In the Int. of: K.T. Apl of: CYF

[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN THE INTEREST OF: K.T., A MINOR : No. 37 WAP 2022
:
: Appeal from the Order of the
APPEAL OF: K.T. : Superior Court entered June 2, 2022
: at No. 1245 WDA 2021, affirming
: the Order of the Court of Common
: Pleas Allegheny County entered
: October 13, 2021 at No. CP-02-AP-
: 197-2019.
:
: ARGUED: November 29, 2022
IN THE INTEREST OF: K.T., A MINOR : No. 38 WAP 2022
:
: Appeal from the Order of the
APPEAL OF: ALLEGHENY COUNTY : Superior Court entered June 2, 2022
CHILDREN, YOUTH AND FAMILIES : at No. 1279 WDA 2021, affirming
: the Order of the Court of Common
: Pleas of Allegheny County entered
: October 13, 2021 at No. CP-02-AP-
: 197-2019.
:
: ARGUED: November 29, 2022
DISSENTING OPINION
JUSTICE WECHT DECIDED: JUNE 21, 2023
Today, the Majority provides a new four-factor test1 for trial courts to use when
conducting needs and welfare analyses under 23 Pa.C.S. § 2511(b) of the Adoption Act.
As part of that test, the Majority adopts a standard for evaluation of parent-child bonds in
termination of parental rights cases that the plain language of the Adoption Act does not
support. The Majority’s new rubric also violates this Court’s tradition of affording trial
1 See infra at 23-24.
courts discretion to assess children’s needs and welfare holistically in making termination
of parental rights decisions. Today’s new standard for weighing the bond between the
parent and child supplies a threshold that is amorphous and abstract. Even the Majority
has trouble defining this new threshold. This rubric minimizes a child’s relationship to a
parent in most situations and restricts trial courts on the front lines from evaluating that
relationship in conjunction with other considerations bearing upon the child’s needs and
welfare as they see fit. The threshold that the Majority attaches to a parent-child bond
makes it easier for child welfare agencies to prove their cases, pre-tilts a trial court’s
decision toward termination of parental rights, minimizes a child’s relationship to a parent
in any case where there is a parent-child bond, and discounts the pain attendant to
termination of that relationship as measured from the child’s perspective. The Majority
assumes that adoption is the solution for most children who cannot reunify with a parent,
even though other permanency options exist. Until now, Pennsylvania law has allowed
trial courts on the front lines to retain their discretion to evaluate each specific child in
each specific case. Because the Majority departs from this path, I respectfully dissent.
Section 2511(a) of the Adoption Act first requires the petitioner to prove one or
more of eleven specified grounds for terminating parental rights.2 Only when the
petitioner has done so may the court turn to Section 2511(b). That subsection, entitled
“Other considerations,” states, inter alia, that “[t]he court in terminating the rights of a
parent shall give primary consideration to the developmental, physical and emotional
needs and welfare of the child.”3
2 23 Pa.C.S. § 2511(a).
3 23 Pa.C.S. § 2511(b).
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In contrast to Section 2511(a), which focuses upon the parent’s conduct, the plain
language of Section 2511(b) requires courts to focus upon the child’s needs and welfare.
Even when a petitioner has proven grounds to terminate under Section 2511(a),
“termination must be decreed only where it serves the needs and welfare of the children.”4
Stated plainly, even in circumstances where a parent’s conduct might establish grounds
for the termination of parental rights, severing the legal relationship between a parent and
child does not necessarily serve the child’s needs and welfare. Proof of grounds alone is
necessary, but not sufficient; satisfaction of the needs and welfare analysis is required as
well.
In the absence of statutory factors prescribing a methodology for trial court
evaluation of whether termination of parental rights serves a child’s needs and welfare,
this Court has provided some direction. In T.S.M.,5 this Court emphasized that the
Section 2511(b) analysis must address “the needs and welfare of the particular children
involved.”6 T.S.M. did not set forth a closed and complete list of mandatory factors that a
court must consider when conducting a Section 2511(b) analysis. It would be impossible
to fashion such a list inasmuch as each child’s circumstances are unique. What T.S.M.
does mandate is that the trial court consider whether the petitioner has proved that the
4 In re E.M., 620 A.2d 481, 484 (Pa. 1993).
5 In re T.S.M., 71 A.3d 251 (Pa. 2013).
6 Id. at 268-69. As I discuss below, T.S.M. involved five children who spent extended
time in foster care, suffered from psychological and behavioral conditions, and had a
strong but unhealthy bond to their mother. This Court referred to the children as
“catastrophically maladjusted.” Id. at 269. While this Court’s discussion has broader
implications for Section 2511(b), its analysis was targeted toward the circumstances of
the children in that case.
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termination serves the child’s needs and welfare by “weighing . . . factors” that involve
“contradictory considerations.”7
T.S.M. explained that trial courts must consider, to the extent applicable and in
addition to any other considerations bearing on a particular child’s developmental,
physical, and emotional needs and welfare, the following considerations: (1) a child’s
“emotional needs and welfare,” which include “intangibles such as love, comfort, security,
and stability”;8 (2) any “emotional bond” between a parent and child,9 including (a) the
nature of that bond, whether it is a healthy bond or whether the child’s emotional
attachment is derived from parental conduct that harms the children; 10 and (b) the effect
of permanently severing the bond upon the child;11 and (3) the child’s permanency and
security needs, including (a) whether a child is in a pre-adoptive home12 with caregivers
who provide necessary love, care, and stability;13 (b) whether there is a strong likelihood
of eventual adoption;14 (c) whether a child has a bond with a foster caregiver; 15 (d)
whether any unhealthy bond with a parent or the parent’s actions are interfering with the
7 See id. at 269.
8 Id. at 267.
9 Id. at 268 (citing E.M., 620 A.2d at 485).
10 See id. at 267-69. This Court acknowledged that “evaluation of a child’s bonds is
not always an easy task,” and recognized that a bond may be “strong” yet “unhealthy.”
See id.
11 Id. at 268.
12 Id.
13 See id. at 268-71.
14 See id. at 268, 270.
15 Id. at 268.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 4
child’s ability to bond with a foster parent or obtain stability; 16 (e) whether, to the extent
that the child feels competing loyalty to a parent and foster caregiver, permanency could
make the child feel more secure and resolve such conflict;17 and (f) the length of time
children have spent in foster care, bearing in mind the “ticking clock of childhood.”18
Overall, T.S.M. directed trial courts to pay “attention to the pain that inevitably results from
breaking a child’s bond to a biological parent, even if that bond is unhealthy,” and to
“weigh that injury against the damage that bond may cause if left intact.”19
K.T. (“Child”) was five years old when the trial court denied the petition filed by
Allegheny County’s Office of Children, Youth, and Families (“CYF”) to terminate
involuntarily the parental rights of Child’s mother, K.S.T. (“Mother”). The dispute before
us in this case centers upon the legal evaluation of Child’s bond with Mother under
16 See id. at 268-70.
17 See id. at 270. Specifically, in explaining why the trial court abused its discretion
in relying upon the children’s bond with their mother and the children’s lack of a
guaranteed adoptive home in denying the termination petition, this Court admonished that
“use of concurrent planning beyond its useful life can create confusion for the children
and potentially increase the difficulty for them to bond with pre-adoptive parents.” Id. In
some scenarios, the child’s bond to the parent who cannot care for the child interferes
with the child’s ability to bond to foster parents or causes the child to experience
maladaptive behaviors. See id. To illustrate the complexity of these situations, this Court
drew upon the expert psychologist’s testimony to explain that courts should consider
whether “the child is conflicted ‘between loyalty to a biological parent and loyalty to a
foster parent, pre-adoptive parent, [or] adoptive parent. When it is clear to the child that
they are in their permanent home, then the conflict can diminish, which can result in less
disruptive behaviors and a greater sense of security.’” Id. (citation omitted). The Majority
critiques my inclusion of such a factor into the considerations that a trial court must
consider. See Maj. Op. at 44 n.28. Yet this consideration was one of the many integral
parts of this Court’s analysis in T.S.M. The tenor of the Court’s rationale in T.S.M. was
to caution trial courts that evaluations of parent-child bonds and a child’s developmental,
physical, and emotional needs and welfare is a complex task.
18 See id. at 269.
19 Id.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 5
Section 2511(b),20 and whether that bond serves Child’s needs and welfare to a sufficient
degree that it overcomes the grounds for termination.
CYF removed Child from Mother’s care when Child was eight months old. Child
spent four years in kinship foster care with her godmother. No one disputes that there
were grounds to terminate Mother’s parental rights under Section 2511(a). Nor does
anyone dispute that Child shares a bond with both Mother and the godmother. One needs
no psychology degree to discern what common sense predicts: since Child has spent
most of her life in her godmother’s daily care, her relationships with her godmother and
Mother are significantly different. Unsurprisingly, by this point, Child’s primary attachment
is to her godmother, who is Child’s source of emotional security.
While Mother’s progress in meeting the goals set by CYF to reunify with Child has
waxed and waned, her interest in Child never has. Mother attended most of her visits
with Child. For a time, Child visited Mother’s home overnight on an unsupervised basis.
At other times, visits occurred under supervision. During most of Child’s time in foster
care, Child and Mother visited each other three times per week.21 Although Child was in
Mother’s direct care for only a brief time following birth, the trial court determined that
Child had formed and maintained a bond with Mother. The parties in this case do not
dispute the existence of that bond. This dispute centers upon competing interpretations
of the nature of the bond, the effect upon the child of severing it, and the bond’s overall
place within the Section 2511(b) analysis.
