J-S48016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ADOPTION OF: A.M., A MINOR             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: D.M., MOTHER                       No. 639 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 of 2013

IN RE: I.R., A MINOR                          IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: D.M., MOTHER                       No. 640 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.R.                      IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: D.M., MOTHER                       No. 641 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: E.R.                      IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: D.M., MOTHER                       No. 642 MDA 2014


              Appeal from the Decree entered February 26, 2014,
          in the Court of Common Pleas of Northumberland County,
                       Orphans’ Court, at No(s): 45-2013

BEFORE:     DONOHUE, JENKINS, and PLATT*, JJ.


* Retired Senior Judge assigned to Superior Court.
J-S48016-14



MEMORANDUM BY JENKINS, J.:                          FILED JANUARY 23, 2015

      Appellant, D.M. (“Mother”), appeals from the decrees involuntarily

terminating Mother’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, drug use, domestic violence, potential eviction,

visits from unidentified individuals to the home, and truancy. On February

18, 2011, Mother signed a Voluntary Entrustment Agreement, placing the

Children in CYS’s custody. The Children were placed in the care of Maternal

Grandparents.      On March 23, 2011, the Children were adjudicated


1
  On February 27, 2014, the trial court entered its decrees terminating N.R.’s
(“Father”) parental rights to the Children. Father is not a party to this
appeal, but filed a separate appeal at docket nos. 586, 587, 588, 589 MDA
2014.
                                      -2-
J-S48016-14


dependent. On June 23, 2013, CYS filed a motion for a finding of alleged

aggravated circumstances, alleging that Mother failed to maintain contact

with the Children for a period of six months.       On July 17, 2013, the trial

court found that aggravated circumstances against Mother existed.

      On August 14, 2013, CYS filed petitions for the involuntary termination

of Mother’s parental rights, pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5),

(8) and (b).   On February 21, 2014, the trial court held a hearing on the

petitions. At the hearing, CYS family service worker Jennifer Donmoyer, CYS

caseworker     Sara     Blair   McIntyre,    Paternal   Grandmother,   Paternal

Grandfather, Mother, and Maternal Grandmother testified.

      On February 27, 2014, the trial court entered its order terminating

Mother’s parental rights to the Children. On March 28, 2014, Mother filed

her notices of appeal and concise statements of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).


      Mother 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?

Mother’s Brief at 16.




                                       -3-
J-S48016-14


      Our standard of review regarding orders terminating parental rights is

as follows:

      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

                                     -4-
J-S48016-14


subsection in order to affirm the termination of parental rights.”      In re

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 Mother’s parental rights, the trial court relied upon

Section 2511(a)(1) 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.

                                   * * *

     (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. § 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, filed April 29, 2014.     We conclude that competent


                                    -5-
J-S48016-14


evidence supports the trial court’s termination of Mother’s parental rights to

the Children under Sections 2511(a)(1) and (b).

      While we note the trial court’s decree does not specifically address

Section 2511(b), our review of the record reveals that it is clear from the

trial court’s accompanying memorandum that termination of Mother’s

parental rights is in the best interest of the Children and that no evidence of

a bond exists between Mother and the Children.     We have stated, “In cases

where there is no evidence of any bond between the parent and child, it is

reasonable to infer that no bond exists.” In re K.Z.S., 946 A.2d 753, 763

(Pa.Super.2008).     Moreover, Paternal Grandparents testified that the

Children are in a structured environment, and terminating Mother’s rights to

the Children would not harm them. N.T., 2/21/14, at 47, 61-63. Paternal

Grandfather testified the Children were relieved that Mother would not be in

their lives. Id. at 63-64.    With respect to the bond analysis pursuant to

Section 2511(b), our Supreme Court confirmed that, “the mere existence of

a bond or attachment of a child to a parent will not necessarily result in the

denial of a termination petition.” In re T.S.M., 71 A.3d 251, 267 (Pa.2013).

We defer to a trial court’s determination of credibility, absent an abuse of

discretion, and discern no such abuse in its finding that testimony of

Paternal Grandmother and Paternal Grandfather were credible.        See In re

M.G., 855 A.2d at 73-74.




                                     -6-
J-S48016-14


     Accordingly, on the basis of the well-analyzed discussion in the trial

court’s April 29, 2014 opinion, we affirm the decrees terminating Mother’s

parental rights to the Children under Sections 2511(a)(1), and (b), and

adopt that opinion as this Court’s own.

     Decrees affirmed.

     Judge Platt joins in this memorandum.

     Judge Donohue files a concurring memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015




                                    -7-
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     IN RE: ADOPTION OF
                       E.R. a minor child

                                                                                  ADOPTEE # 45 of 2013


                                    OPINION PURSUANT TO 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 of 2007, after allegations of an 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 of domestic violence, poor home conditions \ and the possibility that
. the family would be evicted from their apartment. 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, domestic Violence, and potential eviction. There
 were also allegations of various 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 domestic violence, truancy, lack of employment,
danger of evictions, and related drug use. On February 18th 2011, the natural mother signed a
Voluntary Entrustment Agreement, placing her children (including the above-captioned child) in




1   SpeCifically, it was alleged that one minor child had several "flea bites."

2 The Dependency petition in the case suggested that there' were a "lot of 'Puerto Ricans' in an out of the home at

all hours of the day and night."




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                                                                                             Circulated 12/09/2014 12:07 PM




                                                                                        T.,R_
   the care and custody of Northumberland County Children and Youth Services who, in turn,
   pla·ced the children in the home of the paternal grandparents, Wi-'nd

            The child was adjudicated Dependent on March 23"' 2011. The child was placed in
   foster care by the Agency. However, the placement was actually in the kinship home of ~
   T~3.                 w71t
           On June 23"' 2013, Northumberland County Children and Youth Services (the Agency)
  filed a Motion for a Finding of Aggravated Circumstances alleging aggravated circumstances
  against the natural mother in that, while her identity or whereabouts were known, she failed to
  rnaintain substantial and continuing contact with the child for a period of six months.

