In the Interest of: N.M.S., a Minor

• Court: Superior Court of Pennsylvania
• Decided: December 15, 2017
• Docket: 1164 MDA 2017
• Status: Unpublished

Opinion

J-S77017-17 J-S77018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.M.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: P.S., NATURAL FATHER : : : : : No. 1187 MDA 2017

Appeal from the Order Entered June 27, 2017 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-8527

IN THE INTEREST OF: N.M.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: J.L.S., NATURAL : MOTHER : : : : No. 1164 MDA 2017

Appeal from the Order Entered June 27, 2017 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-8527

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 15, 2017

J.L.S. (“Mother”) and P.S. (“Father”) appeal1 from the order, entered in

the Court of Common Pleas of Luzerne County, terminating their parental ____________________________________________

1 We have consolidated the appeals filed at 1164 MDA 2017 and 1187 MDA 2017. See Pa.R.A.P. 513 (“Where there is more than one appeal from the same order, . . . the appellate court may, in its discretion, order them to be argued together in all particulars as if but a single appeal.”). ____________________________________ * Former Justice specially assigned to the Superior Court. J-S77017-17 J-S77018-17

rights to N.M.S. (“Child”), DOB 10/14, pursuant to 23 Pa.C.S. § 2511(a)(2),

(a)(5), (a)(8) and (b). After our review, we affirm.

Luzerne County Children and Youth Services (CYS) became involved due

to Mother’s alcohol use during pregnancy. After Child was born, both parents

were involved in a domestic disturbance, and both parents were arrested. As

a result of this disturbance, as well as parenting and alcohol and drug issues,

Child was placed in emergency protective placement with foster parents on

July 9, 2015. N.T. Termination Hearing, 5/26/17, at 5-6. Child has remained

with foster parents since that time. Id. at 7. One year later, in July 2016,

both parents were arrested for public drunkenness. N.T. Termination Hearing,

3/9/17, at 82.

On February 17, 2017, CYS filed petitions to involuntarily terminate

Mother’s and Father’s parental rights to Child. The Honorable Jennifer L.

Rogers held four hearings, from March through June of 2017. Mother and

Father testified, as well as Paulette Patton, the assigned CYS caseworker,

Alicia Singer, senior clinician at Community Counseling Services, Jeanne

Zbierski, a therapist at Wyoming Valley Alcohol and Drug Services, Melissa

Stambaugh, an outpatient counselor at Wyoming Valley Drug and Alcohol

Services, Megan Kosik, a case manager in the Intensive Family Reunification

Program for Family Service Association, and Maria Bertha, Esquire, Guardian

ad litem for Child.

Following the hearings, the court entered an order terminating Mother’s

and Father’s parental rights to Child. Both Mother and Father appealed. They

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both claim the trial court abused its discretion or committed an error of law in

terminating parental rights and in finding that Child’s best interests would be

served by termination.

In cases involving termination of parental rights, “our standard of review

is limited to determining whether the order of the trial court is supported by

competent evidence, and whether the trial court gave adequate consideration

to the effect of such a decree on the welfare of the child.” In re Z.P., 994

A.2d 1108, 1115 (Pa. Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.

Super. 2009)).

Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. . . . We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence.

In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc) (internal

citations omitted).

Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. 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 means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. We may uphold a termination decision if any proper basis exists for the result reached. If the court’s findings are supported by competent evidence, we must affirm the court’s decision, even if the record could support an opposite result.

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In re Z.P., supra at 1115-16 (internal quotations and citations omitted).

If the court finds grounds for termination under the statute have been

established by clear and convincing evidence, 23 Pa.C.S. § 2511(a), the court

must then consider the developmental, physical and emotional needs and

welfare of the child and determine whether severing the parent-child

relationship is in the child’s best interests. See 23 Pa.C.S. § 2511(b). See

also In re: Adoption of T.B.B., 835 A.2d 837 (Pa. Super. 2003).

Here, CYS sought involuntary termination of both Mother’s and Father’s

parental rights on the following grounds:

§ 2511. Grounds for involuntary termination

(a) General Rule.―The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control 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.

* * *

(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

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reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

(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 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. § 2511(a)(1), (2), (5), (8), and (b).

Parental rights may be involuntarily terminated where any one

subsection of section 2511(a) is satisfied, along with consideration of the

provisions in subsection 2511(b). In re Z.P., supra at 1117. Initially, the

focus is on the parent’s conduct. In re L.M., 923 A.2d 505, 511 (Pa. Super.

2007). The party seeking termination has the burden of proving 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

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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.” Id. (internal citations omitted).

Further, the statute “outlines certain irreducible minimum requirements

of care that parents must provide for their children, and a parent who

cannot or will not meet the requirements within a reasonable time

following intervention by the state, may properly be considered unfit

and have his parental rights terminated.” In re B.L.L., 787 A.2d 1007,

1013 (Pa. Super. 2001) (emphasis added).

At the June 20, 2017 hearing, Mother testified via telephone conference;

she testified that she was living in Florida and had not seen Child for two

months. N.T. Termination Hearing, 6/20/17, at 76. She also stated that it

was her intent to remain in Florida. Id. at 77. Prior to that, when Mother

resided in Pennsylvania, her visits with Child were not consistent. Between

October 2015 and June 2016, Mother had twelve positive screens for alcohol

as well an abnormally diluted specimen. N.T. Termination Hearing, 6/9/17,

at 16-18, 24.

Mother refused inpatient care, which, according to the testimony of

Wyoming Valley Alcohol and Drug Services therapist, Zbierski, was the

appropriate level of care for Mother. N.T. Termination Hearing, 3/3/17, at 23-

25. She was non-compliant with alcohol and drug screens, id., and was

ultimately unsuccessfully discharged from treatment. Id. at 26. Mother was

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also unsuccessfully discharged from the parenting program. N.T. Termination

Hearing, 6/20/17, at 30. At the time of the June 30, 2017 hearing, Mother

had not seen Child for four months. N.T. Termination Hearing, 6/30/17, at

90.

Father attended the termination hearings; he testified that he had

visited Child once a week for the year prior to the hearing and had missed

only a few visits. The testimony indicated, however, that Father attended only

three individual counseling sessions with his substance abuse counselor over

a nine-month period. Id. at 36-37. Counselor Losavich stated that Father

was essentially a “no-show.” Id. Case Manager Dorang, who worked with

Father in the parenting program, testified that Father denied he had a drinking

problem, and did not accept accountability or fault. N.T. Termination Hearing,

3/3/17, at 48-52.

The testimony indicated that neither Mother nor Father completed the

services and programs in the Family Service Plan that CYS developed to

address parents’ ongoing issues of domestic violence, alcohol abuse, and

instability in the home. In particular, both Mother and Father failed to

complete drug and alcohol counseling, remain sober, complete parenting

courses, complete mental health evaluations, including domestic violence

counseling, follow mental health recommendations, maintain consistent

contact with Child, and maintain safe and stable housing. Id. at 49; N.T.

