In the Interest of: A.S.B., Jr., a Minor

J-A29005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.S.B., JR. : IN THE SUPERIOR COURT OF
A/K/A A.B., A MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.B., SR., FATHER :
:
:
:
: No. 1275 EDA 2017
Appeal from the Order Entered March 15, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000959-2016,
CP-51-DP-0000653-2011
BEFORE: LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 13, 2017
A.B., Sr. (“Father”) appeals from the trial court’s order involuntarily
terminating his parental rights to his minor son, A.S.B. (“Child”) (born 1/10).
After careful review, we affirm based upon the cogent opinion authored by the
Honorable Joseph Fernandes.
Child was first brought to the attention of the Philadelphia Department
of Human Services (“DHS”) when it received a report in March 2011 that Child
had been found in the care of his paternal grandmother, who was unconscious
due to a drug overdose. DHS’s Motion to Compel Cooperation with Child
Protective Services Investigation of Abuse and/or Neglect, 4/1/11, at c. 1 Over
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1We note a discrepancy in the trial court opinion where it indicates that Child’s
Mother had overdosed and been rushed to a hospital. See Trial Court Opinion,
at 7/21/17, at 1. In fact, it was paternal grandmother, in whose care Parents
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* Retired Senior Judge assigned to the Superior Court.
J-A29005-17
the next several months, DHS visited the home of family members caring for
Child, where reports of unsanitary home conditions were substantiated.
Finally, in December 2011, amidst allegations of family members using drugs,
DHS filed an emergent dependency petition. In January 2012, the court held
a hearing and adjudicated Child dependent; DHS was ordered to supervise
Child while family members continued to care for him. In March 2012, the
court ordered DHS to obtain protective custody of Child.
At this time, Father, a known drug user, was given the following
objectives as part of a Family Service Plan (“FSP”): receive drug and alcohol
and mental health treatment, complete a parenting capacity evaluation
(“PCE”), obtain stable and appropriate housing, and attend supervised visits.
In August 2012, Child was placed in a foster home; parents were granted
supervised visits. Throughout the ensuing years, Father demonstrated
inconsistency with regard to his FSP objectives. Child was adjudicated
dependent for a second time on September 18, 2015, and he has been in
foster care, under the custody of DHS, since August 2015.2
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had left Child, who was rendered unconscious from an apparent overdose.
Father and Mother, however, had been arrested at the same time surrounding
reports of domestic violence.
2 Child was placed in the custody of DHS and placed in foster care three times
in August 2012, December 2013, and finally in August 2015.
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J-A29005-17
On October 17, 2016, DHS filed a petition to involuntarily terminate
Father’s parental rights to Child. The trial court held a two-day termination
hearing on January 17, 20173 and March 15, 2017, at which case manager,
Curtis Tate, and Father testified. On March 15, 2017, the trial court entered
an order terminating Father’s parental rights to Child pursuant to sections
2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 4 and changed the goal
to adoption. Specifically, the court found Father’s testimony not credible, that
he had not completed his stated objectives under the FSP, and that there was
no paternal bond with Child. N.T. Termination Hearing, 3/15/17, at 27.
Father filed a timely appeal and Pa.R.A.P. 1925(a)(2) concise statement
of errors complained of on appeal. On appeal, Father presents the following
issue for our consideration: Did the trial court err or abuse its discretion when
it determined that DHS had met its burden of proof and then terminated
Father’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8),5
and (b), and changed the permanency goal to adoption pursuant to 42 Pa.C.S.
§ 6301, et seq.?
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
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3 Father attended the second day, not the first day, of the termination
proceedings.
4 23 Pa.C.S. §§ 2101-2910.
5 We can affirm the trial court’s decision regarding the termination of parental
rights with regard to any singular subsection of section 2511(a). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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J-A29005-17
by clear and convincing evidence the existence of grounds for
doing so. The 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." It is well
established that a court must examine the individual
circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence in
light of the totality of the circumstances clearly warrants
termination.
In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted). See also In C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party
seeking termination of parental rights bears burden of proving by clear and
convincing evidence that at least one of eight grounds for termination under
23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs
and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
We review a trial court’s decision to involuntarily terminate parental
rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,
563 (Pa. Super. 2003). Our scope of review is limited to determining whether
the trial court’s order is supported by competent evidence. Id.While Father correctly acknowledges that it is petitioner’s burden to
prove, by clear and convincing evidence, that termination is proper under
sections 2511(a) and (b), Father’s sole legal argument on appeal is that “other
than Father’s own testimony, the record of this case is that the court simply
has too little information to test the information he has provided, and
therefore cannot [terminate under sections 2511(a)(1), (2), (5), (8)]” and
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that there is “absolutely NO information directly from this 7-year-old child [to
terminate under section 2511(b)].” Appellant’s Brief, at 23-26.
DHS best describes parents’ performance since Child was declared
dependent and put in placement as “yo-yo[ing] between compliance and non-
compliance with their objectives.” Appellee’s Brief, at 4.6 Essentially, Father
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6 Father takes issue with the trial court’s and DHS’s reliance upon an exhibit
(“Exhibit A”), which he claims was never moved or accepted into evidence
below. Father, therefore, claims that the exhibit cannot be considered
competent evidence upon which to rely on for termination. See Appellant’s
Brief, at 7. Exhibit “A” consists of a 32-page recitation of facts regarding the
case. Father is correct that it was not a part of the exhibits explicitly entered
into evidence during the termination hearings. It is well known that “[a] trial
court may not consider evidence outside of the record in making its
determination. Nor may this Court uphold a trial court's order on the basis of
off-the-record facts.” Ney v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007)
(internal citations and quotation marks omitted); see also M.P. v. M.P., 54
A.3d 950, 954 (Pa. Super. 2012) (trial court may not consider evidence
outside record in making decision).
