In the Int. of: L.S.D.R-C., a Minor ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN THE INT. OF: L.S.D.R.-C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: R.S.R., FATHER :
:
:
:
: No. 357 MDA 2023
Appeal from the Decree Entered January 26, 2023
In the Court of Common Pleas of Luzerne County Orphans’ Court at
No(s): A-9378
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 1, 2023
R.S.R. (Father) appeals from the order granting the petition filed by the
Luzerne County Children and Youth Services (CYS) to involuntarily terminate
Father’s parental rights to L.S.D.R.-C. (Child). We affirm.
We adopt the orphans’ court’s summary of the facts in this case. See
Orphans’ Ct. Op., 3/28/23, at 1-11, 14-16. Briefly, Child was born in August
of 2021. At the hospital on August 13, 2021, Father dropped Child during an
argument with N.M.C. (Mother). That same day, a shelter care hearing was
held and the Child was placed with CYS. Following a dependency hearing,
Child was adjudicated dependent on August 25, 2021. At that time, the
dependency court ordered Father to participate in parenting education and to
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* Retired Senior Judge assigned to the Superior Court.
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obtain and maintain safe and stable housing. Father subsequently relocated
to New Jersey and did not participate in any parenting classes.
Father returned to Luzerne County around May of 2022. After a May
10, 2022 permanency review hearing, the dependency court ordered Father
to participate in mental health services and drug and alcohol services. Father
made appointments with organizations in Luzerne County that provide mental
health and drug and alcohol services, but Father did not begin any treatment.
Father again relocated to New Jersey and did not obtain any court-ordered
treatment in New Jersey. Father had approximately five supervised visits with
Child, and he has not seen Child since June 6, 2022. Child has been placed
with the same foster parents for almost her entire life and the foster parents
intend to adopt Child.
CYS filed a petition to terminate Father’s parental rights on September
6, 2022. The orphans’ court held a termination hearing on January 23, 2023.
Father appeared at the hearing with counsel.1 Child was represented by
Joseph Mashinski, Esq. who served both as Child’s guardian ad litem (GAL)
and as Child’s legal counsel.2 On January 26, 2023, the orphans’ court issued
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1The orphans’ court also terminated Mother’s parental rights in a separate
decree also entered on January 26, 2023. Mother did not file a separate
appeal and is not a party to the instant appeal.
2 At the termination hearing, Attorney Mashinski stated that he had
determined that there was no conflict between Child’s best and legal interests,
and the orphans’ court accepted Attorney Mashinski’s representation that
there was no conflict. N.T. Hr’g, 1/23/23, at 3-4; see also In re Adoption
(Footnote Continued Next Page)
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a decree concluding that CYS had presented clear and convincing evidence to
support the termination of Father’s parental rights under Sections 2511(a)(2),
(5), (8), and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938. Decree,
1/26/23.
Father subsequently filed a timely notice of appeal. Both Father and the
orphans’ court complied with Pa.R.A.P. 1925.
On appeal, Father raises the following issue:
Whether the [orphans’] court abused its discretion, committed an
error of law and/or there was insufficient, evidentiary support for
its finding that [Father’s] parental rights should be terminated
pursuant to 23 Pa.C.S. Section 2511(a)(2), (5) and (8)?
Father’s Brief at 4 (unpaginated) (formatting altered).3
Father challenges the orphans’ court’s decree involuntarily terminating
his parental rights. Id. at 9 (unpaginated). Father argues that the orphans’
court erred in concluding that the conditions that led to the removal or
placement of Child continued to exist because CYS did not present evidence
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of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020) (stating that where a GAL was
appointed to represent both a child’s legal and best interests, appellate courts
may review sua sponte “whether the orphans’ court determined that the
child’s best interests and legal interests did not conflict”).
3 We note that in his Rule 1925(b) statement, Father also claimed that the
evidence was insufficient for the orphans’ court to conclude that termination
of his parental rights was in Child’s best interests under 23 Pa.C.S. § 2511(b).
See Rule 1925(b) Statement, 2/27/23. Father has not argued this claim in
his appellate brief. Therefore, Father has abandoned this issue for purposes
of appeal. See Interest of D.N.G., 230 A.3d 361, 363 n.2 (Pa. Super. 2020)
(stating that “[a]n issue identified on appeal but not developed in the
appellant’s brief is abandoned and, therefore, waived” (citation omitted)).
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establishing that “any specific concerns which would support continued
placement or necessity of services.” Id. Father contends that “the record
does not contain sufficient evidence to determine what the concerns and/or
reasons for placement were other than an isolated argument that occurred at
the hospital . . . .” Id. Father asserts that multiple witnesses testified to
“receiving referrals [for Father to be evaluated for services] but not one
testified to what the concerns were that necessitated the referrals[,]” and that
Jaime Stuart, the CYS caseworker, testified to “[Father’s] failure to complete
services but not to any current concerns that would necessitate continued
placement [of Child].” Id.Initially, before addressing the merits of this issue, we must determine
whether Father has adequately developed his claim for review. This Court
may raise this issue of waiver sua sponte. See Tucker v. R.M. Tours, 939
A.2d 343, 346 (Pa. Super. 2007). “The issue of waiver presents a question of
law, and, as such, our standard of review is de novo and our scope of review
is plenary.” Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d
260, 269 (Pa. 2020) (citation omitted).
