In Re: Adopt of: P.S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: P.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: H.A.S., MOTHER :
:
:
:
: No. 1188 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 42 Adoptions 2020,
43 Adoptions 2020, 44 Adoptions 2020,
45 Adoptions 2020, CP-21-DP-0000078-2019,
CP-21-DP-0000262-2015, CP-21-DP-0000263-2015,
CP-21-DP-0000264-2015
IN RE: ADOPTION OF: T.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: H.S., MOTHER :
:
:
:
: No. 1189 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 043-adopt-2020
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J-S02024-23
IN RE: ADOPTION OF: R.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: H.S., MOTHER :
:
:
:
: No. 1190 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 044-adopt-2020
IN RE: ADOPT. OF: J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: H.S., MOTHER :
:
:
:
:
: No. 1191 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 045-adopt-2020
IN THE INTEREST OF: P.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: H.A.S., MOTHER :
:
:
:
:
: No. 1192 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000262-2015
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IN THE INTEREST OF: T.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: H.A.S., MOTHER :
:
:
:
:
: No. 1193 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000263-2015
IN THE INTEREST OF: R.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: H.A.S., MOTHER :
:
:
:
: No. 1194 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000264-2015
IN THE INTEREST OF: J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: H.A.S., MOTHER :
:
:
:
:
: No. 1195 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000078-2019
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IN RE: ADOPTION OF: P.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.A.S., FATHER :
:
:
:
: No. 1226 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 42 Adoptions 2020,
43 Adoptions 2020, 44 Adoptions 2020,
45 Adoptions 2020, CP-21-DP-0000078-2019,
CP-21-DP-0000262-2015, CP-21-DP-0000263-2015,
CP-21-DP-0000264-2015
IN RE: ADOPTION OF: T.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.A.S., FATHER :
:
:
:
: No. 1227 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 043-adopt-2020
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J-S02024-23
IN RE: ADOPTION OF: R.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.A.S., FATHER :
:
:
:
: No. 1228 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 044-Adoptions-2020
IN RE: ADOPT. OF: J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.A.S., FATHER :
:
:
:
:
: No. 1229 MDA 2022
Appeal From the Decree Entered August 3, 2022
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 045-adopt-2020
IN THE INTEREST OF: J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.A.S., FATHER :
:
:
:
:
: No. 1238 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000078-2019
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IN THE INTEREST OF: P.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.S., FATHER :
:
:
:
:
: No. 1240 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000262-2015
IN THE INTEREST OF: T.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.A.S., FATHER :
:
:
:
:
: No. 1242 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000263-2015
IN THE INTEREST OF: R.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.A.S., FATHER :
:
:
:
: No. 1244 MDA 2022
Appeal From the Order Entered August 4, 2022
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000264-2015
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY OLSON, J.: FILED: MARCH 13, 2023
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H.A.S. (“Mother”) and J.A.S. (“Father”) (collectively, “Parents”) appeal
from the August 3, 2022 decrees, in the Court of Common Pleas of
Cumberland County, involuntarily terminating their parental rights to their
daughters, P.S. (born in December 2012), T.S. (born in August 2014), and
R.S. (born in November 2015), and their son, J.S. (born in June 2017)
(collectively, “Children”). Parents also appeal from the August 4, 2022 orders,
changing Children’s permanency goals from reunification to adoption.
In addition, Mother’s court-appointed counsel, R.H. Hawn, Jr., Esquire,
and Father’s court-appointed counsel, Sheri D. Coover, Esquire, have filed
petitions to withdraw and accompanying briefs, pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we grant counsels’ petitions to
withdraw, affirm the termination decrees, and dismiss the appeals from the
goal change orders as moot.
We begin with an overview of the relevant facts and procedural history.
Cumberland County Children and Youth Services (“CYS”) has been involved
with the family for numerous years, beginning in December 2015.1 N.T.,
7/20/2022, at CYS Exhibits 1-4. Initially, in February 2016, Parents’
daughters, P.S., T.S., and R.S., were adjudicated dependent. In May 2018,
after Parents’ substantial compliance with their permanency plans, the
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1 The court orders/reports of Children’s dependency dockets were admitted by
the orphans’ court as CYS Exhibits 1-4.
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juvenile court terminated supervision and reunited the three children with
Parents.
