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[U] In re K.S.J.

Superior Court of Pennsylvania

December 3, 2013

IN RE: K.S.J., MINOR CHILD APPEAL OF: G.S., FATHER IN RE: S.R.J., MINOR CHILD APPEAL OF: G.S., FATHER IN RE: D.I.J., MINOR CHILD APPEAL OF: G.S., FATHER IN RE: C.M.M.J., MINOR CHILD APPEAL OF: G.S., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree May 10, 2013 In the Court of Common Pleas of Wayne County Civil Division at No(s): 4-AD-2012, 5-AD-2012, 6-AD-2012, 8-AD-2012

BEFORE: GANTMAN, J., DONOHUE, J., AND OLSON, J.

MEMORANDUM

GANTMAN, J.

Appellant, G.S. ("Father"), appeals from the decree entered in the Wayne County Court of Common Pleas, which involuntarily terminated Father's parental rights to his four minor children, K.S.J., S.R.J., D.I.J., and C.M.M.J. ("Children").[1] We affirm.

In it opinions, the trial court fully and correctly set forth the relevant facts of this case. Therefore, we have no reason to restate them.

Procedurally, on August 27, 2012, Wayne County Children and Youth Services ("CYS") filed petitions for involuntary termination of Mother and Father's parental rights as to four of their minor children. The court held hearings on the petitions on March 5, 2013 and March 19, 2013. On May 10, 2013, the court entered an order involuntarily terminating Mother and Father's parental rights to K.S.J., S.R.J., D.I.J., and C.M.M.J. On June 3, 2013, Father timely filed a notice of appeal, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).

Father raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED IN NOT APPOINTING COUNSEL FOR CHILDREN DURING THE DEPENDENCY PROCEEDINGS AND AGAIN IN NOT APPOINTING COUNSEL [FOR] CHILDREN PRIOR TO [THE] BEGINNING OF THE TERMINATION PROCEEDINGS.
WHETHER THE TRIAL COURT ERRED IN NOT FINDING THAT [CYS] INTERFERED WITH THE PLACEMENT OF [CHILDREN] WITH A…RELATIVE.
WHETHER THE TRIAL COURT ERRED IN FINDING CYS PROVED THE ELEMENTS OF TERMINATION WITH RESPECT TO 23 PA.C.S.A. [§§] 2511(A)[(1)], 2511(A)(5) AND/OR 2511(A)(8) BY CLEAR AND CONVINCING EVIDENCE.
WHETHER THE TRIAL COURT ERRED IN ITS FINDINGS OF FACT [WHICH] WERE NOT SUPPORT[ED] BY THE WEIGHT OR SUFFICIENCY OF THE EVIDENCE.
WHETHER THE TRIAL COURT ERRED IN ITS FINDINGS OF FACT [WHICH] WERE AGAINST THE TOTALITY OF THE EVIDENCE.

(Father's Brief at (i)-(ii)).[2]

The standard and scope of review applicable in termination of parental rights cases are as follows:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that it would give to a jury verdict.
We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.
Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. 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 means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. We may uphold a termination decision if any proper basis exists for the result reached. If the trial court's findings are supported by competent evidence, we must affirm the court's decision, even though the record could support an opposite result.

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted). See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super. 2008) (en banc).

After a thorough review of the record, the briefs of the parties, the applicable law, and the comprehensive opinion of the Honorable Raymond L. Hamill, we conclude Father's first, third, fourth and fifth issues merit no relief. The trial court opinions discuss and properly dispose of those claims. (See Trial Court Opinion and Decree, filed May 10, 2013, at 7-17; Trial Court Opinion, filed June 19, 2013, at 3-10) (finding: (1) court appointed attorney to act as guardian ad litem for Children throughout dependency proceedings; court appointed separate counsel to represent Children throughout termination proceedings;[3] court satisfied 23 Pa.C.S.A. § 2313(a); (3-5)[4] under Section 2511(a)(1), Father did not regularly attend Children's medical appointments; Father continues to smoke around Children even though D.I.J.'s doctor told Father that D.I.J. should not be around cigarette smoke due to tumor in his ear; Father failed to attend and participate in some Individualized Education Program meetings for Children; for at least six months prior to filing of termination petition, Father demonstrated failure to perform parental duties; under Section 2511(a)(5), Children have been removed from Father's care for longer than six months; Father is unable to provide appropriate supervision or safe environment for Children; Father had been and continues to be unable to prevent Children from being perpetrators and/or victims of sexual abuse against each other; specifically, one of Father's children, A.J., perpetrated sexual abuse against some or all of Children after Mother and Father had signed safety plan stating that A.J. could not be left unsupervised with Children; Father is unable to rectify overly sexual atmosphere in his home; Father does not understand or appreciate extent and prevalence of sex offending that has occurred in his home and could occur again; conditions which led to Children's removal continue to exist; Father will not be able to remedy those conditions where he cannot supervise Children properly or protect them from future abuse notwithstanding inordinate amount of services and assistance CYS provided to Father; Children have made strides in their respective placements away from Father; termination of Father's parental rights best serves interests of Children; under Section 2511(a)(8), Children have been removed from Father's care for three years; Children's need for permanent and stable family environment takes precedence over Father's recent professed "willingness" to avail himself of resources, which he has had ample time to utilize; conditions which led to removal of Children continue to exist; whatever bond remains between Father and Children is negative and harmful to development of Children; termination of Father's parental rights would best serve needs and welfare of Children).[5] Accordingly, we affirm on the basis of the trial court's opinions as to Father's first, third, fourth and fifth issues on appeal.

