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HomeMy WebLinkAbout100 Adoptions 2010 IN THE INTEREST OF: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA K.S., DOB: 05/30/06 : : 100 ADOPTIONS 2010 : J.S., DOB: 07/01/08 : 101 ADOPTIONS 2010 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., April 1, 2011:-- Procedural Background On February 16, 2011, this court heard testimony on the petitions of Cumberland County Children & Youth Services, (CYS) to review and determine the permanency plans of minor children K.S. and J.S. and to terminate the parental rights of natural mother, K.K. (mother) and natural father, R.S. (father). Following a lengthy hearing, this court granted both requests for termination and, in the related dependency court matters, the court changed the permanency goal for both children from reunification to adoption. Mother filed a timely notice of appeal and concise statement of matters complained of on appeal on March 14, 2011, in the Orphans’ Court matter alone. Said statement having been timely filed and received in accordance with the Rules of Appellate Procedure, the court will now address the issues raised in the Orphans’ Court proceeding pursuant to Pa.R.A.P. 1925(a). Factual Background K.S. was born on May 30, 2006. Within months, in October, 2006, CYS became involved with the family due to the parents’ unmanaged mental health concerns. Over the next few years, CYS was involved in numerous referrals including but not limited to 100 ADOPTIONS 2010 101 ADOPTIONS 2010 substance abuse by both parents, an eviction related to drug use, inappropriate supervision of K.S., inadequate shelter for K.S., the diagnosis of K.S. with insulin 1 dependent diabetes, and mental health concerns for both parents. In the midst of these various referrals, J.S. was born on July 1, 2008. Ultimately, on April 9, 2009, K.S. and J.S. were found to be dependent and removed from the home and placed with foster parents. The basis for the dependency adjudication was the continued parental drug abuse, unstable housing, and inadequate supervision. The children were returned to their mother’s care on September 25, 2009, but were returned to foster care on December 18, 2009, due to the mother’s inability to control her substance abuse problems and her inability to meet the medical needs of K.S. On December 10, 2010, CYS filed a petition for involuntary termination of mother’s parental rights, alleging the following grounds: 1. 23 Pa.C.S. §2511(a)(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. (Emphasis added). 2. 23 Pa.C.S. §2511(a)(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 parent are not likely to remedy the conditions Court Exhibit 1, Cumberland County CASA report to the court (CASA), p. 2 and 1 3. -2- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 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. (Emphasis added). 3. 23 Pa.C.S. §2511(a)(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. (Emphasis added). 4. 23 Pa.C.S. §2511(d). 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. (Emphasis added). Here, CYS bears the burden of proving the grounds for termination by clear and convincing evidence, “a standard which requires evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” In re K.T.E.L., 983 A.2d 745, 750 (Pa. Super. 2009). Sadly, this matter presented such evidence, and the court must terminate the mother’s parental rights. Discussion In addressing the aforesaid grounds, the court will focus on four aspects of the permanency plan developed for mother and her inability and/or unwillingness to comply therewith. Specifically, the court will address: (1) mother’s drug and -3- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 alcohol problems, (2) mother’s mental health, (3) diabetes management, and (4) stable and safe housing. 1. Mother’s Drug and Alcohol Problems First, mother’s permanency plan required her to cooperate with a drug and alcohol evaluation, follow any recommendations given, and submit to random drug tests. As previously noted, mother has had a problem maintaining sobriety since the initial referral to CYS and has engaged in drug and alcohol treatment four times since the children were found to be dependent. A little over a month after the children were returned to her in September, 2009, mother tested positive for marijuana and reentered treatment at Roxbury. She was unsuccessfully discharged in December, 2009, due to noncompliance with the attendance policy (a recurring issue with mother in other areas as well). Mother enrolled a second time in outpatient treatment and was again discharged for noncompliance in April, 2010. In April, 2010, when she was pregnant (though she denied that fact) mother tested positive for marijuana. In June, 2010, mother again tested positive for marijuana, after which she completed a second drug and alcohol evaluation that recommended she participate in individual counseling. In September, 2010, mother was successfully discharged from counseling program. Although mother tested positive for marijuana use and admitted to using Vicodin during her recent pregnancy, she has not tested positive on any further drug screens. Regarding the Vicodin use, mother claims it was “for a bad tooth,” and that she was told by the Sadler Health Clinic that she could take pain -4- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 medication while pregnant. Bonnie Gentile, receptionist at the Sadler Health Clinic acknowledged speaking to the mother on the phone and knowing that the mother was pregnant; however, she emphatically asserted that she refers pregnant women to their obstetrician/gynecologist with questions regarding such medications. Mother’s explanation for using the Vicodin during her pregnancy was not credible with respect to the alleged permission she was granted. Equally disturbing was how she had the pill available. In short, mother claimed that she had received Vicodin as a result of third degree burns on her leg and happened to have it available when her chipped tooth was causing her pain. The court never ceases to be amazed at how controlled substances miraculously appear for individuals