Opinion
No. 899 EDA 2007.
Filed: November 29, 2007.
Appeal from the Order Entered March 22, 2007, In the Court of Common Pleas of Chester County Orphans' Court at No. 06-0072.
BEFORE: KLEIN, BENDER and KELLY, JJ.
¶ 1 N.P. (Mother), the natural mother of C.L.G. who was born April 14, 2005, appeals from the order entered on March 22, 2007, that granted the petition filed by the Chester County Department of Children, Youth and Families (Agency) seeking the involuntary termination of Mother's parental rights to C.L.G. We reverse.
The parental rights of M.D.G., the natural father of C.L.G., were also involuntarily terminated by the March 22, 2007 order; however, M.D.G. has not appealed to this Court from that decision.
¶ 2 On August 11, 2006, the Agency filed the petition that began this litigation. Hearings were held on January 3, 2007, and January 30, 2007. At the January 3rd hearing, Valerie Capobianco, the Agency's case worker, and Mother both testified. Although Mother did not attend the January 30th hearing, at which time Bruce E. Mapes, Ph.D., testified, she was represented by counsel at both hearings. In conjunction with the March 22, 2006 order terminating Mother's parental rights, the court issued an adjudication, which it relied upon in response to Mother's issues raised in her Statement of Matters Complained of on Appeal. In the adjudication, the court provided the following pertinent findings of fact:
The trial court sought the opinion of Dr. Mapes, who gave his opinion after he reviewed the Agency's case file. Not having interviewed any of the principals, neither Mother, child nor foster parents, his opinion was given essentially as a hypothetical.
2. Father and Mother are not now nor have they ever been married to each other.
3. C.L.G. tested positive for cocaine at the time of her birth.
4. The child was placed in the protective physical and legal custody of Chester County Department of Children, Youth and Families (hereinafter, "C.Y.F.") by Emergency Order of April 18, 2005.
5. On April 20, 2005 the child was adjudicated Dependant and placed in foster care. Lack of proper parental care, Mother's drug issues and lack of a home and all necessary baby items for the child formed the basis for the Dependency action.
6. The child remained in the care of the same foster family since April 18, 2005. She has never resided with either natural parent.
. . . .
12. On October 3, 2004, while pregnant with the child herein, Mother was arrested for crimes involving drugs and child endangerment.
13. The child endangerment charge was a result of Mother's ten (10) month old son being in her vehicle while a drug transaction was taking place.
14. Between the time of her arrest and scheduled trial, Mother gave birth to C.L.G.
15. The Juvenile Dependency Order of May 10, 2005, and those following, granted Mother weekly-supervised visits with the child.
16. Mother participated in drug and alcohol counseling, obtained housing and employment, attended all visitations with the child, and participated in Life Skills training as required by the Orders of the Dependency Court.
17. Prior to her incarceration, Mother was expected to be reunited with the child.
18. On March 29, 2006, Mother entered an open plea of guilt to Conspiracy to Distribute Cocaine and Endangering the Welfare of a Child.
19. Mother was sentenced to two (2) to five (5) years for those offenses, effective March 29, 2006. Mother is presently incarcerated at SCI-Cambridge Springs, in Crawford County, Pennsylvania.
20. Mother has not seen the child since March 2006.
21. Mother will be incarcerated or in a halfway house until at least March 2008. Mother may be eligible for a pre-release program to a halfway house.
22. The only state-run halfway houses for women are in Philadelphia and Pittsburgh. Combined, those facilities can house 48 women at any one time.
23. At the time Mother has served her minimum sentence of two (2) years, the child will be two (2) years and eleven (11) months old.
24. A Court ordered inquiry was made to Bruce E. Mapes, Ph.D., in order to have him offer the Court his opinion concerning the impact upon the child if parental rights are terminated versus a long term reunification plan to take effect upon Mothers [sic] release from prison.
25. Dr. Mapes submitted a report to the Court dated January 17, 2007.
26. Dr. Mapes testified at the January 30, 2007 hearing that that [sic] if a bond existed between the Mother and child before Mother's imprisonment, it was not well developed or strong.
27. Dr. Mapes also testified that Mother's lack of contact with the child since birth has resulted in her being a stranger to the child.
28. Dr. Mapes testified that a video taped recording of Mother reading a story to the child was ignored by the child when played for her.
29. While Mother is to be commended for her effort to have contact with the child from afar, the effort was meaningless to a nearly two (2) year old child who does not have the capacity to comprehend the video was of her own mother.