“It is well-settled that this Court will not review a claim unless it is
developed in the argument section of an appellant’s brief, and supported by
citations to relevant authority.” In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa.
Super. 2017) (citations omitted); see also Pa.R.A.P. 2119(a) (providing that
the argument section of an appellate brief shall contain discussion of issues
raised therein and citation to pertinent legal authorities). “Where an appellate
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brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable
of review, that claim is waived.” M.Z.T.M.W., 163 A.3d at 465-66 (citation
omitted and formatting altered).
Here, Father baldly asserts that CYS did not present any evidence
establishing why Father was referred to services for mental health, drug and
alcohol, or parenting education. Additionally, Father cites generally to 23
Pa.C.S. § 2511(a) and case law discussing the standard for termination of
parental rights. See Father’s Brief at 5-6 (unpaginated). However, Father
does not discuss the requirements for termination of parental rights under
subsections 2511(a)(2), (5), and (8); Father also has not cited any case law
interpreting those subsections. Because Father has failed to provide any
support or relevant authority supporting his sole claim of error, we conclude
that he has waived that claim. See M.Z.T.M.W., 163 A.3d at 465-66.
Further, to the extent that Father challenges the adjudication of
dependency and the orders directing Father to obtain services for parenting
education, mental health, and drug and alcohol to remedy the conditions that
led to Child’s placement, we note that Father did not raise those claims before
the orphans’ court. Therefore, those claims are waived. See Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”); see also Interest of N.N., 1631 EDA
2022, 2023 WL 2379250, at *2 (Pa. Super. filed Mar. 7, 2023) (unpublished
mem.) (concluding that the father waived his claims that his plan objectives
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were irrelevant to his ability to parent the child where he did not raise that
argument before the orphans’ court).4 Additionally because Father has only
appealed from the decree terminating his parental rights, he cannot challenge
any of the prior dependency orders. See Interest of H.B., Nos. 1726 MDA
2019, 1727 MDA 2019, 1728 MDA 2019, 1729 MDA 2019, 2020 WL 2554613,
at *9 (Pa. Super. filed May 20, 2020) (unpublished mem.) (concluding that in
an appeal from a decree terminating the father’s parental rights, the father
waived any arguments related to the adjudication of dependency because the
father did not appeal adjudication of dependency).
However, even if we did not find waiver, Father would not be entitled to
relief on the merits.
The standard of review in termination of parental rights cases
requires appellate courts to 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 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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted and formatting
altered). “[T]he trial court is free to believe all, part, or none of the evidence
presented, and is likewise free to make all credibility determinations and
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4 See Pa.R.A.P. 126(b) (providing that this Court may cite to non-precedential
decisions of this Court filed after May 1, 2019, for their persuasive value).
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resolve conflicts in the evidence.” In re Q.R.D., 214 A.3d 233, 239 (Pa.
Super. 2019) (citation omitted).
The burden is on the petitioner, instantly, CYS, “to prove by clear and
convincing evidence that [the] asserted grounds for seeking the termination
of parental rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009). This Court has explained that “[t]he standard of clear and convincing
evidence is defined as testimony that is so clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.” Id. (citation and
quotation marks omitted).
Termination of parental rights is governed by Section 2511, which
requires a bifurcated analysis.
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 L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We note
that we need only agree with the orphans’ court as to any one subsection of
Section 2511(a), as well as Section 2511(b), to affirm an order terminating
parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).
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Section 2511(a)(2)
Section 2511(a)(2) provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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:
(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.
23 Pa.C.S. § 2511(a)(2).
To satisfy the requirements of [Section] 2511(a)(2), the moving
party must prove (1) repeated and continued incapacity, abuse,
neglect or refusal; (2) that such incapacity, abuse, neglect or
refusal caused the child to be without essential parental care,
control or subsistence; and (3) that the causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied. The
grounds for termination are not limited to affirmative misconduct,
but concern parental incapacity that cannot be remedied.
In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citations and quotation
marks omitted).
Further, this Court has explained:
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied,
are not limited to affirmative misconduct.
[S]ubsection (a)(2) does not emphasize a parent’s refusal or
failure to perform parental duties, but instead emphasizes the
child’s present and future need for essential parental care, control
or subsistence necessary for his physical or mental well-being.
Therefore, the language in subsection (a)(2) should not be read
to compel courts to ignore a child’s need for a stable home and
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strong, continuous parental ties, which the policy of restraint in
state intervention is intended to protect. This is particularly so
where disruption of the family has already occurred and there is
no reasonable prospect for reuniting it.
Thus, while sincere efforts to perform parental duties, can
preserve parental rights under subsection (a)(1), those same
efforts may be insufficient to remedy parental incapacity under
subsection (a)(2). Parents are required to make diligent efforts
toward the reasonably prompt assumption of full parental
responsibilities. A parent’s vow to cooperate, after a long period
of uncooperativeness regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous.
In re Z.P., 994 A.2d 1108, 1117-18 (Pa. Super. 2010) (citations omitted and
formatting altered).
Additionally, this Court has stressed that “a child’s life cannot be held in
abeyance while a parent attempts to attain the maturity necessary to assume
parenting responsibilities.” Interest of D.R.-W., 227 A.3d 905, 914 (Pa.
Super. 2020) (citation omitted and formatting altered).
