J-A07014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

APPEAL   OF:   SOMERSET          COUNTY       No. 1420 WDA 2014
CHILDREN & YOUTH SERVICES


                Appeal from the Order entered July 24, 2014,
        in the Court of Common Pleas of Somerset County, Orphans’
                      Court, at No(s): 14 Adoption 2013

BEFORE: BENDER, P.J.E., LAZARUS, and MUNDY, JJ.

MEMORANDUM BY BENDER, P.J.E.:                         FILED MAY 11, 2015

      Somerset County Children and Youth Services (“CYS”) appeals from

the order entered July 24, 2014, in the Court of Common Pleas of Somerset

County, which denied its petitions to terminate involuntarily the parental

rights of D.P. (“Mother”) and A.C. (“Father”) to their minor son, A.C.

(“Child”). After careful review, we reverse the subject order, and remand for

the orphans’ court to enter decrees terminating the parental rights of Mother

and Father.

      Child was born in February of 2012.    At the time of his birth, Child

tested positive for oxycodone and methadone.       Both Mother and Father

admitted to CYS that they took prescription drugs that had not been

prescribed for them, and a safety plan was implemented. On May 25, 2012,

Mother and Father submitted to drug screens.        On May 31, 2012, CYS

received the results of these screens, indicating that both parents tested

positive.   That same day, CYS sought and received an order of protective
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custody for Child. A dependency petition was filed on or about June 1, 2012,

and Child was adjudicated dependent by order dated June 5, 2012.

     On October 7, 2013, CYS filed petitions to terminate involuntarily the

parental rights of Mother and Father. A hearing was held on July 14, 2014,

during which the orphans’ court heard the testimony of Psychologist Dennis

Kashurba, CYS caseworker Andrea Palguta, CYS casework supervisor Teya

Lopaze, Father, and Father’s mother, P.C. (Grandmother). Mother failed to

appear at the hearing.1    On July 24, 2014, the court entered its order

denying the termination petitions.   CYS timely filed a notice of appeal on

August 22, 2014, along with a concise statement of errors complained of on

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

     CYS now raises the following issues for our review.

     I. Whether [CYS] proved by clear and convincing evidence at
     least one statutory ground for the termination of [] Father’s
     parental rights[?]

           A. Whether the [orphans’] court erred as a matter of
           law, or abused its discretion by requiring [CYS] to
           show it made reasonable efforts to reunify [Child]
           with [] Father while incarcerated in order to meet its
           burden[?]

           B. Whether [CYS] proved by clear and convincing
           evidence that the termination of [] Father’s parental
           rights would best serve the needs and welfare of
           [Child?]




1
  At the beginning of the hearing, Mother’s counsel stated that he attempted
to contact Mother, but was unable to reach her. N.T., 7/14/14, at 9-10.
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      II. Whether [CYS] proved by clear and convincing evidence at
      least one statutory ground [for] the termination of [] Mother’s
      parental rights[?]

            A. Whether [CYS] proved by clear and convincing
            evidence that the termination of [] Mother’s parental
            rights would best serve the needs and welfare of
            [Child?]

CYS’s brief at 4 (orphans’ court answers and unnecessary capitalization

omitted).

      We consider the claims presented by CYS mindful of our well-settled

standard of review.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law
      or abused its discretion. A decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely
      because the record would support a different result. We have
      previously emphasized our deference to trial courts that often
      have first-hand observations of the parties spanning multiple
      hearings.

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

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated

analysis.

      Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing
      evidence that the parent’s conduct satisfies the statutory

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      grounds for termination delineated in Section 2511(a). Only if
      the court determines that the parent’s conduct warrants
      termination of his or her parental rights does the court engage in
      the second part of the analysis pursuant to Section 2511(b):
      determination of the needs and welfare of the child under the
      standard of best interests of the child. One major aspect of the
      needs and welfare analysis concerns the nature and status of the
      emotional bond between parent and child, with close attention
      paid to the effect on the child of permanently severing any such
      bond.

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

      In this case, CYS petitioned to terminate the parental rights of Mother

and Father pursuant to Sections 2511(a)(1), (2), (5), (8), and (b), which

provide as follows:

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

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

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

                                     ***

            (5) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency for a period of at least six months,
            the conditions which led to the removal or placement
            of the child continue to exist, the parent cannot or

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            will not remedy those conditions within a reasonable
            period of time, the services or assistance reasonably
            available to the parent are not likely to remedy the
            conditions which led to the removal or placement of
            the child within a reasonable period of time and
            termination of the parental rights would best serve
            the needs and welfare of the child.

