In the Int. of: L.L., Appeal of: L.L. ( 2023 )

J-A19026-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: L.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: L.L. :
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:
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: No. 3189 EDA 2022
Appeal from the Order Entered November 21, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002155-2018
IN THE INTEREST OF: L.Y.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: L.Y.L. :
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: No. 3190 EDA 2022
Appeal from the Order Entered November 21, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000333-2022
IN THE INTEREST OF: C.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: C.L. :
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:
:
: No. 3191 EDA 2022
Appeal from the Order Entered November 21, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002167-2018
IN THE INTEREST OF: C.Y.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
J-A19026-23
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APPEAL OF: C.Y.L. :
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: No. 3192 EDA 2022
Appeal from the Order Entered November 21, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000334-2022
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 16, 2023
These consolidated appeals arise from orders of the Court of Common
Pleas of Philadelphia County (trial court) denying petitions for a goal change
and the involuntary termination of parental rights as to the minor children,
L.L. (age 5) and C.L. (age 7).1 The Department of Human Services (DHS)
filed the petitions following several years of permanency hearings dating back
to orders of protective custody for both children entered in 2018, removing
the children from the care of their parents, S.S. (Mother) and T.L. (Father).
Because the evidence adduced at the goal change and termination hearing
established all factors necessary for a goal change to adoption and the
involuntary termination of Mother and Father’s parental rights, we find that
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* Retired Senior Judge assigned to the Superior Court.
1 In the record, the younger of the two children is referred to alternatively as
“L.L.” or “L.Y.L,” and the older child is referred to as either “C.L.” or “C.Y.L.”
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the trial court abused its discretion in denying DHS’s petitions and vacate its
orders.
I.
On May 7, 2018, DHS received a General Protective Services (GPS)
report which alleged that Mother had given birth to L.L. earlier that month,
and that Mother might not be able to properly care for the child due to her
ongoing difficulty in raising her five other children, who ranged in age from
one to seven years old. It was noted that Mother appeared to be very thin
and possibly malnourished, and that Mother appeared to be avoiding contact
with DHS.
In response to the GPS report, on May 15, 2018, a DHS caseworker met
with Mother at her home. Mother told the caseworker that she was attending
both to her own medical needs and those of the infant. On June 25, 2018,
during a home visit, Father was hostile toward a DHS caseworker, using
profanity to declare that his children would not be taken from him.2
A month later, Mother informed DHS that she had recently moved with
her children to a more affordable hotel. Two weeks later, Mother and Father
received their single case plan objectives from DHS. Mother's objectives
included (1) cooperating with Community Umbrella Agency (CUA) services and
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2 Father is the biological parent of L.L. and C.L., but not of Mother’s four other
children.
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making herself available for visits; (2) actively searching for stable housing;
(3) obtaining employment to meet the family’s financial needs; (4) completing
a dual assessment, drug screenings and releases to be provided to CUA; (5)
scheduling and attending routine medical and dental appointments for the
children; and (6) attending a mental health therapy program at the Wedge
Recovery Center (Wedge). Father's single case plan objectives only required
him to make his whereabouts known to CUA and participate in CUA services.
On September 12, 2018, DHS received another GPS report which
alleged that the family was evicted from the hotel at which they were staying.
Police responded to yet another hotel not long after due to a report of a
domestic altercation, and the family was again evicted. Further, the report
indicated that Mother and one of her children were cognitively impaired, and
that one of her children had been truant from school.
DHS obtained an order of protective custody (OPC) on September 20,
2018, as to L.L., who was at that time being cared for by his paternal great-
grandmother. An OPC was obtained the next day for C.L., who was by then
in the care of her paternal grandmother. The OPC’s as to both children were
soon lifted and they were temporarily committed to DHS.
On December 4, 2018, the trial court held a hearing, at the end of which
both L.L. and C.L. were adjudicated dependent due to their parents’ inability
to care for them. The children were ordered to be placed in foster care and
they have remained with their respective caregivers since that time.
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The trial court also directed Mother and Father to undergo a parenting
capacity evaluation. The children’s permanency goals were identified as
reunification with their parents and regularly permanency review hearings
were held before the trial court to track Mother and Father’s progress. Years
later, on May 18, 2022, DHS petitioned for a goal change to adoption, as well
as an involuntary termination of Mother and Father’s parental rights as to both
L.L. and C.L. The trial court held a hearing on the petitions on November 21,
2022.
At the hearing, Mother testified that she had not attended any of the
children’s medical appointments since they have been put in placement
because she was not notified where and when they were scheduled. Mother
stated that the last medical appointment she attended for C.L. was when she
was four years old and for L.L. when he was an infant.
Mother admitted that she is unemployed and that she receives
Supplemental Security Income (SSI) due to diagnosed cognitive disabilities.
She testified that CUA had referred her for intellectual disability services
(IDS), but that she was ineligible for IDS because she had not been diagnosed
with the requisite disabilities prior to her 22nd birthday.
