HomeMy WebLinkAbout2016-53
IN THE ADOPTION OF : IN THE COURT OF COMMON PLEAS OF
G.F., : CUMBERLAND COUNTY, PENNSYVLANIA
Born 6/19/14 : ORPHANS’ COURT DIVISION
: NO. 53 ADOPTIONS 2016
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925
Peck, J., August 22, 2016 –
On June 6, 2015, G.F. and his half-sister were adjudicated dependent and placed in
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the legal and physical custody of a maternal aunt, Elizabeth Bittner. Appellant, Father
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of G.F., was incarcerated at the time. On May 19, 2016, Cumberland County Children
and Youth Services (CCYS, or the Agency), filed a Petition for Involuntary Termination
of Parental Rights of Alleged Father, Pedro Flores, based on 23 Pa.C.S. §§2511(a)(1),
34
(a)(2), and (b). A hearing was held on the petition on June 15, 2016. After the hearing
and receipt of evidence, this Court issued a Final Decree terminating the parental rights
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of Appellant on June 15, 2016. On July 15, 2016, Appellant filed a Statement of Errors
Complained of on Appeal, complaining that:
1.This Honorable Court erred as a matter of law and abused its discretion
in changing the goal to adoption and terminating Appellant’s parental
rights because a parent’s absence or failure to support his or her child
due to incarceration is not, in itself, conclusively determinative of the
issue of parental abandonment. Incarceration alone is not an explicit
basis upon which an involuntary termination may be ordered pursuant to
Section 2511 of the Pennsylvania Adoption code, 23 Pa.C.S. §2511.
Courts must inquire whether the parent has utilized those resources at
Appellant’s command while in prison to continue and pursue a close
relationship with the child or children. Appellant did desire to retain
1
Master’s Recommendation, Permanency Review; In the Interest of G.F., a Minor, April 20, 2016, CYS
Exhibit 2.
2
Transcript of Proceedings, In Re: Petition for Involuntary Termination of Parental Rights, June 15, 2016
(Peck, J.) (hereinafter “N.T. at __”) at 60.
3
Petition for Involuntary Termination of Parental Rights of Alleged Father, Pedro Flores, Under Section
2512 of the Adoption Act, March 19, 2016.
4
Transcript of Proceedings, In Re: Petition for Involuntary Termination of Parental Rights, June 15, 2016
(Peck, J.). At the same hearing, evidence was presented in the matter of the uncontested termination of
parental rights of the father of G.F.’s half-sister. This Opinion is restricted only to the issue of the
termination of the parental rights of Appellant, father of G.F.
5
Final Decree, RE: Petition for Involuntary Termination of Parental Rights of Alleged Father, Pedro
Flores, Under Section 2512 of the Adoption Act, June 15, 2016 (Peck, J.).
1
parental rights and exerted himself to take and maintain a place of
importance in the child’s life.
2.The Honorable Court erred as a matter of law and abused its discretion
in changing the goal for these children to adoption and terminating
Appellant’s parental rights in that Appellant is able to provide the
children with the essential parental care, control and subsistence in the
very near future.
3.The Honorable Court erred as a matter of law and abused its discretion
in terminating Appellant’s parental rights in that the conditions which
led to the removal or placement of the children no longer existed or
were substantially eliminated.
4.This Honorable Court was in error in determining the best interest of the
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children would be served by terminating Appellant’s parental rights.
Pursuant to Pa.R.A.P. 1925(a), this opinion is written in support of this Court’s judgment.
STATEMENT OF FACTS
On March 19, 2016, the Agency filed their Petition for Involuntary Termination of
Parental Rights of Alleged Father, Pedro Flores, on the basis of 23 Pa.C.S. §§2511 (a)(1),
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(a)(2), and (b). A Goal Change and Involuntary Termination of Parental Rights hearing
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was held on June 15, 2016. The following pertinent evidence was presented at the
hearing or included in the record.
