HomeMy WebLinkAboutCP-21-DP-0000256-2008
IN THE INTEREST OF: : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
T.G., born MAY 5, 2008 :
: NO. CP-21-DP-256-2008
: (Clerk of Courts)
: NO. 25 ADOPTIONS 2010
: (Orphans’ Court)
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., July , 2010
Mother and Father have each filed timely appeals from our orders of April 20,
2010 which 1) changed the goal from “return home” to “adoption”; and 2) terminated
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their parental rights. Each has filed a Concise Statement of Matters Complained of on
Appeal pursuant to Pa. R.A.P. 1925. Their allegations of error are virtually identical. In
essence they contend that we erred 1) in failing to adequately consider the extent of their
compliance with the goals of the permanency plan; 2) in finding that sufficient grounds
existed to terminate their parental rights; 3) in finding that termination of their parental
rights would best serve the needs and welfare of the child and 4) in failing to consider the
bond of T.G. with his parents. We will address each of those issues in the opinion that
follows.
FACTUAL BACKGROUND
T.G. was born on May 8, 2008. He was hospitalized in late October 2008 for
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failure to thrive. While in the hospital he gained a substantial amount of weight. On
December 2, 2008, during a weight check, his pediatrician became alarmed because the
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The goal change and termination of parental rights hearings were consolidated.
2
Master’s Recommendation for Disposition, December 4, 2008; CYS Exhibit 1, Termination Proceedings.
3
Master’s Recommendation for Disposition, December 4, 2008; CYS Exhibit 1, Termination Proceedings.
NO. CP-21-DP-256-2008
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parents were not properly feeding the child “despite very specific instructions”. The
infant was placed in a foster home on an emergency basis. His parents were referred to
the Family Assessment Skills Training (FAST) program with the hope that “hands on
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training . . . focusing on feeding” would result in a speedy and safe reunification.
Unfortunately that was not to occur.
T.G. is a child with very special medical needs. In addition to the failure to thrive
diagnosis, a heart condition requiring surgery was discovered shortly after he went into
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placement. He also had developmental delays which required extensive therapy.
The agency made appropriate services available to the parents so that they could
learn to safely care for T.G. Nevertheless by late April 2010 they were still not in a
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position to have him return home. While Father is very nurturing, his limited intellect
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prevents him from properly caring for T.G. on his own. Mother, on the other hand, has
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consistently shown a lack of motivation and seeming disinterest.
Because of father’s limited abilities, mother’s lack of motivation and the large
amount of chaos in their lives, they made little progress in learning and applying the
skills necessary to safely care for T.G. They attended only about one half of T.G.’s
appointments with his primary care physician, even though they were scheduled months
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in advance. When they did attend they were not attentive to the vital instructions on
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proper feeding. Likewise they did not focus during the child’s in home physical
4
Master’s Recommendation for Disposition, December 4, 2008, CYS Exhibit 1, Termination Proceedings.
5
Master’s Recommendation for Disposition, December 4, 2008, CYS Exhibit 1, Termination Proceedings.
6
Notes of Testimony, April 14, 2010, p. 11.
7
Notes of Testimony, April 14, 2010, pp. 22, 23, 24, 25, 26.
8
Notes of Testimony, April 14, 2010, pp. 57, 58.
9
Notes of Testimony, April 14, 2010, pp. 56, 57.
10
Notes of Testimony, April 14, 2010, pp. 7, 8, 24, 25, 31, 37, 47, 65, 82, 83.
11
Notes of Testimony, April 14, 2010, pp. 4, 7.
12
Notes of Testimony, April 14, 2010, p. 7.
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NO. CP-21-DP-256-2008
therapy sessions, being pre-occupied with other matters. The therapist also indicated that
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their follow through on her instructions was limited.
Throughout the placement the parents often demonstrated their inability to care
for T.G. They exposed him to unsafe situations, lied about administering his required
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medications, and failed to properly feed him. When he came home from visits he was
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usually dirty and hungry.