Termination Hearing, 3/9/17, at 36-42; N.T. Termination Hearing, 5/26/17,

at 40-41; N.T. Termination Hearing, 6/20/17, at 18-20, 30-37, 110. See In

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re R.T., 778 A.2d 670 (Pa. Super. 2001) (agency is not required to provide

services indefinitely if parent is either unable or unwilling to apply instruction

given); see also In Interest of Lilley, 719 A.2d 327, 332 (Pa. Super. 1998)

(“If a parent fails to cooperate or appears incapable of benefiting from

reasonable efforts supplied over a realistic period of time, the agency has

fulfilled its mandate and upon proof of satisfaction of the reasonable good faith

effort, the termination petition may be granted.”).

The court also heard testimony from CYS caseworker Patton, who stated

that although there was a bond between Child and both parents, foster parents

had been Child’s primary caretakers for two years and Child’s bond with foster

parents was stronger than that between him and his natural parents. N.T.

Termination Hearing, 6/30/17, at 83-90. Child knew his foster parents as

“Mommy” and “Daddy,” id. at 88, and foster parents have met Child’s every

need. Id. at 90. Patton testified that the priority was permanency in Child’s

life, and, in her opinion, termination would not be detrimental to Child. Id.

Following the hearings, the trial court determined that Child had been

in placement for almost two years, and, during that time, both Mother and

Father failed to remedy the circumstances that led to placement within a

reasonable time. The court found termination was proper under sections

2511(a)(2), (a)(5), and (a)(8). Foster parents, who are an adoptive resource,

provide Child with emotional, physical and financial support, and have done

so for most of Child’s young life. The trial court concluded, therefore, that the

overall needs and welfare of Child are best served by termination of Mother’s

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and Father’s parental rights. The trial court has thoroughly detailed and

evaluated the testimony in its opinion, and stated its findings of fact and

conclusions of law.

After our review of the notes of testimony, the parties’ arguments, and

the relevant law, we conclude that the court’s decision is supported by

competent evidence in the record. B.L.W., supra. We, therefore rely upon

Judge Rogers’ thorough and well-reasoned opinion to affirm the order

terminating Mother’s and Father’s parental rights. See Opinion, 6/12/15, at

10-42 (finding: at time of termination hearing, Child had been in CYS’ custody

and in care of foster parents for approximately 24 months; Mother and Father

had over two years to remedy conditions giving rise to placement and failed

to complete services offered to address alcohol and drug issues, parenting

issues, and the need to maintain stable and safe housing for Child; Child’s

best interests and need for permanency are paramount concerns, and

termination is in Child’s best interests). We direct the parties to attach a copy

of Judge Rogers’ opinion in the event of further proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/15/2017

-9- Circulated 12/12/2017 12:09 PM

v

IN THE INTEREST OF IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY N.S. ORPHAN'S COURT DIVISION

A Minor RECDRl)ff; U8/24/2017 7.: {�: �.:,: f'i'I NO.A-8527 JUDICIAL srnv.rm· (. liH:i.i,;·i-: �u2rnHE cou�m 6l'Ul'I\\'' 1;" • • r r�nn:)•,.vllf��·: . __ .nst Huth 11.11 :tits�,: 1164 MDA 2017 1187 MDA 2017

MEMORANDUM ISSUED PURSUANT TO PA.R.A.P.1q25(a)

I. PROCEDURAL HISTORY

On February 17, 2017, Petitioner, Luzerne County Children and Youth

Services (Children and Youth), filed Petitions for the Involuntary Termination of

Parental Rights (Petition) of the natural father (Father) and the natural mother

(Mother) for the minor child, N.S. On February 23, 2017, Children and Youth

also filed an Amended Petition for the Involuntary Termination of Parental

Rights of the Father.

The first hearing was held on March 3, 2017. Testimony and evidence was

also received at a second hearing on March 9, 2017 and a third hearing on May

26, 2017. Receipt of testimony concluded on June 20, 2017. The hearings

addressed permanency goal change petitions as well as the aforesaid petitions.

This Cotirt issued decrees terminating the parental rights of the natural Father

and natural Mother on June 27, 2017 and also granted the permanency goal

change to adoption. Particularly, Mother's parental rights and Father's parental rights were

both terminated pursuant to 23 Pa.C.S.A. § 2511(a) (2), §2511 (a) (5) and §2511

(a)(8). In entering the termination decrees, the Court gave primary

consideration to the developmental, physical, and emotional needs and welfare of

the child pursuant to 23 Pa.C.S.A. § 2511(b).

On July 27, 2017, Father, by and through his Court-Appointed Counsel,

filed a Notice of Appeal, Nunc Pro Tune, to the Superior Court and the requisite

Statement of Matters Complained of on appeal. Mother also filed her Notice of

Appeal on July 25, 2017. Mother's Statement of Matters Complained of on

Appeal is as follows:

1. The Trial Court abused its discretion, committed an error of law,

and/or there was insufficient support in terminating the parental rights of

the Natural Mother of N.M.S., as the grounds pursuant to 23 Pa.C.S.A.

§2511 (a) (2), (5), and (8) were not established by clear and convincing

evidence, and such granting of a petition to terminate parental rights was

against the weight of the evidence presented by the parties.

2. The Trial Court abused its discretion, committed an error of law,

and/or there was insufficient evidentiary support for the Court's decision

that the best interests of the minor child, N.M.S. would be served by

terminating Natural Mother's parental rights as required by 23

Pa.C.S.A.§2511 (b).

3. Counsel for Natural Mother reserves the right to amend this

document within a reasonable time after receipt of the complete and final

2 transcript and/or the Trial Court's Opinion in Support of the June 27, 2017

Decree.

Father's Statement of Matters Complained of on Appeal is as

follows:

1. The Trial Court erred in granting voluntary relinquishment of

rights pursuant to the requirements of the Adoption Act of 1980, October

15, P.L. 934, No. 163 §1, et. seq.

2. The Trial Court abused its discretion, committed an error of

law, and/ or there was insufficient evidentiary support for the Court's

decision in terminating parental rights insofar as the natural father has

not caused the child to be without essential parental care, control, or

subsistence necessary for his physical well-being.

3. The Trial Court abused its discretion, committed an error of

law, and/or there was insufficient evidentiary support for the Court's

decision that the best interests of the minor child would be served by

terminating Appellant's parental rights.

4. The Trial Court abused its discretion, committed an error of

law, and/or there was insufficient evidentiary support for the Court's

decision insofar as that the conditions that gave rise to placement have

changed and no longer exist, and that the natural father has remedied

those circumstances.

5. The Trial Court abused its discretion, committed an error of

law, and/or there was insufficient evidentiary support for the Court's

3 ·1

decision insofar as that a strong parent-child (sic) was established by

testimony presented at trial.

6. Children and Youth acted improperly in seeking to terminate

Appellant's parental rights.

II. FINDINGS OF FACT

There is one minor child in this case. N.S. was born on October 1 2014,

and he is currently four (4) years old. This case involves the proposed

termination of Father's parental rights and Mother's parental rights.

