In the Interest of: S.C., Appeal of CYS

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2021 PA Super 41IN RE: S.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: ALLEGHENY COUNTY :
OFFICE OF CHILDREN, YOUTH AND :
FAMILIES :
:
:
: No. 242 WDA 2020
Appeal from the Order Entered January 21, 2020
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000093-2019
IN THE INTEREST OF: S.R.C, A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: ALLEGHENY COUNTY
OFFICE OF CHILDREN, YOUTH AND
FAMILIES
No. 243 WDA 2020
Appeal from the Order Entered January 21, 2020
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000093-2019
IN THE INTEREST OF: S.R.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.R.C., A/K/A S.C. :
:
:
:
: No. 244 WDA 2020
Appeal from the Order Entered January 21, 2020
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In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000093-2019
IN RE: S.R.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.R.C.A/K/A S.C. :
:
:
:
:
: No. 245 WDA 2020
Appeal from the Order Entered January 21, 2020
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000093-2019
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
OPINION BY OLSON, J.: FILED: MARCH 15, 2021
Allegheny County Office of Children, Youth, and Families (“CYF”) and
KidsVoice appeal from the January 21, 2020 order denying CYF’s petition for
involuntary termination of parental rights (“termination petition”) of J.C.
(“Mother”) and B.C. (“Father”) (collectively, “Parents”) to their dependent
child, S.C., a male child born October 2017, (“S.C.”) pursuant to Section 2511
of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938.1 We vacate the January 21,
2020 order and remand the case with instructions.
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1 A single termination petition was brought collectively as to Mother and
Father, and a review of that petition demonstrates that the facts pertinent to
this appeal are the same for both Mother and Father. See Petition for
Involuntary Termination of Parental Rights, 5/15/19.
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The trial court set forth the following:
[In November 2017, Parents] took [S.C.] to UPMC Children's
Hospital of Pittsburgh [“CHP”] and reported that he was vomiting
blood. Medical staff examined [S.C.] and diagnosed him with
bucket handle fractures in both of his legs along with [injuries to
the left and right side of the soft palate region of his mouth].
[Parents] were unable to provide a plausible explanation for
[S.C.’s] injuries. Based on the nature of the injuries and
[Parents’] lack of explanation, the case was referred to [CHP’s]
Child Advocacy Unit for concerns of child abuse. Dr. Adelaide
Eichman, a physician who specializes in child abuse, examined
[S.C.] based on this referral. After an examination, Dr. Eichman
reported that [S.C.] also had bruising to both sides of his jaw and
his lower back. [Parents] reported they had observed a bruise on
[S.C.’s] leg "a few weeks ago" but were unaware of the bruising
to the jaw and [lower] back. After the examination and
consultation with [Parents], Dr. Eichman concluded that the
injuries were diagnostic of physical child abuse. A referral was
made to [CYF] based upon this diagnosis. [Parents] were
interviewed by [CYF] and [they] could not provide a plausible
explanation for the injuries. As a result, [CYF] sought and
obtained an emergency custody authorization on November 22,
2017. [S.C.] was placed in the care of [his] paternal grandfather
and paternal step-grandmother [collectively, “Grandparents”].
[CYF] filed a dependency petition alleging that [S.C.] was without
proper parental care or control. An adjudicatory hearing was held
on December [19], 2017[,] and [S.C.] was adjudicated
dependent. The [trial] court ordered that [S.C.] remain in
foster[-]care placement with [Grandparents]. The [trial] court
ordered Mother and Father to participate in parenting classes and
non-offenders' treatment. They were also ordered to complete a
psychological evaluation and follow any recommendations.
Additionally, Mother was ordered to undergo a mental health
evaluation and to follow all treatment recommendations.
Dr. [Terry O'Hara, PhD, a licensed psychologist,] was assigned to
conduct psychological evaluations of the family. He conducted his
first set of evaluations on February [19,] 2018, which consisted of
interactional and individual evaluations of [Parents]. [S.C.] slept
through most of the interactional evaluation. When [S.C.] did
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wake up, [Parents] were able to sooth him. Dr. O'Hara opined
that they exhibited several positive parenting skills. Neither
parent could provide a plausible explanation about the cause of
[S.C.’s] injuries. Mother reported that the injuries could have
occurred when they were changing [S.C.’s] diaper. She reported
that [S.C.] "arched his back and tried to twist" during diapering
and that they had to hold him by both ankles. With respect to the
[injuries] in [S.C.’s] mouth, Mother reported that she may have
microwaved his bottle too long. During her individual evaluation,
Mother reported a history of physical and sexual abuse by her
biological father. She reported this abuse to her mother when she
was approximately 20 years old. Her father was arrested and
convicted of the abuse. She began mental health treatment after
her father's arrest. She reported being prescribed medication for
anxiety during that time. Dr. O'Hara performed psychological
testing of Mother and noted that she was defensive. As such, he
was limited in making an appropriate diagnosis. During the
individual evaluation of Father, [Dr. O’Hara] did not endorse any
mental health concerns. When asked about the injuries that
[S.C.] sustained, Father reported that [S.C.] "would squirm a lot,
then we would both hold him and secure his thighs". Father did
not report any mental health concerns and was not defensive
during any of the testing.