           On July 17th 2013, the Court found by clear and convincing evidence that the aggravated
. circumstance a!leged 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}ather 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 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 141h 2013, the Agency filed a Petition to Involuntarily Terminate the Parental
Rights of Natural Mother and Natural Father. The children had ~pent thirty-six (36) months in
the care and custody of the Agency, albeit in the home of their paternal grandmother and
grandfather.




'The Order of Adjudication and Disposition Indicates that placement was In Foster Care. The initial permanency
review order indicated "Foster C.re - Kinship."




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                            .                                       .
         On January 16th 2014, the Natural Mother filed a motion requesting the Court to direct
 the Agency to make a referral for a homestudy through the Interstate Compact. . The homestudy
                                                                >t:   '..    ,     i,"

 would presumably have been performed on the matemal 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.            /2..
                  .                                                                             ~
        During the period of time in which the children were in care, the Natural Father, _ _
 T      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
                                                                                           th
understand or questioned the plan. Natural Father did sign the same on February 16 2012.

        The caseworker testified that as of April 2011, Natural Father was not engaged in any
services. However, as of April 2013, the Natural father was "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 ineach prison." See Transcript of Proceedings, February 21" 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 Father was "very appropriate" during
visitation with the children. See Transcript of Proceedings on February 21't 2014, pg 26. He
sent the children pictures and letters, and kept in regular contact with the children. In some
lengthy discussion, the caseworker was cross examined on the availability of services for the
Natural Father while 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 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 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 that when he would be released, he would need to let us know



                                                  31
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                             specifically when he was out to become active with the full plan of what
                             he needed to do."

                             See Transcript of Proceedings from February 21 st 2014, pg 28-9.

              Natural Father's maximum sentence date was June 13th 2014. According to the
  caseworker, the NC!tural Father was up for parole several times in during the three years the
  children were in placement, he was denied each time. The caseworker testified that it was her
  belief that he was denied by virtue of his behavior in prison. During the leiter correspondence
  between the Natural Father and the caseworker, the Natural Father communicated his desire to
  be there for his children and his strong 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 of the visitation between the Natural Father and the children,
 Natural Father was entirely appropriate with the children, and the children were excited to see
 their father. 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 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 cities
 in Pennsylvania, and then moved to New York and New Jersey all during the time period that
the Children were in care. Mother made a great case at the termination hearing on February
     st
21        2014 regarding the fitness and availability of maternal 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 prior to Court on February 21$t 2014.

            Throughout the three years in placement, the kinship-foster family has provided for the
needs of the children. An example of the level of devotion to the continued permanence of the
children, is the fact that at the onset of placement, the youngest child was significantly behind in
his immunization records, the grandmother successfully got him up to date. In her testimony,
the grandmother testified as follows:




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)                   A. Well, taking care of the four children, it requires 110 percent of me. So
                         whether it's school, doctor's appointments, dentis! appointment. Three of the
                         children - well, four of them were in counseling. Three of them now remain In
                         counseling, which is sometimes weekly, every other week. Numerous
                         apPointments, basketbaJi game. We lost this one. But basketbaJi games,
                         events, activities. You know, to me, I can - that's a full-time job basically.

     See Transcript of Proceedings on February 21't 2014, pg 57.

            At another juncture in the case, the grandmother proffered testimony that was very
     indicative of the effects on ALL children of removal from the home.

                    Q:      .. , what were they like when they first came to live wi!h you three years
                            ago?

                    A:      J-    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 of always kept a bag kind
                            of packed 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 th at.
                                      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
                            now we were getting things that were consistent and structure and
                            attention, and - you know, so -

    See Transcript from Proceedihqs on February 21 st 2014, pg 58-9.

           Of note, at the termination prcceeding, 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 !ook a while. She grew and opened up, and now she's actually on
    a good working relationship with me to 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 they just need to find somewhere to be, and she's fine with everything that the agency has
    been trying !o do for her." See Transcript of Proceedinas from February 21 st 2014, pg. 22.



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              The Agency had discerned that the kinship-foster family was willing to be permanent
      resources for two of the four children, the daughter of the grandmothef, was willing to be a
      permanent resource for two of the 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. [A.R] just wants to be finished with Children and
                            Youth.' Adopt me. Do whatever you got to do. I just 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. 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'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 he just kind of goes along
                           with the crowd because of his age, I would 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 of that bond.

           The Court entered final orders of termination following the hearing, both parents appeal.

Rule of Law


4
    The grandmother Is actually the step-grandmother ~:;:e children, as she is married to the paternal grandfather.
Thestep-grandmother's daughter (~I~e other permanent resource. She is not biologkal family,
however, she has visited with the kln~mJly at every holiday and the children are very familiar with the
daughter'S family. As such, it is this Court's opinion that the daughter's family Is within the definition of a "kinship"
placement.




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          The grounds for involuntary termination 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 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 agreeme.nt 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.

See 23 Pa C.SA §2511.

        Subsection (b) of the 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 of the child. The rights of a parent shall not be terminated solely onthe basis of




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  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 subseqIJent to the giving of notice of the
 filing of the 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 of Michael J.C .. 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 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 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 concept that argues against termination,
 rather than fosters it." In re P.A.8., 570 A,2d at 525. Moreover, pursuant to section 2511(a)(5),
a court "must examine the status of the natural parental bond to consider whether 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 of the Agency, supplied over a realistic timeframe.
In order to terminate under section 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 or the
availability or efficacy of potential services. See In re K.Z.S., 946 A,2d 753,759 CPa. Super.
2008). The Superior Court provided a detailed analysis of the termination ground listed at 23
Pa. C.S.A. §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 re Adoption of SP., 47 A.3d 817 CPa.
2012). Each termination of parental rights case Involving an incarcerated parent must be




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   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., 944 A.2d 79 (Pa. Super. 2008). Incarceration does
  not relieve a parent of the duty to exercise reasonable firmness in maintaining a secure 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 of his child is converted, upon the failure to fulfill parental dulies, to the
  child's right to have proper parenting and fulfillment of his or her potential in a permanent,
  healthy, safe enVironment; moreover, the parent wishing to reestablish her parental
  responsibilities bears the burden of proof relative to post-abandonment contact. See In ra
  C.L. G., 956 A.2d 999 (Pa. Super. 2008). When a parent is Incarcerated, the focus in
 termination of parental rights action is on whether the 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 inc'arcerated parent wrote letters, forwarded some child support, and
 sent gifts to the child, the Court found that these actions did not indicate a serious intent to re-
 cultivate a parent-child relationship and a willingness and capacity to undertake a parental role,
 and thus termination was appropriate. See §:A In re D.J.S., 737 A.2d 283 CPa. 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 to follow through on inquires
with prison officials and county social workers. See Id.

