In Re: S.N.H., a Minor

J-S09044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: S.N.H., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: F.C.H., FATHER : No. 1361 MDA 2017

Appeal from the Decree July 24, 2017 In the Court of Common Pleas of Berks County Orphans' Court at No(s): 85190

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J. MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2018

Appellant, F.C.H. (“Father”), appeals from the decree entered in the Berks County Court of Common Pleas Orphans’ Court Division, which granted the petition of the Berks County Children and Youth Services (“BCCYS”) for involuntary termination of Father’s parental rights to his minor child, S.N.H (“Child”). We affirm and grant counsel’s petition to withdraw.

In its opinion, the Orphans’ Court fully and correctly set forth the relevant facts and procedural history of the case.1 Therefore, we have no reason to restate them.

As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. ____________________________________________

1This appeal is related to the appeal listed consecutively at No. 1362 MDA 2017 (J-S09045-18).

____________________________________ * Retired Senior Judge assigned to the Superior Court.

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1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). After establishing that counsel has met the antecedent requirements to withdraw, this Court makes an independent review of the record to confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon2 requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal. ____________________________________________

2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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• • * *

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel filed a petition to withdraw. The petition states counsel conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant’s right to retain new counsel or proceed pro se to raise any additional issues Appellant deems worthy of this Court’s attention. In the Anders brief, counsel provides a summary of the facts and procedural history of the case.3 Counsel’s argument refers to relevant law that might arguably support Appellant’s ____________________________________________

3 We disapprove of counsel’s rhetoric in his brief, which borders on the extreme, as inappropriate and unnecessary.

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issue. Counsel further states the reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements of Anders and Santiago.

Father has not responded to the Anders brief pro se or with newly retained private counsel. Counsel raises the following issues on Father’s behalf:

DID THE TRIAL COURT ERR IN TERMINATING [FATHER’S] PARENTAL RIGHTS TO HIS CHILDREN BASED ON THE EXHIBITS AND TESTIMONY PRESENTED AT THE TIME OF [THE] HEARING ON JULY 24, 2017, PURSUANT TO THE PENNSYLVANIA ADOPTION ACT, 23 PA.C.S.A. SECTION 2511, AS [FATHER] DESIRES AN ADDITIONAL OPPORTUNITY TO COMPLETE REQUIRED SERVICES UPON HIS RELEASE FROM PRISON IN APPROXIMATELY ONE YEAR?

IN THE ALTERNATIVE, SHOULD THE MOTHER OF THE CHILDREN BE AFFORDED AN ADDITIONAL OPPORTUNITY TO COMPLETE REQUIRED SERVICES UPON HER RELEASE FROM PRISON IN NOVEMBER 2017?

(Anders Brief at 3).4 ____________________________________________

4 Pennsylvania law on common law standing provides that a person can invoke the jurisdiction of a court to enforce private rights or maintain an action for the enforcement of such rights, only if that person has in an individual or representative capacity some real interest in the legal right that is the subject matter of the controversy. In Interest of G.C., 673 A.2d 932, 935 (Pa.Super. 1996). See generally In re T.J., 559 Pa. 118, 124, 739 A.2d 478, 481 (1999) (stating: “In determining whether a party has standing, a court is concerned only with the question of who is entitled to make a legal challenge and not the merits of that challenge”; “the purpose of the ‘standing’ requirement is to insure that a legal challenge is by a proper party”). Here, counsel says Father is abandoning his second issue because Mother did not appeal from the orders terminating her parental (Footnote Continued Next Page)

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Appellate review of termination of parental rights cases implicates the following principles:

In cases involving termination of parental rights: “our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.Super. 2009)).

Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. … 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.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).

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.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing (Footnote Continued) _______________________

rights. In any event, Father would not have standing to raise issues related to Mother or on Mother’s behalf. Therefore, we give Father’s second issue on appeal no further attention.

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as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). If the court’s findings are supported by competent evidence, we must affirm the court’s decision, even if the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting 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)).

