J-S50003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.D.M. A/K/A                   IN THE SUPERIOR COURT OF
S.H., A MINOR                                            PENNSYLVANIA

APPEAL OF: L.V.M.

                                                       No. 222 MDA 2016


                 Appeal from the Decree Entered January 4, 2016
          in the Court of Common Pleas of Tioga County Orphans' Court
                               at No(s): 6 OC 2015

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED JULY 06, 2016

        L.V.M. (“Mother”) appeals from the decree entered on January 4,

2016, granting the petition filed by the Tioga County Department of Human

Services (“DHS”), seeking to involuntarily terminate her parental rights to

her dependent child, S.D.M., a/k/a S.H. (“Child”), a female born in April of

2003, pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1) and (b).1 We

affirm.

        The    trial   court   set   forth   the    relevant     history   in   its

opinion filed pursuant to Pa.R.A.P. 1925(a)(2)(1).             See Trial Ct. Op.,




*
    Former Justice specially assigned to the Superior Court.
1
 Mother’s decree was translated into Russian. In a separate decree dated
and entered on January 4, 2016, the trial court also terminated the rights of
Child’s father, D.H. (“Father”). Father has not filed an appeal. He is not a
party to this appeal, nor has he filed a brief in this matter.
J-S50003-16


2/26/16, at 1-6 (unpaginated).     We adopt the trial court’s recitation for

purposes of this appeal. See id.

      As noted above, on January 4, 2016, the trial court entered the decree

terminating Mother’s parental rights.   On January 25, 2016, Mother timely

filed a notice of appeal along with a concise statement of errors complained

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

      In her brief on appeal, Mother raises two questions for this Court’s

review, as follows:

         1. The Dependency court sua sponte issued an order that
         Mother was precluded from having contact with the child
         until the child had therapy and the therapist stated that
         contact was okay. DHS failed to tell the therapist that
         reunification was a goal and that Mother should become
         engaged in therapy when it was appropriate for the child,
         therefore, albeit maybe accidental – reunification was
         never really being pursued by DHS. Subsequently, Mother
         traveled to Ukraine and Russia and due to financial health
         constraints was unable to return to the United States in a
         timely manner. Did the trial court abuse its discretion
         when it determined that [M]other has shown that she
         wants to relinquish her parental rights or has failed to
         perform her parental duties?

         2. The child did not testify at the termination hearing and
         no evidence was presented that that [sic] contact with
         Mother is a danger to her child’s physical or emotional
         well-being. Did the trial court abuse its discretion in
         determining that the best interest of the child would be
         served by terminating Mother’s parental rights?




2
  On January 29, 2016, Mother filed an amended notice of appeal correcting
the date of the decree on appeal from January 4, 2015, to January 4, 2016.




                                    -2-
J-S50003-16


Mother’s Brief at 2.3

      In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

            [A]ppellate courts must apply an abuse of discretion
         standard when considering a trial court’s determination of
         a petition for termination of parental rights.           As in
         dependency cases, our standard of review requires an
         appellate court to accept the findings of fact and credibility
         determinations of the trial court if they are supported by
         the record. In re: R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179,
         1190 (Pa. 2010). If the factual findings are supported,
         appellate courts review to determine if the trial court made
         an error of law or abused its discretion. Id.; R.I.S., [614
         Pa. 275, 284,] 36 A.3d [567,] 572 (Pa. 2011) (plurality
         opinion)]. As has been often stated, an abuse of discretion
         does not result merely because the reviewing court might
         have reached a different conclusion.         Id.; see also
         Samuel Bassett v. Kia Motors America, Inc., 613 Pa.
         371[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v.
         Ely, [575 Pa. 647, 654-55], 838 A.2d 630, 634 (Pa. 2003).
         Instead, a decision may be reversed for an abuse of
         discretion   only   upon    demonstration      of     manifest
         unreasonableness, partiality, prejudice, bias, or ill-will. Id.

            As we discussed in R.J.T., there are clear reasons for
         applying an abuse of discretion standard of review in these
         cases. We observed that, unlike trial courts, appellate
         courts are not equipped to make the fact-specific
         determinations on a cold record, where the trial judges are
         observing the parties during the relevant hearing and often

3
  We note that, with regard to the issues in Mother’s brief, Mother’s concise
statement preserved only the last sentence of each of these two paragraphs.
See Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super.
2006) (holding that an appellant waives issues that are not raised in both his
or her concise statement of errors complained of on appeal and the
Statement of Questions Involved in his or her brief on appeal). Although
Mother stated those issues somewhat differently in her concise statement,
we nevertheless find that she preserved those issues for our review.




                                      -3-
J-S50003-16


           presiding over numerous other hearings regarding the
           child and parents. R.J.T., [608 Pa. at 28-30], 9 A.3d at
           1190. Therefore, even where the facts could support an
           opposite result, as is often the case in dependency and
           termination cases, an appellate court must resist the urge
           to second guess the trial court and impose its own
           credibility determinations and judgment; instead we must
           defer to the trial judges so long as the factual findings are
           supported by the record and the court’s legal conclusions
           are not the result of an error of law or an abuse of
           discretion. In re Adoption of Atencio, 539 Pa. 161[,
           165,] 650 A.2d 1064, 1066 (Pa. 1994).

In re S.P., 47 A.3d 817, 826-27 (Pa. 2012).

      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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

      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.” Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super.

