In the Interest of: M.T., Appeal of: C.T. and M.T. , 101 A.3d 1163 ( 2014 )

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2014 Pa. Super. 223
IN THE INTEREST OF: M.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.T., III AND M.T., PARENTS
No. 1138 WDA 2013
Appeal from the Order entered June 10, 2013,
in the Court of Common Pleas of Blair County,
Civil Division, at No(s): CP-07-DP-0000077-2012
IN THE INTEREST OF: C.T., IV., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.T., III AND M.T., PARENTS
No. 1139 WDA 2013
Appeal from the Order entered June 10, 2013,
in the Court of Common Pleas of Blair County,
Civil Division, at No(s): CP-07-DP-0000076-2012
IN THE INTEREST OF: M.J.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.T., III AND M.T., PARENTS
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No. 541 WDA 2014
Appeal from the Decree entered March 5, 2014,
in the Court of Common Pleas of Blair County,
Orphans’ Court, at No(s): 2013 AD 39A
IN THE INTEREST OF: C.E.T., IV., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: C.T., III AND M.T., PARENTS
No. 542 WDA 2014
Appeal from the Decree entered March 5, 2014,
in the Court of Common Pleas of Blair County,
Orphans’ Court, at No(s): 2013 AD 39
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
OTT, WECHT, STABILE, and JENKINS, JJ.
OPINION BY ALLEN, J.: FILED OCTOBER 08, 2014
M.T. (“Mother”) and C.T., III (“Father”) (collectively “Parents”) have
appealed from the June 10, 2013 Orders changing the permanency
placement goal of the parties’ two dependent children, C.E.T., IV (d.o.b.
September 2010), and M.J.T. (d.o.b. October 2011) (“the Children”), to
adoption, and from the March 5, 2014 decrees terminating Mother and
Father’s parental rights.
We initially note that although the trial court conducted the
termination hearing on November 21, 2013, the trial court waited until this
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Court affirmed the Children’s goal change on March 4, 2014 before entering
the March 5, 2014 termination decrees. On April 17, 2014, this Court
entered an order granting en banc reargument, and withdrew the March 4,
2014 decision affirming the goal change. The trial court did not vacate the
termination decrees it entered on March 5, 2014. We find no error in such
action, and note that “a goal change from reunification to adoption [i]s not a
necessary prerequisite to the initiation of involuntary termination
proceedings.” In re N.W., 859 A.2d 501, 507 (Pa. Super. 2004) (citing In
re M.G., 855 A.2d 68 (Pa. Super. 2004) (emphasis in original)). Our
Supreme Court has held that “an agency may file a termination petition even
where reunification remains the permanency goal for the child.” In re
Adoption of S.E.G., 901 A.2d 1017, 1026 (Pa. 2006). This is due in part to
the policy espoused by the federal Adoption and Safe Families Act, 42 U.S.C.
§ 671-675, which imposes upon the states the requirement to focus on a
dependent child’s need for permanency, rather than the parents’ actions.
Consistent with the foregoing, we consider both the June 10, 2013 orders
effectuating goal change, and the March 5, 2014 decrees terminating Mother
and Father’s parental rights.
Critical to our analysis in this appeal is the trial court’s compelling,
detailed and accurate recitation of the evidence of record. Because of its
relevancy, we adopt and reproduce the trial court’s recitation of the facts
and procedure below:
Relative to the parents’ initial appeal concerning the goal
change to adoption, [the Superior] Court entered a decision filed
March 4, 2014 affirming [the trial] court’s Order of June 10,
2013 by a 2-1 decision. However, after submission of an
application for re-argument by the parents, [the Superior] Court
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subsequently entered an Order on April 17, 2014 granting their
application and vacating its prior March 4, 2014 Order. On June
3, 2014, [the Superior] Court entered an Order denying BCCYF’s
motion to consolidate the goal change and termination of
parental rights appeals, but indicated instead, that the cases will
be listed as related appeals. The matter of re-argument
pertaining to the goal change, and the termination of parental
appeals, is to be submitted on briefs by counsel of record for the
parties before an En Banc panel on August 5, 2014.
The subject children, C.E.T., IV and M.J.T., were removed
from the care of their parents on June 22, 2012 pursuant to a
Voluntary Placement Agreement signed by the parents, C.T., III
and M.T. C.E.T., IV was placed in the [M.] foster home on such
date, while M.J.T. was placed in the same foster home three (3)
days later (June 25, 2012) upon her release from the hospital. A
Dependency Petition was filed for both children on July 5, 2012,
and an Adjudicatory Hearing was scheduled before the master
on July 18, 2012. However, both parents and the paternal
grandparents, C.T.J. and P.T., requested that the matter be
heard by a judge in the first instance, therefore, the matter was
subsequently scheduled before the undersigned on September
13, 2012.
By Orders of Adjudication entered September 17, 2012,
both children were declared dependent and have remained in the
custody of BCCYF since such time. BCCYF initially became
involved with this family after receiving two (2) Childline reports
on June 19, 2012. The initial Childline report (C.L. No. 07-
11165) alleged that M.J.T. was the victim of abuse (serious
physical injury and serious physical neglect) by her paternal
grandfather, C.E.T., Jr., due to second degree burns suffered to
her feet, ankles, thigh and buttocks. She was admitted to UPMC
– Mercy Hospital in Pittsburgh, PA. (RR 3-4; Order of
Adjudication, 9/17/12 ¶15 (a)(1)). The second Childline report
(C.L. No. 07-11166) alleged that M.J.T. was the victim of abuse
(serious physical injury) as a result of severe proximal humerus
fracture and metacarpal fracture, as well as various bruising to
her face, head and extremities, and abrasions to the left eyelid,
nose, upper lip and chin that were inconsistent for a child her
age (at the time of the Childline referral the identity of the
perpetrator(s) was unknown). (RR 4; Order of Adjudication,
9/17/12, ¶15 (a)(1)).