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Appellant is the biological father of G.F., born June 19, 2014. G.F. was born to
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Lorraine Avery, Mother, and tested positive for opiates. After a temporary placement
with their maternal aunt, Elizabeth Bittner, G.F. and his older half-sister, A.B., were
placed back in the physical custody of their mother on July 2, 2014, when she entered a
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residential mother and child drug and alcohol program at Kindred House. Appellant
6
Appellant’s Statement of Errors Complained of on Appeal, July 15, 2016. This Court notes that while
Appellant refers to “children” the rights of Appellant with respect to only one child are at issue in the
instant appeal.
7
Dependency Petition, CYS Exhibit 4.
8
See, N.T.
9
N.T. at 14. A DNA test confirmed Appellant’s paternity in May 2016. Id.
10
Master’ Recommendation – Termination of Court Supervision, March 18, 2015, CYS Exhibit 2.
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N.T. at 23.
2
moved to Chester County to be close to Ms. Avery and G.F. and visited them at the
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Kindred House.
In October 2014, Appellant assaulted Ms. Avery while accompanying her and
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G.F. to a medical appointment at Hershey Medical Center. He was charged with simple
assault, prohibited from visiting Ms. Avery and G.F. at the Kindred House, and
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imprisoned for violation of his probation. At the time of the assault, Appellant was on
probation as a result of previous criminal convictions, and had other pending criminal
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charges. Appellant has an extensive criminal history, including six convictions and
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several terms of imprisonment since 2007.
Ms. Avery and her children left Kindred House in January 2015 upon her
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successful completion of the program. Unfortunately, on May 1, 2015, Ms. Avery died
1819
due to a heroin overdose. Appellant was incarcerated at the time. Ms. Avery and her
children were living with Ms. Bittner then, and G.F. and his sister have remained with
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Ms. Bittner ever since. Ms. Bittner became an informal kinship caregiver on June 15,
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2105, and a formal kinship caregiver on November 16, 2016. Ms. Bittner filed an
Intent to Adopt both children on June 15, 2016.
Appellant’s physical contact with G.F. has varied since G.F.’s birth on June 19,
2014. Beginning July 2, 2014, G.F. resided with his mother at Kindred House; Appellant
12
Id.
13
Id. at 15.
14
Id. at 15.
15
Id. at 15, 17, 26-18; see Criminal Docket, Pedro Flores, CYS Exhibit 9. Appellant was incarcerated
most recently in October 2014 as a result of violating his parole; in April 2014, he pled guilty to four
felonies and two misdemeanors relating to three different arrests. Charges include: Manufacture,
Delivery, or Possession with Intent to Manufacture or Deliver; Use/Possession of Drug Paraphernalia;
Simple Assault; and Burglary. He was sentenced on the charges in April 2015. See id.
16
Criminal Docket, Pedro Flores, CYS Exhibit 9: N.T. at 15. Appellant had been incarcerated shortly
before G.F.’s birth, between January and April 2014. Id. at 25.
17
Id. at 23.
18
Id. at 14; Judicial Conference Report, February 10, 2016, CYS Exhibit 2.
19
Id. at 60.
20
N.T. at 34. It appears from the record that Ms. Avery and her children had been living in Ms. Bittner’s
household for some time before her death. Id. at 39.
21
Master’s Recommendation, Permanency Review, In the Interest of G.F., a Minor, April 20, 2016, CYS
Exhibit 2; N.T. at 13
3
22
moved nearby so he could visit. Appellant’s visits may have been restricted during
some of that time after Appellant had positive drug screens, due to Kindred House policy
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prohibiting visits from persons who have recently had positive drug tests. After
Appellant assaulted Ms. Avery on October 1, 2014, he did not see G.F. again until April
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2, 2016. During the period Ms. Bittner was the informal kinship caregiver for G.F.,
from May to November 2015, she was unwilling to personally facilitate visits between
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Appellant and G.F. and third party transportation was not arranged. After Ms. Bittner
became a formal kinship caregiver, the Agency began a process to arrange for third-party
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transportation for the visits, which took some months. Beginning in April 2016, a third
party began providing transportation for G.F. to make visits to Appellant at SCI Coal
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Township, every other weekend. G.F.’s visits last about two hours and take place in the
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prison visiting room. At the time of the hearing held on June 15, 2016, Appellant and
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G.F. had participated in five visits.