2003)).

      This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of Section

2511(a).     See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).    The trial court terminated Mother’s parental rights under Section

2511(a)(1) and (b).        See Trial Ct. Op. at 6 (unpaginated).           Section

2511(a)(1) and (b) provide as follows:

           § 2511. Grounds for involuntary termination


                                       -4-
J-S50003-16



        (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.

     This Court has explained that the focus in terminating parental rights

under Section 2511(a) is on the parent, but under Section 2511(b), the

focus is on the child. In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008)

(en banc). We focus on Section 2511(a)(1).

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence supporting the involuntary termination of a parent’s rights

pursuant to Section 2511(a)(1) as follows:

          To satisfy the requirements of section 2511(a)(1), the
        moving party must produce clear and convincing evidence


                                    -5-
J-S50003-16


         of conduct, sustained for at least the six months prior to
         the filing of the termination petition, which reveals a
         settled intent to relinquish parental claim to a child or a
         refusal or failure to perform parental duties.

                                 *     *   *

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

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

         [T]o be legally significant, the [post-abandonment] contact
         must be steady and consistent over a period of time,
         contribute to the psychological health of the child, and
         must demonstrate a serious intent on the part of the
         parent to recultivate a parent-child relationship and must
         also demonstrate a willingness and capacity to undertake
         the parental role. The parent wishing to reestablish his
         parental responsibilities bears the burden of proof on this
         question.

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see

also In re C.L.G., 956 A.2d at 1006.

      Further, regarding the definition of “parental duties,” this Court has

stated as follows:

             There is no simple or easy definition of parental duties.
         Parental duty is best understood in relation to the needs of
         a child. A child needs love, protection, guidance, and
         support. These needs, physical and emotional, cannot be
         met by a merely passive interest in the development of the
         child. Thus, this court has held that the parental obligation
         is a positive duty which requires affirmative performance.



                                     -6-
J-S50003-16


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

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

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

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

         In her first issue with regard to Section 2511(a)(1), Mother contends

that the trial court improperly terminated her parental rights.              Mother

alleges that originally, a trial court order precluded her from contacting

Child.    Citing In re M.B., 674 A.2d 702, 705 (Pa. Super. 1996), Mother

asserts that the trial court had no grave threat upon which to deny Mother

any visitation with Child, and improperly placed the burden on Child and

Child’s counselor to initiate visitation.      Mother asserts that a lack of

cooperation by DHS impeded her from overcoming that order.                  Further,

Mother claims that after she traveled to her home country, her own health

and financial constraints impeded her from returning as soon as planned.



                                       -7-
J-S50003-16


Mother likens her situation to that of an incarcerated parent and cites case

law regarding incarcerated parents.    Mother claims that her circumstances

precluded her from fulfilling her parental duties from at least April 2014 until

the filing of the termination petition, so her situation is similar to that of a

prisoner who has restrictions on her ability to parent.     Mother essentially

argues that DHS did not make reasonable efforts to establish reunification as

a goal and avoid the termination of her parental rights. See Mother’s Brief

at 13.

         We find Mother’s argument unavailing.       Mother failed to timely

challenge the initial dependency order that denied her contact with Child.

Thus, she may not raise the propriety of that order in this appeal. Mother

was not an incarcerated parent, and therefore, her reliance on the case law

regarding incarcerated parents is inappropriate.      Moreover, our Supreme

Court held that the trial court is not required to consider reasonable efforts

in relation to a decision to terminate parental rights under Section

2511(a)(2).     In re D.C.D., 105 A.3d 662, 675 (Pa. 2014).          This same

holding is applicable to Section 2511(a)(1) for the reasons expressed by the

Supreme Court.     Thus, for the reasons explained by the trial court in its

opinion, which we incorporate herein, we find her argument lacks merit.

See Trial Ct. Op. at 6-8 (unpaginated).

         Next, we review Mother’s second issue concerning Section 2511(b).

This Court has stated that the focus in terminating parental rights under



                                     -8-
J-S50003-16


Section 2511(a) is on the parent, but it is on the child pursuant to Section

2511(b). See In re C.L.G., 956 A.2d at 1008.

      In reviewing the evidence in support of termination under Section

2511(b), our Supreme Court recently stated as follows.

            [I]f the grounds for termination under subsection (a)
         are met, a court “shall give primary consideration to the
         developmental, physical and emotional needs and welfare
         of the child.” 23 Pa.C.S. § 2511(b). The emotional needs
         and welfare of the child have been properly interpreted to
         include “[i]ntangibles such as love, comfort, security, and
         stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super.
         2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
         this Court held that the determination of the child’s “needs
         and welfare” requires consideration of the emotional bonds
         between the parent and child. The “utmost attention”
         should be paid to discerning the effect on the child of
         permanently severing the parental bond. In re K.M., 53
         A.3d at 791.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      Mother asserts that Child had a very close bond with her and was not

fearful of her.   See Mother’s Brief at 14.      Mother contends that Child’s

current feelings toward her are relevant to a consideration of Child’s

emotional, physical, and developmental needs. Id. at 15. She argues that

DHS has failed to establish a lack of a bond between Child and Mother

without evidence that Child currently has a lack of feeling toward her. Id. at

14-15.   Additionally, Mother claims that the termination of her parental

rights will have a great effect on Child, both physically and emotionally, and

will affect her development in the future, as it will have an impact on Child’s

identity with her Russian heritage. Id. at 15.