Mother reported that she has a fear of enclosed spaces and traveling
alone in certain neighborhoods. She also disclosed that she has trouble with
her memory, concentration and language comprehension. However, she
attributed some improvement in those areas to therapy she received in the
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Wedge program, which Mother had completed on May 6, 2022. Mother
claimed that she had also enrolled in a GED program, and that she had only
been prescribed medication for depression.
Mother testified that her best friend taught her how to cook and she is
now able to prepare meals. Mother also testified that she does her own
laundry and that a friend would take her to the laundromat. Mother stated
that she has been managing her own finances for two years, but prior to that
her mother managed them. Significantly, Mother admitted that she does not
have a strong support system from either her family or friends.
Mother testified that if she were reunified with her children, she would
attend to their medical needs and make sure they are well taken care of.
Mother stated that they would go to school and enjoy a loving home
environment. She testified that she could provide stable housing and that she
currently resides in a two-bedroom apartment which has sufficient space for
L.L. and C.L., but not enough for all six of her children.
As to supervised visits with the children, Mother testified that she sees
them every week for about two hours. However, she only sees C.L. twice a
month due to the child's class schedule, and when she does see C.L., it is only
for a half-hour. Mother denied coaching C.L. to state that she wants to live
with Mother; she also denied showing the child pictures of residences that she
does not live in. Mother stated that C.L. calls her “Mom.”
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The CUA case manager assigned to the present case, Galen Brunson,
testified about her experience working with Mother, Father and their children
for the past three years. Brunson stated that he interacts with Mother every
week during her visits with the children, and that he speaks with Mother and
monitors the visits. Brunson confirmed that Mother had completed a program
for parenting, housing and employment; she had also attended Wedge for
individual therapy.
As to Mother’s cognitive impairment, Brunson testified that Mother’ IQ
is 54 and that a referral was made for Mother to receive IDS. To qualify for
those services, Mother needed to show documentation of certain diagnoses
prior to her 22nd birthday, and such documentation could not be obtained,
rendering Mother ineligible. Brunson stated that he did not make any
additional referrals because he understood that the IDS program was the only
service that would meet Mother’s needs.
Brunson raised several concerns regarding Mother’s interactions with
the children, as well as her ability to care for them. He testified that during
visits, Mother feeds the children and talks to them but often sits apart from
them at a table and watches them play from a distance. CUA, which facilitated
the children’s medical appointments, had not relayed to Brunson that Mother
had ever attended one. Mother also appeared to have trouble grasping basic
matters concerning her children. Brunson recalled that on at least five
occasions, Mother has shown pictures of different houses to her children,
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indicating that the entire family would soon be relocating to those residences
when, in fact, it was not a possibility. A report received by Brunson indicated
that Mother had instructed the children to “misbehave for their current
caregivers.” Permanency Hearing Transcript, 11/21/2022, at p. 117.
As to Mother’s relationship with C.L., it was Brunson’s opinion that there
exists no parental bond. Since 2018, when C.L. was an infant, the child has
been in the care of her paternal grandmother, whom the child calls “Mama.”
Conversely, C.L. calls Mother by her first name. Brunson testified that the
child looks to her paternal grandmother to meet her medical, educational and
emotional needs, and that the child has a strong parental bond with her.
Either due to her disability or lack of involvement, Mother did not know which
school C.L. attends.
As to L.L., Brunson testified that the child is currently placed with her
paternal great-grandmother, whom he had been with for about three years.
Brunson stated that L.L. has a healthy parental bond with his caretaker and
that he calls her “Mama.” He testified that L.L. also calls Mother by her first
name.
Brunson testified that L.L.’s caretaker meets his everyday needs. As
with C.L., Brunson believed that L.L. did not have a parental bond with Mother.
Brunson emphasized that the child did not always want to stay for the entirety
of his visits with Mother, instead preferring to go home early with his
caretaker.
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Due to their relationships with their current caretakers and the lack of a
parental bond with Mother, Brunson did not believe that the children would
suffer irreparable harm if Mother’s parental rights were terminated. Brunson
opined that it is in the best interest of the children to have their goal changed
to adoption because they do not have a parental bond with Mother. Indeed,
Brunson stressed that it would be detrimental to remove the children from
their homes with their current caregivers, both of whom are pre-adoption
resources who are willing to adopt the respective child in their care.
Brunson also did not believe that Mother had progressed enough in her
plan objections to warrant reunification with the children. As evidence of this,
Brunson noted that Mother has failed to find stable housing, and that Mother
had not been able to avail herself of IDS services or otherwise overcome her
cognitive impairments.
As to Father, Brunson testified that he has been mainly absent from the
children’s lives for several years. The single case plan objectives were limited
to making his whereabouts known and to have supervised visits with children
at CUA’s premises. Brunson stated that no additional single case plan
objectives were implemented because Father had been so uncooperative with
CUA that it would have been futile.
Brunson stated that he personally saw Father once on May 3, 2020, and
that since that time, Father has not contacted CUA about the children or
sought to arrange supervised visits with them. Nor has Father provided any
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other care or support for the children. As of the date of the subject hearing,
which Father did not attend, his whereabouts were unknown, and he had made
no progress toward alleviating the circumstances that caused the children to
be removed from his care.
