J-A23014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: E.D.A., III, A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : : APPEAL OF: T.M.A., MOTHER : No. 755 MDA 2022
Appeal from the Decree Entered April 20, 2022 In the Court of Common Pleas of York County Orphans’ Court at No(s): 2022-0008a
IN THE INTEREST OF: E.J.A., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : : APPEAL OF: T.M.A., MOTHER : No. 756 MDA 2022
Appeal from the Decree Entered April 20, 2022 In the Court of Common Pleas of York County Orphans’ Court at No(s): 2022-0009a
IN THE INT. OF: R.M.A., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: T.W.A., MOTHER : No. 757 MDA 2022
Appeal from the Decree Entered April 20, 2022 In the Court of Common Pleas of York County Orphans’ Court at No(s): 2022-0010a
IN THE INT. OF: A.B.A., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: T.W.A., MOTHER : No. 758 MDA 2022
Appeal from the Decree Entered April 20, 2022 In the Court of Common Pleas of York County Orphans’ Court at No(s): 2022-0019a J-A23014-22
IN THE INTEREST OF: B.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : : APPEAL OF: T.W.A., MOTHER : No. 759 MDA 2022
Appeal from the Decree Entered April 20, 2022 In the Court of Common Pleas of York County Orphans’ Court at No(s): 2022-0007a
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY McCAFFERY, J.:
FILED DECEMBER 14, 2023
Respectfully, I disagree with the Majority’s conclusion that the orphans’
court decision to terminate Mother’s parental rights, as to all five Children,1
was not an abuse of discretion. Instead, I would conclude the orphans’ court,
which was in agreement that both Parents have successfully complied with
drug treatment, did not address the consistent testimony by multiple service
providers across several hearings, including the termination proceedings, that
both Parents have been in compliance with their housing, parenting, and
mental health goals. My rationale is not that the court erred in accepting the
testimony of one witness over other evidence, but rather that the court failed
to address extensive testimony that was in direct contradiction of the
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 As two children have the initials, “E.A.,” I will refer to E.A., III, as “Ed.A.”
and E.A. as “El.A.”
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testimony it cited. In light of this incomplete review, I would disagree there
was clear and convincing evidence to support termination of “one of the oldest
fundamental rights protected by the Due Process Clause’ of the Fourteenth
Amendment.”2 Thus, I dissent.
The Majority aptly summarizes that at the time the five Children were
adjudicated dependent,3 CYF’s concerns were both Parents’ drug abuse,
mental health, parenting skills, financial stability, and home environment.
See Memorandum Opinion in Support of Order Pursuant to Rule 1925(a)(2)(ii)
of the Pennsylvania Rules of Appellate Procedure, 6/17/22 (Trial Ct. Op.,
6/17/22), at 7-8.
Although Mother’s instant appeal lies from the April 20, 2022,
termination order, I consider the evidence, adduced at hearings within the five
months preceding that decision, to be relevant.
I. November 10, 2021, Status Review Hearing
2See K.W. v. S.L., 157 A.3d 498, 502-03 (Pa. Super. 2017) (citation omitted).
3 The four older children were adjudicated dependent on September 16, 2020.
At that time, their ages were approximately: B.W., six; Ed.A., five; R.A., two; and El.A., one. A.A. was born thereafter, in June of 2021, and adjudicated dependent almost two weeks later, on July 12, 2021.
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First, at a status review hearing on November 10, 2021,4 Parents
averred the criminal investigation of their alleged abuse — for which CYF
received a referral 10 months earlier — was “ongoing” but had “gone
nowhere[.]” N.T., 11/10/21, at 8-9. The orphans’ court directed CYF to
conduct an independent investigation and provide a finding of “indicated” or
“unfounded” by the next hearing in three months’ time.5 Id. at 8-9; Status
Review Order, 11/10/21.
Jessica Myers, a family therapist with Pressley Ridge, testified Parents’
housing was appropriate. N.T., 11/10/21, at 23. Although there was a
damaged ceiling, Parents were working with their landlord to repair it. Id. at
27. Parents reported their rent was paid through January. Id. I note Parents
have lived in the same five-bedroom apartment rental since October of 2020.
N.T., 4/1/22, at 199. Ms. Myers further testified that a family advocate
developed a family budget, and both Parents were “very independent in
4 CYF caseworker Kristen Marshall did not testify at this hearing. Furthermore, I note that at this time, R.A. and El.A. lived together in kinship foster placement with D.V., their paternal grandmother. See N.T., 4/1/22, at 17, 216. The other three children — B.W., Ed.A., and A.A. — were living with another foster family, but shortly after the November 10, 2021, hearing, they moved to D.V.’s home so that the siblings would stay together. Id. at 216; N.T., 11/10/21, at 7-8.