                                     -9-
J-S50003-16


     We find Mother’s argument concerning Child’s need to have her

Russian heritage as a reason for precluding the termination of Mother’s

parental rights lacks merit.   For the reasons articulated by the trial court,

which we incorporate herein, we affirm the trial court’s ruling that DHS

sustained its burden under Section 2511(b). See Trial Ct. Op., 2/26/16, at

8-9 (unpaginated).        Accordingly, we affirm the trial court decree with

regard to Section 2511(a)(1) and (b).

     Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/2016




                                     - 10 -
                                                                                                                Circulated 06/28/2016 04:16 PM


                                                                                         Received 03/17/2016 Superior Court Mlddle District


                                                                                              I 03/17/2016 Superow~9~1
                                                                                             Fled               .
                                                                                                                           !ME
                                                                                                                               Rfli~o       ~fsi,.ict
                                                                                                                                      j . ~20'16
                                                                                                                      RrnISm ANO ttCOROER
                                                                                                                         TIOGA cou.m. PA
                   IN THE INTEREST OF                               :IN THE COURT OF COMMON PlEAS                           Perir1!ylvaril<1
                                                                                                                    In:~ SIJ!il            20t61Jli3<l


                   s..mlo
                   (AKA: ..      H,. ...     M21 Ii      a         : OF TIOGA COUNTY, PENNSYLVANIA



                    A MINOR CHllD

                                                         DECREE
                                                                        ...
                                                                        NO. 6 ORf>HANS COURT 2015



                          And now this 4th day of January, 2016, upon consideration of the Petition for Involuntary

                  Termination of Parental Rights, and after testimony and evidence received, the parental rights of

                  1.lfg \ .....            M ••.•also           known as   t*1~,           are forever terminated as to

                  the minor child, S~                        Mi.il.,(
                                                                  ••       11111.I, also known as Stll   H. ]   £
                  born April 27, 2003. Further proceedings in this matter shall proceed without further notice to

                 the aforesaid mother.


                         The biological parent is advised of his continuing right to place and update personal and

                 medical history information, whether or not the medical condition is in existence or discoverable

                 at the time of adopuon, on file with the Court and with the Department of Public Welfare

                 pursuant to 23 Pa. C. S. A. 2905 (d).




                 cc: S. Olson, Esq

                     T. Cummings, Esq.

                     L. Urbano, Esq.




Slalicn: SCAN3                                               TIOGA COUNTY, PA
                                                                                                                          Inst.# 201600341 · Page 1
                                                                                                        Received 03/17/2016 Superior Court Mlddle District
                                                                                                                                             FICO ROE!>
                                                                                                             Filed 03/17/2016 Supai1lffe©'n'i}~~t~Jct
                                                                                                                                      JA11E ~tm     201             s
                                                                                                                                  noJST~R PJ!O P.ECO~i!Ef.
                                                                                                                                      noGn rnmm.        P~
                         IN THE INTEREST OF                                                                                             ~tt,rt:,Jlvir,i-3
                                                                                  : IN THE COURT OF COMMON PLEAS                !r.sl N,m:                20lu0tr.l:!?



                        s ..         D.        HS GMIIII                   _      : OF TIOGA COUNTY, PENNSYLVANIA

                        (AKA:S-~

                          A MINOR CHILD                                              NO. 6 ORPHANS COURT 2015



                                                      FINDINGS, DISCUSSION AND DECREES ON PETITION FOR

                                                                      INVOLUNTARY TERMINATION

                                                                          OF PARENTAL RIGHTS



                                                                                 Findings of Fact


                                                          F tvt•••I,             also known as -       HI   e••,   was born April 27,

                                      2003. She is the natural child of        tttzlllll• ''jJ•i lll•PPM~•l•ll.••1also known as



                                2. ~was             removed from the home of Mr. and Mrs. fiH&••· (Mil&••-•)                     on April

                                     10, 2013, by Order of !his Court, pursuant to a Petition for Emergency Protective

                                     Custody.
                                                                                                            -------~-~------·----------·--
                               3. ~            has remained in placement with -and              CtllillH.-since her removal from



                               4. S...         was adjudicated a dependent child on April 18, 2013.

                               5. ~s            removal was the result, in part, of substantial concerns regarding Mrs.

                                     H   I5      's ability   to supervise her. particularly in the absence of Mr. H ...       who

                                    frequently left the Cornmonwcalth for war k obligations.




Station: Sc;in3. 03115120Hl   12.59:,10 Pl.1                                TIOG/1 COUNTY, PA
                                                                                                                                 Josi.# 201600339 - Pago 1 of 14
                              6. The events leading to the        filing of the Petition tor Emergency Custody were initiated by

                                   Mr. I l...._,s      call to Children and Youth Servicesin Tioga County regarding his

                                  concernsfor~               safety due to Mrs. H ....      s drinking.

                             7. Mrs. I I   di       $1as had no contact with      se.>1nce her removal from the home.

                             8. Prior to the filing of the Petition for Termination of Parental Rights, Mrs. I IS      l'1A did
                                  not petition or otherwise request visitation with -            through the Court.

                             9. Following ~s             removal from the home, the Tioga County Department of Human

                                 Services, Family ServicesDivision {Family Services),has made available services,

                                 including Intensive Case Management             (JCM}.

