In the Interest of: J.A., Appeal of: M.R. ( 2019 )

J-S31044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: M.R., NATURAL MOTHER :
:
:
:
:
: No. 280 WDA 2019
Appeal from the Order Entered January 16, 2019
In the Court of Common Pleas of Lawrence County Orphans' Court at
No(s): 20011 of 2017, 0C -A,
CP-37-DP-0000095-2013
IN THE INTEREST OF: K.M.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.R., NATURAL MOTHER :
:
:
:
: No. 281 WDA 2019
Appeal from the Order Entered January 16, 2019
In the Court of Common Pleas of Lawrence County Orphans' Court at
No(s): 94 of 2013, DP, 20012 of 2017,
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 06, 2019
M.R. (“Mother”) appeals from the order terminating her parental rights
to K.M.R. and J.A. (“Children”). We conclude the trial court did not abuse its
discretion and, therefore, affirm.
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The trial court set forth the factual and procedural history, which we
adopt and incorporate herein. See Trial Court Pa.R.A.P. 1925(a) Opinion, filed
Mar. 6, 2019, at 1-3; Trial Court Opinion, filed January 16, 2019, at 1-24.
By way of background, K.M.R. (d.o.b. November 6, 2001) and J.A.
(d.o.b. January 18, 2006) are the daughters of Mother and C.A. (“Father”).1
Children were first adjudicated dependent in November 2013. Prior to that,
Children had been living with Mother in a trailer on maternal grandfather’s
property. Father was intermittently present in the household but perpetrated
recurring acts of domestic violence against both Mother and K.M.R., fueled by
his heavy use of alcohol and drugs. On November 2, 2013, Father’s severe
beating of Mother, which required Mother to be flown via helicopter to
Pittsburgh for medical treatment, lead to the emergency removal of the
Children from the household. Children witnessed Father’s attack on Mother
and ran to get help. When the Pennsylvania State Police responded to Mother’s
residence, they observed deplorable and unsanitary conditions.
The Children have been in foster care since their initial dependency
adjudication in 2013, and have remained with the same foster parents, who
are an adoptive resource for the Children. The trial court conducted numerous
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Father has also filed an appeal in this Court (docketed in this Court at 282
and 283 WDA 2019) regarding Children.
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permanency review hearings and issued the last permanency review order on
September 17, 2018.2 In the interim, in April 2017, Children and Youth
Services (“CYS”) filed motions to change Children’s goal from reunification to
adoption and to terminate the parental rights of Mother and Father. Over a
16-month period, the trial court conducted multiple hearings regarding
termination/goal change at which Children’s therapist, counselor,
psychologist, and CYS caseworkers testified. The trial court also heard
testimony from Mother, Father, and K.M.R.
Ultimately, the trial court concluded that CYS had established, by clear
and convincing evidence, that grounds for termination of Mother’s rights
existed and, on January 16, 2019, issued an order terminating Mother’s
parental rights with a comprehensive opinion in support thereof. Mother filed
a timely Notice of Appeal and Pa.R.A.P. 1925(b) statement and the trial court
submitted a Pa.R.A.P. 1925(a) opinion.
Mother raises the following issues on appeal:
1. Whether the Children and Youth Services Agency
(Agency) failed to make children available to the Court as
required and as mandated by the Child Protective Services
Laws (CPSL)[?]
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2 We note that Mother filed an appeal from the September 17, 2018
dependency order. In re Interest of J.A./K.R., 1451 WDA 2018, 1452 WDA
2018. In light of the instant appeal, Mother’s dependency appeal was
continued for consideration with this appeal. Here, we affirm the termination
of Mother’s parental rights, therefore Mother’s challenges to the dependency
proceedings have been rendered moot. We therefore will not address them
further. See Order, 1451 WDA 2018, 1452 WDA 2018.
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2. Whether the Court erred in determining that although
[Mother] had exceeded what was requested of her and then
determined that, although she completed all services
required by the Agency, the Court failed to apply the law to
the facts of the case and return [Children] to [Mother][?]
3. Whether the Agency failed to provide any type of
reunification counseling or generate a service plan to reunify
[Children] with [Mother][?] The agency withheld [Children]
and appropriate reunification services after all other
required services were completed by [Mother]. The Court
failed to apply the law to the facts on this matter.
4. Whether the Agency failed to provide visits between
[Mother] and Children, based solely on the alleged belief
that one of the two Children voiced her desire to not see
[Mother][?] The agency failed to provide competent
evidence that there was any basis to deny Mother visitation.
The Court failed to apply the law to the facts on this matter.
5. Whether the Court failed to take testimony from
[Children] regarding their individual desire to reunify with
[Mother] thereby requiring the Court to decide as to
[Children] based upon the unsubstantiated testimony of one
child, while the other was withheld from the Court without
justification[?]
6. Whether the Agency failed to provide any competent
testimony that the best interests of [Children] were served
by termination of parental rights[?]
7. The Court failed to find that the Agency had provided any
competent testimony that [Children] were bonded with the
foster family or that they did not have a bond with Mother.
In fact, the Court was incapable of making any
determination about the child who was never presented for
testimony or evaluation by the Court.
8. Whether the Court erred by issuing a final order on the
Involuntary Termination rather [than] staying the matter
pending the outcome [of] the Superior Court Dependency
Appeal in this case[?]
9. Whether the evidence was sufficient to determine that
Mother suffered from an incapacity that she could not
overcome and permit [Children] to return home[?]
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10. Whether the Court misconstrued the testimony of the
expert psychologist, Dr. Gallo, by claiming that he was not
qualified to render an opinion on Mother’s parental capacity
when, indeed, his testimony was that Mother had no
apparent impediments to her capacity to parent[?]
11. Whether the Court erred in determining that Mother
failed to complete a second parental capacity evaluation
when the record indicated that she did and that the Agency
refused to accept the second evaluation because it was done
by an independent provider[?]
Mother’s Br. at vi-vii.
When reviewing orders terminating parental rights, we “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). If the record supports those findings, we then review the decision “to
determine if the trial court made an error of law or abused its discretion.” Id.We will reverse a decision “for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.The Pennsylvania Supreme Court has explained the reason for applying
an abuse of discretion standard to termination decisions:
[U]nlike 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. 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.
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Id. at 826-27 (citations omitted).
A trial court may terminate parental rights only after finding grounds for
termination existed under Section 2511(a) and that termination is in the
child’s best interest under Section 2511(b). Here, we conclude that the trial
court properly terminated Mother’s parental rights pursuant to Section
2511(a)(2).3
Section 2511(a)(2) provides:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
...
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
23 Pa.C.S.A. § 2511(a)(2).
To terminate parental rights pursuant to Section 2511(a)(2), the moving
party must produce clear and convincing evidence of the following: “(1)
repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the child to be without
____________________________________________
3 We note that CYS also sought to terminate Mother’s parental rights pursuant
to subsection (a)(8). However, the trial court specifically found that Mother’s
rights could not be terminated under that subsection because Mother had
successfully remedied the physical conditions which initially triggered
Children’s removal from her care.
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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.” In re Adoption of M.E.P., 825 A.2d
1266, 1272 (Pa.Super. 2003).
If the trial court has concluded that a parent’s parental rights should be
terminated under Section 2511(a), then the court must determine whether,
considering the child’s developmental, physical, and emotional needs and
welfare, termination is in the best interests of the child. 23 Pa.C.S.A. §
2511(b); S.P., 47 A.3d at 830. In conducting this analysis, the court should
examine the emotional bond between parent and child, with close attention to
the effect on the child of permanently severing any such bond.
For ease of disposition, we will address Mother’s issues grouped by the
overarching issues they address, as the trial court did in its Rule 1925(a)
opinion. In both her first and fifth issue, the crux of Mother’s arguments lie in
her contention that CYS did not properly provide the testimony of both
Children. In particular, Mother points out that J.A. never testified during the
termination proceedings at all and K.M.R. did not testify during the most
recent proceedings.
Mother’s first and fifth issues lack merit. “[T]he admission and exclusion
of evidence are within the sound discretion of the trial court and will not be
reversed on appeal absent an abuse of discretion.” In re R.T., 778 A.2d 670,
683 (Pa.Super. 2001) (internal quotation marks and citation omitted).
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Currently, this Court does not mandate that “an abused or neglected child [be
forced by his or her natural parent] to testify in an involuntary termination
proceeding.” In re B.L.L., 787 A.2d 1007, 1011 (Pa.Super. 2001) (citation
omitted). Accordingly, we conclude that the trial court did not abuse its
discretion by determining that good reason excused Children’s testimony
where Children’s legal counsel was present. See Trial Court’s Rule 1925(a)
Opinion at 8-11. Moreover, as detailed below, even in the absence of J.A.’s
testimony, we conclude that the trial court had sufficient evidence to support
the termination of Mother’s parental rights.
In her second, sixth, seventh, ninth, and tenth issues, Mother presents
the overarching argument that the evidence was insufficient to terminate her
parental rights pursuant to either Section 2511(a)(2) or Section 2511(b). She
specifically cites to her successful efforts at remedying her home and her
general compliance with her family service plan (“FSP”). She also points to
the testimony of her expert, Dr. Gallo, who testified that Mother had no
apparent impediments to her ability to parent Children.
However, the trial court concluded that ample evidence supported the
termination of Mother’s parental rights under Section 2511(a)(2) because the
testimony of both fact and expert witnesses at trial established that Mother
has “extreme and sustained difficulties in emotionally relating to children.”
Trial Court Rule 1925(a) Opinion at 14. The trial court also noted a
“notice/demand” letter Mother sent to the court wherein she demands the
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return of her “property,” i.e. Children. See id. Further, the court properly
emphasized that ample evidence supported the conclusion that Children’s
interests would be best served by the termination of Mother’s parental rights,
as required under Section 2511(b). Id. at 13-15. To this end, the court
explained that multiple witnesses detailed Children’s toxic bond with both
Mother and Father and Children’s strong desire to remain with their foster
parents who are an adoptive resource for Children. Id. Further, the trial court
aptly addressed Mother’s contention regarding the weight accorded to her
expert, Dr. Gallo, by noting that Dr. Gallo had never observed Mother interact
with Children. Id. According, we conclude that the trial court properly
determined that sufficient evidence supported the termination of Mother’s
parental rights under Sections 2511(a)(2) & (b) and affirm on the basis of the
court’s thorough reasoning. See Trial Court’s Rule 1925(a) Opinion at 12-15;
Trial Court’s January 16, 2019 Opinion at 31-38.
Turning to her third and fourth issues on appeal, Mother claims that CYS
failed to make reasonable efforts to reunify the family by ceasing to require
Children to visit with her. She argues that Children’s desire to stop her
visitation was not a sufficient reason to halt all visits. In support, she points
to case law that requires the opportunity for visitation absent a severe threat
to the child at issue. See In re C.J., 729 A.2d 89, 94 (Pa.Super. 1999) (stating
that as long as a child’s goal remains reunification, visitation should continue
unless a grave threat to the child exists).