 Discussion:

        As to Natural Father the 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 father who is striving to be a parent,
despite being noticeably absent from the lives of his children.

        However, Father has been incarcerated for over three years. His maximum sentence
date is June 2014. He was not granted parole despite his requests and application for it. As
noted above, the Court will not put a child's life on hold and await a parent who is fit, willing, and




                                                    37
                                                                                          Circulated 12/09/2014 12:07 PM


                                                                                      "
)     able. Father would most likely riot 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 re-
      integrate and the hardships associated therewith, this Court is unwilling to force the children 10
      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 of the children. This kinship permanent placement
     will permit, albeit on Father'siniliative 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
     Court will not tum a blind eye to the practical considerations of the 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 over six (6) months. This Court cannot fathom the lack of a desire 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 of the children as to Natural Mother. In
    addition, by virtue of the finding of aggravated Circumstances, the natural mother has satisfied
    the statutory provisions Which allow 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 (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 that termination of the 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, undoubtedly serve the children's best interests.


                                                                          BY THE COURT:



                                                                          Wm. Harvey Wiest, Judge



                                                        38
                                                                                                   Circulated 12/09/2014 12:07 PM




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                                                                              ADOPTEE # 46 of 2013


                                    OPINION PURSUANT TO Pa.RAP. 1925(a)

    Factual and Procedural Background

             The family 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 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 of domestic violence, poor home conditions \ and the possibility that
    the family would be evicted from their apartment. 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, domestic violence, and potential eviction. There
were also allegations of various. unidentified individuals who frequented the home 2, 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 domestic violence, truancy, lack of employment,
danger of evictions, and related drug use, On February 18th 2011, the natural mother signed a
Voluntary Entrustment Agreement, placing her children (including the above-<:aptioned child) in




1   Specifically, It was alleged that one minor child had several "flea bites."

, The Dependency petition in the case suggested that there were a "lot of 'Puerto Ricans' in an out of the home at
all hours of the day and night."



                                                                 39
                                                                                               Circulated 12/09/2014 12:07 PM




  the care and custody of Northumberland County Children and Youth Services who, in turn,
  placed the children in the home of the paternal grandparents, William and Theolo Rivera.

           The child was adjudicated Dependent on March 23,d 2011. The child was placed in                       LA!('f.-
 foster care by the Agency. However, the placement was actually in the kinship home of ~
 --..
          On June 23rd 2013, Northumberland County Children and Youth Services (the Agency)
 filed a Motion for a Finding of Aggravated 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 1ih 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 or completed. He did communicate with the
children through letiers. 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 filed a Petition to Involuntarily Terminate the Parental
Rights of Natural Mother and Natural Father. The children had spent thirty-six (36) months in
the care and custody of the Agency, albeit in the home of their paternal grandmother and
grandfather.




'The Order of Adjudication and DispOSition indicates that placement was In Foster Care. The initial permanency
review order indicated "Foster Care - Kinship."



                                                          40
                                                                                    Circulated 12/09/2014 12:07 PM




         On January 161h 2014, the Natural Mother filed 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.

        On February 21'12014 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 of time 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 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
                                                                                    lh
understand or questioned the plan. Natural Father did sign the same on February 16 2012.

        The caseworker testified that as of April 2011, Natural Father was not engaged in any
services. However, as of April 2013, the Natural father was "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 of Proceedings. February 21 st 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 Father was "very appropriate" during
visitation with the children. See Transcript of Proceedings on February 21 st 2014, pg 26.     He
sent the children pictures and letters, and kept in regular contact with the children. In some
lengthy discussion, the caseworker was cross examined on the availability of services for the
Natural Father while 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 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 know what is in
                      each one because il changes from place to place or even month 10
                      month. So I think that was, in turn, why il was nolspelled out as specific
                      and said that when he would be released, he would need to let us know
                                                ··41                            .
                                                                                      Circulated 12/09/2014 12:07 PM




                            specifically when he was out to become active with the full plan of what
                            he needed to do."

                            See Transcript of Proceedings from February 21 s1 2014, pg 28-9.

              Natural Father's maximum sentence date was June 13th 2014. According to the
 caseworker, the Natural Father was up for parole several times in during the three years the
 children were in placement, he was denied each time. The caseworker testified that it was her
 belief that he was denied by virtue of his 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 strong desire that the children not be adopted. The caseworker
 testified that she received leiters from the Natural Father approximately monthly. She also
 testified that during her supervision of the visitation between the Natural Father and the children,
 Natural Father was entirely appropriate wilh the children, and the children were excited 10 see
 their father. 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 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 cities
in Pennsylvania, and then moved to New York and New Jersey ali during the time period that
the children were in care. Mother made a great case at the termination hearing on February
     st
21        2014 regarding the fitness and availability of maternal 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 prior to Court on February 21 st 2014.

            Throughout the three years in placement, the kinship-foster family has provided for the
needs of the children. An example of the level of devotion to the continued permanence of the
children, is the fact that at the onset of placement, the youngest child was Significantly behind in
his immunization records, the grandmother successfully got him up to date. In her testimony,
the grandmother testified as follows:




                                                      42
                                                                                       Circulated 12/09/2014 12:07 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 of the
                     children - well, four of them were in counseling, Three of them 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 of Proceedings on February 21 st 2014, pg 57.