                             I 0. Mrs. J Jiii 's participation was initially inconsistent and subsequently ended when

                                 she stopped participating in servicesand ended contact with Family Services.

                             I I. Prior to the filing of the Petition, Mrs. 1 •     M     had had no contact wlthFarnllv Services




                                                                                                               s•
                                 since at least February 2014.

                            12. Mrs. 11[ ••          has not provided gifts, cards or support in anv way for          since her

                                 removal from the homo.

                            I 3. Mrs. 11 ••         I has not participated In   s9ils medical or dental care since her removal.
      ______                f....,..4..:famil_y5erjljcesprovided::seotic~odudiog.¥isitatioi:u.o..Mf......J:W••IL----.:..._-----                            ... ··-· ··--·--··

                            15. Mr. I'S             ma,n(ained contact with Family Services through July 2014, since that

                                time his only contact were messageshe left with Mr. Brewer and Ms. Tarbox, in

                                October 2014, which resulted in criminal charges of harassment being filed.

                            16. Mr. I$        j's visitation with ~was            suspended by court order following a hearing

                                held May 23, 2014.




Sla1ion: Scan3 · 0311512016 12:59:40 PM                               TIOGA COUNTY. PA                                    Inst.# 201600339. P~ge 2 ol 14
                                   17. Mr. I'         I   J     has not provided gifts, cards or support in any way for ~since                                                                      at least




                                        removal.
                                                     3.
                                         May 23, 2014.

                                   18. Mr. It                   has not participated in ~s                                medical or dental care since prior to her




                                   19. After her removal from the l ...                                 home, ~eceived                          substantial treatment and




                                  20.   S.
                                        counselingto address her anxiety related to the abuse inflicted in the 11 ..

                                                  has also been fitted with hearing aids to assist with a previously untreated

                                        hearing loss.
                                                                                                                                                                                                 I home.




                                  21. S.        is safe and her needs are met in her placement with J ...                                                  nd C ...

                                  22. ~

                                  23. The .are

                                        family.
                                                has bonded with the -family

                                                                wilting and able to adopt                   S.
                                                                                                            and wants to be a part of it.

                                                                                                                           and provide her a permanent home and




                                                                                                    DISCUSSION




                         Ms   I     W         I S.was              remo.ved from her home on April 10, 2013, pursuant to !!!'. Order of .

                   . . he J.igga _cow1ty Cour1or Com moo P!.e<'!s gcaol ing a Petitkin foe E mecgeoqu:ust ..,,ad"'iyf-*"~.....
                                                                                                                         Ihe.I.....io
                                                                                                                                    ...fr'~--~-----~
                   ··----~        ~·-·-~---       -•L+~o-o•-~   ~- •   0 ·-   ••·--~-·----·- ••,·   -   •   0   ~---·--•-+••-•••••••-·    0,0   -•   ·-·    -   ••   •   0   -•••   •-•   0 •-    -•--••




                       County Department of Children and Youth filed the Petition following contact with ~and

                        Mrs. I                on April 9, 2013. Workers from the Department went to the J IJ                                                                    6 home after

                       Mr. H ....          phoned as he departed Tioga County for work in the western United States which

                      would result in his being out of the area for several weeks. Mr. I                                                 9 I    5      advised the




Slolion: Scan3 - 0311512016 12.59:40 PM                                                   TIOGA COUNTY, PA                                                                                        Inst# 201600339 • Page 3 of 1,1
                                                 ....   a.regularly consumed alcohol and that he was concerned tor the




                                                                                                            s•
                       well-being of .-When         she did so.   A caseworker visited the home on the afternoon of April


                       9, 2013 and was greeted by ~who            reported that her motlier was asleep.            had

                       reported that her mother drinks .i lot and sleepsa lot and says mean things, she also informed

                       the caseworkerthat her mother had tried to kick her prior to school on the morning of Aprll 8,

                       2013. At the request of the caseworker, se.attempted           several times to wake her mother but

                      was unable to do so. Following these attempts, S~d              the caseworker to the neighboring




                      S.
                      home where a Mr. and Mrs. ~




                      inside. Mrs. '91was
                                                              were watching their grandchildren. Mr. and Mrs. L.-.,

                               and the caseworker returned to the I IQ   Q$    home and Mrs. L....

                                                eventually able to awaken Mrs. H~
                                                                                                         and ~ent

                                                                                              who then came to the door in

                      a robe to meet the caseworker. Mrs, 1-11••was           reportedly unable to focus on the

                      conversation and had blood-shot and elassyeyes. Mrs. H1H•I •tuttimalely            told the caseworker

                      she had not been In bed but mt her in the shower, Mrs. M        £      initlally admitted the

                      caseworker to the norne but then kicked her out. sewent             to the L..      home and spent the

                      night.


                               Following the service of the Order ernnting emergency protective custody, Mrs.         HI••
                     did not appear lor the shelter care hearing. Mrs. I I t   P     3 did appear, with court appointed
                 ··· · counsel,Oaniel--Stefanides;
                                                 for-the adjudicatory hearing·held·Apri~·rn; ·2013:·Mrs:      11•••
                     indicated, orally through counsel and in writing, that she did not require the services of an

                     interpreter at the time of this hearing although one had been provided. During the course of the

                     hearing.the caseworker, Christa Hilfiger, testified to concerns for S.s           safety due to Mrs.