While Father accepts the trial court’s recitation of the facts and
procedural background in its Rule 1925(a) opinion, he “specifically challenges
the ‘Factual and Procedural Background’ of the lower court’s Opinion insofar
as it includes allegations of the DHS ‘Exhibit A’ which is not properly in
evidence.” Id. We note that at the January termination hearing, the court
entered Exhibits 1-17 into evidence, as well as a copy of Child’s birth
certificate. See N.T. Termination Hearing, 1/17/17, at 9; id. 3/15/17, at 4.
The parties also agreed to a stipulated trial and that if called to testify “CUA
will testify to the facts alleged in the petition.” N.T. Termination Hearing,
1/17/17, at 8; id. 3/15/17, at 4. Moreover, on January 17, 2017, the court
specifically entered a separate order entering Exhibits 1-17 into evidence.
Order, 1/17/17. Exhibit “1” consists of case files, detailed permanency review
orders that contain findings, docket entries from Child’s dependency case,
case event outcomes, substance testing results, and trial court CEU progress
reports. To the extent that the trial court may have relied upon information
contained in Exhibit A in its factual and procedural background, we note that
the majority if not all of this information was also contained within properly
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J-A29005-17
relapsed throughout Child’s placement, failed to complete a court-ordered
PCE, minimally complied with his FSP objectives, consistently missed his visits
with Child, failed to take Child to medical appointments, and was incarcerated
during periods of Child’s placement. Father’s transgressions and inability to
actively and positively parent Child caused Child to enter and exit foster care
three times over the course of three years. Child had been in foster care for
a period of 16 consecutive months at the time of the termination proceedings.
Child, who is now seven-years-old, needs stability and permanency. He is in
a loving and nurturing home where he has bonded with his foster parent;
adoption is in his best interests.7
After careful consideration of the notes of testimony from the two-day
termination hearing, the remainder of the certified record, the parties’ briefs
and relevant case law, we affirm on the basis of Judge Fernandes’ Rule
1925(a) opinion. We instruct the parties to attach a copy of Judge Fernandes’
decision in the event of further proceedings in the matter.
Order affirmed.
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admitted Exhibits 1-17. Therefore, we do not find this to be a ground for
reversal where the properly admitted evidence otherwise supports
termination.
7 At the termination hearing, Tate indicated that Child’s foster resource parent
is interested in adopting him. N.T. Termination Hearing, 1/17/17, at 19.
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J-A29005-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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Circulat 11/01 17 02:58 PM
IN THE COURT OF COMMON PLEAS .
FOR THE COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION
In the Interest of A. B. Jr., a minor C11514/0-0000653-2011
P -51 -AP -0000959-2016
51 -FN -001680-2011
APPEAL of: A. B., Father 1275 EDA 2017
OPINION1
Fernandes, J.:
Appellant A.B. ("Father") appeals from the order entered on March 15, 2017, granting the petition
filed by the Philadelphia Department of Human Services ("DHS"), to involuntarily terminate
Father's parental rights to A. B., Jr. ("Child") pursuant to the Adoption Act, 23 Pa. C. S. A.
§2511(aX1), (2), (5), (8), and (b). Maureen Pie, Esq., counsel for Father, tiled a timely Notice of
Appeal with a Statement of Matter Complained of on Appeal pursuant to Rule 1925(b).
Factual and Procedural Background:
The family in this case became known to DHS on March 21, 2011, when DHS received an
Emergency General Protective Services ("EGPS") report alleging that on March 19, 2011, the
Child was left in the care of his paternal grandmother ("PGM"); that the Child's mother
("Mother")
was found unconscious from a drug overdose in the home with the Child present; that Mother was
taken to a hospital; that on March 19, 2011, Mother and Father were arrested; that on March 21,
the
2011, Father removed the Child from the home of his temporary caregiver ("TC"), who was
kinship caregiver for the Child's paternal half-sibling ("Sibling"); that drug activity occurred in
the home of Mother and Father, who resided together; and that PGM used and sold drugs. The
report was found to be valid. DHS tried multiple times to visit the home to investigate the
allegations and left multiple letters throughout the month of March 2011.
On November 15, 2011, DHS received another EGPS report alleging that the Child's home was
filthy and infested with cockroaches; that Mother and Father appeared to be drug users. The report
requests were made on June 6.
The trial court requested the Notes of Testimony on March 16, 2017. Subsequent
3
June 15, 2017. The trial court received all Notes of Testimony by June 21, 2017.
2017, and
Page 1 of 17
was found to be valid. DHS visited the home on November 16, 2011, and determined that the
home was adequate for the Child. Both Mother and Father denied the EGPS allegations and did
not appear to be under the influence of drugs at that time. On November 16, 2011, Mother and
Father agreed to accept In -Home Protective Services (-IHPS"), and they signed a Safety Plan
stating that TC would monitor the Child's safety in the home and maintain contact with the family.