5 CYF additionally reported that on October 19, 2021, Father entered a no contest plea to disorderly conduct. N.T., 11/10/21, at 59. This charge arose from “fighting” and Father received a sentence of 12 months’ probation. Status Review Order for B.W., 11/10/21, at 2.
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searching for new employment.” N.T., 11/10/21, at 35-36. Father was
employed through People Ready and he provided payment history for three
pay periods. Id. at 35, 37, 62.
The following testimony about visitation was presented. Parents
attended all visits and had never cancelled. N.T., 11/10/21, at 50. Ms. Myers,
who supervised three visits, testified “[P]arents are progressing appropriately”
and showed “positive changes.” Id. at 24. Michelle Mahoney, a family
advocate with Pressley Ridge, also supervised visits and testified that
generally, the visits were going well. N.T., 11/10/21, at 47-48. In earlier
visits, Mother “was not consistent with her boundary setting” or
consequences, but since participating in family therapy, she had improved,
and the Children’s behaviors improved as a result. Id. at 48. Jessica Weymer,
another family advocate with Pressley Ridge, supervised the visits with respect
to A.A. (then five months old) only, and she did not have any concerns with
Parents’ visits. Id. at 55. Ms. Mahoney and Karen Rose, a CYF caseworker
supervisor, both recommended increased visitation and moving visits into the
community. Id. at 53, 59-60. The Children’s guardian ad litem, David
Worley, Esquire (GAL), agreed with these recommendations. Id. at 64.
Ms. Myers testified Parents each have a therapist through True North,
and Mother had a drug and alcohol counselor through Pyramid Healthcare.
N.T., 11/10/21, at 28. With respect to drug treatment, Mother’s recovery
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specialist, Janelle Wiland, testified Mother was compliant.6 Id. at 57.
Previously, Father was taking five milligrams of methadone, then took one
milligram for one day, and chose to stop. Id. at 63-64. He was successfully
discharged from methadone treatment on November 8, 2021. Id. at 28-29.
At the conclusion of this hearing, the orphans’ court commented
positively on both Parents’ progress:
. . . I think [Father’s attorney] said it very well[, that Father was complying with the objectives.] You want to put a team in place. You want to see them do their thing and you want to see the [P]arents cooperate. So far these [P]arents have done that. And this case is headed in the right direction. I’m pleased. Please keep up the good work.
N.T., 11/10/21, at 64. The court scheduled the next hearing for January 11,
2022. Id. at 66.
II. December 27, 2021, CYF Report
Meanwhile, on December 27, 2021, CYF caseworker Kristen Marshall
filed a report,7 which concluded — contrary to the evidence at the status
hearing approximately seven weeks earlier —that Mother and Father made
“[m]inimal progress” under the permanency plan. CYF Report at 2, 4. The
report acknowledged both Parents “typically . . . maintain contact with” CYF
6 Ms. Wiland also testified at the April 1, 2022, termination hearing, going by
her now married surname, Kelley. N.T., 4/1/22, at 172.
7 Caseworker Marshall filed five nearly identical reports — one for each child.
For ease of discussion, I refer to these in the singular.
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and service providers, but stated they were “unresponsive to” Caseworker
Marshall’s email messages, sent on December 21, 22, 23, and 27, seeking to
schedule an interview for the outstanding CPS investigations. Id. at 2.
The CYF report further alleged the following. The paystubs presented
by Parents lacked identifying information; Parents also failed to provide proof
that rent and bills were paid, bank statements, their driver licenses, vehicle
registrations, and proof of insurance. CYF Report at 2-5. Parents visited “the
kinship home unannounced five or six times,” and purchased $300 Apple iPads
for the four older children for Christmas. Id. at 3, 5. Finally, the CYF report
stated that petitions for the involuntary termination of Parents’ rights were “in
the process of being filed.” Id. at 7. Nevertheless, CYF recommended “a
continued primary goal of Reunification and a concurrent goal of Adoption.”
Id. at 8.
III. January 11, 2022, Permanency Review Hearing
The orphans’ court conducted the next permanency review hearing on
January 11, 2022. Despite the fact that CYF had not filed any petition for a
goal change and, again, its report filed two weeks earlier recommended a
continued primary goal of reunification, the orphans’ court changed the
primary goal to adoption at the end of this hearing.8 N.T., 1/11/22, at 49. As
8 Both Parents have appealed from the goal change orders: Mother at Superior
Court Dockets 295 through 299 MDA 2022 and Father at Dockets 201 through 205 MDA 2022. Those appeals remain pending.
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this hearing predated the filing of the termination petitions by less than two
weeks, and the termination orders by a mere three months, I review this
proceeding in detail.
