J-S39016-16 J-S39017-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.S.M., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.J.M., FATHER : : No. 2227 MDA 2015 :
Appeal from the Order Entered November 23, 2015, in the Court of Common Pleas of York County Juvenile Division at No.: CP-67-DP-0000086-2009
IN THE INTEREST OF: J.G.K.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : APPEAL OF: J.J.M., FATHER : : No. 2228 MDA 2015 :
Appeal from the Order Entered November 23, 2015, in the Court of Common Pleas of York County Juvenile Division at No.: CP-67-DP-0000087-2009
IN THE INTEREST OF: S.M.M., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.J.M., FATHER : : No. 2229 MDA 2015 :
Appeal from the Order Entered November 23, 2015, in the Court of Common Pleas of York County Juvenile Division at No.: CP-67-DP-0000088-2009
IN RE: ADOPTION OF: S.S.M., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.J.M., FATHER : : No. 2237 MDA 2015 :
Appeal from the Order Entered November 24, 2015, in the Court of Common Pleas of York County J-S39016-16 J-S39017-16
Orphans’ Court at No.: 2015-0103
IN RE: ADOPTION OF: J.G.K.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : APPEAL OF: J.J.M., FATHER : : No. 2238 MDA 2015 :
Appeal from the Order Entered November 24, 2015, in the Court of Common Pleas of York County Orphans’ Court at No.: 2015-0102
IN RE: ADOPTION OF: S.M.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : APPEAL OF: J.J.M., FATHER : : No. 2239 MDA 2015 :
Appeal from the Order Entered November 24, 2015, in the Court of Common Pleas of York County Orphans’ Court at No.: 2015-0104
BEFORE: STABILE, PLATT, AND STRASSBURGER, JJ.
MEMORANDUM BY PLATT, J.: FILED JUNE 14, 2016
In these consolidated and related appeals,1 J.J.M. (Father) appeals the
orders, entered in the Court of Common Pleas of York County (trial court) on
November 23, 2015, that changed the goals of his children, S.S.M., born
January 2003; J.G.K.M., born February 2005; and S.M.M., born October
Retired Senior Judge assigned to Superior Court. 1 On January 12, 2016, this Court consolidated the appeals at 2227, 2228, and 2229 MDA 2015, sua sponte, and also consolidated the appeals at 2237, 2238, and 2239 MDA 2015, sua sponte. See Pa.R.A.P. 513. It directed that these consolidated appeals shall be listed consecutively and stated that the parties may each file a single brief.
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2006, (Children), to adoption. Father also appeals the orders of the trial
court, entered November 24, 2015, that terminated his parental rights to the
Children.2 We affirm.
The trial court relates the history of this case in its findings of fact in
its opinion entered on November 24, 2015. (See Trial Court Opinion,
11/24/15, at 2-7). We refer the reader to that opinion for the history of this
case.
The trial court held hearings in this matter on October 28 and 29,
2015. Testifying at the hearing on October 28, 2015, were York County
Children’s Advocacy Center forensic interviewer, Ashley Rehm; Justice Works
family resource specialist, Tara Deane; Children’s Aid Society art therapist,
Yvette Hardy; and York County Children, Youth, and Families caseworker,
Kerry Miller. Testifying at the hearing on October 29, 2015, were Father,
from prison by telephone, and Ms. Miller.
The trial court entered its orders changing Children’s goals to adoption
on November 23, 2015, and its orders terminating Father’s parental rights,
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b), on November
24, 2015. Father filed his notices of appeal and statements of errors
complained of on appeal on December 21, 2015. See Pa.R.A.P.
2 The trial court also terminated the parental rights of the Children’s mother, C.L.L. (Mother). Mother did not file an appeal.
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1925(a)(2)(i). The trial court entered its statement on January 14, 2016, in
which it relied on its November 24, 2015 opinion. See Pa.R.A.P. 1925(a).
Father raises the following questions on appeal:
1. Whether the trial court erred in changing the goal from reunification with a parent to adoption when Father utilized all available resources to maintain his relationship with his [C]hildren during his incarceration. And his incarceration will conclude in a time frame that would allow him to parent his [C]hildren[?]
