In the Interest of: J.J.P., a Minor ( 2017 )

J-S67032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.J.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: J.P., FATHER : No. 656 EDA 2017
Appeal from the Order Entered February 6, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0001044-2016,
CP-51-DP-0000155-2016
IN THE INTEREST OF A.M.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: J.P., FATHER : No. 657 EDA 2017
Appeal from the Order Entered February 6, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-00010450-2016,
CP-51-DP-0002591-2015
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 22, 2017
Appellant, J.P. (“Father”), appeals from the orders entered in the
Philadelphia County Court of Common Pleas Family Court Division, which
granted the petitions of the Department of Human Services (“DHS”) for
involuntary termination of Father’s parental rights to his minor children,
J.J.P. and A.M.P. (“Children”). We affirm.
In its opinion, the Family Court fully and correctly set forth the
relevant facts and procedural history of this case. Therefore, we have no
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67032-17
reason to restate them.
Father raises five issues for our review:
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY TERMINATING THE PARENTAL RIGHTS OF
FATHER…PURSUANT TO 23 PA.C.S.A. SECTION 2511(A)(1)
WHERE FATHER PRESENTED EVIDENCE THAT HE MADE
SIGNIFICANT EFFORTS TO PERFORM HIS PARENTAL
DUTIES[?]
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY TERMINATING THE PARENTAL RIGHTS OF
FATHER…PURSUANT TO 23 PA.C.S.A. SECTION 2511(A)(2)
WHERE FATHER PRESENTED EVIDENCE THAT HE MADE
SIGNIFICANT EFFORTS TO REMEDY ANY INCAPACITY OR
NEGLECT BY COMPLETING PARENTING CLASSES AND
DRUG AND ALCOHOL TREATMENT AND VISITING HIS
CHILDREN WHILE IN CARE[?]
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY TERMINATING THE PARENTAL RIGHTS OF
FATHER…PURSUANT TO 23 PA.C.S.A. SECTION 2511(A)(5)
WHERE EVIDENCE WAS PROVIDED TO ESTABLISH
THAT…CHILDREN WERE REMOVED FROM THE CARE OF
FATHER, HOWEVER FATHER IS CURRENTLY CAPABLE OF
CARING FOR [CHILDREN] AND THE CONDITIONS WHICH
LED TO REMOVAL HAVE BEEN REMEDIED[?]
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY TERMINATING THE PARENTAL RIGHTS OF
FATHER…PURSUANT TO 23 PA.C.S.A. SECTION 2511(A)(8)
WHERE EVIDENCE WAS PRESENTED TO SHOW THAT
FATHER IS CURRENTLY CAPABLE OF CARING FOR HIS
CHILDREN AND THE CONDITIONS WHICH LED TO
REMOVAL HAVE BEEN REMEDIED[?]
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY TERMINATING THE PARENTAL RIGHTS OF
FATHER…PURSUANT TO 23 PA.C.S.A. SECTION 2511(B)
WHERE EVIDENCE WAS PRESENTED THAT FATHER HAS A
PARENTAL BOND WITH [CHILDREN] THAT WOULD BE
DETRIMENTAL TO SEVER[?]
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(Father’s Brief at 7).
Appellate review of termination of parental rights cases implicates the
following principles:
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), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(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.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted).
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.
In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
may uphold a termination decision if any proper basis
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exists for the result reached. In re C.S., 761 A.2d 1197,
1201 (Pa.Super. 2000) (en banc). 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. In re R.L.T.M., 860 A.2d 190, 191-92
(Pa.Super. 2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d
1165 (2008)).
DHS filed a petition for the involuntary termination of Father’s parental
rights to Children 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
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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 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.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). “Parental rights
may be involuntarily terminated where any one subsection of Section
2511(a) is satisfied, along with consideration of the subsection 2511(b)
provisions.” In re Z.P., supra at 1117.
Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and
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convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in Section
2511(a). Only if the court determines that the parent’s
conduct warrants termination of his… 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his… conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
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case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his… parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary those grounds may include
acts of refusal as well as incapacity to perform parental duties. In re
A.L.D., supra at 337. “Parents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.”
Id. at 340. The fundamental test in termination of parental rights under
Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa.
636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court
announced that under what is now Section 2511(a)(2), “the petitioner for
involuntary termination must prove (1) repeated and continued incapacity,
abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal
caused the child to be without essential parental care, control or
subsistence; and (3) that the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied.” In Interest of Lilley, 719 A.2d
327, 330 (Pa.Super. 1998).
