In Re: S.D.P., a Minor Appeal of: GAL

J-S13044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
IN RE: S.D.P., AMINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: GAL
No. 40 MDA 2022
Appeal from the Decree Entered November 30, 2021
In the Court of Common Pleas of Lancaster County Orphans’ Court at
No(s): 2020-02383
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: MAY 11, 2022
Appellant, Guardian Ad Litem (“GAL”), appeals from the November 30,
2021 decree denying the petition filed by the Lancaster Country Children and
Youth Social Service Agency (“Agency”) to involuntarily terminate the parental
rights of Appellees, L.R. (“Mother”) and M.P. (“Father”), to their minor female
child, S.D.P. (‘Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) and
(b). After careful review, we affirm.
The orphans’ court summarized the extensive factual background of this
case as follows:
[Child] is a minor female child born [in 2019]. On
December 17, 2019, the Agency received a report on
[Appellees’] family. The report was that [Mother] had
“ Former Justice specially assigned to the Superior Court.
1 The record reflects that Agency has not filed an appeal in this matter.
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given birth to her sixth child. At that time, the
household consisted of Mother [] and [Child]. Father
of [Child] is reported to be [M.P.] The Agency’s
concerns were for the drug use by both parents,
including [Mother] while pregnant. Upon [Child’s]
birth, the Agency took [Child] into custody at the
hospital.
The Agency has a history of reports dating back to
2005 for four other previous children of Mother, all of
whom are not currently in Mother’s custody and reside
with their respective fathers, and four other previous
Children of Father, who are not in Father’s custody,
and for whom Father’s parental rights were
involuntarily terminated on February 1, 2017. Both
Mother and Father have an additional previous child
together, [L.P.], who was born on June 23, 2018, and
of whom the Agency currently has custody. [L.P.] was
placed in the Agency’s custody at five days old after
[Mother] tested positive for methamphetamines and
amphetamines, and [L.P.’s] meconium test had also
been positive for methamphetamines and
amphetamines. The Agency attempted to implement
a Safety Plan with the family, however, when that
failed, [L.P.] was taken into protective custody by the
Ephrata Borough Police and then released to the
Agency. On July 2, 2018, [L.P.] was adjudicated
dependent, and the court approved aé_ Child
Permanency Plan with objectives for [Mother] to
complete for reunification with [L.P.]. The court also
found aggravated circumstances against [Father] and
ordered no plan for reunification for Father and
ordered no further efforts to reunify. The child
permanency plan created for Mother for reunification
with [L.P.] included the following objectives: mental
health, drug and alcohol, parenting, income, housing,
and commitment. [Mother] attempted but did not
complete any of her objectives for reunification with
[L.P.] On August 19, 2019, [Mother] signed consents
to Adoption for [L.P.]. On September 26, 2019,
[Father] signed Consents for Adoption for [L.P.]. As of
the Termination of Parental Rights hearing on
September 27, 2021, for [Child], [L.P.] had been
adopted.
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Both Mother and Father have criminal histories. In
2006, Mother pleaded guilty to felony Theft by
Unlawful Taking, and in 2007, she pleaded guilty to
felony Forgery, Theft by Unlawful Taking, Receiving
Stolen Property, and Unsworn False Authorization
Forged Document. In 2019, Father pleaded guilty to
two counts felony Manufacture, Delivery, or
Possession with Intent, False Identification to Law
Enforcement, Retail Theft, Possession of Marijuana,
two counts Use/Possession of Drug Paraphernalia,
Intentional Possession of Controlled Substance, and
two counts of Driving with a Suspended/Revoked
License. Father also pleaded to crimes committed in
2018 including Intentional Possession of a Controlled
Substance. In 2016, Father pleaded guilty to
Marijuana — Small Amount, Driving Without a License,
Retail Theft, and Disorderly Conduct. In 2015, Father
pleaded guilty to felony Burglary, felony Access
Device Issued to Another Not Authorized, felony
Conspiracy Access Device Issued to Another, Theft by
Deception, Theft from a Motor Vehicle, four counts
misdemeanor Access Device Issued to Another, two
counts Theft by Unlawful Taking — Moveable Property,
and Retail Theft. Father was incarcerated at the
Lancaster County Prison from June 18, 2018 [to]
February 19, 2019, from March 28 [to] April 11, 2019,
and from September 19 [to] November 7, 2019.
Father is currently on probation.
Mother is currently receiving treatment for opioid
addiction, ADHD, and anxiety. Mother’s last positive
drug screen for an illegal substance occurred on June
19, 2020, for methamphetamines. Mother did not
initially have, but now does have, as of April 2021, a
valid medical marijuana card for the treatment of her
anxiety. Mother also receives medication
management for her mental health from T.W.
Ponessa, which she began in 2018 and then restarted
treatment in 2021. Mother is currently attending
mental health and drug and alcohol counseling
through Advanced Counseling and Testing Solutions,
and that treatment began in February of 2021. Prior
to her treatment at Advanced Counseling and Testing
Solutions, Mother had admitted herself to Blueprints
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Rehab inpatient program on April 26, 2020, which she
completed successfully and was discharged on May
22, 2020. Mother transferred to Blueprints Intensive
Outpatient in May of 2020. Because of a positive drug
test on June 19, 2020, the provider recommended
that Mother do inpatient treatment again. However,
Mother was not able to do that because she would lose
her employment and her home. Therefore, Mother
was unsuccessfully discharged from the Blueprints
Intensive Outpatient program. Mother then reported
going to Community Services Group for treatment.