30. Dr. Mapes stated that even if Mother is released to a halfway house, Mother will have significant adjustments of her own to make and goals to achieve which may interfere with parenting and the development of a bond with the child.
31. The Guardian Ad Litem recommends that the parental rights of both Mother and Father to the child be terminated.
32. The child is adoptable.
Trial Court's Adjudication (T.C.A.), 3/22/07, at 2-5 (citations to the record omitted).
¶ 3 Although the Agency cited various subsections listed in 23 Pa.C.S. § 2511(a) in its petition as the basis for the termination of Mother's parental rights, the court concluded that the Agency had met its burden of establishing the grounds for termination under subsection 2511(a)(8), which states:
(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 the parental rights would best serve the needs and welfare of the child.
Additionally, 23 Pa.C.S. § 2511(b) provides:
( 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.
¶ 4 The trial court recognized that Father's situation was more straightforward, and indicated that it had more difficulty reaching its conclusion to terminate Mother's rights. The court related the factual basis of Mother's arrest, indicating that Mother was three months pregnant with C.L.G. when she allowed a drug dealer to conduct drug transactions from Mother's car in the presence of her son. Six months after her arrest, C.L.G. was born with cocaine in her system. Due to Mother's drug problem and no stable home, C.L.G. was placed in foster care when she was four days old. The court then stated:
Mother's conduct between April 18, 2005 and March 29, 2006 is commendable. Mother complied with every requirement directed by the Dependency Court. She established an independent home, obtained employment, attended Drug and Alcohol programs and attended every scheduled visit with the child. Mother was clearly working toward the goal of reunification with the child. Testimony from the C.Y.F. caseworker indicated that had Mother not been incarcerated in March 2006, she was on track for reunification with the child.
T.C.A. at 9. The court then explained that although Mother expected a sentence of probation, she received a two to five year sentence and as a result has not seen C.L.G. since March of 2006. Next, the court stated:
We recognize that the application of Section (a)(8) may seem harsh when the parent has begun to make progress toward resolving the problems that had led to the removal of her children. By allowing for termination when the conditions that led to removal of the child continue to exist after a year, the statute implicitly recognizes that a child's life cannot be held in abeyance while the parent is unable to perform the actions necessary to assume parenting responsibilities. This Court cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future. Indeed, we work under statutory and case law that contemplates only a short period of time, to wit eighteen (18) months, in which to complete the process of either reunification or adoption for a child who has been placed in foster care. In re Adoption of R.J.S., 901 A.2d 502 (127 Pa. Super. 2006) (citations omitted).
The child in this case has been removed from Mother's care since birth. She is nearly two (2) years old at this time. She has been in one foster care home with the same primary care givers her entire life. Her need for a permanent and stable home must now take precedence over Mother's showing of progress that took place over a year ago and the fact that Mother will be incarcerated for nearly another year.
T.C.A. at 10-11.
¶ 5 Lastly, in regard to the final requirement stated in subsection 2511(a)(8), that focuses on the needs and welfare of the child, the court discussed Dr. Mapes' report and testimony, wherein the doctor indicated that the limited contact between Mother and C.L.G. since C.L.G.'s birth, and C.L.G.'s age did not allow for much of a bond between them. In relating Dr. Mapes' testimony, the court stated that "[b]irth Mother is essentially a stranger to the child at this time. C.L.G. has no firsthand recollection of time spent, no daily repetitive contacts, which inspire trust or feelings of safety to associate with Mother." T.C.A. at 12. The court concluded that "[b]ased upon the testimony presented, there is no indication that an emotional bond exists to the extent that the termination of parental rights of Mother would be emotionally detrimental to C.L.G." Id. Accordingly, the order terminating Mother's parental rights was entered.
¶ 6 Mother now appeals to this Court, raising the following two issues for our review:
I. Is Termination of Parental Rights appropriate where the conditions which led to the removal or placement of a child no longer exist, but other factors prevent the child from being reunited with the parent?
II. May parental rights be terminated when the sole reason the child is in placement and is apart from the parent is the parent's incarceration?
Mother's brief at 4.
¶ 7 When considering appeals such as the one presently before us, we are guided by the following:
When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give to a jury verdict.
In re: Involuntary Termination of C.W.S.M. and K.A.L.M., 839 A.2d 410, 414 (Pa.Super. 2003). We are also aware that:
In a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by "clear and convincing" evidence the existence of grounds for doing so. The standard of "clear and convincing" evidence is defined as testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.
