In Re: S.A.M., a Minor ( 2018 )

J-S42029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.A.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.M., NATURAL MOTHER :
:
:
:
:
: No. 339 MDA 2018
Appeal from the Order Entered January 17, 2018
In the Court of Common Pleas of Centre County Orphans' Court at No(s):
4223
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 24, 2018
L.M. (“Mother”) appeals from the order terminating her parental rights
to S.A.M. (“Child”). We conclude the trial court did not abuse its discretion
and, therefore, affirm.
The trial court set forth the factual and procedural history, which we
adopt and incorporate herein. Trial Court Opinion, filed Jan. 17, 2018, at 1-8.
The trial court concluded that Children and Youth Services (“CYS”)
established, by clear and convincing evidence, that grounds for termination of
Mother’s rights existed under 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8). The
trial court further found that termination was proper under § 2511(b). Mother
filed a timely Notice of Appeal.
Mother raises the following issue on appeal:
1. Whether the lower court erred in terminating Mother’s
parental rights when she would not separate from her
husband who was the natural father of the minor child?
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S42029-18
Mother’s Br. at 5. Mother contends the trial court erred because it relied on
environmental factors beyond Mother’s control and on Mother’s unwillingness
to separate from Father.
When reviewing orders terminating parental rights, we must “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). Where “the factual findings are supported,” we review the decision “to
determine if the trial court made an error of law or abused its discretion.” Id.
We will reverse a decision “for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.
The Pennsylvania Supreme Court has explained the reason for applying
an abuse of discretion standard to termination decisions:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
or an abuse of discretion.
Id. at 826-27 (citations omitted).
A trial court may terminate parental rights only after finding grounds for
termination existed under Section 2511(a) and that termination is in the
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J-S42029-18
child’s best interest under Section 2511(b). Although the trial court terminated
Mother’s parental rights pursuant to several subsections of 2511(a), we need
only conclude that its decision was proper under any one subsection of Section
2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here,
we conclude that the trial court properly terminated Mother’s parental rights
pursuant to Sections 2511(a)(2).
We will first review the trial court’s conclusion that termination was
proper under Section 2511(a)(2), which provides:
(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.
23 Pa.C.S.A. § 2511(a)(2).
To terminate parental rights pursuant to Section 2511(a)(2), the moving
party must produce clear and convincing evidence of the following: “(1)
repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the child to be without
essential parental care, control or subsistence necessary for his physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied.” In re Adoption of M.E.P., 825 A.2d
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J-S42029-18
1266, 1272 (Pa.Super. 2003). Further, Section 2511(b) provides: “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.”
The trial court found that Children and Youth Services (“CYS”) proved,
by clear and convincing evidence, that grounds to terminate Mother’s parental
rights under Section 2511(a)(2) existed. Contrary to Mother’s contention on
appeal, the trial court did not rely on her refusal to not live with Father or
solely on environmental factors that were beyond her control. Rather, the
court stated that Mother could not recognize the safety threat that Father
posed and noted, among other concerns, that Mother had physical and mental
limitations and was unable to provide for Child’s basic needs without
assistance. TCO at 13. Mother was unable to feed or diaper Child, and could
not recognize Child’s cues. Id. The court reasoned that CYS “provided ample
assistance and education to Mother . . . , both in the past with respect to
R.M.[, an older sibling,] and more recently during supervised visits with
[Child], but Mother has not shown progress in developing competencies to
meet these most basic needs of a child.” Id. (internal citations omitted).
We conclude the record supports the trial court’s factual findings and
that the trial court did not abuse its discretion in terminating Mother’s parental
rights to S.A.M. After review of the briefs, the record, and the well-reasoned
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J-S42029-18
opinion of the Honorable Katherine V. Oliver, we agree with the trial court and
affirm on the basis of the trial court opinion. TCO at 13-14.1
To the extent mother also challenges the trial court’s findings under
Section 2511(b), we find that the trial court did not abuse its discretion in
finding termination proper under Section 2511(b).
Section 2511(b) provides:
(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.