        At another juncture in the case, the grandmother proffered testimony that was very
 indicative of the 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. They was very
                        interwov.en with one another. They always kind of always kept a bag kind
                        of packed not knowing what was gping 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 thebeginning, 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, so -

See Transcript from 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 a while. She grew and opened up, and now she's actually on
a good working relationship with me to 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 they just need to find somewhere to be, and she's fine with everything that the agency has
been trying to do for her." See Transcript of Proceedings from February 21 st 2014, pg. 22,
                                                   ~


                                                       43
                                                                                                          Circulated 12/09/2014 12:07 PM




)

                The Agency had discerned that the kinship-foster family was willing to be permanent
                                                                                             4
        resources for two of the four children, the daughter of the grandmother , was willing to be a
        permanent resource for two of the children. The kinship-foster family and the daughter's family
        lived a reasonable distance from each other, which would facilitate continued contact and
        interacti on 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. fAR] just wants to be finished with Children and
                             Youth. Adopt me. Do whatever you got to do. I just want io be finished.
                             [E.R] pretty much goes along with [AR.J. She has been the mother for them
                             when there wasn't really wasn't a mother figure there. So [AR] kind of feels
                             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 [A.R.] 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 he just kind of goes along
                            with the crowd because of his age, IwoLJld 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 of that bond.

              The Court entered final orders of termination following the hearing, both parents appeal.

    Rule of Law



    4The grandmother Is actually the step-grandmother forthe children, as she Is married to the paternal grandfather.
    The step-grandmother's daugh~i ' .           5iiI   T; the other permanent resource. She Is not biological family,
    however, she has visited with the kinship-foster family at every holiday and the children are very familiar with the
    daughter's family. As such, It is this Court's opinion that the daughter's family is within the definition of a "kinship"
    placement.
                                                                   44
                                                                                     Circulated 12/09/2014 12:07 PM




         The grounds for involuntary termination 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 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 n~cessary 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.




        (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.

See 23 Pa C.S.A. §2511.

       Subsection (b) of the 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 of the child. The rights of a parent shall not be terminated solely on the basis of

                                                  , 45
                                                                                           Circulated 12/09/2014 12:07 PM




)

     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.

             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 of Michael J.C.. 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., 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 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 concept that argues against termination,
    rather than fosters it" In re P.A.B., 570 A.2d at 525. Moreover, pursuant to section 2511(a)(5),
    a court "must examine the status of the natural parental bond to consider whether 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 of the Agency, supplied over a realistic timeframe.
    In order to terminate under section 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 or the
    availability or efficacy of potential services. See In re K.l.S., 946 A2d 753, 759 (Pa. Super.
    2008). The Superior Court provided a detailed analysis of the 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 re Adoption of SP., 47 A.3d 817 (Pa.
    2012). Each termination of parental rights case involving an incarcerated parent must be

                                                         .·.46
                                                                                           Circulated 12/09/2014 12:07 PM




      evaluated on its own facts, bearing In mh,d 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.   ~    In ra E.A.P., 944 A.2d 79 (Pa. Super. 2008). Incarceration does
      not relieve a parent 'of the duty to exercise reasonable firmness in maintaining a secure bond
     with the child. In the Inferasto' 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 of his or her potential in a permanent,
     healthy, safe environment; moreover, the parent wishing to reestablish her parental
     responsibilities bears the burden of proof relative 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 of parental rights action is on whether the 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 leiters, forwarded some child support, and
)
     sent gifts to the child, the Court found that these actions did not indicate a serious intent to re-
     cultivate a parent-child relationship and a willingness and capacity to undertake a parental role,
     and thus termination was appropriate. See M In;-e 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 to follow through on inquires
    with prison officials and county social workers. See Id.

    Discussion:

            As to Natural Father the 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 father who is striving to be a parent,
    despite being noticeably absent from the lives of his children.

            However, Father has been incarcerated for over three years. His maximum sentence
    date is June 2014. He was not granted parole despite his requests and application for it. As
    noted above, the Court will no! put a child's life on hold and await a parent Who is fit, willing, and
                                                         47
                                                                                        Circulated 12/09/2014 12:07 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 re-
 integrate 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 of the children. This kinship permanent placernent
 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 a severance from a relationship with a natural parent has little effect in this case. This
 Court will not turn a blind eye to th~ practical considerations of the 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. K~owing, 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 over six (f)) months. This Court cannot fathom the lack of a desire 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 of the finding of aggravated circumstances, the natural mother has satisfied
the statutory provisions which allow 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
Con~nue to exist (lack of permanent living arrangements) and the facl that Mother has exhibited

little interest in parenting her children until the eleventh hour.


Conclusion
         This Court hereby concludes that termination of the. parental rights of both the Natural
Father and the Natural Molher 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:

                                                                                    \     1..-'        .
                                                                         \.'G)~
                                                                      Wm. Harvey Wiest, Judge
                                                   ,
                                                  .'.
                                                        48
                                                                                                 Circulated 12/09/2014 12:07 PM

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                                                                                                    "'rn
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                                       OF NORTHUMBERLAND COUNTY, PA
                                                                                                    ;:go      'f?
    IN RE: ADOPTION OF                                                                                        I':>
                     I.R. a minor child                                       ORPHAN'S COURT DIVISION"'>

                                                                              ADOPTEE # 47 of 2013


                                    OPINION PURSUANT TO 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 of 2007, after allegations of an 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 of domestic violence, poor home conditions 1, and the possibility that
    the family would be evicted from their apartment. 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, domestic violence, and potential eviction. There
were also allegations of various 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 domestic violence, truancy, lack of employment,
danger of evictions, and related drug use, On February 18th 2011, the natural mother signed a
Voluntary Entrustment Agreement, placing her children (including the above-captioned child) in




1   Specifically, it was alleged that one minor child had several "flea bites."

2 The   Dependency petition in the case suggested that there were a "lot of 'Puerto Ricans' in an out of the home at
all hours of the day and night."