Appellant, incarcerated at the time of the hearing, testified that he hoped to be
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released on parole sometime in July 2016. If he is not released on parole, his sentence
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will likely terminate in July 2017. Appellant stated he believed he would be sent to a
halfway home after his release, at which point he could begin looking for a job and an
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apartment, where it would be appropriate for G.F. to join him. Appellant stated that he
22
Id. at 23.
23
Id. at 23. Appellant tested positive for marijuana on June 25, 2014 and August 5, 2014. Id. at 37.
24
Id. at 62. Appellant testified that when he agreed to G.F.’s placement with Ms. Bittner in June 2015, he
was incarcerated in Camp Hill, Pennsylvania (in Cumberland County) and was told it would not be a
problem for visits to take place with G.F., which was part of the reason he agreed to the placement, as he
was unwilling to “lose” his child. N.T. at 60.
25
Id. at 50. The drive to location where Appellant is incarcerated is approximately two and a half hours
from Ms. Bittner and G.F.’s residence. It is further noted that given the history of Appellant’s relationship
with Ms. Bittner’s sister (the mother of G.F.) and the fact that she died in May 2015, it is understandable
that Ms. Bittner was reluctant to personally transport G.F. See, Id. at 46.
26
See Id. at 31.
27
Id. at 20.
28
N.T. at 20.
29
Id. at 20.
30
Id. at 58
31
Id. at 61. Appellant’s current term of incarceration began in April 2014, and related to an arrest for
burglary and conspiracy charges. Id. at 27; Criminal Docket.
32
N.T. at 59.
4
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has some (unspecified) job prospects in the West Chester, Pennsylvania area. Appellant
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does not have any family in the area to support him after his release.
35
A family service plan including Appellant has been in place since July 2014.
The Appellant’s goals and the summary of Appellants compliance with those goals are as
follows, as provided by CYS caseworker Amanda Sigrist:
1.To remain drug and alcohol free. Appellant is not participating in Agency
screening due to his incarceration. Appellant has completed an in-patient drug
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and alcohol treatment program during his incarceration.
2.To ensure the child receives medical treatment. Appellant is incarcerated. The
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child’s foster mother ensures he receives medical treatment. G.F. was born
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with a cleft palate and cleft gum. He has had one corrective surgery and will
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need at least one more in his childhood. G.F.’s condition is monitored
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through the Lancaster Cleft Palate Clinic.
3.To cooperate with the Agency. The Appellant cooperates with the Agency and
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has maintained contact.
4.To establish and maintain a relationship with the child. This objective is
partially being met. Appellant did not have physical contact with G.F. from
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October 2014 until April 2016. Appellant, who has been incarcerated since
late 2014, has consistently requested visitation with G.F., visitation did not
33
Id. at 61.
34
Id. at 59. Appellant testified his family is in Puerto Rico, Miami, and Providence, Rhode Island. Id.
35
See Family Service Plans, CYS Exhibit 5. Other Family Service plans were put in place prior to this
date for Ms. Avery but did not include Appellant.
36
N.T. at 19.
37
Id. at 47.
38
Id. at 47.
39
Id. at 47.
40
Judicial Conference Report, In the Interest of G.F., a Minor, February 10, 2016, CYS Exhibit 2.
41
Id. at 21.
42
N.T. at 60. Stated another way, G.F. had no physical contact with his father from the time he was four
months old until he was almost two years old.
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43
begin until April 2016. Appellant and G.F. now engage in two-hour visits in
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the SCI Coal Township prison visiting area every two weeks. Appellant’s
parental involvement is restricted during those visits; due to prison policy, he is
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not permitted to leave the room with G.F. or change his diaper. Ms. Sigrist
testified that Appellant regularly sends G.F. letters, drawings, and cards, and
46
has been doing so for some months. Ms. Sigrist affirmed that Appellant has
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utilized all the resources available to remain a part of G.F.’s life.
5.To improve parenting. Due to his incarceration, Appellant has not been able to
participate in parenting skills evaluation typically recommended by the
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Agency. Appellant has participated in several programs related to parenting
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and general life skills during his time in prison. The Agency is unable to
assess Appellant’s parenting skill outside the context of limited prison visits.