                                      ***

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

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

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

      In its opinion accompanying the subject order, the orphans’ court

concluded that CYS failed to present clear and convincing evidence that the

parental rights of Father should be terminated under any of these sections.

The court reasoned as follows, in pertinent part:

            The removal of the Child [] from the parents on May 25,
      2012, at a point in time when the Child was three months of
      age, resulted from a positive test for drugs … in violation of the

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J-A07014-15


     existing safety plan.      Accordingly, the reunification plan
     consisted of the parents demonstrating that they were no longer
     dependent on drugs….

           It is noteworthy that while Father’s primary goal was to
     eradicate his involvement with drugs, he successfully completed
     an inpatient treatment program with the Cove Forge Treatment
     Center, and his successful completion was reported to agents of
     [CYS].     Although there were treatment recommendations
     assigned to Father upon his release, his incarcerations in early
     2013 and subsequent sentence in the state corrections system
     made [] compliance with those treatment recommendations
     impossible.

           As Father was removed from the ability to visit with his
     son and show meaningful progress towards the stated goals in
     the permanency plan, [CYS] failed to adapt its program goals
     consistent with an incarcerated parent. From that point forward
     the goals as to visitation with the child, attendance at medical
     appointments, maintaining stable employment, following
     treatment recommendations, and the like were meaningless
     because incarceration precluded pursuit of those goals. At that
     point in time [CYS] failed to adjust and monitor Father’s
     progress based on the activities that he was capable of
     performing within the state corrections system. There are many
     programs within the state corrections system which focus on an
     inmate’s post-release freedom from drug dependency as well as
     job skills, parenting skills, and other life skills, which would
     permit an inmate to become reunited with his minor children.
     [CYS] continued to measure Father’s compliance with the plan
     and progress towards achievement of goals based on his conduct
     as if he was not incarcerated. While it might be argued as to
     whose duty it was to report Father’s treatment progress within
     the state correction system, it simply wasn’t done.

                                   ***

           If it is the role of [CYS] to promote the goal of
     reunification, it seems to the [c]ourt that when the parental
     goals focus on matters which only a parent out in the community
     can do, it is incumbent on [CYS] to modify the goals upon the
     incarceration of a parent to fit the reunification plan. Here,
     Father has completed drug and alcohol inpatient treatment and
     has furthered his drug abstinence through corrections

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      opportunities for AA, NA, substance abuse education, parenting
      skills and the like for which an inmate should be given credit in
      pursuit of his goals. [CYS] had little knowledge of Father’s
      achievements during his incarceration and further was
      apparently unaware of his upcoming release from prison in
      September, 2014. Considering the original “circumstances that
      made placement necessary” centered on Father’s positive drug
      screen and his duty to seek treatment and prove follow-up
      results, Father’s success in inpatient drug treatment followed up
      by drug programs within the correction’s system should have
      been reported to the Dependency Judge. These “successes” add
      up to demonstrate progress toward the goals that matter and for
      which Father has the capacity to complete.

Orphans’ Court Opinion, 7/24/14, at 17-21 (unpaginated).

      Notably, the court offered no discussion as to why it was denying the

termination petition with respect to Mother.       In its opinion pursuant to

Pa.R.A.P. 1925(a), the court explained its decision not to terminate Mother’s

parental rights as follows:

      [I]t is our position that the termination of parental rights, when
      posed against both birth parents, is ineffective to promote an
      adoption when the termination is not granted as to both parents.
      Under the circumstances where the court determines that the
      parental rights of one parent should be retained, as in the
      instant case, that parent may well go forward as the primary
      custodian of the child. As a result, where the parental rights of
      the other parent are still intact, the primary custodial parent
      should be in a position to pursue child support. At that point,
      the primary custodial parent is performing parental duties,
      perhaps to the exclusion of the other parent, and the family is no
      longer a burden to [CYS]. Assuming that the primary custodial
      parent is properly parenting the child, it is of little import to the
      court and to society that the noncustodial parent is
      nonfunctioning. Further, over time, as in the instant case, the
      other parent may overcome a drug dependency and thereafter
      become an appropriate and caring parent. Under this scenario,
      the time required by this noncustodial parent is not at the
      expense of [CYS] and may otherwise play out as needed during


                                      -7-
J-A07014-15


      when the custodial natural parent is appropriately providing all
      parental services.