                                                               49
                                                                                             Circulated 12/09/2014 12:07 PM




     the care and custody of Northumberland County Children and Youth Services who, in turn,
     placed the children in the home of the paternal grandparents,        ~and          T..,R"
             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
                    ,
                                                                                                     0_
             On June 23'd 2013, Northumberland County Children and Youth Services (the Agency)
     filed a Motion for a Finding of Aggravated Circumstances alieging 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 17th 2013, the Court found by clear and convincing evidence that the aggravated
    circumstance alieged 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 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 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 141h 2013, the Agency filed a Petition to Involuntarily Terminate the Parental
Rights of Natural Mother and Natural Father. The children had spent thirty-six (36) months in
the care and custody of the Agency, albeit in the home of their paternal grandmother and
grandfather.




,
 The Order of Adjudication and Disposition Indicates that placement was in Foster Care. The initial permanency
review order inellcated "Foster Care - Kinship."




                                                         50
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)            . On·January 16th 2014, the Natural Mother filed a motion requesting 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 matemal grandmother, who resided In New
      York. The C!lurt 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 of time in which the children were in care, the Natural Father,       till • (\) ~
    •••
      It;w'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
                                                                                                th
     understand or questioned the plan. Natural Father did sign the same on February 16 2012.

            The caseworker testified that as of April 2011, Natural Father was not engaged In any
    services. However, as of April 2013, the Natural father was "taking as many classes that w[ere]
    offered at SCI·Dalias. Due to each·facility being different, they do not _. they do not have the
    same things in each prison." See Transcript of Proceedings. February 21'1 2014, pg 14. While
    in prison, Natural Father had regUlar visitation with the children, The children were transported
    by their grandmother, the kin"hip-fo"ter parent. Natural Father was "very appropriate" during
    visitation with the children. See Transcript of Proceedings on February 21 st 2014, pg 26. He
    sent the children pictures and letters, and kept in regular contact with the children. In some
    lengthy discussion, the caseworker was cross examined on the availability of services for the
    Natural Father while he was incarcerated. Specifically:

                  "Q:     All right. Without looking at. any orders, you dori't know what you can say
                          what he was court ordered to do, to participatE) in. Is that a fair
                          statement?

                  A:      Tila! is fair, And due to being incarcerated, like I said earlier, not each
                          facilfty 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   110t   spelled out as specific
                         and said that when he would be released, he would need to let us know



                                                      51
                                                                                       Circulated 12/09/2014 12:07 PM




)
                             specifically when he was out to become active with the full plan of what
                              he needed to do,"

                             See Transcript of Proceedings from February '21 st 2014, pg 28-9,     '

              Natural Father~s maximum sentence date Was June 13'h 2014" According to the
      caseworker, the Natural Father was up for parole several times in during the three years the
      children were in placement, he was denied each time. The caseworker testified that it was her
      belief that he was denied by virtue of his behavior in prison. During the letter correspondence
      between the Natural Fath~r and the caseworker, the Natural Father communicated his desire to
     be there for his children and his strong 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 of the visitation between the Natural Father and the children,
     Natural Father was entirely appropriate with the children, and the children were excited to see
     their father. 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 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 0[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 New York and New Jersey all during the time period that
    the children were in care, Mother made a great case at the termination hearing on February
       51
    21 2014 regarding the fitness and availability of maternal 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 prior to Court on February 21" 2014.

            Throughout the three years in placement, the kinship-foster family has provided for the
    needs ofthe children, An example of the level of devotion to the continued permanence of the
    children, is the fact that at the onset of placement, the ,youngest child was significantly behind in
    his immunization records, the grandmother successfully got him up to date, In her testimony,
    the grandmother testified as follows:




                                                       52
                                                                                     Circulated 12/09/2014 12:07 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 of the
                      children - well, four of them were in counseling. Three of them 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 of Proceedings on February 21" 2014, pg 57.

         At another juncture in the case, the grandmother proffered testimony that was very
 indicative of the 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:       1- I think -I guess I would say they were a little afraid. They always kind
                         of stayed together. Like they kind pf needed each other. They was very
                         interwoven with one another. They always kind of always kept a bag kind
                         of packed not knowing what was going to happen and stuff and, you
                        .know, just always ,concem.ed about what'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 b~ 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, so -

See Transcript from 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 a while. She grew and opened up, and now she's actually on
a good working relationship with me to a point where She'll discuss things. She is vep}
comfortable in the home. She's actually told me she has come to a means of understanding
that they just need to find somewhere to be, and she's fine with everything that the agency has
been trying to do for her." See Transcript of Proceedings from February 21 st 2014, pg. 22,



                                                    53
                                                                                                    Circulated 12/09/2014 12:07 PM




              The Agency had discerned that the kinship-foster family was willing                to be permanent
      resources for two of the four children, the daughter olthe grandmothe(l, was willing to be a
     permanent resource for two of the 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, [A.R.] just wants to be finished with Children and
                          Youth. Adopt me. Do whatever you got to do. I just want to be finished.
                          fE.R.] pretty much goes along with [A.R.]. She has been the mother for them
                          when there wasn't really wasn't a mother figure there. So [AR.] kind of feels
                          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'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 he just kind of goes along
                          with the crowd because of his age, I would 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 of that bond.

            The Court entered final orders of termination following the hearing, both parents appeal.

Rule of Law



4   The grandmother is actua~ tIt.e step-grandmother for the children, as she is married to the paternal grandfather.
The step-grandmother's daQRrer (~iS the other permanent resource. She is not biological family,
however, she has visited with the kinship-foster family at every holiday and the children are very fanniliar with the
daughter's family. As such, it is this Court's opinion that the daughter's family is within the definition of a "kinship"
placement.




                                                             54
                                                                                    Circulated 12/09/2014 12:07 PM




          The grounds for involuntary termination 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.S.A. §2S11(a)

         (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.




        (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.

See 23 Pa C.SA §2511.

