In the Interest of: M.B. Appeal of: C.B.

J-S14002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.B., FATHER :
:
:
:
: No. 3112 EDA 2018
Appeal from the Order Entered September 19, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at
No(s): 36 O.C.A. 2018,
42-DP-2017, FID: 45-FN-25-2015
*****
IN THE INTEREST OF: N.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.B., FATHER :
:
:
:
: No. 3113 EDA 2018
Appeal from the Order Entered September 19, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at
No(s): 34 O.C.A. 2018,
40 DP 2015, 45-FN-25-2015
*****
IN THE INTEREST OF: B.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.B., FATHER :
:
:
:
: No. 3114 EDA 2018
J-S14002-19
Appeal from the Order Entered September 19, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at
No(s): 37 O.C.A. 2018,
39 DP 2015, 45-FN-25-2015
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 23, 2019
C.B. (Father) appeals1 from the trial court’s orders involuntarily
terminating his parental rights to his three minor children, B.B. (born 3/2011),
____________________________________________
1In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme
Court recently held:
[I]n future cases [Pa.R.A.P.] 341(a) will, in accordance with it
Official Note, require that when a single order resolves issues
arising on more than one lower court docket, separate
notices of appeal must be filed. The failure to do so will result in
quashal of the appeal.
Id. at 977 (emphasis added). Here, Father filed one notice of appeal for each
Child. Each notice of appeal contains two docket numbers, one from the
dependency (goal change) matter and the other from the adoption
(termination) matter in each Child’s case. However, the order from which
Father appeals, entered on September 19, 2018, only lists the adoption docket
number for each Child (36 O.C.A. 2018; 34 O.C.A. 2018; and 37 O.C.A. 2018)
and resolves only the issue regarding the termination of Father’s parental
rights to Children. As part of the termination process, the order also permits
the adoption of Child to proceed without Father’s consent and transfers
custody of Children to CYS. Id. at 2. The order does not resolve any issues
with regard to dependency. Therefore, because the orders do not resolve
issues arising from anything but the lower court’s adoption dockets, i.e.,
issues relating to terminating parental rights, we need not quash the appeal
under Walker.
* Retired Senior Judge assigned to the Superior Court.
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N.B. (born 3/2014), and M.B. (born 2/2016) (collectively, “Children”). After
careful review, we affirm.
Monroe County Children and Youth Services (CYS) first became involved
with Father’s family in April 2015 when the agency became aware that Father
was selling cocaine and heroin out of the family home. On May 1, 2015, B.B.
and N.B.2 were adjudicated dependent and placed into foster care. In early
2016, dependency was terminated and B.B. and N.B. returned to live at home
with Mother and Father;3 Father, however, was incarcerated months later on
firearms and drug charges. In April 2017, CYS received a referral that
Children’s youngest sibling, six-week old “Baby M.B.2,”4 had been hospitalized
with two skull fractures, a brain bleed, a fractured cheekbone, and a broken
nose. The court entered an emergency protective custody order for Children
and they were placed into agency custody and put back into foster care. At
that time, Paternal Grandmother (Grandmother) requested to be a placement
resource for Children, however she reported having some health concerns,
told the agency that she does not drive, and stated that she would call the
caseworkers later to determine if she wanted to be a resource. Mother was
arrested on April 30, 2017, and charged with attempted homicide, aggravated
____________________________________________
2 M.B. had not yet been born.
3 Mother is not involved in the current appeal.
4 Baby M.B.2 is not involved in the current appeal.
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assault, and endangering the welfare of a child.5 Grandmother contacted the
agency on May 1, 2017, again indicating that she wished to be a placement
resource.
In September 2017, the court suspended Mother’s and Father’s
visitation with Children and changed the goal to adoption, with a concurrent
goal of placement with a legal custodian (relative). Foster mother’s daughter
and son-in-law6 have been approved as adoptive resources for Children. On
April 23, 2018, Grandmother indicated that she did not want to be a resource
for Baby M.B.2 due to his significant medical issues; however, Grandmother
stated that she still wanted to be an adoptive resource for Children, who are
the subject of the current termination matter.
On June 4, 2018, CYS filed a petition to involuntarily terminate Father’s
parental rights to Children. On September 18, 2018, the court held a
termination hearing. Mother, Father, Grandmother, Paternal Aunt, CYS
Caseworker Melissa Daubert, attorney Brandie Belanger, and guardian ad
____________________________________________
5 Mother was sentenced to 4-8 years’ incarceration, with a two-year
probationary tail. Additionally, in September 2017, the court entered an order
finding aggravating circumstances existed with regard to Mother as the
perpetrator of abuse toward M.B.2.
6 Foster mother’s daughter and son-in-law regularly visit with Children at the
foster home, are very involved with Children, and vacation with Children and
foster parents.
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litem Barbara Fitzgerald7 testified at the proceeding. At the time of the
termination hearing, Children had been living with foster parents for 17
months.8 Caseworker Daubert testified that Mother and Father, who were
incarcerated at the time of the termination hearing, are not ready, willing or
able to take care of Children, that Children are in need of permanency, and
that it is in Children’s best interest to have Father’s parental rights terminated.
N.T. Termination Hearing, 9/18/18, at 45-46. Caseworker Daubert testified
that the only service plan objective that Father had completed was a “Read to
Your Child” program in prison. Id. at 87. Daubert also testified that B.B. told
her that Father used to hit Mother and that he remembers his parents fighting.
At the time of the termination hearing, an Interstate Custody Placement
Compact (ICPC)9 from New Jersey, Grandmother’s home state, was still
____________________________________________
7 Each child was represented by guardian ad litem, Barbara Fitzgerald, and
attorney, Brandie Belanger, Esquire, at the termination hearing. See 23
Pa.C.S. § 2313(a) (children have statutory right to counsel in contested
involuntary termination proceedings) and In re K.R., 2018 Pa. Super. 334 (Pa.
Super. filed Dec. 10, 2018) (en banc), but see In Re: T.S., E.S., 2018 Pa.
LEXIS 4374, 2018 WL 4001825, at *10 (Pa. filed Aug. 22, 2018) (“[D]uring
contested termination-of-parental-rights proceedings, where there is no
conflict between a child’s legal and best interests, an attorney-guardian ad
litem representing the child’s best interests can also represent the child’s legal
interests.”).
8 Baby M.B.2 has been placed with a separate foster family since his release
from the hospital. The family is a pre-adoptive placement for him.