6.To obtain housing. Appellant remains incarcerated and therefore without
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appropriate housing for G.F. If Appellant were to be released soon, his
housing prospects are speculative – he has no family in the area with whom he
could reside, and would likely be at a halfway house until he was able to secure
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independent housing.
7.To participate in a domestic violence batterer’s program. Appellant has
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completed an appropriate program while in prison.
43
Id. at 36. Between May and November, 2015, while Ms. Bittner was an informal kinship caregiver, she
refused contact with the Appellant. Id. Once she became a formal kinship caregiver, she was required to
allow visitation. Id.
44
Id. at 20.
45
N.T. at 20.
46
Id. at 21. Ms. Sigrist testified the drawings and cards are all age appropriate and show some measure of
artistic ability. Id. at 40-41.
47
Id. at 41.
48
Id. at 38.
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N.T. at 19; CYS Exhibit 10. Appellant has received certificates of completion for the following
classes/workshops: outpatient drug and alcohol classes, Inside Out Dad (a parenting class for incarcerated
fathers), a violence prevention program, a pre-vocational group, a Money Smart financial awareness
class, and a victim awareness course. Id.
50
N.T. at 21.
51
Id. at 22; 58-59.
52
Id. at 19; CYS Exhibit 10.
6
8.To address mental health concerns. The Appellant has not completed a full
mental health evaluation as the Agency generally requests due to his
incarceration. Appellant testified that he received some sort of mental health
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evaluation and was told he did not need medication.
Ms. Sigrist testified that while Appellant has taken positive steps during his
incarceration, the Agency views Appellant’s history of criminal convictions and
incarcerations as demonstrative that, while Appellant has recently shown an ability to
maintain stable behaviors in the controlled prison environment, he has not shown the
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same ability in a non-controlled setting (outside of prison). Ms. Sigrist noted the
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October 2014 assault on Ms. Avery as specifically representative of this concern.
As to Appellant’s potential to serve as a caretaker, Ms. Sigrist testified that
Appellant has never had individual caretaking responsibility for G.F., nor has G.F. ever
56
resided with Appellant. Furthermore, Ms. Sigrist testified that G.F. does not share a
significant bond with Appellant, because Appellant has been incarcerated for a large
57
portion of G.F.’s life. Ms. Sigrist acknowledged that Appellant has not had the same
opportunity to bond with G.F., but stated the Agency’s view that Appellant’s
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incarceration was the result of his own actions. Ms. Sigrist affirmed it was uncertain if
Appellant would be granted parole, and according to his Department of Corrections
counselor, if he was granted parole, the date of his actual release was unknown;
59
according to the counselor, his release could come in two weeks or in two months. Ms.
Sigrist emphasized the Agency’s two primary concerns: 1) that G.F. and Appellant do not
53
N.T. at 58.
54
Id. at 19; 39.
55
Id. at 28. Ms. Sigrist also testified to an awareness that the relationship between Appellant and Ms.
Avery was violent and tumultuous throughout its existence. Id. at 31.
56
Id. at 22, 29.
57
N.T. at 20.
58
Id. at 39.
59
Id. at 17.
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have a significant bond and 2) that the timeline regarding Appellant’s ability to care for
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G.F. is very uncertain.
It is the Agency’s position that termination of Appellant’s rights to allow for
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G.F.’s adoption by Ms. Bittner would be in the best interest of G.F. Ms. Sigrist testified
62
that G.F. and his sister are in need of a stable, nurturing, consistent environment. Ms.
Sigrist noted that while Appellant has never had individual parenting responsibility for
G.F., Ms. Bittner has been providing appropriate and loving parenting for G.F. for more
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than half his life, since May 2015.
Ms. Sigrist reported G.F. and his sister are very safe and “appear to be very
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comfortable and loved in their home.” Ms. Bittner’s household includes G.F., his half-
sister A.B., Ms. Bittner’s mother (G.F.’s maternal grandmother) and Ms. Bittner’s
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biological daughter (G.F.’s cousin), who is 12 years old. Ms. Bittner testified that all
the children get along and after some initial adjustment issues are all doing very well
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together. The guardian ad litem, Marylou Matas, Esq., who observed the children in
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Ms. Bittner’s home, reported that G.F. is particularly bonded with Ms. Bittner.
