In the Interest of: T.W., a Minor ( 2016 )

J-S10002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: D.W., MOTHER : No. 2188 EDA 2015
Appeal from the Order Entered June 17, 2015
In the Court of Common Pleas of Monroe County
Domestic Relations at No(s): 45-FN-41-20; 48 OCA 2013;
CP-45-DP-0000064-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 26, 2016
Appellant, D.W. (“Mother”), appeals from the order entered in the
Monroe County Court of Common Pleas, which involuntarily terminated her
parental rights to minor child, T.W. We affirm.
In its written opinion, the trial court fully sets forth the relevant facts
and procedural history of this case.1 Therefore, we will only briefly
summarize them. Mother and Father have had a volatile relationship since
before T.W. was born in 2012. The Monroe County Children and Youth
Services (“CYS”) became involved in this case on June 30, 2012, upon
learning that T.W. had been injured when Father threw her, in her car seat,
out of a vehicle during an argument with Mother. T.W. was placed in CYS’
custody on July 1, 2012, because Mother and Father were both incarcerated;
T.W. has been in foster care since that time. The court adjudicated T.W.
1
(See Trial Court Opinion, filed April 11, 2014, at 1-14) (Permanency/goal
change appeal).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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dependent on August 3, 2012, with an initial permanency goal of
reunification. Following several review hearings, the court changed the
permanency goal to adoption on January 24, 2014. Mother filed an appeal
from that order, which this Court affirmed on August 22, 2014. See In re
T.W., 106 A.3d 172 (Pa.Super. 2014) (unpublished memorandum).
Meanwhile, on December 3, 2013, CYS filed a petition for involuntary
termination of the parental rights of Mother and Father. The court
conducted multiple hearings on the termination petition throughout 2014
and 2015. On June 12, 2015, the court terminated Mother’s and Father’s
parental rights to T.W.2 Mother timely filed on July 10, 2015, a notice of
appeal and a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i).
Mother raises the following issues for our review:
DID THE TRIAL COURT ERR IN TERMINATING THE
PARENTAL RIGHTS OF [MOTHER] WHERE CYS DID NOT
PRESENT CLEAR AND CONVINCING EVIDENCE THAT:
(A) [MOTHER] FAILED TO PERFORM PARENTAL
DUTIES FOR A PERIOD OF MORE THAN SIX (6)
MONTHS;
(B) MOTHER FAILED TO REMEDY THE CONDITIONS
AND CAUSES OF THE ALLEGED ABUSE;
(C) MOTHER FAILED TO REMEDY THE CONDITIONS
WHICH LED TO THE REMOVAL OR PLACEMENT OF
[T.W.], AND;
2
Father filed a separate appeal from the order terminating his parental
rights, which is docketed at No. 2113 EDA 2015 (J-S10001-16).
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(D) TERMINATION OF PARENTAL RIGHTS WOULD
BEST SERVE THE NEEDS AND WELFARE OF [T.W.]
DID THE TRIAL COURT ERR IN TERMINATING [MOTHER’S]
PARENTAL RIGHTS WHERE CYS FAILED TO MAKE
REASONABLE EFFORTS TOWARDS REUNIFICATION
DESPITE THE TRIAL COURT’S CONCURRENT GOAL OF
REUNIFICATION?
DID THE TRIAL COURT PROPERLY DISREGARD MOTHER’S
CONTINUED EFFORTS TO COMPLY WITH THE FAMILY
SERVICE PLAN AND REFRAIN FROM INCIDENTS OF
DOMESTIC ABUSE?
(Mother’s Brief at 4-5).
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent
evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the welfare
of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must
employ a broad, comprehensive review of the record
in order to determine whether the trial court’s
decision is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the
finder of fact, is the sole determiner of the credibility
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of witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted).
The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
may uphold a termination decision if any proper basis
exists for the result reached. In re C.S., 761 A.2d 1197,
1201 (Pa.Super. 2000) (en banc). If the court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
(Pa.Super. 2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d
1165 (2008)).
CYS sought involuntary termination of Mother’s parental rights on the
following grounds:
§ 2511. Grounds for involuntary termination
(a) General Rule.―The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
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neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for [her] physical or mental
well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
* * *
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
* * *
(b) Other considerations.―The court in terminating
the rights of a parent shall give primary consideration to
the developmental, physical and emotional needs and
welfare of the child. The rights of a parent shall not be
terminated solely on the basis of environmental factors
such as inadequate housing, furnishings, income, clothing
and medical care if found to be beyond the control of the
parent. With respect to any petition filed pursuant to
subsection (a)(1), (6) or (8), the court shall not consider
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any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).
“Parental rights may be involuntarily terminated where any one
subsection of Section 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., supra at 1117.
Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in Section
2511(a). Only if the court determines that the parent’s
conduct warrants termination of…her parental rights does
the court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the needs
and welfare of the child under the standard of best
interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
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duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for…her conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of…her parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary, those grounds may
include acts of refusal as well as incapacity to perform parental duties. In
re A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. The fundamental test in termination of
parental rights under Section 2511(a)(2) was long ago stated in the case of
In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania
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Supreme Court announced that under what is now Section 2511(a)(2), “the
petitioner for involuntary termination must prove (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,
neglect or refusal caused the child to be without essential parental care,
control or subsistence; and (3) that the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied.” In Interest of Lilley,
719 A.2d 327, 330 (Pa.Super. 1998).
“Termination of parental rights under Section 2511(a)(5) requires
that: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to removal and 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 Z.P., supra at 1118.
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) the child has been removed from
parental care for [twelve] 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., 825 A.2d 1266, 1275-76
(Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
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are involved when inquiring about the needs 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.” Id. at 520. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship. When conducting a bonding
analysis, the court is not required to use expert testimony.
Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a
formal bonding evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have [her] parental rights terminated.” In re B.L.L.,
787 A.2d 1007, 1013 (Pa.Super. 2001). This 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
met by a merely passive interest in the development of the
child. Thus, this court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
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Because a child needs more than a benefactor, parental
duty requires that a parent exert [herself] to take and
maintain a place of importance in the child’s life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of…her ability, even in difficult circumstances.
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with [the child’s] physical
and emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of…her child is converted,
upon the failure to fulfill…her parental duties, to the child’s right to have
proper parenting and fulfillment of…her potential in a permanent, healthy,
safe environment.” Id. at 856.
Importantly, neither Section 2511(a) nor Section 2511(b) requires a
court to consider at the termination stage, whether an agency provided a
parent with reasonable efforts aimed at reunifying the parent with her child
prior to the agency petitioning for termination of parental rights. In re
D.C.D., ___ Pa.___, 105 A.3d 662, 672 (2014). An agency’s failure to
provide reasonable efforts to a parent does not prohibit the court from
granting a petition to terminate parental rights under Section 2511. Id. at
___, 105 A.3d at 675.
After a thorough review of the record, the briefs of the parties, the
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applicable law, and the well-reasoned oral opinion of the Honorable Jonathan
Mark, we conclude Mother’s issues merit no relief. The trial court’s oral
opinion comprehensively discusses and properly disposes of the questions
presented. (See N.T. Oral Opinion, 6/12/15, at 10-42 and attached
addendum) (finding: at time of termination hearing, T.W. had been in CYS’
care for approximately 33 months; Mother and Father had volatile
relationship that included criminal charges, protections from abuse (“PFA”),
and domestic issues; underlying issues between Mother and Father have not
been resolved; T.W.’s safety, health and well-being are paramount concerns
and must be ensured; neither Mother nor Father has demonstrated current
ability to provide requisite assurance of T.W.’s safety; Mother has not
demonstrated necessary protective capacities; Mother incurred criminal
charges after she admitted to lying to authorities about Father’s behavior
toward T.W.; Mother has been unable to extricate herself from relationship
with Father, protect herself from Father’s abuse, restrain her own violent
and abusive tendencies, or stop her pathological lying; Mother failed to
appear for last several visits with T.W. prior to start of termination hearings;
under Section 2511(a)(1), Mother and Father made progress towards some
of goals but failed to take necessary steps toward reunification with T.W.;
Mother and Father failed to perform parental duties for more than six
months, as both parents were incarcerated and spent majority of time
fighting with each other; CYS met statutory grounds for termination under
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subsection (a)(1); Mother and Father refused to provide essential parental
care, control, and assistance to T.W.; CYS established grounds for
termination under Section 2511(a)(2); grounds for termination also existed
under Section 2511(a)(8), because T.W. had been removed from Mother and
Father’s care for at least twelve months, condition that led to T.W.’s removal
still exists, and termination of Mother’s and Father’s parental rights best
serves needs and welfare of T.W.; court properly considered Mother and
Father’s post-petition efforts as grounds for termination because termination
petition was filed in December 2013, and first termination hearing was not
held until one year later; reunification efforts are not valid consideration
under subsections (a)(1), (a)(2), and (a)(8); T.W.’s foster family provided
love, care, companionship and support that Section 2511(b) requires, while
Mother and Father were busy filing criminal charges and PFAs against each
other and exhibiting pathological codependency; T.W. has strong bond with
foster family and severing that bond would be detrimental to her; T.W. has
not developed any traditional bond with Mother and Father, as she spent her
first several months in hospital and has had only supervised visits with
parents for most of her life; only bond T.W. has with Mother and Father is
biological; severing T.W.’s bond with Mother and Father pales in comparison
to severing bond with foster parents, who wish to adopt T.W.; safety
concerns also exist with Mother’s and Father’s care of T.W.; CYS established
grounds for termination under subsection (b); current placement goal of
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adoption remains appropriate and necessary). The record supports the
court’s decision; therefore, we have no reason to disturb it. Accordingly, we
affirm on the basis of the court’s oral opinion issued at the termination
proceeding.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2016
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Circulated 02/18/2016 12:35 PM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
IN THE INTEREST OF: NO. 64 DP 2012
NO. 48 OCA 2013
T. w.,
A Minor HEARING
TRANSCRIPT OF PROCEEDINGS
BEFORE: Jonathan Mark, Judge
DATE: June 12, 2015
9:30 a.m.
PLACE: Courtroom No. 1
Monroe County Courthouse
Stroudsburg, Pennsylvania
APPEARANCES:
ELIZABETH BENSINGER WEEKES, ESQUIRE
529 Sarah Street
Stroudsburg, Pennsylvania 18360
-- Solicitor
DONALD M. LEETH, ESQUIRE
818 Ann Street
Stroudsburg, Pennsylvania 18360
On behalf of Mother
ERIC L. HAMILL, ESQUIRE
501 Broad Street, Suite #3
Milford, Pennsylvania 18337
-- On behalf of Father
~ '·' ,!;;
. j~
/#···f./l ===================================================== ~
·;, . Proceedings stenographically recorded by ``~ .
Yvestre M. Torres, OCR ~
s
ADDENDUM
ATTACHED TO THE TRANSCRIPT:
1. OPINION IN SUPPORT OF ORDER PURSUANT To Pa. R.A.P.
1925(a)
2. ADDENDUM TO ANNOUNCEMENT HEARING
3. NON-PRECEDENTIAL DECISION
3
1 P R O C.E ED ING S
2 THE COURT: Good morning, everybody.
3 MS. WEEKES: Good morning, Your Honor.
4 MR. HAMILL: Good morning, Your Honor.
5 THE COURT: We are here now as scheduled to
6 announce a decision in both of the cases involving
7 Time Warner, the dependent in this case, and the
8 termination of parental rights case.
9 This case has been around for a while, so
10 I'm going to take a little bit of time to make sure
11 that I try to be as clear as possible. We will get
12 to this in more detail later, but the last hearing in
13 this case was at the end of April, and the parties
14 were given, I think, three or four weeks, whatever it
15 was, to file some briefs, some memoranda, and
16 post-submmission filing.
17 Then even though this was a case involving a
18 child, this is a highly-contested, long-running
19 dependency case, relatively long-running termination
20 of parental rights case, and so the Court wanted to
21 take a little bit of time to look at some of the
22 legal issues and the facts before making a decision.
23 That coupled with the Court's schedule,
24 including federal trials and other matters and
\
i
' 25 personal matters, made it so that the extra month
Pursuant to 43 J.D.R.C.P. Rule 260c "No transcript sh•II bo fumlshad to II p811.y until all exp•nses of transcription .,. paid.
Any reproduction of •n oltlci11/ tnnscrlpt Without p,lorcourt approvrtl ls prohibited,• .
4
1 from the time the briefs were in until now elapse.
2 So today I will announce both decisions.
3 Orders will be issued today or tomorrow, at the
4 latest, depending on whether the computer system is
5 cooperating with us or not.
6 At the last hearing, this case was at the
7 end of April. The evidence was concluded. I do not
8 anticipate taking any evidence today or hearing any
9 argument today. I will note that the parents are
10 here with their respective attorneys. So Father is
11 here, I guess, with one of his two attorneys. Right,
12 Mr. Hamill?
13 MR. HAMILL: Correct.
14 THE COURT: His second attorney, I guess, is
15 not here, but I'm not sure if we really need two for
16 this. I believe the guardian ad litem is also not
17 present. I know that the guardian is on vacation,
18 and because it was we tried to schedule this, I
19 didn t know if she was going to have someone else sit
1
20 here to listen. But I know she was interested in
21 hearing -- according to what was provided to my
22 office -- the outcome, and, of course, a transcript,
23 if necessary. But everybody else is here. The
24 agency is here, represented by several people,
25 including a couple of supervisors.
