J-S09044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: S.N.H., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: F.C.H., FATHER                  :       No. 1361 MDA 2017

                       Appeal from the Decree July 24, 2017
                  In the Court of Common Pleas of Berks County
                         Orphans' Court at No(s): 85190


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

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

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

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

granted the petition of the Berks County Children and Youth Services

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

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

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

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

reason to restate them.

        As a preliminary matter, appellate counsel seeks to withdraw his

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


____________________________________________


1This appeal is related to the appeal listed consecutively at No. 1362 MDA
2017 (J-S09045-18).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09044-18


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

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

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

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

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

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

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

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

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

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

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

the antecedent requirements to withdraw, this Court makes an independent

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

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

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

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


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



                                           -2-
J-S09044-18



                                       *       *   *

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

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

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

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

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

states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

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

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

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

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

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

____________________________________________


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



                                           -3-
J-S09044-18


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

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

requirements of Anders and Santiago.

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

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

behalf:

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

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

(Anders Brief at 3).4

____________________________________________


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


                                           -4-
J-S09044-18


      Appellate review of termination of parental rights cases implicates the

following principles:

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

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

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

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

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

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

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

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



                                          -5-
J-S09044-18


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

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

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

1165 (2008)).

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

rights to Child on the following grounds:

         § 2511. Grounds for involuntary termination

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

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

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

                                  *    *    *

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

                                      -6-
J-S09044-18


           parent by the court or under a voluntary agreement
           with an agency for a period of at least six months,
           the conditions which led to the removal or placement
           of the child continue to exist, the parent cannot or
           will not remedy those conditions within a reasonable
           period of time, the services or assistance reasonably
           available to the parent are not likely to remedy the
           conditions which led to the removal or placement of
           the child within a reasonable period of time and
           termination of the parental rights would best serve
           the needs and welfare of the child.

                                *    *    *

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

                                *    *    *

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

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

may be involuntarily terminated where any one subsection of Section

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


                                    -7-
J-S09044-18


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

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

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

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

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

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

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

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

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

                                    -8-
J-S09044-18


petition:

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

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

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

      The     grounds    for   termination   of   parental   rights   under   Section

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

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

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

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

make diligent efforts towards the reasonably prompt assumption of full

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

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

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

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

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

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

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

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

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

                                        -9-
J-S09044-18


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

that initially caused placement or the availability or efficacy of Agency

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


                                    - 10 -
J-S09044-18


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

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

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

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

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

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

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

bond.” Id. Significantly:

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

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

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

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

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

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

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

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

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

                                    - 11 -
J-S09044-18


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

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

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

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

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

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

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

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

healthy, safe environment.” Id. at 856.

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

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

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


                                    - 12 -
J-S09044-18


opinion comprehensively discusses and properly disposes of the questions

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

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

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

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

would not be until early 2019; S.N.H. is developmentally delayed and special

needs child; foster parents are actively meeting Child’s needs; Child is

thriving in foster home and bonded to foster parents; any bond Child might

have to Father deteriorated to point that severance would not detrimentally

affect Child; with exception of one visit, Father has not seen Child since

Father’s incarceration in February 2016; Child has received no letters, cards,

gifts, or parental support from Father; given Father’s extensive drug history

and current incarceration, Father cannot remedy conditions, which led to

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

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

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

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

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

opinion and grant counsel’s petition to withdraw.

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




                                     - 13 -
J-S09044-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/28/2018




                          - 14 -
                                                                                                Circulated 03/16/2018 03:07 PM

          I·


          I.