At the conclusion of the hearing this Court issued a Final Decree granting the
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Petition for the Involuntary Termination of Parental Rights. The instant appeal was
filed July 5, 2016.
60
Id. at 42.
61
Id. at 24; Petition, CYS Exhibit 4.
62
N.T. at 24.
63
See Id. at 24; Ms. Bittner officially became the informal kinship caregiver in June 2015, but the record
shows G.F. resided with Ms. Bittner and her mother, Ms. Mayling, beginning after Ms. Avery’s death on
May 1, 2015.
64
Id. at 25.
65
Id. at 44-45.
66
Id. at 45.
67
N.T. at 52.
68
Final Decree, RE: Petition for Involuntary Termination of Parental Rights of Alleged Father, Pedro
Flores, Under Section 2512 of the Adoption Act, June 15, 2016 (Peck, J).
8
DISCUSSION
The Petitioner has alleged that the Court:
1.“erred as a matter of law and abused its discretion in changing the goal for to
adoption and terminating Appellant’s parental rights because a parent’s
absence or failure to support his or her child due to incarceration is not, in
itself, conclusively determinative of the issue of parental abandonment.
Incarceration alone is not an explicit basis upon which an involuntary
termination may be ordered pursuant to s 2511 of the Pennsylvania Adoption
code, 23 Pa.C.S. § 2511. Courts must inquire whether the parent has utilized
those resources at Appellant’s command while in prison to continue and pursue
a close relationship with the child or children. Appellant did desire to retain
parental rights and exerted himself to take and maintain a place of importance
in the child’s life,” and,
2.“erred as a matter of law and abused its discretion in changing the goal for
these children to adoption and terminating Appellant’s parental rights in that
Appellant is able to provide the children with the essential parental care,
control and subsistence in the very near future,” and
3.“erred as a matter of law and abused its discretion in terminating Appellant’s
parental rights in that the conditions which led to the removal or placement of
the children no longer existed or were substantially eliminated,” and
4.was “in error in determining the best interest of the child would be served by
terminating Appellant’s parental rights.”
We begin by addressing the standard of review applicable to the Appellant’s
claims. Pennsylvania appellate courts defer to the trial courts, “adher\[ing\] to the view
that the trial court is in the best position to determine credibility, evaluate the evidence,
and make a proper ruling.” In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
Absent an abuse of discretion or error of law, where the trial court's findings are
supported by competent evidence, an appellate court must affirm the trial court even
though the record could support the opposite result. In the Interest of R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). Pennsylvania courts have held that “an abuse of discretion
does not result merely because the reviewing court might have reached a different
conclusion. Instead, a decision may be reversed for an abuse of discretion only upon
9
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” In re
Adoption of S.P., 47 A.3d 817, 82, (Pa. 2012) (internal citations omitted).
In Atencio, a case regarding involuntary termination of parental rights, the
Supreme Court found that the Superior Court improperly vacated the trial’s court’s ruling
where competent evidence supported the trial court’s decision. In re R.I.S., 36 A.3d 567,
573 (Pa. 2011), citing In re Adoption of Atencio, 650 A.2d 1064. The Court reasoned
that because the trial court reached its conclusion on the basis of competent evidence, the
Superior Court should not have disturbed the decision. This Court believes the principle
set out in Atencio applies, and because competent evidence supports the trial court’s
decision, the ruling should stand.