Dr. William Russell, a psychologist, testified at the hearing as an expert
on parenting capacity evaluations and his testimony echoed that of Brunson
in many respects. Dr. Russell testified that he evaluated Mother’s parenting
capacity in person on March 17, 2020, and July 13, 2020. These evaluations
took over two hours to complete.
One main area of concern for Dr. Russell was the unstable housing
situation Mother faced, beginning in 2017 when Mother and her children were
evicted. It was not until early 2022 that Mother’s housing had improved due
to her signing a lease for a two-bedroom apartment.
Dr. Russell’s other main area of concern – Mother’s ability to take care
of her children on a daily basis – had not been resolved as of the date of the
permanency hearing. Despite Mother’s assurances that the children would be
well cared for under her supervision, Dr. Russell noted “neglect, medical
neglect, truancy, and other issues that the children faced” prior to their
placement. Permanency Hearing Transcript, 11/21/2022, at p. 71.
Dr. Russell further stated that Mother had failed to demonstrate an
ability to maintain a safe environment for the children on her own, and that
even without the children, she required constant help just to “engage in the
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activities of daily living.” Id. at p. 74. Mother’s cognitive impairment would
make it unlikely that she would be able to shoulder full parental responsibility
for L.L. and C.L., much less all six of her children:
That she openly states that she has difficulty traveling outside of
her immediate[] environment is another concern, because
children will have medical appointments, dental appointments,
school activities, social activities, all the extracurricular activities,
plus any meetings you have to go somewhere to attend something
with. So there are quite a few concerns in terms of her ability just
to meet these two children’s needs.
Id. at p. 76.
Additionally, as discussed by Dr. Russell, Mother had failed to obtain
steady employment, and her monthly SSI disability payment of $750 was the
same amount as her current monthly rent. The lack of income would make it
difficult for Mother to pay for the necessities of life for her and the two children.
Dr. Russell also agreed with Brunson that it would be “traumatic” to remove
the children from the homes that they have been in for most of their lives.
Although Mother faced considerable challenges, Dr. Russell testified that
there is a chance that Mother would have been more able to meet the
children’s needs if she had been assigned a personal intensive case manager.
On that point, the trial court had Dr. Russell clarify the amount and type of
help Mother would need to be a successful parent of the children:
Trial court: I have one question. As I listen to your testimony,
what stands out the most, aside from your last statement that
given the opportunity [Mother] might have been able to meet
these challenges; was that – you’re saying I believe, and correct
me if I’m wrong.
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The biggest obstacle of [Mother] being able to parent her children
is having someone – some support in the home with her. You said
she was able to meet all the goals, everything, when her brother
was there. But once that in home support left, that’s when she
sunk.
....
Dr. Russell: Absent that support, I don’t believe she’s able to
provide a safe environment. . . . It would depend on her
willingness and ability to do that. Clearly there are cognitive
delays. Clearly there is a history and a presentation that reflects
those cognitive delays.
So it’s hard to say how much she’d be able to take. I think that
she would need an extended period of someone with her, so that
she could take it in and practice it, and then be allowed an
opportunity to demonstrate the internalization of that. So it’s a
rather lengthy process. And the success of it, if it were to succeed
at all, would be a long time process where it would be up to her.
Id. at pp. 82-83.
Dr. Russell did not discuss how an intensive case manager is assigned
or whether one would be available to Mother. However, Brunson had indicated
that he had already requested an intensive case manager for Mother from
Community Behavioral Health, but the agency did not provide the service to
Mother at that time. See id. at p. 117.
The final witness at the permanency hearing was C.L.’s guardian ad
litem, Karen Williams, Esq., who provided the trial court with a report from
her meeting with C.L. She corroborated earlier testimony that the child called
her current caregiver “Mom” when asked who takes care of her. Despite C.L.
telling Williams that she wanted to live “in [S’s] house,” the child also
whispered to Williams that she is supposed to refer to Mother as “Mom” and
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not by her first name. This gave Williams the impression that C.L. would not
be capable of reliably articulating where she would like to live because it
appeared that she is susceptible to coaching and it “was clear she was told to
call [S][,] Mom” in the presence of others. Id. at p. 91.
At the conclusion of the November 21, 2022 goal change and
termination hearing, the trial court denied the petitions for a goal change and
the termination of Mother's and Father's parental rights. Counsel for each
child then timely appealed and submitted 1925(b) statements.
The trial court issued a single 1925(a) opinion giving its reasons for
denying the goal change and termination petitions:
Specifically, although Children have been in care since 2018, the
conditions that led to the Children’s removal do not continue to
exist, Mother is fully compliant with her permanency plan
objectives and the only remaining concern is for Mother’s
intellectual disability. Mother has completed ARC for parenting,
housing and employment and was successfully discharged from
the Wedge for individual therapy. Due to Mother’s intellectual
disability, she is not currently employed but she receives social
security income monthly. Mother has stable housing for Children
and has been able to maintain her residence since the beginning
of 2022.