        Subsection (b) of the 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 of the child. The rights of a parent shall not be terminated solely on the basis of




                                                   55
                                                                                        Circulated 12/09/2014 12:07 PM




)     environmental factors such as inadequate housing, fumishings, 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)(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 of notice of the
      filing of the 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 of Michael J.G., 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 PAB., 570 A.2d 522, 525 CPa.
     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 actin 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 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 concept that argues against termination,
     rather than fosters it." In re PAB., 570 A.2d at 525. Moreover, pursuant to section 2511 (a)(5),
     a court "must examine the status of the natural parental bond to consider whether terminating
     the natural parents' rights would destroy something inexistence 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 of the Agency, supplied over a realistic timeframe.
    In order to terminate under section 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 or the
    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 detai/ed analysis of the termination ground listed al23
    Pa. C.S.A. §2511 (a)(8) in the recent case offn 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      fa Adoption of SF,    47 A.3d 817 (Pa.
    2012). Each termination of parental rights case Involving an incarcerated parent must be



                                                        56
                                                                                          Circulated 12/09/2014 12:07 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., 944 A.2d 79 (Pa. Super. 2008). Incarceration does
      not relieve a parent of the duty to exercise reasonable firmness In maintaining a secure bond
      with the chi/d. In the Interest of AP., 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 of his or her potential In a permanent,
      healthy, safe environment; moreover, the parent wishing to reestablish her parental
      responsibilities bears the burden of proof relative 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 of parental rights action Is on whether the 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 some child support, and
     sent gifts to the child, the Court found that these actions did not indicate a serious intent to re-
     CUltivate a parent-child relationship and a Willingness and capacity to undertake a parental role,
     and thus termination was appropriate. See M In re 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 to follow through on inquires
    with prison officials and county social workers. See Id.

    Discussion:

            As to Natural Father the 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 hH does
    "everything he can" while incarcerated. Clearly we have a father who is striving to be a parent,
    despite being noticeably absent from the lives of his children.

            However, Father has been incarcerated for over three years. His maximum sentence
    date is June 2014. He was not granted parole despite his requests and application for it. As
    noted above, the Court will not put a child's life on hold and await a parent who is fit, willing, and
                                                       9-

                                                        57
                                                                                        Circulated 12/09/2014 12:07 PM




 able. Father would most likely not be fii and willing to provide care and control upon his release.
 As this Court is very familiar with tile process by which released ex-convicts attempt to re-
 integrate 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
 patemal grandfather and his step-daughter of the children. This kinship permanent 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 a severance from a relationship with a natural parent has little effect in this case. This
 Court will not tum a blind eye to the practical considerations of the 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.    K~owing,   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 over six (6) months. This Court cannot fathom the lack of a desire 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 of the children as to Natural Mother. In
addition, by virtue of the finding of aggravated circumstances, the natural mother has satisfied
the statutory provisions which allow 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 (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 that termination of the 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, undoubtedly serve the children's best interests.

                                                                       BY THE COURT:


                                                                         \,....c\~~
                                                                       Wm. Harvey Wiest. Judge



                                                    58
                                                                                                            Circulated 12/09/2014 12:07 PM
t'




                                                                                                                  ...,
     )                                                                                                         (/)?
                                              IN THE COURT OF COMMON PLEAS                                     c:::t;g
                                              OF NORTHUMBERLAND COUNTY, PA                                     @ii;
                                                                                                                c:::f"l
           IN RE: ADOPTION OF                                                                                   ~a,
                            A. M. a minor child                                       ORPHAN'S COURT DIVI~'e'
                                                                                                                 ):>f"l
                                                                                      ADOPTEE # 48 of 2013           P


                                            OPINION PURSUANT TO Pa.R.A.P.1925(a)

          Faqtual and Procedural Background

                    The family 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 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 of domestic violence, poor home conditions1, and the possibility that
          the family would be evicted from their apartment. After tha 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, domestic violence, and potential eviction. There
         were also allegations of various unidentified individuals who frequented the home!. 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
         Northumberlend County Children and youth Services, during their Involvement through
         February 2011, the family struggled with domestic violence, truancy, lack of employment,
         danger of evictions, and related drug use. On February 18111 2011, the natural mother signed a
         Voluntary Entrustment Agreement, placing her children (including the abcve-captloned child) in




         • speclfic,ally. it was alleged that one minor dliid had several #flea bites.·

         • The Dependency petition In the case sUllSesled that th~re were a "lot of 'Puerto Ricans' In an out of the hOme at
         all hours of the day and nisht."




                                                                       59
    ,                                                                                                       Circulated 12/09/2014 12:07 PM




               the care and custody of Northumberland County Children and ~th servl~o~ tum,
               placed the children In the home of the paternal grandparents, ' R                 nd . . . . . . . . .

                       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~

              ~·Prrz
                      On June 23'" 2013, Northumberland County ChUdren and youth services (the Agency)
              filed a Motion for a Finding of Aggravated 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 wfth the child for a period of six months.

                      On July 17lh 2013, the Court found by clear and convincing evidence that the aggravated
              circumstance alleged ellisted as against the natural mother. The Court further ordered that NO
              efforts at reunification between the child and. the Natural Mother nead be made.

                      Consistent throughout the review period, thliltls the Hme during which the children were
             In care, the parents maintained Hltle progress and efforts. Natural father wes incarcerated (and
             continues to be) during the entire time period in which his children were In the Ageney'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 pertlcipate in parenting classes, find
             gainful ernploymen~ and obtain housing, was minimally compliant. During the early part of the
             case, Natural Mother had visitation with the children, but from approldmately 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 14111 2013, the Agency filed a Petition to Involuntarily Terminate the Parental
             Rights of Natura! Mother and Natural Father. The children had spent thirty-six (36) months In
            the care and custody of the Agency, albeit In the home of their peternal grandmother and
            grandfather.




            3 TheOrder of Adjudication and DlspositiO<llndlcates that placement was In Foster Care. The Initial permanency
            review order indicated "Foster Care - Kinship.·




                                                                     60
lf2D14 4:18:D3 PM                                      NORTHUMBERLAND COUNTY                                       lnst.# 2n140Fi4.?n. P~n",,? nf 111
                                                                                     Circulated 12/09/2014 12:07 PM




        On January 16'" 2014, the Natural Mother filed a motion requesting the Court to direct
 the Agency to make a referral for a homestudy through the Interstate Compact. The homesludy
 would presumably have been perfonned on the maternal grandmother, who resided In New
 York. The Court denied the same.

        On February 21 0t 2014 at the Tenninatlon Proceeding, the Natural Mother moved, in
 open court and on the, record, for the relief requested in the motion. The Court dertled the
 same, holding that the matter was better raisad in proceedings before Dependency Court.

