In the Interest of: J.A., Appeal of: C.A.

• Court: Superior Court of Pennsylvania
• Decided: August 6, 2019
• Docket: 282 WDA 2019
• Status: Unpublished

Opinion

J-S31045-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.A., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: C.A. : : : : : : No. 282 WDA 2019

Appeal from the Order Entered January 16, 2019 In the Court of Common Pleas of Lawrence County Orphans' Court at No(s): CP-37-DP-0000095-2013, No. 20011 of 2017, OC_A

IN THE INTEREST OF: K.R., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.A. : : : : : No. 283 WDA 2019

Appeal from the Order Entered January 16, 2019 In the Court of Common Pleas of Lawrence County Orphans' Court at No(s): CP-37-DP-0000094-2013

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 06, 2019

C.A. (“Father”) appeals from the order terminating his parental rights to

K.M.R. and J.A. (“Children”). We conclude the trial court did not abuse its

discretion and, therefore, affirm. J-S31045-19

The trial court set forth the factual and procedural history, which we

adopt and incorporate herein. See Trial Court Pa.R.A.P. 1925(a) Opinion, filed

Mar. 6, 2019, at 1-3; Trial Court Opinion, filed January 16, 2019, at 1-24.

By way of background, K.M.R. (d.o.b. November 6, 2001) and J.A.

(d.o.b. January 18, 2006) are the daughters of Father and M.R. (“Mother”).1

Children were first adjudicated dependent in November 2013. Prior to that,

Children had been living with Mother in a trailer on maternal grandfather’s

property. Father was intermittently present in the household but perpetrated

recurring acts of domestic violence against both Mother and K.M.R., fueled by

his heavy use of alcohol and drugs. On November 2, 2013, Father’s severe

beating of Mother, which required Mother to be flown via helicopter to

Pittsburgh for medical treatment, lead to the emergency removal of the

Children from the household. Children witnessed Father’s attack on Mother

and ran to get help. When the Pennsylvania State Police responded to Mother’s

residence, they observed deplorable and unsanitary conditions.

Father ultimately pled guilty to aggravated assault in connection with

the beating and was sentenced to incarceration with immediate parole to the

Teen Challenges Program. In connection with this program, Father took

classes on anger management, drug and substance abuse, and life skills.

However, following his release from the program in July 2015, Father was ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1Mother has also filed an appeal in this Court (docketed in this Court at 280 and 281 WDA 2019) regarding Children.

-2- J-S31045-19

incarcerated again on three separate occasions for charges such as driving

under the influence and retail theft.

The Children have been in foster care since their initial dependency

adjudication in 2013, and have remained with the same foster parents, who

are an adoptive resource for the Children. The trial court conducted numerous

permanency review hearings and issued the last permanency review order on

September 17, 2018.2 In the interim, in April 2017, Children and Youth

Services (“CYS”) filed motions to change Children’s goal from reunification to

adoption and to terminate the parental rights of Mother and Father. Over a

16-month period, the trial court conducted multiple hearings regarding

termination/goal change at which Children’s therapist, counselor,

psychologist, and CYS caseworkers testified. The trial court also heard

testimony from Mother, Father, and K.M.R.

Ultimately, the trial court concluded that CYS had established, by clear

and convincing evidence, that grounds for termination of Father’s rights

existed and, on January 16, 2019, issued an order terminating Father’s

parental rights with a comprehensive opinion in support thereof. Father filed

a timely Notice of Appeal and Pa.R.A.P. 1925(b) statement and the trial court

submitted a Pa.R.A.P. 1925(a) opinion.

Father raises the following issues on appeal:

____________________________________________

2We note that Mother filed an appeal in this Court from the September 17, 2018 dependency order. In re Interest of J.A./K.R., 1451 WDA 2018, 1452 WDA 2018.

-3- J-S31045-19

1. Whether the Children and Youth Services Agency (Agency) failed to make children available to the Court as required and as mandated by the Child Protective Services Laws (CPSL)? 2. Whether the Court failed to apply the law to the facts of the case and return [Children] to [Father]?

3. Whether the Agency failed to provide any type of reunification counseling or generate a service plan to reunify [Children] with [Father]?

4. Whether the Agency failed to provide visits between [Father] and Children to allow them to develop and foster a relationship following his release from incarceration?

5. Whether the Court failed to take testimony from [Children] regarding their individual desire to reunify with [Father] thereby requiring the Court to make a decision as to [Children] based upon the unsubstantiated testimony of one child, while the other was withheld from the Court without justification?

6. Whether the Agency failed to provide any competent testimony that the best interests of [Children] were served by termination of parental rights?

7. Whether the Agency failed to introduce testimony that [Children] were bonded with the foster family or that they did not have a bond with Father?

8. Whether the Court erred by issuing a final order on the Involuntary Termination rather than staying the matter pending the outcome of the appeal filed by Mother with the Pa Superior Court Dependency Appeal in this case?

9. Whether the Court committed reversible error by determining that Father was not capable of proper parenting when he was never subjected to a parental capacity?

10. Whether the Court committed reversible error by finding that Father failed to timely complete the requirements established by the family service plan when the lack of services made it impossible to comply?

Father’s Br. at v.

-4- J-S31045-19

When reviewing orders terminating parental rights, we “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.

2012). If the record supports those findings, we then review the decision “to

determine if the trial court made an error of law or abused its discretion.” Id.

We will reverse a decision “for an abuse of discretion only upon demonstration

of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.

The Pennsylvania Supreme Court has explained the reason for applying

an abuse of discretion standard to termination decisions:

[U]nlike 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. 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 discretion.

Id. at 826-27 (citations omitted).