However, this treatment was not able to be confirmed
by the Agency. Mother also reported going to
treatment with Advanced Counseling & Research, but
this treatment was not able to be confirmed by the
Agency. Then, the Agency caseworker thought there
may have been a miscommunication and reached out
to Advanced Counseling and Testing Solutions but was
not able to confirm that Mother was receiving
treatment there. Mother then reported that she went
to LGH Behavioral Health in September of 2020, and
the Agency was able to confirm that Mother did start
that program. Mother was discharged from the LGH
program reportedly because of lack of cooperation or
participation, and Mother reported at that time that
she was struggling to be able to have appointments
because of her work. Although there was a gap in
treatment, Mother then followed that program with
the program at Advanced Counseling and Testing
Solutions, where she is currently receiving treatment
for mental health and drug and alcohol, which began
in February of 2021. Since March 15, 2021, the
Agency was able to drug screen Mother, typically,
twice a week. The drug screening performed by the
Agency from March 15, 2021, onward continues to be
valid and negative.
Mother obtained employment at the United States
Postal Service on September 26, 2020. Mother
resigned from that job in June of 2021 to find a job
that would allow her more flexibility to attend
counseling appointments, be able to make visitation
appointments with [Child], and to work on her plan
for reunification. On September 27, 2021, Mother
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reported that she was about to begin a new position
on second shift at LSC Communications with a start
date of September 28, 2021. Mother received
unemployment compensation between the time she
left the post office and until beginning her new
position at LSC Communications. Although provided
very sporadically to the Agency, Mother has submitted
her income verification, proof of making rent
payments, and provided utility bills.
Father and Mother began living together circa
November 2019. The lease for Mother’s current
residence was entered into in May of 2020. The one-
year lease term expired in May of 2021, and the lease
is now month to month. The Agency caseworker
conducted a home visit to Mother’s current residence
in July of 2021, and the caseworker reported that the
home is appropriate. The Agency also acknowledged
that some of Mother’s teenage children do have
overnight visits at Mother’s house. The Agency did
not express any concerns about these children being
in Mother’s care during these visits.
Visitation time for Mother with [Child] is twice a week
for two hours at each _ session. Mother began
exercising her visitation from the onset of the case.
There was an interruption of in-person visitation due
to the Covid-19 pandemic where parents were only
offered virtual visits. Mother did not visit virtually.
The Agency caseworker reported that Mother felt that
she would not be able to connect with [Child] by
participating virtually because her child was only five
months old at the time of the virtual visits. Once in-
person visits resumed on March 15, 2021, Mother
began visiting again with [Child] regularly and was
fairly consistent with those visits.
Father’s visitation with [Child] was originally two
hours per week, was subsequently reduced to one
hour per week, but since the last hearing, has been
increased to twice a week for two hours to coincide
with Mother’s visitation. [Child] has also been able to
have visitation with her closest-in-age sibling, and the
Agency has allowed for maternal siblings to join
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Mother during the parent/child visits. Mother and
Father are appropriate during visits with [Child] and
both are fairly consistent in making visits with [Child]
with a few visits that needed to be rescheduled.
The Agency would not provide a permanency plan for
Father to complete unless and until Father filed an
appeal for his recent criminal conviction(s) for which
Father was already serving with probation. Father did
not file an appeal of his conviction(s). An agency
caseworker informed Father that if no plan was made,
that Father was recommended to do similar objectives
to Mother’s plan, try to make progress on his own, and
then contact his lawyer and request a plan, and that
any progress he would make would help towards
achieving that goal. The Agency’s only expressed
concern with Father living at Mother’s residence was
that Father does not have a plan and hasn’t proven or
shown that he would be appropriate in accordance
with a plan.
The Agency Caseworker reported that Father was
receiving drug and alcohol and mental health services
through his probation officer, and that, Father is
regularly screened for drugs by probation and has
been negative since. The Agency asked Father about
his progress several times. Father reported to the
Agency that he is no longer in the drug and alcohol
[program] through his criminal probation plan, that
Father did complete it, and that Father could have
been discharged sooner but requested to continue
with the program until his insurance would no longer
cover it. Lastly, as of September 27, 2021, Father
was reported to be working for the same company as
he previously reported to the Agency in December of
2020.
Orphans’ court opinion, 11/30/21 at 1-6.
Child was adjudicated dependent pursuant to 42 Pa.C.S.A. § 6302(1) on
January 6, 2020. As noted, on December 11, 2020, the Agency filed a petition
to involuntarily terminate Mother’s and Father’s parental rights to Child,
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pursuant to Sections 2511(a)(1), (2), (5) and (b). At the time the Agency
filed the petition, Child had been in its custody for 11 months and 5 days. The
orphans’ court conducted evidentiary hearings on August 9 and September
27, 2021.
At the second hearing on September 27, 2021, Mother
and Father were both present in person. The court
found in its order that Mother had achieved moderate
compliance with the permanency plan and was
making moderate progress towards alleviating the
circumstances that resulted in placement of [Child].
Specifically, the court observed Mother in a very
composed manner, and who had appeared to have
taken steps in improving her mental health and
working towards her continuing sobriety.
Additionally, [MJother had held stable employment
with the United States Postal Service, subsequently
found a new job that would better accommodate
Mother’s ability to work on her plan and more
regularly attend visitation with [Child]. Mother, on
her own merits, signed up for and has been regularly
attending counseling. With the assistance of her
provider, Mother also reported progress in finding a
good balance in her medication management.
Both Mother and Father seem to enjoy their time
visiting with [Child] showing a commitment to
providing nurturing care for [Child].
Orphans’ court opinion, 11/30/21 at 9-10.
Following the hearings, the orphans’ court entered a decree on
November 30, 2021, finding that the Agency had failed to meet its burden of
proving by clear and convincing evidence that termination was warranted in
this matter and denying the Agency’s petition. On December 30, 2021, GAL
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filed a timely, amended notice of appeal. Contemporaneously with this notice
of appeal, GAL filed a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b). On January 25, 2022, the orphans’ court
filed its Rule 1925(a) opinion.
