IN RE: ADOPTION OF: A.C., A MINOR APPEAL OF: A.C.
from the Order Entered September 14, 2016 In the Court of
Common Pleas of Beaver County Orphans' Court at No(s):
BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.
("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.
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
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
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
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.
Ct. Op., 9/1/16, at 1-4.
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
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. § 2511(a)(2) after finding that Father was
facing additional felony ...