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The daughter, M.J.T., was seen by Dr. Janet Squires and
Dr. Joy Richmond while at UPMC – Mercy. Both doctors opined
that the bruising and fractures could not have been caused by an
accidental source. (RR 5). More specifically, Dr. Squires
reported that after reviewing an x-ray of M.[J.T.]’s injuries, the
right humerus fracture was estimated to be one (1) to three (3)
weeks old, and that the metacarpal fracture was most likely
caused by squeezing or pounding of the hand. (See Dependency
Petitions, p. 5).
In our September 17, 2012 Order of Adjudication, we
specifically made the following finding:
“…the court finds clear and convincing evidence that the
child, M.J.T., was the victim of abuse (serious physical
injury) relating to the bruises, abrasions and fractures.
The court further finds clear and convincing evidence that
the bruising, abrasions, fractures and burns all would have
caused M.J.T. severe pain and would have significantly
impaired the child’s functioning and development for a
period of time. With respect to the identify (sic) of the
perpetrator of the bruises, abrasions and fractures,
however, there is only prima facie evidence that the
perpetrators of the abuse are the parents and
grandparents due to the fact that they were the only ones
responsible for the welfare of the children during the time
that the injuries occurred…”
Order of Adjudication, 9/17/12, ¶15(a)(1)
The 6th Month Permanency Review hearing was held
December 11, 2012. In our Permanency Review Order of
December 13, 2012, we found that “[t]he parents still must
come to a greater understanding and appreciation relative to the
burn injuries and fractures that [M.J.T.] suffered, including the
cause(s) of such injuries.” (Permanency Review Order,
12/13/12, ¶3(b)(ii)). We also found that each child was doing
well in the [M.] foster home and that Mr. & Mrs. M[.] were a
permanent adoptive resource if reunification did not occur.
(Permanency Review Order, 12/13/12, ¶23(b)). Finally, we
found that the parents had made “slow progress relative to the
FICS Reunification Services.” (Permanency Review Order,
12/13/12, ¶23(i)).
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Reunification services were initiated through Family
Intervention Crisis Services (hereinafter “FICS”) on July 26,
2012 and remained open until June 10, 2013. (RR 10, 60, 128,
275 & 283). During the course of time, visits were increased,
but always remained fully supervised. FICS also offered
separate counseling sessions and parenting education sessions
once per week with both parents. (RR 10, 61 & 134). The
counseling and parenting sessions were later combined in
February of 2013. (Id.). In addition, FICS facilitated the
Women Aware Program for the mother, the Men Helping Men
Program for the father, with the goal of assisting the parents in
their relationship with one another. (RR 56 & 135).
In addition to the services provided by FICS, the family
was afforded numerous other services to assist them in reaching
the goal of reunification. (RR 10-11, 55 & 70). For example, the
parents attended the Family Resource Center Parenting Program
in September 2012, and were scheduled to continue until
November 15, 2012. (RR 10-11). However, both parents were
discharged from the program due to the distraction caused by
[Father] openly flirting with other women in the group (RR 70).
Further, both parents were engaged with the Parents as
Teachers Program (RR 55), and both children receive Early
Intervention Services (RR 51 & 217). Shelley McCune of FICS
noted that there were some positive attributes for the parents,
for example, they were cooperative, kept a clean and orderly
house, possessed a strong desire to have their children return
home, and developed a good relationship with the resource
parents. (RR 13-15).
Ms. McCune, however, also noted several deficiencies that
the parents shared, including a lack of understanding of the
injuries that their daughter had suffered which resulted in her
placement. (RR 17). A particular concern was the fact that
neither parent recognized the child’s obvious body bruising; did
not realize that she had suffered several broken bones, and had
no knowledge nor any explanation as to how those injuries
occurred. (RR 17). The parents’ lack of knowledge and their
failure to offer a viable explanation as to what occurred to their
daughter has been, and continues to be, a very serious concern
to this court because of the difficulty this creates in ensuring that
the children are safe in the care, custody and control of their
parents. (RR 17).
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Ms. McCune further noted that the parents were very
dependent on the children’s paternal grandparents for basic
support. For example, the grandparents provided child care,
transportation, financial assistance and general assistance in
every day matters that the parents could not understand or
handle on their own. (RR 19-20). Although we recognize that a
positive support system is important in any family situation, of
particular concern to this court is that the serious and significant
injuries suffered by the daughter occurred while she was solely
in the care, custody and control of the paternal grandfather (RR
19-20).
During the supervised visits observed by FICS, there were
several ongoing safety concerns. (RR 72, 76-78 & 81). Ms.
McCune testified during one occasion, C.E.T. was playing with an
open pair of adult scissors and the parents needed prompting to
remove them from his possession. (RR 78). There was another
occasion when the parents had a space heater on the floor of
their residence that became hot enough to burn on contact with
the skin. (RR 78). The children would walk over toward the
heater, which needed to be addressed several times with the
parents. (Id.). Ms. McCune expressed concern with the parents’
inability to recognize situations that could jeopardize the safety
of their children. (Id.).