          '                                                        I

                                                         IN TH       COURT OF COMMON PLEAS
INRE: l                                                  OFBE'       KS COUNT', PENNSYLVANIA
          I                                                        I
          I                                              ORPH        NS' COURT DIVISION
         S:N.H.                                        : No. 85    90
         :tH., Jr. a/k/a F.S.H.                        : No. 85    91
          ,;                                                       !
          I.
          I·                                                       I
Jennife11:L, Grimes, Attorney for BCCYS, Petition ·ti Appellee
Molly Sanders, Guardian Ad Litem for S.N.H and J •18.H.
�. David: Maynard, Attorney for F.C.H., Father
Itelly S-jJ(line, Attorney for J.C.G., Mother
          I•
 I        I

!I>PINIO�LScott D. Keller, S.J.                                                    Dated: Se .tember 12, 2017

         1�is matter came before the Court on the petiti :ns of Berks C unty Children and Youth
          I


�lervices!C'BCCYS") to terminate the parental rights o 1J.C.G. a/k/a J. .H. ("Mother") and
          I                                                        I
R. C.H. (rF ather") to the children, F .H., Jr. alk/ a F. S .H(               0. O.    f3              2011, and

$.N.H., . \). O. -p                    . 2016 ("the Children"1]        The petitions to involuntarily terminate
 •                                                                 I
          I                                                        I


parental pghts wore filed on December 6, 2016 on the grounds set
�       !(l
                                                                                 for    in 23 Pa.C.S.A.

 2511 (a ), (2 ), and ( 5). The hearing was held on Ju � 24, 20 l 7. Mith er was present via

telephone :from                 Boot Camp. Her court-app inted counsel                as present in the
 I        I·
courtroom. Father was present via video from              ''P{\ 5 0(\       . Father s court-appointed counsel
 :        i'                                                      I:
tas   phYf cally present for the hearing. Upon conclusil of the hearin · , the Court granted the
                                                        �
rietiti.ons! to terminate parental rights to the Children. : ither filed a ti ely Notice of Appeal and
 ,        I
� Concise Statement of Matters Complained of on Ap:·�al.
                                                                        2

 .        '

         �he statute at paragraph 2511 (a)(l) provides tl �t parental righ sin regard to a child may
 j        1                                                        I



 I
 I        I.
Be
 I
     termi*ated on the grounds that a "parent by co�duc hontinuing for a period of at least six
          I                                                        I
 I        !
 I        '
 I        l                                                        ,
� OrdeJ;dated A;ril 25, 2017, the Child shall be known as F.S �.
             fonci�e Statement simply states that t�e Court e1;:d inhenninati�g his p� ental rights based on the
2 r;_th.er's

exhibits a�ci tesumony presented and that he desires an add1t1ona� opportunity for hi1 and Mother to complete
services. 'f'he Statement indicates that counsel believes the appea jto be frivolous.
 I        I'                                                       '
 I        I·
          '
                                                           1       I
 I                                                                 I

 I
                 II
                 11




                  I
months tmediately preceding the filing of the petitior!either has evi enced a settled purpose of
                                                                         \failed
relinquis�ing parental claim to a child orhas refused O                                 to perfor parental duties."

P.aragraP;h (a)(2) provides that parental rights may bet pninated on th grounds that "[t]he
                      I                                                  '
repeated land continued incapacity, abuse, neglect or re f}-isal of the par nt has caused the child to

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

!ell-beitg and the conditions and causes of the incapar�ty, abuse, neg ect or refusal cannot or

will not te remedied by the parent." Paragraph (a)(5) �ovides forte                              ination of parental rights
                      I
                                                                        1   I
when a '";ehild has been removed from the care of the p;arent by the co or under a voluntary
                                                         1�nths,
�eement     with an  agency for a period of at least six         the condi ti ons which led to the

remo�al �r p lac�nent of the child �ontin�e to exist, thirarent ca�ot r will not remedy those



tlh.e pare�! are not likely to remedy the conditions whic ; led to the reml,val or placement of the

child within a reasonable period of time and terminati: ' of the parent11 rights would best serve
                          I'                                                    I


           need�iand welfare of the child." "With respect to' :y petition file pursuant to
tl;e                                                                                       (a)(l), (6) or
 I                        I
 I                        I
(8),
 !
     the cburt
          .
               shall not consider any efforts by the pare t. to remedy th conditions described

therein Jhich are first initiated subsequent to the givin ! of notice oft e filing of the petition." 23
 ,                        I                                                     ,
 '                        I

