HomeMy WebLinkAbout2006-23 Adoption
IN RE: : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
A.K., :
BORN, FEB. 4, 2004 : NO. 23 ADOPTIONS 2006
:
L.K., :
BORN, FEB. 4, 2004 : NO. 24 ADOPTIONS 2006
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., August , 2007
Father has appealed our order of June 4, 2007 terminating his parental rights. He
alleges that we erred in terminating parental rights under Sections 2511 (a) (5) and (8) of
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the Adoption Act.
FACTUAL BACKGROUND
On June 4, 2004 these girls were placed by Cumberland County Children and
Youth Services on an emergency basis because of suspected physical abuse. Over the
next few months several hearings were conducted before the Dependency Master. On
January 12, 2005, this court approved the Master’s Report and adopted his recommended
findings that 1) the children had been abused; 2) they were dependent; 3) father
perpetrated the abuse; 4) mother was responsible for the abuse by omission; and 5)
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aggravated circumstances existed as to both parents. Both mother and father appealed
from that order.
Our “Opinion Pursuant to Pa. R.A.P. 1925” filed in connection with those appeals
summarized the facts leading to placement as follows:
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See “Concise Statement of Matters Complained of Pursuant to Pa. R.A.P. 1925(b)”. In reviewing the file
we note that the Agency’s Petition only requested that father’s rights be terminated under 2511 (a) (8).
Therefore, our finding that grounds for termination were also established under 2511 (a) (5) was in error.
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See CCC&YS Exhibit # 11.
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A.K. and L.K. were placed on an emergency basis because of suspected
physical abuse. Pictures taken of the babies on that date showed that each
child had extensive bruising on her face and body as well as dried blood
under her fingernails and toenails.
Skeletal surveys were performed on each child at the Hershey Medical
Center. A.K.’s survey showed that she had sustained 18 rib fractures and
12 fractures of her arms and legs. In addition, she had a possible skull
fracture. Her sister L.K. had sustained 17 rib fractures. All of the
fractures on each child were in various stages of healing, indicating that
they occurred at different times.
Dr. Danielle Boal interpreted the skeletal survey. She is board certified in
radiology and pediatrics. It was her opinion that the majority of the
fractures could not have been caused accidentally. She further opined that
they were caused by various intentional actions, i.e. shaking the children,
as well as bending and jerking their extremities.
Other physicians testified regarding the non fracture injuries, including the
blood under the fingernails and toenails, as well as the extensive bruising.
They concluded that the majority, if not all, of those injuries had been
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intentionally caused.
Both parents were eventually convicted of criminal charges in connection with the
injuries inflicted upon their children. Each was sentenced to prison. Mother received a
four to twelve month sentence in the Cumberland County Prison. Father was sentenced
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to serve three to ten years in a state correctional institution. Mother has been paroled.
Father will not be eligible for parole until the end of November 2008. His maximum date
is November 2015.
In November of 2005 we conducted a permanency review hearing at which time
we changed the goal from “return home” to “adoption”. Both Mother and Father filed an
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See CCC&YS Exhibit # 10. We note that the Superior Court affirmed our decision in a “Memorandum
Opinion” dated December 29, 2005.
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Mother has consented to this adoption.
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appeal from that order. The Superior Court reversed us, directing that the Agency should
continue its efforts to reunite mother with the children.
At the permanency hearing of November 29, 2006, we again changed the goal
from “return home” to “adoption”. The driving force behind the goal change was
mother’s desire to have the children adopted by the foster parents with whom they have
lived for the vast majority of their lives.
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 the provisions of Section 2511 (a) (8) of
the Adoption Act. The particular provision of the act relied upon by the Agency provides
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:
. . .
(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
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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.
Pursuant to that section the Agency was required to prove by clear and convincing
evidence that 1) the children had been removed from father’s care by the court; 2) twelve
(12) months or more have elapsed from the date of removal or placement; 3) the
condition which led to the removal of the children continue to exist; and 4) termination of
parental rights would best serve the needs and welfare of the children. In re: L.S.G. 767
A.2d 587, 589 (Pa.Super 2001). We were satisfied that the Agency met its burden of
proof in connection with each of those elements.
The first two elements are not contested. We entered an emergency order on June
4, 2004 authorizing the removal of the children from their parents’ care because of grave
concerns for their safety. They remained in placement continuously until we entered the
order terminating father’s parental rights on June 4, 2007, thirty six months to the day
after their initial placement.
The conditions which led to the placement continue to exist. It is still not safe to
return the children to father. While he had been generally cooperative with the Agency
and had achieved most of the goals in his permanency plan, there had been virtually no
progress towards alleviating the circumstances which led to placement. Despite having
been convicted and sentenced, father is still unwilling to accept responsibility for his
actions. Notwithstanding overwhelming medical evidence that the multiple injuries to
these children were intentionally caused, father has consistently maintained that they
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were caused accidentally. As long as he remains in denial, father cannot receive the
counseling necessary to properly address the issues which led him to abuse these
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At the very end of the hearing on June 4, 2007, we again asked father “How were your children injured?”
He responded “When I fell with them, sir.” See Transcript of Proceedings, June 4, 2007, p. 42.
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children. Until those underlying issues are addressed, it will not be safe to return the
children to him.
The final element is the clearest of all. The needs and welfare of the children will
best be served by allowing them to be adopted by their foster parents. They have lived
with those foster parents since they were three months old. The girls view them as their
mom and dad. They have formed a very real bond with their foster parents as well as the
foster family. In addition, they have thrived in the safe and loving environment provided
to them. The foster parents stand ready to adopt these girls and to give them the
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permanency they need and deserve.
_________________ ________________________
DATE Edward E. Guido, J.
Lindsay D. Baird, Esquire
For CCC&YS
Megan Riesmeyer, Esquire
For the Mother
Kathleen Shaulis, Esquire
For the Father
John Mangan, Esquire
For the Paternal Grandparents
Jacqueline M. Verney, Esquire
G.A.L. For the Children
:sld
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It is worth noting that mother has come to share this view. After years of working diligently to be
reunited with her children, she has made the courageous decision to voluntarily terminate her parental
rights because it would be in the best interest of her children to stay with the only parental figures they have
ever known.
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