In The Interest of: T.W., a Minor

J-S10001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: A.W., FATHER : No. 2113 EDA 2015
Appeal from the Order Entered June 17, 2015
In the Court of Common Pleas of Monroe County
Domestic Relations at No(s): CP-45-DP-0000064-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 26, 2016
Appellant, A.W. (“Father”), appeals from the order entered in the
Monroe County Court of Common Pleas, which involuntarily terminated his
parental rights to minor child, T.W. We affirm.
In its written opinion, the trial court fully sets forth the relevant facts
and procedural history of this case.1 Therefore, we will only briefly
summarize them. Mother and Father have had a volatile relationship since
before T.W. was born in 2012. The Monroe County Children and Youth
Services (“CYS”) became involved in this case on June 30, 2012, upon
learning that T.W. had been injured when Father threw her, in her car seat,
out of a vehicle during an argument with Mother. T.W. was placed in CYS’
custody on July 1, 2012, because Mother and Father were both incarcerated;
T.W. has been in foster care since that time. The court adjudicated T.W.
1
(See Trial Court Opinion, filed April 11, 2014, at 1-14) (Permanency/goal
change appeal).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S10001-16
dependent on August 3, 2012, with an initial permanency goal of
reunification. Following several review hearings, the court changed the
permanency goal to adoption on January 24, 2014. Mother filed an appeal
from that order, which this Court affirmed on August 22, 2014. See In re
T.W., 106 A.3d 172 (Pa.Super. 2014) (unpublished memorandum).
Meanwhile, on December 3, 2013, CYS filed a petition for involuntary
termination of the parental rights of Mother and Father. The court
conducted multiple hearings on the termination petition throughout 2014
and 2015. On June 12, 2015, the court terminated Mother’s and Father’s
parental rights to T.W.2 Father timely filed on July 10, 2015, a pro se notice
of appeal and a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i). The court did not consider Father’s
appeal and Rule 1925(a) statement, as he was represented by counsel.
Thereafter, counsel filed an amended notice of appeal and a Rule
1925(a)(2)(i) statement on July 17, 2015. Father also filed a pro se motion
requesting a new hearing based on ineffective assistance of counsel, which
the court dismissed. Father’s counsel subsequently filed a petition to
withdraw. The court granted counsel’s petition and appointed new counsel
to assist Father on appeal.
Father raises the following issues for our review:
WHERE FATHER IMMEDIATELY UNDERTOOK HIS FAMILY
2
Mother filed a separate appeal from the order terminating her parental
rights, which is docketed at No. 2188 EDA 2015 (J-S10002-16).
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SERVICE PLAN OBJECTIVES, VISITED THE CHILD
CONSISTENTLY, AND REFRAINED FROM DOMESTIC
DISPUTES, DID THE TRIAL COURT ERR IN ITS FINDING
THAT [CYS] PRESENTED CLEAR AND CONVINCING
EVIDENCE THAT FATHER FAILED TO PERFORM PARENTAL
DUTIES FOR A PERIOD OF MORE THAN SIX MONTHS?
WHERE CHILD WAS PLACED BECAUSE OF MOTHER’S
ALLEGATIONS OF ABUSE OF THE CHILD DURING A
DOMESTIC DISPUTE, MOTHER WAS CONVICTED OF FILING
A FALSE POLICE REPORT, FATHER WAS CLEARED OF
CHARGES, AND FATHER REFRAINED FROM INVOLVEMENT
IN DOMESTIC DISPUTES, DID THE TRIAL COURT ERR IN
ITS FINDING THAT [CYS] PRESENTED CLEAR AND
CONVINCING EVIDENCE THAT FATHER FAILED TO REMEDY
THE CONDITIONS AND CAUSES OF THE ALLEGED ABUSE,
AND REMOVAL OF THE CHILD?
WHERE FATHER COMPLETED THE COUNSELING,
PARENTING AND ANGER MANAGEMENT CLASSES IN THE
FAMILY SERVICE PLAN, HAD TAKEN ADDITIONAL CLASSES
ON HIS OWN, SEPARATED FROM MOTHER AND
REFRAINED FROM DOMESTIC DISPUTES, DID THE TRIAL
COURT ERR IN ITS FINDING THAT [CYS] PRESENTED
CLEAR AND CONVINCING EVIDENCE THAT TERMINATION
WAS IN THE BEST INTEREST OF THE CHILD?
WHERE [CYS’] WITNESS TESTIFIED TO A SIGNIFICANT
BOND BETWEEN FATHER AND CHILD, FATHER TOOK
STEPS TO MINIMIZE END-OF-VISIT TRAUMA TO THE
CHILD, AND THE TRIAL COURT INSTEAD FOCUSED ON
THE CHILD’S BOND WITH HER FOSTER PARENTS, DID THE
TRIAL COURT ERR IN FINDING THAT TERMINATION OF
FATHER’S RIGHTS BEST SERVED THE NEEDS AND
WELFARE OF THE CHILD?
WHERE FATHER REFRAINED FROM INVOLVEMENT IN
INCIDENTS OF DOMESTIC ABUSE AND CONTINUED TO
COMPLY WITH THE FAMILY SERVICE PLAN, SEVERAL
MONTHS PRIOR TO THE FILING OF THE FIRST
TERMINATION PETITION, DID THE TRIAL COURT ERR IN
CHARACTERIZING THESE EFFORTS AS “POST-PETITION”?
DID THE TRIAL COURT ERR WHERE ITS FINDINGS OF
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FACT WERE NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE?
DID THE TRIAL COURT ERR IN FAILING TO DETERMINE
THAT FATHER WAS REPRESENTED BY INEFFECTIVE
COUNSEL, WHERE FATHER WAS PREJUDICED BY
COUNSEL’S NUMEROUS ERRORS, INCLUDING FAILURE TO
ADEQUATELY INVESTIGATE THE ASSERTIONS MADE BY
CYS, AND GATHERING EVIDENCE WHICH COULD REBUFF
THOSE ASSERTIONS?
(Father’s Brief at 3-4).
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent
evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the welfare
of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must
employ a broad, comprehensive review of the record
in order to determine whether the trial court’s
decision is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the
finder of fact, is the sole determiner of the credibility
of witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
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clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted).
The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
may uphold a termination decision if any proper basis
exists for the result reached. In re C.S., 761 A.2d 1197,
1201 (Pa.Super. 2000) (en banc). If the court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
(Pa.Super. 2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d
1165 (2008)).
CYS sought involuntary termination of Father’s parental rights on the
following grounds:
§ 2511. Grounds for involuntary termination
(a) General Rule.―The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for [her] physical or mental
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well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
* * *
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
* * *
(b) Other considerations.―The court in terminating
the rights of a parent shall give primary consideration to
the developmental, physical and emotional needs and
welfare of the child. The rights of a parent shall not be
terminated solely on the basis of environmental factors
such as inadequate housing, furnishings, income, clothing
and medical care if found to be beyond the control of the
parent. With respect to any petition filed pursuant to
subsection (a)(1), (6) or (8), the court shall not consider
any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
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23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).
“Parental rights may be involuntarily terminated where any one
subsection of Section 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., supra at 1117.
Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in Section
2511(a). Only if the court determines that the parent’s
conduct warrants termination of his…parental rights does
the court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the needs
and welfare of the child under the standard of best
interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his…conduct; (2) the post-
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abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his…parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary, those grounds may
include acts of refusal as well as incapacity to perform parental duties. In
re A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. The fundamental test in termination of
parental rights under Section 2511(a)(2) was long ago stated in the case of
In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania
Supreme Court announced that under what is now Section 2511(a)(2), “the
petitioner for involuntary termination must prove (1) repeated and continued
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incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,
neglect or refusal caused the child to be without essential parental care,
control or subsistence; and (3) that the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied.” In Interest of Lilley,
719 A.2d 327, 330 (Pa.Super. 1998).
“Termination of parental rights under Section 2511(a)(5) requires
that: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to removal and placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re Z.P., supra at 1118.
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) the child has been removed from
parental care for [twelve] months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76
(Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
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paying close attention to the effect on the child of permanently severing the
bond.” Id. at 520. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship. When conducting a bonding
analysis, the court is not required to use expert testimony.
Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a
formal bonding evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have his parental rights terminated.” In re B.L.L., 787
A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental
duty requires that a parent exert [himself] to take and
maintain a place of importance in the child’s life.
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Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his…ability, even in difficult circumstances.
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with [the child’s] physical
and emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of his…child is converted,
upon the failure to fulfill his…parental duties, to the child’s right to have
proper parenting and fulfillment of his…potential in a permanent, healthy,
safe environment.” Id. at 856.
Importantly, neither Section 2511(a) nor Section 2511(b) requires a
court to consider at the termination stage, whether an agency provided a
parent with reasonable efforts aimed at reunifying the parent with his child
prior to the agency petitioning for termination of parental rights. In re
D.C.D., ___ Pa.___, 105 A.3d 662, 672 (2014). An agency’s failure to
provide reasonable efforts to a parent does not prohibit the court from
granting a petition to terminate parental rights under Section 2511. Id. at
___, 105 A.3d at 675.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned oral opinion of the Honorable Jonathan
Mark, we conclude Father’s issues one through six merit no relief. The trial
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court’s oral opinion comprehensively discusses and properly disposes of
these questions presented. (See N.T. Oral Opinion, 6/12/15, at 10-42 and
attached addendum) (finding: at time of termination hearing, T.W. had been
in CYS’ care for approximately 33 months; Mother and Father had volatile
relationship that included criminal charges, protections from abuse (“PFA”),
and domestic issues; underlying issues between Mother and Father have not
been resolved; T.W.’s safety, health and well-being are paramount concerns
and must be ensured; neither Mother nor Father has demonstrated current
ability to provide requisite assurance of T.W.’s safety; Father consistently
fought with CYS over visitations, regarding protocol and confirming
appointments; throughout entire case, Father failed to adhere to court’s
advisements; under Section 2511(a)(1), Mother and Father made progress
towards some of goals but failed to take necessary steps toward
reunification with T.W.; Mother and Father failed to perform parental duties
for more than six months, as both parents were incarcerated and spent
majority of time fighting with each other; CYS met statutory grounds for
termination under subsection (a)(1); Mother and Father refused to provide
essential parental care, control, and assistance to T.W.; CYS established
grounds for termination under Section 2511(a)(2); grounds for termination
also existed under Section 2511(a)(8), because T.W. had been removed
from Mother and Father’s care for at least twelve months, condition that led
to T.W.’s removal still exists, and termination of Mother and Father’s
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parental rights best serves needs and welfare of T.W.; court properly
considered Mother’s and Father’s post-petition efforts as grounds for
termination because termination petition was filed in December 2013, and
first termination hearing was not held until one year later; reunification
efforts are not valid consideration under subsections (a)(1), (a)(2), and
(a)(8); T.W.’s foster family provided love, care, companionship and support
that Section 2511(b) requires, while Mother and Father were busy filing
criminal charges and PFAs against each other and exhibiting pathological
codependency; T.W. has strong bond with foster family and severing that
bond would be detrimental to her; T.W. has not developed any traditional
bond with Mother and Father, as she spent her first several months in
hospital and has had only supervised visits with parents for most of her life;
only bond T.W. has with Mother and Father is biological; severing T.W.’s
bond with Mother and Father pales in comparison to severing bond with
foster parents, who wish to adopt T.W.; safety concerns also exist with
Mother’s and Father’s care of T.W.; CYS established grounds for termination
under subsection (b); current placement goal of adoption remains
appropriate and necessary). The record supports the court’s decision;
therefore, we have no reason to disturb it. Accordingly, we affirm as to
Father’s issues one through six on the basis of the court’s oral opinion issued
at the termination proceeding.
