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In re Adoption of M.A.B.

Superior Court of Pennsylvania

June 29, 2017

IN THE MATTER OF THE ADOPTION OF: M.A.B. APPEAL OF: ERIE COUNTY OFFICE OF CHILDREN & YOUTH IN THE MATTER OF THE ADOPTION OF N.M.B. APPEAL OF: ERIE COUNTY OFFICE OF CHILDREN & YOUTH IN THE MATTER OF THE ADOPTION OF N.M.B. APPEAL OF: N.M.B., MINOR CHILD IN THE MATTER OF THE ADOPTION OF: M.A.B. APPEAL OF: M.A.B., MINOR CHILD

          Appeal from the Decree October 10, 2016 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No. 68A In Adoption 2015

          Appeal from the Order October 10, 2016 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 68 In Adoption 2015

          BEFORE: LAZARUS, DUBOW, and STRASSBURGER [*] , JJ.

          OPINION

          DUBOW, J.

         In these consolidated appeals, the Erie County Office of Children and Youth ("Erie OCY"), and the minor children, M.A.B. (born August 2009) and N.M.B. (born August 2010) ("Children") appeal[1] from the Decree entered by the Honorable Daniel J. Brabender denying Erie OCY's petition to terminate the parental rights of ("Mother") and ("Father") pursuant to 23 Pa.C.S. §§ 2511(a) and (b). After careful review, we reverse and remand for further proceedings.

         This case involves two special needs children, a mother who has failed and refused to address her substance abuse and mental health issues, and a father who has failed and refused to separate from Mother. Our detailed review of the certified record reveals the following factual and procedural history relevant to these appeals.

         In June 2013, and again in October 2013, Venango County Children, Youth and Family Services ("Venango CYS") became involved with the family after ChildLine received reports that the Mother and Father were inappropriately disciplining the Children. Further investigation determined the allegations to be either invalid or unfounded, and CYS closed the cases at intake.

         In September of 2013, the court revoked Father's parole after he moved to Kentucky without permission, and he returned to prison.[2] Paternal Grandmother ("Grandmother") then agreed with Mother to help care for the Children.

         On February 26, 2014, Grandmother called Venango County CYS to report that Mother had been admitted to an inpatient mental health and substance abuse treatment facility, [3] and Grandmother would not be able to meet the Children's needs. Venango CYS filed an emergency motion, which the trial court granted, and CYS placed the Children in foster care.

          Subsequently, the court granted legal and physical custody of the Children to Venango CYS, and directed that the Children remain in foster care. The court also directed Mother to complete her inpatient treatment and Venango CYS established a permanency plan for the parents.

         By March 2, 2014, Mother had moved to Erie, where she was receiving outpatient mental health and substance abuse treatment from psychiatrist Dr. Belinda Stillman[4] and treatment counselors at Stairways Behavioral Health ("Stairways"). On March 12, 2014, the court adjudicated the Children dependent due to Father's continued incarceration, Mother's substance abuse in the home, Mother's mental health status, and poor housing conditions. At that initial dependency hearing, Venango CYS developed permanency plans for each parent, and the court established a concurrent placement goal of return to parent and adoption. The children remained in foster care.

         On March 17, 2014, Father was released from SCI Albion to the Erie County Community Corrections Center. Mother continued to reside in Erie and participate in outpatient therapy through Stairways.

         In July 2014, jurisdiction was transferred to Erie County, and Erie OCY moved the Children to their second foster home. Dr. Stillman conducted psychiatric evaluations of Mother and Father. Mother received a diagnosis of bipolar disorder and opioid dependency; Father received a diagnosis of bipolar disorder and alcohol dependency in remission.

         On August 20, 2014, the dependency court held a permanency hearing, [5] after which the court determined that the parents had moderately complied with the permanency plan established in Venango County, and had made moderate progress toward alleviating the conditions which led to placement. In addition, the Court established treatment plans for the parents:

The Court directed the parents to refrain from the use of drugs and/or alcohol and submit to random urinalysis; to continue to address mental health needs by attending all mental health appointments, follow through with recommendations and demonstrate mental health stability; participate in an approved parenting program and demonstrate ability to meet [Children's] needs, including attending medical appointments for [them]; attend scheduled visitation with [Children]; and obtain and/or maintain safe housing. The Court specified [Mother's] random urinalysis was to occur at the Esper Treatment Center, and [Mother] was to inform [Erie OCY] of any changes in medication management. The Court continued in effect the permanency goals of reunification, concurrent with adoption. The Community Corrections Pre-Release Center, Erie County Adult Probation, Stairways, and Esper Treatment Center were directed to release to [Erie OCY] the results of the [parents'] random urinalysis testing. [Children] were to remain in their current foster placement setting.

