HomeMy WebLinkAbout2006-113 Adoption
IN RE: : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
ADOPTION OF :
K.J., : NO. 111 ADOPTIONS 2006
DOB: SEPTEMBER 2, 1999 :
:
ADOPTION OF :
J.J., : NO. 112 ADOPTIONS 2006
DOB: JULY 2, 2002 :
:
ADOPTION OF :
B.J., : NO. 113 ADOPTIONS 2006
DOB: APRIL 12, 2005 :
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., April , 2007
On October 3, 2006, Cumberland County Children and Youth Services filed
petitions to involuntarily terminate the parental rights of mother and father to the above
children. We held evidentiary hearings in connection with those petitions on December
13, 2006 and January 26, 2007. At the conclusion of the January 26, 2007 hearing we
entered an order terminating father’s parental rights to the children. At the request of
mother’s counsel we reserved decision on whether or not to terminate mother’s parental
rights to give her the opportunity to supplement the record by submitting additional
exhibits. We allowed the record to remain open until February 15, 2007, but no
additional exhibits were submitted. On February 26, 2007, we entered an order
terminating mother’s parental rights.
Both mother and father have filed timely appeals. The issues raised on appeal by
each party are virtually identical. In essence they contend we erred in finding 1) that the
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agency met its burden of proving by clear and convincing evidence that grounds existed
for termination of their parental rights; and 2) that termination of their parental rights best
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served the needs and welfare of the children.
FACTUAL BACKGROUND
K.J. and J.J. were placed on an emergency basis on October 27, 2003 as a result
of the suspicious death of their three (3) year old brother. Immediately prior to their
placement and the child’s death, all three brothers had been living with their mother, their
maternal grandmother and an unrelated teenager. K.J. was four (4) years old and J.J. was
one (1) year old at the time of placement.
In October of 2004, mother was charged with homicide and various other charges
in connection with her middle child’s death. Her youngest child, B.J., was born on April
12, 2005, while she was in jail awaiting trial on the murder charge. B.J. was immediately
placed into foster care. All three children have remained in foster care since they were
originally placed.
After almost two years of pretrial delays, mother was convicted of third degree
murder, aggravated assault and endangering the welfare of children. On September 5,
2006, she received an aggregate sentence of 18 to 40 years in prison.
During the children’s placement father did virtually nothing to comply with the
terms of his permanency plan. While he initially maintained regular contact with K.J.
and J.J. through supervised visitation, those visits became sporadic after mother was
incarcerated. His last visit with his children occurred on December 2, 2004. Since that
was before B.J. was born, he has never seen her. As of the date of the hearing in this
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See Father’s Concise Statement of Matters Complained of on Appeal, dated March 14, 2007, and
Mother’s Concise Statement of Matters Complained of on Appeal, dated March 21, 2007.
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matter, he was $9000 in arrears on his support obligation. Furthermore, there was an
outstanding bench warrant for his arrest as a result of his failure to appear at a Domestic
Relations enforcement hearing four months earlier.
DISCUSSION
It is well established that a party seeking termination of parental rights bears the
burden of establishing by “clear and convincing evidence” that the grounds exist.
Adoption of Atencio, 539 Pa. 161, 166, 650 A.2d 1064, 1066 (12994). “The standard of
clear and convincing evidence means testimony that is so clear, direct weighty, and
convincing as to enable the trier of fact to come to a clear conviction, without hesitancy,
of the truth of the precise facts in issue.” Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d
1202, 1203-04 (1989).
The petition filed by Cumberland County Children and Youth Services sought
involuntary termination of parental rights under several provisions of Section 2511 (a) of
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the Adoption Act. The particular provisions of the act relied upon by the Agency
provide as follows:
General rule
(a) – The rights of a parent in regard to a child may be terminated
after a petition filed on any of the following grounds:
. . .
(2)The repeated and continued incapacity, abuse, neglect, or refusal of
the parents has caused the child to be without essential parental care,
control or subsistence necessary for his physical or mental well being
and the conditions and causes of the incapacity, abuse, neglect, or
refusal cannot or will not be remedied by the parent.