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However, the trial court properly explained that Mother’s visitation with
Children was stopped due to Mother’s own alleged misconduct during visits
and the attendant self-destructive and self-harming behavior specifically
reported by K.M.R. See Trial Court’s Rule 1925(a) Opinion at 20. We conclude
that the trial court permissibly declined to force Children to continue visitation
under such circumstances, and affirm pursuant to the trial court’s reasoning.
As referenced above, Mother also appealed the trial court’s September
17, 2018 dependency order. However, the trial court declined to stay the
instant termination proceedings in light thereof. In her eighth issue, Mother
contends that the trial court’s denial of her Motion to Stay constituted an abuse
of discretion because many issues she intended to raise in the dependency
appeal could prove dispositive for termination/goal change proceedings. In
response, the trial court cited authorities, inter alia, Pa.R.A.P. 1701(c), for the
proposition that proceedings should only be stayed pending appeal when the
same claims are at issue in both the appellate and trial court proceedings.
Here, the termination/goal change proceedings concerned different issues
than those relevant to the dependency proceedings. Therefore, we concur with
the trial court’s decision to dismiss Mother’s bid to stay the termination/goal
change proceedings. See Trial Court’s Rule 1925(a) Opinion at 26-27.
Pursuant to the foregoing, and after reviewing the trial court’s
comprehensive opinions, the record, the parties’ briefs, and relevant law, we
see no abuse of discretion or error of law. Accordingly, we affirm based on the
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well-reasoned opinions of the Honorable John W. Hodge, which we adopt and
incorporate herein.
Order affirmed.
Judge Stabile joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2019
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Circulated 07/24/2019 10'47 !
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IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS
LAWRENCE COUNTY, PENNSYLVANIA
K.M.R. NO. 94 OF 2013, DP;
NO. 20012 of 2017, OC-A
J.L.A. NO. 95 OF 2013, DP;
NO. 20011 of 2017, OC-A
OPINION
Hodge, J. March 6, 2019
Presently before the Superior Court are the appeals of M.R. (Mother) and
C.A. (Father) (collectively, Parents), the natural parents of K.M.R. and J.L.A.
(Children). to this-Court's Order of January 16, 2019, granting Lawrence County
Children and Youth Services' (CYS) Petitions for Involuntary Terminations of Parental
Rights and Motions for Goal Change from reunification to adoption. For the reasons
set forth in this opinion, issued pursuant to Pa. RAP. 1925(a). we respectfully request
that the Superior Court affirm our Order and dismiss this appeal.
PROCEDURAL HISTORY
The procedural history of these cases, which ultimately stretches back to
November 2013, is recounted in more detail in the Opinion attached to the January 16.
2019 Order of Court, which we incorporate herein by reference and for continuity's
sake republish below:
Children were first taken into emergency care by an order of this Court dated
November 4, 2013. CYS then filed a dependency petition on November 18,
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JUDICIAL 2013, and three days later, this Court adjudicated both Children dependent,
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pursuant to the Juvenile Acr(42 Pa: c.s�-§§6301 et seq.), based on evidence
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presented that Father had physically assaulted Mother with Children present
and that Mother's home had deplorable conditions. Accordingly, by
dispositional order dated January 5, 2014, this Court assigned legal and
physical custody of Children to CYS. Since the initial dependency finding, this
Court has conducted permanency review hearings approximately every six
months as required by the Juvenile Act and has continued to find Children
dependent, and their placement in foster care appropriate, as documented by
each permanency review order to date and including the most recent one
issued on September 17, 2018.1
Following several years of dependency hearings, CYS presented the Motions
for Goal Change and Termination Petitions on April 11, 2017, alleging that
Mother's and Father's parental rights should be terminated pursuant to 23 Pa.
C.S. §2511(a)(2) and (8). This Court conducted the following hearings, and the
following witnesses testified, over a sixteen-month period and formed the bulk
of the factual record underlying this opinion:
1. August 8 and 9, 2017; K.M.R. and therapist Tanya Stahlman;
2. September 26, 2017; Ms. Stahlman (continued) and counselor Brian Dick;
3. March 28 and 29, 2018; psychologist Dr. Fred Gallo and CYS caseworker
Amber Pieri;
4. June 26, 2018; Ms. Pieri (continued) and testimony from Father and Mother;
5. August 27, 2018; CYS caseworker Kristen Pauline.
Besides the considerable evidence accumulated at these hearings, all parties
stipulated at the first hearing (August 8, 2017) to incorporate the factual record
of the dependency cases into the record of the Termination Petitions and Goal
Change Motions. Following the close of evidence on August 27, 2018, this
Court permitted all parties to file proposed findings of fact and conclusions of
law, which were received by October 31, 2018.
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Mother timely appealed these permanency review orders to the Superior Court on October 5, 2018,
which are currently docketed aU4:&°fF1nd;J452 WDA 2018 (hereinafter, Dependency Appeals).
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On January 16, 2019, upon consideration of the parties' submissions,
applicable law, and the evidentiary record, this Court issued an Opinion with findings
of fact and conclusions of law in support of the Order granting CYS' Termination
Petitions and Motions for Goal Change. Once again, those findings of fact and
conclusions of law, as set forth in the January 16, 2019 Opinion and Order of Court,
are incorporated herein by reference. On February 14, 2019, Mother and Father each
filed timely notices of appeal and concise statements of matters complained ofon
appeal.
MATIERS COMPLAINED OF ON APPEAL
Both Mother and Father have filed timely Notices of Appeal and Concise
Statements of Matters Complained of on Appeal. The issues they complain of are as
follows:
A. Mother
1. Whether the Children and Youth Services Agency [CYS] failed to make
[Children] available to the Court as required and mandated by the Child Protective
Services Laws (CPSL}.
2. Whether the Court erred in determining that [Mother] had exceeded what
was requested of her and then determined that [Mother], although she completed au
services required by [CYS], and thereby, the Court failed to apply the law to the facts
of the case and return [Children] to the mother.
3. Whether [CYS] failed to provide any type of reunification counseling or
generate a service plan to reunify[Children] with [Mother]. [CYS] withheld the children
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and appropriate reunification services after all other required services were completed
by [Mother]. The Court failed to apply the law to the facts on this matter.
4. Whether [CYS] failed to provide visits between [Mother] and children, based
solely on the alleged belief that one of the two children voiced her desire to not see
[Mother]. [CYS] failed to provide competent evidence that there was any basis to
deny mother visitation. The Court failed to apply the law to the facts on this matter.
5. Whether the Court failed to take testimony from both children regarding their
individual desire to reunify with [Mother] thereby requiring the Court to make a
decision as to both children based upon the unsubstantiated testimony of one child,
while the other was withheld from the Court without justification.
6. Whether [CYS] failed to provide any competent testimony that the best
interests of the children were served by termination of parental rights.
7. The Court failed to find [CYS] had provided any competent testimony that
the children were bonded with the foster family or that they did not have a bond with
mother. In fact, the Court was incapable of making any determination about the child
who was never presented for testimony or evaluation by the Court.
8. Whether the Court erred by issuing a final order on the Involuntary
Termination rather than staying the matter pending the outcome of the Superior Court
Dependency Appeal in this case.
9. Whether the evidence was sufficient to determine that mother suffered from
an incapacity that could not overcome and permit the children to return home.
10. Whether the Court misconstrued the testimony of the expert psychologist,
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JUDICIAL Dr. Gallo, by claiming that he was not qualified to render an opinion on mother's
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parental capacity when, indeed, the testimony was that mother had no apparent
impediments to her capacity to parent.
11. Whether the Court erred in determining that mother failed to complete a
second parental capacity evaluation where the record indicated that she did and that
[CYSJ refused to accept the second evaluation because it was done by an
independent provider.
B. Father
1. Whether [CYS] failed to make children available to the Court as required
and mandated by the Child Protective Services Laws (CPSL).
2. Whether the Court failed to apply the law to the facts of the case and
return the children to the father.
3. Whether [CYS] failed to provide any type of reunification counseling or
generate a service plan to reunify the children with [Father]. [CYS] withheld the
children and appropriate reunification services in an attempt to reunify the children
with father, pursuant to the oriqlnal goals of the Family Service Plan. The Court failed
to apply the law to the facts on this matter.
4. Whether [CYS] failed to provide visits between [Father] and children to
allow them to develop and foster a relationship with [Father] following his release from
incarceration. [CYS] failed to provide competent evidence that there Was any basis to
refuse or otherwise deny father visitation. The Court failed to apply the law to the
facts on this matter.
5. Whether the Court failed to take testimony from both children regarding
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JUDICIA,L their individual desire to reurJify_ w(th.[Father] thereby requiring the Court to make a
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decision as to both children based upon the unsubstantiated testimony of one child,
while the other was withheld from the Court without justification.
6. Whether [CYS] failed to provide any competent testimony that the best
interests of the children were served by termination of parental rights.
7. The Court failed to find that [CYS] had provided any competenttestimony
that the children were bonded with the foster family or that they did not have a bond
with father. In fact, the Court was incapable of making any determination about the
child who was never presented for testimony or evaluation by the Court.
8, Whether the Court erred by issuing a final order on the Involuntary
Terminations rather than staying the matter pending the outcome of the Superior
Court Dependency Appeal fiied by mother in this case.
9. Whether the Court committed reversible error by determining that he was
not capable of proper parenting when, in fact, he was never subject to the parental
capacity examination to determine his fitness to properly parent the children.
10. Whether the Court committed reversible error by finding that Petitioner
failed to timely complete the requirements established by his family service plan when
the lack of services made it impossible for [Father] to comply. Specifically, while
[Father] was required to complete a barterer's program, no such program was
available through any service agency in Lawrence County and, therefore, the failure to
complete this program was beyond [Father's] control and should not serve as a basis
for the termination of his parental rights.
While Mother and Father each raise some unique questions on appeal,
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generally their Concise �t.l?tem.e_nts feature many similar or outright identical issues;
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Accordingly, for purposes of this Opinion, Mother's and Father's issues will be
organized and divided into the following five categories of analysis:
• I: Failure to Have Children Appear in Court or Take Their Testimony (Mother's
and Father's points 1 and 5).
• 11: Lack of Competent Testimony or Other Evidentiary Issues (Mother's and
Father's 6 and 7; Mother's 9 and 10).
• 111: Issues with the Reunification Plan or Provision of its Services (Mother's 3,4
and 11; Father's 3,4,9 and 10).
• IV: Failure to Apply the Applicable Law (Mother's and Father's 2).
• V: Failure to Stay Termination Pending Dependency Appeals (Mother's and
Father's 8).
DISCUSSION
Our Supreme Court has set forth the appellate standard of review in termination
of parental rights cases as follows:
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." In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012). "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. "A decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or
ill-will." Id. The trial court's decision, however, should not be reversed merely
because the record would support a different result. Id. at 827. We have
previously emphasized our deference to trial courts that often have first-hand
53flD observations of the parties spanning multiple hearings.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013),
Appellate courts review goal change orders in an identical matter by also
employing an abuse of discretion standard. In re R.M.G., 997 A.2d 339, 345 (Pa.