Father enrolled in an inpatient drug and alcohol treatment program at Fairmount Behavioral Health
System ("Fairmount BHS") in November 2011, but DHS learned that Father had left the program
against medical device in the same month. On December 8, 2011. DHS filed an urgent dependency
petition for the Child, which alleged that Father had a history of drug abuse and had been diagnosed
with post -traumatic stress disorder ("PTSD") and bipolar disorder; and that PGM had been
suffering from a bulging disc in her back and diabetes and had been prescribed narcotic pain
medication, but also had a history of drug abuse. On January 3.2012, the Child was adjudicated
dependent and DHS was ordered to supervise. Mother and Father were referred to the Clinical
Evaluation Unit ("CEU") for a drug screen, and a dual diagnosis assessment and monitoring. On
February 23, 2012, Father was assessed by the CEU; Father's positive drug screen for
benzodiazepines was substantiated by his prescription for Xanax. Father reported that he was
incarcerated for four months in 2008 for aggravated assault and that he had a pending criminal
matter for a 2010 drug possession charge. On March 9, 2012, the CEU provided a report of non-
compliance for Father. The CEU reported that on January 3, 2012, Father tested positive for
opiates and benzodiazepines, and did not stay for his evaluation. Father rescheduled his evaluation
appointment multiple times, before being evaluated and recommended by the CEU to remain in
methadone maintenance treatment. The CEU was not able to obtain information regarding
Father's treatment and progress; it was Father's responsibility to provide the CEU with
documentation of his attendance. On March 20, 2012, the court ordered DHS to obtain an Order
of Protective Custody ("OPC") for the Child if Mother and Father were not compliant with
services, drug screens, drug and alcohol treatment. and signing releases. Mother and Father were
ordered to the CEU for a forthwith drug screen, dual diagnosis assessment and monitoring. The
CEU issued another report of non-compliance for Father on June 11, 2012. Father tested positive
for opiates on March 20, 2012. At a review hearing on June 12, 2012, the court ordered Mother
and Father to sign all releases and follow all recommendations and Father to provide the CEU with
documentation of methadone maintenance attendance. Father tested positive for opiates and
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marijuana on June 12, 2012. On July 30, 2012, Father reported attending the Kirkbride Treatment
Facility since July 1, 2012, and being compliant with all treatment mandates; Kirkbride reported
that Father's after -care plan would be to attend Intensive Outpatient ("10P") treatment.
On August 21, 2012, DHS received a General Protective Services ("GPS") report which alleged
that Father was found in the home unconscious while in a caretaking capacity and that Father was
under the influence of a controlled substance. The report was found to be valid. That same day,
DHS obtained an OPC and placed the Child in a foster home through Friendship House. At the
shelter care hearing on August 23, 2012, the court lifted the OPC and committed the Child to DHS
custody. Mother and Father were granted supervised visits. The CEU issued a report of non-
compliance for Father on November 12, 2012; Father tested positive for barbiturates on July 31,
2012 and failed to comply with court orders to complete a CEU assessment after August 23, 2012.
On February 4, 2013, the CEU reported that Father had a negative drug screen on January 25,
2013, and was compliant with his LOP methadone maintenance treatment, which he reportedly
began on October 16, 2012. On February 6, 2013, the court found Father to be fully compliant
and he was granted unsupervised visits. DHS was ordered to explore reunification of the Child
with Father. On May 8, 2013, the court ordered that after three successful overnight visits. the
Child could be reunified with Father; however, if Father's drug screens came back positive, visits
were to be modified back to weekly day visits. Father was to be referred to the Achieving
Reunification Center ("ARC") and the CEU for a forthwith drug screen and to sign releases for his
records. Father was successfully discharged from treatment at the Narcotic Addiction
Rehabilitation Program ("NARP") on February 15, 2013. On June 11, 2013, at an emergency
listing for a permanency review, the court ordered Father's visitation to revert to supervised and
ordered that visits could be returned to unsupervised if Father provided negative drug screens. On
September 12, 2013, the Child was reunified with Mother at Family House Now, a mother/baby
drug and alcohol treatment facility. On December 2, 2013, the CEU reported that Father tested
negative for drugs on September 11, 2013, and had been successfully discharged from Self
Help
Movement Halfway House on October 14, 2013.
On December 3, 2013, Mother was unsuccessfully discharged from Family House Now and the
Child was placed back in his previous foster home on that date. On December 4. 2013, at a
permanency review hearing, the court ordered that Father have unsupervised community visits and
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referred him to the CEU for a forthwith screen and one random drug screen; if Father's drig
screens came back positive, Father's visits were to be supervised at the agency. The court also
ordered DHS to assess Father's home and granted Father overnight visits if appropriate. On
September 14, 2014, at a permanency review hearing, the court ordered Father to have biweekly
supervised visits at the agency and that Father was to provide a copy of his lease to DHS. On
March 11, 2015, Mother was re -admitted to Family House Now and the Child was reunified with
Mother and the commitment to DHS discharged and supervision implemented via an
administrative order from the court on March 12, 2015.
On August 20, 2015, DHS received a GPS report alleging that Mother was found slumped over on
steps with the Child sitting next to her. The report was found to valid. After being found by
paramedics, the Child was returned to his prior foster home. On August 26, 2015, Father informed
DHS that he and his paramour were residing in a hotel room with one bed near Nesharniny Mall,
outside of Philadelphia. That same day, DHS obtained an OPC for the Child and he was placed
with his former foster parent through Friendship House. At the shelter care hearing on August 27,
2015, the court ordered the OPC lifted and the temporary commitment to DHS stand. On
September 18, 2015, the Child was adjudicated dependent and fully committed to DHS custody.
Mother and Father were granted biweekly supervised visits. Father failed to make his appointment
for his Parenting Capacity Evaluation ("PCE") on September 2, 2016.
On October 17, 2016, DHS filed petitions to terminate Mother and Father's parental rights and
change the goal from reunification to adoption.`` The petitions for goal change and termination
were heard on January 17, 2017, and March 15, 2017. At the time, the Child was six years old and
had been in care for a cumulative total of sixteen months. Father was not present at the January
17, 2017, hearing. The trial court determined that DHS made reasonable good faith efforts to serve
Father. All parties stipulated to the facts of the case. (N.T. 1/17/17, pgs. 4-10, 18).