As stated above, Father has waived his challenge to the orphans’ court’s
termination of his parental rights under Section 2511(a)(2), (5), and (8). But
even if we did not find waiver, we would affirm based on the orphans’ court’s
opinion.5 See Orphans’ Ct. Op. at 3-12. Specifically, we agree with the
orphans’ court’s analysis of the evidence presented at the termination hearing,
including that Father failed to remedy the conditions that gave rise to Child’s
placement because Father did not complete his court-ordered mental health
treatment, substance abuse treatment, or parenting services. See id. at 11-
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5 The orphans’ court’s citations on pages 4 and 12 of its opinion should read
“In the Interest of Lilley, 719 A.2d 327 (Pa. Super. 1998).”
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12; see also N.T. Hr’g, 1/23/23, at 9-15, 18-20, 24-26, 31-33, 36-41.
Because the orphans’ court’s findings are supported by competent, clear, and
convincing evidence in the record and we discern no error in the orphans’
court’s legal conclusions, we conclude that the orphans’ court did not abuse
its discretion by terminating Father’s parental rights to Child pursuant to
Section 2511(a)(2). See T.S.M., 71 A.3d at 267; C.M.K., 203 A.3d at 262.
Accordingly, Father is not entitled to relief on this issue.
Section 2511(b)
As noted previously, Father has abandoned any challenge to the
orphans’ court’s termination of his parental rights under Section 2511(b). In
any event, even if Father had not waived his Section 2511(b) claims, we would
agree with the orphans’ court’s conclusions which properly gave primary
consideration to the developmental, physical and emotional needs and welfare
of Child. See In re C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en
banc).
Section 2511(b) states in relevant part:
(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. . . .
23 Pa.C.S. § 2511(b).
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“[T]he focus in terminating parental rights is on the parent, under
Section 2511(a), whereas the focus in Section 2511(b) is on the child.”
C.L.G., 956 A.2d at 1008 (citation omitted). This Court has explained:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In 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. Additionally, . . . the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond can be
severed without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations
omitted and formatting altered). “Common sense dictates that courts
considering termination must also consider whether the children are in a pre-
adoptive home and whether they have a bond with their foster parents.”
T.S.M., 71 A.3d at 268 (citation omitted); see also Interest of K.T., --- A.3d
---, Nos. 37 WAP 2022, 38 WAP 2022, 2023 WL 4092986, at *18 (Pa. filed
June 21, 2023) (explaining that a Section 2511(b) analysis must also consider
factors such as “the child’s need for permanency and length of time in foster
care . . . whether the child is in a preadoptive home and bonded with foster
parents; and whether the foster home meets the child’s developmental,
physical, and emotional needs, including intangible needs of love, comfort,
security, safety, and stability” (footnote omitted)).
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“In cases where there is no evidence of any bond between the parent
and child, it is reasonable to infer that no bond exists. The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the particular
case.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (citation
omitted). The question is whether the bond between the parent and the child
“is the one worth saving or whether it could be sacrificed without irreparable
harm to” the child. Id. at 764. “Section 2511(b) does not require a formal
bonding evaluation” and caseworkers may offer their opinions and evaluations
of the bond. Z.P., 994 A.2d at 1121 (citation omitted).
Accordingly, we would affirm based on the orphans’ court’s opinion if
Father’s Section 2511(b) claims were not waived, in that we agree with the
orphans’ court analysis of the evidence presented at the termination hearing,
which were supported by the record, including that Child has a parental bond
with foster parents, whom she calls “Momma and Dada,” foster parents
provide for Child’s physical, developmental, and emotional needs, and Child
does not have a parental bond with Father. See Orphans’ Ct. Op. at 13-16,
18-19; see also N.T. Hr’g, 1/23/23, at 68-74. Therefore, even if Father had
not abandoned his Section 2511(b) claim, Father is not entitled to relief on
this issue. For these reasons, we conclude that the orphans’ court’s findings
are supported by competent, clear, and convincing evidence in the record and
we discern no error in the orphans’ court’s legal conclusions, nor abuse of
discretion in its decision to terminate Father’s parental rights to Child pursuant
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to Section 2511(a)(2) and (b). See T.S.M., 71 A.3d at 267. Accordingly, we
affirm.
Decree affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/01/2023
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Circulated 07/06/2023 10:31 AM
IN THE INTEREST OF IN THE COURT OF COMMON
PLEAS OF LUZERNE COUNTY
L.S.D.R.-C., aMinor ORPHAN'S COURT DIVISION
Appeal of R.S.R. NO. A-937 8
357 MDA 2023 RECORDED
03/28/202 1 1W -2 :05 AN
JUDICIAL SERVICES 4 RECORD'
LUZERNE COUNTY
PENNSYLVANIA
OPINION PURSUANT TO PA.R.A.P. 1925(a) Inst Nut: 202315043
I. PROCEDURAL HISTORY
On September 6, 2022, Petitioner, Luzerne County Children and Youth
Services (Children and Youth), filed Petitions for the Involuntary Termination of
Parental Rights (Petitions) of the natural parents as to the minor child, L.S.D.R.-
C., in addition to conducting agoal change hearing before the Court. A hearing
was held on January 23, 2023.