Pursuant to 43 J.D.R.C.P. Rule 250c "No t'9nscrlpt shall be furnllhed to • patty until ell expensn of tranacriptlon are paid,
Any ,.production of an offle/al transcript without prior court approval ls prohibited.•
5
1 Now, after the last hearing, I believe I
2 indicated the parties were going to need to file
3 memoranda and post-submission filings. Mother,
4 Father and Monroe County Children and Youth Services
5 -- who for the rest of this announcement, unless I
6 slip, I will refer to as the agency -- filed briefs.
7 Father and the agency included in their submission
8 some findings of fact.
9 In addition, Father submitted, by praecipe,
10 an additional document, which I assume he was wanting
11 to make of record as part of the evidentiary record,
12 and that was, I believe, a magisterial district
13 judge's order for document -- at least some kind of
14 document indication that a case that has been filed
15 against him, and had been mentioned during
16 termination hearing, had been dismissed, and that is
17 in the file. I don't know if it was distributed to
18 other parties or not, but it is in the file.
19 The Defendant in the matter in this case --
20 the Defendant in this case, I should say, has an open
21. -- has been opened in the records of Monroe County
22 Children and Youth Services since June 30, 2012, and
23 this Court shortly thereafter. It is, as indicated,
24 a much litigated, highly-conteste_d case and has been
25 all along.
Pursuant to 43 J.O.R.C.P. Rul · guardian ad litem, and the applicable law,
11 it was and is still obvious to us that Mother has
12 simply not progressed to the point where T. W. could
13 safety be returned to her.
14 That determination, coupled with TW.' s
15 needs and welfare, the amount of time 'TW'. has been
16 in care, and the firmly entrenched and oft-quoted
17 doctrine that "a child's life simply cannot be put on
18 hold in the hope that the parent will summon the
19 ability to handle the responsibilities of parenting,"
20 led us inexorably to the conclusion that the goal
21 change we ordered was in :T,w. '.5 best interest.
22 Finally, on pages 25 and 26 of the case
23 I •m sorry - - of the appeal opinion, T W. '.=; health,
24 safety and well-being are the paramount concerns, and
I
_J 25 her best interest is the guide star.
Pursuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be fllmished to a party until all expenses of transcription are paid.
Any reproduction of an official transcript without pr/or court approval Is prohibited.•
15
1 · T. W, ~ safety must be ensured regardless of
2 whether she was injured in the roadside incident,
3 which scenario could be supported by at least
4 Father's evidence; in the incident where Mother
5 dropped her, which scenario could be supported by the
6 statements of either or both parents; or in some
7 prior incident which has yet to be explained by the
8 parents, but that would be equally problematic.
9 In fact, T.h/.'s safety must be assured even
10 if Mother's no-injury assertion is accepted. Neither
11 parent has demonstrated the current ability to
12 provide the requisite assurance.
13 In this regard, it cannot be emphasized
14 enough that, under both parents' versions of the June
15 30, 2012 incident, TW. came into care because the
16 volatile nature of Mother and Father's relationship
17 shockingly caused them to become embroiled in an
18 argument that led them to literally play a game of
19 tug-of-war with TW. in a car seat at the side of a
20 public road.
21 While T vv. is now physically safe, the
22 tug-of-war between the parents continues, at times
23 literally and at times figuratively, and the
24 underlying issues that cause their battles have not
25 been resolved.
Pursu1tnt to 43 J.D.R.C.P. Rule 250c "No t(lfnscrlpt shall be tum/sherl to a party until all e1tpenses of transcription are palrl.
Any ,aproduction of an official transcript without prior court approval is prohib/terl, •
16
1 That, of course, was all as of the time that
2 the appeal opinion was written and as of the last
3 permanency review and goal change hearing that had
4 been conducted in the case. Now, I read passages
5 that have negative implications to be true to the
6 facts and also to balance, as indicated, the opinion
7 and as the parents have argued strenuously.
8 Both parents did make progress toward their
9 goals. In fact, in the proposed findings that
10 Children and Youth submitted, progress was noted, and
11 Mother s progress, I think, was noted in most, if not
1
12 all, of the review hearing orders up to the point
13 when the appeal was filed and afterwards as well.
14 That continued in terms of checking off
15 goals throughout the time while the case was on
16 appeal and afterwards throughout the termination of
17 parental rights hearing. Procedurally, there was an
18 overlap between the goal change request and
19 proceeding and the termination of parental rights
20 proceeding.
21 And I think it's captured in the opinion,
22 but just quickly because there is a gap in this case
23 that needs to be explained, and probably all of us
24 need to do some self-examination on it, and that is
25 this: As the dependency case progressed into the
Pun,uant to 43 J.D.R.C.P. Rule 21i0c "No transcript sh&ll be furnished to a patty until all eJtpenses of transcription llf41 paid.
Any reproduction of an official transcript without prior court approval is prohibited.•
17
1 fall of 2013, the matter was scheduled to be reviewed
2 by our dependency master pursuant to our three-month
3 review protocol in September of 2013.
4 The agency appeared and objected to the
5 jurisdiction of the master, and asked the Court to
6 hear the case, so a hearing was scheduled. The
7 guardian ad litem then asked for some additional time
8 to subpoena records from other states because of the
9 issues that Mother had there that are referenced and
10 documented in the exhibits and in the appeal opinion,
11 and the notes of testimony that are cited in that
12 opinion.
13 So a new hearing date was scheduled, and
14 that was for December of 2013. I didn't write down
15 the specific day. While all that was going on, and
16 the guardian was gathering records, the agency filed
17 a termination of parental rights petition. That
18 petition was filed and because the date can be
19 significant, depending on whose argument we look at,
20 the termination petition was filed on December 3,
21 2013.
22 So at that point, we had not yet had the
23 goal change hearing. And there were two subsequent
24 review hearings where the change of goal was
25 addressed. And so it sort of begs the question why
Punuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be furnished to a parl.y ufllll all expaf!ses of transcription ara paid.
Any reproduction of an offlclal transcript without pr/or coun approval ls prohibited.•
18
1 we didn't include the termination of parental rights
2 petition in those hearings, and the simple question
3 -- the simple answer, which is contained in the
4 footnote of page 9 of the appeal petition, was that
5 at the time the original master's hearing was
6 scheduled, we had not yet been to the magic 15-month
7 mark in the case, the agency did not ask for the
8 termination of parental rights, and the parents had
9 been making some progress, as had been indicated in
10 the orders; although, there were a whole host of
11 problems, as even my handful of passages that I read,
12 indicated.
13 Then quite frankly, the parties asked since
14 the goal change had already been set up and started,
15 and the agency wanted to get itself together with
16 respect to termination, and Mother and Father wanting
17 to put evidence and witnesses together, they ask that
18 the hearing not be heard together. And even though
19 it's best practice to file the two together, there
20 were no concurrent filing, if you will, so they
21 started a goal change hearing.
22 The order that I issued changed the goal. I
23 did set a hearing on termination petition, but then
24 by request from all parties, I agreed to postpone
25 that hearing until after the appeal was filed.
Pursuant lo 43 J.D.R.C.P. Rule 250c "No transcript shall be furnished to a pany untll a/1 expenses of transcription are paid.
Any reproduction of an official transcript w/lhout prior court approval Is prohibllad. •
19
1 Looking back that was probably something that should
2 not have been done. It, you know, -- the reason that
3 there is a best practice now with filing at a proper
4 point in a dependency case towards a goal change and
5 a termination petition simultaneously is so you don t 1
6 have the time that you have here. You know, when you
7 do one and you wait for an appeal and then come back
8 and have the result.
9 In any event, that happened at the time --
10 in real time going forward. There were or appeared
11 to be rational reasons and bases for doing so. But
12 with the look back, it probably shouldn't have been
13 done that way.
14 In any event, the appeal was pursued. The
15 appeal opinion that I talked about was written. The
16 parties participated in the appeal, so did the
17 guardian ad litem, and ultimately, as indicated, the
18 Superior Court -- the Superior Court affirmed the
19 goal change.
20 So, after the goal change order -- I m sorry 1
21 -- after the Superior Court's order came down, and
22 the appeal period -- the period for filing the
23 petition for the allowance of an appeal from the
24 Supreme Court expired, a termination petition -- the
25 termination hearing scheduled on the termination
Pur;ruant to 43 J.D.R.C.P. Rule 250c "No lranscrlpt shall be furnished to a party until all expenses of transcrlpllon are paid.
Any reproduction of an off/clal transcripl without pr/or court approval ls prohibited,•
20
1 petition at that point had been filed almost a year
2 before the first hearing was scheduled; although,
3 again, it's not what the Court wanted.
4 The hearing was scheduled in accordance
5 with, you know, attorney schedules and that included
6 a three-and-a-half month delay to accommodate the
7 schedules of the attorneys for Father between the
8 December of 2014 period and the March 2015 hearing.
9 So there were review hearings while the
10 appeal was going on, and theri the termination of
11 parental rights and corollary dependency review and
12 permanency placement review hearing were held in
13 December of last year and March of this year.
14 Not much had changed, although, the parties
15 still had visits and continually visited; although,
16 visitation had been very, very problematic, both with
17 respect to the agency's side and with respect to the
18 parents, especially with respect to Father.
19 It came to light that during the --
20 somewhere during the appeal period and between the
21 last review hearing before the Court and then the
22 commencement of the termination and review hearing in
23 December of 2014, that despite the concurrent goal of
24 reunification, the agency admittedly stopped doing
'1
25 what was in the court order and didn't move at all
Pursuant to 43 J.D.R.C.P. Rule UOc "No tr.msc1lpl 11hall be furnished lo a parl.y until all exponses of transcript/on are paid.
Any reproduction of an off/clal transcript without prior court approval Is prohiMed. •
21
1 towards reunification.
2 That shocking revelation came from the stand
3 from one of the caseworkers, and it was borne out by
4 the documents that were submitted, and also by the
5 cross-examination that was conducted by counsel for
6 both parents. So the case proceeded to termination
7 hearing with all parties calling multiple witnesses
8 and making arguments and filing briefs on several
9 legal issues and then the post-hearing submission
10 that I talked about.
11 I do need to note that the parties continued
12 to make some progress, or at least keep checking off
13 some of the black and white stated goals in the plan.
14 However, there were several things that were
15 problematic:
16 One, again, visitation, which became a
17 matter of principles between the agency and Father,
18 especially very unfortunately in this case, was just
19 pot marked with issues even to the point where we had
20 to have a conference and figure out the e-mail
21 protocol and confirm appointments, and even then
22 there were some problems, and, you know, the parents,
23 especially Father, wants to assess and have the Court
24 assess and pass blame. That's not what the Court
25 does in these cases.
Pursuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be furn/shed to a party until all expanses of tr.mscrlption are paid.
Any reproduction of an official transcript without prior court approval ls prohibited.•
22
1 On the other hand, I can say that, you know,
2 Father throughout this whole procedure would not
3 fully adhere to the advisement of the Court, and I am
4 assuming from his attorney, that at some point you
5 have to parent, I guess put principles aside, and you
6 have to work towards reunification rather than trying
7 to catch every miscue that the agency does.
8 On the other hand, it's pretty clear that
9 the agency didn't comply with the secondary portion
10 of the concurrent goal which was reunification.
11 However, it should be noted that the agency did, of
12 course, pursue the primary first of the concurrent
13 goals which was adoption.
14 In any event, as I indicated before, even up
15 to the termination of parental rights hearing, there
16 still had been no full explanation for the injury.
17 Mother had done well visiting, except right before
18 the hearing, where she did not appear for the last
19 two or three visits. I am not sure about since then.
20 Father was working and doing some other
21 things. However, I know he continued his principle
22 fight with the agency, at times casting dispersions
23 on the agency and even the Court. But that is how
24 Father had elected to play this case, despite the
25 best attempts of the Court and initially the best
Puf5u•nt 10 '3 J.D.R.C.P. Rule 260c "No 1,11nscrlplaha/Ib• furnished to a party until all ex,,.nsH of tranacripllon art paid.
Any reproduction of an official tranKtipt wlthOut P,lorcourt approval ls prohlbil•d. •
23
1 attempts of the agency to try to get him to focus on
2 parenting and T'.\IY.~ best interest.
3 So at the conclusion of the hearing, when I
4 looked at the briefs, the parties had a pretty
5 polarized position. The guardian ad litem
6 articulated a very cogent reason why rights should be
7 terminated, why the dependency should be continued
8 and the goal should be maintained as adoption.
9 Father and Mother articulated their beliefs
10 that because the agency had not worked towards the
11 concurrent goal, that either as a matter of law or
12 fact or discretion, that termination should not be
13 granted, and the impasse continued.
14 So I will say this: This is not a case
15 where it is the shining moment for any of us. This
16 is not a case that I'm going to hold up in my
17 repertoire as one where I guided the parties in the
18 best interest of the child in the best way possible.
19 I am not going to sit here and cast dispersions on
20 anyone else. Everybody else hopefully has engaged in
21 that same self-reflection.
