October 29, 2013
IN RE: INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO A.T.S., A MINOR APPEAL OF: A.A.S., MOTHER IN RE: INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO A.T.S., A MINOR APPEAL OF: J.H., FATHER
Appeal from the Decree entered May 30, 2013 In the Court of Common Pleas of Lehigh County Orphans' Court at No(s): A2012-0039, A2012-0039
BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.
A.A.S. (Mother) and A.T.S. (Father) appeal from the trial court's final decrees terminating their parental rights to their son, A.T.S. (born 1/2009). After careful review, we affirm based upon the cogent opinion authored by the Honorable Michele A. Varricchio.
Lehigh County Office of Children and Youth Services (Agency) became involved in this case in January 2009 when Mother tested positive for opiates at A.T.S.'s birth. Mother was also determined to have mental health issues at that time. The Agency referred Mother to the STOPP program which provided her assistance in obtaining appropriate housing, baby care, and transportation to and from any necessary appointments or services. Mother was uncooperative with the Agency's program, refusing to attend appointments or meet with caseworkers. In March 2009, on an unannounced home visit, a caseworker found A.T.S. in his crib in a soiled diaper and hungry. Mother became increasingly agitated at the caseworker during the visit, yelling and cursing at her. Mother admitted to the caseworker that she had not taken her psychiatric medication for at least a week. Mother acted erratically during the entire visit, ultimately telling the caseworker that she "couldn't do it anymore, " was exhausted and on the verge of passing out. After an ambulance took Mother to the emergency room of a local hospital to be evaluated, the Agency took A.T.S. into custody, adjudicated him delinquent, and placed him in foster care.
In March 2009, Father presented himself at the Agency, claiming to be A.T.S.'s biological father. In June 2009, the Agency returned A.T.S. to the custody of Father, after paternity tests confirmed his biological connection. The Agency, however, continued to provide support and services for Mother and Father until Father moved out of the county in September 2009.
On November 24, 2009, the Agency received a referral indicating that Father was incarcerated and that there was an outstanding warrant out for his arrest. A.T.S. was placed in the care of Father's friend in Lehigh County. Father was released from custody and moved into a shelter in January 2010. In February 2010, A.T.S. was placed into emergency custody by the police and transferred to the Agency after employees of a restaurant reported that Father was publically intoxicated in the presence of A.T.S. In March 2010, the Agency created a family service plan (FSP) which outlined goals for both Mother and Father for reunification with A.T.S. Father's goals were to: maintain housing; complete a drug and alcohol evaluation; attend parenting classes; submit to urinalysis; and cooperate with the Agency. For Mother, the Agency set the following FSP goals: maintain stable housing, comply with mental health treatment, have bi-weekly supervised visits with A.T.S., and cooperate with Agency services.
At May and June 2010 permanency hearings, the Agency deemed Mother's and Father's compliance with FSP goals as uncooperative to moderate. Nonetheless, A.T.S. was returned to Father in mid-May, although legal custody of A.T.S. remained with the Agency. In August 2010, A.T.S. was placed in foster care after police responded to a call that Father had left A.T.S. home alone at 3:00 a.m., housing conditions were deplorable and A.T.S. was in his playpen in a soaking wet diaper. Father was charged with, pled guilty to and was incarcerated for endangering the welfare of a child in connection with this incident. A.T.S.'s maternal grandmother attended a family group conference in August 2010 and was present at no less than five permanency hearings where she indicated she would like to be considered as a placement resource for her grandson. The Agency took grandmother's repeated requests under advisement, and ultimately determined that due to her housing situation and lack of cooperation she was not a suitable placement resource. N.T. Termination Hearing, 12/6/2012, at 75.
In September 2010, the Agency set new FSP goals for Father, consisting of: resolving all criminal charges; submitting to urinalysis; undergoing drug and alcohol treatment; maintaining stable housing; sustaining a legal source of income; having bi-weekly supervised visits with A.T.S.; and cooperating with Agency services.
Father was released from prison in January 2011; during the year 2011, Father missed forty scheduled urinalyses. In 2011, Mother attended four out of seventeen scheduled supervised visits with A.T.S. In 2012, she made twelve out of twenty-six scheduled visits. In 2011, while incarcerated, Father attended all visits with A.T.S; upon his release he attended fourteen out of twenty-eight scheduled visits. At the time of a scheduled October 2011 permanency review hearing, Father appeared intoxicated, was found to be in violation of his parole, was arrested on-site, and incarcerated. After the hearing, Mother was determined to be minimally compliant with FSP goals, continually failing to provide the Agency with any documentation indicating that she has completed mental health treatment. While incarcerated in 2012, Father attended every scheduled visit with A.T.S.; Mother attended twelve out of twenty-six visits in 2012.