Another area of concern noted at the initial Adjudicatory
hearing was the parents’ inability to recognize appropriate
developmental stages for their children. For example, the father
would refer to the daughter as walking when she was actually
crawling; they both claimed that the daughter was crawling and
pulling herself up at the age 4 months; etc. Due to these
concerns, BCCYF requested that both parents undergo
psychological evaluations to assess their intellectual functioning
and parenting skills. (RR 8, 20-21).
A 9th Month Interim Review Hearing was held March 5,
2013. In our March 12, 2013 Permanency Review Order, we
stated the following: “FICS has a concern in that despite the
investment of services and the passage of time, the visits remain
fully supervised as the parents are not always fully attentive to
the children which raises safety concerns” and “the parents
cannot consistently ensure that the children are safe in their
care. FICS also expressed a concern with the father being
disrespectful toward the mother, and that he has been verbally
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abusive in the past as well, which negatively affects the mother’s
self-esteem.” (Permanency Review Order, 3/12/13,
¶¶3(a)(ii)and3(b)(ii).
In our March 12, 2013 Permanency Review Order, we also
indicated that before the children could be reunified with their
parents, that “[t]he court needs to be satisfied that they are
capable of being fully attentive to the needs of their children and
that they can consistently provide a safe and secure
environment.” (Permanency Review Order, 3/12/13, ¶7).
The psychological evaluations of the parents occurred on
January 30 and February 12, 2013, by Marilyn Morford, Ph.D.
(RR 98). Dr. Morford is a licensed psychologist with a specialty
in child psychology. The purpose of her evaluation was to
determine the parents’ intellectual, personal, and emotional
functioning, as well as their parenting ability and the relationship
between the children and parents. (RR 99; Psychological
Evaluations, p. 1). Dr. Morford’s Psychological Evaluations were
admitted as Petitioners’ Exhibits 1 & 2 at the March 13, 2013
hearing and are incorporated herein.
Dr. Morford testified that both parents have some
limitations with intellectual functioning (RR 101; M.T.
Psychological Report, p. 6; C.T. Psychological Report, p. 5).
After conducting an assessment of [Mother’s] verbal
comprehension, she was considered to have an approximate
developmental age of an average 14 year old, while [Father’s]
verbal comprehension placed him approximately at the
developmental age of a 9 year old. (RR 103; Id.). Dr. Morford
explained that at these developmental ages, the parents would
have limitations with their abstract reasoning and planning.
Such would also significantly affect their functioning in relation to
their parenting ability. (RR 103-104). Further, the parents were
observed to have difficulty with adaptive skills and daily
functions. (RR 126).
Dr. Morford also expressed concern with the mother’s lack
of understanding of developmental milestones relative to the
children. (RR 107). As to the father, Dr. Morford noted that he
had a tendency to deny basic flaws and that he had issues with
maturity, such as impulse control. (RR 109). Dr. Morford
explained that the father’s level of intellectual maturity may be
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affecting his ability to focus on monitoring the children and
responding to them at an appropriate level. Consequently,
[Father’s] intellectual immaturity was found to be one of the
primary factors that affected his ability to properly parent the
children. (RR 109-110).
At the 9th Month Interim hearing, Dr. Morford continued to
question whether the parents could remedy the circumstances
related to the safety issues that necessitated the children’s
placement in a reasonable amount of time due to their limited
intellectual abilities and emotional needs. (RR 114 & 125).
Further, Dr. Morford found it significant that the service
providers who had been in the home the prior six (6) months
offering reunification services determined that they could not
scale back from a full level of supervision. (RR 115). Therefore,
Dr. Morford did not foresee a time in the near future when daily
checks and supervision would not be important to monitor the
safety of the children in their parents’ home. (RR 115).
At the time of the 9th Month Interim hearing in March
2013, Ms. McCune confirmed that with the lack of progress being
made relative to the visits and counseling, she concurred with
Dr. Morford in her belief that she did not foresee any time in the
near future that visitation could be scaled back from full-time
supervision. (RR 147). Even though the parents were generally
cooperative with the services, there remained a lack of
consistency, the parents were easily distracted, they were not
consistently implementing what they had been taught; and
safety issues continued to persist. (RR 148-149). Ms. McCune
stated that the parents also continued to have unrealistic
developmental expectations for their children. (RR 152). Ms.
McCune also noted that the parents provided inconsistent
statements as to how the injuries to their daughter occurred.
(RR 157-158).
At the 9th Month Review hearing, it was expressed to the
parents by this court and BCCYF that they needed to show
significant improvement and consistency before reunification
with the children would occur. (RR 184-185). Unfortunately,
over the next three (3) month period, FICS felt the need to
continue to provide fully supervised visits as they still had
significant concerns concerning the parents not consistently
implementing safety suggestions and being able to supervise
their children on their own. Furthermore, if the grandparents
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were present, the parents would tend to step back and rely upon
the help of the grandparents. (RR 206-207). FICS still noted
continued safety concerns concerning the children, and the need
to intervene to avoid potential safety hazards. (RR 208-210 &
215).