A trial court may terminate parental rights only after finding grounds for

termination existed under Section 2511(a) and that termination is in the

child’s best interest under Section 2511(b). Although the trial court terminated

Father’s parental rights pursuant to subsections 2511(a)(2) and 2511(a)(8),

we need only conclude that its decision was proper under any one subsection

-5- J-S31045-19

of Section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en

banc). Here, we conclude that the trial court properly terminated Father’s

parental rights pursuant to Section 2511(a)(2).

Section 2511(a)(2) provides:

(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 conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

23 Pa.C.S.A. § 2511(a)(2).

To terminate parental rights pursuant to Section 2511(a)(2), the moving

party must produce clear and convincing evidence of the following: “(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 physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied.” In re Adoption of M.E.P., 825 A.2d

1266, 1272 (Pa.Super. 2003).

If the trial court has concluded that a parent’s parental rights should be

terminated under Section 2511(a), then the court must determine whether,

considering the child’s developmental, physical, and emotional needs and

-6- J-S31045-19

welfare, termination is in the best interests of the child. 23 Pa.C.S.A. §

2511(b); S.P., 47 A.3d at 830. In conducting this analysis, the court should

examine the emotional bond between parent and child, with close attention to

the effect on the child of permanently severing any such bond.

For ease of disposition, we will address Father’s issues grouped by the

overarching issues they address, as the trial court did in its Rule 1925(a)

opinion. However, we note that in his brief to this Court, Father fails to discuss

and develop each of his issues separately, as Pennsylvania’s Rules of Appellate

Procedure require. He also improperly fails to cite any authority in support of

certain arguments. See Pa.R.A.P. 2119(a) (argument section of brief “shall be

divided into as many parts as there are questions to be argued,” and shall

include “such discussion and citation of authorities as are deemed pertinent”).

“The failure to develop an adequate argument in an appellate brief may result

in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v. Beshore,

916 A.2d 1128, 1140 (Pa. Super. 2007) (en banc) (citation and internal

quotation marks omitted).

In his first and fifth issue, Father contends that CYS did not properly

provide the testimony of both Children. Because he fails to provide any

argument in this regard, and does not cite any legal authority in support of

these claims, Father’s first and fifth issues are waived. See id.

Moreover, even if not waived, Father’s first and fifth issues lack merit.

“[T]he admission and exclusion of evidence are within the sound discretion of

-7- J-S31045-19

the trial court and will not be reversed on appeal absent an abuse of

discretion.” In re R.T., 778 A.2d 670, 683 (Pa.Super. 2001) (internal

quotation marks and citation omitted). Currently, this Court does not mandate

that “an abused or neglected child [be forced by his or her natural parent] to

testify in an involuntary termination proceeding.” In re B.L.L., 787 A.2d 1007,

1011 (Pa.Super. 2001) (citation omitted). Accordingly, we conclude that the

trial court did not abuse its discretion by determining that good reason

excused Children’s testimony where Children’s legal counsel was present. See

Trial Court’s Rule 1925(a) opinion at 8-11. Moreover, as detailed below, even

in the absence of J.A.’s testimony, we conclude that the trial court had

sufficient evidence to support the termination of Father’s parental rights.

In his eighth issue, Father baldly claims that the trial court erred by

declining to stay the instant termination proceedings in light of Mother’s

appeal of the trial court’s September 17, 2018 dependency order. However,

once again, Father fails to develop any argument, or cite any authority, in

support of his claim. Therefore, we find Father’s eighth issue waived. See

Pa.R.A.P. 2119(a); Beshore, 916 A.2d at 1140.

In any event, even if not waived, the trial court properly cited, inter alia,

Pa.R.A.P. 1701(c), for the proposition that proceedings should only be stayed

pending appeal when the same claims are at issue in both the appellate and

trial court proceedings. Here, the termination/goal change proceedings

concerned different issues than those relevant to the dependency

-8- J-S31045-19

proceedings. Therefore, we concur with the trial court’s decision to dismiss

Mother’s bid to stay the termination/goal change proceedings. See Trial

Court’s Rule 1925(a) Opinion at 26-27.

Father’s remaining issues are adequately developed, such that we do

not find waiver. However, they are meritless. In his second, sixth, and seventh

issues, Father presents the overarching argument that the evidence was

insufficient to terminate his parental rights pursuant to either Section

2511(a)(2) or Section 2511(b). While Father acknowledges his “inexcusable

conduct” was the initial catalyst of Children’s dependency, he asserts that CYS

and the trial court did not properly credit his changed behavior achieved

through therapeutic counseling and other programs. Father also contends that

the trial court failed to properly consider his efforts at maintaining contact with

Children when he was not incarcerated.

However, the trial court concluded that ample evidence supported the

termination of Father’s parental rights under Section 2511(a)(2) because

Father’s “own testimony underscored his struggles with substance abuse,

domestic violence, and the criminal justice system.” Trial Court Rule 1925(a)

Opinion at 15. Thus, the court determined that Father’s ability to presently

and prospectively parent Children was significantly hampered. See id.

Further, the court properly emphasized that ample evidence supported the

conclusion that Children’s interests would be best served by the termination

of Father’s parental rights, as required under Section 2511(b). Id. at 13-15.

-9- J-S31045-19

The court explained that multiple witnesses detailed Children’s toxic bond with

both Mother and Father, and Children’s strong desire to remain with their

foster parents, who are an adoptive resource. Id. Accordingly, we conclude

that the trial court properly determined that sufficient evidence supported the

termination of Father’s parental rights under Sections 2511(a)(2) & (b) and

affirm on the basis of the court’s thorough reasoning. See Trial Court’s Rule

1925(a) Opinion at 12-15; Trial Court’s January 16, 2019 Opinion at 38-43.

Turning to Father’s third, fourth, ninth, and tenth issues on appeal,

Father claims that CYS failed to make reasonable efforts to reunify the family.

