HomeMy WebLinkAbout78 ADOPTIONS 2012
ADOPTION OF : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
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IN RE: J. J., : 78 ADOPTIONS 2012
BORN: August 21, 2008 :
: ORPHANS’ COURT DIVISION
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IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., April , 2013
Mother has filed this appeal from our order of January 18, 2013 which terminated her
parental rights to J.J. She contends that we erred 1) because “she is able to provide the child
with essential parental care, control, and subsistence”; 2) in determining that the conditions
which led to placement continued to exist; and 3) in determining the best interests of the child
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would be served by termination of her parental rights. We will address those issues in the
opinion that follows.
FACTUAL BACKGROUND
On April 27, 2011, Cumberland County Children and Youth Services (CYS) received a
referral that Mother had physically abused J.J. The allegation was that she was screaming at
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the toddler “Why don’t you ever F . . . ing listen to me” as she was punching him. She then
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threw him down a flight of stairs.
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Concise Statement of Matters Complained of on Appeal.
2
Transcript of Proceedings, January 9, 11, 2013, p. 32.
3
Transcript of Proceedings, January 9, 11, 2013, p. 32.
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Mother agreed to a safety plan which placed J.J. with his maternal aunt. The plan
further required Mother’s contact with J.J. to be supervised. She violated the safety plan on
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May 10, 2011, resulting in the child’s placement in the agency’s care and custody.
J.J. was found to be dependent on May 26, 2011. He remained in foster care from May
10, 2011 through October 20, 2011, when he was returned to the home of his maternal aunt,
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again with a safety plan in place. He was removed from the aunt less than three weeks later
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because of another violation of the safety plan. J.J. had several foster placements over the
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next few months until he was placed with his current foster parents on May 25, 2012.
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Mother’s assault on J.J. gave rise to various criminal charges. She was also indicated for
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child abuse. The criminal charges were resolved with Mother’s entry of a guilty plea to
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endangering the welfare of a child. On June 5, 2012 she was sentenced to a period of 36
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months supervised probation.
The concerns which led to J.J. being removed from the home included Mother’s
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unstable mental health, lack of parenting skills, her uncontrollable anger, and impulsivity
4
Transcript of Proceedings, January 9, 11, 2013, p. 33.
5
Transcript of Proceedings, January 9, 11, 2013, p. 33 and CYS Exhibit 2.
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Transcript of Proceedings, January 9, 11, 2013, p. 33.
7
Transcript of Proceedings, January 9, 11, 2013, p. 33.
8
Transcript of Proceedings, January 9, 11, 2013, p. 33.
9
Transcript of Proceedings, January 9, 11, 2013, p. 33.
10
Transcript of Proceedings, January 9, 11, 2013, p. 33.
11
Transcript of Proceedings, January 9, 11, 2013, p. 33.
12
Transcript of Proceedings, January 9, 11, 2013, p. 33.
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She has been diagnosed with Bipolar 2. See Transcript of Proceedings, January 9, 11, 2013, p. 15.
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issues. While she made progress in certain areas, most notably with her parenting skills, she
was unable or unwilling to overcome her issues sufficiently to allow J.J.’s safe return.
The record is clear that Mother was compliant with the medication regimen to control
her bi-polar condition. However, she was not able to make significant progress in the
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counseling for her anger and impulsivity issues. She was in therapy with Diakon Family
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Services for a full year beginning in September 2011. She went through three therapists, all at
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her own request. When her therapy progressed to the point of addressing her “accountability
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and responsibility”, rather than cooperate, Mother would request another therapist.
Furthermore, her attendance was spotty. Throughout the year she had multiple late arrivals,
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no shows, and cancellations. She was unsuccessfully discharged in September 2012.
From the time of J.J.’s placement right up to the hearing on this petition Mother’s
uncontrollable anger was apparent. It was manifested on numerous occasions, including 1) a
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public altercation with J.J.’s Father and his girlfriend; 2) a courtroom scene involving J.J.’s one
month old half sibling where Mother snatched the child from the caregiver’s arms and ran
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screaming from the courtroom; 3) a subsequent courtroom scene where Mother left the
14
Transcript of Proceedings, January 9, 11, 2013, pp. 49, 50.
15
Transcript of Proceedings, January 9, 11, 2013, p. 9.
16
Transcript of Proceedings, January 9, 11, 2013, p. 6.
17
Transcript of Proceedings, January 9, 11, 2013, p. 9.
18
Transcript of Proceedings, January 9, 11, 2013, pp. 9, 10.
19
Transcript of Proceedings, January 9, 11, 2013, p. 11.
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CYS Exhibit # 5. Immediately after her discharge Mother began counseling with a therapist at Franklin Family
Services. While her therapist says she is doing well, we did not find his testimony to be persuasive.
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Transcript of Proceedings, January 9, 11, 2013, p. 35. This resulted in her being charged with disorderly conduct
as well as driving under suspension for which she was incarcerated for 30 days.
22
Transcript of Proceedings, January 9, 11, 2013, p. 36.
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proceeding screaming at her attorney and CYS staff; 4) an incident at Hershey Medical Center
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where J.J. was having surgery that resulted in her being barred from the premises, 5) another
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incident at a CYS hearing where she screamed at staff and punched the walls, and 6) recent
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incidents involving J.J. which has led the child to be apprehensive about his visits with her.
Her impulsivity has also been problematic. Throughout her involvement with the agency
she offered to voluntarily relinquish her parental rights to J.J. on at least a half dozen
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occasions. In September 2012 she had J.J. transported by ambulance to the emergency room
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because of a high fever, only to leave without seeing a doctor because the wait was too long.
In addition she consistently made bad choices in her personal life. She had been cited and
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incarcerated numerous times for driving under suspension. Despite being on probation, she
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received a citation for public drunkenness just a few days before the hearing in this matter.
