In the Interest of: T.J.J.M., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.J.J.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.M., FATHER :
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: No. 2807 EDA 2017
Appeal from the Order Entered August 4, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000447-2017
IN THE INTEREST OF: T.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: C.M., FATHER :
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: No. 2810 EDA 2017
Appeal from the Order Entered August 4, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002285-2016
BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.
MEMORANDUM BY OTT, J.: FILED MAY 18, 2018
C.M. (“Father”) appeals from the August 4, 2017 decree involuntarily
terminating his parental rights and the order changing the placement goal to
adoption with respect to his female child, T.J.J.M. a/k/a T.M. (“Child”), born
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 Retired Senior Judge assigned to the Superior Court.
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in July of 2016.1 Upon careful review, we vacate and remand in accordance
with the following decision.
Child was born prematurely at 35 weeks gestation, and she had cocaine,
opiates, and benzodiazepines in her system. Trial Court Opinion, 11/27/17,
at 3; N.T., 8/4/17, at 38-39. She remained hospitalized for approximately
three months. N.T., 8/4/17, at 42. Around the time of Child’s birth, the
apartment where Father and Mother resided sustained property damage due
to a flood. Id. at 68-69. Upon Child’s discharge from the hospital in October
of 2016, Father did not have housing. Id. at 68. The court placed Child in
the care of the Department of Human Services (“DHS”). The court adjudicated
Child dependent on October 28, 2016, and assigned her the placement goal
of reunification. DHS did not request a finding that aggravated circumstances
existed as to Father. As such, there is no order attributing aggravated
circumstances to him.
Father was required to satisfy Single Case Plan (“SCP”) goals to attend
supervised visitation at the office of the Community Umbrella Agency (“CUA”),
and to participate in a parenting and housing program. N.T., 8/4/17, at 42.
The CUA scheduled weekly visitation for Father with Child. Id. at 43. Father
attended three supervised visits after Child’s discharge from the hospital in
October 2016, which “went pretty well.” Id. at 43, 69-70. In October 2016,
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1 By separate decree entered on August 4, 2017, the trial court involuntarily
terminated the parental rights of D.C. (“Mother”), who did not appeal.
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subsequent to his supervised visits, Father was incarcerated for a probation
violation. Id. at 43, 101. Father remained incarcerated for two months. Id.
Upon his release, Father was required to reside in a self-help program for 90
days. Id. at 88-89.
The CUA caseworker’s first contact from Father after his release from
prison was on February 23, 2017, when he was in the self-help program. Id.
at 43. By that time, Father had obtained employment, for which he explained
he was on a probationary period for an unspecified amount of time.2, 3 Id. at
92. Father attended two supervised visits at an unspecified time in 2017, but
he did not consistently attend visits thereafter because of his work schedule 4
and his responsibilities and/or restrictions in the self-help program. Id. at 44,
48. Specifically, Father testified that the CUA office was a distance by public
transportation of approximately one hour and 45 minutes from his place of
employment. Id. at 92. Nevertheless, the CUA caseworker testified that
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2 Father introduced into evidence, and the court admitted, a letter from his
direct supervisor at his place of employment, which attested to Father’s
character and work ethic. See Father’s Exhibit 1.
3 Father testified that he began his employment in January. N.T., 8/4/17, at
91. With respect to the time of his shift, Father testified he started working
from “7:00 to 3:30 and then on to 9:00 to 5:30.” Id. at 91-92.
4 Father’s supervised visits were scheduled at the same time as Mother’s visits
every Thursday at 4:00 p.m. N.T., 8/4/17, at 73, 76-78. Father was unable
to arrive for the visits until 7:00 p.m. Id. at 73.
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Father stayed in contact with her on “at least [a] monthly” basis. Id. at 45-
46.
To accommodate his work schedule, the CUA scheduled one Saturday
visit for Father with Child, and, on June 30, 2017, Father confirmed that he
would attend the visit. Id. at 73, 76. However, the visit did not occur because
the foster parent was unavailable to bring Child. Id. at 73, 76. There is no
evidence that the CUA attempted to accommodate Father’s schedule for
supervised visits during April, May, or June of 2017. Id. at 77-81. During
Father’s phone call to the CUA caseworker on June 30, 2017, wherein he
confirmed the Saturday visit, Father informed the caseworker that, effective
July 17, 2017, his work schedule would change, and that he would be available
for supervised visits during the agency’s daytime hours. Id. at 46, 78-79.
