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In re A.K.

Superior Court of Pennsylvania

September 10, 2013


Appeal from the Decree entered February 25, 2013, in the Court of Common Pleas of Philadelphia County, Domestic Relations, at No(s): CP-51-AP-000085-2013, CP-51-DP-0002047-2011, CP-51-AP-0000086-2013, CP-51-DP-0002046-2011.




Father, K.K., appeals the decrees and orders dated and entered on February 25, 2013, which granted the petitions filed by the Philadelphia Department of Human Services ("DHS") to involuntarily terminate his parental rights to his two male, minor children with T.S. ("Mother"): E.R.K., a/k/a E.K., and A.R.K., a/k/a A.K. (collectively, "Children"), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and changed the permanency goal for the Children to adoption pursuant the Juvenile Act, 42 Pa.C.S.A. § 6351.[1] We affirm.

The trial court set forth the factual background and procedural history of these appeals as follows:

The children [involved in this case], E.K. and A.K. were born respectively [in] December . . . [of] 2005 and September [of] 2007.
On October 28, 2003, the Department of Human Services received a General Protective Services report (GPS) regarding [M]other's present inability to provide proper food for [Mother's other] child [C.A.S.]. It also reported that [M]other failed to provide a safe living environment, had mental health issues and abused drugs and alcohol.
On November 11, 2003, the Department of Human Services received a General Protective Services report (GPS) regarding [M]other's mental health hospitalization and diagnosis of a schizaphrenic [sic] disorder. Furthermore, it also reported that [M]other failed to provide proper food for the child. Lastly, [M]other failed to provide a safe living environment and she abused drugs and alcohol.
On September 23, 2011, the Department of Human Services received a General Protective Services report (GPS) that [M]other was requiring C.A.S. to care for her sibling[s, Children herein, ] while [M]other attended weekly medical appointments. It also reported that [Mother] was not taking any medication. The report was substantiated.
On September 28, 2011, [the] Department of Human Services obtained an Order of Protective Custody (OPC) for C.A.S. After a hearing before the Honorable Walter Olszewski, he lifted the OPC and ordered a temporary commitment of C.A.S. to the Department of Human Service[s]. The [trial court] ordered that [M]other could have supervised visits at the discretion of C.A.S. The siblings of C.A.S.[, Children herein] were placed in the care of [Father].
On October 12, 2011, [the] Department of Human Services obtained an Order of Protective Custody after receiving a report of allegations [Children] were sleeping outside of [F]ather's home on trash bags. [Father] was allegedly intoxicated at the time of the incident.
After a hearing on October 14, 2011 for [Children] before the Honorable Alice Debow [sic], she lifted the Order of Protective Custody and ordered the temporary commitment of [Children] to [the] Department of Human Services.
The Department of Human Services held a Family Service Plan [(FSP)] meeting. The Family Service Plan objectives for [M]other and [F]ather were[:] (1) to meet with [the] counselor on a weekly basis to learn expected behavior for [the] [C]hildren[;] (2) [to] participate in evaluation for drug/alcohol abuse and (3) [to] maintain contact and communication with the [C]hildren.
The matter was then listed on a regular basis before Judges of the Philadelphia Court of Common Pleas – Family Court Division – Juvenile Branch pursuant to Section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351[, ] and evaluated for the purpose of determining or reviewing the permanency plan of the child with the goal of reunification of the family.
In subsequent hearings, the DRO's [Dependency Review Orders] reflect the [trial court's] review and disposition as a result of evidence presented addressing the lack of compliance with suitable housing, employment[, ] and drug and alcohol treatment.

Trial Court Opinion, 5/3/2013, at 1-2.[2]

On February 11, 2013, DHS filed petitions for involuntary termination of the parental rights of Father, and for a change of the permanency goal for Children to adoption. On February 25, 2013, the trial court held a hearing on the petitions. At the hearing, DHS presented the testimony of its social worker, Kelayne Minus. N.T., 2/25/2013, at 3-11. The Child Advocate presented the testimony of the social worker for Jewish Family and Children Services ("JFCS" or the "Agency"), Amy Sesay. Id. at 39-47. Father, represented by counsel, testified on his own behalf. Id. at 52-58.

Ms. Minus testified that Children were removed from the care of Father for approximately twelve months, and that they were currently residing in the pre-adoptive home of their maternal grandmother ("Maternal Grandmother") through JFCS. Id. at 3-4.