Trial Court Opinion, 4/24/20, at 2-4 (extraneous capitalization omitted). On
February 4, 2019, Parents pleaded guilty to one count each of endangering
the welfare of a child as a result of S.C.’s injuries and were sentenced to a
period of probation.2 Id. at 7.
On May 15, 2019, CYF filed a termination petition asking the trial court
to terminate Mother’s and Father’s parental rights to S.C. pursuant to 23
Pa.C.S.A. §§ 2511(a)(2), (a)(5), (a)(8), and (b). See Petition for Involuntary
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2 18 Pa.C.S.A. § 4304(a)(1).
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Termination of Parental Rights, 5/15/19, at ¶¶13-14. Courtney Potter,
Esquire, from KidsVoice, represented the legal and best interests of S.C. Max
C. Feldman, Esquire, represented Parents, and CYF was represented by
Melaniesha L. J. Abernathy, Esquire. A termination hearing was held on
December 6, 2019, at which the aforementioned counsel, as well as Parents,
participated.
On January 21, 2020, the trial court denied CYF’s termination petition,
finding that with regard to both Mother and Father, CYF failed to meet its
burden of proof under Sections 2511(a)(2), (a)(5) and (a)(8) of the Adoption
Act. Trial Court Order, 1/21/20. The trial court further found that involuntary
termination of Mother’s and Father’s parental rights did not serve the needs
and welfare of S.C. pursuant to Section 2511(b). Id.
On February 20, 2020, both CYF and KidsVoice filed separate notices of
appeal of the January 21, 2020 order as it pertained to Mother and separate
notices of appeal of the January 21, 2020 order as it pertained to Father
pursuant to Pa.R.A.P. 1925(a)(2)(i) (providing that, concise statements of
errors complained of on appeal shall be filed and served with notices of appeal
in children’s fast-track cases).3 The trial court subsequently filed its Rule
1925(a) opinion on April 24, 2020.
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3CYF’s separate, but otherwise identical, appeals challenging the trial court’s
order denying the termination petition as it pertained to Father and Mother
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CYF raises the following issues for our review:
[1.] Did [CYF] prove, by clear and convincing evidence, the
grounds for the involuntary termination of Father's [and
Mother’s] parental rights to [S.C.] pursuant to 23 Pa.C.S.A.
§§ 2511(a)(2), (a)(5), and (a)(8)?
[2.] Did [CYF] prove, by clear and convincing evidence, that the
involuntary termination of Father's [and Mother’s] parental
rights to [S.C.] best serves the needs and welfare of [S.C.]
pursuant to 23 Pa.C.S.A. § 2511(b)?
[3.] Did the trial court err as a matter of law and/or abuse its
[discretion] when the trial court partially denied CYF's
motion to strike [as] untimely [Parents’] pre-trial statement
and permitted testimony of Holy Family visit[ation] coach,
Amy Richter, and A Second Chance[,] Inc. family services
technician, Dawn Heiser?
CYF’s Brief at 5-6 (extraneous capitalization omitted).4
KidsVoice raises the following issues for our review:
[1.] Whether the trial court erred and/or abused its discretion by
denying CYF’s petition to terminate [Mother’s and Father’s]
parental rights to [S.C. pursuant to] 23 Pa.C.S.[A.]
§ 2511(a)(2), [(a)](5), and [(a)](8), where [S.C.] incurred
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were docketed by this Court at 242 WDA 2020 and 243 WDA 2020,
respectively. KidsVoice’s separate, but otherwise identical, appeals
challenging the trial court’s order denying the termination petition as it
pertained to Mother and Father were docketed by this Court at 244 WDA 2020
and 245 WDA 2020, respectively. In a per curiam order, this Court ordered
that the aforementioned four appeals be listed consecutively before a single
merits panel. See Per Curiam Order, 2/26/20. We consolidate these appeals
for purpose of disposition.
4CYF raises identical issues in its appeals pertaining to Father (242 WDA 2020)
and Mother (243 WDA 2020). We reproduce these issues in tandem and
address them collectively as to both Father and Mother.
