J-S09045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: F.S.H., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: F.C.H., FATHER                  :       No. 1362 MDA 2017

                   Appeal from the Order Entered July 24, 2017
                  In the Court of Common Pleas of Berks County
                         Orphans' Court at No(s): 85191


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 28, 2018

        Appellant, F.C.H. (“Father”), appeals from the order entered in the

Berks County Court of Common Pleas Orphans’ Court Division, which

granted the petition of the Berks County Children and Youth Services

(“BCCYS”) for involuntary termination of Father’s parental rights to his minor

child, F.S.H. (“Child”). We affirm and grant counsel’s petition to withdraw.

        In its opinion, the Orphans’ Court fully and correctly set forth the

relevant facts and procedural history of the case.1        Therefore, we have no

reason to restate them.

        As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.


____________________________________________


1This appeal is related to the appeal listed consecutively at No. 1361 MDA
2017 (J-S09044-18).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09045-18


1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009).           Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.            Substantial compliance

with these requirements is sufficient.           Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). After establishing that counsel has met

the antecedent requirements to withdraw, this Court makes an independent

review of the record to confirm that the appeal is wholly frivolous.

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon2 requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.
____________________________________________


2   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



                                           -2-
J-S09045-18



                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel must: (1) provide a
          summary of the procedural history and facts, with citations
          to the record; (2) refer to anything in the record that
          counsel believes arguably supports the appeal; (3) set
          forth counsel’s conclusion that the appeal is frivolous; and
          (4) state counsel’s reasons for concluding that the appeal
          is frivolous. Counsel should articulate the relevant facts of
          record, controlling case law, and/or statutes on point that
          have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

       Instantly, appellate counsel filed a petition to withdraw. The petition

states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention.          In the Anders brief, counsel provides a

summary of the facts and procedural history of the case.3                Counsel’s

argument refers to relevant law that might arguably support Appellant’s

____________________________________________


3 We disapprove of counsel’s rhetoric in his brief, which borders on the
extreme, as inappropriate and unnecessary.



                                           -3-
J-S09045-18


issue. Counsel further states the reasons for his conclusion that the appeal

is wholly frivolous.     Therefore, counsel has substantially complied with the

requirements of Anders and Santiago.

       Father has not responded to the Anders brief pro se or with newly

retained private counsel.        Counsel raises the following issues on Father’s

behalf:

          DID THE TRIAL COURT ERR IN TERMINATING [FATHER’S]
          PARENTAL RIGHTS TO HIS CHILDREN BASED ON THE
          EXHIBITS AND TESTIMONY PRESENTED AT THE TIME OF
          [THE] HEARING ON JULY 24, 2017, PURSUANT TO THE
          PENNSYLVANIA ADOPTION ACT, 23 PA.C.S.A. SECTION
          2511,   AS   [FATHER]  DESIRES   AN   ADDITIONAL
          OPPORTUNITY TO COMPLETE REQUIRED SERVICES UPON
          HIS RELEASE FROM PRISON IN APPROXIMATELY ONE
          YEAR?

          IN THE ALTERNATIVE, SHOULD THE MOTHER OF THE
          CHILDREN BE AFFORDED AN ADDITIONAL OPPORTUNITY
          TO COMPLETE REQUIRED SERVICES UPON HER RELEASE
          FROM PRISON IN NOVEMBER 2017?

(Anders Brief at 3).4

____________________________________________


4 Pennsylvania law on common law standing provides that a person can
invoke the jurisdiction of a court to enforce private rights or maintain an
action for the enforcement of such rights, only if that person has in an
individual or representative capacity some real interest in the legal right that
is the subject matter of the controversy. In Interest of G.C., 673 A.2d
932, 935 (Pa.Super. 1996). See generally In re T.J., 559 Pa. 118, 124,
739 A.2d 478, 481 (1999) (stating: “In determining whether a party has
standing, a court is concerned only with the question of who is entitled to
make a legal challenge and not the merits of that challenge”; “the purpose
of the ‘standing’ requirement is to insure that a legal challenge is by a
proper party”). Here, counsel says Father is abandoning his second issue
because Mother did not appeal from the orders terminating her parental
(Footnote Continued Next Page)


                                           -4-
J-S09045-18


      Appellate review of termination of parental rights cases implicates the

following principles:

          In cases involving termination of parental rights: “our
          standard of review is limited to determining whether the
          order of the trial court is supported by competent
          evidence, and whether the trial court gave adequate
          consideration to the effect of such a decree on the welfare
          of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

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

          In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
          banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
          (internal citations omitted).