It is unrebutted that the minor child has been in placement in foster care

since July 9, 2015. The reasons for placement included police involvement

regarding a domestic dispute between the parents with the child present while

the parents were intoxicated. Father was arrested and Mother became agitated

and aggressive resulting in Mother's arrest. Thus, drug and alcohol abuse,

mental health issues and parenting issues were the reasons for placement.

In meeting its requisite burden of proof by clear and convincing evidence

regarding the termination of parental rights of Mother, Petitioner offered the

testimony of Jesse Miller, clinical supervisor for Wyoming Valley Drug and

Alcohol Services; Jeanne Zbierski, therapist for Wyoming Valley Drug and

Alcohol Services, Melissa Stambaugh, outpatient counselor for Wyoming Valley

Drug and Alcohol Services; Megan Kosik, case manager for Family Service

Association; Paulette Patton, caseworker for Children and Youth Luzerne County;

and Alicia Singer, senior clinician for Community Counseling Services.

Additionally, Mother and Father testified on their own behalf.

4 III. CONCLUSIONS OF LAW

After consideration of the credible evidence as summarized above and

more detailed below, the Court concludes:

(1) Children and Youth has shown by clear and convincing evidence

that the parental rights of the Father to the minor child, N.S.,

should be terminated pursuant to 23 Pa. C.S.A. Section

2511(a)(2), 23 Pa.C.S.A. Section 2511 (a) (5) and 23 Pa.C.S.A.

Section 2511 (a) (8).

(2) Children and Youth has shown by clear and convincing

evidence that the parental rights of the Mother to the minor child,

N.S., should be terminated pursuant to 23 Pa. C.S.A. Section

2511(a)(2), 23 Pa.C.S.A. Section 2511 (a) (5) and 23 Pa.C.S.A.

(3) Children and Youth has shown by clear and convincing

evidence the termination of the parental rights of the Father, to the

minor child, N.S., best serves the needs and welfare of the child

pursuant to 23 Pa. C.S.A. Section 2511(b).

IV. DISCUSSION: GROUNDS FOR TERMINATION FOR MOTHER

AND FATHER

The statute permitting involuntary termination of parental rights in

Pennsylvania, 23 Pa. C.S.A. Section 2511, sets forth the certain irreducible

minimum requirements of care that parents must provide to their children. A

parent who cannot or will not meet the requirements within a reasonable time

following the intervention by the State may properly be considered unfit and may

5 properly have his or her rights terminated. In Re: J. T. and R.T., 817 A.2d 505

(Pa. Super. 2002).

Termination of parental rights is an issue of constitutional dimensions

because of the fundamental right of an individual to raise his or her own child.

Therefore, in proceedings terminating parental rights, the Petitioner must prove

by clear and convincing evidence that the statutory criteria have been met.

Santosky u, Kramer, 455 U.S. 745 (1982), In Re: T.R., 502 Pa. 165, 465 A.2d 642 (1983). However, as the Pennsylvania Supreme Court has stated "a parent's

basic constitutional right to custody and rearing of his or her child is converted

upon the failure to fulfill his or her parental duties to the child's right to have

proper parenting in fulfillment of his or her potential in a permanent, healthy,

safe environment." In Re: J.A.S., Jr., 2003 Pa. Super. 112, citing In the

Interest ofLillie, 719 A.2d 327 (Pa. Super 1998). The Court notes that in Father's concise Statement of Matters Complained

of on Appeal, in error 1, Father alleges that the Trial Court erred in granting

voluntary relinquishment of rights of the Father. The Father in this case did not

voluntarily relinquish his parental rights and the Court did not enter an Order on

that issue. Therefore, the Court will not be addressing error 1 alleged by the

Father.

A. 23 Pa. C.S.A. Section 2511 (a) (2)

A Court may terminate parental rights under Section 2511(a) (2) when:

The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well being and the conditions of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

6 Accordingly, Mother's parental rights and Father's parental rights to the

child, N.S., can be terminated under Section 2511(a) (2) of the statute. Credible

testimony at the termination hearing was presented to show by clear and

convincing evidence that both Mother and Father continued to struggle with their

alcohol addiction. Both parents failed to complete their mental health treatment,

their drug and alcohol treatment and failed to provide adequate and stable

housing for the child over a two year period.

Both Mother's struggle and Father's struggle with alcohol is a repeated and

continued incapacity throughout the period of the child's placement. Both

Mother and Father were not compliant with services offered by the agency. As a

result of Mother's issues and Father's issues with alcohol and their inability to

maintain adequate and stable housing for the child, Mother and Father are

unable to provide the proper and essential care for N .S. that is necessary for

N.S.'s wellbeing.

1. Facts pertaining to Mother:

Ms. Paulette Patton testified that she is the assigned caseworker for Children and

Youth Luzerne County. Ms. Patton testified that the child was born on October 1,

2014. Ms. Patton testified that she became involved in the case due to Mother's

alcohol use while she was pregnant with the child and then domestic violence.

N.T. 5/26/17 (afternoon testimony) at 3, 5, Ms. Patton testified that the child was

placed on July 9, 2015 due to the parents becoming involved in a domestic

dispute. According to Ms. Patton, while Father was being placed under arrest,

Mother became agitated and aggressive and was also arrested. The child was

7 then taken into protective custody. Id. at 5-6. Ms. Patton testified that Children

and Youth developed a family service plan for the family. The services provided

for the family were drug and alcohol evaluation, mental health evaluation,

parenting services, couples counseling and maintaining safe a�d stable housing.

The plan was adopted by the court as a court Order. Id. at 6-7; N.T. 6/20/17, at

25, 26.

Ms. Patton testified that Mother did not complete the court ordered

services. For instance, Mother was referred for drug and alcohol evaluation

several times. She was referred for mental health services. She commenced

services and then stopped. Children and Youth first attempted to refer the

parents to "Concern" for a parenting education program; however, parents were

required to have "clean" toxicology screens. Mother and Father could not

maintain "clean" screens. Therefore, Mother and Father were referred to Family

Services Association for parenting education. However, Mother was discharged

unsuccessfully from parenting on December 5, 2016. Ms. Patton explained that

Mother was not progressing with the goals set for her. She was missing

appointments and not following recommendations. N.T. 6/20/2017 at 37.

With respect to relationship counseling, Ms. Patton stated that Mother

and Father told the counselor that they did not need counseling. With respect to

mental health, Mother saw a psychiatrist and also a physician's assistant for

medicine management. Ms. Patton testified that at first, Mother participated in

her mental health program, but then stopped participating. Mother re-engaged

and then further ceased participation. In January 2017, Ms. Patton spoke to

Mother about ending her services with Community Counseling. At first, Ms.

