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[U] In re Adoption of I.M.P.

Superior Court of Pennsylvania

August 28, 2013

IN RE: ADOPTION OF: I.M.P.
v.
IN RE: ADOPTION OF: J. V. P., JR. APPEAL OF: M.S., MOTHER APPEAL OF: M.S., MOTHER IN RE: ADOPTION OF: X.D.P. APPEAL OF: M.S., MOTHER IN RE: ADOPTION OF: J.P., JR., A MINOR APPEAL OF: M.S., MOTHER IN THE INTEREST OF: I.P., A MINOR APPEAL OF: M.S., MOTHER IN THE INTEREST OF: X.D.P. APPEAL OF: M.S., MOTHER IN THE ADOPTION OF: J.V.P., JR. APPEAL OF: J.P., NATURAL FATHER IN THE ADOPTION OF: X.D.P. APPEAL OF: J.P., NATURAL FATHER IN THE ADOPTION OF: I.M.P. APPEAL OF: J.P., NATURAL FATHER IN RE: X.P. APPEAL OF: J.P., NATURAL FATHER IN RE: I.M.P. APPEAL OF: J.P., NATURAL FATHER IN RE: J.P., JR. APPEAL OF: J.P., NATURAL FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on October 16, 2012, in the Court of Common Pleas of Butler County, Orphans’ Court at No(s): OA No. 72a of 2011, 73a of 2011, 74a of 2011, DP-90-2010, 73 of 2011, 74 of 2011, 72 of 2011

Appeal from the Order entered on November 6, 2012, in the Court of Common Pleas of Butler County, Domestic Relations Division at No(s): DP No. 91 of 2010, DP-92-2010, 92 of 2010, 91 of 2010, 90-2010

BEFORE: DONOHUE, OLSON, and MUSMANNO, JJ.

MEMORANDUM

OLSON, J.

Mother, M.S., and Father, J.P., appeal the orders dated and entered on October 16, 2012, which granted the petitions filed by the Butler County Children and Youth Services ("CYS") to terminate their parental rights to their three minor children, J.V.P., a male born in September of 2005, I.M.P., a male born in June of 2007, and X.D.P., a female born in May of 2008 (collectively, "Children").[1] The trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b), and terminated Father's rights pursuant to those same subsections as well as 23 Pa.C.S.A. § 2511(a)(1). Moreover, Mother and Father appeal the orders entered by the trial court on November 6, 2012, changing the permanency goals for the Children to adoption pursuant to 42 Pa.C.S.A. § 6351. We affirm.

On December 22, 2011, CYS filed petitions seeking the termination of the parental rights of Mother and Father to the Children, and a change of their permanency goals to adoption. The trial court held hearings on all of the petitions on July 9, 11, and 20, 2012. At the hearings, numerous witnesses were called to testify by the parties and numerous exhibits were introduced into evidence.

The trial court set forth the factual background and procedural history as follows.

