In re JIR

808 A.2d 934

2002 PA Super 295

In re J.I.R. aka J.C.

Appeal of L.C.

Superior Court of Pennsylvania.

Submitted April 15, 2002.

Filed September 17, 2002.

Reargument Denied November 14, 2002.

Raymond D. Roberts, Philadelphia, for appellant.

Katrina R. Durham, Philadelphia, for Department of Human Services.

Before TODD, BENDER, and TAMILIA, JJ.

TAMILIA, J.

¶ 1 Mother, L.C., appeals the July 6, 2001 Decree terminating her parental rights as to her minor child, J.I.R.

¶ 2 The Philadelphia Department of Human Services (DHS) first became involved in L.C.'s family situation in January 1988. Eleven years into DHS's involvement with L.C.'s family situation, on October 6, 1999, DHS was contacted by a Philadelphia hospital's emergency room and informed that L.C. had given birth to J.I.R., a boy, born prematurely and who tested positive for cocaine at birth.¹ In addition, DHS discovered that L.C. lacked appropriate housing. The child remained in the hospital for approximately two months due to his medical conditions and then was placed in foster care, where he has remained since that time. On December 3, 1999, the child was adjudicated dependent.

¶ 3 The record reveals that L.C. was incarcerated sometime shortly after the child's birth and that she is serving a one to three year term of imprisonment for a drug related offense. The evidence indicates L.C. was eligible for parole in November 2001. Further, we note that L.C. has attached, as an exhibit to her appellate brief, a copy of a document purportedly issued by the Pennsylvania Board of Probation and Parole on August 30, 2001. The document indicates that L.C. was scheduled to be paroled on or about November 1, 2001. As this document is not a part of the certified record, this Court is precluded from considering it or any effect it might have upon the issue of whether termination of L.C.'s parental rights was appropriate. "This Court may only rely on what appears in the certified record." Bennyhoff v. Pappert, 790 A.2d 313, 317 (Pa.Super.2001). See also Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340, 342, n. 5 (1991) ("For purposes of appellate review, what is not of record does not exist").

¶ 4 A family service plan (FSP) was developed and the goal set forth therein called for reunification of the child with L.C. In order to achieve this goal, the FSP set forth the following objectives with which L.C. was instructed to comply.

• Secure and maintain safe and adequate housing;

• Maintain visitation with the child;

• Learn parenting skills, including non-physical methods of discipline • Comply with the directions and requests of DHS and affiliated agencies; and

• Inform DHS of her whereabouts.

DHS's Petition for Goal Change to Adoption and Involuntary Termination of Parental Rights, Exhibit A., ¶ e. In addition, the FSP directed L.C. to obtain and maintain employment and substance abuse treatment. See N.T. 7/6/01 at 14.

¶ 5 L.C. was invited to attend both FSP meetings; however, she failed to attend or otherwise participate in either meeting. On September 4, 2000, after having found L.C. failed to take steps necessary to comply with the above described objectives, DHS petitioned for a change of goal from reunification to adoption and filed a petition for termination of L.C.'s parental rights pursuant to 23 Pa.C.S.A. § 2511, Grounds for involuntary termination.

¶ 6 Following a July 6, 2001 hearing, the family division, juvenile branch, entered its Decree terminating L.C.'s parental rights pursuant to 23 Pa.C.S.A. § 2511(a) General rule (8).²,³ On appeal, L.C. challenges the termination of her parental rights and argues the evidence fails to support the court's findings and conclusions.

¶ 7 "`The standard of review in cases involving the termination of parental rights is limited to the determination of whether the orphans' court's decree is supported by competent evidence.'" In re Adoption of J.D.S., 763 A.2d 867, 870 (Pa.Super.2000), quoting In re Julissa O., 746 A.2d 1137, 1139 (Pa.Super.2000).

¶ 8 As the party seeking termination, DHS bore the burden of establishing, by clear and convincing evidence, that grounds existed for terminating L.C.'s parental rights. "`The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing 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 Adoption of C.A.W., 453 Pa.Super. 277, 683 A.2d 911, 914 (1996), appeal denied, 548 Pa. 631, 694 A.2d 619 (1996), quoting Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989).

