious and thorough review
of the record, petition the court for leave to withdraw
representation if he or she can find no issues of arguable merit
on which to base the appeal. Given the less stringent standard
of proof required and the quasi-adversarial nature of a
termination proceeding in which a parent is not guaranteed the
same procedural and evidentiary rights as a criminal defendant,
appointed counsel seeking to withdraw representation must
submit an advocate's brief.
611 A.2d at 1275. In In re Adoption of V.G., 751 A.2d 1174 (Pa. Super.
2000), our court reiterated the requirements counsel must satisfy before
being permitted to withdraw in termination appeals: (1) petition the court
for leave to withdraw stating that after making a conscientious examination
of the record and interviewing the defendant, counsel has determined the
appeal would be frivolous, (2) file a brief referring to any issues in the record
of arguable merit; and (3) furnish a copy of the brief to defendant and
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advise him of his right to retain new counsel or raise any additional points he
deems worthy of this Court’s review. Id. at 1176.
Instantly, counsel has complied with the three prongs outlined in V.G.
While counsel’s brief is somewhat sparse in argument and case law,5 it does
reference issues6 of arguable merit. Therefore, we find it substantially
complies with the withdrawal requirements. Commonwealth v. Wrecks,
934 A.2d 1287 (Pa. Super. 2007) (substantial compliance is sufficient to
satisfy withdrawal on appeal).
Moreover, based on our own independent review of the record,
including the notes of testimony from the termination hearings, relevant
case law and the trial court opinion, we agree with counsel’s assessment
that any appeal would be frivolous. We rely upon the decision authored by
the Honorable Mark L. Tunnell to affirm the order terminating Mother’s
parental rights to D.R.S.C. under sections 2511(a) and (b) and advise the
____________________________________________
5
We recognize that counsel’s brief is an advocate’s brief, as opposed to
counsel’s brief in V.G., which our court deemed “wholly inadequate” as it
resembled a “no-merit” letter. 751 A.2d at 1177. Notably, however, our
Court in V.G. did not remand for counsel to file a proper advocate’s brief
where “our independent review of the record indicate[d] that, in fact,
appellant ha[d] no issues of arguable merit on which she c[ould] base an
appeal.” Id.6
Specifically, those arguably meritorious issues include the demonstrated
bond between Mother and D.R.S.C. and the lack of a formal bonding
assessment as it relates to a section 2511(b) analysis and Mother having
obtained appropriate housing and maintained stable employment, in addition
to several other completed services, in compliance with CYF’s service plan.
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parties to attach a copy of Judge Tunnell’s decision in the event of further
proceedings in the matter.
Order affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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IN THE COURT OF COMMON PLEAS, CHESTER COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: D.R.S.C.
FILE NO. AD-I 4-005 I
FINAL DECREE
AND NOW, to wit, th.is 23rd day of March, 2015, upon consideration of the Petition
and hearing had thereon,
The court finds that Stephanie Corum, by conduct continuing for a period of at least \
six (6) months, has evidenced a settled purpose of relinquishing parental claim to the child, or
has refused or failed to perform parental duties pursuant to 23 Pa. C.S.A. §251 l(a)(l); and
The court further finds that the repeated and continued incapacity, neglect or refusal of
the said Stephanie Corum has caused the said minor child to be without essential parental
care, control or subsistence necessary for the child's physical and mental well-being and the
conditions and causes of the incapacity, neglect or refusal cannot or will not be remedied by the
said parent pursuantto 23 Pa. C.S.A. §2511 (a)(2); and
The court further finds that 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 (6) months,
the conditions which led to the removal or placement of the child continue to exist, and 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
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termination of the parental rights would best serve the needs and welfare of the child pursuant
to 23 Pa. C.S.A. §251 l(a)(S); and
The court further finds that the child has been removed from the care of the parent by a
court or under a voluntary agreement with an agency, twelve months or more have lapsed 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 pursuant to 23 Pa. C.S.A. §25 l l(a)(8).
IT IS .ORDERED, ADJUDGED and DECREED that the Petition of Chester County
Department of Children, Youth and Families for the termination of parental rights of Stephanie
Corum, the natural mother of D.R.S.C., is granted, and that all parental rights and duties of
Stephanie Corum in respect to D.R.S.C. is hereby awarded to Chester County Department of
Children, Youth and Families which is hereby authorized to give consent to the adoption of
said child and adoption of said child may be decreed without further consent of or notice to the
aforesaid parent. Further, pending finalization of adoption, the Chester County Department of
Children, Youth and Families shall stand in loco parent is to the child and in such capacity shall
have the authority, inter alia, to consent to major medical, psychiatric and surgical treatment,
make educational decisions· and to exercise such other authority concerning the child as a
natural parent could exercise.