with substance abuse problems. Importantly, following this incident in September, 2010, CYS attempted to increase drug screens with mother to two times per week, but mother did not cooperate, either failing to return calls or claiming she had transportation problems that precluded her from traveling to town. On October 19, 2010, when mother gave birth to her third daughter, both screened negative for drugs. At this time the agency tried to increase the screens to three times a week, but was unable to obtain mother’s compliance. In the weeks preceding the filing of the petition for termination, mother refused to take a drug test on three occasions. Although the last drug test taken by mother was on December 12, 2010, and was negative, on five occasions between December 29, 2010 and February 14, 2011, mother was requested to appear at CYS for a drug test but did not return any of the calls. On the last -5- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 occasion, she spoke to her caseworker, Robert Haines, and informed him that she would be in later in the afternoon; however, she did not appear for the drug test. In sum, although mother has not testified positive on any drug screen since her successful completion of treatment in September, 2010, she has repeatedly failed to comply with CYS requests for random drug screens as required by her permanency plan. When asked by her counsel why she refused a drug test on October 14, 2010, her response was “I don’t recall.” Mother claims to have never made an outright refusal to take a test and also asserts that CYS refused to return her calls, an assertion we find incredible. To the contrary, we find that her actions speak much louder than her words. Mother’s substance abuse concerns are just as troubling now as they were when the children were declared dependent in April, 2009. 2. Mother’s Mental Health Another integral part of mother’s permanency plan from the inception of this saga was that she manage her mental health concerns. Following an updated drug and alcohol evaluation in November, 2010, it was recommended that mother resume management of her mental health needs. Again, the testimony of mother’s caseworker revealed a pattern of noncompliance in the management of her mental health issues since the agencies first referral in October, 2006. Following a March, 2010, psychiatric evaluation through Holy Spirit Hospital, mother was diagnosed on Axis I with bi-polar affected disorder II, most -6- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 recent depressed and on Axis II with personality disorder, NOS with dependent features. Although it was known that mother was pregnant at that time it was recommended that she resume use of the medication Abilify and was informed that the benefits would far outweigh any possible risk to her child. She was directed to call Holy Spirit Hospital after discussing the use of Abilify with her obstetrician, but once again mother did not follow through and, in fact, failed to appear for an appointment at Holy Spirit Hospital on May 5, 2010. With respect to her mental health needs, mother testified that she might take her medication “once a day for irritability.” Regarding her need for counseling, she acknowledged having failed to attend an appointment in December, 2010, with Momentum Services. When asked if she called the agency to report her inability to attend, she responded “No.” When asked by her counsel why she did not attend, her response was simply “Don’t know.” Similarly, mother’s attorney inquired about her attempts to contact the Stevens Mental Health Center for treatment and mother noted that she called on January 6 but hung up when she found it would take six to eight weeks to get an appointment. Mother testified that she called Stevens Center again on the day before the hearing, February 15, 2011, and when asked by counsel why, her response was “I don’t know . . . I know I need help.” It is not comforting that mother has only come to this realization on the eve of the termination hearing. As with her substance abuse, with every small step forward over the past two years, there has been a corresponding step backwards. -7- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 3. Diabetes Management Mother’s permanency plan also requires her to participate in diabetes management training at Hershey Medical Center. Although mother did participate in training in April, 2010, she has not demonstrated an understanding of the importance of maintaining K.S.’s sugar levels. Moreover, when the children are with the kinship providers, mother has not been involved in caring for K.S.’s diabetes, and the care K.S. gets falls short of this mark. As the CASA summarized: [K.S.’s] blood sugar levels have been poorly controlled during community visits at [grandfather’s] home while under the care of [grandfather’s] nieces, both of whom had offered to provide medical care for [K.S.]. On several occasions, [K.S.’s] blood sugar logs were not completed, her ketone levels were not monitored following two or more high blood sugar readings, and inappropriate levels of insulin were administered. All of these actions contravened the direction of [K.S.’s] pediatric endocrinologist. As a result, [grandfather’s] informal kinship application has been denied by CYS. The supporting kinship applications by [grandfather’s] nieces, [T and T], were 2 also denied. Not surprisingly, given mother’s failure to attend her own appointments, she has also failed to attend appointments regarding K.S.’s diabetes. In fact, when mother was asked on direct examination whether she had attended doctor appointments for K.S., her response was simply “No.” And when asked if she tried to talk to CYS about this, her response, in keeping with all other responses, was “No, just haven’t.” Regarding her attendance at the doctor appointments for CASA at 4 and 5. 