P!a.c.s.Al: § 251 l(b).
                          !                                                     I


 !I              "Parental rights may not be preserved by waitii � for some                        suitable financial
  :
                          1·
                          I                                                         I       morr
4'cumst7ce or convenient time fur the performance o ;parental duti1 and responsibilities." In

re: D.J.S1, 737 A.2d 283, 287 (Pa. Super. 1999). The ong-standing 11w of the Commonwealth

i:
 I
          that
          F
                 thJ. inability of a parent to perform parental duti s makes him o
                                                          ,
                                                                                                 he� just as parentally unfit.

a$ a paretiit who refuses to perform these duties. In re: B.L. W., 843 A. d 380, 388 (Pa. Super.
      .                       ,·                                                    '
2�04) R)ega:rdless
                                   of inability or refusal, once a parent, 1emonstrates a failure to fulfill his or her
      I      .                ):                                          !:
     I




                              I'
                              I



                              I                                   2
                              i
                              I
                              1·
                              \.
                              !.
. I'                      ii
                          \\I
   .                      Ii
 parentalj�uties, the child's right to fulfillment of his o her potential i a permanent, healthy, safe
                          'I                                                         .
  environment with proper parenting supersedes the par nt's basic cons itutional right to custody
          ;l
  and rear�hg of the child. Id. In terminating the rights fa parent, the ourt must give "primary
                           .,
  considerrition to the developmental, physical, and emotfonal needs                                         welfare of the child." 23
                            ,I                                                       .                 an]
  Pa.c.s.1. §251 I(b).
                            •I"
                         rhcarceration is not in and of itself detenninati ¢ of parental i1capacity, but it "can be
                               !I
   cletermi�rtive
                  of the question of whether a parent is in apable of providing 'essential parental
                               ,1
   care, control or subsistence.": In Re: Adoption o/S.P.                                47 A.3d. 817,       31 (Pa. 2012); In re R.I.S.
       l·                       •II

   l A.I.s.• if 6 A.3d. 567, 576 (Pa. 2011), Justice Baer co curring. "The ength of the remaining
                                I                                                        '
                                I

   confinement can be considered as highly relevant tow 'ether 'the con itions and causes of the
           III
                                                                                         I
                                                                          .
           ·I                                                I
   incapaciW,  abuse, neglect or refusal cannot or will not be remedied b   the parent,' sufficient to
                                I                                                        •


   provide tounds for termination pursuant to 23 Pa.C.S I§ 251 l(a)(2)." In Re: Adoption ofS.P., 47
             :I                                                :
   .A.3d. at �  31. If a parent will remain incarcerated for t b long of a per' od of time to permit
                                 11
   unificati1n with a child "in a timely basis in order to p evide the child with the permanent home
                                    I!
       t<p whichlhe or she is entitled, then the length of senten                            e, standing alo e, should and does meet
            .                       11
       t�e legal lfriteda for involuntary termination of the inc cerated parents parental rights." In re

   Ju.s. & t.l.S., at 576.    "[T]he child's need for consist<¥t parental care and stability cannot be put
                ft                                      <loin,
       aside or    on hold simply because the parent is        �hat [he] is su posed to do in prison."

       In re E.A(f.• 944 A.2d 79, 84 (Pa.Super.2008). "It is i �umbent upon he judicial system to be
                                      ll                                                     I


       c�ild·fo+ed."                          Iii   re R.J.S., 36 A.2d at 579.
                ;                     ,I
                '       · T�is family came to the attention of BCCYS in 2011 due to M ther's testing positive for
                                      ff                             .                       '
       illegal sujstances upon giving birth to F.S.H., who als �ested positive for methadone.' The
                I                     II                                                         .
                    r                 II                                                     I



       afency o�ened t�e ca���or investigation and in-home �rvices on Mar h 5, 2012. In 2015,
       3
                Mother t�tificd that her positive test was for prescribed methad ·rte .
   . '                                I                                                          I
                    !
                    I                    iI                                      3
                                      I  I