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physical abuse in [Parents’] care when he was only six
weeks old; [Mother and Father, each,] pleaded guilty to []
endangering [the] welfare of [S.C.]; [Mother and Father]
refused to take any responsibility for [S.C.’s] injuries; [S.C.]
remains in foster care after two years; and [Mother and
Father were] found to be minimally compliant with [their]
permanency plan just three weeks before the contested
termination hearing?
[2.] Whether the trial court erred and/or abused its discretion by
finding that termination [of parental rights] does not [best]
serve [S.C.’s] needs and welfare under 23 Pa.C.S.[A.]
§ 2511(b) where [S.C.] sustained significant physical
injuries at six weeks of age when he was in the care of
[Parents]; was removed from [Parents’] care at age six
weeks and has remained in the care of [Grandparents] ever
since; shows signs of secure attachment to [Grandparents];
and has only had supervised contact with [Parents] since he
was removed?
KidsVoice Brief at 5.5
In matters involving involuntary termination of parental rights, our
standard of review is well-settled.
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re [] S.P., 47 A.3d 817, 826 (Pa. 2012). “If
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5KidsVoice raises identical issues in its appeals pertaining to Mother (244 WDA
2020) and Father (245 WDA 2020). We reproduce these issues in tandem
and address them collectively as to both Mother and Father.
Moreover, because CYF’s and KidsVoice’s first and second issues raise the
same challenges to the trial court’s denial of the termination petition, namely
that the trial court erred in finding CYF did not satisfy its burden of proof
pursuant to Section 2511(a)(2), (a)(5), (a)(8), and (b), we address each
parties’ issues in tandem.
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the factual findings are supported, appellate courts review to
determine if the trial court made an error of law or abused its
discretion.” Id. “A decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill will.” Id. The
trial court’s decision, however, should not be reversed merely
because the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (original brackets omitted). “[T]he
trial court is free to believe all, part, or none of the evidence presented, and
is likewise free to make all credibility determinations and resolve conflicts in
the evidence.” In re Q.R.D., 214 A.3d 233, 239 (Pa. Super. 2019) (citation
omitted). “If competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re B.J.Z.,
207 A.3d 914, 921 (Pa. Super. 2019) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, which requires a bifurcated analysis of the grounds for
termination followed by an assessment of the needs and welfare of the child.
Our case law has made clear that under Section 2511, the [trial]
court must engage in a bifurcated process prior to terminating
parental rights. 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 [trial]
court determines that the parent’s conduct warrants termination
of his or her parental rights does the [trial] 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
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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 permanently severing any such
bond.
B.J.Z., 207 A.3d at 921 (citation omitted, emphasis added). We have defined
clear and convincing evidence as that which is “so clear, direct, weighty, and
convincing as to enable the trier[-]of[-]fact to come to a clear conviction,
without hesitance, of the truth of the precise facts in issue.” In re Z.P., 994
A.2d 1108, 1116 (Pa. Super. 2010) (citation omitted). A child has a right to
a stable, safe, and healthy environment in which to grow, and the “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 I.J., 972 A.2d 5, 9
(Pa. Super. 2009).
Here, CYF and KidsVoice appeal the trial court’s determination under
Sections 2511(a)(2), (a)(5), and (a)(8). Sections 2511(a)(2), (a)(5), and
(a)(8) provide as follows:
§ 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:
...
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
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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.
23 Pa.C.S.A. §§ 2511(a)(2), (a)(5), and (a)(8).
In order to terminate parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(2), the following three elements must
be met: (1) repeated and continued incapacity, abuse,
neglect or refusal; (2) such incapacity, abuse, neglect or
refusal has caused the child to be without essential parental
care, control or subsistence necessary for his [,or her,]
physical or mental well-being; and (3) the causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied.
In re [] M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity
that cannot be remedied are not limited to affirmative misconduct.
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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, 337 (Pa. Super. 2002) (citations omitted).
In re C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015).
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 well-being. 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 intervention is intended to protect. This
is particularly so where disruption of the family has already
occurred and there is no reasonable prospect for reuniting it.
Z.P., 994 A.2d at 1117 (citation omitted). “[W]hen a parent has
demonstrated a continued inability to conduct his[, or her] life in a fashion
that would provide a safe environment for a child, whether that child is living
with the parent or not, and the behavior of the parent is irremediable as
supported by clear and competent evidence, the termination of parental rights
is justified.” Id. at 1118 (citation omitted). “A parent's vow to cooperate,
after a long period of uncooperativeness regarding the necessity or availability
of services, may properly be rejected as untimely or disingenuous.” Id.(citation and original quotation marks omitted).
