Opinion
1119 MDA 2021 1128 MDA 2021 J-A01008-22
04-08-2022
IN RE: ADOPT. OF: R.H.B., A MINOR APPEAL OF: D.J.B., FATHER IN THE INTEREST OF: R.H.B., A MINOR APPEAL OF: D.J.B., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered August 9, 2021 In the Court of Common Pleas of Cumberland County Orphans' Court at No(s): 08-Adopt-2021, CP-21-DP-0000125-2019
Appeal from the Order Entered August 9, 2021 In the Court of Common Pleas of Cumberland County Juvenile Division at No(s): CP-21-DP-0000125-2019
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM
LAZARUS, J.
D.J.B. (Father) appeals from the trial court's decree and order changing the permanency goal to adoption and involuntarily terminating Father's parental rights to his minor daughter, R.H.B. (Child) (born May 2019).Counsel has filed an application and Anders brief seeking to withdraw, claiming that the appeal is wholly frivolous. After careful review, we grant counsel's application and affirm the decree and order based upon the trial court's opinion.
On September 13, 2021, our Court sua sponte consolidated Father's appeals at Nos. 1119 MDA 2021 and 1128 MDA 2021. See Pa.R.A.P. 513; Pa.R.A.P. 2138.
Child was represented by legal counsel, Damian J. DeStefano, Esquire, in the matter. Attorney DeStefano concurs with the trial court's opinion and counsel's Anders brief, also concluding that the appeal is wholly frivolous. See Damian J. DeStefano Letter, 10/25/21. Child was also represented by guardian ad litem (GAL), Tammi B. Blackburn, Esquire.
Anders v. California, 386 U.S. 738 (1967).
We note that by filing two separate notices of appeal with one docket number on each notice, Father has complied with the dictates of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), which held that "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases." See also Pa.R.A.P. 341(a).
In January 2011, Father pled guilty to aggravated indecent assault without consent, statutory sexual assault, and corruption of minors. The charges stemmed from Father's alleged sexual conduct with a 13-year-old girl. As a result of his guilty plea, Father is a registered lifetime Megan's Law offender and was precluded from having contact with children as a condition of his probation/parole.
Father had been charged with two counts of rape and indecent assault, and one count each of terroristic threats, indecent assault without consent, indecent assault of person less than 16 years of age, corruption of minors, sexual assault, and statutory sexual assault.
Id. at § 3122.1.
Id. at § 6301(a)(1)(i).
On December 20, 2011, the legislature replaced Megan's Law III with the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41, effective December 20, 2012, to strengthen registration requirements for sex offenders and to bring Pennsylvania into compliance with the Adam Walsh Child Protection and Safety Act, 42 U.S.C.A. § 16901, et seq.
In May 2019, Child was born to Father and N.H. (Mother), who were never married, but were residing together in Lancaster County. Father and Mother have serious intellectual disabilities and a history of limited parenting abilities. Father has been diagnosed with schizoaffective disorder, post-traumatic stress disorder (PTSD), anxiety disorder, paraphilic disorder, panic attacks, ADHD, depression, antisocial personality disorder, and bipolar disorder. N.T. Termination Hearing, 4/27/21, at 43, 83. Father was medicated for his bipolar and antisocial personality disorders. Child was removed from Mother and Father's care on June 3, 2019, due to Mother's inability to prepare a bottle for child without assistance. Legal and physical custody of Child was transferred to Lancaster County Child and Youth Services (Lancaster County CYS). Child was placed in a kinship caregiver home with paternal great aunt and uncle, a long-term and adoptive resource for Child. Id. at 95.
Mother has filed separate appeals, from the order terminating her parental rights to Child and changing the placement goal, at 1123 MDA 2021 and 1127 MDA 2021.
Father also has another child, Child's older sister, with Mother. Lancaster County Children and Youth Services implemented a safety plan in 2017 as a result of concerns that the child had significant intellectual delays and that Parents were unable to appropriately care for child's basic needs. Paternal grandfather was subsequently awarded custody of that child in 2018. N.T. Termination Hearing, 4/27/21, at 96.