2. Whether the trial court erred in deciding to change the goal from reunification with a parent to adoption when Father was utilizing all available resources to comply with the goals set forth for him in the various Family Service Plans[?]
3. Whether the trial court failed to consider the bond between Father and the [C]hildren when deciding to terminate Father’s parental rights[?]
(Father’s Brief, at 4).
Our standard of review is as follows:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court’s factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court’s order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge’s decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.
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We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the trial court’s inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court’s sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
The trial court terminated Father’s parental rights pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). In order to affirm the
termination of parental rights, this Court need only agree with any one
subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Requests to have a natural parent’s parental rights terminated are
governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
* * *
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
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(b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires evidence 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.” In
re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted). Further,
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.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation
omitted).
The Adoption Act provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and
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welfare of the child.” 23 Pa.C.S.A. § 2511(b). The Act does not make
specific reference to an evaluation of the bond between parent and child, but
our case law requires the evaluation of any such bond. See In re E.M., 620
A.2d 481, 484 (Pa. 1993). However, this Court has held that the trial court
is not required by statute or precedent to order a formal bonding evaluation
performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.
Super. 2008).
In regard to incarcerated persons in a termination case, our Supreme
Court has stated:
[I]ncarceration 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 817, 828 (Pa. 2012). The Supreme Court
explained:
[W]e now definitively hold that incarceration, while not a litmus test for termination, 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 to whether the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent, sufficient to provide grounds for termination pursuant to 23 Pa.C.S.[A.] § 2511(a)(2). If a court finds grounds for termination under subsection (a)(2), a court must determine whether termination is in the best interests of the child, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In this regard, trial courts must carefully review the individual circumstances for every child to
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determine, inter alia, how a parent’s incarceration will factor into an assessment of the child’s best interest.
Id. at 830-31 (citations and quotation marks omitted).3
We have thoroughly reviewed the record, briefs, and the applicable
law, and determined that the evidence presented is sufficient to support the
trial court’s orders changing the Children’s goals to adoption, and the orders
terminating Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511.
Our reading of the trial court’s opinion reveals that it carefully and
methodically reviewed the evidence and ably addressed Father’s issues
presented on appeal. (See Trial Ct. Op., at 7-17 (concluding that (1)
change of goal to adoption would be in Children’s best interest; (2) Father
has failed to perform any significant parental duties and termination of his
parental rights will provide Children with stability and permanency; (3)
Children have been in placement for one year and one month, and are happy
and well-bonded to foster family; and (4) although Father has some
diminishing bond with Children, termination of his parental rights will best
serve developmental, physical, and emotional needs and welfare of Children,
especially considering Children’s belief as to Father’s sexual conduct with
S.S.M.)). Accordingly, we will affirm based on the concise, thoughtful, and
3 Our review of the record reveals that Father’s actions and failures to act in relation to the Children, as detailed by the trial court in its opinion entered November 24, 2015, and not the fact of his incarceration, establish the bases for the termination of his parental rights.
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well-written opinion of the Honorable Todd R. Platts, entered on November
24, 2015.
Therefore, we affirm the trial court’s orders, entered November 23,
2015, that changed the Children’s goals to adoption, and the trial court’s
orders, entered November 24, 2015, terminating Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/14/2016
-9- Circulated 06/02/2016 02:58 PM
s .5 ~U\ ~-I~ S ··5 '{Q 11- I \,
IN THE COURT OF COMMON PLEAS OF YORK COUN~Y, PENNSYLVANIA
In the Interest of: ' S.S.M. No. CP-67·-D·P-86-2009 I
J.G.K.M. No. CP-67-D;p-87-2009 S.M.M. I No. CP-67-DP-88-2009 Minor Children Change of Gtal I *************************************** I I
In Re: Adoption of I
S.S.T\,1. No. 2015-0103 1! J.G.K..M. No. 2015-0102 I S.M.M. No. 2015-0104 Minor Children Termination of Parental Rights I APPEAH.ANCEJ: .1,/ I Martin Mil~er, I Esquire .... 1· ··--6' I For York Jaunty Chil~ren and Youth Services ···:- i
I Sydne~ C.l ~enson, Es~mre . 1 1 Guardian a . Litem for Mmor Children . c ~~,-:-; ,. .. ,.