9 See 62 P.S. § 761. The ICPC is an agreement among the states, the District
of Columbia and the Virgin Islands to cooperate with each other in the
interstate placement of children. See id. at Article I (“(a) Each child requiring
placement shall receive the maximum opportunity to be placed in a suitable
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pending. Id. at 63. However, in January 2018, an initial, preliminary
evaluation and recommendation indicated that Grandmother would be a good
resource for Children. Id. at 76. Caseworker Daubert noted that that
recommendation did not include a home visit with Grandmother, an
assessment as to whether there was a bond between Grandmother and
Children, or a determination as to whether placement with Grandmother was
appropriate based upon concerns about Grandmother’s health history.
Grandmother testified that in January 2018 she was hospitalized for heart
failure due to a medication issue, id. at 97, and that in July 2018, Paternal
Aunt moved in with her to help her cook and clean. Id. at 108. Children’s
guardian ad litem testified that Grandmother had never called CYS to set up
a visit with Children or to check in on the Children, and had only attended one
placement hearing. Id. at 85.
Grandmother, on the other hand, testified that she called foster mother
to speak to Children and that foster mother would not answer her phone. Id.
at 100. Grandmother also testified that she called CYS four or five times and
was able to speak to Children on two of those occasions. Id. Grandmother
testified that she has been preparing for Children to live with her for over a
____________________________________________
environment and with persons or institutions having appropriate qualifications
and facilities to provide a necessary and desirable degree and type of care.”).
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year and had attended foster parent classes.10 Id. at 103-104. At the time
of the hearing, Grandmother was not aware of Baby M.B.2’s medical condition
and the extent of his medical needs, id. at 101; when Grandmother heard
testimony about the baby’s extensive medical condition, she told the court
that she would not be able to care for him. Id. at 102. Grandmother also
testified that Children lived with her when Mother was pregnant with M.B. until
two months after M.B. was born, in April 2016. Id. at 111.
Father, who was still incarcerated at the time of the termination hearing,
testified that his minimum date of release from incarceration is August 2021,11
although he had an appeal pending. Id. at 129. He testified that while he
currently is unable to care for Children, he would like Children to be with his
mother and sister (Grandmother and Paternal Aunt) while he is incarcerated.
Id. at 120. Father testified that he loves his Children, wants to see them, and
wants his visitation rights reinstated. Id. at 135. At the time of the hearing,
Father had not seen Children in over a year. Id. Father also testified that he
called foster mother weekly to talk to Children but that she either did not have
____________________________________________
10 Paternal Aunt also was a foster parent with custody of two of her other
nieces and nephews in 2005-2006. N.T. Termination Hearing, 9/18/18, at
118.
11 In August, a caseworker met with Father in jail. Father was on the waiting
list for drug and alcohol and parenting classes. Father also reported that he
did not believe Mother inflicted the injuries on Baby M.B.2. Rather, he told
CYS caseworkers that he believed either M.B. or B.B. inflicted the injuries on
their baby brother. Father was not permitted to visit with Children at the
prison at that time due to prison unit restrictions.
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her phone in her possession or she told him that the Children were in bed.
Id. at 142.
Children’s attorney testified that she met with B.B. and N.B., who
indicated that they did not want to live with Father. Id. at 144. Both children
recall Father being abusive when the family lived together. The oldest of the
Children, B.B., who was seven-and-one-half years old at the time of the
meeting, did not remember Grandmother. Attorney Belanger concluded that
there was no bond between Grandmother and Children. Id. at 145-46.
Following the hearing, the court entered an order involuntarily
terminating Father’s parental rights to Children pursuant to sections
2511(a)(1), (2), (8), and (b) of the Adoption Act.12 Father filed a timely notice
of appeal and concurrent Pa.R.A.P. 1925(a)(2)(i) concise statement of errors
complained of on appeal. He raises one issue for our consideration:
Whether the [l]ower [c]ourt erred by terminating Father’s
[p]arental [r]ights . . . where Monroe County Children and Youth
Services failed to make reasonable efforts towards reunification
with [P]aternal [G]randmother despite Father’s clear and settled
purpose to have his mother/family care for his children, and
despite a lack of clear convincing evidence that termination best
served the children’s needs and welfare?
Appellant’s Brief, at 14.
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. The standard of clear and convincing evidence is defined
____________________________________________
12 23 Pa.C.S. §§ 2101-2910.
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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 re 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)). Moreover, the fact
that a parent is incarcerated neither compels nor precludes termination.
Rather, it is a factor, and indeed can be a determinative factor, in a court’s
conclusion that grounds for termination exist under section 2511(a)(2), where
the repeated and continued incapacity of a parent due to incarceration has
caused the child to be without essential parental care, control or subsistence
and that the causes of the incapacity cannot or will not be remedied. See In
re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).
After a comprehensive review of the certified record, the parties’ briefs
on appeal, and relevant case law, we have concluded that the trial court
adequately disposes of Father’s issue on appeal. We, therefore, rely upon the
well-written opinion, authored by the Honorable Jonathan Mark, to affirm the
order involuntarily terminating Father’s parental rights to Children pursuant
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to 23 Pa.C.S. §§ 2511(a)(2) and (b). See Trial Court Opinion, 12/4/18, at
22-28 (termination proper where court found: Father has been incarcerated
since Children were adjudicated dependent and placed in CYS’ care in April
2017; Father not eligible for parole until at least August 2021; Father had not
seen Children in over one year at the time of termination hearing; Father has
not used available resources and taken affirmative steps to support parent-
child relationship while incarcerated; Father has failed to perform parental
duties for almost two years and lacked capacity to parent Children prior to
incarceration; Father has only made handful of calls to talk to Children and
has written single card to each Child; Father has never promoted Children’s
mental, physical, spiritual or emotional well-being; Father was selling drugs
out of family home during brief time he lived with B.B. and N.B.; Children do
not want to live with Father; little to no bond exists between Father and
Children; any apparent bond between Father and oldest Child, B.B., is not
healthy; Children are bonded with foster family; foster mother’s daughter and
son-in-law are adoptive resource for Children; termination of Father’s parental
rights would be in Children’s best interests; CYS need not make reasonable
efforts to reunify Children with grandparent under 23 Pa.C.S. §§ 2511(a)(2)
and (8); Grandmother had not yet been approved as kinship resource at time
of hearing; and no evidence of bond between Grandmother and Children).
