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In re Adoption of A.C.

Superior Court of Pennsylvania

May 12, 2017

IN RE: ADOPTION OF: A.C., A MINOR APPEAL OF: A.C.

         Appeal from the Order Entered September 14, 2016 In the Court of Common Pleas of Beaver County Orphans' Court at No(s): 3034-2015.

          BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

          OPINION

          MOULTON, J.

         A.C. ("Child") appeals, through her guardian ad litem, from the order entered September 14, 2016 in the Beaver County Court of Common Pleas, which denied the petition of Beaver County Children and Youth Services ("CYS") to terminate the parental rights of C.W. ("Father") to Child. We affirm.

         The trial court set forth the factual and procedural background of this case as follows:

At birth [in July 2014], [Child] tested positive for drugs (amphetamines and marijuana), due to Mother's drug use. When she was released from the hospital, five days after her birth, [Child] initially was voluntarily placed with her [M]other's cousin, [J.B. ("Foster Mother")], who is the current foster mother. The goal at that time was reunification with parents. [Father] is not listed on the birth certificate and did not sign an acknowledgement of paternity, nor did he submit to genetic testing. When he failed to attend a Domestic Relations matter, he was adjudicated [Child]'s father.
[Child] was adjudicated dependent on September 29, 2014. Neither parent attended the hearing. Father was released from jail on September 24, 2014. It is unclear whether Father received notice of the adjudication proceeding.
From September 24, 2014 through December 1, 2014, 30 visits with [Child] were offered to Mother and Father. Father attended 4, and he left early on 2 of those occasions. There is some confusion about whether visits were offered to Father at this time due to the allegations of another person being [Child]'s father. Ultimately, DNA tests revealed the other person was not [Child]'s father.
Father was incarcerated again from December 1, 2014 through March 2016. Visits occurred at the Beaver County Jail one time every other week for one hour. Father had limited access to mail while incarcerated. He sent two letters to CYS, and he never indicated that he wanted to give up his rights as [Child]'s Father.
CYS filed a Petition to Terminate Parental Rights on September 11, 2015. The hearing initially set to terminate the rights of both parents was originally scheduled for November 24, 2015. Mother failed to attend this hearing and her rights were terminated.
The hearing to terminate Father's parental rights was continued several times, pending the outcome of his criminal trial, which also kept getting continued.
In March 2016, counsel for Father sought to dismiss the Petition to Terminate Parental Rights, because it failed to comply with the Pennsylvania Adoption Act, 23 Pa.C.S. §2512(b), which states that the petition shall set forth specifically those grounds and facts alleged as the basis for terminating parental rights. CYS filed a new petition to terminate on April 18, 2016, seeking termination on the grounds specified in 23 Pa.C.S. §2511(a)(1) and (2).
Also in March 2016, Father was acquitted of the criminal charges for which he had been incarcerated since December 1, 2014. If he had been convicted of those charges, he could have faced a lengthy prison term, and we would be looking at a much different scenario for this child's future. Since he was acquitted of the charges, Father resumed visits with [Child]. He missed of few of these visits due to transportation issues.
The hearing to terminate his parental rights was scheduled for June 21, 2016, but was continued until June 28, 2016. Testimony regarding the psychological bonding assessment was not available at this hearing, so the court kept the record open to allow for the completion of the bonding assessment, and resumed testimony on August 24, 2016.
The bonding assessment indicated that [Child] is well bonded with her [F]oster [M]other. It also showed that a bond is forming with Father. The evaluator did not have an issue with the bond between Father and [Child], but was more concerned with Father's criminal history and pending charges. The evaluator commented, "It may indeed be that [F]ather's pattern of criminal involvement may be an overwhelming impediment in his ability to establish a bond and indeed be an effective parent going forward. Here it appears that parental fitness (due to a pattern of criminal behavior) is a much larger consideration than the bonding profile." (Chambers Report p. 8).
Since his release from jail, Father has complied with all of the CYS directives in the family service plan. He obtained a drug and alcohol evaluation, which indicated that no treatment was necessary. He obtained a parenting evaluation, which recommended no additional services. He attended the bonding assessment. He obtained adequate housing with his [m]other and his other children.
[Child] has been in placement for 22 of the last 24 months. In her entire life, the only time she was not in placement was during her initial hospital stay at birth. For the majority of this time, Father was in jail awaiting trial on charges, for which he was ultimately found not guilty. [Child] has never spent the night at Father's home. She has a brother in her foster home, with whom she shares a strong bond.
Father is still awaiting a hearing on criminal charges in Allegheny County that stem from separate incidents that occurred on March 7, 2014 and March 19, 2014. At the hearing in this matter, those charges were awaiting a jury trial to be held in September 2016.1
1 The criminal docket indicates that on September 13, 2016, the charges are now awaiting a non-jury trial. No date for the trial was provided.
Father has three other children who reside with him and his mother. He shares custody of two of them with his mother, and his mother has played a significant role in raising them. All of the children are well provided for and do well in the community. Father does not want [Child] to think that he gave up on her. He cares for her and loves her, just as he loves his other children.

         Trial Ct. Op., 9/1/16, at 1-4.

         On September 14, 2016, the trial court denied the petition to terminate Father's parental rights. On October 14, 2016, Child's guardian ad litem filed an appeal on Child's behalf.

         Child raises three issues on appeal:

1. Whether the trial court erred as a matter of law and abused its discretion in failing to terminate the parental rights of [F]ather under 23 Pa.C.S. § 2511(a)(1) after determining that CYS failed to meet its burden when [F]ather was incarcerated for ten months prior to the filing of the petition for termination and failed to address whether Father exhibited reasonable firmness in maintaining his relationship with the minor child and used all available resources to preserve the parental relationship?
2. Whether the trial court erred and abused its discretion in failing to terminate the parental rights of Father under 23 Pa.C.S. ยง 2511(a)(2) after finding that Father was facing additional felony ...

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