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“Termination of parental rights under Section 2511(a)(5) requires
that: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to removal and placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re Z.P., supra at 1118.
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) [t]he child has been removed from
parental care for 12 months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76
(Pa.Super. 2003). “Section 2511(a)(8) sets a 12–month time frame for a
parent to remedy the conditions that led to the children's removal by the
court.” In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the 12–
month period has been established, the court must next determine whether
the conditions that led to the child's removal continue to exist, despite the
reasonable good faith efforts of the Agency supplied over a realistic time.
Id. Termination under Section 2511(a)(8) does not require the court to
evaluate a parent’s current willingness or ability to remedy the conditions
that initially caused placement or the availability or efficacy of Agency
services. In re Adoption of T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003);
In re Adoption of M.E.P., supra.
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Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently severing the
bond.” Id. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights 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…rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
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child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental
duty requires that a parent exert [himself] to take and
maintain a place of importance in the child’s life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his… ability, even in difficult circumstances.
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with his or her physical and
emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of his…child is converted,
upon the failure to fulfill his…parental duties, to the child’s right to have
proper parenting and fulfillment of [the child’s] potential in a permanent,
healthy, safe environment.” Id. at 856.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Lyris F.
Younge, we conclude Father’s issues merit no relief. The Family Court
opinion comprehensively discusses and properly disposes of the questions
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presented. (See Family Court Opinion, filed July 19, 2017, at 1-7) (finding:
(1-4) Father was assigned Single Case Plan (“SCP”) objectives to maintain
sobriety, comply with court-ordered Parenting Capacity Evaluation, earn
certificate from Family School, procure stable housing, and regularly visit
Children; at termination hearing, social worker credibly testified Father was
minimally compliant with SCP goals; Father engaged in domestic violence
with Mother, and Family School discontinued Father’s enrollment due to
inability to engage effectively in programs, rendering them unproductive, his
substance abuse, his inability to stay awake, his constant nodding off during
sessions, and sporadic and tardy attendance; social worker explained Father
could not address issues which prevented him from completing Family
School or Parenting Capacity Evaluation; social worker stated Father was
consistently under influence of substances and had been unable to maintain
sobriety for more than few weeks at time during pendency of case; social
worker added Father failed to obtain suitable housing during 20 months
A.M.P. was in DHS’ care and 13 months J.J.P. was in DHS’ care; J.J.P was
placed immediately following his birth pursuant to an Order of Protective
Custody obtained by DHS and adjudicated dependent on January 29, 2016;
Father’s visits were suspended due to inappropriate and erratic behavior
during visits; (5) J.J.P and A.M.P have been without essential care and
control and subsistence necessary for their physical and mental well-being;
Father stated he wanted to have supervised visits and then to “build on
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there”; social worker credibly testified Children were placed in same home
and strongly bonded with their foster parent; foster home is willing to
provide permanency for Children together; Children would not suffer
irreparable harm from termination of Father’s parental rights and adoption is
in best interests of Children). Accordingly, we affirm based on the Family
Court’s opinion.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2017
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Circulated 11/09/2017 11:12 AM
THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
FAMILY COURT DIVISION
IN RE: J.J.P. P -51 -DP -0000155-2016
CP-51-AP-0001044-2016
IN RE: A.M.P. CP-51-DP-0000155 -2016
CP-51-AP-0001044-2016
-e
APPEAL OF: J.P., father Superior Court.
No. 656 EDA 2017
No. 657 EDA 2017
OPINION
Younge, J.
This Anneal arises from,this Cotirt's- Order on February 6, 2017,, terminating the parental right's
of n.";
.
("father"), pursuant to the petitions filed on behalf of the Department of Human
Services' ("DHS") by the City of Philadelphia Solicitor's Office. Claire Leona, attorney for
father;.filed: a timely Appeal from the February 6, 2017 order terminating father's parental rights
including an attached Concise Statement. of Errors, Affidavit of Service; and other related
documents necessary to perfect this Appeal.
Factual-and Procedural Background:- -
A summary of the relevant procedural history is set forth as follows:
On September 13, 2014, the Department of Human Services (DHS) received a General
Protective Services (GPS) report alleging that A.M.P. and her sibling were frequently left at
home alone. The report also alleged Philadelphia Police were often called to the home to address
incidents of domestic violence and that there were broken items in the home as a result of
the
domestic violence. Mother and Father were often observed fighting on the streets. The report
indicated Father used methadone. The report was substantiated.