Father specifically takes issue with the lack of visitation he was afforded with

Children. He also maintains that he was unable to comply with his family

service plan (“FSP”) through no fault of his own. Father contends that during

the periods he was not incarcerated, he was actively engaged with CYS and

should have been given the chance to reconnect with Children through

visitation, despite any past mistakes. See In re C.J., 729 A.2d 89, 93

(Pa.Super. 1999) (stating that as long as a child’s goal remains reunification,

visitation should continue unless a grave threat to the child exists). Further,

he points out that certain requirements set forth in his FSP, such as

attendance at a batterer’s support group, were not readily available in

Lawrence County.

However, the trial court properly found that Father did have visitation

with Children, when he was not incarcerated, between September 2015 and

- 10 - J-S31045-19

February 2016. Further, the court aptly pointed out that Father failed to

maintain a suitable residence, as required in his FSP, and nothing required

CYS to provide all reunification services in a parent’s home county. See Trial

Court’s Rule 1925(a) Opinion at 21-22. Therefore, we conclude that Father’s

third, fourth, ninth, and tenth issues lack merit and affirm pursuant to the trial

court’s reasoning.

Pursuant to the foregoing, and after reviewing the trial court’s

comprehensive opinions, the record, the parties’ briefs, and relevant law, we

see no abuse of discretion or error of law. Accordingly, we affirm based on the

well-reasoned opinions of the Honorable John W. Hodge, which we adopt and

incorporate herein.

Order affirmed.

Judge Stabile joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/6/2019

- 11 - Cicculated 0712412019 10, 50 i ........_,

IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS

LAWRENCE COUNTY, PENNSYLVANIA

K.M.R. NO. 94 OF 2013, DP; NO. 20012 of 2017, OC-A

J.L.A. NO. 95 OF 2013, DP; NO. 20011 of 2017, OC-A

OPINION

Hodge, J. March 6, 2019

Presently before the Superior Court are the appeals of M.R. (Mother) and

C.A. (Father) (collectively, Parents), the natural parents of K.M.R. and J.L.A.

(Children). to this-Court's Order of January 16, 2019, granting Lawrence County

Children and Youth Services' (CYS) Petitions for Involuntary Terminations of Parental

Rights and Motions for Goal Change from reunification to adoption. For the reasons

set forth in this opinion, issued pursuant to Pa. RAP. 1925(a). we respectfully request

that the Superior Court affirm our Order and dismiss this appeal.

PROCEDURAL HISTORY

The procedural history of these cases, which ultimately stretches back to

November 2013, is recounted in more detail in the Opinion attached to the January 16.

2019 Order of Court, which we incorporate herein by reference and for continuity's

sake republish below:

Children were first taken into emergency care by an order of this Court dated November 4, 2013. CYS then filed a dependency petition on November 18, 53RO JUDICIAL 2013, and three days later, this Court adjudicated both Children dependent, DISTRICT r-·J• t" ,... ';-,. "' \ll 1,

pursuant to the Juvenile Acr(42 Pa: c.s�-§§6301 et seq.), based on evidence LAWRtNCE COUNTY PENNSYl,.VANIA : : 47 ' I .. .. • j I ' .. ·�' • presented that Father had physically assaulted Mother with Children present and that Mother's home had deplorable conditions. Accordingly, by dispositional order dated January 5, 2014, this Court assigned legal and physical custody of Children to CYS. Since the initial dependency finding, this Court has conducted permanency review hearings approximately every six months as required by the Juvenile Act and has continued to find Children dependent, and their placement in foster care appropriate, as documented by each permanency review order to date and including the most recent one issued on September 17, 2018.1

Following several years of dependency hearings, CYS presented the Motions for Goal Change and Termination Petitions on April 11, 2017, alleging that Mother's and Father's parental rights should be terminated pursuant to 23 Pa. C.S. §2511(a)(2) and (8). This Court conducted the following hearings, and the following witnesses testified, over a sixteen-month period and formed the bulk of the factual record underlying this opinion: 1. August 8 and 9, 2017; K.M.R. and therapist Tanya Stahlman; 2. September 26, 2017; Ms. Stahlman (continued) and counselor Brian Dick; 3. March 28 and 29, 2018; psychologist Dr. Fred Gallo and CYS caseworker Amber Pieri; 4. June 26, 2018; Ms. Pieri (continued) and testimony from Father and Mother; 5. August 27, 2018; CYS caseworker Kristen Pauline.

Besides the considerable evidence accumulated at these hearings, all parties stipulated at the first hearing (August 8, 2017) to incorporate the factual record of the dependency cases into the record of the Termination Petitions and Goal Change Motions. Following the close of evidence on August 27, 2018, this Court permitted all parties to file proposed findings of fact and conclusions of law, which were received by October 31, 2018. 53RD JUDICIAL DISTRICT 1 Mother timely appealed these permanency review orders to the Superior Court on October 5, 2018, which are currently docketed aU4:&°fF1nd;J452 WDA 2018 (hereinafter, Dependency Appeals). ,w·RE:NcE:· c o urs r v PE;�NSVL._VAN-IA

i: L 7 2 ' : . � \ \--·--·--� On January 16, 2019, upon consideration of the parties' submissions,

applicable law, and the evidentiary record, this Court issued an Opinion with findings

of fact and conclusions of law in support of the Order granting CYS' Termination

Petitions and Motions for Goal Change. Once again, those findings of fact and

conclusions of law, as set forth in the January 16, 2019 Opinion and Order of Court,

are incorporated herein by reference. On February 14, 2019, Mother and Father each

filed timely notices of appeal and concise statements of matters complained ofon

appeal.

MATIERS COMPLAINED OF ON APPEAL

Both Mother and Father have filed timely Notices of Appeal and Concise

Statements of Matters Complained of on Appeal. The issues they complain of are as

follows:

A. Mother

1. Whether the Children and Youth Services Agency [CYS] failed to make

[Children] available to the Court as required and mandated by the Child Protective

Services Laws (CPSL}.