Despite the numerous services provided to the parents, as
of June 2013, Ms. McCune still could not recommend that the
children be returned to the parents’ care. In fact, she was not
able to provide a time frame for the parents to achieve a level of
unsupervised visits due to their lack of progress to date. (RR
217-218, 220). Ms. McCune also pointed out that there were
more concerns in the most recent two (2) months than there
had been in the prior months. (RR 231-238). Ms. McCune
testified that the parents actually regressed in the area of
consistently recognizing and addressing safety concerns. (RR
218, 220).
After the 12th Month Review Hearing held June 7, 2013,
we entered an Order on June 10, 2013, wherein we made the
following findings as to both parents:
“[T]he mother and father have attended nearly all
meetings and visits with FICS Reunification Services, but
they have failed to recognize and appropriately address
the safety concerns for the children on a consistent basis.
The parents continue to work with Parents as Teachers in
their home weekly. The child, [C.E.T., IV], continues to
receive therapy for his developmental delays through both
Denise Adams and the FICS Parent Educator, and the
mother will utilize at times the tools and techniques that
she has been taught, but not on a consistent basis. The
visits that occur remain fully supervised due to safety
concerns. [The parents] have not demonstrated any
ability to protect their children on a consistent basis, and
often have immature responses to FICS’ staff when safety
concerns are expressed. Despite the efforts and time
investment by the service providers, there does not appear
to be any hope of significant improvement. As a result, we
cannot find that the children would be protected and safe
in their parents’ care.”
(Permanency Review Order 6/10/13, ¶3(a)(ii) and ¶3(b)(ii))
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We also made the following specific factual findings:
***
(c) The foster parents are an adoptive resource, and
both BCCYF and FICS support Mr. and Mrs. M[.] in their desire to
adopt the children.
(d) Despite the number of services that have been in
place for the past one (1) year, the parents have not made
significant progress and have not shown any insight or
demonstrated any consistency that they can safely protect their
children if they were in their custody. This is especially
concerning considering the children are only two (2) and one (1)
year of age.
(e) There has never been any plausible explanation or
further information provided as to [M.J.T.]’s 2nd degree burn
injuries to her feet/ankles, thigh and buttocks (CL No. 07-11165)
nor her fractures and bruising (CL No. 07-11166) which occurred
during times when only the parents and paternal grandparents
were the caregivers. As a result, the parents have not
demonstrated any ability to remedy the circumstances that
originally led to placement.
(f) There exists a parent-child relationship between the
children and their biological parents, but the children have also
developed a parent-child relationship with Mr. and Mrs. M[.],
where they have been placed since 6/22/12. The children look
to the M[.]s to meet their needs, and are provided safety,
structure and appropriate care within their home.
As a result, under the Order section, we changed the goal
to adoption and directed that reasonable efforts were no longer
required for either parent, and that compelling reasons no longer
existed not to pursue TPR. (Permanency Review Order, 6/10/13,
¶23(b) – (c)).
At the November 21, 2013 combined 18th Month
Permanency Review and TPR proceeding (filed to Blair County
No. 2013 AD 39 & 39A), the BCCYF caseworker Nicole Heidler
testified. Ms. Heidler confirmed that the children were
comfortable in the M[.] foster home and that both children refer
to the M[.]s as “mom” and “dad” and that they sought the M[.]s
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out to meet their needs. (RR 242-243, 291-292). Ms. Heidler
also testified that the children were not only bonded to their
foster parents, but also to each other. (RR 292-293). In the
M[.]’s care, C.E.T., IV was making progress with his speech
development through Headstart, and M.J.T. was also progressing
and had no developmental issues since her placement. (RR
293).
Even though the supervised visits at the BCCYF office with
the parents generally went well, Ms. Heidler testified that the
foster parents appeared to be more of the parental figures to
these children based upon her own observations of their
interactions together. (RR 307). There are no separation issues
noted for the children at the end of visits with their parents. (RR
299-300). [The pre-adoptive foster parents] also expressed a
willingness to discuss [Parents’ continued contact with Children]
if a TPR Petition was granted. (RR 300).
Ms. Heidler testified that BCCYF believed it would be in the
children’s best interests to terminate the parental rights of
[Parents], as the children had been with their adoptive resource
for nearly 1½ years, more than half of their respective young
lives. (RR 302-303). The children’s needs have been met by
Mr. & Mrs. M[.], and the children have grown and thrived within
their home. Therefore, BCCYF desired the termination of
parental rights so that the children could achieve permanency.
(Id.).
Therefore, in our Permanency Review Order of November
27, 2013, the goal remained adoption, reasonable efforts
continued not to be required for either parent and compelling
reasons did not exist. (Permanency Review Order 11/27/13,
¶23/Order). We also entered under separate cover an Order
deferring any decision relative to the TPR Petition until the
Pennsylvania Superior Court entered its decision relative to the
parents’ appeal of our Permanency Review Order of June 10,
2013, wherein we changed the goal to adoption.
Trial Court Opinion, 7/22/14, at 2–8 (bolded dates in original).
On appeal, Mother and Father collectively raise three issues pertaining
to the Children’s goal change:
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I. Whether the trial court erred and abused its discretion by
determining the best interests of the child would be served
by changing the Placement Goal to Adoption where: there
is insufficient evidence that such a Goal Change would be
in the best interest of the child; there is insufficient
evidence of conduct by the parents that places the health,
safety or welfare of the child at risk; and the trial court
fails to account for the parent-child relationship shared
between the parents and their biological children.