                                      :1
. I              II
  I              lj
  !                i

  .
                 ,I
                 r                                                 i
  j
  i
                 IiiI                                              I
further and on-going reports of substance abuse and m ntal health co ems caused BCCYS to
                 ,I
                 'I

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


and cons�stency with the services and alleviating the a ency's concer1s.
                 iJ                                                I
       F]�S.H. wa.s adjudicated dependent in Decembe �015, but her mained in the physical
         !j'!                                '        i
                                                                       I

cistody this parents.      \ (1        2016, S.N.H. · as born prema rely and addicted to

opiates, fodeine, and morphine, which required her to emain
                                                       .                          1
                                                            hospital\zed until March 24, 2016.
                                                                  fI
                 !i                                                               I
As the result of a drug raid, Father was incarcerated 011February 10,·2r:l 6 on charges of
      :          1:                                                    I
t>lanufac�e
            and possession of drugs. On February 11                fO 17, custody of F. S .H. was transferred
to BCC'fi�. On March 7, 2016, Mother was incarceratl �· Upon her r�lease from the hospital,

                �as adjudicated dependent and custody was a                       I
                 11                                                t

S.N.H.                                                            arded to BCCiS.
                  'I
                  ',                                               I
                                                                       I
                iother
                         and Father were ordered to participate· : services, incl ding parenting education,

mental h�alth evaluation and any recommended treatn nt, drug and alrohol evaluation and any
 .               ji                                                    I
      I           ,'

recommended treatment, random urinalysis, and case ork. The paren s were also ordered to
                  ;!                                                   t                                -
                  11
e�tablishj�nd maintain a stable environment.                           ,
      l!I           l
                �other and Father both remained incarcerated hroughout the hildren's placement.
                  ·1                                                   '
1jhey co�pleted a few educational programs in jail. As bf the time of earing, Father was
                  ·:                                               t

participating in a Therapeutic Community program an
      I          ii
                                                                   !AA and NA i       prison. Mother was
ergaged
                 t� a four-month-long drug and alcohol outpati : t program            meets weekly as well as
other ed��ational programs. She also testified to meeti 1g monthly wi          tht    a psychiatrist.
      l           i)
      I     '     ·.                  '                       '                           '

      !V{!ith the exception of a May 3, 2017 special cl�sure visit beinl granted to Mother by the
 I       ji                                            .111
dourt, M�ther and Father have not seen the Children si ce prior to the ir respective
                  'I
      i
      I


      I
                  !'I
                  [I
                                                                   lI
      II          Ii11
                                                                       I
      I          !I                                                i
      II         I.
                 I;
                                                                   I
                                                                   I
  1
                 IIii                                    4         I
                 1:
                 ,I
                 ,!
                  .,,
                  :·
                  :

                    I
                    I                                                          '
                    I                                                          .
iOcarcerl\ions.4                        Father has had some telephonic conti� with F.S.H. iomjail, but active re-
directio�Jwas required due to Father's inappropriate llguage and c:on ersation topics! Mother
                                                                     �
                                                                            or�
has also ad telephonic contact, but she is limited to                                              monthly call rom her current detention
                   i
                   I                                                               .
at boot c'                         p. Mother testified that she also sent emai messages to her father to pass to F.S.H.
                    I
                    I
                                                                               *   .
          other and Father have maintained contact wi BCCYS via ters and several casework
                                                                                                               I

service
 .
        s�ssions
                 at the jail. No letters addressed to the �hildren were reduced. At no time have
                       !I
                                                                                                              lf
they exp!�ined how they intend to establish and maint �n long-term el ironments that will be

safe for �1emselves or the Children.
 i                      :!                                                             .                                          '
 '       Jother has a criminal history dating back to 2 05, mostly for irug-related offenses, some
 .        ljIL                                             ';
retail thefts, traffic citations, and probation violation. he has been st ggling with drug abuse -
                        I!
                                                                                       = she
                                                                                       I
first mar�uana then cocaine- and mental health issu�J                                                      was bout 14 years of age