Super. 2010).
I. Failure to Have Children Appear in Court or Take Their Testimony
In each of their respective concise statements at Nos. 1 and 5, both Mother and
Father contend that CYS failed to make Children available to this Court as required by
the Child Protective Services Laws and thatthis Court erred by failing to take
testimony from both Children regarding their indiviqual wishes for reunification. With
respect to.the Child Protective Services Laws (CPSL) that Mother and Father both
cite, Mother and Father are correct that there is a body of law known in this
Commonwealth under that name. 23 Pa. C.S. §§6301-6386. However, these statutes
· are not generally concerned with dependency and termination cases but rather have a
purpose described by the Supreme Court as follows:
The legislature sought to encourage greater reporting of suspected child abuse
in order to prevent further abuse and to provide rehabilitative services for
abused children and their families. The [CPSLJ also establishes a statewide
central registry for the maintenance of indicated and founded reports of child
abuse. as identifying perpetrators ofabuse serves to further protect children.
Recognizing that identifying someone as a child abuser can profoundly impact
that person's reputation, the release of such information is advocated only in
certain limited venues. [Reports] of indicated and founded abuse identifying the
perpetrator can be released to law enforcement, social work agencies,
employers in child care services and other related venues.
53RD
JUDICIAL
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LAWRENCE COUNTY
PENNSYLVA.NIA
8
G.V. v. Department of Public Welfare, 91 A.3d 667, 670-71 (Pa. 2014) (quoting
P.R. v. Department of Public Welfare, 801 A.2d 478, 483 (Pa. 2002)).
Indeed, the statute itself uses nearly identical language in expressing its
purpose to "encourage more complete reporting of suspected child abuse" and to
enhance the capability of each county to investigate and prosecute suspected abusers
while protecting and rehabilitating affected children. 23 Pa. C.S. §6302(b). While
there are some intersections between the CPSL and dependency/termination issues,
those connections are irrelevant to the case at bar. See, e.g. 23 Pa. C.S. §§6339,
6341 (d), 6375(k). Moreover, the only section directly dealing with evidentiary issues,
23 Pa. C.S. §6381, has clear language that does not specify any requirement that
children must be made available to the Court by a child services agency, and we will
not read such a provision into the law at this time. See 1 Pa. C.S. §1921 (b). In short,
there is simply no applicable mandate in the CPSL regarding making children
available to the court to which CYS failed to adhere at the termination/dependency
proceedings.
Because this case is a blend of dependency and termination issues, it is
appropriate to evaluate the rules each of these types of proceedings has regarding the
presence and testimony of the children involved. For dependency proceedings, the
starting point is Pa. R.J.C.P. 1128(A), which states that generally "all parties shall be
present at any proceeding" unless certain exceptions apply. Among those exceptions
is that "the court may proceed in the absence of a party upon good cause shown
except that in no case shall a hearing occur in the absence of a child's attorney. lf a
.SJRD
JUDICIAL child has a guardian ad.litem and J�g�l counsel, both attorneys shall be present." Pa.
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R.J.C.P. 1128(8)(1 ). After first reiterating that a proceeding is never to move forward
"in the absence of the child's attorney," the comment to the rule further explains that
while "a child should appear in court" unless good cause is shown, it is up to the
court's discretion whether to proceed "if the court finds that a party has received
proper notice of the hearing and has willfully failed to appear." Pa. R.J.C.P. 1128 cmt.
In short, Pa. R.J.C.P. 1128 imposes a general requirement that all parties to a
dependency case should be present for all proceedings but also permits absences for
good cause that are left to the court's discretion.
Also pertinent to dependency hearings are several provisions of the Juvenile
Act 42 Pa. C.S. §6351 (e)(1) (emphasis added) states that:
In any permanency hearing held with respect to the child, the court shall
consult with the child regarding the child's permanency plan, including
the child's desired permanency goal, in a manner appropriate to the
child's age and maturity. If the court does not consult personally with the
child, the court shall ensure that the views of the child regarding the
permanency plan have been ascertained to the fullest extent possible
and communicated to the court by the guardian ad /item ...
The court is also required to consult with the affected child as to his/her desired
permanency goal in the very narrow circumstance that the court orders the Child to be
placed into another planned permanent living arrangement. 42 Pa. C.S,
§6351 (f.1)(5)(iv). Lastly, the Juvenile Act provides that "[upon] the application of [any
party to dependency proceedings], the court, master, or the clerk of court shall issue,
or the court or master may on its own motion issue, subpoenas requiring the
attendance and testimony of witnesses ... " 42 Pa. C.S. §6333(a).
531S!tJ
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In answering the question of whether children shall testify at involuntary
termination proceedings, the Superior Court has held that "there is no statutory
requirement nor is there any Pennsylvania appellate decision which permits or
requires the testimony or preference by the child to be placed on the record as an
integral part of a termination proceeding." In re B.L.L., 787 A2d 1007, 1014 (Pa.
Super. 2001) (emphasis added). Indeed, the Superior Court had already reached an
identical result five years earlier, noting the lack of a "judicial decision, statute or
constitutional provision which would entitle a natural parent to force an abused child to
testify in an involuntary termination proceeding. We decline to create any such
requirement." In re Child' M., 681 A2d 793, 798.(Pa. Super. 1996). Rather, at
contested termination proceedings, the child has an attorney to represent his/her legal
interests and a guardian ad !item to advocate for his/her best interests.2 In re L.8.M.,
161 A.3d 172, 175 (Pa. 2017); In re T.S., 192 A.3d 1080 (Pa. 2018); 23 Pa. C.S.
§2313(a). 3 It is the job of these professionals; not the child, to convey the child's
preferences to the court with respect to the potential terminations.
Turning to the case at bar, it is first clear that any reliance Mother and Father
place on the CPSL are misplaced, for those statutes are largely distinct and absent
2
"'Legal interests' denotes that an attorney is to express the child's wishes to the court regardless of
whether the attorney agrees with the child's recommendation. 'Best interests' denotes that a guardian
ad litem is to express what the guardian ad litem believes is best for the child's care, protection, safety,
and wholesome physical and mental development regardless of whether the child agrees." Pa. R.J.C.P.
1154 cmt.
3 The "continuing viability" of the hardline rule set forth in B.L. L. prohibiting the use of a child's testimony
at termination of parental rights hearings was recently called into question by Justice Wecht ofthe
Pennsylvania Supreme Court, who argued that.B.t.L should be reevaluated "in light of L.B.M. and T.S."
53RD
and in consideration of the value such testimony could have in clarifying any conflicts that may arise
JUDICIAL
DISTRICT
between the child's best and legal interests'.: lh'terest of J.C.F., 199 A.3d 859 (Pa. 2018) (Wecht, J.,
dissenting) .
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from the realm ofdependency/termination proceedings. Next, although Pa. R.J.C.P.
1128 states a clear preference that a child be present at dependency proceedings, the
rule also grants a court discretion to choose to conduct hearings in the child's absence
if good cause is shown so long as the child's attorney is present. It is precisely this
path that the Court took during the hearings underlying the instant appeal. Noting that
K.M.R. did in fact appear at the August 8 and 9, 2017 hearings, this Court was
otherwise satisfied that good cause existed to permit Children's absences at the
remaining proceedings due to the fraught and tempestuous relationships between
Children and Parents in addition to the need for Children to maintain attendance at
school and extracurricular activities. However, Children's guardian ad litem and
attorney were both present for and fully participated in all proceedings while
advocating for Children's best and legal interests, respectively. Thus, at all times, the
Court conducted the proceedings in compliance with the requirements of 42 Pa. C.S.
§6351 (e)(1) and 23 Pa. C.S. §2313(a). Lastly, Mother and Father failed to exercise
their statutory right under the Juvenile Act to have subpoenas issued that would have
compelled K.M.R. and J.L.A.'s presence at the hearings,
In short, Mother's and Father's arguments that either one or both of Children
was withheld from the Court and barred from testifying, in violation of the CPSL and
"without justification," are legally unsupported. For the foregoing reasons, these
matters should not be considered on appeal.
II. Lack of Competent Testimony and Other Evidentiary Issues
In their concise statements, Mother and Father each raise several issues with
53RO
JUDICIAL respect to the testimony elicited and evidence adduced at the proceedings. Both
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Parents, at Nos. 6 and 7, contend that CVS supplied neither "any competent
testimony" about the impact of termination on Children's best interests nor the bonds,
or lack thereof, among Children, their foster family, and Parents. Mother alone raises
additional concerns at Nos. 9 and 1 O that there was insufficient evidence presented as
to her incapacity to parent and that this Court misconstrued the testimony of her
expert witness, Dr. Fred Gallo.
In termination of parental rights cases, the prevailing evldentiary standard is
clear and convincing evidence. It is the burden of the party seeking termination to first
proffer clear and convincing evidence that the parent's conduct satisfies one of the
statutory grounds found at 23 Pa. C.S. §2511(a), and then to demonstrate that
termination would benefit the needs and welfare of the child under a best interests
standard pursuant to 23 Pa. C.S. §2511(b). In re D.L.B., 166 A.3d 322, 326 (Pa.
Super. 2017) (internal citations omitted). The trial court acts as the factfinder in
termination cases, meaning that it is "charqed with the responsibilities of evaluating
credibility of the witnesses and resolving any conflicts· in the testimony ... [in] carrying
out these responsibilities, the trial court is free to believe all, part, or none of the
evidence." In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa. Super. 2006).
Over the course of the proceedings, CYS presented Mr. Brian Dick, Ms. Tanya
Stahlman, and Ms. Amber Pieri. .All testified as fact witnesses, While Mr. Dick was
additionally certified as an expert in the areas of counseling and parental capacity
assessments. As recounted in the _January 16, 2019 Opinion. each of these
professionals credibly testified to the troubling emotional relationship between Mother
S3RD
JUDICIAL and Children. Ms . .Stahlman and Mr. Dick also commented on Mother's lack of
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empathy toward the traumatic experiences Children endured at her home and
Mother's seeming inability to emotionally attune to Children despite months of
counseling sessions. Ms. Pieri testified to documented instances of K.M.R. 's self-
destructive behavior, such as pinching and attempted suffocation, following some
extended interactions with Mother. All three witnesses further spoke to the lack of any
positive feelings or genuine bonds worth saving between Parents and Children.
Additionally, Ms. Pieri noted how Children have matured emotionally, physically,
academically, and spiritually since moving in with their foster family in December
2013.