With respect to his parenting and housing goals, the CUA referred Father
to the Achieving Reunification Center (“ARC”) on December 14, 2016. Id. at
48. Father reported to ARC for his orientation meeting on December 20, 2016,
but ARC closed his case on February 23, 2017, due to his non-participation.
Id. at 48; DHS Exhibit 7.
On April 19, 2017, DHS filed a petition for the involuntary termination
of Father’s and Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b). On the same date, DHS filed a petition for a goal change
to adoption.
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On August 4, 2017, a hearing occurred on the petitions, during which
DHS requested termination of Father’s parental rights pursuant to Section
2511(a)(1), (2), and (b). DHS presented the testimony of the CUA
caseworker, Amanda Mosley. Father testified on his own behalf. Mother did
not appear for the hearing, but she was represented by counsel. Child was
represented by a Child Advocate and a Guardian Ad Litem (“GAL”).
At the conclusion of the testimonial evidence, counsel for the parties
made closing arguments. See N.T., 8/4/17, at 112-121. The GAL stated, in
part, “I don’t think [Father’s] got [sic] a settled intent to abandon the child
and I think that he’s made some strides towards (inaudible) the dependent
issues which brought the case to [c]ourt. So I’m not sure [DHS has] met its
burden. And I’d hate to lose the possibility of [him as a] reunification
resource. . . .” Id. at 115. Thereafter, the trial court granted the involuntary
termination petition on the record in open court pursuant to 23 Pa.C.S. §
2511(a)(1) and (2). Id. at 126. The court did not address Section 2511(b)
on the record in terminating Father’s parental rights. Further, the court did
not dispose of the goal change petition on the record in open court.
By decree dated and entered on August 4, 2017, the court granted the
involuntary termination petition pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5),
(8), and (b). By separate permanency review order dated August 4, 2017,
the court changed Child’s goal to adoption. Father timely filed a notice of
appeal along with a concise statement of errors complained of on appeal
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pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua
sponte. The trial court filed its Rule 1925(a) opinion on November 27, 2017.5
On appeal, Father presents the following issues for our review:
1. Did the [t]rial [c]ourt commit reversible error, when it
involuntarily terminated Father’s parental rights where such
determination was not supported by clear and convincing
evidence under the [A]doption [A]ct, 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and (8)?
2. Did the [t]rial [c]ourt commit reversible error, when it
involuntarily terminated Father’s parental rights without
giving primary consideration to the effect that the
termination would have on the . . . developmental, physical
and emotional needs of the child as required by the
[A]doption [A]ct, 23 Pa.C.S.A. § 2511(b)?
3. Did the [t]rial [c]ourt commit reversible error, when it
terminated Father’s parental rights and changed the child’s
goal to adoption as substantial, sufficient, and credible
evidence was presented at the time of trial which would
have substantiated denying the [p]etition for [g]oal
[c]hange?
4. Did the [t]rial [c]ourt commit reversible error when it
involuntarily terminated Father’s parental rights and
changed the child’s goal to adoption where Father was not
provided adequate services for a sufficient period of time?
Father’s brief at 4.6
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5The trial court addressed the involuntary termination decree but not the goal
change order in its opinion.
6 Pursuant to the Juvenile Act, 42 Pa.C.S. § 6301, et seq., permanency
planning for dependent children is conducted under the jurisdiction of the
juvenile court. Pursuant to the Adoption Act, 23 Pa.C.S. § 2101, et seq.,
involuntary termination of parental rights is conducted under the jurisdiction
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We begin with Father’s third and fourth issues regarding the goal change
order, which we review for an abuse of discretion. In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010). The Juvenile Act provides that it “shall be interpreted and
construed as to effectuate” its purposes. 42 Pa.C.S. § 6301(b). The Juvenile
Act’s first purpose is “[t]o preserve the unity of the family whenever possible
or to provide another alternative permanent family when the unity of the
family cannot be maintained.” 42 Pa.C.S. § 6301(b)(1).
The Juvenile Act provides that the court shall conduct periodic
permanency hearings “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. § 6351(e)(1). Specifically, Section 6351(f) provides as
follows, in relevant part.