Thus, we conclude, based on competent evidence in the record, the trial
court’s decision to involuntarily terminate Father’s parental rights was neither
an abuse of discretion nor an error of law. In re A.R., supra. We direct the
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parties to attach a copy of Judge Mark’s opinion in the event of further
proceedings in the matter.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/19
- 11 -
Circulated 04/01/2019 12: 9 PM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
JUVENILE COURT DIVISION
N THE INTEREST OF
.B., a minor 34 OCA 2018
42 DP 2017
Appeal No. 3112 EDA 2018
IN THE INTEREST OF
N.B., a minor 38 OCA 2018 '
40 DP 2015
Appeal No. 3113 EDA 2018
IN THE INTEREST OF
B.B., a minor 37 OCA 2018
39 DP 2015
Appeal No. 3114 EDA 2018
OPINION PURSUANT TO Pa..R.A.P. 1925(a)
C.B. ("Father) -has -appealed -our -September 19, 2018 decrees that terminated
his parental rights to his children, B.B., age seven, N.B., age four, and M.B., age two
(collectively the "Children").1 Father has complied with the Children's Fast Track rules
by- filing a Rule 1925(b) statement with his notices of appeal. We now issue this
opinion pursuant to Pa.R.A.P. 1925(a).
Background
The challenged decrees were issued after a consolidated hearing convened on
September 18, 2018 on the petitions of Monroe County Children and Youth Services
("CYS" or the "Agency") for termination of Fathers parental rights ("TPR") as to all
three of the Children. From the evidence presented at hearing and the records and
I The parental rights of Children's mother were also terminated. Mother did not appeal the termination decrees.
3.
files of this Court in the dependency and other proceedings involving family members,
the facts may be summarized as follows:
The family first came to the attention of Monroe County Children and Youth
Services ("CYS" or the "Agency') in April 2015 when Father was caught selling heroin
and cocaine out of their home. The ensuing investigation revealed that the Children's
mother ('Mother") was aware of Father's activities. As a result:
On April 23, 2015, emergency protective custody of B.B. and N.B., the two
Children who had been born as of that time, was taken. On May 1, 2015, B.B. and
N.B. were adjudicated dependent. Both were placed in foster care. Neither parent
appealed the dependency adjudications.
B.B. and N.B. remained dependent and in care until June 30, 2016, at which
time dependency was terminated and legal and physical custody of both of the
Children was returned to Father and Mother. In February of 2016, during the time that
B.B. and N.B. were dependent, M.B. was born.
Also as a direct result of Fathers drug trafficking activities, Father, who has a
an extensive prior criminal record including a conviction for aggravated assault and
prior drug crimes, was arrested and charged in two separate cases with drug
trafficking and firearms offenses. Father was incarcerated when B.B. and N.B. were
adjudicated dependent. He was released on bail on July 1, 2015. In October of 2015,
Father pled guilty in both cases. However, his sentencing hearing was continued
several times. As a result, Father was free on bail when M.B. was born and at the time
B.B. and N.B.'s dependencies were terminated.
On October 11, 2016, Father was sentenced tt
5 10 years' incarceration in a
2
for the RRRI program due to
state correctional facility. Father was deemed ineligible
for parole until, at the earliest,
his prior aggravated assault conviction. He is not eligible
August of 2021.
was born.2 Due to Father's
On March 3, 2017, Father's youngest child, M.B.2.,
incarceration, M.B. 2 has never been in Father's care.
The family returned to the attention of CYS in April
of 2017 when M.B.2 was
fractures and a brain bleed, from
hospitalized with serious injuries, including two skull
have to live with throughout the
which he continues to suffer today and will likely
the oldest child, far causing the
remainder of his life. At first, Mother blamed B.B.,
actually Mother who harmed
injuries. However, investigation revealed that it was
M.B.2.
with Attempted Homicide,
As a result, Mother was arrested and charged
M.B.2. Mother has been incarcerated
Aggravated Assault, and related charges against
to Aggravated Assault and was
ever since. Mother ultimately pled nolo contendere
sentenced t 4 to S years' incarceration, followed by two years of
probation
to suffer, and because
Also as a result of the injuries Mother caused M.B.2
had acted inappropriately as
additional referrals and investigation revealed that Mother
to all of her children, emergency protective
custody of the Children and M.B.2 was
care ever since.
taken. The Children have been continuously in
custody was continued. On
After a shelter care hearing, emergency protective
we will use the designation "M.B.2" to identify and refer
to
Since there are two Children with the initials "M.B.,"
also sought termination of the parental rights of both
2 Father
the youngest child. In the instant proceedings, CYS
as to M.B.2. Similarly, neither parent appealed the
and Mother as to M.B.2. Neither parent contested termination
decree that terminated their parental rights to M.B2.
did not contest the terminations and did not appeal
3
Her plea and sentence are no doubt the reasons why Mother
the termination decrees.
3
May 15, 2017, the Children and M.B.2 were adjudicated dependent - the second
dependency adjudication for B.B. and N.B. Father did not challenge or appeal the
dependency adjudications. The Children and M.B.2 have been dependent since that
time.
Since the adjudications, regular permanency and placement review hearings
have been held in the Children's dependency proceedings. After each hearing, the
dependencies have been continued.
In addition, early in the fall of 2017, GYS sought a finding of Aggravated
Circumstances against Mother as well as suspension of visitation for both parents. On
September 27, 2017, Aggravated Circumstances were found as to Mother and the
Agency was relieved of the bligation to provide reunification services as to her. After
additional hearings, we issued an order suspending visitation as to both parents.
Further, the goal f the Children's dependency cases was changed t Adoption.
Father did not appeal the suspension of visitation or the goal change_
In April f 2018, CYS sent Father a letter notifying him that the Agency would
be filing for termination of parental rights. Father did not specifically respond.
On July 27, 2018, CYS filed the instant TPR petitions. The Agency als filed
petitions in the underlying dependency proceedings asking this Court to conduct
simultaneous permanency review hearings.
At that point, the Children had been in the care of persons other than their
parents for 15 months. Further, Father had been incarcerated for 21 months.
In this regard, this case is marked by Father's criminal behaviors and resulting
incarceration. Father was incarcerated for two months in 2015 while B.B. and N.B.