2. Whether the Court erred in determining that [Mother] had exceeded what

was requested of her and then determined that [Mother], although she completed au

services required by [CYS], and thereby, the Court failed to apply the law to the facts

of the case and return [Children] to the mother.

3. Whether [CYS] failed to provide any type of reunification counseling or

generate a service plan to reunify[Children] with [Mother]. [CYS] withheld the children 53RD JUDICIAL DISTRICT

,WR.EN CE COUNTY PENNSVLVA NIA

' 3 \.;.�_ . . L· � .: ... ..·,; ···t -: " . ! i � •· \.. J. i. i

'---·--·-· ------------------------------------ and appropriate reunification services after all other required services were completed

by [Mother]. The Court failed to apply the law to the facts on this matter.

4. Whether [CYS] failed to provide visits between [Mother] and children, based

solely on the alleged belief that one of the two children voiced her desire to not see

[Mother]. [CYS] failed to provide competent evidence that there was any basis to

deny mother visitation. The Court failed to apply the law to the facts on this matter.

5. Whether the Court failed to take testimony from both children regarding their

individual desire to reunify with [Mother] thereby requiring the Court to make a

decision as to both children based upon the unsubstantiated testimony of one child,

while the other was withheld from the Court without justification.

6. Whether [CYS] failed to provide any competent testimony that the best

interests of the children were served by termination of parental rights.

7. The Court failed to find [CYS] had provided any competent testimony that

the children were bonded with the foster family or that they did not have a bond with

mother. In fact, the Court was incapable of making any determination about the child

who was never presented for testimony or evaluation by the Court.

8. Whether the Court erred by issuing a final order on the Involuntary

Termination rather than staying the matter pending the outcome of the Superior Court

Dependency Appeal in this case.

9. Whether the evidence was sufficient to determine that mother suffered from

an incapacity that could not overcome and permit the children to return home.

10. Whether the Court misconstrued the testimony of the expert psychologist, 53RD JUDICIAL Dr. Gallo, by claiming that he was not qualified to render an opinion on mother's DISTRICT : � ;_ _ �-.:. r � _. ( · � · " , · , :, .

" - � .) < ' .- �-

,AWRENCE COUNTY PENNSYL\/_.ANIA 2urn Ll3 -[i Vil I: Ii 7 4 -.:•:.,!,.}! ,. t'.,- parental capacity when, indeed, the testimony was that mother had no apparent

impediments to her capacity to parent.

11. Whether the Court erred in determining that mother failed to complete a

second parental capacity evaluation where the record indicated that she did and that

[CYSJ refused to accept the second evaluation because it was done by an

independent provider.

B. Father

1. Whether [CYS] failed to make children available to the Court as required

and mandated by the Child Protective Services Laws (CPSL).

2. Whether the Court failed to apply the law to the facts of the case and

return the children to the father.

3. Whether [CYS] failed to provide any type of reunification counseling or

generate a service plan to reunify the children with [Father]. [CYS] withheld the

children and appropriate reunification services in an attempt to reunify the children

with father, pursuant to the oriqlnal goals of the Family Service Plan. The Court failed

to apply the law to the facts on this matter.

4. Whether [CYS] failed to provide visits between [Father] and children to

allow them to develop and foster a relationship with [Father] following his release from

incarceration. [CYS] failed to provide competent evidence that there Was any basis to

refuse or otherwise deny father visitation. The Court failed to apply the law to the

facts on this matter.

5. Whether the Court failed to take testimony from both children regarding SlRD JUDICIA,L their individual desire to reurJify_ w(th.[Father] thereby requiring the Court to make a DISTRICT .: I t ·;. ; i' f . J. ·.' ,.J,..:_ - J ·• � . ,;

L.AWRENCE C.OUNTY PENNSYLVANlA

� ' ... :� t � • . ; 5 ,: - .: �

-------------------·----------·-···..----·····- decision as to both children based upon the unsubstantiated testimony of one child,

while the other was withheld from the Court without justification.

6. Whether [CYS] failed to provide any competent testimony that the best

interests of the children were served by termination of parental rights.

7. The Court failed to find that [CYS] had provided any competenttestimony

that the children were bonded with the foster family or that they did not have a bond

with father. In fact, the Court was incapable of making any determination about the

child who was never presented for testimony or evaluation by the Court.

8, Whether the Court erred by issuing a final order on the Involuntary

Terminations rather than staying the matter pending the outcome of the Superior

Court Dependency Appeal fiied by mother in this case.

9. Whether the Court committed reversible error by determining that he was

not capable of proper parenting when, in fact, he was never subject to the parental

capacity examination to determine his fitness to properly parent the children.

10. Whether the Court committed reversible error by finding that Petitioner

failed to timely complete the requirements established by his family service plan when

the lack of services made it impossible for [Father] to comply. Specifically, while

[Father] was required to complete a barterer's program, no such program was

available through any service agency in Lawrence County and, therefore, the failure to

complete this program was beyond [Father's] control and should not serve as a basis

for the termination of his parental rights.

While Mother and Father each raise some unique questions on appeal, 53RO generally their Concise �t.l?tem.e_nts feature many similar or outright identical issues; > : � l.�; ( L .J.UDIC1AL DISTRICT � f ;. i � . ,: I�,·,

L.AWRENCE COUNTY WW IHR -·o� 1"1/ . , • , 1, • i. r ·1·. � Ii] PENNSYLVANIA

.. ,., . Accordingly, for purposes of this Opinion, Mother's and Father's issues will be

organized and divided into the following five categories of analysis:

• I: Failure to Have Children Appear in Court or Take Their Testimony (Mother's

and Father's points 1 and 5).