Finally, the self imposed chaos in their lives made it virtually impossible for the
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FAST program trainer to provide the necessary services for reunification. The
overnight visits with T.G. stopped in April of 2009 because the parents were displaced
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after a fire caused by father throwing a lighted cigarette into the garbage. Thereafter the
unsupervised visits became supervised when they violated a safety plan by allowing
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mother’s boyfriend (and the father of her new born child) to move into their home. The
boyfriend had an extensive criminal record and was subsequently incarcerated after a
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domestic violence incident in which he broke mother’s wrist. The Agency discontinued
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parent training in September when they were evicted from their home.
At the permanency review hearing held on October 30, 2009, almost 11 months
after the child’s placement, the Agency stated its intention to ask for a goal change to
13
Notes of Testimony, April 14, 2010, pp. 24, 25, 26
14
Notes of Testimony, April 14, 2010, pp. 17, 18, 19, 34, 38, 39, 48.
15
Notes of Testimony, April 14, 2010, p. 35.
16
Notes of Testimony, April 14, 2010, pp. 53, 54.
17
Notes of Testimony, April 14, 2010, p. 43.
18
Notes of Testimony, April 14, 2010, p. 81.
19
Notes of Testimony, April 14, 2010, p. 81.
20
Notes of Testimony, April 14, 2010, p. 54.
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NO. CP-21-DP-256-2008
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adoption. The GAL indicated that she was in agreement with a goal change.
Nevertheless we directed that “parenting training be resumed, if at all possible with the
to give the parents a chance to establish that they can
parents’ housing situation,
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improve before any hearing to change the goal
” (emphasis added).The training was
reinstated and the parents were authorized unsupervised visits three times per week for up
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to eight hours each.
A judicial conference was held in January 2010. The caseworker reiterated his
concern that the parents were not working diligently enough to accomplish
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reunification. The dependency master directed the parents “to cooperate with services
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and to work diligently toward reunification.” They did neither. They took advantage of
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only a small fraction of the visits authorized in February, March, and April. Their lack
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of visits made it impossible for the parent trainer to complete her mission. While the
parents complained of transportation problems, we were satisfied that mother’s lack of
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motivation and father’s limited intellect were the real problems. They were able to
arrange for transportation to get wherever else they had to be, such as to work, mother’s
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prenatal appointments, etc. Furthermore, after the parents’ car broke down in January
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the foster mother offered to help with the transportation. However, they never took
21
Master’s Recommendation – Permanency Review, November 5, 2009, CYS Exhibit 1, Termination
Proceeding.
22
Master’s Recommendation – Permanency Review, November 5, 2009, CYS Exhibit 1, Termination
Proceeding.
23
Master’s Recommendation – Permanency Review, November 5, 2009, CYS Exhibit 1, Termination
Proceeding.
24
Judicial Conference Report, January 8, 2010, CYS Exhibit 1, Termination Proceedings.
25
Judicial Conference Report, January 8, 2010, CYS Exhibit 1, Termination Proceedings.
26
Judicial Conference Report, January 8, 2010, CYS Exhibit 1, Termination Proceedings.
27
Notes of Testimony, April 14, 2010, p. 46.
28
Notes of Testimony, April 14, 2010, pp. 57-59.
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Father allowed mother to call the shots with regard to scheduling visits.
30
Notes of Testimony, April 14, 2010, pp. 71, 72.
31
Notes of Testimony, April 14, 2010, pp. 33, 72.
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NO. CP-21-DP-256-2008
advantage of her offer. The only explanation given by mother was that she “didn’t feel it
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would be right. . .”
DISCUSSION
Compliance with Permanency Plan
We certainly considered the nature and extent of the parents’ compliance with
their permanency plan. A full discussion of each parent’s “moderate” compliance is set
forth in our Permanency Review Order of April 20, 2010.
Grounds for Termination
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, 1266, 650 A.2d 1064, 1066 (1994). “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
the Adoption Act. The particular provisions of the Act relied upon by the Agency
provide as follows:
(a)General rule – The rights of a parent in regard to a child may be terminated
after a petition filed on any of the following grounds:
. . .