Furthermore, Mother testified that the programs she went to
helped improve some of her cognitive disabilities and that she was
enrolled in a GED program. Mother has also learned how to be
more self-sufficient and care for herself without any services.
Mother testified that she learned how to cook and has been
managing her finances on her own for two years. Mother also
testified that she would be willing and able to take Children to
their medical appointments and ensure that they are in school.
Furthermore, this Court was not persuaded by Galen Brunson’s
testimony as to Mother being minimally compliant with her
progression towards alleviating the circumstances that caused
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Children to come into care. Mr. Brunson’s rating of Mother’s
progression is based on her housing and lack of services for her
intellectual disability. It was established that Mother has stable
housing for Children. Mr. Brunson failed to refer Mother to any
other services that would support her low IQ or learning disability.
CUA failed to look into any other services for Mother because Mr.
Brunson was under the impression that only one service would
meet Mother’s needs. Mr. Brunson lacks the knowledge to
determine what services would be appropriate for Mother.
Instead, this Court gave more weight to the testimony of Dr.
Russell who completed the parenting capacity evaluation on
Mother. Dr. Russell testified about different concerns he had
towards Mother being able to parent her children with the biggest
obstacle being Mother’s lack of in home support.
He testified that Mother would have had an opportunity to be more
successful if she had been provided with services to address her
learning disability. He stated that he believes Mother needs an
extended period of someone with her so that she can take in the
teachings, practice them, and then be allowed an opportunity to
demonstrate the internalization of what she learned. Additionally,
Mr. Brunson testified that an intensive case manager would have
been able to spend more time with Mother if recommended.
Therefore, Mother should not be penalized for failing to rid herself
of an intellectual disability especially since DHS/CUA failed to
provide reasonable efforts in . . . finding additional supports for
Mother's disability.
Trial Court 1925(a) Opinion, 4/4/2023, at 16-17 (record citations omitted).3
Counsel for the children submitted a single brief raising several issues
on appeal, as the relevant facts and legal issues are identical as to each child’s
case. The overarching claim is that the trial court erred in ignoring the clear
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3 The trial court filed a single 1925(a) opinion as to the appeals concerning
both children, as the relevant facts and legal issues were identical in both of
their respective cases. No brief was filed in support of affirmance of the orders
on review.
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and convincing evidence supporting the need for a goal change and the
involuntary termination of Mother and Father’s parental rights. It is further
asserted that the trial court considered irrelevant factors when determining
that the evidence did not support termination.
II.
We first address the claim that the trial court abused its discretion in
denying DHS’s petitions to involuntarily terminate Father’s parental rights as
to the minor children, L.L. and C.L. We find that this claim has merit.
DHS petitioned to terminate Father’s parental rights under 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8) and (b). It was not disputed that Father failed to
comply with or make progress on his permanency plan for the reunification
with the children. He did not attend the hearing on DHS’s petitions for
termination of parental rights and a goal change, and his whereabouts were
unknown at the time of the hearing.
Father did not regularly visit the children once they were put into foster
care in 2018, and there is no record evidence that Father established a
parental bond with the children in the past five years. Nevertheless, the trial
court denied the petitions for involuntary termination as to Father, finding that
to do so would be “punitive.” Trial Court 1925(a) Opinion, 4/4/2023, at 18.
The trial court did not elaborate on this finding, but it appears that it was
predicated solely on the fact that Mother’s parental rights were not
terminated. See Permanency Hearing Transcript, 11/21/2022, at p. 102.
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The Adoption Act requires the trial court to consider the grounds
enumerated in 23 Pa.C.S. § 2511 when ruling on a petition to involuntarily
terminate parental rights. Where a trial court’s ruling on such a petition is not
supported by competent record evidence, it constitutes an abuse of discretion.
See In re C.W.U., Jr., 33 A.3d 1, 9 (Pa. Super. 2011) (holding that trial court
abused its discretion when it did not terminate the father’s rights solely
because the mother’s rights were not terminated, explaining that each parent
must be assessed separately).4
Here, the trial court did not make any factual findings with respect to
Father, and our review of the record yields no evidence that would support
the denial of the petitions for involuntary termination. To the contrary, several
grounds for termination of Father’s parental rights were indisputably proven
by clear and convincing evidence. See generally 23 Pa.C.S. § 2511(a)-(b).
The only basis for denial of the petitions suggested by the trial court,
see Trial Court 1925(a) Opinion, 4/4/2023, at 18, was legally insufficient.
See In re C.W.U., Jr., 33 A.3d at 9; see also In re Burns, 379 A.2d 535,
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4 The trial court, which sits as the finder of fact, resolves any conflict as to the
weight of the evidence, conflicts in the evidence, and the credibility of
witnesses. See In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super.
2002). “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)
(internal citations omitted).
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541 (Pa. 1977) (“Nothing in the Adoption Act requires that an agency, which
has assumed custody of a child, must establish grounds for the involuntary
termination of both parents, before it can obtain such a decree as to either.”).
Thus, to remedy the trial court’s abuse of discretion, we vacate the orders
denying DHS’s petitions to involuntarily terminate Father’s parental rights as
to L.L. and C.L.