However, in May 2019, CYS received a referral from Silver Spring
Township Police Department regarding dangerous environmental conditions in
Parents’ home. N.T., 7/20/2022, at CYS Exhibits 1-4; Shelter Care Order,
5/20/2019. According to the dependency petition, Parents home was in
deplorable condition, including, (1) trash and piles of dirty laundry about
shoulder height; (2) a stench emanating from the home and water dripping
from the bottom of the trailer; and (3) subflooring exposed in part of the
trailer. N.T., 7/20/2022, at CYS Exhibit 8; Dependency Petition, 5/22/2019.
CYS made efforts to engage the family by providing in-home services but
reported that Father was volatile and uncooperative, and Mother, due to
post-traumatic stress disorder, was allegedly missing for significant periods of
time on various occasions. N.T., 7/20/2022, at CYS Exhibits 1-4; Shelter Care
Order, 5/20/2019. After a shelter care hearing, on May 20, 2019, the juvenile
court awarded legal and physical custody of the Children to CYS and placed
Children with their paternal grandparents. Id.-8-
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The court adjudicated Children dependent on August 23, 2019, and
Children remained with paternal grandparents.2, 3 A family service plan was
implemented that required parents to (1) continue to improve the condition
of the home, until it is safe and appropriate, and/or obtain and maintain
housing that is appropriate for reunification; (2) cooperate with CYS; (3)
complete a FAST evaluation provided by Alternative Behavior Consultants
(“ABC”), and follow through with all recommendations made; (4) maintain
regular contact with Children; (5) attend dental, medical, and educational
appointments for Children; and (6) secure reliable transportation. N.T.,
7/20/2022, at CYS Exhibit 13; Family Service Plan.
In January 2020, it was revealed that Parents lost their home, and on
or around September 17, 2019, Parents began staying at the home of a
maternal cousin in Enola, Pennsylvania.4 N.T., 7/20/2022, at CYS Exhibits
1-4; Permanency Order, 1/8/2020. By permanency review order dated
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2 At the shelter care hearing, Parents’ waived their right to have the
adjudicatory hearing within ten days pursuant to Pa.R.J.C.P. 1404.
3 Since February 2016, except for one motion hearing in May 2016 and the
shelter care hearing in May 2019, the Honorable Edward E. Guido presided
over this matter.
4 It is unclear from the record why Parents were evicted. However, during
direct examination, Father testified that their pipes were “being cut by the
park management,” and eventually the township came to their home because
it did not have running water and posted a notice of eviction. N.T., 7/20/2022,
at 155-156.
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January 8, 2020, the court found that Parents had not made progress in
addressing “financial instability or mental health concerns, the root cause of
the housing instability.” Id.Initially, CYS referred Parents to Central Pennsylvania Family Support
Services (“Family Support”) for U-Haul services and a local cleanup crew for
their home. N.T., 7/20/2022, at 91. After losing their home, in October and
November 2019, Mother utilized Family Support to obtain funding for a
replacement social security card, Father obtained funding for a state
identification card, and Parents obtained funding for birth certificate
duplicates. N.T., 7/20/2022, at 91-92, CYS Exhibit 13; Family Service Plan.
However, on November 12, 2019, Family Support discharged Parents from
their program because Father became very agitated and verbally aggressive
towards a Family Support employee, claimed that no one had helped them,
and demanded transportation to see Children. Id.After Parents were evicted, in October 2019, they applied for housing at
the Section 8 Department for Cumberland County Housing Authority (the
“Housing Authority”). Id. at 80. Initially, Parents did not provide all
necessary documents, but eventually provided the documents to the Housing
Authority in January 2020. Id. However, in April 2020, with agreement from
Parents’ attorneys, CYS caseworker, Milton Webber, informed the Housing
Authority that Children would not be returning to Parents due to their lack of
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progress with the Family Service Plan (“FSP”), so Parents were not provided
a housing voucher and were placed on a wait list. Id. at 82.
By July 2020, Parents had not made progress on the FSP, and CYS filed
petitions to terminate Parents’ parental rights to Children and for goal change.
After an evidentiary hearing on July 15, 2020, the orphans’ court denied these
petitions and allowed parents more time to achieve reunification.
In November 2020, Parents began visitation together with Children
through ABC.5 N.T., 7/20/2022, at 30. Ultimately, ABC stopped providing
visitation services in January 2022, after Father was “very abrasive” to the
ABC visitation supervisor, Linda Mapes, and accused her of abusing Children.