This Court issued decrees terminating the parental rights of Mother and
Father on January 25, 2023. Particularly, Mother's parental rights were
terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1)(2)(5) & (8), and Father's
parental rights were terminated pursuant to 23 Pa.C.S.A. § 2511(a)(2)(5) & (8). In
entering the termination decrees, the Court gave primary consideration to the
developmental, physical, and emotional needs and welfare of the child pursuant
to 23 Pa.C.S.A. § 2511(b).
On February 27, 2023, Father, by and through his Court-Appointed
Counsel, filed aNotice of Appeal to the Superior Court and the requisite
Statement of Matters Complained of on Appeal. Father's Statement of Matters
Complained of on Appeal is as follows:
1. The Trial Court abused its discretion, committed an error of law,
and/or there was insufficient evidentiary support for its finding that
Appellant's parental rights should be terminated pursuant to 23 Pa.
C.S.A.§2511 (a)(2)(5) and (8).
2. The Trial Court abused its discretion, committed an error of law,
and/or there was insufficient evidentiary support for its finding
pursuant to 23 Pa. C.S.A.§2511(b) that it is in the best interest of the
minor child to grant the termination of Appellant's parental rights.
3. Appellant reserves the right to amend this document within a
reasonable time after review of the transcripts.
II. FINDINGS OF FACT
There is one minor child in this case, L.S.D.R.-C., born on August 10, 2021.
This case involves the proposed termination of Father's parental rights. It is
unrebutted that the minor child, L.S.D.R.-C., has been in placement since
August 13, 2021. Mother and Father were arguing in the hospital at the time of
L.S.D.R.-C.'s birth and Father dropped L.S.D.R.-C. during the argument.
Children and Youth received areferral as aresult of the incident. N.T.
1/23/2023 at 31.
In meeting its requisite burden of proof by clear and convincing evidence
regarding the termination of parental rights of Father, Petitioner offered the
testimony of Scott Carey, assistant chief executive officer (CEO) and clinical
treatment supervisor at Wyoming Valley Alcohol and Drug Services; Alicia
Singer, atherapist at the Robinson Counseling Center and records custodian for
Children and Youth matters; Bernie Castle, acaseworker for the Intensive Family
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Reunification Services (IFRS) program offered through Family Services
Association (FSA); and Jamie Stuart, an ongoing caseworker at Children and
Youth. Father testified on his own behalf.
III. CONCLUSIONS OF LAW
After consideration of the credible evidence as summarized above and
more detailed below, the Court concludes:
(1) Children and Youth has shown by clear and convincing evidence
that the parental rights of the Father to the minor child, L.S.D.R.-C.,
should be terminated pursuant to 23 Pa. C.S.A. Section 2511(a)(2), 23
Pa.C.S.A. Section 2511(a)(5) and 23 Pa.C.S.A. Section 2511(a)(8).
(2) Children and Youth has shown by clear and convincing
evidence that the termination of the parental rights of Father as to the
minor child, L.S.D.R.-C., best serves the needs and welfare of the children
pursuant to 23 Pa. C.S.A. Section 2511(b).
IV. DISCUSSION: GROUNDS FOR TERMINATION OF FATHER'S
PARENTAL RIGHTS
The statute permitting involuntary termination of parental rights in
Pennsylvania, 23 Pa. C.S.A. Section 2511, sets forth the certain irreducible
minimum requirements of care that parents must provide to their children. A
parent who cannot or will not meet the requirements within areasonable time
following the intervention by the State may properly be considered unfit and may
properly have his or her rights terminated. In Re: J. T. and R. T., 817 A. 2d 505(Pa. Super. 2002).
3
Termination of parental rights is an issue of constitutional dimensions
because of the fundamental right of an individual to raise his or her own child.
Therefore, in proceedings terminating parental rights, the Petitioner must prove
by clear and convincing evidence that the statutory criteria have been met.
Santosky v. Kramer, 455 U.S. 745 (1982), In Re: T.R., 502 Pa. 165,465 A.2d
642 ( 1983). However, as the Pennsylvania Supreme Court has stated "aparent's
basic constitutional right to custody and rearing of his or her child is converted
upon the failure to fulfill his or her parental duties to the child's right to have
proper parenting in fulfillment of his or her potential in apermanent, healthy,
safe environment." In Re: J.A.S., Jr., 82o A.2d 774 (Pa. Super. 2003), citing
In the Interest ofLillie, 719 A.2d 327 (Pa. Super 1998)•
A. 23 Pa. C.S.A. Section 2511(a)(2)
A Court may terminate parental rights under Section 2511(a)(2) when:
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 of the incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent.
Accordingly, Father's parental rights to the child, L.S.D.R.-C., can be
terminated under Section 2511(a)(2) of the statute. Credible testimony was
presented to show, by clear and convincing evidence. that Father did not
complete services addressing his mental health, did not complete services
addressing substance abuse and did not complete parenting education services.
Ms. Jamie Stuart testified that she is an ongoing caseworker for Children
and Youth. Ms. Stuart stated that there was ahistory of mental health issues and
drug and alcohol issues concerning Mother. According to Ms. Stuart, Mother had
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four other children in the state of New Jersey. Three of these children were
adopted and the fourth child was the subject of aparental rights termination
proceeding at the time of trial. Id. at 31.