DHS filed a petition for the involuntary termination of Father’s parental rights to Child on the following grounds:

§ 2511. Grounds for involuntary termination

(a) General Rule.―The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

• • * *

(5) The child has been removed from the care of the

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parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

• • * *

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

• • * *

(b) Other considerations.―The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). “Parental rights may be involuntarily terminated where any one subsection of Section 2511(a) is satisfied, along with consideration of the subsection 2511(b)

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provisions.” In re Z.P., supra at 1117.

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his… parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

Termination under Section 2511(a)(1) involves the following:

To satisfy the requirements of [S]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition,

Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.

Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent’s explanation for his… conduct; (2) the post- abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations omitted). Regarding the six-month period prior to filing the termination

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petition:

[T]he trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his… parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted).

The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D., (797 A.2d. 326, 337 (Pa.Super. 2002). “Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities.” Id. at 340. The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), “the petitioner for involuntary termination must prove (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

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719 A.2d 327, 330 (Pa.Super. 1998).

“Termination of parental rights under Section 2511(a)(5) requires that: (1) the child has been removed from parental care for at least six months; (2) the conditions which led to removal and placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child.” In re Z.P., supra at 1118.

“[T]o terminate parental rights under Section 2511(a)(8), the following factors must be demonstrated: (1) [t]he child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super. 2003). “Section 2511(a)(8) sets a 12–month time frame for a parent to remedy the conditions that led to the children's removal by the court.” In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the 12– month period has been established, the court must next determine whether the conditions that led to the child's removal continue to exist, despite the reasonable good faith efforts of the Agency supplied over a realistic time. Id. Termination under Section 2511(a)(8) does not require the court to evaluate a parent’s current willingness or ability to remedy the conditions that initially caused placement or the availability or efficacy of Agency services. In re Adoption of T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003);

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In re Adoption of M.E.P., supra.

Under Section 2511(b), the court must consider whether termination will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond.” Id. Significantly:

In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.

When conducting a bonding analysis, the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

“The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state, may properly be considered unfit and have his…rights terminated.” In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and

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support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.

This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.

Because a child needs more than a benefactor, parental duty requires that a parent exert [himself] to take and maintain a place of importance in the child’s life.

Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his… ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic constitutional right to the custody and rearing of his…child is converted, upon the failure to fulfill his…parental duties, to the child’s right to have proper parenting and fulfillment of [the child’s] potential in a permanent, healthy, safe environment.” Id. at 856.

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Scott D. Keller, we conclude Father’s issues merit no relief. The Orphan’s Court

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opinion comprehensively discusses and properly disposes of the questions presented. (See Orphans’ Court Opinion, filed September 12, 2017, at 1-8) (finding: Father has criminal history of drug related offenses dating back to 2006; Father is currently incarcerated and hopes to be released from prison in August 2018, but even with RRRI eligibility, his minimum release date would not be until early 2019; S.N.H. is developmentally delayed and special needs child; foster parents are actively meeting Child’s needs; Child is thriving in foster home and bonded to foster parents; any bond Child might have to Father deteriorated to point that severance would not detrimentally affect Child; with exception of one visit, Father has not seen Child since Father’s incarceration in February 2016; Child has received no letters, cards, gifts, or parental support from Father; given Father’s extensive drug history and current incarceration, Father cannot remedy conditions, which led to Child’s placement, within reasonable time; termination of Father’s parental rights will serve Child’s best interests; termination of Father’s parental rights was proper under Section 2511(a)(1), (2), (5), and (b)). Following our independent review of the record, we conclude the appeal is frivolous. See Palm, supra. Accordingly, we affirm on the basis of the Orphans’ Court’s opinion and grant counsel’s petition to withdraw.