First, CYF reported it found both Mother and Father indicated as
perpetrators of physical abuse against both El.A. and B.W. N.T., 1/11/22, at
7. The parties acknowledged that a finding of abuse hearing was scheduled
for March 10, 2022. Id. at 5.
Following these introductory remarks by the parties, the orphans’ court
commented that “with the exhibits that we already have and so forth,
[including Caseworker Marshall’s report,] we really don’t need to hear any
testimony[.]” N.T., 1/11/22, at 7. Mother’s attorney protested, and the court
permitted examination of Caseworker Marshall. Id. at 8.
Caseworker Marshall testified to all of the following: although Parents
have made “moderate” progress with their drug treatment, CYF had not
observed the “stability needed for five children in the home.” N.T., 1/11/22,
at 10. “[P]artial visitation has still not been recommended,” and when she
observed one visit the prior July, it was “chaotic without appropriate
boundaries . . . in disciplining and cleaning up and the [C]hildren fighting.”
Id. at 10, 15-16. Furthermore, Father failed to provide proper documentation
for his employment. N.T., 1/11/22, at 14. Although Caseworker Marshall
received bank statements from Pressley Ridge family advocate Yashira
Luciano, some portions were “blacked out.” Id. at 19. In any event, the
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documents received did not “align with the proposed budget,” and the electric
or gas bill had a balance of $1,796.14. Id. at 20.
The testimony of the other witnesses at this hearing, however, was that
Parents were successfully complying with their goals. Ms. Luciano testified
that the previous night, she inspected Parents’ home and concluded it was
appropriate, and opined Parents achieved the goal of having appropriate
housing. N.T., 1/11/22, at 24-25, 23-25, 30. Ms. Luciano further stated: she
prepared a family budget; Parents were in programs for paying the electric
and gas bills; and the landlord provided her with a receipt showing rent was
paid. N.T., 1/11/22, at 26, 28. Mother showed Ms. Luciano documentation
of salary deposits to her bank account. Id. at 29. Ms. Luciano sent
Caseworker Marshall the financial information that was requested, and
explained, “The items that were blacked out . . . were not related to
employment that needed to be verified.” Id. at 26-27. Significantly, Ms.
Luciano recommended that her services come to a successful end: “The family
no longer needs advocacy. There are no other concerns or needs that the
family would need to complete.” Id. at 25.
Nicole Lam, Mother’s drug and alcohol counselor at Pyramid, testified
Mother was meeting the expectations of her treatment and her “[p]rognosis
is very good.” N.T., 1/11/22, at 34. However, in September of 2021, Ms.
Lam had an hour-and-a-half telephone conversation with Caseworker
Marshall. Id. Ms. Lam “found a lot of [Caseworker Marshall’s] comments to
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be bias[ed], often derogatory, unprofessional,” and “[v]ery stigmatized[.]”
Id. at 35. For example, Caseworker Marshall made “generalizations
concerning . . . addicts,” stated Mother was “lazy” and “uses that as an excuse
to relapse,” and speculated that Parents were involved in “drug deals.” Id.
Ms. Lam disagreed with this portrayal of Mother, and she had no concerns
with Mother’s compliance with her drug program. Id.
Pressley Ridge family therapist Jessica Myers, testified that at visits,
Parents have been providing “more structure and boundaries” and showing
“much more consistent follow through[.]” N.T., 1/11/22, at 37. Ms. Myers
opined that moving the visits to Parents’ home would be appropriate if the
family were on track to reunification. Id. at 40. However, in light of CYF’s
indication it would file a termination petition, Ms. Myers would not recommend
visits in the home. Id. at 39-40, 41.
At the conclusion of the hearing, the orphans’ court agreed with the
GAL’s oral recommendation to “flip the goals.” N.T., 1/11/22, at 49. The
court thus amended the primary goal to adoption, with a concurrent goal of
reunification. Id. Shortly thereafter, on January 19 and 27, 2022, CYF filed
petitions to terminate Parents’ parental rights.
Meanwhile, on March 10, 2022, the orphans’ court conducted the finding
of abuse hearing. It heard testimony that B.W. disclosed, inter alia, that he
and El.A. were “being beat” and slapped, sometimes with a belt. See N.T.,
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3/10/22, at 12. The court rendered a finding that both Father and Mother
were perpetrators of abuse against B.W. and El.A.9 Id. at 53-54.
IV. April 2022 Termination of Parental Right Hearings
Finally, with respect to the April 1 and 18, 2022, termination hearings,
while the orphans’ court and Majority have reviewed the testimony of
Caseworker Marshall, I consider in detail the testimony of the other witnesses.
First, it was reiterated that Father was successfully discharged from the drug
program. N.T., 4/1/22, at 26-27. Mother was also successful in her drug
treatment. Id. at 173.
