Adoption of: A.S.N., Appeal of: J.L. ( 2020 )

J-A12030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.S.N. : IN THE SUPERIOR COURT OF
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APPEAL OF: J.L., MOTHER : No. 140 WDA 2020
Appeal from the Decree Entered November 22, 2019
In the Court of Common Pleas of Warren County
Orphans' Court at No(s): 12 of 2019
IN RE: ADOPTION OF S.L.N. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: J.L., MOTHER : No. 141 WDA 2020
Appeal from the Decree Entered November 22, 2019
In the Court of Common Pleas of Warren County
Orphans' Court at No(s): A.N. No. 13 of 2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED MAY 22, 2020
Appellant, J.L. (“Mother”), appeals from the decrees entered in the
Warren County Court of Common Pleas, which granted the petitions of
Appellee Warren County Children and Youth Services (“CYS”) for involuntary
termination of Mother’s parental rights to her minor children, A.S.N. and
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* Retired Senior Judge assigned to the Superior Court.
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S.L.N. (“Children”).1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them. Procedurally, we add that this Court consolidated Mother’s
appeals sua sponte on February 14, 2020.
Mother raises the following issues for our review:
HAS THE BURDEN OF PROOF BEEN MET BY CLEAR AND
CONVINCING EVIDENCE TO SHOW THAT INVOLUNTARY
TERMINATION OF PARENTAL RIGHTS OF THE NATURAL
MOTHER IS WARRANTED UNDER 23 PA.C.S.A. §
2511(A)(1), (2), (5), AND (8)?
DID THE [TRIAL] COURT ERR AND ABUSE ITS DISCRETION
BY FAILING TO ADEQUATELY CONSIDER THE
DEVELOPMENTAL, PHYSICAL AND EMOTIONAL NEEDS AND
WELFARE OF THE MINOR CHILDREN?
(Mother’s Brief at 4).
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)).
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1 Father filed separate appeals from the termination decrees, which are
docketed at No. 135 WDA 2020 and 136 WDA 2020. This Court consolidated
Father’s appeals sua sponte on February 14, 2020.
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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 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)).
CYS filed a petition for the involuntary termination of Mother’s parental
rights to Children on the following grounds:
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§ 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.
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(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to 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.
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(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.
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(b) Other considerations.―The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(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 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 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 …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.
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,
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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 …her 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
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 …her 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.,
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797 A.2d 326, 337 (Pa.Super. 2002). “Parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. Under 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).
“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
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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 CYS 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 CYS services. In re Adoption of T.B.B., 835
A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P., supra.
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
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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 …her 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
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 [herself] 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 …her 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 …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 …her child is converted, upon
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the failure to fulfill …her 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 Gregory J.
Hammond, we conclude Mother’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions presented.
(See Trial Court Opinion, dated January 22, 2020, at 6-17) (finding: (1)
Children have been in CYS’ care since June 2018; since that time, Mother has
failed to perform her parental duties; Mother has made no concerted effort to
find and maintain employment, and she has repeatedly failed drugs tests;
Mother was arrested and is currently incarcerated; during psychologist
interview, Mother did not express concern or remorse about her incarceration
and her unavailability to Children; Mother’s release date from prison is
unknown, and she will be facing additional prison time for new charges upon
her release; Mother cannot remedy her incarceration/addiction issues in
timely manner; termination of Mother’s parental rights was proper under
Section 2511(a)(1), (2), (5) and (8); (2) although Children had some good
moments with parents, these moments do not make up for uncertainty
Children presently face; Dr. von Korff, CYS expert and licensed clinical
psychologist, testified that Children will benefit from having permanency in
secure environment as soon as possible; parents have not spent any
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significant time alone with Children in over 1½ years; Dr. von Korff testified
that termination is in Children’s best interest, regardless of any parental bond;
termination of Mother’s parental rights was proper under Section 2511(b)).
Accordingly, we affirm based on the trial court’s opinion.
Decrees affirmed.
Judge Colins joins this memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2020
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Circulated 05/15/2020 09:57 AM
Received 2113/2020 4:53:57 PM Superior Court Western District
IN THE COURT OF COMMON PLEAS
OF THE 37TH JUDICIAL DISTRICT OF PENNSYLVANIA
WARREN COUNTY BRANCH
ORPHANS; COURT DMSION
IN RE: ADOPTION OF
A.:>. N. AN 12 of2019
D.O.B. 07. /15
IN RE: ADOPTION OF AN 13 of2019
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D.O.B. 08F /16
MEMORANDUM OPINION
Presently before the Court for consideration are Notices of Appeal and Statements of
Matters Complained of on Appeal filed by J.�.L ... ("Mother") and J . \_ . N.