On September 29, 2014, the family was referred for In -Home Protective Services (IHPS) to
address the issues of drug abuse and domestic violence issues.
On October 17, 2014, DHS went to the family home and Father was enrolled in a methadone
maintenance and treatment program being monitored by the Goodman Clinic. Father received
individual and group therapy. -
Children
On October 24, 2014, the family began receiving IHPS through Turning Points for
(TPFC).
On January 21, 2015, the family began receiving in -home services through the Community
Umbrella Agency (CUA), Bethanna.
On February 7, 2015, Bethanna attempted an initial visit with the family. Bethanna met A.M.P.'s
Paternal Grandmother who reported that Mother and Father were not present and had taken
A.M.P. with them. Bethanna scheduled another visit with the family on February 10, 2015.
On February 10, 2015, Bethanna met with the family. Bethanna observed that Father's behavior
was volatile. During the visit, Father and Mother engaged in a verbal altercation during a
telephone call. Father verbally abused Mother during the telephone conversation while in
A.M.P.'s presence. Father reported he was arguing with Mother because she did not take him to
the methadone clinic.
Father reported Mbther used crack cocaine and had began using one month earlier. Father's
reported Mother had relapsed into drug use due to stress associated with the illness suffered by
the children's Maternal Great -Grandmother. Father's reported Mother was seeking a Protection
from Abuse (PFA) order against him and he was unsure if he wanted to remain in the
relationship. Father stated he did not need therapy because he took Xartax.
On February 17, 2017 Betharma went to the home. Mother reported she gave her all her money
to Father. Father was observed falling asleep multiple times throughout the visit instigated
several arguments with other family members.
On March 3, 2015, Bethanna went to the home and learned Mother rendered a positive drug
screen for benzodiazepines three weeks earlier. Paternal Grandmother ensured Bethanna Father
was not left alone with AMP. due to his diminished capacities.
On March 24, 2015, Bethanna conducted a home visit. Father appeared to become more tired as
the visit progressed.
On May, 672015, Bethanna viYitedithwhirmne and observed-Rtha to15-6 under -the influence or
drugs. B'ethanna addressed these behaviors with Paternal Grandmother, who agreed to ensure
that Father was not to be left alone with A.M.P.
On May 19, 2015, Bethanna implemented a Safety Plan with Paternal Grandmother and Paternal
Aunt which stated they would ensure that A.M.P. was not left alone, with Father. Paternal
Grandmother and Paternal Aunt would provide line of sight supervision of A.M.P., if either
caregiver were not present in the home.
On June 9, 2015, Bethanna learned Father had rendered a positive drug screen for cocaine and
reportedly used cocaine upon learning Mother was pregnant again.
On July 1, 2015, Bethanna went to the home. Bethanna informed Father he was observed with
A.M.P. without supervision of A.M.P.'s Paternal Grandmother. Paternal Grandmother reported
she was with the family at the time,but left to use the restroom. Bethanna reiterated Paternal
Grandmother must supervise Father with A.M.P. at all times.
On August 14, 2015, Bethanna went to visit the family and found A.M.P. unsupervised at a
swimming pool with Father.
DHS learned that on August 19, 2015, Bethanna implemented a Safety Plan with Paternal
Grandmother and Paternal Aunt.
2
On September 22, 2015, DHS filed a dependent petition for A.M.P. based on the ongoing issues
of drug abuse, domestic violence and lack of appropriate supervision in the home.
On October 1, 2015, an Adjudicatory Hearing for A.M.P. was held before the Honorable Vincent
L. Johnson. Judge Johnson ordered CUA to locate A.M.P. for placement with the agency and
police assistance was to be available, if necessary. The address and location of the child was to
be kept confidential.'Judge Johnson further ordered Father to refrain from contact with A.M.P.
except during court -ordered visits. Father was referred to clinical Evaluation Unit (CEU) for a
drug screen, dual diagnosis assessments and weekly drug screen. Judge Johnson ordered a
Parenting Capacity Evaluation (PCE).
DHS subsequently leamed that Father tested positive for benzodiazepines and methadone at the
CEU.
On October 5, 2015, A.M.P. was placed in the home of their Maternal Aunt and Uncle through
Bethanna.
On December 17,. 2015 a Permanency Review hearing for AMP. was held before Judge
Johnson, who ordered A.M.P. remain committed to DHS. Father was re -referred to the CEU for
a drug screen, dual diagnosis assessments, monitoring, and three random drug screens prior to
the next court date. The Court found that Father wasnttending Family School. The Court ordered
that Family School make note of how many time Father fell asleep during the Family School
session.
