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In re Z.P.

April 9, 2010

IN RE: Z.P., A MINOR CHILD
APPEAL OF: LYCOMING COUNTY CHILDREN AND YOUTH SERVICES



Appeal from the Order entered June 26, 2009 In the Court of Common Pleas of Lycoming County Orphans' Court, No. 5987 Adoption.

The opinion of the court was delivered by: Gantman, J.

BEFORE: STEVENS, GANTMAN, AND ALLEN, JJ.

Petition for Reargument Filed April 16, 2010

OPINION

¶ 1 Appellant, Lycoming County Children and Youth Agency ("Agency"), appeals from the order entered in the Lycoming County Court of Common Pleas, which denied the Agency's petition to terminate Father's parental rights with respect to his minor child, Z.P. Upon a thorough review of the record, the arguments presented, and the applicable law, we hold the court erred in denying the termination petition. Accordingly, we reverse the order denying the Agency's petition and remand with instructions to terminate Father's parental rights.

¶ 2 The Orphans' court opinion sets forth most of the relevant facts and procedural history of this appeal as follows:

The minor child Z.P. has been in resource care since November 7, 2007.

[Father] has never visited with Z.P. [Father] has been incarcerated since September 30, 2007, prior to Z.P.'s birth, until June 1st, 2009. Visits with Z.P. were not available to [Father] while he was incarcerated. [Father] was recently transferred to a pre-release center in Harrisburg, Pennsylvania. Soon after transfer, [Father] requested a visit with Z.P. Mr. Bruce Anderson, psychologist, testified that there is no bond between [Father] and Z.P. because there have been no visits between the two. Mr. Anderson did not rule out that Z.P. could bond with [Father] but did state that a change of resource parents for Z.P. would be traumatic for him. . [Father] requested that Ms. [Minnier], Z.P.'s case worker, give him monthly updates on Z.P.'s welfare. Upon learning of his possible paternity, [Father] corresponded with the [A]gency monthly. [Father] also corresponded on one occasion with Z.P.'s [court-appointed special advocate].

A petition for involuntary termination of parental rights was filed on March 11, 2009. The termination hearing took place on June 22nd and June 23rd.

[Mother] failed to be present for the termination hearing on either day. [Father] did appear in person and testified on his own behalf.

[Father] is currently serving a state sentence for drug delivery. He has been arrested and served county sentences on at least two other occasions for drug related offenses. He has a lengthy history of drug and alcohol abuse resulting in psychotic episodes and hospitalization. [Father] had violated probation on at least one occasion. [Father] has been incarcerated for the full duration of Z.P.'s life. [Father] did send a birthday card for Z.P.'s only birthday as well as pictures of himself. While incarcerated, [Father] completed SCI Camp Hill's "Wellness" program, SCI Laurel Highlands "Thinking for a Change" program and the "Batterers Group" program. [Father] is also presently taking parenting classes and goes to AA and NA meetings five times a week. According to Ms. [Minnier], Agency [c]aseworker, [Father] "[d]id everything [that was] available to him to try to meet the parenting objectives that he had]" and [did "all that he was capable of doing" within prison]. Corrections Counselor Michael Wilson testified that [Father] was an average inmate, was misconduct free and had no behavioral problems. [Father] also attended.permanency hearings in person or by telephone.

[Father] has fathered eight children, 3 of [whom] are currently over the age of 18, 1 of whom [Father]'s parental rights [to] were voluntarily terminated. [Father] was not living with any of his children at the time of his arrest. Two of [Father]'s children who are under the age of 18 also belong to Jill Bentley, [Father's] ex-wife. The children's ages are 7 and 3. Ms. Bentley and the two children visited with [Father] on several occasions while he was at SCI-Laurel Highlands. Ms. Bentley testified that interaction between [Father] and their children was good. [Father] and Ms. Bentley are attempting to reconcile.. [Father] [perpetrated] on at least one occasion.domestic violence against Ms. Bentley while under the influence of drugs and/or alcohol. While incarcerated, [Father] asked the agency if Ms. Bentley could take care of Z.P. Ms. Bentley is still willing to be a resource for Z.P. [Father] also requested that his mother, Stephanie Bibbins, be considered as a resource for Z.P. Ms. Bibbins has never met Z.P. personally nor has she affirmatively agreed to be a resource for him.

[Father] has completed three years of college education. He plans to return to college and seek employment as a drug and alcohol counselor. He currently receives social security disability compensation in the amount of $1200 per month plus direct payments to [some of] his children.

(Orphans' Court Opinion, filed June 26, 2009, at 1-4).

¶ 3 By order filed June 26, 2009, the court terminated Mother's parental rights, but denied the Agency's petition to terminate Father's parental rights.