• 11: Lack of Competent Testimony or Other Evidentiary Issues (Mother's and

Father's 6 and 7; Mother's 9 and 10).

• 111: Issues with the Reunification Plan or Provision of its Services (Mother's 3,4

and 11; Father's 3,4,9 and 10).

• IV: Failure to Apply the Applicable Law (Mother's and Father's 2).

• V: Failure to Stay Termination Pending Dependency Appeals (Mother's and

Father's 8).

DISCUSSION

Our Supreme Court has set forth the appellate standard of review in termination

of parental rights cases as follows:

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 Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). "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. "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 53flD observations of the parties spanning multiple hearings. JUDICIAL DISTRICT · {, . .. I.'·"°'.': ;-\.L

l\WR��CE COUNTY PE:NNSVLVANIA

7 In re T.S.M., 71 A.3d 251, 267 (Pa. 2013),

Appellate courts review goal change orders in an identical matter by also

employing an abuse of discretion standard. In re R.M.G., 997 A.2d 339, 345 (Pa.

Super. 2010).

I. Failure to Have Children Appear in Court or Take Their Testimony

In each of their respective concise statements at Nos. 1 and 5, both Mother and

Father contend that CYS failed to make Children available to this Court as required by

the Child Protective Services Laws and thatthis Court erred by failing to take

testimony from both Children regarding their indiviqual wishes for reunification. With

respect to.the Child Protective Services Laws (CPSL) that Mother and Father both

cite, Mother and Father are correct that there is a body of law known in this

Commonwealth under that name. 23 Pa. C.S. §§6301-6386. However, these statutes

· are not generally concerned with dependency and termination cases but rather have a purpose described by the Supreme Court as follows:

The legislature sought to encourage greater reporting of suspected child abuse in order to prevent further abuse and to provide rehabilitative services for abused children and their families. The [CPSLJ also establishes a statewide

central registry for the maintenance of indicated and founded reports of child abuse. as identifying perpetrators ofabuse serves to further protect children. Recognizing that identifying someone as a child abuser can profoundly impact that person's reputation, the release of such information is advocated only in certain limited venues. [Reports] of indicated and founded abuse identifying the perpetrator can be released to law enforcement, social work agencies, employers in child care services and other related venues. 53RD JUDICIAL DISTRICT

LAWRENCE COUNTY PENNSYLVA.NIA

8 G.V. v. Department of Public Welfare, 91 A.3d 667, 670-71 (Pa. 2014) (quoting

P.R. v. Department of Public Welfare, 801 A.2d 478, 483 (Pa. 2002)).

Indeed, the statute itself uses nearly identical language in expressing its

purpose to "encourage more complete reporting of suspected child abuse" and to

enhance the capability of each county to investigate and prosecute suspected abusers

while protecting and rehabilitating affected children. 23 Pa. C.S. §6302(b). While

there are some intersections between the CPSL and dependency/termination issues,

those connections are irrelevant to the case at bar. See, e.g. 23 Pa. C.S. §§6339,

6341 (d), 6375(k). Moreover, the only section directly dealing with evidentiary issues,

23 Pa. C.S. §6381, has clear language that does not specify any requirement that

children must be made available to the Court by a child services agency, and we will

not read such a provision into the law at this time. See 1 Pa. C.S. §1921 (b). In short,

there is simply no applicable mandate in the CPSL regarding making children

available to the court to which CYS failed to adhere at the termination/dependency

proceedings.

Because this case is a blend of dependency and termination issues, it is

appropriate to evaluate the rules each of these types of proceedings has regarding the

presence and testimony of the children involved. For dependency proceedings, the

starting point is Pa. R.J.C.P. 1128(A), which states that generally "all parties shall be

present at any proceeding" unless certain exceptions apply. Among those exceptions

is that "the court may proceed in the absence of a party upon good cause shown

except that in no case shall a hearing occur in the absence of a child's attorney. lf a .SJRD JUDICIAL child has a guardian ad.litem and J�g�l counsel, both attorneys shall be present." Pa. DISTRICT • i. �·-- .; : i __ �. <; L� 1; � . . \ {_

-AWRENCE COUNTY PENNSYLVANIA 9 ... - ; '· . j -.. R.J.C.P. 1128(8)(1 ). After first reiterating that a proceeding is never to move forward

"in the absence of the child's attorney," the comment to the rule further explains that

while "a child should appear in court" unless good cause is shown, it is up to the

court's discretion whether to proceed "if the court finds that a party has received

proper notice of the hearing and has willfully failed to appear." Pa. R.J.C.P. 1128 cmt.

In short, Pa. R.J.C.P. 1128 imposes a general requirement that all parties to a

dependency case should be present for all proceedings but also permits absences for

good cause that are left to the court's discretion.

Also pertinent to dependency hearings are several provisions of the Juvenile

Act 42 Pa. C.S. §6351 (e)(1) (emphasis added) states that:

In any permanency hearing held with respect to the child, the court shall consult with the child regarding the child's permanency plan, including the child's desired permanency goal, in a manner appropriate to the child's age and maturity. If the court does not consult personally with the child, the court shall ensure that the views of the child regarding the permanency plan have been ascertained to the fullest extent possible and communicated to the court by the guardian ad /item ... The court is also required to consult with the affected child as to his/her desired

permanency goal in the very narrow circumstance that the court orders the Child to be

placed into another planned permanent living arrangement. 42 Pa. C.S,

§6351 (f.1)(5)(iv). Lastly, the Juvenile Act provides that "[upon] the application of [any

party to dependency proceedings], the court, master, or the clerk of court shall issue,

or the court or master may on its own motion issue, subpoenas requiring the

attendance and testimony of witnesses ... " 42 Pa. C.S. §6333(a). 531S!tJ JUDICIAL DISTRICT

IWRENc;E COUNTY PENNSYLVANIA l: 1+7 10 ; : � • j·

' �-- ·, ······--�·-.---""*''"' In answering the question of whether children shall testify at involuntary

termination proceedings, the Superior Court has held that "there is no statutory

requirement nor is there any Pennsylvania appellate decision which permits or

requires the testimony or preference by the child to be placed on the record as an

integral part of a termination proceeding." In re B.L.L., 787 A2d 1007, 1014 (Pa.