             The [c]ourt did not address the involuntary termination
      factors as to Mother because it determined that the rights should
      not be terminated as to Father…. The primary purpose of
      termination of parental rights proceedings is to achieve a
      position where an adoption can proceed. The statutory provision
      for termination are found under the general chapter heading of
      “Proceedings Prior To Adoption” which subdivision is under Title
      23. Domestic Relations, Part III. Adoption.

Orphans’ Court Opinion, 11/5/14, at 2-3 (unpaginated).

      On appeal, CYS argues that the court abused its discretion by denying

the termination petitions.     CYS contends that it presented clear and

convincing evidence to establish that the parental rights of both Mother and

Father should be terminated, and that the court improperly required CYS to

show that it made reasonable efforts to reunify Father with Child.        CYS’s

brief at 12-25.   We agree with CYS, and conclude that the orphans’ court

abused its discretion by refusing to terminate the parental rights of Mother

and Father pursuant to Sections 2511(a)(8) and (b).

      In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
      2511(a)(8), the following factors must be demonstrated: (1) The
      child has been removed from parental care for 12 months or
      more from the date of removal; (2) the conditions which led to
      the removal or placement of the child continue to exist; and (3)
      termination of parental rights would best serve the needs and
      welfare of the child.

In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).

“Notably, termination under Section 2511(a)(8), does not require an

evaluation of [a parent’s] willingness or ability to remedy the conditions that


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led to placement of [the] children.”   In re Adoption of R.J.S., 901 A.2d

502, 511 (Pa. Super. 2006) (citations omitted).

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that the trial court must also discern
      the nature and status of the parent-child bond, with utmost
      attention to the effect on the child of permanently severing that
      bond. However, in cases where there is no evidence of a bond
      between a parent and child, it is reasonable to infer that no bond
      exists.   Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some

citations omitted).

      [W]hile both Section 2511(a)(8) and Section 2511(b) direct us
      to evaluate the “needs and welfare of the child,” we are required
      to resolve the analysis relative to Section 2511(a)(8), prior to
      addressing … Section 2511(b); as such, they are distinct in that
      we must address Section 2511(a) before reaching Section
      2511(b).

In re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc).

      Initially, we note that the court erred by declining to terminate

Mother’s parental rights simply because the parental rights of Father were

being preserved.      Our Supreme Court expressly rejected this proposition

nearly 40 years ago in In re Burns, 379 A.2d 535, 541 (Pa. 1977)

(“Nothing in the Adoption Act requires that an agency, which has assumed

custody of a child, must establish grounds for the involuntary termination of

both parents, before it can obtain such a decree as to either.”).          While

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Burns was decided under a prior version of the Adoption Act, nothing in the

current Act contradicts the Court’s decision.     Indeed, as acknowledged by

the orphans’ court, this Court more recently reached a similar result in In re

C.W.U., Jr., 33 A.3d 1 (Pa. Super. 2011).           In that case, a trial court

“conceded that it refused to terminate Father’s parental rights because the

court did not wish to leave Child without a father, in light of the fact that it

was not terminating Mother’s parental rights at this time.” Id. at 9. This

Court reversed, holding that there was no competent evidence to support

the trial court’s decision. Id.

      Additionally, as explained infra, the evidence presented by CYS in this

matter overwhelmingly supported the termination of both parents’ parental

rights.   During the hearing, Ms. Andrea Palguta testified that she was the

CYS caseworker assigned to this matter from January 30, 2012, prior to

Child’s birth, until January 5, 2013. Id. at 34-35, 43. Ms. Palguta explained

that, as a result of Child’s adjudication of dependency, Mother and Father

were ordered to, inter alia, “complete drug and alcohol evaluations; comply

with whatever treatment recommendations came from that evaluation; …

complete random drug screens and to give at least three consecutive

negative drug screens ….”         Id. at 42-43.   Ms. Palguta stated that both

Mother and Father completed drug and alcohol evaluations. Id. at 43-44.