CUA testified that Father was not compliant with any of his SCP objectives. Father's single case
plan ("SCP") objectives were to attend drug and alcohol mental health treatment; to attend mental
health treatment; to complete a PCE; to obtain appropriate housing; and to consistent]) attend his
supervised visits with the Child. CUA was unable to reach Father and has not had contact with
2 The trial court terminated Mother's and Father's rights on March 15, 2017. Only Father appealed.
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Father since August 2016, when CUA gave Father the information for his PCE. CCA testified
that he went out to the house several times, including the Friday before the hearing, but no one
answered the door. CUA testified that he met with Father only once or twice, during which he
informed Father of the PCE that was scheduled. CUA. testified that Father did not show up for his
three random drug screens at the CEU since the last court date. CUA testified that Father last
appeared at the CEU on August 17, 2016. Father is not enrolled in any drug and alcohol or mental
health treatment. CUA testified that Father does not have suitable housing. Father has bi-weekly
supervised visits at the agency. Father has not been visiting with the Child. Father's last visit with
the Child was in August 2016. Father does not attend the Child's medical appointments. Child is
in the first grade and is doing well, with the exception of a little trouble in math. Child receives
mobile therapy through Interact. The Child also has an IEP. The Child is in a safe, permanent,
and pre -adoptive home. The Child has a good relationship to the Foster Parent and is bonded to
her. The Child reported feeling safe and comfortable with the Foster Parent. The Foster Parent
and the Child have a very caring and loving relationship. The Foster Parent takes care of all of the
Child's needs. The Child looks to the Foster Parent to meet his everyday needs. (N.T. 1/17/17,
pgs. 5-19).
On January 17, 2017, the trial court held its decision in abeyance to allow parents to sign voluntary
relinquishments of their parental rights. Neither of the parents signed and Father appeared at the
March 15, 2017, court date. (N.T. 3/15/17, pgs. 3-5). Father claimed that he completed his drug
screens and that he last took a drug screen in January 2017. The most recent CEU report was dated
November 2016, and listed Father's last drug screen to be on October 26, 2016. Father tested
1,
negative with traces of cocaine on the October 2016 drug screen. The report also noted that Father
did not stay for his assessment, even though he had already rescheduled at least twice. Father
claimed that no one called him to come in for his random screens, so he went to the CEU on his
own and completed a drug screen in January 2017. Father testified that he did not receive the
results for the drug January 2017 drug screen. Father testified that he last contacted the CUA case
manager in January 2017. Father also testified that CUA did not reach out to him since the last
court date. Father claimed that he had already completed assessments for the CEU and did not
know that he had another to complete. Father admitted that he has not engaged in mental health
treatment or completed a drug and alcohol assessment. Father claimed to be unaware of any SCP
objectives other than appearing at the CEU for the assessment and drug screens. Father admitted,
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however, that he was aware that he had to get stable housing. Father testified that he has housing
and is living in a two -bedroom house with his paramour and other child. The other child, who is
not involved with DHS, only lives with Father part-time, about two days each week. Father
testified that CUA was ordered to assess his home after the last court date, but admitted that an
assessment had not been scheduled. In addition, Father testified that he moved to a new address
on March 13, 2017, and did not request CUA to assess the new home. Father testified that the new
home is an apartment on the first floor of a house. Father claimed to have stable housing at both
the new and the former addresses, but CUA had not assessed either home. Father testified that he
provided CUA with the information of his paramour, the only person living directly with him, for
background and clearances. Father testified that he did not provide the information for the other
people living in the house because the separate rooms were individually locked, like in a boarding
home. Father claimed that Mother informed him that neither of them were allowed to visit with
the Child anymore. Father testified that his last visit with the Child was approximately in late
October 2016. Prior to stopping visits, Father testified that he visited the Child every week at first,
then every other week. Father testified that he missed some visits and then was informed that he
was not allowed to visit with Child. Father testified that he did not contact the court because of
his criminal case for which he was incarcerated on a burglary charge for three months in early
2016. Father is still on probation. Father testified that he had not been receiving all of his mail at
this former address. Father also testified that he called the police on his landlord due to the lack
of mail, but he could not prove that the landlord was holding his mail. Father testified that he
learned about the March 15, 2017, court date from Mother. Father also testified that Mother told
him about the January 17, 2017, after it had passed. (N.T. 3/15/17, pgs. 5-22). On March 15,
2017, after reopening the record to allow Father to testify-, the trial court terminated Father's
parental rights pursuant to 23 Pa. C.S.A. §2511(a)(I), (2), (5), (8), and (b), and changed the goal
to adoption.
Discussion:
Father avers that the Trial court erred in determining that:
1. [DHS] had met its burden of proof by clear and convincing evidence that Father evidenced
a settled purpose of relinquishing his claim to the [Child] or has refused or failed to perform
parental duties, for at least six months immediately preceding the filing of the petition;
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2. DHS had met its burden of proof that Father has shown repeated and continued incapacity,
abuse, neglect or refusal causing the [Child] to be without essential parental care, control
or subsistence necessary for the [Child's] physical or mental well-being;
3. DHS had met its burden of proof that the conditions and causes of any such incapacity,
abuse, neglect, or refusal cannot or will not be remedied by Father;
4. DHS had met it burden of proof that the conditions which led to the removal of the [Child]
continue to exist;
5. DHS had met its burden of proof that the services or assistance reasonably available to
Father are not likely to remedy the conditions which led to the removal of the [Child] within
a reasonable period of time and erred in determining that DHS had made reasonable efforts
to reunify this family;
6. DHS had met its burden of proof that services or assistance were reasonably available to
Father;
7. DHS has met its burden of proof that changing the [Child's] permanency goal to adoption
and terminating Father's rights would best serve the needs and welfare of the [Child]:
8. Father reserves the right to tile a supplemental statement once the Notes of Testimony of
the Goal Change/Termination of Parental Rights Hearing on March 15, 2017, are
transcribed and made available to counsel.