( 1997). th• started using heroin when she was 18. SI � has been in a umber of inpatient
r�habiliti�ion
               facilities, but she has failed to maintain obriety.
                  I�she
                        ·I                                                                 .
                                     remains compliant, Mother is due to be r leased from bo t camp on November 15,

2Pl 7. HJr current plan upon release is to reside with 1 tjr father in Ne Jersey. She will rely on
     I                       .
     .                   II                                    .
h�m fina1tcially until she can find employment.                                                                    is in agreement with
     '                      ii
     i                      :1            .
having Mother reside with him and has maintained co tact with the C ildren, he has not
     :I                     ,'II                                             .u
indicatedto BCCYS that he is a long-term resource fo
     :                      II
       Mother has a third child who was 14 at the tim pf the hearing. During this child's
         I
         I


         �oncerns
iJfancy,          over Mother's care of this child and 'er substance a use caused the
          ·                  'I                                                                i
iJvolveJbnt of the Warren County, New Jersey Child kotective Services. This child has been
          :         'I                                                                         j
          .i        'i1                                                                        i
                                                                                               .
4
               closJ�e                                            c3Jsent
 the          visit :�is scheduled in light of Mother's signing a         to the ChildrEn's adoption on April 26,
2017. Mother testified that she signed the consent because she d\� not want to drag the Children through the
process anj,;more, they were comfortable in foster care, it was goijg to be difficult to get her life back on track, and
�e foster parents agreed to post-adoption contact. Mother revoke ; the consent on ay 16, 2017 because she lost
her trust in   foster family. ithe                                   :
                                                                                               I
                              .                                         s
                              I

                                                                                               I
                              !I
                              ,,
                              11
                    I
                    II
;                                                                                 I
.                                                                                 I
                                                                                  iy
in the cJ tody of his paternal grandmother in New Jer                                                  since he wa about one year old.
                    !                                                              I


                    t
Mother stifled that her last contact with him was by �tter approximately two months prior to
                                                                    iniarceration.
the heaj g and that the last time she talked to him wa �rior to her
        irher                                         ofinses
 :            has a criminal history of drug-related          dating       to 2006. His first
          t was at age 25. His drug history is
ihcarcertion
                                                  simili!to
                                                            Mother's. · e started using marijuana
                                                                                                                btk
i.
            hen hej as 15 years old (1982) and heroin when he �as 28 (1995). e had periods of sobriety,
                         I                                                I       I:
the long i st being up to four years, but the longest perir� after conceiJ.:ng F .S .H. was perhaps
                .        I                                                                 ,
                         1                                                                 •
tro yea1i . Relapse and return to COUli was a regular rblem for Fatlrr.
                                                                                 pf
    I           �   I{ ther has two additional children, a daughter, � 1, and a son, 8. He claimed to have

                         I
some �o tact with them prior to his incarceration. He fStified that he "made a mistake" with his

qlder son, who after seeing Father in and out of jail ha experienced h sown incarcerations.
                             !
Father d es not want the same thing to happen with F .. H. By the sa e token he acknowledged
                                                      rily.
                        J
tat his istakes have caused his separation from the·         Father lelieves he can teach the

c;hildr                               a lot, including what is right and wrong, oncJ �e gets himselpogether.
                             j

        i           � ther is serving a four to twelve year sentenc, for which he iJ RRRI eligible.                                  He

testifled
   .      I at he had another year left, hopefully Augu. !2018, but evJ with RRlU eligibility his
        I
!Uinim) release date would not be until early 2019.
                                                                                               !                  'f
                                                                                               :e anticipates bring paroled to a halfway