The trial court declined to terminate Mother’s parental rights. Child and CYF
appealed. In its Pa.R.A.P. 1925(b) opinion, the trial court indicated that the petitioner,
20 See 23 Pa.C.S. § 2511(b); see also E.M., 620 A.2d at 481-84 (requiring an
evaluation of the parent-child bond as part of the Section 2511(b) analysis); T.S.M., 71
A.3d at 268 (same).
21 See N.T., 3/22/21, at 126-27; N.T., 5/13/21, at 34.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 6
CYF, did not meet its burden of proving that termination met Child’s needs and welfare
under 23 Pa.C.S. § 2511(b). The trial court highlighted the evidence in the record which
demonstrated that permanently severing Mother and Child’s emotional relationship would
“adversely affect” Child.22
A divided panel of the Superior Court affirmed the trial court’s order. The panel
majority rejected the notion that the trial court applied an incorrect legal standard to
evaluate Child’s needs and welfare.23 From the majority’s perspective, Child and CYF
simply disagreed with the trial court’s discretionary weighing of the evidence. The panel
majority acknowledged the “abundant evidence” in the record that “Child’s needs and
welfare may best be served by a life in [her godmother’s] home.”24 But, the majority noted,
there also was record evidence that Mother is “nurturing,” “affectionate,” and “playful” with
Child, that Child looks forward to seeing Mother, and that continued contact with Mother,
“if it could be shaped into a supportive role” that was not “critical” of Child’s godmother,
22 See Trial Ct. Op., 11/22/21, at 15-19.
23 See Interest of K.T., 281 A.3d 1040, 2022 WL 1793083, at *5 (Pa. Super. 2022)
(non-precedential decision). According to the panel majority, a trial court may, but is not
required to, emphasize a child’s relationship with a foster caregiver. The panel declared
that, while a trial court may emphasize a child’s relationship with a foster parent, the
Superior Court has not required the trial court to do so. Id. (citing In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (“[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider the intangibles, such
as the love, comfort, security, and stability the child might have with the foster parent.”)
(emphasis added)). But see T.S.M., 71 A.3d at 268 (“Common 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.”) (emphasis added).
24 K.T., 2022 WL 1793083, at *5. The Superior Court found sufficient evidence to
support the conclusion that Child’s “primary attachment” is to her godmother, Child and
her godmother share a strong positive bond, and Child’s godmother has helped Child
achieve stability, security, safety, and developmental and emotional success. Id. at *4-5.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 7
would be “worth preserving” for Child.25 Per this Court’s recent decision in S.K.L.R., which
reiterated that the Superior Court cannot reverse a trial court’s order merely because the
record would support the opposite result,26 the majority declined to find that the trial court
abused its discretion.27
Child and CYF jointly filed a petition for allowance of appeal. They argued that the
trial court erred as a matter of law by ignoring aspects of Child’s needs and welfare
beyond a parent-child bond28 and by using a standard of “adverse effect” to evaluate
Child’s bond with Mother.29 Child and CYF argue that an “adverse effect” standard is too
lenient as a matter of law. They posit that lower courts across the Commonwealth
uniformly must utilize a more exacting standard when called upon to evaluate a bond
between a child and parent.30
25 Id. at *4-6. Because the CYF caseworker had never seen Child and Mother
interact in person, most of the evidence regarding Child’s relationship with Mother came
from Neil Rosenblum, Ph.D., a forensic psychologist who evaluated the family. See id.
at *3. While Dr. Rosenblum recommended that Child have continued contact with Mother,
his ultimate recommendation was that such contact should not come at the expense of
Child’s permanency with her godmother. See id. at *5.
26 See Interest of S.K.L.R., 256 A.3d 1108, 1127-29 (Pa. 2021) (emphasizing that
appellate courts must defer to trial courts’ factual determinations because of the latter’s
“first-hand observations of the parties spanning multiple hearings” and experience “on the
front lines assessing the credibility of witnesses and weighing competing and often
challenging evidence”).
27 Interest of K.T., 2022 WL 1793083, at *5. In contrast to the panel majority’s refusal
to find an error of law, Judge Murray dissented, opining that the trial court erred as a
matter of law by considering only the parent-child bond and “ignoring Child’s need for
permanency.” Id. at *8 (Murray, J., dissenting).
28 Child’s Br. at 24-26; CYF’s Br. at 44-47.
29 Child’s Br. at 19-20; CYF’s Br. at 33.
30 See Child’s Br. at 20; CYF’s Br. at 33.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 8
Today, the Majority declares that the “only” parent-child bond which warrants
preservation is one that is “necessary and beneficial.”31 The Majority maintains that its
test stems from the plain language of the Adoption Act and this Court’s decision in E.M.,32
and that it has merely “clarified the standard.”33 I am not convinced.
As the Majority observes, the legislature has provided few instructions to guide
courts in weighing whether termination of a parent’s rights serves a child’s needs and
welfare.34 The statute includes three categories of “needs and welfare”: “developmental,”
“physical,” and “emotional.” The General Assembly did not define the term “needs” or the
term “welfare.” “The lack of definition naturally complicates a plain-language analysis,
but it hardly precludes one.”35 We may seek understanding elsewhere, including in
dictionaries, which furnish insight into the common meaning of a term.36
Although courts typically refer to a child’s “needs and welfare” as a joint package,37
each of these words has a meaning of its own. Reference to a child’s “needs” is a signal
that the legislature intended the court to focus upon aspects that are “of necessity” to the
31 Maj. Op. at 36.
32 620 A.2d 481 (Pa. 1993).
33 Maj. Op. at 50.
34 See Maj. Op. at 29 (“Although subsection (b) itself does not specify a method for
determining whether granting or denying termination best serves the child’s needs and
welfare. . . .”).
35 Reibenstein v. Barax, 286 A.3d 222, 231 (Pa. 2022).
36 See id.; see also 1 Pa.C.S. § 1903(a) (“Words and phrases shall be construed
according to . . . their common and approved usage . . . .”)
37 See, e.g., T.S.M., 71 A.3d at 267.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 9
child.38 Defined in the singular,39 a “need” is “a physiological or psychological requirement
for the well-being” of a person.40 Or, as another dictionary puts it, to “need” is “to require
something/somebody because they are essential or very important, not just because you
would like to have them.”41 A child’s “welfare,” on the other hand, connotes “the state of
doing well especially in respect to good fortune, happiness, well-being, or prosperity.”42
Put differently, “welfare” is “the general health, happiness and safety of a person.”43
A synthesis of these definitions indicates that Section 2511(b) requires courts to
ascertain whether termination of a parent’s rights serves a child’s “developmental,”
“physical,” and “emotional” requirements—i.e., needs—and a child’s “developmental,”
“physical,” and “emotional” well-being—i.e., welfare. By prescribing the terms “needs”
and “welfare,” the General Assembly has directed courts to examine the termination’s
effect upon domains that a child needs to survive and domains that help a child to thrive.
By shifting the focus from the parent’s conduct to the child, and by directing courts
to give “primary consideration to the developmental, physical and emotional needs and
welfare of the child,” the General Assembly has required a comprehensive and holistic
38 Needs, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/needs (last visited June 13, 2023).
39 “The singular shall include the plural, and the plural, the singular.” 1 Pa.C.S.
§ 1902.
40 Need, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/need (last visited June 13, 2023).
41 Need, Oxford Advanced Learner’s Dictionary,
https://www.oxfordlearnersdictionaries.com/us/definition/english/need_1 (last visited
June 13, 2023).
42 Welfare, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/welfare (last visited June 13, 2023).
43 Welfare, Oxford Advanced Learner’s Dictionary,
https://www.oxfordlearnersdictionaries.com/definition/english/welfare (last visited June
13, 2023).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 10
examination of the effect of terminating parental rights upon a child across multiple
domains of that child’s life. The examination is child-focused. The General Assembly left
open the question of how to evaluate a child’s needs and welfare. Notably, the legislature
did not expressly direct the trial court to examine the parent-child bond. The broad
language of Section 2511(b) leaves ample room for this obvious and important
consideration. So, at first glance, the Majority’s attempt to target the child’s requirements
and the child’s well-being by attaching the “necessary and beneficial” label to the bond
seems reasonable. But the legislative command is for the court to give “primary
consideration” to a child’s “developmental, physical and emotional” requirements and
well-being in “terminating the rights of a parent” (i.e., making a termination decision). The
General Assembly did not prioritize or limit consideration of a parent-child bond or any
other particular consideration bearing upon termination, so long as the consideration
relates to the child’s “developmental, physical and emotional needs and welfare.” It did
not require each individual and distinct consideration to serve the child’s requirements
and well-being in order to count in the trial court’s weighing; no, it is the ultimate result
that must serve a child’s needs and welfare. Consequently, the Majority’s decision to
attach nearly insurmountable weight to one (and only one) consideration under Section
2511(b) is not supported by the statutory language.
Nor does the Majority’s analysis comport with our existing precedents, which have
grappled at length with the competing interests at stake in termination cases.
