HomeMy WebLinkAbout2005-133 Adoption
INRE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ADOPTION OF
IN.,
BORN JUNE 3,2004
NO. 133 ADOPTIONS 2005
ORPHANS' COURT DIVISION
IN RE: OPINION PURSUANT TO Pa. RA.P. 1925
Guido, J., May
, 2006
After an evidentiary hearing on February 13, 2006, we granted the request of
Cumberland County Children and Youth Services to involuntarily terminate the rights of
T.N. (mother) and lC. (father) to the above child. Both parents have filed timely appeals
in which they allege that we erred in terminating their parental rights.
FACTUAL BACKGROUND
Cumberland County Children and Youth Services (The Agency) received a
referral in July 2004 from Berks County Children and Youth where mother's other four
(4) children were in placement. Those children were in placement because they had been
neglected and sexually abused while in mother's care. The Agency monitored IN. and
her mother until October 22, 2004 when the child was placed on an emergency basis.
The placement was made pursuant to the recommendation of a Dr. Kraus who had
conducted a "sexuality evaluation" of mother on September 29, 2004.1
1 See CCC&YS, Exhibit 12.
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IN. was found to be dependent by order dated November 10, 2005? The Agency
prepared a Permanency Plan for mother on November 8,2004.3 A permanency review
was conducted before the master on April 29, 2005. He summarized the history of this
case as follows:
IN., age 9 months, has been in (her current) foster home for 3 months,
where she is doing quite well. Her mother had several older daughters
taken from her custody in Berks County. She was repeatedly involved in
inappropriate sexual conduct, sex with men, in front of her daughters. She
has not begun sexual deviancy treatment as recommended in her sex
evaluation that was completed in September of2004, through Berks
County Children and Youth. The recommendation of the report strongly
recommends that (mother) not have contact with any of her children.
(Mother) has been resistive to compliance with the goal. She says she has
a new job, but she has not had consistent employment. She has not
commenced the sexual deviancy counseling that has been recommended.
She has been refusing her medications, although she now says she will be
willing to take them. She has not complied with the recommendation
from her drug and alcohol evaluation for outpatient counseling. She has
attended some individual counseling sessions, but has missed some too,
and may soon be discharged as a result of non-compliance.
In early April, she was arrested for assaulting her roommate, punching her
and scratching her face, and leaving physical injuries.
The CASA Volunteer provided a very thorough report, which reflects
many concerns about the mother. ... She is always late for visits and
tends to hold the child and not let the child down to play. She reports that
(mother) does not want to take responsibility for the fact that her children
are in placement. She blames individuals in the system for being out to
get her. She does acknowledge choosing inappropriate and abusive men.
She seems to have no insight into her actions. She reported to the CASA
that her present boyfriend would not be good for her children. She does
not seem to feel that she needs counseling or needs to make any changes
in her life. The CASA Volunteer spoke with a number of mother's current
or former therapists. ParentWorks evaluated her, but did not feel that she
was an appropriate subject for ParentWorks, since she did not meet the
criteria of being willing and able to change. The ParentsWorks
representative indicated that (mother) was in denial about her situation,
and they were concerned that she could meet the needs of an infant.
2 See Order dated November 10,2004, approving the findings, report and recommendations of the Master
dated November 8, 2004.
3 See CCC& YS, Exhibit 1.
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Diane Hain, of Catholic Charities, who saw her for a number of months,
indicates that she denies her role in her children's issues. She notes that
she may be intellectually impaired. She has no realistic plan to take care
of every child's needs and has an excuse for every problem.
(Mother's) current counselor at the Stevens Center indicates that she does
not function or make decisions on an adult level. She acts almost totally
on impulse and makes destructive decisions. She is subject to loss of
temper and violent outbursts. Testing indicates that she has an I.Q. of
approximately 70.
The Berks County placement was as a result of (mother) having sex with
men in front of her four oldest daughters. Apparently the grandmother
who has custody of those children indicates that the three oldest children
have each reported many stories of sexual abuse. In December, IN. was
diagnosed with an anal tear, consistent with abuse, and that abuse was
indicated by the Agency, and she has appealed. At this point, it does not
appear likely that (mother) will be a realistic resource for a permanent
placement of the child.
The child's father, lC., arrived in Pennsylvania in the last couple of days.
He had a visit with the child, which was the first time that he had seen her.