4
of his
were dependent. M.B. was born after pled guilty and was awaiting imposition
current sentence. M.B.2 was born while Father was in prison. The Children
are
long state
currently in care in part because Father had been incarcerated on a
sentence at the time Mother injured M.B.2, as a result of which no parent was
during B.B.
available to care for them. In all, Father was incarcerated for two months
and N.B.'s initial dependency proceedings and for a total of 23 months leading up to
of
the termination hearing. He is not eligible for parole until, at the earliest, August
2021, and does not max out on his sentence until August of 2026.
with him
Father is serving his sentence at SCI Camp Hill. CYS has had contact
and alcohol as well
there. Father indicated that he was on the waiting list to take drug
restrictions of the
as parenting classes. He requested visits; however, due to the
housing unit that he was placed in, as a result of his history and his behaviors, Father
was initially unable to receive visits. As indicated, visits were later suspended,
a
determination that Father did not contest.
year. While the
Father acknowledged that he hasn't seen the Children in over a
lack of physical visitation
suspension of visitation provides an explanation for the
during most of that time, it does not explain why Father has had minimal contact with
he has not otherwise
the Children by phone calls, letters, cards, or other means or why
used available means to remain in communication with them.
He has no specific
At hearing, Father testified about his post release plans.
is able and permitted to do so
home plan other than to come back to this area when he
and to cash -in on a purported promise from a former employer. Father has no support
system here, save for a nineteen year old daughter.
5
From his testimony, the position advanced by his attorney, and his assignments
of error, it appears that Father feels the Children should be placed with his mother
("Paternal Grandmother"), as a sort of place holder for them, until he is released.
However, the record demonstrates that Paternal Grandmother, who lives in New
Jersey, is not currently a suitable or available resource.
Soon after the Children came into care, Paternal Grandmother, with whom the
family had previously lived, expressed her willingness to be a resource for the
Children. However, citing health and transprtation issues, she then equivocated.
Several weeks later, she re -stated her desire to be a resource for all of the Children.
Accordingly, CYS initiated an Interstate Compact on the Placement of Children
("ICPC") request with New Jersey. At the termination hearing, Paternal Grandmother
testified that she would like to be a resource for all, of the Children except for M.B.2,
whose medical needs she did not believe she could handle.
However, the ICPC process has not been completed. Thus, Paternal
Grandmther cannot at this time be a resource. In this regard, although New Jersey
has not yet made a formal determination, CYS has cncerns about Paternal
Grandmother's health and medical issues and their impact on her ability to care for the
Children.
Further, CYS has attempted to arrange visits between Paternal Grandmother
and the Children. However, the attempts were unsuccessful and Paternal
Grandmother has not seen the Children since they came into care.
Along similar lines, Paternal Grandmother has only spoken to the Children by
phone twice since they came into care.
6
Finally, there was little evidence of a bond between the Children and Paternal
Grandmother.
On the ther hand, there was evidence that the Children are bonded with their
foster family. In this regard, the Children had been in the same foster home the entire
time they had been in care. The Children are bonded with their foster mother and,
significantly, have also bonded with their foster mother's biological daughter and her
husband. This familial relationship between the Children and their foster mother's
daughter formed through the daughters' extensive involvement in the Children's lives,
which includes visiting regularly, assisting in the everyday care of the Children,
participating with the Children in family functions, and taking vacations together. As a
result of this relationship, the foster mothers daughter and her husband desire to
adopt the Children. Necessary approvals for the adoption have been obtained.
iscussion
The law that we applied in terminating Father's parental rights is well settled. In
comprehensive summary:
In termination cases, the burden is upon the petitioner, in this case CYS, to
prove by clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid. In re T.O., 949 A.2d 910 (Pa. Super. 2008).
Clear and convincing evidence has been 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 hesitation, of the truth of the precise facts in issue." In re K.Z.S., 946 A.2d
753, 757 (Pa. Super. 2008) (citation omitted). It is well established that a court must
7
examine the individual circumstances of each and every case and consider ail
of
explanations offered by the parent to determine if the evidence in light of the totality
837 A.2d 1247,
the circumstances clearly warrants termination. In re J.L.C. & J.R. C.,
1251 (Pa. Super. 2003).
Act,
Termination of parental rights is controlled by Section 2511 of the Adoption
and
23 Pa. C.S.A. Section 2511. In this case, CYS sought termination of Mother
Father's parental rights on the following grounds:
Section 2511. Grounds for Involuntary Termination
(a) -
General Rule. The rights of a parent in regard t a child
may be terminated after a petition filed any of the following
grounds:
(1) The parents have, for a period of more than six (6) months
prior to the filing of this petition, failed to, perform their
parental duties;
(2) The repeated and continued incapacity, abuse, neglect or
refusal of the parents has caused the child to be without
essential parental care, control or subsistence necessary
for his physical and mental well-being and the conditions
and causes of the inability, abuse, neglect or refusal have
not been remedied by the parents;
* * *
(8) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency,
12 months or more have elapsed from the date of removal
or placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of
the child.
* * *
(b) -
Other considerations The court in terminating the rights
of a parent shall give primary consideration of the
8
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. Section 2511(a)(1), (2), (8), and (b). Satisfaction of any subsection of
Section 2511(a), along with consideration of Section 2511(b), is sufficient far
involuntary termination of parental rights. In re K.z.a, supra; In re R.J.S.. 901 A.2d
502 (Pa. Super. 2006). Accordingly, an appellate court "need only agree with the
orphan's court as to any one subsection of Section 2511(a), as well as Section
2511(b), in' order to affirm." In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), app. den, 863 A.2d 1141 (Pa. 2004). See also In re Adoption of C.J.P., 114
A.3d 1046 (Pa. Super. 2015); In re K.H.B., 107 A.3d 175 (Pa. Super. 2014).
Section 2511 requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only
if the court determines that the parent's conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to
Section 2511(b): determination of the needs and welfare of
the child under the standard of best interests of the child.
One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond
between parent and child, with close attention paid to the
effect on the child of permanently severing any such bond.
9
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). See also In re
Adoption of C.J.P., supra; In re T.D., supra; In re Adoption of R.J.S., supra.
In analyzing the conduct f a parent, the applicable statutory language must be
considered. As the third sentence of Section 2511(b) directs, when subsections (a)(1)
or (8) of Section 2511(a) are cited as the grounds for termination, we may not consider
actions of a parent to remedy the conditions that necessitated the dependent child's
placement which are initiated after the parent receives notice of the filing of the
termination petition. In re Adoption of C.J.P., supra; In re K.Z.S., supra; In re D.W.,
856 A.2d 1231 (Pa. Super. 2004).
Under Section 2511(a)(1), parental rights may be terminated if, for a period of at
least six months, a parent either demonstrates a settled purpose of relinquishing
parental claims to a child or fails to peiform parental duties. In re Adoption of R.J.S.,
supra; In re Adoption of J.M.M., 782 A.2d 1024 (Pa. Super. 2001). As the Superior
Court has explained:
A court may terminate parental rights under Section
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 the six months prior to
the filing of the termination petition. Although it is the six
months immediately preceding the filing of the petition that
is most critical to the analysis, the court must consider the
whole history of a given case and not mechanically apply
the six-month statutory provision.