Subsequent to Father physically dropping L.S.D.R.-C. at the hospital
during an argument with Mother, the child was placed with Children and Youth
on August 13, 2021 via ashelter care order. The minor child, L.S.D.R.-C., was
adjudicated dependent by the Court on August 25, 2021. Father was first ordered
to participate in parenting education and to obtain and maintain safe and stable
housing. Id. at 31-33. Thereafter, at apermanency hearing on May 10, 2022,
Father was ordered to participate in additional services, including mental health
services and drug and alcohol services. Id. at 33•
Ms. Stuart testified that Father was referred to Family Services Association
for parenting education. According to Ms. Stuart, Father did not complete his
course in parenting education. Father was also referred to the Robinson
Counseling Center for mental health services. However, Father did not engage in
mental health services. Father was additionally referred to Wyoming Valley
Alcohol and Drug Services. Ms. Stuart stated that she also made areferral for
drug and alcohol services at the Robinson Counseling Center. Ms. Stuart
indicated that Father did not complete any substance abuse services. Also, Father
had not maintained consistent contact with Ms. Stuart or Children and Youth
throughout the case. According to Ms. Stuart, Father's contact with her was
sporadic. Id. at 37 -38•
Ms. Stuart further emphasized that Father's visits with the minor child
were scheduled on Mondays and Father only exercised his visits with his child
5
approximately five times throughout the child's placement from August 2021
until the present. Ms. Stuart also stated that Father relocated to the state of New
Jersey within two to three months after his child was adjudicated dependent in
Pennsylvania. Id. at 42. When Father moved out of state, he was offered
reimbursement for the cost of his bus tickets in order to travel for visits with his
daughter, in addition to being offered avoucher for the cost of the fuel needed to
travel to Pennsylvania. Id. at 39-40. Ms. Stuart indicated that despite Father
being offered these services, he did not utilize these opportunities in order to see
his daughter. Ms. Stuart stated that Father was completely aware of the services
that he was expected to complete and he did not provide her with any
documentation confirming his participation and completion in the services. Id.
at 40, 44 -45.
Ms. Stuart testified that subsequent to Father moving to New Jersey, he
returned to Pennsylvania. Father then began working and living with awoman
whom he referred to as the child's mother. Ms. Stuart then stated that in July
2022, Father relocated back to New Jersey due to Father claiming that while he
was residing in Pennsylvania, he was attacked by someone in the household. Id.
at 44. Ms. Stuart testified that while Father was living in Pennsylvania, Father
visited atotal of five times with his child during the period of August 2021 until
June 6, 2022. Ms. Stuart stated that all of Father's visits occurred while he was
living in Pennsylvania. Id. at 46.
Mr. Scott Carey testified that he is an assistant chief executive officer and
clinical treatment supervisor at Wyoming Valley Alcohol and Drug Services,
which is an outpatient drug and alcohol treatment facility. Id. at 9. Mr. Carey
6
testified that Father was referred to his agency on June 15, 2022. Id. at lo. An
evaluation was scheduled for Father on June 24, 2022. The appointment was
then rescheduled to July 1, 2022 due to amisunderstanding with scheduling. Mr.
Carey indicated that the treatment record reflected that on June 30, 2020, the
counselor contacted Father via telephone and reminded him of his appointment
for the next day at 3:00 p.m. Father confirmed that he would be present. Id. at
14. However, the next day, Father did not appear for his appointment. Mr. Carey
indicated that there were no additional records indicating that the appointment
was rescheduled. Id. at 11-12. Mr. Carey stated that aformal "closeout letter"
was not sent to Father since the case was never opened and Father was never
given any treatment. Id. at 15.
Ms. Alicia Singer testified that she is employed at the Robinson Counseling
Center, an adult mental health facility. Ms. Singer stated that she is atherapist at
the center and also custodian of the records for Children and Youth matters. Ms.
Singer explained that she maintains records pertaining to individuals that are
referred by Children and Youth. Ms. Singer testified that Father was referred to
the Robinson Counseling Center by Children and Youth for amental health
evaluation. Ms. Singer stated that Father was scheduled for amental health
evaluation on July 25, 2022, which he completed over the telephone. Id. at 18.
According to Ms. Singer, Father was diagnosed with unspecified depressive
disorder and unspecified anxiety disorder. Therefore, Father was recommended
for therapy every three weeks. However, according to Ms. Singer, the therapy
appointments never took place because Father decided to move to New Jersey.
Thereafter, Ms. Singer referred Father for substance abuse services. However,
Father was not able to receive treatment for substance abuse since the agency did
not have alicense to practice in New Jersey. Id. 19-20. Therefore, Ms. Singer
stated that she advised Father to seek treatment for mental health and substance
abuse in the county in which he was residing in New Jersey. Id. at 20.
Mr. Bernie Castle testified that he is employed at the Family Services
Association of Wilkes-Barre Pennsylvania as acaseworker for the Intensive
Family Reunification Services (IFRS) parenting education program. Mr. Castle
described Family Service Association as anonprofit agency bringing services to
families who are involved with social services such as Luzerne County Children
and Youth and Luzerne County Juvenile Delinquency Court. Mr. Castle stated
that his agency received areferral from Children and Youth on June 17, 2022.
Mr. Castle made arrangements with Father to meet him at the Children and
Youth office on July 11, 2022. However, father failed to appear at the meeting.