IJ,ouse w: ha slow transition into the community, Fat � hopes that Mrher will successfully

complete boot camp and move on from there to obtain,.•qustody of the fhildren so he might too
 I      I
                                                      !:                           •
follow a imilar path to reunification. Much of Fatherjs plan is "hope lly."
        ,
        I
                                 I                                                 .
                                                                                       .       ,1




        ,           'iJ S.H. has been fortunate to escape long.. term 1rects of in uter.                               drug 'exposure.
                                                                                       1l1needs
Contrari� , S.N.H. is a developmentally delayed speci·                                                      child, b t she is doing well with
            I                    I
            I                    •
            •                     .                                                                I
services.11 The foster parents have actively and ably me �he Children's needs. The Children are
            I                                                                                      I
            I
            I                     I·                                                               I
                                 lI                                         6
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                           I
                           '
                                                                                                I
                                                                                                I

thriving] n. their foster home, and they are bonded to t eir foster paref. Any bond that the

Childre� might have had to Mother and Father has de e�orated to the oint that severance would
:         I                                              \
not detri1
            entally affect the Children. Fortunately for le Children, thp foster parents are long-
 ·        I                                               I             J.
term res urces who can continue to meet their develo mental, physic 1, and emotional needs.
                               I                                                                    I

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

again. � .H. was an infant when her parents were re : oved from he� and would have no
                                   I                                                                !                        I
rn emory\pf
    .       them.                                         The Children's guardian ad litem b t/eves termination of parental rights is best
        I                          ,I
fpr both lhildren.



�ave
        !
                         notl
                                   : ith the exception of the closure visit between Mother and F
                                                   een the Children since February 2016. In
                                                                                              th�f                           lH.,   Mother and Father

                                                                                                                time the onlylreason the Children

(f.S.H. ; ore so than S.N.H.) even know that Mother Tid Father contil°e to exist has been the

occasion: 1 telephone call. The Children have receive: po letters, card , gifts, nor any other
            I                          :
parental I upport ··· financial, emotional, or otherwise.                                                       ithout the fos er parents, the Children
 .        !

                          h1 e been completely without support or any o
                                                   1

tould                                                                                                   .er kind of par ntal control and
            I                                                                                           I
            I                                                                                           ,
spbsist°') e. Given their ex tensive history of drug abu � and incarcer,tion, and given that

�other � d Father will each be incarcerated for at leas lseveral more                                                            onths with a slow
                                           I
                I                          I

transitio ' to the community thereafter, the Court has n I expectation t t Father or Mother can or

Jm'  rem
          !ciy
               their failures as parents and be 100% avai �ble for the Ch ldren in a reasonable
                :                          I                                                                '

p:eriod ottime. The needs and welfare of the Children are paramount nd cannot be held hostage
                •                          I                                                                I
                l                          .                                                                I
                               .1                                      ·                            ·I                                  ·
    for an u pecified and uncertain time that is more con enient for Mot er and Father to hopefully
                I                          I                                                                i
                    i                      I
    one day 'e able to perform parental duties.
                    l
                    I

                                               !
                    'i



                    Ii                                                                  7
                    I
           I                                                    I
        lf;1,e Children are doing very well in their fostel �ome. They a e bonded with their foster
parents t; whom they look for love, safety, and suppo � Freeing the hildren for adoption will
           !                                                     I


provide t em with the opportunity for permanency an !stability and ill be in their best interests.
        I                                              I

       R r the foregoing reasons, the Court entered it Decrees termilating parental rights of

fy!other           d Father to the Children.

                                                                      BYTJOURT:


                                                                      �t:ts� ZL-,-
 i
 •

for Father:
               i ,
               I
                                                            tr I
                                                               !
                                                                      S;"'.t
Distributio : Clerk of the Orphans' Court; BCCYS Solicitor; Gu rdian Ad Lltem;,
                                                                        � .
                                                                               D!eller,
                                                                                          U           ,
                                                                                ttomey for-Jvfoth.�.r;·Attorney
                                                                                                      ...




                                                        8