23 Pa.C.S.A. § 2511(b). The focus under Section 2511(b) is not on the parent,
but on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super.
2008) (en banc). Pursuant to Section 2511(b), the trial court must determine
“whether termination of parental rights would best serve the developmental,
physical and emotional needs and welfare of the child.” In re C.M.S., 884
A.2d 1284, 1286 (Pa.Super. 2005). This Court has explained that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into [the] needs and welfare of the child.” Id. at 1287. The trial court
“must also discern the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that bond.” Id.
Here, the trial court found termination would be in Child’s best interest.
It reasoned that Child is thriving in her foster placement, is physically and
____________________________________________
1 In the event of future proceedings, the parties shall attach a redacted copy
(using initials) of the trial court opinion.
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J-S42029-18
developmentally on track, and the foster parents are meeting her physical,
emotional, and medical needs. TCO at 15. The trial court further noted that
Child lives with her biological sister, R.M., and has two foster siblings. Id. The
trial court noted that Mother loved child, but found that “there was no evidence
of a reciprocal bond between Mother and [Child].” Id. The record supports
these factual findings and the trial court did not abuse its discretion in finding
termination would best meet Child’s developmental, physical and emotional
needs and welfare.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/24/2018
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- ... ...._
..... Received 4/9/2018 4:27:26 PM Sl>f{eRef Court Middle District
Circulated 08/10/2018 01:31 PM
I: . ,
-· Filed 4,9 2018 4:27:00 PM StJt)ef!Gr Court:M�d�f)�i�g��
IN THE COlJRT OF COMMON PLEAS, CENTRE COUNTY, PENNSYLVANIA
ORPHA},JS' COURT DIVISION
IN RE: S-A-Mrl••, a minor NO: 4223 .
DOB: March/, 2016
Oliver, J.
S.
w -
Counsel for Natural Mother, U g.M...: 161 A.3d
172 (Pa. 20 l 7)(plurality op.), presented uncertainty regarding whether the appointment of a separate individual to
serve as legal counsel for S.A.M.. was required. In an abundance of caution, the Court appointed Charles Kroboth,
Esq., as legal counsel for S.A.M. By Order entered on May 23, 2017, Mr. Ansari was appointed as guardian ad
litem for S.A.M. in the TPR proceeding.
2
All transcript references are to the transcript of the TPR hearing conducted on September 5, 2017.
2
·--·--·---- ·----·--
period during Mother's pregnancy, they subsequently discontinued the services and refused
further preventive services offered by the Agency. (Id. at 6). R.M. was born in July of2010 and
taken into emergency custodyby CYS, A dependency petition and adjudication followed, and
R.M. was adjudicated a dependent child and placed in the care and custody of the agency. (Id at
5-6). Agency concerns revolved around potential risks posed by Father's SVP status and related
issues, Mother's physical and cognitive limitations, Mother's failure to appreciate or
acknowledge the potential risks posed to the child due to Father's SVP status, and an inability of
Mother to care for and protect the child, even with assistance and support from Mother's family
due to their inability to stand up to Father .. (Id. at5-8).
Mother and Father were provided reunification services with respect to R.M. through
Family Intervention Crisis Services· (''.FICS"). 3 Those services included development of service
agreement goals, parent education sessions, individual and family sessions, with both parents and
with each parent separately, .and supervised visits with R.M. (Id at 6, 28). During that process,
several impediments to Mother's ability to parent were identified, such as Mother's inability to
prepare bottles without direction from another adult, inability to change diapers without
assistance, difficultly in holding and physically handling the infant, and difficulty in
understanding hunger cues and other' cues of an infant's basic physical needs .. (Id, at 7-8, 28,-29).
CYS learned thatMother had an individualized education plan in school and has some cognitive
limitations. (Id at 7). Mother seemed unable to read and comprehend things like preparation
instructions on a baby formula container, and she was unable to retain information even when it
was explained and broken down for her. (Id. at 7-8, 30, 50, 52�3).
3
Father was subject to an aggravated circumstances order, and, thus, reunification services were not ordered;
however, because Father was. living in the home with Mother, the agency incorporated Father into the services. (Id.
at 27).