Mother was observed at her pediatrician's office feeding Child water in a bottle. When the office staff provided Mother with formula to feed Child, she was unable to do so without assistance. At that moment, the pediatrician took the infant and called CYS.
On July 29, 2019, Child was adjudicated dependent. Lancaster County CYS filed a petition for a finding of aggravated circumstances against Father due to his Megan's Law conviction and parole conditions. The court found aggravated circumstances existed and suspended Father's visitation with Child.
In August 2019, Mother and Father moved to Camp Hill, Cumberland County, and the case was transferred to Cumberland County Children and Youth Services (CYS), which took custody of Child. In September 2019, Parents participated in a Families & Schools Together (FAST) evaluation, after which it was recommended that Father receive outpatient counseling, participate in a partial hospitalization program, follow through with medication management, and have no unsupervised contact with Child. The following permanency plan was established for Father: demonstrate stability in finances and housing; maintain visitation schedule with Child; improve parenting; and resolve criminal matters.
Father participated in weekly two-hour visits with Child at Alternative Behavior Consultants (ABC) in October and November 2019. An ABC report, dated October 16, 2019, recommended that Father continue in outpatient counseling and a partial program, and that he not be permitted any unsupervised contact with Child until there was documented progress regarding his recovery, including accepting responsibility for his past sexual offenses.
Father only attended one of his two weekly visits in December 2019. Father took part in TIPS parenting program sessions from October 24, 2019 through December 30, 2019.
The TIPS program consists of ten parenting education classes. Upon successful completion of the TIPS program, the participant is able to advance to the more intensive SKILLS program for reunification services. See Adoption of: J.L., 870 MDA 2021, *2 n.4 (Pa. Super. filed Dec. 2021) (unpublished memorandum decision) (citation to record omitted). See also Pa.R.A.P. 126(b)(2) ("Non-precedential decisions [of the Superior Court filed after May 1, 2019] . . . may be cited for their persuasive value."); Pa.R.A.P. 126(b)(1).
In December 2019, Father reportedly violated a parole condition by purchasing a cell phone with internet access. At a January 13, 2020 permanency hearing, Father was reported to be participating in mental health services (a probation requirement), and was also receiving partial treatment and sexual offender treatment. Father had completed TIPS sessions and was moving to SKILLS sessions. See supra at n.13. Father was attending supervised visits with Child at ABC. In March 2020, Father was transitioning to outpatient therapy and participating in Commonwealth Clinic Group (CCG), but was not making progress with his anger management or other treatments. Father's visits remained supervised. On March 20, 2020, ABC instituted COVID protocols and all in-person visits were suspended.
From April through September 2020, Father "fairly" progressed in the CCG program. However, Father was informed that until he passed a polygraph test regarding his sexual history, he would not be able to participate in several Agency services. In September 2020, the Agency concluded that Father's failure to cooperate with his parole conditions, one of which requiring that he see a trauma therapist, was interfering with his progress in parenting services. Father was permitted to have some unsupervised contact with Child in the fall of 2020. N.T. Termination Hearing, 4/27/21, at 102.
In December 2020, Father failed his polygraph; visitation returned to supervised. In February 2021, Father was reportedly no longer treating with a trauma therapist and was considered not to be progressing in his efforts toward reunification.
Father was discharged from probationary supervision on March 12, 2021. Id. at 41, 91.
On April 16, 2021, CYS filed petitions to change the permanency goal to adoption and to involuntarily terminate Mother's and Father's parental rights pursuant to sections 2511(a)(2), (5), (8) & (b) of the Adoption Act. On April 27, 2021, May 4, 2021, and August 4, 2021, the trial court held termination hearings at which S.S. (foster mother), Lee Marriot (ABC parent educator), Benjamin Feirer (therapist at CCG), Sarah Hower (case manager at Merakey Stevens), Andrea Chapman (CYS caseworker), Father, and Mother testified.