Ms. Lam, Mother’s Pyramid drug and alcohol counselor, testified to the
following. She has been working with Mother for more than a year, and
Mother has produced “negative” drug tests for 19 months. N.T., 4/1/22, at
30-31. Although she is not required to, Mother attends almost weekly
sessions, in addition to a weekly “advanced outpatient” program. Id. at 31.
Since September of 2021, Mother has been consistently taking 45 milligrams
of methadone, her progress was “[v]ery good,” and Ms. Lam had no concerns
“at all” about Mother’s drug usage. Id. at 31, 35, 38.
9 As the Majority notes, both Parents appealed from this abuse finding. On December 28, 2022, this Court affirmed as to Mother (Dockets 545 & 546 MDA 2022) and on August 28, 2023, this Court affirmed as to Father (Dockets 117 & 118 MDA 2023).
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Ms. Lam again testified, as she did at the January 11, 2022, hearing,
about “biased” statements made by Caseworker Marshall in a conversation in
September of 2021. N.T., 4/1/22, at 33. Caseworker Marshall “kept
mentioning that she thought there was ongoing drug use, even though [Ms.
Lam] confirmed [Mother] has been compliant in all aspects of her treatment.”
Id. at 34. Ms. Lam described this conversation as “[c]onfusing” and appearing
to focus on how the Parents were failing, rather than how they could assist
them.10 Id. at 32-33.
With respect to visits, Ms. Mahoney, the Pressley Ridge family advocate,
testified that visitation increased in September of 2021. N.T., 4/1/22, at 52.
The family therapist, Ms. Myers, worked with Parents on parenting skills and
managing the Children’s behaviors, and both Parents have made
“tremendous” progress. Id. at 56, 70. See also id. at 78. Ms. Mahoney
10 Additionally, CYF caseworker Patrick Duggan briefly testified to the following. He began working with CYF approximately one month earlier, and specifically with Caseworker Marshall on Parents’ case one week earlier. See N.T., 4/1/22, at 134. Caseworker Marshall made “biased” comments to Mr. Duggan, such as, “[T]his family was trashy,” and Mother “was bitchy.” Id. at 136-38.
Following Mr. Duggan’s testimony, the orphans’ court stated that while it would reserve judgment as to the credibility of Caseworker Marshall, it understood that employees in the judicial system sometimes comment “about the dire nature of their jobs and the cases out of sheer frustration,” and it was “not going to let Ms. Marshall leave [the] courtroom thinking [the court found] she did . . . a terrible thing. They were words said in frustration.” N.T., 4/1/22, at 167-68.
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would feel comfortable with unsupervised visits, but due to the then-ongoing
abuse investigation, such visits were not permitted by the orphans’ court. See
id. at 62, 68. Additionally, Pressley Ridge generally does not conduct visits in
the family home if there is no “solid plan” for reunification, and here, they did
not “want to upset the [C]hildren by having visits in the home, if that’s not
where [they are] sure [the case is] headed.” Id. at 73.
With respect to the bonds between Children and Parents, Ms. Mahoney
also testified to the following. All the Children enjoy the time they spend with
Parents, and they feel safe around Father. N.T., 4/1/22, at 61, 63. At most
visits, B.W. articulates that he does not want the visits to end, and he tells his
parents, “I love you.” Id. at 59-60. R.A. is “particularly attached to
[M]other,” and while she also goes to Father, “she just tends to want to spend
time with [M]other.” Id. at 64-65. With respect to Ed.A., Ms. Mahoney did
not observe any indication he was fearful of or not comfortable with Parents.
Id. at 68. El.A. is “very attached” to Father, and is affectionate with both
Parents. Id. at 69.
Ms. Myers testified both B.W. and Ed.A. have a connection and healthy
relationship with both Parents. N.T., 4/1/22, at 97, 98. Both boys express
not wanting visits to end, and express frustration that they cannot see Parents
more often or go to other places with Parents. Id. at 99. R.A. and El.A. have
good relationships with Parents as well. Id. at 101-02. Both Parents share
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in caring for A.A.’s needs, including changing diapers, feeding him, and
holding and playing with him. Id. at 102.
Meanwhile, Caseworker Marshall, had observed one visit before the
filing of the termination petition filing — on June 23, 2021 — and one visit
thereafter, on February 16, 2022. See N.T., 4/18/22, at 25-26. She
acknowledged the oldest child, B.W., has a parental bond with Parents, he is
happy and excited to see them, and he has indicated he would like to be
reunited with Parents. Id. at 209, 218. She stated Ed.A., R.A., and El.A. all
similarly have a bond with Mother and Father, although these three Children
had not indicated to her whether they would like to reunite with Parents. Id.
at 210-11, 220-21; N.T., 4/18/22, at 37. Nevertheless, Caseworker Marshall
opined termination would not have any long-term, negative impact on any of
these Children. N.T., 4/1/18, at 238-39.