GAL raises the following issues for our review:
1. Whether the [orphans’] court committed an
error of law and/or abused its discretion by
determining that the Agency had not proven by
clear and convincing evidence that involuntary
termination of parental rights of Mother and
Father was warranted pursuant to Pa. C.S.A.
§2511(a)(1)?
2. Whether the [orphans’] court committed an
error of law and/or abused its discretion by not
analyzing the developmental, physical and
emotional needs and welfare of the Child
pursuant to 23 Pa. C.S.A. § 2511(b)?
3. Whether the [orphans’] court committed an
error of law and/or abused its discretion by
failing to properly consider the requirements of
the Pennsylvania Adoption and Safe Families Act
(ASFA) provisions of the Pennsylvania Juvenile
Act[2] as it relates to permanency for the Child?
GAL’s brief at 4 (footnote added).
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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
2 See 42 Pa.C.S.A. §§ 6301-6375.
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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 and internal quotation
marks omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511,
the court must engage in a bifurcated process prior to
terminating parental rights. 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).
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We have defined “clear and convincing evidence” as that which 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.”
In reC.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and
quotation marks omitted).
In this case, the Agency sought to terminate Mother’s and Father’s
parental rights to Child pursuant to Sections 2511(a)(1), (2), (5), and (b),
which provide 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:
(1) The parent by conduct continuing
for a period of at least six months
immediately preceding the filing of
the petition either has evidenced a
settled purpose of relinquishing
parental claim to a child or has
refused or failed to perform parental
duties.
(2) The repeated and _— continued
incapacity, abuse, neglect or refusal
of the parent has caused the child
to be without essential parental
care, control oor subsistence
necessary for his physical or mental
well-being and the conditions and
causes of the incapacity, abuse,
neglect or refusal cannot or will not
be remedied by the parent.
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(5) The child has been removed from
the care of the parent by the court
or under a voluntary agreement
with an agency for a period of at
least six months, the conditions
which led to the removal or
placement of the child continue to
exist, the parent cannot or will not
remedy those conditions within a
reasonable period of time, the
services or assistance reasonably
available to the parent are not likely
to remedy the conditions which led
to the removal or placement of the
child within a reasonable period of
time and termination of the parental
rights would best serve the needs
and welfare of the child.
(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)(1), (2), (5), and (b).
Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned November 30, 2021 and
January 25, 2022 opinions of the orphans’ court, it is our determination that
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the GAL’s claims warrant no relief. The orphans’ court comprehensively
discussed each of the GAL’s three issues on appeal and concluded that they
were without merit. We find that the conclusions of the orphans’ court are
supported by competent evidence and are clearly free of legal error.
Specifically, we agree with the orphans’ court that its determination that
the Agency did not prove by clear and convincing evidence that the involuntary
termination of Mother’s and Father’s parental rights was warranted under
Section 2511(a)(1) was supported by competent evidence. Orphans’ court
Rule 1925(a) opinion, 1/25/22 at 3-12.
We further agree that contrary to the GAL’s contention, the orphans’
court was not required to complete an analysis under Section 2511(b) because
it did not find any statutory grounds for termination under Section 2511(a)(1),
(2), or (5). Id. at 13-15. In any event, the record reveals that the orphans’
court did, in fact, conduct an evaluation of what would be in Child’s best
interests. See id.
Lastly, we agree with the orphans’ court that “it was not appropriate for
[it] to consider ASFA because (1) this issue was not raised at the trial court
level by the GAL or any other party, which waives the issue, and (2) in the
alternative, the Agency had not finished making reasonable efforts in this
case.” Id. at 16-18.
Our standard of review requires us to accept the findings of fact and
credibility determinations of the orphans’ court where, as here, they are
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supported by the record. See In re T.S.M., 71 A.3d at 267. Based on the
foregoing, we agree with the orphans’ court that it did not abuse its discretion
by denying Agency's petition to involuntarily terminate Mother’s and Father’s
parental rights to Child.
Accordingly, we adopt the comprehensive January 25, 2022 opinion of
the Honorable David R. Workman as our own for purposes of this appellate
review. The parties are directed to attach a copy of the orphans’ court’s
January 25, 2022 opinion to all future filings relating to our disposition in this
appeal.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
Date: 05/11/2022
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
ORPHANS’ COURT DIVISION
IN RE:S.D.P., A MINOR No. 2383 of 2020
APPEAL OF: GAL
INVOLUNTARY TERMINATION | : SUPER. CT. DKT. No.: 40:M.D.A. 2022
OPINIC N PURSUANT TO RULE 1925(A) OF THE PENNSYLVANIA RULES OF
? APPELLATE PROCEDURE |
BY: Workman, J. , January 25, 2022
This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure. On January 6, 2020, LS. D.P.3, a minor child, was adjudicated
dependent pursuant to 42 Pa. C.S.A. § 6302(1), by order of the Honorable Jeffrey J. Reich of this
Court. On December 11, 2020, the Lancaster County Children and Youth Social Service Agency
(hereinafter, “Agency”) filed a Petition to Terminate the Parental Rights of Parents (“TPR”),
L 2 .R ol (hereinafter, “Mother” ) and EAs)
| (hereinafter, “Father” : | as to their child, S.D.P., pursuant to 23 Pa.C.S.A.
$§ 2511(a){1), (2), and (5). An evidentiary hearing related to this petition was conducted before
the Court on August 9, 2021, which was not able to be concluded on that day; therefore, a second
portion of the evidentiary hearing was scheduled and subsequently held on September 27, 2021.