“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
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exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” Id.To terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(8), the following factors must be demonstrated: (1) the
child has been removed from parental care for 12 months or more
from the date of removal; (2) the conditions which led to the
removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child. Section 2511(a)(8) sets a 12-month time
frame for a parent to remedy the conditions that led to the
[child's] removal by the [trial] court. Once the 12-month period
has been established, the [trial] court must next determine
whether the conditions that led to the child's removal continue to
exist, despite the reasonable good faith efforts of the [a]gency
supplied over a realistic time period. Termination under Section
2511(a)(8) does not require the [trial] court to evaluate a parent's
current willingness or ability to remedy the conditions that initially
caused placement or the availability or efficacy of [a]gency
services.
Id. (original quotation marks, original brackets, and some citations omitted).
Section 2511, in “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[, or her,] parental rights
terminated.” Id. (citation and original quotation marks omitted).
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[, or
her,] ability, even in difficult circumstances. A parent must utilize
all available resources to preserve the parental relationship, and
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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.
Id. at 1119. (citation and original brackets omitted).
We begin our analysis by identifying the precise basis for the trial court’s
refusal to terminate parental rights. The order denying the termination
petition stated, “[CYF] has not met its burden of proof by clear and convincing
evidence that grounds exist for termination of parental rights” of both Mother
and Father. Trial Court Order, 1/21/20. Despite having found that CYF failed
to establish grounds for the involuntary termination of parental rights under
Section 2511(a), the trial court, nonetheless, proceeded to find that
termination of parental rights “does not serve the needs and welfare of the
child” pursuant to Section 2511(b). Id. This apparent inconsistency carried
over to the trial court’s Rule 1925(a) opinion, which stated:
Based upon the evidence presented, [the trial] court found that
[CYF] met its burden as it related to 23 Pa.C.S.A. § 2511(a)(2)
only. "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 and mental
well-being". In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008).
"Parents are required to make diligent efforts towards the
reasonabl[y] prompt assumption of full parental responsibilities.
A parent's vow to cooperate, after a long period of
uncooperativeness regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous".
In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002). [Here, S.C.]
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came into [CYF’s] care after he suffered serious injuries [while] in
the care of [Parents]. [Parents] and the maternal grandmother
were the only caregivers for [S.C.] at the time he sustained these
injuries. Despite pleading guilty to criminal charges relating [to]
these injuries, [Parents] have never taken responsibility for
causing the injuries. As Dr. O'Hara noted, "there is no way to
address any sort of underlying issue that would have contributed
to these injuries without anyone acknowledging what has
happened". Without a plausible explanation, there is no way to
ensure that [S.C.’s] present and future need for essential parental
care, control or subsistence necessary for his physical and mental
well-being will be met.
Trial Court Opinion, 4/24/20, at 11-12 (extraneous capitalization omitted).
It is well-settled under Pennsylvania law that the trial court’s analysis
under Section 2511(b) is only necessary if grounds for termination exist under
Section 2511(a). See B.J.Z., 207 A.3d at 921 (stating, “[o]nly if the [trial]
court determines that the parent’s conduct warrants termination of his or her
parental rights does the [trial] court engage in the second part of the analysis
pursuant to Section 2511(b)”). Because the trial court in the case sub judice
analyzed the needs and welfare of S.C. pursuant to Section 2511(b), it
logically follows that the trial court found that CYF met its burden of proof
under Section 2511(a)(2) as expressed in its Rule 1925(a) opinion. CYF and
KidsVoice agree that the trial court properly determined that CYF met its
burden of proof for termination of both Mother’s and Father’s parental rights
pursuant to Section 2511(a)(2). See CYF’s Brief at 21-22; see also
KidsVoice’s Brief at 41-42.
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“This Court need only agree with the trial court’s decision as to any one
subsection [of Section 2511(a)] in order to affirm the termination of parental
rights.” In re A.S., 11 A.3d 473, 478 (Pa. Super. 2010) (citation, original
brackets, and original quotation marks omitted). Accordingly, we focus our
review in the case sub judice on Section 2511(a)(2).
Here, a review of the termination petition reveals that CYF became
involved with Parents in November 2017, over concerns that S.C., a
six-week-old infant, sustained serious physical injuries synonymous with child
abuse. See Petition for Involuntary Termination of Parental Rights, 5/15/19,
at ¶8. Dr. Eichman, an expert in pediatric medicine with a specialty in child
abuse, diagnosed S.C.’s injuries during an examination at CHP on November
20, 2017. N.T., 12/6/19, at 173. Parents took S.C. to CHP the preceding day
after discovering that S.C. was vomiting blood. Id. at 173 and CYF Exhibit 6.