Id. at 32. Ms. Mapes testified that she was merely attempting to redirect
Children, and she was shocked by Father’s accusations. Id. at 32-33. After
this incident, Ms. Sweger, the director of ABC, testified that none of her
visitation supervisors were willing to work with Father, so ABC terminated
their services with Parents. Id. at 40.
In July 2021, Parents received a housing voucher from the Housing
Authority. Id. at 81-82. Parents were responsible for locating a home, but,
even after two extensions, Parents were unable to find a suitable place, and
the voucher expired in December 2021. Id. at 80-81. Parents reapplied for
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5From May 2019 to November 2020, due to Parents lack of transportation
and the COVID-19 pandemic, they were unable to participate in visitation at
ABC. N.T., 7/20/2022, at 29, CYS Exhibit 13; Family Service Plan.
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a housing voucher in January 2022, and the Housing Authority sent letters in
February and March 2022 requesting missing information. Id. at 84, 179.
Thereafter, the Housing Authority did not receive all the missing information
from Parents until June 2022, one month before the termination hearing. Id.
at 180. At the time of the hearing, Parents had not obtained a new voucher
and had not found suitable housing. Id. at 83-85.
On June 22, 2022, CYS filed petitions to change Children’s permanency
goals from reunification to adoption, and six days later, CYS filed petitions for
the involuntary termination of Parents’ parental rights pursuant to 23 Pa.C.S.A
§ 2511(a)(1), (2), (5), (8), and (b). The orphans’ court conducted an
evidentiary hearing on July 20, 2022, at which time Children were ages nine,
seven, six, and five, respectively. The court appointed a guardian ad litem
(“GAL”) and separate legal counsel for Children.
During the hearing, CYS presented the testimony of the following
individuals: (1) Felishia Houck, mental health outpatient therapist for P.S. and
T.S.; (2) Lia Gormsen, behavior consultant for P.S.; (3) Katelyn Fisher,
behavior consultant for J.S.; (4) Ms. Mapes, visitation supervisor at ABC; (5)
Ms. Sweger, owner and director of ABC; (6) Becky Shull, director of the
Section 8 department for Cumberland County Housing; (7) Mr. Webber,
caseworker for CYS who, as best we can discern from the record, worked with
the family from May 2019, until December 2021; (8) Karl Packer, caseworker
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for CYS who worked with family from January 2022, until the termination
hearing; and (9) M.S., paternal grandmother and Children’s caregiver.
Mother was represented by Attorney Hahn and testified on her own
behalf. She also presented the testimony of Stephen and Maureen Roth,
husband and wife, who supervised visitation after ABC discharged Parents;
and Richard Robison, Mother’s therapist.6 Father was represented by Attorney
Coover and testified on his own behalf. Father also presented testimony of
Lisa Smyser, an applications assistant with the Housing Authority.
By decrees dated August 2, 2022, and entered August 3, 2022, the
orphans’ court involuntarily terminated Parents’ parental rights to Children
pursuant to 23 Pa.C.S.A § 2511(a)(1), (2), (5), (8), and (b). In addition, by
orders entered August 4, 2022, the court changed Children’s permanency
goals to adoption. Parents’ individually filed timely notices of appeal and
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), which this Court consolidated sua sponte.7 The court
filed a Rule 1925(a) opinion on October 21, 2022.
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6Mr. and Mrs. Roth are acquaintances of Parents and are not affiliated with
any agency. CYS approved them as supervisors for Parents’ visits with
Children. N.T., 7/20/2022, at 48.
7 On September 1, 2022, Parents, acting pro se, individually filed notices of
appeal and concise statements of errors complained of on appeal. This Court
dismissed as duplicative Mother’s pro se appeals docketed at 1234-1237 MDA
2022 and Father’s pro se appeals docketed at 1230-1233 MDA 2022. See
(Footnote Continued Next Page)
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Attorneys Hahn and Coover filed petitions to withdraw and Anders
briefs in this Court on November 23, 2022, and November 29, 2022,
respectively, which we address first.
This Court has explained:
When counsel files an Anders brief, this Court may not review the
merits without first addressing counsel’s request to withdraw.