In re K.Z.S., supra at 758 (Pa. Super. 2008) (case citations and
quotation marks
omitted). See also In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).
The grounds for termination of parental rights under Section 2511(a)(2), due to
parental incapacity that cannot be remedied, are not limited to affirmative misconduct.
10
Rather, those grounds may include acts f refusal as well as incapacity to perform
parental duties.
Parental rights may be terminated pursuant to Section
2511(a)(2) if three conditions are met: (1) repeated and
continued incapacity, abuse, neglect or refusal must be
shown; (2) such incapacity, abuse, neglect r
refusal must
be shown to have caused the child to be without essential
parental care, control or subsistence; and (3) it must be
shown that the causes of the incapacity, abuse, neglect or
refusal cannot or will nt be remedied_
Unlike subsection (a)(1), subsection (a)(2) does not
emphasize a parent's refusal or failure to perform parental
duties, but instead emphasizes the child's present and
future need for essential parental care, contrl or
subsistence necessary for his physical or mental wellbeing_
23 Pa.C.S.A. § 2511(a)(2). Therefore, the language in
subsection (a)(2) should not be read to compel courts t
ignore a child's need for a stable home and strong,
continuous parental ties, which the policy of restraint in
state intervention is intended t protect. This is particularly
so where disruption of the family has already occurred
and there is no reasonable prospect for reuniting it... _
Further, grounds for termination under subsection
(a)(2) are not limited to affirmative misconduct; those
grounds may include acts of incapacity to perform parental
duties.
In re EA.P., 944 A.2d 79, 82 (Pa. Super. 2008) (case citations and internal quotation
marks omitted) (emphasis in original). See in re Adoption of R.J.S., supra. Thus,
While sincere efforts to perform parental duties can
preserve parental rights under subsection (a)(1), those
same efforts may be insufficient to remedy parental
incapacity under subsection (a)(2). Parents are required to
make diligent efforts toward the reasonably prompt
assumption of full parental responsibilities. A parent's vow
to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous.
In re Z.P., 994 A.2d at 1117-1B (case citations and internal quotation marks omitted).
Moreover, a court may terminate parental rights under subsection (a)(2), even where
the parent has never had physical custody of the child. In re Adoption of Michael J.C.,
485 A.2d 371, 375 (Pa. 19B4); In re IP, supra.
T terminate parental rights under Section 2511 (a)(8), the party seeking
termination of parental rights need only show "(1) that the child has been removed
from the care f the parent for at least twelve months; (2) that the conditions which led
t the removal or the placement of the child still exist; and (3) that termination of
parental rights would best serve the needs and welfare of the child." In re Adoption of
R.J.S., supra at 511. See In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super. 2003).
The ne year time period is significant. As the Superior Court has explained:
Section 2511(a)(B) sets a twelve-month time frame for a
parent to remedy the conditions that led to the children's
removal by the court. Once the twelve-month period has
been established, the court must next determine whether
the conditions that led to the child's removal continue to
exist, despite the reasonable good faith efforts of HS
supplied over a realistic period. The relevant inquiry in this
been remedied and thus whether reunification f
regard is whether the conditions that led to removal have
parent
and child is imminent at the time of the hearing. This Court
has acknowledged:
[T]he application of Section (a)(B) may seem
harsh when the parent has begun to make
progress toward resolving the problems that had
led to removal of her children. By allowing for
termination when the conditions that led to
removal continue to exist after a year, the statute
12
implicitly recognizes that a child's life cannot be
held in abeyance while the parent is unable to
perform the actions necessary to assume
parenting responsibilities. This Court cannot and
will not subordinate indefinitely a child's need for
permanence and stability to a parent's claims of
progress and hope for the future.
In re LE.P., 87 A.2d 340, 345-46 (Pa. Super. 2014) (case citations and internal
quotation marks omitted).
With respect to the 'needs and welfare" analysis pertinent to subsections
2511(a)(8), and (b), the Superior Court has observed:
[']nitially, the focus in terminating parental rights is on the
parent, under Section 2511(a), whereas the focus in
Section 2511(b) is an the child. However, Section
2511(a)(8) explicitly requires an evaluation of the 'needs
and welfare of the child' prior to proceeding to Section
2511(b),- which focuses on the 'developmental, physical
and emotional needs and welfare of the child.' Thus, the
analysis under Section 2511(a)(8) accounts for the needs
of the child in addition to the behavior of the parent.
Moreover, only if a court determines that the parent's
conduct warrants termination of his or her parental rights,
pursuant to Section 2511(a), does a 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. Accordingly,
while both Section 2511(a)(8) and Section 2511(b) direct
us to evaluate the 'needs and welfare of the child,' we are
required to resolve the analysis relative to Section
2511(a)(8), prior to addressing the 'needs and welfare' of
[the child}, as proscribed by Section 2511(b); as such, they
are distinct in that we must address Section 2511(a) before
reaching Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1008-1009 (Pa. Super. 2008) (en Banc}
(citations omitted). See also In re LE.P., supra; In re Adoption of KJ., supra at 1133.
Subsection 2511(a)(8), "does not require an evaluation of the remedial efforts of either
13
the parent or HS." In re B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citing C.L.G., 956
A.2d at 1007).
Simply put, Section 2511, including the subsections cited and explained above,
outlines certain irreducible requirements that parents must provide for their children.
Parents who cannot or will not meet the requirements within a reasonable time
following intervention by the state may properly be considered unfit and have their
parental rights terminated. In re KZ.S., supra; In re B.L.L., 787 A.2d 1007 (Pa. Super.
2001).
There is no simple or easy definition of parental duties. However, the appellate
cases make it very clear that parenting is an active rather than a passive obligation
that, even in the face of difficulty, adversity, and incarceration, requires a parent to
take and maintain 'a place of importance in the child's life. The following passage is
instructive:
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this court has held that the parental obligation
is a positive duty which requires affirmative performance.
* * *
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one's parental responsibilities
while others provide the child with his or her physical and
emotional needs.
14
In re KIS., supra at 759. See also In re Bums, 379 A.2d 535 (Pa. 1997); Adoption of
Baby Boy A. v. Catholic Social Services of the Diocese of Harrisburg, 517 A.2d 1244
(Pa. 1986); In re Shives, 525 A.2d 801 (Pa. Super. 1987).
