IN RE TERMINATION OF CWSM

• Citation: 839 A.2d 410
• Parties: In re: Involuntary TERMINATION OF C.W.S.M. and K.A.L.M.-S., Appellee. Appeal of: C.J.S., Appellant.
• Decision Date: 09 December 2003
• Court: Superior Court of Pennsylvania

839 A.2d 410

In re: Involuntary TERMINATION OF C.W.S.M. and K.A.L.M.-S., Appellee.

Appeal of: C.J.S., Appellant.

Superior Court of Pennsylvania.

Argued May 23, 2003.

Filed December 9, 2003.

Henry R. Newtown, Jr., Easton, for appellant.

Sara J. Hogan, Bethlehem, for appellees.

Daniel G. Spengler, Easton, for Northampton County Children and Youth Services, participating party.

Before: TODD, GRACI, and TAMILIA, JJ.

TODD, J.

¶ 1 C.J.S. ("Father") appeals the July 25, 2002 Order of the Northampton County Court of Common Pleas which terminated his parental rights to his son, C.W.S.M., born October 23, 1994, and daughter, K.A.L.M.-S., born January 29, 1996.¹ Upon review, we are constrained to reverse and remand.

¶ 2 Northampton County Department of Human Services, Children, Youth and Families Division ("CYF") first became involved with Father, C.W.S.M., and C.W.S.M.'s mother D.A.M. ("Mother") in December 1994, following allegations of chemical dependency of Father, inappropriate discipline with a leather strap of the children's older sibling, B.M., who is not subject to the instant petition, and C.W.S.M.'s failure to thrive. (N.T. Termination Hearing, 3/12/02, at 25-26.) In January 1995, CYF engaged the services of the Visiting Nurse Association ("VNA") to educate Mother on parenting skills and monitor C.W.S.M.'s weight. (Id. at 27-28.) B.M. was referred to KidsPeace Afternoon Treatment Program. (Id. at 26-27.) However, in February 1995, C.W.S.M. was hospitalized due to his low weight. (Id. at 28.) While hospitalized, C.W.S.M. gained weight; however, after he was released from the hospital with a prescription for an intensive feeding program, C.W.S.M. began to lose weight and was removed from the family home on February 17, 1995. (Id.)

¶ 3 After C.W.S.M. was removed from the home, Mother was offered parenting classes through the Program for Women and Children. (Id. at 29.) Mother also underwent a psychological evaluation by Dr. Henry Gursky, who recommended continued parenting skills training, random urine screens, and individual counseling. (Id.) Mother also was referred to the Housing Authority since the family was at risk of being evicted. (Id. at 28.) Mother refused to attend the parenting classes through the Program for Women and Children, but she did attend 7 of 22 sessions of the KidsPeace parenting program. (Id. at 29.) Mother stopped attending the program, however, in May 1995. Mother also refused to submit to the random urine screens and she failed to complete the necessary Housing Authority forms to obtain housing for the family. (Id.) As a result, Mother subsequently was referred to the Valley Youth House housing program. (Id.)

¶ 4 Father was referred to an inpatient drug treatment program at Valley Forge Medical Center, which he completed at the end of March 1995. (Id. at 29-30.) Father was scheduled to attend the Lehigh Valley Addictions Treatment Service ("LVATS") aftercare program as well as a parenting program, but failed to attend either program due to alleged conflicts with his employment. (Id. at 30.)

¶ 5 In May 1995, Mother and Father were granted visitation with C.W.S.M. in Mother's home under the supervision of the VNA. (Id. at 30-31.) Mother was referred to Al-Anon or Nar-Anon, but did not attend because she was "too busy with her other requirements." (Id. at 31.) She did attend a spousal support group at LVATS. (Id.) Father attended weekly outpatient counseling, but failed to attend his 12-step meetings. (Id.) In May 1995, Mother was advised by CYF that C.W.S.M. could return home if she complied with the service recommendations during the next two weeks and if Father was not living in the home. (Id. at 32.) Father moved to an upstairs apartment; however, Mother stopped attending the KidsPeace parenting program, told the CYF caseworker that the court could not keep Father from visiting with C.W.S.M., and missed several visits with C.W.S.M. as a result of her failure to allow the VNA nurse into her home. (Id. at 33-35.) As a result of Mother's noncompliance, C.W.S.M. did not return home, and on May 12, 1995, was adjudicated dependent.