In response to CYS, Mother and Father each testified on their own behalf at the
hearings. Mother additionally offered the testimony of Dr. Fred Gallo, a psychologist
from Sharon, Pa., to speak to her parental capacity, whom this Court certified as an
expert in psychology. However, unlike Mr. Dick, Ms. Stahlman, or Ms. Pieri, Dr. Gallo
failed to observe Mother interact with Children during any of their sessions together,
and consequently this Court accorded less weight to his conclusions on her parental
abilities than those who observed Mother and Children together firsthand. During
Mother's testimony, CYS also offered into evidence on cross-examination. which this
Court admitted without objection, a "notice/demand'' letter Mother wrote to CYS in
June 2017 demanding the return of her "property," i.e. Children. This Court
considered the letter and weighed it in conjunction with the voluminous testimony from
Mr. Dick, Ms. Stahlman. and Ms. Pieri as to Mother's extreme and sustained
difficulties in emotionally relating to Children. For his part, Father's own testimony
53RD
JUDICIAL underscored his struggles with substance abuse, domestic violence, and the criminal
DISTRICT
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justice system, all of which influenced this Court's conclusions as to his present and
prospective inability to take Children into his care.
In sum, this Court remains resolutely convinced that CYS met its burden of
presenting clear and convincing evidence $howing the existence of the statutory
grounds for termination under 23 Pa. C.S. §251 t'(a) through a combination of their fact
and expert witnesses, admitted exhibits. and cross-examination of Mother and Father.
Moreover, this Court remains satisfied that CYS presented sufficient evidence relevant
to the considerations of 23 Pa. C.S. §2511 (b), such as Ms. Pieri's observations of
Children's lives. with their foster family and multiple witnesses' retelling of Children's
toxic bonds with Parents, in demonstrating that termination would serve Children's
best interests. Next, we turn to Mother's contention with respect to Dr. Gallo's
testimony. Although this Court gave fair consideration to the psychological testing Dr.
Gallo performed on Mother, we simply could not accord much weight to his
conclusions about her parenting abilities as they were unsupported by any personal
observations, the lack of which stands in stark contrast to the three professionals who
testified for CVS on this same point. Succinctly put, in reaching our decision, this
Court allowed all parties to present their cases-in-chief and, upon exercising our
discretion to examine and weigh the evidence supplied, concluded that CYS cleared
its evidentiary hurdles. Therefore, these matters should not be considered on appeal.
Ill. Issues with Reunification and the Family Service Plan
In their concise statements at Nos. 3 and 4, Mother and Father both contend
that CYS failed to provide any type of reunification counseling or generate a service
53RD
JUDICIAL plan for reunification, and that CYS failed to provide any visitation between Parents
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and Children. Additionally, Father argues at Nos, 9 and 10 that CYS failed to refer
him for a parental capacity assessment and that he could not have completed his
family service plan due to a lack of services available in Lawrence County.
Whenever a dependent child is taken into foster care, the default goal is
eventual reunification of the family. Congress mandated this policy in the federal
Adoption and Safe Family Act of 1997 (ASFA). 42 U.S.C. §§671:-679. Specifically,
federal law requires that states shall make "reasonable efforts ... to preserve and
reunify families." 42 U.S.C. §671(a). In Pennsylvania, "the law prioritizes reunification
initially" and to this end, child service agencies "must, of course, put forth a good faith
effort in making [rehabilitative services necessary for the performance of parental
duties and responsibilities] available to the parent." In Interest of C.K., 165 A.3d 935,
943-44 (Pa. Super. 2017) (quoting In re J.J., 515 A.2d 883, 890 (Pa. 1986)). Child
service agencies typically fulfill this requirement through the implementation of family
service plans, which must be prepared for "all families receiving services." Burns v.
Department of Human Services, 190 A.3d 758, 763 n.8 (Pa. Cmwlth. 2018); 55 Pa.
Code §3130.61; 55 Pa. Code §3130.67. The child services agency has a clear duty to
"make reasonable efforts to finalize the permanency plan [that] is independent of the
parents' duty to accept such efforts." C.K., supra, at 943.
However, while an agency is expected under the law to make reasonable
efforts to promote reunification, this duty is not unlimited in time or scope. "If
reunification is not viable 'after reasonable efforts have been made to reestablish the
biological relationship,' child welfare agencies must work 'toward termination of
53RD
JUDICIAL parental rights, placing the child with adoptive parents,' ideally within 18 months." Id.
DISTRICT . ,··,, ....
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at 944 (quoting B.L.L., supra, at 1016). The Superior Court has also stated that "We
cannot require CYS to extend services beyond what our legislature had deemed a
reasonable time after state intervention ... [the] state's interest in preserving family unity
must be weighed along with the state's interest in protecting children." In re J.T., 817
A.2d 505, 509 (Pa. Super. 2003) (citing In re Adoption of A.N.D., 520 A.2d 31 (Pa.
Super. 1986)). Simply put, the agency "is not expected to do the impossible and is not
a 'guarantor of the success of the efforts to help parents assume their parental
duties."' C.K., supra, at 942 (quoting In re A.LO., 797 A.2d 326, 340 (Pa. Super.
2002)).
Part of those reasonable efforts toward reunification include the child services
agency facilitating visitation between children and their parents, although the Juvenile
Act itself does not specify the necessary frequency of-those visits. In re C.J., 729 A.2d
89, 93 (Pa. Super. 1999) (citing In the Interest of M.B., 674 A.2d 702, 706 n,3 (Pa.
Super. 1996)). Administrative regulations provide thatthe child services agency must
provide visitation opportunities at least once every two weeks unless certain
exceptions apply, such as visitation running contrary to the child's best interest or
limitation by court order. 55 Pa. Code §3130.68(a)(3). Courts are generally cautioned
against restricting visitation when the goal of the family service plan remains
reunification unless a grave threat exists to the child's welfare. C.J., supra, at 95.
From the foregoing, the law may be summarized as follows. It is clearthat
once a child is adjudicated dependent and taken in CYS care, the agency is required
to compile a family service plan that has at its outset a goal of eventual reunification of
5JRD
JUDICIAL
OJSTRJCT
the child and parents! a,n� _then must make reasonable efforts at providing services to
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the family to achieve those ends, including visitation. In turn, the parent has a
corresponding duty to make reasonable efforts to take advantage of these services
and cooperate with CYS to effectuate eventual reunification. This arrangement is
reviewed every six months at the permanency review hearings, and if insufficient
progress on the reunification front has been made, the child services agency may then
move toward termination of the parent's rights.4
Despite the clear mandate favoring reunification imposed on CYS and other
child services agencies, an important question arises concerning the appropriate
sanction for agencies seeking termination of parental rights that nonetheless failed to
provide reasonable efforts toward reunification. In In re D.C.D., 105 A.3d 662, 671-72
(Pa. 2014), the Pennsylvania Supreme Courtconcluded that "neither [23 Pa. C.S.
§2511 (a) or (b)] requires a court to consider reasonable efforts provided to a parent
prior to termination of parental rights. Nevertheless, this Court has observed that the
provision or absence of reasonable efforts may be relevant to a court's consideration
of both the grounds for termination and the best interests of the child." (citing In re
Adoption of S.E.G., 901 A.2d 1017, 1029 (Pa. 2006)). Rather than denying an
otherwise meritorious termination petition to punish an agency for failing to expend
reasonable efforts on reunification services, the high court directed that the
appropriate remedy was for the trial court "to conclude on the record that the agency
has failed to make reasonable efforts, which imposes a financial penalty on the
agency of thousands if not tens of thousands of dollars under [ASFA]." Id. at 675.
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• Permanency review hearings at six-month intervals are required by statute. 42 Pa. C.S. §6351 (e)(3).
AW.RENCE COUNTY
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In short. the trial court must only determine whether the party seeking
termination has satisfied the statutory grounds at 23 Pa. C.S. §2511; reunification
services, or the lack thereof, may be. relevant, but cannot be a basis for denying an
otherwise worthy and proven termination petition.
The basic facts of this case indicate that CVS developed a family service plan
(FSP) by April 2014, within six months. of Children corning info care; and thatthe
FSP's ultimate goal was reunification With Parents ("return to parent or guardian'').
See, e.g., Permanency Review Orders dated 9/16/15, 3/11/16;9/2/16, 3/22/17,
9/17/18. The FSP, which applied to both parents, was comprehensive and contained
steps individually tailored to Mother's and Father's respective circumstances.
Mother's FSP included requirements that she, inter alia, maintain a clean home,
undergo mental health and psychological assessments, complete domestic violence
counseling, complete a parental capacity assessment, and undergo a drug and
alcohol evaluation. Father's FSP included similar steps and also required that he
complete. anger management and a barterer's support group.
It is plainly evident that CYS provided reasonable efforts toward Mother
because she made substantial progress with completing all points of her plan.5
Mother was able to achieve nearly all goals of her FSP, as she successfully obtained
mental health and psychological evaluations. attended a domestic violence support
group, cleaned up her home, and attended parenting classes. The only remaining
factor on her FSP was completing a second parenting capacity assessment, and the
53RD 5
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for example, CYS referred Mother to Mr. Brian Dick, Who performed a parental capacity assessment in
DISTRICT December 2014, Although Mr. Dick did not give Mother a favorable rating in this first assessment, CYS
decided to refer Mother forasecond assessment with Mr. Dick in August 2016 to examine whether she
had made any progress in·the interim; Second referrals, as Mr. Dick testified, are extraordinarily rare.
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record demonstrates that Mother failed to follow up on this despite repeated prompting
from CYS and Mr. Brian Dick in late 2016. CYS also facilitated reunification
counseling between Mother and Children from 2014 to 2017 through providers Tressa
French and Tanya Stahlman. During Ms. Stahlman's work with Mother and Children,
she refocused the sessions from reunification to resolution in order to address some
serious and outstanding issues between Mother and Children, particularly K.M.R. In
any event. at no time in this case did CYS fail to provide services for Mother or
opportunities for her to complete the FSP.
Children maintained regular, biweekly social visitation with Mother in the time
between January 2014 and November 2014, at which point CYS stopped scheduling
Visits at Children's behest. Ms. Pieri, Children's CYS caseworker, noted that their
refusal to attend stemmed from Mother's alleged misbehavior during some visits, such
as pinching K.M.R. and asking her to lie to CYS, which caused so much stress for
K.M.R. that she resorted to self-destructive and self-harming behavior. Recognizing
these dangers to Children's well-being, the Court issued an order on January 6, 2015
limiting visitation with Mother pending the discretion of a counselor who would
determine if and when visitation would resume, which was continually readopted by
subsequent permanency review orders. See, e.g., Permanency Review Orders,
9/15/15 and 9/17/18.