Consideration of a child’s needs and welfare pre-dates the adoption in 1980 of express
statutory language requiring such an analysis.44 Even before the legislature converted
the termination decision into a two-step analysis, this Court unequivocally mandated that,
given the nature of the rights at stake, courts could not consider a child’s needs and
44 See In re Adoption of R.I., 361 A.2d 294, 299 (Pa. 1976).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 11
welfare until after they considered whether the Commonwealth proved grounds for
terminating parental rights. Government agencies bore this initial burden in order to
ensure that they did not destroy families; these agencies were not free
to take the children of the poor and give them to the rich, nor to take the
children of the illiterate and give them to the educated, nor to take the
children of the crude and give them to the cultured, nor to take the children
of the weak and sickly and give them to the strong and healthy. 45
In William L.,46 this Court explained that, notwithstanding a parent’s constitutional
interest in parenting his or her child, once the Commonwealth proved grounds for
termination by clear and convincing evidence,47 the Commonwealth could
“constitutionally intervene to protect the ‘physical or mental well-being’ of the child.”48 The
Court remained cognizant that the parent is not the only one with an interest in continuing
the parent-child relationship. The child also has an “important” interest in continuing this
relationship, because severing “close parental ties is usually extremely painful.”49 The
demanding standards of removal and termination of parental rights exist in order to
45 Id. at 298 (quoting Rinker Appeal, 117 A.2d 780, 783 (Pa. Super. 1955)).
46 In re William L., 383 A.2d 1228 (Pa. 1978).
47 This Court did not officially adopt the “clear and convincing” evidentiary standard
for all termination of parental rights cases until 1983, following the United States Supreme
Court’s decision in Santosky v. Kramer, 455 U.S. 745 (1982). In re T.R., 465 A.2d 642,
644 (Pa. 1983) (“We hold that in all proceedings to involuntarily terminate parental rights,
which are not yet final, the petitioner must prove the statutory criteria for that termination
by at least clear and convincing evidence.”). In re T.R. arose under the 1970 version of
the Adoption Act, which did not impose an express two-step process like the 1980 act.
Nevertheless, this Court has continued to follow T.R. after the amendment of the Adoption
Act. The petitioner is not only required to prove grounds by clear and convincing evidence
in accordance with Santosky, but also must prove that termination meets the child’s needs
and welfare by clear and convincing evidence. E.M., 620 A.2d at 484-85.
48 William L., 383 A.2d at 1236.
49 Id. at 1241.
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protect the family, of which the child is a part, from “harmful and unwarranted state
intrusion.”50
Assessment of a child’s need for a “stable home and strong, continuous parental
ties” cuts both ways.51 Where a parent has been unable to retain custody of a child and
the “child has lived with one foster family for a considerable period of time,” removing the
child from the foster family, “or inflicting upon [the child] the fear that [the child] might be
removed at any time,” may “create psychological and emotional distress similar to that
caused by [the child’s] removal from [the child’s] natural parent.”52 In such a
circumstance, the parent’s interest in parenting the child may yield to the child’s interest;
a child need not remain indefinitely in the “limbo of foster care or the impersonal care of
institutions” in order to preserve a parent-child relationship that no longer exists.53 When
the interests of the parent and child conflict, the legislature “has constitutionally mandated
that the interests of the weaker party, the child, should prevail.”54
In 1980, two years after the In re William L. decision, the legislature amended and
re-codified the Adoption Act. It was then that the General Assembly added Section
2511(b), which expressly required courts to consider the child’s needs and welfare.55 The
50 Id.
51 Id.
52 Id.
53 Id.
54 Id. at 1236.
55 At that time, Section 2511(b) instructed that “[t]he court in terminating the rights of
a parent shall give primary consideration to the needs and welfare of the child.” It was
not until 1995 that the General Assembly added the “developmental, physical and
emotional” descriptors. Matter of Charles E.D.M., II, 708 A.2d 88, 92 n.2 (Pa. 1988).
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addition of Section 2511(b) was met with little fanfare by this Court, which did not consider
the new statutory language until it decided E.M. in 1993.
E.M. involved a mother with intellectual disabilities who struggled to provide
adequate care to her two sons, both of whom also were intellectually disabled. For six
years, the county child welfare agency provided services to try to reunify the family, but
the agency ultimately determined that reunification was not viable. The trial court ordered
that the mother’s rights be terminated.56
On appeal to the Superior Court, the mother argued that terminating her rights did
not serve her children’s needs and welfare in view of their shared parent-child bond. The
eight-year-old and nine-year-old children were doing well with the stability provided by
their foster home, but typically enjoyed visiting their mother. The nine-year-old child
referenced having “two mommies and two daddies”—referring to his pre-adoptive foster
parents, his mother, and his mother’s live-in boyfriend—and expressed a preference to
live with his foster parents. The eight-year-old child also referred to both sets of parents
as “mommy and daddy.” That child alternated between naming the foster parents and
his mother and her boyfriend when asked where he preferred to live, once expressing a
wish to live with both at the same time.57 The Superior Court affirmed the termination,
declaring that:
[O]nce a parent is adjudged incompetent under section 2511(a) whereby
family unity cannot be preserved, but where adoption is imminent, then
there is no need to ascertain whether a beneficial bonding exists as
between the natural parent and the children, nor whether additional factors
counsel that continuing the relationship might otherwise serve the needs
and welfare of the child.58
56 E.M., 620 A.2d at 481-82.
57 E.M., 584 A.2d 1014, 1017-18 (Pa. Super. 1991), rev’d, 620 A.2d 481 (Pa. 1993).
58 Id. at 1022 (emphasis in original).
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Lest anyone think that the court disregarded evidence of the irretrievable loss of “what
may be a present and continuing beneficial relationship with the natural mother,” the court
acknowledged that it was aware that it was doing precisely that, but opined that it was up
to the “legislature to consider the propriety of this result.”59
Judge Johnson dissented. In his view, because no one was advocating a return
to the mother, “[t]he real issue [was] whether the benefits of change in legal status from
foster care to adoption, weighed against the harm of taking [the m]other out of the
children’s lives, will serve the best interests of the children.”60 He argued that “adoption
may advance an abstract kind of stability while at the same time undermining the
children’s needs and welfare.”61 He observed that “[t]he children are not confused or
otherwise negatively affected by ongoing relationships with both sets of parents.
Termination/adoption might simplify things for other parties but not for the children.”62
This Court granted review. In considering whether the agency had met its burden,
the Court found it striking that the agency’s own expert witness, a psychologist, testified
that the children shared a bond with their mother and that the expert could have better
assessed the bond if she had conducted a joint evaluation of the children and their
mother.63 The Court held that, “[w]hile the fact that there exists some bond between [the
mother] and the children would not per se block a termination of parental rights, it is at
59 Id. at 1023.
60 Id. at 1024 (Johnson, J., dissenting).
61 Id. at 1027 (Johnson, J., dissenting).
62 Id. (Johnson, J., dissenting).
63 The psychologist also recommended evaluating the children with their foster
father. She had conducted an evaluation between the children and their foster mother
and an individual evaluation of the children’s mother. E.M., 620 A.2d at 484.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 15
least a factor that, according to [the agency’s] own expert witness, should have been
more fully explored.”64 The Court found that the agency did not meet its burden to show
by clear and convincing evidence that termination met the needs and welfare of the
children.
This Court also disapproved the Superior Court’s statement that there is no need
to evaluate a bond where a parent is adjudged incompetent and where adoption is
imminent:
We do not agree. It is clearly conceivable that a beneficial bonding could
exist between a parent and child, such that, if the bond were broken, the
child could suffer extreme emotional consequences. This is true regardless
of whether adoption is imminent. To render a decision that termination
serves the needs and welfare of the child without consideration of emotional
bonds, in a case such as this where a bond, to some extent at least,
obviously exists and where the expert witness for the party seeking
termination indicates that the factor has not been adequately studied, is not
proper.
Whether the bond exists to such a considerable extent that severing the
natural parent-child relationship would be contrary to the needs and welfare
of the children is an issue that must be more fully explored by the evidence.
Such an intense bond may exist with respect to one, both, or neither of the
children. The existing record is simply inadequate in its treatment of this
issue.
The order of the Superior Court affirming the decree of the court of common
pleas must, therefore, be reversed. The case will be remanded to the court
of common pleas for a reevaluation of the needs and welfare of the children,
taking into account whatever bonds may currently exist between the
children and [their mother], as well as other factors having bearing upon
whether termination is proper.65
The E.M. Court referenced “extreme emotional consequences” and “an intense
bond,” and also mentioned a bond existing “to such a considerable extent that severing
the natural parent-child relationship would be contrary to the needs and welfare of the
64 Id. at 485.
65 Id. Notably, this Court did not address what those “other factors” might be.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 16
children.” This Court’s reference to “extreme emotional consequences” undid the
Superior Court’s assumption that, once a court declares an incompetent parent unfit, and
once presumptively loving and fit foster parents are waiting to adopt the children, then a
fortiori, termination and adoption meet the children’s needs and welfare. In practice, the
Superior Court had declared that the effect upon a child of severing a bond with a parent
did not warrant further consideration as a matter of law. This Court pointed out the fallacy
of that assumption, particularly because the language of the Adoption Act required a
separate analysis of children’s needs and welfare.
E.M. underscores the importance of full evaluation of a child’s needs and welfare,
one that is based upon scrutiny of the parties actually before the court, rather than upon
general assumptions. It also stands for the proposition that the petitioner can meet its
burden for showing that termination serves a child’s needs and welfare notwithstanding
a parent-child bond, as “some bonds would not per se block a termination,” while also
mandating that a court must fully evaluate the bond before severing it for purposes of
facilitating an adoption.66
In 1995, the General Assembly amended Section 2511(b) and added three
descriptors to the phrase “needs and welfare.” After the amendment, courts had to give
primary focus to the child’s “developmental, physical and emotional needs and welfare.”67
Because we must assume that the General Assembly did not intend for these three
descriptors to be mere surplusage,68 the addition of the descriptors indicates that the
General Assembly requires a holistic assessment of these distinct aspects of a child’s
needs and welfare and does not permit the focus to aim only at one area.