III.
A.
We now turn to the trial court’s rulings with respect to the petitions for
the involuntary termination of Mother’s parental rights.
The trial court must apply a two-part test when considering such a
petition. See 23 Pa.C.S. § 2511. The first part concerns the conduct of the
parent under the grounds enumerated in Section 2511(a), which must be
proven by clear and convincing evidence. See id.; see also In re Z.P., 994
A.2d 1108, 1117 (Pa. Super. 2010).5 Each of those enumerated grounds must
be evaluated as written, and courts should not employ a “balancing” or “best
interest” approach when evaluating any one factor. In re M.E., 283 A.3d
820, 830 (Pa. Super. 2022).
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5 “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.”
Matter of Sylvester, 555 A.2d 1202, 1203-04 (Pa. 1989).
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The second part of the test set forth in Section 2511 concerns the
“developmental, physical and emotional needs and welfare of the child.” See
23 Pa.C.S. § 2511(b). Relevant considerations in this analysis include whether
there exists a parental bond between the child and parent, as well as the effect
that permanently severing the bond may have on the child. See id. Parental
rights may be involuntarily terminated where any one subsection of Section
2511(a) is satisfied, and termination is in the child’s best interests under
Section 2511(b). See B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
Neither of the two parts of the test require consideration of whether a
government agency made reasonable efforts in assisting a parent to remedy
the conditions that led to the child’s placement, such as a parent’s lack of
capacity to provide care. See In re D.C.D., 105 A.3d 662, 672 (Pa. 2014).
Denying termination for that reason would only “punish an innocent child”
rather than promote the child’s best interests. Id.In the present case, DHS appeals the trial court’s denial of termination
of Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8) and
(b). These statutory provisions read as follows:
(a) General rule. The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
****
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
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essential parental care, control or subsistence necessary for his
physical or mental well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent.
****
(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), the court shall not consider any efforts by
the parents to remedy the conditions described therein which are
first initiated subsequent to the giving of notice of the filing of the
petition.
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23 Pa.C.S. § 2511.6
Each these provisions will be evaluated in turn below, beginning with
subsection 2511(a)(2).
B.
In its 1925(a) opinion giving the reasons why termination was denied
under subsection 2511(a)(2), the trial court relied primarily on the testimony
of Dr. Russell, who opined that Mother would possibly be able to care for the
children if given an “extended” or “lengthy” process” in which she could learn
the necessary skills. Permanency Hearing Transcript, 11/21/2022, at pp. 83-
84. Dr. Russell specified that the possibility of Mother gaining capacity to
meet the children’s needs would also depend on around-the-clock in-home
assistance from an intensive case manager. See id. The trial court construed
this testimony as evidence that Mother will be able to gain the capacity to care
for the children in a “reasonable additional time.” Trial Court 1925(a) Opinion,
4/4/2023, at 18.
However, the evidence adduced at the hearing did not warrant the
denial of termination under subsection 2511(a)(2), and the trial court ignored
uncontroverted evidence that Mother’s inability to care for the children will not
soon be remedied. Crucially, Mother’s housing and employment situations are
____________________________________________
6 While DHS’s petitions for termination cited subsection 2511(a)(1), review is
not sought in these appeals as to the trial court’s denial of termination
pursuant to that specific ground.
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not stable, and currently Mother lacks the capacity and resources to remedy
those circumstances. The record established that Mother has not been
employed for the past several years. She receives $750 a month in intellectual
disability benefits, which is the same amount due for her monthly rent. It
remains unknown how Mother’s lack of income would make it financially
feasible for her to satisfy the needs of L.L. and C.L. Mother admitted that her
current two-bedroom apartment would not offer enough space for all six of
her children.
For over four years, the children have been provided for exclusively by
their respective caretakers, with whom the children have developed parental
bonds. Despite Mother’s best efforts, she has not demonstrated that she
would be able to resume parental duties either now or in the near future. See
In re K.H.B., 107 A.3d 175, 183 (Pa. Super. 2014) (“This Court will not
prolong instability for Child when it is clear that Mother and Father will be
unable to provide for Child’s basic needs in the near future.”); In re Z.P., 994
A.2d at 1126 (“Z.P. has already been in foster care for the first two years of
his life, and his need for permanency should not be suspended, where there
is little rational prospect of timely reunification.”).
Moreover, the trial court improperly focused on the supposed failure of
CUA and DHS to procure additional assistance to Mother (an intensive case
manager and IDS), which is beyond the scope of Section 2511(a)(2). Our
Supreme Court has explained that this provision is limited to a parent’s
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present capacity to provide care to a child; a termination petition may
establish the requirements of Section 2511(a)(2) without demonstrating an
agency’s reasonable efforts to remedy a parent’s incapacity. See In re
D.C.D., 105 A.3d at 672-73 (explaining that a trial court may consider the
availability of additional services to a parent when considering termination
under subsection 2511(a)(5) but not under subsection 2511(a)(2)).
Accordingly, the trial court abused its discretion in denying DHS’s
petitions to terminate Mother’s parental rights as to the two children pursuant
to Section 2511(a)(2).