II. Whether the trial court erred and abused its discretion in
changing the goal for the child from reunification to
adoption when the parents had exhibited compliance with
the permanency plan having attended nearly all visits and
participated in or completed nearly all recommended
services and the trial court failed to fully consider the bond
between the parents and child.
III. Whether the trial court erred and abused its discretion
where an improper amount of weight was applied to the
parents’ inability to explain the origin of injuries suffered
by M.T., although the parents agree that some injury did
occur without their knowledge.
Parents’ Brief at 5.
We address Parents’ issues together because they are interrelated,
and implicate the sufficiency and weight of the evidence assessed by the
trial court to the testimony at the twelve-month permanency review hearing.
Our Supreme Court set forth our standard of review for dependency
cases as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
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In a change of goal proceeding, the best interests of the child, and not
the interests of the parent, must guide the trial court, and the parent’s rights
are secondary. In re A.K., 936 A.2d 528, 532-533 (Pa. Super. 2007). The
burden is on the Agency to prove the change in goal would be in the child’s
best interests. In the Interest of M.B., 674 A.2d 702, 704 (Pa. Super.
1996). In contrast, in a termination of parental rights proceedings, the
focus is on the conduct of the parents under 23 Pa.C.S.A. § 2511. In re
M.B., 674 A.2d at 705.
Section 6302 of the Juvenile Act defines a “dependent child” as a child
who:
(1) is without proper parental care or control, subsistence,
education as required by law, or other care or control
necessary for his physical, mental, or emotional health, or
morals. A determination that there is a lack of proper
parental care or control may be based upon evidence
of conduct by the parent, guardian or other
custodian that places the health, safety or welfare of
the child at risk, including evidence of the parent’s,
guardian’s or other custodian’s use of alcohol or a
controlled substance that places the health, safety or
welfare of the child at risk[.]
42 Pa.C.S.A. § 6302(1) (emphasis added).
In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified
the definition of “dependent child” further.
The question of whether a child is lacking proper parental care or
control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper
parental care and control, and if so, whether such care and
control are immediately available.
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Id. at 872 (internal quotations and citations omitted); see also In re J.C.,
5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that “[t]he burden
of proof in a dependency proceeding is on the petitioner to demonstrate by
clear and convincing evidence that a child meets that statutory definition of
dependency.” G.,T., 845 A.2d at 872.
With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.
Super. 2002) (en banc), this Court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to
make a finding that a child is dependent if the child meets the
statutory definition by clear and convincing evidence. If the
court finds that the child is dependent, then the court may make
an appropriate disposition of the child to protect the child’s
physical, mental and moral welfare, including allowing the child
to remain with the parents subject to supervision, transferring
temporary legal custody to a relative or public agency, or
transferring custody to the juvenile court of another state. 42
Pa.C.S. § 6351 (a).
Id. at 617.
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of
the child.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.-
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(1) [t]he court shall conduct a permanency hearing for the
purpose of determining or reviewing the permanency plan
of the child, the date by which the goal of permanency for
the child might be achieved and whether placement
continues to be best suited to the safety, protection and
physical, mental and moral welfare of the child. …
42 Pa.C.S.A. § 6351(e).
Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for
the reviewing court:
(f) Matters to be determined at permanency hearing.-
At each permanency hearing, a court shall determine all of
the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of compliance
with the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for the child
might be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
***
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(9) If the child has been in placement for at least 15 of the
last 22 months or the court has determined that
aggravated circumstances exist and that reasonable efforts
to prevent or eliminate the need to remove the child from
the child’s parent, guardian or custodian or to preserve
and reunify the family need not be made or continue to be
made, whether the county agency has filed or sought to
join an petition to terminate parental rights and to identify,
recruit, process and approve a qualified family to adopt the
child unless:
(i) the child is being cared for by a relative best
suited to the physical, mental and moral welfare
of the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to
the child’s parent, guardian or custodian within
the time frames set forth in the permanency plan.
(f.1) Additional determination. – Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall
determine one of the following:
(1) If and when the child will be returned to the child’s
parent, guardian or custodian in cases where the return of
the child is best suited to the safety, protection and
physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental
rights in cases where return to the child’s parent, guardian
or custodian is not best suited to the safety, protection and
physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a legal
custodian in cases where return to the child’s parent,
guardian or custodian or being placed for adoption is not
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best suited to the safety, protection and physical, mental
and moral welfare of the child.
(4) If and when the child will be placed with a fit and wiling
relative in cases where return to the child’s parent,
guardian or custodian, being placed for adoption or being
placed with a legal custodian is not best suited to the
safety, protection and physical, mental and moral welfare
of the child.
(5) If and when the child will be placed in another living
arrangement intended to be permanent in nature which is
approved by the court in cases where the county agency
has documented a compelling reason that it would not be
best suited to the safety, protection and physical, mental
and moral welfare of the child to be returned to the child’s
parent, guardian or custodian, to be placed for adoption, to
be placed with a legal custodian or to be placed with a fit
and willing relative.
(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.
(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.
***
42 Pa.C.S.A. §6351.
Finally, the court should consider the bond between the child and his
parents, foster parents, and siblings. In re H.V., 37 A.3d 588, 594-595 (Pa.
Super. 2012).
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This Court has stated:
[T]he focus of all dependency proceedings, including
change of goal proceedings, must be on the safety, permanency,
and well-being of the child. The best interests of the child take
precedence over all other considerations, including the conduct
and the rights of the parent. . . . [W]hile parental progress
toward completion of a permanency plan is an important factor,
it is not to be elevated to determinative status, to the exclusion
of all other factors.