66 E.M., 620 A.2d at 485, 483.
67 Charles E.D.M., II, 708 A.2d at 92 n.2.
68 See Commonwealth v. Peck, 242 A.3d 1274, 1282 (Pa. 2020).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 17
In Charles E.D.M., II, a case involving a parent’s petition to terminate the rights
of the other parent, the Court emphasized that Section 2511(b) requires courts to look at
the effect of termination of parental rights upon the child, not the effect upon the adults in
the child’s life.69 In that case, the child’s father and stepmother testified that terminating
the rights of the child’s mother would bring finality for the father and stepmother, but they
did not produce evidence concerning the effect upon the child; hence, they fell short of
their burden for purposes of termination.70
In Charles E.D.M., II, the mother did not wish to disrupt the children’s family
situation with their father and stepmother; she merely wanted to remain present in the
children’s lives through visitation. This Court emphasized “the importance of a child’s
relationship with his or her biological parent,” and opined that ongoing “contact will allow
the children to continue to feel loved by their mother and receive her guidance and
nurturing.”71 Additionally, this Court noted that allowing some contact may ward off “the
children’s painful search for their biological mother as a teen or an adult and the emotional
injuries caused by the separation.”72 Thus, while this Court’s decision in Charles E.D.M.,
II focused upon a termination of parental rights in a private family realm outside of the
foster care system, it recognized that parents can add value to a child’s life even when
they are not in a caretaking role.
69 Charles E.D.M., II, 708 A.2d at 92-93. See also In re Adoption of Atencio, 650
A.2d 1064, 1066-67 (Pa. 1994) (citing E.M. for the proposition that Section 2511(b)
“requires the court to look to the effect of termination on the needs and welfare of the child
involved”).
70 Charles E.D.M.,II, 708 A.2d at 92-93.
71 Id. at 93.
72 Id. (citing Betty Jean Lifton, LOST & FOUND: THE ADOPTION EXPERIENCE (1988)).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 18
Meanwhile, in the late 1990s, federal lawmakers decided that the pendulum had
swung too far toward protecting parental rights at the expense of dependent children’s
well-being.73 The United States Congress enacted the Adoption and Safe Families Act
of 1997 (ASFA),74 which provided financial incentives to states to “move children toward
adoption in a timely manner when reunification proved unworkable.” 75 Our General
Assembly responded the following year by amending the Juvenile Act to comport with the
federal legislation.76 This Court later summarized the changes thus: “[f]ollowing ASFA,
Pennsylvania adopted a dual focus of reunification and adoption, with the goal of finding
permanency for children in less than two years, absent compelling reasons.”77
Twenty years after E.M., this Court decided T.S.M. There, the Superior Court had
affirmed the trial court’s decision to deny a petition to terminate the parental rights of a
mother who had been involved with the child welfare agency for almost a decade due to
a pattern of abuse and neglect. Several reunification attempts had been made, but all
had failed. The mother’s five children had experienced “significant psychological and
73 See In re Adoption of S.E.G., 901 A.2d 1017, 1019 (Pa. 2006) (describing how the
system’s sole focus on reunification contributed to failed reunification attempts, bouncing
between foster homes, or placement in congregate care).
74 Pub L. No. 105–89, 111 Stat. 2115 (1997).
75 S.E.G., 901 A.2d at 1019 (citing 42 U.S.C. § 671(a)(15)(c)).
76 Prior to ASFA, the sole express purpose of the Juvenile Act was “[t]o preserve the
unity of the family whenever possible.” S.E.G., 901 A.2d at 1019. After ASFA, the
General Assembly added a second purpose: to “provide another alternative permanent
family when the unity of the family cannot be maintained.” Id.; 42 Pa.C.S. § 6301(b)(1).
77 T.S.M., 71 A.3d at 269; see also 42 Pa.C.S. § 6351(f)(9) (requiring juvenile courts
to determine whether an agency has filed a termination of parental rights petition if a
dependent child has been in placement for fifteen of the last twenty-two months).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 19
behavioral problems,” in part due to their “pathological” and “unhealthy bond” with her.78
The children drifted between foster homes and other out-of-home settings, with some of
the children experiencing as many as thirteen placements. At times, the mother overtly
interfered with the children’s adjustments to their foster caregivers. After the agency filed
a petition to terminate the mother’s parental rights, the trial court refused to do so based
upon a finding that the mother and children maintained a “strong bond.”
Upon review, this Court described the situation as “a Catch–22.”79 The mother’s
abusive parenting created pathological bonds, which could not be severed without
additional pain to the children. Yet maintaining the bond kept the children tied to a parent
who was not able to reunify with them and “stymied [the children] from forming healthy
bonds with their foster families who could provide them permanency and, with it, well-
being.”80 This Court unanimously concluded that the trial court’s denial of termination
was manifestly unreasonable because the trial court ignored “the substantial, possibly
permanent, damage done to these children by the prolonged, unhealthy, pathological
bond” with their mother.81 Maintaining such a pathological bond with a parent who was
not able to reunify with the children was particularly egregious because that bond
negatively impacted “the children’s ability to form attachments to foster families who could
78 T.S.M., 71 A.3d at 253. The children underwent “thirty to forty [psychological]
evaluations as [their dependency case] dragged on for the better part of a decade.” Id.
at 260 n.19. The final psychologist to evaluate the children and their mother described
the bonds between them as “unhealthy” with “traumatic aspects.” See id. at 260 n.18.
According to the psychologist, such bonds may occur after abuse; because the child has
to depend on the parent, the child “normalize[s] the dysfunctional behavior.” Id. Thus,
the child remains closely aligned with a parent even though the child simultaneously
“fear[s] and love[s]” the parent. Id.
79 Id. at 266 n.26.
80 Id.
81 Id. at 271.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 20
have provided the necessary love, care and stability that these children have so needed
for the past decade.”82
In arriving at that conclusion, we set forth considerations that courts must consider
when evaluating a child’s needs and welfare, as discussed above.83 A few more
observations concerning T.S.M. are instructive here. Significantly, although the T.S.M.
children, through their guardian ad litem, asked the court to decide whether a
“pathological bond is a bond that is necessary and beneficial” to a child,84 the Court did
not answer that question directly or incorporate such a concept into its analysis of the
bond. Instead, this Court held that “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 directed courts to “weigh that injury against the damage that bond may cause if left
intact.”85 Stated differently, “[c]ourts must determine whether the trauma caused by
breaking that bond is outweighed by the benefit of moving the child toward a permanent
home.”86
Although the T.S.M. Court acknowledged that the Adoption Act explicitly excuses
agencies from pleading that an adoption was “presently contemplated” or that “a present
intention to adopt exists,” we also determined that “[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.” 87 Notably, this Court left
82 Id.
83 See, supra, text accompanying nn. 7-19.
84 T.S.M., 71 A.3d at 262.
85 Id. at 269.
86 Id. at 253.
87 Id. at 268.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 21
the analysis open-ended. We cautioned trial courts that “termination of parental rights
generally should not be granted unless adoptive parents are waiting to take a child into a
safe and loving home,” although we allowed that “termination may 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 permanent adoptive home.”88
This Court recognized that “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
to a pre-adoptive family.”89 Ultimately, T.S.M. did not prescribe any sort of bright-line test
or mandate regarding a parent-child bond, other than requiring trial courts to evaluate the
nature and health of that bond and the effect of severing it, and to weigh those
considerations as part of the greater needs and welfare analysis. Thus, even in a case
of an unhealthy parent-child bond that harms the child, this Court permitted trial courts to
weigh the damage attendant to breaking the bond against the damage associated with
leaving it intact.
The Court implicitly put its proverbial thumb on the side of ASFA’s “permanency”
mandate by cautioning trial courts to “keep the ticking clock of childhood ever in mind”
and to maintain “vigilance to the need to expedite children’s placement in permanent,
safe, stable, and loving homes.”90 However, the Court intentionally left the weighing of
the aforementioned competing considerations open-ended, in view of our preference not
to apply “the law regarding termination of parental rights . . . mechanically but instead
88 Id. at 269.
89 Id. at 268.
90 Id. at 269.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 22
always with an eye to the best interests and the needs and welfare of the particular
children involved.”91
The foregoing discussion of this Court’s case law reveals that the Majority in the
instant case is not merely “clarifying” a legal standard. Rather, today’s Majority is, in fact,
imposing a legal standard previously unrecognized by this Court. Although the T.S.M.
Court unanimously determined that the trial court abused its discretion in that case, it did
so only after formulating a needs and welfare analysis that affords ample discretion to a
trial court in the first instance. Here, however, the Majority actually restricts the trial court’s
discretion even as it professes to recognize it.
The Majority summarizes the factors that comprise a “Section 2511(b) inquiry” by
offering the following list:
(1) whether the child and parent share a “necessary and beneficial”
bond;
(2) “the child’s need for permanency and length of time in foster care
consistent with 42 Pa.C.S. § 6351(f)(9) and federal law ASFA, 42 U.S.C.