22 From continuing these cases, you know --
23 through continuance requests and appeals, we tried to
24 give the parents some post-petition chance to finally
25 get it and make some progress, to not fully following
Pursuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be fumtshod lo a party until all eitpenses of transcription are paid.
Any reproduction of an official transcript without prlorcout1 approval is prohibited.•
24
1 the court orders, to principle arguments against the
2 agency, the Court or just arguments, whether they are
3 credible or not, and, of course, with respect to the
4 parents quite frankly not being candid in their
5 testimony, and that especially is one for Mother.
6 I hate saying no to things, but I've learned
7 now that this case is going to look much different in
8 a cold two-dimensional record on appeal than it did
9 to all of us who sat in the courtroom and listened to
10 the evidence, watched the witnesses, observed the
11 parties as the case went along. So, unfortunately, I
12 have to make observations such as those.
13 I want to make this other observation as
14 well: It is that the attorneys, who really zealously
15 advocated and fought for their clients can t testify 1
16 for clients, and I'm going to leave the factual
17 portion as this: Mother and Father wanted to fight.
18 They wanted to fight the agency, they wanted to put
19 this in a position for appeal, whatever. That was
20 then obvious to me.
21 In the end, I don't have the transcript. No
22 one has requested one yet, but I think you're going
23 to come back and you're going to see that there was a
24 lot of venom, quite frankly on both sides, and in the
25 final analysis neither parent sat on that stand,
Pursuant ta 43 J.D.R.C.P. Rule 250c "Na transcript shall be furn/shed ta a party until all expenses of transcription are paid.
Any reproduction of an official transcript without pr/or court appro11t1/ ls prohibited.•
25
1 either in this courtroom because we were here for one
2 hearing, or in my courtroom, No. 3, and told me in
3 any detail with any feeling or emotion about how they
4 had any -- about their feelings towards their bond
5 and other emotional and spiritual feelings towards
6 their daughter.
7 That's understandable after the passage of
8 time. It was disturbing to me then, and it's
9 disturbing to me now. So now, we have to apply all
10 of this to the law, and I've laid it out here in the
11 addendum, and I will note a couple of things.
12 There was a legal issue that I asked the
13 parties to address early on in the termination, and
14 that is given the appeal filed by Mother and the
15 several requests for continuance asked for by counsel
16 for Father, did the statutory provision that
17 precluded the Court from considering post-petition
18 efforts by the parents with respect to some, but not
19 all of the bases, were grounds for termination?
20 Did that coalesce? Did that stop it? Did
21 that create some type of exception to the rule? And
22 I got some briefs from the parties. I think the
23 parties' research was the same as mine. There was no
24 real specific case on this issue, other than it is
25 pretty clear that the statutory provision against
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Any reproduction of an official transcript without prior court approval is prohibited.•
26
1 considering efforts initiated after the given notice
2 of filing a petition remained, and it has been
3 enforced consistently by our courts.
4 It makes sense because -- at least under the
5 current cases and current protocols and rules for
6 processing the dependency and termination cases --
7 and that is because at some point when a petition is
a filed in accordance with the current rule, and a
9 child is in care, by definition in the one that's
10 been cited, for more than a year, it makes sense that
11 we need to look at the child and not put our main
12 focus on the parent. And so we have to have some
13 kind of a cut off and this is what our
14 legislature had decided -- one second.
15 {Off the record.)
16 (Back on the record.)
17 THE COURT: I sat through a bunch of
18 hearings, and I am not just going to -- this is a
19 very important case. So I don1t want to speed
20 through, but the president judge is not in today, and
21 I have to attend to a matter in about five minutes
22 and then come back.
23 In any event, I have concluded that -- and
24 no party has pointed me in a different direction --
25 that the rule still applies, even though the petition
Punu,nt to 43 J.D.R.C.P. Rui. 250c "No tr1t11cript shall be fumfJ/uld to , p,~ until 11/ expenses of transcription ,re paid.
Any reproduction of ,n o"lcial ,,.nscrlpt without prior court approval ls prohibited,•
27
1 was filed in December of 2013, and the custody appeal
2 was continued. We didn't have the first hearing
3 until a year later, and then it didn't conclude
4 because of the other requests until three or four
5 months after that.
6 Now, that brings us to the issue of does the
7 rule apply in this case? The agency asked for
8 termination of parental rights on four grounds, and
9 they were grounds set forth in 23 Pa C.S.A Section
10 25ll(a) 1, 2, 5 and 8.
11 The rule on its face applies to the grounds
12 stated as 1 and 8. It does not apply with respect to
13 2 and 5. With respect to the grounds under
14 Subsections 1 and 8, the parties have taken the
15 position that all of their efforts were initiated
16 prior to the filing of the termination petition. And
17 so the rule doesn't have application to the presented
18 facts.
19 And that's one that I've looked at and
20 thought about carefully, and I don't agree with that,
21 and here is why: To be sure, the parties were
22 involved in this case and had actually made some
23 progress towards many, in some instances, or at least
24 some of the goals even early on in the case.
25 But the fact that you were starting to make
Pursuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be fumls~ed to a party until all eJtpenses of transcription are paid.
Any reproduction of an official tra11script without prior court approval ts prohibited."
28
1 some progress, but hadn t done other things that are 1
2 necessary or that you might have generally tried to
3 get your child back doesn•t mean that some specific
4 effort that you•re required to make -- and if you
5 wait until after the petition is filed, doesn't mean
6 you get an exception to the rule.
7 Here is an example: The example in this
8 case is one of the things that the parties wanted the
.9 Court and the agency to believe was that they had
10 separated themselves now finally. We're not going to
11 be together, but up until just before the termination
12 of parental rights hearing, there was really not much
13 indication of that because of the continuous problems
14 between them.
15 So at some point there were fewer problems,
16 but, you know, we all have to have some objective
17 manifestation. Well, a divorce complaint wasn•t
18 filed until a month after the termination of parental
19 rights case was filed, and the fact that the parties
20 might have started to stop physically abusing each
21 other before the termination petition was filed
22 doesn't mean that because they ultimately did that
23 months or years after it was filed, that they met the
24 threshold.
25 So I do not agree that while -- let me back
Pursuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be furnished to a party until al/ expenses of transcription are paid.
Any reproduction of an official transcript without prior court approval is prohibited.•
29
1 up -- while certainly some progress that the parties
2 made towards the plan goal were achieved prior to
3 filing the termination, while some were starting
4 prior and completed after, there were several things
5 that still remained unsatisfied or they were early
6 only commenced or commenced in earnest after the
7 petition was filed.
8 The appeal was filed to give more time on
9 those things, and the other requests for continuances
10 were made, presumably to give more time to work
11 towards reunification as well. That includes the
12 legal and physical separation between the parties.
13 That includes the still unexplained injury of T.W. .I
14 and that includes a point where the parties were
15 looking for and asking for something other than the
16 supervised visits that they have had because they
17 couldn't get past having problems with those. So
18 with respect to 1 and 8 -- Subsections 1 and 8 I
19 believe the rule is applied. With respect to 2 and
20 5, it is not.
21 The second issue I asked the parties to
22 address -- and I'll talk about this, and I'll take up
23 the other matter and I'll come back -- is the issue
24 framed by the opinion that Justice Baer wrote in the
25 case of In Re: D.C.D., which I had pointed out that
Pursuant to 43 J.D.R.C.P. Rule 260c "No transcript shall be furnished to a parly until all eJtpenses of transcription are paid.
Any reproduction of an official transcript without prior court approval ls prohibited."
30
1 the parties in that case did not yet have an A.3d
2 cite, and everybody had briefs and discussed that.
3 The issue is that what affect, if any, did
4 the fact that the agency admittedly didn't follow the
5 order with respect to the concurrent goal, secondary
6 goal of reunification, have on this case, either as a
7 legal matter, factual matter or discretionary.
8 I think we've all read that opinion, and
9 I've had a chance to read -- there's another one
10 that's been cited. There's another opinion by the
11 Superior Court that addresses a very similar issue
12 with the cite In Re: D.C.D. Here is my analysis of
13 that issue:
14 One, I think that the Court -- and on this
15 issue, I believe it was unanimous, although there was
16 an occurring opinion on a different matter --
17 indicated that the compliance with court orders is
18 not something that is statutorily required, at least
19 not under all the grounds for termination.
20 And so in terms of that, I believe, as you
21 will see in the addendum, that the case applies, and
22 reunification efforts were not a consideration with
23 respect to Subsections (a) (2), (a) (8) and (a) (1).
24 However, I do conclude that the efforts or lack of
25 efforts made towards reunification by the agency does
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Any reproduction of an official transcript wlthotJtptforcourl approval la prohibited.•
31
1 come into play, specifically under Section (a) (5) --
2 Subsection (a) (5).
3 Even In Re: D.C.D., and the subsequent
4 Superior Court decision, I have also indicated that
5 -- and I think that both parents argued -- that the
6 Court can consider them in exercising its discretion
7 with respect to actions or omissions of the parents
8 with respect to other grounds, but there's not a
9 statutory requirement.
10 Finally, while the considerations on D.C.D.
11 and the subsequent Superior Court case made it
12 explicitly clear that the remedy, if there is
13 otherwise a properly supported termination motion, is
14 not to deny the motion, but it is to make a finding
15 that would remove from the agency the ability to get
16 federal reimbursement and funding for a particular
17 case.
18 The parents, obviously, the way they wrote
19 their briefs, think that the policy ought to be
20 something different. But we have the unanimous
21 Pennsylvania Supreme Court telling all of us
22 otherwise. So regardless of how we believe the
23 issues were raised and the arguments were made, that
24 is the law. I am going to attend to this matter, and
25 I'll be back in just a couple of minutes.
Pursuant to 43 J.D.R.C.P. Rule 25Dc "No transcript shall be furn/shod toe pan.y untl/ a/1 eltpenses oftranscription are paid.
Any reproduction of an official transcript without prior court approval fs prohlbft~d. •
32
1 (Off the record.)
2 (Back on the record.}
3 THE COURT: Sorry for the interruption. So
4 I think I ended with indicating my analysis of the
5 two legal issues. I just want to flush out why I
6 don t1 believe that Subsection (a) (5) is covered by
7 or at least to the full extent -- covered by the In
8 Re: D.C.D. opinion.
9 One is (a) (5) was actually a subdivision or
10 subsection of the termination section that was
11 specifically mentioned by the Court In Re: D.C.D., at
12 one to which reunification services may be relevant,
13 and that is because of the language of (a) (5) that
14 talks about a parent cannot or will not remedy those
15 conditions within a reasonable period of time, and
16 then the services or assistance reasonably available
17 to that parent are not likely to remedy the
18 condition, et cetera, et cetera. Obviously, if
19 services aren t fully provided then it would be tough
1
20 for them to rely on those services.
21 Having said that, I am not sure how much of
22 an impediment it is to this case. You know, the
23 construct of the concurrent goal was discussed in the
24 appeal opinion I filed before. It has also been
25 discussed by in several Supreme Court opinions
Pursuant !o 4J J.D.R.C.P. Rule 2SOc "No trsnscript shall be furnished to a party until al/ e1n-again, off-again affair that is marked by numerous claims
l_., ···-·--,-..,. .. _-·~'
of domestic violence by each parent, criminal charges flying back-and-forth, multiple
1
T.W. 's father did not file an appeal.
20ver
the course of this case, four hearings have been transcribed. All four transcripts, with accompanying
exhibits, are included in the certified record. For clarity and ease of reference, the transcripts will be cited as
follows:
• The transcript of the July 2, 2012 Shelter Care Hearing will be cited as "N.T. 1, pp._"
• The transcript of the August 2, 2012 Adjudication Hearing will be cited as "N.T. 2, pp._ ..
• The transcript of the December 20, 2013 Review Hearing will be cited as "N.T. 3, pp._"
• The transcript of the second day of the review hearing, convened on January 24, 2014, will be cited as
"N.T., 4 pp._"
filings under the Protection From Abuse C'PFA") Act, outright lies told by Mother
about Father, instability, periods of separation, and, significantly, a rare level of
pathological co-dependence that has continually brought Mother and Father back
together despite the volatility of their union. Acts of violence occur when Mother and
Father are together and when they are separated. (N.T. 2, pp. 9-14; N.T. 3, pp. 11,
14-18, 21-27, 52-56, 65-67, and Exhibits 2 through 4; N.T. 4, pp. 23-24, 30-31, 45-
46, 84-88, 110-122, and GAL Exhibits 1 through 5).
Mother and Father both have children other than T.W. In fact, both have
children from prior relationships thafwere also markedby domestic violence.
Including T.W., Mother has four children with four different fathers. Her
relationships with the· fathers of her three other children involved abuse, violence,
and multiple PFA orders, some of which were issued against Mother. (N.T. 2, pp. 13-
14; N.T. 3, pp.15-16 and Exhibit 4; N.T. 4, pp. 141-150). In part because of this
history, Mother does not have custody of any of her minor children. Mother's oldest
son, who is an adult, lives with Mother in Monroe County. However, her eight year-
old son lives with his father in Georgia, a state that Mother cannot visit due to an
outstanding arrest warrant. Mother has not seen her younger son in person since
December of 2010. Similarly, Mother has a five year-olddaughter who lives with her
father in Florida. Mother last saw her daughter in April of 2011 when the police
removedthe child from Mother so that the child could be returned to her father. (N.T.