In his final claim, Father argues trial counsel was ineffective
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throughout the proceedings, which severely prejudiced Father. Specifically,
Father asserts trial counsel failed to object to hearsay testimony regarding a
videotape that was not introduced at the hearing. Father insists this
example is only one of “many” instances where incompetent evidence made
its way into the record because counsel failed to raise a proper objection at
the time. Father concludes the court used this evidence to determine CYS
had met its clear and convincing burden, and he is entitled to a new hearing.
We disagree.
“Pennsylvania statutes do not require counsel in termination
proceedings, although Pennsylvania case law does…and flowing from this it
is presumed that counsel would and should be effective.” In re Adoption
of T.M.F., 573 A.2d 1035, 1040 (Pa.Super. 1990) (en banc), appeal denied,
527 Pa. 634, 592 A.2d 1301 (1990). This Court evaluates ineffectiveness
allegations in termination proceedings as follows:
In the context of a termination proceeding, the best
approach…is the fundamental fairness doctrine whereby, in
the exercise of its broad scope of review, an allegation of
ineffectiveness of counsel on appeal would result in a
review by this Court of the total record with a
determination to be made whether on the whole, the
parties received a fair hearing, the proof supports the
decree by the standard of clear and convincing evidence,
and upon review of counsel’s alleged ineffectiveness, any
failure of his stewardship was the cause of a decree of
termination. Mere assertion of ineffectiveness of counsel is
not the basis of a remand or rehearing, and despite a
finding of ineffectiveness on one or more aspects of the
case, if the result would unlikely have been different
despite a more perfect stewardship, the decree must
stand.
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Id. at 1044. Thus, the “fundamentally fair hearing” right to effective
assistance of counsel in civil termination cases is more limited than the right
to effective assistance of counsel in criminal cases. In re J.T., 983 A.2d
771, 775 (Pa.Super. 2009). If competent evidence of record supports the
termination decree, it should stand. Id.
A party alleging ineffectiveness in termination matters must
“demonstrate such ineffectiveness so undermined the truth determining
process that no reliable adjudication…could have been made.” Matter of
J.P., 573 A.2d 1057, 1066 (Pa.Super. 1990) (en banc). Additionally, the
party alleging ineffective assistance of counsel in this context “must show by
clear and convincing evidence that it is more likely than not that the result
would have been different, absent the ineffectiveness.” In re K.D., 871
A.2d 823, 827 (Pa.Super. 2005), appeal denied, 586 Pa. 713, 889 A.2d 1216
(2005).
Instantly, Father did not adequately develop his claim regarding
counsel’s ineffectiveness. Nevertheless, even if properly articulated, Father
cannot demonstrate that, absent the alleged ineffectiveness, the outcome of
the termination proceedings would have been different. See id. Competent
evidence of record supported the termination of Father’s parental rights.
See In re J.T., supra. Thus, Father’s ineffectiveness claim merits no relief.
Accordingly, we affirm the court’s order terminating Father’s parental rights.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2016
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Circulated 02/18/2016 11:32 AM
)~· . COURT OF COMMON PLEAS OF MONROE COUNTY
' FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
IN THE INTEREST OF: NO. 64 DP 2012
NO. 48 OCA 2013
T. w.,
A Minor HEARING
TRANSCRIPT OF PROCEEDINGS
BEFORE: Jonathan Mark, Judge
DATE: June 12, 2015
9:30 a.m.
PLACE: Courtroom No. 1
.i.i ••·.·,·.0.:.~_;·_.·
Monroe County Courthouse
-:/' ..
~ Stroudsburg, Pennsylvania
APPEARANCES:
ELIZABETH BENSINGER WEEKES, ESQUIRE
529 Sarah Street
Stroudsburg, Pennsylvania 18360
-- Solicitor
DONALD M. LEETH, ESQUIRE
818 Ann St:i:;eet
Stroudsburg, Pennsylvania 18360
On behalf of Mother
ERIC L. HAMILL, ESQUIRE
501 Broad Street, Suite #3
Milford, Pennsylvania 18337
-- On behalf of Father
•·,..::
===================================================== ~
Proceedings stenographically recorded by .,.~ .
Yvestre M. Torres, OCR ~ ~
ADDENDUM
ATTACHED TO THE TRANSCRIPT:
1. OPINION IN SUPPORT OF ORDER PURSUANT To Pa. R.A.P.
1925 (a)
2. ADDENDUM TO ANNOUNCEMENT HEARING
3. NON-PRECEDENTIAL DECISION
! i
3
1 P R O C.E ED ING s
2 THE COURT: Good morning, everybody.
3 MS. WEEKES: Good morning, Your Honor.
4 MR. HAMILL: Good morning, Your Honor.
5 THE COURT: We are here now as scheduled to
6 announce a decision in both of the cases involving
7 Time Warner, the dependent in this case, and the
8 termination of parental rights case.
9 This case has been around for a while, so
10 I'm going to take a little bit of time to make sure
11 that I try to be as clear as possible. We will get
12 to this in more detail later, but the last hearing in
13 this case was at the end of April, and the parties
14 were given, I think, three or four weeks, whatever it
15 was, to file some briefs, some memoranda, and
16 post-submmission filing.
17 Then even though this was a case involving a
18 child, this is a highly-contested, long-running
19 dependency case, relatively long-running termination
20 of parental rights case, and so the Court wanted to
21 take a little bit of time to look at some of the
22 legal issues and the facts before making a decision.
23 That coupled with the Court's schedule,
24 including federal trials and other matters and
I
I
j
25 personal matters, made it so that the extra month
Pursuant to 4S J.D.R.C.P. Rule 260c "No transcript shall be fumished to • pel'ly until ell expenau of tr11nsctlption ,re paid.
Any reproduction of 11n official transcript without prior court approval I• prohibited.•
4
1 from the time the briefs were in until now elapse.
2 So today I will announce both decisions.
3 Orders will be issued today or tomorrow, at the
4 latest, depending on whether the computer system is
5 cooperating with us or not.
6 At the last hearing, this case was at the
7 end of April. The evidence was concluded. I do not
8 anticipate taking any evidence today or hearing any
9 argument today. I will note that the parents are
10 here with their respective attorneys. So Father is
11 here, I guess, with one of his two attorneys. Right,
12 Mr. Hamill?
13 MR. HAMILL: Correct.
14 THE COURT: His second attorney, I guess, is
15 not here, but I'm not sure if we really need two for
16 this. I believe the guardian ad litem is also not
17 present. I know that the guardian is on vacation,
18 and because it was we tried to schedule this, I
19 didn't know if she was going to have someone else sit
20 here to listen. But I know she was interested in
21 hearing -- according to what was provided to my
22 office -- the outcome, and, of course, a transcript,
23 if necessary. But everybody else is here. The
24 agency is here, represented by several people,
25 including a couple of supervisors.
Pursuant to 43 J.D.R.C.P. Rule 2/IOc "No trenscrlpt shall be furnished to • party uni/I all expenses of transcription are paid.
Any reproduction of an oH/cial tnmscr/pl wllhout prior court approval is prohibited,•
5
1 Now, after the last hearing, I believe I
2 indicated the parties were going to need to file
3 memoranda and post-submission filings. Mother,
4 Father and Monroe County Children and Youth Services
5 -- who for the rest of this announcement, unless I
6 slip, I will refer to as the agency -- filed briefs.
7 Father and the agency included in their submission
8 some findings of fact.
9 In addition, Father submitted, by praecipe,
10 an additional·document, which I assume he was wanting
11 to make of record as part of the evidentiary record,
12 and that was, I believe, a magisterial district
13 judge's order for document -- at least some kind of
14 document indication that a case that has been filed
15 against him, and had been mentioned during
16 termination hearing, had been dismissed, and that is
17 in the file. I don't know if it was distributed to
18 other parties or not, but it is in the file.
19 The Defendant in the matter in this case --
20 the Defendant in this case, I should say, has an open
21 -- has been opened in the records of Monroe County
22 Children and Youth Services since June 30, 2012, and
23 this Court shortly thereafter. It is, as indicated,
24 a much litigated, highly-contested case and has been
25 all along.
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Any reproduction of an official transcript without prior court approval ls prohibited.•
6
1 In early 2014, an order was issued that
2 changed the goal from reunification to adoption with
3 a concurrent goal of reunification. And at that
4 point, Mother appealed. In response to the appeal,
5 several things were filed of record. One of which
6 was I issued an opinion on April 11, 2014, which I
7 will from this point on hopefully remember to refer
8 to as the appeal petition.
9 Then on August 22, 2014, the Superior Court
10 issued a memorandum opinion affirming the goal change
11 order and permanency review order. And both opinions
12 are in the record and filed in this matter, both here
13 and Superior Court, and I know all the attorneys, and
14 hopefully the parties, have copies as well.
15 I am going to right now, so that we
16 understand, incorporate both opinions into this
17 announcement by reference. At the end of this
18 announcement, I will, as indicated, issue the orders
19 to make the findings that are required. However, I
20 will be doing this orally today so that no more time
21 needs to go by. And I will, therefore, have an
22 opinion.
23 So what I have done is I have prepared an
24 addendum that will be attached to the transcript, if
25 anyone orders a transcript or if there is an appeal,
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Any reproduction of an offlcla/ transcrtpt without prior court approve/ /a prohibited."
7
1 as I anticipate there will be regardless of the
2 outcome, either by one or both of the parents or the
3 agency.
4 The addendum that I am about to hand out to
5 you now will be attached to the transcript, and will
6 be given to the court reporter to keep with the
7 records of this case. So if counsel will want to
8 approach, I will give you the addendum. There you
9 go. We will have the extra one for the guardian.