3
As to Father, there were significant concerns regardingFather's mental health and
stability. A major issue was Father's SVP status and his failure to continue with legally
mandated counseling and treatmentassociated with that designation. (Id at 10-12, 32-33, 41).
Father also failed to manage his treatment needs for a seizure disorder. (Id.). In addition, he was
argumentative with service providers, andrefused to take prescription medications for treatment
of his anger and mood disorder. (Id. at 17-18).
Reunification services with respectto RM. continued for approximatelynineto twelve
months as the Agency and its service providers. attempted to work with Mother and. Father to try
to surmount the identified safety issues. (Id at 7-12); Mother and Father failed to make
significant progress, however, and reunification services were ultimately deemed unsuccessful
and a petition for involuntary termination of parental rights as to RM. was filed. (Id at 12).
Mother and Father subsequently agreed to voluntarily relinquishtheir parental rights to R.M.,
and R.M. was adopted by her foster placement family. (Id. at 12, 13).
In September of 2015, CYS learned that Mother was pregnant with a second child,
(S.A.M.), and the Agency became involved with Mother and Father again at that time to address
the previously unresolved parenting issues. There were no immediately available services as of
that time. {Id at 13). Ongoing assessment by the Agency demonstrated that very little had
changed since the Agency's past involvement with Mother and Father. Parenting deficits were
still present, and Mother continued in her failure to recognize the potential danger presented by
Father. In addition, Motheris meek and passive, and the Agency observed that she is often
controlled by people in her life,particularly Father. (Id at 8-9, 13-22,45-46). There were no
other adults.who could provide the care and supervision necessary to ensure the child's safety
and well-being due to Parents' limitations and the safety riskposed by Father. (Id. at 13).
4
Although Parents lived with Mother's parents (Maternal Grandparents) at that time, CYS'
observation during prior experience with the family was that Maternal Grandparents, like
Mother, would not stand up to Father. (Id. atS),
Mother gave birth to S.A.M. on March 4, 2016. On that same date, CYS filed an
emergency petition, and emergency custody was transferred to the Agency. (Id. at 13). S.A.M.
was discharged from the hospital on March 6, 2016 to a kinship foster home placement, in the
same home as her biological sister, R.M. (Jd.).4 A dependency petition was filed, and an
adjudicatory hearing was held on March 16, 2016. Evidence demonstrated that Mother and
Father's circumstances had notmaterially changed since the Agency's involvementwiththe first
child. (Id.). S.A.M. was adjudicated dependent following the March 16, 2016 hearing, and her
placement goal was identified as adoption. An aggravated circumstances Order was entered on
that same date against Father based on clear and convincing evidence of Father's criminal history
of convictions for sexual offenses against minors, his status as a sexually violent predator, and
his related registration and reporting requirements. The aggravated circumstances Order
provided that reunification services would not be provided as to Father. (Id. at 13-14).
Following the dependency adjudication, regular visitation was offered to both Mother and
Father, and it was observed that both struggled with basic child care tasks such as changing
diapers, and Mother continued to struggle with recognizing cues and preparing bottles and
changing clothes. (Id. at 14-16). Mother's ability to physically hold an infant improved
somewhat, but the overall significant deficiencies in her parenting skills remained the same, and
Mother could not demonstrate the ability to meet S.A.M. 's most basic physical needs. (Id.).
Furthermore, as S.A.M. grew older and more mobile, it was difficult for Mother to keep up with
4
Subsequently, a third child was born to Mother and Father, H.M., who also was placed in the same foster home
after a dependency adjudication. (Id. at 14).
5
her and to recognize normal day-to-day safety threats faced by toddlers, or to develop and
implement a plan for day-to-day safety. (Id. at21-22). CYS also observed Mother's. ongoing
cognitive limitations in terms of an inability to comprehend basic written instructions, or to
retain such instructions when the steps were broken down and demonstrated for her. (Id. at 50).
She requires constant guidance regarding how to care for and protect a child, and is not able to
think and act independently in this regard. (Id. at 53-54).