CYS filed a letter in lieu of a brief in support of counsel's Anders brief and motion to withdraw, indicating that it believes the appeal is wholly frivolous, and relies on the trial court's opinion. See CYS Letter, 11/9/21.
At the April 27, 2021 hearing, Ms. Chapman testified that Father had made significant progress with his services in the past two months, although she acknowledged that over the life of the case the progress had been slow. N.T. Termination Hearing, 4/27/21, at 121, 130.
At the May 4, 2021, hearing, ABC parent educator, Lee Marriot, testified that while Father continued to progress in his service goals, Marriot had asked the court for additional time to provide SKILLS training to Father in order to determine whether the parties should be reunified. N.T. Termination Hearing, 5/4/21, at 41. Moreover, because Child was unable to express her preferences in the case due to her young age, Attorney DeStefano deferred to the GAL's representations at the May 4, 2021 termination hearing. The GAL expressed that she did not "believe that if [C]hild was placed back into the care of [P]arents . . . it would leave [C]hild in trauma in terms of her emotional and physical safety." Id., at 50-51. Finally, despite the GAL's Blackburn's recommendation that it would be in Child's best interests that Mother's and Father's parental rights be terminated at the conclusion of the May 2021 hearing, the court decided to hold the decision "in abeyance pending further review and report after [ABC] is able to further and fully assess the Parents' abilities." Id., at 55. At the final termination hearing, held in August 2021, evidence was offered by several case managers involved in Father's case demonstrating that Father was making "poor judgment[s], poor decision making . . . in the last couple of months," id., 8/4/21, at 70, and that Child has been waiting too long for Father to accomplish his goals and now "needs an environment that is stable and [someone who] is making good decisions on her behalf and can provide her the home that she deserves [and] can give her the emotional nutrients that she deserves." Id.
Each termination hearing was held virtually, via Zoom. The April and June 2021 hearings were held before the now-retired Honorable Thomas A. Placey. The August 2021 hearing was held before the Honorable Carrie E. Hyams, who authored the instant Pa.R.A.P. 1925(a) opinion, and who "reviewed the audio and video of the previous hearings in their entirety." Trial Court Opinion, 9/24/21, at 2.
Father filed a timely notice of appeal and Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On October 24, 2021, counsel filed an application to withdraw pursuant to Anders and V.E.. In V.E., our Court stated:
In his Rule 1925(b) statement, counsel lists the issue Father intends to raise on appeal, but notes at the bottom of the statement that:
Having concluded that there are no non-frivolous issues to be raised on appeal, counsel intends to file a petition to withdraw, together with an appellant brief, as required by Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). See In re V.E., 611 A.2d 1267 (Pa. Super. 1992) (extending Anders briefing criteria to appeals from decrees of involuntary termination of parental rights involving indigent parents who are represented by court-appointed counsel).Pa.R.A.P. 1925(b) Statement, 8/22/21, at 1. However, we remind counsel that in cases where an attorney seeks to withdraw on appeal, pursuant to Anders, counsel may "file of record and serve on the judge a statement of intent to file an Anders/Santiago brief in lieu of filing a [Rule 1925(b) s]tatement. See Pa.R.A.P. 1925(c)(4); see also Interest of J.T., 983 A.2d 771 (Pa. Super. 2009) (determining that Anders procedure set forth in Rule 1925(c)(4) is proper in termination of parental rights case).