On November 29, 2021, following the termination hearing and after review of the
Juvenile Court record pertaining to the Child, the Court issued an opinion finding that the
Agency failed to meet its burden and DENIED the Agency’s Petition for Termination of Parental
Rights as to Father and Mother.
may
On December 30, 2021, Attomey Kathleen Holmes, as the Guardian ad litem (“GAL”),
timely filed a Notice of Appeal and Concise Statement of Matters Complained of on Appeal
Pursuant to Pa. R.A.P. 1925(b). The GAL raises three issues on appeal. First, the GAL avers that
“{t]he trial court committed an error of law and/or abused its discretion by determining that the
Agency had not proven by clear and convincing évidence that involuntary termination of
parental rights of Mother and Father was warranted pursuant to [23] Pa. C.S. § 2511(a)(1) when
its decision was not supported by competent evidence . . .” as outlined by the GAL in her points
(a) through (e). Second, the GAL avers tha “[tjhe trial court committed an error of law and/or
abused its discretion by not analyzing the developmental, physical, and emotional needs and
welfare of the child, $.D.P., pursuant to 23 Pa. C.S. § 2511(b) when the conditions erie in
23 Pa. C.S. § 2511 (a}(1) existed prior to the filing of the Termination of Parental Rights Petition
and when the child, $S.D.P., has bonded with resource parents, who she considers her “mommy”
and “daddy,” and who have cared for her and taken care of her every need as S.D.P. has resided
with her resource parents since she was three (3) days old.” Third, the GAL avers that “[t]he trial
court committed an error of law and/or abused its discretion by failing to properly consider the
requirements of the Pennsylvania ASFA provisions of the Pennsylvania Juvenile Act as it relates
to the permanency for the cluld, $.D.P.”
This 1925(a) Opinion is written in support of the Court’s previous Opinion and its
decision not to terminate the parental rights of Mother and Father, which was entered on
November 29, 2021. For the purposes of the 1925(a) Opinion, the Court incorporates by
reference its prior Opinion, dated November 29, 2021, including all findings of fact and
conclusions of law as delineated therein. The Court will now address each of the GAL’s issues
complained of appeal in turn.
1, Whether “[t}he trial court committed an error of law and/or abused its discretion by
determining that the Agency had not proven by clear and convincing evidence that
involuntary termination of parental rights of Mother and Father was warranted
pursuant to [23] Pa. C.S. § 2511(a)(1) when its decision was not supported by
competent evidence . . .” as outlined by the GAL in her points (a) through (e).
The trial court did not commit an error of law and/or abuse its discretion by determining
that the Agency had not proven by clear and convincing evidence that involuntary termination of
parental rights of Mother and Father was warranted pursuant to 23 Pa. C.S. § 2511(a)(1) because
the Court’s decision was supported by competent cvidence.
“[T}he trial court, as the finder of fact, is the sole determiner of the credibility of
_ witnesses and all conflicts in testimony are to be resolved by the finder of fact.” Jn re Adoption
of A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002). “[T]he finder of fact is free to believe some, all,
or none of the evidence presented.” Commonwealth v. Smith, 146 A.3d 257, 262 (Pa. Super.
- 2016) (citing Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super. 2006). In addition,
“[c|redibility determinations fall within the exclusive province of the trial court.” Commonwealth
y. Dutrieville, 932 A.2d 240, 242 (Pa, Super. 2007). |
“The standard of clear and convincing evidence means testimony that is so clear, direct,
weighty, and convincing as to enable the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue.” Jn re Z.P., 994 A.2d 1108, 1115 (Pa. Super.
2010) (citing In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002). The appellate court “may
uphold a termination decision if any proper basis exists for the result reached.” Jn re Z.P., 994
A.2d 1108, 1116 (Pa. Super. 2010) (citing Jn re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000)
(emphasis added). “Tf the [trial] court’s findings are supported by competent evidence, [the
Ht
appellate] court must affirm the [trial] court’s decision, even if the record could sunper an
opposite result.” In re Z.P., 994 A.2d 1108, 11 16 (Pa. Super. 2010) (citing In re R.L.7.M., 860
A.2d 190, 191-92 (Pa. Super. 2004). |
“A court may terminate parental rights under § 2511(a)(1) where the parent demonstrates
a settled purpose to relinquish parental claim to a child or fails to perform parental duties for at
least six months prior to the filing of the termination petition.” In re Z.P., 994 A.2d 1108, 1117
(Pa. Supér. 2010) (citing In re CS., supra); 23 Pa. C.S. § 251 1(a)(1) (2021) (emphasis added).
Additionally,
“[t]he court should consider the entire background of the case and not simply:
mechanically apply the six-month statutory provision. The court must examine the
individual circumstances of each case and consider all explanations offered by the
parent facing termination of his [or her] . . . parental nghts to determine if the
evidence, in light of the totality of the circumstances, clearly warrants the
involuntary termination.” :
dn re Z.P., supra at 1117 (citing In re B.N.M., 856 A.2d 847, 855 (Pa. Super. 2004).
The following are the Court’s responses to the GAL’s reasons for raising her first error
"on appeal under subheadings of (1a) through (1)(e):
a. The Agency did file a Preliminary Decree and Petition to Terminate Parental Rights
early and prematurely on December 11, 2020, at just eleven (11) months and five (5) |
days.
The Agency purposely provided a ‘compelling reason’ not to file the Petition to
Terminate Parental rights. The reason given by the Agency was that the child had not yet been in
care of the Agency for the statutory fifteen (15) months. See 42 U.S.C. § 675(5)(R)(ii). The
compelling reason was contained in the Agency’s Dependency Petition filed with the Court on
March 30, 2020.
Although the GAL states that the Petition to Terminate Parental Rights was filed five (5)
months after June 20, 2020, which was the day following the initial completion date of
objectives in Mother’s initial child permanency plan, “(C.P.P”), the GAL’s argument in no way
rebuts the Court’s finding that the TPR Petition and Preliminary Decree were filed prematurely.
