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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: E.R., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: N.R. No. 586 MDA 2014

Appeal from the Decree entered February 26, 2014, in the Court of Common Pleas of Northumberland County,

Orphans’ Court, at No(s): 45 of 2013 IN RE: ADOPTION OF: A.R. IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: N.R. No. 587 MDA 2014

Appeal from the Decree entered February 26, 2014, in the Court of Common Pleas of Northumberland County,

Orphans’ Court, at No(s): 46
-2013 IN RE: ADOPTION OF: I.R. IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: N.R. No. 588 MDA 2014

Appeal from the Decree entered February 26, 2014, in the Court of Common Pleas of Northumberland County,

Orphans’ Court, at No(s): 47
-2013 IN RE: ADOPTION OF: A.M., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: N.R. No. 589 MDA 2014

Appeal from the Decree entered February 26, 2014, in the Court of Common Pleas of Northumberland County,

Orphans’ Court, at No(s): 48
-2013 BEFORE: DONOHUE, JENKINS, and PLATT*, JJ.

* Retired Senior Judge assigned to Superior Court.

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MEMORANDUM BY JENKINS, J.: FILED JANUAR Y 23, 2015 Appellant, N.R. (“Father”), appeals from the decrees involuntarily terminating Father’s parental rights to A.M. (born in December of 2004), I.R. (born in May of 2007), A.R. (born in March of 2000), and E.R. (born in September of 2001) (collectively “the Children”). 1 

### We affirm. This family became known to Northumberland County Children and Youth Services (“CYS”) in April of 2007 after allegations of an unsupervised child wandering around the city of Sunbury. After a safety plan was approved for the family, the case was closed. In 2010, General Protective Services (“GPS”) became involved with the family due to allegations of domestic violence, poor home conditions, and because the family was going to be evicted from their apartment. After Mother made arrangements for
new housing and doctor appointments for the Children, the case was closed. In late 2010 and early 2011, GPS referrals were received alleging the family’s lack of basic utilities, Mother’s drug use, domestic violence, potential eviction, various unidentified individuals who visited the home, drug use, and truancy. On February 18, 2011, Mother signed a Voluntary Entrustment Agreement, placing the Children in CYS’s custody. The Children were placed

1 

### On February 27, 2014, the trial court entered its decrees terminating D.M.’s (“Mother”) parental rights to the Children. Mother is not a party to this appeal, but filed a separate appeal at docket nos. 639, 640, 641, 642 MDA 2014.

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in the care of Paternal Grandparents. On March 23, 2011, the Children were adjudicated dependent. On August 14, 2013, CYS filed petitions for the involuntary termination of Father’s parental rights, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). On February 21, 2014, the trial court held a hearing on the petitions. At the hearing, Jennifer Donmoyer, a family service worker for CYS; Sara Blair McIntyre, a CYS caseworker; Maternal Grandmother; Paternal Grandmother; and Father testified. On February 27, 2014, the trial court entered its decrees terminating Father’s parental rights to the Children. On March 27, 2014, Father filed his notices of appeal and concise statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated the
cases sua sponte on April 25, 2014. Father raises the following issues for our review: 1. Whether the trial court erred in determining that Northumberland County Children and Youth Services (CYS) presented clear and convincing evidence that grounds for involuntary termination exist? 2. Whether the trial court erred in determining that the best interest of the Children would be served by terminating parental rights? Father’s Brief at 16. Our standard of review regarding orders terminating parental rights is as follows:

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When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge’s decision the same deference that we would give to a jury verdict. 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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. Id. at 806. We have previously stated: 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 hesitance, of the truth of the precise facts in issue.” In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003). The trial court is free to believe all, part, or none of the evidence presented and is likewise free to make all credibility determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73
-74 (Pa. Super. 2004). If competent evidence supports the trial court’s findings, we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally, this Court “need only agree with [the trial court’s] decision as to any one subsection in order to affirm the termination of parental rights.” In re

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B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004). In terminating Father’s parental rights, the trial court relied upon Section 2511(a)(1), (2), (5), (8), and (b) which provide: § 2511. Grounds for involuntary termination (a) General rule.
--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well
-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

* * * (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance 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. * * * (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. We have conducted a careful review of the briefs of the parties, the relevant law, the certified record, and the thorough opinion of the Honorable William Harvey Wiest, dated April 29, 2014. We conclude that competent evidence supports the trial court’s termination of Father’s parental rights to the Children under Sections 2511(a)(1) and (b). We note the trial court’s decree does not specifically address Section 2511(b). However, the trial court’s accompanying memorandum does address Section 2511(b). It is clear the trial court felt that the termination of Father’s rights is in the best interest of the Children. To the extent evidence of a bond between Children and Father was before trial court, the

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trial court did not abuse its discretion in discounting that bond due to Father’s continued incarceration. See In re Adoption of S.P., 47 A.3d 817, 830
-831 (Pa. 2012) (stating that trial courts must review the individual circumstances for every child to determine how a parent’s incarceration will factor into an assessment of the child’s best interests). Accordingly, on the basis of the well
-analyzed discussion in the trial court opinion dated April 29, 2014, we affirm the decrees terminating Father’s parental rights to the Children under Sections 2511(a)(1), and (b), and adopt that opinion as this Court’s own. Decrees affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 1/23/2015Circulated 12/09/2014 12:02 PM Ii



# - \ )

## ,

IN RE: ADOPTION OF 

## OPINIONBELOW IN THE COURT OF CQMMON PLEAS OF NORTHUMBERLAND COUNTY, PA E.R, a minor child ORPHAN'S COURT DIVISION ADOPTEE #45 of 2013
OPINION PURSUANT TO Pa,RAP. 1925(a) Factual and Procedural Background



### .The family in the above-captioned case becanie involved with Northumberland County Children and YOuth services inApril of 2007, 

### after allegations ofan unsupervised child wandering around in the city of Sunbury. The matterwas referred for asafety plan assessment, a planwas approved and the case was closed, J) 

### General. Protective Services (GPS) became involved with the family again in 2010



### )) 

### responding to ailegations of domesticviolence, poor home conditions', and the possibility that

.. 

### the family would be evicted from theirapartment. After the natural mother made new arrangements for a residence and successfully scheduled doctors' appOintments for the children, the case was again closed. More GPS referrals were received In late 2010 Into early 2011 regarding the family's lack of basic utilities, natural mother's drug use, domesticviolence, and potential eviction, There were also allegations ofvarious unidentified individuals who frequented the home2• 

### After investigation, the home was found to be without hot water and the natural mother admitted to having smoked marijuana. The family continued to remain involved with the GPS division of the

. Northumberland County Children and Youth Services, during their involvement through

February 2011, the family struggled with domesticviolence, truancy, lack ofemployment, dangerof eVictions, and related drug use. On February 18th 

### 2011, the natural mothersigned a Voluntary Entrustment Agreement, placing her children (including the above-captioned child) In

1Specifically, It was alleged that one minor child had several "flea oites." 'TheDependency petition In the case suggested that there were a "lot of'Puerto Ricans' In

### a~ putofthe home at all hours oftheday and night:' 

### 27 1 02:08 PMCirculated 12/09/2014 12:02 PM


## ))

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the care and custody of Northumberland County Children and**~uth Service~** who, LlttljJn, placed the children in the home ofthe paternal grandparents,
.... 

### and

### ~ The child was adjudicated Dependent on March 

### 23'd 2011. The child was placed In

. foster care by the Agency. However, the placement was actually in the kinship home

### o~ 

# T..--witL
On June 

### 23'd 2013, Northumberland County Children and Youth Services (the Agency) filed a Motion for a Finding ofAggravated Circumstances alleging aggravated circumstances against the natural mother in that, while her identity or whereabouts were known, she failed to maintain substantial and continuing contact with the child for a period of six months. On July 

### 17'h 2013, the Court found by clear and convincing evidence that the aggravated circumstance alleged eXisted as against the natural mother. The Court further ordered that NO efforts at reunification between the child and the Natural Mother need be made. Consistent throughout the review period, that is the time during which the children were in care, the parents maintained little progress and efforts. Natural father was incarcerated (and continues to be) during the entire time period in which his children were in the Agency's custody. During his time of incarceration, the Natural father provided no documentation of any services, programs, or activities he was engaged in orcompleted. He did communicate with the Children through letters. Natural mother, while ordered to participate in parenting classes, find gainful employment, and obtain housing, was minimally compliant. During the early part of the case, Natural Mother had visitation with the children, but from approximately mid-Summer of 

### 2012 until sometime in early spring of

### 2013, she had no contact with the Agency and, to the Court's knowledge, did not contact the children. On,August 

### 14th 2013, the Agency flied a Petition to Involuntarily Terminate the Parental Rights of Natural Mother and Natural Father. The children had spentthirty-six (36) months in the care and custody ofthe Agency, albeit in the home oftheir paternal grandmother and grandfather.

l The Order ofAdJudit;ation and Disposition Indicates that placement was in Foster Care. The initial. permanency 

### )! review order.indicated "FosterCare
- Kinship." 2 

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### On 

### January 16th

### 2014, the Natural Motherfiled amotion requesting the Court to direct .' 

## . the Agency to make a referral for a homestudy through the Interstate Compact. Thehomestudy would presumably have been performed on the maternal grandmother, who resided in New York. The Court denied the same. ",1&/. 

### On February 21 st 

### 2014 atthe Termination Proceedirlg, the Natural Mother moved, in open court arid on the record, forthe relief requested in the motion. The Court denied the same, holding that the matterwas better raised in proceedings before Dependency Court.