In relation to the parental requirements outlined in Section 2511, when a parent
is separated from his or her child, it is incumbent upon the parent "to maintain
communication and association with the child. This requires an affirmative
demonstration of parental devotion, imposing upon the parent the duty to exert
himself, to take and maintain a place of importance in the child's life." in re G.P.-R.,
851 A.2d 967, 977 (Pa. Super. 2004). When a parent has abandoned or effectively
abandoned a child,
[t]o be legally significant, the post abandonment contact
must be steady and consistent over a period of time,
Contribute to the psychological health of the child, and must
demonstrate a serious intent on the part of the parent to
recultivate a parent -child relationship and must also
demonstrate a willingness and capacity to understand the
parental role. The parent wishing to reestablish his
parental responsibilities bears the burden of proof on
this question.
In re ID., 949 A.2d at 919 (case citations and brackets omitted) (emphasis in
or
original). Finally, parents are required to make diligent efforts towards assumption
resumption of full parental responsibilities. Accordingly, a parent's vow to cooperate,
after a long period of being uncooperative regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous. In re Adoption
of K.J.,
supra; In re A.L.D., 797 A.2d 325 (Pa. Super. 2002).
Once statutory grounds for termination have been established, the court must,
and welfare
in accordance with Section 2511 (b), consider whether the child's needs
15
will be met by termination. A proper Section 2511(b) analysis focuses on whether
termination of parental rights would best serve the developmental, physical, and
emotional needs and welfare of the child. Intangibles such as love, comfort, security,
and stability are involved in the inquiry. One major aspect of the needs and welfare
analysis concerns the nature and status of the emotional bond, if any, between parent
and child. If a bond is determined to exist, the effect on the child of permanently
severing the bond must be analyzed and considered. See In re K.M., 53 A.3d 781
(Pa. Super. 2012); In re T.D., supra; In re L.M., supra; In re Adoption of R.J.S., supra.
As to the bond analysis, the Superior Court has stated:
Inconducting a bonding analysis, the court is not required
to use expert testimony, but may rely on the testimony of
social workers and caseworkers. In re ZP., 994 A.2d 1108,
1121 (Pa. Super. 2010). This Court has observed that no
bond worth preserving is formed between a child and a
natural parent where the child has been in foster care for
most of the child's life, and the resulting bond with the
natural parent is attenuated. In re K.Z.S., 946 A_2d 753,
764 (Pa. Super. 2008).
In re K.H.B., 107 A.3d 175, 180 (Pa. Super_ 2014).
In addition to a bond examination, a court may equally
emphasize the safety needs of the child under subsection
(b), particularly in cases involving physical or sexual abuse,
severe child neglect or abandonment, or children with
special needs_ The trial court should also examine the
intangibles such as the love, comfort, security, and stability
the child might have with the foster parent. Another
consideration is the importance of continuity of
relationships to the child and whether the parent -child
bond, if it exists, can be severed without detrimental effects
on the child. All of these factors can contribute to the
inquiry about the needs and welfare of the child.
16
In re K.Z.S., 946 A.2d at 763 (emphasis in original).
When, as here, the petitioner is an agency, "it shall not be required to aver that
an adoption is presently contemplated nor that a person with a present intention to
adopt exists." 23 Pa.C.S. § 2512(b). However, the existence r absence of a pre -
adoptive home is an important factor. So is the relationship between the child and the
foster or pre -adoptive parents. As ur Supreme Court cogently stated, "[c]mmn
sense dictates that courts considering termination must also consider whether the
children are in a pre -adoptive home and whether they have a bond with their foster
parents. In re: T.S.M., 71 A.3d 251, 268 (Pa. 2013). See In re K.M., supra.
In reviewing the evidence in supprt of termination under section 2511(b), our
Supreme Court recently stated:
[I]f the grounds for termination under subsection (a) are
met, a court 'shall give primary consideration to the
develpmental, physical and emotinal needs and welfare
of the child.' 23 Pa.C.S. § 2511(b). The emtional needs
and welfare of the child have been properly interpreted to
include Antangibles such as love, comfort, security, and
stability. In In re EM., [620 A.2d 481, 485 (Pa. 1993) ], this
Court held that the determination of the child's 'needs and
welfare' requires consideration of the emotional bonds
between the parent and child. The 'utmost attention"'
should be paid to discerning the effect on the child of
permanently severing the parental bond.
In re T.S.M. 71 A.3d at 267. The Court additionally observed:
contradictory considerations exist as to whether termination
will benefit the needs and welfare of a child who has a
strong but unhealthy bond to his biological parent,
especially considering the existence or lack thereof of
bonds to a pre -adoptive family. As with dependency
17
determinations, we emphasize that the law regarding
termination of parental rights should not be applied
mechanically but instead always with an eye to the best
interests and the needs and welfare of the particular
children involved....Obviously, attention must be paid to the
pain that inevitably results from breaking a child's bond to a
biological parent, even if that bond is unhealthy, and we
must weigh that injury against the damage that bond may
cause if left intact Similarly, while termination of parental
rights generally should not be granted unless adoptive
parents are waiting to take a child into a safe and loving
home, termination may be necessary for the child's needs
and welfare in cases where the child's parental bond is
impeding the search and placement with a permanent
adoptive home.
In weighing the difficult factors discussed above, courts
must keep the ticking clock of childhood ever in mind.
Children are young for a scant number of years, and we
have an obligation to see to their healthy development
quickly. When courts fail, as we have in this case, the
result, all too often, is catastrophically maladjusted children.
In recognition of this reality, over the past fifteen years, a
substantial shift has occurred in our society's approach to
dependent children, requiring vigilance to the need to
expedite children's placement in permanent, safe, stable,
and loving homes. ASIA was enacted to combat the
problem of foster care drift, where children, like the children
in this case, are shuttled from one foster home to another,
waiting for their parents to demonstrate their ability to care
for the children.
In re T.S.M., 71 A.3d at 269.
In these cases, Father has been incarcerated for the entire time that that the
Children have continuously been in the care of others. Incarceration, standing alone,
neither constitutes sufficient grounds for termination of parental rights nor removes the
obligation to perform required "bond effects" and "needs and welfare" analyses.
18
However, it is a factor that must be considered and, in a proper case, such as when a
parent is serving a prohibitively long sentence, may be determinative. In re Adoption of
S.P., 47 A.3d 817 (Pa. 2012); Z.P., 994 A.2d at 1120. "Each case of an incarcerated
parent facing termination must be analyzed on its own facts, keeping in mind...that the
child's need for consistent parental care and stability cannot be put aside or put on
hold simply because the parent is doing what [he or] she is supposed to be doing in
prison.. In re E.A.P., 944 A.2d at 84.