             Furthermore, we note that the trial court, as the
             finder of fact, is the sole determiner of the credibility
             of witnesses and all conflicts in testimony are to be
             resolved by the finder of fact. The burden of proof is
             on the party seeking termination to establish by
             clear and convincing evidence the existence of
             grounds for doing so.

          In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
          2002) (internal citations and quotation marks omitted).
          The standard of clear and convincing evidence means
          testimony that is so clear, direct, weighty, and convincing
(Footnote Continued) _______________________

rights. In any event, Father would not have standing to raise issues related
to Mother or on Mother’s behalf. Therefore, we give Father’s second issue
on appeal no further attention.



                                          -5-
J-S09045-18


         as to enable the trier of fact to come to a clear conviction,
         without hesitation, of the truth of the precise facts in issue.
         In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
         may uphold a termination decision if any proper basis
         exists for the result reached. In re C.S., 761 A.2d 1197,
         1201 (Pa.Super. 2000) (en banc). If the court’s findings
         are supported by competent evidence, we must affirm the
         court’s decision, even if the record could support an
         opposite result. In re R.L.T.M., 860 A.2d 190, 191-92
         (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

      DHS filed a petition for the involuntary termination of Father’s parental

rights to Child on the following grounds:

         § 2511. Grounds for involuntary termination

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

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

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

                                  *    *    *

            (5) The child has been removed from the care of the

                                      -6-
J-S09045-18


           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.

                                *    *    *

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

                                *    *    *

        (b) Other considerations.―The court in terminating
        the rights of a parent shall give primary consideration to
        the developmental, physical and emotional needs and
        welfare of the child. The rights of a parent shall not be
        terminated solely on the basis of environmental factors
        such as inadequate housing, furnishings, income, clothing
        and medical care if found to be beyond the control of the
        parent. With respect to any petition filed pursuant to
        subsection (a)(1), (6) or (8), the court shall not consider
        any efforts by the parent to remedy the conditions
        described therein which are first initiated subsequent to
        the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). “Parental rights

may be involuntarily terminated where any one subsection of Section

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


                                    -7-
J-S09045-18


provisions.” In re Z.P., supra at 1117.

        Initially, the focus is on the conduct of the parent. The
        party seeking termination must prove by clear and
        convincing evidence that the parent’s conduct satisfies the
        statutory grounds for termination delineated in Section
        2511(a). Only if the court determines that the parent’s
        conduct warrants termination of his… parental rights does
        the court engage in the second part of the analysis
        pursuant to Section 2511(b): determination of the needs
        and welfare of the child under the standard of best
        interests of the child.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

     Termination under Section 2511(a)(1) involves the following:

        To satisfy the requirements of [S]ection 2511(a)(1), the
        moving party must produce clear and convincing evidence
        of conduct, sustained for at least the six months prior to
        the filing of the termination petition, which reveals a
        settled intent to relinquish parental claim to a child or a
        refusal or failure to perform parental duties. In addition,

            Section 2511 does not require that the parent
            demonstrate both a settled purpose of relinquishing
            parental claim to a child and refusal or failure to
            perform parental duties. Accordingly, parental rights
            may be terminated pursuant to Section 2511(a)(1) if
            the parent either demonstrates a settled purpose of
            relinquishing parental claim to a child or fails to
            perform parental duties.

        Once the evidence establishes a failure to perform parental
        duties or a settled purpose of relinquishing parental rights,
        the court must engage in three lines of inquiry: (1) the
        parent’s explanation for his… conduct; (2) the post-
        abandonment contact between parent and child; and (3)
        consideration of the effect of termination of parental rights
        on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted).   Regarding the six-month period prior to filing the termination

                                    -8-
J-S09045-18


petition:

            [T]he trial court must consider the whole history of a given
            case and not mechanically apply the six-month statutory
            provision.     The court must examine the individual
            circumstances of each case and consider all explanations
            offered by the parent facing termination of his… parental
            rights, to determine if the evidence, in light of the totality
            of the circumstances, clearly warrants the involuntary
            termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted).