Upon her examination of S.C., Dr. Eichman stated that S.C. suffered injuries
inside his mouth due to trauma, fractures of both his legs, and bruising to
both sides of his jaw and his lower back. Id. at 171, 173-174; see also id.
at CYF Exhibit 6 (stating, S.C. suffered acute bucket-handle fractures of both
legs compatible with non-accidental trauma and, in and of themselves, nearly
diagnostic of physical child abuse). S.C. at the time of the evaluation was six
weeks old. Id. at 180. Dr. Eichman reported that, Parents “denie[d] trauma
to [S.C.] but [they] wondered whether [S.C.’s] leg fractures could have been
sustained during a diaper change.” Id. at 174. Dr. Eichman stated that,
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Parents’ explanations “did not account for [S.C.’s] injuries, and there was no
acknowledgement on the part of [Parents] of abuse or causation.” Id. at 187.
Dr. Eichman’s medical diagnosis, given to a reasonable degree of medical
certainty, was that S.C. was “the victim of physical child abuse.” Id. at 176,
180. Dr. Eichman proffered that due to the history of a bruise on S.C.’s leg
from several weeks prior, Dr. Eichman was “very concerned that [S.C.] had
been abused more than once.” Id. at CYF Exhibit 6. When asked about the
pain S.C. suffered due to the abuse, Dr. Eichman stated that at the time the
fractures to both of S.C.’s legs occurred, S.C. would have suffered “substantial
pain.” Id. at 176. The injuries to S.C.’s mouth and the bruising on his jawline
and lower back also would have caused S.C. pain. Id. Dr. Eichman opined
that generally speaking, when a child has been physically abused and there is
no explanation for the abuse, there is concern that without some sort of
intervention, and if the violence goes unchecked, the violence would escalate
and the child could sustain worsening injuries during subsequent episodes of
abuse. Id. at 180.
CYF obtained emergency custody of S.C. because S.C.’s safety could not
be ensured while in the care of Parents due to Parents’ refusal to provide a
plausible explanation as to the causation of S.C.’s injuries. See Petition for
Involuntary Termination of Parental Rights, 5/15/19, at ¶10. On February 4,
2019, Parents pleaded guilty to one count each of endangering the welfare of
a child, S.C. Id. at CYF Exhibits 3 and 4. Parents’ convictions stemmed from
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the significant injuries S.C. sustained, the causation of which Parents were
unable to explain. Id. Since his removal from Parents’ care, S.C. has
remained in placement because both Mother and Father failed to successfully
complete the goals established in a Family Plan and as ordered by the trial
court, including, inter alia, participation in anger management counseling.
See Petition for Involuntary Termination of Parental Rights, 5/15/19, at
¶¶9-12.
The CYF case supervisor stated that CYF continued to have concerns
about the safe parenting of S.C. because Parents did not provide an
explanation of how S.C. sustained the significant injuries. N.T., 12/6/19, at
33, 41, 49-50. Due to CYF’s concerns, neither Mother nor Father has had
unsupervised visitation of S.C. since S.C. was removed from their care. Id.
at 48, 52. CYF observed that S.C. is “very comfortable” living with
Grandparents, and S.C. “seems very bonded to his caretakers.” Id. at 53.
Grandparents are nurturing of S.C., show him love, and meet his educational,
psychological, and developmental needs. Id. When asked why the parental
rights of Mother and Father should be terminated as to S.C., CYF explained,
[S.C.] has been in [CYF] care for almost his entire life. He has
been cared for appropriately by [Grandparents]. There has never
been any plausible explanation given to [CYF] about how he
sustained these very concerning injuries at such a young age, and
[CYF] does not believe that there would be any way to safely
reunify him with his parents and he deserves permanency.
Id. at 57-58.
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Dr. O’Hara stated that, Mother reported “having no choice with respect”
to pleading guilty to endangering the welfare of S.C. and denied ever
endangering S.C. Id. at 196. Dr. O’Hara stated that Father pleaded guilty to
endangering the welfare of S.C. and continued to provide no explanation of
how S.C.’s injuries occurred and assumed no responsibility for the injuries.
Id. at 199-200. Dr. O’Hara’s foundational concern in the instant case was
that there was no explanation provided as to how S.C. sustained the
significant injuries. Id. at 196. Dr. O’Hara opined that, there is “no way to
address any sort of underlying issue that would have contributed to [S.C.’s]
injuries without [Parents] acknowledging” how the injuries occurred. Id.