_ f'Father") on December 23, 2019 in response to the Court's Involuntary Termination of
Parental Rights to their minor children, A.S.N. and S.L.N. ("Children"). Mother and Father both
assert that the Court did not have enough evidence to terminate their parental rights under the
bases of 23 Pa. C.S.A. §25] l(a)(l), (2), (5), and (8). The Court first directs the Superior Court to
this Court's findings and 'opinion set forth on the record at the conclusion of the hearing. (TPR
Tr. at 239:5-269:17). This opinion is intended to supplement these findings and opinion. Also, as
the cases were consolidated for hearing; the matters complained of on appeal by the parents are
identical; and the findings of fact and legal issues are largely overlapping; this Court has entered
a single opinion in these matters, The Court issues the following Opinion pursuant to Pa R.A.P.
l 925(a)(2).
FACTUAL AND PROCEDURAL BACKGROUND
In early 2018, Mother, Father, and Children were identified by New York State child
welfare agencies as homeless as they were found to be residing in either their vehicle or various
hotels. Mother and Father's alleged illegal drug use was also at issue and on May 16, 2018, they
both tested positive for metharnphetamine and amphetamines. After being informed that
Chautauqua County, New York child welfare authorities were preparing to detain Children,
Mother and Father decided to move the family into the home of Mother's father, V. M,
. in Warren County, Pennsylvania. On or about May 18, 2018, Warren County
Children and Youth Services ("CYS") met with the family and assisted them in obtaining
medical assistance insurance for Children. Less than two (2) weeks later, i V. M. asked the
family to leave his home because he suspected Mother and Father were using drugs. This was
proven to be true on June I, 2018, when they both tested positive for methamphetamine.
Mother and Father left Children with a friend, 1 C., W. who ultimately contacted
Warren County CYS on June 11, 2018 to inform them that she would no longer be able to
provide care for Children. While Children were in the homes of V. M. and ' t:W,, they
were given much needed medical care by addressing out-of-date vaccinations and untreated
MERSA On June 13, 2018, Warren County CYS filed a petition for, and was granted,
emergency custody of Children, who have remained in Warren County CYS custody since that
date. A Shelter Care hearing was held on June 14, 2018 and a Dependency hearing was
subsequently held on September 5, 2018 where both Mother and Father were drug tested with
positive results. Father tested positive for Suboxone and Mother tested positive for
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amphetamines and Suboxone while also facing Retail Theft (F-3) charges in Warren and
McKean Counties. Mother testified that she had been treating with Subutex for eight (8) years
and Father had been treating with Subutex for six (6) years. At the time of the September
hearing, their housing situation was still not fully resolved as they only had a verbal sublet
agreement accompanied by several incident reports to the local police for domestic and
landlord/tenant disputes.
Starting on October 12, 2018, Mother served two (2) months in the Warren County
Prison for Felony Retail Theft and was also convicted of Felony Retail Theft in McKean County,
for which she was sentenced to two (2) years of probation, supervised by Warren County Adult
Probation Department. While incarcerated, Mother declined visits with Children and while
Father did attend supervised visits with Children, he was unable to maintain permanent housing.
A Permanency Review hearing was held on December 18, 2018 where the Court found
that although the Mother and Father visited Children, they failed to meaningfully address their
drug, alcohol, and mental health addictions/treatments, failed to obtain housing, and failed to
secure employment and/or income. Following the hearing, both Mother and Father tested
positive for Subutex, for which they were still obtaining prescriptions from a Subutex clinic.
The Juvenile Court found minimal compliance with the permanency plan and no progress
towards finding a solution for the circumstances which originally caused Children's initial
placement.
A second Perman.ency Review hearing, held over the course of three (3) days, ended on
May 21, 2019 where Mother and Father were found to be living in an appropriate home (EOC-
subsidized housing) for themselves and Children. Mother was working a part-time job, attending
most of her individual drug and alcohol counseling appointments, had obtained a mental health
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evaluation, and bad not tested positive for drugs since December 2018. Father was working
"under the table" in New York and had only attended 40% of his scheduled outpatient drug and
alcohol treatment sessions. He admitted himself for nine (9) days to a program which he left
prematurely on April 17, 2019 and did not seek any other subsequent drug or alcohol treatment.