Father was also subject to the FSP, although his ability to comply was
somewhat hamstrung by his enrollment in the Teen Challenges Program and repeated
incarcerations. Indeed, when he was out of jail, Father was able to enjoy both social
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visitation with Children and later counseling sessions with K.M.R.6 It is also apparent
that when he was not imprisoned, Father was in close contact with CYS, specifically
Children's caseworker Ms. Amber Pieri. By these indications, CYS seemed generally
willing to work with Father on his FSP compliance, and moreover there is nothing in
the record to suggest thatCYS deliberately withheld Father from a parental capacity
examination. Rather, given Father's intermittent availability and documented lack of a
permanent residence, it is likely thatthe time was not yet ripe for a parental capacity
assessment, a process which requires that the evaluator visit the home and observe
how the. parent and child interact intheir natural setting. Further, setting aside
concerns that Father failed to raise any issues at the hearings with respect to the
availability of a batterer's support group in Lawrence County, the FSP did not mandate
that he attend the support group with any specific provider." Indeed, even acceptinq
Father's premise as true (i.e. the dubious claim that no batterer's support groups of
any kind are available in Lawrence County), a thorough search by this Court
uncovered no legal requirement that CYS had to ensure Father's ability to complete
the FSP entirely within his county of residence.
In sum, Mother's and Father's contentions that CYS failed to provide a family
service plan and failed to provide reasonable efforts toward reunification are clearly
6
Father's visitation rights were also specifically addressed by a September 2015 Order of Court
following his release from the Teen Challenges Program. The record indicates that Father enjoyed
social visitation with Children approximately once every two weeks between September 2015 and
February 2016.
7
Pa. RAP. 302(a) states that "issues not raised in the lower court are waived and cannot be raised for
the first time on appeal." See a/so.Jones v. Ott; 191 A:3d 782 {Pa. 2018). During the numerous
53RO
termination hearings, Father never placed on the record any issue with respect to CYS' purported failure
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to ensure that he could attend a batterers support group in Lawrence County. Nonetheless, this Court
addresses this contention with th� caveafth_at\we only do so in the interest of a full and fair exploration of
the issues before the Superior Court. ·- ·
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indefensible when considered next to the facts of this case. CVS developed FSPs for
both Parents and then expended considerable resources to help Parents realize the
overarching goal of reunification with Children. To the extent that Mother and Father
assert that their right to visitation with Children was improperly curtailed, it is
noteworthy that the question of visitation frequency was addressed through two orders
of court that instituted specific limitations in response to seriously concerning
misbehavior from each parent. Likewise, Father's additional arguments are betrayed
by his inability to maintain a residence suitable for a parental capacity evaluation and
the absence of any legal standard requiring the provision ofall reunification services in
the parent's home county.
Moreover, even if it is determined that CYS failed to provide reasonable efforts
toward achieving reunification, Mother's and Father's arguments necessarily fail. As
setforth by the D.C.D. Court, the appropriate sanction is a notation on the case record
which would then cost CVS thousands of dollars in federal funding. Besides the fact
that this Court made no such finding on the record, CVS met its statutory burden for
proving termination under 23 Pa. C.S. §2511.8 Therefore, regardless of the
reasonableness of CVS' reunification efforts, termination was proper in this case and
these errors should not be considered on .appeal.
IV. Failure to Apply the Law to the Facts of the Case
Mother and Father each contend at No. 2 of their concise statements that this
Court failed to apply the law to the facts of the case and return Children to Parents,
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See IV. Failure to Ai,.plv the Law to the Facts of the Case, infra.
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with Mother individually complaining that she was entitled to regain custody of
Children because she had completed her FSP,
The law that trial courts must apply to termination petitions is Well settled and
ironclad. Courts must always be mindful that parents have a constitutionally
guaranteed right to the. control, care and custody of their children, which is abrogated
and converted into the child's right to proper care only upon the breach of their
parental duties. In re AS., 11 A.3d 473, 478 (Pa. Super. 2010). In Pennsylvania,
courts safeguard these rights and balance the competing interests by adhering to the
bifurcated analysis mirroring the structure of 23 Pa. C.S. §2511:
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 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 ofthe best interests of the child.
In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (citing In re L.M .. 923 A.2d
505, 511 (Pa. Super. 2007)). Clear and convincing evidence is defined by the
Superior Court as "evidence as that which is so 'clear, direct, weighty and convincing
as to enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue." 1.Q.. (citing In re C.S., 761 A2d 1197, 1201 (Pa,
Super. 2000) (en bane)).
For purposes of this appeal, CYS filed the termination petitions asserting that
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.. .,,, . ,.. other and Father at 23 Pa. C.S.
,.M .. ·. ,
,WRENCE COUNTY
PENNSYLVANIA
- ...,._, ..... 23
-----------------···----··--···-·-· · ····-····-·· .
§2511 (a)(2) and (a)(B), and that Children's needs and welfare would be best served
by termination pursuant to Section 2511(b);9 In the January 16, 2019 Opinion, this
Court recounted at length the precedents which guided our evaluations of grounds for
termination at 23 Pa. C.S. §2511 (a)(2).10 Pertinent to any consideration of termination
under Section 2511 (a)(2) is that "parental incapacity that cannot be remedied [is] not
limited to affirmative misconduct; to the contrary, those grounds may include acts of
refusal as well as incapacity to perform parental duties." Matter of Adoption of M.A.B.,
166 A.3d 434, 444 (Pa. Super. 2017) (internal citations omitted) (emphasis added).
9 23 Pa. C.S. §2511; Grounds for involuntary termination
(a} General rule. - The rights ofaparent 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 ofthe parent has caused
the child to be without essential parental care; control or subsistence necessary for his physical
or mental weil-being and the conditions and causes of the incapacity, abuse, neglect or refusal
cannotor will not be remedied by the parent
***
(8) The child has been removed from the care ofthe 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 or the child continue to exist
and termination of parental rights would serve the best needs and welfare of the child,
(b) Other considerations. - The court in terminating the rights of a parent shall give primary
consideratlcn 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.
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See, e.g., In re N.A.M., 33 A.3d 95_,.1pO.(f;la.,-Super, 2Pl1}; In re Interest of Lilley, 719 A2d .327, 330
DISTRICT
(Pa. Super. 1998); In re Geiger. 331 A.2ci':172 (Pa:
:1975);�-in re E.AP., 944 A.2d 79, 82 (Pa. Super.
2008).
WRENCE COUNTY
PENNSYLVANIA
!/ .
24
. -..;.·_ .. 1 i .. : "
�--·. .,. r .' -
For Section 2511 (a)(8), this Court extensively applied the tripartite test set forth by !D.
re M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003).11 Lastly, for the Section 2511(b)
branch of the analysis, this Court relied on M.A.B., supra, at 448 and T.S.M., supra, at
269 which require that trial courts consider the bonds that exist between a parent and
child, as well as myriad other factors, such as love, comfort, safety, and relationships
with the fosterfarruly. See also In re Adoption ofC.D.R., 111 A.3d 1212 (Pa. Super.
2.015); A.S., supra, at 483. In short, the law that Pennsylvania courts must
unwaveringly apply when evaluating termination petitions is 23 Pa. C.S. §2511, the
subsections. of which in turn necessitate the bifurcated analysis as further interpreted
and expanded through case law.
In the case sub judice, CYS had the burden of proving by clear and convincing
evidence that grounds for terminating Mother's and Father's parental rights existed
under 23 Pa. C.S. §2511(a)(2) and (a)(8). Regarding Mother (and disregarding her
assertion that she completed every item on the FSP; see llL supra), this Court was
satisfied that CVS provided clear and convincing evidence that Mother exhibited ah
irremediable emotional incapacity under Section 2511 (a)(2), i.e. that Mother could not
provide essential care and control of Children due to her inability to have any
semblance of an emotional relationship with them. However, this Court was not
persuaded that grounds for termination existed as to Motherunder Section 2511 (�)(8),
and thus denied that ground. Likewise, applying the test set forth by Section 2511 (b),
11
In reAdoption of M.E.P., E325 A.2d 1266, 1276(Pa. Super; 2003) stated as follows with respect to
53RC
JUDiCIAL
Section 2511 (a)(B): "[The] following factors must be demonstrated: (1) the child has been removed from
DISTRICT parental care for 12 months or moi'�-fro.m· the date 9f,removal; (2) the conditions which led to the
removal or placement of the child contlnue' to exisl;'"and (3) termination of parental rights would best
serve_the needs and Welfare ofr;tl:A.c�i!_d.".-
(.,,,!._
,.
,L:� -,·,� •r:-.'4 I • -
,WRENCE COUNTY. i: i.Il.i
PENNSVLIIANIA
this Court was satisfied that Children's best interests would be served by termination.
Regarding Father, this Court. concluded that CYS met its burden for showinq that
grounds for terminating his parental rights existed under Section 2511 {a)(2) and (a){8),
and that it would again be in Children's best interests under Section 2511 (b) to have
his rights terminated. At all times, this Court applied the statutory and case law
provisions applicable to the asserted grounds for termination, and made its decisions
based on the strength of the evidence presented. Therefore, this matter should not be
considered on. appeal.
V. Failure to Stay Final Order Pending Dependency Appeals
At No. 8 on their concise statements, Mother and Father each argue that this
Court erred by failing to stay issuing its final order on the involuntary terminations
While the Dependency Appeals remained pending before the Superior Court.
Pennsylvania Rule of Appellate Procedure 1701 governs the effect an appeal
has on the trial court below. Pa. R.A.P. 1701 {a) states that unless otherwise
prescribed by the rules, "after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer proceed further in the
matter." However, Pa. R.A.P. 1701(c) (emphasis added) qualifies this by decreeing
that '[wlhere only a particular item, claim or assessment adjudged in the matter is
involved in an appeal. .. the appeal .or petition for review proceeding shall operate to
prevent the trial court or other government unit from proceeding further with only such
item, claim or assessment... '1
Additionally, clear precedent from the Pennsylvania Superior Court disfavors
53RD
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DISTRICT � .• - i .• �'
,WRENCE COUNTY
PENNSYLVANIA ,. -
-, � ;.., :'
'.
...
26
··· ·-·----------------------------
is on appeal. "Depriving a Juvenile Court of jurisdiction merely because a single
Order, involving any issue or party; has been appealed ... would also frustrate the
statutory authority of the Juvenile Court to exercise continuing_ independent and
original authority to adjudicate in the best interests of a dependent child." In re Gdffin,
690 A.2d 1192, 1200 (Pa. Super. 1997). Indeed, "[maintaining] the status q1,.10 while
awaiting resolution of a parent's appeal could never justify the risk to a child forced to
remain in a possibly safe or unsatisfactory situation." In re R.P., 956 A.2d 449, 455
(Pa. Super. 2008).
Here, the Dependency Appeals of October 5, 2018, involved separate issues
from the termination petitions and motions for goal change. While it is undeniable
that, for purposes of judicial economy, this Court scheduled and conducted hearings
for both tracks of cases concurrently, ultimately the two sets of cases are concerned
wlth different legal issues and outcomes. Therefore, this Court, pursuant to Pa. R.A.P.
1701(c)and the aforementioned case law, declined to stay the termination
proceedings; accordingly, this matter should not be. considered on appeal.
For the foregoing reasons, we respectfully request thatthe Superior Court
affirm our January 16, 2019 Order of Court, and dismiss the appeal in this matter:
53RD
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27
Circulated 07/24/2019 1047 AM
.-
{
'·...
IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS
LAWRENCE COUNTY, PENNSYLVANIA
K.M.R. : N0.940F2013,DP;
NO. 20012 of 2017, OC-A
J.L.A.
APPEARANCES
For Children and Youth Services: Carolyn Flannery, .Esq.
1001 East Washington Street
New Castle, PA 16101
For Natural Mother, M.R.: Dennis Mccurdy, Esq.
539 Main Street
Harmony, PA 16037
..;.J .
<"
z
For Natural Father, C.A.: Bradley G. Olson, Jr., Esq.
28 North Mill Street (..')
Forthe Minors:
New Castle, PA 16101
Paula Cialella, Esq.
-
Cl
w
...;J
. z
...-;,::
-,
113 N. Mercer Street �
New Castle, PA 16101
Guardian .Ad Litem: Nora DiBuono1 Esq.
701 First Avenue
Ellwood City, PA 16117
OPINION
Hodge, J. January 16, 2019
Presently before this Court are the Petitions for Involuntary Termination of
Parental Rights (Termination Petitions) filed by Lawrence County Children and Youth
53RCI Services (CYS) againstboth natural parents, M.R. (Mother) and C.A (Father)
JUCICIAL
DISTRICT
(collectively Parents), as to two of their minor children; K.M.R. and J.L.A. (collectively
\WR£NC:1; C:OUNTY
PENNSYI.V.ii.:NtA
--·--·-·-·--------·------
r
(
Children), and Motio.ns for Goal Change from reunification to adoption. For the reasons
set forth below, this Court· grants the Petitions for Involuntary Termination of Parental
Rights and the Motions for Goal Change.1
Procedural Histery
I
The lengthy and complicated procedural history and record of this case is virtually
inseparable from that of the companion dependency cases, and thus a brief summation·
of those earlier proceedings is as follows. Children were first taken into emergency care I
by an order of this Court dated N�er 4, 2013. CYS then filed a dependency
petition on November 18, 2013, and three days later, this Court adjudicated both
Children dependent, pursuant to the Juvenile Act (42 Pa. C.S. §§6301 et seq.), based on
evidence presented that Father had physically assaulted Mother with Children p�ent �;� :;;_��
..... .. �·�
and that Mother's home had deplorable conditions. Accordingly, by dispositional:iirder:� · i·}�
.
- C!>
.
o-- =:
�-�
dated January 5, 20141 this Court assigned legal and physical custody of Childre5to � c';;::
-...... t=.i�
CYS.�Since the initial dependency finding this Court has conducted permanen�evi� �
-
u. � t$ii:c:;':J.:;
hearings approximately every six months as required by the Juvenile Act and has
c:..:) .:
N· · ""ii-·.
continued to find Children dependent, and their placement in foster care appropriate, as
_documented by each permanency review order to date and including the most recent
one issued on September 17, 2018.2
1.Although the bulk of this opinion and order addresses the Termination Petitions, filed under the Orphans'
Court docket numbers (Nos. 20011 and 20012 of 2017, OC·A), for purposes-of judicial economy we
include the Motions for Goal Change which were filed under the companion dependency docket numbers
(Nos. 94 and 95 of 2013, DP).
53RO 2
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On October 5, 2018, Mother appealed this permanency review order to the Superior Court. Later, 'on
DISTRICT November 1, 2018, Mother moved that adjudication on the Termination Petitions be stayed pending the
Superior Court's decision on the dependency appeal, but this Court denied the motion. See Order of
Court, December 4, 2018.
LAWRENCE COUNTY
P'E ...... SVL.VANI.A 2
'
••
Following several years of dependency hearings, CVS presented the Motions for
Goal Change and Termination Petitions on April 11, 2017, alleging that Mother's and
Father's parental rights should be terminated pursuant to 23 Pa. C.S. §2511(a)(2) and
(8). This Court conducted the foTiowing hearings, and the fol)owlng witnesses testified,
over a sixteen-month period and formed the bulk of the factual record underlying this
opinion:
1. August 8 and 9, 2017; K.M.R. and therapist Tanya Stahlman;
2. September 26, 2017; Ms. Stahlman (continued) and counselor Brian Dick;
3. March 28 and 29, 2018; psychofogist Dr. Fred Gaito and CVS caseworker
Amber Pieri;
4. June 26, 2018; Ms. Pieri (continued) and testimony from Father and Mother;
5. August 27, 2018; CVS caseworker Kristen Pauline.
Besides the considerable evidence accumulated at .these hearings, aH parties
stipulated at the first hearing (August 8, 2017) to incorporate the factual record of the
dependency cases into the record of the Termination Petitions and Goal Change
Motions. Following the close of evidence on August 27, 2018, this Court permitted a)I
parties to file proposed findings of fact and conclusions of law, which were received by
October 31, 2018.
FINDINGS OF FACT
I. Parties to the Case
· 1. K.M.R. is a female child bom November 6, 2001, in Lawrence County,
Pennsylvania.
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' .
minimize it, even to the detriment of Children. On the few occasions Mother took
action in response to Father's behavior, such as staying In an alternate location
for the night, K.M.R. stated that Mother tended to reunite with him soon after. Id.
at 9, 13.
10. Neither Mother nor Father had a full-time job as of November 2013. A stay-at-
· home mom, Mother's primary source of income consisted of monthly disability
checks she had been receiving since 2001. Meanwhile, Father was "a completely
different person; addicted to heroin, alcohol and pain pills, and mainly focused on
where to get and how to pay for his next dose of drugs. N.T., 6/26/18, at 19, 54
194, 195.
11. Mother declined to enroll K.M. R. in the local public school system, the Laurel
School District, and chose instead to homeschool her. Mother intended the same
for J .L.A. but could not do so because at the time, J.L.A. had not yet reached the
age of eight:years-oid, th� minimum required for schooling in Pennsylvania. Id. at
154, 202.
12.0n November 2, 2013, under the influence of drugs, Father beat, punched'and
assaulted Mother violently and constantly for a period of six hours and inflicted
injuries so-severe, including a punctured lung, that she had to be flown via
helicopter to Pittsburgh for medical treatment. Mother later estimated that Father
struck her approximately 300 times duriog this episode and that she required
near1y a week or hospitalization before becoming stable enough for release.
Children were present for and witnessed at least some portion or this attack, part
SStito
JUDICIAL
lJISTRICT
s
1..AW#tt:HC& COV"fTY
�C ... HSVf.VAHIA
.'
physlcal and legal custody. Children have remained with the same foster family
since December 14, 2013. See Permanency Review Order, September 17, 2018.
17. As required by the Juvenile Act, permanency review hearings have taken place
approximately every six months to evaluate whether the finding of dependency
· and Children's placement remains appropriate. The most recent review hearing
took place on September 17, 2018.
18. By the spring of 2014, within months of Children's initial placement, CVS
caseworker Kristen Pauline developed the initial Family Service Plan (FSP) (also
known as a Child Protective Plan, or CPP) that outlined the steps Parents were
required to take prior to any reunification with Children. The FSP was drafted in
response to the conditions that necessitated Children's removal from the home.
Some steps of the FSP applied toboth parents, while others pertained to only one
of them. Among the steps on Parents' FSP:
• Keep the home clean and free from clutter.
• Schedule a mental health assessment to determine if the parent has any
mental health issues that would impact parenting the child.
• Obtain a psychological assessment.
• Complete domestic violence counseling.
• Complete anger management classes
• Complete a parental capacity assessment.
• Undergo a drug and alcohol evaluation.
N.T .. 3128118, at 144-45, 8128118 at 31.
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...e:NNSVI..VA.NIA 7
19. In addition to the affirmative steps required of Parents, reunification was
contingent upon the successful completion of counseling sessions between each
Parent and Children designed to discuss and work through outstanding issues. At
various times, Children participated in counseling sessions with either Parent, but
at no time were both Parents and both Children present at the same therapy
session. Between early 2014 and September 2015, therapy was facilitated by
Tressa French, and then by Tanya Stahlman from September 2015 to June 2017.
N.T., 8/8/17, at 9, 10.
20.Alongside the efforts to complete the FSP and counseling, Mother and Children
engaged in CVS-supervised social visitation from January 2014 to September
2014, as required by regulation.3 Largely at Children's insistence,£YS stopped,
scheduling and facilitating visits in September 2014, which prompted Mother.Jo C\J ··c
. � c
.....
� �
file a Motion to Resume Visitation in November 2014. On January 6, 2015je ;i:: ..
c,
..:. .)
C.1.J
- Ll..
0: =l: :
Court issued an order appointing a special counselor who had discretion td2 � 0,
c.:;; �
c :!: �J·"
determine if, when, and how visitation would resume. These issues rema�d � -..,s.S
� ....
4... � -'-
g-�
""'
unresolved with each subsequent permanency review order, as all �pecifically c-... :.:;;] 9.
. .
provided that "Prchoitionot contact with [Children] shall continue unless
approved by [CYS] and by further order." Order of Court, January 6, 2015; N.T.,
3/28/18.; at 153.
21. Though unbeknownst to her parents at the time, K.M.R. was the victim of sexual•
•abuse committed by a neighbor, the now-deceased David Anderson, for a period
of approximately one year predating her placement with CYS, from sometime in
53RD
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3
55 Pa. Code §3130.68.
LAWRENCE COUNYV
F'E'°'N$VL.VANIA 8
25. Dr. Gallo additionally testified as a fact witness with respect to the psychological
evaluation he performed on Mother on January 18 and 20. 2016, whose goal was
to evaluate
. Mother'·s "psychological functioning and her fitness
. for reunification for
her children." Id. at 32.
26.As part of the evaluation, Dr. Gallo administered a wide range intelligence test,
the Beck Anxiety inventory, the Beck Hopelessness Scale, the Minnesota
Multiphasic Personality Inventory, some projective tests, the Thematic
Apperception Test, and a parent/child relationship inventory, all of which are
approved diagnostic tools from the American Psychological Association. Dr.
Gallo obtained additional material for his evaluations from conversations with
other professionals familiar with Mother, such as counselor Jim Hines and
therapist Tressa French. Id. at 25-30.
27. Dr. Gallo drew the conclusions that Mother presenteffih a superior intellectual
'ability, did not present with severe depression or anxiety, did not demonstrate, .
signs of post-traumatic stress disorder, or any major psychological disorders. Dr.
Gallo further stated that Mother's 11psychological functioning is adequate and that
she has good parenting skills ... she appears to be highly motivated to resume the
strong connection with children regardless of the time that it is taking." Id. at 32·
33 (quoting from Mother's Exhibit D).
28. Dr. Gallo opined that Mother's psychological condition permitted her to resume
supervised visits with Children and proceed with reunification counseling. Id.