The GAL is attempting to use the wrong metric to argue that the TPR petition was not filed
prematurely. The filing of a TPR petition is largely based on how many months that a child is in
the care of the Agency, as opposed to how many months have elapsed since the initial goal
completion date on the C.P.P. The Court will consider the child’s time in care, including any
compelling reason provided for not filing at fifteen (15) months. In this case, the TPR should not
have. been filed prior to the fifteen (15) month mark because there was a compelling reason given
for not doing so. A TPR filed at eleven (11) months and five (5) days is nothing but premature
nai contrary to statute. |
Additionally, the Court will also consider the compliance and progress by the parent or
parents on the C.P.P. as to whether the Court will allow the parents more time to work on the
plan and extend the initial C.P.P.’s goal completion date. Therefore, it is up to the Court to
determine if Mother’s compliance and progress on the C.P.P. should be afforded more time for
completion based on facts provided during the serinnio permanency review hearings. The Court
found, based on its determination Sf the facts, and finding Mother to be credible, that Mother’s
compliance and progress on the plan warranted more time to allow Mother to complete her plan.
The initial C.P.P. goal complction datcs arc mcant to be fluid based on progress of the -
parents and the reasonable efforts of the Agency. The Court, the GAL, and Counsel knows this
from experience on many cases where parents have not met the initia) C.P_P. goals in the first six
months: Holding to the initial goal completion dates in a parent’s initial C.P.P. for all cases
_ 36-
would produce an inequitable result. That result is that many parents in cases, such as this one,
would automatically fail to complete the C.P.P. because the time allowed to complete objectives
is simply not reasonable, The Court conducts periodic reviews to assess the. parent’s or parents’
compliance and progress and to determine the level of compliance. If all the Agency had to do
was show that a parent did not meet the initial goal date, then most parents would fail to reunify
with their children. Holding parents to those dates is certain to produce an untenable result.
Based purely on the statute, the Agency should not have filed the Petition to Terminate
Parental Rights early, especially since it listed its compelling reason for not filing because the
child had not yet been in care for at least fiftccn (15) months. This demonstrated to the Court that
the Agency may not have given Mother a fair opportunity under the law.! There needs to be
fundamental fairmess to parents in this regard because parents do have constitutional rights in this
equation, and the statutory filing at fifteen (15) months is the bare minimum to safeguard rights
of parents and the legal interest that the child has to be raised by her parents, which is separate
from what is in a child’s best interest. |
b. Next, the GAL avers that the filing of the Preliminary Decree was not complete until
the parents were served, however the GAL’s argument has no merit.
The statutory language in 23 Pa, C.S. § 25] 1(a) states, “[G]eneral rule.--The rights ofa
parent in regard to a child may be terminated after a petition filed on any of the following
grounds:” 23 Pa. C.S. § 2511(a) (2021) (emphasis added). Nowhere in this section does it state
—_—_—
! Additionally, the Court had growing concerns as this case progressed considering that the Child was placed in a
pre-adoptive home straight from the hospital after her birth, and that the Agency had prejudged this case based
heavily on its history with the parents over a previously born child that came into Agency care and was adopted.
- Although the Court considered the Agency’s history with the parents, this was only one factor of many that the
Court weighed in its decision not to terminate parental rights. The Court also took notice of the Agency’s and
caseworker’s repeated references to the resource or foster home as a potential permanent placement from the onset
and throughout this case,
— 39-
that the petition is considered filed once it is “served” or until “proper service” is made on the
Mother and Father.
There was no explanation for the delay in why service on Mother and Father 6s not
made in a timely matter after the Petition to Terminate Parental Rights and the Preliminary
Decree was filed‘on December 4, 2020.? The Agency had been readily able to serve Mother and
Father for other hearings related to this case. The Agency knew where Mother and Father
resided, and the Agency documented to the Court in a filing that the caseworker from Coby’s
Permanency Unit (“COBY’s”), an Agency contractor, Menticnsd the TPR filing to Mother when
he reached her by phone on January 14, 2021. The caseworker did not finally serve Mother and
Father with the Petition for Termination of Parental Rights and Preliminary Decree until March
29, 2021.
The Court finds the Agency’s delay in serving Mother and Father highly unusual and
rather suspect, especially since service to the parents was made on the eve of entering the
fifteenth (15th) month that the child would have been in the care of the Agency, and service
could have been made much, much sooner. The Preliminary Decree and Petition for Termination
of Parental Rights was filed with the Court on December 4, 2020. Therefore, the Preliminary
Decree and Petition for Termination of Parental rights were “filed” prematurely.
C. This reason is duplicitous of reason “‘b.” The Cour has addressed this by its response
to “b,” above.
d. The GAL avers that Mother and F ather clearly demonstrated a settled purpose to
relinquish their claim to the child. The Court strongly disagrees.
* The Court found this unexplained failure to timely serve parents as a red flag in terms of the Agency acting in good
faith towards the goal of reunification,
The Court outlined is reasoning in great detail in its initial opinion issued in the outcome
of this case. “[T]he trial court, as the finder of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be resolved by the finder of fact.” Jn re Adoption
of A.C.H., 803 A.2d 224, 228 (Pa, Super. 2002), “[T]he finder of fact is free to believe some,
all, or none of the evidence presented.” Commonwealth v, Smith, 146 A.3d 257, 262 (Pa. Super,
2016) (citing Commonwealth v, Hartle, 894 A.2d 800, 804 (Pa. Super. 2006). In addition,
“[c]redibility determinations fall within the exclusive province of the trial court.”
Commonwealth v. Dutrieville, 932 A.2d 240, 242 (Pa. Super. 2007).