# 1IJfDuring'the period of lime in which the children were in care, the Natural Father, 

# tt '7. 

# T 7 was incarcerated. During his incarceration, he wrote several letters which were received and reviewed by the caseworkers at the Agency, the caseworkers testified that they had written him back concerning the children. The Agency provided him with a copy of the Child's Permanency Plan, and never received any indication that the Natural Father did not understand or questioned the plan. Natural Father did sign the same on February 16111 

### 2012

.. The caseworker testified that as ofApril 2011, Natural Fatherwas not engaged In any 

### ,I) services. However, as ofApril 2013, the Natural father was 'taking as many classes that w[ere]



### )l offered at SCI-Dallas. Due to each facility being different, they do not - they do not have the same things in.each prison." See Transcript ofProceedings. February21st 2014, 

### pg 14. While In

### prison, Natural Father had regular vIsitation with the children. The children were transported bytheir grandmother, the kinship-foster parent. Natural Fatherwas "very appropriate" during visitation with the children. See Transcript ofProceedings on February21s1 2014, 

### pg 26. He sent the children pictures and letters, and kept In regular contactwith the children. In some lengthy discussion, the caseworkerwas cross examined on the availability ofservices forthe Natural Fatherwhile he was incarcerated. Specifically: 'Q: 

### All right. Without looking at any orders, you don't know what you can say. what he was court ordered to do, to participate in. Is that afair statement? A: That is fair. And due to being incarcerated, like I said earlier, not each facility has the same things. And it's tough for us to even know what is in each one because it 

### changes from place to place or even month to month. So Ithinkthat was, in turn, why it was not spelled out as specific and said that when he wQuld be released, hewould need to let us know 3 

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# ))

) 

### ) Circulated 11/24/2014 02:08 PM

specifically when he was out to become activewith thefull plan ofwhat he needed to do." See Transcript ofProceedings from February21'1 2014, pg 28-9. Natural Father's maximum sentence datewas June 13th 

### 2014. According to the caseworker, the Natural Fatherwas up for parole several times in during thethree years the children were in placement, he was denied each time. The caseworkertestified that it was her beliefthat he was denied by virtue of his behavior in prison. During the leUercorrespondence between the Natural Father and the caseworker, the Natural Father communicated his desire to be there forhis children and his strong desire that the children not be adopted. The caseworker testified that she received lettersfrom the Natural Father approximately monthly. She also testified that during'her supervision ofthevisitation between the Natural Father and the children, Natural Fatherwas entirely appropriate with the children, and the children were excited to see their father. Natural Fatherwould mail some minor artwork, portraits, and other small gifts and keepsakes to the children whenever he could acquire the same. The Natural Mother suffered from issues pertaining to domestic disputes and consistent transiency. What appears to be most disturbing is that Natural Mother apparently disappeared for some time and was unreachable by the Agency. Mother maintained limited visitation with her children. Specifically, between August of

### 2011 and Christmas of

### 2012, Natural Mother had no visits with her children. Regarding Mother's transiency, she lived in several towns and citles in Pennsylvania, and then movedto NewYorkand New Jersey all during the time period that the children were in care. Mother made a great case at the termination hearing on February 

### 21,1 2014 regarding the fitness and availability ofmaternal grandmother as a resource home for the children. During the time ofher request, Mother lived with the maternal grandmother in New York. Apparently, Mother had requested that the Agency permit the children to live with her in NewYork several times prior to Court on February 

### 21'12014. Throughout the three years in placement, the kinship-foster family has provided forthe needs of the children. An example ofthe level ofdevotion to the continued permanence ofthe children, is the fact that atthe onset ofplacement, the youngest childwas significantly behind in his immunization records, the grandmother successfully got him up to date. In hertestimony, the grandmothertestified as follows:

4 

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### A Well, taking care ofthe four children, it requires 

### 110 PElrcent ofme. So whether It's school, doctor's appointments, dentist appointment. Three ofthe children
- well, four ofthem were in counseling. Three ofthem now remain in counseling, which is sometimesweekly, every otherweek. Numerous appointments, basketball game. We lost this one. But basketball games, events, activities. You know, to me, I can - that's

### a.full-timejob basically. See TranSCript ofProcel;idings on fabruary

### 21s/2014, pg 

### 57.
At anotherjuncture In the case, the grandmother proffered testimony that was very Indicative ofthe effects on ALL children ofremoval from the home. Q:

...

### what were they like when they first came to Jive with you three years ago? 

### A: I - 

### Ithink -I guess I would say theywere a .little afraid. They always kind of stayed together. Like they kind of needed each other, Theywas very interwoven with one another. They always kindofalways kept a bag kind of packed not knowing what was going to happen and stuff and, you know, just always concerned about what's fordessert, what we're going to eat, you know, and differentthings likethat. So' Jthink inthe beginning, they might have been a little bit afraid, not sure. You know, but they felt happyto bewith us because here and now we were getting things that were consistent and structure and attention, and
- you know, so -**~** Transcrieffrom Proceedings on February

### 21.12014, pg 58-9. Of note, at the termination proceeding, the permanency caseworker testified as follows regarding the oldest child: 

### UA,R. was not very open with me, at that time. She was very upset about being in the foster care system. It took a while. She grew and opened up, and nowshe's actually on a good working relationShip with me to a pointwhere she'll discuss things. She is very comfortable In the home. She's actually told me she has corne to a means of understanding 

### .i) that theyjust need to find somewhereto be, and she's fine with everything that the agency has been trying to do for her." See Transcript ofProceedings from February21" 2014, pg. 22. 5 

## 3lCirculated 12/09/2014 12:02 PM



### )\

)



### )1 Circulated 11/24/201402:08PM



### The Agency had discerned that the kinship-fosterfamily was willing to be permanent resources for two of the four children, the daughterofthe grandmother', was willing to be a permanent resource for two of the children. The kinship-fosterfamily and the daughter's family lived a reasonable distance from each other, which would facilitate contlnued contact and 

### interaction between the children and their siblings. In discussion with the children regarding the suggested permanency options, the grandmother characterized their relative reactions; A All different reactions. [AR.]just wants to befinished with Children and Youth. Adopt me. Do Whateveryou got to do. 

### IJust want to be finished. [ER) pretty much goes along with [AR.). She has been the motherfor them when there 

### wasn't really wasn't a motherfigure there. So 

### [AR.] kind offeels like the three boys are her chfldren. And 

### Itry to tell her, 

### I'm the mother. One qusen in the castle. 

### It would be me. So she
- they listen to her because that's who they're accustomed 

### to. So [E.R.) 

### will do what [AR.] 

### kind ofsay. They've been trained that way. Whereas, the two younger ones - [AM.] 

### is pretty independent. He's excited, He wants to g,o with {grandmother's daughter]. He wants to be with her. 

## O.R.] isjust totally different., He's a little bit
- he's not sure. They said we're going to mommy, they say we're going here, and hejust kind ofgoes along with the crowd because of his age, 

### Iwould say. The grandmother testified that she believed that the children were 'bonded" to the natural father, however, she testified that she believed thatthe children would not suffer irreparable harm from asevering of that bond. The Court entered final orders oftermination following the hearing, both parents appeal.**~ule** 

### oflaw

4The srandmotherIs

### ~ctually the

### stepilran~ther for the children, asshe Is married tothe paternal grandfaiher. The step.-grandmother'sdaughter

# r_..__is theotherpermanentresource. She is not biological family, however, shehas visited with the**kl~amily** al every holiday and the children are veryfamiliar with the daughter's family. As such, It Is this Court's opinion thatthedaughter's family Is withinthedetinltlon ofa "kinship' placement. 6 

### 32Circulated 12/09/2014 12:02 PM



## )) Circulated 11/24/2014 02:08 PM

The grounds for involuntary termination of parental rights are setforth in section 2511 of title 23 ofthe Pennsylvania Consolidated**Statute~.** Specifically sections (a)(1); (a)(2); (a)(5); and (a)(8) appear substantially as follows:
23 Pa.C.SA §2511 (a) (1) The parent by conduct continuing for aperiod of at least six months immediately preceding the filing ofthe petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused orfailed to perform parental duties. (2) The repeated and continued incapacity, abuse, neglect or refusal ofthe parent has caused the child to be without .essential parental care, control or subsistence necessary for his physical or mental well-being andthe conditions and causes ofthe incapacity, abuse, neglect or refusal cannot orwillnot be remedied by the parent.

(5) The child has been removed from the care ofthe parent by the court or under a voluntary agreementwith an agency for a period of at least six mO,nths, the conditions which led to the removal or placement ofthe 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 ofthe child within a reasonable period oftime and termination ofthe parental rights would best serve the needs andwelfare ofthe child.

(8) The child has been removed from the care ofthe 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 ofthe child continue to exist and termination of parental rightswould best serve the needs and welfare ofthe child. See 23 Pa C.SA §2511. Subsection-(b)-Of-the statute provides that the court in terminating the rights ofa parent shall give primary consideration to the developmental, physical and emotional needs and welfare ofthe child. The rights of a parent shall.not be terminated solely on the basis of 7 

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## I)

I) Circulated 11/24/201402:08 PM



### environmental factors such as inadequate housing, furnishings, income, clothing and medical care iffound to be beyond the control ofthe parent. With respect to any petition filed pursuantto subsection (a)(1), (6) or (8), the court shall not cons'ider any efforts bythe parentto remedy the conditions described therein which are first Initiated subseqJ,Jent to the giving of notice ofthe filing ofthe petition. The term "needs and welfare" is a legal concept that "denotes certain minimum requirements that all children are entitled to-adequate housing, clothing, food and love." In Re Coast, 

### 561 A.2d 762,770 (Pa Super. 1989); In reAdoption ofMichae/J.

### C., 473 A.2d 1021,

. 1029 (Pa. Super. 1984). "Thus, needs and welfare has both atangible dimension, food, clothing and shelter, and an intangible dimension, parental love." In fe 

### PA8., 570 A.2d 522, 525 (Pa. Super 1990); In re 

### J.

# w., 578 A.2d 952, 957 (Pa. Super. 1990). 

### "It is universally agreed that the bond of*539 parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima-facie 

### in the best interest of the child and the state has nojustification to terminate that bond.' In fe J.

# w., 578 A.2d at 958. "If,as here, ties with natural parents are present and are an active force in the child's life, then needs and welfare becomes a concept that argues against termination, rather than fosters it." In re 

### P.A.8., 570 A.2d at 52.5. Moreover, pursuant to section 2511 (a)(5), a court "must examine the status ofthe natural parental bond to considerwhether terminating the natural parents' rights would destroy something in existence that is necessary and beneficial."

## lsi. Subsection (a)(8) sets a 12-month time frame for a parent to remedy the conditions which led to placement. Once the twelve month period has been established, the court must next determine whether the conditions which led to the child's placement continue to exist, despite the reasonable and good faith efforts ofthe Agency, supplied over a realistictlmeframe

.

. In orderto terminate under section 2511(a)(8), the Court is not required to evaluate a parent's

currentwillingness or ability to remedy the conditions that initially caused placement or the availability or efficacy of potential services. Sea In fa K.Z.S., 

### 946 A.2d 753, 759 (Pa. Super. 2008). The SuperiorCourt provided adetailed analYSis ofthe termination ground listed at 23 Pa. C.SA §2511(a)(8) in the recent Case of In fa T.