29.Although he reached conclusions on Mother's parenting abilities, Dr. Gallo'sll
53RCI
JUDICIAL
DISTRICT
�ssessments were neither a custody evaluation nor a parental capacity•
LAWRENC£ CO'UNTY
P£NNSYL.'1ANIA 10
(
focus for each patient. For Mother, the focus was on "her ability to attune to her
daughters' feelings, validate those feelings, understand their trauma experience,
develop the necessary skills to parent a child [who] has dealt with trauma in their
lives." For K.M .. R., the sessions centered on how to "process and find resolution
from the traumatic experiences that she has had in her life," both with respect to
Parents and Mr. Anderson. N.T-,, 3116/17, at 65, 76.
41. When Ms. Stahlman first took over the therapy sessions, the clinical goal
remained family reunification. However, after K.M.R. expressed resistance to that
goal, Ms. Stahlman reoriented the sessions from reunification to resolution, i.e.
"what does it mean to understand the circumstances that have happened to her,
how can [she] and her rnoiher talk about tne traumatic experiences that they have
.1
had in relation to one another and then overcome those feelings.'' Children•
opposed reunification counseling because they "felt that their psychological safety
awas at risk." Id. at 65-66; N.T., 9126117, at 23.
42. Once the goal was changed to resolutio",, KM.R. made remarkable progress in
identifying, sharing and verbalizing feelings, and developing healthy stress'coplnq
mechanisms, although she still occasionally �ngaged in self-harming behaviors
(rubbing her skin raw, digging her fingernails into her arm, etc.). There has
additionally been "progress in the reduction of negative feelings, n like. anger and
frustration4 between K.M.R. and Mother, but not much in the way of building
positive feelings. N.T., 3116117, at 66-67, 74, 94.
43. With respect to J.L.A., Ms. Stahlman believed that due to her age, she was
5)RI)
JUDICIAL
DISTRICT
JtUmbed and "overwhelmed with the amount of emotions that she feels" and had
t.AWRENCE COUNTV
P'ENNSV LVAN.&A 14
51.Ms. Amber Pieri has been the casewori455 U.S. 745 (1982).
However, this right is not absolute; "a parent's basic constitutional right-to the custody
and rearing of... his children is converted, upon the failure to fulfill ... parental duties, to
the children's right to have proper parenting and fulfillment of the child's potential in a
53R[)
JUDICIAL permanent, healtl:ly, safe environment." In re A.S., 11 A.3d 473, 478 (Pa. Super. 2010)
DISTRICT
L.AWRENCE COUNTY
PENNSVLVANtA. 25
' .
(internal citations omitted). In Pennsylvania, the starting point for this process is the
Adoption Act, 23 Pa. C.S. §§2501 et seq., and any petition for the involuntary
termination of parental rights brought thereunde·r must be based on one or more of the
statutory grounds found at 23 Pa. C.S. §2511, which provides, in relevant part, as
follows:
Section 2511. Grounds for involuntary termination
(a) General rule. - The rights of a parent in regard to a child may be terminated
after a petitlon filed on any of the following grounds:
(2) The repeated and continued Incapacity, abuse, riegl� QT r.efusal of the parent
has caused the child to be without essential parental care, control or subsistence
necessary for his physical or mental well-being a11a the conditions and causes of
the incapacity, abuse, neglect or refusal cannot or will not be remedied by 1he
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 or the child continue to exist and termination of parental rights would
...
serve the best 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:
Wrth respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court
5JRD shall not consider any efforts by the parent to remedy the conditions described
JUOICIA&.
Of8TRICT
LAWRCNCC COUNTY
�N..,.YI.VANIA
26
� .
therein which are first initiated subsequent to the giving of notice of the. filing of the
petition ..
When considering this petition, the court must engage in a bifurcated analysis
mirroring the order of the statutory provisions before parental rights may be terminated:
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 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 the best
interests of the child.
In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (citing In re L.M., 923A.2d 505,
511 (Pa. Super. 2007)). Clear and convincing evidence is defined by the Superior Court
as "evldence as that which is so 'clear, direct, weighty and convincing as to enable the
trier of fact to come to a clear conviction, without hesitance, of the truth of the precise
facts in issue.'" 1Q.. (citing fn re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en bane)).
In other words, there are two separate, but nonetheless related, analyses that
must take place when evaluating a pe�tion for involuntary termination: first, the _grounds
for termination under 23 Pa. C.S. §2511 (a), which must be proven by clear and
-convincing evidence; and second, as judged under a best interests standard, the
termination must serve the needs and welfare of the child under Section 2511 (b).
Wh�n considering grounds for termination under Section 2511(a)(2), we are
S3RO bound by the longstanding test first enumerated by our Supreme Court in In re Geiger,
JUPICIAI..
DISYAIC'r
331 A.2d 172 (Pa. 1975) and restated In subsequent cases:
L.AWRENCE COUN'l'Y
PENNSYLVANIA. 27
Three things must be shown before a natural parent's rights in a child will be
terminated: (1) repeated and continued incapacity, abuse, neglect or refusal must
be shown; (2) such incapacity, abuse, neglect or refusal. must be shown to have
caused the child to be withoutessential parental care, control or subsistence; and
(3) it must be shown that the causes of the incapacityJ abuse, neglect or refusal
cannot or Will not be remedied.
In re N.A.M., 33 A.3d 95, 100 (P�. Super. 20·11); see also In Interest of Lilley, 719
A.2d 327, 330 (Pa. Super. 1998).
Additionally, 11the grounds for termination of parental rights under Section
2511 (a)(2), due to parental incapacity that cannotbe rernedled, are not limited to
affirmative misconduct: to the contrary, those grounds may include acts of refusal as well
as incapacity to perform parental duties.. 11• Matter of Adoption of M.A.B., 166 A.3d 434,
444 (Pa, Super. 2017) (citing In re A.LD., 797A.2d 326 (Pa. Super. 2002)). Further,
parents are expected and required to make diligent efforts toward a reasonably prompt
assumption. of full responslbllitles. A.LD., supra; at 337.5 Our Superior Court has also
elaborated' on the meaning of Section 2511 (a)(2):
5 CYS or any chii<;I welfare agency has a corresponoinq duty to "put forth a goo� faith effOrt in making
services available to the parent," to facilitate reunification (unless a goal change motion has been granted),
and this duty is "independent of the parent's duty to accept such efforts." In the Interest of CK, 165 A.3d
935, 943 (Pa. Super. 2017) (citing In re J;J., 515 A.2d 883, .890 (Pa. 1986)}. However, even in cases
where the agency has not diliger.itly made reasonable efforts toward reunification, the trial court may still
grant a termination petition. In re D.C.D., 105.A3d 662, 675 (Pa, 2014}. Instead ofdenying the
termination petition; the appropriate remedy is to "conclude on the record that the agency failed to make
reasonable efforts, which imposes a financial penalty on the agency ... under federalIaw." Id.In the instant case, Mother made the argument in her Post". Trial Memorandum that CYS acted in a
"dilatory" manner and failed to provide reunification services, which constituted an "extreme failure" on
their part. See Mother's Post-Trial Memorandum at 4. While this Court notes that CYS did not facilitate
53!iD social visitation between Mother and Children after September 2014 (later extended by the January 2015.
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Order' of Court) and recognizes that temporal gaps existed In between the provision of various reunification
services, based on the years' worth of counseling and other services extended to Parents, we do not find
that CYS failed to make reasonable efforts for reunification prior to filing the Termination Petitions.
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[Section 2511 (a)(2)] does not emphasize a parent's: refusal or failure to perform
parental duties, but instead emphasizes the child's present and future need for
essential parental care, control or subsistence necessary for his physical or
mental well-being·. Therefore, the language i'h [Section 2511 (a)(2)J should not be
read to compel courts to ignore a child's need for a stable home and strong;
continuous parental ties, which the policy of' restraint in state intervention is
intended to protect. This is particularly so where disruption of the family has
already occurred and there is no reasonable prospect for reuniting it. ..
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2908)(emphasis in original).
Next, when evalua.ting grounds for termination under Section 2511 (a)(8), "the
following factors must be demonstrated; (1) the child has been removed from 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.1 .825 A.2d
1266, 1276 (Pa. Super. 2003). Termination under Section 2511(a)(8), notably, "does not
require an evaluation of the parent's willingness or ability to remedy the conditions thaf
led lo placement of his or her children." M.A.B,, supra, at 446; In re In the Interest of
S.H., 879 A.2d 802, 807 (Pa. Super. 2005). Bearing great similarity to the Section
2511 (b) analysis, the third element Of the test under Section 2511 (a)(8) merits particular
mention, as it "focuses not on the parent's conduct, but on the children and-their needs.
The court must consider the needs and welfare ofthe children, incl.uding the presence, of
any parent-child emotional bond, which encompasses intangibles such as love, comfort,
security, and stability." In re Adoption of R.J.S., 90·1 A.2d 502, 514 (Pa. Super. 2006).
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For its part, the Section 2511 (b) analysis requires the court to consider
"intangibles such as love, comfort. security, and stability ... when inquiring about the
rieeds and welfare of the child. The court must also discern the nature and status of the
parent-child bond, paying close attention to the effect on the, child of permanently
severing the bond ... {the] extent ofthe bond-effectanalysis necessarily depends on the
. unique facts and circumstances ofthe particular case." M.A,B., supra, at 448 (internal
· citations omitted). Indeed, our Supreme Court has underscored the ln,portance of
performing a bonding analysis, even in those relationships where the conne.ction
between parent $nd child may be tenuous, dysfunctional or stagnated: "Obviously,
attentron must be paid to the pain that inevitably results from breaking a child's bond to a
biological parent, even i.f that bond is unhealthy, and we must weight that i_njury against
the damage that bond may cause if left intact." In re J;S.M.; 71 A.3d 251, 269 (Pa.
2013).
However, although the parent-child bond is to be considered under Section
251 t(b),. "it is nonetheless only one of many factors to be considered by the court when
determining what is in th.e best interest of the child." In re Adoption of C.D.R., 111 A.3d
1212 (Pa. Super. 2015) (quoting N.A.M., supra, at 103). Besides the bonding analysis,
"the trial court can equaJly emphasize the safety needs of the child, ·and should also
consider the intangibles, such asthe love, comfort, security, and stability the child might
have with a fos.ter parent." A.S., supra, at 483. The Supreme Court has also noted that
bonds with foster parents may be considered when performing an analysis under
. Section 2511 (b): "Common sense dictates that courts considering termination must also
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.'
with their .foster parents." T.S,M., supra, at 268. In short, aside from evaluating the
quality and effect of severing the bond between child and natural parent, a court. in
accordance with the guidance set forth by precedent, may consider many factors when
determining whether a termination meets the needs and welfare of the child pursuaet to
Section 2511 (b).
Application as to Mother
CYS has petitioned that Mother's parental rights to Children be terminated
pursuant to Sectfon 2511 (a)(2) and (8), each of which we will evaluate in conformity with
the principles recited above.
First, with respect to Section 2511(a)(2), this Court concludes that CYS has
presented clear and convincing evidence that Mother has displayed a repeated and
continued incap� for parenting that has left Children to be without essential parental
� control, or-substance, the causes of which cannot be remedied. Specifically,
Mother has displayed an emot!o.naJ Incapacity manifesting as an inability to empathize
with and validate the feelings of Children which directly and negatively impacts their
mental well-being'.