Lori A. Yost, Esquire :·. i Fm the Mother - I
Brooks K. Jomper, Esquire For the Father
ADJUDICATION I
,-. . B~fore this lourt ~re a P~titicn for r:bange of G~al and a Prition for Involuntary
l ermmation of Parental Rights filed by York County Office of Children, Youth and ·I Families (hereinaftL, "Agency') on August 18, 2015, regarding s.s.i«, J.G.K.M., and
S.M.lvL (hereinaftej. "minor children•) whose date, of birth are J~uary a2003, February .2005, and Octofuera2006, respectively.
1 An evide)tiary hearing was held on October 28, 2015 and October 29, 2015
addressing testim ny and evidence relating to C... 1-Dtml(hereinafter, "Mother") I . I
and J-J•. 11111a(hereinafter, "Father"). The entire Dependency Records for minor
children, docketed at CP-67-DP-86-2009, CP-67-DP-87-2009, ~d CP-67-DP-88-2009 were
f incorporated into he hearing record. Additionally, the Stipulation of Counsel for each child
filed October.23, rs w:re:l:o in:o~orated into the he~ing record foe ~e0minor children,
. along with E:>J11b1.s 1. '.2, .J +, ), 6, , , Y, 10 and 11 for the .-1.gency. Father s Exhibit 1 was
admitted into the caring record for the minor children. Based upon fh.e testimony and
evidence presenter at the hearing, as well as the history of this cake, the Petition for Change ' I of Goal is GRAN. ED and the Petition for Involuntary Termination of Parental Rights for
Mother and Father is GRANTED as to S.S.M., J.G.K.M, and S.M.M.
FINDINGS OF FACT
1. S.S.M. wa born on January 111,.2003.
2. J.G.K.M. as born on February.2005.
3. S.M.M. wa born on OctoberS'2006. I 4. The natural mother of the minor children is Cmll 18 L... whose last known i address wa
•£·--------------- . 5. The Father f the minor children is -1111111 J• ~ who is currently incarcerated
atWi
2 6. A Petitior to Change Court Ordered Goal and Petition for Involuntary Termination
of Parente 1 Rights for minor children were filed on August 18, 2015 by the Agency.
7. Certificati ons of Acknowledgement of Paternity for minor children were filed on
August 25, 2015 which indicate that there is not a claim or Acknowledgement of
Paternity an file for the minor children.
8. An Application for Emergency Protective Custody was filed by the Agency on June
19, 2014.
9. In an Order for Emergency Protective Custody dated June 19, 2014, sufficient
evidence was presented to prove that continuation or return of the minor children to
Mother an i Father was not in the minor children's best interest. Legal and physical
custody we s awarded to the Agency. The minor children were placed in foster care.
10. A Dependency Petition was filed by the Agency on June 26, 2014.
11. On September 9, 2014, the minor children were adjudicated dependent. Legal and
physical Cl stody was awarded to the Agency for placement in foster care. The goal
was initial! v established as return to a parent or guardian.
12. In an Order dated November 10, 2014, sole medical and educational rights were
assigned to he Agency.
13. The minor : hildren have remained dependent since September 9, 2014.
14. The; minor children currently reside together.
15. Family Sen ice Plans were prepared and dated as follows:
' a. Initial Family Service Plan dated February 24, 2014.
b. Revised Family Service Plan dated June 18, 2014.
c. Revised Family Service Plan dated December 18, 2014.
d. Revised Family Service Plan dated May 26, 2015.
16. In a Permanency Review Order dated December 1, 2014, the Court made certain
findings and conclusions including, but not limited to:
a. There had been no compliance with the Permanency Plan by the Mother and
there had been. no compliance with the Permanency Plan by Father.
b. Reasonable efforts had been made by the Agency to finalize the Permanency
Plan.
c. Mother had made no progress towards alleviating the circumstances which
necessitated the original placement and -Father had made no progress toward
alleviating the circumstances which necessitated the original placement.
d. Legal and physical custody of the minor children was confirmed with the
grandmother.
e. There continued to be a need for placement of the minor children outside the
care and custody of Mother and Father.