Parents’ underlying issues, Dr. O’Hara explained, included anger management
issues, low frustration tolerance, and impulsivity. Id. Dr. O’Hara stated that
it is important for Parents to acknowledge responsibility for the abuse because
it can then be determined if Parents are capable of making the necessary
changes, i.e. seek the necessary treatment and develop the necessary
parenting skills, to care for S.C. in the future. Id. at 201. The three factors
that lead to child abuse, according to Dr. O’Hara, are (1) the inability to handle
one’s own presentation, (2) the inability to handle the child’s presentation,
and (3) the bond that exists between the caregiver and the child. Id. at
201-202. Dr. O’Hara expressed that, “it's important to acknowledge
responsibility in these cases so that the actual issues that contributed to the
injuries can be sufficiently addressed.” Id. at 203. Dr. O’Hara conveyed a
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great deal of concern over Parents’ lack of prioritizing their anger management
treatment and their continued lack of acknowledgement of responsibility for
S.C.’s injuries or an explanation of how the injuries occurred. Id. at 204. The
effectiveness of Parents’ anger management treatment was limited, according
to Dr. O’Hara, because neither Parent acknowledged any responsibility for
S.C.’s injuries. Id. at 221. Dr. O’Hara proffered that, “[he] would have some
level of concern about [Parents having] unsupervised contact [with S.C.,]
especially if the anger management [treatment] hasn’t been completed.” Id.
at 205. Dr. O’Hara recommended that Parents complete four to five months
of weekly anger management treatment. Id. The executive director of Family
Services of Beaver County testified that Parents completed a six-week anger
management treatment program over the course of eight months and then
returned for a few additional treatment sessions.6 Id. at 134, 147. Dr. O’Hara
stated that, in his opinion, neither Parent complied with the recommendations
for anger management treatment. Id. at 206. To illustrate his concern, Dr.
O’Hara explained that in his most recent evaluation of Mother, Mother stated
____________________________________________
6 The executive director testified that Mother participated in anger
management treatment sessions on April 8, 2019, May 16, 2019, July 2, 2019,
September 12, 2019, October 21, 2019, November 14, 2019, November 20,
2019, November 25, 2019, and December 2, 2019. N.T., 12/6/19, at 134,
147, and CYF Exhibit 5. She testified that Father participated in anger
management treatment sessions on April 8, 2019, May 16, 2019, July 2, 2019,
October 15, 2019, November 14, 2019, November 25, 2019, and December
2, 2019. N.T., 12/6/19, at 134, 147, and CYF Exhibit 5.
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that, “[S.C.] will throw, hit hard, [and] his temperament is bad[.]” Id. at 229.
Dr. O’Hara stated that he felt Mother’s description of S.C. was “a huge
mischaracterization” and revealed Mother’s lack of comprehension of S.C.’s
development and personality dynamics. Id. Dr. O’Hara explained that it was
not uncommon for children within S.C.’s age group to demonstrate occasional
periods of mild aggression and that he was concerned about Mother’s
characterization of S.C.’s temperament as “bad.” Id.
Based upon a review of the record, we concur with the trial court that
CYF satisfied its burden of proof under Section 2511(a)(2). CYF demonstrated
with clear and convincing evidence that Parents repeatedly refused to provide
a plausible explanation of or take responsibility for S.C.’s injuries and failed to
complete anger management counseling. Parents’ refusal to provide an
explanation of the causation of the injuries, take responsibility for the injuries,
or complete anger management counseling made it impossible to determine
if Parents can provide a safe environment for S.C. Without an
acknowledgement of causation, acceptance of responsibility, or completion of
anger management treatment, Parents caused S.C. to be without essential
parental care necessary for his physical and mental well-being, including, inter
alia, providing a safe, secure, and nurturing environment in which to grow,
and Parents’ refusal to acknowledge causation, accept responsibility, or
complete the recommended anger management treatment has not been
remedied. Accordingly, we discern no error of law or abuse of discretion in
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the trial court’s termination of Mother’s and Father’s parental rights to S.C.
pursuant to Section 2511(a)(2). See Z.P., 994 A.2d at 1118 (holding,
termination of parental rights pursuant to Section 2511(a)(2) is justified when
Parents continue to conduct their lives in a fashion that provides an unsafe
environment for a child and parents refuse to remedy the behavior).
Once a trial court determines that involuntary termination of parental
rights is warranted under Section 2511(a), the trial court must engage in an
analysis pursuant to Section 2511(b) to determine whether termination is in
the best interests of the child. Section 2511(b) of the Adoption Act states,
§ 2511. Grounds for involuntary termination
...
(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.
23 Pa.C.S.A. § 2511(b).
As this Court has explained, “Section 2511(b) does not explicitly
require a bonding analysis and the term ‘bond’ is not defined in
the Adoption Act. Case law, however, provides that analysis of
the emotional bond, if any, between parent and child is a factor to
be considered” as part of our analysis. In re K.K.R.-S., 958 A.2d
529, 533 (Pa. Super. 2008). “While a parent's emotional bond
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with his or her child is a major aspect of the [Section] 2511(b)
best[-]interest analysis, it is nonetheless only one of many
factors to be considered by the [trial] court when determining
what is in the best interest of the child.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citing K.K.R.-S., 958 A.2d at
533-[5]36).
In addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have with the
foster parent. Additionally, this Court stated that the trial
court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
C.D.R., 111 A.3d at 1219 (Pa. Super. 2015) (emphasis added, original
brackets omitted); see also In re J.N.M., 177 A.3d 937, 943-944 (Pa. Super.
2018) (stating, that in performing a best-interest analysis pursuant to
Section 2511(b), the trial could should consider the parent-child bond, if any
exists, the safety needs of the child, intangibles, such as love, comfort,
security, and stability the child may have with the current caregiver, and the
importance of continuing any relationship the child may have with the
caregiver), appeal denied, 183 A.3d 979 (Pa. 2018).
Here, CYF argues that the trial court erred in denying the termination
petition “because, while termination may prove detrimental to S.C., the harm
is mitigated by his relationship with [Grandparents] and the safety that their
home provides.” CYF’s Brief at 40. CYF contends that the trial court failed to
properly consider the safety concerns if S.C. were returned to Parents’ care,
including, inter alia, that without Parents’ acknowledgement of responsibility
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or causation, the issues which lead to S.C.’s serious injuries remain
unaddressed. Id. at 33-40. CYF submits that the trial court focused, instead,
on the parent-child bond and did not consider S.C.’s safety. Id. at 33-40.
CYF asserts that the trial court further failed to consider S.C.’s bond with
Grandparents or the safe and nurturing environment Grandparents provided
S.C. and “chastise[d Grandparents] for identifying successor caregivers” in
the event they are unable to care of S.C. due to health considerations and
advancing age. Id. at 35-38.
KidsVoice argues that while the record supports a finding that S.C. had
a bond with Parents, the trial court erred in determining that maintaining this
parent-child bond was necessary and beneficial. KidsVoice’s Brief at 49.
Rather, KidsVoice contends, “there is no evidence that termination would
cause [S.C.] to suffer extreme emotional consequences” and S.C.’s secure
relationship with Grandparents would mitigate the impact of termination. Id.
at 49-50 (original quotation marks omitted). KidsVoice asserts that the trial
court “notably failed to consider [the] safety concerns if [S.C.] were returned
to the care of [Parents].” Id. at 52. KidsVoice submits that,
Although the trial court rightly found that Mother and Father “have
never taken responsibility for causing the injuries” to [S.C.] and
accepted Dr. O’Hara’s testimony that “there is no way to address
any sort of underlying issue that would have contributed to these
injuries without anyone acknowledging what has happened” in its
analysis of grounds for termination under Section 2511(a)(2) of
the Adoption Act, it failed to consider these facts in its needs and
welfare analysis. Throughout his testimony, Dr. O’Hara expressed
this “foundational concern,” yet the trial court ignored it entirely.
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Id. at 54-55 (record citation omitted).
In determining that CYF failed to demonstrate by clear and convincing
evidence that the termination of parental rights was in S.C.’s best interest
pursuant to Section 2511(b), the trial court recognized,
that the existence of a bond between a child and parent will not
necessarily result in a denial of a termination petition. Once it has
been determined that there is a bond, the [trial] court must
conduct further analysis in order to ascertain the nature of the
bond. Based upon the evidence presented, [the trial] court
determined that [S.C.] has a necessary and beneficial bond with
[Parents]. There has been no indication that the bond is an
unhealthy or pathological one. With respect to attachment, Dr.
O'Hara reported that [S.C.] "values" his relationship with
[Parents] and has benefited from it. He reported that there were
several indications that [S.C.] had a secure attachment with
[Parents]. He opined that [S.C.] will suffer negative consequences
if his relationship with [Parents] were to be severed. [Dr. O’Hara]
also opined that [S.C.] demonstrated several cues that he had a
secure attachment with [Grandparents]. Dr. O'Hara testified that
there would be "a lot of positives" if [S.C.] was adopted by
[Grandparents]. When asked about mitigating the negative
consequences of termination, Dr. O'Hara concluded that there was
literature to support [the] notion that children who experience
security and attachment with at least one caregiver are able to
handle stress better than those who do not. But he was unable
to give an ultimate opinion about whether termination of
Mother[’s] and Father's parental rights would best suit the needs
and welfare of [S.C.] The testimony of Dr. O'Hara gave the [trial]
court pause as it was clear that [S.C.] would suffer psychological
harm if he could not continue his relationship with [Parents]. Dr.