When evaluating a petition for termination of parental rights, the court must
conduct a two-part analysis. First, the Court must determine if the Agency has proven
that at least one of the statutory grounds of termination set out in 23 Pa.C.S. §2511(a) has
been met. See, In re B.L.W., 843 A.3d 380, 384 (Pa. Super. 2004)(en banc). Then, the
court must evaluate whether the termination is in the best interest of the child, as required
by 23 Pa.C.S. §2511(b). Id. The burden is on the Petitioner to prove by clear and
convincing evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). Appellant’s
Statement of Errors Complain of on Appeal addresses both of parts of the two-part
analysis, and this Court will address the two parts separately.
a. The Record Contains Competent Evidence Sufficient for this Court to Find the
Agency has Proven at least One Statutory Ground of 23 Pa.C.S. §2511(a) Has Been Met
This Court notes Appellant’s first three errors complained of on appeal essentially
argue the Agency has failed to meet the statutory grounds for termination under 23
Pa.C.S. §2511(a). The fulfillment of any one subsection of Section 2511(a) provides a
threshold sufficient for the court to proceed to evaluate the best interest of the child under
23 Pa.C.S. §2511(b). In re B.L.W., 843 A.3d 380, 384 (Pa. Super. 2004)(en banc) The
Agency’s Petition alleges the statutory grounds for termination have been met under 23
10
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Pa.C.S. §2511(a)(1) and (a)(2). Noting the substantive overlap in Appellant’s first three
arguments, this Court addresses them in turn.
Appellant’s first argument is that this Court improperly found a basis for
termination of the Appellant’s parental rights on the basis of his incarceration alone.
First, Appellant’s argument is conclusory. Neither the transcript of the relevant hearing
70
or the Final Decree granting the termination contain any such statement by the Court.
This Court is well aware of its responsibility to consider the totality of the circumstances
and particular facts of each case:
It is well-established that a court must examine the individual
circumstances of each and every case and consider all explanations offered
by the parent to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.
In re R.I.S., 36 A.3d 567, 572, (Pa. 2011) (internal citations omitted).
Furthermore, the record shows this Court considered substantial body of evidence.
The record shows the Court heard from a number of witnesses and accepted a variety of
exhibits regarding a number of issues, including but not limited to: the history of the child
and Appellant’s lack of interactions with the Agency; the child’s current health and status
in his foster home; Appellant’s past and current bond with the child; the impact of
Appellant’s incarceration on his Family Service Plan goals; Appellant’s communication
and visitation with the child during Appellant’s current incarceration; and Appellant’s
71
future plans. In light of these facts and in the absence of any indication to the contrary,
Appellant’s argument that the Court’s decision was based on the fact of his incarceration
alone does not stand.
Secondly, Appellant seems to argue that based on the fact that he has attempted to
remain a part of his child’s life alone is sufficient to prohibit the termination of his rights.
It is true that “incarceration alone is not an explicit basis upon which an involuntary
termination may be ordered pursuant to Section 2511 of the Pennsylvania
69
Petition, CYS Exhibit 4.
70
N.T.; Final Decree, RE: Petition for Involuntary Termination of Parental Rights of Alleged Father,
Pedro Flores, Under Section 2512 of the Adoption Act, June 15, 2016 (Peck, J).
71
See N.T. & Exhibits.
11
Adoption Code.” In re R.I.S., 36 A.3d 567, 572-573 (Pa. 2011). When a parent is
incarcerated, it is incumbent upon him or her to utilize all resources available to maintain
a relationship with the child and maintain a place of importance in the child’s life. Id.
The courts have said it is a “definitive principle that when a parent uses the opportunities
that are available in prison to make sincere efforts to maintain a place of importance in
the lives of his or her children, incarceration alone will not serve as grounds for the
involuntary termination of his or her parental rights. Id. at 574.
The record does show that Appellant has utilized the resources available to him to
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maintain a relationship with the child and maintain a role in his life. However, this
Court stresses the language that “incarceration alone” is insufficient. As discussed, this
Court does not base its decision on incarceration alone. Again, the court is to consider
the totality of the circumstances and the particular facts of each case. Id. at 572. In In re
R.I.S., a seminal case involving termination of the parental rights of an incarcerated
parent, the Supreme Court affirmed a trial court’s denial of a petition to terminate the
father’s rights, but it did so in consideration of all the facts of the case. See In re R.I.S.,
36 A.3d 567 (Pa. 2011) (the record showed the father was complying with all of the goals
of his family service plan and that he had been the primary caretaker of the children
before his incarceration). This Court affirms that it considered the totality of factors of
the instant case.