                     H ...       s alcohol abuse, her anger and parenting concerns, Mr. H      1111 $ vas not readily



Sta!ion: ScanJ · 03!!512016 12:59:~0 PM                           TIOGA COUNTY. PA                                    Inst# 201600339 · Page 4 cl 14
                         available to protect and parent $.due              to his absence from the state for weeks at a time for




                                                   S.
                         work. Following the hearing, the Honorable Robert E. Dalton, Jr., entered an Order of

                        Adjudication finding

                        the Court ordered that Mrs. H ..
                                                         to be a dependent child. At the same time, apparently suo spcnte,

                                                                       would have no visitation with ~pending            further order

                        of court. No appeal was taken from the Order of Adjudication. Further, prior to the filing or thP.

                        Petition for Termination of Parental Rights, Mrs.MS                f   never requested reconsideration or

                        modification of the order directing that she have no contact with the child. Mr. H ••                   f!d not

                        appear for either the shelter care or the adjudicatory hearings. On August 6, 2013 following

                       continuances granted at the request of the~.                    the initial permanency review hearing was

                       held. Mr. and Mrs. H           5 \both appeared for this proceeding and were accompanied by
                       Attorney Jason Kutulakis, as privately retained counsel. Mrs. 11              ••   I did not testlfv but Mr.
                       H-did.               Based upon a review of the records, it appears this is the last substantive

                       proceeding Mrs. J 1        F I appeared at prior to the termination proceeding.

                                 The next Permanency Review Hearing was conducted September 26, 2013. Neither Mr.

                      nor Mrs. H      ID I appeared but Attorney KL1tulakis appeared as counsel for both. ~.                   her

                      theraplst, Ms. Marengo, and foster parent r; ..              R.      each testified. S ..   was questioned by

                      the guardian ad tltem and explained the abuse inflicted by her mother and the fear resulting

               ···· -·-··· therefro m:·-spec ificsl ly; when ·questioneu-ab·oorblcrck-rnarks ·ob-se-rved-onrYer ooay; slle ·

                      explained


                                [w]hen this happened -when         r   kind of got the bad grade, my mom, she got

                                mad at me and she, she, she tried to hit me and she just keeps hitting me and

                               it, it t)urt me ancl she keep hitting me a lot. .




Stalio.'l; Scan3 · 0311512016 12:59.40 PM                               TIOGA COUNTY. PA                                       Inst 1120160)339. Page 5 of 14
                                         Permanency Review Hearing, September 26, 2013,                        cp.s-s


                              S.       further testified to receiving a black eye when her mother sot mad and pushed her down.

                              She also described how she could tell when her mother had beendrinktog                                excessively, testifying

                              "she get mean, kind of like crazy, kind of stupid, [slhe acts stupid to me, may get craiy, she being

                              mean. [s)he Just hit me." Id. at 9.


                                        Mr. It     Q ?appeared          for a subsequent review hearing on February 25, 2014 with

                             Attorney Thomas Walrath, appointed counsel,                     as he was no longer          represented by Attorney

                             Kutalakis. During that hearing, Randy Brewer, s.s                         caseworker, testified to on-going efforts to

                             provide services to Mrs. H               Q     but indicated she often would not answer the door or appear

                             for scheduled appointments and that she refused to discuss Issues related to the case when she




                             with him or anyone else at the Department.                    Mr. Brewer testified that Mr. 11£              1was visiting
                             with -         when he was in Tioga County and had assisted in efforts to examine placement

                             through the Interstate Compact. Mr. Brewer continued, however, that Mr. H ...                                     had now

                            told him he "was not jumping through anymore hoops" clnd not taking part In services anymore.




               . ·--·--   ---he    had talked to her about
                              . - -- --------------
                                                             it, but it was still there. --··
                                                      .. ·----··---- -· -- - - ---- ·-- -·---"-
                                                                                                He- ..added
                                                                                                -      ·····---
                                                                                                                that   he knew
                                                                                                                --~ ··--·

                            getting awful hard to get atong with but that he did not know of her being violent with

                            did however add that he knew Mrs. ~11 ...                    lt.\was "emotionally abusive" to
                                                                                                                                     Mrs. H
                                                                                                                          ..... - -----·. --




                                                                                                                                   S-..
                                                                                                                                               S.        He




                                      Mr. H ...         continued      to participate in visitation and phone contact with $.through

                            May of 2014 .. 4. series of events, including threats by Mr. t-l ... c.against a Department




S!a!iOn: Stan)· 0311512016 12:59 40 Pt.!                                           TIOGA COUNTY. PA                                                Ins!.# 2D 160 0339 . Page 6 of 14
                             employee, Jed to a request that his visits be suspended.                               M, . H ....                  also appeared for that

                             proceeding with Attorney Thomas Walrath. Mr. H ..                                      's visits were suspended following a

                             hearing held before Honorable Joy Reynolds McCoy on May 13, 2014. Mr. H& •                                                                         neither

                             requested reconsideration or modification or the order suspending his contact.


                                       On July 1, 20ltl following continuances, the next Permanency Review Hearing occurred in

                             ~ront of Judge McCoy. The order entered following that hearing note d that Mrs. I 1J
                                                                                                                •••                                                                         had

                            not been participating in hearings, that she had not met with or been in contact with the

                            caseworker since the last hearing and that she was participating minimally in the lCM program.

                            Mr. J j   I If    was present for the hearing and directed to undergo                                  ll    psychiatric evaluation.