¶ 6 Following the birth of K.A.L.M.-S. on January 29, 1996, Mother and Father obtained new housing and complied with the court-ordered services, and C.W.S.M. was returned home on July 18, 1996. (Id. at 39.) The family continued to experience difficulties, however. Father was incarcerated in January 1997 due to failure to pay child support. (Id. at 40.) Mother experienced financial difficulties, and the utility companies threatened to shut off her service. (Id. at 40.) In June 1997, B.M. was removed from the home after Mother admitted to throwing a bottle at him, giving him a black eye. (Id. at 42-43.) Between June and October 1997, Mother was referred to Valley Youth House, a family protection program, for outpatient counseling and psychiatric care, but refused the initial intake appointment, and then missed her first appointment and refused to reschedule. (Id. at 45.)

¶ 7 During the summer of 1997, Father called CYF several times to express concern regarding the children's safety since B.M., who had acted as a caretaker of the younger children, had been removed from the house. (Id. at 45-56.) In November 1997, the police were summoned to the family home on two separate occasions as a result of domestic disputes. (Id. at 50.) On December 18, 1997, both C.W.S.M. and K.A.L.M.-S. were adjudicated dependent, but placement was suspended and the children were permitted to remain with Mother provided she cooperate with a program of protective services. (Id. at 51.) Mother was ordered to undergo outpatient counseling and psychiatric care, cooperate with casework services, cooperate in the provision of medical services for the children, undergo family budget counseling, and take the children to daycare, which was paid for by CYF, at least twice a week. (Id. at 51, 93.) Father was ordered to cooperate with the Innovations and/or Intensive Outpatient Treatment Alternatives drug treatment programs, and to undergo random urine testing. (Id. at 48, 93.)

¶ 8 Father failed to comply with the requirements, was terminated from the Innovations program due to poor attendance, and tested positive for amphetamines and cannabinoids in January 1998. (Id. at 53.) On several occasions, Father refused to submit to drug screens. Mother initially complied with the ordered services, but in January 1998 stopped taking the children to daycare, began screaming at the caseworker when the caseworker visited the home, and refused to provide an address when she moved to Allentown. (Id. at 94-95.) In addition, in January 1998, C.W.S.M. appeared at day care with a severe burn on his buttocks, which occurred while in Mother's care, and an investigation by CYF resulted in a finding that there was a lack of proper parental supervision. (Id. at 18-19.) On January 13, 1998, CYF filed a petition to revoke the suspended placement; however, the petition was withdrawn after Mother came into compliance. (Id. at 94-95.)

¶ 9 In March 1998, Mother again stopped taking the children to daycare and refused to work with her counselor. (Id. at 96-97.) Mother also permitted Father to see the children, despite a court order preventing Father from visiting with the children unless he complied with his court-ordered drug counseling and drug screening. (Id. at 98-99.) As a result of Mother's and Father's noncompliance, in December 1998, the children were ordered to be placed in foster care. (Id. at 100.) Mother and Father appealed, however, and the placement did not occur. (Id.)

¶ 10 In February 1999, Lehigh County Children and Youth conducted an abuse investigation with respect to K.A.C.M.-S. (Id. at 133-34.) The allegations of abuse ultimately were deemed unfounded; however, the children were deemed at risk and placed in the custody of CYF. (Id.) The children have been in foster care since that time.

¶ 11 Mother began counseling with Dr. Robert Lewis in January 1999 to address her anger management issues. (Id. at 135, 141.) Since that time, Father completed three of twelve random urine screens. (Id. at 135.) Father also began outpatient counseling at St. Luke's Treatment Center on April 16, 1999, but attended only three sessions before he was discharged on May 28, 1999. (Id. at 135.) Mother and Father each attended six of eight bi-weekly visits with the children during the first half of 1999. (Id. at 136.) Mother was ordered by the court to participate in parenting classes, address budgeting issues, and undergo a neurological and psychiatric evaluation. (N.T. Termination Hearing, 3/13/02, at 154.) The neurological assessment took place at the end of December 1999. (Id. at 156.)

¶ 12 Between November 1999 and March 2000, Father's attendance at drug counseling was poor, and he missed numerous urine screens between March and June 2000. (Id. at 159-160.) On June 21, 2000, Father was charged with harassment as a result of an assault against Mother. (Id. at 162.) On July 5, 2000, Father tested positive for cocaine, and he was discharged from the SLATS program due to his unwillingness to follow therapeutic advice. (Id. at 160, 164.)

¶ 13 On September 25, 2001, CYF filed a petition to terminate Mother's and Father's parental rights to the children pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). Following a four-day non-jury trial, trial court granted CYF's petition and terminated Mother's and Father's parental rights to the children on the basis of subsections 2511(a)(1), (2), (5) and (8). This timely appeal followed.

¶ 14 In this appeal, Father presents the following questions for our consideration:

1. Did the Trial Court err in finding that termination of parental rights was in the children's best interests?

2. Did the Trial Court err in finding that the Appellant failed to perform parental duties for a period of six (6) months prior to the filing of the Termination Petition?

3. Did the...