2, pp. 13-14; N.T. 4, pp. 146-150). Finally, as discussed below, T.W. has been in
care in Monroe County since July 1, 2012.
2
Father has at least sixteen children with several different mothers. His
children range in age from a son who is twenty-two down to T.W., who is now two
years old. {N.T. 2, pp. 13-14; N.T. 3, p. 111; N.T. 4, pp. 122-127). Domestic
problems in Father's past relationships started almost twenty-five years ago when the
mother of his oldest child obtained a PFA against him. (N.T. 4, p. 127). The
continuation of domestic problems led to the initial contact between CVS and Father.
In October of 2011, after Mother and Father were married but before T.W. was
born, the mother of nine of Father's children filed in this Court a petition, on behalf of
herself and all nine children, seeking a PFA against Father. CVS was ordered to
assess the safety of the children. Following a hearing, the petition was granted and
an eighteen-month PFA was issued against Father. The children and their mother
were all named as protected persons. After the PFA was issued, the children and
their mother moved to New Jersey. (N.T. 2, pp. 5-10; N.T. 4, pp. 122-127).
Subsequently, Mother became pregnant with T.W. Nonetheless,the domestic
violence between Mother and Father continued. They tried some forms of counseling,
but subsequent history has demonstrated that the counselingwas not successful.
T.W. was born
.I fl 2012. She was vary premature and had to stay in
the hospital for a long time after birth. As a result, T.W. has a heart condition that
needs to be monitored. Although both parents were aware of the condition, neither
mentioned it to caseworkers when T.W. came into care. CVS later found out about
the condition from one of T.W.'s doctors. (N.T. 2, pp. 9-15; N.T. 3, pp. 132-133).
T.W. first came to the attention of CVS on June 30, 2012. On that date, the
agency received a referral that T.W. had been injuredwhen Father threw her in her
3
car seat out of the family's van during a roadside argument with Mother. T.W. was
initially taken to Pocono Medical Center, a local hospital, where she was diagnosed
with a concussion and tests showed that she had hairline fractures. As a result, T.W.
was transported to the pediatric trauma unit at Lehigh Valley Hospital, a regional
medical facility located in Allentown, Pennsylvania. (N.T. 1, pp. 5, and 13-14; N.T. 2,
pp. 9-18, Ex. 7, 8, and 9; N.T. 31 pp.39-48, Mother's Exhibits 1 and 2, and GAL
Exhibit 1; Dependency Petition, filed July 9, 2012).
T.W. spent one night in Lehigh Valley Hospital. While T.W. had observable
injuries, she was luckily not as seriously injured as originally thought. She was
described as having a contusion on the left side of her head, a history of prematurity,
and having suffered a fall, a head injury, and post concussive syndrome. She was
released the next day. (N.T. 2, pp. 9-18, Exhibits 7, 8, and 9; N.T. 3, pp. 39-48,
Mother's Exhibits 1 and 2, and GAL Exhibit 1).
CVS caseworkers interviewed Mother at Lehigh Valley Hospital about the
incident. Regarding T.W.'s injuries, Mother told the caseworkers that the incident
occurred while Father was driving her to a new job. During the trip, a bad argument
erupted. Father became enraged, called Mother horrible names, hit and slapped her,
and pulled her hair. At one point, Father pulled over. When Mother tried to take T.W.
out of the car to keep her safe, a tug-of-war over the baby ensued. In a fit of rage,
father grabbed the seat and threw it to the ground with tremendous force. Father
started to leave, but then came back and broke Mother's cell phone. He then drove
away, leaving Mother and T.W. at the side of the road (N.T. 2, pp. 9-20; Dependency
Petition, filed July 9, 2012. See N.T. 3, pp. 39-48). The statement Mothe.r gave the
4
caseworkers was consistent with the statements she gave to the Pennsylvania State
Police and medical personnel. (N.T. 3, pp. 100-102). In all initial statements, Mother
unequivocally stated that Father threw T.W. in her car seat out of the vehicle.
The caseworkers also obtained from Mother a history of her relationship with
Father. Mother told the caseworkers that Father is verbally and physically abusive,
very controlling, and vulgar. She stated that Father had assaulted her on several
occasions and showed the caseworkers scars and burns up and down her arms that
she said were inflicted by Father. The caseworkers took photos of the burns and
scarring that were later admitted into evidence during the adjudication hearing.
Mother also told the caseworkers that Father had raped her and had "put out a hit on"
the woman who was the mother of nine of his children and who had obtained PFA
against him. (N.T. 2, pp. 9-20; Dependency Petition, filed July 9, 2012. See N.T. 3,
pp. 39-48).
Based on Mother's statements and T.W.'s injuries,the caseworkersdeveloped
a safety contract. The plan included Mother filing for a PFA against Father, having
no contact with Father, and taking T.W. to a shelter where Mother had previously
sought refuge from Father. Mother agreed to the contract. (N.T. 2, pp. 18-19).
The caseworkers explained to Mother that, given the circumstances, CYS
would be opening a case, investigating the matter, and providing necessaryservices.
Mother was told the investigation would include running criminal history checks.
Mother was then asked whether she had any criminal history. Mother denied having
any history. (N.T. 2, p. 20).
5
As a result of the incident, Father was charged with Aggravated Assault and
related charges. He was incarcerated In the Monroe County Correctional Facility in
lieu of bail.
CVS caseworkers ran Mother's criminal history. They discovered that Mother
had not been honest with them, in that she had a substantial arrest record, including
a charge of cruelty to ohltdren, although dispositionsfor some of the arrests were not
reported. Significantly, the history also revealed that there was an outstanding
warrant out of Georgia for Mother's arrest on forgery charges which was lodged with
the notation that Georgia would extradite. (N.T. 1, pp. 2, 5, and 10; N.T. 2, pp. 20-25;
N.T. 3, pp. 46-48). Later, CVS learned that Mother had used several names and
aliases in several states and that she had or may have additional criminal history ih
other states. (N.T. 1, p. 7; N.T. 2, pp. 20-24).
Mother was arrested on the warrant on July 1, 2012. That same day, CYS
sought and was granted emergency protective custody of T.W. since both of her
parents were incarcerated and no suitable relativeswere immediately available.T.W.
has been in care ever since.
Over the next few weeks, several hearings were held. In addition, Mother's
story and position began to change. In broad summary:
A shelter care hearing was held on July 2, 2012. The hearing was convened
quickly in order to give Mother the opportunity to place her position on the record and
advise the Court, CVS, and the guardian ad /item of possible family or other
placement resources for T.W. before she faced extradition to Georgia. In fact,
Mother was allowed to participate in the hearing by telephone from jail so that she
6
could assert her position. (N.T. 1, pp. 2-8 and 15-19). Mother provided the names of
several family members, including her 21 year-old son with whom she lived, as family
resources. (Id. at 10-13). Surprisingly, Mother then began the process of recanting
her story and accusations against Father. She said that the charges (which were
based on statements she made to authorities) were false and inaccurate, that she
would not testify against Father, that she did not believethat father had injured T.W.,
that the doctors at Lehigh Valley indicated that Pocono Medical Center had
misdiagnosedT.W., and that T.W. did not have any injuries. (Id. at 8-11, 13, and 15).
Mother also stated that, if she was extradited to Georgia and Father was released
from prison, she wanted T.W. to be with Father. (Id. at 13 and 15).
Around the same time, a separate extradition hearing was held. In advance of
the hearing, the Commonwealth filed a motion to detain Mother here as a material
witness in the case against Father. At hearing, the Assistant District Attorney
assigned to the case represented that he had personallycommunicated with officials
from Georgia who, despite the extradition notation in the data base, declined to
extradite Mother. Thus, both extradition and the Commonwealth's motion became
moot.
At one point while both parents were in jail, Mother attempted to use deception
to arrange an in-jail meeting with Father. Specifically,she falsely told officials at the
jail that the undersigned had given her permission to meet with Father in the
correctional facility to discuss their cases and T.W. Of course, no such permission
had been given. The in-jail meeting was foiled when the correctional facility called
7
CVS and was told that the Court had not given any such permission. (N.T. 2, pp. 61-
63).
Prior to the adjudication hearing, Father gave his first version of what had
happened on June 30, 2012. He indicated that it was Mother who violently pulled
T.W. in her car seat from the car. (N.T. 2, pp. 44-47, and 53).
In addition, Mother was arrested and criminally charged for the incident and
injuries sustained by T.W. As a result, as of the time of the adjudication hearing, both
parents stood charged with committing crimes againstT.W.
An adjudication hearing was held on August 2, 2012.3 At the hearing, several
witnesses testified and medical records from Pocono Medical Center and Lehigh
Valley Hospital were admitted into evidence. It was established that T.W. had been
injured, but not as seriously as originally thought. (N.T. 2, pp. 18-20, 28-30, and
Exhibits 3, 7, 8, and 9). At the conclusion of the hearing, T.W. was adjudicated
dependent and her placement in foster care was continued. The initial permanency
goal was reunification. Neither parent appealed the dependency adjudication.
Based on her age, T.W. qualified for this Court's three-month review protocol.
Accordingly, three-month permanency and placement review hearings were held
before the dependency Master throughout the remainderof 2012 and into 2013. The
last hearing before the Master was held in May of 2013. Throughout the proceedings
before the Master, the permanency goal approved by this Court was reunification,
with a concurrent goal of adoption. (See Orders dated October 25, 2012, January 10,
3 The adjudication hearing was initially scheduled for mid-July 2012, but was continued and then rescheduled to
August 2, 2012, because of the subsequent charges that were filed against Mother, the preliminary and other
hearings that were being held in the criminal cases, and a series of unfortunate conflicts that arose regarding
attorney representation for the parents. These intervening events account for the delay between the shelter care
hearing and the adjudication hearing.
8
2013, and May 10, 2013). No party objected to any of the Master's
recommendations.
This case was scheduled for another review hearing before the Master in
September of 2013. At the hearing, the parties appeared. CVS objected to the
jurisdiction of the Master. Even though no hearing was held that day, the appearance
was significant in that Mother showed up with injuries that she said were inflicted by
Father in an incident for which Father was criminally charged. The charges were
later dropped because Mother refused to cooperate. (N.T. 3, pp. 21-22).
As a result of the objection lodged by CYS, a hearing before the Court was
scheduled in October 2013. However, the guardian ad /item asked for a continuance
so that she could obtain records regarding Mother from both Florida and Georgia.
The continuance was granted.
A review hearing was convened before the Court. Evidence was taken on
December 20, 2013, and January 24, 2014. At the conclusion of the review hearing,
the Court issued the goal change order from which Mother has filed this appeal."
The two-day review hearing generated a substantial amount of evidence.
Due, in part, to changes in counsel for both parentsover the course of this case, a
significant portion of the two-day hearing repeated evidence, much of which is
summarized above, that was introduced in prior proceedings.· In addition, new
4
On December 3, 2013, CYS filed a petition for tennination of the parental rights of both parents. We recognize
that, in an appropriate case, it is a "best practice" to hold goal change and termination of parental rights hearings
simultaneously. In this case, we did not adopt this procedure because the petition for a review hearing was filed
and the review hearing was originally scheduled within the relevant fifteen month period, the rescheduling
before the court and attendant continuance were requested by CYS and the guardian ad litem, not parents, the
termination petition was not filed until after the review hearing had been scheduled, and, significantly, review
orders and record facts demonstrated that parents had made moderate progress. In the order that Mother is
challenging in this appeal, we scheduled a hearing on the termination petition. However, at the request of the
parties, that hearing has been continued until this appeal is decided. .
9
evidence was presented. and matters that had been previously recited were
expanded upon and clarified.
At the review hearing, Father provided his version of what happened on June
30, 2012. The first portion of Father's story is consistent with the statements Mother
made at the time. Like Mother, Father indicated that the incident occurred when a
very bad argument erupted while Father was driving Mother to work and a tug-of-war
over T.W.'s car seat occurred after Father had pulled over to the side of the road. In
all other respects, the parents' respective versions of events were diametrically
opposed. (N.T. 4, pp. 91-101).
Father denied that he hit or verbally or physically abused Mother. In addition,
Father stated that Mother was the instigator. He adamantly denied throwing T.W. in
car seat from the vehicle. Instead, he testified that he tried to block Mother from
removing T.W. from the van, but that Mother, in the tug-of-war, was violently pulling
at the car seat and ultimately violently pulled the seat out of the van. Thereafter,
Mother held the car seat behind her while threating various types of action against
Father. This version of events is consistent with what Father had previously told CYS
workers. (N.T. 2, pp. 42-43, and 46-48; N.T. 3, pp. 3 and 48; N.T. 4, pp. 91-101).
Father's rendition of what happened during the June 30, 2012 incident was not
the only evidence presented during the review hearing of Mother's inappropriate
physical handling of T.W. and was not the only explanation for T.W.'s injuries that he
advanced. Additionally, Father showed a CYS supervisor text messages in which
Mother informed Father that she had dropped T.W. two days before the June 30,
2012 incident and admitted to making up the allegationsagainst Father. (N.T. 3, pp.