He did obtain a mental health evaluation; however, he was dishonest throughout its entirety
regarding his drug use. Immediately following the second Permanency Review hearing on May
21, 2019, Father tested positive for methamphetamine, amphetamines, and buprenorphine. The
Juvenile Court conditioned continued supervised visitation between Father and Children upon
his enrollment in a drug and alcohol program as well as testing negative for drugs.
"From May to July 2019, Mother continuously requested that CYS allow Children to visit
with Father due to his enrollment in drug and alcohol treatment and his alleged sobriety. CYS
originally declined her requests, but on July 2, 2019 they arranged for Father to be drug tested at
the Warren County Adult Probation Office where he was found to be concealing drug-free urine.
He was immediately arrested and pled guilty one week later.
After Father's arrest, Mother was requested to submit to a drug test. Upon arrival at the
Warren County Courthouse, she was immediately arrested and charged with furnishing drug-free
urine, make/repairs/sell/etc. offensive weapons (brass knuckles found in her purse) and
misdemeanor counts of possession of controlled substance by a person not registered and
furnishing drug-free urine. She has been incarcerated on probation and parole violation charges
arising from this incident since July 2, 2019 and she also has pending charges in Warren County
and in New York.
Father was released from incarceration on July 9, 2019 and was subsequently arrested
three (3) days later from a traffic stop resulting in felony charges of Aggravated Assault,
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Possession with Intent to Deliver Controlled Substance, Endangering the Welfare or Children,
and additional misdemeanors.
Children have been in placement for fourteen (14) months and during this time Mother
and Father have had short-lived progress (if any), participated in trying to deceive authorities
regarding their alleged sobriety, and have not addressed their addictions in any meaningful or
successful way. Both Mother and Father are currently incarcerated and due to pending felony
offenses, could possibly be incarcerated for a significant amount of time in the near future.
On August 29, 2019, Warren County Children and Youth Services filed a Petition for
Involuntary Termination of Parental Rights (''Petition") of Natural Mother and Natural Father.
An evidentiary hearing was held on November 21, 2019 where Attorney Rene H. Johnson
represented Warren County CYS, Attorney Cynthia K. D: Klenowski represented Mother,
Attorney Alan M. Conn represented Father, and Attorney Andmoragan C. Sharp represented
Children's legal and best interests. After the hearing and review of the record, the Court
terminated the parental rights of Mother and Father pursuant to 23 Pa. C.S.A. §251 l(b) and 23
Pa. C.S.A. §251 l(a)(l), (2), (5), and (8). A Decree of Termination was filed the following day.
On December 18, 2019, Father filed a Motion to Proceed in Forma Pauperis, Notice of
Appeal, and Statement of Matters Complained of on Appeal. Mother also filed a Motion to
Proceed in Forma Pauperis, Notice of Appeal, and Statement of Matters Complained of on
Appeal 011 December 23, 2019. Considering the fact that Mother and Father filed separate
appeals alleging the same issues, the Court will address each issue, by parent, for the sake of
judicial economy.
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CONCLUSIONS OF LAW
The first issue raised by both Mother and Father is whether the Court erred in finding that
Warren County CYS proved by clear and convincing evidence that for a period of at least six (6)
months immediately preceding the filing of the petition that Mother and Father either showed
settled purposes of relinquishing parental claim to Children or refused or failed to perform their
parental duties. Pa. C.S.A. §251l(a)(l). The Petition was filed on August 29, 2019 which makes
the six (6) month period run from the beginning of February 2019 until the end of August 2019.
However, the Court cannot simply look at this six (6) month time period without taking into
consideration the entire history of the case. "The court should consider the entire background of
the case and not simply: 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 ... " In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010) (citing In re B .• N.M., 856 A.2d 847, 855 (Pa. Super. 2004)). The Court will
consider the period of time from when Children were first put into placement, June 2018, until
the time the Petition was filed in August 2019.
