In Re: Adoption of A.R.B. Appeal of: A.B., Father (memorandum)

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J-A10005-14 NON-PRECEDENTIAL DECISION IN RE: ADOPTION OF: A.R.B. APPEAL OF: A.B., FATHER SEE SUPERIOR COURT I.O.P 65.37 : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : No. 1841 MDA 2013 Appeal from the Decree entered September 24, 2013, Court of Common Pleas, Northumberland County, BEFORE: DONOHUE, ALLEN and STABILE, JJ. MEMORANDUM BY DONOHUE, J.: FILED MAY 06, 2014 September 24, 2013, granting the petition filed by Northumberland County Children and Youth Services pursuant to 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). Upon review of the record and the applicable law, we affirm.1 A brief summary of the relevant facts and procedural history are as 12/6/13, at 1. On October 27, 2011, CYS received a referral that the Child 2 N.T., 1 This appeal involves the termination 2 J-A10005-14 8/28/13, at 10. Father was incarcerated at the Northumberland County Prison at the time. Id. On October 28, 2011, Father signed a voluntary entrustment agreement with CYS and the Child was placed in foster care. Id. at 7-8. On November 31, 2011, the Child was adjudicated dependent. Id. at 12. care on January 30, 2012. After a hearing on March 26, 2012, the Child moved from foster care into kinship care with paternal grandfather and his paramour and resided there until April 24, 2013. During his placement in the kinship home, the Child exhibited behavioral issues. Id. at 42-45. The Ch Id. at 42-44. Paternal grandfather worked away from home for four weeks at a time, she threatened to leave paternal grandfather if the Child was not moved from the home. N.T., 8/28/13, at 51. The Child then moved back into the foster 12/6/13, at 2. While incarcerated at Northumberland County Prison, Father had five visits with the Child. N.T., 8/28/13, at 26. At the visits, the Child and at 63. Father informed the caseworker that he knew the Child was there. Id. at 11. The Child had been living with Father and his paramour prior to Father being incarcerated. Id. at 63-64. -2- J-A10005-14 Father spoke through the phone because they were separated by glass. Id. at 26-27. Father had no visits with the Child after he was moved from Northumberland County Prison. Id. at 78. One visit was attempted while Father was incarcerated at SCI Rockview, but the attempt failed because the Id. at 81-82, 90. However, Father allegedly maintained contact with the Child through phone calls while the Child was placed with paternal grandfather.3 Father provided no financial support to the Child while the Child was in placement and did not send any written corres 12/6/13, at 15. Since Father was released from prison on May 28, 2013, he has only had one visit with the Child. N.T., 8/28/13, at 35. This visit occurred on July 16, 2013. Id. at 35, 135. Three other vis schedule prevented the visits from occurring. Id. at 35-36, 135. presently before this Court was filed in January 2013 while the Child was placed in kinship care with paternal grandfather. Id. questioned a CYS caseworker on cross-examination regarding the timing of the filing since the Child was in kinship care and Father was released from 3 Father testified that he maintained phone contact with the Child while the Child resided with paternal grandfather. N.T., 8/28/13, at 118. However, through CYS, so CYS may have been unaware of this contact. Id.; See also -3- J-A10005-14 incarceration shortly thereafter. Id. at 51-52. The caseworker testified that Id. at 69. According to red to file a petition for involuntary termination is when there are compelling reasons not to, such as when the parent complies with court orders to go to services and maintains housing, or when CYS does not want to disrupt a bond between the parent and child.4 Id. at 69-70. The CYS caseworker testified that compelling reasons were not present in this case because Father had made no progress to go to services or maintain housing. N.T., 8/28/13, at 70. Furthermore, the caseworker testified that terminat rights would have no detrimental effect on the Child. Id. at 70-71. (8), and (b) of the Adoption Act. Father timely filed a notice of appeal and a concise statement of error complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Father raises the following issue for our review: 4 Father asserts in his brief that CYS is not required to file a petition for at 6 (citing 42 Pa.C.S.A. § 6351(f)(9)(i)). Father is correct in his assertion. However, at the time of the termination hearing, the Child was no longer in kinship care with paternal grandfather, and, as will be discussed infra, placement with paternal grandfather is not best suited to the physical, mental and moral welfare of the Child. See infra pp. 11-12. -4- J-A10005-14 te 1. 2511(a)(1), 23 Pa.C.S.A. § 2511(a)(2), 23 Pa.C.S.A. § 2511(a)(5), 23 Pa.C.S.A. § 2511(a)(8) and 23 Pa.C.S.A. § 2511(b) supported by competent credible evidence, in the best interests of the child or justified by necessity? Our standard of review in cases involving termination of parental rights is as follows: When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the decision is supported by competent evidence. In re J.F.M., 71 A.3d 989, 992 (Pa. Super. 