10 We1ll make sure that we leave one for Ms. Cerate.
11 In any event, the addendum is not in the
12 form of an opinion but procedural and factual
13 history. The addendum is the law that I had applied
14 to both the termination of parental rights
15 proceeding, and the decision you'll hear in that
16 case. And it also references the standards and law
17 that I applied in the permanency review hearing and
18 issued a permanency review order.
19 Because I do anticipate that there will be
20 an appeal regardless of the outcome today filed by at
21 least some party, it also references the appellant
22 standard of review, which was listed and summarized
23 in detail in the appeal petition previously filed.
24 For convenience and ease of reference, I am
\
25 also going to include the prior opinions -- both my
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Any reproduction of an official tranitcrlpt without prior court approval Is prohibited.•
8
1 appeal opinion and the Superior Court's opinion -- as
2 addenda to any transcript, and we will get those to
3 the court reporter.
4 Instead of giving a draft out of the Court's
5 -- my chambers• computer system, we will include a
6 copy that is time stamped in the file in the records
7 of this case.
8 The factual and procedural history of the
9 dependency case and the early portion of the
10 termination of parental rights case were captured in
11 the prior opinion, and so I am not going to repeat
12 them in detail here.
13 In addition, the agency and Father have
14 submitted findings of fact. With respect to the
15 agency's findings of fact, I affirm but I do not
16 adopt findings 1 through 12 and believe that they are
17 supported by competent evidence in the record.
18 I said I wasn't going to recount the history
19 in detail or in full, but my remarks today do need to
20 be put in context, so a very quick summary, again,
21 incorporating everything that was composed in the
22 long opinion -- appeal opinion that was written and
23 the Superior Court's opinion. I will just note
24 quickly the following:
·-
25 r. W. was born jn 2012, and she is
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9
1 now three years old. She was premature, and had to
2 stay in the hospital for an extended period after her
3 birth as a result of a heart condition that was
4 required to be monitored. For still unexplained
5 reasons, neither parent mentioned that when T. W. came
6 into care.
7 T.w. first came to the attention of the
8 agency on June 30th of 2012, and the referral, which
9 we have discussed and has been documented many times,
10 was that from Mother. She had accused Father of
11 taking TW. out of the family van and throwing her in
12 the car seat from the van on the road whereT w. was
13 injured.
14 -,. w. was taken to Pocono Medical Center and
15 then to a regional facility for evaluation and
16 workup. As I have detailed in the appeal petition,
17 despite the parents' protestation to the contrary,
18 injuries were observed and reported by medical
19 personnel from both hospitals, although luckily not
20 as severe -- the injury was not as severe as first
21 thought by doctors at Pocono Medical Center.
22 There were both old and new injuries that
23 were ultimately identified. Significantly, the
24 injuries are still, for the most part, unexplained by
25 the parents. While there have been some suggestions,
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Any reproduction of an official transcript without prior court approval Is prohibited.•
10
1 some innuendo, some guesses, and some information
2 that could possibly be an explanation, some of which
3 was confirmed by one parent or another, all of those
4 details are in the prior opinion. As we sit here
5 today, there still really is no specific explanation
6 for all the injuries, old and new, that were
7 observed.
8 -r.w.: came into care -- not exactly as the
9 parties have characterized in their filing, some of
10 which were cursory, although Mother's were much more
11 detailed than others -- but because after Mother had
12 accused Father of throwing .T.w.
I
and injuring her,
13 Father was arrested and then jailed.
14 Mother, who was not honest about her
15 criminal history, had a warrant out for her arrest.
16 And when Mother was arrested on the outstanding
17 warrant from another state is when T. W. came into
18 care. That was July 1, 2012, just shy of three years
19 ago from today. She has been in care continuously in
20 the same pre-adopt foster home ever since.
21 To measure the time frame by traditional
22 benchmarks, : T W.. : has been in care for the following
23 length of time: First, she has been in care 17
24 months as of the date the termination of parental
25 rights petition was filed in this matter.
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Any reproduction of an official transcript without prior court approval I!! prohibited,•
11
1 She was in care 21 months as of the date the
2 goal in this case was changed. And she has been in
3 care for 23 months as of the time Mother filed the
4 appeal in the dependency case. As of the final
5 termination of parental rights hearing, -r w. has been
6 in care for 33 months, add another month or two for
7 briefs and the time the Court needed to put this
8 announcement together, and she is, as noted, almost
9 three years in care.
10 Again, you know, I have detailed the
11 background and the reasons why she came into care and
12 the reasons why as of the date the appeal petition
13 was filed, she remained in care, but really have to
14 recount something so that the decision today do read
15· correctly in context.
16 So I am going to reference two things that,
17 I think, are relatively undisputed, and I am just
18 going to quote or paraphrase some of the passages, if
19 you will, from the appeal petition. So, first, this
20 is a case where the parents had historically a very
21 volatile relationship, and that's kind of putting it
22 mildly, both before and afterT".W· was born, and both
23 before and after i-.w. came into care.
24 All that was detailed in the opinion. But
25 the time from the shelter care hearing through the
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12
1 time when Mother took the appeal, was really marked
2 with criminal, protection from abuse, other filings
3 back and forth between the parties, neither party
4 really being honest and upfront about the domestic
5 filing and issues between them or their relationship.
6 It was also marked with Mother admitting, or
7 at least saying to authorities, that she lied about
8 Father throwing·-.. w.J which resulted in charges
9 against Mother, or at least amended charges, for
10 which she ultimately pled guilty, and the list goes
11 on and on.
12 So, in the opinion that I wrote -- the
13 appeal opinion -- the following passages appear on
14 pages 18 and 19: The reasons why we changed the goal
15 to adoption, with a concurrent goal of reunification
16 are presaged by and captured in our recitation of the
17 facts of this case.
18 In a nutshell -- and I am going to use her
19 name because I used initials in the opinion -- 'T.W·
• J
20 while still a premature and fragile infant, was
21 dropped, injured, and by both parents' account of the
22 incident, the subject of a roadside tug-of-war
23 between Mother and Father.
24 The underlying problem that caused ;-Y-W., to
25 be put in peril and injured is the well-documented,
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13
1 deep-seated history of violence between Mother and
2 Father that is embedded in their relationship and
3 presents a danger to others, especially T, W·
4 Despite anger management classes, parenting
5 classes, services from the agency, counseling
6 received from a clinician, a minister and a pregnancy
7 crisis group of her own choosing, as well as
8 involvement in the criminal justice system and PFA
9 court, Mother has to date been unable to extricate
10 herself from her relationship with Father, protect
11 herself from Father, restrain her own violent and
12 abusive tendencies, stop the alternating pattern of
13 being a victim and then a perpetrator of abuse, or
14 stop her pathological lying.
15 In fact, based on the evidence, Mother and
16 Father's history, and the courtroom demeanor of both
17 parents, we firmly believe the parties are together
18 and not, as Mom testified, estranged. Simply put,
19 Mother has not demonstrated necessary protective
20 capacities, and the reasons that caused T.W. to come
21 into care have not, despite Mother's protestations to
22 the contrary, been alleviated.
23 Continued on page 20: Under the settled law
24 summarized in the appeal opinion, the applicable
25 standard is the best interests of the child. Under
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14
1 equally well-established law, ;T.W.~ safety,
2 permanency and well-being are paramount, and these
3 considerations trump either parents' needs, desires
4 and beliefs.
5 Based on our longitudinal view of the
6 evidence, our in-court observations of Mother on and
7 off the witness stand, Mother's overall parenting
8 history, and the facts presented by the agency, the
9 well-reasoned and articulated positions of the agency
10 and T. W.'o ': guardian ad litem, and the applicable law,
11 it was and is still obvious to us that Mother has
12 simply not progressed to the point where: T. W. could
13 safety be returned to her.
14 That determination, coupled with T. W.' .s
15 needs and welfare, the amount of time T W. has been
16 in care, and the firmly entrenched and oft-quoted
17 doctrine that "a child's life simply cannot be put on
18 hold in the hope that the parent will summon the
19 ability to handle the responsibilities of parenting,"
20 led us inexorably to the conclusion that the goal
21 change we ordered was in :T"W.5 best interest.
22 Finally, on pages 25 and 26 of the case
23 I'm sorry -- of the appeal opinion, T:-W,'-' health,
24 safety and well-being are the paramount concerns, and
I
;
' 25 her best interest is the guide star.
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15
1 T. w. ~. safety must be ensured regardless of
2 whether she was injured in the roadside incident,
3 which scenario could be supported by at least
4 Father's evidence; in the incident where Mother
5 dropped her, which scenario could be supported by the
6 statements of either or both parents; or in some
7 prior incident which has yet to be explained by the
8 parents, but that would be equally problematic.
9 In fact, ; T. W. 's ~ safety must be assured even
10 if Mother's no-injury assertion is accepted. Neither
11 parent has demonstrated the current ability to
12 provide the requisite assurance.
13 In this regard, it cannot be emphasized
14 enough that, under both parents' versions of the June
15 30, 2012 incident, T.W. came into care because the
16 volatile nature of Mother and Father's relationship
17 shockingly caused them to become embroiled in an
18 argument that led them to literally play a game of
19 tug-of-war with TW. in a car seat at the side of a
20 public road.
21 While T v'I/. is now physically safe, the
22 tug-of-war between the parents continues, at times
23 literally and at times figuratively, and the
24 underlying issues that cause their battles have not
25 been resolved.
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Any reproduction of an o"lcial transcript without prior court spproval is prohibited.•
16
1 That, of course, was all as of the time that
2 the appeal opinion was written and as of the last
3 permanency review and goal change hearing that had
4 been conducted in the case. Now, I read passages
5 that have negative implications to be true to the
6 facts and also to balance, as indicated, the opinion
7 and as the parents have argued strenuously.
8 Both parents did make progress toward their
9 goals. In fact, in the proposed findings that
10 Children and Youth submitted, progress was noted, and
11 Mother's progress, I think, was noted in most, if not
12 all, of the review hearing orders up to the point
13 when the appeal was filed and afterwards as well.
14 That continued in terms of checking off
15 goals throughout the time while the case was on
16 appeal and afterwards throughout the termination of
17 parental rights hearing. Procedurally, there was an
18 overlap between the goal change request and
19 proceeding and the termination of parental rights
20 proceeding.
21 And I think it's captured in the opinion,
22 but just quickly because there is a gap in this case
23 that needs to be explained, and probably all of us
24 need to do some self-examination on it, and that is
25 this: As the dependency case progressed into the
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17
1 fall of 2013, the matter was scheduled to be reviewed
2 by our dependency master pursuant to our three-month
3 review protocol in September of 2013.