As stated above, Parents have been living in the same home since
October of 2020. N.T., 4/1/22, at 199. Caseworker Marshall conducted home
inspections on November 20 and December 24, 2020, and additionally
attempted to inspect the home on August 20, 2021, and January 10, 2022,
but was denied entry. N.T., 4/18/22, at 46-47. Caseworker Marshall, along
with her supervisor Karen Rose, made an unannounced home visit on March
24, 2022 — approximately one week before the first termination hearing.
N.T., 4/1/22, at 200. They observed: a “heavy” smell of animal feces and
urine; “piles” of animal feces in the trash can; a dog “peeing sporadically” in
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the house; space heaters throughout the house, including one atop a laundry
basket; and no sink in the only bathroom. Id. at 200-01, 203. With regard
to the ceiling in Parents’ bedroom, although there was a repair, there was still
“an active leak.” Id. at 201. Caseworker Marshall initially stated there was
no bed set for the youngest child, A.A., but on cross-examination, she
acknowledged there was a crib, but it had not been set up. Id. at 201; N.T.,
4/18/22, at 17. In sum, she opined Parents could not provide safe and
appropriate housing for the Children. N.T., 4/1/22, at 204.
Ms. Myers was re-called to the witness stand, and she testified she
visited Parents’ home five days earlier, on April 13, 2022, observed no safety
issues, and had no concerns with visitation being held in the home. N.T.,
4/18/22, at 130, 133-34. There was a strong odor of bleach on the first floor,
and Mother stated she had cleaned the kitchen. Id. at 131. On the second
floor, there was a smell of a litter box, but it was “not overpowering,” and on
the third floor, she could smell cat food. Id. Ms. Myers did not notice any pet
feces or urine, aside from the litter box, and there was a puppy pad, which
was not saturated in urine or feces. Id. at 132-33. The bathroom had a new
sink, with running hot and cold water. Id. at 132. Finally, Ms. Myers stated
both Parents were currently receiving mental health treatment from True
North, and she opined Parents did not need “new advocacy services.” Id. at
136-37.
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Finally, I review Parents’ testimony. Father stated he has been working
for one month as full-time as a flooring subcontractor. N.T., 4/18/22, at 95.
Prior to that, he worked one month at Wolfgang Candies through a temp
agency. Id. at 96-97. Before that, Father worked as a subcontractor for a
fence company for almost one year. Id. at 97. He stated that over the past
year, there were only a few days or a week that he did not work. Id. at 97.
Mother testified she has been working at a pizza restaurant for
approximately five weeks. See N.T., 4/18/22, at 148. Prior to that, she
worked at Wolfgang Candies for one month, along with Father, but they left
because the 12-hour shifts conflicted with their drug testing schedule. Id. at
148-49. Before that, Mother worked at FedEx for one month, but she had the
same 12-hour shift issue. Id. at 149. Mother also worked for Wonolo for one
month, and before that, she did not work as she was pregnant. Id. at 149-
50. Mother stated she informed the Pressley Ridge team of changes in her
employment and believed the information was forwarded to Caseworker
Marshall. Id. at 162. Mother also signed releases for Pressley Ridge to obtain
documentation of her rent and utilities. Id. In November of 2021, their
electricity was turned off, but Mother made a $90 payment and it was turned
on within 20 minutes. Id. at 163.
Both Parents testified they had mental health treatment through True
North, and they did not know they were discharged until the first termination
hearing on April 1, 2022. N.T., 4/18/22, at 99, 113, 152-53. They were
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discharged due to not completing insurance paperwork that was required
every 30 days. Id. at 100, 153. Father had an appointment with True North
the following day, and Mother was treating with them monthly for four
months, and did not miss any appointments. Id. at 99, 153-54.
With respect to their home, Father testified the prior bathroom sink was
old, and he made an agreement with the landlord to replace the sink in
exchange for a credit toward the rent. N.T., 4/18/22, at 111, 122-23. They
lacked an operable bathroom sink for approximately one month. Id. at 111.
They used puppy pads inside the house for a dog who has a disabled leg, but
this dog also relieves itself outside. Id. at 110.
Father stated he loved and missed the Children, and he had good
relationships with them. N.T., 4/18/22, at 101-02, 104. Mother similarly
testified she had good relationships with each Child. Id. at 157-60. Both
Parents stated they had a good relationship with each other. Id. at 119, 178.