C.
Next, we consider whether the trial court abused its discretion in
denying the termination of Mother’s parental rights under subsection
2511(a)(5).
Parental rights may be terminated under this subsection where (1) the
child has been removed from parental care for at least six months; (2) the
conditions which led to the removal and placement of the child continue to
exist; (3) the parent cannot remedy those conditions within a reasonable
period of time; (4) 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 (5) termination
of parental rights would best serve the needs and welfare of the child. See
23 Pa.C.S. § 2511(a)(5); see also In re Z.P., 994 A.2d at 1118.
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The first factor is clearly met as the children have been in foster care for
more than four-and-one-half years (almost ten times longer than the six-
month requirement). The second and third factors are met because, as
discussed above, the conditions which led to the children’s removal continue
to exist and, contrary to the trial court’s conclusion, there is no evidence in
the record supporting a finding that they will be remedied by Mother within a
“reasonable time.”
Unlike subsection 2511(a)(2), the fourth factor under subsection
2511(a)(5) requires a consideration of the services reasonably available to the
parent. See In re D.C.D., 105 A.3d at 673. To deny termination under this
factor, the evidence must show that those services are likely to remedy the
conditions which led to placement “within a reasonable period of time.” 23
Pa.C.S. § 2511(a)(5).
The record does not support the trial court’s conclusion that additional
services “are reasonably available” to Mother, or that they would remedy
Mother’s circumstances within the period outlined in subsection 2511(a)(5).
The testimony of Dr. Russell confirms just the opposite.7 While Dr. Russell
mentioned the possibility that Mother may have benefited from an intensive
____________________________________________
7 Brunson had testified that he requested an intensive case manager from
Community Behavioral Health in Philadelphia, the only organization Brunson
knew of which could provide that resource, and an intensive case manager
was not available. See Permanency Hearing Transcript, 11/21/2022, at pp.
116-18.
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case supervisor in the past, he only described the prospective utility of this
service as a “lengthy process . . . if it were to succeed at all[.]” Permanency
Hearing Transcript, 11/22/2022, at pp. 83-84.
The final factor under subsection 2511(a)(5) requires the trial court to
consider whether termination of parental rights would serve the best interests
of L.L. and C.L., including the children’ bonds with their pre-adoptive parents.8
The evidence of a strong paternal bond between Mother and the children was
scant, at best. On the other hand, both Brunson and Dr. Russell testified that
it would be “traumatic” for the children to be removed from the care of their
current foster parents with whom the children have parental bonds.
In sum, there is clear and convincing evidence that termination was
warranted under subsection 2511(a)(5), and the trial court abused its
discretion in denying DHS’s petitions for termination on this ground as to both
children.
D.
The last ground for termination that we address is stated in subsection
2511(a)(8), which requires clear and convincing evidence of the following
elements: (1) the child has been removed from the parent’s care for at least
12 months; (2) the conditions that led to the removal or placement of the
____________________________________________
8 This ground for termination overlaps with the test for Section 2511(b), which
likewise focuses on the best interests of the child.
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child continue to exist; and (3) termination of parental rights would best serve
the needs of the child. See 23 Pa.C.S. § 2511(a)(8); see also In re I.J.,
972 A.2d 5, 11 (Pa. Super. 2009).
For the purposes of this subsection, it is not relevant whether a parent
is able or willing to remedy the conditions leading to the removal within a
reasonable time. Nor is it relevant whether agency services would be availing
to the parent in the future. Termination may be denied under subsection
2511(a)(8) if all conditions necessitating removal have been remedied and
reunification is “imminent at the time of hearing.” In re I.J., 972 A.2d at 11.
Of relevance to the present cases, termination under this subsection
may also be proper even where a parent has demonstrated some progress
toward remedying the circumstances which caused a child’s removal:
We recognize that the 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. By
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 . . . 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.
Indeed, we work under statutory and case law that contemplates
only a short period of time, to wit eighteen months, in which to
complete the process of either reunification or adoption for a
child[.]
Id. at 11-12.
Here, the record establishes that all factors outlined in subsection
2511(a)(8) were proven by clear and convincing evidence. More than four-
and-one-half years have elapsed since L.L. and C.L. were adjudicated
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dependent, and the trial court implicitly acknowledged that the conditions
necessitating that adjudication still exist. This is evidenced in part by the trial
court’s permanency review orders and 1925(a) opinion, which include no
finding that reunification was “imminent” at the time of termination and goal
change hearings. It is notable that the trial court also continued to require
that Mother be supervised during her visits with the children, and the trial
court also stressed that Mother may benefit in the future from an intensive
case manager. See Permanency Hearing Transcript, 11/22/2022, at p. 118.
The trial court suggested that Mother had made progress in mastering
parental and general life skills, and that she might be able to improve further
with “reasonable additional time and appropriate services,” but this potential
progress is irrelevant under the standard of termination in subsection
2511(a)(8). See In re I.J., 972 A.2d at 11 (reversing denial of termination
pursuant to this subsection because the trial court improperly considered
parent’s progress toward their goals).