On December' 2015, Mother gave birth to J.J.P. at the Hospital of the University of
Pennsylvania (HUP).
On December 21, 2015, DHS received a GPS report which alleged that Mother and J.J.P. tested
positive for opiates at the time of J.J.P.'s birth on December 2015. J.J.P. was born 37 weeks
and five days g_estation weighing six piaunds and 12 ounces. Mother and Father were involved in
a: car accident prior to J.J.P.'s birth. The report was determined to be valid.
On December 23, 2015, DHS made a visit to the Hospital of University of Pennsylvania (HUP)
and met with Father. DHS observed that Father appeared to under the influence of an unknown
substance.
On January 21, 2016, J.J.P. was ready to be discharged from the hospital. DHS obtained an
Order of Protective Custody (OPC) and J.J.P. was placed in the Lutheran Children and Family
Service foster home.
At the Shelter Care hearing for J.J.P. held on January 22, 2016; the Court lifted the OPC, ordered
the temporary commitment to DHS stand.
On January 29, 2016, an Adjudicatory Hearing for J.J.P. was held before the Honorable Lyris F.
Yonge who discharged J.J.P.'s temporary commitment to DHS, adjudicated him dependent and
committed him to DHS. Judge Younge ordered Father referred to the CEU for a drug screen, a
dual diagnosis assessment, and three random drug screens. Father was granted supervised visits
at the agency.
On March 17, 2016, a Permanency Review Hearing for A.M.P. and J.J.P. was held before Judge
Younge, who ordered that they remain committed to DHS. As to all three children, Judge
3
Younge ordered that Father's visits suspended until the next court date after Father was escorted
from the courtroom after he displayed erratic behavior during the hearing.
On April 26, 2016, A.M.P. was moved to a foster home through A Second Chance after it was
learned that A.M.P. was seen in an automobile'and at a methadone clinic with Mother.
On June 2, 2106, a Permanency Review Hearing for A.M.P. and J.J.P. was held before Judge
Younge who ordered that the children remain;committed to DHS. Judge Younge ordered the
judicial removal of A.M.P. and her sibling from their foster home. Judge Younge ordered the
foster parents to be prohibited from any contact or visits with AMP. Judge Younge issued a
Stay Away Order as to the foster parents and the entire CUA-Bethanna agency including the
CUA social worker and social worker supervisor. Judge Younge ordered the foster parents home
never to be considered as a foster home in the future. Mother was referred to CEU for drug
screens and her visits were suspended until further order of the Court Mother was ordered to
obtain and provide documentation of her participation in a drug and alcohol treatment program
and submit it to the Court The children's addresses were ordered to remain confidential.
On September 1, 2016, a Permanency review Hearing, for A.M.P. and J.J.P. was held before
Judge Younge who ordered the children remain as committed to DHS. Judge Younge further
noted Father declined to participate in Achieving Reunification Center (ARC). Father was
referred to CEU for drug screens, monitoring and random drug screens prior to the next court
date. Father was re -referred to ARC, atfend the program and comply with all, recommendations
of the program. Father's visits remained suspended until further order of the Court. The Court
ordered no family members be considered as placement resources for A.M.P. and J.J.P. A single
Case Plan (SCP) meeting be held to address the children's appropriate permanency goal. Father
attend the SCP meeting and comply with their objectives.
The matter was the listed on a regular basis on the docket of the Philadelphia Court, of Common
Pleas, Family Court Division- Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42
FECKA. 161517and evaluated for the purpose of reviewing the permanency plan of the child.
In subsequent hearings, the Dependency Review Orders reflect the Court's review and
disposition as a result of evidence presented, primarily with the goal of finalizing the
permanency plan.
On February 6, 2017, during the Termination of Parental Rights hearing for father, the Court
found by clear and convincing evidence that Father's parental rights as to A.M.P. and J.J.P.
should be terminated pursuant to the Juvenile Act. Furthermore, the Court held it was in the best
interest of the children that the goal be changed to Adoption.
The Appeal of father is as follows:
Issues
1) Whether under the Juvenile Act, 42 Pa. C.S. section 6351, and 55 Pa. Code Section
3130.74, in accordance with the provisions of the Federal Adoption and Safe Families
Act, 42 U.S.C. Section 671 et seq., reasonable efforts were made to reunite the Father
with his child and whether the goal change to Adoption was the disposition well suited to
the safety, protection and physical, mental and moral welfare of the child.