Father has not submitted a supplement to his Concise Statement of Errors pursuant to issue 8. so
Father has waived those issues on appeal. See Krebs v. United Refining Co., 893 A.2d 776, 797
(Pa. Super. 2006). See also In re KTEL 983 A.2d 745 (Pa. Super. 2009); In re C. P.. 901 A.2d
516, 522; In re JE,.D., 879 A.2d 288, 293, fn. 7 (Pa. Super. 2005). For this reason, this opinion
will only address the issues appealed in 1 through 7. At the same time, for the purpose of this
opinion, Father's issues 1 through 7 will be consolidated to read: Did the trial court err or abuse
its discretion when it terminated Father's parental rights pursuant to 23 Pa. C.S.A. §2511(aX1),
(2), (5), (8), and (b), and changed the permanency goal to adoption?
Father has appealed the involuntary termination of his parental rights. The grounds for involuntary
termination of parental rights are enumerated in the Adoption Act at 23 Pa. C. S. A. §2511(a),
which provides the following grounds for §2511(aX1):
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(a) General rule The rights of a parent, in regard to a child, may be terminated after a petition
is 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, has either evidenced a settled purpose of
relinquishing parental claim to a child or has refused or failed to perform parental
duties.
In proceedings to involuntary terminate parental rights, the burden of proof is on the party seeking
termination which must establish the existence of grounds for termination by clear and convincing
evidence. In re Adoption of Atencio, 650 A.2d 1064 (Pa. 1994). To satisfy section (a)(1), the
moving party must produce clear and convincing evidence of conduct sustained for at least six
months prior to the filing of the termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform parental duties. However, the six-month
period should not be applied mechanically; instead, the court must consider the whole history of
the case. In re B.N.M, 856 A.2d 847, 855 (Pa. Super. 2004). The 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 precise facts in issue. In
re C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997).
The petition for involuntary termination was filed against Father on October 17, 2016. For the six
month period prior to filing, Father was not successfully completing his SCP objectives. Father
was non -compliant with his SCP objectives. (N.T. 1/17/17, pgs. 10-11, 15-16). CUA testified that
Father has not been in contact with CUA since August 2016. CU A testified that he went to Father's
known address several times, including the week before the termination trial, but no one answered.
CUA provided Father with the date and time for his scheduled PCE personally. Father was aware
of his PCE objective, but still did not complete his PCE. (N.T. 1/17/17, pgs. 7, 11, 15-16). Father
has not shown up for his court-ordered drug screens at the CEU since the last court date. Father
claimed that no one called him to appear for his random drug screens, so he went on his own to
the CEU for a drug screen in January 2017, but did not receive the results. However, the most
recent CEU report has Father's last drug screen being on October 2016, with Father testing
negative with traces of cocaine. Father admitted that he has not engaged in mental health treatment
or completed a drug and alcohol assessment. Father is not enrolled in any dual diagnosis drug and
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alcohol treatment program. (N.T. 1/17/17, pgs. 7-8, 15-16; N.T. 3/15/17, pgs, 6-9). CIA testified
that Father does not have suitable housing. A review of the record establishes that Father was
referred to ARC for services. Father testified that he is living in a two -bedroom house with his
paramour and another child. CUA was ordered to assess the home, but Father admitted that he did
not schedule an appointment. Father recently moved to a new address which is an apartment on
the first floor of a house. Father claimed that both his current and previous homes were stable, but
CUA never assessed them. Father only provided CUA with information regarding his paramour
and other child for clearances, not the other people who live in the house. Father's housing is
similar to a rooming house. (N.T. 1/17/17, pg. 16; N.T. 3/15/17, pgs. 5-6, 10-12, 15, 17-19).
Father currently has bi-weekly supervised visits at the agency. Father has not visited with the
Child since August 2016. Father admitted that he missed some visits. Father claimed to have
visited the Child last in October 2016, shortly after which Father claimed that Mother informed
him that he was not allowed to visit the Child anymore. Father did not reach out to CUA or his
attorney to determine if his visits were in fact suspended. Father claimed that he did not reach out
of his case in criminal court; Father is currently on probation for a burglary
to the court because
charge. Father was incarcerated for a period oftime. Additionally, Father has not attended any of
the Child's medical appointments. (N.T. 1/17/17, pgs. 16, 19; N.T. 3/15/17, pgs. 13-14, 19-21).
Over the six months prior to the filing of the petition, Father failed to perform his parental duties
by his consistent failure to successfully complete all of his SCP objectives. Father's inability to
perform his parental duties is not limited to the six month period but extends throughout the life
of the case. The Child has been in care for a total of sixteen months. This is the third time in care
for the Child. Father has an affirmative duty to place himself in a parenting position and has been
given ample opportunity to do so throughout the life of the case. Father evidenced a settled purpose
of relinquishing parental claim to the Child by failing and refusing to perform his parental duties.
Since these facts were demonstrated by clear and convincing evidence, the trial court did not err
or abuse its discretion in terminating Father's parental rights under this section.
The trial court also terminated Father's parental rights under 23 Pa. C. S. A. §2511(a)(2). This
section of the Adoption Act includes, as a ground for involuntary termination of parental rights,
the repeated and continued incapacity, abuse, neglect, or refusal of the parent that causes 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
Page 9 of 17
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p
will not be remedied by the parent. This ground is not limited to affirmative misconduct. It may
include acts of refusal to perform parental duties, but focuses more specifically on the needs of the
child. Adoption of C.A. W, 683 A.2d 911, 914 (Pa. Super. 1996).