Additionally, “(t]he court should consider the entire background of the case and not
simply: mechanically apply the pean statutory provision. The court must examine the
| individual circumstances of cach case and consider all explanations offered by the parent facing
termination of his [or her] . . . parental rights to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary termination.” (citation omitted). |
The Court has reviewed the GAL’s items in subsections (d.)(i) through (d.)(viii) in her
statement of errors on appeal. In these sections, the GAL offers facts, however, the GAL’s role
is not that of the trier of fact. It is solely the Court’s job to determine the truth of those facts.
The Court will not address the GAL’s delineated subsections in any particular order but
submits the following as its response.
The Court found Mother and Father to be credible in their explanations offered for any
deficits or challenges and setbacks in working towards reunification and found these
explanations to be reasonable and acceptable in light of the overall case. Shifting gears is
sometimes necessary. The GAL fails to address that Mother had an incredibly hard time
making appointments for her mental health care with ngid scheduling by providers that did not
. H-
fit well with her work schedule at the post office. Mother had been “working 7 days a week at
the post office 7:30 a.m. until 5:00 p.m. ... and... could not find an evening appointment for
months out with [her] therapist.” (R. at 86, TPR Hearing — Part 1 on August 9, 2021). Mother
also missed visits with $.D.P. on account of her work schedule. Although Father faced short-
term incarceration, Father resumed his visitation with S.D.P. after he was released while also
getting sober and fully complying with adult probation.
The GAL avers that Mother failed to complete her sadtig skill objective due to her
_ own maction, In reality, this bhlective was being withheld from Mother by the Agency until she
completed her mental health and drug and alcohol goal as is the Agency's policy despite the
Court being clear that this-is not a reasonable practice. However, in this case, it is extremely
unfair to Mother for the Agency to withhold the parenting education pending completion of her
menta] health and drug and alcohol counseling because that counseling will be an ongoing
aspect of Mother’s life to maintain her sobriety and will continue for an indefinite period of
tume. It was also explained to the Court that there is a long waitlist for parents to receive the
teachings of a parent educator once the parent is approved to proceed with that program. It
follows then that there will be further delay of Mother receiving access to this program required
by her C.P.P. In retrospect, the Court should ave found no reasonable efforts by the Agency to
promptly provide this service because the service had yet to be offered.
The GAL avers that the Mother failed a urine screen drug test on July 2, 2020, and
August 31, 2020, for methamphetamines and amphetamines, and had a positive saliva test for
methamphetamines on September 21, 2020. However, the Agency produced no test results into
evidence, instead the Agency caseworker offered secondhand, hearsay testimony about these
tests. Therefore, this is purely a credibility determination for the Court to make. The Court did
- 0.
not find the COBY’S caseworker’s statements from others to be credible regarding thesc test
results, When the GAL asked Mother during her testimony about these tests, Mother testified
that she had a “negative urine screen and a positive saliva test, but the saliva test was not sent to
the lab [to be verified], and I know that I didn’t do that.” (R. at 18, TPR Hearing — Part 2 on
September 27, 2020). The Agency did not provide any concrete evidence to confirm Mother’s
test results on these specific test dates where there was a factual dispute.
The Court found Mother to be credible in her response to the GAL’s question. It was
clear to the Court that Mother made obvious progress in dealing with her drug addiction. The
Court understands that overcoming addiction is often a long-term struggle. It is a fact that
Mother-had obtained sobriety prior to the TPR filing, and whether that was in June of 2020 or
in September of 2020, as the GAL avers, is irrelevant. Mother had abated the Agency’s only
real concern for Mother to be able to parent the child. Even ifa relapse were to occur, thatis a
part of the erect As long as the child is safe, the parents should continue to parent.
The GAL also avers that the last time Father has a positive drug screen was September
28, 2020. While that may be true, Father did achieve sobriety, and this was long before the
filing of the TPR Petition and Preliminary Decree in December of 2020. The Court does not
find that Father evidenced a settled purpose of relinquishment of his claim to the child.
The Court found Mother to be credible in her responses to the GAL. Father was also
credible. The parents’ Flsontons were reasonable, The Court viewed the facts and evidence
in light of oe totality of the circumstances and ruled that involuntary termination was not
clearly warranted because neither Mother nor Father evidenced a settled mirrors for
relinquishment of his or her parental claim to the child.
-Up-
The GAL also avers that Mother’s residence is not safe as evidenced by Mother’s
testimony that hers is a smell of marijuana in the stairwell of their apartment. This is a public
stairwell in an apartment building, and the parents have és control over that. Although Mother
mentioned that she resides in a musty, old building with no ventilation, the COBY’S
caseworker found Mother’s residence to be appropriate when he inspected the home in July of
2021. A building can by musty and old with no ventilation, but that does not make Mother’s
residence not appropriate or not safe. If Mother’s residence was not appropriate or not safe, the
COBY’S caseworker should have said so since he had recently surveyed Mother’s home. He
did not. When asked, “[i]s the home.appropriate?” the COBY’S caseworker replied, “It is.” (R.
at 9, TPR Hearing ~ Part 1, August 9, 2021). The Court determined that Mother’s home was
appropriate based on the facts presented. Therefore, the GAL’s claim that Mother's residence ts
not safe is without merit.
The GAL avers that Mother cannot rie the child’s safety while left in the care of
Father because he doesn’t have a valid uriver’s license and vapes marijuana in the car. The
Court is aware that Father does not have a driver’s license. However, the issue that Father
would drive the car with the child in it is speculative. There was no direct evidence that Father
ever drove the car with the child in it. Therefore, the issue of Father driving the car with the
child in it is purely conjecture on the GAL’s part.
As far as Father vaping marijuana in the car, the Court was not convinced that this vaping
incident even occurred. The Court did not find the COBY’s caseworker’s testimony credible
regarding the incident. This was an apparent attempt by the caseworker to use anything that
would put parents in a negative light.” The caseworker’s statement was difficult to believe.