At the time of the termination hearing in December 2012, A.T.S. had been in his current foster home for more than two years, residing with two foster siblings. A.T.S.'s current foster parents are a potential adoptive resource. Father was still incarcerated at the time of the termination hearing; however, he appeared in person and pro se at the hearing.
After the termination hearing, the trial court granted the Agency's petition to terminate on the bases of sections 2511(a)(1), (2), (5), & (8) and 2511(b) of the Adoption Act. Mother and Father filed separate, timely, notices of appeal from the court's termination decrees.
On appeal, Mother and Father present the same issues for our review:
(1) Did the trial court err as a matter of law and/or abuse its discretion in finding that the Lehigh County Office of Children and Youth Services met the requirements of 23 Pa.C.S. § 2511 (a)(1) and (2) by clear and convincing evidence?
(2) Did the trial court err as a matter of law and/or abuse its discretion in finding that the Lehigh County Office of Children and Youth Services sustained [its] burden of proof by clear and convincing evidence that the termination of . . . parental rights to A.T.S. best meet[s] the needs and welfare of the child as required by 23 Pa.C.S. § 2511(b)?
When a court is faced with a petition to terminate a parent's rights to his or her child:
the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.
In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa.Super. 2003) (citation omitted). On appeal, our Court reviews a trial court's decision to involuntarily terminate parental rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa.Super. 2003). Our scope of review is limited to determining whether the trial court's order is supported by competent evidence. Id.
As the trial court aptly notes in its Pa.R.A.P. 1925(a) opinion, in the twenty-eight months since A.T.S. has been in his current foster home, Mother and Father have, at best, minimally complied with the Agency's FSP goals, have never sent him gifts or cards, and, most detrimentally, Mother continues to suffer from mental health issues and Father from dependency issues which prevent them from properly parenting A.T.S. Notably, Father has been incarcerated for much of the dependency period. When A.T.S. was first placed with the Agency he was socially withdrawn and did not interact or speak to others. After attending play, speech and occupational therapies, he has become a well-adjusted child due to the care and concern of his foster family. Accordingly, we conclude that the trial court did not abuse its discretion or commit an error of law by terminating Mother's and Father's parental rights under section 2511(a)(8). See In re J.F.M., 71 A.3d 989 (Pa.Super. 2013) (termination proper under section 2511(a)(8), even where parent has made some progress toward resolving problems that led to removal of child; where conditions that led to removal continue to exist after one year, statute implicitly recognizes child's life cannot be held in abeyance while parent is unable to perform actions necessary to assume parenting responsibilities); see also In re I.J., 972 A.2d 5, 11-12 (Pa.Super. 2009) (appellate court cannot and will not subordinate indefinitely child's need for permanence and stability to parent's claims of progress and hope for future).
With regard to termination under section 2511(b), Mother claims that the court received no expert testimony to prove that terminating her parental rights would best serve A.T.S.'s emotional needs and welfare. Although maternal grandmother testified that she observed affection between Mother and A.T.S. and that she believes they have a "close bond, " N.T. Termination Hearing, 12/6/2012, at 225, the trial court concluded that while A.T.S. appears to enjoy spending time with both Mother and Father, A.T.S. has no trouble leaving them when the scheduled visitations conclude. Trial Court Opinion, 5/30/2013, at 17-18. At the termination hearing,
Agency caseworker Cara Pyle testified that when she observed Mother and Father during their scheduled visits with A.T.S, the child did not show any affection towards them and even pushed Father away during one visit. N.T. Termination Hearing, 12/6/2012, at 84-85.
Although it is a close case, we are constrained to agree with the trial court that termination of Mother's and Father's parental rights would promote the needs and emotional welfare of A.T.S. as delineated in section 2511(b). See In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006) (concerns for child's welfare must remain court's focus under section 2511(b); intangibles like love, comfort, security, and stability are involved when inquiring into needs and welfare of child). Here, Father has admitted he cannot be a resource for his son,  neither Father nor Mother has demonstrated a constant or stable relationship with A.T.S., A.T.S. does not demonstrate any type of bond with Mother and Father at their visits, and A.T.S. has benefitted significantly from the permanent, stable and loving environment of his foster home. In re T.S.M., 71 A.3d 251 (Pa. 2013) (courts must determine whether trauma caused by breaking child's bonds to biological parents who have proven incapable of parenting outweighed by benefit of moving child toward permanent home). The trial court is in the best position to assess the evidence and credibility of the parties, we conclude that the court correctly determined that the potential adoptive placement of A.T.S. with his foster family greatly outweighs severing any bond that parents may have with A.T.S.
We rely upon Judge Varricchio's Rule 1925(a) opinion in disposing of Mother's and Father's issues on appeal and affirming the trial court's order terminating their parental rights to A.T.S. We instruct the parties to attach a copy of Judge Varricchio's decision in the event of further proceedings in the matter.