Father's circumstances continue to pose significant safety risks for the Minor Child. (Id
at 5-6, 11, 41 ). During the time S .AM. has been in placement, Father has refused to cooperate
with CYS and to provide requested information regarding his SVP offendertreatmentorhis
mental and/or physical health. (Id. at 39-40). The only information available to the Agency
indicated that Father had not been consistently enrolled in counseling, (id at 17-18), and that he
is still designated as at high risk for re-offending. (Id at32-36). Father also suffers from a
seizure disorder, fainting, and medical ailments that are not well controlled and that impact his
ability to safely hold and care for an infant or young child. (Id. at 10, 18, 32). Father struggles
with mood regulation, and CYS observed him to have mood swings and to be volatile and
threatening toward workers on occasion. (Id. at 18). At the time of the TPR hearing, Father was
in jail awaiting trial on charges thathe failed to comply with the registration requirements
attendant to his SVP status. (Id. at 11-13, 40).
The ongoing nature ofthe concerns regarding Father's SVP status and failure to
consistently participate in treatment, as well as his overall mental and physical health, make
unsupervised time between Father and S.A.M. an unrealistic possibility due to serious safety
concerns for the child. (Id. at 39-40). In addition, during supervised visits offered through the
6
Agency, Father has not been able to demonstrate an ability to meet S,A.M.' s needs. (Id. at 40-
41 ).
In addition to the above, Mother and Father do not have stable housing. At the time the
TPR Petition was filed, they were still living with Mother's parents. (Id. at 8-9). Since that time,
however, they left that residence and were homeless for a time, staying in a homeless shelter in
another county. (id. at 19). As noted above, Father was cited and arrested on allegations of
failing to comply with his SVP registration requirements by failing to register the new address at
the homeless shelter. He has been incarcerated in Huntingdon County on those charges since
early June of 2017. (Id at 11�12, 40). Mothertestified that she onceagain lives in her parents;
home, but the Agency was not able to verify that at the time of the hearing. (Id; at 21 );
Mother testified that she loves her children and she would do anything to protect them.
(Id. at 63). Nonetheless, Mother remains steadfast in her refusal or inability to acknowledge the
potential threat Father poses to S.A.M. Thus, Mother does not appreciate the need for
supervision of any time between Father and S.A.M .. (Id. at 16, 35, 43-46). Mother is married to
Father and Ioves him. (Id. at 43-44, 62-63). In introducing herself atthe hearing, she testified:
"I am J!illl M R.. 's wife." (Id at 59). Throughout the dependency case involving
S.A.M�. she maintained that she and her husband, R.., are a team. She has demonstrated an
unwillingness to separate from him despite having been informed that his presence in the home
poses a safety risk for their children, and that this is one of the reasons they have been placed in
foster care, (Id at 35, 42-46). At the hearing, Mother testified that she would do anything to
protect her children, and that she would call the police on Father if he did anything wrong. (Id.
at 62-63). When asked, however, Mother said she did not know the phone number to contact the
police. (Id. at 64-65).
7
S.A.M. is thriving in her foster home and interacts with her foster parents as if she were
their child: She is physically and developmentally on track. (Id. at 56). She interacts in play
0
with her older biological sibling in the home, as well as with two foster siblings. At the age of
18 months old, S.A.M. was saying a few words. (Id.). She referred to her foster parents as mom
and dad. (Id.). S.A,M.'s foster parents have facilitated supervised visits with Mother and Father.
During the visits, when S.A.M. was distressed or needed comfort, she went to her foster mother
for support instead of Mother. (Id. at 23). S.A.M.' s foster parents have provided for her
physical and emotional needs since her discharge from the hospital just after her birth. (Id. at
24). Ms. Rockey testified that termination of Parents' parental rights would give S.A.M. the
opportunity to be adopted by her foster. family, who has cared for her since birth. (Id. at 23).
This would provide permanency and would allow her to· be raised in the home of a full biological
sibling. (Id. at 23�24).
