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In re Adoption of A.Z.H.-O.

Superior Court of Pennsylvania

September 9, 2013

IN RE: ADOPTION OF A.Z.H.-O. APPEAL OF: A.H., BIOLOGICAL FATHER IN RE: ADOPTION OF A.Z.H.-O. APPEAL OF: P.O., BIOLOGICAL MOTHER

Appeal from the Order entered January 2, 2013, in the Court of Common Pleas of Blair County, Orphans' Court, at No(s): 2011 AD 16

BEFORE: LAZARUS, OLSON, and COLVILLE[*] JJ.

MEMORANDUM

OLSON, J.

In these related appeals, Appellants, A.H. ("Father"), and P.O. ("Mother"), appeal from the order entered on January 2, 2013, in the Blair County Court of Common Pleas Orphans' Court, terminating Father's and Mother's parental rights to their son, A.Z.H.-O. ("Child"). We affirm.

The record reveals the following relevant factual and procedural history. Father and Mother are the natural parents of Child, who was born in April of 2004. Petitioners, S.H. ("Paternal Uncle") and K.H. ("Paternal Aunt") filed Petitions for the Involuntary Termination of Mother's and Father's Parental Rights on June 15, 2011. A hearing was held on the matter on April 13, 2012, April 17, 2012, and July 12, 2012. Trial Court Opinion, 1/2/13, at 1.

Paternal Uncle and Paternal Aunt are married and have lived in their home since 1997. They have no biological children. However, Child and his younger sister, I.H., born in November of 2008, live with Paternal Uncle and Paternal Aunt. The children have the same biological parents. I.H. was removed from Mother's care by the Blair County Children, Youth, and Family Services ("BCCYF") and placed with a foster family until Mother could complete her Safety Plan. At the time, Mother was on methadone, and she entered the Blair County Family Drug Court. Mother did not successfully complete her recommended treatment at Drug Court, and did not complete the Safety Plan that BCCYF had set up for her to complete in order to be reunited with I.H. Mother then abandoned all contact with I.H. and refused to contact BCCYF. Id. at 2. BCCYF placed I.H. with Paternal Uncle and Paternal Aunt, who served as foster parents. On September 2, 2010, Paternal Uncle and Paternal Aunt adopted I.H. Id. at 2-3.

In September of 2007, Paternal Uncle petitioned the court to intervene in the custody case between Mother and Father concerning Child, the brother of I.H., because Paternal Uncle and Paternal Aunt had been watching Child and saw track marks in Mother's arm, which were a sign of Mother's drug use. Child was placed with Paternal Uncle and Paternal Aunt temporarily. After Mother and Father agreed to follow the Safety Plan, Paternal Uncle returned Child to them. Subsequently, Child came to live with Paternal Uncle and Paternal Aunt in December of 2008, when he was four years old. Prior to Child moving in with Paternal Uncle and Paternal Aunt in December, 2008, Mother had left Child with her father, R.O., while she attended the Methadone Clinic. On December 18, 2008, R.O. and his wife, S.O., were arrested for selling drugs. They called T.P., an individual with a criminal record, to watch Child until Mother returned from the Methadone Clinic. At the time, Paternal Uncle requested that Child live with him and Paternal Aunt during the week and visit Mother on weekends. Mother agreed but started to miss her weekend visits. Child continued to stay with Paternal Uncle and Paternal Aunt. Id. at 3.

Although BCCYF was involved with I.H., they were not involved with Child during this period of time. Also, during this period, Father was not involved in Child's life. Pursuant to a custody order, Child has been in the primary custody of Paternal Uncle and Paternal Aunt since the spring of 2009. Id. at 3-4.

Although Mother alleged that Paternal Uncle and Paternal Aunt withheld Child from her, she never filed a petition for contempt or custody modification. Mother was notified by MidPenn Legal Services that she could file for custody modification without an attorney, but never did so, although she had achieved a custody order on her own. Id. at 4.

Mother is currently off methadone. The last time Mother had physical contact with Child was in July of 2010, when she came over and went swimming at Paternal Uncle's and Paternal Aunt's home after one of Child's baseball games. She had her new baby with her. Admittedly, Paternal Uncle and Paternal Aunt refused to bring Child to a birthday party for one of Mother's other children because Child had not seen Mother in a long time. Mother's last non-physical contact with Child was in August or September of 2010 via telephone. Paternal Uncle and Paternal Aunt have lived at the same address for a long time and have had the same telephone number for fifteen years. Id. at 5.