### M. T., 

### 64A3d 1119 (Pa. Super. 2013).



## . . The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test, 

### I) can be determinative in atermination proceeding. Saa In ra Adoption ofS.P., 

### 47 A.3d 817 (Pa. 2012). Each termination of parental rights caSe involving an incarcerated parentmusl be 8 

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# 'j) Circulated 111241201402:08 PM



### evaluated on its own facts, bearing in mind thaUhe child's needs for consistent parental care and stability cannot be put aside or put on hold simply because the parent is doing what he is supposed to do in prison. See In re E.A.P" 

### 944A.2d 79 (Pa. Super. 2008). Incarceration does not relieve a parent ofthe duty to exercise reasonable firmness in maintaining asecure bond with the child. In the Interest of

### AP., 693 A2d 240 (Pa. Super. 1997). In termination of parental rights cases involving an incarcerated parent, aparent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the child's right to have properparenting and fulfillment of his orherpotential in a permanent, healthy, safe environment; moreover, the parentwishing to reestablish her parental responsibilities bears the burden of proof relative to post-abandonment contact. Seef!l.@. C.L.G., 

### 956A.2d 999 (Pa. Super. 2008), When aparent is incarcerated, the 

### focus in termination of parental rights action is on whetherthe parent utilized resources available while in prison to maintain a relationship with his child. In re 

### B.N.M., 856 A2d847 (Pa. Super. 2004).
In acase where the incarcerated parent wrote leiters, fOlWarded some chil,d support, and )) sent gifts to the child, the Court found that these actions did not Indicate aserious intentto recultivate a parent-child relationship and awillingness and capacity to undertake aparental role, and thus termination WaS appropriate. See**~** 

### In re O.J.S., 

### 737 A.2d 283 (Pa. Super. 1999). The Court alsofound that the natura! father in that case failed to utilize given resources and to take an affirmative approach to fulfill his parental duties and failed to follow through on inquires with prison offiCials and county social workers.**~** 

### Id. DiscussiOn:
As to Natural Fatherthe decision reached has not been done so lightly. Natural Father indicates awillingness and adesire to reunify with his children. In addition, his children express adesire to reunifywith him. He is appropriate with them during visits, and consistentlystrives to be a presence in their lives despite his incarceration. The caseworkertestified that he does 'everything he can'while incarcerated. Clearlywe have afatherWho is striving to be aparent,**,desp~e** 

### being noticeably absent from the lives ofhis children. However, Father has been incarcerated**fO~**

### overthree years. His maximum sentence 

# Ii dattil is June 2014. He was not granted parole despite his requests IiInd application for It. As noted above, the Court will not pula child's life on hold and await aparent who is fil, willing, and 9 

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# )) Circulated 11/24/201402:08 PM



### able. Fatherwould most likely n'o! be fit and willing to provide care and control upon his release. As this Court is very familiarwith the process by which released ex-convicts attempt to reintegrate and the hardships associated therewith, this Court is unwilling to force the children to wait any longer. Father is entirely appropriate with them, and It is likely that he loves them greatly, as they do him. However, this Court is encouraged by the prospect of adoption by the paternal grandfather and his step-daughterofthe children. This kinship penmanent placement

.will permit, albeit on Father's initiative only, continued contact between the children and their

natural father. The fact that the words 'termination' and "adoption' imply permanence 

### and suggest aseverance from a relationship with a natural parent has little effect in this case. This Court will not turn a blind eye to the praCtical considerations ofthe children's age and the fact that they acknowledge and love theirfather, There will be continued contact with the Natural Father and the children, and 

### it will likely occur without this Court's Intervention. Knowing, 

### as we do, thatthat will be an easier process as the Children are placed with kin makes this Court's decision that much more bearable. As to the Natural Mother, the'Court found aggravated circumstances as to her lack of )) involvement during the dependency case. It is severely disheartening to associate this situation with an absence ofover six (6) 

### months. This Courtcannot fathom the tack of

### adesire to contact the chitdren during that time. It, coupled with the troubling tranSiency, causes this Court to find that termination would certainly suit the best interests ofthe childref) as to Natural Molher. In addition, by virtue ofthe finding 

### of aggravated Circumstances, the natural mother has satisfied the statutory provisions which allowfor terminationwhen: there has been no contact between the parent and the child for a period of six (6) months; the conditions which led to placement continue to exist (lack of permanent living arrangements) and the fact that Mother has eXhibited little interest in parenting herchildren until the. eleventh hour.



### )) Conclusion This Court hereby concludes that termination ofthe. parental rights ofboth the Natural Father and the Natural Mother as to the minor children is required by the statutory provisions governing the same and would. undOUbtedly serve the children's best interests.
BY THE COURT:

Wm. Harvey Wiest, Judge 10 

## 36Circulated 12/09/2014 12:02 PM

) IN THE COURTOFCOMMON PLEAS OF NORTHUMBERLAND COUNTY, PA -., .z:-**c.r~: ~**  c::", IN RE: ADOPTION OF A.R. a minor child 2: 0 ::0 

## OJ> N ORPHAN'S COURT

## DM~ON\D :-<c-J > -0 ::x ADOPTEE

### # 46 of201

### ~g 

### 'R CI 1'0 W OPINION PURSUANTTO Pa.R.A.P. 1925(a) Factual and Procedural Background Thefamily in the above-captioned case became involved with Northumberland County Children and Youth services in April of2007, after allegations ofan unsupervised child wandering around in the city of Sunbury. The matterwas referred for a safety plan assessment, a plan was approved and the case was closed. General Protective Services (GPS) became involved with the family again in 2010 responding to allegations ofdomesticviolence, poor home conditions1

, and the possibility that the familywould be evicted from their apartment. After the natural mother made new arrangementsfor a residence and successfully scheduled doctors' appointments forthe children, the case was again closed

.

. More GPS referrals were received in late 2010 into early2011 regarding the family's lack of basic utilities, natural mother's drug use, domestic violence, and potential eviction. There were also allegations ofvarious unidentified individualswho frequented the home2• After investigation, the home was found to be without hot water and the natural mother admitted to having smoked marijuana. The family continued to remain involved with tile GPS division ofthe Northumberland County Children and Youth Services, during their involvementthrough February2011, the family struggled with domestiC violence, truancy, lack ()femployment, dangerofevictions, and related drug use. On February 18th 2011, the natural mother signed a Voluntary EntrustmentAgreement, placing her children (including the abov'e-captioned child) in

1SpeCifically, itwas alleged that oneminorchild hadseveral "flea bites."

2The Dependencypetition in the case suggested thatthereWere a "lot of 'Puerto Ricans' in an outofthe home at all hours ofthedayandnight." 1



## 37Circulated 12/09/2014 12:02 PM

the care and custody of Northumberland County Children and Youfh Services who, in turn, placed the children in the home ofthe paternal grandparents, William and Theolo Rivera. The child was adjudicated Dependent on March 

### 23'd 2011. The child was placed in foster care by the Agency. However, the placement was actually in the kinship home of

### IHT

### T~3. On June 

### 23m

### 2013, Northumberland County Children and Youth Services (the Agency) filed a Motionfor a Finding ofAggravated Circumstances alleging aggravated circumstances against the natural mother in that, while her identity orwhereabouts were known, she failed to maintain substantial and continuing contact with the child for a period ofsix months. On July 

### 17th 2013, the Courtfound by clear and convincing evidence that the aggravated circumstance alleged existed as againstthe natural mother. The Court further ordered that NO efforts at reunification between the child and the Natural Mother need be made. Consistent throughoutthe review period, that is the time during which the children were in care, the parents maintained little progress and efforts. Natural father was incarcerated (and continues to be) during the entire time period in which his children were in the Agency's custody. During his time of incarceration, the Natural father provided no documentation of any services, programs, oractivities he was engaged in or completed. He did communicate with the children through leiters. Natural mother, while ordered to participate in parenting classes, find gainful employment, and obtain housing, was minimally compliant. During the early part ofthe case, Natural Mother had visitation with the children, but from approximately mid-Summer of 

### 2012 until sometime in early spring of

### 2013, she had no contact with the Agency and, to the Court's knowledge, did not contact the children. On August 

### 14th 2013, the Agency filed a Petition to InvoluntarilyTerminate theParental Rights of Natural Mother and Natural Father. The children had spent thirty-six (36) months in the care and custody ofthe Agency, albeit in the home oftheir paternal grandmother and grandfather.

'The Order ofAdjudication and Disposition indicates that placementwas in Foster Care. The initial permanency review order indicated "Foster Care - Kinship,'I. 2


## 38Circulated 12/09/2014 12:02 PM

On January 

### 16th 

### 2014, the Natural Motherfiled a motion requesting the Court to direct the Agencyto make a referral fora homestudythrough the Interstate Compact. The homestudy would presumably have been performed on the maternal grandmother, who resided in New York. The Court denied the same. On February 

### 21 st

### 2014 at the Termination Proceeding, the Natural Mother moved, in open court and on the record, forthe relief requested in the motion. The Court denied the same, holding that the. matterwas better raised in proceedings before Dependency Court. During the period oftime in which the children were in care, the Natural Father, Nicolas Rivera, was incarcerated. During his incarceration, he wrote several letters which were received and reviewed by the caseworkers at theAgency, the caseworkers testified that they had written him back concerning the children. The Agency provided him with a copy ofthe Child's Permanency Plan, and neverreceived any indication that the Natural Father did not understand orquestioned the plan. Natural Father did sign the same on February 

### 16th 

### 2012. The caseworkertestified that as ofApril 

### 2011, Natural Fatherwas not engaged in any services. However, as ofApril 

### 2013, the Natural fatherwas "taking as many classes that w[ere1 offered at SCI-Dallas. Due to each facility being different, they do not - they do not have the same things in.each prison.' See Transcript ofProceedings, February21st 2014, pg 

### 14. While in prison, Natural Father had regular visitation with the children. The children were transported by their grandmother, the kinship-foster parent. Natural Fatherwas "veryappropriate' during visitation with the children. See Transcript ofProceedings on February21st 2014, pg 

### 26. He sent the children pictures and letters, and kept in regular contact with the children. In some lengthydiscussion, the caseworkerwas cross examined on the availability ofservices for the Natural Fatherwhile he was incarcerated. Specifically: "Q: All right. Without looking at any orders, you don't knowwhat you can say what he was court ordered to do, to participate in. Is that a fair statement? 