§§ 675(5)(C), (E)”;
(3) “whether the child is in a preadoptive home and bonded with
foster parents”; and
(4) “whether the foster home meets the child’s developmental,
physical, and emotional needs, including intangible needs of love, comfort,
security, safety, and stability.”92
91 Id. at 268-69.
92 Maj. Op. at 42-43. The Majority’s test queries whether the foster caregivers meet
a child’s “intangible needs of love, comfort, security, safety, and stability,” but does not
direct the trial court to consider whether the child’s parents meet these intangible
emotional needs of the child. Id. The direction in T.S.M. is to examine these intangibles
generally. See T.S.M., 71 A.3d at 267. The trial court should be examining the source
of these intangibles for the child, regardless of the identity of the adult from which they
emanate.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 23
The Majority proclaims that all four of these factors are of “‘primary’ importance”
and that all “may contribute equally to the determination of a child’s specific
developmental, physical, and emotional needs and welfare.”93 But the Majority proceeds
promptly to contradict itself, declaring that “only a necessary and beneficial bond . . .
should be maintained,” thereby imposing a universal threshold for the type of bond the
Majority deems worthy of preservation.94 If trial courts truly maintain the discretion to
“place appropriate weight on each factor present in the record,”95 then they should be
able to balance any parent-child bond among the other factors and evaluate each child’s
developmental, physical, and emotional needs and welfare as a whole.
The Majority’s quest for a uniform legal standard regarding evaluation of a parent-
child bond runs headlong into to the discretion that we afford trial courts in considering a
child’s individual circumstances. Consider this incongruent result of the Majority’s rubric:
a trial court may weigh only a “necessary and beneficial” parental bond against the other
factors, but it must consider any degree and quality of bond existing between a child and
foster caregivers. Indeed, under the Majority’s newly formulated needs and welfare
analysis, a trial court risks being overturned on appeal if it denies a petition to terminate
parental rights based upon the child’s beneficial bond with a parent that an agency
witness declares to be unnecessary, even if the trial court believes that continued contact
with the parent serves the child’s developmental, physical, and emotional needs and
welfare and there was an alternate route to permanency for the child.
93 Maj. Op. at 35-36. See also id. at 43 (“Trial courts have the discretion to place
appropriate weight on each factor present in the record before making a decision
regarding termination that best serves the child’s specific needs.”).
94 Id. at 36 (emphasis added).
95 Id. at 43.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 24
Another problem is that the Majority’s scheme is at odds with T.S.M.’s express
directive that trial courts weigh the pain of breaking a strong but unhealthy bond against
the damage of leaving the bond intact. In such a situation, the bond may not be beneficial,
but it may nonetheless be necessary to the child insofar as the pain of severing it would
be so traumatic that it trumps all other considerations.
These problems arise because the Majority insists that the agency only fails to
meet its burden if a bond is necessary and beneficial. While there has been Superior
Court caselaw to that effect,96 this Court has never endorsed such a standard. As
96 See, e.g., In re P.A.B., 570 A.2d 522, 525 (Pa. Super. 1990). The Superior Court
first used the phrase “necessary and beneficial” in P.A.B. The Superior Court proclaimed:
The bond with parents is unique and irreplaceable, making preservation of
family ties prima facie in the best interests of the child. Conversely, where
preserving family unity in form when no parent-child relationship exists will
in fact cast the child into an unstable and unhappy environment, a
consideration of the child’s needs and welfare may warrant termination. If,
as here, ties with natural parents are present and are an active force in the
child’s life, then needs and welfare becomes a concept that argues against
termination rather than fosters it.
It follows that in a termination proceeding under 2511(a)(5), a court, in
considering what situation would best serve the child’s needs and welfare,
must examine the status of the natural parental bond to consider whether
terminating the natural parents’ rights would destroy something in existence
that is necessary and beneficial. Hence, the party seeking termination, the
one that bears the burden, must prove that the family ties either do not exist
or no longer help but rather hinder the children. That the child has already
been removed from the home, as is always the case in a termination
proceeding instituted under 2511(a)(5), does not in itself mean that a
beneficial parent-child bond does not exist. This fact alone cannot be
dispositive of whether termination best serves the child’s needs and welfare.
Thus, to apply the statute correctly, there must be an inquiry into the status
of the bond, regardless of whether the parents have a physical or mental
incapacity.
Id. (cleaned up). The Superior Court offered no explanation of what type of bond would
constitute a “necessary” bond for a child. Its focus was on whether a bond existed and
whether it was beneficial to the child.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 25
explained above, the Court did not adopt this standard in T.S.M. And in the Majority’s
own words, in E.M., we “contemplated” that “‘a beneficial bond[]’ or ‘intense bond’” might
warrant denial of a termination petition.97 We did not mandate that the bond had to meet
both aspects. Requiring the bond to be both necessary and beneficial is inflexible and
may not meet a particular child’s overall needs and welfare.
The Majority denies that its decision today pre-determines that most parent-child
bonds are unworthy of preservation.98 The Majority also insists that “courts may weigh
the child’s feelings and affection towards a parent, relative to all her developmental,
physical, and emotional needs and welfare.” 99 But these assertions are at odds with the
actual framework that the Majority has created today. If the Majority was serious, there
would be no need to slap a universal and difficult-to-define label onto one factor. Nor
would there be a need to force the trial court to predict the level of harm that might befall
the child and to pinpoint such harm within an artificial range.
I disagree with application of a label when it is almost impossible to describe the
meaning of the label in the abstract. The Majority includes the disclaimer that it is not
prescribing “magic words” for the trial court’s recital,100 yet that is exactly the effect (if not
the intent) of the Majority’s decision to interject abstract, amorphous labels into one factor
of its four-factor Section 2511(b) analysis. The Majority offers no explication of what
constitutes a “necessary and beneficial bond.” It merely advances a proposal for what
happens in the absence of such a bond. Apparently, the answer lies in the type of bond
that, if severed, would “predictably cause ‘extreme emotional consequences’ or
97 Maj. Op. at 37 n.22 (citing E.M., 620 A.2d at 485) (emphasis added).
98 Id.
99 Id. at 39 n.24.
100 Id. at 45.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 26
significant, irreparable harm.”101 The Majority later explains that “evidence that severance
would cause the child to suffer extreme emotional consequences is one way to
demonstrate a necessary and beneficial bond, rather than the only way to preclude
termination.”102 This explanation serves only to complicate the analysis. Under the
Majority’s confused attempts to explain its universal bond evaluation standard, a
“necessary and beneficial” bond is one whose severance does more than cause an
“adverse effect”103 and may cause “extreme emotional consequences,”104 yet it also is a
bond whose severance could generate an effect that lies between “adverse” and
“extreme.”105, 106
101 Id. at 38.
102 Id. at 45 n.30. Considering that the burden always remains with the petitioner to
prove that termination serves a child’s needs and welfare, it is unclear who would
“demonstrate a necessary and beneficial bond.” The petitioner certainly would have no
interest in doing so. Its goal would be to demonstrate the absence of a necessary and
beneficial bond.
103 See id. at 36-37.
104 See id. at 38.
105 See id. at 45 n.30.
106 Discerning the effect upon the child of severing the parent-child bond is a difficult
task, because it essentially requires the trial court to predict the effect upon the child of
an event that is yet to occur. Adding an amorphous threshold only serves to befog this
prediction. It is not clear to me what evidence would need to exist in a record to prevent
an appellate court from overturning the trial court’s refusal to terminate parental rights
because of a parent-child bond. Would predictions of outbursts, anxiety, or nightmares
suffice to establish that a child’s reaction is more than adverse? Or do only behaviors
such as self-harm, suicide attempts, or aggression cross the adverse threshold? Is an
expected diagnosis of a mental health disorder required? Can outpatient therapy to
address feelings of loss or insecurity meet the standard? Or is only a need for inpatient
therapy or hospitalization more than an “adverse impact”? Are we only concerned about
a child who risks alienating the foster family and jeopardizing the placement, such that
the level of foster parents’ tolerance would play a role in the analysis? The Majority
provides no answers. It cannot do so, particularly under the established rubric that affords
the trial court discretion to evaluate an individual child’s circumstances.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 27
The closest that the Majority gets to an articulation of its standard is when it
proclaims that courts must “refine their focus on the child’s development and mental and
emotional health rather than considering only the child’s ‘feelings’ or ‘affection’ for the
parent, which even badly abused and neglected children will retain.”107 To be sure, there
is a difference between a child who may experience some transient feelings of sadness
from the legal severance of a parent’s relationship and a child who may experience more
significant effects upon his or her developmental, mental, or emotional health. That a
child has “feelings” or “affection” for a parent does not mean that the relationship is one
that is beneficial for the child, nor does it mean that those feelings override all other
aspects of a needs and welfare analysis. But directing courts to focus upon the impact
to a child’s mental or emotional health means little if the court cannot even consider “an
adverse or detrimental impact” and weigh it against the other factors.108 This erases a
child’s “feelings” and “affection” from the equation entirely, even though the analysis is
supposed to focus upon the child and the child’s emotional needs and welfare.
The Majority acknowledges that every termination of parental rights case is a
“difficult and fraught process” that has “heavy and irrevocable consequences,” and
invokes the familiar moniker that such termination represents the “death penalty” for the
parent-child relationship.109 Because severance of a “necessary and beneficial”
relationship involves more than “the ‘adverse’ impact” that “may occur whenever a bond
107 Id. at 39 (citing T.S.M., 71 A.3d at 267) (quoting In re K.K.R.-S., 958 A.2d 529, 535
(Pa. Super. 2008))).