Decree affirmed; counsel’s petition to withdraw is granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/28/2018

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Circulated 03/16/2018 03:07 PM

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IN TH COURT OF COMMON PLEAS INRE: l OFBE' KS COUNT', PENNSYLVANIA I I I ORPH NS' COURT DIVISION S:N.H. : No. 85 90 :tH., Jr. a/k/a F.S.H. : No. 85 91 ,; ! I. I· I Jennife11:L, Grimes, Attorney for BCCYS, Petition ·ti Appellee Molly Sanders, Guardian Ad Litem for S.N.H and J •18.H. �. David: Maynard, Attorney for F.C.H., Father Itelly S-jJ(line, Attorney for J.C.G., Mother I• I I

!I>PINIO�LScott D. Keller, S.J. Dated: Se .tember 12, 2017

1�is matter came before the Court on the petiti :ns of Berks C unty Children and Youth I

�lervices!C'BCCYS") to terminate the parental rights o 1J.C.G. a/k/a J. .H. ("Mother") and I I R. C.H. (rF ather") to the children, F .H., Jr. alk/ a F. S .H( 0. O. f3 2011, and

$.N.H., . \). O. -p . 2016 ("the Children"1] The petitions to involuntarily terminate • I I I

parental pghts wore filed on December 6, 2016 on the grounds set � !(l for in 23 Pa.C.S.A.

2511 (a ), (2 ), and ( 5). The hearing was held on Ju � 24, 20 l 7. Mith er was present via

telephone :from Boot Camp. Her court-app inted counsel as present in the I I· courtroom. Father was present via video from ''P{\ 5 0(\ . Father s court-appointed counsel : i' I: tas phYf cally present for the hearing. Upon conclusil of the hearin · , the Court granted the � rietiti.ons! to terminate parental rights to the Children. : ither filed a ti ely Notice of Appeal and , I � Concise Statement of Matters Complained of on Ap:·�al. 2

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�he statute at paragraph 2511 (a)(l) provides tl �t parental righ sin regard to a child may j 1 I

I I I. Be I termi*ated on the grounds that a "parent by co�duc hontinuing for a period of at least six I I I ! I ' I l , � OrdeJ;dated A;ril 25, 2017, the Child shall be known as F.S �. fonci�e Statement simply states that t�e Court e1;:d inhenninati�g his p� ental rights based on the 2 r;_th.er's

exhibits a�ci tesumony presented and that he desires an add1t1ona� opportunity for hi1 and Mother to complete services. 'f'he Statement indicates that counsel believes the appea jto be frivolous. I I' ' I I· ' 1 I I I

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I months tmediately preceding the filing of the petitior!either has evi enced a settled purpose of \failed relinquis�ing parental claim to a child orhas refused O to perfor parental duties."

P.aragraP;h (a)(2) provides that parental rights may bet pninated on th grounds that "[t]he I ' repeated land continued incapacity, abuse, neglect or re f}-isal of the par nt has caused the child to

be withort essential parental care, control or subsistenr necessary fo his physical or mental !ell-beitg and the conditions and causes of the incapar�ty, abuse, neg ect or refusal cannot or

will not te remedied by the parent." Paragraph (a)(5) �ovides forte ination of parental rights I 1 I when a '";ehild has been removed from the care of the p;arent by the co or under a voluntary 1�nths, �eement with an agency for a period of at least six the condi ti ons which led to the

remo�al �r p lac�nent of the child �ontin�e to exist, thirarent ca�ot r will not remedy those tlh.e pare�! are not likely to remedy the conditions whic ; led to the reml,val or placement of the

child within a reasonable period of time and terminati: ' of the parent11 rights would best serve I' I

need�iand welfare of the child." "With respect to' :y petition file pursuant to tl;e (a)(l), (6) or I I I I (8), ! the cburt . shall not consider any efforts by the pare t. to remedy th conditions described

therein Jhich are first initiated subsequent to the givin ! of notice oft e filing of the petition." 23 , I , ' I

P!a.c.s.Al: § 251 l(b). ! I

!I "Parental rights may not be preserved by waitii � for some suitable financial : 1· I I morr 4'cumst7ce or convenient time fur the performance o ;parental duti1 and responsibilities." In

re: D.J.S1, 737 A.2d 283, 287 (Pa. Super. 1999). The ong-standing 11w of the Commonwealth

i: I that F thJ. inability of a parent to perform parental duti s makes him o , he� just as parentally unfit.