### A: That is fair. And due to being incarcerated, like I said earlier, not each facility has the same things. And it's tough for us to even knowwhat is in each one because it"changes from place to place or even month to month. So I think that was, inturn, why it was not spelled out as specific and said that when he would be released, he would need to let us know 3


## 39Circulated 12/09/2014 12:02 PM

specifically when he was out to become active with the full plan ofwhat he needed to do." See Transcript ofProceedings from February21s1 2014, pg 28-9. Natural Father's maximum sentence date was June 13th 2014. Accordingto the caseworker, the Natural Fatherwas up for parole several times in during the three years the children were in placement, he was denied each time. The caseworker testified that itwas her beliefthat he was denied by virtue ofhis behavior in prison. During the letter correspondence between the Natural Father and the caseworker, the Natural Father communicated his desire to be there for his children and his strongdesire that the children not be adopted. The caseworker testified that she received letters from the Natural Father approximately monthly. She also. testified that during 'her supervision ofthe visitation between the Natural Father and the children, Natural Fatherwas entirely appropriate with the children, and the children were excited to see theirfather. Natural Fatherwould mail some minor artwork, portraits, and other small gifts and keepsakes to the children whenever he could acquire the same. ) The Natural Mother suffered from issues pertaining to domestic disputes and consistent transiency. What appears to be most disturbing is that Natural Mother apparently disappeared for some time and was unreachable by the Agency. Mother maintained limited visitation with her children. Specifically, between August of2011 and Christmas of2012, Natural Mother had no visits with her children. Regarding Mother's transiency, she lived in several towns and cities in Pennsylvania, and then movedto NewYork and NewJersey all during the time period that the children were in care. Mother made a great case at the termination hearing on February 21 st 2014 regarding the fitness and availability ofmaternal grandmother as a resource home for the children. During the time of her request, Mother lived with the maternal grandmother in New York. Apparently, Mother had requested that the Agency permit the children to live with her in New York several times priorto Court on February21 st 2014. Throughout the three years in placement, the kinship-foster family has provided for the needs of the children. An example ofthe level of devotion to the continued permanence ofthe Children, is the fact that at the onset ofplacement, the youngest child was significantly behind in his immunization records, the grandmother successfully got him up to date. In hertestimony, the grandmothertestified as follows:

4 

## 40Circulated 12/09/2014 12:02 PM

A. Well, taking care of the four children, it requires 110 percent of me. So whether it's schOOl, doctor's appointments, dentist appointment. Three ofthe children
- well, four ofthem were in counseling. Three ofthem now remain in counseling, which is sometimes weekly, every other week. Numerous appointments, basketball game. We lost this one. But basketball games, events, activities. You know, to me, I can - that's a full-time job basically. See Transcript ofProceedings on February21st 2014, pg 57. At anotherjuncture in the case, the grandmother proffered testimony that wasvery indicative ofthe effects on ALL children ofremoval from the home. Q:

...what were they like when they first came to live with you three years ago? A: I - I think -I guess I would saythey were a little afraid. They always kind of stayed together. Like they kind of needed each other. Theywas very interwoven with one another. They always kind ofalways kept a bag kind of packed not knowing what was going to happen and stuff and, you know, just always concerned aboutwhat's for dessert, what we're going to eat, you know, and different things like that. So Ithink in the beginning, they might have been a little bit afraid, not sure. You know, but they felt happy to be with us because here and now we were getting things that were consistent and structure and attention, and
- you know, soSee Transcriptfrom Proceedings on February21st 2014, pg 58-9. Of note, at the termination proceeding, the permanency caseworker testified as follows regarding the oldest child:
"A.R. was not very open with me, at that time. She was very upset about being in the foster care system. It took a while. She grew and opened up, and nowshe's actually on a good working relationship with me to a point where she;1I discuss things. She is very comfortable in the home. She's actually told me she has come to a means of understanding thattheyjust need to find somewhere to be, 'and she's fine with everything that the agency has been trying to do for her." See Transcript ofProceedings from February21st 2014, pg. 22. 5


### 41Circulated 12/09/2014 12:02 PM

The Agency had discerned that the kinship-fosterfamily was willing to be permanent resources for two ofthe four children, the daughter ofthe grandmother', was willing to be a permanent resource for two ofthe children. The kinship-foster family and the daughter's family lived a reasonable distance from each other, which would facilitate continued contact and interaction between the children and their siblings: In discussion with the children regarding the suggested permanency options, the grandmother characterized their relative reactions: 

### A All different reactions. 

### [AR.]just wants to be finished with Children and Youth. Adopt me. Do whateveryou got to do. Ijust want to be finished. 

### [E.R] pretty much goes along with 

### [AR]. She has been the motherfor them when there wasn't really wasn't a motherfigure there. So 

### [AR] kind offeels like the three boys are her children. And I try to tell her, I'm the mother. One queen in the castle. It would be me. So she
- they listen to her because that's who they're accustomed to. So 

### [E.R] will do what 

### [AR] kind of say. They've been trained that way. Whereas, the two younger ones - 

### [AM.] is pretty independent. He's excited. He wants to go with [grandmother's daughter]. He wants to be with her. [I.R.] isjust totally different. He's a little bit
- he's not sure. They said we're going to mommy, they say we're going here, and hejust kind ofgoes along with the crowd because of his age, Iwould say. The grandmothertestified that she believed that the children were "bonded" to the natural father, however, she testified that she believed that the children would not suffer irreparable harm from a severing ofthat bond. The Court entered final orders oftermination following the hearing, both parents appeal. Rule of Law

•The grandmotheris actually**t~e.step-grandmother** for the children, as she is married to the paternal grandfather. The step-grandmothers daughfeiY..

. 

## g
..' is the other permanent resource. She is not biological family, however, she has visited with the kinship-foster family at every holiday andthe children are very familiar with the daughter's family. As such, itis this Court's opinion that the daughter's family is within the definition ofa "kinship" placement. 6


### 42Circulated 12/09/2014 12:02 PM

The grounds for involuntarytermination of parental rights are set forth in section 2511 of title 23 of the Pennsylvania Consolidated Statutes. Specifically sections (a)(1); (a)(2); (a)(5); and (a)(8) appear substantially as follOWS:
23 Pa.C.SA §2511 (a) (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing ofthe 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 ofthe 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 ofthe incapacity, abuse, neglect or refusal cannot orwill not be remedied by the parent.

(5) The child has been removed from the care ofthe parent bythe 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 ofthe child continue to exist, the parent cannot orwill riot remedy those conditions within a reasonable period oftime, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement ofthe child within a reasonable period oftime and termination ofthe parental rights would best serve the needs and welfare ofthe child.

(8) The child has been removed from the care ofthe parent by the court or under a voluntary agreementwith an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement ofthe child continue to exist and termination ofparental rights would best serve the needs and welfare of the child. See 23 Pa C.SA §2511. Subsection (b) ofthe statute provides that: the court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare ofthe child. The rights of a parent shall not be terminated solely on the basis of 7 

## 43Circulated 12/09/2014 12:02 PM



### ) environmental factors such as inadequate housing, furnishings, income, clothing and medical care iffound to be beyond the control ofthe parent. With respect to any petition filed pursuant to subsection (a)(l), (6) or (8), the court shall not consider any efforts by the parentto remedy the conditions described therein which are first initiated subsequent to the giving of notice ofthe filing ofthe petition. The term 'needs and welfare" is a legal concept that 'denotes certain minimum requirements that all children are entitled to-adequate housing, clothing, food and love." In Re Coast, 561 A.2d 762, 770 (Pa Super. 1989); In re Adoption ofMichaelJ.C., 473 A.2d 1021, 1029 (Pa. Super. 1984). "Thus, needs and welfare has both atangible dimension, food, clothing and shelter, and an intangible dimension, parental love.' In re 

### P.A.B., 570A.2d 522, 525 (Pa. Super 1990); In re J. W., 578 A.2d 952, 957 (Pa. Super. 1990). "It is universally agreed thatthe bond of*539 parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima-facie in the best interest ofthe child and the state has no justification to terminate that bond." In re J.

### W, 578 A.2d at 958. 'If, as here, ties with natural parents are present and are an active force in the child's life, then needs and welfare becomes a conceptthat argues againsttermination, ratherthan fosters it." In re 

### P.A.B., 570 A.2d at 525. Moreover, pursuant to section 2511 (a)(5), a court 'mustexamine the status ofthe natural parental bond to considerwhether terminating the natural parents' rights would destroy something in existence that is necessary and beneficial." Id. Subsection (a)(8) sets a 12-month time frame for a parent to remedy the conditions which led to placement. Once the twelve month period has been established, the court must next determine whether the conditions which led to the child's placement continue to exist, despite the reasonable and good faith efforts ofthe Agency, supplied overa realistic timeframe. In orderto terminate under section 2511 (a)(8), the Court is not required to evaluate a parent's currentwillingness or ability to remedy the conditions that initially caused placement orthe availability or efficacy of potential services. See In re 

## K.z. S., 946 A.2d 753, 759 (Pa. Super. 2008). The Superior Court provided a detailed analysis ofthe termination ground listed at 23 Pa. C.SA §2511(a)(8) in the recent case of In re T. 

### M. T., 64 A.3d 1119 (Pa. Super. 2013). The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test, can be determinative in a termination proceeding. See In reAdoption ofSP., 47 A.3d 817 (Pa. 2012). Each termination of parental rights case involving an incarcerated parent must be 8 

## 44Circulated 12/09/2014 12:02 PM

evaluated on its own facts, bearing in mind that the child's needs for consistent parental care and stability cannot be put aside orput on hold simply because the parent is doing what he is supposed to doin prison. 

### See In re EA.P., 944 A.2d 79 (Pa. Super. 2008). Incarceration does not relieve a parent ofthe duty to exercise reasonable firmness in maintaining a secure bond with the child. 

### In the Interestof 

### A.P., 693 A.2d 240 (Pa. Super. 1997). In termination of parental rights cases involving an incarcerated parent, a parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the child's right to have proper parenting and fulfillment ofhis or her potential in a permanent, healthy, safe environment; moreover, the parent wishing to reestablish her parental responsibilities bears the burden ofproofrelative to post-abandonment contact. 

### See In re 

### C.L.G., 956 A.2d 999 (Pa. Super. 2008). When a parent is incarcerated, the focus in termination ofparental rights action is on whetherthe parent utilized resources available while in prison to maintain a relationship with his child. 

### In re 

### B.N.M., 856 A.2d 847 (Pa. Super. 2004).

In a case where the incarcerated parent wrote letters, forwarded somechild support, and sent gifts to the child, the Courtfound that these actions did not indicate a serious intent to reCUltivate a parent-child relationship and a willingness and capacity to undertake a parental role, and thus termination was appropriate. 

### See M"ln ie O.J.S., 737A.2d 283 CPa. Super. 1999). The Court also found that the naturalfather in that case failed to utilize given resources and to take an affirmative approach to fulfill his parental duties and failed to followthrough on inquires with prison officials and county social workers. 

