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[U] In re Adoption of E.J.D.

Superior Court of Pennsylvania

January 31, 2014

IN RE: ADOPTION OF E.J.D. APPEAL OF: M.R.D., MOTHER
v.
IN RE: ADOPTION OF E.J.D. APPEAL OF: F.B., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered July 3, 2013, In the Court of Common Pleas of Montgomery County, Orphans' Court Division, at No. 2013-A0008.

BEFORE: SHOGAN, OTT and PLATT [*] , JJ.

MEMORANDUM

SHOGAN, J.

M.R.D. ("Mother") and F.B. ("Father") appeal from the orders entered on July 3, 2013, in the Orphan's Court Division of the Montgomery County Court of Common Pleas.[1] These orders granted the petitions filed by the Montgomery County Office of Children and Youth ("OCY") to involuntarily terminate Mother's and Father's parental rights to their son, ("E.J.D." or "Child"), who was born in August of 2010, pursuant to 23 Pa.C.S.A. § 2511(a)(2), (8), and (b). We affirm.

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

E.J.D. was first taken into care by the Bucks County Office of Children and Youth on June 10, 2011. On July 5, 2011, the Montgomery County Office of Children and Youth took custody of E.J.D., who was then approximately 11 months old, and placed him in a foster home. N.T. 3/8/2013, pp. 55-57. Later that month, both birth mother and birth father were arrested. Birth Mother was arrested on July 13, 2011, and remained incarcerated until February 29, 2012. Birth mother was again arrested on May 2, 2012, and incarcerated again until November 7, 2012. At that time, through the Behavioral Health Court, she was released to reside at the Pennsylvania Institute for Community Living [PICL], still under [trial court] supervision. N.T. 3/8/2013, p. 60. Birth father was also arrested in July of 2011, and remained incarcerated until November 30, 2011. N.T. p. 72.

Trial Court Opinion, 7/3/13, at 5.

On January 11, 2013, OCY filed a petition seeking the involuntary termination of Mother's and Father's parental rights to Child. The trial court held an evidentiary hearing on the petition on March 8, 2013. At the hearing, OCY presented the testimony of Child's foster mother, J.W., Cathy Milliman, the caseworker assigned to the case, Thomas Watkins, Mother's probation officer between December of 2008 and May of 2012, and Julia Solomon, the ongoing caseworker assigned to the case. N.T., 3/8/13, at 5, 19-20, 44, and 53-55. Mother presented the testimony of Kendrick Peer Mugnier, a licensed counselor who is the associate director of Pennsylvania Institute for Community Living ("PICL"). Id. at 131. Both Mother and Father, represented by separate counsel, testified on their own behalf.

The trial court found the following facts concerning Child:
E.J.D. is a child with significant special needs. According to his foster mother, E.J.D. qualifies for Early Intervention services and suffers from a speech delay, a gross motor delay, and has received speech therapy, occupational therapy, physical therapy and play therapy. His speech has improved markedly but he still receives physical therapy and occupational therapy, and is delayed in gross motor skills such as walking, running, jumping and climbing. He has issues with balance and also has a vision issue. His foster mother has taken him to numerous medical visits, including with a neurologist, developmental pediatricians, geneticist, ophthalmologist, as well as arranging for the various therapies mentioned and seeking Early Intervention services. N.T. March 8, 2013, pp. 5-13.

Trial Court Opinion, 7/3/13, at 4.

The trial court found the following facts concerning Mother:
Birth mother has a history of drug and alcohol abuse, including dependency on cocaine and a mental health diagnosis of bi-polar disorder. N.T. 3/8/2013, p. 45. Thomas Watkins, her probation officer from December 2008 through May 2012, testified that in April through June 2011, when E.J.D. was under one year old, he received "reports that she was living out of her car. There were several incidents with the police." Mt. [sic] Watkins confirmed that she was arrested on July 13, 2011. During the period that he was her probation officer, he stated that "[s]he had [a] period where she did very badly and periods where she did good. Between the three and a half years, she was arrested eight times by different police departments." N.T. 3/8/2013, p. 45.
As a result of these lengthy incarcerations, birth mother did not have visits with E.J.D. from the time Montgomery County OCY took custody of E.J.D. on July 5, 2011, until she attended one visit on April 26, 2012. The next visit for birth mother was scheduled for May 3, 2012, but birth mother was arrested on May 2, 2012, and did not attend this visit. During this period, although she was required to inform OCY of her release from prison and her address, she did not contact her caseworker for over a month following her first release from prison, February 29, 2012. N.T. 3/8/2013, p. 61. On August 31, 2012, the caseworker brought E.J.D. to the Montgomery County Correctional Facility for a visit with birth mother and birth mother asked that he not be brought to see her again at the prison. N.T. 3/8/2013, p. 67. Thus, from July 5, 2011, until November 16, 2012, birth mother had only two visits with E.J.D.
Birth mother had eight visits with E.J.D. between November 16, 2012 and March 12, 2013. The OCY caseworker testified that birth mother was nervous at these visits, and that E.J.D. appeared, at times, apprehensive. Given the lengthy period of separation between the birth mother and E.J.D., with only one visit between July 5, 2011 and August 31, 2012, none of the caseworkers observed a strong emotional bond between the birth mother and the child, even after visits resumed in late 2012.

Trial Court Opinion, 7/3/13, at 4-6.

The trial court found the following facts concerning Father.
Birth father attended no visits from the time E.J.D. was placed in care until the end of 2011, during most of which time [F]ather was incarcerated. However, from January 12, 2012 through July 19, 2012, [F]ather regularly attended bi-weekly visits. N.T. 93. From July 2012 through December 2012, birth father missed five of ten visits. N.T. 94. From December 20, 2012 through February 28, 2013, [F]ather missed four of six visit [sic] scheduled.

Trial Court Opinion, 7/3/13, at 6.

On July 3, 2013, the trial court involuntarily terminated the parental rights of Mother and Father to Child, pursuant to 23 Pa.C.S.A. § 2511(a)(2), (8), and (b). Mother filed a timely notice of appeal and concise statement of errors complained of on appeal on July 25, 2013. On July 30, 2013, Father filed his notice of appeal. The trial court appointed new counsel to represent Father on July 30, 2013. On August 14, 2013, Father's new counsel filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).[2]

1. [Whether] the lower court erred in its order of July 3, 2013 in terminating the parental rights of [Mother] because the appellant, [Mother], did substantially cooperate and comply with the demands of Petitioner, the Montgomery County Office of Children and Youth?
2. [Whether] the lower court erred in its order of July 3, 2013 in terminating the parental rights of [Mother] because the Appellant, [Mother], did make substantial and successful efforts while in prison and in a residential ...

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