      The     grounds    for   termination   of   parental   rights   under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary those grounds may include

acts of refusal as well as incapacity to perform parental duties.              In re

A.L.D., (797 A.2d. 326, 337 (Pa.Super. 2002).            “Parents are required to

make diligent efforts towards the reasonably prompt assumption of full

parental responsibilities.” Id. at 340. The fundamental test in termination

of parental rights under Section 2511(a)(2) was long ago stated in the case

of In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

                                        -9-
J-S09045-18


719 A.2d 327, 330 (Pa.Super. 1998).

      “Termination of parental rights under Section 2511(a)(5) requires

that: (1) the child has been removed from parental care for at least six

months; (2) the conditions which led to removal and placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Z.P., supra at 1118.

      “[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) [t]he child has been removed from

parental care for 12 months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to

exist; and (3) termination of parental rights would best serve the needs and

welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76

(Pa.Super. 2003).   “Section 2511(a)(8) sets a 12–month time frame for a

parent to remedy the conditions that led to the children's removal by the

court.”   In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003).      Once the 12–

month period has been established, the court must next determine whether

the conditions that led to the child's removal continue to exist, despite the

reasonable good faith efforts of the Agency supplied over a realistic time.

Id.   Termination under Section 2511(a)(8) does not require the court to

evaluate a parent’s current willingness or ability to remedy the conditions

that initially caused placement or the availability or efficacy of Agency

services. In re Adoption of T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003);


                                    - 10 -
J-S09045-18


In re Adoption of M.E.P., supra.

     Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.     In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

paying close attention to the effect on the child of permanently severing the

bond.” Id. Significantly:

        In this context, the court must take into account whether a
        bond exists between child and parent, and whether
        termination would destroy an existing, necessary and
        beneficial relationship.

        When conducting a bonding analysis, the court is not
        required to use expert testimony. Social workers and
        caseworkers can offer evaluations as well. Additionally,
        Section 2511(b) does not require a formal bonding
        evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his…rights terminated.”    In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

        There is no simple or easy definition of parental duties.
        Parental duty is best understood in relation to the needs of
        a child. A child needs love, protection, guidance, and

                                    - 11 -
J-S09045-18


        support. These needs, physical and emotional, cannot be
        met by a merely passive interest in the development of the
        child.   Thus, this [C]ourt has held that the parental
        obligation is a positive duty which requires affirmative
        performance.

        This affirmative duty encompasses more than a financial
        obligation; it requires continuing interest in the child and a
        genuine effort to maintain communication and association
        with the child.

        Because a child needs more than a benefactor, parental
        duty requires that a parent exert [himself] to take and
        maintain a place of importance in the child’s life.

        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his… ability, even in difficult circumstances.
        A parent must utilize all available resources to preserve
        the parental relationship, and must exercise reasonable
        firmness in resisting obstacles placed in the path of
        maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with his or her physical and
        emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of his…child is converted,

upon the failure to fulfill his…parental duties, to the child’s right to have

proper parenting and fulfillment of [the child’s] potential in a permanent,

healthy, safe environment.” Id. at 856.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Scott D.

Keller, we conclude Father’s issues merit no relief.     The Orphan’s Court


                                    - 12 -
J-S09045-18


opinion comprehensively discusses and properly disposes of the questions

presented. (See Orphans’ Court Opinion, filed September 12, 2017, at 1-8)

(finding: Father has criminal history of drug related offenses dating back to

2006; Father is currently incarcerated and hopes to be released from prison

in August 2018, but even with RRRI eligibility, his minimum release date

would not be until early 2019; F.S.H. has been fortunate to escape long-

term effects of in utero drug exposure; conversely, Child is thriving in foster

home and bonded to foster parents; any bond Child might have to Father

deteriorated to point that severance would not detrimentally affect Child;

with exception of one visit, Father has not seen Child since Father’s

incarceration in February 2016; Child has received no letters, cards, gifts, or

parental support from Father; given Father’s extensive drug history and

current incarceration, Father cannot remedy conditions, which led to Child’s

placement, within reasonable time; termination of Father’s parental rights

will serve Child’s best interests; termination of Father’s parental rights was

proper under Section 2511(a)(1), (2), (5), and (b)).            Following our

independent review of the record, we conclude the appeal is frivolous. See

Palm, supra. Accordingly, we affirm on the basis of the Orphans’ Court’s

opinion and grant counsel’s petition to withdraw.