Mother claims that she maintained a relationship with Children and a role in their lives
even while they were placed outside of her home and that she utilized the resources available to
her in order to fulfill her parental duties as much as she could. The Court only needs to find that
a parent either shows a· settled purpose of relinquishing parental claim to their children or has
refused or failed to perform their parental duties. Seeing as Mother made substantial progress
towards her sobriety, found a job and a suitable home at the time of the May 2019 dependency
hearing, the Court does not find that Mother showed a settled purpose of relinquishing her
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parental claim. However, the Court does find that Mother failed to perform her parental duties,
not only during the six (6) months prior to the filing of the Petition, but going back to June 2018
when the girls were initially put into placement.
Jn June 2018, Children were put into placement because of Mother and Father's drug use,
lack of medical attention, and inability to maintain a suitable place to Jive. Mother and Father
have not had custody of Children since then. Although Mother attended most of her scheduled
visits with Children, there were times that these visits were missed. "There were a few they
missed. One of them usually would miss due to illness .. f"'tc\l,e,r missed one after she worked her
first shift at Whirley, because she was just too tired." TPR Tr. at 192:9-13. Mother worked at
Whirley for a few weeks, but quit soon after. She also worked at Dairy Queen for a short time,
but was let go. There has been no real concerted effort on Mother's part to find and maintain
employment. Parental duties involve more than just showing up, when it is convenient or
enjoyable, for a few hours to visit with your children. Mother repeatedly failed drug tests, was
arrested, and continued living with Father even though the Court advised against it. At a
dependency hearing in May 2019, the Court advised Mother that it would be in her and
Children's best interests to no longer live with Father due to her attempt at sobriety, but they
continued to live together until they were both arrested on July 2, 2019. "[I]f anything, she
advocated for him. And, continued to plan for the four of them to be reunited as a family. She at
no time presented that she was going to parent without him." TPR Tr. at 203:17-21. Since
Children were put into placement, Mother has failed to perform her parental duties by continuing
to partake in the actions and behaviors that led to her children being taken away in the first place.
Father claims that he attended regular visits with Children prior to his incarceration and
that he made efforts to receive help and treatment for his substance abuse issues by attending
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drug and alcohol treatment. Father's explanation for his failure to perform his parental duties is
because of his drug issues, criminal charges, lack of employment, and lack of stable housing.
The Court finds that Father both evidenced a settled purpose of relinquishing his parental claim
to the Children and that he failed to perform his parental duties.
From the time Children were put into placement in June 2018, Father never had a period
of time where he gave any real effort to his sobriety, finding stable housing, or finding
employment. Because of the severity of his addiction issues, the Court entered an order stating
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that Father had to be involved in treatment and testing clean in order to have contact with his
children. "Father abandoned rehab after only nine (9) days. In his words, he said -that there
were ... people there that were using and dealing. And, that it wasn't to his benefit to be there."
TPR Tr. at 113:20-22. Wanting to make a change and actually making a change are two very
different ideas. "He always stated that he wanted the help. But, he didn't follow through with
the help ... and there were many times at the visit that he would appear somewhat impaired."·
TPR Tr. at 114:15-22. Father's only verifiable employment was from March 1, 2019 until early
April, when he worked at Targeted Pet Treats. Otherwise, he was working "under the table"
which meant that any income, jobs performed, or hours worked were unverified. Father's
persistent drug use, numerous criminal acts, and lack of motivation to better himself in order to
get his children back are a few of the many reasons why the Court finds that he has evidenced a
settled purpose of relinquishing his parental claim to Children and that he has failed to perform
his parental duties.
The second issue raised by both Mother and Father is whether the Court erred in finding
that Warren County CYS proved by clear and convincing evidence that their repeated and
continued incapacity, abuse, neglect, or refusal caused Children to be without essential parental
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care, control, or subsistence necessary for their physical or mental well-being and the conditions
and causes oftbe incapacity, abuse, neglect, or refusal cannot or will not be remedied by Mother
or Father. Pa. C.S.A. §2Sll(a)(2). This section "emphasizes the child's present and future need
for essential parental care, control, or subsistence necessary for his physical or mental well-
being." In re E.A.P., 944 A.2d 79, 82 (Pa Super. 2008). As such, "the orphan's court should
not ignore a child's need for a stable home and strong, continuous parental ties ... this factor is
particularly important when the disruption of the family has already occurred and there is no
reasonable prospect for reuniting it." In re Adoption of K.M.G .• 219 A.3d 662, 991 A.2d 321, 324 (Pa. Super. 2010)). It is well established that,
"[i]ntangibles such as love, comfort, security, and stability are involved in the inquiry into needs
and welfare of the child." In re Adoption of K.M.G. at 674 (citing In re C.M.S., 884 A.2d
1284,1287 (Pa. Super. 2005)). The emotional bond between Children and their parents is very
important as well as the negative effect the termination could possibly have on Children. Dr. von
Korff freely admitted that there were good aspects of the relationship between the parents and
Children. "I don't think these kids could be as well-adjusted as they are given their history and
their current circwnstances, if there hadn't been good moments with their parents." TPR Tr. at
32:15-18. However, good moments from the past do not make up for the uncertainty Children
are presently facing. Dr. von Korff noted what is most important for Children right now: "These
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are children who will be benefited by having permanency in a secure environment as soon as that
is possible. And, both permanency and security arc things that the children very much need."