In re A.L.D., 797 A.2d 326, 336 (Pa.Super. 2002) (quoting In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994)). Moreover, an abuse of discretion occurs "when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Id. Generally,
Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. In re D.W., 856 A.2d 1231, 1234 (Pa.Super. 2004). 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). In re B.L.L., 787 A.2d 1007, 1013-14 (Pa.Super. 2001). Only after determining that the parent's conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interests of the child. C.M.S., supra, 884 A.2d at 1286-87; A.C.H., supra, 803 A.2d at 229; B.L.L., supra. Although a needs and welfare analysis is mandated by the statute, it is distinct from and not relevant to a determination of whether the parent's conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child.
In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa.Super. 2006). However, with regard to 23 Pa.C.S. § 2511(a)(8) specifically, this Court discussed the elements that those seeking to involuntarily terminate parental rights must prove. They are: "(1) that the child has been removed from the care of the parent for at least twelve (12) months; (2) that the conditions which had led to the removal or placement of the child still exist; and (3) that termination of parental rights would best serve the needs and welfare of the child." Id. at 511.
¶ 8 Mother first argues that the testimony at the termination hearing and at her sentencing hearing support her position that her parental rights should not be terminated in that all issues that led to C.L.G.'s placement no longer exist. Mother relies on the testimony at the termination hearing of Valerie Capobianco, the Agency's case worker. Mother also relies on the testimony of Monica Warmijak, the Agency's reunification worker, and the testimony of Barbara Thompson, a therapist with NHS Human Services of Chester County, both of whom testified at Mother's sentencing hearing.
The transcript from Mother's sentencing hearing was submitted into evidence at the termination hearing by the Agency. It is denoted as the Agency's Exhibit 6.
¶ 9 At the termination hearing, Ms. Capobianco related that Mother's initial issues concerned drug and alcohol abuse, a lack of appropriate, stable housing, and the need for full time employment. She then testified that these issues were resolved by Mother either on her own or in connection with aid from the Agency. In response to questions by the court and the Agency's attorney, Ms. Capobianco stated:
THE WITNESS: She worked from July of `05 to March of `06, she worked for an insurance company, and then she also had a part-time job from November of `05 to March of `06 working at Voice Effects in Plymouth Meeting. I am not sure what kind of business that is, but for a little while she had two jobs.
THE COURT: Okay.
THE WITNESS: So she obtained housing, she obtained employment, she was consistent with drug and alcohol [treatment], she actually was clean for over a year, she was assigned to a reunification worker and they were working towards reunification.
BY MR. PERSICK [Agency's attorney]:
Q. Okay. Now, when you say a reunification worker, what is the concept of reunification?
A. That is a worker that will begin to work with a family approximately two months before it's expected that the child would return home — sometimes it will take a little longer — and they are a worker who will meet a little bit more frequently than a foster care worker. They will usually be [sic] every week, just to make sure that if there were any loose ends before the child returns home, that everything is taken care of, that child care is taken care of, that the parent is able to manage their household. If there were issues with transportation, everything gets worked out prior to the child going home.
Q. So, then, a reunification worker indicates that there were all positives.
A. Yes.
Q. And were you, in fact, or was your agency in fact working to return this child home?
A. Yes.
Q. Okay. And something obviously happened?
A. Yes, it did.
Q. What happened?
A. [Mother] was sentenced for the charges that she had received in April of — I'm sorry, in October of 2004, and the day of her sentencing was the day that she became incarcerated.
N.T., 1/3/07, at 21-23.
¶ 10 Ms. Capobianco further testified in response to the Agency's attorney's questions that although Mother had not had overnight visitation with C.L.G., she was beginning unsupervised visits and that progress toward overnights was expected "pretty quickly," but was interrupted when Mother was incarcerated. It is apparent that Ms. Capobianco stated the Agency's position when she said "[w]hile mother did everything she needed to do, she is incarcerated for two to five years. When she gets out, she's basically going to have to reestablish a relationship with [C.L.G.], and who knows how long that would take and if it would work. She would have to restyle her housing, find employment, do everything she had to do before, drug and alcohol and life skills." Id. at 27. Essentially, it appears that in light of Mother's incarceration the Agency's plans changed from reunifying Mother with C.L.G. to pursuing termination of Mother's parental rights.
¶ 11 With regard to Ms. Warmijak, who testified at Mother's sentencing hearing on March 29, 2006, she indicated that she began working with Mother in mid-November of 2005. As part of Ms. Warmijak's testimony, she read into the record a letter that she had written on Mother's behalf.