[T]his Court [has] extended the Anders principles to appeals
involving the termination of parental rights. . . .
In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (citations omitted).
To withdraw pursuant to Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted).
In Santiago, our Supreme Court held:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
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Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (emphasizing that
hybrid representation is forbidden on appeal).
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record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
Santiago, 978 A.3d at 361. Additionally, this Court has stated that,
[P]ursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.
Super. 2005) and its progeny, “[c]ounsel also must provide a copy
of the Anders brief to his client[, along with] a letter that advises
the client of his right to: (1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points that
the appellant deems worthy of the court[‘]s attention in addition
to the points raised by counsel in the Anders brief.”
In re X.J., 105 A.3d at 4 (citation omitted).
With respect to the third requirement of Anders, that counsel inform
the appellant of his or her rights in light of counsel’s withdrawal, this Court
has held counsel must “attach to their petition to withdraw a copy of the letter
sent to their client advising him or her of their rights.” Commonwealth v.
Millisock, 873 A.2d at 752. Finally,
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the court’s proceedings
and render an independent judgment as to whether the appeal is,
in fact, wholly frivolous.”
In re X.J., 105 A.3d at 4 (citation omitted).
Initially, we consider Attorney Hahn’s petition to withdraw as Mother’s
counsel in her appeals. Attorney Hahn filed a petition to withdraw certifying
his conscientious review and determination that Mother’s appeals is frivolous.
Counsel also filed an Anders brief which includes a summary of the procedural
history and facts of the case with citations to the record, issues that could
arguably support Mother’s appeals, and counsel’s assessment regarding why
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the appeals are frivolous with citations to relevant legal authority. Finally,
Attorney Hahn attached to his petition the letter that he sent to Mother
advising of her right to 1) retain new counsel to pursue the appeal; 2) proceed
pro se on appeal; or 3) raise any points that Mother deems worthy of this
Court’s attention. Accordingly, Attorney Hahn complied with the requirements
of Anders and Santiago.
With respect to Attorney Coover’s petition to withdraw as counsel for
Father in his appeals, she certified that Father’s appeals contain no
non-frivolous issues. Additionally, Attorney Coover filed an Anders brief
which includes a summary of the procedural history and facts of the case;
however, counsel does not provide citations to the record, instead citing the
averments in the termination petitions. Attorney Coover’s brief also (1) states
that Father’s appeals are wholly frivolous; (2) includes issues that could
arguably support Father’s appeal; and (3) provides the bare minimum
necessary under Santiago regarding counsel’s assessment for why Father’s
appeals from the termination decrees are frivolous, together with citations to
relevant legal authority. Finally, Attorney Coover attached to her petition the
letter she sent to Father advising of his right to 1) retain new counsel to pursue
the appeal; 2) proceed pro se on appeal; or 3) raise any points that Father
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deems worthy of this Court’s attention.8 Ultimately, Anders and Santiago
require “substantial[], if not perfect[],” compliance. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007). After careful review, we
conclude Attorney Coover’s brief is substantially compliant with Anders and
Santiago.
We next “conduct a review of the record to ascertain if on its face, there
are non-frivolous issues that counsel, intentionally or not, missed or
misstated.” Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc).
We note the standard of review in termination of parental rights cases:
[A]ppellate courts . . . accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record. If the factual findings are supported, appellate courts
review to determine if the trial court made an error of law or
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8 Of note, counsel did not include a letter advising Father of his rights when
she initially filed her petition to withdraw and Anders brief on November 29,
2022. On December 2, 2022, this Court entered an order directing counsel to
file a proof of service on Father and a Millisock letter. Counsel failed to
comply with this Court’s December 2, 2022 order, and on December 15, 2022,
this Court entered a second order directing counsel to comply with the
December 2, 2022 order. Counsel filed a response on December 21, 2022,
which included an acceptance of service and a Millisock letter; however,
counsel’s letter was inadequate. On December 22, 2022, this Court entered
a third order directing counsel to file a letter in compliance with
Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016). Finally, on
December 28, 2022, counsel filed a response with a copy of a letter that
advised Father of his rights pursuant to Millisock and a certificate of service
indicating Father was served with a copy of the letter.
We admonish counsel for the various shortcomings regarding her Millisock
letter and Anders brief. Eventually, counsel’s filings provided the bare
minimum required; however, counsel must be more careful in the future.