In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007). In In re N.C., 909 A.2d
818, 823 (Pa. Super. 2006), another goal change case, the trial court
granted a goal change to adoption despite the fact that the mother had
made substantial progress toward completing her permanency plan. This
Court held that the mother’s parenting skills and judgment regarding her
children’s emotional well-being remained problematic.
Here, CYF presented ample testimony from which the trial court could
properly change the Children’s goal from return to parents with a concurrent
goal of adoption to a sole goal of adoption. Ms. Shelley McCune, a counselor
with Family Intervention Crisis Services who worked with Parents, could not
recommend that Children could be safely returned home to Parents, and she
could not provide a time-frame for reunification. N.T., 6/7/13, at 27-28.
She testified that Paternal Grandparents are not a good option for placement
because of M.J.T.’s burns, and she was also concerned that Paternal
Grandparents would allow Parents to be with the Children unsupervised, and
there was too great a risk to the Children’s safety. Id. at 3, 17, 30-31. Ms.
McCune acknowledged that Children have a relationship with Parents, but
view them as “fun mom and dad” because there is continuous entertainment
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during the visits. Id. at 28, 34. Ms. McCune also observed that Children
have a parent/child relationship with their foster parents, and noted that the
foster parents are more structured, and allow Children to play on their own
and be creative. Id. at 29. Ms. McCune averred that stability was in the
best interests of the Children. Id. at 29-30, 45. She testified that Parents
were not demonstrating any insight into how to safely parent; Ms. McCune
explained:
It’s not just one situation. It’s the overall picture. It’s the
continued things that we’re seeing and the continuing having to
redirect and prompt and review. Some of the things that we see
were things that were addressed last summer. We need to see
at this point that [Parents] are able to transition these things
over without somebody constantly saying, hey, that’s a risk to
these children, that’s a danger, that’s a safety issue.
Id. at 26. Ms. McCune stated that she felt “like we’ve gone backwards as
opposed to going forward.” Id. at 30. She averred that the longer the
current situation continued, the more difficult it would be on the Children to
change the goal to adoption at a later point in time. Id. at 45.
CYF Caseworker Nikki Heidler testified that Children had been placed
with their foster parents since their removal from Parents’ care on June 22,
2012, and that the foster parents were an adoptive resource. Id. at 52. Ms.
Heidler stated that Children are well-adjusted in the foster home, that they
play with their own toys and occupy themselves for an age-appropriate
amount of time, and that they are very focused. Id. Ms. Heidler noticed an
improvement in both of the Children’s speech. Id. She recommended a
change of goal to adoption, with Children remaining dependent and in CYF’s
legal and physical custody until adoption. Id. at 60. Ms. Heidler averred
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that there would be a major risk to Children’s safety if Parents were caring
for them with the assistance of Paternal Grandparents, as the four had been
the caregivers for Children, and were unaware of M.T.’s burns, fractures and
injuries prior to a physician diagnosing them. Id. at 67-68. Ms. Heidler
testified that Children were attached to their foster parents, and doing well
in their home. Id. at 59. Ms. Heidler testified that the foster parents would
be willing and able to provide an ongoing relationship between Children and
Parents. Id.
At the close of testimony, the trial court commented:
What I gather from Miss McCune’s testimony and the position of
the Agency is [--] I’m more concerned with a pattern being
established here. For example, that particular bath toy might
not have parts that can come apart or cause any kind of choking
hazard, but what about other toys that do? As I understood Miss
McCune’s testimony, the concern is having the [C]hildren do
these things, engage in these habits and this routine that maybe
present [sic] in this particular instance is not dangerous, does
not present a hazard[,] but maybe down the road it would
depending on a particular toy, depending on playing with a lawn
mower that does have a blade, does have gas and so forth.
N.T., 6/7/13, at 72-73. Finding that the CYF witnesses were credible in their
testimony that Parents are not capable of safely parenting Children, even
with the assistance of Paternal Grandparents, the trial court determined that
the Children could not be safely returned to Parents, and that their best
interests required a change in the placement goal to adoption.
Father and Mother essentially seek for this Court to re-weigh the
evidence and the credibility determinations of the trial court in order to find
that the trial court committed an abuse of its discretion. Our Supreme Court
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has explicitly directed that we may not do so. In In re R.J.T., the Supreme
Court persuasively stated:
[W]e are not in a position to make the close calls based on fact-
specific determinations. Not only are our trial judges observing
the parties during the hearing, but usually, as in this case, they
have presided over several other hearings with the same parties
and have a longitudinal understanding of the case and the best
interests of the individual child involved. Thus, we must defer to
the trial judges who see and hear the parties and can determine
the credibility to be placed on each witness and, premised
thereon, gauge the likelihood of success of the current
permanency plan. Even if an appellate court would have made a
different conclusion based on the cold record, we are not in a
position to reweigh the evidence and the credibility
determinations of the trial court.
In re R.J.T., 9 A.3d at 1190. The Supreme Court noted that, as in the
instant case, the trial court had not itemized its findings with the provisions
of section 6351(f), but had considered those factors. Id. The Supreme
Court found the trial court’s reasons for its conclusion regarding the goal for
the child in that matter to be supported by the record.