TPR Tr. at 45:19-22. Until they were put in placement, Children were living a transient
existence by residing in cars, hotels, and on available couches at their parents' friends' homes.
There was neither a sense of permanency nor security in their lives. While Dr. von Korff
believes Children will experience the loss of their biological parents, he also believes that finding
them a secure and permanent home is of more importance at this crucial time in their young
lives. "I certainly trunk that the children faced with two dilemmas are better off having security
at the age of three and four and permanency, then, and then addressing the loss issues." TPR Tr.
at 61:1-5. Toe negative impact the Children will experience because of their parents' parental
rights being terminated will be outweighed by the positive impact of finding a permanent home
where they will find much needed security and stability.
While the Court believes the parents love Children, that love does not mean that the
parents' rights cannot be terminated. "[T)he orphan's court must examine the depth of the bond
to determine whether the bond is so meaningful to the child ihat its termination would destroy an
existing, necessary, and beneficial relationship." In re Adoption of K.M.G. at 675 (citing In re
A.D .• 93 A.3d 888, 897 (Pa. Super. 2014)). Dr. von Korffpe:rfonned bonding and attachment
evaluations for his expert report, but it is important to note that he never actually witnessed the
parents interacting with the children. "[T)he Court had decided that. fo.�e;<' and the children
should not have contact. And, t-'\'.:> W'ie( indicated that she did not want the children brought to
the jail, so no opportunity was afforded to meet with the children and parents jointly." TPR Tr.
at 15:8-14. While Dr. von Korff points out that Children are affectionate, warm, and
comfortable with a wide variety of adults, he does not solely attribute their well-adjusted
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behaviors to be solely based on their bond with their parents. "[MJy inclination is to suspect that
a good deal of the security that they show right now is a function of living within the stable
environment." TPR Tr. at 48:14-17. Although there has been a loving relationship between
parents and Children, there has not been any significant time spent alone as a family in over a
year and a half. Children have become close with their foster parents and have not seen their
parents sincethey were incarcerated in July 2019, and according to their caseworker, they do not
ask about their parents anymore. TPR Tr. at 188:10. Dr. von Korff ultimately makes it clear that
regardless of any parental bond, the termination of their parental rights is in Childrens' best
interest. "I believe they have received many episodes of warm parenting from f�e< and
from M°"'1e.< but, they have also been subject to a great deal of chaos and uncertainty and
unavailability of their parents, either because they are incarcerated or they are drug involved or
they are drug seeking or they are not available .. .It's quite a happy finding that the children are as
well as they are. But, I would strongly encourage that the Court and the agency find means to
give them permanency as soon as possible." TPR Hearing Tr. 46:1-13.
Finally, Mother and Father should have their parental rights terminated because their
children were put into placement because of their choices and actions. They had full control of
their decisions to be homeless, unemployed, and seekers and users of drugs. While the Court
understands the complexity and devastation of addiction issues, it is ultimately up to the
parents
to give their best efforts to use the services and assistance available to them in order to get their
lives on track so they can be parents to their daughters. "Frankly, I think the worst-case scenario
for these girls is for them to come to believe or come to a reality that they begin to interact with
these parents again, followed by the inevitable relapse, reincarcerations. I think that is most
likely what would happen if we gave these parents another chance. And, I think that would be
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devastating." TPR Tr. at 265:13-22. Mother and Father have both demonstrated that they are
not able to provide safety, permanency, and stability for Children and as such, it is in their best
interest for Mother and Father's parental rights to be terminated.
For the reasons stated above, the Court finds that Warren County CYS provided clear and
convincing evidence to support the termination of Mother and Father's parental rights.
No further Opinion shall issue.
January 22, 2020
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