        Ouring the period of time in which the children were In care, the Natural Father, til 14     rJ f-
J'      was Incarcerated.   During his incarceration. he wrote several leiters which were
received and reviewed by the caseworkers at the Agency, the caseworkers testified that they
had written him back conceming the children. The Agency provided him with a copy of the
Child's Permanency Plan, and never recaived any indication thet the Natural Father did not
understand or questioned the plan. Natural Father did sign the same on February 16'" 2012.

       The caseworker testified that as of April 2011 , Natural Father was not engaged in any
services. However, as of April 2013, the Natural father was 'taking as many classes that w(ere}
offered at SC I-Oallas. Due to each facility being different, they do not - they do not have the
same things in each prison.' See TranscriPt of Proceedings. februarv 21 st 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 Father was "very appropriate" during
visitation with the children. ~ Trnqsctfpt ofProceet:!jngs on February 21" 2Qt4, pg 26. He
sent the children pictures and letters, and kept in regular contact with the children. In some
lengthy discussion, the caseworker was cross examined on the availability of services for the
Natural Father while he was incarcerated. Specifically:

              "Q:     All right Without looking at any orders, you don' know what 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 eariler, 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 tum, why It was not spelled out as speCific
                      and said that when he would be released, he would need to let us know




                                                 61
                                                                                                    Circulated 12/09/2014 12:07 PM




                                       'specifically when he was out to become active with the full plan of what
                                       he needed to do.'

                                       ~ TranscripJ of Proceedings from EebruaJy 218/ 2014, pg 28-9.

                        Natural Father's maxfmum sentence date was June 13111 2014. Acoording to the
                caseworker, the Natural Father was up for parole several limes In during the th~ years the
                children were in placement, he was denied each time. The caseworker testified that it was her
                belief that he was denied by virtue of his behavior In prison. During the leiter ccrrespondence
                between the Natural Father and the caseworker, the Naturel Father communicated his desire to
                be there for his children and his strong 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 supalVlslon of the visitation between the Natural Father and the children,
                Natural Father was entirely appropriate with the children, ,and Ihe children were excited to see
               Ihelr father. Natural Father would mail some minor artwork, portraits, and other small gifts and
               keepsakes to the children whenever he could acqull'l' 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 cities
               In Pennsylvania, and then moved to New York and New Jersey all during the time period that
               the children were in, care. Mother made a great case at the tennlnation hearing on February
               21" 2014 regarding the frtness and availability of maternal grandmother as a resource home for
               the children. During the time of her request, Mother lived with Ihe maternal grandmother In New
               York. Appal'l'ntly, Mother had requested that the Agency pannlt the children to live with her In
              New York several times prior to Court on February 21" 2014.

                      Throughout the three years In placement, the kinship-foster family has provided for the
              needs of the children. An example of the level of devotion to the continued pannanence of the
              children, is the fact ttlat at the onset of placement, the youngest child was significantly behind in
              his Immunization records. the grandmother successfully go! him up to dale. In her testimony,
              the grandmother testified as follows:




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                               A. Well, taking care of the four children, It requires 110 percent of me. So
                                   whether It's school, doctor', appointments, dentist appointment. Three of the
                                   children - weil, four of them were in counseling. lllree of them now remain In
                                   counseling, which Is sometlme& weekly, every other week. Numerous
                                   appointments, basketball game. We lost this one. But basketball game&,
                                   events, activities. You know, to me, I can - that's a full-time job baslcally.

                Sge Transcript of Proceedings on February 2101 2014, pg 57.

                       At another juncture in the case, the grandmother proffered testimony tllat was very
               indicative of the 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. They was very
                                      Interwoven with one another. They always kind of always kept a bag kind
                                      of packed not knowing what was going      to happen and stuff and, you
                                      know, just always concemed about what's for de&sert, 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 bH afraid,
                                      not sure. You know, but Ihey fell happy to be with us because here and
                                     now we were getting things that were consistent and structure and
                                     attention, and - you know, so-

              ~ Transcript from Proceedings on February 2101 2Q1:f. pg 56-9.

                      Of note, at the termination proceeding, the permanency caseworker testified as follows
              regarding the aides! 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 now she's actually on
              a good working relationship with me to a point where she'll discuss things. She is very
              oomfortsble In the home. She's actually told me she has come to a means of understanding
              that they just need to find somewhere to be, and she's fine with everything that the agency has
              been trying to do for her.' ~ Transclfpj of PfPCfJedlnqs from February 21" 2014, pg. 22.
                                                                ;;




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                         The Agency had dlscemed that the kinship-foster family was willing to be permanent
                resources for two of the four children, the daughter of the grandmother" was willing to be a
                permanent resource for two of the 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 charactel'ized their relative reactions:

                                  A. AU different reactions. [A.R.]lust wants to be finished with Children and
                                       Youth. Adopt me. Do whatever you got to do. I just want to be finished.
                                       [f.R] pretty much goes along with [A.R.]. She has been the mother for them
                                      when there wasn't really wasn't a mother figure there. So [A.R.] kind of feels
                                      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.J will do what {A.R.] kind of say.
                                      They've been trained that way.
                                      Whereas, the two younger ones - [A.M.I 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 he just kind of goes along
                                      with the croWd bel:ause of hIs age, I would 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 of that bond.

                       The Court entered final orders of termination following the haaring, both parents appeal.

              Rule of Law


              .                                          .
               The grandmother Is a<:tu.lIv the steP1lfll ndmQ,er for the children, as she Is marTled to the paternal grandfather.
              The step-grandmotner's daughter"                    .) Is the other permanent resource. She is not biological famllv,
              however, she has visited with the klnshlp·roster family at every holiday and the children are very familiar with the
              daughter's family. As such, It Is thl$ Court's opinion that the daughter's famllv is within the dennltlon of a "kinship"
              placement.




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                        The grounds for involuntary termination of parental rights Bf$ 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 feast six months lmmediately
               preceding the filing of the petition either has evidenced a seWed 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 ormental 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 paf$nt 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
               thos Et conditions within a reasonable period of time, the services or assistence 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.