4 The agency appeared and objected to the
5 jurisdiction of the master, and asked the Court to
6 hear the case, so a hearing was scheduled. The
7 guardian ad litem then asked for some additional time
8 to subpoena records from other states because of the
9 issues that Mother had there that are referenced and
10 documented in the exhibits and in the appeal opinion,
11 and the notes of testimony that are cited in that
12 opinion.
13 So a new hearing date was scheduled, and
14 that was for December of 2013. I didn't write down
15 the specific day. While all that was going on, and
16 the guardian was gathering records, the agency filed
17 a termination of parental rights petition. That
18 petition was filed and because the date can be
19 significant, depending on whose argument we look at,
20 the termination petition was filed on December 3,
21 2013.
22 So at that point, we had not yet had the
23 goal change hearing. And there were two subsequent
24 review hearings where the change of goal was
25 addressed. And so it sort of begs the question why
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18
1 we didn1t include the termination of parental rights
2 petition in those hearings, and the simple question
3 -- the simple answer, which is contained in the
4 footnote of page 9 of the appeal petition, was that
5 at the time the original master's hearing was
6 scheduled, we had not yet been to the magic 15-month
7 mark in the case, the agency did not ask for the
8 termination of parental rights, and the parents had
9 been making some progress, as had been indicated in
10 the orders; although, there were a whole host of
11 problems, as even my handful of passages that I read,
12 indicated.
13 Then quite frankly, the parties asked since
14 the goal change had already been set up and started,
15 and the agency wanted to get itself together with
16 respect to termination, and Mother and Father wanting
17 to put evidence and witnesses together, they ask that
18 the hearing not be heard together. And even though
19 it's best practice to file the two together, there
20 were no concurrent filing, if you will, so they
21 started a goal change hearing.
22 The order that I issued changed the goal. I
23 did set a hearing on termination petition, but then
24 by request from all parties, I agreed to postpone
25 that hearing until after the appeal was filed.
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Any reproduction of an offlcial transcripl without prior court approval ls prohlbiled. •
19
1 Looking back that was probably something that should
2 not have been done. It, you know, -- the reason that
3 there is a best practice now with filing at a proper
4 point in a dependency case towards a goal change and
5 a termination petition simultaneously is so you don•t
6 have the time that you have here. You know, when you
7 do one and you wait for an appeal and then come back
8 and have the result.
9 In any event, that happened at the time --
10 in real time going forward. There were or appeared
11 to be rational reasons and bases for doing so. But
12 with the look back, it probably shouldn't have been
13 done that way.
14 In any event, the appeal was pursued. The
15 appeal opinion that I talked about was written. The
16 parties participated in the appeal, so did the
17 guardian ad litem, and ultimately, as indicated, the
18 Superior Court -- the Superior Court affirmed the
19 goal change.
20 So, after the goal change order -- I1m sorry
21 -- after the Superior Court's order came down, and
22 the appeal period -- the period for filing the
23 petition for the allowance of an appeal from the
24 Supreme Court expired, a termination petition -- the
25 termination hearing scheduled on the termination
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20
1 petition at that point had been filed almost a year
2 before the first hearing was scheduled; although,
3 again, it's not what the Court wanted.
4 The hearing was scheduled in accordance
5 with, you know, attorney schedules and that included
6 a three-and-a-half month delay to accommodate the
7 schedules of the attorneys for Father between the
8 December of 2014 period and the March 2015 hearing.
9 So there were review hearings while the
10 appeal was going on, and then the termination of
11 parental rights and corollary dependency review and
12 permanency placement review hearing were held in
13 December of last year and March of this year.
14 Not much had changed, although, the parties
15 still had visits and continually visited; although,
16 visitation had been very, very problematic, both with
17 respect to the agency's side and with respect to the
18 parents, especially with respect to Father.
19 It came to light that during the --
20 somewhere during the appeal period and between the
21 last review hearing before the Court and then the
22 commencement of the termination and review hearing in
23 December of 2014, that despite the concurrent goal of
24 reunification, the agency admittedly stopped doing
25 what was in the court order and didn't move at all
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21
1 towards reunification.
2 That shocking revelation came from the stand
3 from one of the caseworkers, and it was borne out by
4 the documents that were submitted, and also by the
5 cross-examination that was conducted by counsel for
6 both parents. So the case proceeded to termination
7 hearing with all parties calling multiple witnesses
8 and making arguments and filing briefs on several
9 legal issues and then the post-hearing submission
10 that I talked about.
11 I do need to note that the parties continued
12 to make some progress, or at least keep checking off
13 some of the black and white stated goals in the plan.
14 However, there were several things that were
15 problematic:
16 One, again, visitation, which became a
17 matter of principles between the agency and Father,
18 especially very unfortunately in this case, was just
19 pot marked with issues even to the point where we had
20 to have a conference and figure out the e-mail
21 protocol and confirm appointments, and even then
22 there were some problems, and, you know, the parents,
23 especially Father, wants to assess and have the Court
24 assess and pass blame. That's not what the Court
25 does in these cases.
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22
1 On the other hand, I can say that, you know,
2 Father throughout this whole procedure would not
3 fully adhere to the advisement of the Court, and I am
4 assuming from his attorney, that at some point you
5 have to parent, I guess put principles aside, and you
6 have to work towards reunification rather than trying
7 to catch every miscue that the agency does.
8 On the other hand, it's pretty clear that
9 the agency didn't comply with the secondary portion
10 of the concurrent goal which was reunification.
11 However, it should be noted that the agency did, of
12 course, pursue the primary first of the concurrent
13 goals which was adoption.
14 In any event, as I indicated before, even up
15 to the termination of parental rights hearing, there
16 still had been no full explanation for the injury.
17 Mother had done well visiting, except right before
18 the hearing, where she did not appear for the last
19 two or three visits. I am not sure about since then.
20 Father was working and doing some other
21 things. However, I know he continued his principle
22 fight with the agency, at times casting dispersions
23 on the agency and even the Court. But that is how
24 Father had elected to play this case, despite the
25 best attempts of the Court and initially the best
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23
1 attempts of the agency to try to get him to focus on
2 parenting and.T.W,~ best interest.
3 So at the conclusion of the hearing, when I
4 looked at the briefs, the parties had a pretty
5 polarized position. The guardian ad litem
6 articulated a very cogent reason why rights should be
7 terminated, why the dependency should be continued
8 and the goal should be maintained as adoption.
9 Father and Mother articulated their beliefs
10 that because the agency had not worked towards the
11 concurrent goal, that either as a matter of law or
12 fact or discretion, that termination should not be
13 granted, and the impasse continued.
14 So I will say this: This is not a case
15 where it is the shining moment for any of us. This
16 is not a case that I'm going to hold up in my
17 repertoire as one where I guided the parties in the
18 best interest of the child in the best way possible.
19 I am not going to sit here and cast dispersions on
20 anyone else. Everybody else hopefully has engaged in
21 that same self-reflection.
22 From continuing these cases, you know --
23 through continuance requests and appeals, we tried to
24 give the parents some post-petition chance to finally
25 get it and make some progress, to not fully following
Pursuant to 43 J.D.R.C.P.Rule 250c "No transcript shell be furnished to a party until all eJ608 Pa. 9,
9 A.3d 1179, 1190 (Pa.2010). If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. Id.; [
In re] R.I.S., [614 Pa. 275] 36 A.3d [567,] 572 [(Pa.2011)
(plurality) ]. As has been often stated, an abuse of
discretion does not result merely because the reviewing
court might have reached a different conclusion. Id.; see
, also Samuel-Bassett v. Kia Motors America, Inc. [613 Pa.
371], 34 A.3d 1, 51 ( [Pa.]2011); Christianson v. Ely, 575
Pa. 647, 838 A.2d 630, 634 (2003). Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will. Id.
As we discussed in R.J. T., there are clear reasons for
applying an abuse of discretion standard of review in
these cases. We observed that, unlike trial courts,
appellate courts are not equipped to make the fact-
specific determinations on a cold record, where the trial
judges are observing the parties during the relevant
hearing and often presiding over numerous other hearings
regarding the child and parents. R.J. T., 9 A.3d at 1190.
Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge
to second guess the trial court and impose its own
credibility determinations and judgment; instead we must
defer to the trial judges so long as the factual findings are
supported by the record and the court's legal conclusions
are not the result- of an error of law or an abuse of
15
discretion. In re Adoption of Atencio, 539 Pa. 161, 165,
650 A.2d 1064, 1066 (Pa.1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (2012). See also In re R.J. T., 9 A.3d
1179 (Pa. 2010); In re K.J., 27 A.3d 236 (Pa. Super. 2011); In re M.B., 19 A.3d 1084
(Pa. Super. 2011).
The law that we applied in making factual findings and issuing the goal change
order from which Mother has appealed is equally well-settled. Once dependency is
found, the standard to be applied is the best interests of the child. This standard
applies to, among other considerations, disposition, placement, and custody of
dependent children, and the establishment of goals and goal changes for families.
On these issues, determinations turn on what is in the child's best interests, not on
what the parent wants or which goals the parent has achieved. See R.J. T., supra; In
re K.J., supra; In re K.C., 903 A.2d 12 (Pa. Super. 2006); In re B.S., 861 A.2d 974
(Pa. Super. 2004). Thus, in a goal change proceeding, a parent's progress toward
alleviating the circumstances that caused placement is but one factor that must be
considered. In re B.S., supra. In fact, when the best interests of the child so dictate, .
dependency and placement outside the home may be continued, even if the parent
has met all goals established in the Family Service plan. See In re K.C., supra.
Additionally, as our Superior Court recently stated:
Placement of and custody issues pertaining
to dependent children are controlled by the
Juvenile Act [42 Pa.C.S. §§ 6301--65],which
was amended in 1998 to conform to the
federal Adoption and Safe Families Act
("ASFA"). The policy underlying these
statutes is to prevent children from
languishing indefinitely in foster care, with its
inherent lack of permanency, normalcy, and
16
long-term parental commitment. Consistent
with this underlying policy, the 1998
amendments to the Juvenile Act, as required
by the ASFA, place the focus of dependency
proceedings, including change of goal
proceedings, on the child. Safety,
permanency, and well-being of the child
must take precedence over all other
considerations, including the rights of the
parents.
In re N.C., 909 A.2d 818, 823 (Pa.Super.2006)(citations
omitted) (footnotes omitted).
Pursuant to § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the
placement; (2) the extent of compliance with the family
service plan; (3) the extent of progress made towards
alleviating the circumstances which necessitated the
original placement; (4) the appropriatenessand feasibility
of the current placement goal for the children; (5) a likely
date by which the goal for the child might be achieved; (6)
the child's safety; and (7) whether the child has been in
placement for at least fifteen of the last twenty-two
months. In re R.J. T., 9 A.3d at 1186-1187 n. 8 (" In re
R.J. T. II "). The best interests of the child, and not the
interests of the parent, must guide the trial court. In re
S.B., 208 Pa.Super. 21, 943 A.2d 973, 978 (2008). As this
Court has held, "a child's life simply cannot be put on hold
in the hope that the parent will summon the ability to
handle the responsibilities of parenting." In re N.C., 909
A.2d at 824 (quoting In re Adoption of M.E.P., 825 A.2d
1266, 1276 (Pa.Super.2003)).