17. In a Permanency Review Order dated May 26, 2015, the Court made certain findings
and conclusions, including, but not limited to:
4 a. There had been no compliance with the Permanency Plan by the Mother and
minimal compliance with the Permanency Plan by Father.
b. Reasonable efforts had been made by the Agency to finalize the Permanency
c. Mother had made no efforts towards alleviating the circumstances which
necessitated the original placement and Father had made minimal progress
towards alleviating the circumstances which necessitated the original
placement.
d. Legal and physical custody of the minor children was confirmed with the
Agency:
e. There continued to be a need for placement of the minor children outside the
tare and custody of the Mother and Father.
18. A Catholic Charities Team opened with Mother on December 3, 2012 and closed
unsuccessfully on February 15, 2013.
19. A Justice Works Team opened with Mother on February 6, 2014 and closed
unsuccessfully onJuly 16, 2014.
·20. A Pressley Ridge Team opened with Mother on August 5, 2014 and closed
unsuccessfully on October 3, 2014.
21. Father has been incarcerated since the adjudication of dependency.
22. Father has not visited with the minor children since the adjudication of dependency.
5 23. A pre-adoptive resource has been identified for the minor children.
24. Minor child, S.S.M., currently operates under an Individualized Education Plan.
25. Minor child, S.S.M., was diagnosed with (AXIS I) attention deficit hyperactivity
disorder (ADHD) combined type and (AXIS IV) victim of abuse and neglect in a
Discharge Report prepared by Dr. Craig G. Richman dated January 6, 2015.
26. Minor child, S.S.M., was diagnosed with (AXIS I) adjustment disorder with mixed
disturbance of emotion and conduct, post-traumatic stress disorder, ICD - not
otherwise specified, parent-child relational problems, oppositional defiant disorder,
and (AXIS IV) severe psychosocial stressors in a Psychiatric Evaluation prepared by
Dr. Anthony Russo dated January 8, 2015.
27. Minor child, J.G.K.M., currently operates under an Individualized Education Plan.
28. Minor child, J.G.K.M., was diagnosed with (AXIS I) _adjustment disorder with mixed
disturbance of emotion and conduct, attention deficit hyperactivity disorder (ADHD)
combined, peer relational problems, and (AXIS IV) conflicts with siblings in a
Discharge Report prepared by Dr. J. Phillipp Othmer dated May 29, 2014.
29. Minor child, J.G.K.M., was diagnosed with (A,'CIS I) attention deficit hyperactivity
disorder by history, pervasive developmental disorder- not otherwise specified,
intermittent explosive disorder, post-traumatic stress disorder, parent-child relational
problems, learning disorder- math, and (AXIS IV) severe psychosocial stressors in a
Psychiatric Evaluation prepared by Dr. Anthony Russo dated January 8, 2015.
6 30. Minor child, S.M.M., currently operates under an Individualized Education Plan.
31. Minor child, S.M.M., was diagnosed with (AXIS I) adjustment disorder with mixed
disturbance of emotions and conduct, post-traumatic stress disorder, parent-child
relational problems, and (AXIS IV) severe psychosocial stressors in a Psychiatric
Evaluation prepared by Dr. Anthony Russo dated January 18, 2015.
DISCUSSION
I. Petition for Change of Goal
·.-c· Before the Court can change the goal for a child in a juvenile dependency action, the
Agency must prove by clear and convincing evidence that the change of goal would be in
the child's best interest. In re Interest of M.B., 674 A.2d 702 (Pa. Super. 1996). In making
a disposition, the Court should consider what is best suited to the protection and physical,
mental, and moral welfare of the cbild. 42 Pa.C.S.A §6351; In re Davis, 502 Pa. 110, 121,
465 A.2d 614, 619 (1983). In rendering a disposition "best suited to the protection and
physical, mental, and moral welfare of the child," the hearing court must take into account
"any and all factors which bear upon the child's welfare and which can aid the court's
necessarily .imprecise prediction about that child's future well-being." In re Davis, 502 Pa.
110, 122, 465 A.2d 614, 620 (1983).
The purpose of the Juvenile Act is to preserve family unity and to provide for the
ca.re, protection, safety and wholesome mental and physical development of the child. 42
Pa.C.S.A. 630l(a)(l)-(1.1). The Juvenile Act was not intended to place children in a more
7 perfect home; instead, the Act gives a court the authority to "intervene to ensure that parents
meet certain legislatively determined irreducible minimum standards in executing their
parental rights." In re J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (emphasis added).