III. Applicable Legal Principles
Section 25U of the Adoption Act, 23 Pa. CS.A.§ 2501, et seq., sets forth the governing
provisions with respect to termination of parental rights proceedings. Section 2511 requires the
court to engage in a bifurcated decisfon-making process. See In re Z.P., 994 A.2d 1108, 1121
(Pa. Super. 2010); In re L;M, 923 A.2d 505, 511 (Pa. Super. 2007). First, the Court must
determine whether any of the grounds for involuntary termination under section 251 l(a) have
been established. The party petitioning for termination must prove that the subject parent's
conduct meets at least one of the statutory grounds for termination as set forth in section 2511 (a).
Ifthe court concludes that the petitioning party's burden undersection251 l(a) has been met, the
court must turn to the second part ofthe analysis in accordance with section 2511 (b). Id.; In re
Adoption of KJ., 936 A2d 1128, 1134 (Pa. Super. 2007), appealdenied, 951 A.2d 1165 (Pa.
2008).
8
Under section 251 l(b), the court must make a determination of the needs and welfare of
the child using the best interests of the child standard. Id. In the best interest assessment, courts
must consider whether a natural parental bond exists between the parent and child, and whether
termination of parental rights would destroy an existing, necessary and beneficial relationship.
In re K.J., 936 A.2d at 1134. The needs and welfare ofthe child are paramount. See id. In that
regard, the court must consider both intangible and tangible factors, as well as continuity of
relationships. Id.
The petitioning party bears the burden of'proofin termination of parental rights
proceedings, and that burden must be met by clear and convincing evidence. In re Adoption of
KJ., 936 A.2d at 1131. The clear and convincing evidence standard requires evidence "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." Id.
CYS asserts section 251 l(a)(2), (a)(5) and (a)(8) as grounds for termination as to both
Parents, and (a)(l I) as to Father only. Section 2511 provides, in pertinent part, as follows:
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.
(5) Tue 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
9
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.
(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 removal or placement of the
child continue to exist and termination ofparental rights. would
best serve the needs and welfare of the child.
(11) The parent is required to register as a.sexual
offender under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration
of sexual offenders) or to register with a sexual offender registry in
another jurisdiction or foreign country;
23 Pa. c.s.x § 2511 (a)(2),(a)(5), (a)(&), (a)(l 1 ). When a termination petition is filed on more
than one ground, the court need only find clear and convincing evidence as to one ofthe grounds
alleged. In re: E.M, 908 A.2d 297, 306 (Pa. Super. 2006).
When a child has been removed from the home and placed in foster care, there is an
affirmative duty on the parent or parents to work toward the child's retumto the home. In re
V.E. and J.E., 611 A.2d 1267, 1271 (Pa. Super. I992)(citinglnreAdoption ofJ.J., 515A.2d
883, 889 (Pa. 1986)). At a minimum, that duty requires the parents to demonstrate a willingness
to cooperate with the child welfare agency with respectto rehabilitative services required to
develop skills necessary to meet the demands of parenthood. Id. In cases involving a failure to
remedy conditions that lead to removal of a child, a termination petition may be granted based on
a parent's failure to cooperate or apparent inability to benefit from services reasonably offered or
supplied over a realistic period of time. In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003).
10
IV. Analysis
Applying the legal principles discussed above, the Court concludes that the Agency in
this case presented clear and convincing evidence that the elements of 23 Pa.C.S. § 2511 (a)(2);
(5), (8}and (ll) are met, and that termination ofboth Father and Mother's parental rights best
serves S.A.M/s needs and welfare and her overall best interests.
There is no dispute, nor could there be any legitimate dispute, that the Agency met its
burden under section 251 l(a)(l l) as to Father by clear and convincing evidence. Father was
convicted of sexual assault, aggravated indecent assault, two counts of indecent assault, and two
counts of corruption of minors -- all involving offenses against a minor. Father will have
lifelong registration and reporting requirements as a sexual offender based on these crimes.