Mr. Castle indicated that he attempted to contact Father several times
afterwards; however, his attempts were unsuccessful. Mr. Castle stated that on
August 15, 2022, he was advised by the caseworker at Children and Youth that
records reflect that Father only had four visits with his child for the preceding
year. Mr. Castle stated that he was not able to schedule an appointment with
Father since Father did not provide an address at which to contact him in New
Jersey. Id. 25-26. Mr. Castle indicated that during his prior conversation with
Father over the telephone, Father was in agreement to meet with him regarding
the parenting program. Id. at 26. Mr. Castle testified that he did not have any
records or knowledge that Father engaged in or completed the parenting
education program at Family Service Association. Mr. Castle testified that he no
8
longer had any contact with Father after his attempt to schedule ameeting with
him. Mr. Castle stated that on September 13, 2022, he emailed the caseworker,
informing him that the case was closed due to the inability to make contact with
Father. Id.
Father testified that the reason that he did not complete the drug and
alcohol treatment and his parenting classes was due to lack of transportation. He
believed that the reimbursement of costs only applied to Pennsylvania and not
New Jersey. Father testified that he thought that he had insurance coverage
through New Jersey, but he did not have coverage. Id. at 49, 52. Father also
stated that he was not able to complete his parenting classes and the drug and
alcohol classes due to him working and dealing with "ahouse that was totally
corrupted." Id. at 51. Father stated that he was confused and did not know how to
treat others. Id.
When Father was cross examined as to the reason that he did not attempt
to complete his services in New Jersey, Father stated that he was beginning to
pursue the classes and was working with acommunity center in New Jersey. Id.
at 53. According to Father, Children and Youth did not refer him to any service
providers in New Jersey and he had to find the services on his own. Id. at 53•
Father also indicated that even though he only had five in person visits with his
daughter, he was also permitted to do video chats on aweekly basis with his
daughter because he was not able to use the transportation. Id. at 54. Father
testified that when he exercised his five visits with the child, he used his mother's
truck in order to exercise his visits. Id. at 55•
9
Father testified that the community center where the services are offered,
such as parenting classes, mental health services and drug and alcohol services, is
only a "four minute walk" from his residence. He further expressed that he was
aware of the community center for approximately two years, but did not start
participating in those services until shortly before the time of trial. Father did
not offer aplausible explanation as to the reason he waited so long to begin
participating in the services at the community center. Id. at 57. The Court finds
that eventhough the child has been in the custody of Children and Youth for
approximately sixteen (16) months, Father did not make an effort to commence
his services at the time the child was placed. Id. at 57.
Father admitted on cross examination that he did not complete or engage
in services in Luzerne County. Father also admitted on cross examination that
since he moved to New Jersey, he did not make any effort to engage in any of the
services in New Jersey until immediately prior to the commencement of the new
year of January 2023. Id. at 6o -
61. Father also admitted that he did not request
any help in engaging in services in New Jersey. Id. at 61. Father alleged that he
used to have video chats with his daughter. However, once the video chats
stopped, he had adifficult time seeing his daughter in person due to lack of
transportation. Id. at 63.
Ms. Stuart testified on rebuttal that she specifically informed Father that
if he were to purchase abus ticket in order to see the minor child at the Children
and Youth office, he would be reimbursed for the entire trip, including the travel
from New Jersey to Pennsylvania, and not just for the cost of the trip only in
Pennsylvania. Ms. Stuart also stated that the agency offered Father agas gift card
10
for Father's transportation. Id. at 66. According to Ms. Stuart, Father was aware
of all the reimbursement costs offered to him for transportation. Id. at 66. Ms.
Stuart testified that she explained the transportation costs to Father two or three
times and she did not know the reason Father believed that his reimbursement
costs for the buses only pertained to Luzerne county, Pennsylvania and did not
include New Jersey. Id. at 67.
Based on the testimony of the various witnesses, summarized above, and
based upon the evidence presented to the Court, the Court finds that subsequent
to the placement of the child on August 13, 2021, Father did not complete the
required services for mental health treatment, substance abuse treatment and
parenting services. Therefore, the Court finds that Father has not been able to
remedy the conditions that gave rise to the placement of the child.
Unlike 23 Pa.C.S.A. § 2511(a)(1), subsection (a)(2) does not emphasize a
parent's failure to perform parental duties, but instead emphasizes the child's
present and future need for essential parental care, control or subsistence
necessary for his physical or mental well-being. Therefore, the language in
subsection (a)(2) should not be read to compel courts to ignore achild's need for
astable home and ... this is particularly so where disruption of the family has
already occurred and there is no reasonable prospect for reuniting it." (our
emphasis added) In re E.A.P, 944 A.2d 79 (Pa. Super 20o8).
Given the overwhelming evidence and testimony, it is clear that Father has
received and/or has been offered extensive services over the years and he failed
to benefit from the services. Father was offered services in Pennsylvania;
however, he chose to relocate to New Jersey. Father also had available services
11
for him one block away from his residence in New Jersey, yet he chose to wait one
year and ahalf from the date of the child's placement prior to choose to
participate in the services.
At this juncture, the child's right to have proper parenting in fulfillment of
their potential in apermanent, healthy, safe environment outweighs Father's
interest. In Re: J.A.S., Jr., 82o A.2d 774 (Pa. Super. 2003), citing In the
Interest of Lillie, 719 A.2d 327 (Pa. Super 1998)•
V. DISCUSSION: GROUNDS FOR TERMINATION FOR
FATHER
A. 23 Pa. C.S.A. Section 251i (a)(5)
A Court may terminate the parental rights under Section 2511(a)(5) when:
The child has been removed from the care of the parent by the Court or
under voluntary agreement with an agency for aperiod of at least six
months, the conditions of which led to the removal or placement of the
child continue to exist, the parent cannot or will not remedy those
conditions within areasonable 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 areasonable
period of time and termination of the parental rights would best serve the
needs and welfare of the child.