In support of its ruling, the trial court cited just one case, Interest of
S.K.L.R., 256 A.3d 1108 (Pa. 2021), which is materially distinguishable. In
S.K.L.R., our Supreme Court reviewed termination rulings as to two children
who had been in placement for about two years. The mother had completed
anger management classes, improved her conduct toward the children and
obtained stable housing and employment. Agency workers testified that they
“never witnessed [the mother] do anything that concerned [them] with
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respect to the children” and that she continued making progress, establishing
a strong parental bond. Id. at 1114-15.
The trial court in S.K.L.R. gave much weight to the fact that the mother
had cared for her youngest daughter for the past one-and-one-half years since
she was born, which was the majority of the time that her older children had
been placed in care. Id. at 1118. The trial court emphasized that “the Agency
caseworker stated unequivocally that they have no concerns for this child.”
Id. The trial court then noted that the mother’s only failure was her absence
from mental health therapy sessions due to conflicts with her work schedule.
These circumstances prompted the trial court to find that the mother
would be able to remedy the need for mental health services “with a few more
months of steady progress.” Id. Termination was therefore denied because
“none of the conditions that led to the removal and placement of the children
continue to exist.” Id.
On appeal, this Court reversed the trial court’s ruling, holding that the
conditions leading to removal still existed because the mother had failed to
fully address her mental health needs. We found that it was both speculative
and irrelevant under subsection 2511(a)(8) whether it could be anticipated
that those conditions would be remedied at some point in the future.
Our Supreme Court vacated the latter decision, concluding that this
Court had exceeded its scope of review because it did not limit its analysis to
determining whether the trial court’s findings of fact were supported by the
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record. The Supreme Court also took issue with the agency’s decision to
reduce the mother’s contact with her children during their placement, which
diminished the chances of reunification.
Here, though, unlike in S.K.L.R., there is no evidence that Mother is
able to care for the children over a prolonged period of time, that there a
parental bond with the children, or that Mother has remedied the
circumstances leading to the removal of the children from her care. The
record shows, rather, that Mother’s incapacity continues to prevent her from
being able to provide the children a safe environment and satisfy all of their
other needs. After over four-and-one-half years, it remains speculative
whether Mother will ever be able to overcome her cognitive disabilities enough
to care for two small children, even if given in-home assistance.
This undefined timeline is critical because the children have already
been in care for over four years, which is the majority of their young lives.
Yet, Mother remains unemployed, reliant on SSI benefits and unsupported by
a strong network of family and friends. Moreover, unlike in S.K.L.R., there
are ongoing concerns regarding Mother’s interactions with the children, which,
tellingly, prompted the trial court to continue requiring her visits with the
children to be supervised.9
____________________________________________
9
Unlike in S.K.L.R., there is no evidence that DHS stopped assisting Mother
or ever impeded her progress. Regardless, subsection 2511(a)(8) only
(Footnote Continued Next Page)
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The trial court also seemed to rely on the testimony of Dr. Russell to
find that Mother could attain the necessary skills to care for the children, but
Dr. Russell’s testimony was not nearly as conclusive as the trial court suggests
in its 1925(a) opinion. Again, Dr. Russell merely speculated that it is possible
that Mother could have become adept at necessary parenting skills if she had
been supervised for an indefinite period by an intensive case manager.
However, the only fair implication of that testimony is that currently Mother
does not have those skills, and it is entirely speculative whether additional
resources would be available or availing to the extent needed to warrant
reunification.
Accordingly, the record contains clear and convincing evidence
supporting termination under subsection 2511(a)(8), and the trial court
abused its discretion by discounting uncontroverted evidence that Mother has
failed to remedy the conditions that led to the children’s placement in foster
care.
E.
Turning to Section 2511(b), we again find – for reasons similar to those
discussed above – that the trial court abused its discretion in denying the
termination of Mother’s parental rights.
____________________________________________
concerns whether the conditions leading to children’s removal have been
remedied. See In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009).
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Once any of the grounds in Section 2511(a) are met, the trial court must
rule on whether termination is warranted under Section 2511(b) by evaluating
the child’s best interests.10 This determination requires consideration of the
child’s emotional bond with her natural parents and caretakers.
“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 child’s life, and the resulting bond with the natural parent is
attenuated.” In re K.H.B., 107 A.3d at 180 (quoting In re K.Z.S., 946 A2d
753, 764 (Pa. Super. 2008)). Courts must consider whether the child has a
parental bond with a foster parent and whether they are currently in a pre-
adoptive home. See In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (the existence
of a pre-adoptive home is “an important factor” in termination cases) (quoting
In re R.I.S., 36 A.3d 567, 575 (Pa. 2011) (Saylor, J., concurring)).