      Order affirmed; counsel’s petition to withdraw is granted.




                                    - 13 -
J-S09045-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/28/2018




                          - 14 -
                                                                                                        Circulated 03/16/2018 04:00 PM




                    I.
                    I

                                                                             I

                                                            IN TH              COURT OF COMMON PLEAS .
INRE: i                                                     OF BE'             KS COUNT•, PENNSYLVANIA
                                                                             1
                                                                              NS' COURT DIVISION
                     I

                    I                                       ORPH
                S:N.H.                                      No. 85       90
                l{.H., Jr. a/k/a F.S.H.                   : No. 85       91
                    ,;
                                                                             '
                    I.
J.ennifeif L. Grimes, Attorney for BCCYS, Petition ti Appellee
Molly Sanders, Guardian Ad Litem for S.N.H and l .is.H.
P, David Maynard, Attorney for F.C.H., Father
f(eJly S. iJ(Jine, Attorney for J.C.G., Mother
                    I•

.9)PINI�,__Scott D. Keller, S.J.                                                            Dated: Se .tember 12, 2017
                                                                             ,



�lervices!("BCCYS") to terminate the parental rights o iJ,C.G. a/k/a J .. H. ("Mother") and
                     I                                                       I
R. C.H. (iF ather'') to the children, F .H., Jr. a/kla F .S .Hr'.                       D , CJ • �            20 11, and

S.N.H.,                   ·D. 0. 'B          , 2016 ("the Children"1) The petitions to involuntarily terminate
                                                                             I


                                                                                           for
                    )



parental rghts were filed on December 6, 2016 on the grounds set                                 in 23 Pa. C.S .A.
�               !(1 ), (2 ), and (5).
         2511 ( a                                                I
                                        The hearing was held on u )f 24, 2017. Mither was present via

telephone from                          , Boot Camp. Her court-app inted counsel               as present in the
    i           ·1
                    J.

                                                                         .on.
                                                                             I

courtroo�. Father was present via video from 1)i,-y                                    Father s court-appointed counsel
                    .
                                                                     1
1




tas phyfically
     I              I


                             present for the hearing. Upon conclusi              of the hearin ·, the Court granted the
                                                                         �
�etitionsi to terminate parental rights to the Children. ·1�ther filed a ti ely Notice of Appeal and

� Concise Statement of Matters Complained of on Ap] �al.2
     '              ,.
    l               ,                                                    :

    l          ,the statute at paragraph 2511 (a)( 1) provides tl
                                                                      �t parental righ s in regard to a child may
     I              !.
�e terminated on the grounds that a "parent by co�duc ifontinuing for a period of at least six
    I               ,.
    I
    I
                    I,
 I
-r                  li·       -·------
                                                                         .
                                                                         I
1
2
  �Y Order.dated April 25, 2017, the Child shall be known as F.S H.
  rather' s Concise Statement simply states that the Court erred in terminating his pa ental rights based on the
exhibits a�d testimony presented and that he desires an additiona epportunity for hi1 and Mother to complete
services. ]he Statement indicates that counsel believes the appea ito be frivolous.
    I               I'
    II                                                       1           I
                                                                         I



                    i·
                    ,                                                    .
    I                                                                    ,
                                                                         I
         II
         11




         I
         I

months immediately preceding the filing of the petitiot;either has evi enced a settled purpose of
         I                                                       .

relinquishing parental claim to a child orhas refused O !failed to perfor parental duties."
         ;:                                                      i
Paragraph (a)(2) provides that parental rights may be trminated on thf grounds that "[t]he
        .
repeated!and
                                                        I
                                                       ifisat
                                                                        I
             continued incapacity, abuse, neglect or r        of the parrt has caused the child to

be withort essential parental care, control or subsistenr necessary fulhis physical or mental