O'Hara's contention that [S.C.] may be able to handle the stress
better because he displayed indications of a secure bond with
[Grandparents] was not compelling. The [trial] court had
concerns about [Grandparents] being a long-term placement.
They have already made arrangements for alternative caregivers
should their health prohibit them from doing so[.]
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Trial Court Opinion, 4/24/20, at 15-16.
A review of the trial court’s analysis pursuant to Section 2511(b)
demonstrates that the trial court failed to consider the safety needs of S.C.,
as well as the love, comfort, security, and stability Grandparents provide S.C.,
and the importance of continuing S.C.’s relationship with Grandparents.
Instead, the trial court focused overwhelmingly on the parent-child bond. See
Trial Court Opinion, 4/24/20, at 12-16 (stating, “[t]he best[-]interests
analysis includes many factors that the court must consider[,] [m]ost notably,
the bond that exists between the child and the parent”). While this Court does
not minimize the importance of considering the bond a child shares with a
parent, our case law makes clear that the parent-child bond, if one exists, is
only one of many factors that must be considered by the trial court in
determining whether termination of parental rights is in the child’s best
interest. See C.D.R., 111 A.3d at 1219; see also J.N.M., 177 A.3d at
943-944.
When asked about the bond S.C. exhibited with Parents and with
Grandparents, Dr. O’Hara expressed that S.C. showed similar reactions to
both sets of individuals (Parents and Grandparents) indicating that he had a
similar attachment to each set of individuals.7 See N.T., 12/6/19, at 209-211.
____________________________________________
7Dr. O’Hara explained that, a “bond refers to the relationship a caregiver has
with a child [while an] attachment refers to the child’s relationship with the
caregiver.” N.T., 12/6/19, at 209.
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In demonstrating his attachment to Parents, as well as to Grandparents, S.C.
smiled, laughed, was playful and interactive, and showed affection. Id. at
210. Dr. O’Hara expressed that there would be a detriment to S.C. if his
relationship with any of the parties involved, Mother, Father, or Grandparents,
was terminated, but a child who experiences security, such as the security
that S.C. experienced with Grandparents, would be able to handle the stress
better. Id. at 213-214, 243. Although Dr. O’Hara recognized that S.C.
benefited from his attachment with Parents, Dr. O’Hara’s foundational concern
remained that S.C. “sustained substantial injury in [Parents’] care, and [there
has] been no explanation as to what actually happened[.]” Id. at 214, 243.
Dr. O’Hara, in making his recommendation as to the best interest of S.C.,
stated, “I do think that there would be benefit and advantages for [S.C.] if he
were to be adopted by [Grandparents].” Id. at 215, 255-256.
This Court does not minimize the trial court’s assessment that S.C.
exhibited an attachment with both Mother and Father and that the parent-child
bond must be considered in determining the needs and welfare of S.C. The
record demonstrates that S.C. has a similar attachment with Mother, Father,
and Grandparents, and that S.C. will suffer some detriment if any of these
bonds are terminated. However, the parent-child bond, or caregiver-child
bond, is only one factor of consideration. In the instant case, it is axiomatic
that S.C.’s bond with Parents comes with limitations given that S.C. was
removed from Parents’ care at six weeks of age and had been in the care of
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Grandparents for the past two years, with only supervised visitation with
Parents. S.C.’s physical safety prompted his removal from the care and
custody of Parents and the trial court abused its discretion and erred as a
matter of law in failing to consider this factor in conducting its best-interest
analysis. Dr. O’Hara expressed concerns about returning S.C. to Parents
because Parents failed to acknowledge any responsibility for the significant
injuries S.C. sustained or to provide a logical explanation regarding causation.
Even after attending anger management treatment, albeit less than Dr.
O’Hara’s recommended treatment regimen, and after pleading guilty to
endangering the welfare of S.C., neither Mother nor Father acknowledged
responsibility for S.C.’s injuries or explained how S.C. suffered, inter alia,
internal injuries to his mouth, bruising to his jawline and lower back, and
fractures in both his legs, which were indicative of physical child abuse.
Furthermore, the trial court erred in failing to consider the love, stability, and
security provided to S.C. by Grandparents, who have cared for and nurtured
S.C. from the time he was six weeks old.
When all essential best-interest factors are considered pursuant to
Section 2511(b), CYF presented clear and convincing evidence that it was in
S.C.’s best interest to terminate the parental rights of Mother and Father.
Consequently, we vacate the trial court’s order denying the termination
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petition and remand this case with the instruction that the trial court enter an
order terminating the parental rights of both Mother and Father.8
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2021
____________________________________________
8 In light of our decision herein, we do not address CYF’s final issue.
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