Appellant’s next Error Complained of on Appeal is that the Agency has not
proven the ground for termination under 23 Pa.C.S. §2511(a)(2). The section allows for
the involuntary termination of parental rights under the following circumstances:
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.
72
The Appellant requested visits from an early stage in his incarceration and maintains regular
.
correspondence with G.F. See N.T. at20-21
12
23 Pa.C.S. §2511(a)(2). At the time of the hearing, Appellant was incarcerated and
therefore unable to provide essential parental care, control, and subsistence. Appellant
argues he will be able to provide essential parental care control and subsistence “in the
very near future” based in his hope that he will be granted parole in the near future.
However, it is uncertain if Appellant will be granted parole, when that will occur, how
long it would take for him to actually be released, and what his living situation would be
73
like after his release. Appellant stated he hoped he would be granted parole within
approximately three months, and that after his release he would go to a halfway house,
and that after arriving at the halfway house he hoped to secure a job that would allow him
74
to rent a two bedroom apartment. This Court notes Appellant does not have any
confirmed job prospects or plans for child care in place, and has no family support in the
area.
Appellant’s plans, while hopeful, are by no means guaranteed to materialize. This
Court notes Appellant has been incarcerated for all but approximately six months of the
preceding thirty; therefore, the record does not show evidence of Appellant’s ability to
75
provide even his own basic needs, let alone those of a child. Appellant himself
76
admitted that if he is not granted parole, he will not be released until June, 2017. This
Court does not consider a year’s wait “the very near future”, and even the timeline
optimistically presented by the Appellant seems to entail a wait of some weeks or months
before Appellant is able to secure appropriate housing for G.F., if at all. In addition,
Appellant is currently unable to provide medical care for the child, which is particularly
important to the child due to G.F.’s cleft palate condition and anticipated need of future
treatment. Appellant has never been a primary caregiver for the child. Therefore, this
Court finds the record contains competent evidence to find the Appellant is unable to
provide essential parental care, control, and subsistence at this time, and that Appellant
73
N.T. at 17, 58.
74
Id. at 59, 62.
75
Id. at 25; 60-62.
76
Id. at 61.
13
cannot remedy such causes in a timely manner to provide the child with permanency.
Therefore, this Court find the Agency proved ground for termination under §2511(a)(2).
This Court briefly notes Appellant’s third error complained of on appeal is
improper. Appellant appears to be arguing the Agency has not met the statutory standard
for the termination standards set out in 23 Pa.C.S. §2511(a)(5) or (a)(8), ignoring the fact
that the Agency did not allege a violation at either section 2511(a)(5) or §2511(a)(8)
77
grounds in its Petition. Thus, this Court was not required to analyze whether the
conditions which initially led to the placement still existed. This Court iterates its
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evaluation was founded in the analysis of §2511(a)(1) and §2511(a)(2), outlined above.
Having found the Agency met the statutory ground for termination in §2511
(a)(2), this Court turns to the analysis required by section §2511(b).
b. The Record Contains Competent Evidence Sufficient for this Court to Find the
Termination of Parental Rights was in the Child’s Best Interest
This Court next examines Appellant’s claim with regard to the termination of
Appellant’s parental rights. Appellant has alleged the court abused its discretion or
committed an error of law in finding that terminating Appellant’s rights was in the child’s
best interest. Appellant has not alleged any facts to support his claim that the Court
abused its discretion, and this Court is therefore unable to address it with specificity. The
record contains no evidence that this court demonstrated manifest unreasonableness,
partiality, prejudice or ill-will.
Nor has Appellant alleged any facts to support his claim that this Court erred as a
matter of law on this issue. Having found the Agency proved a statutory ground for
termination under 23 Pa.C.S. §2511(a), this Court turned to consider the best interest of
the child under 23 Pa.C.S. §2511(b). In re B.L.W., 843 A.3d 380, 384 (Pa. Super.
2004)(en banc). The standard requires the court “to give primary consideration to the
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Petition, CYS Exhibit 4.
78
This Court further notes the conditions that led to the child’s placement were his mother’s death and
his father’s incarceration; his father, the Appellant, is still incarcerated, and as discussed above, his
possible release is uncertain. See supra, Statement of Facts.