8 ,·-

Patton stated that Mother denied stopping the services. Then Mother assured

Ms. Patton she would return to Community Counseling. However, Ms. Patton

stated that Community Counseling advised her that Mother did not return. Id. 7-

9. Ms. Patton further testified that she referred Mother to a drug and alcohol

evaluation at Wyoming Valley Alcohol and Drug Services; however, Mother did

not complete that evaluation. Ms. Patton testified that under the permanency

plan, Mother was required to comply with drug screens; however, Mother was

not fully compliant with toxicology screens. According to Ms. Patton, in July

2016, Mother twice refused to submit to toxicology screens. In August 2016,

Mother refused four (4) times to submit to toxicology screens. In September and

October of 2016, she refused screening once each month. In November 2016, she

refused seven (7) times and in December 2016, she refused four (4) times. Id. at

9-10.

With respect to Mother's visitation schedule, Ms. Patton testified that

Mother's schedule consisted of Monday and Wednesday visits each week. Mother

was attending the visits until March of 2017. In March of 2017, Mother called

and cancelled claiming she was ill. Mother did not call Ms. Patton again to

schedule any visits. Id. at 10-11.

Ms. Patton testified that Mother's addiction for alcohol and the issue of

domestic violence with her husband causes safety concerns for the child. Despite

the entry of a Protection from Abuse Order which addressed contact between the

parents, Mother returned to reside with the Father and the child. Ms. Patton

testified that since placement, Mother was involved in physical altercations with

9 .,

the Father in February, April, and July of 2016. Police responded to each

altercation. Id. at 13. In 2017, Ms. Patton indicated that Father violated the

Protection from Abuse Order by attempting to have contact with the Mother N.T.

6/9/2017 at 30-31.

Counsel for Children and Youth and counsel for Mother stipulated that

between October of 2015 and June of 2016, Mother had twelve (12) positive

screens for alcohol. Ms. Patton testified that between July 13, 2016 and

November 9, 2016, Mother had thirteen (13) negative screens for alcohol.

However, on July 25, 2016, and October 4, 2016, Mother tested positive for ethyl

glucuronide, an alcohol by-product. On October 11, 2016, Mother's screen

indicated an abnormally diluted specimen. Id. at 16-18, 24. Thus, Mother tested

positive for alcohol during the aforesaid applicable time period and did not show

a consistent time period of sobriety. Furthermore, Mother did not complete the

drug and alcohol services provided to her which were essential to help her with

her sobriety. Furthermore, as of the filing of the Petition for Termination of

Mother's Parental rights, Mother did not have stable housing for the child.

Housing assistance was offered to her and the child several times, yet she

declined and returned to her husband.

Therefore, according to Ms. Patton, Mother has not remedied the

circumstances that led to the minor child's placement. Ms. Patton emphasized

that although Mother was referred for counseling numerous times, she did not

follow through with the program. She also did not follow through with parenting.

Furthermore, after the child was placed on July 9, 2015, Mother continued to

have contact with Father and continued to be involved in domestic disputes with

10 him. Ms. Patton testified that Children and Youth's concerns were that Mother

did not complete any of the services offered to her: drug and alcohol, mental

health, parenting and that she did not obtain or maintain safe and stable housing.

Id. at 32.

Jesse Miller testified that he is the clinical supervisor for Wyoming Valley

Alcohol and Drug Services and has been an employee of that facility for

approximately 10 years. Mr. Miller testified that Mother was referred to

Wyoming Valley Alcohol and Drug by Children and Youth in the fall of 2014. Mr.

Miller testified that Mother was recommended to participate in "Stepping

Stones", a partial hospitalization program, due to Mother's ongoing alcohol use.

Mr. Miller described Stepping Stones as an intensive outpatient program for six

(6) weeks consisting of eighteen (18) sessions, three (3) days per week, four (4)

hours per day. N.T. 5/26/17, p. 11. Mother did not engage in any of the

recommended services. Mother did complete an evaluation on April 6, 2015 and

was recommended to participate in a partial hospitalization program; however,

Mother refused. Then Mother was recommended to participate in individual

counseling. Id.at 8. Mr. Miller testified that Mother participated in two (2)

evaluations and both times she was recommended to participate in a partial

hospitalization program. Mother refused to participate in the programs. Id.at 9-

10.

Ms. Jeanne Zbierski testified for Children and Youth. Ms. Zbierski

testified that she is employed as a therapist at Wyoming Valley Alcohol and Drug

Services. Ms. Zbierski stated that she has worked in that capacity for thirty-eight

(38) years. Ms. Zbierski testified that she saw Mother for two (2) sessions on

11 September 9, 2015 and December 31, 2015. Id. at 15. Mother was referred to Ms.

Zbierski for assessment and treatment. Ms. Zbierski indicated that Mother was

scheduled to see her seven (7) times, but only saw her twice. Id.at 23. Ms.

Zbierski further stated that Mother was first scheduled for an· appointment on

April 29, 2015. Mother rescheduled to June 1, 2015. However, Mother did not

appear for that appointment. Mother attended the rescheduled appointment on

September 9, 2015. Id. at 16. At the first appointment, Mother stated she was

still consuming alcohol and was arrested as a result of her consumption for child

endangerment. Mother was then referred to outpatient counseling services;

however, Mother refused to attend. Id. at 16-17. Ms. Zbierski testified that

Mother was then scheduled for another appointment on October 27, 2015;

however, Mother did not appear for her appointment. Mother was later seen on

December 31, 2011. Ms. Zbierski testified that Mother stated that she was still

consuming alcohol to the point of intoxication. Id. at 17, 21. Ms. Zbierski stated

that she strongly recommended that Mother participate in a higher level of care

such as the adult partial program, due to her inability to refrain from consuming

alcohol. However, Mother refused to participate in the program. Id. at 17. Ms.

Zbierski testified that Mother was scheduled for another appointment on January

5, 2016; however, Mother did not appear. Mother was given a final appointment

for February 9, 2016 and Mother again did not appear. Ms. Zbierski stated that

she could not give any update on Mother's progress due to Mother's inconsistent

attendance and her resistance to treatment. Id. Ms. Zbierski testified on cross

examination that it is possible for someone to be referred to the Adult Partial

Program for only one incident with alcohol and alleged domestic violence;

12 however, Ms. Zbierski emphasized that Mother did notjust have one incident

involving alcohol. Ms. Zbierski stated that Mother admitted at her meetings to

consuming alcohol to the level of intoxication. Id. at 21.

Ms. Melissa Stambaugh testified that she is employed part time as an

outpatient counselor at Wyoming Valley Drug and Alcohol Services. Ms.

Stambaugh testified that she met Mother on July 21, 2016. She was working with

Mother on an outpatient level and had regular outpatient sessions with Mother.

Ms. Stambaugh testified that she recommended Mother to Relapse Prevention

Group. Id. at 26. Ms. Stambaugh explained that Mother had problems with her

alcohol usage and she was looking to educate Mother in the program to remain

substance free. Id. at 27.

Ms. Stambaugh testified that on September 9, 2016, October 4, 2016 and

October 11, 2016, she sent Mother for random urine screens. On September 9,

2016, Mother failed to attend the random urine screen. On October 4, 2016,

Mother submitted to the urine screen and tested positive for alcohol. On October

11, 2016, Mother submitted to the urine screen and her sample was diluted. Ms.