Child was taken into DFIS custody because Father was unable to provide essential parental care:
Father was suspected of using drugs in the home and, on more than one occasion, the Child was
left without adequate supervision. Father was unable to remedy the causes of his repeated and
continued incapacity to provide the Child with essential parental care, control, or subsistence
necessary for the Child's physical and mental well-being. Father did not successfully complete
any of his SCP objectives. (N.T. 1/17/17, pgs. 10-11, 15-16). Father did not keep in contact with
CUA; CUA was unable to reach or find Father. CUA testified that he last had contact with Father
in August 2016, when he provided Father with the date and time for his scheduled PCE. Father
was aware that he had to complete the PCE, but still did not do so. (N.T. 1/17/17, pgs. 7, 11, 15-
16). Father did not comply with his court -ordered drug screens at the CEU since the last court
date. While Father claimed that he went for a drug screen on his own at the CEU in January 2017,
the CEU's most recent report listed October 2016 as the latest drug screen, upon which Father
tested negative with traces of cocaine. Father admitted that he has not completed a drug and
alcohol assessment. Father did not engage in drug and alcohol or mental health treatment at any
point during the life of the case. (N.T. 1/17/17, pgs. 7-8, 15-16; N.T. 3/15/17, pgs. 6-9). Father
does not have suitable housing, as CUA has not been able to assess Father's home. A review of
the record shows that Father was referred to ARC for services. Father testified that he is living in
a two -bedroom home with his paramour and another child. Father recently moved to a new
residence; an apartment in the first floor of a house. Father claims that both his current and
previous homes were stable and appropriate. Father only provided information regarding his
paramour and other child to CUA for clearances, claiming each apartment is individually locked.
Father's house is similar to a rooming house. While CUA was ordered to assess Father's home,
Father admitted that he did not schedule an assessment. (N.T. 1/17/17, pg. 16; N.T. 3/15/17, pgs.
5-6, 10-12, 15, 17-19). Father has bi-weekly supervised visits at the agency. Father claims to have
last visited with Child in October 2016, while CUA's records show August 2016 as the last time
he visited. Father testified that Mother informed him that he was not allowed to see the Child
anymore after the October visit. Father admitted that he did not reach out to the court for
verification of the frequency of his visits because of his case in criminal court; Father is currently
Page 10 of 17
I I
1 1
on probation for a burglary charge. Father was in jail for a period of time. Father admitted that
he missed some of the visits. Father did not ask for additional visits at any time during the
life of
the case. Father does not attend any of the Child's medical appointments. (N.T. 1/17/17, pgs. 16-
17, 19; N.T. 3/15/17, pgs. 13-14, 19-21). Father failed to take affirmative steps to place
himself
in a position to parent the Child. Father was unable to remedy the causes of his incapacities to
meet the Child's safety and medical needs. The Child needs permanency, which Father cannot
provide. The Child has been in care three different times due to Father's inability to parent and
provide safety. Father is not able to take immediate custody of the Child. DHS met its burden
under §2511(a)(2) of the Adoption Act and termination under this section was also proper.
Father also appealed the trial court's termination of parental rights under 23 Pa. C. S. A.
§2511(a)(5), which permits termination when a child was removed, by court or voluntary
agreement, and placed with an agency if, for at least six months, the conditions which led to the
placement of the child continue to exist, the parent cannot or will not remedy those conditions
within a reasonable period of time, the services reasonably available to the parent are not likely to
remedy the conditions leading to placement, and termination best serves the child's needs and
welfare. DHS, as a child and youth agency, cannot be required to extend services beyond a period
of time deemed reasonable by the legislature or be subjected to herculean efforts. A child's life
cannot be put on hold in hope that the parent will summon the ability to handle the responsibilities
of parenting. In re J. T. 817 A.2d 509 (Pa. Super. 2001). As a consequence, Pennsylvania's
Superior Court has recognized that a child's needs and welfare require agencies to work toward
termination of parental rights when a child has been placed in foster care beyond reasonable
temporal limits and after reasonable efforts have been made by the agency, which have been
ineffective. This process should be completed within eighteen months. In re N.W, 851 A.2d 508(Pa. Super. 2004).
The Child in this case has been in DHS custody for a total of sixteen months; this is the Child's
third time in care. The family has been known to DHS since March 2011. The Child was placed
in care because Father was unable parent. Father failed to successfully complete any of his SCP
objectives. (N.T. 1/17/17, pgs. 10-11, 15-16). Father did not keep in contact with CUA. CUA
testified that his last contact with Father was in August 2016 when he provided Father, in person,
with the date and time for his scheduled PCE. Father was aware of his PCE objective, but still did
Page 11 of 17
1 1
not complete the PCE. (N.T. 1/17/17, pgs. 7, 11, 15-16). Father did not appear for his court -
ordered drug screens at the CEU since the last court date. Father claimed that he was never called
to appear for randoms so he went on his own to the CEU for a drug screen in January 2017. Father
admitted that he did not receive the results of that drug screen. The most recent November 2016
CEU report indicates Father's last drug screen to be in October 2016, which showed that Father
tested negative with traces of cocaine. Father admitted that he did not complete a dual diagnosis
drug and alcohol assessment. Father did not engage in drug and alcohol or mental health treatment
at any point during the life of the case. (N.T. 1/17/17, pgs. 7-8, 15-16; N.T. 3/15/17, pgs. 6-9).
Father does not have suitable housing. A review of the record shows that Father was referred to
ARC for services. Father testified that he is living in a two -bedroom home with his paramour and
another child. Father recently moved to a different address which is an apartment in a house,
which is similar to a rooming house. Father did not provide information for the other tenants in
the house to CUA for clearances; he only provided information for his paramour and the other
child. Father claims that both his previous and current residences are stable and suitable housing.
CUA was previously ordered to assess the home, but Father admitted that he did not schedule an
assessment. (N.T. 1/17/17, pg. 16; N.T. 3/15/17, pgs. 5-6, 10-12, 15, 17-19). Father currently has
bi-weekly supervised visits at the agency. Father has not been visiting the Child and claims that
he last visited with the Child in October 2016, while CUA's records have Father's last visit in
August 2016. Father testified that Mother informed him, after the visit in October 2016, that he
was not allowed to see the Child anymore. Father admitted that he did not reach out to the court,
his attorney, or CUA for verification of the frequency of his visits because of his court case in
criminal court; Father is currently on probation. Father had been in jail for a period of time. Father
admitted that he missed some visits prior October 2016. Father has not attended any of the Child's
medical appointments. (N.T. 1/17/17, pgs. 16, 19; N.T. 3/15/17, pgs. 13-14, 19-21). The trial
court heard testimony that adoption would be in the best interests of the Child. (N.T. 1/17/17. pg.