However, they did not comply fully with the recommended treatment. Id. at

44. Ms. Palguta noted that, between the September 4, 2012 permanency


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review hearing and the November 6, 2012 permanency review hearing,

Father reported to CYS that that he was receiving drug treatment from a

“Dr. Cober,” and that he “was going to enter a 90-day drug and alcohol

treatment program in Harrisburg, but … we received no verification that he

ever did that.” Id. at 52-53.

     Additionally, during Ms. Palguta’s time on the case, neither parent had

three consecutive negative drug screens.       Id. at 44, 58-59.   Ms. Palguta

explained that at least seven drug screens would have been requested from

Mother during her time as the caseworker. Id. at 62-63. Of those seven

tests, Mother provided four samples and tested positive three of those four

times. Id. at 63. Ms. Palguta stated that Father at one point refused a drug

screen, and that there were “other times” when the parents admitted to

using drugs.   Id. at 50.   Specifically, Mother admitted to using another

person’s Percocet on July 10, 2012. Id. Father refused a drug screen that

same day “stating that he could not product [sic] any urine because of

severe dehydration from diarrhea.”    Id.   Finally, Ms. Palguta testified that

Child appeared very comfortable with his foster family.        Id. at 66.   She

noted that, when Child would not see Father for a long period of time, he

developed “kind of a stranger anxiety around him.”       Id.    Child appeared

“fairly comfortable” with Mother. Id. at 67.

     Ms. Teya Lopaze testified that she is a casework supervisor for CYS,

and that this case “was assigned to a caseworker in my unit in January of …


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2013.”     Id. at 68. Ms. Lopaze explained that, from the time she had the

case until the time the termination petitions were filed, neither parent

submitted three consecutive negative drug screens. Id. at 70, 87. Father

did complete drug treatment in 2012. Id. at 71, 95. However, Ms. Lopaze

noted that, when Father was discharged, “it was recommended that he do

intensive outpatient counseling, attend 90 AA/NA meetings within 90 days of

discharge, [and] retain a sponsor within three to five days of discharge ….”

Id.   at    95.   To   her   knowledge,   Father   did   not   complete   these

recommendations. Id. at 97-98.

      Ms. Lopaze further explained that Mother completed a drug evaluation

at Twin Lakes in March of 2013, but that CYS did not receive any

confirmation that Mother completed the recommended drug treatment. Id.

at 71, 87. The last drug screen administered to Mother took place on April

2, 2013. Id. at 79. Mother tested positive for opiates and cocaine. Id. Ms.

Lopaze stated that CYS was not able to administer additional drug screens to

Mother because, following her final visit with Child on June 11, 2013, “she

has not made herself available. We didn’t even know her whereabouts.” Id.

at 79-80, 83. At the time of the termination hearing, Ms. Lopaze still did not

know where Mother was. Id. at 87. Ms. Lopaze noted that Child is doing

well in foster care. Id. at 69. She opined that it would be in Child’s best

interest for the parental rights of Mother and Father to be terminated. Id.

at 88-89.


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      Psychologist Dennis Kashurba testified as an expert in bonding studies

between parents and their children. N.T., 7/14/14, at 12-14. Mr. Kashurba

explained that he was unable to observe the Child with Father or Mother, as

Father was incarcerated, and Mother failed to appear for her scheduled visit.

Id. at 16. However, Mr. Kashurba noted that the bond between Child and

his foster parents “seems to be quite appropriate,” and that the foster home

was “more than adequate.” Id. at 18. Mr. Kashurba stated that Child had

been in the foster home since he was approximately three months old, and

that he would view his foster parents as his “mom and dad.” Id. at 19. Mr.

Kashurba opined that it would be a detriment to Child’s development to

remove him from his current placement.        Id. at 21.     Mr. Kashura further

opined that the parental rights of Mother and Father should be terminated,

and that this would not have a negative impact on Child.         Id. at 21. Mr.

Kashurba noted that he has “no information to suggest” that Child has a

bond with either Father or Mother, and that it is unlikely that the parents will

be able to develop a parent/child relationship with Child within a reasonable

amount of time.2 Id. at 20-25.

      Father, who still was incarcerated at the time of the hearing and

testified by phone, indicated that he has criminal records in seven

Pennsylvania   counties:   Allegheny,    Blair,   Cambria,    Fayette,   Indiana,

2
  In his psychological bonding study, admitted during the hearing as Exhibit
F, Mr. Kashurba reported that Child’s foster father “reiterated that he and his
wife wish to be considered as adoptive parents for [Child] ….” Exhibit F at 4.