Stambaugh testified that on October 13, 2016, she re-evaluated Mother and

recommended her to a higher level of care such as an inpatient d111g and alcohol

facility. Id. However, Mother refused to enter into an inpatient drug and alcohol

facility. Therefore, according to Ms. Stambaugh, Mother was placed into an

Adult Partial Program, a lower level of care. Ms. Stambaugh emphasized,

however, that Mother needed the inpatient level of care. Id. at 28.

Ms. Stambaugh testified that Mother was not in compliance with her

treatment as she refused to enter into an inpatient drug and alcohol treatment

13 facility. Ms. Stambaugh further testified that on November 11, 2016, she met

with Mother for an outpatient session and sent Mother for a random urine

screen. However, Mother failed to submit to the screen. Ms. Stambaugh also

testified that Mother did not return to her last group on November 30, 2016.

Mother left treatment. Therefore, according to Ms. Stambaugh, Mother was not

in compliance with treatment. Id. On December 9, 2016, Ms. Stambaugh

testified that she scheduled a follow-up appointment with Mother; however,

Mother failed to show up for the appointment. Also, Ms. Stambaugh further

added that Mother did not appear for an intake appointment on March 2, 2017.

Ms. Stambaugh stated that between November 2016 and March 2017, Mother did

not attend any sessions with Wyoming Valley Alcohol & Drug. However,

according to Ms. Stambaugh, on March 2, 2017, Mother referred herself for care.

She did not appear for her appointment. Ms. Stambaugh testified that Mother

did not complete any level of care in order to address drug and alcohol use

concerns. Ms. Stambaugh testified that Mother related to her that she was

excessively consuming alcohol several times per week. ,Mother was drinking to

the point where she needed to be detoxed in an inpatient facility. Mother refused

to comply. Id. at 29.

Ms. Megan Kosik testified that she is a case manager for Family Service

Association in the Intensive Family Reunification Program. Id. at 36. Ms. Kosik

testified that she began working with Mother in September of 2016. Ms. Kosik

described Mother's attendance with the program as sporadic. Mother was

required to attend twelve (12) sessions. According to Ms. Kosik, Mother

attended five (5) sessions. Ms. Kosik stated that Mother missed a session on

14 September 1, 2016 and another session on November 10, 2016. Then Mother lost

contact with Ms. Kosik from November 10, 2016 to December 5, 2016. Jd. at 37-

38.

AB part of the Intensive Family Reunification Program, Mother was

required to meet four (4) goals: 1) parenting effectively; 2) maintaining her

sobriety and understanding the impact of her sobriety upon her parenting; 3)

seeking employment and 4) maintaining safe and stable housing. Ms. Kosik

testified that during Mother's sessions, Mother would seem to understand her

issues with alcohol and the steps she needed to take for treatment; however,

Mother would not apply what she learned in the sessions to address her issues

with alcohol. Therefore, Mother did not allow herself to benefit from the

program. Id. 38.

Ms. Kosik testified that she observed four (4) visits between Mother and

the child. Overall, Ms. Kosik testified that Mother was able to achieve the first

goal which involved applying the parental skills she learned in the sessions.

However, according to Ms. Kosik, Mother was not successful with the second goal

which involved gaining knowledge on healthy relationships and understanding

how Mother's decisions affect her ability to parent her child. According to Ms.

Kosik, Mother stated to her multiple times during a session on September 15,

2016 that she would choose her husband over her children and had already done

so several times. Id. 39-40. Ms. Kosik testified that Mother was also not

successful with the third goal which involved maintaining Mother's sobriety and

understanding its effects. Ms. Kosik testified that Mother had several relapses

with alcohol while she had a Protection from Abuse Order from her husband and

15 her husband also had a reciprocal Protection from Abuse Order. Ms. Kosik

testified that Mother and Father would consume alcohol together. Ms. Kosik also

stated that Mother related to her that there was a physical altercation that

occurred on September 15, 2016 at a bar in which Mother was consuming alcohol

and the police were involved. Ms. Kosik stated that Mother, on a monthly basis,

would leave father and then return to him. For instance, Mother stated she

would seek services from a Domestic Violence Center and then a month later, she

would return to her husband. Id. 40-41.

Ms. Kosik further stated that Mother did not meet the fourth goal which

involved seeking employment and securing housing. Ms. Kosik testified that

Mother was in a Domestic Violence Center and a Bridge Program was set up for

Mother to secure housing. However, Mother declined that opportunity and left

without notice and returned to her husband. Mother was also in the domestic

violence shelter again and she applied for housing at Sherman Hills Apartments.

Mother was approved for housing; however, Mother declined again and left to

return to her husband. Id. at 41-42; N.T. 5/26/16 (afternoon testimony) at11-12.

Ms. Kosik, therefore, closed Mother's case for non-compliance on December 5,

2016. Ms. Kosik explained that as part of the intensive program, there must be a

minimum of weekly visits. Ms. Kosik reiterated that Mother cancelled her

appointment on September 1, 2016 and November 1, 2016 and there was not

contact between November 8, 2016 and November 17, 2016. Ms. Kosik stated

that Mother did not return any of her telephone calls or messages. Therefore,

Mother was not compliant with the program due to her lack of contact.

16 According to Ms. Kosik, Mother did not successfully complete the services with

the program. N.T. 5/26/16 (morning testimony) at 42.

On cross examination by the Guardian Ad Litem, Ms. Kosik testified that

when Mother returned to Father, she placed the child in a dangerous situation.

Ms. Kosik explained that the initial referral was a domestic dispute which

involved the police arriving at the parents' residence and finding Mother and

Father intoxicated, the child without proper hygiene and the residence in filthy

condition. Id. 48.

Alicia Singer testified that she is employed at Community Counseling

Services as a senior clinician. Ms. Singer indicated that Mother has not been

compliant with the services from 2015 to the time of the hearing. N.T. 6/20,

2017. Ms. Singer testified that Mother appeared for an intake on March 27, 2015

and completed the assessment. Ms. Singer indicated that in 2015, Mother was

scheduled for eleven (11) appointments that year. Mother only attended five (5)

appointments, four of them were doctor's appointments and the other was a

therapy appointment. She failed to attend six ( 6) appointments, five (5) of them

were physician appointments and the other was a therapy appointment. Mother

failed to appear for her appointments without calling to cancel. Therefore,

according to Ms. Singer, Mother was not compliant in 2015. Id. at 18-19.

Ms. Singer testified that Mother was also not compliant in 2016. Mother

was required to attend twelve (12) appointments for that year. Mother only

attended six (6) appointments, two therapy appointments and four physician

appointments. She failed to attend two (2) therapy appointments and three (3)

physician appointments. On April 13, 2016, Mother cancelled a physician

17 appointment. According to Ms. Singer, the last scheduled appointment Mother

had with Community Counseling Services was April 21, 2017. However, Mother

cancelled the appointment. Id. at 19-20. Ms. Singer testified that Mother

received medication management and individual therapy services. However,

according to Ms. Singer's records, the last appointment Mother had with her

psychiatrist for her medication management was June 2, 2016. Since that date,

Ms. Singer testified that Mother failed to keep any other appointments. Id. at 20-

21. Ms. Singer stated that Mother did not have any appointments in 2017. Ms.

Singer indicated that the records do not show that Mother successfully completed

treatment, nor do the records show that Mother was compliant with the services.