From the case record, such a disconnect is clearly traceable to the parties' pre-
placement circumstances. Prior to November 2013, it was observed by K.M.R. that
Mother oonslstently "put blinders on" to Father's flagrantly destructive behav.ior, and the
physical and emotional tolls it took on Children. Thus, even before the events directly
triggering Children's placement, Mother was unable to empathize and lend herself as a
source of emotional support during Father's bouts of abuse that even he conceded
SJ11to
JUDICIAL.
OIS'rRICl' formed a significant share of the trauma Chndren endured. Once Children had been
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31
(
taken into CYS care, and after they gained the ability and resources to .work through the
traumas of their past, Mother remained a cold or distant figure for them, as noted
through the observations of no fewer than three professionals who worked with them.
During his 2014 parental capacity assessment, and as recounted on the witness stand,
Mr. Dick repeatedly noted the sheer lack of any emotional attachment between Mother
.and Children, exacerbated by her inability to put Children's needs ahead of her own. Mr.
Dick further explained that Mother simply failed to appreciate the traumas Children had
experienced, her part in them, and what she could do to repair the relationship moving
forward.
Ms. Stahlman worked with Mother and Children1 both in Individual and in group
therapy, to facilitate a 'resolotlon" between the parties overfne traumas they had all
experienced and how to proceed moving forward to a healthy relationship based on trust
and open communication. Ms. stahlman conducted weekly therapy sessions for a
period tasting r:iearly two years; from September 201-5 to June 2017, which provided her
with regular opportunities to observe how Mother interacted with Children. Although she
remarked atseveral points during her testimony that Mothergenerally cooperated With
the therapy sessions and even showed progress, Ms. Stahlman ultimately conctudeq
that their work did not produce the hoped-fodeelings of "love, connection, [and]
attunement to feelings" between the parties, nor did it lead to Mother being able to
independentiy display empathy With Children. Ms. stahlman further noted that, besides
getting defensive about her behavior, Mother made troubling statements during some
sessions thatdownplayed or minimized or negatively compared Children's traumas
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in. an apparent effort to encourage them to move on or "get past" what had happened.
These statements clearly were contrary to the therapy sessions' goals of validation and
acceptance of another's trauma, but supported Mother's focos on her own feelings at the
expense, however unintentional, of her daughters.
Ms. Pieri, the CYS caseworker who had firsthand observations of Mother and
�hildren since August 201.6 supplemented by two-year's worth of her predecessor's
notes, additionally relayed her impressions that no bond existed between Children and
Mother. Also from this time is the "notice/demand" letter Mother sent to CYS in June
2017 in which she demanded the immediate return of not merely her children, whom she
·;
refused to call by name, but her "property." It is hard to imagine a greater emotional
disassociation between a mother and her children than the characterization of her
offspring as anonymous chattels.
ln contrast to Mr. Dick, Ms. Stahlman, and Ms. Pieri, all of whom had months or
(
years of personal experiences observing Mother and Children together, Dr. Gallo at no
time witnessed Mother interact with Children when completi.ng his January 2016
psychological evaluation of her; Thus, we accord less weight to any of his conclusions
insofar as they pertain to the relationship between Mother and Children, and the
reunification thereof. This. is not to discount Mother's petformance on the psychological
ests he administered, but rather to ernphastze the fact that Dr. Gallo's work'. is largely
isolated from the remainder of the professionals in this.case, all of whom were
contracted through or an agent of CVS.
These realities of Mother's relationship with Children establish that the emotional
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,,
Since then, despite· having several years to learn, reflect. and act on the suggestions for
improvement provided to her by experienced professionals, Mother is no closer now than
she was then to having a productive emotional relationship with her daughters. Mother's
emotional incapacity is distinct when examined alongside otherindicators of her ability to
parent. As required of her under the taw, Mother successfully complied with nearly all of
the requirements of the FSP and showed she would. be able to provide a materially
·appropriate home for Children if they were to be returned to hercare, In contrast to
other termination cases, in wtiich a parent's compliance With a family-service plan is
minimal or nonexistent, Mother's willingness and .ability to cooperate with many of the
requirements merits commendation. Additionally, this court is mindful of Mother's own
hlstory.of trauma and abuse, and does not seek to minimize or discount what she has
endured. However, these mitigating and sympathetic factors aside, we cannot look past
Mother's lack otsuccess and demonstrated inability at emotionally bonding with her
daughters.
While a parent's duties certalnlylnclode providing a physical home and
sustenance for his/her children, the duty does not end there. Our Supreme Court'has
said:
°There is no simple or.easy definition of parental duties. Parental duty is best
understood in relation to the needs-of a child. A child needs love, protection,
guidance, and support. These needs, physical and emotional, cannot be metby
a merely passive interest tn the development of the child. Thus, this court has
held thatthe parental obligation is· a positive duty which requires affirmative
performance.
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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 the child needs more than a benefactor. parental duty requires that a
parent "exert himself to take and maintain a place ofimportance in child's life."
In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (citin� In re Burns, 379 A.2d
535 (Pa. 1977)).
At the present time, Mother demonstrates an inability to· empathize and validate
Children's feelings, and as a result would be unable to provide the love, guidance, and
support· a healthy parent-cblld relationship needs. Mother has certainly made modest
efforts through therapy and other aspects ofthe FSP to rebuild these ties with Children
but ultimately is unable, afteryears ofworl<, to do so; Children cannotwaltany longerfor
Mother to try.. This· Court"cannot and will not subordinate indefinitely a child's need for
permanence and stability to a parent's claims of progress and hope forthefutare."
R.J.S., supra, at513. Therefore, Mother's inability to remedy-these issues, and prQvide
the love and emotional support her daughters require for their present and future mental
well·being, supports grounds for termination under Section 2511(a)(2).
CYS has also petitioned that Mother's parental rights be terminated pursuant to
Section 2511 (a)(8). As stated above, each analysis under $ection 2511 (a)(B) must
examine whether CYS has presented clear and convincing evidence of three factors, as
of the time of the petition: (1) the child has been removed from parental care for 12
months or more from the date of removal; (2) the conditions which Jed to the removal or
'53RD
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DISTRICT placementot the· child continue to exist; and (3) termination of parental rights would best
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serve the needs and welfare ofthe child. M.E.P., supra, at 1276. Because the length of'
time between Child re n's removal from the home in November 2013 and the filing of the
Termination Petitions. .in April 2017 spans 41 months, the first factor· is satisfied. The
second factor, however, is unsatisfied because CYS has not adduced sufficient evidence
demonstrating thatthe conditions which led to Children'·s removal continue to exist.
In contrast to Mother's emotional incapaclty, which was only later developed as
grounds for termination under Section2511 (a)(2), the condhlons on Mother's part which
led to Children's removal were the household's "deplorable" condition and her then-
present inability to care for Children due to her hospitalization following Father's assault.
Over the five years that have elapsed since Children's removal in November 2013, both
of these conditions have abated and no longer exist. First, Mother was released from
the hospital within several weeks of the assault and, although Children were by this time
in CVS care and adjudicated dependent, was nonetheless physically ableto provide
care if Children had been released to her custody.. Second, as relayed by both Mr. Dick
in 2014 and Ms. Pieri in 2017, Mother had cleaned up her home, obtained new
furnishings approprlate for Children, and secured working utilities, all of which indicated
that the household was .no longer in "deplorable" shape. While these steps forward were
overshadowed by later developments and revelations, Mother nonetheless remedied
both of the conditions that immediate.ly triggered Children's removal from her care. This
leaves the second factor under Section 2511 (a)(B) unsatisfied, which in turn stops us
from proceeding to the evaluation of the third factor. Accordingly, no grounds for the
involuntary tem,ination of Mother's parental rights exist under Section 251 t(a)(B).
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Now that grounds for termination have been established under Section
2511 (a)(2), we proceed to the second stage of the bifurcated analysis, the needs and
welfare analysis under Section 2511 (b).
First, thls Court will conduct the bond exarnlnatlcn, which we are duty bound by
ample precedent to perform. In re K.K.R.-S.1 958 A.2d 529, 533 (Pa. Super. 2008).
Upon reviewing. the evidence, it is clear that Mother and Children's long$tanding
relationship notwithstanding, they share an unhealthy bond that suffers from a paucity of
affection or meaningful positive connection. Prior to placement, Children and Mother
had a strained relationship at best, peribdically punctuated by Father's abusive
episodes. Following placement, no fewer than three professionals who worked
extensively with Mother and Children commented on the utter Jack of positive feelings or
I
genuine emotional bonds that are needed for a healthy upbringing: Mr. Dick described
the relationship as "emotionally disconnected;" Ms. Stahlman plainly stated that Children
"don't feel accepted, loved and attached" to Mother; and Ms. Pieri succinctly noted no
bond or attachment existed between Mother and Children.
Behavior on the part of K.M.R. after social visits with Mother also speaks volumes
to the unhealthiness of their bond, such as self-harm fallowed by an outright refusal to
attend any more visits due to the toll the strained interactions took on her well-being.
Moreover, KM. R. herself stated that she has no feelings toward Mother, has no love for
her, and would be content to. never see her again. For J. L.A., it has been noted that her
ability to communicate with Mother is 'frozen and stagnant." On Mother's part, her
position has wavered from her seeming commitment to the resolution and reunification
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process to referring to Children as "property." All the while, the bilateral relationship has
------·-··------'�----------------------------·---·--·--·-----·-··--··-·-· ·
(
be.en marked by hurt feelings, instability, and lack of trust. In short; there ls no
salvageable bond between Mother and Children, and consequently, Children would not
be harmed by the severance of that relationship.
By contrast, post-placement K.M.R. and J.l.A. have, by all measures, thrived with
their long-term foster family. Since enrolling in the Mohawk School District. K.M.R. has
made tremendous progress by achieving standout grades, joining student organizatfons
(e.g. marching band and the $Pring musical), and making numerous friends. J.L.A. has
also had academic success despite getting a later start at formal schooling than many of
her peers. The. foster parents have provided anything Children have needed, from
clothes and food to homework help -and transportation. For their
. part, Children
. have
formed close-knit relationships with their foster famUy, to the pointthat their foster
siblings became simply known to them as 'brother and sister." At their foster and
ostehsibly pre-adcptive home, Children appear to be happy, safe, and loved. Therefore,
this Court concludes that terminating Mother's parental rights would be in Children's best
interests by meeting their needs and welfare as contemplated by Section 2511(b).
Aoplication as to Father
CYS has petitioned that Father's parental rights to Children be terminated
pursuant to Section 2511 (a)(2) and (8), each of which we will again evaluate in
conformity with the principles recited above.
With respectto Section 2511 (a)(2), CYS has demonstrated .by clear and
convincing evidence that Father has exhibited a repeated and continued incapacity for
parenting that has caused Children to be without essential parental care, control or
53RD
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l>ENl•U