Counsel appointed to represent an indigent parent on a first appeal from a decree involuntarily terminating his or her parental rights, may, after a conscientious and thorough review of the record, petition this court for leave to withdraw representation if
he or she can find no issues of arguable merit on which to base the appeal. Given the less stringent standard of proof required and the quasi-adversarial nature of a termination proceeding[, ] in which a parent is not guaranteed the same procedural and evidentiary rights as a criminal defendant, the court holds that appointed counsel seeking to withdraw [from] representation must submit an Anders brief.In re Adoption of V.E., 611 A.2d at 1275. Moreover, we held that "any motion to withdraw representation, submitted by appointed counsel, must be accompanied by an advocate's brief, and not the amicus curiae brief delineated in [Commonwealth v.]McClendon, [434 A.2d 1185 (Pa. 1981)]. See also In re Adoption of R.I., 312 A.3d 601, 602 (Pa. 1973) ("the logic behind . . . an individual in a criminal case being entitled to representation by counsel at any proceeding that may lead to 'the deprivation of substantial rights'[, ] . . . is equally applicable to a case involving an indigent parent faced with the loss of her child.").
In his Anders brief, counsel raises the following issues for our consideration:
(1) Did the trial court abuse its discretion and commit an error of law when it found, despite a lack of clear and convincing evidence, that the [C]hild's permanent placement goal of reunification was neither appropriate, nor feasible[, ] and ordered a goal change to adoption, thus contravening section 6351(f) of the Juvenile Act, 42 Pa.C.S.[A.] § 6351(f)?
a. Did the trial court judge, a former child welfare caseworker, abuse her discretion and commit an error of law when she failed to disqualify herself in the underlying court proceeding, although she knew that her impartiality might reasonably be questioned?
(2) Did the trial court abuse its discretion and commit an error of law when it found, despite a lack of clear and convincing
evidence, that sufficient grounds existed for a termination of [Father's] parental rights in [C]hild, and when it failed to primarily consider [C]hild's developmental, physical[, ] and emotional needs and welfare, thus contravening sections 2511(a) and 2511(b) of the Adoption Act, 23 Pa.C.S.[A.] §[§] 2511(a) & 2511(b)?
a. Did the trial court judge, a former child welfare caseworker, abuse her discretion and commit an error of law when she failed to disqualify herself in the underlying court proceeding, although she knew that her impartiality might reasonably be questioned?Anders Brief, at 4.
We can affirm the trial court's decision regarding the termination of parental rights with regard to any single subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Before reaching the merits of Father's appeal, we must first address counsel's petition to withdraw. To withdraw under Anders, counsel must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009)) (footnote added). With respect to the third requirement of Anders, that counsel inform the appellant of his or her rights in light of counsel's withdrawal, this Court has held that counsel must "attach to [his or her] petition to withdraw a copy of the letter sent to their client advising him or her of their rights." Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Father has not raised any additional arguments on appeal.
An Anders brief must also comply with the following requirements:
(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.Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Finally, this Court must "conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel." Commonwealth v. Flowers, 1133 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted).
Instantly, Father's counsel filed an application to withdraw, certifying that he reviewed the record and determined that Father's appeal is wholly frivolous. Counsel also filed a brief, which includes a summary of the history and facts of the case, potential issues that could be raised by Father, and counsel's assessment of why those issues are wholly frivolous, with citations to relevant legal authority. Counsel has also provided Father with a copy of the brief and application, together with a letter advising him of his right to retain new counsel or raise additional issues pro se. Accordingly, we find that counsel has substantially complied with the requirements of Anders, Santiago, and V.E., and, thus, may review the issues raised by counsel and also conduct our independent review of the record.
On appeal, change of goal decisions are subject to an abuse of discretion standard of review. In re N.C. , 909 A.2d 818, 822 (Pa. Super. 2006).
The Juvenile Act controls the disposition of dependent children. In re R.P., 957 A.2d 1205, 1217 (Pa. Super. 2008). See generally 23 Pa.C.S.A. § 6351(f) (listing matters to be determined at permanency hearings); id. at § (f.1) (providing what additional determination shall be made based on subsection (f) evidence presented at hearings).
(f.2) Evidence.-Evidence of conduct by the parent that places the health, safety or welfare of the child at risk, including evidence of the use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk, shall be presented to the court by the county agency or any other party at any disposition or permanency hearing whether or not the conduct was the basis for the determination of dependency.42 Pa.C.S.A. §§ 6351(f), (f.1), (f.2).