### See Id.
Discussion:
As to Natural Fatherthe decision reached has not been done so lightly. Natural Father indicates awillingness and a desire to reunify with his children. In addition, his children express a desire to reunify with him. He is appropriate with them during visits, and consistently strives to be a presence in theirlives despite his incarceration. The caseworker testified that he does "everything he can" while incarcerated. Clearly we have afatherwho is striving to be a parent, despite being noticeably absent from the lives ofhis children. However, Father has been incarceratedfor over three years. His maximum sentence date is June 2014. He was not granted paroledespite his requests and application for it. As noted above, the Courtwill not put a child's life on hold and await a parent who is fit, willing, and 9 

### 45Circulated 12/09/2014 12:02 PM



### - able. Father would most likely not be fit and willing to provide care and control upon his release. As this Court is very familiar with the process by which released ex-convicts attempt to reintegrate and the hardships associated therewith, this Court is unwilling to force the children to wait any longer. Father is entirely appropriate with them, and it is likely that he loves them greatly, as they do him. However, this Court is encouraged by the prospect of adoption by the paternal grandfather and his step-daughter ofthe children. This kinship permanent placernent will permit, albeit on Father's initiative only, continued contactbetween the children and their natural father. The fact that the words "termination" and "adoption" imply permanence and suggest a severance from a relationship with a natural parent has little effect in this case. This Court will not turn a blind eye to the practical considerations ofthe children's age and the fact that they acknowledge and love their father. There will be continued contact with the Natural Father and the children, and it will likely occur without this Court's intervention. Knowing, as we do, that that will be an easier process as the children are placed with kin makes this Court's decision that much more bearable. As to the Natural Mother, the Court found aggravated circumstances as to her lack of involvement during the dependency case. It is severely disheartening to associate this situation with an absence of oversix (6) months. This Court cannot fathom the lack of adesire to contact the children during that time: It, coupled with the troubling transiency, causes this Court to find that termination would certainly suit the best interests ofthe children as to Natural Mother. In addition, by virtue ofthe finding of aggravated circumstances, the natural mother has satisfied the statutory provisions Which aI/ow for termination when: there has been no contact between the parent and the child for a period of six (6) months; the conditions which led to placement continue to exist (Jack of permanent living arrangements) and the fact that Mother has exhibited little interest in parenting her children until the eleventh hour.
Conclusion This Court hereby concludes that termination ofthe. parental rights ofboth the Natural Father and the Natural Mother as to the minor children is required by the statutory prOVisions governing the same and would, undoubtedly serve the children's best interests.
BY THE COURT:

## \_,'Gl~ Wm. Harvey Wiest, Judge 10 

## 46Circulated 12/09/2014 12:02 PM

IN RE: ADOPTION OF IN THE COURTOFCOMMON PLEAS OF NORTHUMBERLAND COUNTY, PA**:%.~** 

### CO:::o crn :;On 

### -;< C) -0:::0 ;po 

### rn 

### I.R. a minor child ORPHAN'S COURT DIVISIOO ADOPTEE 

### # 47 of 2013
OPINION PURSUANTTO Pa.RAP. 1925(a) Factual and Procedural Background 1'0 W

Thefamily in the above-captioned case became involved with Northumberland County Children and Youth services in April of 2007, after allegations of an unsupervised child wandering around in the city of Sunbury. The matterwas referred for a safety plan assessment, a plan was approved and the case was closed. General Protective Services (GPS) became involved with the family again in 2010 responding to allegations ofdomesticviolence, poor home conditionsI, and the possibilitythat the family would be evicted from their apartment. Afterthe natural mothermade new arrangements for a residence and successfully scheduled doctors' appointments forthe ) children, the case was again closed. More GPS referrals were received in late 2010 into early 2011 regarding the family's lack of basic utilities, natural mother's drug use,domesticviolence, and potential eviction. There were also allegations ofvarious unidentified individuals who frequented the home2• After investigation, the home was found to be without hotwater and the natural mother admitted to having smoked marijuana. The family continued to remain involved with the GPS division ofthe Northumberland County Children and Youth Services, during their involvement through February 2011, the family struggled with domesticviolence, truancy, lack of employment, danger ofevictions, and related drug use. On February 18th 2011; the natural mother signed a Voluntary EntrustmentAgreement, placing herchildren (including the above-captioned child) in

1 Specifically, itwas alleged thatone minor child had several "flea bites."

2The Dependency petition in the case suggested that therewere a "lot of'Puerto Ricans' in an out ofthe home at all hours ofthe dayand night." 1Circulated 12/09/2014 12:02 PM

the care and custody of Northumberland County Children and Youth Services who, in turn, placed the children in the home ofthe paternal grandparents,

### ~and T_ R'" The child was adjudicated Dependent on March 23,d 2011. The child was placed in foster care by the Agency. However, the placement was actually in the kinship home of 'IIT II
..

___ 3 

# iJv l

# 1'P-.
On June 23rd 2013, Northumberland County Children and Youth Services (the Agency) filed a Motionfora Finding ofAggravated Circumstances alleging aggravated circumstances against the natural mother in that, while her identity orwhereabouts were known, she failed to maintain substantial and continuing contactwith the child for a period of six months. On July 17th 2013, the Court found by clear and conVincing evidence that the aggravated circumstance alleged existed as against the natural mother. The Court furtherordered that NO efforts at reunification between the child and the Natural Mother need be made. Consistent throughoutthe review period, that is the time**du~ing** which the children were in care, the parents maintained little progress and efforts. Natural father was incarcerated (and continues to be) during the entiretime period in which his children were in theAgency's custody. During his time ofincarceration, the Natural father provided no documentation ofany services, programs, oractivities he was ehgaged in orcompleted. He did communicate with the children through letters. Natural mother, while ordered to participate in parenting classes, find gainful employment, and obtain housing, was minimally compliant. During the early part ofthe case, Natural Mother had visitation with the children, but from approximately mid-Summerof 2012 until sometime in early spring of2013, she had no contact with theAgency and, to the Court's knowledge, did not contact the children. On August 14th 2013, theAgency filed a Petition to Involuntarily Terminate the Parental Rights of Natural Motherand Natural Father. The children had speni thirty-six (36) months in the care and custody oftheAgency, albeit in the home oftheir paternal grandmother and grandfather,

3The Order ofAdjudication and Disposition indicates that placement

### was in Foster Care, The Initial permanency review order indicated flFoster Care
- Kinship.'1 2 

### 48Circulated 12/09/2014 12:02 PM

On January 

### 16th 

### 2014, the Natural Motherfiled a motion

### req~esting the Court to direct the Agency to make a referral for a homestudy through the Interstate Compact. The homestudy would presumably have been performed on the maternal grandmother, who resided in New York. The Court denied the same.

, OI1>February 

### 21't 2014 at the Termination Proceeding, the Natural Mother moved, in open court and on the record, for the relief requested in the motion. The Court denied the same, holding that the matterwas better raised in proceedings before Dependency Court. During the period oftime in which the children were in care, the Natural 

### Father"'SIIi·•• ",,

# AJ**~ ~was**  incarcerated. During his incarceration, he wrote several letters which were received and reviewed by the caseworkers attheAgency, the caseworkers testified that they had written him back concerning the children. The Agency provided him with a copy ofthe Child's Permanency Plan, and never received any indication that the Natural Father did not understand orquestioned the plan. Natural Father did sign the same on February 

### 16th 2012. The caseworker testified thaI as ofApril 

### 2011, Natural Fatherwas not engaged in any services. However, as ofApril 

### 20'13, the Natural fatherwas "taking as many classes that w[ere] offe"red at SCI-Dallas. Due to eachfacilily being different, they do not - they do not have the same things ineach prison: See Transcript ofProceedings. February21 st2014, pg 

### 14. While in prison, Natural Father had regular visitation with the children. The children were transported by theirgrandmother, the kinShip-foster parent. Natural Fatherwas "very appropriate' during visitation with the children. See Transcript ofProceedings on February21st 2014, pg 

### 26. He sent the children pictures and letters, and kept in regular contact with the children. In some lengthy discussion, the caseworkerwas cross examined on the availability ofservices for the Natural Fatherwhile he was incarcerated. Specifically: "Q: All right. Without looking at any orders, you don't know what you can say what he was court ordered to do, to participate in. Is that afair statement? A: That is fair. And due to being incarcerated, like I said earlier, not each facility has the same things. And it's tough for us to even know what is in each one because it changes from place to place or even month to month. So I think that was, in turn, why it was not spelled out as specific and said thatwhen he would be released, he wO'uld need to Ie! us know 3 

## 49Circulated 12/09/2014 12:02 PM

specifically when he was out to become active with the full plan ofwhat he neededto do." See Transcript ofProceedings from February

### 21'12014, pg 

### 28-9. Natural Father's maximum sentence date was June 

### 1310 

### 2014. According to the caseworker, the Natural Fatherwas up for parole several times in during the three years the children were in placement, he was denied each time. The caseworkertestifjed that it was her beliefthat he was denied by virtue of his behavior in prison. During the letter correspondence between the Natural Fatherand the caseworker, the Natural Father communicated his desire to be there for his children and his strong desire thatthe children not be adopted. The caseworker testified that she received letters from the Natural Father approximately monthly. She also testified that during hersupervision ofthe visitation between the Natural Father and the children, Natural Fatherwas entirely appropriate with the children, and the children were excited to see theirfather. Natural Father would mail some minor artwork, portraits, and other small gifts and keepsakes to the children whenever he could acquire the same. The Natural Moihersuffered from issues pertaining to domestic disputes and consistent**transiency~** What appears to be most disturbing is that Natural Mother apparently disappeared for some time and was unreachable by the Agency. Mother maintained limited visitation with her children. Specifically. between August of

### 2011 and Christmas of

### 2012, Natural Mother had no visits with her children. Regarding Mother's tranSiency, she lived in several towns and cities in Pennsylvania, and then moved to NewYork and New Jersey all during the time period that the children were in care. Mother made a great case atthe termination hearing on February 

### 21" 2014 regarding the fitness and availability ofmaternal grandmother as a resource home for the children. During the time of her request, Mother lived with the maternal grandmother in New York. Apparently, Mother had requested that the Agency permit the children to live with her in NewYork several times priorto Court on February

### 21" 2014. Throughout the three years in placement, the kinShip-foster family has provided for the needs ofthe children. An example ofthe level ofdevotion to the continued permanence ofthe children, is the fact that at the onset ofplacement, the.youngest child was significantly behind in his immunization records, the grandmothersuccessfully got him up to date. In hertestimony, the grandmother testified as follows:

4 

## 50Circulated 12/09/2014 12:02 PM

A. Well, taking care ofthe four children, it requires 110 percent of me. So whether ii's school, doctor's appointments, dentist appointment. Three ofthe children
- well, four ofthem were in counseling. Three ofthem now remain in counseling, which is sometimes weekly, every other week. Numerous appointments, basketball game. We lost this one. But basketball games, events, activities. You know, to me, I can - that's a full-timejob basically. See Transcript ofProceedings on February21st2014, pg 

### 57. At anotherjuncture in the case, the grandmotherproffered testimony that was very indicative ofthe effects on

### ALL children of removal from the home. Q:

...what were they like when they first came to live with you three years ago? A: I - I think- I guess I would say they were a little afraid. They always kind of stayed together. Like they kind of needed each other. Theywas very interwov.en with one another. They always kind ofalways kept a bag kind

.. ofpacked not knowing what was going to happen and stuff and, you know, just always concerned about what's for.dessert, what we're going to eat, you know, and different things like that. So I think in the beginning, they might have been a little bit afraid, not sure. You know, buttheyfelt happy to be with us because here and now we were getting things that were consistent and structure and attention, and
- you know, soSee Transcriptfrom Proceedings on February

### 21 st 2014, pg 58-9. Of note, at the termination proceeding, the permanency caseworker testified as follows regarding the oldest child:
"A.R. was not very open with me, at that time. She was very upset about being in the foster care system. It took awhile. She grew and opened up, and now she's actually on a good working relationship with meto a point where she'll discuss things. She is very comfortable in the home. She's actually told me she has come to a means of understanding that theyjust need to find somewhereto be, and she's fine with everything that the agency has been trying to do for her." See Transcript ofProceedings from February

### 21 st 2014, pg. 22. 5 

### 51Circulated 12/09/2014 12:02 PM

The Agency had discerned that the kinship-foster family was willing to be permanent resources for two ofthe four children, the daughter ofthe grandmother 4

, was willing to be a permanent resource for two ofthe children. The kinship-foster family and the daughter's family lived a reasonable distance from each other, which would facilitate continued contact and interaction between the children and their siblings. In discussion with the children regarding the suggested permanency options, the grandmother characterized their relative reactions: 

### A All different reactions. 

### [AR]just wants to be finished with Children and Youth. Adopt me. Do whateveryou got to do. Ijust want to be finished. 

### [E.R] pretty much goes along with 

### [AR.]. She has been the mother for them when there wasn't really wasn't a mother figure there. So 

### [AR.] kind offeels like the three boys are her children. And I try to tell her, I'm the mother. One queen in the castle. Itwould be 

### me. So she
- they listen to her because that's who they're accustomed to. So 

### [E.R.] will do what 

### [AR.] kind of say. They've been trained that way. Whereas, the two younger ones - 

### [AM.] is pretty independent. He's excited. He wants to go with [grandmother's daughter]. He wants to be with her. [I.R] is just totally different. He's a little bit
- he's not sure. They said we're going to mommy, they say we're going here, and hejust kind ofgoes along with the crowd because of his age, Iwould say. The grandmother testified that she believed that the children were "bonded" to the natural father, however, she testified that she believed that the children would not suffer irreparable harm from a severing ofthat bond. The Court entered final orders oftermination following the hearing, both parents appeal. Rule of Law

# ~~::t~:_:~:~t~::~se;:t~:'~~~~/ftep-g;nd_mot;~:**::et:;h~~i:::~~:~~~~:o:~~:.e~~: :;~:ta~~;~~i::~~~:;er.**  • & however, she has visited with thekinShip-foster family at every holiday and thechildren are very familiarwith the daughter's family. As such, itis this Court's opinion thatthe daughter's family is within the definition ofa "kinship" placement.
6 

### 52Circulated 12/09/2014 12:02 PM

The grounds for involuntarytermination of parental rights are set forth in section 2511 of title 23 ofthe Pennsylvania Consolidated Statutes. Specifically sections (a)(1); (a)(2); (a)(5); and (a){S) appear substantially as follows:
23 Pa.C.SA §2511 (a) (1) The parent by conduct continuing for a period ofat least six months immediately preceding the filing ofthe petition either has evidenced a settled purpose of relinquishing parental claim to a child orhas refused or failed to perform parental duties. (2) The repeated and continued incapacity, abuse, neglect or refusal ofthe parent has caused the child to be without essential parental care, control orsubsistence necessary for his physical or mental well-being and the conditions and causes ofthe incapacity, abuse, neglect or refusal cannot orwill not be remedied by the parent.

(5) The child has been removed from the care ofthe parent by the court orunder a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement ofthe child continue to exist, the parent cannot orwill not remedy those conditions within a reasonable period oftime; 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 oftime and tennination ofthe parental rights would best serve the needs and welfare ofthe child.

(8) The child has been removed from the care ofthe parent by the court or under a voluntary agreementwith an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement ofthe child continue to exist and termination of parental rights would best serve the needs and welfare ofthe child. See 23 Pa C.SA §2511. Subsection (b) ofthe statute provides that: the court.in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare ofthe child. The rights ofa parent shall not be terminated solely on the basis of 7 

### 53Circulated 12/09/2014 12:02 PM



### ) environmental factors such as inadequate housing, furnishings, income, clothing and medical. care 

### iffound to be beyond the control ofthe parent. With respect to any petitiOn filed pursuant to subsection(a)(l), (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 ofnotice ofthe filing ofthe petition. The term "needs and welfare" is a legal concept that "denotes certain minimum requirements that all children are entitled to-adequate housing, clothing, food and love: In Re Coast, 561 A.2d 762,770 (Pa Super. 1989); In re Adoption ofMichaelJ.e., 473 A.2d 1021, 1029 (Pa. Super. 1984). "Thus, needs and welfare has both a tangible dimension, food, clothing and shelter, and an intangible dimension, parental love: In re P.A.B., 570A.2d 522, 525 (Pa. Super 1990); In ro

### J, W, 578 A.2d 952, 957 (Pa. Super. 1990). "It is universally agreed that the bond of '539 parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation ofthe parent-child bond is prima-facie in the best interest ofthe child and the state has no justification to terminate that bond: In re 

### J. W, 578 A,2d at 958. "If, as here, ties with natural parents are present and are an active force in the child's life, then needs andwelfare becomes a concept that argues against termination, rather than fosters it." In re 

### PAB., 570 A.2d at 525. Moreover, pursuani to section 2511(a)(5), a court "must examihe the status ofthe natural parental bond to considerwhether terminating the natural parents' rights would destroysomething in existence that is necessary and beneficial." Id. Subsection (a)(8) sets a 12-month lime frame for a parent to remedy the conditions which led to placement Once the twelve month period has been established, the court must next determine whether the conditions which led to the child's placement continue to exist, despite the reasonable and goodfaith efforts ofthe Agency, supplied over a realistic timeframe. In orderto terminate undersection 2511 (a)(8), the Court is not required to evaluate a parent's current Willingness or ability to remedy the conditions that initially caused placement orthe availability or efficacy ofpotential services. See In re K-Z.S., 946 A.2d 753, 759 (Pa. Super. 2008). The Superior Court provided a detailed analysis ofthe termination ground listed at 23 Pa. C.SA §2S11(a)(8) in the recent case of Inre T.M.T., 64A.3d 1119 (Pa. Super. 2013). The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test, can be determinative in a termination proceeding. See In re Adoption ofS.P., 47 A.3d 817 (Pa. 2012), Each termination of parental rights case involving an incarcerated parent must be 8 

### 54Circulated 12/09/2014 12:02 PM

evaluated on its own facts, bearing in mind that the child's needs for consistent oarental care and stability cannot be put aside or puf on hold simply because the parent is doing what he is supposed to do in prison. See in fa EAP., 944 A.2d 79 (Pa. Super. 2008). Incarceration does not relieve a parent ofthe dutyto exercise reasonable firmness in maintaining asecure bond with the child. In the interest of A.P., 693 A,2d 240 (Pa. Super. 1997). In termination of parental rights cases involving an incarcerated parent, a parent's basic constitutional right to the custody and rearing ofhis child is converted, upon the failure to fulfill parental duties, to the child's right to have proper parenting and fulfillment ofhis or her potential in a permanent, healthy, safe environment; moreover, the parent wishing to reestablish her parental responsibilities bears the burden ofproof relative to post-abandonment contact. See

### l!J...@. 

### CLG., 956A.2d 999 (pa. Super. 2008). When a parent is incarcerated, the focus in termination ofparental rights action is on whetherthe parent utilized resources available while in prison to maintain a relationship with his child. In re B.N.M., 856 A.2d 

### 847 (Pa. Super. 2004).

In a case where the incarcerated parentwrote letters, forwarded some child support, and sent giftsto the child, the Court found that these actions did not indicate a serious intent to recultivate a parent-child relationship and a willingness and capacity to undertake a parental role; and thus termination was appropriate. See!Mk. In re D.J. S., 737 A,2d 283 (Pa. Super. 1999). The Court also found that the natural father in that casefailed to utilize given resources and to take an affirmative approach to fulfill his parental duties and failed to followthrough on inquires with prison officials and county social workers. See Id.
Discussion:
As to Natural Fatherthe decision reached has not been done so lightly. Natural Father indicates a willingness and a desire to reunify. with his children. In addition, his children express a desire to reunify with him. He is appropriate with them during visits, and consistently strives to be a presence in their lives despite his incarceration. The caseworker testified that he does "everything he can" while incarcerated. Clearly we have a fatherwho is striving to be a parent, despite being noticeably absent from the lives ofhis children. However, Father has been incarcerated for overthree years. His maximum sentence date is June 2014. He was not granted parole despite his requests and application for it. As noted above, the Courtwill not put a child's life on hold and await a parent who is fit, willing, and 9 

## 55Circulated 12/09/2014 12:02 PM

able. Father would most likely not be 

### fit and willing to provide care and control upon his release. As this Court is very familiarwith the process by which released ex-convicts attemptto reintegrate and the hardships associated therewith, this Court is unwilling to force the children to wail any longer. Father is entirely appropriate with them, and it is likely that he loves them greatly, as they do him. However, this Court is encouraged by the prospect ofadoption by the patemal grandfatherand his step-daughter ofthe children. This kinship permanent placement wm permit, albeit on Father's initiative only, continued contact between the children and their natural father. The fact that the words "termination" and "adoption" imply permanence and suggest a severance from a relationship with a natural parent has little effect in this case. This CourtwifJ not tum a blind eye to the practical considerations ofthe children's age and the fact that they acknowledge and love theirfather. There will be continued contact with the Natural Fatherand the children, and itwifJ likely occurwithoutthis Court's intervention. Knowing, aswe do, that that will be an easier process as the children are placed with kin makes this Court's decision that much more bearable. As to the Natural Mother, the Courtfound aggravated circumstances as to her lack of involvement during the dependency case. It is severely disheartening to associate this situation with an absimce ofover six (6) months. This Court cannot fathom the lack ofa desire to contact the children during that time. 