* The Court refers back to its first footnote in this Opinion with respect to how quickly this case was moving toward
adoption.
-449.-
especially since the caseworker said in the same hearing when he was asked if he “had any
concerns with [A THER \being in the home with [S.D.P.],” his response was, “At this point,
the concem would be that [Father] hasn’t had a plan and hasn’t proven that he would be
appropriate in accordance with a plan.” (R. at 1 1, TPR Hearing — Part 1, August 9, 2021).
Therefore, the Court did not find the caseworker credible on this allegation, nor did the Court ° »
‘find that any safety concerns exist despite what the GAL is trying to allege..
The Court has already addressed Mother’s reasons for declining virtual visitation in its
initial opinion when in-person visits were postponed due to Covid-19 precautions and found
Mother’s reasons acceptable in light of the unusual circumstances that the pandemic has
caused. When the Court had the child on video during a status hearing in the case, all the child
was able to do was wave to the Court. That was it, so the Court can understand Mother’s
position for the lack of benefit from that type of interaction with the child.
e. The GAL states that Mother and Father clearly failed to affirmatively perform any
parental duties .. . until the eleventh hour . . .. However, the Court did not find this to
be true on the facts of the case.
As the trier of fact, the Court found, and as stated in its initial opinion, that Mother
performed parental duties that were reasonable in accordance with the permanency plan. (Page
15 of the Court’s Initial Opinion, dated Novernber 29, 2021.) And, the Court found, as stated in
its initial opinion, that Father had not failed to perform parental duties that would be reasonably
_ expected in this case enite not having a permanency plan to complete. (Page 15 of the Court’s
Initial Opinion, dated November 29, 2021). Additionally, the GAL avers that Mother and Father
failed to attend any of S.D.P.’s medical appointments, However, there was no.testimony that
Mother and Father were ever told of these appointments or invited to attend by the Agency or by
-f3-
anyone else. If Mother and Father were not made aware of these appointments, Mother and
Father could not be expected to attend. Therefore, the Court holds steadfast to its position that
Mother and Father did not fail to perform parental duties because of the facts in this case despite -
the GAL’s claim to the contrary.
2. Whether “[t]he trial court committed an error of law and/or abused its discretion by
not analyzing the developmental, physical, and emotional needs and welfare of the
child, S.D.P., pursuant to 23 Pa. C.S. § 2511(b) when the conditions described in 23
Pa. C.S. § 2511 (a)(1) existed prior to the filing of the Termination of Parental Rights
Petition and when the child, §.D.P., has bonded with resource aerate who ale
considers her “mommy” and “daddy,” and who have cared for her and taken care of
her every need as SDP. has resided with her resource parents since she was three (3)
days old.”
The trial court did not commit an error of law and/or abuse its discretion by not analyzing
the developmental, physical, and emotional needs and welfare of the child, $.D.P. pursuant to 23
Pa. C.S. § 2511(b) because the trial court did not find any statutory grounds for termination
under § 2511(a)(1), (2), or (5). Therefore, the Court was not required to complete an analysis
under § 2511(b) as the GAL insists.
Even if the Court were to have found statutory grounds for termination, the Court
approved an initial C.P.P. with a goal of reunification at the very beginning when Mother’s and
Father’s life circumstances were such that those circumstances warranted a finding of
dependency. However, “[1]f Mother was deemed suitable for reunification at the time of a
finding of qeoendenee [or the court’s adoption of the initial C.P.P.] then [Mother] must still be
suitable for reunification [a year and a half] later when her circumstances are that much better.”
_ ff.
Inve R.M.G., 997 A.2d 339, 350 (Pa. Super. 2010), The Agency’s primary concern for the
family at intake of care of S.D.P. by the Agency was Mother and Father’s dnig use. This concern
ceased to exist prior to the filing of the Termination of Parental Rights Petition in December of
2020.
- Although the Court did not opine on what would bein the child’s best interests because it
is not statutorily required, the Court did consider the child’s needs overall and the child’s welfare
if the child were to be reunified with Mother and Father in making its determination not to —
becmihats parental rights and allow Mother more time to complete her plan. The Court evaluated
both the child’s legal iietoets as well as the child’s best interests. |
The Court considered the totality of the circumstances in this case. Setting aside Mother
and Father’s history with the Agency with a prior child in the Agency’s care, who has since been
adopted, and objectively considering this case with S.D.P. ba its own merits, Mother and Father
are capable of caring for S.D.P. in all the ways parents would be expected to care for their own
child even if Mother’s plan has a few final details to complete before reunification can occur,
.and even if Father was not granted a plan. The Court anticipates that Mother will complete her
plan, and Father has abated those conditions that were cause for the Agency’s concer.
The GAL insists that the bond that the resource parents have with S.D.P. is paramount,
and it is that bond that should be the undoing of the Court’s decision.* However, it would not be
_ fair to compare the bond with the resource parents versus the biological parents. The biological —
parents are at grave disadvantage because they are at the Agency’s mercy for limited visitation,
at most four hours per week and two hours per visit whereas S.D.P. was placed in a potential
permanent placement from three days old and has remained with the same resource family
* The Court is concerned about the objectivity of the GAL in this matter given her responsibilities to S.D.P. as her
client and the regular contact and interaction necessary with the resource parents to be able to engage with S.D.P.
4s
throughout this proceeding. See Jn re A.S., 997 A.2d 339, 350 (Pa. Super. 2010) (“[A] gency
[contended] that there is no bond between Mother and child and that there is a closer relationship
between the child and the foster mother, This is true only because the agency has so severely
limited contact between Mother and child that is was impossible for her to form a bond with the
child.”).