Father's parental rights may also be terminated under this provision of the
Statute. Under 23 Pa.C.S.A. Section 2511(a)(5), the agency must show: (1) the
child have been removed from the care of the parent by the Court for aperiod of
at least six months; (2) The conditions giving rise to placement continue to exist,
(3) Those conditions will not be remedied in areasonable period of time, and (4)
Termination of parental rights would best serve the needs and welfare of the
child.
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W& (2) CHILD REMOVED BY THE COURT FOR A PERIOD OF ATLEAST SIX
MONTHS AND CONDITIONS CONTINUING TO EXIST
The minor child, L.S.D.R.-C., was originally placed on August 13, 2021.
Therefore, the child has been removed from her father for at least six (6) months.
It is also clear through the testimony outlined above, that the natural Father has
been unable to resolve the issues that gave rise to the placement of the minor
child, L.S.D.R.-C.., i.e., lack of participation in parenting courses, not completing
mental health services, nor the drug and alcohol services. The overwhelming
evidence shows that all of these issues have yet to be remedied by Father.
The Court has recognized this issue above in its analysis of Section 2511(a)(2)
and finds the same considerations apply for 2511(a)(5) that have already been
discussed extensively in this opinion. Furthermore, the Court applies this same
reasoning in concluding that the natural Father failed to remedy the conditions
that originally gave rise to placement of their minor child, L.S.D.R.-C..
(3) REMEDY OF CONDITIONS IN REASONABLE TIME
Father has had approximately seventeen ( 17) months to remedy the
conditions which gave rise to placement, yet the evidence shows that as of the
time of the hearing on January 23, 2023, Father still had not completed any of
the required services. This Court finds that Father has been unable to remedy the
conditions that gave rise to placement of the minor child within areasonable time
period.
(4) NEEDS AND WELFARE OF THE CHILD
The term "needs and welfare" of achild refers to both tangible and intangible
needs. The intangible needs of achild include love, comfort, security and
13
closeness. In re Matsock, 416 Pa. Super. 520, 611 A.2d 737, 747 (199 2). There
is nothing in the record that shows that the natural Father is presently capable of
providing asafe and secure environment for the minor child.
Parental duty is best understood in relation to the needs of achild. These
needs, both physical and emotional, cannot be met by amere passive interest in
the development of the child. Meeting achild's needs is apositive duty that
requires affirmative performance. In re Shives, 363 Pa. Super. 225, 525 A.2d
801, 802 ( 1987).
A parent is not relieved of his or her responsibility relating to the needs of
achild when achild has been placed in foster care. A non-custodial parent has a
duty to exert himself to take and maintain aplace of importance in the child's life.
In re Adoption ofM.J.H., 348 Pa. Super. 65, 501 A.2d 648 (1985). A parent
must demonstrate acontinuing interest in the child and make agenuine effort to
maintain communication and association with the child. In re Adoption of
McCray, 331 A.2d 652 (Pa. 1975). Moreover, aparent with achild in foster care
has an affirmative duty to work toward the return of the child. In Re: William
L•, 477 Pa. 322, 383 A.2d 1228 (1978).
When considering the needs and welfare of the child, it is also important
for the court to consider the bond between the parent and the child because
severance of astrong parental bond can have adetrimental impact on the child.
Matsock, supra.Ms. Stuart testified that the child has been in placement with the foster
parents since October of 2021. Ms. Stuart indicated that she observed the minor
child with the foster parents at their home on amonthly basis. Ms. Stuart
14
believes that the minor child has been assimilated into the home with the foster
parents. Ms. Stuart further stated that the foster parents also have indicated that
they wish to adopt the minor child. The foster parents are aware that in the event
they are permitted to adopt the minor child, that the minor child would have all
the rights to them as abiological child would have from her biological parents
such as inheriting from their estate. Ms. Stuart stated that she did not have any
concerns or reservations over the foster parents adopting the minor child. Id. at
68-69.
Ms. Stuart testified that throughout the life of the case and the time that
the child spent with the foster parents, the child's physical needs were met. The
foster parents provide the child with food, clothing and shelter. Ms. Stuart also
stated that the foster parents have met the child's developmental needs. They
have age appropriate games and toys for the child. The child also attends daycare.
In addition to meeting the child's physical needs and developmental needs, the
foster parents also meet the child's emotional needs. According to Ms. Stuart, the
foster parents provide the child with comfort and praise. Ms. Stuart described
the family as very loving and engaging with the child- such as giving hugs and
kisses to the child. Id. at 69 -70.
According to Ms. Stuart, she found that the minor child and the foster
parents have aparent/child relationship. Ms. Stuart stated that the child views
the foster parents as her parents. Ms. Stuart indicated that the minor child calls
the foster parents, "Momma and Dada". Ms. Stuart also found that the minor
child and the foster parents have aclose bond with one another. Ms. Stuart
stated that that she observed Father with the minor child on two occasions. Ms.