(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.
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of the orphans’ court. Instantly, the Honorable Lyris F. Younge presided over
both matters.
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(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.
...
(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 . . . preserve
and reunify the family need not be made or continue to be made,
whether the county agency has filed or sought to join a petition to
terminate parental rights and to identify, recruit, process and
approve a qualified family to adopt the child. . . .
42 Pa.C.S. § 6351(f)(1)-(6), (9) (emphasis added). “These statutory
mandates clearly place the trial court’s focus on the best interests of the child.”
In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (citation omitted). “Safety,
permanency, and well-being of the child must take precedence over all other
considerations.” Id. (citation omitted) (emphasis in original). Moreover, the
burden is on the child welfare agency “to prove the change in goal would be
in the child’s best interest.” In re D.P., 972 A.2d 1221, 1227 (Pa. Super.
2009).
Instantly, Father asserts that he was “working full time,” which “was the
best way to obtain the stable housing needed for him to be reunited” with
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Child. Father’s brief at 19-20 (citation to record omitted). Father argues that
changing Child’s placement goal to adoption was against the weight of
evidence, as follows.
Despite being in regular contact with the CUA social worker, DHS
and CUA failed to offer Father any visits at a time that was
compatible with his work schedule. Similarly, Father is willing to
attend parenting and housing classes, but was not offered these
services at a time compatible with his work schedule. If DHS and
CUA worked with Father to establish a consistent visitation
schedule and other reunification services that did not conflict with
his work schedule he would be able to complete his goals, reunite
with [Child] and preserve the family.
Id. at 20 (citations to record omitted). For the following reasons, we are
constrained to agree.
The juvenile court’s certified record indicates that the first permanency
review hearing occurred on March 9, 2017, which found minimal compliance
by Father with the permanency plan. Contrary to Section 6351(f)(5), the
order did not include the likely date by which the goal might be achieved. On
April 19, 2017, DHS filed the petition for a goal change, which was
approximately six months after Child was placed. The next permanency
review hearing occurred on June 8, 2017, which maintained the placement
goal of reunification, but made no findings with respect to either parent’s
compliance. Like the first permanency review order, the June 8, 2017 order
did not include the likely date by which the goal might be achieved.
Thereafter, on August 4, 2017, the goal change/termination hearing occurred,
at which time Child was in placement for ten months, less than the statutory
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15 - 22 months provided for in Section 6351(f)(9). The August 4, 2017 goal
change order found that there was no compliance by Mother with the
permanency plan, but omits any finding with respect to Father’s compliance.
During the subject proceedings, Ms. Mosley, the CUA caseworker,
testified that Child was placed because Father did not have housing at the
time of Child’s discharge from the hospital. N.T., 8/4/17, at 68. She testified
that Father was appropriate at the visits she supervised, and that the visits
“went pretty well.” Id. at 69-70. Ms. Mosley testified that Father has been
cooperative with her. Id. at 83.
It is undisputed that Father worked full-time and had maintained
communication with Ms. Mosley regarding scheduling supervised visits. There
is no evidence that Ms. Mosley attempted to accommodate Father’s work
schedule more than once, by scheduling a Saturday visit sometime after June
30, 2017, which never occurred because of the unavailability of Child’s foster
parents. Father testified that his new work schedule gives him off on Fridays.
However, he testified that Ms. Mosley told him that the foster parents are only
available on Mondays – Wednesdays, which are impossible for him due to his
work schedule. Id. at 94-95. Father testified that it would be easier for him
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to visit with Child if she were placed in kinship care with her maternal aunt,
who resides in South Philadelphia.7, 8 Id. at 95, 97.
With respect to his parenting and housing goals, the CUA referred
Father to ARC on December 14, 2016, four months before filing the petition
for the goal change. Father testified that he was in contact with ARC regarding
his work schedule, and that he and the agency tried to work around it but had
been unsuccessful. Id. at 95. Father testified that he is willing to participate
in the required classes. Id.
Ms. Mosley testified that Child currently receives early intervention
services, which includes occupational therapy, and she is under the care of a
medical specialist for gastrointestinal issues. Id. at 40. DHS did not present
any evidence concerning Child’s daily medical needs. As such, DHS did not
focus on whether Father is capable of meeting Child’s medical needs.9
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7 Father testified that he was unaware why Child was not placed with her
maternal aunt. N.T., 8/4/17, at 95. At the conclusion of the testimonial
evidence, the trial court stated that it would be willing to entertain a hearing
on placing Child in kinship care with her aunt. Id. at 128-130.