a$ a paretiit who refuses to perform these duties. In re: B.L. W., 843 A. d 380, 388 (Pa. Super. . ,· ' 2�04) R)ega:rdless of inability or refusal, once a parent, 1emonstrates a failure to fulfill his or her I . ): !: I

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. I' ii \\I . Ii parentalj�uties, the child's right to fulfillment of his o her potential i a permanent, healthy, safe 'I . environment with proper parenting supersedes the par nt's basic cons itutional right to custody ;l and rear�hg of the child. Id. In terminating the rights fa parent, the ourt must give "primary ., considerrition to the developmental, physical, and emotfonal needs welfare of the child." 23 ,I . an] Pa.c.s.1. §251 I(b). •I" rhcarceration is not in and of itself detenninati ¢ of parental i1capacity, but it "can be !I cletermi�rtive of the question of whether a parent is in apable of providing 'essential parental ,1 care, control or subsistence.": In Re: Adoption o/S.P. 47 A.3d. 817, 31 (Pa. 2012); In re R.I.S. l· •II

l A.I.s.• if 6 A.3d. 567, 576 (Pa. 2011), Justice Baer co curring. "The ength of the remaining I ' I

confinement can be considered as highly relevant tow 'ether 'the con itions and causes of the III I . ·I I incapaciW, abuse, neglect or refusal cannot or will not be remedied b the parent,' sufficient to I •

provide tounds for termination pursuant to 23 Pa.C.S I§ 251 l(a)(2)." In Re: Adoption ofS.P., 47 :I : .A.3d. at � 31. If a parent will remain incarcerated for t b long of a per' od of time to permit 11 unificati1n with a child "in a timely basis in order to p evide the child with the permanent home I! t<p whichlhe or she is entitled, then the length of senten e, standing alo e, should and does meet . 11 t�e legal lfriteda for involuntary termination of the inc cerated parents parental rights." In re

Ju.s. & t.l.S., at 576. "[T]he child's need for consist<¥t parental care and stability cannot be put ft <loin, aside or on hold simply because the parent is �hat [he] is su posed to do in prison."

In re E.A(f.• 944 A.2d 79, 84 (Pa.Super.2008). "It is i �umbent upon he judicial system to be ll I

c�ild·fo+ed." Iii re R.J.S., 36 A.2d at 579. ; ,I ' · T�is family came to the attention of BCCYS in 2011 due to M ther's testing positive for ff . ' illegal sujstances upon giving birth to F.S.H., who als �ested positive for methadone.' The I II . r II I

afency o�ened t�e ca���or investigation and in-home �rvices on Mar h 5, 2012. In 2015, 3 Mother t�tificd that her positive test was for prescribed methad ·rte . . ' I I ! I iI 3 I I

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. ,I r i j i IiiI I further and on-going reports of substance abuse and m ntal health co ems caused BCCYS to ,I 'I

re-open �he ·, case for investigation. In-home services dre provided to address parenting issues, s�pervis��n of the children, and substance abuse. Bot parents demon trated a lack of progress !I I

and cons�stency with the services and alleviating the a ency's concer1s. iJ I F]�S.H. wa.s adjudicated dependent in Decembe �015, but her mained in the physical !j'! ' i I

cistody this parents. \ (1 2016, S.N.H. · as born prema rely and addicted to

opiates, fodeine, and morphine, which required her to emain . 1 hospital\zed until March 24, 2016. fI !i I As the result of a drug raid, Father was incarcerated 011February 10,·2r:l 6 on charges of : 1: I t>lanufac�e and possession of drugs. On February 11 fO 17, custody of F. S .H. was transferred to BCC'fi�. On March 7, 2016, Mother was incarceratl �· Upon her r�lease from the hospital,