Orphans' Court Opinion, dated 10/10/16, at 4-5 (citations omitted).

         On October 27, 2014, the court held a permanency review hearing at which Erie OCY informed the court that since August 2014, Mother had attended only two appointments at Stairways and had missed three group therapy sessions and two office visits. Mother had informed Erie OCY that she had stopped taking Suboxone on August 29, 2014. She and Father were living together at a new apartment as of October 1, 2014. Father had a fulltime job, often in excess of 50 hours per week. Father attended at least one 12-step recovery program during each week, attended counseling and parenting classes, and attended all scheduled visits with the Children. However, neither Father nor Mother consistently complied with random urinalysis screening. Erie OCY conceded Father's failure was partially due to his work schedule.

         Erie OCY continued to recommend concurrent goals of reunification and adoption, and further recommended that, because visits with the Children had gone well for both parents, the parents' visitation with the Children be increased in duration and decreased in the level of supervision, depending on the parents' mental health stability, maintenance of sobriety, and demonstration of adequate parenting skills. The court directed both parents to continue substance abuse and mental health treatments, as well as submit to random drug testing.

         At a permanency hearing on December 17, 2014, Erie OCY reported that Mother had not yet begun random urinalysis screenings and had discontinued medications without medical advice. Although Mother had attended an assessment at Stairways, she had not yet made an appointment for medication management. Corry Counseling Family Preservation accepted the family for services, but had difficulty contacting Mother and had only recently scheduled a first session with her. Mother attended supervised visits regularly.

         The court directed the continuation of the treatment goals for the parents and the concurrent placement goals for the Children. The court further directed Mother to return to mental health therapy and medication management at Stairways, submit to random urinalysis tests, attend 12-Step meetings and addiction counseling, and supply a release for a doctor to confirm that the reason Mother had not attended urinalysis testing was due to issues with her catheter as she had reported.

         On or about January 26, 2015, Erie OCY transferred the Children to a third foster home, which is now the Children's pre-adoptive home. At that time, the Children were four and five years old, respectively, neither was fully toilet trained, and both exhibited behaviors consistent with autism.[6]

         On February 23, 2015, Mother was admitted to New Directions Health Care to receive methadone treatment for opiate addiction. However, on April 7, 2015, Mother left treatment because of other health issues requiring hospitalization. After her health issues were resolved, the treatment facility reached out to Mother to continue treatment, but she declined.

          At a permanency review hearing on March 6, 2015, an Erie OCY representative reported that Mother had a number of "no-show positives" for urinalysis testing, she had not provided verification of attendance in a 12-Step program, and was not participating in mental health treatment. On four occasions, Mother's urinalysis tests had negative results. Mother had been attending parenting training classes, and Erie OCY reported that Mother's visits with the Children had gone relatively well, although both parents had difficulty redirecting the Children's negative activities and behavior at times. However, at some point prior to March 6, 2015, Erie OCY had suspended Mother's visits with the Children due to her "no-show positive" urinalysis screening results and OCY's consequent inability to ensure Mother's sobriety and the Children's safety. Erie OCY also expressed concern about Mother's demonstrated inconsistency in her parenting, which in the past had caused difficulty with regards to the Children's development and social skills.

         Erie OCY reported that Father had not provided it with any verification of his attendance at AA, and he had been discharged from Stairways after completing his mental health programming. Erie OCY also reported that Father's solo visits with the Children had gone well in that Father was patient and appropriate in managing the Children. Erie OCY also reported that Father had regular phone contact with the Children.

         In addition, Erie OCY reported that it had advised Father that if Mother continued to be non-compliant with the permanency plan and Father continued to live with Mother, his reunification with the Children could be jeopardized due to the Children's safety. Father also informed the court he was aware of Mother's non-compliance and the impact it could have on reunification.

         The court continued the suspension of Mother's visits, and continued to maintain the concurrent goals of reunification and adoption at OCY's recommendation. The court directed Mother to provide OCY with verification of her attendance at 12-Step meetings, any recommended substance abuse counseling, and a mental health assessment. The court directed Father to continue to participate in the Family Preservation Program, and continue to demonstrate his ability to provide appropriately for the Children's health and special needs. The visits with the Children remained partially supervised.