Upon questioning by B.W.’s legal counsel, both Parents agreed it was not
appropriate to strike children out of frustration or use “implementations” when
disciplining Children. Id. at 116-17, 176. Mother, however, denied she or
Father have ever inappropriately disciplined the Children. Id. at 180. Both
Parents stated they attended the Children’s medical appointments when they
were able to. Id. at 106, 165. A.A. was born with a club foot, and Mother
attended his foot appointments. Id. at 165.
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At the end of the second day of hearings, the orphans’ court terminated
both Parents’ parental rights to all five Children. N.T., 4/18/22, at 203. In
support, the court cited the physical abuse, the Children’s safety, and Parents’
refusal to admit wrongdoing. Id.
V. Standard of Review
I incorporate the Majority’s discussion of the applicable standard of
review. I reiterate that the party seeking termination bears the burden to
establish statutory grounds for termination with clear and convincing
evidence. See In re N.C., 763 A.2d 913, 917-18 (Pa. Super. 2000).
The standard of clear and convincing evidence is defined as testimony that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted).
The Pennsylvania Supreme Court has stated: “[W]here a parent is
satisfactorily working toward a reunification, [CYF] should continue to
facilitate such progress and parental termination is inappropriate.” In re
H.S.W.C.-B, 836 A.2d 908, 910 (Pa. 2003) (citations omitted & paragraph
break added). I am mindful that “‘the right to make decisions concerning the
care, custody, and control of one’s children is one of the oldest fundamental
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rights protected by the Due Process Clause’ of the Fourteenth Amendment.”
K.W., 157 A.3d at 502-03 (citation omitted).
VI. Termination as to A.A. Under Subsection 2511(a)(5)
First, I consider Mother’s discussion that although CYF’s petition sought
termination under Subsections 2511(a)(1), (2), (5), and (8) (and 2511(b)),
the orphans’ court analysis discussed (5) and (8) (and (b)) only. See Mother’s
Brief at 21. At the termination hearing, Father’s counsel asked the court to
specify the Section 2511(a) subsections under which it was entering
termination.11 The court merely replied, “I think you should address the
sections that [CYF] put in the petitions.” N.T., 4/18/22, at 205. In its opinion,
while the orphans’ court quoted the text of Subsections 2511(a)(1), (2), (5),
(8), and (b), its analysis addressed only Subsections (5) and (8). See Trial
Ct. Op., 6/17/22 at 4-5, 30 (“The Court finds that [CYF] has carried its burden
under 23 Pa.C.S.A. § 2511(a)(5) and (8).”). In light of this discussion, I would
agree with Mother that this Court should construe that termination was
premised on these only these latter subsections — 2511(a)(5) and (8) (and
(b)).12 See Mother’s Brief at 21.
11See N.T., 4/18/22, at 204 (Father’s counsel asking, “[F]or purposes of appeal . . . are you going to specifically say under which subsection so that we can address that?”).
12 Nevertheless, Mother additionally addressed Subsections 2511(a)(1) and (2), in order to avoid waiver of any issues. Mother’s Brief at 21-23.
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Subsections 2511(a)(5) and (8) provide:
(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:
* * *
(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. § 2511(a)(5), (8).
First, Subsection (a)(5) includes the removal of the child “from the care
of the parent” for at least six months. See 23 Pa.C.S. § 2511(a)(5). Here,
A.A. was never in Mother’s care. He was born with drug withdrawal
symptoms, stayed at the hospital for nine days, and was adjudicated
dependent at 13 days old. See Order of Adjudication & Disposition for A.A.,
7/12/21, at 1. Caseworker Marshall testified he has “always been outside the
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care and custody of his parents.” N.T., 4/11/22, at 213. See Trial Ct. Op.,
6/17/22, at 38 (“A.A. has been dependent since birth.”). Thus, under the
plain meaning of the statute, I would conclude termination of Mother’s rights
as to A.A. under Subsection 2511(a)(5) was mistaken.13 See 23 Pa.C.S. §
2511(a)(5), (8). On this ground, I would reverse the termination order as to
Mother’s parental rights to A.A.
VII. Termination Under Subsections 2511(a)(5) & (8)
With respect to termination of the Mother’s parental rights as to the
older four Children under Subsections 2511(a)(5) and (8), I incorporate the
Majority’s summary of Mother’s arguments on appeal.
Concerning Mother’s drug treatment goals, the orphans’ court’s opinion
refers positively to the testimony that she has made progress throughout this
matter. See Trial Ct. Op., 6/17/22, at 14, 19, 29, 32. However, the court
denied that Parents’ substance abuse was the sole basis for removal of the
Children, and maintains that instead, “from the beginning,” major concerns
included whether Parents had a safe home environment and financial stability
to care for five small children. See id. at 7-8. The court stated a “pattern”
emerged, in which Parents were doing well with drug testing, but did not have
13 Furthermore, CYF’s termination petition as to A.A. cited only Subsections
2511(a)(1), (2), and (5) — and not (a)(8). See also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en banc) (applying Subsection 2511(a)(8) where child tested positive for cocaine at birth and was removed from mother’s care at four days old).