The analysis depends in part an the asserted grounds for termination. In
subsection (a)(1) abandonment cases, our Supreme Court has stated:
[A] parent's absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent's responsibilities during his or her
incarceration. Rather, we must inquire whether the parent
has utilized those resources at his or her command while in
prison in continuing a close relationship with the child.
Where the parent does not exercise reasonable firmness in
declining to yield to obstacles, his other rights may be
forfeited.
In re Adoption of S.P., 47 A.3d at 828 (quoting In re Adoption of McCray, 331 A.2d
652, 655 (Pa. 1975) (footnotes and internal quotation marks omitted). Thus, in an
abandonment case, a parent is required to both utilize available resources and take
affirmative steps to support a parent-child relationship. If the parent fails to do so, his
or her parental rights may be terminated. See In re Adoption of W.J.R., 952 A.2d 680
(Pa. Super. 2008); In re E.A.P., supra; In re KJ., supra. However, utilization of
available resources does not guarantee preservation of parental rights. The statutory
19
criteria, the facts and circumstances of each case, and the best interests, needs, and
welfare of the child must all still be considered.
In cases involving parental incapacity, ur Supreme Curt recently held that:
incarceration is a factor, and indeed can be a determinative
factor, in a court's conclusion that grounds for termination
exist under § 2511(a)(2) where the repeated and continued
incapacity of a parent due to incarceration has caused the
child to be without essential parental care, control or
subsistence and that the causes of the incapacity cannot or
will not be remedied.
In re Adoption of S.P, 47 A.3d. at 828. In mre expanded terms, the Supreme Court
stated:
In linewith the expressed opinion of a majority justices inf
In re R.I.S., 614 Pa. 275, 38 A.3d 557 (2011), our prir
holdings regarding incapacity, and numerous Superior
Court decisions, we now definitively hold that incarceration,
while nt
a litmus test for terminatin, can be determinative
of the question of whether a parent is incapable of
providing "essential parental care, control or subsistence"
and the length of the remaining confinement can be
considered as highly relevant t
whether "the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will nt be remedied by the parent," sufficient to
provide grounds frtermination pursuant to 23 Pa.C.S. §
2511(a)(2).
Id. at 830. In sum, a parent's incarceration "is relevant to the subsectin (a)(2) analysis
and, depending on the circumstances of the case, it may be dispositive of a parent's
ability t provide the "essential parental care, control or subsistence" that the section
contemplates." In re A.D., 93 A.3d at 897.
Finally, before filing a petition for termination of parental rights, the
Commonwealth is generally required to make reasonable efforts to promote
20
reunification of parent and child. In re Adoption of R.J.S.. See also In re Adoption of
M.E.P., 825 A.2d 1266 (Pa. Super. 2003). However, the Commonwealth does not
have an obligation to make reunification efforts indefinitely.
The Commonwealth has an interest not only in family
reunification but also in each child's right to a stable, safe,
and healthy environment, and the two interests must both
be considered. A parent's basic constitutional right to the
custody and rearing of his or her child is converted, upon
the parent's failure to fulfill his or her parental duties, to the
child's right to have proper parenting and fulfillment of his
or her potential in a permanent, healthy, safe environment
When reasonable efforts to reunite a foster child with his
or her biological parents have failed, then the child welfare
agency must work toward terminating parental rights and
placing the child with adoptive parents. The process of
reunification or adoption should be completed within
eighteen (18) months. While this time frame may in some
circumstances seem short, it is based on the policy that a
child's life simply cannot be put on hold in the hope that
the parent will summon the ability to handle the
responsibilities of parenting.
In re Adoption of R.J.S., supra at 507 (internal case citations, quotation marks, and
footnote omitted).
Additionally, the failure of an agency to make reasonable efforts to promote
reunification of parent and child will not defeat a properly supported petition for
termination of parental rights. Neither the relevant provisions of Section 2511 nor the
pertinent provisions of the Juvenile Act require a court to consider the reasonable
efforts provided to a parent by the petitioning agency prior to termination of parental
rights. In re D.C.D., 105 A.3d 662 (Pa. 2014); In re Adoption of C.J.P., supra. In In m
D.C.D., our Supreme Court
analyzed the language of Section 2511(a)(2) of the
Adoption Act, as well as Section 6351 of the Juvenile Act,
42 Pa.C.S.A. § 6351. The Court reasoned that, while
21
"reasonable efforts may be relevant to a court's
consideration of bth the grounds for termination and the
best interests of the child," neither of these provisions,
when read together r individually, requires reasonable
efforts. id at 671-75 (citation omitted). The Court also
concluded that reasonable efforts were not required to
protect a parent's constitutional right to the care, custody,
and control of his or her child. Id. at 676-77. While the
Supreme Court in D.C.D. focused its analysis on Section
2511(a)(2), we find the Supreme Court's reasoning equally
applicable to Section 2511(2)(8). Like Section 2511(a)(2),
nothing in the language of Section 2511(a)(8) suggests that
reasonable reunification services are necessary to support
the termination of parental rights.
in re Adoption of C.J.P., supra at 1055. Thus, while agencies must provide reasonable
efforts t enable parents to work toward reunification with their dependent children
when ordered to do so, 'the remedy for an agency's failure t provide services is not to
punish aryinnocent child, by delaying her permanency through denying termination,
but instead to conclude n the record that the agency has failed to make reasonable
efforts, which imposes a financial penalty on the agency of thousands if not tens of
thousands of dollars under federal law." In re D.C.D., 105 A.3d at 675.
In his Rule 1925(b) statements in these cases, Father first contends that we
erred by finding that CYS proved statutory grounds for termination of his parental
rights. Under the facts of these cases and the law summarized above, this assignment
of error lacks merit.
The Children have been dependent and continuously in the care of CYS and
their current foster family since April of 2017. Specifically, as of the termination
hearing, the Children had been in care for seventeen mnths. Their time in care far
exceeds the minimum time requirements -6 months and 12 months - of the statutory
22
termination provisions cited by the Agency. Their time in care was also at the back end
f the 18 months within which Courts and child welfare agaencies must achieve
permanency for dependent children. There is and can be no question that the pertinent
time requirements have been satisfied.
Moreover, Father failed to perform parental duties for nearly two years and,
even before he was incarcerated, demonstrated a lack of capacity to perform parental
duties, an inability to handle the Children's needs, and an inability to keep the Children
and others around them safe.
Further, the conditions that caused the Children to come into care remain.