2013) (citing In re R.N.J., 985 recor Id. (citing In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003)). Involuntary termination of parental rights is governed by statute. 23 Pa.C.S.A. § 2511 et seq. Section 2511 of the Adoption Act provides, in pertinent part: -5- J-A10005-14 (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 6 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 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 -6- J-A10005-14 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. 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), (b). bifurcat In re B.C., 36 A.3d 601, 606 (Pa. Super. 2012). The initial focus is on the conduct of the parent. The party seeking termination must prove by clear and satisfies at least one of the nine statutory grounds in section 2511(a). If the trial court determines that section 2511(a), then it must engage in an analysis of the best interests of the child under section 2511(b), taking into primary consideration the developmental, physical, and emotional needs of the child. Id. toward alleviating the circumstances that necessitated placement and that it -7- J-A10005-14 and was not the result of an abuse of discretion or error of law. In thi with regard to any one subsection of Section In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004). Therefore, we focus our review of this case on section 2511(a)(8). Under section 2511(a)(8), CYS is required to prove the following: (1) the child has been removed from the care of the parent for at least 12 months; (2) the conditions that 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 I.J., 972 A.2d 5, 11 (Pa. Super. 2009) (citing In re C.L.G., 956 A.2d 999, 1005 (Pa. Super. 2008) (en banc)). We will address each of the three elements separately. The first element of section 2511(a)(8) has unquestionably been met in this case. The parties stipulated at trial that the Child was placed into the care of CYS on October 28, 2011 when Father signed a voluntary entrustment agreement with CYS. N.T., 8/28/13, at 7-8. The parties also stipulated that CYS filed the termination of parental rights petition on -8- J-A10005-14 January 29, 2013. Id. at 8. Thus, the Child had been removed from meets the 12 month requirement under section 2511(a)(8). The second element goe His incarceration left the Child without parental supervision, a parental Court Opinion, 12/6/13, at 19. At trial, Father testified that prior to being incarcerated, he had cared for the Child for 4 years, providing food, clothing, shelter, and medical assistance. N.T., 8/28/13, at 122. Father repeatedly expressed his desire to be with the Child and his intentions of working towards being able See id. at 116, 119, 124. At the time of trial, Father had been taking parenting classes without being ordered to do so. Id. at 122, 137. He further stated that but for incarceration, he would have still been available to the Child. Id. Although Father expressed a desire to be with the Child and be a remedy the conditions that led to plac In re Adoption of R.K.Y., 72 A.3d 669, 679 (Pa. Super. 2013) (citing In re R.J.S., 901 A.2d 502, 511 (Pa. Super. 2006)). Instead, the relevant inquiry -9- J-A10005-14 under the second element of section 2511(a)(8) is whether the conditions that led to the placement of the child continue to exist. Id. at 679-80. In this case, the conditions that led to the placement of the Child continue to exist. Father admitted that he cannot parent the Child yet and ther care for the Child until he is able to provide for the Child. N.T., 8/28/13, at 116. Father has a one- bedroom apartment, has not obtained employment, cannot provide a timeline for when he will be employed, and has no income other than money that his mother provides to him. Id. at 125-26. Although Father may be able to remedy the conditions that led to the placement of the Child at some indeterminate time in the future, and although he is arguably making progress towards that goal, at the time of the termination hearing, Father remained unable to remedy the conditions and unable to provide proper parental supervision, appropriate housing, care, or provision. Therefore, the second element under section 2511(a)(8) has been satisfied. With regard to the third element of section 2511(a)(8), the record for over two years. As this Court has repeatedly acknowledged: We recognize that the application of Section (a)(8) may seem harsh when the parent has begun to make progress toward resolving the problems that had led to the removal of [his child]. By allowing for termination when the conditions that led to - 10 - J-A10005-14 removal continue to exist after a year, the cannot be held in abeyance while the parent is unable to perform the actions necessary to assume parenting responsibility. This Court cannot and will not subordinate indefinitely a future. Indeed, we work under statutory