With respect to Father's second issue on appeal, Father argues CYS had ample time to explore familial resources for Children prior to initiating termination proceedings. Father asserts CYS caseworker Natalie Burns admitted CYS had contact with a relative in 2010, but could not recall during the termination hearing whether CYS followed-up with that potential resource. Father contends Children had family members who agreed to act as a resource for some or all of Children, but CYS did not follow-up with them. Father emphasizes the importance of maintaining sibling connections. Father maintains Pennsylvania law requires CYS to give primary consideration to a fit and willing relative before placing a child in foster care or an alternative placement. Father concludes CYS' initiation of termination proceedings was premature where CYS failed to properly explore all familial resources who could care for Children; and this Court must reverse the court's order terminating Father's parental rights. We disagree.

The statute outlining the Kinship Care Program provides, in pertinent part:

§ 1303. Kinship Care Program
(b) Placement of children.—If a child has been removed from the child's home under a voluntary placement agreement or is in the legal custody of the county agency, the county agency shall give first consideration to placement with relatives. The county agency shall document that an attempt was made to place the child with a relative. If the child is not placed with a relative, the agency shall document the reason why such placement was not possible.

62 P.S. § 1303(b). This Court explained:

[K]inship care is a subset of foster care where the care provider already has a close relationship to the child. In kinship care (as with foster care generally), legal custody of the child is vested in [CYS]. [CYS] then places the child with the care provider. The court may place children with a foster family, although there might be willing relatives, where foster care is in the best interests of the children or aggravated circumstances exist. The goal of preserving the family unit cannot be elevated above all other factors when considering the best interests of children, but must be weighed in conjunction with other factors. In re Davis, 502 Pa. 110, 125, 465 A.2d 614, 621 (1983).

In re Adoption of G.R.L., 26 A.3d 1124, 1127 (Pa.Super. 2011) (some internal citations and quotation marks omitted).

Instantly, Ms. Burns testified at the termination hearing that after CYS took custody of Children, CYS contacted Children's extended family, including Mother's father, brothers and a cousin, none of whom said they could care for Children. (See N.T. Termination Hearing, 3/5/13, at 39-40.) Ms. Burns admitted that Mother had one cousin in New Jersey who said she might be interested in serving as a potential resource for Children, but that cousin had not seen Mother in twelve years. (See id. at 40.) Regarding this particular cousin, Mother testified at the termination hearing that she informed CYS her cousin "wasn't a reliable source for my children being that I haven't spoken to her or know anything that's happened with her." (N.T. Termination Hearing, 3/19/13, at 115-16).

Additionally, Ms. Burns testified that she and another caseworker specifically asked Mother and Father to put together a list of potential family resources for Children and have them contact CYS; Mother and Father were unable to provide any family members to care for Children. (See N.T., 3/5/13, at 40.) Further, Mother admitted that caseworker Nicole Carlson contacted Mother's family members to see if they were willing to act as a resource for Children. (See N.T., 3/19/13, at 85.) Father also testified at the termination hearing that Mother's family was the only potential resource for Children, as his family members lived too far away or were deceased. (See id. at 38.)

The record demonstrates that CYS made efforts to place Children with family members, but found no relative willing or able to act as a resource for Children. Significantly, Father has offered no specific relative who could have been an appropriate resource for Children. Furthermore, with respect to Father's contention that siblings should be placed together, the trial court explained that several of the children cannot be placed together due to their significant sexual abuse history and their sexually reactive behaviors with each other. (See Trial Court Opinion, 5/10/13, at 5.) Thus, the placement of Children in foster care during the pendency of the proceedings was in their best interests. See 62 P.S. § 1303(b); In re Adoption of G.R.L., supra. Based on the foregoing, we see no reason to disrupt the court's decision to terminate Father's parental rights. See In re Adoption of K.J., supra. Accordingly, we affirm. Decree affirmed.

Judgment Entered.

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