Ms. Minus testified that Father's FSP objectives were to complete a parenting evaluation through the Assessment & Treatment Alternatives (ATA); to have a drug and alcohol assessment through the Clinical Evaluation (CEU); to provide drug and alcohol screens through the CEU; to provide parenting to Children through the Achieving Reunification Center (ARC); and to attend visitation with Children. Id. at 9. Ms. Minus testified that Father did not attend the ARC, and was dropped from the program for non-compliance. Id. When Father was later re-referred to the ARC through outreach, he also failed to comply. Id. She stated that Father had only two visitations with Children since they had been in care. Id. Father did not complete the parenting capacity evaluation, and did not attend either part of the evaluation scheduled through the ATA. Id. Father also did not comply with the recommendations of the CEU. Id. Father went to a drug screen on April 12, 2012, but never went to the CEU for an assessment. Id. at 10. Ms. Minus stated that, after the previous hearing, she had sent Father for an assessment at the CEU, but he did not show up. Id. Ms. Minus testified that, to the knowledge of DHS, Father did not comply with any other drug and alcohol services. Id. Father was not compliant with any of his FSP objectives. Id.

With regard to the welfare of Children, Ms. Minus testified that all three children, including Children at issue herein, were residing with Maternal Grandmother, and that they were doing well in the home. Id. She stated that Children were intelligent young children, who were doing well and attending school, and were happy to be in the same home together. Id. at 10-11. Further, Ms. Minus testified that the termination of the parental rights of Father was in the best interests of Children, so that Maternal Grandmother may adopt them. Id. at 11. She also stated that, when she saw Children on January 29, 2013, they were safe, and Maternal Grandmother was meeting all of their basic needs. Id.

With regard to the bond between Children and Maternal Grandmother, Ms. Minus testified that she observed a loving bond, and that Maternal Grandmother treats Children as her own and is very receptive of them. Id. at 12. Ms. Minus explained that there are cousins of Children who also reside in the home, and that Maternal Grandmother ensures that they all eat, are clothed, and are involved in activities. Id. She also takes them to church with her. Id. With regard to the bond between Children and Father, Ms. Minus testified that Children know who Father is and they speak about him. Id. at 13. She stated, however, that, because of Father's lack of consistent visitation with Children, they do not really bring him up in conversation. Id. at 14. Ms. Minus also testified that she did not believe there would be any detrimental effects on Children from the termination of their parents' parental rights. Id.

On re-direct examination, Ms. Minus testified that, initially, the case became known to DHS because of C.A.S.'s truancy, and it was determined that C.A.S. was serving as the caregiver for her younger siblings, Children. Id. at 29-30. Mother was given a mental health assessment under Section 302 of the Mental Health and Procedures Act. Id. at 30. See 50 Pa.C.S.A. § 7302. The core issues for the placement of Children in the care of Maternal Grandmother were Mother's mental health, and Father's drug and alcohol abuse, as DHS believed that he was abusing prescription drugs. Id.

On re-cross-examination by the Child Advocate, Ms. Minus stated that, at the time of Mother's mental evaluation, C.A.S. was living with Maternal Grandmother, and Children were residing at home with Father while Mother was hospitalized. Id. at 31-32. She explained that Mother was not hospitalized for a lengthy time. Id. at 31. Ms. Minus testified that Children were then removed from Father's care because it was believed that Father was intoxicated while caring for them, and that they were sleeping outside of the home on trash bags. Id. at 32-33. This was the second report about Father's intoxication while he was serving as the sole caregiver for Children. Id.

In response to questioning by Mother's counsel on re-cross-examination, Ms. Minus responded that it had been indicated that the parents were getting high together. Id. at 36. In response to re-cross-examination by Father's counsel, Ms. Minus stated that, in the hearing on the adjudication of dependency for Children, Children's aunt had testified that the parents were getting intoxicated on cocaine, and that one drug screen which Father had done had shown elevated results for alcohol. Id. at 37-38.