8There is no record evidence regarding where Child’s foster parents reside.
Importantly, Ms. Mosley testified that they “are older[,] and they are not
willing to adopt.” Id. at 50 (emphasis added).
9 Ms. Mosley provided the only testimony on direct examination regarding
Father’s ability to meet Child’s medical needs, as follows.
Q. And do you believe that [Father] is prepared to provide for
[Child’s] medical needs at this point?
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In sum, the court issued the goal change order when Child had been in
placement for approximately ten months, and no likely date had ever been
set for the achievement of Child’s placement goal. Father participated in three
supervised visits immediately after Child’s placement and before his
incarceration and two visits on an unspecified date after his release from
prison. Upon his release, Father secured full-time employment, and he was
working to obtain housing and be reunited with Child. Father maintained
communication with the CUA caseworker after he secured employment in an
attempt to resolve the conflict between his work schedule and the requisite
supervised visitation. Likewise, Father communicated with ARC in an attempt
to resolve the conflict between his work schedule and the requisite parenting
and housing classes. Finally, the record reveals that Child is not placed with
a pre-adoptive resource, and that the foster parents are limited in their
availability to bring Child to supervised visits. Based on the foregoing, we
conclude that the evidence does not support changing Child’s placement goal
to adoption. Therefore, the trial court abused its discretion in issuing the
order, and we are constrained to vacate.
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A. No.
Q. Has he ever participated in her medical care at this time?
A. Not to my knowledge.
N.T., 8/4/17, at 48.
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It follows that we agree with Father’s first and second issues on appeal,
that the court abused its discretion in terminating his parental rights. We
review these issues according to the following standard.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
In Santosky v. Kramer, 455 U.S. 745, 747-748 (1982), the United
States Supreme Court held, “Before a State may sever completely and
irrevocably the rights of parents in their natural child, due process requires
that the State support its allegations by at least clear and convincing
evidence.” In addition, the Court explained:
The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate
simply because they have not been model parents or have lost
temporary custody of their child to the State. Even when blood
relationships are strained, parents retain a vital interest in
preventing the irretrievable destruction of their family life. If
anything, persons faced with forced dissolution of their parental
rights have a more critical need for procedural protections than do
those resisting state intervention into ongoing family affairs.
When the State moves to destroy weakened familial bonds, it
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must provide the parents with fundamentally fair procedures.
Id. at 753-754.
Instantly, termination of parental rights is governed by Section 2511 of
the Adoption Act, which requires a bifurcated analysis.
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). In
addition, we need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
The relevant sections of the Adoption Act in this case are as follows:
(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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(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
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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 (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. § 2511(a)(1), (2), (5), (8), (b).
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With respect to Section 2511(a)(1), our Supreme Court has held,
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect of termination
of parental rights on the child pursuant to Section 2511(b).
In re Adoption of Charles E.D.M., 550 Pa. 595, 602, 708 A.2d 88, 92 (Pa.
1988). Further,
the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each case
and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted)
(emphasis added).
Our courts have explained that parental duty “is best understood in
relation to the needs of a child.” In re Burns, 474 Pa. 615, 624-625, 379
A.2d 535, 540 (Pa. 1977).
A child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely passive
interest in the development of the child. Thus, this Court has held
that the parental obligation is a positive duty which requires
affirmative performance. This affirmative duty encompasses
more than a financial obligation; it requires continuing interest in
the child and a genuine effort to maintain communication and
association with the child. Because a child needs more than a
benefactor, parental duty requires that a parent ‘exert himself to
take and maintain a place of importance in the child's life.’
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Id. (citations omitted); see also In re C.M.S., 832 A.2d 457, 462 (Pa. Super.
2003), appeal denied, 859 A.2d 767 (Pa. 2004).
To terminate parental rights pursuant to Section 2511(a)(2), the
following factors must be demonstrated: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or
refusal caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.
2003).