In order to conclude that the trial court abused its discretion [in a goal change case], we must determine that the court's judgment was "manifestly unreasonable," that the court did not apply the law, or that the court's action was "a result of partiality, prejudice, bias[, ] or ill will," as shown by the record. We are bound by the trial court's findings of fact that have support in the record. The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witness[es] and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the trial court's findings are supported by
competent evidence of record, we will affirm, "even if the record could also support an opposite result."Id. at 822-23 (internal citations omitted).
Moreover, 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." In re B.L.W., supra at 383 (internal citations omitted). On review, "we employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence." Id.
Parental rights may be involuntarily terminated where any one subsection of [s]ection 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions. 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 [s]ection 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 [s]ection 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).
Instantly, the court heard three days of extensive testimony, consisting largely of witnesses on behalf of CYS, supporting a goal change and termination of Father's parental rights. Taken in toto, the evidence proves that Father remains unable to parent Child. See N.T. Termination Hearing, 8/4/21, at 10-13. While Father made efforts to comply with his permanency and service goals, he has not been consistent in those efforts and, after Child's 24-month placement, still cannot care for Child or provide Child with a stable and permanent home environment. See In re N.C. , supra at 823 ("When the child welfare agency has made reasonable efforts to return a [dependent] child to his or her biological parent, but those efforts have failed, then the agency must redirect its efforts towards placing the child in an adoptive home."); 42 Pa.C.S.A. § 6351(g) ("Court order.-On the basis of the determination made under subsection (f.1), the court shall order the continuation, modification or termination of placement or other disposition which is best suited to the safety, protection and physical, mental and moral welfare of the child."). See also 23 Pa.C.S.A. § 2511(a)(5) (parental rights may be terminated where clear and convincing evidence proves "child has been removed from the care of the 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").
Moreover, Child's kinship/foster family, who are an adoptive resource, provide Child with the emotional, physical, and social support she needs and also have developed a strong bond with Child. See In the Interest of N.G., 235 A.3d 1274, 1281 (Pa. Super. 2020) (for section 2511(b) purposes, "trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent") (citation omitted); N.T. Termination Hearing, 4/27/21, at 110 (CYS caseworker recognizing Child's bond with kinship family) id., 5/4/21, at 8 (foster mother testifying how bonded Child is with her and her husband, that they "love [Child] very much," and that "[Child] returns [the love].").
Accordingly, we rely upon the trial court opinion, authored by Judge Hyams, in affirming the decree and order changing Child's permanency goal to adoption and involuntarily terminating Father's parental rights. The trial court's decisions are supported in the record and are not an abuse of discretion. In re N.C. , supra; In re B.L.W., supra. The parties are directed to attach a copy of Judge Hyams' opinion in the event of further proceedings in the matter.
Notably, foster mother testified that she believes that if she were to adopt Child, "it's in [Child's] best interest to always have a relationship with her parents in whatever capacity is safe." N.T. Termination Hearing, 5/4/21, at 7.
Father also contends that Judge Hyams, having previously been a child welfare caseworker, should have recused herself from the instant matter in light of her alleged inherent bias. First, we note that Father has never raised this issue or objected to Judge Hyams presiding over the case prior to this appeal. Thus, we find the issue waived. See Pa.R.A.P. 302(a). Moreover, even if Father had preserved the issue for appeal, we would find it meritless, as Father has produced no evidence showing Judge Hyams was biased or prejudiced against Father. See 207 Pa.Code 15-4 (disqualification and recusal).
Decree and order affirmed.
Application to withdraw granted.
Judgment Entered.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CP-21-DP-125-20I9 08
ADOPTION 2021
IN RE: 1925(a) OPINION
HYAMS J.