10
59-62; N.T. 4, pp. 42-49). CYS found the timing of Father's disclosure to be
problematic, because the disclosure was made months after T.W. was adjudicated
dependent and long after the dropping incident should have been reported to medical
personnel. (N.T. 3, pp. 59-62; N.T. 4, pp. 25-26, 37, 42, and 49).
Along similar lines, Father's two versions about how T.W. was or could have
been injured was inconsistent with both parents' early contention, which Mother
resurrected during the review hearing, that T.W. had not been injured. (N.T. 3, pp.
59-62).
Between the time T.W. came into care and commencement of the December
2013 review hearing, significant events transpired in the parents' criminal cases.
First, Mother fully and formally recanted her story. She said that Father did not throw
T.W. out of the van. As a result, and because the injuries to T.W. were more
ambiguous than initially thought, the Commonwealth ultimately withdrew the charges
against Father. Mother, in turn, pied guilty to an amended charge of false reports to
law enforcement based on her lying to the police about Father. She was placed on
probation. (N.T. 3, pp. 39-48 and 95-104).
Evidence presented during the review hearing demonstrated that Mother and
Father's continuing course of abusive and violent conduct against each other, of
which the June 30, 2012 indent was a part, has not abated. Specifically, even after
Mother and Father were told they needed to stop the pattern of abuse and violence
before T.W. could safely be returned to either or both of them, there were additional
incidents in which one parent assaulted or allegedly assaulted the other. In several
of the incidents, police responded and the parent who committed the assault was
11
charged. In one incident, caught on videotape, Father assaulted Mother outside a
community library. In another incident, Mother cut Father with a knife. In still
another, mentioned above, Father assaulted Mother, who soon thereafter appeared
for a Master's hearing with a split lip.
The evidence also demonstrated that the parallel pattern of neither parent
following through on charges also continued: in each case in which an arrest was
made, charges were dropped because the victim spouse declined to cooperate or
appear for hearings. Similarly, the pattern of Mother and Father getting back
together after bouts of violence continued. After each incident, the parties
reconciled, although most recently they have played their reconciliation close to the
vest. (N.T. 3, pp. 11, 14-18, 58-62, and 65-75; N.T. 4, pp. 23-31 and 45-46).
PFA filings also continued. Father filed multiple PFA petitions against Mother,
the first three or four of which were dismissed because Father failed to appear. In a
final round of PFA filings, Father filed against Mother, Father's adult daughter, who
had purportedly come to live with him, also filed against Mother, and Mother filed a
against Father. All three petitions were dismissed after a hearing. (N.T., 3 pp. 14-18,
58-62, and Exhibit 4; N.T. 4, pp. 23-31, 110-122, and GAL Exhibits 1-5).
At the review hearing, Mother testified that she and Father are, finally,
estranged. She stated that they have not been together since September of 2013 ·
when Father gave her the split lip. (N.T. 4, pp. 139-140). However, based on the
. history of this case, Mother's past deceptions, the evidence presented by CVS, the
conduct of both parents, and our in-court observations of Mother and Father, we did
not find Mother's statement credible. In this regard, as indicated, the violence and
12
domestic abuse has continued. The incident in which Mother cut Father with a knife
occurred at Father's residence. Despite the fact that the parties were supposedly
living apart and Father had asked for separate visits so he and Mother would not
come into contact with each other, Father has been seen driving Mother to and
dropping her off for visits and criminal hearings. Most recently, when CYS personnel
have attempted to ask about the current status of the parents' relationship, Father
has told them that it is none of the agency's business. (N.T. 3, pp. 11, 56-59, and 65-
75: N.T. 4, pp. 23-31, 71, anq 84-88, 110-122).
While both parents demonstrated an inability to cease their violent and co-
dependent behaviors, each has made some progress. Specifically, both parents
completed their plan goals for counseling, parenting classes, anger management
classes, and related goals. In fact, Mother has exceeded the counseling and
education requirements, albeit with some prompting based on her criminal case and
probationary sentence. (N.T. 3, pp. 12, 49, and 52; N.T. 4, pp. 48 and 135-139). At
the same time, the evidence demonstrated that counseling and classes have not
been enough to help Mother either fix her unhealthy relationship with Father or
separate from him, and have similarly been insufficient to prompt Mother to stop her
own violent and abusive behaviors.
In addition, Mother has indicated that she is continuing her education, seeking
to become a nurse, and that she now works at JC Penny, both of which, if Mother is
following through, are positive. However, Mother has not responded to the requests
of CVS for documentation of her employment. (N.T. 3, pp. 11-12; N.T. 4, p. 140).
13
Further, both parents have visited on a regular or fairly regular basls, Mother
more so than Father. In fact, at one point, based on their completion of several plan
goals, Mother and Father progressed to having community visits. However, as
noted, there have some problems that resulted in Father asking for the visits to be
returned to the Agency. In addition, Father protested the participation of Mother's
family in visits, especially community visits. Further,the continued violence between
the parents, despite their completion of counseling and therapy, raised legitimate
safety concerns. As a result, visits were moved backto the CVS facility. (N.T. 3, pp .
.
12-15, 34-35, 49, and 52-60; N.T. 4, pp. 23-31, 48, 135, and 141-143).
Mother is currently living with her mother and her adult son in a three-bedroom
home in Stroudsburg. If she regains custody of T.W., Mother's plan would be to bring
T.W. into the home. However, the home is in a high crime and drug trafficking area.
In fact, Mother's adult son, whom she had at the outset of this case identified as a
resource for T.W., was arrested for possession of drugswith the intent to deliver after
selling drugs to a confidential informant in the home. (N.T. 3, pp. 11-12; N.T. 4, pp.
72-75, 132-133, 140, and 146-147).
Finally, consistent with their inconsistent, dysfunctional, co-dependent
relationship, each party, in his or her own way, advised the Court that they do not
believe that T.W. would be safe with the other parent. They did so despite the fact
that the circumstances that prompted each parent's safety concerns were known to
Mother and Father at the time of their past reconciliations and regardless of the fact
that they are now together again.
14
The totality of these facts and circumstances prompted us to issue the order
from which Mother has filed this appeal.
The applicable standard of review is well-established. As recently reiterated
by our Supreme Court:
[A]ppellate courts must apply an abuse of discretion
standard.... [l]n dependency cases, our standard of
review requires an appellate court to accept the findings
of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J. T., 608 Pa. 9,
9 A.3d 1179, 1190 (Pa.2010). If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. Id.; [
In re] R./.S., [614 Pa. 275] 36 A.3d (567,] 572 [(Pa.2011)
(plurality) ]. As has been often stated, an abuse of
discretion does not result merely because the reviewing
court might have reached a different conclusion. Id.; see
, also Samuel-Bassett v. Kia Motors America, Inc. [613 Pa.
371], 34 A.3d 1, 51 ( [Pa.]2011); Christianson v. Ely, 575
Pa. 647, 838 A.2d 630, 634 (2003). Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,partiality,
prejudice, bias, or ill-will. Id.
As we discussed in R.J. T., there are clear reasons for
applying an abuse of discretion standard of review in
these cases. We observed that, unlike trial courts,
appellate courts are not equipped to make the fact-
specific determinations on a cold record, where the trial
judges are observing the parties during the relevant
hearing and often presiding over numerousother hearings
regarding the child and parents. R.J. T., 9 A.3d at 1190.
Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge
to second guess the trial court and impose its own
credibility determinations and judgment; instead we must
defer to the trial judges so long as the factual findings are
supported by the record and the court's legal conclusions
are not the result of an error of law or an abuse of
15
discretion. In re Adoption of Atencio, 539 Pa. 161, 165,
650 A.2d 1064, 1066 (Pa.1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (2012). See also In re R.J. T., 9 A.3d
1179 (Pa. 201 O); In re K.J., 27 A.3d 236 (Pa. Super. 2011); In re M.B., 19 A.3d 1084
(Pa. Super. 2011).
The law that we applied in making factual findings and issuing the goal change
order from which Mother has appealed is equally well-settled. Once dependency is
found, the standard to be applied is the best interests of the child. This standard
applies to, among other considerations, disposition, placement, and custody of
dependent children, and the establishment of goals and goal changes for families.
On these issues, determinations turn on what is in the child's best interests, not on
what the parent wants or which goals the parent has achieved. See R.J. T., supra; In
re K.J., supra; In re K.C., 903 A.2d 12 (Pa. Super. 2006); In re B.S., 861 A.2d 974
(Pa. Super. 2004). Thus, in a goal change proceeding, a parent's progress toward
alleviating the circumstances that caused placement is but one factor that must be
considered. In re B.S., supra. In fact, when the best interests of the child so dictate, .
dependency and placement outside the home may be continued, even if the parent
has met all goals established in the Family Serviceplan. See In re K. C., supra.
Additionally, as our Superior Court recently stated:
Placement of and custody issues pertaining
to dependent children are controlled by the
Juvenile Act [42 Pa.C.S. §§ 6301-65], which
was amended in 1998 to conform to the
federal Adoption and Safe Families Act
("ASFA"). The policy underlying these
statutes is to prevent children from
languishing indefinitely in foster care, with its
inherent lack of permanency, normalcy, and
16
long-term parental commitment. Consistent
with this underlying policy, the 1998
amendments to the Juvenile Act, as required
by the ASFA, place the focus of dependency
proceedings, including change of goal
proceedings, on the child. Safety,
permanency, and well-being of the child
must take precedence over all other
considerations, including the rights of the
parents.
In re N.C., 909 A.2d 818, 823 (Pa.Super.2006) (citations
omitted) (footnotes omitted).
Pursuant to § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the
placement; (2) the extent of compliance with the family
service plan; (3) the extent of progress made towards
alleviating the circumstances which necessitated the
original placement; (4) the appropriatenessand feasibility
of the current placement goal for the children; (5) a likely
date by which the goal for the child might be achieved; (6)
the child's safety; and (7) whether the child has been in
placement for at least fifteen of the last twenty-two
months. In re R.J. T., 9 A.3d at 1186-1187 n. 8 (" In re
R.J. T. II "). The best interests of the child, and not the
interests of the parent, must guide the trial court. In re
S.B., 208 Pa.Super. 21, 943 A.2d 973, 978 (2008).As this
Court has held, "a child's life simply cannot be put on hold
in the hope that the parent will summon the ability to
handle the responsibilities of parenting." In re N.C., 909
A.2d at 824 (quoting In re Adoption of M.E.P., 825 A.2d
1266, 1276 (Pa.Super.2003)).
In re M.B., 19 A.3d at 1088-89.
In setting or changing goals and making statutorily required findings, juvenile
courts are not required to select only one goal at a time. Rather, as we have done
throughout the course of this case, courts may establish concurrent goals and direct
that child welfare agencies engage in concurrent planning, which in its most
frequently used form, "involves a dual-track system by which agencies are
17
encouraged to provide simultaneous services aimed at both reunification and
adoption." In re S.E.G., 901 A.2d 1017, 1019 (Pa. 2006). See a/so R.J. T., supra.
Indeed, concurrent planning has been identified as a "best practice." R.J. T., 9 A.3d
at 1191 n. 14. This is "because it both protects the child from foster care drift, by
allowing agencies to consider adoptive resources ... while at the same time keeping
alive the potential for reunification." In re S.E.G., 901 A.2d at 1029. See a/so R.J. T.
Prompted by Mother's appeal, we have again reviewed this case in light of the
law summarized above. We remain firmly convinced that we neither erred nor
abused our discretion in issuing the goal change order. More importantly, we believe
the goal change order is consistent with the best interests of T.W.
In her appeal statement, Mother lists seven assignments of error which, for the
most part, are subsumed in her first assignment in which she contends that "[t)he trial
court erred inasmuch as the evidence presented at the Permanency Review Hearing
was insufficient to support changing the goal to adoption instead of reunification".
(Mother's 1925(b) Statement, Paragraph 2). The remaining assignments of error
· take issue with specified findings and determinations. Mother claims that the
identified findings were individually erroneous and cumulatively led us to improperly
change the permanency goal. There is no merit to any aspect of Mother's arguments.
The reasons why we changed the goal to adoption, with a concurrent goal of
reunification, are presaged by and captured in our recitation of the facts of this case.
In a nutshell, T.W., while still a premature and fragile infant, was dropped, injured,
and, by both parents' account of the June 30, 2012 incident, the subject of a roadside
tug-of-war between Mother and Father. The underlying problem that caused T.W. to
18
. . . .
be put in peril and injured is the well-documented, deep-seated history of violence
between Mother and Father that is embedded in their relationship and presents a
danger to others, especially T.W. Despite anger management classes, parenting
classes, services from CVS, counseling received from a clinician, a minister, and a
pregnancy crisis group of her own choosing, as well as involvement in the criminal
justice system and PFA court, Mother has to date been unable to extricate herself
from her relationship with Father, protect herself from Father, restrain her own violent
and abusive tendencies, stop the alternating pattern of being a victim and then a
perpetrator of abuse, or stop her pathological lying. In fact, based on the evidence,
Mother and Father's history, and the courtroom demeanor of both parents, we firmly
believe that the parties are together and not, as Mother testified, estranged. Simply
put, Mother has not demonstrated necessary protective capacities and the reasons
that caused T.W. to come into care have not, despite Mothers protestations to the
contrary, been alleviated. Unless Mother makes drastic changes very soon, the
reasons will not be alleviated.