2 -8- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 J.S., mother noted that she had no idea when those appointments were nor was she sure who the pediatrician was. In keeping with her pattern of behavior, she did not bother calling CYS to inquire. With respect to mother’s ability to adequately care for her insulin dependent daughter, the child’s pediatric endocrinologist, Dr. Margaret D’Arcangelo, noted that if the child has a high hemoglobin A1C levels over the course of time, there is a thirty percent increase in complications that may damage the child’s kidneys, eyes and nerves. In comparison to the excellent care K.S. has received with her foster family, on at least three occasions when the child has been in mother’s care, she has had high A1C tests. Given the universe of problems surrounding mother and her inability to care or cope with them, the court is chary to trust K.S. to mother’s long-term care given the potential dire consequences. 4. Stable and Safe Housing Finally, mother’s permanency plan requires her to obtain and maintain stable and safe housing to accommodate the children and to secure and maintain a regular source of income. Because these problems pale in comparison with those previously addressed, we will not belabor the point. Suffice it to say that the record will show that the mother has bounced around from house to house and lied to the agency about repeated evictions. She currently lives with eight other individuals; an arrangement, that even K.S. related 3 to the CASA as being inadequate. Two statements of the caseworker summed matters up well. First, with respect to mother’s credibility, in particular, and her CASA at 5. 3 -9- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 long-term ability to address her problems, in general, he stated “everything she says I need to do follow-up because she has lied about various things.” And, finally, in response to a series of questions from guardian ad litem for the children, he stated “I’m not seeing her really working hard at any of this.” The court concurs in this assessment. On the basis of the foregoing and all of the evidence presented to the court, there was clear and convincing evidence to prove each ground for termination. In sum, mother has caused the children to be without essential parental care and those conditions and causes cannot be remedied by the mother in a reasonable period of time, if ever. In fact, those conditions continue to exist with relatively little improvement since the children were first found to be dependent. To say that the children have languished over the past two years would be an overstatement because CYS and the foster parents have prevented them from wasting away. However, we are convinced that had the children spent 20 of 22 months with mother, their prognosis would be bleak. Therefore, we find that termination of parental rights will serve the best interests of K.S. and J.S. Having found the grounds to terminate the parental rights of mother exist under Section 2511(a), the court turns to the provisions of 2511(b) and the question of the existence of an emotional bond between the children and mother and whether that bond should be preserved. From our review of the CASA Exhibits and the testimony presented in court, we acknowledge that a bond exists between mother and her daughters; however, the children have formed bonds with their foster parents as well, and we find that the existence of this bond -10- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 will enable mother’s bond to be severed without causing irreparable harm to the children. Foster mother’s testimony was credible not only with respect to bonding but in all respects. The foster parents are clearly better able to care for the children’s general needs and for K.S.’s particular diabetic concerns. Moreover, they have formed a close bond with both girls, who have in turn bonded with them as well as their adopted son, biological daughter, and other foster child. In determining the best interest of the children under 2511(b), the court must examine whether termination of parental rights would “best serve the developmental, physical, and emotional needs and welfare of the child.” In re T.D., 949 A.2d 910, 921 (Pa. Super. 2008). The court must consider “intangibles such as love, comfort, security and stability” and also “discern the nature and status of the parent-child bond,” paying “utmost attention” to the effect upon the child of its severance. Id. We do not relish making this determination, but termination would clearly best serve the needs and welfare of K.S and J.S. K.S. is receiving proper medical care with the foster parents, and both are otherwise thriving. They recognize the foster parents as “mommy” and “daddy.” They have languished for 20 of the last 22 months waiting for their parents to get their acts together. 4 Although mother is certainly a better parent then father, her efforts to address her needs and the children’s needs have fallen woefully short.It was eminently clear to us from mother’s testimony and demeanor in court that her ability to Father did not testify at the hearing nor has he appealed our order. The case to 4 terminate his rights was proven beyond all doubt. -11- 100 ADOPTIONS 2010 101 ADOPTIONS 2010 address her concerns, let alone those of her daughters, is significantly challenged. We suggest that mother now focus her time and energy on properly caring for the infant daughter who remains in her custody to avoid a similar day of reckoning. Conclusion The agency met its burden to demonstrate not only that a change in the permanency goals for K.S. and J.S. was in order, but also that grounds for termination under Sections 2511(a)(2), (a)(5) and (a)(8) existed. Mother’s repeated incapacity and refusal to perform her duties have caused the children to be without the essential care they require. Because mother fails to recognize or admit the causes of her incapacity, it is clear that no remedy is in sight. Accordingly, it is also clear to the court that termination will best serve the needs and welfare of K.S. and J.S., allowing their adoption by adults who are willing to provide them the care, stability, nurture, and love that they require to continue to thrive. By the Court, Albert H. Masland, J. Lindsay D. Baird Esquire For CYS Sheri Coover, Esquire For the Mother Sean Shultz, Esquire For the Father Cindy Villanella, Esquire Guardian ad Litem CYS :saa -12-