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abused its discretion. A decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court's decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re J.N.M., 177 A.3d 937, 941-942 (Pa. Super. 2018) (citation omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights and requires a bifurcated analysis. See 23 Pa.C.S.A. § 2511.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if 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 Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re J.N.M., 177 A.3d at 942 (citation omitted). In order to affirm a
termination of parental rights, we need only agree with the orphans’ court as
to any one subsection of Section 2511(a), as well as Section 2511(b). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
In the matter at bar, the orphans’ court terminated Mother’s parental
rights pursuant to 23 Pa.C.S.A § 2511(a)(1), (2), (5), (8), and (b). Here, we
analyze the court’s termination decrees pursuant to Section 2511(a)(8) and
(b), which provide as follows:
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(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
***
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(8), (b).
To satisfy Section 2511(a)(8), the petitioner must show three
components: (1) that the child has been removed from the care of the parent
for at least 12 months; (2) that the conditions which led to the removal or
placement of the child still exist; and (3) that termination of parental rights
would best serve the needs and welfare of the child. In re Adoption of
J.N.M., 177 A.3d 937, 943 (Pa. Super. 2018).
Unlike other subsections, Section 2511(a)(8) does not require the court
to evaluate a parent’s willingness or ability to remedy the conditions that led
to the placement of the children. In re M.A.B., 166 A.3d 434, 446 (Pa. Super.
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2017). “[T]he relevant inquiry” regarding the second prong of
Section 2511(a)(8) “is whether the conditions that led to removal have been
remedied and thus whether reunification of parent and child is imminent at
the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009).
Further, the Adoption Act prohibits the court from considering, as part of the
Section 2511(a)(8) analysis, “any efforts by the parent to remedy the
conditions described [in the petition] which are first initiated subsequent to
the giving of notice of the filing of the petition.” 23 Pa.C.S.A. § 2511(b).
We observe that Sections 2511(a)(8) and (b) both require a court
considering a termination petition to assess the needs and welfare of the
relevant child or children. However, the needs and welfare analysis required
by Section 2511(a)(8) is distinct from the needs and welfare analysis required
by Section 2511(b) and must be addressed separately. In re C.L.G., 956
A.2d 999, 1009 (Pa. Super. 2008) (en banc).
This Court has recognized “that the application of [Section 2511(a)(8)]
may seem harsh when the parent has begun to make progress toward
resolving the problems that had led to the removal of her children.” In re
Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
However, by allowing for termination when the conditions that led
to removal of a child continue to exist after a year, the statute
implicitly recognizes that a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. 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.
Indeed, we work under statutory and case law that contemplates
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only a short period of time, to wit [18] months, in which to
complete the process of either reunification or adoption for a child
who has been placed in foster care.
Id.Regarding Section 2511(b), we consider whether termination of parental
rights will best serve a child’s developmental, physical and emotional needs
and welfare. See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). “In
this context, the court must take into account whether a bond exists between
child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. “[A] parent’s basic constitutional
right to the custody and rearing of . . . her child is converted, upon the failure
to fulfill . . . her parental duties, to the child’s right to have proper parenting
and fulfillment of [the child’s] potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
“When conducting a bonding analysis, the court is not required to use
expert testimony. [Instead, s]ocial workers and caseworkers can offer
evaluations as well.” In re Z.P., 994 A.2d at 1121. Further,
[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent.
In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010). “‘Above all else . . . adequate
consideration must be given to the needs and welfare of the child.’ A parent’s
own feelings of love and affection for a child, alone, do not prevent termination
of parental rights.” In re Z.P., 994 A.2d at 1121.
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In the instant case, the orphans’ court determined that Children were
removed from Parents’ home in May 2019 because the home was “inadequate”
and “unsafe,” there were mental health concerns for Parents, and Parents
were uncooperative with CYS’s efforts to provide aid. Orphans’ Court Opinion,
10/21/2022, at 8. The court emphasized that, at each permanency review
hearing, it impressed upon Parents the importance of obtaining appropriate
housing. Id. at 9. The court stated that from September 2019, through the
termination hearing in July 2022, Parents were without adequate housing. Id.
The court also stated that Parents “were again becoming confrontational and
obstreperous in their dealings with [CYS] and service providers.” Id.