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Somerset, and Westmoreland. Id. at 114.3 Father has been convicted of a

variety of criminal offenses, including retail theft, fleeing and eluding police,

simple   assault,   tampering   with     evidence,   criminal   trespass,   public

drunkenness, disorderly conduct, possession of drug paraphernalia, and drug

possession.   Id. at 114-18.      Father also conceded that he has a drug

problem. Id. at 119. According to Father, he previously completed a drug

rehabilitation program, which he attended from “November -- I believe 13th

to early December” of 2012.         Id. at 105, 113.       Father claimed that

“somehow CYS contacted the Welfare Office and had my insurance

terminated,” and that these “insurance issues” prevented him from getting

into treatment sooner. Id. at 110, 112. Father admitted that he failed to

complete the recommended follow-up treatment, but insisted that “[w]e

don’t have 90 and 90 in Johnstown,” and that he did the best he could by

attending four Narcotics Anonymous and/or Alcoholics Anonymous meetings

per week. Id. at 119. Father was incarcerated shortly after he completed

treatment, “in the beginning of January.” Id. at 113. Father’s last visit with

Child took place in October of 2012, and lasted five minutes. Id.

      Father further testified that he participated in “the therapeutic

community while incarcerated here, which is another alcohol and drug

treatment,” and that he also attends Narcotics Anonymous, Alcoholics

Anonymous, and “Smart Recovery” meetings on a weekly basis, as well as

3
 Father neglected to mention his prior conviction in Cumberland County,
which would bring the total to eight. N.T., 7/14/14, at 117.
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parenting classes.   Id. at 105-06.     Father indicated that he would be

released from incarceration on approximately September 10, 2014, and that

he would immediately report to a “Community Correction’s Residency Center

for alcohol and drug treatment, which can range anywhere from 14 to 90

days.” Id. at 105, 123-25.

      Grandmother testified that Father loves Child, and that she would

assist Father in caring for Child upon his release.          Id. at 134-35.

Grandmother conceded that Father has a drug problem, that he has been in

rehabilitation programs “[m]ultiple times,” and that he continues to relapse.

Id. at 138.4

      Accordingly, the record confirms that CYS presented clear and

convincing evidence to support the termination of both parents’ parental

rights.   With respect to Section 2511(a)(8), Child was removed from the

care of Mother and Father on May 31, 2012.       At the time of the July 14,

2014 termination hearing, Child had been in the custody of CYS for over two

years. As acknowledged by the orphans’ court, Child was removed due to

drug use, and it was incumbent on both parents to remedy this problem, or

at least get it under control, in order to regain custody of Child.   Neither

parent did so. Mother’s final drug test with CYS, which took place on April 2,


4
   Grandmother also testified that she considered acting as a kinship
placement for Child. N.T., 7/14/14, at 133. Following Grandmother’s
testimony, Ms. Palguta and Ms. Lopaze were recalled as witnesses, and
testified concerning CYS’s consideration of Grandmother as a possible
kinship placement. Id. at 145-49.
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2013, was positive for opiates and cocaine. While Mother underwent a drug

evaluation at Twin Lakes, CYS did not receive any confirmation that she

completed drug treatment.      The record is simply devoid of evidence that

Mother remedied the conditions which resulted in Child’s placement.

      Similarly, Father admitted during the hearing that he has a drug

problem.    While Father completed an inpatient drug treatment program in

late 2012, Father did not complete the recommended follow-up treatment,

including   intensive   outpatient   counseling,   prior   to    his   incarceration.

Moreover, the record does not suggest that Father was able to complete

adequate, or equivalent, drug treatment during his time as an inmate. To

the contrary, Father testified that he was going to be released from

incarceration directly into a facility where he would receive an additional 14

to 90 days of treatment.     Thus, at the time Father received notice of the

termination petition in this matter, he too had failed to remedy the

conditions which resulted in Child’s placement.