108 Maj. Op. at 39.
109 Id. at 40.
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is present,”110 it seems that the Majority intends that the burden of proving that a “bond is
not necessary and beneficial”111 should be readily attainable for the petitioner.
Thus, while the Majority purports to equalize the four factors that it prescribes and
to permit trial courts to wield their discretion in weighing those factors, in reality the
Majority restricts the trial courts’ ability to afford most parent-child bonds very much
consideration among the factors at all. There is no need to so restrict the weight given to
the parental bond, particularly inasmuch as agencies already hold so many cards in the
deck. As recognized by the Supreme Court of the United States, the agency must meet
the high burden of “clear and convincing evidence” in part due to the state’s “ability to
assemble its case” with “an array of public resources,” which “almost inevitably dwarfs
the parents’ ability to mount a defense.”112
The Majority’s disregard of the adverse effect of severing parent-child bonds
minimizes the pain inflicted upon children when bonds are severed in the quest for
permanency. The Majority’s scheme removes discretion from the trial court and pre-
weights the court’s Section 2511(b) analysis toward adoption. Doing so further
exacerbates the incessant focus upon “permanency” to the extent that this magic word
has become a slogan or mantra that automatically supersedes all other needs and all
other aspects of child welfare. I fully recognize and agree that security and stability are
110 Id. at 37.
111 Id. at 45.
112 Santosky v. Kramer, 455 U.S. at 760, 763. In fact, “because the child is already in
agency custody, the [s]tate even has the power to shape the historical events that form
the basis for termination.” Id. at 763; see also S.K.L.R., 256 A.3d at 1129 (admonishing
a child welfare agency for not adhering to concurrent permanency planning and “cutting
in half” a parent’s contact with the children due to the agency’s presumption that the court
would grant its petition to terminate the parent’s rights involuntarily).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 29
two crucial needs for children.113 I most certainly do not maintain that trial courts should
deny every termination petition when a child and parent share a bond. But we cannot
profess to give trial courts the discretion to evaluate factors that bear upon a child’s needs
and welfare and then refuse simultaneously to respect those courts’ discretion when they
find that a parent-child relationship has value.
Parents, even flawed and struggling parents whose situations fit into the grounds
of Section 2511(a), may still be able to meet aspects of a child’s developmental and
emotional needs and welfare even if they cannot serve in a traditional or full-time
caretaking role. No matter how beneficial the child’s relationship is with a foster caregiver,
a child’s relationship with a parent is not easily replaced or replicated.114 Families are not
fungible.115 The appealing image of foster parents “saving” abused and neglected
113 Accord In re T.S., 192 A.3d 1080, 1104 (Pa. 2018) (Wecht, J., dissenting) (“Having
spent several years presiding in juvenile cases, I recognize and appreciate the
importance of delivering permanency to the children involved in these contested TPR
proceedings and the value of doing so without undue delay.”).
114 See Randi Mandelbaum, Re-Examining and Re-Defining Permanency From
Youth’s Perspective, 43 CAP.U.L.REV. 259, 297 (2015) (“As is apparent from youths’
responses and from numerous psycho-social studies, the biological family remains
psychologically important to youth-even in cases of previous abuse and neglect or years
of physical separation.”); Chris Gottlieb, Remembering Who Foster Care is For: Public
Accommodation and Other Misconceptions and Missed Opportunities in Fulton v. City of
Philadelphia, 44 CARDOZO L. REV. 1, 26-27 (2022) (describing how relationships with
families of origin “carry significant emotional weight, play a central role in identity
development, and are critical to successful outcomes in the vast majority of foster care
cases”); Ashley Albert & Amy Mulzer, Adoption Cannot be Reformed, 12 COLUM. J. RACE
& L. 1, 29-30 (2022) (describing how adult adoptees describe loving their adoptive parents
but nevertheless still feel affected by losses inherent in adoption, which may include
enduring feelings of abandonment, confusion about identity and background, and loss of
the “mirroring” of biological relatives that most people take for granted).
115 See Annette Appell, The Myth of Separation, 6 NW J.L. & SOC. POL’Y 291 (2011)
(arguing that the child welfare system perpetuates the myth that “children can be fully and
existentially separated from their parents,” as well as the idea that “parents are fungible”
and can be replaced by an adoptive parent).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 30
children notwithstanding,116 children enter foster care as humans who already are
interconnected with their own families and communities.117 Many foster families do the
laudable, hard work of entering into the gap that opens for children while their parents
work on addressing their own personal and systemic crises. I do not discount children’s
meaningful attachments to their foster caregivers nor the developmental, physical, and
emotional progress that children make in foster caregivers’ care. But minimizing
children’s connection to parents or families of origin in a needs and welfare analysis does
children a disservice.
The new standard formulated by today’s Majority focuses upon subtracting
relationships from children’s lives instead of offering mechanisms or ideas that might add
to the love that a child experiences while simultaneously meeting the child’s important
need for security, stability, and consistent care.118 Too often, we view a parent’s failure
116 One theory is that adoption may be preferred because of the myth that it can wipe
the slate clean and permit “innocent and wounded children to start anew with healthier,
untainted families.” Sacha Coupet, Swimming Upstream Against the Great Adoption
Tide: Making the Case for “Impermanence,” 34 CAP.U.L.REV. 405, 406-07 (2005). As
such, it allows society to ignore the situation “upstream” and “avoid dealing with the
enormously complex root causes of child neglect and abuse.” Id. at 410. Moreover, “with
our gaze fixed downstream, we are tempted to overlook the state’s failure to provide
meaningful preventative services to avoid out-of-home placement, while celebrating the
reconstituted adoptive nuclear family.” Id.
117 See Gottlieb, supra, n.114 at 27 (observing that “foster and adoptive parents are
entering the lives of children who have existing relationships with their parents and
extended families” and those caregivers should be chosen accordingly).
118 Id. at 15 (noting that research has shown that children can develop close bonds
with multiple caregivers without diminishing existing relationships). Indeed, ASFA has
created circumstances that allow for children to be bonded to multiple parental figures
and caregivers. One unintended consequence of concurrent planning is that, in the quest
to plan simultaneously for two widely divergent outcomes within a defined timeframe,
some families end up in a limbo: the parents do not make enough progress to reunify with
their children, yet visitation remains at intervals sufficiently frequent enough to allow the
parents and children to maintain a bond.
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to meet ASFA’s timeframes as an indictment upon that parent’s character and love for
the child. In reality, many families become ensnared in the child welfare system for
complex reasons that are not easy to untangle in eighteen short months.119 The current
trend fixates upon providing security for children through legal permanency, but many
children who are involved in the foster care system report being more concerned about
“physical permanency” and “relational permanency.”120 Unsurprisingly, children and
youth value stability and emotional connections with caring adults more than the
imposition of legally binding outcomes.121
As scholars point out, ‘[r]ather than “permanency’ being code for terminating
parental rights and adoption,” there is a “permanency continuum” that includes “a variety
of options to achieve permanency, some of which require termination and some of which
do not.”122 The currently prevailing narrative is that guardianships, which establish a legal
relationship between a child and caregiver but do not require the termination of parental
rights, are inherently less stable than termination and adoption. Yet “[e]mpirical research
119 Under Pennsylvania’s ASFA-focused case law, eighteen months is the target
timeframe to reunify or to terminate parental rights. In the Interest of C.K., 165 A.3d 935,
944 (Pa. Super. 2017). In describing the imperative for agencies to make timely,
reasonable efforts to attempt to reunify families, the Superior Court has observed:
“[e]ighteen months is a very long period out of a child’s short life, and there is no doubt
that [eighteen] months of prolonged uncertainty is a burden borne most by the child. But
[eighteen] months may seem quite short to a parent who has to overcome significant
obstacles to regain custody.” Id.120 Mandelbaum, supra, n.114 at 275-78.
121 Id.
122 Josh Gupta-Kagan, The New Permanency, 19 U.C. DAVIS J. JUV. L. & POL’Y 1, 12
(2015).
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has demonstrated that options which do not require terminations lead to caregiving
relationships that last just as long as traditional adoptions.”123
Guardianship may lack the feel-good story of adoption, but if it offers long term
stability with a caregiver, perhaps it is an option that should be more readily considered.
For some children, guardianship can minimize or ameliorate the trauma of loss that the
child already has experienced. It is true that ASFA, as incorporated by the General
Assembly into the Juvenile Act, establishes a hierarchy of permanency options, and that
the General Assembly has set adoption as the preferred alternative if reunification fails.124
But ASFA and the Juvenile Act afford courts the discretion to utilize other permanency
options in cases that warrant alternative solutions.125
To that point, Mother argues here that there is no need to cause Child harm at all.
Child could remain with her godmother under a permanent legal custodianship (“PLC”)
123 Id. at 18-19 (describing the research and positive effects for children, and arguing
that guardianship is a secure and valuable option for permanency); Coupet, supra, n.116
at 412 (“[W]hile data reveal that alternatives to adoption, including subsidized
guardianships, offer the same degree of lasting permanence for children, without the
counter-therapeutic effects that accompany termination of parental rights and assumption
of legally altered family identities, adoption still remains the most frequently pursued
option once children cannot be reunified with biological parents.”).
124 See 42 Pa.C.S. § 6351(f.1)(3) (including, within matters to be determined at a
permanency hearing, the issue of whether “the child will be placed with a legal custodian
in cases where the return to the child’s parent, guardian or custodian or being placed for
adoption is not best suited to the safety, protection and physical, mental and moral welfare
of the child.”).