17). Father was given ample time to place himself in a position to parent the Child. The Child
cannot wait for Father to decide when to be a parent. This is the third time that the Child is in
DHS care. The conditions which led to the placement of the Child continue to exist, and Father
cannot and will not remedy them within a reasonable amount of time. At all review hearings, the
trial court found reasonable efforts on the part of DHS. As a result, the trial court found that
termination of Father's parental rights would be in the best interest of the Child's physical,
Page 12 of 17
on the basis
intellectual. moral, and emotional well-being. The trial court made this determination
of clear and convincing evidence, so termination under this section was proper.
which
The trial court also terminated Father's parental rights under 23 Pa. C. S. A. §2511(a)(8),
permits termination when:
The child has been removed from the care of the parent by the court or under a voluntary
agreement with an agency, 12 months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or placement of the child continue to
exist and termination of parental rights would best serve the needs and welfare of the child.
This section does not require the court to evaluate a parent's willingness or ability to remedy the
conditions which initially caused placement or the availability or efficacy of DHS services offered
to the parent, only the present state of the conditions. In re: Adoption ofK.I, 938 A.2d 1128, 1133
(Pa. Super. 2009). The party seeking termination must also prove by clear and convincing
evidence that the termination is in the best interest of the child. The best interest of the child is
determined after consideration of the needs and welfare of the child such as love and comfort,
security and stability. In re Bowman, A.2d 217 (Pa. Super. 1994). See also In re -AtIoption of
T.T. B. , 835 A.2d 387, 397 (Pa. Super. 2003).
The Child in this case has been in care for a total of sixteen months because Father was unable to
parent; this is his third time in care. Father has not successfully completed any of his SCP
objectives and has not placed himself in a position to parent the Child. Father's outstanding
objectives were to attend drug and alcohol treatment; to attend mental health treatment; to complete
a PCE; to obtain appropriate housing; and to consistently attend his supervised visits with the
Child. Father was noncompliant with his SCP objectives. (N.T. 1/17/17, pgs. 10-11, 15-16).
Father did not keep in contact with CUA; CUA testified that he last had contact with Father in
August 2016, when he provided Father the date and time, in person, for his scheduled PCE. Father
was aware of the PCE he had to complete. but still did not complete it. (N.T. 1/17/17. pgs. 7, 11,
15-16). Father did not comply with his court-ordered drug screens at the CEU since the last court
date. Father claimed he was not called for any randoms so he went to the CEU on his own and
took a drug test in January 2017. The most recent generated CEU report has Father's last drug
screen listed in October 2016, which showed that Father tested negative with traces of cocaine..
Father admitted that he did not complete a drug and alcohol assessment or engage in mental health
Page 13 of 17
IIr
treatment. Father also did not engage in drug and alcohol treatment. (N.T. 1/17/17, pgs. 7-8, 15-
16; N.T. 3/15/17, pgs. 6-9). Father does not have appropriate housing; CUA
has not been able to
assess Father's home. Father has not made any appointments or reached out to CUA. A review
of the record reflects that Father was referred to ARC for services. Father testified that he is
currently living in a two -bedroom home with his paramour and another child; Father recently
moved to a new address which is an apartment in a house, similar to a boarding house. Father only
provided CUA with information regarding his paramour and other child for clearances, rather than
the other tenants in the house. Father claims that both his current and previous homes were stable
and appropriate. Father claimed that CUA was ordered to assess the home, but admitted that a
home assessment was never scheduled. (N.T. 1/17/17, pg. 16; N.T. 3/15/17, pgs. 5-6. 10-12, 15,
17-19). Father currently has bi-weekly supervised visits at the agency, but has not been visiting
with the Child. Father claims to have last visited with the Child in October 2016, but CUA's
records show Father's last visit to be in August 2016. Father claimed that Mother informed him,
after the visit in October 2016, that he was not allowed to visit with the Child anymore. Father
admitted that he did not verify the frequency of his visits with the court because of his case in
criminal court; Father is currently on probation for a burglary charge. Father was incarcerated for
a period of time. Father admitted that he missed some of the visits. Father has failed to keep
consistent contact with the Child. Additionally, Father does not attend any of the Child's medical
appointments. (N.T. 1/17/17, pgs. 16, 19; N.T. 3/15/17, pgs. 13-14, 19-21). Child has been in and
out of care for about five years, with a total of sixteen months in care at present. and needs
permanency. Child is currently placed with a foster parent who takes care of all of his needs. The
Child is doing well in school and is up to date with medical, dental, and vision. The foster parent
and the Child have a very caring and loving relationship. The trial court heard testimony that
adoption is in the Child's best interest. (NA'. 1/17/17, pg. 17). The conditions that led to the
Child's removal from Father's care continue to exist as he failed to successfully complete any of
his SCP objectives. The testimony of the DNS witness was credible. Father is not ready, at the
time of the termination trial, to parent the Child. As the record contains clear and convincing
evidence that termination was in the best interests of the Child, the trial court did not abuse its
discretion and termination under this section was also proper.
After a finding of any grounds for termination under section (a), the court must, under 23 Pa.
C.
S. A. §2511(b), also consider what - if any - bond exists between parent and child.
In re
Page 14 of 17
Involuntary Termination of C.W.S.M. and KA.L.M., 839 A.2d 410, 415 (Pa. Super. 2003). The
trial court must examine the status of the bond to determine whether its termination "would destroy
an existing, necessary and beneficial relationship." In re Adoption of T.B.B., 835 A.2d 387, 397
(Pa. Super. 2003). In assessing the parental bond, the trial court is permitted to rely upon the
observations and evaluations of social workers. In re KZ.S., 946 A.2d 753, 762-763 (Pa. Super.