When a child is placed in foster care, the parents have an affirmative duty to make
the changes in their lives that would allow them to become appropriate parents. In re Diaz,
669 A.2d 372, 377 (Pa. Super. 1995). A family service plan is created to help give the
· : parents some guidelines as to the various areas that need to be improved. In the Interest of
.jM.B., 565 A.2d 804, 806 (Pa. Super. 1989), app. Denied, 589 A.2d 692 (Pa. 1990). By
assessing the parents' compliance and success with this family service plan, the Cami can
determine if the parents have fulfilled their affirmative duty. In re J.S.W., 651 A.2d 167,
170 (Pa. Super. 1994).
Under Section 63 51 of the Adoption Act, the Agency has the burden to show a goal
change would serve the child's best interests and the "safety, permanency, and well-being of
the child must take precedence over all other considerations." In re D.P., 972 A.2d 1221,
1227 (Pa. Super. 2009), appeal denied, 973 A.2d 1007 (Pa. 2009). Thus, even where the
parent makes earnest efforts, the "court cannot and will not subordinate indefinitely a child's
need for permanence and stability to a parent's claims of progress and hope for the future."
In re Adoption ofR.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
In the present matter, the Agency has proven by clear and convincing evidence that it
is in the minor children's best interest to change the goal to placement for adoption.
8 Throughout the dependency proceedings, Mother's whereabouts were unknown for long
periods of time. The Agency was never able to visit Mother's current residence to ascertain
whether it was safe and appropriate for minor children. Mother has had no visits with minor
children in approximately ten (10) months and her last visit occurred at a court proceeding.
Testimony established that minor children are not interested in visiting with Mother and that
the minor children's bond with Mother has weakened since the initiation of the dependency
proceedings. Mother was uncooperative with her assigned in-home teams and counselor at
Pennsylvania Counseling Services. Due to frequent missed appointments, Mother's in-
home teams were closed unsuccessfully and Mother was discharged by her counselor.
Mother was present for the termination of parental rights hearing held on October 28, 2015
but she left during the lunchtime recess and failed to return for the remainder of the hearing .
. Father has been incarcerated for rape of a minor since the initiation of the
dependency proceedings. Testimony established that Father's anticipated release date is in
July 2016 and that he will be a registered sex offender upon his release. Father last resided
with minor children approximately seven (7) to eight (8) years ago. Father testified that
when he and Mother separated he rarely saw the minor children and only obtained
supervised visits with the children through the New York Administration for Children's
Services. Testimony further established that the minor children believe that Father had
sexual relations with minor child, S.S.M., when she was approximately seven (7) years old.
Agency's Exhibit 11, a York County Children's Advocacy Center Interview Summary for
9 S.S.M. dated March 24, 2015, reports that the minor child stated that she and Father "usually
do have sex." Agency's Exhibit 10, a York County Children's Advocacy Center Interview
Sununary for S.S.M. dated July 9, 2014, reports that S.S.M. stated that Mother and Father
starved minor children for ten (10) days and locked them in their bedrooms.
Overall, Mother and Father have made no progress towards alleviating the
circumstances which caused the minor children to be placed and have not assumed any
major parental duties for minor children. Therefore, the Cami finds that the minor
children's best interest demands that the goal be changed from reunification with a. parent to
placement for adoption.
II. Petition for InvoluntaryTerminationof Parental Rights
The Agency argues that Mother's and Father's parental rights to the minor children
should be terminated pursuant to 23 Pa.C.S. §2511 (a)(l), (2), (5), and (8) of the Adoption
Act. The Agency has the burden of establishing by clear and convincing evidence that
statutory grounds exist to justify the involuntary termination of parental rights. In re Child
M., 681 A.2d 793, 797 (Pa. Super. 1996). The clear and convincing standard means that the
evidence presented by the Agency is so "clear, direct, weighty, and convincing" that one can
"come to a clear conviction, without hesitancy, of the truth of the precise facts in issue."
Matter of Sylvester, 555 A.2d 1202, 1202-1204 (Pa. 1989). The Agency must also present
evidence proving that the termination of parental rights will serve the child's best interests.