!ell-beiifg and the conditions and causes of the incapaj�ty, abuse, neglect or refusal cannot or

will not �e remedied by the parent." Paragraph ( a)( 5) r'Ovides for teli nation of parental rights

when a ''i,hild has been removed from the care of the p,/rent by the cor or under a voluntary
                                                         1�nths,
·�eern.;,t


                                                                                   r
            with all agency for a period of at least six         the condrons which led to the

remo��l rr plac�ment of the child �ontin�e to exist, thi!arent ca�ot                   will not remedy those

conditions WI thin a reasonable period of time, the servrs Cit assistanj reason ab1 y avail ab! e to

tfue parerlt are not like! y to remedy the conditions whicf: led to the rem,val or placement of the

child within a reasonable period of time and terminati: ri of the parent,! rights would best serve
 .            I'
              }                                                      .
                                                                     I




the needs.and welfare of the child.'' "With respect to' 'y petition file, pursuant to (a)(l), (6) or
 I        !                                                          I
 I        I

(�), the cpurt sha11 not consider any efforts by the pare t to remedy th conditions described
              I                                                      '


therein �f,hich are first initiated subsequent to the givin \of notice oftl filing of the petition." 23
 I            j                                                      '
              I

P!a.c.s.AJ; § 251 l(b).
              !
 l "f
 I                                                                       I



                      arental rights may not be preserved by waitit: for some mo
                                                                                   I   suitable financial

crums�ce or convenient time for the performance o tarental dutie1 and responsibilities." In

rf D.J.S1• 737 A.2d 283, 287 (Pa. Super. 1999). The ong-standing 11w of the Commonwealth
i� that th,�. inability of a parent to perform parental duti S makes him       O   her just as parentally unfit'
     I            r                                                      .
a$: a parenit who refuses to perform these duties. In re: B.L. W., 843 A. d 380, 388 (Pa. Super.
           ,·                                               I

2�04). R!egardless
                     of inability or refusal, once a paren� �emonstrates a failure to fulfill his or her
     I                                                               ::
                                                           2
                      .!1.
                      1\
                      :1
                      1:
.                     II
parentaq�uties, the child's right to fulfillment of his o her potential i a permanent, healthy, safe
                       'I                                                   .
environment with proper parenting supersedes the partnt's basic cons itutional right to custody
                        "
and readhg of the child. Id. In terminating the rights fa parent, the ourt must give "primary
                        .1
considerrition to the developmental, physical, and em ttonal needs an welfare of the child." 23
                             I                                               :
Pa.C.S.�. §251 l(b).
        ·I"
       Ihcarceration is not in and of itself detenninati ¢ of parental i1capacity, but it "can be
    :                    !!
cletermi�rtive of the question of whether a parent is in apable of prov,ding 'essential parental
                             11                                                 1            I
Gare, control or subsistence.'?' In Re: Adoption ofS.P. 47 A.3d. 817, �31 (Pa. 2012); In re R.I.S.
                             !1
� A.Ls.,i66 A.3d 567, 576 (Pa. 2011), Justice Baer co
    1
                                                                                              I,
                                                                                curring. "The ength of the remaining
                             :I                                                  .
confinement can be considered as highly relevant tow 'ether 'the con itions and causes of the
                             ,I1'                                                I


incapaciiy, abuse, neglect or refusal cannot or will not �e remedied b the parent,' sufficient to
                             I                                                   •


provide jrm:mds for termination pursuant to 23 Pa.C.S !§ 251 l(a)(2)." In Re: Adoption ofS.P., 47
         {!                                              :
A.3d. at $31. If a parent will remain incarcerated for t b long of a per' od of time to permit
                              il
unificati�n with a child "in a timely basis in order to p ovide the child with the permanent home
                              I!
t� whichlhe or she is entitled, then the length of sentert:e, standing alo e, should and does meet
        .                        ii
tr legal lprite1ia for involuntary termination of the inc {cerated parents parental rights." In re

R1.S. &                      t-1.S., at 576. "[T]he child's need for consist�! parental care and stability cannot be put
aside or tut on hold simply because the parent is doinJ what [he] is su posed to do in prison."
                                  I•
                                  1:

In re E.A(tP., 944 A.2d 79, 84 (Pa.Super.2008). "It is i �umbent upon he judicial system to be
        .                         ll
c�ild-foc�sed." Ji1 re R.I.S., 36 A.2d at 579.
            ;                     .J
            '       · Tiis family came to the attention ofBCCYS in 2011 due to M ther's testing positive for
                                    !1                   .                           .
illegal su�stances upon giving birth to F.S.H., who als �ested positive for methadone.3 The
            j                       1i                                               '
            1                       'I                                               '


arncy �
     o ened t�e case for investigation and in-home �rvices on Mar h 5, 2012. In 2015,

3
        Mother tdltificd that her positive test was for prescribed methad . rl.e.
            I                       I                                                !
                :                   iI                                3
                                    I
                                    I




                                    :1
                  II
                  I!
                  .,
                   I



 .                r                                               i

  ;       ii
:further  "                                            I
         a�d on-going reports of substance abuse and m ntal health co                    erns caused BCCYS to
                  ,I
                  'I

re-open �he case for investigation. In-home services dre provided to address parenting issues,
                  ·,
s�pervisl�n of the children, and substance abuse. Bot parents demon trated a lack of progress
        l
                       1



and consistency             •   ·
                wit h t h e services an a a11 eviating
                                                · · thea ency
                                                         :    ,s                     I
                                                                             concer s.
                                                                           1 in the physical
                  Itii                                            I.

                 1� S.H. was adjudicated dependent in Decembe F015, but he rrmained
custody ?if his parents.             \ {\        2016, S.N.H. · �s born premat rely and addicted to
 J                �I




Opiates, ,l,,deine, and morphine, which required her to emain hospitaqzed until March 24, 2016.
                                                                                     1
                  ti                                              1

As the result of a drug raid, Father was incarcerated 01 February 10,-2r:l 6 on charges of
     I            1:                                                  I
IJ!}anufacthre and possession of drugs. On February 11 12017, custody of F.S.H. was transferred
                   '                                                  I
                       i
to BCCI'f�. On March 7, 2016, Mother was incarcerat
                  11
                                                                  µ.      Upon her r11ease from the hospital,
                                                                  i
S..N.H. v.ias adjudicated dependent and custody was a arded to BCCjS.
          :1                                           I
        �other and Father were ordered to participate· '. services, incl ding
                                                                              parenting education,
                  j;                                                  I


mental h�alth evaluation and any recommended treatrr nt, drug and alrohol evaluation and any
     :
     '             I.''I                                              I
     I

recommended treatment, random urinalysis, and case ork. The paren s were also ordered to
                   ·j                                                 I

                   ii
e�tablishj�nd maintain a stable environment.                          ,
     I              I
     I             ,I


     I
         !
                 �other and Father both remained incarcerated 1?toughout the hildreri's placement.
                   ·1                                                 I


T�ey co¢.pleted a few educational programs in jail. A: bf the time of earing> Father was
                   ·:                                                 I

participating in a Therapeutic Community program an �A and NA i
                                                                prison. Mother was
     '             "
                   'I

ergaged
               tr a four-month-Jong drug and alcohol outpati�nt program th
             ed ational
                                                                                         meets weekly as well as
other            ��
                           programs. She also testified to meeti g monthly wit a psychiatrist.
                                                                 1

     j             i1

     !
     I       '     ·.                  '                      '                             '

                 �ith the exception of a May 3> 2017 special cl sure visit bein , granted to Mother by the
     I            iJ                                                  I
dourt, M�ther and Father have not seen the Children si ce prior to the ir respective
        i,i,
                   11
                   I!
                   II
                   ·1
                   II'.
                   '1                                    4
                  ,.1,
                  1:
                  ,I
                  1!
                 H'




                      I                                                          '
                      I                                                          .

incarcer itions.4                         Father has had some telephonic conta \ with F.S.H. iom jail, but active re-
                  l                                                              I




has also . ad telephonic contact, but she is limited to o � monthly call rom her current detention
                  I                                                                  ,

                  I                                                                  .
at boot c'                            p. Mother testified that she also sent emai messages to              her father to pass to F.S.H.
                      I