(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
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Notes of Testimony, April 20, 2010, pp. 13, 14.
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NO. CP-21-DP-256-2008
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 parents.
. . .
(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 conditions within a
reasonable period of time, the services, or assistance reasonably available to
the parents 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 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 parents 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), (theAgency) 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 parents 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 parents 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 has 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).
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NO. CP-21-DP-256-2008
Although the Agency 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. While we were
satisfied that the agency had met its burden under all three subsections, we will focus our
discussion on subsection 8.
The child was placed in the current foster home on December 2, 2008 and has
remained there ever since. The reason for the placement included not only his failure to
thrive diagnosis, but also the parents’ inability to properly feed him. As the Master noted
after the initial hearing:
At a weight check on 12/2/08, the pediatrician learned from the mother
that she was feeding the child a mix of powdered formula, rice cereal and
a small amount of premixed formula, which the doctor concluded could be
dangerous and could damage the child’s kidneys, and which was not
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consistent with her very specific instructions to the parents.
At the time of these hearings more than sixteen months had passed since the
child’s placement. The parents were still not in a position to have him return to their care
as the following exchange with the parent trainer illustrates:
Q.Miss Sweger, do you believe that working together between Shannon and
Chad that they can jointly, cooperatively raise T.G.
A.I have seen in the sessions that I have observed that they have the
understanding of what is needed to be done. They can tell me what they’re
supposed to do. They can show me what they’re supposed to do. I have not
yet been able to see them consistently provide that care.
BY THE COURT:
Q.So are you telling me that would you be comfortable with them - - with the
child returning to them today?
A.No.
Q.Okay. Do you think there might come a time when the child could return to
them?
A.It is my personality to give them that chance.
Q.Okay. How much time do you think it would take?
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Master’s Recommendation for Disposition, December 4, 2008, CYS Exhibit 1, Termination Proceedings.
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NO. CP-21-DP-256-2008
A.If - - they’ve - - this is where the quandary is. They have had that opportunity
for the past three months. So I guess the question that everyone has is do they
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want that opportunity. And I don’t - - I can’t answer that.
Thus it was clear that the grounds for removal continued to exist.
Needs and Welfare
We were also convinced that the termination of his parents’ rights would best
serve the needs and welfare of T.G. He has been with the same foster parents for more
than two thirds of his young life. He has bonded with them and they with him. He is
doted upon by the entire family. His medical, nutritional and emotional needs are all
being met. Furthermore, they stand ready to adopt him, thereby giving him permanency
in a safe and loving home.
Failing to Consider Bond with Parents
A consideration of the bond between the child and his parents was part and parcel
of our determination that termination of their parental rights would best serve his needs
and welfare. There was no evidence that T.G. had formed a strong bond with his parents.
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While father was nurturing, mother was “less so”. There was also credible evidence
that mother was detached and uninvolved during her visits with the child.
On the other hand there was substantial evidence that no such bond existed. T.G.
has not spent overnights with his parents since April of 2009. Furthermore, he has gone
extended periods with only minimal contact and no apparent adverse consequences. In
fact he is always happy, even relieved, to be returned to the foster parents. The foster
mother described his behavior after visits as follows:
34
Notes of Testimony, April 14, 2010, pp. 57, 58.
35
Notes of Testimony, April 14, 2010, p. 65.
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NO. CP-21-DP-256-2008
My husband would call him koala baby because he would just like come up, like a
different hold then he normally did and just kind grasp onto us and be very, very
clingy. And if you put him down, he would just be hysterical. So he was very
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clingy, very tired, and very hungry usually after every visit.
______________ __________________
DATE Edward E. Guido, J.
Lindsay D. Baird, Esquire
John Mangan, Esquire
Sean Shultz, Esquire
Jacqueline M. Verney, Esquire
CCC&YS
:sld
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Notes of Testimony, April 14, 2010, p. 35.
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