(Hr' g. Tr., at 11). The history of these convictions is not in dispute, and there is no question that
the evidence is sufficient to satisfy section 251 l(a)(l 1) as to Father. Father nonetheless contends
thatterminationunder section 2511(a)(l 1) is improper, arguing that this section may not.be
applied in the present case because it was only passed into law after S.A.M.'s conception and
birth. (See Father's Memo. of Law, 11-20-17, 1117-21), Father argues that applying section
2511 (a)(l 1) in this case would violate his constitutional rights "due to a lack of fair notice and
governmental restraint" because he could not have been aware that simplybeing a registered sex
offender would constitute grounds to terminate his parental rights. (Id. at 19-20).
The Court notes that, in enacting section 2511 (a)( 11 ), the legislature expressly stated that
its provisions were to be effective immediately. (See2016 Pa. Legis. Serv. Act 2016-115 (SB
131 l)(Purdon.s)). In addressing Father's constitutional challenge, the Court must apply a
'"strong presumption in favor of the constitutionality of statutes - a presumption which reflects .
. . the respect due to the legislature as a co-equal branch of govemment.:" See Commonwealth v,
11
Nicely, 638 A.2d 213, 216 (Pa. 1994). To overcome the presumption, Father must demonstrate
that the immediate effective date as provided in the legislation enacting section 2511 (a)(I I)
"'clearly, palpably, and plainly' violates the constitution." Id. Father has failed to make any
such demonstration, orto develop his constitutional argument. Moreover, the Court is not
persuaded by Father's bare allegation that he would have made a different choice regarding
conception of S.A.M. had he been aware his SVP status could be reason to terminate his parental
rights. For these reasons, the Court rejects Father's argument that section 2511(a)(l l) may not
be applied in this case, and concludes that Father's parental rights are properly terminated under
section 2511 (a)(l 1).
Clear and convincing evidence was also presented to meet the requirements of sections
251 l(a)(2), (a)(S) and (a)(8) as to both Mother and Father. With respect to section 25ll(a)(2),
the evidence demonstrated that both Mother and Father have continued in their inability and/or
refusal to take steps necessary for them to provide essential parental care, control and subsistence
necessary for S.A.M.'s well-being and safety, and that they will not remedy the underlying
causes and conditions. Specifically, the evidence demonstrated that.Father is a convicted sex
offender for sex crimes against minor children, that.he is classified as a sexually violent predator,
and that he has failed to comply with counseling and treatment requirements that are mandated
by law, and which could, possibly, ameliorate the safety risk he poses to S.A.M .. (Hr'g, TL, at
17-18, 32-40). As discussed in the factual section, above, Father has refused to cooperate with
the Agency in terms of providing information relative to his psychological and medical
treatment, despite the many concerns about his mental and physical conditions and how those
conditions impacthis ability to parent. (See § II, supra.). Father bas also not.shown progress
with respect to the limitations on his ability to meet the basic needs of an infant or young child
12
despite the services provided to him during supervised visitation. Moreover, Father is presently
in jail awaiting trial on criminal charges connected with his alleged change of residence address
to a homeless shelter without registering as required by law. (Id. at 11-13, 40).
Father complains that the Agency seeksto terminate his parental rights based on issues
and concerns relating to RM, only, and not on any "new" evidence. (See Father's Memo. of
Law, 11-20-17, 114). The Court rejects this argument, as.the record is replete with testimony
-that most all of the concerning circumstances and conditions existing when services were
provided for R.M. continued to exist on the birth of S.A.M. and thereafter. (See e.g., Hr' g Tr., at
7-8, 10-1 i, 13, 15-18, j9-40). Significantly, the record is also replete with testimony regarding
Father's failure to cooperate with the Agency and his failure to take steps to ameliorate these
concerning circumstances and conditions. (See, e.g., Id. at 17-18, 30-37);
As to Mother, clear and convincing evidence showed that she will not or cannot
recognize the safety threat Father's SVP status and noncompliance with treatment poses for
S.AM., that she is not capable of standing up to Father and acting as a supervisor for Father in
any event, and that she refuses to separate from Father to ensure the safety of S.A.M. The
evidence also demonstrated that Mother has both physical and mental limitations and is not able,
on her own, to provide for S .A.M.' s most basic needs. Mother is unable to feed or diaper the
child without substantial assistance, and she does not recognize the child's communication cues.