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Her intoxication led her to be hospitalized. While being treated she discovered that she is
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again pregnant.
23
Transcript of Proceedings, January 9, 11, 2013, p. 36.
24
Transcript of Proceedings, January 9, 11, 2013, p. 37.
25
Transcript of Proceedings, January 9, 11, 2013, p. 41.
26
Transcript of Proceedings, January 9, 11, 2013, pp. 62, 127.
27
Transcript of Proceedings, January 9, 11, 2013, p. 37.
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Transcript of Proceedings, January 9, 11, 2013, pp. 40, 52. The foster parents took the child for treatment the
next day. He was diagnosed with tracheobronchitis and prescribed a course of antibiotics, steroids and a
nebulizer, p. 124.
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Mother was to report to York County Prison after our hearing to begin a thirty day sentence for driving under
suspension. It was at least her third period of incarceration since J.J. had been placed.
30
Transcript of Proceedings, January 9, 11, 2013, p. 112.
31
Transcript of Proceedings, January 9, 11, 2013, p. 57.
32
Transcript of Proceedings, January 9, 11, 2013, p. 57. This would be her fourth child. She does not have custody
of any of the children. See page 51.
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J.J. has bonded with his foster parents. He has thrived in their care. They love him and
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are prepared to adopt him. While there had been a very strong bond between J.J. and
Mother, that bond has faded because of her angry outbursts.
DISCUSSION
It is well established that a party seeking termination of parental rights bears the burden
of establishing by “clear and convincing” 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 Mother’s parental rights under several provision of Section 2511 (a) of the
Adoption Act. We were satisfied that the Agency had met its burden under Sections 2511 (a)
(5) and (8) which provide:
(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:
. . .
(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
which led to the removal or placement of the child within a reasonable period of time
and termination of the parental rights will best serve the needs and welfare of the child.
33
Transcript of Proceedings, January 9, 11, 2013, p. 44.
34
Transcript of Proceedings, January 9, 11, 2013, p. 63.
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. . .
(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.
23 Pa. C.S.A. 2511 (a) (5) and (8).
J.J. had been in placement for more than twenty months at the time of the termination
hearing. Despite a plethora of services, Mother’s uncontrollable anger and impulsivity still
made it impossible to safely return J.J. to her care. It was also crystal clear that the child’s
needs and welfare would best be served by allowing him to be adopted by his foster parents.
Mother’s Ability to Care for J.J.
Mother’s first allegation of error is that her parental rights should not have been
terminated because she is able to provide J.J. “with essential parental care, control, and
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subsistence.” We disagreed.
While Mother improved her parenting skills, she did not apply those improved skills
consistently. In addition to the examples at forth above, the record is replete with instances
where she was unable or unwilling to meet the child’s needs. In September 2012 overnight
visitation was stopped because of the emergency room incident. In that same month the foster
parents had to be put in charge of taking J.J. to his play therapy because of Mother missing
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appointments. In addition to play therapy, J.J. sees a neurologist for seizures, an ENT
specialist for his adenoids, tonsils and ears, participates in speech therapy and is involved in the
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See Concise Statement of Matters Complained of on Appeal.
36
Transcript of Proceedings, January 9, 11, 2013, p. 43.
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youth advocacy program, Mother has not attended doctor visits; has neglected to give him
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his seizure medications; and has lost her temper in the presence of the child so that he
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became afraid to visit with her.
Conditions Leading to Placement
Mother’s second allegation of error is that the conditions which led to placement no
longer exist. She argued that she now has the skills to properly parent the child without
physical discipline. She further contended that she has her anger under control as confirmed by
her current counselor. Again we disagreed.
While she may have learned the skills to parent without using physical discipline, we
were convinced that she had not learned to control her anger and impulsivity. Without that
necessary control, J.J. could not safely be returned to her home. As a result, the conditions
which led to his placement continued to exist.
Needs and Welfare of Child
Mother’s last issue on appeal is that we erred in determining that J.J.’s needs and
welfare would best be served by terminating her parental rights. She argued that she loves J.J.
deeply. She further contended that J.J. would be adversely affected because of the strong bond
between the two of them.
37
Transcript of Proceedings, January 9, 11, 2013, pp. 60, 61.
38
Transcript of Proceedings, January 9, 11, 2013, p. 44.
39
Transcript of Proceedings, January 9, 11, 2013, p. 125.
40
Transcript of Proceedings, January 9, 11, 2013, p. 62.
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We agreed that Mother loves J.J. very deeply. However, our focus was on the child, not
the Mother. There is no doubt that J.J. was very bonded to his Mother and that he looked
forward to seeing her. However that changed. J.J. no longer looks forward to visiting with his
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Mother. In fact he cries and throws temper tantrums when he is told he must visit. The
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foster parents have to reassure him that he will be coming back to them. When he returns
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from the visit he is “very clingy”.
We were convinced that J.J. is thriving in the foster home. He is safe, secure and loved.
His emotional and physical needs are being provided for exceedingly well. The foster parents
love him and want to adopt him. While termination of Mother’s parental rights would not
adversely affect him, his adoption by the foster parents would be of great benefit to him.
_____________________ ________________________
DATE Edward E. Guido, J.
Lindsay Dare Baird, Esquire
For CCC&YS
John J. Mangan, Esquire
For the Mother
Joseph Hitchings, Esquire
For the Father
Jacqueline M. Verney, Esquire
G.A.L. for the Juvenile
Bret P. Shaffer, Esquire
For the Foster Parents
41
Transcript of Proceedings, January 9, 11, 2013, p. 62.
42
Transcript of Proceedings, January 9, 11, 2013, p. 129.
43
Transcript of Proceedings, January 9, 11, 2013, p. 129.
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