A careful review of the record supports termination pursuant to Section
2511(a)(8). At the time of the hearing, Children had been in placement for
more than three years, far in excess of the statutory minimum. Concerning
the second factor of Section 2511(a)(8), Parents never progressed beyond
supervised visitation. N.T., 7/20/2022, at 51. Furthermore, Parents
completed a FAST assessment in June 2020. Id. at 36. The assessment
revealed that Parents would benefit from parenting education and Parents
were recommended to SKILLS parenting program, which is an intensive
in-home parenting service. Id. at 37. However, because Parents never
obtained a suitable home in the three years Children were placed, Parents
were not able to complete the program. Id.
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Additionally, the evidence supports that Parents were again becoming
uncooperative with CYS and other service providers. In January 2022, ABC
terminated visitation services for Parents because at their visit on January 28,
2022, Father was “very abrasive” with Ms. Mapes, ABC visitation supervisor,
and accused her of abusing Children. Id. at 32. On direct examination, she
testified:
Q: You said this was the last visit. What happened to cause this
to be the last visit?
A: After [Children] left and I came back in the building, [Father]
was very abrasive with me and accused me of -- actually accused
me of abusing [Children] while they were in the visitation because
I had asked that they clean up toys before they got other toys out.
I had asked [P.S.] not to get a soda in a cup when we were in the
middle of dismissal.
Q: So, would you characterize these things that you identified as
redirection-type actions by you?
A: Yes.
Q: You said he accused you of abuse?
A: Yes, abusing [Children].
Q: How did you respond, if you recall?
A: I tried very hard not to say too terribly much, because that
was, quite frankly, shocking to me.
Q: Was it conversational tone when he --
A: No, sir.
Q: How would you describe it?
A: He was abrasive and yelling.
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Id. at 32-33. As related supra, Ms. Sweger, director of ABC, testified that
none of her visitation supervisors were willing to work with Father so ABC
discharged Parents. Id. at 40.
Additionally, CYS caseworker, Mr. Packer, testified that since he began
working with Parents in January 2022, they have not been cooperative. Id.
at 116. Through their attorneys, in April or May 2022, Mr. Packer requested
various materials from Parents: (1) address verification; (2) residency
verification, if applicable, or updates regarding their search for housing
through the Housing Authority; (3) income verification; and (4) verification of
suitable transportation. Id. at 111. Mr. Packer testified that he does not
know where Parents live on a daily basis. Id at 112. Additionally, CYS does
not consider Parents income as stable. Id. at 112. Parents have only provided
screenshots of their bank accounts, and for the first time, during the week of
the termination hearing, Father provided a letter from his alleged employer,
a seal coating business. Id. at 112-115. Relatedly, Mr. Packer testified that,
regarding transportation, he is only aware of a van that does not contain
appropriate seating to transport Children. Id. at 115. Mr. Packer also stated
that he has not received any mental health records regarding Father. Id. at
116.
Of note, Mr. Packer testified that Mother regularly visits with Children
and participates in mental health counseling. Id. at 118-119. However, on
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examination by the orphans’ court, Mr. Packer testified that she follows the
lead of Father due to Parents’ codependency. He explained:
Q: I’m going to follow up on that. Does [Mother] follow the lead
of [Father] in your dealings?
A: Correct.
Q: And [Father] has been uncooperative?
A: Correct.
N.T., 7/20/2022, at 119. On cross-examination by Mother’s counsel, Mr.
Packer testified that, in his opinion, Mother follows Father’s lead because of
her “codependency.” Id. at 119-120. Additionally, on cross-examination by
Mother’s counsel, paternal grandmother also stated that Parents are
codependent:
Q: I understand the relationship that you’re struggling to have
with your son. Can you separate your relationship with your son
from your relationship with [Mother]; and if you’re able to, how
would you describe it?
A: I struggle. First of all, the two of them are a unit, very, very
codependent.
...
Q: When you spoke of concern for mental health, you were
speaking of [Father’s] mental health, is that right?
A: Definitely his, but I don’t have an experience personally
interacting with [Mother] without having [Father] with her. So, I
am not going to speak to how my perception of her mental health
status is because I can’t get a feel for it.
Id. at 131, 133.
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Regarding housing, CYS caseworker, Mr. Webber, testified that CYS
became involved with the family again in May 2019 because of inappropriate
housing. N.T., 7/20/2022, at 91. Mr. Webber indicated that CYS referred
Family Support which offered U-Haul services and a local cleanup crew to
address the issues in the home, but Parents did not participate in that service.