(5)The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency for a period of at least six
months, the conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not remedy those
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23 Pa. C.S.A. 2501 et seq.
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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 form the care of the parent by the court or
under a voluntary agreement with an agency, 12 months or more have
elapsed form 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.
23 Pa. C.S.A. 2511 (a)(2), (5) and (8).
The Superior Court has described the Agency’s burden under each Section as
follows:
Under section (2), (the Agency) had the burden of proving 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 their 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. Under section (5), (the Agency) had
the burden of proving the child has been removed from the care of the
parent by the court. . . 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. Finally, in the alternative, under section (8), (the
Agency) had the burden of proving the child had been removed from the
care of the parent by the court . . . 12 months or more have elapsed from
the date of removal or placement, the conditions which led to the removal
of placement of the child continue to exist and termination of parental
rights would best serve the needs and welfare of the child.
(citations omitted) In re: L.S.G., 767 A.2d 587, 591 (Pa.Super. 2001).
Although the Agency had filed its petition under subsections (2)(5) and (8), it
only needed to prove the grounds set forth in any one of those sections. Id. We were
satisfied that the Agency had met its burden in connection with each parent. Specifically,
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11, 112, 113 ADOPTIONS 2006
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we found that sufficient grounds existed under 2511 (a) (2) with regard to father. During
the three years they had been in placement father made no effort to meet the goals of his
permanency plan. He took no steps to provide them with a home nor did he take
seriously his obligation to provide financial support. It had been two years since he had
made contact with his children. He did not even bother to attend the hearing held in
connection with the termination of his parental rights.
Mother had been convicted of third degree murder. She will be in prison for at
least 15 more years. Under these circumstances we were satisfied that the Agency had
met its burden under Sections 2511 (a) (2) (5) and (8).
We were also satisfied that termination of parental rights would best serve the
needs and welfare of the children. The boys’ therapist testified that it would be in their
best interest to be adopted. Furthermore, she opined that the memories they had of their
parents were such that termination of parental rights would have no adverse affect upon
them. We concluded that the youngest child, B.J. had no real bond with either parent.
She had very limited contact with mother, having been placed from birth as a result of her
incarceration. She had never met father.
Although we had some concern over the fact that an adoptive home had not yet
been identified, we were convinced that termination of parental rights would enhance the
prospects of locating adoptive families for these children. As the agency caseworker
testified:
Q.The judge is looking for some evidence that the termination
of parental rights would be in the children’s best interests.
How long have you been working in the adoption unit at
Children’s Services?
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Since the children had never been in Father’s care and custody, 2511 (a) (5) and (8) were not applicable.
See In re: C.S. 761 A.2d 1197 (Pa.Super 2000).
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A.Since 1994, 13 years.
Q.There is an organization called the Statewide Adoption
Network, is that right?
A.Yes.
Q.We call that SWAN?
A.Yes.
Q.In your experience, having worked in this field for as long
as you have, what do you know about the SWAN network
and the availability of children for adoption if termination
has taken place or if i8t has not?
A.There is a much larger pool of possible adoptive parents.
Many families who go to SWAN are not willing or open to
accept a legal risk placement. By legal risk, it is a child
whose parental rights have not been terminated. Until the
rights are actually terminated, there is no positive guarantee
that the children will become free for adoption, so there are
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many parents who will not accept a legal risk placement.
Furthermore, she testified that in her personal experience as an adoption caseworker, she
had been one hundred successful in obtaining adoptive placements for children whose
parental rights had been terminated before an adoptive family has been identified. Based
upon that testimony, we were convinced that the needs and welfare of the children would
best be served by granting the petition to terminate parental rights.
__________________ ___________________________________
DATE Edward E. Guido, J.
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Transcript of Proceedings, January 26, 2007, pp. 21 – 22.
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11, 112, 113 ADOPTIONS 2006
Lindsay D. Baird, Esquire
For CCC&Y S
Karl E. Rominger, Esquire
For the Natural Mother
John Mangan, Esquire
For the Natural Father
Jacqueline M. Verney, Esquire
G.A.L. for the Children
:sld
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