¶ 9 In pertinent part, 23 Pa.C.S.A. § 2511, Grounds for involuntary termination, provides:

(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:

...

(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.

¶ 10 Above all else in determining whether parental rights should be terminated, adequate consideration must be given to the needs and welfare of the child. In re Child M., 452 Pa.Super. 230, 681 A.2d 793 (1996),appeal denied, 546 Pa. 674, 686 A.2d 1307 (1996).

¶ 11 The evidentiary hearing was held on July 6, 2001. Dawn George, a DHS social worker, and Henry Ortiz, a Delta Community Services caseworker, testified in support of DHS's petition. L.C., who was represented by counsel, participated via telephone from S.C.I. Muncy. We have carefully reviewed the notes of testimony and now set forth a detailed summary of the evidence presented.

¶ 12 George, who was assigned to the case in December of 2000, testified regarding the circumstances of the child's birth and his medical problems related thereto. George also testified that L.C. failed to fulfill the objectives of the FSP. George indicated that because of L.C.'s incarceration, she had not attended any of the FSP meetings. With regard to the change in goal, George explained that the involuntary termination of L.C.'s parental rights as to other children was considered to be an aggravated circumstance. George also indicated that, at the time of the hearing, the child was twenty-one months old, had resided with his foster mother since his release from the hospital and had developmental problems requiring medical care with which the foster mother was able to assist.

¶ 13 On cross-examination, George acknowledged she received correspondence from L.C. and was aware that L.C. participated in alcohol and drug treatment while incarcerated. George also stated L.C. had asked about a facility near the prison where she could have some interaction with the child and that she had received correspondence from an attorney regarding that foster care agency. George also conceded that L.C. had not indicated that she wished to relinquish her parental rights.

¶ 14 Ortiz, who had been assigned to J.I.R.'s case only one month prior to the hearing, testified about the placement of the child and the Individual Service Plan (ISP), the objectives of which, including L.C.'s contact with Delta and her visitation with the child, had not been met. He testified regarding the child's medical treatment, the foster mother's ability to comply with Delta's requirements in caring for the child and that he believed that adoption by the foster parent was in the best interest of the child.

¶ 15 On cross-examination, Ortiz acknowledged that neither he nor the previous caseworker had any contact with L.C. He stated that the file contained letters of introduction, one from himself and one from the previous caseworker, that advised L.C. that she was invited to ISP meetings; however, Ortiz indicated that the letters were sent to an address in Philadelphia, not to the prison where L.C. was incarcerated. Thus, the ISP was formulated without any input from L.C. Moreover, Ortiz did not indicate whether the goals in the ISP were ever communicated to or discussed with L.C.

¶ 16 L.C. testified she had applied for parole and expected to be released from prison in November 2001. L.C. further testified about the programs and classes she successfully completed while incarcerated. She also explained her contact with a Ms. Dalton, the director of the foster care agency near the correctional facility, to whom L.C. spoke about temporary custody for the child for the period of time until she was released and able to care for him herself. L.C. explained she wrote several letters to George about her attempts to arrange the temporary custody and about the classes she was taking in prison, but never received any response from George. L.C. also requested photographs of and visits with the child. She testified she was informed that the judge denied these requests. L.C. also testified she signed letters sent by Delta, granting permission for the child's treatment, but that she was not provided with a contact person from that agency.

¶ 17 On cross-examination, L.C. acknowledged that since the child was born, she has been incarcerated for all but a month or two. She also admitted she did not seek drug and/or alcohol treatment during that time. L.C. testified she was aware of some of the child's medical problems, but that other than a parenting/child development course, she had not been trained to deal with his medical needs.

¶ 18 We begin by noting the following rule with respect to the rights of a parent who is or has been incarcerated.

[I]ncarceration of a parent does not, in itself, provide sufficient grounds for termination of parental rights; however, an incarcerated parent's responsibilities are not tolled during his incarceration. Parental rights may not be preserved by waiting for

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