�as adjudicated dependent and custody was a I 11 t

S.N.H. arded to BCCiS. 'I ', I I iother and Father were ordered to participate· : services, incl ding parenting education,

mental h�alth evaluation and any recommended treatn nt, drug and alrohol evaluation and any . ji I I ,'

recommended treatment, random urinalysis, and case ork. The paren s were also ordered to ;! t - 11 e�tablishj�nd maintain a stable environment. , l!I l �other and Father both remained incarcerated hroughout the hildren's placement. ·1 ' 1jhey co�pleted a few educational programs in jail. As bf the time of earing, Father was ·: t

participating in a Therapeutic Community program an I ii !AA and NA i prison. Mother was ergaged t� a four-month-long drug and alcohol outpati : t program meets weekly as well as other ed��ational programs. She also testified to meeti 1g monthly wi tht a psychiatrist. l i) I ' ·. ' ' '

!V{!ith the exception of a May 3, 2017 special cl�sure visit beinl granted to Mother by the I ji .111 dourt, M�ther and Father have not seen the Children si ce prior to the ir respective 'I i I

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I I ' I . iOcarcerl\ions.4 Father has had some telephonic conti� with F.S.H. iomjail, but active re- directio�Jwas required due to Father's inappropriate llguage and c:on ersation topics! Mother � or� has also ad telephonic contact, but she is limited to monthly call rom her current detention i I . at boot c' p. Mother testified that she also sent emai messages to her father to pass to F.S.H. I I * . other and Father have maintained contact wi BCCYS via ters and several casework I

service . s�ssions at the jail. No letters addressed to the �hildren were reduced. At no time have !I lf they exp!�ined how they intend to establish and maint �n long-term el ironments that will be

safe for �1emselves or the Children. i :! . ' ' Jother has a criminal history dating back to 2 05, mostly for irug-related offenses, some . ljIL '; retail thefts, traffic citations, and probation violation. he has been st ggling with drug abuse - I! = she I first mar�uana then cocaine- and mental health issu�J was bout 14 years of age

( 1997). th• started using heroin when she was 18. SI � has been in a umber of inpatient r�habiliti�ion facilities, but she has failed to maintain obriety. I�she ·I . remains compliant, Mother is due to be r leased from bo t camp on November 15,

2Pl 7. HJr current plan upon release is to reside with 1 tjr father in Ne Jersey. She will rely on I . . II . h�m fina1tcially until she can find employment. is in agreement with ' ii i :1 . having Mother reside with him and has maintained co tact with the C ildren, he has not :I ,'II .u indicatedto BCCYS that he is a long-term resource fo : II Mother has a third child who was 14 at the tim pf the hearing. During this child's I I

�oncerns iJfancy, over Mother's care of this child and 'er substance a use caused the · 'I i iJvolveJbnt of the Warren County, New Jersey Child kotective Services. This child has been : 'I j .i 'i1 i . 4 closJ�e c3Jsent the visit :�is scheduled in light of Mother's signing a to the ChildrEn's adoption on April 26, 2017. Mother testified that she signed the consent because she d\� not want to drag the Children through the process anj,;more, they were comfortable in foster care, it was goijg to be difficult to get her life back on track, and �e foster parents agreed to post-adoption contact. Mother revoke ; the consent on ay 16, 2017 because she lost her trust in foster family. ithe : I . s I

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I II ; I . I iy in the cJ tody of his paternal grandmother in New Jer since he wa about one year old. ! I

t Mother stifled that her last contact with him was by �tter approximately two months prior to iniarceration. the heaj g and that the last time she talked to him wa �rior to her irher ofinses : has a criminal history of drug-related dating to 2006. His first t was at age 25. His drug history is ihcarcertion simili!to Mother's. · e started using marijuana btk i. hen hej as 15 years old (1982) and heroin when he �as 28 (1995). e had periods of sobriety, I I I: the long i st being up to four years, but the longest perir� after conceiJ.:ng F .S .H. was perhaps . I , 1 • tro yea1i . Relapse and return to COUli was a regular rblem for Fatlrr. pf I � I{ ther has two additional children, a daughter, � 1, and a son, 8. He claimed to have