                      I
                        other and Father have maintained contact wi             *    .                      ,\
                                                                                                 BCCYS via lrtters and several casework
 1                    1.                                                             ;
service sessions at the jail. No letters addressed to the €hildren were roduced. At no time have
                      11
 .
they expJ�ined how they intend to establish and maint �n long-term                                               ironments that will be

safe for �emselves or the Children.
                                                                                                           el
 i                    :•                                                                 .                                      .
 '       Mother has a criminal history dating back to 2}(i)5, mostly for rug-related offenses, some
 •
          q�                                               'j                                                f
retail the,rs, traffic citations, and probation violation. he has been st ggling with drug abuse -
                          1!                                                             I
first mariiuana then cocaine - and mental health .: since she was bout 14 years of age
          IT                                                                             .

( 1997). � he started using heroin when she was 18. SI � has been in a umher of inpatient
r�habilit{�ion
               facilities, but she has failed to maintain �briety.
                 rfishe remains
     i                                          compliant, Mother is due to be r leased from bo t camp on November 15,

2PI 17.          HJr current plan upon release is to reside with 1 d.r father in Ne Jersey. She will rely on
                   .
     .                     I\                                     .
him fina1�cially until she can find employment. While Mother's fathe is in agreement with
     :;                    ll
                           :1
having Mother reside with him and has maintained co �act with the C ildren, he has not
  :     . 'II;                                       .
                                                       .
  ,
it�dicated!ro BCCYS that he is a long-term resource fo
         :                 I
       Mother has a third child who was 14 at the tim pf the hearing. During this child's
         '
         I
iJfancy, �oncerns
                  over Mother's care of this child and 'er substance a use caused the
             ;                 II                                                            I
iAvolve�bnt of the Warren County, New Jersey Child \rotective Services. This child has been
  .     q                                          I
_,'     !!I,    -                                  I
                                                   i
4
 fhe closJf;e visit was scheduled in light of Mother's signing a c�dsent to the Childrfn's adoption on April 26,
2017. Mof�cr testified that she signed th.e consent bec�use she �\� not wa�t to drag the Chil�ren through the
process anj;nore, they were comfortable m foster care, it was gotjg to be difficult to get her life back on track, and
�e foster p�rents agreed to post-adoption contact. Mother revoke i the consent on ay 16, 2017 because she lost
her trust in ithe foster family.
                                                                                                 I
                               !                                          s                      I
                                                                                                 I


                               !I,1
                               ti
                      I

                      I
.                     I                                                           I

in the cu tody of his paternal grandmother in New Jer by since he wa                                                 about one year old.
                      !                                                            I


                      t
Mother stifled that her last contact with him was by etter approximately two months prior to
                      I                                                               I
    hea�
t�e      g and that the last time she talked to him wa �rior to her in arceration.
                          ilther
,            has a criminal history of drug-related ofinses dating b ck to 2006. His first
ihcarcert :                                     simil,lto
        tion was at age 25. His drug history is           Mother's. e started using marijuana


i,
                hen he] as 15 years old (1982) and heroin when he r'(as 28 (1995).                                    e had periods of sobriety,

    long;
                          I
                                                         I;               I
the       st being up to four years, but the longest perir � after conceilng F.S.H. was perhaps


                                                                                 pff
tro yeaf . Relapse and return to court was a regular                                                  blem for F atlrr.
    I
                     I? ther has two additional children, a daughter, 21, and a son, 8. He claimed to have
                          I                                                               '
some �o I tact with them prior to his incarceration. He fstifled that he "made a mistake" with his
                    so�,
older                    who after seeing Father in and out ofjail ha !experienced h s own incarcerations.