Mother testified that she currently resides with her mother and the child's

half sibling in Florida. She testified that the home has four (4) bedrooms and is

clean and appropriate for living. N.T. 6/20/17 at 63. Ms. S· /., however, did

not offer any testimony on steps she had taken to remedy her addiction to alcohol

and her mental health. Although she may have remedied housing concerns by

residing with her mother in Florida, there were additional grave concerns that

Mother had to overcome in order to safely parent the child. She did not.

2. Facts pertaining to Father:

Ms. Paulette Patton, an ongoing caseworker for Children and Youth,

testified that according to the permanency plan, Father was ordered to 1) undergo

a mental health evaluation and follow all recommendations; 2) undergo a drug

and alcohol evaluation and follow all recommendation.g) attend parenting

sessions and 4) maintain safe and stable housing. Ms. Patton testified that

Father was referred to Community Counseling; however, he never completed

18 services. Father was referred in October of 2014. He was referred again in March

of 2015, but he did not meet with a psychiatrist. N.T. 3/9/17 at 41.

According to Ms. Alicia Singer, the senior clinician, at Community

Counseling Services, Father failed an intake appointment on January 6, 2015. He

appeared for an intake appointment on January 29, 2015. On April 22, 2015, he

canceled an appointment for his evaluation with a psychiatrist. On August 12,

2015, Father missed another physician appointment. Therefore, pursuant to Ms.

Singer's records, Father attended one appointment at Community Counseling

which was the intake appointment on January 29, 2015. Id. at 27-28.

Ms. Patton testified that Father was referred to a parenting education

course in November of 2015; however, he was not able to participate because he

was required to be substance free to remain in the program. Father was then

referred to the Intensive Family Reunification program in 2016, but according to

Ms. Patton, he was discharged from the program. Ms. Patton testified that with

respect to urine screens, Father was also not compliant. Ms. Patton testified that

Father would be given a drug screen request whenever he came for a visit;

however, Father refused to go. Father, at times, refused to take the drug screen

slip when it was given to him. Id. at 41-42, 44-45. Ms. Patton did indicate that

between June and January of 2017, Father did submit to some toxicology screens.

Id. at 43. Ms. Patton testified that Father attended drug and alcohol sessions

sporadically, but stopped participating at the end of 2015. Id. at 41.

Father testified that many times, he was not given paperwork to submit to

a toxicology screen. He testified that he believed he did not have a substance

abuse issue. Father also denied being intoxicated at the time of placement and

19 placed complete blame on the Mother. Father also testified that since he did not

have a substance abuse issue and he did not require the drug and alcohol

services. N.T. 6/20/17 at 77-78 Eventhough Father testified that he did not have

a substance abuse issue, he then changed his testimony and stated that he did

have a problem with alcohol due to stress, but that he now has it under control.

Id. at 94-101-102. This Court finds Father's testimony inconsistent and not

credible.

Ms. Patton testified that Father was also referred to relationship

counseling. Father was referred to Community Counseling for that purpose;

however, Father appeared with Mother at Community Counseling and stated that

he did not need relationship counseling even though he and Mother were both

arrested for an incident relating to domestic violence that same year. Children

and Youth referred the parents for relationship counseling at Community

Counseling Services; however, Community Counseling would no longer permit

them to attend as parents stated they did not need counseling. Ms. Patton

testified that Children and Youth referred the parents to Family Services

Association. However, that agency only agreed to see them separately due to the

incidence of domestic violence in their relationship. Father participated in one

appointment. Father did not appear for his next appointment and then did not

reschedule for another appointment. Id. at 45-46.

Ms. Patton testified that she was concerned that Father has not remedied

any of the issues that led to placement of his child. Domestic violence was one of

the reasons for placement, yet Father did not participate in any of the services.

Ms. Patton testified that Mother informed the agency that she had a Protection

20 from Abuse Order against Father and that he had a reciprocal Order against her.

Both parents were arrested in 2015, due to an incident involving domestic

violence. Id. at 46. According to Ms. Patton, Father violated the Protection from

Abuse Order in 2016 and 2017.

With respect to both Mother and Father, based on the testimony of various

witnesses, summarized above, and based on the evidence presented to the Court,

the Court finds that subsequent to the placement of the child on July 9, 2015,

both Mother and Father did not complete the required services for mental health

treatment and drug and alcohol treatment. Also, as of the date of filing of the

Petition for Termination of Parental Rights both Mother and Father were not

able to maintain adequate safe housing for the child due to their domestic abuse

toward one another and continuing to reside together despite the abuse.

Therefore, the Court finds that both Mother and Father have not been able to

remedy the conditions that gave rise to the placement of the child.

Unlike 23 Pa.C.S.A. § 2511(a)(1), subsection (a)(2) does not emphasize a

parent's refusal or failure to perform parental duties, but instead emphasizes the

child's present and future need for essential parental care, control or subsistence

necessary for his physical or mental well-being. Therefore, the language in

subsection (a) (2) should not be read to compel courts to ignore a child's need for

a stable home and ... this is particularly so where disruption of the family has

already occurred and there is no reasonable prospect for reuniting it." (our

emphasis added) In re E.A.P., 944 A.2d 79 (Pa. Super 2008).

Given the overwhelming evidence and testimony, it is clear that both

Mother and Father have received and/or has been offered extensive services over

21 the years and they have failed to complete the services or even benefit from the

services.

At this juncture, the child's right to have proper parenting in fulfillment of

his potential in a permanent, healthy, safe environment outweighs Mother's and

Father's interest .. In Re: J.A.S., Jr., 2003 Pa. Super. 112, citing In the

Interest ofLillie, 719 A.2d 327 (Pa. Super 1998). V. DISCUSSION: GROUNDS FOR TERMINATION FOR MOTHER

A,NDFATHER

A. 23 Pa. C.S.A. Section 2511 (a)(5)

A Court may terminate the parental rights under Section 2511(a)(5) when:

The child has been removed from the care of the parent by the Court or under voluntary agreement with an agency for a period of at least six months, the conditions of which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

Mother's parental rights and Father's parental rights may also be

terminated under this provision of the Statute. Under 23 Pa.C.S.A. Section

2511(a) (5), the agency must show: (1) the child has been removed from the care

of the parent by the Court for a period of at least six months; (2) The conditions

giving rise to placement continue to exist, (3) Those conditions will not be

remedied in a reasonable period of time, and (4) Termination of parental rights

would best serve the needs and welfare of the child.