In re M.B., 19 A.3d at 1088-89.
In setting or changing goals and making statutorily required findings, juvenile
courts are not required to select only one goal at a time. Rather, as we have done
throughout the course of this case, courts may establish concurrent goals and direct
that child welfare agencies engage in concurrent planning, which in its most
frequently used form, "involves a dual-track system by which agencies are
17
encouraged to provide simultaneous services aimed at both reunification and
adoption." In re S.E.G., 901 A.2d 1017, 1019 (Pa. 2006). See also R.J. T., supra.
Indeed, concurrent planning has been identified as a "best practice." R.J. T., 9 A.3d
at 1191 n. 14. This is "because it both protects the child from foster care drift, by
allowing agencies to consider adoptive resources ... while at the same time keeping
alive the potential for reunification." In re S.E.G., 901 A.2d at 1029. See also R.J. T.
Prompted by Mother's appeal, we have again reviewed this case in light of the
law summarized above. We remain firmly convinced that we neither erred nor
abused our discretion in issuing the goal change order. More importantly, we believe
the goal change order is consistent with the best interests of T.W.
In her appeal statement, Mother lists seven assignments of error which, for the
most part, are subsumed in her first assignment in which she contends that "(t]he trial
court erred inasmuch as the evidence presented at the Permanency Review Hearing
was insufficient to support changing the goal to adoption instead of reunification".
(Mother's 1925(b) Statement, Paragraph 2). The remaining assignments of error
. take issue with specified findings and determinations. Mother claims that the
identified findings were individually erroneous and cumulatively led us to improperly
change the permanency goal. There is no merit to any aspect of Mother's arguments.
The reasons why we changed the goal to adoption, with a concurrent goal of
reunification, are presaged by and captured in our recitation of the facts of this case.
In a nutshell, T.W., while still a premature and fragile infant, was dropped, injured,
and, by both parents' account of the June 30, 2012 incident, the subject of a roadside
tug-of-war between Mother and Father. The underlying problem that caused T.W. to
18
I o I I
be put in peril and injured is the well-documented, deep-seated history of violence
between Mother and Father that is embedded in their relationship and presents a
danger to others, especially T.W. Despite anger management classes, parenting
classes, services from CYS, counseling received from a clinician, a minister, and a
pregnancy crisis group of her own choosing, as well as involvement in the criminal
justice system and PFA court, Mother has to date been unable to extricate herself
from her relationship with Father, protect herself from Father, restrain her own violent
and abusive tendencies, stop the alternating pattern of being a victim and then a
perpetrator of abuse, or stop her pathological lying. In fact, based on the evidence,
Mother and Father's history, and the courtroom demeanor of both parents, we firmly
believe that the parties are together and not, as Mother testified, estranged. Simply
put, Mother has not demonstrated necessary protective capacities and the reasons
that caused T.W. to come into care have not, despite Mothers protestations to the
contrary, been alleviated. Unless Mother makes drastic changes very soon, the
reasons will not be alleviated.
In addition, Mother articulated a home plan that would have T.W. living in a
home, located in a high crime drug-trafficking area, out of which her maternal uncle
was caught selling drugs and now stands charged with felony drug crimes.
Obviously, that plan is not suitable.
Further, while Mother's satisfaction of many plan goals is a positive, she has
not been able to put what she has learned into action in order to make the necessary
changes to properly parent T.W. and ensure her child's safety. Along similar lines,
Mother has indicated that she has a job and is going to school. However, she has
19
not yet provided formal proof or documentation of her employment or the specifics of
the nursing program in which she has indicated she is enrolled.
Finally, as of the original date scheduled for the review hearing before the
Master, T.W. had been in care approximately fourteen months. She has now been in
care for more than the 18 months in which our appellate courts have indicated that,
under current law, permanency should be achieved. See In re R.J.S., 901 A.2d 502
(Pa. Super. 2006); In re N.W, 859 A.2d 501 (Pa. Super. 2004). See a/so In re K.M.,
53 A.3d 781 (Pa. Super. 2012). During this time period, Mother was not able to learn
from her mistakes, capitalize on the counseling and services which she had received,
demonstrate the necessary protective capacities, alleviate the reasons for T.W.'s
removal from the home, or show that she has the ability to parent T.W. in a manner
consistent with T.W.'s best interests.
Under the settled law summarized above, the applicable standard is the best
interests of the child. Under equally well-establishedlaw, T.W.'s safety, permanency,
and wellbeing are paramount, and these considerationstrump either parents' needs,
desires, and beliefs. Based on our longitudinal view of the evidence, our in-court
observations of Mother on and off the witness stand, Mother's overall parenting
history, the facts presented by CYS, the well-reasoned and articulated positions of
CYS and T.W.'s guardian ad /item, and the applicable law, it was and still is obvious
to us that Mother has simply not progressed to the point where T.W. could safely be
returned to her. That determination, coupled with T.W.'s needs and welfare, the
amount of time T.W. has been in care, and the firmly entrenched and oft-quoted
doctrine that "a child's life simply cannot be put on hold in the hope that the parent
20
will summon the ability to handle the responsibilities of parenting," In re M.B., 19 A.3d
at 1088-89 (citations omitted), led us inexorably to the conclusion that the goal
change we ordered was in T.W.'s best interests.
At the same time, the goal change with which Mother takes issue has not, as
she apparently fears, completely cut off all hope or the possibility of reunification.
Nothing in our order precludes Mother from redoubling her efforts or prevents either
the provision of reunification services or the possibility of reunification itself. In fact,
the order includes a concurrent goal of reunification. We included that concurrent
goal because some progress had been made in that both parents had satisfied the
plan goals mentioned above. As a result, and considering all facts and
circumstances, while termination and adoption planning must now take lead position
in this case, we did not at the time believe it necessary to completely cut off all
possibility of reunification. If Mother is truly sincere about her desire to turn things
around, be truthful, and work toward demonstrating that she can provide for the
health, safety, welfare, needs, and best interests of T.W., she still has the ability to do
so.
Mother's individual assignments of error may be discussed and disposed of
quickly. Mother's first contention is that this Court did not give proper weight to the
fact that she had "completed a Child Permanency Plan and would be capable of
completing any additional plan for the return of the minor child." (Mother's 1925(b)
Statement, Paragraph 3). This assertion is not supported by the record.
We did, in fact, give credit and proper weight to the fact that Mother had
completed, and in some instances exceeded, the plan goals mentioned above.
21
I I f I
Indeed, it is for this reason that we made a finding in the order Mother has appealed,
as well as in prior review orders, that Mother has made moderate progress. At the
same time, viewing all facts and circumstances in light of the best interest standard,
the progress made by Mother was not enough. T.W.'s safety and Mother removing
herself and T.W. from the vortex of violence that marks Mother's relationship with
Father have throughout this case been overarching goals and considerations.
Despite receiving many services, Mother has simply not met this goal. Since Mother
has not developed or demonstrated necessary protective capacities to keep T.W.
safe, because the Court has found that Mother and father have not been forthcoming
about the current status of their relationship, and given the fact that Mother does not
have a suitable home plan, it is clearly not in T.W's best interests at this point in the
proceeding to work toward reunification as a primary goal. Again, in a goal change
proceeding, a parent's progress toward alleviating the circumstances that caused
placement is but one factor that must be considered. In re B.S., supra. In fact, when
the best interests of the child so dictate, dependency and placement outside the
home may be continued, even if the parent has met all goals established in the
Family Service plan. See In re K. C., supra.
Mother's second assignment of error is that we failed to give proper weight "to
the medical testimony alleviating the circumstances which necessitated the original
placement; testimony from the treating physician indicated that the occipital hairline
fracture which necessitated the original placement was indicative of premature
delivery and eliminated physical abuse or blunt force trauma." (Mother's 1925(b)
Statement, Paragraph 4). Simply, we did not so err.
22
Throughout this case, we have considered the medical testimony that has
been presented. That evidence is summarized above. Our finding, based on that
evidence, is that T.W. was, in fact, injured, although the injuries were luckily not as
serious as first believed when a diagnostic test performed at Pocono Medical Center
revealed the hairline fractures. Mother's disagreement with our finding does not
allege, much less demonstrate, an error of law or an abuse of discretion. This is
especially true since our finding is supported by both the documentary medical
evidence that was submitted at the adjudication hearing and the most recent review
hearing5 and the testimonial evidence that parents elicited from the Lehigh Valley
Hospital physician whom Father called as a witness.
In this regard, the Lehigh Valley Hospital physician expressed his opinion that
the hairline fractures first seen at Pocono Medical Center were older injuries, not
acute injuries. However, he did not render an opinion, to a reasonable degree of
medical certainty or otherwise, that "eliminated physical abuse or blunt force trauma."
Rather, the doctor opined that the hairline fractures resulted from a previous trauma,
which another doctor speculated might have been a birth-related trauma, although
neither doctor knew anything about the birth itself or whether T.W. was delivered
normally or by C-Section. Similarly, no medical professionalat the time had a history
that included Father's version of events that transpired on June 30, 2012 or the fact
that Mother had dropped T.W. two days before. When the doctor's testimony is
viewed objectively, in full, and in conjunction with the medical records, it is clear that
5
Counsel for Father, and to some extent the attorney for Mother, spent a substantial amount of time at the review
hearing asserting that the records from Lehigh Valley Hospital had not been previously admitted into evidence,
and asserting, or at least implying, that the records had been withheld by CYS, the Commonwealth, or both.
However, the record is clear that medical records from both Pocono Medical Center and Lehigh Valley hospital
were admitted during the adjudication hearing. (N.T. 2, pp. 2 and 31 and Exhibits 7, 8, and 9).
23
I I t I
T.W. in fact had hairline fractures that resulted from some sort of trauma, but were
not, in the doctor's opinion, acute injuries. In addition, the doctor acknowledged that
there were objective signs 'of injury in the nature of a contusion on the left side of
T.W.'s head. Further, he ultimately did not dispute Pocono Medical Center's
diagnosis of a concussion. In fact, Lehigh Valley Hospital discharged T.W. with a
diagnosis of head injury and indicated that she had suffered a fall, a head injury, and
post-concussive syndrome. (N.T. 3, pp. 77-83, Mother's_ Exhibits 1 and 2, and GAL
Exhibit 1).