                      (S) 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 tenmlnation of parental rights woUld best serve the needs and welfare of the child •

              .su 23 Pa C.SA §2511.
                      Subsection (b) of the 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 of the child. The rights of a parent Shall not be terminated solely on the basis of
                                                                7




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                 environmental factors such as inadequate housing, fumishings, income, clothing and medical
                 care If found to be beyond the control of the parent With respect to any petition flied pursuant to
                 subsectIon (a)(1), (6) or (8), the court shaD not consider anY efforts by the parent to remedy the
                 conditions described therein which are first Inll!ated subsequant to the giving of notice of the
                 filing of the 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.' IJ1.Bf1.
                 ~       561 A.2d 762, 770 (Pa Super. 1989); In I!! Adqptlon otM!chae1 J.C.. 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, parentallovs.' In I!! PAB., 570 A.2d 522, 525 (Pa.
                Super 1990); In I!! J.vt. 578 A.2d 952, 957 (Pa. Super. 1990). "It is universally agread that the
                bond of '539 pal!!ntal affection is unique and irreplaceable. When parents act In accordance
                with the naturel bonds of parental affection, preservation of the parent-child bond Is pr/me=facle
                in the best Interest of the child and the state has no justification to terminate that bond: !lJ..l!.
                ~,     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 fO$ters II: In I!! PAB., 570 A.2d at 526. Moreover, p~uant to section 2511 (a)(6),
                a court "must examine the status of the natural parentel bond to consider whether terminating
                the natural parents' rights would destroy somathing In existence thet Is necessary and
                beneflcial.· lsi.
                         Subsection (e)(8) seta 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 elCisl.
               despite the reasonable and good fallh efforts of the Agency. supplied over a realistic timeframe.
               In order to terminate under sectlon 2511{a)(8), the Court Is not required to evaluate e parent's
               .current 'NIlUngness or ability to remedy the conditions that Initially caused placement or the
               availability or efficacy of potential services. §f!! In I!! ~ZS.. 946 A.2d 753, 769 (Pa. Super.
               2008). The Superior Court provided a detailed analySis of the termination ground listed at 23
               Pa. C.S.A, §2511{a)(8) In the recent case of In lJ!   p.U:, 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.      ~ In   re Adoption of S.P.. 47 A,3d 817 (Pa.
              2012). Each termination of parentsl rights case involving an Incarcerated parent must be




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  evaluated on Its own faels, 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 parsnt Is doing what he Is
  supposed to do In prison.   ~la I!I     EA.P.. 944 A.2d 79 (Pa. Super. 2008). Incarceration does
  not relieve a parent of the duty to exercise reasonable flnnness In maintaining a secure bond
  with the child. In thg Interest of A.P., 693 A.2d 240 (Pa SUper. 1997). In tenninaUon of
  parental rights cases Involving an Incarcerated parent, a parent's basic constitutional right to the
  custody and rearing of his chUd Is converted, upon the failure to fulfill parental duties, to the
  child's right to have proper parenting and fulfillment of his or her potential in a permanent,
 healthy, safe environment; moreover, the parent wishing to reestablish her parental
 responslbllHles bears the burden of proof relative to post-abandonment contact §§g,ln fa
 Q.L.£, 966 A.2d 999 (Pa. Super. 2008). When a parent Is Incarcerated, the focus in
 termination of parental rights action Is on Whether the parent utilIZed resources available while in
 prison to maintain a relationship with his child.   In"      B.N. M" 856 A.2d 847 (Pa. Super. 2004).


         In a case Where the incarcerated parent wrote IetIeN, forwarded some child support, and
 sent gifts to the child, the COUrt found that these actions did not Indicate a serious intent to re-
 cultivate a parent-4lild relationship and a Willlngneas and capacity to undertake a parental role,
 and thus termination wasappropriate.      ~ Min         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 to follow through on inquirea
with prison offldals and county social workers. fiB.!JJ.

P!acusslon:

        As to Natural Father the decillion reached has not bean dona so lightly. Natural Father
Indicates a Willingness and a des.ire to reunffy with his children. In addition, his children express
a desire to reunify wHh him. He is appropriate with them during visHs, and conSistently striVes to
be a presence In their lives despHe his Incarceration. Tile caseworker testlflecf that he does
'everything he can" while Incarcerated. Clearly we hava a father who is striVing to be a parent,
despHe being noticeably absent from the lives of his children.

        However, Father has been incarcerated for over three years. His maximum sentence
date Is June 2014. He was not granted parole despite his requests and application for it. As
noted above, the COUrt will not put a child's life on hold and await a parent Who Is fll, willing, and




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 able. Father would most likely not be fit and willing to provide care and control upon his release.
 At. this Court is very familiar with the process by which released ex-convicts attempt to re-
 Integrate and the hardships associated therewith, thIs Court Is unwilling to force the children to
 waH 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-claughter of the children. thIs kinship permanent placement
 will pennH, 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 reletionshlp with a natural parent hes litUe effect In this case. ThIs
Court will not ttJm a blind eye to the practical considerations of the children's age and the fact
that they acknowledge and love theIr rather. There will be continued contact with the NattJral
Father and the children, and it wil! likely OCCUr without this Court's intervention. Knowing, as we
do, that that will be an easier Pf'OCG8S as the children are placed with kin makes this Court's
deolslon that much more bearable.
        As to the Natural Mother, the Court found aggravated citcumstances 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 Court cannot fathom the lack of a desire to corltact
the children during that time. It, coupled with the troubling transiency, causes this Court to find
that termination would certainly suit the best intarests of the children as to Natural Mother. In
addition, by virtue of the flndlng of aggravated circumstances, the natural mother has satisfied
the statutory provisions which allow 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 (lack of permanent IMng 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 of the parentallighls of both the Natural
Father and the Natural Mother as to the minor children Is required by the statutory provisions
governing the S8me and would, undoubtedly serve the children's best Interests.

                                                                     BY THE COURT:

                                                                       ~.\~~
                                                                     Wm. Harvey Wiest, Judge




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