                            Judge McCoy specifically addressed the temporarily suspended visits and directed that the

                            matter be reexamined as soon as it was therapeutlcally recommended.                                                  Shortly after this

                           hearing, Attorney Kutulakis withdrew as counsel for Mrs. I                               lltnd                       Attorney Tiff any

                           Cummings was appointed to represent her.


                                      Neither parent appeared for the October 28, 2014 hearing, also held before Judge

                           McCoy. Judge McCoy's Order notes that.                                was doing well in her foster home and that she

                           feels _part of the family and 1hr11 she states "sometimes                            she forgets        she is in a foster home and

-----~JSbb.1et:ili£.aalfo!l:2iiteeiruc:tflLilildd.~"JMM.ILr.Jl~'& ...     l:w..lSJlo.teJi.as...uot..pac.tidpating..in.a,~ewices.aAd-.haG-flG!-------------
                                                                        -------·   --··-··•   ·-··------·----        ---·~   .••   ·--    •+-    ---   ·-········   ····--·--        ·--·----




                          followed through with previously ordered psychiatric evaluation or had contact with the

                          caseworker. Judge McCoy found "no compliance" with the permanency plan by Mrs.                                                                        He        a
                          and "no progress" towards alleviating the circumstances leading to placement, her Honor

                          specifically noted in the Order,




   Station· Sc3n3 -03!1512016 12:59.40 PM                                           T!OGA COUNTY. PA                                                                                   !nst.<t 201600339   •   Pa;e 7 GI 1·1
                                            li)f mother does not wish for her parental rights to be te,rninated                                                                                   it is imperative

                                            that mother immediately                                   have contact with the Agency and begin some steps

                                            towards reunification                            wlth her daughter.                           The Court would nole that up until this

                                            pofnt mother has done nothing to alleviate the circumstances which fed to the child's

                                           placement and has done nothing to work towards reunification.




                                          Additional Permanency Review Hearings held in Aprl! and July of 2015, after the filing of

                          the Petition for Termination of Parental Rights, and December of 2015, following the Hearing on

                          the Petition, but prior to this decision, all went unattended                                                                         by both parents.


                                          The Department petitioned                                      this Court seeking lo terminate                                          the parental rights of both

                         Mr. and Mrs. H~                                     on January 27. 2015. i:oflowing numerous efforts to obtain personal

                         service of the pelilion,                            Mr. ~oufd                                    not be located and this Court granted a motion to




                        but ultimately was contacted in Russia and advised by this Court of the scheduled date for the

                        proceeding.


                                        The Court also directed that the Petition be translated by a certified interpreter                                                                                                     and

---- · --               a.:. . r,. ,:r a_n.. : .g,. ,:ed;. . .--:f o-r.,th,.:..e,-s_e_rv~ic.,....e_s_o...,..f-a
                                                                                                              ...::.ce-rt,:-;icr.fie-d.:-tr-a n-s'la....,.to_r_a--:t-ct,-h                     t
                                                                                                                                                                       e-:-:-t i '"""m-e-o'f77h-e--:h-:-e-a....,.ri n-g'--;O~n-o-=-c--=t-0-:--be-r--=6=--,-:;:2~01:;-:5=---------
                                                                                                                                                                                                                          """.                                                      - · - - -· - · ·- -


   .......        -·--· with-the-witnesses,                         attornevsand                    translator-p~esent,-Mrs.-1                                '£         "I'requested-another--·:.:·                                      --

                       continuance of the termination                                          proceeding which the undersigned gran led. The consolidated

                       hearing as to the termination                                      of both Mr. I                 taW'sand Mrs. I •W's                                                  parental rights was

                       conducted October 13, 2015. Mrs. H ..                                                                 was present and represented                                         by her attorney,




    Station: ScM3 -03/1512016 12:59:40 PM                                                                          TIOGA COUNTY. PA                                                                                                lnsl.tl 201600339 • Page 6 ol 14
                 Tiffany Cummings, Mr.       HII.        did not appear but his attorney, Thomas Wair ath ir., was

                 present.


                            In this case, Petitioner seeks termination of parental rights under Title 23, section 2511,

                subsections (a)(1), (a)l2), (a}(S), and (a)(8). Pursuant to (a)(l), Petitioner must establish ...


                        {tJhe parent, by conduct continuing fo( 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 of has refused or failed to perform parental duties.
                        23 P.S.§2511(a)(1)




                        During the Termination Hearing held October 13, 2015, the Court incorporated the prior

                records from this case in both Dependency and Orphans Court. The Court heard testimony from

                the caseworker, Mr. Brewer, service providers for the Ht1cl<fords, Mrs. C ..                                  re and Mrs.

                        In this particular case, Mr. II

                11.h maintained
                                                             9.        I initially cooperated with the Department. Mr.