Moreover, this argument is nothing but a reiteration of the assertion Mother
has made at various points in this case that T.W. did not sustain any injuries. Even if
that interpretation is accepted as true, it misses the point of the case - and the
objective facts. T.W.'s injuries brought T.W. to the attention of CVS and ultimately to
this Court. Mother and Father's incarceration, coupled with Mother's past, caused
· T.W. to come into care. Since then, it has been the need to keep T.W. safe and
parents' inability to ensure that need, not the fact that she was previously injured, that
has kept her in care. T.W.'s injuries have healed and the holes in her heart that both
parents failed to mention have mended. However, concern for T.W.' safety and over ·
Mother's lack of protective capacities remain.
Due to Mother's admitted lying about the June 30, 2012 incident, her history of
deception, the fact that Mother and Father are both playing their cards close to the
vest, and the discrepancies between the statements of both parents and their
conduct, we may never know exactly what occurred on June 30, 2012, or precisely
what happened to T.W. when Mother dropped her several days before. What we do
24
• • • I
know is that on June 30, 2012, and on at least one prior occasion, T.W. was placed
in harm's way by one or both parents because of the volatile nature of their
relationship. Since her parents are still acting abusively towards each other, the
circumstances which caused T.W. to be put in peril continue to exist. Similarly,
neither parent has to date been able to demonstrateacceptable protective capacities.
Simply, T.W.'s safety is not ensured. Thus, it is at present largely irrelevant how the
medical evidence in this case is interpreted or how T.W's 2012 injuries are
characterized.
T.W.'s health, safety, and well-being are the paramount concerns, and her
best interest is the guide star. T.W.'s safety must be ensured regardless of whether
she was injured in the roadside incident, which scenario could be supported by at
least Father's testimony; in the incident where Mother dropped her, which scenario
could be supported by the statements of both parents; or in some prior incident which
has yet to be explained by parents, but that would be equally problematic. In fact,
T.W.'s safety must be assured even if Mother's no-injury assertion is accepted.
Neither parent has demonstrated the current ability to provide the requisite
assurance. In this regard, it cannot be emphasized enough that, under both parents'
versions of the June 30, 2012 incident, T.W. came into care because the volatile
nature of Mother and Father's relationship shockingly caused them to became
embroiled in an argument that led them to literally play a game of tug-of-war with
T.W., in her car seat, at the side of a public road. While T.W. is now physically safe,
the tug-of-war between the parents continues, at times literally and at times
25
I • I I
figuratively, and the underlying issues that cause their battles have not been
resolved.
Assignments of error four through six take issue with specific findings we
made regarding the reasonableness of efforts made by CYS to finalize T.W's
permanency plan. (Mother's 1925(b) Statement, Paragraphs 5, 6, and 7). All three
assignments are bootless.
Mother first implies that efforts were unreasonable because "more than three
months expired without a review of the permanency plan." However, three month
reviews are not mandatory. The Juvenile Act and the applicable rules of Juvenile
Court Procedure require that courts conduct permanency and placement reviews at
least every six months. See 42 Pa.C.S.A. § 6351 (e)(3) and Pa. R.J.C.P. 16078.
While three month reviews are a best practice that this Court has generally adopted
for a targeted number of dependency proceedings pursuant to a local protocol, there
is simply no legal requirement to conduct ninety day reviews.
We recognize that almost seven months elapsed between the most recent
review before the Master and the review hearing that was convened by this Court in
December of 2013. However, the extra month was not caused by any improper or
unreasonable act on the part of CYS or any omission by the Court. CYS exercised
its right to object to the jurisdiction of the Master. That action resulted in the
scheduling of a hearing before the court within the required six month period. The
hearing was continued slightly outside that period based on a reasonable request for
a continuance made by the guardian ad /item that was granted by the Court. Further,
after the hearing began, Mother (and Father) was given two hearing days of
26
I • 1 I
opportunity to question witnesses and present evidence. Finally, Mother has not
alleged any prejudice and none is shown in the record. Under these facts, and
considering the overall circumstances of this case, we discern no unreasonable act
or omission on the part of CYS and no error or abuse of discretion on the part of this
Court.
Mother next asserts that CYS .did not make reasonable efforts because the
agency did not asses her home. However, for the reasons discussed above, we do
not consider Mother's current home and home plan to be suitable for T.W. In
addition, Mother has not progressed to the point where she has demonstrated the
necessary protective capacities for T.W. to be returned to her. In addition, her
volatile relationship with Father continues. As a result, and given the other
circumstances of this case, we see no error on the part of CYS in declining to assess
Mother's home at this time.
Mother's final reasonable efforts challenge is that CYS unreasonably switched
Mother's visits back from community visits to visits at the agency. However, given
the facts and circumstances discussed above, especially the safety issues that
remain, we believe that CYS acted reasonably in moving visits back to the agency at
the time the change was made.
In her final assignment of error, Mother almost unbelievably contends that
"[t]he trial court erred by relying upon allegations of domestic violence between
Mother and Father." (Mother's 1925(b) Statement, Paragraph 8). This assignment of
error merits no response beyond the following statement: Given the facts and
circumstances of this case, we obviously did not err in considering the history of
27
I I l I
' '
domestic violence between Mother and Father. Quite to the contrary, it would have
been beyond a gross abuse of our discretion to have ignored the history.
For these reasons, we believe that our goal change order effectuated the
health, safety, needs, welfare, and best interests of T.W. and should be affirmed.
Date: ~ J u { l'j
Cc: Superior Court of Pennsylvania
Jonathan Mark, Judge
Donald M. Leeth, Esq. 0
C"· ~
Eric L. Hamill, Esq. c- "11
c;
Elizabeth B. Weekes, Esq. :r -a 0
Lori J. Cerato, Esq.
:::. 0
c:
Brett J. Riegel, Esq.
,--<, ..... . ;;u
-f
i:I
l> ~
en
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28
Circulated 02/18/2016 11:32 AM
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
JUVENILE COURT DIVISION
IN THE INTEREST OF: NO. 64 DP 2012
48 OCA2013
T. W. :, a minor
ADDENDUM TO ANNOUNCEMENT HEARING
The law I applied to the facts of this case these cases in reaching the decisions I
am announcingtoday is well settled. In comprehensivesummary:
1. Termination of Parental Rights
In termination cases, the burden is upon the petitioner, in this case Monroe
County Children and Youth Services ("CYS"), to prove by clear and convincingevidence
that its asserted grounds for seeking the termination of parental rights are valid. In re
T.D., 949 A.2d 910 (Pa. Super. 2008); In re S.H., 879 A.2d 802, 806 (Pa. Super. 2005).
Clear and convincing evidence has been defined as "testimonythat is so clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue," In re K.Z.S., 946 A.2d 753,
757 (Pa. Super. 2008) (citation omitted). It is well established that a court must
examine the individual circumstances of each and every .case and consider all
explanations offered by the parentto determine if the evidence in light of the totality of
the circumstances clearly warrants termination. In re J.L.C. & J.R.C., 837 A.2d 1247,
1251 (Pa. Super. 2003).
Termination of parental rights is controlled by Section 2511 of the Adoption Act,
23 Pa. C.S.A. Section 2511. In this case, CYS seeks termination of both parents'
parental rights on the following grounds:
Section 2511. Grounds for Involuntary Termination
(a) General Rule. - The rights of a parent in regard to a child
may be terminated after a petition filed any of the following
grounds:
(1) The parents have, for a period of more than six (6) months
prior to the filing of this pennon, failed to perform their
parental duties;
(2) The repeated and continued incapacity, abuse, neglect or
refusal of the parents has caused the child to be without
essential parental care, control or subsistence necessary for
his physical and mental well-being and the conditions and
causes of the inability, abuse, neglect or refusal have not
been remedied by the parents;
***
(5) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency for
a period of at least six months, the conditions which led to
the removal or placement of the child continue to exist, the
parent cannot or will not remedy those conditions within a
reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare
of the child.]
***
(8) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an aqency.
12 months or more have elapsed from the date of removal
or placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of
the child. ·
***
2
(b) Other considerations - The court in terminating the rights of
a parent shall give primary consideration of the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent
With respect to any petition filed pursuant to subsection
(a)(1), (6), or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa. C.S.A. Section 2511 (a)(1), (2), (5), (8), and (b). Satisfaction of any subsection of
Section 2511 (a), along with consideration of Section 2511 (b), is sufficient for involuntary
termination of parental rights. In re K.Z.S., supra; In re R.J.S., 901 A.2d 502 (Pa.
Super. 2006). Accordingly, an appellate court "need only agree with the orphan's court
as to any one subsection of Section 2511(a), as well a~ Section 2511(b), in order to
affirm." In re B.L.W., 843 A.2d 380·, 384 (Pa. Super. 2004) (en bane), app. den., 863
A.2d 1141 (Pa. 2004). See also In re Adoption of C.J.P., _A.3d _, 2015 Pa. Super. 80,
2015 WL 1668310 (Pa. Super, filed April 15, 2015); In re K.H.B., 107 A.3d 175 (Pa.
Super. 2014).
Section 2511 requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in Section2511(a). Only if
the court determines that the parent's conduct warrants
termination of his or her parental rights does the- court
engage in the second part of the analysis pursuant to
Section 2511(b): determination of the needs and welfare of
the child under the standard of best interests of the child.
One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond
between parent and child, with close attention paid to the
effect on the child of permanentlysevering any such bond.
3
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). See also In re
Adoption of C.J.P., supra; In re T.D., supra; In re Adoption of R.J.S., supra.
In analyzing the conduct of a parent, the applicable statutory language must be
considered. As the third sentence of Section 2511{b) directs, when subsections (a)(1),
(6), or {8) of Section 2511 {a) are cited as the grounds for termination, we may not
consider actions of a parent to remedy the conditions that necessitated the dependent
child's. placement which are initiated after the parent receives notice of the filing of the
termination petition. In re Adoption of C.J.P., supra; In re K.Z.S., supra; In re D.W, 856
A.2d 1231 (Pa. Super. 2004).
Under Section 2511 {a)(1 Y, parental rights may be terminated if, for a period of at
least six months, a parent either demonstrates a settled purpose of relinquishing
parental claims to a child or fails to perform parental duties. In re Adoption of R.J.S.,
supra; In re Adoption of J.M.M., 782 A.2d 1024 (Pa. Super. 2001). As the Superior
Court has explained:
A court may terminate parental rights under Section
2511 (a){1) where the parent demonstrates a settled purpose
to relinquish parental claim to a child or fails to perform
parental duties for at least the six months prior to the filing of
the termination petition. Although it is the six months
immediately preceding the filing of the petition that is most
critical to the analysis, the court must consider the whole
history of a given case and not mechanically apply the six-
month statutory provision. ·
In re K.Z.S., supra at 758 {Pa. Super. 2008) (case citations and quotation marks
omitted). See also In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).