Thus, in In re R.J.T., our Supreme Court has instructed that we
cannot find an abuse of the trial court’s discretion where the record supports
the trial court’s decision that a goal change to adoption is “best suited to the
safety, protection and physical, mental and moral welfare of the child.” Id.
at 1190 (citing 42 Pa.C.S.A. § 6351(g)). Here, the record supports the
change of goal to adoption. We will not disturb the trial court’s credibility
determinations and weighing of the evidence.
With regard to the termination of parental rights, Mother and Father
collectively raise four issues:
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I. Whether the trial court erred and abused its discretion by
determining that the best interests of the child would be
served by terminating parental rights where: there is
insufficient evidence that termination would be in the best
interest of the child and there is insufficient evidence of
conduct by the parents that places the health, safety or
welfare of the child at risk.
II. Whether the trial court erred and abused its discretion in
terminating parental rights where there is not clear and
convincing evidence to indicate that: any repeated and
continued incapacity, abuse, neglect and/or refusal of the
parents has caused the child to be without essential
parental care, control or subsistence necessary for the
child’s physical and mental well-being; those alleged
conditions cannot or will not be remedied by the parents;
and that the alleged conditions continue to persist.
III. Whether the trial court erred and abused its discretion in
terminating parental rights of the above-named minor
child, C.T., where no abuse or neglect was clearly alleged
relative to the child.
IV. Whether the trial court erred and abused its discretion in
terminating parental rights of the above-named minor
child, M.T., where parents could not identify injuries that
may have occurred while the child was not under their
care.
Parents’ Brief at 6-7.
As with their goal change issues, Parents’ termination issues are
interrelated and implicate the trial court’s assessment of the sufficiency and
weight of the evidence. We therefore address the issues together.
We review appeals from the involuntary termination of parental rights
according to the following standard:
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[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; [In re]
R.I.S., [___ Pa. ___, ___, 36 A.3d 567, 572 (2011) (plurality
opinion)]. As has been often stated, an abuse of discretion does
not result merely because the reviewing court might have
reached a different conclusion. Id.; see also Samuel Bassett
v. Kia Motors America, Inc., [___ Pa. ___], 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d
630, 634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 608 Pa. 9, 9
A.3d at 1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
Termination of parental rights is governed by section 2511 of the
Adoption Act, which requires a bifurcated analysis:
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Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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 or her 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. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009). Here, the trial court terminated Mother and Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (8), and (b). Decrees, 3/5/14.
With regard to section (a):
§ 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
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and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
***
(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.
23 Pa.C.S.A. § 2511(a)(2) and (8).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
Here, the Children were removed from Mother and Father’s care on
June 22, 2012, when Mother and Father signed a Voluntary Placement
Agreement. The Children have remained in their foster/pre-adoptive
placement. Although the trial court did not enter the termination decrees
until March 5, 2014, after this Court filed its March 4, 2014 memorandum
affirming the goal change to adoption, the trial court based termination on
the evidence presented at the November 21, 2013 hearing. At the time of
the November 21, 2013 hearing, the Children had been removed from the
care of the parents, approximately 17 months had elapsed from the date of
the Children’s removal, and the conditions which led to the removal of the
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Children continued to exist, such that termination of parental rights best
served the needs and welfare of the Children. See 23 Pa.C.S.A. §
2511(a)(2) and (8).
The trial court explained:
We found that [the Agency] met its burden of providing
clear and convincing evidence that grounds for terminating the
parental rights of [Mother and Father] existed under both 23 Pa.
C.S.A. § 2511(a)(2) and (8). …
This case originated because of two (2) separate findings
of abuse relative to [M.J.T.] that occurred when she was in the
exclusive care of the paternal grandparents and/or her parents.
Neither the parents nor the paternal grandparents ever offered
any plausible explanation as to the serious injuries, nor did they
ever seem to appreciate the severe nature of such injuries. The
child abuse investigation concluded with a finding that abuse
occurred relative to the bruising and broken bones by clear and
convincing evidence as a result of a serious injury, as well as a
finding of prima facie evidence that the parents and paternal
grandparents were perpetrators of that abuse due to the fact
that they were the only individuals responsible for the welfare of
the child during the time of the injuries. (RR 4-5; 9/17/12, M.T.
Order of Adjudication, p. 4). This finding was never contested
nor appealed by the parents or paternal grandparents.
[The Agency] provided numerous services to the parents,
including parent counseling and parent education through FICS;
the Family Resource Center Parenting Program, the Parents as
Teachers Program, and Early Intervention. In addition, [F]ather
completed the Men Helping Men Program and [M]other
completed the Women Aware Program and participated in
counseling services with two different counselors. Despite all
such effort by the various service providers, there remained a
consistent and serious concern among those same service
providers relative to the parents’ ability to both identify and
adequately address safety issues. The concern over the parents’
inability to recognize and appreciate safety issues resulted in
FICS providing fully supervised visits, never being able to
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transition to even a level of being “loosely supervised”, much
less unsupervised visits.
We are fully satisfied that [the Agency] provided a
reasonable and good faith effort to reunify these children with
their parents. As determined by Dr. Morford, these parents have
an approximate intellectual capacity of a 9 year old ([Father])
and a 14 year old ([Mother]) respectively. This borderline
mental capacity prevents them from making progress toward
providing a safe environment for their children. This court
believes it to be appropriate to place the children’s needs for
safety and permanency ahead of a parent’s fundamental right to
parent a child if they lack the capacity to do so in a safe,
effective and consistent manner.