2008). 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 depends on the
circumstances of the particular case. Id. At 762-763. However under 23 Pa. C. S. A. §2511(b),
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, if found to be beyond the control
of the parent.
Father currently has bi-weekly visits with the Child, but he has not been visiting with the Child.
Father claims his last visit with the Child was in October 2016, but CUA's records showed his last
visit to be in August 2016. Father testified that Mother informed him that he was not allowed to
visit, but he did not verify the frequency of his visits with the court, his attorney, or CUA. Father
admitted to missing some of his visits with the Child prior to speaking with Mother. Father did
not ask for additional visits with the Child at any point during the life of the case. The Child does
not ask about Father. The Child is in a safe, permanent, and pre -adoptive home with a foster parent
who takes care of all of his needs. The Child has a very caring and loving relationship with the
foster parent and is bonded to her. The Child reported feeling safe and comfortable with the foster
parent. The Child has an [EP and receives mobile therapy. The Child is in first grade and doing
very well, with a little trouble in mathematics. CUA testified that the Child would not suffer
irreparable harm if Father's parental rights were terminated and that adoption is in the Child's best
interests. (N.T. 1/17/17, pgs. 6, 16-19; N.T. 3/15/17, pgs. 13-14, 19-21). The DHS witness was
credible. Consequently, the trial court did not err or abuse its discretion when it found, by clear
and convincing evidence, that therc was no parental bond between Father and Child and that
termination of Father's parental rights would not destroy any existing beneficial relationship.
Father also alleges that the court erred in changing Child's permanency goal from reunification to
adoption. In a change of goal proceeding, the child's best interest must be the focus of the trial
court's determination. The child's safety and health are paramount considerations. In re A.H..
Page 15 of 17
763 A.2d 873 (Pa. Super. 2000). Pennsylvania's Juvenile Act recognizes family
preservation as
2008). As
one of its primary purposes. In the Interest of R.P. a Minor, 957 A.2d 1205 (Pa. Super.
a result, welfare agenCies must make efforts to reunify the biological parents with their
child.
in an
Nonetheless, if those efforts fail, the agency must redirect its efforts toward placing the child
adoptive home. Agencies are not required to provide services indefinitely when a parent is
2001).
unwilling or unable to apply instructions received. In re R. T., 778 A.2d 670 (Pa. Super.
The trial court should consider the best interest of the child as it exists presently, rather than the
facts at the time of the original petition.
Father is not currently ready to parent the Child. At the time of the termination trial. Father had
not successfully completed any of his SCP objectives. Father did not keep in contact with CUA.
CUA testified that he has not had contact with Father since August 2016 when he provided Father,
in person, the date and time for his scheduled PCE. Father was aware that he had to complete a
PCE, but still did not do so. (N.T. 1/17/17, pgs. 7, 10-11, 15-16). Father was not compliant with
his court -ordered drug screens since the last court date. Father claimed that no one called him for
his random drug screens, so he went to the CEU on his own for a drug screen in January 2017.
Father admitted that he did not receive the results for that drug screen. The most recent CEU report
listed an October 2016 drug screen as Father's latest, which showed that Father tested negative
with traces of cocaine. Father admitted that he did not complete a drug and alcohol assessment.
Father did not engage in drug and alcohol or mental health treatment at any point in the case. (N.T.
1/17/17, pgs. 7-8, 15-16; N.T. 3/15/17, pgs. 6-9). Father does not have suitable housing. A review
of the record shows that Father was referred to ARC for services. Father testified that he recently
moved to a new address with his paramour and other child; a two bedroom home in an apartment
that is part of a house. Father lives in a rooming/boarding house. Father provided CUA with the
information for his paramour and another child for clearances, but did not provide any information
for the other tenants in the house. Father claimed that both his current and previous homes were
stable and appropriate. CUA was previously ordered to assess Father's home, but Father admitted
that a home assessment was never scheduled. Father has not made himself available for the home
assessment. (N.T. 1/17/17, pg. 16; N.T. 3/15/17, pgs. 5-6, 10-12, 15, 17-19). Father currently has
1,i-weekly visits with the Child, but has not been attending visits. Father claims
his last visit with
the Child was in October 2016, but the CUA records show Father's last visit to be in August 2016.
Father testified the Mother informed him, shortly after the visit in October 2016, that he was no
Page 16 of 17
longer allowed to visit with the Child. Father admitted that he did not verify the frequency of his
visits with the court, his attorney, or CUA because of his case in criminal court; Father is currently
on probation for a burglary charge. Father had been previously incarcerated. Father admitted to
missing some visits in the past. Father has not attended any of the Child's medical appointments.
(N.T. 1/17/17, pgs. 16, 19; N.T. 3/15/17, pgs. 13-14, 19-21). Child is in a safe and permanent
home. The Child is doing well in the foster home. All of his medical and educational needs are
being met by the foster parent. The Child and the foster parent have a very caring and loving
relationship. The trial court heard testimony that adoption is the Child's best interests. (N.T.
1/17/17, pg. 17). The Child needs permanency, which Father cannot provide at this time. The
DHS witness was credible. The record established by clear and convincing evidence that the
change of permanency goal from reunification to adoption was proper. The trial court did not err
or abuse its discretion when it changed the goal to adoption.
Conclusion:
I I
For the aforementioned reasons, the court properly found that DIIS met its statutory burden by
clear and convincing evidence regarding termination of Father's parental rights pursuant to 23 Pa.
C. S. A. §2511 (a)(1), (2), (5), (8) and (b) since it would best serve Child's emotional needs and
welfare. The court also properly found that changing the Child's permanency goal from
reunification to adoption was in Child's best interest. The trial court's termination of Father's
parental rights and change of goal to adoption were proper and should be affirmed.
By the court,
ibseph Fernandes, J.
Page 17 of 17