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2) Whether it was proven by
clear and convincing evidence that Father's parental rights
should be terminated under Sections 2511 (a)(2) and 2511(b).
Discussion
The grounds for involuntary termination of parental rights are enumerated in the Adoption Act at
23 Pa. C.S. § 2511. Under this statute, the trial court must engage in a bifurcated process in
which it initially focuses on the conduct of the parent under § 2511(a). In the Interest of B.C., 36
k3d 601 (Pa. Super 2012). If the trial court determines that the parent's conduct warrants
termination under § 2511(a), it must then engage in an analysis of the best interest of the child
under § 2511(b). Id.
In the present case, father's parental rights were terminated based on §§2511(a), (1), (2), (5), (8)
and §2511(b).
In proceedings to involuntarily terminate parental rights, the burden of proof is on the party
seeking termination to establish by clear and convincing evidence the existence of grounds for
termination. In re Adoption of Ataxia 650 A.2d 1064 (Pa. 1994). The standard of clear and
convincing evidence is defined as testimony, that is so 'clear, direct, weighty and convincing as
to enable the trier of fact to come to a clear conviction without hesitation of the truth of the
precise facts in issue." In re JD.W.M, 810 A2d 688, 690 (Pa.Super. 2002).
To satisfy § 2511(a)(1), the moving party must produce clear and convincing evidence of
conduct sustained for at least six (6) months prior to filing of the termination petition, which
reveal a settled intent to relinquish parental claim to a child or a refusal or failure to perform
parental duties. It is clear from the record that for a period of six (6) months leading up to the
filing of the Petition for Involuntary Termination, mother failed to perform parental duties for the
child. The Court found by clear and convincing evidence that theiather_refused_or failed_to
perform his parental duties.
In the instant matter, Father was assigned Single Case Plan objectives of maintain and achieve
sobriety from substance abuse problems, comply with court ordered Parenting Capacity
Evaluation, certificate from Family School, visitation and housing. (N.T. 2/6/17, pgs. 23, 41)
Furthermore the social worker testified there were issues with domestic violence. (N.T. 2/6/17,
pg. 24, 43) Testimony of the social worker revealed that Family School referral was discontinued
because Father was allegedly under the influence of substances. (N.T. 2/6/17, pg. 41) Moreover
testimony of social worker revealed Father could not effectively address issues which prevented
completion of Family School or a parenting capacity evaluation. (N.T. 2/6/17, pg. 42) Social
worker testified Father was constantly under the influence and unable to maintain more than a
few weeks of sobriety at any point during the case. (N.T. 2/6/17, pgs. 43-44) Furthermore, social
worker testified Father failed to have suitable housing. (N.T. 2/6/17, pg. 43) Social worker
testified Father was minimally compliant with his objectives for reunification with A.M.P. and
J.J.P. (N.T. 2/6/17, pgs. 44,53)
A parent has an affirmative duty to act in her child's best interest. "Parental duty requires that
the parent not yield to every problem, but must act affirmatively, with good faith interest and
effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult
circumstances." In re Dale A., II, 683 A.2d 297, 302 (Pa. Super. 1996). In reference to the
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parental contact, "to be legally signihcant, the contact must be steady and consistent over a
period of time, contribute to the psychological health of the child, and must demonstrate a
serious intent on the part of the parent to recultivate a parent-child relationship, and must
demonstrate and willingness and capacity to undertake the parenting role". In re D.J.S., 737 A2d
283, 286 (Pa.Super. 1999) (quoting In re Adoption of Hamilton, 549 A.2d 1291, 1295 (Pa.Super.
1988)).
During the twenty months (20) A.M.P. and thirteen (13) months J.J.P. have been in DHS care,
Father's visits were suspended due to inappropriate and erratic behavior during visit with A.M.P.
and J.J.P. (N.T. 2/6/17, pgs, 42, 52, 58). Social worker testified Father had supervised agency
visits through the beginning of the case. (N.T. 2/6/17,: pg. 42) Furthermore social worker's
testimony was Father's visits were also suspended due to an incident at a kinship home. (N.T.
2/6/17, pgs. 42).
Section 2511 (a)(2) requires that "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 her physical or mental well-being and the condition and causes of the incapacity,
abuse, neglect, or refusal, cannot or will not be remedied by the parent. 23 Pa. C.S. § 2511 (a)(2).
Termination of parental rights under §2511 (a)(2) b. not limited to affirmative misconduct but
may include acts of refusal, as well as incapacity to perform parental duties. In re A.L.D., 797
A.2d 326; 337 (Pa.Super. 2002).