In addition, Mother articulated a home plan that would have T.W. living in a
home, located in a high crime drug-trafficking area, out of which her maternal uncle
was caught selling drugs and now stands charged with felony drug crimes.
Obviously, that plan is not suitable.
Further, while Mother's satisfaction of many plan goals is a positive, she has
not been able to put what she has learned into action in order to make the necessary
changes to properly parent T.W. and ensure her child's safety. Along similar lines,
Mother has indicated that she has a job and is going to school. However, she has
19
not yet provided formal proof or documentation of her employment or the specifics of
the nursing program in which she has indicated she is enrolled.
Finally, as of the original date scheduled for the review hearing before the
Master,T.W. had been in care approximately fourteen months. She has now been in
care for more than the 18 months in which our appellate courts have indicated that,
under current law, permanency should be achieved. See In re R.J.S., 901 A.2d 502
(Pa. Super. 2006); In re N.W, 859 A.2d 501 (Pa. Super. 2004). See also In re K.M.,
53 A.3d 781 (Pa. Super. 2012). During this time period, Mother was not able to learn
from her mistakes, capitalize on the counseling and services which she had received,
demonstrate the necessary protective capacities, alleviate the reasons for T.W.'s
removal from the home, or show that she has the ability to parent T.W. in a manner
consistent with T.W.'s best interests.
Under the settled law summarized above, the applicable standard is the best
interests of the child. Under equally well-establishedlaw, T.W.'s safety, permanency,
and wellbeing are paramount, and these considerationstrump either parents' needs,
desires, and beliefs. Based on our longitudinal view of the evidence, our in-court
observations of Mother on and off the witness stand, Mother's overall parenting
history, the facts presented by CVS, the well-reasoned and articulated positions of
CYS and T.W.'s guardian ad /item, and the applicablelaw, it was and still is obvious
to us that Mother has simply not progressed to the point where T.W. could safely be
returned to her. That determination, coupled with T.W.'s needs and welfare, the
amount of time T.W. has been in care, and the firmly entrenched and oft-quoted
doctrine that 11a child's life simply cannot be put on hold in the hope that the parent
20
will summon the ability to handle the responsibilitiesof parenting," In re M.B., 19 A.3d
at 1088-89 (citations omitted), led us inexorably to the conclusion that the goal
change we ordered was in T.W.'s best interests.
At the same time, the goal change with which Mother takes issue has not, as
she apparently fears, completely cut off all hope or the possibility of reunification.
Nothing in our order precludes Mother from redoublingher efforts or prevents either
the provision of reunification services or the possibility of reunification itself. In fact,
the order includes a concurrent goal of reunification. We included that concurrent
goal because some progress had been made in that both parents had satisfied the
plan goals mentioned above. As a result, and considering all facts and
circumstances, while termination and adoption planningmust now take lead position
in this case, we did not at the time believe it necessary to completely cut off all
possibility of reunification. If Mother is truly sincere about her desire to turn things
around, be truthful, and work toward demonstrating that she can provide for the
health, safety, welfare, needs, and best interests of T.W., she still has the ability to do
so.
Mother's individual assignments of error may be discussed and disposed of
quickly. Mother's first contention is that this Court did not give proper weight to the
fact that she had "completed a Child PermanencyPlan and would be capable of
completing any additional plan for the return of the minor child." (Mother's 1925(b)
Statement, Paragraph 3). This assertion is not supportedby the record.
We did, in fact, give credit and proper weight to the fact that Mother had
completed, and in some instances exceeded, the plan goals mentioned above.
21
I • • '
Indeed, it is for this reason that we made a finding in the order Mother has appealed,
as well as in prior review orders, that Mother has made moderate progress. At the
same time, viewing all facts and circumstances in light of the best interest standard,
the progress made by Mother was not enough. T.W.'s safety and Mother removing
herself and T.W. from the vortex of violence that marks Mother's relationship with
Father have throughout this case been overarching goals and considerations.
Despite receiving many services, Mother has simply not met this goal. Since Mother
has not developed or demonstrated necessary protective capacities to keep T.W.
safe, because the Court has found that Mother and father have not been forthcoming
about the current status of their relationship, and given the fact that Mother does not
have a suitable home plan, it is clearly not in T.Ws best interests at this point in the
proceeding to work toward reunification as a primarygoal. Again, in a goal change
proceeding, a parent's progress toward alleviating the circumstances that caused
placement is but one factor that must be considered. In re B.S., supra. In fact, when
the best interests of the child so dictate, dependency and placement outside the
home may be continued, even if the parent has met all goals established in the
Family Service plan. See In re K.C., supra.
Mother's second assignment of error is that we failed to give proper weight "to
the medical testimony alleviating the circumstanceswhich necessitated the original
placement; testimony from the treating physician indicated that the occipital hairline
fracture which necessitated the original placement was indicative of premature
delivery and eliminated physical abuse or blunt force trauma." (Mother's 1925(b)
Statement, Paragraph 4). Simply, we did not so err.
22
Throughout this case, we have considered the medical testimony that has
been presented. That evidence is summarized above. Our finding, based on that
evidence, is that T.W. was, in fact, injured, although the injuries were luckily not as
serious as first believed when a diagnostic test performed at Pocono Medical Center
revealed the hairline fractures. Mother's disagreement with our finding does not
allege, much less demonstrate, an error of law or an abuse of discretion. This is
especially true since our finding is supported by both the documentary medical
evidence that was submitted at the adjudication hearing and the most recent review
hearing5 and the testimonial evidence that parents elicited from the Lehigh Valley
Hospital physician whom Father called as a witness.
In this regard, the Lehigh Valley Hospital physicianexpressed his opinion that
the hairline fractures first seen at Pocono Medical Center were older injuries, not
acute injuries. However, he did not render an opinion, to a reasonable degree of
medical certainty or otherwise, that "eliminated physicalabuse or blunt force trauma."
Rather, the doctor opined that the hairline fractures resulted from a previous trauma,
which another doctor speculated might have been a birth-related trauma, although
neither doctor knew anything about the birth Itself or whether T.W. was delivered
normally or by C-Section. Similarly, no medical professionalat the time had a history
that included Father's version of events that transpiredon June 30, 2012 or the fact
that Mother had dropped T.W. two days before. When the doctor's testimony is
viewed objectively, in full, and in conjunction with the medical records, it is clear that
5
Counsel for Father, and to some extent the attorney for Mother, spent a substantial amount of time at the review
hearing asserting that the records from Lehigh Valley Hospital had not been previously admitted into evidence,
and asserting, or at least implying, that the records had been withheld by CYS, the Commonwealth, or both.
However, the record is clear that medical records from both Pocono Medical Center and Lehigh Valley hospital
were admitted during the adjudication hearing. (N.T. 2, pp. 2 and 31 and Exhibits 7, 8, and 9).
23
T.W. in fact had hairline fractures that resulted from some sort of trauma, but were
not, in the doctor's opinion, acute injuries. In addition, the doctor acknowledgedthat
there were objective signs ·of injury in the nature of a contusion on the left side of
T.W.'s head. Further, he ultimately did not dispute Pocono Medical Center's
diagnosis of a concussion. In fact, Lehigh Valley Hospital discharged T.W. with a
diagnosis of head injury and indicated that she had suffered a fall, a head injury, and
post-concussive syndrome. (N.T. 3, pp. 77-83, Mother's_ Exhibits 1 and 2, and GAL
Exhibit 1).
Moreover, this argument is nothing but a reiteration of the assertion Mother
has made at various points in this case that T.W. did not sustain any injuries. Even if
that interpretation is accepted as true, it misses the point of the case - and the
objective facts. T.W.'s injuries brought T.W. to the attention of CYS and ultimatelyto
this Court. Mother and Father's incarceration, coupled with Mother's past, caused
· T.W. to come into care. Since then, it has been the need to keep T.W. safe and
parents' inability to ensure that need, not the fact that she was previously injured,that
has kept her in care. T.W.'s injuries have healed and the holes in her heart that both
parents failed to mention have mended. However,concern for T.W.' safety and over ·
Mother's lack of protective capacities remain.
Due to Mother's admitted lying about the June 30, 2012 incident, her history of
deception, the fact that Mother and Father are both playing their cards close to the
vest, and the discrepancies between the statements of both parents and their
conduct, we may never know exactly what occurred on June 30, 2012, or precisely
what happened to T.W. when Mother dropped her several days before. What we do
24
. . ' .
know is that on June 30, 2012, and on at least one prior occasion, T.W. was placed
in harm's way by one or both parents because of the volatile nature of their
relationship. Since her parents are still acting abusively towards each other, the
circumstances which caused T.W. to be put in peril continue to exist. Similarly,
neither parent has to date been able to demonstrateacceptable protective capacities.
Simply, T.W.'s safety is not ensured. Thus, it is at present largely irrelevant how the
medical evidence in this case is interpreted or how T.W's 2012 injuries are
characterized.
T.W.'s health, safety, and well-being are the paramount concerns, and her
best interest is the guide star. T.W.'s safety must be ensured regardless of whether
she was injured in the roadside incident, which scenario could be supported by at
least Father's testimony; in the incident where Mother dropped her, which scenario
could be supported by the statements of both parents; or in some prior incident which
has yet to be explained by parents, but that would be equally problematic. In fact,
T.W.'s safety must be assured even if Mother's no-injury assertion is accepted.
Neither parent has demonstrated the current ability to provide the requisite
assurance. In this regard, it cannot be emphasizedenough that, under both parents'
versions of the June 30, 2012 incident, T.W. came into care because the volatile
nature of Mother and Father's relationship shockingly caused them to became
embroiled in an argument that led them to literally play a game of tug-of-war with
T.W., in her car seat, at the side of a public road. While T.W. is now physically safe,
the tug-of-war between the parents continues, at times literally and at times
25
I
I I I
figuratively, and the underlying issues that cause their battles have not been
resolved.
Assignments of error four through six take issue with specific findings we
made regarding the reasonableness of efforts made by CVS to finalize T.W's
permanency plan. (Mother's 1925(b) Statement, Paragraphs 5, 6, and 7). All three
assignments are bootless.
Mother first implies that efforts were unreasonablebecause "more than three
months expired without a review of the permanency plan." However, three month
reviews are not mandatory. The Juvenile Act and the applicable rules of Juvenile
Court Procedure require that courts conduct permanencyand placement reviews at
least every six months. See 42 Pa.C.S.A. § 6351(e)(3) and Pa. R.J.C.P. 16078.
While three month reviews are a best practice that this Court has generally adopted
for a targeted number of dependency proceedingspursuant to a local protocol, there
is simply no legal requirement to conduct ninety day reviews.
We recognize that almost seven months elapsed between the most recent
review before the Master and the review hearing that was convened by this Court in
December of 2013. However, the extra month was not caused by any improper or
unreasonable act on the part of CVS or any omission by the Court. CVS exercised
its right to object to the jurisdiction of the Master. That action resulted in the
scheduling of a hearing before the court within the required six month period. The
hearing was continued slightly outside that period based on a reasonable request for
a continuance made by the guardian ad /item that was granted by the Court. Further,
after the hearing began, Mother (and Father) was given two hearing days of
26
I I 1 •
opportunity to question witnesses and present evidence. Finally, Mother has not
alleged any prejudice and none is shown in the record. Under these facts, and
considering the overall circumstances of this case, we discern no unreasonable act
or omission on the part of CYS and no error or abuse of discretion on the part of this
Court.
Mother next asserts that CYS dld not make reasonable efforts because the
agency did not asses her home. However, for the reasons discussed above, we do
not consider Mother's current home and home plan to be suitable for T.W. In
addition, Mother has not progressed to the point where she has demonstrated the
necessary protective capacities for T.W. to be returned to her. In addition, her
volatile relationship with Father continues. As a result, and given the other
circumstances of this case, we see no error on the part of CVS in decliningto assess
Mother's home at this time.
Mother's final reasonable efforts challenge is that CVS unreasonablyswitched
Mother's visits back from community visits to visits at the agency. However, given
the facts and circumstances discussed above, especially the safety issues that
remain, we believe that CYS acted reasonably in moving visits back to the agency at
the time the change was made.
In her final assignment of error, Mother almost unbelievably contends that
"[t]he trial court erred by relying upon allegations of domestic violence between
Mother and Father." (Mother's 1925(b) Statement, Paragraph 8). This assignmentof
error merits no response beyond the following statement: Given the facts and
circumstances of this case, we obviously did not err in considering the history of
27
I I 1 I
• • ' I
domestic violence between Mother and Father. Quite to the contrary, it would have
been beyond a gross abuse of our discretion to have ignored the history.
For these reasons, we believe that our goal change order effectuated the
health, safety, needs, welfare, and best interests ofT.W. and should be affirmed.
Date: ~,lJ{I~
Cc: Superior Court of Pennsylvania ~
Jonathan Mark, Judge ;g
Donald M. Leeth, Esq. c~.
.....
.....