I some �o tact with them prior to his incarceration. He fStified that he "made a mistake" with his

qlder son, who after seeing Father in and out of jail ha experienced h sown incarcerations. ! Father d es not want the same thing to happen with F .. H. By the sa e token he acknowledged rily. J tat his istakes have caused his separation from the· Father lelieves he can teach the

c;hildr a lot, including what is right and wrong, oncJ �e gets himselpogether. j

i � ther is serving a four to twelve year sentenc, for which he iJ RRRI eligible. He

testifled . I at he had another year left, hopefully Augu. !2018, but evJ with RRlU eligibility his I !Uinim) release date would not be until early 2019. ! 'f :e anticipates bring paroled to a halfway

IJ,ouse w: ha slow transition into the community, Fat � hopes that Mrher will successfully

complete boot camp and move on from there to obtain,.•qustody of the fhildren so he might too I I !: • follow a imilar path to reunification. Much of Fatherjs plan is "hope lly." , I I . . ,1

, 'iJ S.H. has been fortunate to escape long.. term 1rects of in uter. drug 'exposure. 1l1needs Contrari� , S.N.H. is a developmentally delayed speci· child, b t she is doing well with I I I • • . I services.11 The foster parents have actively and ably me �he Children's needs. The Children are I I I I I· I lI 6

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thriving] n. their foster home, and they are bonded to t eir foster paref. Any bond that the

Childre� might have had to Mother and Father has de e�orated to the oint that severance would : I \ not detri1 entally affect the Children. Fortunately for le Children, thp foster parents are long- · I I J. term res urces who can continue to meet their develo mental, physic 1, and emotional needs. I I

R S.H. remembers his parents, but Father doeslot know how e boy feels about the . i . situation' caused by his parents' incarceration. Mother believes F.S.H wants to be with her I I I

again. � .H. was an infant when her parents were re : oved from he� and would have no I ! I rn emory\pf . them. The Children's guardian ad litem b t/eves termination of parental rights is best I ,I fpr both lhildren.

�ave ! notl : ith the exception of the closure visit between Mother and F een the Children since February 2016. In th�f lH., Mother and Father

time the onlylreason the Children (f.S.H. ; ore so than S.N.H.) even know that Mother Tid Father contil°e to exist has been the

occasion: 1 telephone call. The Children have receive: po letters, card , gifts, nor any other I : parental I upport ··· financial, emotional, or otherwise. ithout the fos er parents, the Children . !

h1 e been completely without support or any o 1

tould .er kind of par ntal control and I I I , spbsist°') e. Given their ex tensive history of drug abu � and incarcer,tion, and given that

�other � d Father will each be incarcerated for at leas lseveral more onths with a slow I I I

transitio ' to the community thereafter, the Court has n I expectation t t Father or Mother can or

Jm' rem !ciy their failures as parents and be 100% avai �ble for the Ch ldren in a reasonable : I '

p:eriod ottime. The needs and welfare of the Children are paramount nd cannot be held hostage • I I l . I .1 · ·I · for an u pecified and uncertain time that is more con enient for Mot er and Father to hopefully I I i i I one day 'e able to perform parental duties. l I

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I I lf;1,e Children are doing very well in their fostel �ome. They a e bonded with their foster parents t; whom they look for love, safety, and suppo � Freeing the hildren for adoption will ! I

provide t em with the opportunity for permanency an !stability and ill be in their best interests. I I

R r the foregoing reasons, the Court entered it Decrees termilating parental rights of fy!other d Father to the Children.

BYTJOURT:

�t:ts� ZL-,- i •

for Father: i , I tr I ! S;"'.t Distributio : Clerk of the Orphans' Court; BCCYS Solicitor; Gu rdian Ad Lltem;, � . D!eller, U , ttomey for-Jvfoth.�.r;·Attorney ...