### It, coupled with the troubling tranSiency, causes this Courtto find that termination would certainly suit the best interests ofthe children as to Natural Mother. In

. addition, byvirtue ofthe finding ofaggravated circumstances, the natural motherhas satisfied the statutory provisions which aJlow fortermination when: there has been no contact between the parent and the child for a period of six (6) months; the conditions which led to placement continue to exist (lack ofpermanent living arrangements) and the fact that Mother has exhibited little interest in parenting herchildren until the eleventh hour.
Conclusion This Court hereby concludes that termination ofthe parental rights ofboth the Natural Fatherand the Natural Motheras to the minOr children is required by the statutory provisions goveming the same and would, undoubtedlyserve the children's best interests.
BY THE COURT:

Wm. Harvey Wiest, Judge 10 

## 56Circulated 12/09/2014 12:02 PM


## ) -n ..cIN THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY, PA 

## Ul'- 

## <:; c:: 1"1 :>:J 

# z!2 N OJ:;o \D IN RE: ADOPTION OF A. M. a minor child C::fT( :;:0 ORPHAN'S COURT

### DI~§1oN;:

. -o:;C ADOPTEE 

### # 48 of

### 201:r

# 8**~** N OPINION PURSUANTTO Pa.R.A.P. 1925(a) Factual and Procedural Background The family in the above-captioned case became involved with Northumberland County Children and Youth services in April of2007, after allegations ofan unsupervised child wandering around in the city of Sunbury. The matter was referred for a safety plan assessment, a plan was approved and the case was closed. General Protective Services (GPS) became involved with the family again in 2010 responding to allegations ofdomestic violence, poorhome conditions" and the possibility that the family would be evicted from their apartment. Afterthe natural mother made new arrangements for a residence and successfully scheduled doctors' appointments forthe children, the case was again closed. More GPS referrals were received in late 2010 into early 2011 regarding the family's lack of basic utilities, natural mother's drug use, domestic violence, and potential eviction. There were also allegations ofvarious unidentified individuals who frequented the home2

. After investigation, the home was found to be without hot water and the natural mother admitted to having smoked marijuana. The family continued to remain involved with the GPS division ofthe Northumberland County Children and Youth Services, during their involvementthrough February 2011, the family struggled with domestic violence, truancy, lack of employment, danger ofevictions, and related drug use. On February 18th 2011, the natural mother signed a Voluntary EntrustmentAgreement, placing her children (including the above-captioned child) in

I Specifically, itwas alleged that one minor child had several "flea bites."

2The Dependency petition in the case suggested thattherewere a "lot of'Puerto Ricans' in an out ofthe home at all hours oftheday and night." 1



### 57Circulated 12/09/2014 12:02 PM

the care and custody of Northumberland County Children and Youth Services who, in turn, placed the children in the home ofthe paternal grandparents,

## ~and

# T.RM
The child was adjudicated Dependent on March 23rd 2011. The child was placed in foster care by the Agency. However, the placement was actually in the kinship home of

## I\4S ••

___ 3 

# {)I1/!.,

On June 23rd 2013, Northumberland County Children and Youth Services (the Agency) filed a Motion for a Finding ofAggravated Circumstances alleging aggravated circumstances againstthe natural mother in that, while her identity orwhereabouts were known, she failed to maintain substantial and continuing contact with the child for a period of six months. On July 17th 2013, the Courtfound by clear and convincing evidence that the aggravated circumstance alleged existed as against the natural mother. The Court further ordered that NO efforts at reunification between the child and the Natural Mother need be made. Consistent throughout the review period, that is the time during which the children were in care, the parents maintained little progress and efforts. Natural father was incarcerated (and continues to be) during the entiretime period in which his children were in the Agency's custody. During his time of incarceration, the Natural father provided no documentation of any services, programs, or activities he was engaged in or completed. He did communicate with the children through letters. Natural mother, while ordered to participate in parenting classes, find gainful employment, and obtain housing, was minimally compliant. During the early part ofthe case, Natural Mother had visitation with the children, but from approximately mid-Summerof 2012 until sometime in early spring of2013, she had no contact with the Agency and, to the Court's knowledge, did not contact the children. On August 14th 2013, the Agency filed a Petition to Involuntarily Terminatethe Parental Rights of Natural Motherand Natural Father. The children had spent thirty-six (36) months in the care and custody ofthe Agency, albeit in the home oftheir paternal grandmother and grandfather.

'TheOrderofAdjudication and DispOSition indicates that placementwas in Foster Care. The initial permanency review order indicated "FosterCare
- Kinship." 2 

## 58Circulated 12/09/2014 12:02 PM

On January 16th 2014, the Natural Motherfiled a motion requesting the Court to direct the Agency to make a referral for a homestudythrough the Interstate Compact. The homestudy would presumably have been performed on the maternal grandmother, who resided in New York. The Court denied the same. On February 21 st 2014 at the Termination Proceeding, the Natural Mother moved, in open court and on the record, for the relief requested in the motion. The Court denied the same, holding that the matter was better raised in proceedings before Dependency Court. During the period oftime in which the children were in care, the Natural Father, Nicolas Rivera, was incarcerated. During his incarceration, hewrote several letters which were received and reviewed by the caseworkers attheAgency, the caseworkers testified that they had written him back concerning the children. TheAgency provided him with a copy ofthe Child's Permanency Plan, and never received any indication that the Natural Father did not understand orquestioned the plan. Natural Fatherdid sign the same on February 16th 2012. The caseworker testified that as ofApril 2011, Natural Fatherwas not engaged in any services. However, as ofApril 2013, the Natural fatherwas "taking as many classes that w[ere] offered at SCI-Dallas. Due to each facility being different, they do not- they do not have the same things in each prison: See Transcript ofProceedings, February 21st 2014, pg 14. While in prison, Natural Father had regularvisitation with the children. The children were transported by their grandmother, the kinship-foster parent. Natural Fatherwas "very appropriate" during visitation with the children. See Transcript ofProceedings on February21st 2014, pg 26. He sent the children pictures and letters, and kept in regular contact with the children. In some lengthy discussion, the caseworkerwas cross examined on the availability ofservices forthe Natural Fatherwhile he was incarcerated. Specifically: "Q: All right. Without looking at any orders, you don't knowwhat you can say what he was court ordered to do, to participate in. Is that a fair statement?
A: That is fair. And due to being incarcerated, like I said earlier, not each facility has the same things. And it's tough for us to even knowwhat is in each one because it changes from place to place or even month to month. So Ithink that was, in turn, why it was not spelled out as specific and said that when he would be released, he would needto let us know 3 

### 59Circulated 12/09/2014 12:02 PM

specificaJly when he was out to become active with the full plan ofwhat he needed to do: See Transcript ofProceedings from February

### 2'1& 2014, pg 28-9. Natural Father's maximum sentence "date was June 13th 2014. According to the caseworker, the Natural Fatherwas up for parole several times in during the three years the children were in placement, he was denied each time. The caseworkertestified that it was her beliefthat he was denied by virtue ofhis behavior in prison. During the letter correspondence between the Natural Father and the caseworker, the Natural Father communicated his desire to be there for his children and hisstrong desire that the children not be adopted. The caseworker testified that she received letters from the Natural Father approximately monthly. She also testified that during'her supervision ofthe viSitation between the Natural Father and the children, Natural Father was entirely appropriate with the children, andthe children were excited to see theirfather. Natural Fatherwould mail some minor artwork, portraits, and other smaJi gifts and keepsakes to the children whenever he could acquire the same. The Natural Mother sufferedfrom issues pertaining to domestiC disputes and consistent transiency. What appears to be most disturbing is that Natural Motherapparently disappeared for sometime and was unreaChable by the Agency. Mother maintained limited visitation with her children. Specifically, between August of2011 and Christmas of2012, Natural Mother had no visitswith her children. Regarding Mother's transiency, she lived in several towns and cities in Pennsylvania, and then moved to NewYork and New Jersey all during the time period that the Children were In care. Mothermade a great case at thetermination hearing on February 21 st 2014 regarding the fitness and availability ofmaternal grandmotheras a resource home for the Children. During thetime ofher request, Mother lived with the matemal grandmother in New York. Apparently, Mother had requested that the Agency permitthe children to live with her in NewYork several times priorto Court on February 21 st 2014. Throughout the three years in placement, the kinShip-fosterfamily has provided for the needs ofthe children. An example oflhe level ofdevotion to the continued permanence ofthe children, is the fact that at the onset ofplacement, the youngest child was significantly behind in his immunization records, the grandmothersuccessfully got him up to date. In hertestimony, the grandmothertestified as follows:

4 

## 60Circulated 12/09/2014 12:02 PM



### A. Well, taking care ofthe four children, it requires 110 percent ofme. So whether it's school, doctor's appointments, dentist appointment. Three ofthe children
- well, four ofthem were in counseling. Three ofthem nOw remain in counseling, which is sometimesweekly, every otherweek. Numerous appointments, basketball game. We lost this one. But basketball games, events, activities. You know, to me, 

### I can - that's a full-time job basically. See Transcript ofProceedings on February21$' 2014, pg 57. At anotherjuncture in the case, the grandmother profferedtestimony that was very indicative ofthe effects on 

### ALL children ofremoval from the home. 

### Q: .,.what were they like when theyfirst came to live with YOll three years ago? 

### A: I - I think
- I guess I would say they were a little afraid. They always kind of stayed together. Like they kind of needed each other. They was very interwoven with one another. They always kind ofalways kept 

### a bag kind of packed not knowing what'was going to happen and stuffand, you know, just always concerned aboutwhat's for dessert, whatwe're going to eat, you know, and different things like that. So I think in the beginning, they might have been a little bit afraid, not sure. You know, but they felt happy to be with us because here and nowwe were getting things that were consistent and structure and attention, and
- you know, soSee TranSCript from Proceedings on February2181 2014, pg 58-9. Ofnote, at the termination proceeding, the permanency caseworker testified as follows regarding the oldest child: "A.R. was not very open with me, at thattime. She was very upset about being in the fOster care system. Ittook awhile. She grew and opened up, and nowshe's actually on a good working relationship with me to a pointwhere she'll discuss things. She is very comfortable in the home. She's actually told me she has cometo a means ofunderstanding thattheyjust need to find somewhereto be, and she's fine with everything that the agency has been trying to do forher." See Transcript ofProceedings frQ[Tl February21$1 2014, pg. 22. 5


### 61Circulated 12/09/2014 12:02 PM

The Agency had discerned that the kinship-fosterfamily' was willing to be permanent resources for two ofthe four children, the daughter ofthe grandmother', was willing to be a permanent resource for two ofthe children. The kinship-fosterfamily and the daughter's family

. .' '"
.. lived a reasonable distal')ce from each other, which would facilitate continued contact and interaction between the children and their siblings. In discussion with the children regarding the suggested permanency options, the grandmother characterized their relative reactions: 

### A All different reactions. 

### [AR.] justwants to be finished with Children and Youth. Adopt me. Do whateveryou gotto do. Ijustwant to be finished. 

### [E.R.] pretty much goes along with 

### [AR.]. She has been the motherfor them when there wasn't really wasn't a motherfigure there. So 

### [AR.] kind offeels like the three 

### bOYS are her children. And I try to tell her, I'm the mother. One queen in the castle. It would be me
.. So she
- they listen to her because that's who they're accustomed to. So 

### [E.R.] will do what 

### [AR.] kind of say. They've been trained that way.



## . Whereas, the two younger ones -- [A.M.] is pretty independent. He's excited. He wants to go with [grandmother'sdaughter]. He wants tobe with her. 