BY THE COURT:
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From the 'Record ·
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(-:"? :<474 Pa. 615, 379 A.2d 535 (1977). A parent
must exert himself or herself to take and maintain a place of importance in the child's life. Id.Parental rights may not be terminated in the absence of evidence which is clear and
convincing. Even when it is established that a parent has failed to perform parental duties for a
period in excess of six (6) months, such a finding does not in and of itself support an order
terminating parental rights. Instead, the court must then examine the individual circumstances
and any explanation offered by the parents to determine if that evidence, in light of the totality
of the circumstances, clearly warrants permitting the involuntary termination of said parents'
parental rights. A court in terminating the rights of a parent shall give primary consideration to
the needs and welfare of the child. 23 Pa. C.S. §2511 (b ). Judicial inquiry is thus to be centered
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on the best interests of the child rather than the fault of the parent. In re Adoption of J.J, 511
Pa. 590, 515 A.2d 883 (1986).
In summary, in Pennsylvania when involuntary termination is sought the court first
'
determines if the statutory requirements in §251 l(a) have been satisfied. If they have, the court
assesses any explanation or extenuating circumstances made by the parent. Next, the court
evaluates ay post-abandonment contact between the parent and child, and lastly and most
importantly the court assesses the effect of termination on the needs and welfare of the child. In
re Adoption of Hamilton, 379 Pa. Super. 274, 549 A.2d 1291 (1988).
Caseworkers familiar with D.R.S.C. and his family testified about the long and rather
sordid behaviors of Mother and Father that brought them into contact with CYF going back to
1999, four (4) years before D.R.S.C. was even born.
Those behaviors ebbed and flowed. The court listened to testimony about the parents'
issues, and the negative impact they had on D.R.S.C. The· testimony of the caseworkers is
amply supported by the orders in the dependency proceedings. Judge Wheatcraft summed up
succinctly as foJlows:
This family has been involved with CYF continuously since
November 2009 and had previously received CYF services and
then had been closed. The current case was initially opened in
2009 due to reports of Timothy Corum, Sr. ("Father") being
intoxicated, threatening suicide, and choking Mother in presence of
the children. Extensive in-home services were provided to the
family but the children continued to be in an unsafe environment
and were placed in foster care in November 2010. CYF worked
with the family intensively and reunification occurred in August
2011. In April 2013 the children were taken from the home again
due to issues -of on-going violence in the home, Father's continued
alcoholism, Mother's lack of housing, and her inability to keep the
children safe.
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.·,.:
***
In this matter, CYF petitioned to change the goal from reunification with Mother
to another planned permanent living arrangement as none of the other
permanency options are currently feasible for these children. We agreed a
change in goal. 'Yas appropriate and the petition was granted. Of course that
change is not made lightly, but the long and intensive history of this case makes
it appropriate.
(Ex. Child-1 (Opinion of 6/16/14 at pp. 6- 7).)
Mother and Father counter by pointing out the items that they did manage to ·
accomplish, and then for those reasons urge the court that CYF has not proven its case against
them.
For example, Mother and Father attended all visits with D.R.S.C. -and acted
"appropriately" with him. In recent months, Father has attended AA meetings and is working
with his sponsors. Both sponsors testified in court about the marked improvement in Father's
behavior and his commitment to recovery. On the other hand, he was arrested for DUI after
these proceedings had begun, has pleaded guilty and is awaiting sentencing. While the court
understands that recovering alcoholics do "slip", this· conduct belies the Father's current
arguments.
Mother points out the numerous ways in which she feels she has been compliant with
service plans. Unfortunately, no measurable progress towards reunification could be seen.
Towards the end of her testimony in court, Mother stated that she "doesn't know why her
children are still in placement", that she has "lost everything", and that she doesn't know why
her behavior has been as "impactful" on her children as described in various dependency
orders.
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The court was amazed. Mother's continuing lack of insight after all this time is a chief
factor in the court's mind as to why her parental rights should be terminated.
Although not contained in the packet of dependency orders presented to the court and
admitted as Ex. CYF~2, this court has taken judicial notice of the most recent Permanency
Review Order dated February 5, 2015 concerning D.R.S.C. Judge Wheatcraft found that there
was "minimal compliance" b)' the Mother and Father with regard to a permanency plan and "no
progress" by Mother and Father «towards alleviating the circumstances which necessitated
D.R.S.C.'s original placement."
D.R.S.C. has an emotional bond with Mother. He is worried about her, even "scared"
for her. The court was asked to watch a videotape of D.R.S.C. made over a year ago wherein
he cries that he misses her. Frankly, the court faults the Mother for the derelictions that put her
son in this pathetic and unhealthy position.
D.R.~.C. does not want to be adopted. He seems happy and ·healthy in his foster home.
Where an agency is petitioning for termination of parental rights it is not necessary for
the agency to demonstrate a pending adoption nor that a person with a present intention to
· adopt exists. 23 Pa. C.S.A. §25 l 2(b ).