23 SEPTEMBER 2021
PROCEDURAL HISTORY
Father, __ appeals the August 9, 2021 Order terminating his parental rights involving daughter, Reweme Henn Belly__ (henceforth R.H.), and entered at 08 ADOPTION 202 l. On June 3, 2019, R.H. was removed from the care of Mother and Father and placed in the custody of Lancaster County Children and Youth Services with kinship caregiving provided by paternal great aunt and uncle. The initial cause for removal was Mother's inability to prepare a bottle for the child without assistance. She was observed giving the child a bottle with only water in it while at the pediatrician's office. Father was on parole due to his criminal convictions resulting in him having to register as a lifetime Megan's Law offender. On July 29, 2019 R.H. was adjudicated to be dependent.
In August 2019, natural Mother and Father established residency in Camp Hill, Pennsylvania, and subsequently the case was transferred to Cumberland County Children and Youth Services (henceforth Agency). On September 9, 2019, Parents participated in a FAST evaluation, and Father was recommended for no unsupervised contact with R.H. A permanency plan was developed for Father on October 14, 2019, and subsequently revised on December 18, 2019; May 20, 2020, October 23, 2020; and April 9, 2021. Father was released from parole on March 12, 2021.
On April 16, 2021, the Agency petitioned for the involuntary termination of Father's parental rights. Hearings on the petition were held on April 27, 2021 (via Zoom before the Honorable Thomas A. Placey who retired in June 2021), May 4, 2021 (via Zoom before the Honorable Thomas A. Placey), and August 4, 2021 (via Zoom before the undersigned, who reviewed the audio and video of the previous hearings in their entirety).
Father's parental rights were terminated on August 9, 2021, and a timely notice of appeal was filed challenging the sufficiency of the evidence, and further avers "[t]he trial court judge, a former child welfare caseworker, failed to disqualify herself in the underlying court proceeding, although she knew that her impartiality might reasonably be questioned." This Opinion is in support of the decision to terminate Father's parental rights.
Concise Statement of Matters Complained of on Appeal, filed August 24, 2021.
FINDINGS OF FACT
The following findings of fact are made upon review of the hearing transcripts, filings of record, and the trial court's notes.
1. The child, R.H., was born on May__2019, and is the offspring of Father and __ (Mother).
2. In June of 2011, Father was charged with Rape, Terroristic Threats, Indecent Assault without Consent, Indecent Assault of Person Less Than 16 Years of Age, Corruption of Minors, Sexual Assault, and Statutory Sexual Assault.
3. Father is a registered lifetime Megan's Law offender, and is specifically precluded from having contact with children as a condition of his parole.
4. At the time of R.H. 's birth, Mother and Father were residing in an apartment that was inappropriate for children.
5. R.H. was removed from the care of Mother and Father on June 3, 2019, and, as a result, she has been continuously residing with a kinship care giver foster home since that date.
6. The cause for removal was Mother's inability to prepare a bottle for the child without assistance while at the pediatrician's office. She was observed giving the child a bottle with only water in it. R.H. was ten (10) days old at the time.
7. Father last lived with for R.H. in June 2019.
8. Father participated in a FAST evaluation on September 9, 2019, and was recommended for outpatient counseling, the partial hospitalization program, and medication management.
9. In October 2019, Father's probation officer reported Father showed progress and should be permitted to have supervised visitation with R.H.
10. Parents participated in weekly two-hour supervised visitations conducted at ABC in October and November 2019, then missed three consecutive scheduled visits in December 2019.
11. Father participated in TIPS sessions with Mother from October 24, 2019, through December 30, 2019.
12. On December 18, 2019, Father's parole officer reported that Father had violated his parole by purchasing a phone with internet access.
13. In early March 2020, Father was participating in Commonwealth Clinic Group (CCG); however, he was not making progress toward his anger management or treatment and therefore visitation remained supervised.
14. On March 20, 2020, ABC instituted COVID-19 protocols where all in-person visitations were suspended.
15. Father, having been previously discharged twice from CCG, was required to pass a polygraph test regarding his sexual history to progress with his sexual offender program.