Id.
As related supra, Parents applied for housing at the Housing Authority
in October 2019. Id. at 80. However, Parents did not provide all necessary
documents, and the Housing Authority did not receive the missing documents
until January 2020. Id. Additionally, in April 2020, because Parents had been
uncooperative and were not meeting their FSP goals, with agreement from
Parents’ attorneys, CYS caseworker, Mr. Webber, informed the Housing
Authority that Children would not be returned to Parents, so Parents did not
obtain a housing voucher and were placed on a waiting list. Id. at 82.
Throughout his time on the case, Mr. Webber communicated with
Parents’ attorneys regarding what was needed to obtain housing, and directly
spoke with the Housing Authority numerous times for updates. Id. at 101.
Mr. Webber indicated that he received emails from Parents about searches,
but never received “any letters from any landlords saying that [Parents]
confirmed any appointments with them or that [Parents] looked at a place.”
Id. On inquiry by the orphans’ court, Mr. Webber testified as follows,
Q: Well, the big thing here is housing. Did they ever establish
housing while you were the caseworker?
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A: No, your Honor, they did not.
Id. at 101.
CYS caseworker, Karl Packer, who succeeded Mr. Webber as the family
caseworker at the beginning of 2022, confirmed, as follows, on direct
examination that Parents still do not have appropriate housing:
Q: Other than [Father’s attorney’s] address at her office, did you
receive any type of address verification from [Parents]?
A: No.
Q: As far as – you are not aware of them obtaining a residence at
this point?
A: No. We have pieced together that they obtained a storage unit,
but no housing.
Q: So, at this point, do you know where they live on a day-to-day
basis?
A: No.
Q: Is that something you’ve been requesting from counsel?
A: Yes.
Id. at 112. Parents reapplied for a housing voucher in January 2022, but the
applications lacked complete information. Id. at 84, 179. Accordingly, the
Housing Authority sent letters to Parents in February and March 2022
requesting the missing information. Id. Thereafter, the Housing Authority
did not receive all the necessary documents from Parents until June 2022, just
one month prior to the termination hearing. Id. at 180.
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Additionally, Ms. Shull, director of the Housing Authority, testified that,
typically only twenty percent of vouchers expire before housing is located, and
during the eviction moratorium,9 she estimated that “maybe [thirty] percent
expired,” but people were still locating housing. Id. at 83, 86. At the time of
the termination hearing, Parents had not obtained a new voucher, and Ms.
Shull stated that a new voucher could be obtained in two weeks to two months
depending on Parents’ cooperation. Id. at 85.
Father testified that Parents have consistently been looking for housing
but have not been successful due to extenuating circumstances; (1) Parents
lack of credit; (2) their need to obtain birth certificates so the Housing
Authority could provide a voucher; and (3) rental application fees. Id. at
142-143, 145-146. Father also stated that he believed that once they had the
voucher that Parents would have housing possibly “in a week or two.” Id. at
172. Despite this contention, as related supra, Parents did not provide CYS
or the orphans’ court with proof that a suitable home was imminent.
Accordingly, the conditions that led to Children's removal had not been
remedied. Thus, Parents' reunification with Children was not imminent at the
time of the termination hearing. In re I.J., 972 A.2d at 11.
____________________________________________
9 During the COVID-19 pandemic, state and federal eviction moratoriums
prohibited eviction, ejection, or other displacement for failure to make
payments.
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Regarding the third factor of Section 2511(a)(8), the orphans’ court
heard sufficient testimony that termination of Parents’ parental rights would
best serve the needs and welfare of Children. Children have lived with
paternal grandparents since May 2019. Id. at 90-91, 121. Paternal
grandmother testified that since Children moved in, they have been doing
great and have made progress. Id. at 122. Ms. Houck, trauma therapist for
P.S. and T.S., confirmed that they “made a lot of progress” since they started
therapy with her two years ago. Id. at 17. Similarly, Ms. Fisher, behavioral
consultant for J.S., testified that he has made significant progress since he
started in March 2021. Id. at 24. Ms. Fisher testified she meets with J.S.
once a week, and that initially he would have a tantrum for the entire session.