Among other things, Father is still incarcerated_ In this regard, as of the termination
hearing, Father had been incarcerated for 23 months and was not eligible for parole
for another three years. Relatedly, as of now, Father has no specific housing or
release plan and his hoped -for post-release employment is speculative at best.
Father has not seen the Children at all during their dependency. Similarly, he
has had only minimal contacts with them consisting of a handful of phone calls and a
single card written to each of them. Moreover, and very significantly, Father has done
nothing to promote the mental, physical, spiritual, or emotional well-being of the
Children. Rather, since their removal, foster parents - not Father - have provided
nurturing and care for the Children and have insured that their physical, mental,
emotional, medical, developmental, and daily needs have been met.
in finding that Father failed or refused to perform parental duties, that the
circumstances that caused the Children to come into care remain, that Father has
done nothing to ensure their mental, physical, and emotional well-being and
23
development, and in terminating Father's parental rights, we considered but did not
place undue emphasis on Father's incarceration. Rather, in accordance with the law
recited above, we considered Father's past and current periods f incarceration, the
remaining length of his sentence, the subsequent period that he will be under state
supervision, the impact his incarceration has had on the Children, the degree to which
his incarceration incapacitated him from performing parental duties under both the
general and statutory meanings of that term, and his previously-referenced failure to
take meaningful steps to remain in the Children's lives while in jail.
Finally, as discussed below, termination of Father's parental rights satisfies the
needs, welfare, and best interests of the Children.
Under these circumstances and the evidence presented at hearing, it was clear
to us that CYS established grounds for termination of Father's parental rights to the
Children under subsections 2511(a)(1), (2), and (8). It is just as clear to us now.
With respect to the bond effects and needs and welfare analyses required by
Subsections (a)(B) and (b), it was and remains clear to us that the best interests and
welfare of the Children require that Father's parental rights be terminated.
Father expressed his love for the Children. However, it is well settled that a
parent's own feelings of love and affection for a child, standing alone, does not prevent
termination of parental rights. In re Z.P., 994 A.2d 1108 (Pa. Super. 2010); In re L.M.,
923 A.2d 505 (Pa. Super. 2007). This is especially true when, as here, the expression
is not backed up by facts, history, conduct, or action.
The Children have been living almost two years without Father. More precisely,
they have been living without either parent. The Children need and deserve
24
permanency, stability, lave, support, and parental care. Their needs have not been
met by Father. Others have provided parenting for the Children while Father did not.
He has not reached out from prison in any meaningful way, and will not physically be
available as a parent until at the earliest August of 2021. Further, nothing in the record
suggests that Father wilt be able to meet the Children's needs in the future, especially
considering his criminal history, his remaining sentence, his subsequent lengthy period
f supervision, and his current lack f a release plan. Given the facts presented at
hearing, and considering Father's history, we found that the Children's lives simply
could not and should not be put on hold in the hopes that Father, after making parole
or maxing out on his sentence at some point in the future, will summon the ability to
handle the responsibilities of parenting while turning his back on his criminal
I tendencies, finding and maintaining stable and suitable housing and a job, and for the
first time properly caring far three Children.
There appears to be little to no bond between the Children and Father. This is
especially clear as to N.B. who was only one when Father was arrested and went to
jail for two months and 2 16 when he started serving his current sentence. It is even
more obvious as to M.B. who was only eight months old when Father went to jail. As
to B.B., the bond appears to be a negative one as B.B. remembers Father as
someone who abused Mother. It is also evidenced by the fact that the Children did not
want, and have not missed, visitation with Father. Simply, given the facts and
circumstances f this case and Father's history, there is little if any bond between
Father and the Children and what bond there is does not appear to be healthy. Thus,
severing whatever bond exists, will not adversely affect the Children.
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On the other hand, the Children are bonded with their foster family, two of
whom wish to adopt them. The Children's foster Family have been there for them,
have provided for them, have loved and cared for them, and want to become their
forever family_ The bond that has developed between the Children and their foster
family is a healthy one, the severance of which would be extremely detrimental to the
Children.
Simply, under the facts and circumstances of this case, we found that
termination of Father's parental rights so that the Children may be adopted by
members of their foster family would best serve the developmental, physical, and
emotional needs and welfare of the Children and promote their best interests. We
stand by our decision.
In his second assignment of error, Father asserts that we failed to make
reasonable efforts toward reunification with paternal grandmother despite Father's
clear and settled purpose to have his mother care for the children." This assertion may
be disposed of quickly.
Initially, as discussed, reasonable efforts at reunification with a parent are not
required before a parent's parental rights are terminated under Section 2511(a)(2) or
(8) and the failure of an agency to make reasonable efforts to promote reunification of
parent and child will not defeat a properly supported termination petition. In In re
D.C.D., supra; In re Adoption of C.J.P. Given this settled law, it follows that reasonable
efforts to "reunify" with a grandparent are not required before a partent's parental
rights may be terminated. We believe this is especially true in cases where, as here,
the grandparent's son or daughter (the child's parent) is incarcerated.
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Additionally, and in any event, Paternal Grandmother was not a current
resource for the reasons discussed above, including the fact that the 1CPC had not
been approved and that she had not seen or visited the Children since they came into
care.
Finally, even if the 1CPC had been approved, and despite the general
preference to keep children with appropriate willing family members when possible,
under the facts and circumstances of this case we would not have chosen Paternal
Grandmother over the Children's foster family. As discussed, a bond has developed
between the Children and their foster family. Severing that bond would be detrimental
to the Children. In contrast, there was no evidence of a similar current bond between
the Children and Paternal Grandmother. Father's "clear and settled purpose to have
his mother care for his children" has not been enough to prompt Paternal Grandmother
to visit the Children or call them more than a few times, and has similarly not been
enough to prompt Father to reach out to the Children from prison and maintain a place
in their lives. Under these circumstances, there is an can be no error or abuse of
discretion in choosing foster parents over Paternal Grandmother.
In sum, we found that CYS proved statutory grounds for termination of Father's
parental rights by clear and convincing evidence. We further found that the Children's
needs and welfare are best served by termination of Father's rights so that the
Children may be adopted by members of their foster family_ We remain convinced that
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our decisions are supported by both the facts and the law, and, moreover, fulfilled and
advanced the best interests of the Children.
BY THE COURT:
Date: 6
Cc: Superior Court of Pennsylvania
Jonathan Mark, Judge
Brandie Jean Belanger, Esq.
Barbara Fitzgerald, Esq.
Elizabeth B. Weekes, Esq.
Brian Gaglione, Esq.
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