                                           contact, participated in the proceedings in Dependency Court and even

                pursued placement of ~ith                  relatives through the Interstate Compact. Most significantly

      _ _:__Jh~o~~~-e~~e~~~'
                     ft.~~~r.    ·lH~·~--~-~- ·~--~m~a~in~.
                                                       tf~lTn.:ed~co~.n~t~ac~t!.a~0
                                                                           d~a ~r.e~la~t~io~n~sl~lip~Y~1~it~h
                                                                                                   ~h~isjd~a~ug~h~te~r: :._. !:!HM~~.:__
                                                                                                                  JM!.1Jr~.                                              .··-··-----
____ __..ba<.tio·pecson~eclv!sit.s.witn.-S-wheA..J:le-.waS'itrfi(:)g3"€ounty:-Arotherti"'m""e.-s,-1i11=e------'-------
       - ··----···   ---·- - -----         ·--····------     --··--.      -··--·-·   ~··- ·--··-------··---··--·---··-···      ·--- .. --··-···--····--·~-·   -· ·-·-.
                used telephone contact to remain involved in his daughter's life. Mr. H                                 £ JP participated in a
                least one meeting relating to services being provided by ··s scho~l. Unfortunately, Mr.

                H    .QI     s communication with the Department deteriorated, resulting in threats, the eventual

                suspension of his visitation withs•             and, finally, in Criminal charges being filed as a result of
                        his threats and invectives directed at Mr. Brewer, ~s                              caseworker. According to the credible

                        testimony presented at the termination                          hearing, Mr,   Htl&•••i:s had no contact       with~

                        sfnce a medical appointment in mid-July 2014, and no vlsltatlon since prior to the order

                        suspending visitation. Mr. H               g        h last direct contact        with the Department occurred in July

                        2014 during a phone call to Mr. Brewer. He has had no contact with her caseworker, Mr.

                        Brewer, since October 28, 2014 when he left messages with Mr. Brewer and another employee

                       of the Department, Judy Tarbox, which ultimately resulted in criminal charges being filed against

                       him. Mr. H ...               dld not appear for scheduled court proceedings in that case and is                    currently a

                       fugitive. Mr, I I       3 SS has not provided                any means by which he can be contacted, and efforts to

                       do so through relatives have been unsuccessfut.




                      the Petition now before the Court clearly domonstrotes                            a foilurc   and refusal on his part to

                      perform his parental duties. While it can be fairly argued that the May 13, 201'1 order

                      suspending his visits was an impedlment, it in no way prohibited him from maintaining contact




      ___
                                        S.
                      with the Department. Additionally, the order did not prevent hi rn from providing support

                      indirectly to               through delivery of appropriate cards, letters or other items to the
                                                                  ----::-         __
                                                                                 -:--
                   ___:_:._____:_.:...:..-,--:;---,--___:_~...:..._-:-...:..._----:--
                     Department for her. Further, the Order suspending his visitation provided that the matter be
                                                                                                                    __
                                                                                            -:---:-~----------··- ... _ -~- ·--~-


       · ··-· · ·· · · · +reconsldered-atthe-t       trne-ofthe- next· scheduled-Pe rma nem: 9 Revi·evr hea rrn·g ..0rnunEf17;20 r4·· ----··-· ·- -- ·

                     and ordered that Mr. H              gq Oundergo              A psvchologlcal evaluation, as well as a drug and alcohol


                     evaluation prior to that hearing. Mr. H-did                                obtain the evaluations and appeared on July

                     1, 2014 at the rescheduled Permanency Review hearing. Judge McCoy maintained the

                     temporary suspension but emphasized that phone contact would be available at the child's




Slatton: Scan3 • 03/1512016 12:59:40 PM                                            TIOGA COUNTY. PA                                         Ins!.# 201600339 • Page 10 of 14
                                     request. Judge McCoy further ordered that Mr.1-i            W         ndergo a psychiatric evaluatlon based

                                     upon the recommendation contained in the psychological evaluation previously conducted, Mr.

                                     H•        9failed to appear for the scheduled appointment and hasnever undergone the

                                     evaluation or appeared for any further proceeding in the case. Finally, as to the suspension of

                                     his visits, Mr. H ...      has tal<en no action to request reconsideration or modillcatlon of the

                                    Order, he has simply cut off all communication and disappeared. The Department has dearly

                                    met its burden in establishing grounds for termination of Mr. I           J.1s         parental rights pursuant

                                    to Title   23, section ?.511 (a)(l ).


                                               Turning to Mrs. H ••         A the Department    seeks termination of her parental rights under

                                    the same provisions. The Court will first address subsection (a)(l ).


                                               Mrs. H ...      appeared at the Adjudicatory hearing fn this case on April 18, 2013. She

                                    later appeared for a Permanency Review hearing on August 6, 2013. According to her testimony,

                                    Mrs. 11 ••         last appeared In Court proceedings in this case in approximately April of 2014 to

                                   request a contlnuance of       a scheduled hearing. Following the April 2014 appearance, Mrs.

                                   Hem.left           Pennsylvania, first traveling to Rhode lsland, then proceeding to Ukraine and later

                                   Russia. According to her counsel's statements lo this Court on October 6, 201 S, in support of a
                                                                                                                                  -----                                      ....   ·-   --~-
                            1! ....
_______ fl=n=a,.,,.I =w..,r ...                                  sbe did
                                io,...u...,an""c..,,e...._r=en1re_g,          not return to the Uoil~d Stai es until shortly be(ore rile



                                          S.
          .   -·   ··--·----   ·-------------···-·      - ---------~··-----···--··---·------------. --· ----·---~--~---------··----··-··--··-· ·------·· ·--- ·----~

                                   scheduled hearing. During her daughter's placement, Mrs. H ••                  had absolutely no contact

                                   with              Her counsel notes that an Order of this Court directed that she have no contact,

                                   however, as with Mr. l I ••              Mrs. H   Jatmadeno effort        whatsoever to have that Order

                                   reconsidered or modified.       She provided no support, emotional, financial, or otherwise, to her




      Station: Scan3 - OJ/1512016 12:59:40 PM                                         TIOGA COUNTY. PA                                       Ins!.# 201to0339 • Page 11 of 1,1
                             daughter through the Department.                 Further, she falled to complete services that    were offered to

                             her to address the concerns leading to the initial finding of dependency. lastly, Mrs. H..