[Mother] has been extremely cooperative and has complied with every request asked of her. She has maintained employment, as well as stable housing for her and her son. Visits with her daughter have increased to unsupervised and will continue dependent upon the outcome of her sentencing. However, the Court should know that, at this time, Chester County Department of Children, Youth and Families has been in an indeterminate state and is reluctant to return custody of her daughter due to the circumstances surrounding [Mother's] legal situation and the uncertainty of the outcome of her sentencing. Under normal circumstances, [Mother's] child would have been returned to her physical custody, since she has proved to this agency that she is drug free and has adequately provided her children with the necessary care and supervision to assure their safety and well-being. [Mother] has been successful in meeting all of her goals.
N.T. Sentencing Hearing, 3/29/06, at 29.
¶ 12 Ms. Thompson's testimony at Mother's sentencing hearing indicated that Mother had cooperated and complied with all Agency requirements, had undergone weekly therapy, drug screenings, and attended two types of group therapy in addition to her individual therapy. Ms. Thompson acknowledged that Mother had been drug and alcohol free since beginning treatment in May of 2005 without any relapses, has continued to make steady progress, has continued treatment and was working full-time. Ms. Thompson further reported that mainly based on Mother's interaction with her son, she believes Mother to be an excellent parent.
¶ 13 The essential core of Mother's argument is that based upon the evidence presented by the Agency, the conditions which led to C.L.G.'s removal from Mother's care no longer exist and that incarceration alone does not provide a basis for termination of parental rights. The Agency's own witnesses all agreed that Mother had successfully completed everything required of her to the extent that reunification was on the horizon. Moreover, Mother has continued to do all she can while incarcerated to be available as soon as possible for reunification. However, now the Agency and the court equate Mother's incarceration with the conditions that led to C.L.G.'s removal in the first instance. We disagree with this assessment, noting particularly that to meet the burden of proof under subsection (8), the Agency must prove all three elements listed in that subsection. See R.J.S. at 511. Obviously, more than twelve months has elapsed since C.L.G. was removed from Mother's care. And pursuant to the court's reliance on Dr. Mapes' testimony, it is apparent that evidence exists in the record that can support the third element regarding C.L.G.'s needs and welfare. However, the conditions that existed at the time of C.L.G.'s removal were remedied and are not the same as the only condition that presently exists, i.e., Mother's incarceration.
Where a parent is incarcerated, the fact of incarceration does not, in itself, provide grounds for the termination of parental rights. However, a parent's responsibilities are not tolled during incarceration. The focus is on whether the parent utilized resources available while in prison to maintain a relationship with his or her child. An incarcerated parent is expected to utilize all available resources to foster a continuing close relationship with his or her children.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
¶ 14 Notably, our Court in R.J.S. recognized that "termination under Section 2511(a)(8) does not require an evaluation of Mother's willingness or ability to remedy the conditions that led to placement of her children." R.J.S., 901 A.2d at 511. Therefore, it appears to not be pertinent to our review, whether Mother was willing to remedy the conditions that existed at the time of C.L.G.'s placement. Rather, the question is whether under subsection (a)(8) the conditions at the time of placement still exist. It is evident that they do not. Consequently, we conclude that the court erred as a matter of law when it held that the Agency had met its burden of proof as to the second element required under subsection (a)(8). Accordingly, the court's order terminating Mother's parental rights is reversed.
We are also aware that in 1998 the Juvenile Act, 42 Pa.C.S. §§ 6301-6345, was amended to comply with federal law, namely the Adoption and Safe Families Act of 1997, Pub.L. No. 105-89, 11 Stat. 2115 (1997), "to include the dual purposes of reunification and adoption rather than merely reunification: `This chapter shall be interpreted and construed to effectuate the following purposes: (1) To preserve the unity of the family whenever possible or to provide another alternative permanent family when the unity of the family cannot be maintained.. . .' 42 Pa.C.S. § 6301(b)(1) (emphasis added to indicate amended language)." In re Adoption of S.E.G., 901 A.2d 1017, 1019 (Pa. 2006). Under the circumstances here, however, we conclude that the unity of the family is of paramount importance in light of Mother's extraordinary efforts.
¶ 15 Order reversed.
¶ 16 Judge Kelly files a dissenting opinion.
¶ 1 Because I believe that 23 Pa.C.S.A. § 2511(a)(8) requires an affirmance of the trial court's disposition of this case, I strongly dissent.