Super. 2001) (emphasis added). Indeed, the Superior Court had already reached an

identical result five years earlier, noting the lack of a "judicial decision, statute or

constitutional provision which would entitle a natural parent to force an abused child to

testify in an involuntary termination proceeding. We decline to create any such

requirement." In re Child' M., 681 A2d 793, 798.(Pa. Super. 1996). Rather, at

contested termination proceedings, the child has an attorney to represent his/her legal

interests and a guardian ad !item to advocate for his/her best interests.2 In re L.8.M.,

161 A.3d 172, 175 (Pa. 2017); In re T.S., 192 A.3d 1080 (Pa. 2018); 23 Pa. C.S.

§2313(a). 3 It is the job of these professionals; not the child, to convey the child's

preferences to the court with respect to the potential terminations.

Turning to the case at bar, it is first clear that any reliance Mother and Father

place on the CPSL are misplaced, for those statutes are largely distinct and absent

2 "'Legal interests' denotes that an attorney is to express the child's wishes to the court regardless of whether the attorney agrees with the child's recommendation. 'Best interests' denotes that a guardian ad litem is to express what the guardian ad litem believes is best for the child's care, protection, safety, and wholesome physical and mental development regardless of whether the child agrees." Pa. R.J.C.P. 1154 cmt.

3 The "continuing viability" of the hardline rule set forth in B.L. L. prohibiting the use of a child's testimony at termination of parental rights hearings was recently called into question by Justice Wecht ofthe Pennsylvania Supreme Court, who argued that.B.t.L should be reevaluated "in light of L.B.M. and T.S." 53RD and in consideration of the value such testimony could have in clarifying any conflicts that may arise JUDICIAL DISTRICT between the child's best and legal interests'.: lh'terest of J.C.F., 199 A.3d 859 (Pa. 2018) (Wecht, J., dissenting) .

.AWRE:NCE COUNTY PE:NNSYLVANIA 11

___________________________ .. .. ,,,_, ,,_,. _ from the realm ofdependency/termination proceedings. Next, although Pa. R.J.C.P.

1128 states a clear preference that a child be present at dependency proceedings, the

rule also grants a court discretion to choose to conduct hearings in the child's absence

if good cause is shown so long as the child's attorney is present. It is precisely this

path that the Court took during the hearings underlying the instant appeal. Noting that

K.M.R. did in fact appear at the August 8 and 9, 2017 hearings, this Court was

otherwise satisfied that good cause existed to permit Children's absences at the

remaining proceedings due to the fraught and tempestuous relationships between

Children and Parents in addition to the need for Children to maintain attendance at

school and extracurricular activities. However, Children's guardian ad litem and

attorney were both present for and fully participated in all proceedings while

advocating for Children's best and legal interests, respectively. Thus, at all times, the

Court conducted the proceedings in compliance with the requirements of 42 Pa. C.S.

§6351 (e)(1) and 23 Pa. C.S. §2313(a). Lastly, Mother and Father failed to exercise

their statutory right under the Juvenile Act to have subpoenas issued that would have

compelled K.M.R. and J.L.A.'s presence at the hearings,

In short, Mother's and Father's arguments that either one or both of Children

was withheld from the Court and barred from testifying, in violation of the CPSL and

"without justification," are legally unsupported. For the foregoing reasons, these

matters should not be considered on appeal.

II. Lack of Competent Testimony and Other Evidentiary Issues

In their concise statements, Mother and Father each raise several issues with 53RO JUDICIAL respect to the testimony elicited and evidence adduced at the proceedings. Both DISTRJCT ·r �. ;,-··· ,, • ,. I . • ' ·-· ,,_ ..

O..W.RENCE COUNTY .PENNSYLVANIA

! _, ; ,•; ,: ... Parents, at Nos. 6 and 7, contend that CVS supplied neither "any competent

testimony" about the impact of termination on Children's best interests nor the bonds,

or lack thereof, among Children, their foster family, and Parents. Mother alone raises

additional concerns at Nos. 9 and 1 O that there was insufficient evidence presented as

to her incapacity to parent and that this Court misconstrued the testimony of her

expert witness, Dr. Fred Gallo.

In termination of parental rights cases, the prevailing evldentiary standard is

clear and convincing evidence. It is the burden of the party seeking termination to first

proffer clear and convincing evidence that the parent's conduct satisfies one of the

statutory grounds found at 23 Pa. C.S. §2511(a), and then to demonstrate that

termination would benefit the needs and welfare of the child under a best interests

standard pursuant to 23 Pa. C.S. §2511(b). In re D.L.B., 166 A.3d 322, 326 (Pa.

Super. 2017) (internal citations omitted). The trial court acts as the factfinder in

termination cases, meaning that it is "charqed with the responsibilities of evaluating

credibility of the witnesses and resolving any conflicts· in the testimony ... [in] carrying

out these responsibilities, the trial court is free to believe all, part, or none of the

evidence." In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa. Super. 2006).