Father d, es not want the same thing to happen with F. rH. By the s                                                  e token he acknowledged
                              I                                                           i

tiiat his i istakes have caused his separation from the· : ily. Father lelieves he can teach the

�hildred a lot, including what is right and wrong, one he gets himsel together.
        .                     i
        ;            � ther is serving a four to twelve year sentenc for which he i RRRI eligible. He
        I                     I                                                               ;
testified                             at he had another year left, hopefully Augusitl2o 18, but eve with RRRI eligibility his
                                                                                              :e
Jnimui release date would not be until early 2019.                                                     anticipates brng paroled to a halfway

                                  I
House w h a slow transition into the community. Fat � hopes that Mrther will successfully
                                  I                                                           .
        .                         I                                                           .

ermplete boot ca.mp and move on from there to obtainl�ustody of the                                                   hildren so he might too

fbllow a imilar path to reunification. Much of Father�s plan is "hope lly."
            ,                     I                                                   ;       1,


            I                                                                         •


            ,        · � S .H. has been fortun�te to escape long.. term tects of in ute                                   drug exposure.
qontrarii , S.N.H. is a developmentally delayed speci: llneeds child, b t she is doing well with

services. The foster parents have actively and ably me �he Children's needs. The Children are
                I                                                                                 I                        .
            !                                                                                     I
                                                                            6
thriving I n their foster home, and they are bonded to t �ir foster pare}. Any bond that the
                                                                                       1


Children might have had to Mother and Father has de • orated to the oint that severance would
:        I1                                            I
not detri entally affect the Children. Fortunately for �e Children, foster parents are long-
·                       1                                                               I                          tht
term res; urces who can continue to meet their develo mental, physic 1, and emotional needs.
                        I                                                                  I


                        � S.H. remembers his parents, but Father doesfiot know how                                       e boy feels about the
.                           I
situation! caused by his parents' incarceration. Mother believes F.S.H wants to be with her
    I                       I                                                              !

again. S! N.H. was an infant when her parents were re 1oved from he and would have no
    '                       I
                            I                                                               !
-. fthem. The Children's guardian ad litem b l�eves terminat on of parental rights is best
    I                       I

fpr both ] hildren.
                            I

        !
                        l;
          ith the exception of the closure visit between Mother and F .. H., Mother and Father
     noti                                             th�(
have      een the Children since February 2016. In         time the only reason the Children
                                I                                                      , I
                                            ore so than S.N.H.) even know that Mother �d Father conti ue to exist has been the
()'.S.H.
                        i;
occasion; l telephone call. The Children have receiver p.o letters, card , gifts, nor any other
        .                       .
parental I upport -- financial, emotional, or otherwise.                                                ithout the fos er parents, the Children
            .                   !
would h] e been completely without support or any o .er kind of par ntal control and
                                            1


            I                                                                                   I
            I                                                                                   .
srbsisti e. Given their extensive history of drug abu rand incarcer,tion, and given that
�other� d Father will each be incarcerated for at leasriseveral moretonths with a slow
                I                   I                                                           '

t�ansitio : to the community thereafter, the Court has expectation t at Father or Mother can or
                                                                                      nr\
4m   rem: dy their failures as parents and be 100% avai able for the
                                                                     Children in a reasonable

�eriod of time. The needs and welfare of the Children �re paramount
                .
                I           .1
                                    I
                                                                 ·                          ·I
for an u pecified. and uncertain time that is more con enient for Mot er and Fat.her to hopefully
                                                                                                    I                rd     cannot be held hostage
                                                                                                                                '
 I       I                                             j
 i       I          .
one day : e able to perform parental duties.
                    I

                    !                   !
                    '
                    I                                                            7
        i
         I                                                     l




                 e Children are doing very well in their fostej lome. They

parents t' whom they look for love, safety, and suppo          t
                                                                                •r    bonded with their foster

                                                                   Freeing the �hildren for adoption will
         I                                                                       I.
         l
                                                               l

provide em with the opportunity for permanency an Ftability and                       be in their best interests.
                                                                                ]11
1
        !        r the foregoing reasons, the Court entered it Decrees termilating parental rights of

Mother · d Father to the Children.



                                                               : fl�--B-,
                                                                 BYTHi;�? 7/,_                    �J--
                                                           rt
                                                               i
                                                                     s;ott I)leller,      s.l: - ...
             I
Distributio : Clerk of the Orphans' Court; BCCYS Solicitor; Gu rdian A:d'Litem;, ttomey for Moth?.r;-Attomey
�h�J         I                                                 j
                                                                       .
                                                                          •·                        ...


 .                                                             .           -·
                                                               I

             I
             I




                                                       8