The visit went very well. ... He is living in Georgia, says he has a
roommate and has a stable residence. He works for a vacuum cleaner
company as a salesman, and has worked there for several years. ... He
has agreed to cooperate with an Interstate Compact investigation of his
home in Georgia.
The Agency was inclined to recommend placement of the child in a pre-
adoptive home, until the father arrived and presented himself a possible
candidate for custody. The CASA Volunteer and the Guardian Ad Litem
both feel that it is best to leave the child where she is now in case the
father may work out as a resource. That would avoid uprooting the child
an additional time from a stable placement. 4
On May 5, 2005 we entered an order approving the Master's findings, report and
recommendations. We also directed that the Agency complete the home evaluation of
father should be done as soon as possible.s
4 See "Comments" to Masters Report dated April 29, 2005.
5 See Order dated May 5, 2005.
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The next permanency review occurred before the Master on October 12,2005.
Mother had still not met her goals. With regard to father, the master summarized his
findings as follows:
The caseworker testified that the Interstate Compact evaluation of the
father's house was denied for a number of reasons, including the condition
of the residence, financial difficulties and a criminal history that includes
multiple DUI's.
The caseworker has identified a proposed adoptive home, and the
proposed adoptive parents are related to the current foster mother. 6
The child's father has had four visits during a five week span, which went
very well. He seemed to bond easily with the child. There has not,
however, been any follow up since June 3,2005. He does say that he has
a psychiatric evaluation later this month. The Agency does not believe he
has completed the drug and alcohol evaluation. His attorney indicates that
he has not been able to visit for the last four months because of car
trouble.
The biological father, lC., was unable to come to the hearing because of
car trouble, and was aware of the proposed change of goal. 7
The master recommended that the goal be changed to adoption and that IN. be
transferred into a pre-adoptive foster home. By Order dated October 25, 2005 we
approved the Master's findings and recommendation.
On December 6, 2005 the Agency filed petitions to terminate the parental rights
of appellees to IN. On February 13, 2006 we held a hearing in connection with those
petitions.
DISCUSSION
It is well established that a party seeking termination of parental rights bears the
burden of establishing by "clear and convincing evidence" that the grounds exist.
6 She was placed into the home of the foster mother's natural daughter.
7 See "Comments" to Master's Report dated October 12,2005.
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Adoption of Atencio, 539 Pa. 161, 166,650 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. 8 The particular provisions of the act relied upon 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 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.
(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 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
823 Pa. C.S.A. ~ 2511(a).
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termination of parental 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), (the Agency) 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
parent 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
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. Finally, in the alternative, under section (8), (the
Agency) had the burden of proving the child had 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).
Although the Agency had filed its petition under subsections (2)(5) and (8),9 it
only needed to prove the grounds set forth in anyone of those sections. Id. The grounds
for termination set forth in subsection 8 were clearly established by the evidence. 10 At
the time of the hearing IN. had been in placement for almost 15 months of the 20 months
since her birth. Mother, by her own testimony, was homeless and needed more time to
complete services in order to be considered as resource for the child. Father had only
seen IN. four times in her entire life. He had not had any contact with her for more than
925 Pa. C.S.A. ~ 25 11 (a)(2)(5) and (8).
10 In point off act, we were satisfied that the grounds had been established under all 3 subsections.
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NO. 133 ADOPTIONS 2005
eight months. Significantly, not only was there no personal contact, but there were no
letters, cards or gifts.
On the other hand IN. was thriving in the adoptive family's home. She had
bonded with all members of the family and was in a safe, secure and loving environment.
While she had only lived with the pre-adoptive foster family for 3 months, she had
formed a bond with them during the 14 months she had lived in the other foster home. 11
No such bonding was apparent with either of her natural parents. Nor was either
in a position to offer her a safe and secure home. While father acknowledged his lack of
bonding with IN., he felt that it could be quickly remedied. As he stated:
I bet I could connect better with my child not even knowing her for the
last year than these foster people can because she knows - - I'm telling
you, she knows who her daddy is.
Since IN. was already in a safe, secure and loving home, we were unwilling to
gamble with her future by accepting father's "bet". Fortunately for IN., the law does not
require us to do so.
DATE
Edward E. Guido, l
Lindsay D. Baird, Esquire
Megan Malone, Esquire
John Mangan, Esquire
Jacqueline M. Verney, Esquire
Juvenile Probation
CCC& YS
CASA
11 If the adoption goes through, her former foster mother will be her adoptive grandmother.
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