### [I.R.] isjust totally different. He's a little bit
- he's not sure. Theysaid we're going to. mommy, they say we're going here, and hejust kind ofgoes along withthe crowd because of his age., I would say. The grandmothertestified that she believed that the children were "bonded" tothe naturalfather, however, she testified that she believed thatthe children would not suffer

. . . . irreparable harm from a severing ofthat bond. The Court entered fiilal orders pftermination following the hearing, both parents appeal. Rule of Law

'Thegrandmotheris act.lJally**~e**.st.ep.-grandmotherfor thechildren, as sheis married to the paternalgrandfather. The step-grandmothersdaugilt',,?I_ is ,"tlk)is the otherpermanentresource. She is not biological family, however,·she has visited with the

### kinship-fo$t~rfamily at everYholiday and thechild;en areverY familiar with the daughter's family. As sucil, itistilis Cowt's opiniMthatthedaughter'sfamily Is within the'definition <;,fa "kinship" placement. 6

'-'.' . 

## 62Circulated 12/09/2014 12:02 PM
, ,

.The grounds forinvoluntary termination of parental rights are set forth in section 2511 of

, title 23 oUhe Pennsylvania Consolidated Statutes, Specifically sections (a)O); (a)(2); (a)(5); and (a)(8) appear substantially as follows:
23 Pa.C,SA §2511 (a) (1) The parent by conduct continuing for a period ofat least six months immediately preceding the filing ofthe petition either has eVidenced a settled purpose of relinquishing parental claim to a child or has refused orfailed to perform parental duties. (2) The repeated and contiriued incapacity, abuse, neglect or refusal ofthe parent has caused ihe child to bewithout essential parental care, control or subsistence necessaryfor his physical or mental Well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot orwill not be remedied by the parent.

(5) The child has been removed from the care ofthe parent by the court or undera voluntary agreementwith an agency for a period of at least six months, the conditions which led to the·removal or placement ofthe child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period oftime, the services orassistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement ofthe child within a reasonable period oftime and termination ofthe parental rights would best serve the needs and welfare ofthe child,

(8) The child has been removed from the care ofthe parent by the court or under a voluntary agreementwith an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement ofthe child continue to exist and termination ofparental rights would best serve the needs and welfare ofthe child, See 23 Pa C,S.A. §2511, Subsection (b) ofthe statute provides that: the court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare ofthe child, The rights ofa parent shall not be terminated solely on the basis of 7 

## 63Circulated 12/09/2014 12:02 PM



### ) environmental factors such as inadequate housing, fumishings, income, clothing and medical care iffound to be beyond the control ofthe parent. With respect to any petition filed pursuantto subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedythe conditions described therein which are first initiated subsequenttothe giving ofnotice ofthe filing ofthe petition. The term "needs andwelfare" is a legal concept that "denotes certain minimum requirements that all children are entitled to-adequate housing, clothing, food and love."

## !!1..&t. Coast, 561 A.2d 762, 770 (Pa Super. 1989); In re Adoption ofMichael

## J.e.. 473A.2d 1021, 1029 (Pa. Super. 1984). "Thus, needs and welfare has both a tangible dimension, food, clothing and shelter, and an intangible dimension, parental love." In re P,A.B

.. 570A.2d 522, 525 (Pa. Super 1990); In re J. 

### W, 578A.2d 952,957 (Pa. Super. 1990). "It is universally agreed thatthe bond of*539 parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds ofparental affection, preservation ofthe parent-child bond isprima-facie in the best interest ofthe child and the state has no justification to terminate that bond."

### f.!.!.J§. J. W

.. 578A.2d at 958. "If. as here, ties with natural parents are present and are an active force in the child's life, then needs and welfare becomes a concept that argues against termination, rather thanfosters it." In ra P.A.B., 570A.2d at 525. Moreover. pursuantto section 2511 (a)(5), a court "must examine the status ofthe natural parental bond to considerwhether terminating the natural parents' rights would destroy something in existencethat is necessary and beneficial." Id. Subsection (a)(8) sets a 12-month time frame fora parent to remedy the conditions which ledto placement. Once the twelve month period has been established, the court must next determine whetherthe conditions which led to the child's placement continue toexist, despite the reasonable and good faith efforts ofthe Agency, supplied over a realistic timeframe. In orderto terminate undersection 2511(a)(8), the Court is not required to evaluate a parent's current willingness orabilityto remedy the conditions that initially caused placement or the availability orefficacy ofpotential services. See In re K.Z.S., 946A.2d 753, 759 (Pa. Super. 2008). The Superior Court provided a detailed analysis ofthe termination ground listed at 23 Pa. C.S.A. §2511(a)(8) in the recent case of Inre T.M. T., 64A.3d 1119 (Pa. Super. 2013).' The Supreme Court of Pennsylvania has held that incarceration, while not a litmus test, can be determinative in a termination proceeding. See In reAdoption ofS.P., 47 A.3d 817 (Pa. 2012). Each termination ofparental rights case involving an incarcerated parent must be 8 

## 64Circulated 12/09/2014 12:02 PM

evaluated on its own facts; bearing in mind that the child's needs for consistent parental care and stability cannot be put aside or put on hold simply because the parent is doing what he is supposed to do in prison. See In re E.A.P., 

### 944A.2d 

### 79 (Pa. Super. 2008). Incarceration does not relieve a parent ofthe dutyto exercise reasonable firmness in maintaining a secure bond with the child. In the Interest

### ofA.P., 

### 693A.2d 240 (Pa. Super. 

### 1997). In termination of parental rights cases involving an incarcerated parent, a parent's basic constitutional right to the custody and rearing ofhis child is converted, upon the failure tofulfill parental duties, to the child's right to have proper parenting andfulfillment ofhis orher potential in a permanent, healthy, safe environment; moreover, the parentwishing to reestablish her parental responsibilities bears the burden ofproof relative to post-abandonment contact. See In re C.L.G., 

### 956A.2d 

### 999 (Pa. Super. 2008). When a parent is incarcerated, the focus in termination of parental rights action is on whetherthe parent utilized resources available while in prison to maintain a relationship with his child. In re B.N.M., 

### 856A.2d 

### 847 (Pa. Super. 2004).

In a case where the incarcerated parentwrote letters, forwarded some child support, and sent gifts to the child, the Courtfound that these actions did not indicate a serious intentto recultivate a parent-child relationship and awillingriess and capacity to undertake a parental role, and thustermination was appropriate. See 1liL,lnre D.J.S., 

### 737 A.2d 283 (Pa. Super. 

### 1999). The Court also found that the natural father in that case failed to utilize given resources and to take an affirmative approach to fulfill his parental duties and failed tofollow through on inquires with prison officials and county social workers. See Id.
Discussion:
As to Natural Fatherthe decision reached has not been done so lightly. Natural Father indicates a willingness and a desire to reunify with his children. In addition, his children express a desire to reunifywith him. He is appropriate with them during visits, and consistently strives to be a presence in their lives despite his incarceration. The caseworker testified that he does "everything he can" while incarcerated. Clearly we have a fatherwho is striving to be a parent. despite being noticeably absentfrom the lives ofhis children. However, Father has been incarcerated for overthree years. His maximum sentence date is June 2014. He was not granted parole despite his requests and application for it. As noted above, the Courtwill not put a child's life on hold and await a parentwho is fit, willing, and 9 

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able. Fatherwould most likely not befit and willing to provide care and control upon his release. As this Court is very familiarwith the process by which released ex-convicts attempt to reintegrate and the hardships associated therewith, this Court is unwilling to force the children to wait any longer. Father is entirely appropriate with them, and it is likelythat he loves them greatly, as they do him. However, this Court is encouraged by the prospect of adoption by the paternal grandfatherand his step-daughter ofthe children. This kinship permanent placement will permit, albeit on Father's initiative only, continued contact between the children and their natural father. The fact thatthe words 'termination" and "adoption" imply permanence and suggest a severance from a relationship with a natural parent has little effect in this case. This Court

### will not turn a blind eye to the practical considerations ofthe children's age and the fact that they acknowledge and love their father. There will be continued contact with the Natural Father and the children, and it will likely occurwithout this Court's intervention. Knowing, as we do, that that will be an easier process as the children are placed with kin makes this Court's decision that much more bearable. As to the Natural Mother, the Courtfound aggravated circumstances as to her lack of involvement during the dependency case. It is severely disheartening to associate this situation with an absence of over six (6) months. This Courtcannot fathom the lack of a desire to contact the children during that time. It, coupled with the trOUbling transiency, causes this Courtto find thattermination would certainly suit the best interests ofthe children as to Natural Mother. In addition, byvirtue ofthe finding ofaggravated circumstances, the natural mother has satisfied the statutory prOVisions Which allowfortermination when: there has been no contact between the parent and the child for a period ofsix 

### (6) months; the conditions which led to placement continue to exist (lack of permanent living arrangements) and the fact that Mother has exhibited little interest in parenting her children until the eleventh hour.
Conclusion This Court hereby concludes tMttermination ofthe parental rights of both the Natural Father and the Natural Mother as to the minor Children is required by the statutory provisions governing the same and WOUld, undoubtedlyserve the children's best interests.
BYTHE COURT:



### '----.>:::: . \

# ~**~.Jy** Wm. HarveyWiest, Judge 

### 10 

## 66