Perpetuating the birth parents' involvement despite their inability to care for a child
could in fact foreclose any hope for adoption. In the Matter ofTD.,.949 A.2d 910, (Pa. Super.
2008). The parents argue here as they did in Juvenile Court that D.R.S.C. maintains a bond
with mother. They urge that the court should consider this pursuant to §2511 (b) of the
Adoption Act which requires courts to give primary consideration to the developmental,
physical and emotional needs and welfare of the child when considering a termination petition.
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The statute does not provide any guidance as to how the court is supposed to evaluate those
considerations, nor does it mention the word "bond." ·
The court is concerned that keeping a child unavailable for adoption or another
permanent living arrangement on account of an unhealthy or even pathological bond with an
abusive or neglectful parent most certainly does not serve the needs and welfare of the child.
Where the mother's abusive or neglectful parenting has created a pathological bond in the
child, she should not be heard to say that the bond should be preserved lest further harm result
to the child. The Supreme Court in In Re T.S.Atf., 620 Pa. 602, 71 A.3d 251 (2013), grappled
with theseproblems, It cited with approval a Superior Court decision in In Re: K.K.R.-S., 958
A.2d 529, 535 (Pa. Super. 2008), recognizing that the mere existence of a bond of a child to a
parent will not necessarily result in the denial of a termination petition. In the Superior Court
decision, Judge Tamilia observed that it was "an immutable psychological truth" that even the
most abused of children "will often harbor some positive emotion towards the abusive parent."
The failure to correct parenting and behavioral disorders which are harming the children
cannot, he said, be misconstrued as "bonding." Id at 535.
Ultimately, the court must weigh the injury of breaking a child's bond to a biological
parent against the damage that the bond may cause if the bond is left intact. The Supreme
Court went on to observe in T.S.M that:
In weighing the difficult factors discussed above, courts must keep
the ticking clock of childhood ever in mind. Children are young
for a scant number of years, and we have an obligation to
see to
their healthy development quickly.
T.S.Atf. 620 Pa. at 631.
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In T.S.M, the Supreme Court reversed the decision of the trial court that denied the
petition for termination because such denial "merely prolonged and, indeed, exacerbated the
harm suffered by the children." Id. at 633. The Supreme Court concluded "without hesitation
that it best serves their needs and welfare to sever their bond with Mother permanently in order
to permit them to be placed forthwith into healthy, permanent homes." Id. at 634. This court
believes no Jess is true at bar.
CONCLUSIONS OF LA \1\1
1. CYF filed Petitions to Terminate Parental Rights as to Mother and Father on
July 10, 2014.
2. Mother and Father were served with the Petitions by constable on August 14,
2014.
3. Both parents were represented by counsel throughout this matter.
4. This Court has jurisdicti_on in this matter and venue is proper.
5. Both parents have failed to perform parental duties relative to D.R.S.C. for more
than six (6) months immediately preceding the filing of the Petitions in this matter. 23
Pa.C.S.A. §2511 (a)(l ).
6. Both parents have repeatedly and continually demonstrated an incapacity to
parent D.R.S.C. and, therefore, the child is without essential parental care, control or
subsistence necessary for his physical or mental well-being, and the conditions and causes of
that incapacity cannot or will not be remedied by the parents. 23 Pa.C.S.A. §2511 (a)(2):
7. D.R.S.C. has been removed from the care of Mother and Father by the Juvenile
Court for a period in excess of six (6) months, the conditions which led to the removal or
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placement of the child continue to exist, the parents cannot or will not remedy those conditions
within a reasonable period of time, the services and assistance provided to the parents have not
remedied and will not remedy within a reasonable time the conditions which led to the removal
and placement of D.R.S.C. for twenty-three consecutive months, and termination of parental
rights best serves the needs and welfare of D.R.S.C. 23 Pa.C.S.A. §251 l(a)(5).
8. D.R.S.C. has been removed from the care of Mother and Father by the Juvenile
Court, more than twelve (12) months have passed since removal, the conditions which led to
the removal and placement ofD.R.S.C. continue to exist and termination of parental rights best
serves the needs and.welfare of D.R.S.C. 23 Pa.C.S.A. §251 l(a)(8).
9. The developmental, physical and emotional needs and welfare of D.R.S.C. will
be best served by termination of parental rights. 23 Pa.C.S.A. §2511 (b).
10. CYF has met its burden of clear and convincing evidence relative to 23
Pa.C.S.A. §251 l(a) and (b).
11. Termination of parental rights and, therefore, freeing D.R.S.C. for adoption or
other permanent living arrangement are appropriate in the circumstances of this case.
An appropriate order follows.
BY THE COURT:
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Date: March 23, 2015
Mark L. Tunnell, J. -
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