The Agency timely filed a notice of appeal on July 9, 2009. The court ordered a Rule 1925(b) statement on July 13, 2009. The Agency subsequently filed a supplemental notice of appeal and a concise statement on July 14, 2009. The Guardian Ad Litem for Z.P. also appealed the court's decision by notice filed July 16, 2009, and docketed as a companion appeal at No. 1241 MDA 2009.

¶ 4 The Agency raises three issues for our review:

WHETHER THE [ORPHANS'] COURT DECISION DENYING THE TERMINATION OF [FATHER'S] RIGHTS SHOULD BE REVERSED BASED UPON ITS FAILURE TO CONSIDER ALL OF THE RELEVANT GROUNDS UNDER SECTION [2511(A)] OF THE PENNSYLVANIA ADOPTION ACT?

WHETHER THE [ORPHANS'] COURT PROPERLY CONSIDERED REQUIREMENTS OF THE PENNSYLVANIA ASFA PROVISIONS OF THE PENNSYLVANIA JUVENILE ACT AS IT RELATES TO PERMANENCY FOR THE CHILD?

WHETHER THE [ORPHANS'] COURT WAS CORRECT IN ITS DETERMINATION OF THE NEEDS AND WELFARE OF THE CHILD UNDER THE PENNSYLVANIA ADOPTION ACT?

(Agency's Brief at 3).

¶ 5 We address the Agency's issues together. The Agency first urges that termination of Father's rights was proper under Section 2511(a)(5) and (a)(8) because Z.P. had been in foster care for 19 months by the time of the hearing, the conditions which led to placement continued to exist, and termination would best serve Z.P.'s needs and welfare. Specifically, the Agency avers: Father (1) questioned his paternity; (2) has never seen or called Z.P.; (3) failed to locate other family members who would actually visit with Z.P.; (4) did not attend parenting or substance abuse classes until June 2009; (5) did not provide any child support or gifts for Z.P.; (6) sent only one card to Z.P., (7) has had a long history of drug and alcohol abuse with related incarcerations, and (8) has limited employment options and no parole plan. The Agency contends termination of Father's parental rights is appropriate under subsections (a)(5) and (a)(8), despite the fact that Father has not actually had custody of or cared for Z.P.

¶ 6 The Agency also seeks reversal under subsections (a)(1) and (a)(2) in light of Father's life-long drug addiction, criminal involvement, and repeated incarceration. This background suggests Father will have an "unpredictable and unsettled future path" without any assurances he will be able to provide a consistently safe and nurturing home for Z.P. The Agency highlights Father's dubious relationship with his other children, criticizing the court's failure to examine the evidence regarding Father's past parenting history.*fn1

Additionally, Father's refusal to release his mental health records to the Agency demonstrated questionable openness and commitment to the well- being of his son. Z.P.'s need for consistent stability and care should not be put on hold, where the Adoption and Safe Families Act ("ASFA") provisions emphasize "safety and permanency" according to particular time schedules.

Although Father proposed his mother and ex-wife as possible kinship resources, the Agency found neither individual would be an appropriate placement. Specifically, Z.P.'s grandmother, Ms. Stephanie Bivens, "refused to make a long-term commitment to Z.P.," and failed to visit. Ms. Jill Bentley, father's ex-wife, also failed to visit Z.P. or follow-up with the Agency. Without familial resources, Z.P. will have to remain in foster care, and the Agency insists he should not be required to "languish" there. The Agency concludes the court erred in finding no grounds to terminate Father's parental rights under Section 2511(a).

¶ 7 Next, the Agency argues termination of parental rights would best serve the needs and welfare of Z.P. under Section 2511(b). The Agency notes the evidence of record shows terminating Father's parental rights would best serve Z.P.'s needs and welfare. The court acknowledged there was "no bond" between Father and Z.P. Additionally, psychologist Bruce Anderson determined Z.P. would experience severe trauma if he were removed from his foster home and placed with Father. The Agency maintains Z.P. is "definitely adoptable" and termination can offer Z.P. a more stable and secure home environment. The Agency concludes we should reverse the court's order refusing to terminate Father's parental rights. For the following reasons, we agree with the Agency's contentions.

¶ 8 Appellate review of termination of parental rights cases implicate the following principles:

In cases involving termination of parental rights: "our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child."

In re I.J., 972 A.2d 5, 8 (Pa.Super. 2009) (quoting In re S.D.T., Jr., 934 A.2d 703 (Pa.Super. 2007), appeal denied, 597 Pa. 68, 950 A.2d 270 (2008)).

Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. . We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).

Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). 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 hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). If the court's findings are supported by competent evidence, we must affirm the court's decision, even if the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super. 2004).

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. ...


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