(Hr'g. Tr., at 14-16). The Agency has provided ample assistance and education to Mother (and
Father), both in thepastwith respect to R.M. and more recently during supervised visits with
S.A.M., but Mother bas not.shown any progress in developing competencies to meet these most
basic needs of a child. (Id at 14�16, 21-22, 50); These concerns regarding Mother's ability to
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patent began in connection with R.M. 's birth and, despite ongoing provision of services, the
underlying causes and conditions remain.
In sum, the Agency provided ample evidence to show repeated and continued incapacity
and refusal of both Parents to take necessary steps to provide for essential parental care, control,
and subsistence necessary for S.A.M. 's physical and mental well-being, and thatthe conditions
and causes of the incapacity and refusal cannot or will not be remedied by Mother or Father.
Accordingly, the Court concludes that termination of parental rights is appropriate under section
251 l(a)(2).
As to section 251 l(a)(S), S.A.M. was removed from Mother and Father's care and placed
in a foster home after her birth approximately twenty-two months ago. As noted above, the
conditions leading to removal and placement continue to exist, and Mother and Father have not
availed themselves of services or followed recommendations that might conceivably help them
to remedy the conditions. Given Mother and Father's history in working with the Agency, their
failure to cooperate in terms of counseling and treatment for Father, the 24 hour supervision
required due to Father's SVP status and noncompliance with treatment, the lack of any
appropriate party to provide supervision, and Mother's refusal to separate from Father or even
recognize the safety risk he poses for S.A.M., it is clear that reasonable provision of additional
services and assistance is unlikely to remedy the conditions leading to placement in a realistic
timeframe. It is also clear from the evidence that termination of Mother and Father's parental
rights would best serve S.A.M.'s needs and welfare by freeing her for adoption and facilitating
permanency for the child.
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Finally, for the same reasons addressed above, and because more than twelve months
have passed since S.A.M. was removed from Parents' home, it is evident that.the requirements of
section 251 l(a)(S) .have been met.
Having determined that section 251 l(a) is satisfied, the Court turns to section 251 l(b) to
ascertain S.A.M. 's needs and welfare using the best interests of the child standard. The evidence
demonstrated that S.A.M. is thriving in her foster placement. (Hr' g. Tr., at 56). She is
physically and developmentally on track. All of her needs are met by her foster parents in terms
of physical, emotional and medical needs, (id. at 23-24), and the evidence clearly showed a bond
between S.A.M. and her foster parents. (Id.). She lives with her biological older sister, R.M.,
who was adopted by the Foster Family. The evidence also showed sibling bonds between
S.A.M. and her older biological sister and her two foster siblings in the foster parents' home.
(Id. at 56). Mother testified that she loves S.A.M., and the Court found this testimony to be
credible; Despite her love for the child, however, Motheris clearly unable to care for S.A.M. on
her own or to provide for her most basic needs, and Mother is unwilling to separate from Father
to protect S.A.M. from the safety risks he poses. There are no support resources to provide
supervision necessary to ensure the safety ofthe child if retuned to Parents' care and custody. In
addition toassistance from the Agency, the foster parents have facilitated contact and visits
betweenS.A.M. and Mother and Father. Nonetheless, there was no evidence of a reciprocal
bond between Mother and S.A.M. or Father and S.A.M. The Court does not believe termination
of Mother and Father's parental rights would destroy an existing relationship necessary and
beneficial for the child. Termination would free S.A.M. for adoption and permanency with the
family that has raised her and cared for her since birth, Based on the overall evidence, the Court
15
concludes that S.A.M/s needs and welfare are best fulfilled by terminating both Mother and
Father's parental rights.
Consistent with the foregoing, the Court enters the following Order:
_/lbay
ORDER
AND NOW, this of January, 2018, the Petition to Terminate the Parental
Rights of IIJIM.9 and·-� Jr. tothe minor child S.A.M. is hereby
GRANTED.
BY TIIB COURT:
-
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