On direct examination by the Child Advocate, Ms. Sesay testified that she had been assigned to the case for twelve months. Id. at 39. Ms. Sesay testified that JFCS offered a schedule of visits to the parents, and she had supervised a visit between Father and Children, occurring in May of 2012. Id. at 40. She stated that Father had appeared a half-hour late for a second visit, which she also supervised. Id. at 41, 51. Ms. Sesay offered visitation contact information, but Father did not request any additional visits. Id. at 40-43. Ms. Sesay explained that Mother had arrived with Father for the visits, but that Mother had not visited with Children, stating that she had difficulty parking her vehicle. Id. at 40-42.

Ms. Sesay testified that Father and Mother had not progressed to unsupervised visitation because they were not attending the scheduled visits. Id. at 43. Ms. Sesay also testified that Mother makes threats, generally. Id. at 44-45. Maternal Grandmother obtained a restraining order, and does not permit Mother or Father in her home because Mother has entered the home, threatened individuals, and broken the television and other items. Id. at 45. Ms. Sesay observed Children in Maternal Grandmother's home, and stated that Maternal Grandmother meets their needs and assumes all of the parental responsibilities. Id. at 46.

On cross-examination by Mother's counsel, Ms. Sesay testified that she was aware that Mother and Father both suffer from physical disabilities, and both walk with canes. Id. at 47. Ms. Sesay stated that she had explained to Father and Mother that they could come to visits at the JFCS center, which has free parking in front of the building and handicap access, but they did not show up for visitation there. Id. at 48-49. Ms. Sesay also testified that the visitation schedule offered to the parents was weekly, from 4:00 p.m. to 5:00 p.m., from July of 2012 to October of 2012, and from October of 2012 to January 2013. Id. at 49.

On cross-examination by Father's counsel, Ms. Sesay testified that Father had not made threats on the only two occasions when she spoke with him, during the supervised visitations, and that he had never called her. Id. at 51. Ms. Sesay could not respond as to whether he appeared at the visitations in an intoxicated state. Id. at 51-52.

On direct examination by his counsel, Father testified that he had gone to the CEU to complete drug screens on four occasions. Id. at 53-54. He claimed that, on the third occasion, the CEU staff refused to complete the drug test for him without the DHS social worker being present, and that the DHS social worker refused to accompany him because of a situation with Mother. Id. at 53-54. Father also testified that he had been in a cast, on crutches, and in a wheelchair, because he had broken his hip and his neck, and had injured his left heel and had dislocated discs in his lower back. Id. at 55-56. Father claimed that he could not attend visitations with Children because of his condition, and, because he depended on Mother to transport him, and she always got into a conflict with the DHS staff. Id. at 55-56. Father testified that he was in the process of separating himself from Mother. Id. at 56. When asked if he believed that the termination of his parental rights would affect Children, Father responded that it would mean that he could not "see his kids." Id. at 57-58.

On cross-examination by counsel for DHS, Father admitted that he did not have the results of the four drug screens. Id. at 58-59. On cross-examination by the Child Advocate, Father admitted that he was aware that he was court-ordered to submit to the CEU for drug testing. Id. at 60-61. He also admitted that he was aware of the court order to submit to a parenting evaluation and to take a parenting class. Id. at 61. He claimed he had not completed either of these directives because of a refusal of DHS workers to cooperate with him, his medical problems, and Mother's behavior, from which he needed to separate himself. Id. at 61-63. On cross- examination by Mother's counsel, Father admitted that he drank a can of beer during lunch on the day of the hearing. Id. at 63. Father admitted that he had not attempted to separate himself from Mother. Id. at 65. Father also admitted that he had told DHS or the JFCS worker that he could not care for Children without Mother, but he claimed to have made the statement so he could get Children back. Id.

The trial court admitted into evidence Father's drug screen results from October 11, 2012, and April 18, 2012, and stated that the October test results were negative for alcohol and positive for opiates, and the April test was negative for all substances. N.T., 2/25/2013, at 66-67; Father's Exhibits Nos. 1 and 2; see also Supplemental Record, Exhibits A and B Father's Drug Test Reports dated October 11, 2012 and April 18, 2012.

On February 25, 2013, on the record at the close of the hearing, and in separate decrees and orders entered on that same date, the trial court terminated Father's parental rights, and changed the permanency goal for Children to adoption. The trial court appointed new counsel for Father, both on the record at the hearing and in a separate order. N.T., 2/25/2013, at 84-85.

On March 22, 2013, Father, through his new court-appointed counsel, filed notices of appeal from the termination decrees and goal change orders, along with a concise statement of errors complained of on ...

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