The grounds for termination of parental rights under Section 2511(a)(2), due to
4
parental incapacity that cannot be remedied, are not limited to affirmative misconduct.
Rather, those grounds may include acts of refusal as well as incapacity to perform
parental duties.
Parental rights may be terminated pursuant to Section
2511(a)(2) if three conditions are met: (1) repeated and
continued incapacity, abuse, neglect or refusal must be
shown; (2) such incapacity, abuse, neglect or refusal must
be shown to have caused the child to be without essential
parental care, control or subsistence; and (3) it must be
shown that the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied.
Unlike subsection (a)(1), subsection (a)(2) does not
emphasize a parent's refusal or failure to perform parental
duties, but instead emphasizes the child's present and future.
need for essential parental care, control or subsistence
necessary for his physical or mental wellbeing. 23 Pa.C.S.A
§ 2511(a)(2). Therefore, the language in subsection (a)(2)
should not be read to compel courts to ignore a child's need
for a stable home and strong, continuous parental ties,
which the policy of restraint in state interventionis intended
to protect. This is particularlyso where disruption of the
family has already occurred and there is no reasonable
prospect for reuniting it. ... Further, grounds for termination
under subsection (a)(2) are not limited to affirmative
misconduct; those grounds may include acts of incapacityto
perform parental duties.
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (case citations and internal quotation
marks omitted) (emphasis in original). See In re Adoption of R.J.S., supra. Thus,
While sincere efforts to perform parental duties can preserve
parental rights under subsection (a)(1), those same efforts
may be insufficient to remedy parental incapacity under
subsection (a)(2). Parents are required to make diligent
efforts toward the reasonably prompt assumption of full
parental responsibilities.A parent's vow to cooperate,after a
long period of uncooperativenessregarding the necessity or
availability of services, may properly be rejectedas untimely
or disingenuous.
5
In re Z.P., 994 A.2d at 1117~18 (case citations and internal quotation marks omitted).
Moreover, a court may terminate parental rights under subsection (a)(2), even where
the parent has never had physical custody of the child. In re Adoption of Michael J.C.,
486 A.2d 371, 375 (Pa. 1984); In re Z.P, supra.
For termination under Section 2511 (a)(5), "the following factors must be
demonstrated: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to the child's removal or placement continue to
exist; (3) the parents cannot or will not remedy the conditions which led to removal or
placement within a reasonable period of time; (4) the services reasonably available to
the parents are unlikely to remedy the conditions which led to removal or placement
within a reasonable period of time; and (5) termination of parental rights would best
serve the needs and welfare of the child." In re K.H.B., 107 A.3d 175 (Pa. Super. 2014)
(quoting In re Adoption of M.E.P., 825 A.2d 1266, 1273-74 (Pa.Super.2003)). See also
In re Adoption of K.J., 936 A.2d 1128, 1133 (Pa. Super. 2007), app. den., 951 A.2d
1165 (Pa. 2008).
To terminate parental rights under Section 2511 (a)(B), the party seeking
termination of parental rights need only show "(1) that the child has been removed from
the care of the parent for at least twelve months; (2) that the conditions which led to the
removal or the placement of the child still exist; and (3) that termination of parental
rights would best serve the needs and welfare of the child." In re Adoption of R.J.S.,
supra at 511. See In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super. 2003). "Unlike
Section 2511 (a)(S), Section 2511(a)(8) does not require an evaluation of the remedial
efforts of either the parent... Instead, Section 2511 (a)(8) imposes a lengthier removal
6
period of one year." In re B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citing C.LG., 956
A.2d at 1007).
The one year time period is significant. As the Superior Court has explained:
Section 2511 (a)(B) sets a twelve-month time frame for a
parent to remedy the conditions that led to the children's
removal by the court. Once the twelve-month period has
been established, the court must next determine whether the
conditions· that led to the child's removal continue to exist,
despite the reasonable good faith efforts of DHS supplied
over a realistic period. The relevant inquiry in this regard is
whether the conditions that led to removal have been
remedied and thus whether reunification of parent and child
is imminent at the 'time of the hearing. This Court has
acknowledged:
[T]he application of Section (a)(8) may seem harsh
when the parent has begun to make progress
toward resolving the problems that had led to
removal of her children. 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 while the parent is unable to perform the
actions necessary to assume parenting
responsibilities. This Court cannot and will not
subordinate indefinitely a child's need for
permanence and stability to a parent's claims of
progress and hope for the future.
fn re I.E.P., 87 A.2d 340, 345-46 (Pa. Super. 2014) (case citations and internal
quotation marks omitted).
With respect to the "needs and welfare" analysis pertinent to Sections (a)(B) and
(b), the Superior Court has observed:
[l]nitially, the focus in terminating parental rights is on the
parent, under Section 2511(a), whereas the focus in Section
2511(b) is on the child. However, Section 2511(a){8)
explicitly requires an evaluation ·of the 'needs and welfare of
the child' prior to proceeding to Section 2511 (b), which
focuses on the 'developmental, physical and emotional
7
needs and welfare of the child.' Thus, the analysis under
Section 2511 (a)(8) accounts for the needs of the child in
addition to the behavior of the parent. Moreover, only if a
court determines that the parent's conduct warrants
termination of his or her parental rights, pursuant to Section
2511 (a), does a court engage in the second part of the
analysis pursuant to Section 2511 (b): determination of the
needs and welfare of the child under the standard of best
interests of the child. Accordingly, while both Section
2511(a)(8) and Section 2511(b) direct us to evaluate the
'needs and welfare of the child,' we are required to resolve
the analysis relative to Section 2511 (a)(8), prior to
addressing the 'needs and welfare' of [the child], as
proscribed by Section 2511 (b); as such, they are distinct in
that we must address Section 2511 (a) before reaching
Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1008-1009 (Pa. Super. 2008) (en bane)
(citations omitted). See also In re I.E.P., supra; In re Adoption of K.J., 936 A.2d 1128,
1133 (Pa. Super. 2007), app. denied, 951 A.2d 1165 (Pa. 2008). While the Superior
Court focused its analysis in these cases on Section 2511(a)(8), we believe that the
rationale applies equally to Section 2511(a)(5). Like Section (a)(8), Section (a)(5)
requires a finding that termination would best serve the needs and welfare of the child.
Accordingly, we must reach that determination before turning to Section 2511 (b).
Simply put, Section 2511, including the subsectionscited and explained above,
outlines certain irreducible requirements that parents must provide for their children.
Parents who cannot or will not meet the requirementswithin a reasonabletime following
intervention by the state may properly be considered unfit and have their parental rights
terminated. In re K.Z.S., supra; In re B.L.L., 787 A.2d 1007 (Pa. Super. 2001).
There is no simple or easy definition of parental duties. However, the appellate
cases make it very clear that parenting is· an active rather than a passive obligationthat,
8
even in the face of difficulty, adversity, and incarceration, requires a parent to take and
maintain a place of importance in the child's life. The following passage is instructive:
Parental duty is best understood in relation to the needs of a
child. A child needs love, protection, guidance, and support.
These needs, physical and emotional, cannot be met by a
merely passive interest in the development of the child.
Thus, this court has held that the parental obligation is a
positive duty which requires affirmative performance.
***
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness
in resisting obstacles placed in the path of maintaining the
parent-child relationship. Parental rights are not preserved
by waiting for a more suitable or convenient time to perform
one's parental responsibilities while others provide the child
with his or her physical and emotional needs.
In re K.Z.S., supra at 759. See also In re Burns, 379 A.2d 535 (Pa. 1997); Adoption of
Baby Boy A. v. Catholic Social Services of the Diocese of Harrisburg, 517 A.2d 1244
(Pa. 1986); In re Shives, 525 A.2d 801 (Pa. Super. 1987).
In relation to the parental requirements _outlined in Section 2511, when a parent
is separated from his or her child, it is incumbent upon the parent "to maintain
· communication and association with the child. This requires an. affirmative
demonstration of parental devotion, imposing upon the parent the duty to exert himself,
to take and maintain a place of importance in the child's life.'' In re G.P.-R., 851 A.2d
967, 977 (Pa. Super. 2004). When a parent has abandoned or effectively abandoned a
child,
[t]o be legally significant, the post abandonment contact
must be steady and consistent over a period of time,
contribute to the psychological health of the child, and must
demonstrate a serious intent on the part of the parent to
recultivate a parent- child relationship and must also
9
demonstrate a willingness and capacity to understand the
parental role. Theparent wishing to reestablish his
parental responsibilities bears the burden of proof on
this question.
In re T.D., 949 A.2d at 919 (case. citations and brackets omitted) (emphasis in original).
Finally, parents are required to make diligent efforts towards assumption or resumption
of full parental responsibilities. Accordingly, a parent's vow to cooperate, after a long
period of being uncooperative regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. In re Adoption of K.J., supra; In re
A.LO., 797 A.2d 326 (Pa. Super. 2002).
Once statutory grounds for termination have been established, the court must, in
· accordance with Section 2511 (b), consider whether the child's needs and welfare will be
met by termination. A proper Section 2511 (b) analysis focuses on whether termination
of parental rights would best serve the developmental, physical, and emotional needs
and welfare of the child. Intangibles such as love, comfort, security, and stability are
involved in the inquiry. One major aspect of the needs and welfare analysis concerns
the nature and status of the emotional bond, if any, between parent and child. If a bond
is determined to exist, the effect on the child of permanently severing the bond must be·
analyzed and considered. See In re K.M., 53 A.3d 781 (Pa. Super. 2012); In re T.D.,
supra; In re L.M., supra; In re Adoption of R.J.S., supra. As to the bond analysis, the
Superior Court has stated:
in conducting a bonding analysis, the court is not required to
use expert testimony, but may rely on the testimony of social
workers and caseworkers .. In re Z.P., 994 A.2d 11oa·, 1121
(Pa. Super. 2010). This Court has observed that no bond
worth preserving is formed between a child and a natural
parent where the child has been in foster care for most of the
10
· child's life, and the resulting bond with the natural parent is
attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa.Super.2008).
In re K.H.B., 107 A.3d 175, 180 (Pa. Super. 2014).
In addition to a bond examination, a court may equally
emphasize the safety needs of the child under subsection
(b), particularly in cases involving physical or sexual abuse,
severe child neglect or abandonment, or children with
special needs. The trial court should also examine the
intangibles such as the love, comfort, security, and stability
the child might have with the foster parent. Another
consideration is the importance of continuity of relationships
to the child and whether the parent-child bond, if it exists,
can be severed without detrimental effects on the child. All
of these factors can contribute to the inquiry aboutthe needs
and welfare of the child.