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a suitable home environment and refused to submit financial documentation
to CYF. Id. at 8.
With respect to Parents’ housing, the orphans’ court cited evidence
presented at the: (1) February 10, 2021, permanency review hearing, that
there was dog feces on the floor, and R.A. and Mother had lice; (2) August 5,
2021, permanency review hearing, that Catholic Charities reported the home
appeared appropriate at times, but at other times there was extreme clutter,
bugs, smells, and trash; and (3) January 11, 2022, permanency review
hearing, that Ms. Myers only observed the living room and did not inspect the
rest of the home at Parents’ request.14 Trial Ct. Op., 6/17/22, at 11, 16, 19-
20.
I emphasize, however, that the orphans’ court did not address — either
positively or negatively — the extensive, consistent testimony given by the
Pressley Ridge witnesses that the home was safe and appropriate. I reiterate
that at the November 10, 2021, status review hearing, Ms. Myers testified
Parents’ five-bedroom apartment was appropriate and Parents were resolving
the issue of the bedroom ceiling with their landlord. N.T., 11/10/21, at 23.
At the January 11, 2022, permanency review hearing, Ms. Luciano testified
14 The orphans’ court cited, however, Parents’ reason for requesting Ms. Myers
to not inspect the other rooms: Parents were packing and planning to move “because the landlord was not being cooperative.” Trial Ct. Op., 6/17/22, at 20.
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that: one day earlier, she inspected Parents’ living room, kitchen, and the
Children’s proposed bedrooms; the ceiling was repaired and required only
finishing and painting; and her services should come to an end because
Parents achieved the goal of having appropriate housing. N.T.,
1/11/22, at 23-25, 30-31.
At the April 1, 2022, termination hearing, Ms. Myers stated: she visited
Parents’ home five days earlier; she did not observe any pet feces or urine,
aside from a litter box that merely needed changing; there was a working sink
in the bathroom; and she had no concerns with safety issues nor with
visitation being held in the home. N.T. 4/18/22, at 130-34.
It is clear that in a termination appeal, we accept the orphans’ court’s
credibility determinations if they are supported by the record. See In re
D.L.B., 166 A.3d at 325-26. Here, the Majority holds the court’s credibility
findings — crediting the testimony of Caseworker Marshall — is supported by
the record. See Maj. Memo. at 13. However, in my view, in addressing
Parents’ housing goals, the orphans’ court did not address at all the testimony
by the Pressley Ridge witnesses, including Ms. Luciano’s statement, three
months earlier, that Parents have met their goal of appropriate housing, to
the extent she suggested her services come to a successful end. See N.T.,
1/11/22, at 25. Given the lack of any discussion of the above testimony,
which came later in time than the initial observations cited in the orphans’
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court’s opinion, I cannot agree that the housing conditions, which led to
Children’s removal, continued to exist. See 23 Pa.C.S. § 2511(a)(5), (b).
Next, I review the orphans’ court’s finding that Parents have failed to
provide proper documentation “that would help to present a clear picture of
financial stability.” See Trial Ct. Op., 6/17/22, at 21. The court’s opinion
properly cited Caseworker Marshall’s testimony, as well as CYF supervisor Ms.
Rose’s testimony, over several hearings, that Parents either failed to present
any proof of employment, or provided handwritten notes that were not
sufficient. See id. at 13, 16, 21. The court also acknowledged Ms. Luciano’s
testimony, at the January 11, 2022, hearing, that she accepted bank
statements, with some entries covered in black marker, as sufficient proof of
employment. Id. at 21-22. At the termination hearing, both Parents testified
as to their current employment and most recent employment. See N.T.,
4/18/22, at 148-49.
I acknowledge CYF’s evidence that Parents failed to consistently provide
proof of income that was acceptable to the agency. I agree with the orphans’
court’s concern that Parents must comply with CYF’s request to provide
authentic and reliable financial documentation. Nevertheless, in light of the
evidence that Parents have successfully met their drug treatment, housing,
and parenting goals, I would decline to affirm the termination of Mother’s
parental rights on the ground she failed to provide proper financial
documentation. I am mindful that “the right to make decisions concerning
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the care, custody, and control of one’s children is one of the oldest
fundamental rights” protected by our Constitution. See K.W., 157 A.3d at
502-03. See also In re Bowman, 647 A.2d 217, 218-19 (Pa. Super. 1994)
(“The complete and irrevocable termination of parental rights is one of the
most serious and severe steps a court can take, carrying with it great
emotional impact for the parent and the children.”). I thus disagree there was
clear and convincing evidence that Mother cannot or will not remedy her
financial instability, or that financial stability continues to exist. See 23
Pa.C.S. § 2511(a)(5), (8).