16. By June 2020, Father was showing progress with his mental health treatment and parole conditions.
17. In August of 2020 it was reported that some progress was being made by Father and Mother regarding cleaning their home; however, a significant number of trash and bags of garbage were hidden in closets, dirty dishes were hidden below the sink, and Father was not following through on his medication management.
18. On September 23, 2020 the Agency learned that Father had stopped attending trauma therapy, a condition of his parole, and that Father and Mother were in financial distress and behind on their bills.
19. On December 18, 2020, Father failed his third polygraph examination, and remained unable to progress in his treatment with CCG or have his restriction of no contact with children lifted.
20. On February 4, 2021, both parents were not progressing in their efforts to reunify with their child and, as a result, it was determined that visitation would need to be held at ABC or the Agency with supervision.
21. Father was released from parole on March 12, 2021.
22. Between the May 4, 2021 hearing and August 4, 2021 hearing, the parents resumed overnight visits with R.H., upon recommendation of ABC.
23. Father was able to provide appropriate care to R.H., however, Mother requires Father's assistance to adequately parent. It is clear that the Mother and Father's relationship stability directly impacts their ability to provide adequate care for R.H.
24. On July 15, 2021, Mother and Father rejected a multiple overnight opportunity with R.H. due to a fight between the parents that caused Mother to leave the home. Father indicated he would not care for R.H. without Mother there to assist and that he had made other plans.
25. Increased time and overnight visits with R.H. has intensified the strain on the parent's relationship, which in turn inhibits their ability to parent.
26. R.H. also began to exhibit regressive behavior such as crying at night when she would stay with the parents overnight.
27. Both parents requested more time to start couple's counseling to attempt to improve their relationship stability.
28. Foster parents, paternal great aunt and uncle, are an adoptive resource and have cared for R.H. since June 3, 2019.
DISCUSSION
Statement of law: Termination of parental rights is controlled by statute. In relevant part, the statute provides as follows:
See 23 Pa.CS. §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: ...
(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 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 ... (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.
Id. At a (2), (5), (8) and (b).
"The focus of involuntary termination proceedings is on the conduct of the parent(s). Our appel ate courts have determined that:
In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001)(internal citation omitted).
[a] parent's basic constitutional right to the custody and rearing of his or her child is converted, upon the parent's failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment. When reasonable efforts to reunite a foster child with his or her biological parents have failed, then the child welfare agency must work toward terminating parental rights and placing the child with adoptive parents.
In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006)(internal citations and quotations omitted).
Application of law to facts: At the outset we note that we are unable to address Father's complaint of error with regards to the undersigned not recusing from this case because he never requested recusal. Father raises this issue for the first time on appeal; he neither preserved, objected, nor motioned for the trial court to recuse. Accordingly, the issue should be deemed waived. Even if Father had properly preserved this issue on appeal, this claimed error is without merit.
The undersigned was employed by Dauphin County Social Services for Children and Youth in various capacities from 1997-2005, including intern, caseworker, supervisor and legal liaison. At no time during this employment did the undersigned have any formal involvement with any of the parties or even participants to this case.
Father loves R.H. but is incapable of caring for his child. Despite receiving parenting services for two years, three SKILLS program authorizations, and numerous revised permanency plans Father was unable to fully demonstrate the ability to provide stable finances, suitable housing, and a stable household environment that would promote the physical and developmental needs necessary to resume independent care of R.H.
R.H. now appears to be in an environment with proper parenting, with people who are caring, dependable, and dedicated to the promotion of her development. Unlike with Father, who is unable to provide R.H. with a stable home environment. R.H. is now in a home that provides a healthy and safe environment.
Father and Mother have been unable to remedy the deficiencies in a reasonable amount of time-child has been dependent for nearly 26 months and the conditions which led to the removal of the child continue to exist.; however, the record is replete with other equally clear and convincing evidence of Father's incapacity to meet the child's needs and promote her welfare. Many opportunities have been given to Father and sadly all have been missed; Father's request for more time is unfair to R.H. and not in her best interest.
For the reasons stated above, the instant appeal should be denied.