Over the course of the proceedings, CYS presented Mr. Brian Dick, Ms. Tanya

Stahlman, and Ms. Amber Pieri. .All testified as fact witnesses, While Mr. Dick was

additionally certified as an expert in the areas of counseling and parental capacity

assessments. As recounted in the _January 16, 2019 Opinion. each of these

professionals credibly testified to the troubling emotional relationship between Mother S3RD JUDICIAL and Children. Ms . .Stahlman and Mr. Dick also commented on Mother's lack of OiSTRICT .. l: . ... ! � . . � • • J • • ,� • - • • ••• l .,_,_ • l ' .......�

\VRl!:NCE COUNTY PENNSYLVANIA 2ff1f' .... I.I ;;;7 �11�•·1 _,;:·"...) p·; , ii ·1.·· l,7 . � 13 ,. __________ ..:..._ ··-----···----··-··--··--------·----··- .. empathy toward the traumatic experiences Children endured at her home and

Mother's seeming inability to emotionally attune to Children despite months of

counseling sessions. Ms. Pieri testified to documented instances of K.M.R. 's self-

destructive behavior, such as pinching and attempted suffocation, following some

extended interactions with Mother. All three witnesses further spoke to the lack of any

positive feelings or genuine bonds worth saving between Parents and Children.

Additionally, Ms. Pieri noted how Children have matured emotionally, physically,

academically, and spiritually since moving in with their foster family in December

2013.

In response to CYS, Mother and Father each testified on their own behalf at the

hearings. Mother additionally offered the testimony of Dr. Fred Gallo, a psychologist

from Sharon, Pa., to speak to her parental capacity, whom this Court certified as an

expert in psychology. However, unlike Mr. Dick, Ms. Stahlman, or Ms. Pieri, Dr. Gallo

failed to observe Mother interact with Children during any of their sessions together,

and consequently this Court accorded less weight to his conclusions on her parental

abilities than those who observed Mother and Children together firsthand. During

Mother's testimony, CYS also offered into evidence on cross-examination. which this

Court admitted without objection, a "notice/demand'' letter Mother wrote to CYS in

June 2017 demanding the return of her "property," i.e. Children. This Court

considered the letter and weighed it in conjunction with the voluminous testimony from

Mr. Dick, Ms. Stahlman. and Ms. Pieri as to Mother's extreme and sustained

difficulties in emotionally relating to Children. For his part, Father's own testimony 53RD JUDICIAL underscored his struggles with substance abuse, domestic violence, and the criminal DISTRICT • :,

.; '!"'.. , .••

-� •·-· . .. .•

. , . ,- r , � .-, .. \_ .

AWRENCE COUNTY PENNSYLVANIA ·-� l • , J -� Jf I· t,. 7 14 justice system, all of which influenced this Court's conclusions as to his present and

prospective inability to take Children into his care.

In sum, this Court remains resolutely convinced that CYS met its burden of

presenting clear and convincing evidence $howing the existence of the statutory

grounds for termination under 23 Pa. C.S. §251 t'(a) through a combination of their fact

and expert witnesses, admitted exhibits. and cross-examination of Mother and Father.

Moreover, this Court remains satisfied that CYS presented sufficient evidence relevant

to the considerations of 23 Pa. C.S. §2511 (b), such as Ms. Pieri's observations of

Children's lives. with their foster family and multiple witnesses' retelling of Children's

toxic bonds with Parents, in demonstrating that termination would serve Children's

best interests. Next, we turn to Mother's contention with respect to Dr. Gallo's

testimony. Although this Court gave fair consideration to the psychological testing Dr.

Gallo performed on Mother, we simply could not accord much weight to his conclusions about her parenting abilities as they were unsupported by any personal

observations, the lack of which stands in stark contrast to the three professionals who

testified for CVS on this same point. Succinctly put, in reaching our decision, this

Court allowed all parties to present their cases-in-chief and, upon exercising our

discretion to examine and weigh the evidence supplied, concluded that CYS cleared

its evidentiary hurdles. Therefore, these matters should not be considered on appeal.

Ill. Issues with Reunification and the Family Service Plan

In their concise statements at Nos. 3 and 4, Mother and Father both contend

that CYS failed to provide any type of reunification counseling or generate a service 53RD JUDICIAL plan for reunification, and that CYS failed to provide any visitation between Parents DISTRICT • . . . . . : •. ': .. ,,, . ·- � ' l .....

. W�ENCE couxr v PENNSYLVANIA

t ' .. � ,, t 1:. " __ ,, '-----------------------·---··---·-·---------�·- and Children. Additionally, Father argues at Nos, 9 and 10 that CYS failed to refer

him for a parental capacity assessment and that he could not have completed his

family service plan due to a lack of services available in Lawrence County.

Whenever a dependent child is taken into foster care, the default goal is

eventual reunification of the family. Congress mandated this policy in the federal

Adoption and Safe Family Act of 1997 (ASFA). 42 U.S.C. §§671:-679. Specifically,

federal law requires that states shall make "reasonable efforts ... to preserve and

reunify families." 42 U.S.C. §671(a). In Pennsylvania, "the law prioritizes reunification

initially" and to this end, child service agencies "must, of course, put forth a good faith

effort in making [rehabilitative services necessary for the performance of parental

duties and responsibilities] available to the parent." In Interest of C.K., 165 A.3d 935,

943-44 (Pa. Super. 2017) (quoting In re J.J., 515 A.2d 883, 890 (Pa. 1986)). Child

service agencies typically fulfill this requirement through the implementation of family

service plans, which must be prepared for "all families receiving services." Burns v.

Department of Human Services, 190 A.3d 758, 763 n.8 (Pa. Cmwlth. 2018); 55 Pa.

Code §3130.61; 55 Pa. Code §3130.67. The child services agency has a clear duty to

"make reasonable efforts to finalize the permanency plan [that] is independent of the

parents' duty to accept such efforts." C.K., supra, at 943.