         In May 2015, Mother submitted to two random urinalysis screenings, which were positive for Suboxone. Mother reported that she had obtained the drugs through a prescription from her physician.[7] Also in May 2015, while the Children were with Father on an unsupervised visit, Father permitted the Children to have contact with Mother despite the court's suspension of her visits. The parents later admitted to the unauthorized contact.

         On June 29, 2015, the dependency court held a permanency review hearing at which Erie OCY recommended that the permanency goals for the

          Children be changed to adoption due to Mother's noncompliance with court-ordered mental health and sobriety treatment services and her continuing substance abuse, and Father's failure to obtain a residence separate and apart from Mother to ensure the Children's safety. By this time, the Children had been in placement for 16 months. The Erie OCY expressed concern about the level of care needed to meet the Children's special needs, and the parents' abilities to meet those needs. It further indicated that it "gave the [F]ather opportunities to explore living arrangements separate from his wife because, in OCY's view, the [M]other could potentially present a risk to the [C]hildren because of unaddressed mental health or drug and alcohol issues." TCO, dated 10/1/16, at 10, citing N.T., 1/28/16. The Erie OCY also indicated that Father did not seem to understand the risk that Mother's unwillingness to commit to her sobriety and mental health stability had on the Children's safety and welfare; and reported that despite court orders, Father had allowed Mother to be present during one of his visits with the Children. Erie OCY recommended that no further services be offered to the parents and no visitation be offered.

         The dependency court changed the placement goals to adoption, and directed the Erie OCY to file termination petitions. Neither parent appealed the goal change.

         On August 26, 2015, Erie OCY filed Petitions to Terminate the Parental Rights ("TPR Petitions") of Mother and Father pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b).

          On January 28, 2016, and March 8, 2016, the Honorable Daniel Brabender, sitting as Orphans' Court, held an evidentiary hearing. The court acknowledged that the written court summaries from each permanency review hearings were part of the record. In addition, the court heard testimony from Dr. Stillman; Erie OCY case workers; the Children's special education teacher, the pre-adoptive/foster mother, and Father.

         Brianne Baran of the Erie County OCY, testified that Mother was registered for random urinalysis screening at the Esper Treatment Center from October 6, 2014 until August 23, 2015, when she was removed from the system for non-compliance. Baran testified that Mother had 79 "no-show positive" results, 30 clean results, and two positive results for Suboxone. Father was registered for urinalysis screenings at the Esper

         Treatment Center from October 6, 2014 until December 23, 2014. He had 30 "no-show positive" results, which Baran conceded may have been due to Father's work schedule. See N.T., 1/28/16, at 104-10.

         Carrie Luther, a supervising Erie OCY case worker, testified about the content of the court summaries from each permanency review hearing. She particularly noted Mother's minimal progress in meeting her substance abuse and mental health treatment goals, her failure to attend urinalysis screenings, and Father's moderate progress in meeting the goals set by the dependency court and Erie OCY. See id., at 119-25, 146, 150. She also testified that Erie OCY had made Father and Mother aware "numerous times" that Father should explore obtaining a separate residence due to Mother's failure to address her mental health or her drug dependency. Id. at 127. Ms. Luther also testified that Father had consistently attended partially supervised visitations, but when Father had been allowed one unsupervised visit with the Children, he allowed Mother to remain at that visit after she showed up allegedly unexpectantly, even though Father knew that Mother's presence violated the court's order. Id. at 131. Ms. Luther also testified that the Children were progressing well in their current foster care placement. Id. at 128.

         Father testified that no one from Erie OCY ever gave him an ultimatum to separate from Mother or lose the possibility of reunification. However, he also testified that he was aware at the March 2015 hearing that he would likely have to leave Mother to reunify with the Children. He testified that he had made plans to separate from Mother, but once the dependency court changed the permanency goal to adoption, he decided to remain with Mother. See N.T., 3/8/16, at 12-16, 22, 26, 28-19.

         The foster/pre-adoptive mother testified that in the year that the Children have been in her home, both Children have stabilized in their development, both have been toilet trained, and both are now developmentally age-appropriate in their speech and education. She also testified that the Children get along well with the other children in the household. Foster mother further stated that when returning from their visits with their parents, the Children were somewhat hyperactive and required some time to settle down. She testified that the ...


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