Next, I consider the orphans’ court’s finding — stated at the termination
hearing in support of termination — that Parents have failed to take
responsibility for the physical abuse of the Children. N.T., 4/18/22, at 203.
The court’s opinion also cited a Justice Works Discharge Report, which noted
Mother did “not take accountability for the impact her substance abuse has
had on her [C]hildren. [Mother] denies the [C]hildren experiencing trauma
despite being removed from the home after witnessing [her] overdosing in the
home.” Trial Ct. Op., 6/17/22, at 27. I do not minimize the findings of abuse
made against both Parents, for the abuse that occurred prior to the Children’s
removal in August of 2020. However, I also consider that the orphans’ court
has not meaningfully addressed the extensive testimony by Pressley Ridge
witnesses that Mother has since made great progress in her parenting skills
and that visits were going very well.
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Both Parents met weekly with family therapist Ms. Myers. N.T., 4/1/22,
at 75, 87. Five months before termination was entered, Ms. Mahoney, CYF
supervisor Karen Rose, and the GAL all agreed with a recommendation to
increase visitation and move visits into the community. See N.T., 11/10/21,
at 53, 59-60, 64. At the termination hearing, Ms. Mahoney testified she would
feel comfortable with unsupervised visits despite the ongoing abuse
investigation, noting such visits were not permitted because of the
investigation. N.T., 4/1/22, at 62, 68. Ms. Mahoney also only opposed visits
in the home at that time because the goal was not currently reunification. Id.
at 73. Finally, Ms. Myers likewise testified she would agree with partially
supervised visits. Id. at 107-08.
In its opinion, the orphans’ court considered that the service providers
“did not recommend a move to partial supervised visits until recently,” after
the four older Children have been adjudicated dependent for 20 months. See
Trial Ct. Op., 6/17/22, at 10, 43 (emphasis added). However, the court does
not explain why these current recommendations militate against
reunification, nor why they should be disregarded solely due to the length of
time passed. In the absence of such discussion, I would decline to affirm the
termination orders on the ground of Mother’s parenting skills.
In light of all the foregoing, I would disagree with the orphans’ court’s
conclusion there was clear and convincing evidence supporting termination.
See In re N.C., 763 A.2d at 917-18. “Clear and convincing” evidence is
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evidence that is so “clear, direct, weighty and convincing as to enable the [trial
court] to come to a clear conviction, without hesitance, of the truth of the
precise facts in issue.” See In re R.N.J., 985 A.2d at 276. I would thus
reverse the orphans’ court’s termination of Mother’s parental rights as to the
four older children, B.W., Ed.A., R.A., and El.A., under Subsections 2511(a)(5)
and (8).
VIII. Termination Under Subsection 2511(b)
Having determined that termination was improper under Subsection
2511(a), I would not reach the merits of termination under Subsection
2511(b). See In re L.M., 923 A.2d at 511 (termination under Section 2511
requires a bifurcated analysis, and only if the court determines the parent’s
conduct warrants termination does the court engage in the second part of the
analysis pursuant to Section 2511(b)). See also Mother’s Brief at 28-30
(addressing Subsection 2511(b)). Nevertheless, I would opine the orphans’
court likewise failed to address the testimony summarized above, by the
multiple Pressley Ridge witnesses, about the bonds between the Children and
Mother. Caseworker Marshall likewise acknowledged there is a bond. While
she also offered her opinion that termination would have no long-term,
negative impact on any of the Children, I emphasize she observed only one
visit prior to the filing of the termination petition (10 months before the filing).
See N.T., 4/1/18, at 238-39; N.T., 4/18/22, at 25-26.
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IX. Claim of Bias Against Caseworker Marshall
In Mother’s next issue, she avers the orphans’ court erred or abused its
discretion in accepting the “biased” testimony of Caseworker Marshall.
Mother’s Brief at 30. The orphans’ court addressed this claim of bias, and
properly pointed out it was the court’s purview to weigh the witnesses’
testimony and credibility. See In re D.L.B., 166 A.3d at 325-26; Trial Ct.
Op., 6/17/22, at 39. In light of my discussion above, that reversal of the
termination orders would be appropriate, I would not reach the merits of this
claim. Nevertheless, I emphasize my rationale is not that the orphans’ court
should not have believed Caseworker Marshall, but rather than the court failed
to address the testimony of the Pressley Ridge and other agency witnesses.
X. Conclusion
For the foregoing reasons, I would reverse the orders involuntarily
terminating Mother’s parental rights to her five Children, B.W., Ed.A., R.A.,
El.A., and A.A.
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