125 See id. The Juvenile Act also lists several exceptions to the expectation that an
agency must file a petition to terminate parental rights and “identify, recruit, process and
approve a qualified family to adopt the child” after a child has been in placement for at
least 15 of the last 22 months. 42 Pa.C.S. § 6351(f)(9). One is that “the child is being
cared for by a relative best suited to the physical, mental and moral welfare of the child.”
Id. Another is that “the county agency has documented a compelling reason for
determining that filing a petition to terminate parental rights would not serve the needs
and welfare of the child.” Id.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 33
arrangement, Pennsylvania’s version of guardianship, and maintain her relationship with
Mother through visitation.126 The Majority rejects Mother’s argument on the basis that
PLC is outside the scope of the present appeal.127 I agree that the specific question of
whether the juvenile court should change Child’s permanency goal to PLC is not before
us, as the sole determination made at the hearing below was whether the agency met its
burden to support termination of parental rights under the Adoption Act; there was no
simultaneous goal change hearing under the Juvenile Act.128 Even if we were to agree
with Mother that PLC was in the best interests of Child, we could not order such a remedy
as part of our review of the termination decree.
But I disagree with any implication that the topic of PLC is off limits in cases
involving the termination of parental rights, including this case. Although the juvenile court
in this case had set the permanency goal for Child as adoption well before the termination
of parental rights hearing, that goal is subject to review at every permanency hearing
under the Juvenile Act.129 In other words, the permanency goal is not an immutable status
and is subject to change.
Counsel for Child dismisses any idea that PLC could offer permanency to Child or
many other children. Counsel argues that use of the “adverse effect” standard could
126 Mother’s Brief at 26-27.
127 Maj. Op. at 48 n.33.
128 Consistent with a recommendation in the Pennsylvania Dependency Benchbook
published by the Administrative Office of Pennsylvania Court’s Office of Children and
Families, courts often combine hearings on petitions for termination of parental rights
under the Adoption Act with hearings on requests for a change in the permanency plan
goal under the Juvenile Act. In re R.J.T., 9 A.3d 1179, 1191 n.14 (Pa. 2010). This case
is somewhat unusual because the same trial judge, sitting in Child’s dependency matter,
already had changed Child’s permanency goal to adoption in mid-2019.
129 In Int. of L.T., 158 A.3d 1266, 1278-79 (Pa. Super. 2017); see also 42 Pa.C.S.
§ 6351(f)(4), (f.1), and (g).
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“relegate hundreds of foster children each year across Pennsylvania to a life without
permanency.”130 Child’s counsel even goes as far as suggesting that such a standard
would make termination of parental rights and adoption “impossible in many cases,” and
would impose “potentially disastrous consequences” upon foster children.131 CYF boards
this bandwagon, asserting that the standard used by the trial court “risks creating a new
generation of children who will languish in foster care.”132 Then, in their joint reply brief,
Child and CYF declare that subsidized PLC is “a less desirable permanency goal” that
robs children of a “lifelong sense of belonging and stability that adoption brings.” 133
Permanency does not equate automatically to adoption. Yes, the General
Assembly has prioritized adoption over PLC, but it also has recognized PLC as a valid
permanency option.134 But we should not pretend that analysis of a child’s needs and
welfare at a termination of parental rights hearing pits reunification with the parent against
adoption by the caregiver.135 When a trial court analyzes whether the agency has met its
130 Child’s Br. at 19.
131 Id. at 20.
132 CYF Br. at 21.
133 Jt. Reply Br. at 5.
134 The juvenile court is tasked with conducting regular review hearings. Based upon
statutory factors and the evidence presented during a permanency hearing, the juvenile
court has discretion to determine “[if] and when the child will be placed with a legal
custodian in cases where the return to the child’s parent, guardian or custodian or being
placed for adoption is not best suited to the safety, protection and physical, mental and
moral welfare of the child.” 42 Pa.C.S. § 6351(f.1)(3). See also 42 Pa.C.S. § 6301
(declaring one purpose of the Juvenile Act to be “[t]o preserve the unity of the family
whenever possible or to provide another alternative permanent family when the unity of
the family cannot be maintained.”) (emphasis added).
135 For example, Child’s counsel asked Dr. Rosenblum several times about he
predicted effect upon Child if she were to be removed from her godmother’s care. Dr.
Rosenblum responded but noted his belief that the issue before the trial court was
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 35
burden under Section 2511(b), it already has decided that the agency provided clear and
convincing evidence that there are grounds under Section 2511(a). We do children a
disservice when we construe Section 2511(b) to contemplate as options only a return to
a parent, adoption, or languishing in foster care.136
Section 2511(b) asks whether, when giving primary consideration to the child’s
needs and welfare, the court should enact the “civil law equivalent to the death penalty,
forever obliterating the fundamental legal relationships between parent and child.”137 If
any relationship continues between parent and child after a termination of the parent’s
rights and adoption of the child, it will spring entirely from the grace or rare whim138 of the
adoptive parent. And while the legislature has allowed for a legally enforceable open
adoption agreement,139 this “is [a] purely voluntary arrangement requiring the consent of
the adoptive parents,” and most assuredly is not something that a court can order in
whether or not to terminate Mother’s parental rights, not whether or not to reunify Child
with Mother. N.T., 5/17/21, at 131-32.
136 See In re P.G.F., 247 A.3d 955, 978 (Pa. 2021) (Wecht, J., dissenting) (“While a
child’s preference about custody could be relevant to TPR (particularly if the child wants
to live with the parent whose rights are subject to termination), that will not always be the
case. The question that TPR proceedings ask is whether the child will have any ongoing
connection with the parent and the parent’s extended family. That is usually unrelated to
where the child wants to live.”).
137 In re Adoption of C.M., 255 A.3d 343, 362 (Pa. 2021).
138 The Majority asserts that I have declared that open adoptions are rare in foster
care. Maj. Op. at 48 n.33. I have made no such claim, other than to note that scholarship
and studies suggest that caregivers adopting through foster care may be more likely to
fear entering into an open adoption agreement than their counterparts adopting through
the domestic infant adoption system. See infra n.141. My point here in referring to the
grace or whim of the foster parent is simply to note that no matter what promises foster
parents make prior to termination of parental rights, post-adoption contact remains within
the adoptive parents’ discretion.
139 See 23 Pa.C.S. § 2731-2742.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 36
conjunction with terminating a parent’s rights.140, 141The bottom line is that if a court
decides that adoption by a foster caregiver and continued contact with a parent serves a
child’s developmental, physical, and emotional needs and welfare, which is the ideal
outcome recommended by CYF’s own expert witness in the instant case,142 the trial court
lacks the power to compel this result at the time it is deciding whether or not to terminate
parental rights.
I do not suggest that PLC is appropriate in every case where a parent-child bond
exists, that continued contact with a parent is always desirable, or that adoption will not
serve the needs and welfare of many children in foster care. I simply see no need to
change the standard for evaluation of parent-child bonds in order to alleviate agency
burdens in all termination of parental rights cases. Our current standard affords discretion
to trial judges serving on the front lines to consider whether there is a parent-child bond,
the nature and quality of that bond, and the predicted effect of severing that bond. Section
2511(b) and T.S.M. require the trial court to weigh the bond and attendant considerations
alongside other matters that impact a child’s developmental, physical, and emotional
needs and welfare.143 This analysis applies in all termination of parental rights hearings:
140 In re Adoption of G.L.L., 124 A.3d 344, 348 (Pa. Super. 2015).
141 Although open adoption agreements are used widely in private adoptions, they are
less common in adoptions stemming from foster care. See JaeRan Kim & Angela Tucker,
The Inclusive Family Support Model: Facilitating Openness for Post-Adoptive Families,
CHILD & FAMILY SOCIAL WORK (2019), available at https://doi.org/10.111/cfs.12675 (noting
that foster parents often have negative attitudes about open adoption because of
concerns about safety, even though open adoption often strengthens a child’s sense of
security, encourages attachment to the adoptive parents, and decreases the sense of
parental abandonment).
142 N.T., 5/13/21, at 128-30.
143 When the Majority says that I “prefer[] that trial courts shy away from severing any
parental bond by advocating for prolonged dependency and more guardianship and
downplaying the instability children face in the foster care system,” see Maj. Op. at 37
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 37
private parent-initiated TPRs, private adoption agency-initiated TPRs, and government-
agency-initiated TPRs. It applies to TPRs involving very young children as well as older
children.144 It applies to TPRs involving children placed with caring, stable pre-adoptive
caregivers who provide excellent care as well as children placed in unstable or subpar
foster homes (including foster homes that arguably do not meet a child’s needs any better
than the child’s family of origin). The Adoption Act requires a holistic balancing of the
totality of a child’s individual circumstances. I see no need to depart from that standard
by imposing a pre-judgment that one factor does not have value unless it meets an
amorphous and arbitrary threshold.
I fear that the Majority is letting its assumption that the trial court did not conduct a
full analysis cloud its judgment. From my perspective, the Majority is unnecessarily
imposing a universal standard to fix a problem the Majority perceives in one case.145 The
n.22, it makes me seriously question whether the Majority is reading and understanding
my actual words at all. The point at which a court may properly sever a parental bond is
when the trial court, after considering all nuances of a child’s particular situation and the
evidence in the record, determines, in its ample discretion, that termination of parental
rights serves a child’s developmental, physical, and emotional needs and welfare. That
is what the General Assembly instructed trial courts to do. Sometimes, after this analysis,
the trial court will deem termination to serve a child’s needs and welfare. At other times,
the trial court will not. Sometimes termination and adoption is best, even if it severs a
child’s relationship with a parent. At other times, another form of permanency like
guardianship is warranted to achieve permanency and protect a parent-child bond.