Id. at 24, 26. However, currently, J.S. only has a tantrum “maybe once a
month,” and “he’s able to request a break” if needed. Id. at 27.
Additionally, prior to the start of the termination hearing, the court
interviewed P.S. and T.S., and T.S. stated, “[paternal grandmother is] safe.
She takes care of us. And she loves us, and we love her. But, also, [Mother]
and [Father] are not as safe, because when we were at the trailer park, they
fought a lot.” Id. at 5.
Based on the foregoing, we discern no abuse of discretion by the
orphans’ court in concluding that Parents’ conduct warrants termination
pursuant to Section 2511(a)(8). The record demonstrates that Children have
been removed from Parents’ care far in excess of the 12-month statutory
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minimum; the conditions that led to removal have not been remedied and
reunification was not imminent at the time of the hearing; and termination
would best serve the needs and welfare of Children.
The court also did not abuse its discretion in determining that
termination best serves Children’s developmental, physical, and emotional
needs and welfare pursuant to Section 2511(b). As related supra, Children
have lived with paternal grandparents for over three years, since May 2019.
N.T., 7/20/2022, at 121. Furthermore, prior to the start of the termination
hearing, the court interviewed P.S. and T.S., who stated that they would like
to live with paternal grandparents. Id. at 5. T.S. also stated, and P.S.
confirmed, that R.S. and J.S. “want to live with [paternal grandmother], too”
for “the same reasons as us.” Id.
Ms. Houck, therapist for P.S. and T.S., confirmed that both girls want to
stay with paternal grandparents. Id. at 20. Similarly, Ms. Fisher, behavior
consultant for J.S., stated that J.S. has expressed his desire to live “at
grammie’s” because “he’s scared of the fighting and yelling.” Id. at 25.
Finally, paternal grandmother testified that, “[Children] know we love them.
They know we provide for them.” Id. at 124. Although Parents love Children,
and the court acknowledged a bond, “[a] parent’s own feelings of love and
affection for a child, alone, do not prevent termination of parental rights.” In
re Z.P., 994 A.2d at 1121.
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Additionally, during inquiry by the court, paternal grandmother
confirmed that she is confident that any adverse effects the Children may
suffer due to termination will be overcome by the strong bond Children share
with her and her husband. She explained:
Q: If I were to terminate parental rights, do you foresee any
adverse consequences to [Children]?
A: I think that’s a loaded question in that [Children] will respond
-- I do know [Children] have told multiple therapists, multiple
caseworkers, that they want to live with us. Will it cause trauma?
I think any undertaking will cause -- they’re going to have to work
through it.
Q: Do you think that their bond with you and your husband will
enable them to work through it with you help?
A: I do believe so. I do believe that there’s feelings of wanting to
stay with us. I don’t push one way or the other. They know we
love them. They know we provide for them. We know we’re there
emotionally for them. That will continue. They are all in
therapies, as you’re well aware, and I’m not going to sever those
should we gain permanent care of them. As long as they need
those services, mental health and otherwise, I’m going to continue
them.
Id. at 124. Paternal grandmother also stated that she would allow Parents
contact with Children, even if their parental rights were terminated, if it were
“a safe environment for [Children]”, and Children indicate that they want to
see Parents. Id. at 125-126. Accordingly, the orphans’ court did not abuse
its discretion in determining that termination best serves Children’s
developmental, physical, and emotional needs and welfare pursuant to Section
2511(b).
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Our independent review of the certified record reveals no preserved
non-frivolous issue that would arguably support these appeals from the
decrees.
Finally, we decline to review Parents’ appeal from the orders changing
Children’s permanency goals in light of our disposition on the appeals from
the termination decrees. By affirming the termination decrees, Parents’
appeals from the goal change orders are moot. See In the Interest of
D.R.-W., 227 A.3d 905, 917 (Pa. Super. 2020) (“An issue before a court is
moot if in ruling upon the issue the court cannot enter an order that has any
legal force or effect.”) (citation omitted).
Therefore, we grant Attorneys Hahn’s and Coover’s petitions to
withdraw from representation, affirm the decrees terminating Parents’
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b), and dismiss as
moot the appeals from the orders changing Children’s permanency goals to
adoption.
Attorneys Hahn’s and Coover’s petitions to withdraw granted. Decrees
affirmed. Appeals from goal change orders dismissed as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2023
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