To terminate parental rights pursuant to Section 2511(a)(5), the
following factors must be demonstrated: (1) the child has been removed from
parental care for at least six months; (2) the conditions which led to the child’s
removal or placement continue to exist; (3) the parents cannot or will not
remedy the conditions which led to removal or placement within a reasonable
period of time; (4) the services reasonably available to the parents are unlikely
to remedy the conditions which led to removal or placement within a
reasonable period of time; and (5) termination of parental rights would best
serve the needs and welfare of the child. See In re Adoption of M.E.P.,
supra at 1273-1274.
To terminate parental rights pursuant to Section 2511(a)(8), the
following factors must be demonstrated: (1) the child has been removed from
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parental care for 12 months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to exist;
and (3) termination of parental rights would best serve the needs and welfare
of the child. In re Adoption of M.E.P., supra at 1275-1276; 23 Pa.C.S. §
2511(a)(8). “Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In re
A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the 12-month period has
been established, the court must next determine whether the conditions that
led to the child’s removal continue to exist, despite the reasonable good faith
efforts of the child welfare agency supplied over a realistic time-period. Id.
Termination under Section 2511(a)(8) does not require the court to evaluate
a parent’s current willingness or ability to remedy the conditions that initially
caused placement or the availability or efficacy of agency services. In re
Adoption of T.B.B., 835 A.2d 387, 396 (Pa. Super. 2003); In re Adoption
of M.E.P., supra.
Finally, with respect to Section 2511(b), this Court has stated that,
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted). Further, the trial court “must also
discern the nature and status of the parent-child bond, with utmost attention
to the effect on the child of permanently severing that bond.” Id. (citation
omitted). However, “[i]n cases where there is no evidence of any bond
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between the parent and child, it is reasonable to infer that no bond exists.
The extent of any bond analysis, therefore, necessarily depends on the
circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-763
(Pa. Super. 2008) (citation omitted).
Initially, Father argues that the court did not intend to terminate his
parental rights pursuant to Section 2511(a)(5) and (8) because it granted the
involuntary termination petition on the record in open court pursuant to
Section 2511(a)(1) and (2) only. N.T., 8/4/17, at 126. In its appellee brief,
DHS agrees. DHS brief at 8-9. The record confirms that, although DHS filed
the petition under Section 2511(a)(1), (2), (5), and (8), it sought termination
under (a)(1) and (2) during the hearing, which the trial court granted on the
record in open court. N.T., 8/4/17, at 114, 126. Because DHS did not proceed
under Section 2511(a)(5) and (8), we conclude that the trial court erred to
the extent it terminated Father’s parental rights pursuant to these
subsections.
With respect to both Section 2511(a)(1) and (2), Father argues, in part:
DHS filed a termination petition only six (6) months after [Child]
came into care. For four (4) of those six months, Father was not
offered any visits that did not conflict with his work schedule.
Between the time the termination petition was filed and the time
of the termination hearing, Father was offered one Saturday visit.
. . . Father confirmed his attendance, but the visit was ultimately
cancelled due to the foster family’s schedule. Similarly, DHS
offered no evidence that Father was offered parenting and housing
class at a time that did not conflict with his work schedule.
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DHS’s failure to provide Father with visits with [Child] and other
necessary reunification services before filing for termination of his
parental rights violates his due process rights.
Father’s brief at 13-14 (citations to record omitted).
The trial court reasoned on the record in open court, “I did have an
opportunity to receive testimony from [Father], not that I don’t find him
credible, but I find his testimony to be very telling.” N.T., 8/4/17, at 122.
The court emphasized Father’s acknowledgment that he relied on Mother with
respect to learning how Child was doing. Id. at 122-123. The court stated,
“I don’t know why [Father] would allow mom to be the filter by which [he]
kept in contact with [Child]. Given that mom has had challenges and mom’s
issues are what really brought [Child] into care. Father was aware of it. He
said he was working prior to, but as soon as [Child] was born positive for
[illicit] substances, [F]ather was on notice at that point that maybe mom was
not going to be a viable resource in terms of parenting for [Child].” Id. at
123. The court reasoned that, because Father communicated with Mother
about Child’s medical condition, he did not “demonstrate that he could
independently take care of this child.” Id. at 123. Indeed, in its Rule 1925(a)
opinion, the trial court found, “Father failed to demonstrate he was capable of
being a single parent of [Child] and depended on [Child’s] [m]other.” Trial
Court Opinion, 11/27/17, at 4 (citation to record omitted).