Foster care drift is never warranted, and absolutely nothing in my dissent suggests that it
is.
144 For example, Child and CYF focus upon children under five years of age and their
need for permanency. See Jt. Reply Br. at 5. But the standard that they ask us to create
does not apply solely to younger children. It applies to older children as well. Some of
those children are at pronounced risk of becoming “legal orphans” if parental rights are
terminated and the agency cannot locate a pre-adoptive home or the pre-adoptive
placement fails prior to adoption finalization. See Gottlieb, supra, n.114, at 26-27.
145 If the Majority is “not invent[ing] an exhaustive list of considerations nor remov[ing]
discretion from the court,” and if it is merely “emphasiz[ing] factors the trial court below
did not adequately consider,” see Maj. Op. at 43 n.28, I fail to see why section A of its
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Majority and I agree that a trial court must bear in mind a range of considerations when
conducting a Section 2511(b) analysis, not just the mere existence of a parent-child
bond.146 As the Majority observes, the trial court here did not expressly articulate whether
it considered other factors in making its analysis. 147 Today’s Majority assumes that the
trial court’s failure to mention its consideration of other factors means that the trial court
short-circuited its Section 2511(b) analysis and relied solely upon the existence of a
parent-child bond in denying the petition for termination.148 Apart from the Majority’s
holding that the trial court erred back then by relying upon a parent-child bond that did
not meet the newly-articulated standard that the Majority imposes now, the Majority also
decides that the trial court erred by failing to reference other needs and welfare factors
that had factual support in the record.149 According to the Majority, a trial court must
opinion is necessary at all. If the problem was that the trial court did not give adequate
consideration to factors that already exist in the law, then a simple remand would have
sufficed. But we granted allowance of appeal to consider what the proper standard is for
evaluating a parent-child bond in the context of the needs and welfare analysis. See 177-
78 WAL 2022. The Majority may delude itself into thinking that its words will not impact
anyone but the parties and the trial judge in this case, but the words it uses to convey its
standards carry precedential effect and are not limited to this one dispute.
146 Although we share some common grounds, the Majority and I are not in full
agreement concerning the distinct factors that the court must consider. Compare Maj.
Op. at 42-43 with text accompanying nn. 5-19 supra. The factors I set forth are directly
derived from this Court’s decision in T.S.M. However, I would not limit the factors to any
pre-defined list, as each case is distinct. Some factors will be present in almost every
case. In that regard, the Superior Court erred by relying upon cases that made evaluation
of the child’s relationship with a prospective long-term caregiver optional; in T.S.M., this
Court clearly made such a consideration mandatory when the child is in a foster home.
See T.S.M., 71 A.3d at 268. That the Superior Court so erred in one portion of its analysis
does not mean that the trial court made the same mistake.
147 See Maj. Op. at 41-46.
148 Id.
149 Id. at 46.
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 39
“make clear” that the court considered all of the needs and welfare factors and applied
“the correct standard . . . in weighing them.”150 Distinctly absent is a citation to any statute,
rule, or case requiring trial courts to set forth expressly their treatment of each factor of a
Section 2511(b) analysis or that the trial court otherwise provide any particular explication
of its decision. That is because the Majority imposes this requirement for the first time in
termination of parental rights cases today.151
The Adoption Act certainly does not require any particular discussion. 152 Nor do
our rules of appellate procedure. The trial court’s explanation which the Majority finds to
be lacking was contained in its Rule 1925(a) opinion. That rule simply requires a court in
children’s fast track appeals to “file of record at least a brief opinion of the reasons for the
order, or for the rulings or other errors complained of, which may, but need not, refer to
the transcript of the proceedings.” Pa.R.A.P. 1925(a)(2)(ii). In accordance with the rule,
the trial court provided its reasons for its decree: the existence of the parent-child bond
and the detrimental effect upon Child of severing the bond. That the trial court only
mentioned the parent-child bond expressly does not mean that the trial court only
considered the parent-child bond and nothing else.
150 Id. at 45.
151 The Majority neglects to include any instructions as to where and when a trial court
should set forth this analysis in the future. Should the court do so at the time it enters its
order? Can the court issue a written opinion or make statements on the record within a
reasonable time after entering the order? Can the court wait until the event of an appeal
and then present its analysis in its Pa.R.A.P. 1925(a) opinion? Presumably, the Majority
means the latter, as it cites to Pa.R.A.P. 1925(a) without further explanation. See Maj.
Op. at 45.
152 This scheme differs from the Child Custody Act, which requires the trial court to
consider certain factors and to expressly delineate the reasons for its custody decision.
See C.B. v. J.B., 65 A.3d 946, (Pa. Super. 2013).
[J-79A-2022 and J-79B-2022] [MO: Dougherty, J.] - 40
As Mother points out, in other areas of the law, we presume that “when a court has
facts in its possession, it will apply them.”153 In Commonwealth v. Jackson, this Court
applied the presumption to a juvenile court’s decision of whether to certify a juvenile
accused of a delinquent act to be tried in adult criminal court.154 The Juvenile Act set
forth statutory factors for the court’s consideration, but the Act did not assign any
particular weight to any of the factors.155 Moreover, except in circumstances that were
not applicable, the Act placed the burden upon the Commonwealth to provide sufficient
evidence to persuade a juvenile court to certify a minor to stand trial as an adult.156
Accordingly, while the Juvenile Act required the juvenile court to consider all of the factors
set forth in the statute, the court’s ultimate task was to determine whether the
Commonwealth presented sufficient evidence to justify a transfer.157 This Court refused
to require the juvenile court to “address, seriatim, the applicability and importance of each
factor and fact in reaching its final determination.”158
Likewise, it was CYF’s burden here to prove by clear and convincing evidence that
termination of Mother’s parental rights served Child’s developmental, physical, and
emotional needs and welfare. As the Superior Court noted, the trial court heard evidence
over the course of two days and actively questioned expert witness Neil Rosenblum,
Ph.D., concerning his recommendations.159 It is not as if the trial judge was unaware of
153 Commonwealth v. Moto, 23 A.3d 989, 995 (Pa. 2011).
154 Commonwealth v. Jackson, 722 A.2d 1030, 1034 (Pa. 1999).
155 Id. at 1033.
156 Id. at 1034.
157 Id.
158 Id.
159 K.T., 2022 WL 1793083, at *5.
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Child’s relationship with her foster mother. After all, the very same trial judge presided
over Child’s dependency case for years. This same judge, when presiding over Child’s
dependency matter, was the one who changed Child’s permanency goal to adoption in
2019.160 “Our trial courts are tasked with carefully considering and weighing all of the
evidence presented at termination hearings in determining whether the petitioning party
has met its burden of proving by clear and convincing evidence that termination meets
the exacting standards outlined in the Adoption Act.”161 That the trial court was
unconvinced by CYF’s evidence does not mean that the trial court erred as a matter of
law by ignoring particular considerations or “relevant evidence” in the record supporting
other aspects of a child’s needs and welfare.162 The bottom line is that the legislature left
the balancing of children’s needs and welfare to the discretion of the trial court. I have no
reason to believe that this trial judge did not perform his duty in this regard.
That I believe the trial court did not abuse its discretion or err as a matter of law in
writing its Rule 1925(a) trial court opinion in this case is not incongruent with my belief
that a more robust opinion would be helpful for the parties and appellate courts. Because
the effects of a termination of parental rights are severe and irreversible, I would endorse
prospectively a recommendation that trial courts provide a more robust analysis, on the
record or in a written opinion, that expressly articulates whether or not the petitioner met
its burden as to any applicable Section 2511(b) factor discussed in T.S.M.,163 as well as
any other factors that the trial court considered. At a minimum, it would be helpful for
160 See CYF Ex. 1 (dependency orders signed by the Honorable Daniel Regan dating
back to 2017).
161 S.K.L.R., 256 A.3d at 1129.
162 See Maj. Op. at 45.
163 See text accompanying nn. 5-19 supra.
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reviewing courts to have a brief explanation from the trial judge as to what considerations
the fact-finder deemed most persuasive and as to how the trial court balanced the factors
against the competing considerations advanced by the parties. We afford much
discretion to the trial judges on the front lines. And rightly so. We will not overturn the
trial court absent an error of law or abuse of discretion.164 A discussion binds the trial
court closely to the “clear and convincing” evidentiary standard, focuses the court’s
attention upon the particular child at hand, and facilitates our appellate review of the trial
court’s exercise of its discretion. But I decline to impose a requirement retrospectively
upon trial courts that does not exist in the statute and that did not exist when this case
was tried.165
Because I disagree that the trial court was required to consider only a “necessary
and beneficial bond,” because there is evidence in the record supporting the trial court’s
decision, and because there is no requirement in the law for the trial court to have set
forth its analysis and rationale expressly, I would affirm the trial court’s disposition below.
164 See S.K.L.R., 256 A.3d at 1123.
165 My position in this regard also takes into account a countervailing consideration: a
more robust express written analysis requires some time allowance for trial courts. Some
cases are more straightforward, while others are more complex. To require a written
opinion in each and every case is to risk clogging the machinery of busy juvenile courts.
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