and case law that contemplates only a short period of time, to wit eighteen months, in which to complete the process of either reunification or adoption for a child who has been placed in foster care. In re I.J., 972 A.2d at 11-12 (emphasis added). As previously discussed, Father is unable to remedy the conditions that led to the removal of the Child of F care for the Child, Father has no definite timeline for when he will be able to do so. In the meantime, Father wishes for the Child to be placed in kinship aternal grandfather has already demonstrated that he cannot care for the Child and cannot provide a permanent, stable, placement option. The paternal grandfather spends a lot of time away from the home due to work, leaving the Child with his paramour and their young child. 8/28/13, at 51. N.T., The Child exhibited behavioral issues while previously placed with paternal grandfather which created stress in the household. Id. at 42-45, 51. The stress of caring for the Child jeopardized the relationship between paternal grandfather and his paramour, which led to the paternal grandfather requesting CYS to return the Child to foster care. Id. at 51. - 11 - J-A10005-14 In addition, the foster mother testified that after the Child returned to placement with her family, paternal grandfather requested a visit with the Child that was arranged to last for four days. Id. at 99. However, after only 24 hours together, paternal grandfather arranged for the Child to return to the foster family. Id. at 99. Thus, the record supports th finding that paternal grandfather is unable to provide a permanent, stable, placement option for the Child. Accordingly, we hold that the record pursuant to section 2511(a)(8). Although the statutory requirement for involuntary termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the Child. This Court has held that it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child the love, comfort, security, and closeness entailed in a parent-child relationship, as well as the tangible dimension. Continuity of relationships is also important to a child, for whom severance of close parental ties is usually extremely painful. The trial court, in considering what situation would best the status of the natural parental bond to consider would destroy something necessary and beneficial. - 12 - in existence that is J-A10005-14 In re Adoption of K.J., 936 A.2d 1128, 1134 (Pa. Super. 2007) (citing In re C.S. that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster In re T.S.M., __ Pa. __, 71 A.3d 251, 268 (2013) (citing In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012)). relationship based on affection and emotional attachment, but that a bond Opinion, 12/6/13, at 25-26. Testimony at trial established that the Child knew who his Father was, had friendly visits with Father, and exhibited affection towards Father. N.T., 8/28/13, at 46-48, 70. However, Child does not really speak about Father when they are separated. Id. at 100, 110. Conversely, the record establishes that the Child is bonded with his foster family. The Child paternal grandfather], he was a little uneasy about going because he Id. at 99. Paternal grandfather testified that the Child wants to be with the foster family because of his Id. at 84. The parents are going to adopt him, and tells people at school that Daniel is his - 13 - J-A10005-14 brother. Id. at 99-100. The Child also expressed to his foster parents that Id. at 104. The record further establishes that the Child is responding well to his placement with his foster parents. The Child is doing well in school and plays well with other kids. N.T., 8/28/13, at 103. Furthermore, the Child does not exhibit behavioral issues at school or with his foster family that the paternal grandfather experienced and no longer needs therapy or counseling. Id. at 112-13. The foster parents are willing to be a permanent placement for the child and have thought about adopting the Child if the Child became free for adoption. Id. at 52, 58, 102. The foster parents are also willing to allow the Child to maintain a relationship with his paternal grandfather is beneficial. Id. paternal grandfather, by extension, would permit the Child and Father to remain in contact at some point post- Court Opinion, 12/6/13, at 24. interest of the Child and is supported by competent evidence. The Child is bonded with his foster family which provides him with the necessary - 14 - J-A10005-14 permanence and parental care that the Child needs. The permanence and stability offered by the foster family best serves the developmental, physical, and emotional needs of the Child, evidenc behavioral issues that the Child exhibited prior to placement with the foster rental rights would not have a detrimental impact on the Child. As a result, we conclude that subsection (b) has been satisfied in this case. Accordingly, we To the extent that forth in its December 6, 2013 opinion. Decree affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/6/2014 - 15 -

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