Father indeed testified that he learned about Child’s medical problems
by talking to Mother. N.T., 8/4/17, at 106. However, pursuant to the
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applicable law relating to Section 2511(a)(1), the trial court was required to
consider Father’s explanation for his conduct, which he expressed as follows
on direct examination:
I’m just asking for like a fair shot and like work with me.
Sometimes, like, I understand people’s schedules get messed up.
. . . Don’t work against me. Ms. [Mosley] . . . [w]e don’t
communicate, because we used to communicate through
[Mother]. And maybe that’s my fault that I used to communicate
through the child’s mother. But I thought she was on the same
path that I want to be on, you know what I’m saying? But now I
realize today, . . . I got to do it on my own. . . .
Id. at 97-98. We conclude that the trial court in this case abused its discretion
in mechanically applying the six-month statutory provision under Section
2511(a)(1) and not considering Father’s explanation for his conduct. See In
re N.M.B., supra. We conclude, in light of the totality of the evidence, that
Father’s conduct does not clearly warrant the termination of his parental rights
pursuant to Section 2511(a)(1).
With respect to Section 2511(a)(2), Father argues that, “[i]f DHS and
CUA worked with Father to establish a consistent visitation schedule and other
reunification services that did not conflict with his work schedule[,] he would
be able to complete his goals and reunite with [Child].” Father’s brief at 15.
We conclude that the foregoing testimonial evidence did not demonstrate that
the causes of Father’s parental incapacity cannot or will not be remedied.
Therefore, we conclude that the court abused its discretion in terminating
Father’s parental rights pursuant to Section 2511(a)(2).
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Further, we reject the contention of DHS in its appellee brief that our
Supreme Court’s decision in In the Interest of D.C.D., 105 A.3d 662 (Pa.
2014) defeats Father’s argument that the court abused its discretion in
terminating his parental rights because DHS did not provide reasonable efforts
to reunify him with Child. See DHS’s brief at 12-13. The D.C.D. Court held
that this Court erred in reversing the trial court’s termination of the father’s
parental rights pursuant to Section 2511(a)(2) and (b) as a result of the
agency’s failure to provide reasonable efforts to enable the father to reunify
with his child. The Court held that there is no Pennsylvania or federal provision
“that requires delaying permanency for a child due to the failure of an agency
to provide reasonable services, when the court has otherwise held that
grounds for termination have been established and the court has determined
that termination is in the best interests of the child by clear and convincing
evidence.” D.C.D., 105 A.3d at 676. The D.C.D. Court concluded:
Applying this standard to the case at bar, the trial court did not
abuse its discretion in holding that [the agency] established
grounds for termination of [the f]ather’s parental rights by clear
and convincing evidence based on [the f]ather’s continued
incapacity to care for child. Moreover, the trial court recognized
for purposes of subsection 2511(b) that a parent’s continued
incarceration may factor into a determination of the child’s best
interests. In this case, the court did not abuse its discretion in
determining that [the c]hild’s best interests will be served by
terminating [the f]ather’s parental rights given the absence of
a bond with [the f]ather, [the f]ather’s expected incarceration
until [the c]hild is at least seven and likely longer, and her strong
bond with her foster family with whom she has lived nearly all her
life and who has indicated a desire to adopt her.
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Id. at 677 (citation omitted). Instantly, we have concluded that DHS failed
to establish by clear and convincing evidence that Father’s parental incapacity
cannot or will not be remedied. To the extent that DHS did not provide Father
with ample time and opportunity to participate in supervised visitation and
parenting and housing classes at ARC, D.C.D. does not control in this case.
Based on our disposition that the court abused its discretion in
terminating Father’s parental rights pursuant to Section 2511(a), we need not
consider the decree pursuant to Section 2511(b). See In re L.M., supra
(explaining, “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.”)
Accordingly, we vacate the decree involuntarily terminating Father’s parental
rights and remand for entry of an order denying the involuntary termination
petition.
Goal change order vacated. Case remanded for entry of a new
permanency order maintaining Child’s placement goal of reunification and for
further permanency review hearings in juvenile court. Involuntary
termination decree vacated. Case remanded for entry of an order denying the
involuntary termination petition.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/18
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