[CYS] initially became involved with the family in October of 2009. The assigned caseworker subsequently received a report from the Butler [City] Police that on April 1 [sic], 2010[, ] Father was arrested for assaulting Mother. [N.T., 7/9/2012, at 9, 15-16, 35.]
At the time of the assault, Mother and Father were living together with their five children. All of the children were home at the time of the attack. The two older children fled through a window and ran to Maternal Grandparents['] home to get help and the police were summoned. Mother was subsequently taken to the hospital where her injuries were documented. Mother had injuries to both eyes, her neck, stomach, arm, forearm, side, and knee. The injuries consisted of both bruising and severe bite marks, as well as significant injury to her left eye. Mother indicated that the injuries were caused by Father and that he had been beating her for the past 14 years. Father has an extensive criminal history of being abusive and assaultive. Mother subsequently obtained a PFA [Protection from Abuse ("PFA") order] against Father, wherein Father was prohibited from having any contact whatsoever with Mother for a period of three years. All five children remained in Mother's custody and Father's visitation with Children was strictly limited to supervised visitation through CYS.
Although the caseworker received numerous reports that Mother and Father were maintaining contact with one another, in violation of the PFA, Mother continued to deny such contact. However, on September 2, 2010, the caseworker was at Wal-Mart when she personally observed Mother and Father together, with two of the younger children. All five children were immediately detained and subsequently adjudicated dependent pursuant to 42 Pa.C.S.A. § 6302(1). Children were adjudicated dependent specifically because the conduct of the parent[s] placed the health, safety and welfare of Children at risk. The older siblings were placed with Maternal Grandparents and Children were ultimately placed in the kinship home of Maternal Uncle. From the time of the initial placement, Maternal Uncle indicated that he could only provide for Children on a temporary basis, that he would not adopt Children in the event they could not be returned to Mother, and that he was acting as a kinship placement strictly because he did not want Children to be shuffled from foster home to foster home. Maternal Uncle was willing to act as a Kinship Placement only until such time as Children were returned to Mother or a pre-adoptive foster home was established.
At the time of the May 3, 2011 Permanency Review hearing, CYS recommended Children be returned to Mother upon the stabilization of her VOICe housing. Mother was participating in all of her services, had allegedly ceased all communication with Father, and, in fact, would be prohibited from any such contact with Father through VOICe regulations. Additionally, the PFA remained in effect, prohibiting Father from contacting Mother as well. Father was not participating in services and had indicated to the caseworker that he intended to give up his rights to Children. The recommendation to return Children to Mother was based upon the belief that Mother had finally resolved to put Children before Father and remove Father from her life, thus eliminating the safety threat to Children. Unfortunately, on May 4, 2011, before the VOICe housing could be obtained and Children were returned to Mother, there was a second incident of domestic violence between Mother and Father which resulted in police involvement.
The May 4, 2011 incident occurred outside of the home of Mother's friend. Mother and Father had continued to operate a business arrangement where they would travel to New York City to purchase purses and transport the purses back to Butler to resell them. A disagreement arose after Mother refused to provide Father with money that he believed was owed to him. Father approached Mother outside of the home, Mother called to her friend to dial 911, and Mother ultimately escaped into the home.
Throughout this time period until the time of the September 2011 Permanency Review Hearing, Mother was adamant that she had not had any contact with Father after the September 2, 2010 PFA violation. However, after [m]onths of direct lies to both [c]aseworker and the [c]ourt, Mother later recanted her testimony and claimed that she had not had any contact with Father after the May 4, 2011 PFA violation. Telephone records have since proven that Mother had maintained substantial contact with Father until late April of 2011, when Mother changed her phone number and her phone could no longer be tracked. Specifically, from February 25, 2011 until April 21, 2011, Mother placed 1, 628 phone calls to Father and received 247 from him. It was also subsequently established that not only had Mother maintained contact with Father, but that she had rented an apartment for him to occupy in October of 2011. Mother was also observed at the apartment with Father.

Trial Court Opinion, 10/16/2012, at 1-4 (footnotes omitted).

On October 16, 2012, the trial court entered the termination orders, and, on November 6, 2012, the goal change orders. On November 14, 2012, Mother filed notices of appeal from the termination orders, along with concise statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), and, on December 6, 2012, she filed notices of appeal from the goal change orders, along with Rule 1925 concise statements. On November 15, 2012, Father filed notices of appeal from the termination orders, along with Rule 1925 concise statements, and, on December 5, 2012, he filed notices of appeal from the goal change orders, along with Rule 1925 concise statements.[2]

On appeal, Mother raises the following issues for our review:

Did the lower court commit an error of law in failing to follow the case of In re: K.C.W. et al., 456 Pa. Super. 1, 689 a.2d [sic] 294 (1996) in that Father's incarceration removed the possibility that the Children would be placed in danger from his continued presence?
Did the Children and Youth Agency fail to present clear and convincing evidence that safety concerns which led to the removal of Mother's three children continued to exist; thus, the trial court abused its discretion in terminating the parental rights of Mother and changing the goal from reunification to adoption?

Mother's Brief, at 3.[3]

Father raises three issues, as follows:

Whether the [trial court] erred in granting the termination of the parental rights of natural [M]other for the reasons raised in natural [M]other's Concise Statement? [Appellant did not restate those issues in his appeal so as not to "muddy the water" in the appeal.]
Whether the Orphan's Court erred in finding that Butler County CYS presented clear and convincing evidence to change the goal from reunification to placement for adoption, where, even conceding a history of domestic violence and continued contact between [M]other and [F]ather, [M]other maintained a separate residence, there were no further reports of domestic violence, and [F]ather was incarcerated with the prospect of a lengthy jail sentence?
If the Superior Court reverses the termination of natural [M]other's rights, whether the termination of natural [F]ather's rights should also be reversed in accordance with Pennsylvania's public policy against creating legal orphans?

Father's Brief, at 3 (bracketed statement in original).[4]

We review an appeal from the termination of parental rights and a dependency order in accordance ...


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