Additionally, the record does not reflect that Mother and Father do not have a bond with
the child. In fact, the Agency documented that when Mother visits $.D,P., “Mother is appropriate
and loving towards [the child] . . . [and] is aware of the developmental stage that her daughter is
in and engages with her appropriately.” (Agency’s Dependency Petition filed on 3/30/21). The ©
_ Agency also noted that ite Father visits S.D-.P., “he interacts very appropriately, . . . plays with
her, encourages her to crawl/walk, feeds her, and changes her diaper (Agency’s Dependency
Petition filed on 3/30/21).
The GAL contends that the bond between the child and the resource parents is what _
matters, however, the GAL ignores any bond that the child has with her biological parents. The
GAL neglects to consider the child’s legal interests and has only considered what the GAL
believes to be in the child’s best interests. However, “[t}he best interests determination belongs
to the Court.” Jn re Adoption of L.B.M, 161 A.3d 172, 174 (Pa. 2017).
“In cases involving children, the law acknowledges two separate and distinct categories
of interest: a child’s legal interests, which at synonymous with the child’s preferred outcome,
and a child’s best interests, which the trial court must determine.” Jd. As a legal interest, a child
has an interest in the ability to enjoy the child’s birthright, to be raised by her biological parents.
Of course, the child being able to be parented by the biological parents comes with the caveat -
that the Court finds that the parents are capable of parenting the child. Mother and Father have ©
-U6-
demonstrated credibly, Mother by working through her plan which is nearly complete, and
Father, who was without a plan but completing goals similar to Mother’s that are essentially
complete, minus a would-be parenting goal if Father actually had a plan, that Mother and Father
are capable of parenting the child. Mother and Father have come a long way from wiiele the
Court first found them: Additionally, 8.D.P. is not of the‘age where she can express her wishes,
SO it is important for the Court to consider both the legal interests of the child as well as the
child’s best interests. Therefore, the Court continues to maintain its position with respect to
Mother and Father and did not err in its decision not to address § 2511(b) when the Court found
no grounds for termination.
3. Whether “[t]he trial court committed an error of law and/or abused its discretion by
failing to properly consider the requirements of the Pennsylvania [Adoption and Safe
Families Act of 1997] (“ASFA”) provisions of the Pennsylvania Juvenile Act as it
relates to the permanency for the child, §.D.P,”
The Court did not commit an error of law or abuse its discretion by failing to properly
consider the requirements of the Pennsylvania ASFA provisions . . . as it relates to the
permanency for the child, S.D.P. because it Was not appropriate for the Court to consider ASFA
because (1) this issue was not raised at the trial court level by the GAL or any other party, which
waives the issue, and (2) in the alternative, the Agency had not finished making reasonable
efforts in this case.
As the general rule, “Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.” Pa. R.A.P. 302 (2021). The GAL is raising this issue for the first
time, and therefore, should not be permitted to proceed on appeal with this issue. However, if the
~ {5-
appeals court determines that this issue was raised, then in the attorriatiye) the Court provides the
following rebuttal to the GAL’s argument.
“[WJhen a child is placed in foster care, affer reasonable efforts have been made to
reestablish the biological relationship, [then]... Children and Youth Services and foster care
institutions’... work towards termination of parental rights, [and] placing the child with |
| adoptive parents.” Jn re A.S., 11 A.3d 473, 478 (Pa. Super. 2010) (emphasis added). What has
occurred in this case is not the parents’ failure to benefit by such reasonable efforts, but instead,
from the failure of reasonable efforts to be made. Part of reasonable efforts includes allowing a
reasonable amount of time for parents to remedy the cause or circumstances that gave rise to the
child’s dependency. The Agency’s nish to file the TPR petition prior to providing the parents
with services strikes to the core of the case, and the Court’s decision. The Agency prematurely
filed the TPR Preliminary Decree and TPR petitions prior to making reasonable efforts. The
Agency did not inspect Mother’s home until — after the filing of the TPR Petition. The Agency
withheld Services: such as the parent educator, as outlined in the C.P.P.
The purpose of ASFA is “[t]o aS children from foster placement limbo where they
_know neither a committed parent nor can they look towards some semblance of a normal family
life... » Id. The Court finds that §.D.P. has committed biological parents, finding both parents
credible in their efforts at reunification. The Court also finds that the child will be able to achieve
“some semblance of a normal family life” with her own parents. Jd. There is no danger of foster
care drift in this case considering how close Mother is to completing her plan, and Father
alongside her, without a plan.
The child, from three days old, has been placed in the same, prospective pre-adoptive
resource home. Allowing Mother and Father a reasonable amount of time to complete the plan
4.
will have no negative impact on the child’s current living situation. In the event that reunification
cannot occur, the child will likely be adopted by the family where she currently resides.
Therefore, the Court finds that the parents should have more time to receive reasonable efforts
for reunification. There is no current concern for foster care drift because the child is already ina
potentially permanent placement.
CONCLUSION
The Court maintains that the Agency has not proven by clear and convincing
evidence that involuntary termination of Mothers and Father’s parental rights to S.D.P.
arc warranted, pursuant to Section 2511(a)(1), (2), or (5). Therefore, no grounds for
termination exist.
BY THE COURT:
[si Saskia Sayeg
ATTEST: Deputy Clerk of Orphan's Court
Copies to: Albert J. Meier, Esq., Counsel for Mother
Patricia L. Dunlevy, Esq., Counsel for Father
Christine PfauLaney, Esq., Counsel for the Agency
Kathleen E. Holmes, Esq., Guardian ad Litem
NOTICE OF ENTRY OF ORDER OR DECREE
PURSUANT TO PA 0.C, RULE 4.6.
NOTIFICATION: THE ATTACHED DOCUMENT
HAS BEEN FILED IN THIS CASE
WITH THE ORPHANS’ COURT OF LANCASTER COUNTY, PA.
DATE: of/25 [I 2