Eric L. Hamill, Esq. .C:.,
c;
Elizabeth B. Weekes, Esq. :x "tJ
Lori J. Cerato, Esq. ...._
:::.
.
, ......
Brett J. Riegel, Esq. "t:I
~ ~
UI
28
Circulated 02/18/2016 12:35 PM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
JUVENILE COURT DIVISION
IN THE INTEREST OF: NO. 64 DP 2012
48 OCA2013
T. W. ., a minor
ADDENDUM TO ANNOUNCEMENT HEARING
The law I applied to the facts of this case these cases in reaching the decisions I
am announcing today is well settled. In comprehensive summary:
1. Termination of Parental Rights
In termination cases, the burden is upon the petitioner. in this case Monroe
County Children and Youth Services ("CVS"), to prove by clear and convincing evidence
that its asserted grounds for seeking the termination of parental rights are valid. In re
T.D., 949 A.2d 910 (Pa. Super. 2008); In re S.H., 879 A.2d 802. 806 (Pa. Super. 2005).
Clear and convincing evidence has been defined as "testimony that is so clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue." In re K.Z.S.• 946 A.2d 753,
757 (Pa. Super. 2008) (citation omitted). It is well established that a court must
examine the individual circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence in light of the totality of
the circumstances clearly warrants termination. In re J.L.C. & J.R.C., 837 A.2d 1247,
1251 (Pa. Super. 2003).
Termination of parental rights is controlled by Section 2511 of the Adoption Act,
23 Pa. C.S.A. Section 2511. In this case, CYS seeks termination of both parents'
parental rights on the following grounds:
Section 2511. Grounds for Involuntary Termination
(a) General Rule. - The rights of a parent in regard to a child
may be terminated after a petition filed any of the following
grounds:
(1) The parents have, for a period of more than six (6) months
prior to the filing of this petition, failed to perform their
parental duties;
(2) The repeated and continued incapacity, abuse, neglect or
refusal of the parents has caused the child to be without
essential parental care, control or subsistence necessary for
his physical and mental well~being and the conditions and
causes of the inability, abuse, neglect or refusal have not
been remedied by the parents;
***
(5) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency for
a period of at least six months, the conditions which led to
the removal or placement of the child continue to exist, the
parent cannot or will not remedy those conditions within a
reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare
of the child.]
***
(8) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agen_cy,.
12 months or more have elapsed from the date of removal
or placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of
the child. ·
***
2
(b) Other considerations - The court in terminating the rights of
a parent shall give primary consideration of the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent
With respect to any petition filed pursuant to subsection
(a)(1), (6), or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa. C.S.A. Section 2511(a){1), (2), (5), (8), and (b). Satisfaction of any subsection of
Section 2511 (a), along with consideration of Section 2511 (b), is sufficient for involuntary
termination of parental rights. In re K.Z.S., supra; In re R.J.S., 901 A.2d 502 (Pa.
Super. 2006). Accordingly, an appellate court "need only agree with the orphan's court
as to any one subsection of Section 2511(a), as well a~ Section 2511(b), in order to
affirm." In re B.L. W., 843 A.2d 380·, 384 (Pa. Super. 2004) (en bane), app. den., 863
A.2d 1141 (Pa. 2004). See also In re Adoption of C.J.P., _A.3d _, 2015 Pa. Super. 80,
2015 WL 1668310 (Pa. Super, filed April 15, 2015); In re K.H.B., 107 A.3d 175 (Pa.
Super. 2014).
Section 2511 requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in Section2511 (a). Only if
the court determines. that the parent's conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to
Section 2511(b): determination of the needs and welfare of
the child under the standard of best interestsof the child.
One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond
between parent and child, with close attention paid to the
effect on the child of permanentlysevering any such bond.
3
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). See a/so In re
Adoption of C.J.P., supra; In re T.D., supra; In re Adoption of R.J.S., supra.
In analyzing the conduct of a parent, the applicablestatutory language must be
considered. As the third sentence of Section 2511(b) directs, when subsections(a)(1),
(6), or (8) of Section 2511(a) are cited as the grounds for termination, we may not
consider actions of a parent to remedy the conditions that necessitatedthe dependent
child's. placementwhich are initiated after the parent receivesnotice of the filing of the
terminationpetition. In re Adoption of C.J.P., supra; In re KZ.S., supra; In re D.W, 856
A.2d 1231 (Pa. Super. 2004).
Under Section 2511(a)(1); parental rights may be terminatedif, for a period of at
least six months, a parent either demonstrates a settled purpose of relinquishing
parental claims to a child or fails to perform parental duties. In re Adoption of R.J.S.,
supra; In re Adoption of J.M.M., 782 A.2d 1024 (Pa. Super. 2001). As the Superior
Court has explained:
A court may terminate parental rights under Section
2511(a)(1) where the parent demonstratesa settled purpose
to relinquish parental claim to a child or fails to perform
parental duties for at least the six months prior to the filing of
the termination petition. Although it ls the six months
immediately preceding the filing of the petition that is most
critical to the analysis, the court must consider the whole
history of a given case and not mechanicallyapply the six-
month statutory provision. ·
In re K.Z.S.J supra at 758 (Pa. Super. 2008) (case citations and quotation marks
omitted). See also In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).
The grounds for termination of parental rights under Section 2511 (a)(2), due to
4
parental incapacity that cannot be remedied, are not limited to affirmative misconduct.
Rather, those grounds may include acts of refusal as well as incapacity to perform
parental duties.
Parental rights may be terminated pursuant to Section
2511 (a)(2) if three conditions are met: (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 without essential
parental care, control or subsistence; and (3) it must be
shown that the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied.
Unlike subsection (a)(1 ), subsection (a)(2) does not
emphasize a parent's refusal or failure to perform parental
duties, but instead emphasizesthe child's presentand future,
need for essential parental care, control or subsistence
necessary for his physical or mental wellbeing.23 Pa.C.S.A.
§ 2511(a)(2). Therefore, the language in subsection(a)(2)
should not be read to compel courts to ignorea child's need
for _a stable home and strong, continuous parental ties,
which the policy of restraint in state interventionis intended
to protect. This is particularlyso where disruption of the
family has already occurred and there is no reasonable
prospect for reuniting it. ... Further, grounds for termination
under subsection (a)(2) are not limited to affirmative
misconduct; those grounds may include acts of incapacityto
perform parental duties.
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (case citationsand internal quotation
marks omitted) (emphasis in original). See In re Adoption of R.J.S., supra. Thus,
While sincere efforts to perform parental dutiescan preserve
parental rights under subsection (a)(1 ), those same efforts
may be insufficient to remedy parental incapacity under
subsection (a)(2). Parents are required to make diligent
efforts toward the reasonably prompt assumption of fun
parental responsibilities.A parent's vow to cooperate,after a
long period of uncooperativenessregardingthe necessity or
availability of services, may properly be rejectedas untimely
or disingenuous.
5
In re Z.P., 994 A.2d at 1117-18 (case citations and internal quotation marks omitted).
Moreover, a court may terminate parental rights under subsection (a)(2), even where
the parent has never had physical custody of the child. In re Adoption of Michael J.C.,
486 A.2d 371, 375 (Pa. 1984); In re Z.P, supra.
For termination under Section 2511 (a)(5), "the following factors must be
demonstrated: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to the child's removal or placement continue to
exist; (3) the parents cannot or will not remedy the conditions which led to removal or
placement within a reasonable period of time; (4) the services reasonably available to
the parents are unlikely to remedy the conditions which led to removal or placement
within a reasonable period of time; and (5) termination of parental rights would best
serve the needs and welfare of the child." In re K.H.B., 107 A.3d 175 (Pa. Super. 2014)
(quoting In re Adoption of M.E.P., 825 A.2d 1266, 1273-74 (P_a.Super.2003)). See also
In re Adoption of K.J., 936 A.2d 1128, 1133 (Pa. Super. 2007), app. den., 951 A.2d
1165 (Pa. 2008).
To terminate parental rights under Section 2511 (a)(B), the party seeking
termination of parental rights need only show "(1) that the child has been removed from
the care of the parent for at least twelve months; (2) that the conditions which led to the
removal or the placement of the child still exist; and (3) that termination of parental
rights would best serve the needs and welfare of the child." In re Adoption of R.J.S.,
supra at 511. See In re Adoption of M.E.P., 825 A.2d 1266 {Pa. Super. 2003). "Unlike
Section 2511 (a)(5), Section 2511 (a)(8) does not require an evaluation of the remedial
efforts of either the parent. .. Instead, Section 2511 (a)(B) imposes a lengthier removal
6
period of one year." In re B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citing C.L.G., 956
A.2d at 1007).
The one year time period is significant. As the Superior Court has explained:
Section 2511 (a)(8) sets a twelve-month time frame for a
parent to remedy the conditions that led to the children's
removal by the court. Once the twelve-month period has
been established, the court must next determine whether the
conditions· that led to the child's removal continue to exist,
despite the reasonable good faith efforts of DHS supplied
over a realistic period. The relevant inquiry in this regard is
whether the conditions that led to removal have been
remedied and thus whether reunification of parent and child
is imminent at the ·time of the hearing. This Court has
acknowledged:
[T]he application of Section (a)(8) may seem harsh
when the parent has begun to make progress
toward resolving the problems that had led to
removal of her children. B.y allowing for termination
when the conditions that led to removal continue
to exist after a year, the statute implicitly
recognizes that a child's life cannot be held in
abeyance while the parent is unable to perform the
actions necessary to assume parenting
responsibilities. 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 for the future.
In re I.E.P., 87 A.2d 340, 345-46 (Pa. Super. 2014) (case citations and internal
quotation marks omitted).
With respect to the "needs and welfare" analysis pertinent to Sections (a)(8) and
(b), the Superior Court has observed:
[l]nitially, the focus in terminating parental rtghts is on the
parent, under Section 2511 (a), whereas the focus in Section
2511 (b) is on the child. However, Section 2511 (a)(8)
explicitly requires an evaluation ·of the 'needs and welfare of
the child' priot to proceeding to Section 2511(b), which
focuses on the 'developmental, physical and emotional
7
needs and welfare of the child.' Thus, the analysis under
Section 2511 (a)(8) accounts for the needs of the child in
addition to the behavior of the parent. Moreover, only if a
court determines that the parent's conduct warrants
termination of his or her parental rights, pursuant to Section
2511 (a), does a court engage in the second part of the
analysis pursuant to Section 2511 (b): determination of the
needs and welfare of the child under the standard of best
interests of the child. Accordingly, while both Section
2511 (a)(8) and Section 2511 (b) direct us to evaluate the
'needs and welfare of the child,' we are required to resolve
the analysis relative to Section 2511(a)(8), prior to
addressing the 'needs and welfare' of [the child], as
proscribed by Section 2511 (b); as sucli, they are distinct in
that we must address Section 2511 (a) before reaching
Section 2511 (b).
In re Adoption of C.L.G., 956 A.2d 999, 1008-1009 (Pa. Super. 2008) (en bane)
(citations omitted). See also In re I.E.P., supra; In re Adoption of K.J., 936 A.2d 1128,
1133 (Pa. Super. 2007), app. denied, 951 A.2d 1165 (Pa. 2008). While the Superior
Court focused its analysis in these cases on Section 2511(a)(8),we believe that the
rationale applies equally to Section 2511(a)(5). Like Section (a)(8), Section (a)(5)
requires a finding that termination would best serve the needs and welfare of the child.
Accordingly, we must reach that determination before turning to Section 2511 (b);
Simply put, Section 2511, including the subsectionscited and explained above,
outlines certain irreducible requirements that parents must provide for their children.
Parents who cannot or will not meet the requirementswithina reasonabletime following
intervention by the state may properly be considered unfit and have their parentalrights
terminated. In re K.Z.S., supra; In re B.L.L., 787 A.2d 1007(Pa. Super. 2001).
There is no simple or easy definition of parental duties. However, the appellate
cases make it very clear that parenting is an active ratherthan a passive obligationthat,
8
even in the face of difficulty, adversity, and incarceration, requires a parent to take and
maintain a place of importance in the child's life. The following passage is instructive:
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 met by a
merely passive interest in the development of the child.
Thus, this court has held that the parental obligation is a
positive duty which requires affirmative performance.
***
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness
in resisting obstacles placed in the path of maintaining the
parent-child relationship. Parental rights are not preserved
by waiting for a more suitable or convenient time to perform
one's parental responsibilities while others provide the child
with his or her physical and emotional needs.
In re K.Z.S., supra at 759. See also In re Burns, 379 A.2d 535 (Pa. 1997); Adoption of
Baby Boy A. v. Catholic Social Services of the Diocese of Harrisburg, 517 A.2d 1244
(Pa. 1986); In re Shives, 525 A.2d 801 (Pa. Super. 1987).
In relation to the parental requirements .outllned in Section 2511, when a parent
is separated from his or her child, it is incumbent upon the parent "to maintain
· communication and association with the child. This requires an. affirmative
demonstration of parental devotion, imposing upon the parent the duty to exert himself,
to take and maintain a place of importance in the child's life.'' In re G.P.-R., 851 A.2d
967, 977 (Pa. Super. 2004). When a parent has abandoned or effectively abandoned a
child,
[t]o be legally significant, the post abandonment contact
must be steady and consistent over a period of time,
contribute to the psychological health of the child, and must
demonstrate a serious intent on the part of the parent to
recultivate a parent- child relationship and must also
9
demonstrate a willingness and capacity to understand the
parental role. The parent wishing to reestablish his
parental responsibilities bears the burden of proof on
this question.
