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In re Adoption of A.A.

Superior Court of Pennsylvania

July 3, 2013

IN RE: ADOPTION OF A.A. APPEAL OF: J.A., NATURAL FATHER IN RE: ADOPTION OF T.A. APPEAL OF: J.A., NATURAL FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered July 11, 2011, In the Court of Common Pleas of Fayette County, Orphans' Court Division, at No. 16-Adopt-2010, 15-Adopt-2010.

BEFORE: SHOGAN, LAZARUS and PLATT [*], JJ.

MEMORANDUM

SHOGAN, J.

J.A. ("Father") appeals from the orders entered July 11, 2011, which granted the petitions filed by the Fayette County Children and Youth Services ("CYS") seeking to involuntarily terminate Father's parental rights to his daughters, T.A., born in 1998, and A.A., born in 2002 (collectively "Children"), pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).[1] We affirm.

Initially, CYS filed petitions on June 21, 2010, seeking the involuntary termination of Father's parental rights. The trial court appointed counsel and on September 28, 2010, denied the petitions, noting that Father had requested, but was never sent a Family Service Plan ("FSP") outlining his goals and objectives when he was incarcerated in 2009. Trial Court Opinion, 2/20/13, at 1.

Nearly a year later, on April 4, 2011, CYS filed second petitions seeking the involuntary termination of Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Counsel was appointed, and on July 11, 2011, the trial court held a hearing on the termination petitions. At the hearing, CYS presented the in camera testimony of A.A., who was then nine years old, and T.A., who was thirteen years old.[2] N.T., 7/11/11, at 9, 29. CYS also presented the testimony of caseworker and permanency specialist, Colleen Zielinsky. Id. at 43–44. Father testified on his own behalf and presented no other witnesses. Id. at 79.

The trial court found the following facts from the testimony of Caseworker Zielinsky:

Both [C]hildren were placed in [the care and custody of CYS] on August 14, 2008 and except for the period of time the Court attempted kinship care, have remained in continuous foster care. The [C]hildren became dependent due to the homelessness of mother. Father's whereabouts were unknown. On August 22, 2008, [Father] visited the [C]hildren at the . . . Agency . . . office. During that visit, it was noted by the foster care caseworker, Colleen Zielinsky, that he slept most of the time. [Father] stated at the visit that he wanted to see the girls prior to [his] incarceration. Thereafter, [F]ather had no contact until February 12, 2009.
At a permanency review hearing held on February 12, 2009, the family service plan and child permanency plan were reviewed with [F]ather, but he refused to sign. Consequently, the plan was not fully developed until February of 2010. The first letter [Father] wrote to his daughters since August of 2008 was written on September 10, 2010. He wrote no letters for over two (2) years. [Father] followed the letter with Christmas and Easter cards. On June 29, 2011, [F]ather visited the [C]hildren at the Agency. Since August of 2008 until July of 2011, [F]ather had visited only twice, even though he had been living in a halfway house since April of 2011.
Ms. Zielinsky described the June 29, 2011 visit with the [C]hildren as distant. The [C]hildren played a game with [F]ather and would answer his questions but there was little discussion. There was no show of affection other than the hug [Father] requested at the end of the visit. T.A. informed the caseworker she was "glad it was over with" and requested that [Father] be told they do not wish to visit with him again.
Eventually [Father] entered into a family service plan. His goals required cooperation, increased parenting skills, developing a plan for an established home, engaging in drug and alcohol treatment and leading a crime free lifestyle. Of these goals, [Father] had enrolled in parenting classes and anger management courses while incarcerated.

Trial Court Opinion, 2/20/13, at 1–3 (citations omitted).

The trial court found the following facts from the testimony of Children:

A.A. testified at the hearing in quite eloquent fashion for a nine (9) year old that "The purpose of today's hearing is over our dad's permanency." She relates that "Before I came into foster care, I knew he was my father but I really didn't know what he looks like or who he really was." She admitted that at the visit he "fell asleep." She said she knew her father had been incarcerated "for a long time" and she didn't recognize him because she had not seen him for two (2) years. She liked the visit but I was "nervous and scared." A.A. does not want to visit again. The Court recognized her fear.
T.A., the older of the two sisters, testified pointedly[, ] "I want you to terminate his rights." She stated she has been in foster care for three years and even before the foster care did not know her father. They did not see him even during holidays. When she saw her father, she did not remember him nor [sic] recognize him. T.A. informed [the court] that "I do not want to continue seeing him because I don't know him. I don't want to try. It's what I want (the termination)." The Court views T.A.'s testimony as earnest and convincing.

Id., 2/20/13, at 3–4 (citations omitted).

The trial court found the following facts from the testimony of Father:

Father, J.A., took the stand and testified that he currently resided in a halfway house in Allegheny County and works at McDonald's.[3] He admits he did not "have a place."
[Father] has a rather extensive criminal history. In 2002, he was incarcerated for Forgery and received consecutive probation; in 2004, he was convicted of Possession of a Controlled Substance; in 2005, theft charges, receiving 6 to 24 months incarceration; in 2008, the drug charge of Delivery, Possession with Intent to Deliver and Possession receiving three (3) years incarceration. Also in 2008, he hit the [C]hildren's mother with a gun, an obliterated firearm, as he threatened to kill her and received 3 to 6 years incarceration. In 2009, he was convicted of Possession. The Court notes that since T.A. was four (4) years old and A.A. was born, [Father] has maintained a steady lifestyle of crime.

Trial Court Opinion, 2/20/13, at 4–5 (citations omitted).

On July 11, 2011, the trial court entered the orders involuntarily terminating Father's parental rights to Children pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On August 4, 2011, Father timely filed notices of appeal and concurrent concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court did not file its Rule 1925(a) opinion until eighteen months later, on February 20, 2013, and did not provide any explanation for the delay in this Children's Fast Track case.[4]

On appeal, Father raises the following single issue:

Whether the [trial] court erred in determining that Fayette County Children and Youth Service met their burden by proving that Father, who was incarcerated but wrote letters, filed pro se briefs, took all classes available to him, and who had utilized every resource available to him, had forfeited his parental rights by clear and convincing evidence.

Father's Brief at 5 (full capitalization omitted).[5]

We review the appeal in accordance with the ...


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