… These children have been removed from the care of their
parents, initially by a voluntary agreement with the Agency.
Well more than twelve (12) months or more has elapsed from
the date of such removal and placement and the conditions
which led to the removal or placement of the children continue
to exist. In fact, at the time of the TPR proceeding, the children
had been in placement for seventeen (17) months. As stated
above, we are fully satisfied that a termination of parental rights
is in the best interest of each child.
Trial Court Opinion, 7/22/14, at 12-13.
The record supports the trial court’s reasoning. CYF Caseworker Nikki
Heidler testified to being the Parents’ caseworker since July of 2012. N.T.,
11/21/13, at 3. She confirmed that the Children had been in placement for
seventeen (17) months, and had been in the same foster/pre-adoptive
placement since June of 2012. Id. Ms. Heidler testified that Parents visited
the Children “one time a month” for “an hour and a half fully supervised at
Children and Youth.” Id. at 11. She explained, “In addition to receiving the
FICS services, [Parents] were receiving Parents as Teachers which they had
sought out on their own when the children came into placement. They were
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also receiving Early Intervention for [Father] that was helping with parenting
skills and helping them to help him develop.” Id. at 22. Nonetheless, Ms.
Heidler advocated for termination, and explained in detail and unequivocally:
The children have been in placement for over twelve
months. They have actually been in the same foster home for
seventeen months now. … There still remain unremedied issues
of incapacity, abuse, neglect by the parents. The injuries that
[M.J.T.] suffered were found to be abuse by prima facie
evidence. Those are still unexplained. However, the parents
have consistently reported to the Agency and to service
providers that they or the grandparents were the only people
that could have been caregivers for the children at that time.
The parents have not provided any information or documentation
that they have been addressing their intellectual or functioning
limitations. Those were observed and testified to by [Ms.
McCune from Family Intervention Crisis Services]. They were
also reported by [Dr.] Marilyn Morford. [Dr.] Morford also noted
that in her report that Mom is functioning at the level of a
fourteen year old and Dad is functioning at the level of a nine
year old. Both parents have difficulty understanding the safety
and developmental needs of the children. They have never
alleviated the safety concerns in the past or to proceed
past supervised visitation. When they were visiting with
FICS, they have never made the step to the point where
they could be unsupervised because of safety concerns in
those visits. In fact, in the last month that FICS was
providing services, [Parents] had regressed and there
were numerous issues that had to be addressed by FICS
during the visitations.
***
There has been no remedy to the circumstances that led to
the placement regarding the injuries to [M.J.T.] or to the lack of
supervision of the children.
N.T., 11/21/13, at 13-14 (emphasis supplied).
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Given the foregoing, we find the statutory grounds for termination
under 23 Pa.C.S.A. § 2511(a)(2) and (8) are supported by clear and
convincing evidence of record. In re R.N.J., supra.
With regard to 23 Pa.C.S.A. § 2511(b), the statute 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.
23 Pa.C.S.A. § 2511 (b).
The focus in terminating parental rights under section 2511(a) is on
the parent, but the focus turns to the children under section 2511(b). In re
Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
Under section 2511(b), we examine whether termination of parental rights
would best serve the developmental, physical, and emotional needs and
welfare of the child. In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super.
2005). “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” Id. at 1287
(citation omitted).
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With regard to the needs and welfare analysis, the trial court in this
case observed:
It is also our belief that the record established by clear and
convincing evidence, after taking into consideration the
developmental, physical and emotional needs and welfare of the
subject children, that the termination of the parental rights of
[Mother] and [Father] would best serve the needs and welfare of
the children. It is interesting to note that the parents continue
to argue that they need more time and additional services to
effectuate reunification with their children. Despite the various
services put into effect, the parents have demonstrated an
inability to consistently provide a safe and secure environment
for their children. The children are thriving in their foster home
setting; they refer to their foster parents as “mom” and “dad”;
the foster parents have met all of their needs; and these
children, especially considering their young age, are entitled to
permanency and a safe and stable living environment. The
record also supports that the children have formed a loving and
secure bond with their [foster parents, who are also] their
adoptive resource.
Trial Court Opinion, 7/22/14, at 13.
Again, the record supports the determination of the trial court. For
example, the CYF caseworker, Ms. Heidler, testified that the Children are
“developing very well” and are “very bonded” with their pre-adoptive foster
parents, as well as one another. N.T., 11/21/13, at 4. She explained that
the pre-adoptive foster parents have been meeting the children’s needs and
the children “are thriving and growing and developing in the adoptive
home.” Id. at 14-15. With regard to the parental bond, Ms. Heidler
expressed:
The relationship between the parents, with the children, …
During those visits it appears to be more of a play date. They do
seek out the parents … to meet their needs during that visitation
when they need to go to the bathroom or if they need more food
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or something. However, those visits are frequently a lot of play
time, which it’s a play room. They’re little children. It’s
understandable for the circumstances. Whereas, in my
observations with [the pre-adoptive foster parents], are that
they’re more of a parental figure to the children than the parents
are.
Id. at 18-19.
The above evidence supports the trial court’s consideration of the
developmental, physical, and emotional needs and welfare of the Children in
determining that the Parents’ rights should be terminated pursuant to
section 2511(b). In re C.M.S. supra.
For the foregoing reasons, we affirm the trial court with respect to
both the dependent Children’s permanency placement goal change to
adoption, and the termination of Mother and Father’s parental rights.
Orders affirmed. Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
32