In re T.D., 949 A.2d at 919 (case. citations and brackets omitted) (emphasis in original).
Finally, parents are required to make diligent efforts towards assumption or resumption
of full parental responsibilities. Accordingly, a parent's vow to cooperate, after a long
period of being uncooperative regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. In re Adoption of K.J., supra; In re
A.L.D., 797 A.2d 326 (Pa. Super. 2002).
Once statutory grounds for termination have been established, the court must, in
accordance with Section 2511 (b), consider whether the child's needs and welfare will be
met by termination. A proper Section 2511(b) analysis focuses on whether termination
of parental rights would best serve the developmental, physical, and emotional needs
and welfare of the child. Intangibles such as love, comfort, security, and stability are
involved in the inquiry. One major aspect of the needs and welfare analysis concerns
the nature and status of the emotional bond, if any, between parent and child. If a bond
is determined to exist, the effect on the child of permanently severing the bond must be
analyzed and considered. See In re K.M., 53 A.3d 781 (Pa. Super. 2012); In re T.D.,
supra; In re L.M., supra; In re Adoption of R.J.S., supra. As to the bond analysis, the
Superior Court has stated:
in conducting a bonding analysis, the court is not required to
use expert testimony, but may rely on the testimony of social
workers and caseworkers .. In re Z.P., 994 A.2d 11 oa·, 1121
(Pa. Super. 2010). This Court has observed that no bond
worth preserving is formed between a child and a natural
parent where. the child has been in foster care for most of the
10
· child's life, and the resulting bond with the natural parent is
attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa.Super.2008).
In re K.H.B., 107 A.3d 175, 180 (Pa. Super. 2014).
In addition to a bond examination, a court may equally
emphasize the safety needs of the child under subsection
(b), particularly in cases involving physical or sexual abuse,
severe child neglect or abandonment, or children with
special needs. The trial court should also examine the
intangibles such as the love, comfort, security, and stability
the child might have with the foster parent. Another
consideration is the importance of continuity of relationships
to the child and whether the parent-child bond, if it exists,
can be severed without detrimental effects on the child. All
of these factors can contribute to the inquiry about the needs
and welfare of the child.
In re K.Z.S., 946 A.2d at 763 (emphasis in original).
When,· as here, the petitioner is an agency, "it shall not be required to aver that
an adoption is presently contemplated nor that a person with a present intention to
. adopt exists." 23 Pa.C.S. § 2512(b). However, the existence or absence of a pre-
adoptive home is an important factor. So is the relationship between the child and the
foster or pre-adoptive parents. As our Supreme Court. cogently stated, "[c]ommon sense .
· · 'dictates that courts considering termination must also consider whether the children are·
in a pre-adoptive home and whether they have a bond with their foster parents. In re:
T.S.M., 71 A.3d 251, 268 (Pa. 2013). See In re K.M., supra.
In reviewing evidence in support of termination under section 2511(b), our
Supreme Court recently stated:
[l]f the grounds for termination under subsection (a) are met,
a court 'shafl give primary consideration to the
developmental, physical and emotional needs and welfare of.
the child.' 23 Pa.C.S. § 2511(b). The emotional needs and
welfare of the child have been properly interpreted to include.
11
'[i]ntangibles such as love, comfort, security, and stability. In
In re E.M., [620 A.2d 481, 485 (Pa. 1993) ], this Court held
that the determination of the child's 'needs and· welfare'
requires consideration of the emotional bonds between the
parent and child. The 'utmost attention"' should be paid to
discerning the effect on the child of permanently severing the.
parental bond.
In re T.S.M. 71 A.3d at 267. The Court additionally observed:
contradictory considerations exist as to whether termination
will benefit the needs and welfare of a child who has a strong
but unhealthy bond to his biological parent, especially
considering the existence or lack thereof of bonds ta a pre-
adoptive family. As with dependency determinations, we
emphasize that the law regarding termination of parental
rights should not be applied mechanically but instead always
with an eye to the best interests and the needs and welfare
of the particular children involved .... Obviously, attention
must be paid to the pain that inevitably results from breaking
a child's bond to a biological parent, even if that bond is
unhealthy, and we must weigh that injury against the
damage that bond may cause if left intact. Similarly, while
termination of parental rights generally should not be granted
. ~-
unless adoptive parents are waiting to take a child into a
safe and loving home, termination rnsy be necessary for the
child's needs and welfare in cases where the child's parental
bond is impeding the search and placement with a
perman_ent adoptive home.
In weighing the· difficult factors discussed above,
courts must keep the ticking clock of childhood ever in mind:
Children are young for a scant number of years, and we
have an obligation to see to their healthy. development
quickly. When courts fail, as we have in this case, the result,
all too often, . is catastrophically maladjusted childre.n. _ In
recognition of this . reality, over the past fift~en years, . a
substantlal shift has occurred in our. s.ocie~y's approach. to
dependent children, requiring vigilance to the. need to
expedite children's placement in permanent, safe, _staf;>le,
and loving homes ... [ASFA was enacted to combat · the
problem of foster care drift, where childr.en, .like the chlldren
in this case, are shuttled from one foster home to another,
waiting for their parents to -demonstrate th~ir ability to care
for the children.
In re T.S.M., 71 A.3d at 269.
In this case, both parents were incarcerated early on in the dependency case,
and Mother remained on probation supervision up through most if not all of both cases.
Standing alone, incarceration neither constitutes sufficient grounds for termination of
parental rights nor removes the obligation to perform required "bond effects" and "needs
and welfare11 analyses. However, it is a factor that must be considered and, in a proper
case, such as when a parent is serving a prohibitively long sentence, may be
determinative. In re Adoption of S.P., 47 A.3d 817 (Pa. 2012); In re Z.P., supra. "Each
case of an incarcerated parent facing termination must be analyzed on its own facts,
keeping in mind ... that the child's need for consistent parental care and stability cannot
be put aside or put on hold simply because the parent is doing what [he orJ she is
supposed to be doing in prison." In re E.A.P., 944 A.2d at 84.
The analysis depends in part on the asserted grounds for termination. In
subsection (a)(1) abandonment cases, our Supreme Court has stated:
[A] parent's absence and/or. failure to support due to
incarceration is not conclusive on the issue of abandonment.
Nevertheless, we are not willing to completely toll a parent's
responsibilities during his or her incarceration. Rather, we
must inquire whether the parent has utilized those resources
at his or her command while in prison in continuing a close
relationship with the child. Where the parent does not
exercise reasonable firmness in declining to yield to
obstacles, his other rights·may be forfeited.
In re Adoption of S.P., 47 A.3d at 828 (quoting In re Adoption of McCray, 331 A.2d 652,
655 (Pa. 1975) (footnotes
.· .
and internal
. . ·,. quotation . marks
.
omitted).
.
Thus, in an
abandonment case, a parent is required to both utiliz.e .avallable resources and take
affi.rmative steps to support a parent-child relationship. If the parent fails to do so, his
13
parental rights may be terminated. See In re Adoption of WJ.R., 952 A.2d 680 (Pa.
Super. 2008); In re E.A.P., supra; In re K.J., supra. However, utilization of available
resources does not guarantee preservation of parental rights. The statutory criteria, the
facts and circumstances of each case, and the best interests, needs, and welfare of the
child must all still be considered.
In cases involving parental incapacity, our Supreme Court recently held that:
incarceration is a factor, and indeed can be a determinative
factor, in a court's conclusion that grounds for termination
exist under § 2511 (a)(2) where the repeated and continued
incapacity of a parent due to incarceration has caused the
child to be without essential parental care, control or
subsistence and that the causes of the incapacity cannot or
will not be remedied.
In re Adoption of S.P, 47 A.3d. at 828. In more expanded terms, the Supreme Court
stated:
In line with the expressed opinion of a majority of justices in
[In re R.I.S., 614 Pa. 275, 36 A.3d 567 (2011) ], our prior
holdings regarding incapacity, and numerous Superior Court
decisions, we now definitively hold that incarceration, while
not a litmus test for termination, can be determinative of the
question of whether a parent is incapable of providing
"essential parental care, control or subsistence" and the
length of the remaining confinement can be considered as
highly relevant to whether "the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent," sufficient to provide grounds for
termination pursuant to 23 Pa.C.S. § 2511(a}(2).
Id. at 830. In sum, a parent's incarceration "is relevant to the subsection (a)(2) analysis
and, depending on the circumstances of the case, it may be dispositive of a parent's
ability to provide the "essential parental care, control or subsistence" ·that the section
contemplates." In re A.O., 9,3.A.3d at 897.
14
.. "
Finally, before. filing a petition for termination of parental- rights;=,. ·the
Commonwealth. is ge.ner~lly .required to make . reasonable efforts to promote ....
reunification of parent
'
~n<:i' child.
:•
In re Adoption of R.J.S.. See also In
.
re Adoption of
M.E.P., 825 A.2d ·1266 (Pa. Super. 2003). However, the Commonwealth does not have
an obligation to make reunification efforts. indefihitely.
The Commonwealth has an interest not only in family
reunification but also in each child's right to a stable, safe,
and healthy environment, and the two interests must both
be considered .. A parent's basic constitutional right to the
custody and. rearing. of his orher child is converted, upon
the parent's: failure to fulfill his or her parental duties, to the·
child's right to have proper parenting and fulfillment ~f his or
her potential in a permanent, healthy, safe environment.
When reasonable efforts to reunite a foster child with his or
her biological parents ·have failed, then the child welfare
agency must work toward terminating parental rights and
·r:. placing the child vR.J.S., supra at 507 (internal case citations, quotation marks, and
footnote omitted).
However, the Jai.lure of. an agency to. make. reasonable ~ffods to promote
, . I. .
reunification of parent and child will not defeat a properly supported petition for
termination of parental . rights .. Neither .the relevant provisions of S~cti9_,;1. 251 ·1 nor the
pertinent provisions of the Juvenile Act require a court to ~ons._ider {h~ reasonable efforts
provided to a parent .by. :tt1~,·p~tit1q~!~ a~en~Y. prior to termination of ;pa,rentai rights. In.
re D.C.D., 105 A.3d 662 .(.Pa._2_014:);J~·re,Ad.option of C.J.P.,.supia. loJn re D.C.D.,
. .~ ' ' ..
. : ~. ~
15
our Supreme Court analyzed the language of Section·
2511 (a)(2) of the Adoption Act, as well as Section 6351 of
the Juvenile Act, 42 Pa.C.S.A. § 6351. The Court reasoned
that, while "reasonable efforts may be relevant to· a court's
consideration of both the grounds for termination and the
best interests of the child," neither of these provisions, when .
read together or individually, requires reasonable efforts. Id.
at 671-75 (citation omitted). The Court also concluded that
reasonable efforts were, not required to protect a parent's
constitutional rightto the care, custody, and control of his or
her child. Id. at 676-77. While the Supreme Court in D.C.D.
focused Its analysis on Section 2511 (a)(2), we find the
Supreme . Court's reasoning equally applicable to Section
2511(a)(8). Like Section 2511(a)(2), nothing in the language
of Section 2511 (a)(B) suggests that reasonable reunification
servlcesarenecessary to support the termination of parental
rights.
ij. In re Adoptiof1of C.J.P., supra at *7. See also In re B.C.1 36 A.3d at 611 (Section
2511(a)(8) does not require an evaluation of the remedial efforts of either the parent or
the agency); In re C.L. G., supra. Along similar lines, when the goal of. the case is
adoption, -the adequacy of the agency's efforts toward reunification. is generally not a
concern at the termination of parental rights stage. In re B.L. W., 843 A.2d 380, 384 n.t
. .
(Pa. Super.· 2004) (en bane), app. den·. 863 A.2d 1141 (Pa. 2004). Expanding on the
analyses contained in the cited cases, we find that the reasoning of our Supreme Court
' ...
and Superior Court is equally applicable to Section 2511 (a)(1) which, · like Sections
. .
2511 (a)(2) and (8), does not suggest; that reasonable .reunitication . services are
. : . . ' .
necessary to support the termination of parental rights. Thus, while agencies must
provide reasonable efforts to enable parents to work toward reunification with their
dependent children when ordered. to do so,. "the . remedy for an .agency's failure
.
to
provide services is not to punish an innocent child, by delaying her permanency through
denying termination, but instead to conclude on the record that the agency has.failed.to
16
1 \.~
make reasonable efforts, which imposes a financial penalty on the agency·-of thousands
if not tens of thousands of dollars under federal law." In re D. G.D., 105 A.3d at 675.
2. Permanency and Placement Review
The applicable standards are recited in the memorandum opinion issued in· the
dependency proceeding by the Superior Court on August 22, 2014, and the appeal
opinion issued by this Court on April 11, 2014.
3. Appellate Standard of Review
If an appeal is filed, the applicable standard of review is summarized in the
appeal opinion we filed in the dependencycase on April 11, 2014.
17