                             left not just Pennsylvania,for perhaps good reason, but provided no contact Information                     Ior the

                             Department or anyone else and only after extensive efforts and numerous continuances dld she

                             even appear for the termination hearing. She testified during the Termination hearing that she

                             is now willing to accept servicesand will do whatever needs to be done but it Is too little, too -

                            late. The conduct of Mrs. 11        am from at least April of 2014 represents a total failure on her
                            part to meet any of the responsibilities and duties or a parent. The Department has met its

                            burden.




                                          Having found the Department has established a statutory basis for termination, the Court

                           must now turn to Section 2511 (bl and consider the "developmental, physical and emotional

                           needs and welfare" of •.              Mr. H ...            's actions have left S...   vithout emotional or

                           financial support from him for a long period of time. S.                     clearly had some bond with both or

                                                                                                     S4a for more than a yeilr after her
                                                                                                                  R.
                           her parents. ~r. H ...            maintained involvement with


________________removal_ fro_m the home. However, s1e,has
                                  ___:_    ___:_  _         ___:____:____:_   ___:_
                                                                                        now resided with the           for over two and one·                        ------· ----·-·

                           half years. Additionallv. by, simolv cefusii:m. to pa,ticipare io ser1icesor elleo court proceedings                                                  _

                           and cutting off all avenues of communication with the Department, Mr_ H•hhas                           also

                          deprived         e,.or contact, even by phone. Mrs. I I£ E                 I has had no contact with s-.n
                                                                                                                                ~          over

                          two years. S.            has undergone extensive counselingas a result of her relationship with her


                                                                                                                                  and ••




     s1~:1an: Scan3, 031:512016     12·59-40 PM                                 TIOGA COUNTY. PA                                     Inst.I/ 201600339. Pa9e 12 of 14
                         and maintaining the current circumstance is not in her best interest.                    1he conclusion of Dr.


                         Howard Rose11, Ph.D., a licensed psychologist who evaluated ~n                           May of 2014 at the

                         request     of her mother's counsel remains applicable even today,


                                    [d)espite fearsand worries 4is            doing well at the job of being a child. She

                                    has same age peers, she does well academicallyin school, she is involved in

                                   extracurncular activities, she functions well in her foster household and she Is

                                   enrolled in a variety of cornmunily activities. She has been mistreated and neglected

                                   by her parents and while she has been physically removed from their care to insure

                                   safety, she continues to be abused by coercion, blame and feelings of loss and
                                   separation.....

                        Petitioner's Exhibit 1, October 13, 2015, Report of Howard S. Rosen, Hempfield Behavioral
                        Health, previouslyadmitted as Guardian's Exhibit 1, July 1, 2014, Permanency Review Hearing,
                        No. 20 DP 2013



                                  Converseiy,according to the testimony presented, s•considers                            herself to be and is

                       treated as a member of the R.family. She refers to the R.as                           mom and dad. A clear and




  _.:__
                       strong bond existsbetween S.

                       willingness and desire to adopt

                       commitment to~               s.'s
                                                 _.:_.     .
                                                               S.and the~




                                                                    .
                                                                        The   R.  family. Mr. and Mrs. R.have

                                                                                    have mil de a significant long term

                                                               well-being and best interests are clearly supported by the
                                                                                         .   .   -   .   '   ..   .   .
                                                                                                                               indicated a




                                                                                                                               .    ...                               ~-----~~·



 . ..       .       .. stability offered in the RWome.            The ongoing harm suffered by sedue                        to uncertainty Jnd .

                       irlstability which would occur in the absence of the termination of both Mr. and Mrs. I t(d]F ts

                       parental rights fat outweighs.any speculative harm which might be occasioned by the

                      termination at this time. As a child in the custody of the Department and under the supervision

                      of the Court pursuant to a finding of dependency, s•                   is entitled to the Jove, support and




Slallon: Scan3 - 03115,2016   12:59,ao Pr.1                             TIOGA COUNTY. PA                                                  IMI.# 201600339 · Page 13 of 14
                       permanency offered in the ,-ome             rather than the continued uncertainty she suffers now as

                       all wait for Mr. and Mrs. I   ·a:    S alone to determine whether or not either or both or them

                       wishes to return to the responsibilitiesand obligations each owes her as a parent


                                Accordingly, the Department has established by clear and convincing evidence that the

                       parental rights or both D ...       H ..     and L.,     ••••       should be terminated. The Court

                       further finds that it is in the best interest of .that          their parental rights be terminated, as

                      such an appropriate Decree as to each follows.




                                                                                           BY THE COUHl',




                     cc: S. Olson, fsq
                           T. Walrath, Esq.

                           T. Cummings, Esq•

                           .l. Urbano, Esq,
                                                                                           -----------------··········-~-




Staficn: ScM3 • 0311512016 12.59:~0 PM                            TIOGA COUNTY. PA                                      tns!.11201€00339 · Pege 14 of 1,1