§2511 (a)(5) requires that :
(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 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
parental rights would best serve the needs and welfare of the child.
§2511 (a)(8) states:
(8) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, twelve (12) months or more has elapsed from the
date of the removal or placement, the conditions which led to the removal or placement
of the child continue to exist and termination of the parental rights would serve the best
needs and welfare of the child.
The evidence as discussed above pursuant to §2511 (a)(5) and (a)(8), equally support the Court's
conclusion to terminate father's parental rights.
In order to terminate the parental rights, the party seeking termination must prove by clear and
convincing evidence that the termination is in the best interest of the child. 23 Pa. C.S. §2511
(b); In re Bowman, 647 A.2d 217 (Pa. Super. 1994). The best interest of the child is determined
after consideration of the needs and welfare of the child. The trial court must examine the
individual circumstances of each case and consider all explanations offered by the parent facing
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termination of this parental rights to determine if the evidence, in the light of the totality of the
circumstances, clearly warrant involuntary termination.
When determining the best interest of the child, many factors are to be analyzed, "such as love,
comfort, security, security and stability. In re Adoption of TB.B., 835 A.2d 387, 397 (Pa Super.
2003). Another factor that a court is to consider is what, if any, bond exist for the child In re
Involuntary Termination of CW.SM and KA.L.M 839 A.2d 410, 415 (Pa. Super 2003).
Pursuant to Section 2511(b), the trial court must take account whether a natural parental bond
exists between child and parent, and whether termination would destroy an existing, necessary
and beneficial relationship. In re CS., 761 A.2d 1197(Pa. Super. 2000). In the instant matter,
social worker testified no irreparable harm beyond repair would be suffered if Father's parental
rights were terminated. (N.T. 2/6/17, pg 69) Furthermore, testimony of the social worker
revealed it would be in the best interest of A.M.P. and LIP. to be freed for adoption. (N.T.
2/6/17, pg. 71) Further testimony of the social worker revealed concern for the children's safety
if they were reunified with. Father. (NJ. 2/6/17, pg. 71)
Here, social worker testified AMP. and J.J.P. were placed in the same home and bonded with
each other and their foster parent (NJ. 2/6/17, pgs. 38-40). Furthermore, the social worker
testified the children were placed in a foster home willing to provide permanency for the children
together. (N.T. 2/6/17 pg. 38-39)
The Court found the testimony of the social wokers to be credible. (NJ. 2/6/17, pg. 126) Hence,
the Court concluded the children would not suffer irreparable or detrimental harm. (N.T. 2/6/17,
pg. 131).
The Trial Court found by clear and convincing evidence that the Department of Human Services
met their statutory burden pursuant to 23 Pa. C.S.A. § 2511 (a) (2),(5), (8) & (b) and that it was
in the best interest of the children, to change their goal to adoption (N.T. 2/6/17, pg. 131)
Conclusion:
For the foregoing reasons, the Court finds that the Department of Human Services met its
statutory burden by clear and convincing evidence: regarding the termination of parental rights
pursuant to 23 Pa. C.S. §2511 (a),(1), (2), (5) and (8) and §2511(b). Furthermore, the Court finds
that its ruling will not cause A.M.P. and. J.J.P. to suffer irreparable harm and it is in the best
interest of the children based on the testimony regarding the child's safety, protection, mental,
physical and moral welfare, to terminate Father's parental rights.
Accordingly, the Trial Court's Order entered on February 6, 2017, terminating the parental rights
of father, ro should be properly affirmed.
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By the COS:
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THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
FAMILY COURT DIVISION
IN RE: C.M.M.. CP-51-DP001567-2014
CP-51-AP-000065-2017
APPEAL OF: M.M., Father Superior Court
No. 960 EDA 2016
PROOF OF
Ihereby certify that this court is serving, today f
0-01' , the foregoingOpinion, by
regular mail, upon the following person(s):
Bennette Harrison, Esquire
City-of-Philadelphia-Law Department
1515 Arch Street, 16th Floor
Philadelphia, PA 19103
Cynthia Keller, Esquire
City of Philadelphia Law Department
1515 Arch Street, 16th Floor
Philadelphia, PA 19103
Claire Leotta, Esquire
12325 Academy Rd Ste 52
Philadelphia, PA, 19154-1927
Michael Graves, Esquire
1213 Vine Street
Philadelphia, PA 19107
/ iss
BY T
A
COUR
rs
/
Hon,rable Lyris
-
g-
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