In re K.Z.S., 946 A.2d at 763 (emphasis in original).
When,·as here, the petitioner is an agency, "it shall not be required to aver that
an adoption is presently contemplated nor that a person with a present intention to
. adopt exists." 23 Pa.C.S. § 2512(b). However, the existence or absence of a pre-
adoptive home is an important factor. So is the relationshipbetween the child and the
foster or pre-adoptive parents. As our Supreme Court cogentlystated, "[c]ommonsense
'dictates that courts considering termination must also considerwhether the children are
in a pre-adoptive home and whether they have a bond with their foster parents. In re:
T.S.M., 71 A.3d 251, 268 (Pa. 2013). See In re K.M., supra.
In reviewing evidence in support of termination under section 2511(b), our
Supreme Court recently stated:
[l]f the grounds for termination under subsection(a) are met, ·
a court 'shall give primary consideration to the
developmental, physical and emotional needs and welfare of.
the child.' 23 Pa.C.S. § 2511(b). The emotional needs and
welfare of the child have been properly interpretedto include
II
'(i]ntangibles such as Jove, comfort, security, and stability. In ·
In re E.M., [620 A.2d 481, 485 (Pa. 1993) ], this Court held
that the determination of the child's 'needs and· welfare'
requires consideration of the emotional bonds between the
parent and child. The 'utmost attention"' should be paid to
discerning the effect on the child of permanently severing the.
parental bond.
In re T.S.M. 71 A.3d at 267. The Court additionally observed:
contradictory considerations exist as to whether termination
will benefit the needs and welfare of a child who has a strong
but unhealthy bond to his biological parent, especially
considering the existence or lack thereof of bonds to a pre-
adoptive family. As with dependency determinations, we
emphasize that the law regarding termination of parental
rights should not be applied mechanically but instead always
with an eye to the best interests and the needs and welfare
of the particular children involved .... Obviously, attention
must be paid to the pain that inevitably results from breaking
a child's bond to a biological parent, even if that bond is
unhealthy, and we must weigh that injury against the
damage that bond may cause if left intact. Similarly, while
termination of parental rights generally should not be granted
unless adoptive parents are waiting to take a child into a
safe and loving home, termination may be necessary for the
child's needs and welfare in cases where the ohild's parental
bond is impeding the search and placement with a
permanent adoptive home.
In weighing the difficult factors discussed above,
courts must keep the ticking dock of childhood ever in mind.
Children are young for a scant number of years, and we
have an obligation to see to their healthy. development
quickly. When courts fail, as we have in this case, the result,
all too often, . is catastrophically · malad justed cbildren .. In
recognition of this reality, over the past fift\9en years.. a
eubstantlal shift has occurred in our society's approach. to
dependent children, requiring vigilance to the need . to
expedite children's placement in permanent, safe, .sta~Je,
and loving homes .. [ASFA was enacted to combat· the
problem of foster care drift, where children, .like the chlldren ·
in this case, are shuttled from one foster home to another,
waiting for -their parents to ·demonstrate ther ability to care
for thechildren,
·.· .·,
12
In re T.S.M., 71 A.3d at 269.
In this case, both parents were incarcerated early on in the dependency case,
and Mother remained on probation supervision up through most if not all of both cases.
Standing alone, incarceration neither constitutes sufficient grounds for termination of
parentalrights nor removes the obligation to perform required''bond effects" and "needs
and welfare" analyses. However, it is a factor that must be consideredand, in a proper
case, such as when a parent is serving a prohibitively long sentence, may be
determinative.In re Adoption of S.P., 47 A.3d 817 (Pa. 2012); In re Z.P., supra. "Each
case of an incarcerated parent facing termination must be analyzed on its own facts,
keeping in mind... that the child's need for consistent parentalcare and stability cannot
be put aside or put on hold simply because the parent is doing what [he orJ she is
supposedto be doing in prison." In re E.A.P., 944 A.2d at 84.
The analysis depends in part on the asserted grounds for termination. Jn
subsection (a)(1) abandonment cases, our Supreme Court has stated:
[A] parent's absence and/or. failure to support due to
incarceration is not conclusive on the issue of abandonment.
Nevertheless, we are not willing to completely toll a parent's
responsibilities during his or her incarceration. Rather, we
must inquire whether the parent has utilized those resources
at his or her command while in prison in continuinga close
relationship with the child. Where the parent does not
exercise reasonable firmness in declining to yield to
obstacles, his other rights·may be forfeited.
In re Adoption of S.P., 47A.3d at 828 (quoting In re Adoption of McCray, 331 A.2d 652,
655 (Pa.. 1975) (footnotes
.· .
and
·.
internal
. . quotation
. .
marks
.
omitted).
.
Thus, in an
abandonment case, a parent is required to both utilize .available resources and take
affirmative steps to support a parent-child relationship. If the parent fails to do so, his
13
parental rights may be terminated. See In re Adoption of WJ.R., 952 A.2d 680 (Pa.
Super. 2008); In re E.A.P., supra; In re K.J., supra. However, utilization of available
resources does not guarantee preservation of parental rights. The statutory criteria, the
facts and circumstances of each case, and the best interests, needs, and welfare of the
child must all still be considered.
In cases involving parental incapacity, our Supreme Court recently held that:
incarceration is a factor, and indeed can be a determinative
factor, in a court's conclusion that grounds for termination
exist under § 2511 (a)(2) where the repeated and continued
incapacity of a parent due to incarceration has caused the
child to be without essential parental care, control or
subsistence and that the causes of the incapacity cannot or
will not be remedied.
In re Adoption of S.P, 47 A.3d. at 828. In more expanded terms, the Supreme Court
stated:
In line with the expressed opinion of a majority of justices in
[In re R.I.S., 614 Pa. 275, 36 A.3d 567 (2011) ], our prior
holdings regarding incapacity, and numerous Superior Court
decisions, we now definitively hold that incarceration, while
not a litmus test for termination, can be determinative of the
question of whether a parent is incapable of providing
"essential parental care, control or subsistence" and the
length of the remaining confinement can be considered as
highly relevant to whether "the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent," sufficient to provide grounds for
termination pursuant to 23 Pa.C.S. § 2511(a)(2).
Id. at 830. In sum, a parent's incarceration "is relevant to the subsection (a)(2) analysis
and, depending on the circumstances of the case, it may be dispositive of a parent's
ability to provide the "essential parental care, control or subsistence+that the section
contemplates." In re A.O., 9,:'.tA.3d at 897.
14
.. , '
Finally, before . filing a petition for termination of parental- rightsr- : the
Commonwealth is ge.ner~!ly required to· make reasonable efforts -to promote.
reunification of parent ~nd· ~hild. In re Adoption of R.J.S.. See elso In re Adoption-of
M.E.P., 825 A.2d 1266 (Pa. Super. 2003). However, the commonwealth does not have
an obligation to make reunification efforts indefinitely.
The Commonwealth has an interest not only in family
reunification but also in each child's right to a stable, safe,
and healthy environment, and the two interests must both
be considered." .A parent's basic constitutional right to the
custody and. rearing of his orher child is converted, upon
the parent's: failureto fulfill his or her parental duties, to the
child's right to have proper parenting and fulfillment of his or
her potential in a permanent, healthy, safe environment.
When reasonable efforts to reunite a foster child with his or
her biological parents have failed, then the child welfare
agency must work toward terminating parental rights and
·f: placing the child with adoptive parents. The process of
' .;- reLin_ification ;<;>r adoption should be. completed within
--~ eighteen (1~) months. While this time frame ma,' in some
. 9ircu,nst~nces _ .seem short, it is based on· the policy that. a
.: .. · child's life simply cannot be put on hold ill the hope that the
parent will: summon the ability to handle the responsibilities
of parenti_ng.
In re Adopt~on of R.J.S., supra at 507 (internal case citations, quotation marks, and
footnote omitted).
. ..
However, the ._fai.lure of. an agency to. make .: reasonable efforts to promote
. . ' . ·. ·'. .
reunification of parent and child will not def~at a·. properly supported petition for
termination of parental. rights .. Neither .the relevant provisions oi s~cttor:i: 2s1 ·1 nor the
pertinent provisjons of the Juvenile .Act require a court to co_ns_id~r; th!:1 reasonable efforts
provided to a pare~t-~y_tt,~::P_~titiQ~.!!19 ~9_en"cy_prior fo_termiQ_attq"n of:p~·rental,rights. In.
re D.C.D., 105 A.3d 662 .(Pa._2_014);.Jn.re . ~doptiId.
at 671-75 (citation omitted). The Court also concluded that
reasonable efforts were. not required to protect a parent's
constitutional rightto the care, custody, andcontrol of his or
her child. Id. at 676-77. While the Supreme Court in D.C.D.
focused 'its analysis on· Section 2511(a)(2), we find the
Supreme . Court's reasoning equally applicable to Section
2511(a)(8). Uke Section 2511(a)(2), nothingin the language
of Section 2511(a)(8) suggests that reasonablereunification
servicesarenecessary to support the terminationof parental
rights.
1;;. In re Adoptio_n of C.J.P., supra at *7. See also In re B.C., 36 A.3d at 611 (Section
2511(a)(8) does not require an evaluation of the remedialefforts of either the parent or
the agency); In re CL. G., supra. Along similar lines, when the goal of the case is
adoption, {he adequacy of the agency's efforts toward reunification. is generally not a
concern atthe termination of parental rights stage. In re B.L. W, 843 A.2d 380, 384· n.t
(Pa. Super.· 2004) (en bane), app. den. 863 A.2d 1141 (Pa. 2004). Expanding on the
analyses contained in the cited cases, we find that the reasoningof our Supreme Court
'I' •
and Superior Court is equally applicable to Section 2511 (a)(1) which,· like Sections
2511(a)(2) and (8), does not suggest, that reasonable reunlftcatlon . services are
necessary to support the termination of parental rights.· Thus, while agencies must
provide reasonable efforts to enable parents to work toward reunification with their
dependent children when ordered to do so, "the. remedy for an .agency's failure to
provide services is not to punish an innocent child, by delayingher permanencythrough
denying termination, but instead to conclude on the record that the agency. hasfalled.to
. .
16
make reasonable efforts, which imposes a financial penalty on the agencyof thousands
if not tens of thousands of dollars under federal law." In re D.C.D., 105 A.3d at 675.
2. Permanency and Placement Review
The applicable standards are recited in the memorandum opinion issued in· the
dependency proceeding by the Superior Court on August 22, 2014, and the appeal
opinion issued by this Court on April 11, 2014.
3. Appellate Standard of Review
If an appeal is filed, the applicable standard of review is summarized in the
appeal opinion we filed in the dependency case on April 11, 2014.
17