15
Stuart stated that she did not find any parent/child relationship between the
minor child and Father. Ms. Stuart indicated that the child had not seen her
father since June 6, 2022. Ms. Stuart stated that when she did see her father on
those four occasions, the child appeared uneasy. Ms. Stuart stated that should
the Court grant the agency's petition to terminate Father's parental rights, that
the child would not suffer any harmful or detrimental effect. Ms. Stuart stated
that she believes that the adoption of the child by the foster parents serves the
child's best interest. Id. at 72.
Based upon the testimony of Ms. Stuart, the court finds that the
termination of Father's parental rights would best serve the needs and welfare of
the child.
VI. DISCUSSION: GROUNDS FOR TERMINATION OF FATHER'S
PARENTAL RIGHTS
A. 23 Pa. C.S.A. Section 2511 (
a)(8)
A Court may terminate parental rights under Section 2511(a)(8) when:
The child has been removed from the care of the parent by the Court or
under Voluntary agreement with an agency, twelve (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 would best
serve the needs and welfare of the child.
Parental rights may be terminated under this provision of the Statute.
Under 23 Pa.C.S.A. Section 2511(a)(8), the agency must show: (1) The child has
been removed for at least twelve (12) months, (2) The conditions that gave rise to
placement continue to exist, and (3) Termination of parental rights would best
serve the needs and welfare of the child.
16
(1) TIME PERIOD OF REMOVAL OF CHILD
It is undisputed that minor child, L.S.D.R.-C. has been removed from the
custody Father since August 13, 2021. Accordingly, this removal has persisted
well in excess of the statutorily required twelve (12) months since the date of the
child's placement. Thus, the requisite minimum of at least 12 months from
removal of the minor child from her Father has elapsed so as to comply with this
section of 2511(8).
(2) CONDITIONS CONTINUING TO EXIST
The conditions that led to the child's removal from Father's care and into
placement were: Father dropping physically L.S.D.R.-C. upon her birth at the
hospital during an argument with Mother and failing to complete the court
ordered services of parenting education, mental health treatment and drug and
alcohol services.
The Court has performed the above extensive analysis in taking testimony
and finding credible evidence in concluding that Father did not complete the
required services even though the services were accessible to him in Pennsylvania
and New Jersey. Therefore, the conditions that gave rise to placement continue
to exist.
In discussing and finding that the conditions continue to exist, the Court
incorporates its reasoning and the testimony of all witnesses already discussed in
this opinion found in the section addressing 23 Pa. C.S. Section 2511(a)(2).
17
(3) NEEDS AND WELFARE OF THE CHILD
Once the Court has found that involuntary termination of parental rights is
warranted under the Act, the court must then "give primary consideration to the
developmental, physical and emotional needs and welfare of the child."
The Court has done this and finds the same considerations apply that have
already been discussed extensively in this opinion. Furthermore, the Court
applies the same reasoning for concluding that these needs will be served by the
termination of Father's parental rights.
VII. ADDITIONAL CONSIDERATIONS UNDER 23 PA.C.S.A.
SECTION 2511(b) FOR FATHER
A. ENVIRONMENTAL FACTORS
Title 23 Pa. C.S.A. Section 2511(b) specifies that acourt may not terminate
parental rights "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."
As "environmental factors beyond the control of Father" was not the linchpin
in the placement of the minor child and because of the presence of other,
independent factors utilized in the placement of L.S.D.R.-C., this consideration
does not apply and will not be addressed.
S. NEEDS AND WELFARE OF THE CHILD
Once the Court has found that involuntary termination of parental rights is
warranted under the Act, the court must then "give primary consideration to the
developmental, physical and emotional needs and welfare of the child." This is to
18
be aseparate inquiry and even where the court has already considered the needs
and the welfare of the child under one of the grounds of termination, the court
must do so again. In re Matsock, 611 A.2d 738 (Pa. Super. 1992).
The Court has done this and finds the same considerations apply that have
already been discussed extensively in this opinion. Furthermore, the Court
applies the same reasoning for concluding that these needs will be served by the
termination of Father's parental rights.
VIII. CONCLUSION
This court finds that Father was given ample time to complete the required
services of mental health treatment, drug and alcohol services and parenting
education, but has failed to successfully do so. The Court finds that Father is not
able to meet the child's needs. Father cannot meet the child's basic physical,
developmental and emotional needs. Father has been given ample time to
address and remedy his issue but was unable to do so. The Court finds that
Father is not able to meet his child's needs. In stark contrast, the foster parents
have amply demonstrated that they meet the physical, developmental, emotional
needs of the minor child, L.S.D.R.-C., and she has thrived under their care. The
child needs consistency, safety and stability and deserves apermanent home with
capable parents. The only way to provide this is to terminate the rights of the
19
Father. Clearly, it is in the child's best interest to do so.
Respectfully submitted,
BY THE COURT,
JENNI ER L. R 1GERS 0 J.
DATE: -
3 )- 23
COPIES TO:
Christopher Harrison, Esquire
Children & Youth Services
of Luzerne County
111 North Pennsylvania Boulevard
Wilkes-Barre, PA 18701
Thomas W. Sharkey, Esquire
Counsel for Father
982 North Sherman Court
Hazleton, PA 18201
Joseph J. Mashinski, Esquire
Guardian Ad Litem
117o Highway 315, Suite 1
Plains, PA 18702
20