In the Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 92-93 (Pa. 1998). To
10 determine whether termination is within the best interest of the child, the court must
examine the possible effect the termination would have on the child's needs and general
welfare. In re .Adoption of Godzak, 719 A.2d 365, 368 (1998).
THE AGENCY HAS PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT PARENTAL RIGHTS TO THE MINOR CHILDREN MUST BE TERMINATED PURSUANT TO 23 Pa.C.S. §2511(a)(l)
To terminate parental rights under 23 Pa.C.S. §251 l(a)(l) of the Adoption Act, the
Agency must establish, by clear and convincing evidence, that the parent has either
demonstrated a settled purpose of relinquishing parental claim to a child or has failed to
perform parental duties. In the Matter of Adoption of Charles E.D.M. III, 708 A.2d 88 (Pa.
1998). Once one of the two factors has been proven, the Court must examine the following
three factors:
1. Parent's explanation for the conduct;
2. Post-abandonment contact between parent and child; and
3. Effect of termination on child. Id.
The Agency has proven by clear and convincing evidence that Mother and Father
have failed to perform parental duties for the minor children. Since the adjudication of
dependency, Father has been incarcerated and has not performed any significant parental
duties for the minor children. Father has written letters to the· minor children and sent minor
child, S.S.M., a gift. In light of the testimony regarding Father's sexual interactions with
minors, the Court has grave concerns over Father parenting minor children. Mother has not
11 performed any parental duties for minor children during the dependency proceeding.
Mother has not visited minor children in approximately ten (I 0) months and her last two (2)
visits with minor children occurred at court proceedings. Overall, the Court finds that the
termination of Mother's and Father's parental rights will provide a benefit to the minor
children in that the children will achieve stability and permanency in a loving and safe
home.
Therefore, for all the reasons stated above, the Agency has proven by clear and
. , .: convincing evidence that termination of parental rights to the minor children is justified
pursuant to Section 251 l(a)(l) of the Adoption Act.
THE AGENCY HAS PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT PARENTAL RIGHTS TO THE MINOR CHILDREN MUST BE TERMINATED PURSUANT TO 23 Pa.C.S. §251l(a)(2), (5), and (8)
The Agency has also proven by clear and convincing evidence that the parental
rights to minor children should be terminated pursuant to 23 Pa.C.S. §251 l(a)(2), (5), and
(8) of the Adoption Act. The mandates of these sections are as follows:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental wellbeing and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to removal or placement of the child within a reasonable
12 period of time and termination of the parental rights would best serve the needs and welfare of the child.
(8) The child has been removed from the care of a 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.
The Court finds that the conditions which Jed the minor children to placement
outside the care and custody of Mother and Father continue to exist. The minor children
have been in placement for approximately one (1) year and one (1) month. Minor children
are happy and well-bonded to the foster family. Father has been incarcerated for the entirety
of the dependency proceedings and the Court is concerned with his ability to appropriately
parent minor children in light of his sexual conduct with minors. Upon his release, Father
would need to obtain a job and an appropriate residence. Father testified that he last lived
with minor children in 2007/2008 at which time he moved out of the home and rarely saw
minor children. Father further testified that Mother then moved with the minor children to
Pennsylvania and that he did not visit the minor children while they were residing in
Pennsylvania. It was only when the minor children were brought back to New York by the
Administration for Children's Services to be placed in foster care that Father testified he had
limited supervised visits with minor children in 2009/2010. Father's supervised visits ended
when he was arrested in 2010.
Mother has not visited with minor children in approximately ten (10) months and
testimony established that minor children do not wish to see Mother, Throughout the 13 duration of the dependency proceedings, Mother did not inquire as to the well-being of
minor children. Mother did not keep the Agency informed as to her whereabouts and the
Agency was not able to visit Mother's current residence to determine whether it was safe
and appropriate for minor children. Mother is currently unemployed and on probation for
food stamp fraud.
Overall, Mother and Father are unable to obtain custody of the minor children at this
time and have made no progress in alleviating the circumstances which necessitated the
minor children's placement. In consideration of this this testimony, the Court finds that the
Agency clearly and convincingly established that termination of parental rights is justified
pursuant to Sections 251 l(a)(2), (5), and (8) of the Adoption Act.