Father is currently incarcerated at SCI-Retreat, serving a four to eight year sentence that began in August of 2009. Before Father went to prison, he had a problem with marijuana and pain pills. Id.

Father testified that, after Child was born, he saw Child daily. However, after reviewing the competent evidence, the trial court determined that Child lived with Mother and Paternal Grandfather for five years, as his primary caretakers, but had some contact with Father. Father was not present for the entirety of the time. Pa.R.A.P. 1925(a) Opinion, 1/23/13 at 4. In addition, during that period of time, Paternal Uncle and Paternal Aunt reported concerns to BCCYF, and Child was placed with them. Later, BCCYF returned Child to Mother and Father. Trial Court Opinion, 1/2/13, at 5.

In 2008, Father was incarcerated in Bedford County Jail for a parole violation and absconding. When Father was released from jail, Mother refused to allow him to see Child and filed a Protection from Abuse ("PFA") petition against Father, which was granted. Father then filed for custody modification, but no action was taken because of Father's pending criminal charges. He was eventually found guilty and sentenced to four to eight years' imprisonment. Father saw Child only a few times in 2008.

The last time Father had physical contact with Child was when Father was a fugitive in 2008, fleeing from an arrest warrant. He visited with Child at Baltimore's Inner Harbor. The visit was set up surreptitiously by Father's sister, N. The last telephone contact Father had with Child was on Christmas Day of 2010. Child received a birthday card from Father after the termination petition was filed. Father did fill out a minor visit approval form in an attempt to have Child visit him in prison. Paternal Uncle refused to take Child to the prison to visit Father because he believed that it would be bad for Child. Paternal Uncle's and Father's father was in jail when they were young, and the two brothers did not like visiting their father in jail. Eventually, Father agreed with Paternal Uncle. Father called Child four times between August of 2009 and June of 2011. Father sent Child approximately two or three cards a year, and sent Christmas presents through a prison program. Trial Court Opinion, 1/2/13, at 5-6. In the six months immediately preceding the filing of the Petition for Involuntary Termination of Parental Rights, Father made telephone calls around Thanksgiving and Christmas. Pa.R.A.P. 1925(a) Opinion, 1/23/13, at 5. N.T., 4/13/12, at 69-70.

Father described himself as a "friend" to Child. He asserted that there was a father/child bond between him and Child, but noted that he was sure that it was not as strong as it used to be. Father's home plan upon release from prison was to live at his sister's house in Pittsburgh, Pennsylvania. Father noted that the earliest that he could be paroled to a halfway house is January of 2013. Father stated that he thought that the impact of termination of his parental rights on Child would be devastating. However, when Child spoke to the Guardian ad litem ("GAL"), he said he was afraid of Father. The GAL found that Child was bonded to Paternal Uncle and Paternal Aunt. Id. at 7.

Neither Mother nor Father has provided any financial support for Child. They have not been substantially involved with Child's schooling or medical care, and have not been involved with Child's day-to-day care for years. Id. at 6-7.

Child is aware that Paternal Uncle and Paternal Aunt are his aunt and uncle. Paternal Uncle and Paternal Aunt have a great relationship with Child. Paternal Uncle is child's soccer, baseball, and basketball coach. They fish and hike together. Child knows who his biological Father and biological

Mother are. Paternal Uncle is involved in Child's extra-curricular activities and education. Mother indicated that she would like Child to be raised as a Catholic and attend Catholic school, and Paternal Uncle and Aunt have fulfilled her request by placing Child in Saint John's Catholic School in Lakemont, Pennsylvania. Id. at 7-8. Child is doing well in school. He has a good relationship with his sister, I.H. Paternal Uncle and Paternal Aunt provide for Child and I.H. financially. Id. at 8.

When the GAL spoke with Child, he envisioned Mother and her new child moving into Paternal Uncle's and Paternal Aunt's new home so they could care for them also. GAL concluded that Child's bonds with his parents are not strong, and that Paternal Uncle and Paternal Aunt provide for all of his needs. GAL opined that termination of Father's and Mother's parental rights is in the best interest of Child. Id. at 8.

On June 15, 2011, Paternal Uncle and Paternal Aunt filed Petitions for the Involuntarily Termination of Parental Rights. Following a termination hearing on April 13, 2012, April 17, 2012, and July 12, 2012, the trial court granted Paternal Uncle's and Paternal Aunt's petitions, and terminated Father's and Mother's parental rights.

On January 9, 2013, Father timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In addition, on February 1, 2013, Mother timely filed a notice of appeal and a concise statement of errors complained of on ...


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