14
developmental, physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§2511(b). Furthermore, “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.” Id. However, the courts
have stated that the emotional needs and welfare of the child have properly been
interpreted to include “intangibles such as love, comfort, security, and stability.” In re
K.M., 53 A.3d 781, 791 (Pa. Super. 2012). When making a Section 2511(b)
determination, the courts are to focus on the child, not the parent. In Re Adoption of
C.L.G., 956 A.2d 999, 1008 (Pa. Super 2008)(en banc).
As discussed above, Appellant’s history of providing parental care for G.F. is very
limited, as is the bond shared by Appellant and G.F. Appellant’s ability to provide even
basic housing for G.F. at any time in the near future is uncertain. Thus, at the same time
as Appellant’s ability to provide a secure and appropriate physical environment for G.F.
is uncertain, Appellant’s parenting abilities are almost entirely unproven.
Appellant has never been the primary caretaker for G.F., nor have they ever shared
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a residence. Appellant had zero contact with G.F. for almost a year and a half, and his
current interactions are limited to twice-monthly visits of no more than two hours, during
which the Appellant is never alone with the child and is not allowed to conduct such
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basic functions as changing the child’s diaper. The limited evidence in the record
supporting’s Appellant’s parenting abilities encompasses a certificate of completion for a
parenting class; testimony that he sends regularly and age-appropriate correspondence;
and testimony that the half-dozen visits have gone about as well could be expected of a
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two year old in an unfamiliar and busy environment. Appellant has clearly
demonstrated his desire to parent his child, but his abilities remain almost entirely
untested.
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N.T. at 21, 29.
80
Id. at 20-21.
81
Id. at 20-21.
15
As Ms. Sigrist noted repeatedly, while Appellant’s recent abilities to provide for
and bond with his child have been limited, those limitations are due to incarceration as a
consequence of Appellant’s personal choices. As such, this court agrees with the
Agency’s assessment that it was not “beyond the control” of Appellant to provide
parental care and control where Appellant could have avoided further incarceration.
In contrast, G.F. is provided with plentiful love, comfort, security, and stability in
the care of Ms. Bittner. In her care, he enjoys a stable home, surrounded by his half-
sister, cousin, and maternal grandmother. He is loved by Ms. Bittner. He has a strong
bond with Ms. Bittner, who has been his primary caretaker for over a year. Ms. Bittner
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has stable employment and housing and is monitoring G.F.’s medical needs.
Importantly, G.F. has now lived with Ms. Bittner for more than half his life. She is an
experienced caretaker. While Appellant certainly has demonstrated love for G.F. and a
desire to remain an important figure in G.F.’s life, Ms. Bittner has engaged in daily,
loving care of G.F. for more than a year. The conditions of G.F.’s future life with
Appellant would be highly uncertain, while his life with Ms. Bittner is confirmedly stable
and secure. The record shows termination of Appellant’s parental rights will allow for
the child’s adoption by a relative with whom he is strongly bonded, who is already
providing him with a loving and stable home, and in whose household he is surrounded
by extended family. Therefore, this Court finds the record contains competent evidence
to find the termination is in the child’s best interest under 23 Pa.C.S. §2511(b).
CONCLUSION
This Court finds the issues raised by Appellant on appeal are without merit. For
the reasons articulated in the above opinion, this Court respectfully requests the Superior
Court of Pennsylvania to affirm this Court’s order granting the Agency’s Petition for
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Ms. Bittner is employed by Highmark Blue Shield. Id. at 44.
16
Involuntary Termination of Rights of Appellant, Pedro Flores.
BY THE COURT,
__________________________
Christylee L. Peck, J.
Marylou Matas, Esq.
Guardian ad Litem
John J. Mangan, II, Esq.
Attorney for Father, P.F.
Lindsay D. Baird, Esq.
Attorney for CCCYS
Joseph Hitchings, Esq.
Attorney for Mother
Damian DeStefano, Esq.
Attorney for Foster Parents
Cumberland County Children
and Youth Services
CASA
17