IN CONSIDERATION OF §251l(b), TER.l\lIINATION OF PARENTAL RIGHTS WOULD BEST SERVE THE NEEDS AND WELFARE OF THE MINOR CHILDREN
Having established the statutory grounds for the involuntary termination of the
parental rights of Father, the Court' s final consideration is whether termination of parental
rights will best serve the developmental, physical and emotional needs and welfare of the
child. 23 Pa.C.S. §251l(b).
[T]he Court must carefully consider the tangible dimension, as well as the intangible dimension - the love, comfort, security, and closeness - entailed in a parent-child relationship. (citations omitted). The court must consider whether a bond exists between the child and [parent], and whether termination would destroy an existing beneficial relationship. In re: B.N.M., 856 A.2d 847 (Pa. Super. 2004).
14 . The Court has thoroughly evaluated the minor children's relationships in this matter.
The Cami finds that Father has a diminishing bond with minor children. However, the
Court has grave concerns as to whether this bond is a healthy one, especially considering the
minor children's belief as to Father's sexual conduct with minor child, S.S.M. At this point,
the Court believes that, although some level of bond remains between Father and minor.
children, the children will not be negatively impacted by the termination of Father's parental
rights. The Court finds that Mother's bond with minor children has weakened dramatically
since the adjudication of dependency. Testimony established that Mother has not exercised
her visits with minor children and has not seen them in approximately ten (10) months.
Mother has only seen minor children at court proceedings when she had the ability to visit
them every other week. Testimony further established that minor children have no interest
in continuing their relationship with Mother. At this point, the Court believes that the
children will not be negatively impacted by the termination of Mother's parental rights. The
Court also finds that the bond between the minor children and their foster family is healthy
and growing stronger daily. Testimony established that the children are happy and feel
comfortable in their care. Minor children know who their Mother and Father are but it is the
foster parents who take care of their daily needs and act as the children's parental figures.
The bond that the minor children have with the foster family can provide safety, security and
permanency for the children. Therefore, termination of parental rights will best meet the
needs of the children and permit the children to achieve the stability that they deserve.
15 CONCLUSIONS OF LAW
1. The current placement of S.S.M., J.G.K.M., and S.M.M. continues to be necessary
and appropriate. 42 Pa.C.S. §6351(£)(1).
2. Mother and Father have not been able to meet the goals set forth in the family
service plans. 42 Pa.C.S. §6351(£)(2).
3. The circumstances which necessitated the children's original placement have not
been alleviated. 42 Pa.C.S. §6351(£)(3).
4. The current goal for the children of reunification with a parent is no longer feasible
and appropriate because Mother and Father have failed to meet the irreducible
minimum requirements necessary to parent the children. 42 Pa.C.S. §6351(£)(4).
5. The minor children's best interests demand that the CU1Tent goal of reunification w.ith
a parent be changed to placement for adoption.
6. Mother and Father have failed to perform parental duties for a period well .in excess
of six (6) months. 23 Pa.C.S. §251l(a)(l).
7. The Agency has established by clear and convincing evidence that the inability and
refusal of Mother and Father has caused the children to be without parental care,
control or subsistence necessary for their physical or mental well-being and the
conditions cannot be remedied by Mother and Father. 23 Pa.C.S. §251 l(a)(2).
8. The Agency has established by clear and convincing evidence that the children were
removed from the care of the parents for a period in excess of twelve (12) months
16 and have never been returned to the parents' care. The conditions which led to the
children's removal from the parents care continue to exist and Mother and Father
cannot remedy these conditions within a reasonable time. 23 Pa.C.S. §251 l(a)(5)
and (8).
SUMMARY
In conclusion, the Court believes that the termination of Mother's and Father's
parental rights is clearly in the best interests of the minor children to promote their welfare
and allow them to achieve permanency. The Court is therefore executing a Decree
terminating Father's parental rights with respect to S.S.M., J.G.K.M., and S.M.M. and an
Order directing that the current goal ofreunification with parent or guardian for S.S.M.,
J.G.K.M., and S.M.M. is changed to placement for adoption. Said Order also establishes the
concun·ent goal for S.S.M., J.G.K.M., and S.M.M. to be placement with a subsidized
permanent legal custodian.
Dated: November 23, 2015 BY TH~. COURT,
TODD R. PLATTS(JuDGE