(1) (2) CHILD REMOVED BY THE COURT FOR A PERIOD OF A LEAST SIX

MONTHS AND CONDITIONS CONTINUING TO EXIST

22 The child was originally placed on July 9, 2015 due to an emergency

shelter care order issued by the Court. Therefore, the child has been removed

from his Mother and Father for at least six (6) months. It is also clear through

the testimony outlined above, that the natural Mother and Father have been

unable to resolve the issues that gave rise to the placement of the minor child,

N .S., i.e. inability to stay drug free, inability to complete mental health services

and inability to complete parenting sessions. Although Father testified that he

has been sober and no longer has an issue with alcohol. Father did not present

independent evidence verifying his statements. The evidence the Court has is

Father's refusal to attend drug screens. Furthermore, although Mother stated she

moved to Florida and resides in a home with her Mother that is appropriate for

the child, Mother never provided evidence to support the contention. Mother left

for Florida and only notified her counsel of her change in residence. Despite the

change in residence, Mother's issue with alcohol abuse is a significant factor in

this case which Mother has yet to remedy. The overwhelming evidence shows

that all of these issues have yet to be remedied by Mother and Father as both

parents never completed the services ordered by the Court to address their

alcohol and drug issue, their mental health issue, parenting issues and the need

to maintain safe and stable housing for the child.

The Court has recognized this issue above in its analysis of Section 2511(a)

(2) and finds the same considerations apply for 2511 (a)(5) that have already been

discussed extensively in this memorandum. Furthermore, the Court applies this

same reasoning in concluding that the natural Mother and natural Father failed

23 to remedy the conditions that originally gave rise to placement of their minor

child, N.S.

(2)REMEDY OF CONDITIONS IN REASONABLE TIME

Both Mother and Father have had over two (2) years to remedy the

conditions which gave rise to placement, yet the evidence shows that they have

been unable to make any progress. Mother attempted to rectify safe and stable

housing by indicating that she moved to Florida and that she is no longer residing

with Father. Despite Mother's attempt to rectify safe and stable housing for the

child, the fact remains that Mother did not remedy her issue with drug and

alcohol and mental health. Father attempted to rectify his issue with alcohol by

stating that he is no longer consuming alcohol, yet produced no evidence

verifying his statements. This Court finds that Father has been and is unable to

remedy the conditions that gave rise to placement of the minor child within a

reasonable time period.

(3) NEEDS AND v\TELFARE OF THE CHILD

The term "needs and welfare" of a child refers to both tangible and intangible

needs. The intangible needs of a child include love, comfort, security and

closeness. In re Matsock, 416 Pa. Super. 520, 611 A.2d 737, 747 (1992). There

is nothing in the record that shows that the natural Mother and Father are

presently capable of providing a safe, secure environment for the minor child.

Parental duty is best understood in relation to the needs of a child. These

needs, both physical and emotional, cannot be met by a mere passive interest in

the development of the child. Meeting a child's needs is a positive duty that

24 •• t

requires affirmative performance. In re Shives, 363 Pa. Super. 225, 525 A.2d

801, 802 (1987).

A parent is not relieved of his or her responsibility relating to the needs of

a child when a child has been placed in foster care. A non-custodial parent has a

duty to exert himself to take and maintain a place of importance in the child's life.

In re Adoption ofM.J.H., 348 Pa. Super. 65, 501A.2d 648 (1985). A parent must demonstrate a continuing interest in the child and make a genuine effort to

maintain communication and association with the child. In re Adoption of

McCray, 331 A.2d 652 (Pa. 1975). Moreover, a parent with a child in foster care has an affirmative duty to work toward the return of the child. In Re: William

L., 477 Pa. 322, 383 A.2d 1228 (1978).

When considering the needs and welfare of the child, it is also important

for the court to consider the bond between the parent and the child because

severance of a strong parental bond can have a detrimental impact on the child.

Matsock, supra. The Petitioner presented testimony regarding the best interest of the child.

Ms. Paulette Patton testified that the child has been placed with the Br .__ .1

family since August of 2015. The family consists of foster mother and foster

father, their biological child and one other adoptive child. The child has been

assimilated into the family. He is accepted as a family member. He celebrates

his birthdays and all holidays with the family. He vacations with the family. Ms.

Patton testified that the child is involved in gymnastic class called "Mommy & Me

Gymnastics." N.T. 6/20/2017 at 83.

25 Ms. Patton testified that she has observed the family with the child on a

monthly basis since August of 2015. Ms. Patton testified that the foster parents

meet the child's physical needs. They offer him a home, clothing, food and

transport him to physician appointments. The foster parents also meet the

child's developmental needs. They insured that his speech was well developed.

They toilet trained him and taught him to develop from bottle feeding to regular

food. Ms. Patton testified that the foster parents also meet the child's emotional

needs. The foster parents and the child are very affectionate toward each other.

They hug each other. Ms. Patton further added that when the child is upset, the

foster parents comfort him. Also, if the child misbehaves, they provided

appropriate discipline measures such as "time-out". Id. at 84-85.

Ms. Patton testified that she did observe the natural mother's interaction

with the child. Ms. Patton indicated that at the last visit she had with the child,

the Mother put the child to sleep so that she could spend the time using her cell

phone. Ms. Patton testified that she thought that the child has a bond with his

Mother in that he is happy to see her. However, the child can also easily move

away from his Mother and go with the foster parents. Ms. Patton testified that

she was able to observe the interaction between the natural father and the child.

Ms. Patton stated that there is a bond between them; however, the child does not

reach for him or seem excited to see him. Ms. Patton also testified that at the last

visit in June of 2017, Father did not show up for a visit with the child. The child

was not upset when the Father did not appear. Id. at 86-87.

Ms. Patton testified that there is a very strong bond between the foster

parents and the child. The child becomes upset ifhe is separated from them and

26 calls themMommy" and "Daddy". They are always happy to one another.

Whenever the foster parents see the child, they pick him up and hug him. Ms.

Patton testified that the bond between the foster parents and the child is much

stronger than the bond between the natural parents and the child. Ms. Patton

explained that the foster parents have been the primary caretakers of the child for

the past two years and he looks to them for all his needs. Id. at 88-90

Ms. Patton further testified that should the parental rights be terminated,

there would not be any detrimental effect on the child. The child would have

permanency. Ms. Patton further believed that adoption of the child by the foster

parents would be in the best interest of the child. Id. at 90-91. The foster parents

also understand that should they adopt the child, he would become their full

responsibility and would support the child financially. Id. at 109-110.

Even if the Court were to consider Father's testimony on bonding, the

Court notes the following language of the Superior Court in Re: K.K.R.-8., 958

A.2nd 529, 535 (Pa. Super 2008).

HA child's feelings toward a parent are relevant to the section 2511 (b) analysis. Nonetheless, concluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent it not only dangerous, it is logically unsound. If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent. "The continued attachment to the natural parents, despite serious parental rejection through abuse and neglect, and failure to correct parenting and behavior disorders which are harming the children cannot be misconstrued as bonding".

In the case sub judice Mother and Father have failed to correct their

behavior in their inability to remain drug and alcohol free, their inability to

comply with mental health treatment and their lack of proof in demonstrating

27 c • •

that they have safe and stable housing for the child. The overwhelming evidence

shows that all of these issues have yet to be remedied by both Mother and Father.

The Court finds that the termination of Mother's parental rights and Father's

parental rights would best serve the needs and welfare of the child.