¶ 2 As the Majority correctly points out, section 2511(a)(8), the basis of the trial court's determination, has delineated three criteria which must be met before parental rights may be terminated: (1) a lapse of more than 12 months since the child's removal; (2) the continued existence of the conditions which led to the child's removal; and (3) termination as the disposition which would best serve the child's needs and welfare. The Majority reasons that the second of these preconditions has not been met because the circumstances on which the child's removal was predicated have been corrected; thus Appellant's parental rights may not be terminated. The Majority further asserts that "the conditions that existed at the time of C.L.G.'s removal were remedied and are not the same as the only condition that presently exists, i.e., [Appellant's] incarceration." (Majority Op. at 13).
¶ 3 However, such a reading disregards the fact that the remedies for at least some of these conditions, lack of proper housing or employment, for example, which might have been obtained prior to Appellant's incarceration do so no longer, nor will they necessarily be fully reinstituted until, at earliest, March of 2008, even assuming she is released at that time. There are, in addition, no guarantees that even then Appellant will be able to recreate her prior achievements. She is thus not only unable to provide C.L.G. with immediate parental care, but her ability to do so in future is compromised by whatever adjustments may be forced on her after release. As the trial court points out, the progress Appellant relied on had occurred over a year previous to the hearing, and she was facing incarceration for nearly another year. As a result, to say with assurance at this point that the conditions which led to the child's removal have been definitively remedied is at best premature.
The Chester County Court of Common Pleas Form on which the Permanency Judicial Review Hearing Determinations and Order are recorded notes that the projected date by which the goal of reunification could be met is "uncertain."
¶ 4 Further, the Majority concedes that Appellant's assertions of her (continued) willingness to remedy the conditions leading to removal are without weight insofar as the statute is concerned. (Majority Opinion at 13); see Adoption of R.J.S., 901 A.2d 502, 511 (Pa.Super. 2006). As the trial court notes,
By allowing for termination when the conditions that led to the removal of the child continue to exist after a year, the statute implicitly recognizes that a child's life cannot be held in abeyance while the parent is unable to perform the actions necessary to assume parenting responsibilities. This Court cannot and will not subordinate indefinitely a child's need for permanence and stability to the parent's claims of progress and hope for the future.
(Trial Ct. Op. at 10) (quoting R.J.S. at 502). As this explanation illustrates, the Majority's assertion that "the trial court equates [Appellant's] incarceration with the condition which led to C.L.G.'s removal" is inaccurate. (Majority Opinion at 12). Like the trial court, I do not believe the return of a child is intended as a reward for good intentions however well implemented in the past. As is made clear by Appellant's own sentence of imprisonment rather than the probation she anticipated, events frequently trump expectations.
¶ 5 Moreover, the passage quoted from In re B., N.M., 856 A.2d 847 (Pa.Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005), in support of the Majority's reasoning is inapt. The Court in that case emphasized that in determining the significance of a parent's incarceration in termination proceedings, "The focus is on whether the parent utilized resources available while in prison to maintain a relationship with his or her child." Id. at 855 (emphasis added). The quote continues: "An incarcerated parent is expected to utilize all available resources to foster a continuing close relationship with his or her children." Id. With the best will in the world Appellant cannot maintain a relationship which, if it ever existed, no longer does so, an issue never addressed by the Majority, given its position on the prerequisites to termination, and dismissed by Appellant as irrelevant.
¶ 6 C.L.G. was removed from Appellant's care four days after birth, having tested positive for cocaine, and has never lived with Appellant, who has not seen her since March of 2006, when the child was eleven months old. Despite the visitations Appellant attended, the card or gifts she sent, the child does not know her. And, according to the psychologist whose testimony the trial court specifically ordered on this point, the child was too young to have done so. Even reintroduction would require the existence of certain improbable conditions, namely daily contact during a long period after which overnight visits might be attempted. Even then, the likelihood of severe detriment to the child is strong. The expert expressed "serious reservations" as to whether the child could weather successfully a transition from the only parents she has ever known to a placement with Appellant, a stranger whose voice and face the C.L.G. does not recognize. (N.T., 1/30/07, at 103). The potential for damage to the child is both, and inherent in the Majority's position.
¶ 7 Finally, the Majority recognizes the dual purposes of reunification and adoption inspiring the 1998 amendments to the Juvenile Act, and concludes that under the circumstances of this case, "the unity of the family is of paramount importance in light of [Appellant's] extraordinary efforts." (Majority Opinion at 14 n. 5). However, once the three requirements of section 2511(a)(8) are met, as I believe they have been, the focus of the termination inquiry shifts to the needs and welfare of the child, an examination of which militates in favor of affirmance.
¶ 8 For the foregoing reasons, I dissent.