      Additionally, it would best serve the needs and welfare of Child to

terminate the parental rights of Mother and Father. Child is doing well with

his foster family, which has cared for and bonded with Child for years. In

contrast, Mother and Father have spent a significant portion of this time

incarcerated, or otherwise absent from Child’s life.            Father in particular

appears to be incorrigible, as he has an 18-year criminal history spanning

numerous Pennsylvania counties.       As this Court has stated, “a child's life


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cannot be held in abeyance while a parent attempts to attain the maturity

necessary to assume parenting responsibilities.   The court cannot and will

not subordinate indefinitely a child's need for permanence and stability to a

parent's claims of progress and hope for the future.”    In re Adoption of

R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

     With respect to Section 2511(b), it is apparent that Child has little, if

any, bond with his parents. Child was removed from his parents’ care when

he was about three months old.      At the time of the termination hearing,

Child had not visited with Mother since June of 2013, and Child had not

visited with Father since October of 2012.     Mr. Kashurba testified that it

would not be detrimental to Child if the parental rights of Mother and Father

were terminated.   Mr. Kashurba opined, however, that Child would suffer

harm if removed from his current foster placement.5 Again, it is abundantly

clear that termination would best serve the needs and welfare of the Child.

     While the orphans’ court observes that CYS did not adjust Father’s

reunification goals to accommodate his incarceration, nothing in the

Adoption Act supports the court’s position.         Notably, in its opinion


5
  The orphans’ court did not address Section 2511(b), except to state in its
opinion pursuant to Pa.R.A.P. 1925(a) that it placed “little weight” on Mr.
Kashurba’s testimony because, inter alia, Mr. Kashurba “did not have any
basis with which to evaluate the natural parent bonding inasmuch as
[F]ather was incarcerated and [M]other’s whereabouts were unknown.”
Orphans’ Court Opinion, 11/5/14, at 3. To the extent the orphans’ court
concluded that termination would not be in Child’s best interest, we conclude
that the court abused its discretion by reaching a decision that was
unreasonable and unsupported by evidence of record.
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accompanying the subject order, the orphans’ court discussed and relied

upon In re D.C.D., 91 A.3d 173, 179 (Pa. Super. 2014), reversed, 105 A.3d

662 (Pa. 2014), in which a panel of this Court stated that an agency must

first make reasonable efforts to reunify a parent with his or her child before

filing a petition to terminate parental rights. D.C.D. recently was reversed

by our Supreme Court. We have discussed the Supreme Court’s decision as

follows:

      In In re D.C.D., 105 A.3d 662 (Pa. 2014), our Supreme Court
      analyzed the language of Section 2511(a)(2) of the Adoption
      Act, as well as Section 6351 of the Juvenile Act, 42 Pa.C.S.A. §
      6351. The Court reasoned that, while “reasonable efforts may
      be relevant to a court’s consideration of both the grounds for
      termination and the best interests of the child,” neither of these
      provisions, when read together or individually, requires
      reasonable efforts. The Court also concluded that reasonable
      efforts were not required to protect a parent’s constitutional
      right to the care, custody, and control of his or her child. While
      the Supreme Court in D.C.D. focused its analysis on Section
      2511(a)(2), we find the Supreme Court’s reasoning equally
      applicable to Section 2511(a)(8).      Like Section 2511(a)(2),
      nothing in the language of Section 2511(a)(8) suggests that
      reasonable reunification services are necessary to support the
      termination of parental rights.

In re Adoption of C.J.P., 2015 WL 1668310 at *7, 2015 Pa. Super. LEXIS

181 at *21 (Pa. Super. 2015) (some citations omitted).

      Critically, our Supreme Court in D.C.D. observed that “the remedy for

an agency’s failure to provide services is not to punish an innocent child,

by delaying her permanency through denying termination, but instead

to conclude on the record that the agency has failed to make reasonable

efforts ….” 105 A.3d at 675 (citations omitted, emphasis added). Here, the


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orphans’ court’s opinion reveals that it did precisely what our Supreme Court

has instructed that courts should not do, i.e., not giving due regard to Child

for the perceived failings of CYS.

      Accordingly, because we conclude that the orphans’ court abused its

discretion by denying CYS’s petitions to terminate the parental rights of

Mother and Father, we reverse.       We remand this matter for the orphans’

court to enter decrees terminating the parental rights of both Mother and

Father pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b).

      Order reversed.     Case remanded for further proceedings consistent

with this Memorandum. Jurisdiction relinquished.

      Judge Mundy joins this memorandum.

      Judge Lazarus files a concurring statement.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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