Accordingly, the court finds that the termination of Father's parental

rights would best serve the needs and welfare of the child.

VI. DISCUSSION: GROUNDS FOR TERMINATION FOR FATHER.

A, 23 Pa. C.S.A. Section 2511 (a) (8)

A Court may terminate the parental rights under Section 2511(a) (8) when:

The child has been removed from the care of the parent by the Court or under Voluntary agreement with an agency, twelve (12) months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination would best serve the needs and welfare of the child.

Parental rights may be terminated under this provision of the Statute.

Under 23 Pa.C.S.A. Section 2511(a)(8), the agency must show: (1) The child has

been removed for at least twelve (12) months, (2) The conditions that gave rise to

placement continue to exist, and (3) Termination of parental rights would best

serve the needs and welfare of the child.

(1) TIME PERIOD OF REMOVAL OF CHILD

It is undisputed that minor child, N.S., have been removed from the

custody of Mother and Father, since July 9, 2015. Accordingly, this removal has

persisted well in excess of the statutorily required twelve (12) months since the

date of the child's placement. Thus, the requisite minimum of at least 12 months

28 ·J

from removal of minor child from Mother and Father have elapsed so as to

comply with this section of 2511(8).

(2) CONDITIONS CONTINUING TO EXIST

The conditions that led to the child's removal from Mother's care and

Father's care and into placement were Mother's inability and Father's inability to

remain drug free during treatment, their inability to provide and maintain safe,

stable and adequate housing due to the domestic violence between them, their

inability to complete the drug and alcohol treatment and mental health treatment

and their inability to complete parenting sessions. The Court has performed the

above extensive analysis in taking testimony and finding credible evidence. The

Court thus concludes that Mother and Father failed to derive any benefit from

services offered to them. Therefore, the conditions that gave rise to placement

continue to exist.

In discussing and finding that conditions which led to placement continue

to exist, the Court incorporates its reasoning and the testimony of all witnesses

already discussed in this Memorandum found in the section addressing 23 PA.

C.S. Section 2511 (a) (2).

(3) NEEDS AND WELFARE OF THE CHILD

Once the Court has found that involuntary termination of parental rights is

warranted under the Act, the court must then "give primary consideration to the

developmental, physical and emotional needs and welfare of the child. I}

The Court has done this and finds the same considerations apply that have

already been discussed extensively in this memorandum. Furthermore, the Court

29 ·I I \·

applies the same reasoning for concluding that these needs will be served by the

termination of Mother's parental rights and Father's parental rights.

VII. ADDITIONAL CONSIDERATIONS UNDER 23 P.A.C.S.A. SECTION 2511(b)

FOR MOTHER AND FATHER

A, ENVIRONMENTAL FACTORS

Title 23 Pa. C.S.A. Section 2511(b) specifies that a court may not terminate

the parental rights "solely on the basis of environmental factors such as

inadequate housing, furnishings, income, clothing, and medical care if found to

be beyond the control of the parent." In fact, in this case, Mother more than once

was offered housing with the child, yet Mother declined and returned to reside

with the Father resulting in more domestic abuse issues.

As "environmental factors beyond the control of Father" was not the linchpin

in the placement of the minor child and because of the presence of other,

independent factors utilized in the placement of N.S., this consideration does not

apply and will not be addressed.

B. NEEDSANDWELFAREOFTHECHILD

Once the Court has found that involuntary termination of parental rights is

warranted under the Act, the court must then "give primary consideration to the

developmental, physical and emotional needs and welfare of the child." This is to

be a separate inquiry and even where the court has already considered the needs

and the welfare of the child under one of the grounds of termination, the court

must do so again. In re Matsock, 611 A.2d 738 (1992).

30 The Court has done this and finds the same considerations apply that have

already been discussed extensively in this memorandum. Furthermore, the Court

applies the same reasoning for concluding that these needs will be served by the

termination of Mother's parental rights and Father's parental rights.

VIII. ADOPTION AND SAFE FAMILIES ACT (ASFA) CONSIDERATIONS

Recently, the Pennsylvania Superior Court relied upon the Adoption and

Safe Families Act (ASFA) in In reZ.P., 994 A.2d 1108 (Pa. Super. 2010). The

goal of ASFA was described as follows:

Succinctly, this means that when a child is placed in foster care, after reasonable efforts have been made to reestablish the biological relationship, the needs and welfare of the child require CYS and foster care institutions to work toward termination of parental rights, placing the child with adoptive parents. It is contemplated this process realistically should be completed within 18 months.

Id. at 1119-1120 citing In re G.P., 851 A.2d 967, 975-976 (Pa. Super.

2004)

The Court also provided that "above all else adequate consideration

must be given to the needs and welfare of the child A parent's own feelings of

love and affection for a child, alone, do not prevent termination of parental

rights." Id. at 1121 (internal citations omitted).

In reversing the trial court and terminating the natural parent's parental

rights, the Superior Court held:

"ASFA-related policies now demand reasonable efforts within a reasonable time to remedy parental incapacity. Z.P. has already been in foster care for the first two years of his life, and his need for permanency should not be suspended, where there is little rational prospect of timely reunification."

Id. at 1125-26.

31 These ASFA·related policies are applicable in the present case of minor

child, N.S. The child has been in placement since July 9, 2015, twenty-three (23)

months, as of the conclusion of the last hearing on June 20, 2017. Accordingly, a

reasonable time of 18 months has long expired to remedy parental incapacity and

there is little rational prospect of the timely reunification of N.S. to his Mother

and Father.

IX. CONCLUSION

Finally, the Court notes that the Guardian Ad Litem expressed on the

record, after having been present for all the testimony and evidence, her belief

that the Petitioner has sustained its burden of proof by clear and convincing

evidence and that the parental rights of Mother and Father be terminated as it is

in the minor child's best interest to be free for adoption.

This court agrees with the Guardian Ad Litem's position and finds that

Mother and Father cannot offer to their child the basic physical, developmental

and emotional needs that their child requires and should have throughout his

future life. Mother and Father have been given ample time to address and

remedy their problems but have failed to successfully do so. The Court finds that

they are not able to meet their child's needs. In stark contrast, the foster parents

have amply demonstrated they meet the physical, developmental and emotional

needs of the minor child, N.S. and he has thrived under their care. The child

needs consistency and deserves a permanent home with loving capable parents.

The only way to provide this is to terminate the rights of Mother andFather.

32 Clearly it is in the child's best interest to do so.

Respectfully submitted,

BY THE COURT,

COPIES TO:

Jena Braunsberg, Esquire Children & Youth Services of Luzerne County 111 North Pennsylvania Boulevard Wilkes-Barre, PA 18701

Stephen Palubinski, Esquire Attorney for Mother P.O. Box 656 Nuremberg, PA 18241

Robert L, Kobilinski, Esquire Attorney for Father 4940 Birney Avenue Moosic, PA 18507

Maria M. Bertha, Esquire. Guardian Ad Litem 421 South State Street Clarks Summit, PA 18411