In this case, L.L. and C.L. have been in the care of their current foster
parents for most of their lives and both foster parents are pre-adoptive
resources. C.L. calls her current caretaker “Mom” but calls Mother by her first
name, “S”. Similarly, L.L. calls his current caretaker “Mama.” The children’s
____________________________________________
10 The trial court did not expressly rule on whether Section 2511(b) was
satisfied, as it did not make the requisite finding that any of the grounds in
section 2511 had been proven. However, when discussing the propriety of
termination under subsections 2511(a)(5) and (a)(8), the trial court stated in
its 1925(a) opinion that termination would not be in the children’s best
interests, making apparent the trial court’s view with respect to Section
2511(b). See Trial Court 1925(a) Opinion, 4/4/2023, at p. 14.
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caretakers have been the sole providers of their medical, educational and
emotional needs for over four years. They also have strong parental bonds
with caretakers. The children’s caretakers are willing to adopt them,
maintaining the bonds they have already formed.
No such bond exists with Mother. The children interact little with her
during supervised visits, and to the extent that C.L. expressed a desire to live
with Mother, there was compelling evidence that the child had been coached
by Mother to state that preference. There was also ample evidence that
severing the bond between the children and their current caretakers would be
detrimental to the children. In fact, Dr. Russell (whose testimony the trial
court had credited) believed that it would be “traumatic” to remove the
children from their caretakers. Permanency Hearing Transcript, 11/22/2022,
at p. 81.
In sum, the record contains clear and convincing evidence that it is in
the children’s best interests to be permanently placed with their current foster
parents, with whom the children have strong parental bonds, satisfying
Section 2511(b). The trial court abused its discretion in coming to the
opposite conclusion, as that ruling was unsupported by the record.
IV.
Finally, we review the trial court’s denial of DHS’s goal change petitions,
applying an abuse of discretion standard. See In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010). In light of our holding above concerning the termination of
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Mother and Father’s parental rights, the issue of the requested goal change is
moot. See Interest of A.M., 256 A.3d 1263, 1272-73 (Pa. Super. 2021);
see also In re D.K.W., 415 A.2d 69, 73 (Pa. 1980).
Even if we had not held that termination is warranted, we would
conclude that the trial court abused its discretion in denying DHS’s petitions
for a goal change from reunification to adoption. When ruling on a petition
for a goal change as to a dependent child, the trial court must consider:
(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
appropriateness and 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. The best interests of the child, and not the interests of
the parent, must guide the trial court. 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 A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and
quotations omitted).
Pennsylvania law “mandate[s] permanency planning such that, ‘when a
child is placed in foster care, after reasonable efforts have been made to
establish the biological relationship, the needs and welfare of the child require
CYS and foster care institutions to work toward termination of parental rights,
placing the child with adoptive parents.’” See In re R.M.G., 997 A.2d 339,
347 (Pa. Super. 2010).
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If the child has been in placement for at least 15 of the last 22 months
from the date of a permanency hearing, then the court must determine
whether the county agency has filed a petition to terminate parental rights
and identified a qualified family to adopt the child. See 42 Pa.C.S.
§ 6351(f)(9)(ii)-(iii). The trial court must decline to order a goal change and
terminate parental rights if the county agency has documented a compelling
reason for determining that terminating parental rights would not serve the
needs and welfare of the child or the child’s family has not been provided with
the necessary services to achieve reunification. See 42 Pa.C.S.
§ 6351(f)(9)(ii)-(iii).
Based on the determinations made under subsection (f) and all relevant
evidence presented at a goal change hearing, the trial court must determine
the appropriate goal and time frame for achieving the goal pursuant to 42
Pa.C.S. § 6351(f.1). In cases where a return to the child’s parent is not best
suited to the safety, protection and physical, mental and moral welfare of the
child, the court shall determine if and when the child will be placed for
adoption, and the county agency must file for the termination of parental
rights. See 42 Pa.C.S. § 6351(f.1)(2).
In this case, the evidence at the goal change and termination hearing
demonstrated that the children have lived with their current caregivers for
more than four years and that the children have strong parental bonds with
them, with each child referring to their respective caregiver as “Mom” or
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“Mama.” The current caregivers of the children are both pre-adoptive
resources who are willing to adopt each child.
Multiple witnesses testified that Mother does not have a parental bond
with the children, and that severing the bond between the children’s current
caregivers or removing them from their homes would be “traumatic.”
Regardless, even if Mother had a parental bond with the children, she remains
unable to care for them at present. The record does not demonstrate that
even around-the-clock live-in support would enable Mother to care for the
children or otherwise remedy the circumstances that led to the children’s
placement in foster care. Nor is it evident anywhere in the record that such
services would be available to Mother.
Thus, the record establishes that all the factors necessary for a goal
change to adoption have been met, and that such goal changes would be in
the children’s best interests. For that reason, the trial court abused its
discretion in denying DHS’s goal change petitions as to each child. See e.g.,
D.C.D., 105 A.3d at 675 (explaining that “nothing in the language or purpose
of Section 6351(f)(9) forbids the granting of a petition to terminate parental
rights under Section 2511 as a consequence of the agency’s failure to provide
reasonable efforts to a parent.”).
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Orders vacated. Case remanded for the entry of orders of involuntary
termination of Mother and Father’s parental rights. Jurisdiction relinquished.
Judge Bowes joins the memorandum.
Judge Stabile concurs in the result.
Date: 10/16/2023
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