However, while an agency is expected under the law to make reasonable

efforts to promote reunification, this duty is not unlimited in time or scope. "If

reunification is not viable 'after reasonable efforts have been made to reestablish the

biological relationship,' child welfare agencies must work 'toward termination of 53RD JUDICIAL parental rights, placing the child with adoptive parents,' ideally within 18 months." Id. DISTRICT . ,··,, .... ·- ; � ,.- ., < • ' -. ,_

AWRENCE ·COUNT.V PE:NNSYLVANIA j:4 • ! 7 16 \. '.. ..:._ ·� .

at 944 (quoting B.L.L., supra, at 1016). The Superior Court has also stated that "We

cannot require CYS to extend services beyond what our legislature had deemed a

reasonable time after state intervention ... [the] state's interest in preserving family unity

must be weighed along with the state's interest in protecting children." In re J.T., 817

A.2d 505, 509 (Pa. Super. 2003) (citing In re Adoption of A.N.D., 520 A.2d 31 (Pa.

Super. 1986)). Simply put, the agency "is not expected to do the impossible and is not

a 'guarantor of the success of the efforts to help parents assume their parental

duties."' C.K., supra, at 942 (quoting In re A.LO., 797 A.2d 326, 340 (Pa. Super.

2002)).

Part of those reasonable efforts toward reunification include the child services

agency facilitating visitation between children and their parents, although the Juvenile

Act itself does not specify the necessary frequency of-those visits. In re C.J., 729 A.2d

89, 93 (Pa. Super. 1999) (citing In the Interest of M.B., 674 A.2d 702, 706 n,3 (Pa.

Super. 1996)). Administrative regulations provide thatthe child services agency must

provide visitation opportunities at least once every two weeks unless certain

exceptions apply, such as visitation running contrary to the child's best interest or

limitation by court order. 55 Pa. Code §3130.68(a)(3). Courts are generally cautioned

against restricting visitation when the goal of the family service plan remains

reunification unless a grave threat exists to the child's welfare. C.J., supra, at 95.

From the foregoing, the law may be summarized as follows. It is clearthat

once a child is adjudicated dependent and taken in CYS care, the agency is required

to compile a family service plan that has at its outset a goal of eventual reunification of 5JRD JUDICIAL OJSTRJCT the child and parents! a,n� _then must make reasonable efforts at providing services to

•WR la:NCE COUNTY PENNSVLVAN ..A

1,·; 17 ;} ;

·--------------------------------------------···· · ·-·-· · --··-··- · ······ · .-,_ ..

the family to achieve those ends, including visitation. In turn, the parent has a

corresponding duty to make reasonable efforts to take advantage of these services

and cooperate with CYS to effectuate eventual reunification. This arrangement is

reviewed every six months at the permanency review hearings, and if insufficient

progress on the reunification front has been made, the child services agency may then

move toward termination of the parent's rights.4

Despite the clear mandate favoring reunification imposed on CYS and other

child services agencies, an important question arises concerning the appropriate

sanction for agencies seeking termination of parental rights that nonetheless failed to

provide reasonable efforts toward reunification. In In re D.C.D., 105 A.3d 662, 671-72

(Pa. 2014), the Pennsylvania Supreme Courtconcluded that "neither [23 Pa. C.S.

§2511 (a) or (b)] requires a court to consider reasonable efforts provided to a parent

prior to termination of parental rights. Nevertheless, this Court has observed that the

provision or absence of reasonable efforts may be relevant to a court's consideration

of both the grounds for termination and the best interests of the child." (citing In re

Adoption of S.E.G., 901 A.2d 1017, 1029 (Pa. 2006)). Rather than denying an

otherwise meritorious termination petition to punish an agency for failing to expend

reasonable efforts on reunification services, the high court directed that the

appropriate remedy was for the trial court "to conclude on the record that the agency

has failed to make reasonable efforts, which imposes a financial penalty on the

agency of thousands if not tens of thousands of dollars under [ASFA]." Id. at 675.

53RD JUDICIAL DISTRICT . - • Permanency review hearings at six-month intervals are required by statute. 42 Pa. C.S. §6351 (e)(3). AW.RENCE COUNTY PENNSYLVANIA

18 In short. the trial court must only determine whether the party seeking

termination has satisfied the statutory grounds at 23 Pa. C.S. §2511; reunification

services, or the lack thereof, may be. relevant, but cannot be a basis for denying an

otherwise worthy and proven termination petition.

The basic facts of this case indicate that CVS developed a family service plan (FSP) by April 2014, within six months. of Children corning info care; and thatthe

FSP's ultimate goal was reunification With Parents ("return to parent or guardian'').

See, e.g., Permanency Review Orders dated 9/16/15, 3/11/16;9/2/16, 3/22/17,

9/17/18. The FSP, which applied to both parents, was comprehensive and contained

steps individually tailored to Mother's and Father's respective circumstances.

Mother's FSP included requirements that she, inter alia, maintain a clean home,

undergo mental health and psychological assessments, complete domestic violence

counseling, complete a parental capacity assessment, and undergo a drug and

alcohol evaluation. Father's FSP included similar steps and also required that he

complete. anger management and a barterer's support group.

It is plainly evident that CYS provided reasonable efforts toward Mother

because she made substantial progress with completing all points of her plan.5

Mother was able to achieve nearly all goals of her FSP, as she successfully obtained

mental health and psychological evaluations. attended a domestic violence support

group, cleaned up her home, and attended parenting classes. The only remaining

factor on her FSP was completing a second parenting capacity assessment, and the

53RD 5 JUDICIAL for example, CYS referred Mother to Mr. Brian Dick, Who performed a parental capacity assessment in DISTRICT December 2014, Although Mr. Dick did not give Mother a favorable rating in this first assessment, CYS decided to refer Mother forasecond assessment with Mr. Dick in August 2016 to examine whether she had made any progress in·the interim; Second referrals, as Mr. Dick testified, are extraordinarily rare. /RE:NCE CQUNTV ENNSVLVANJA

19 \.•\ ·.:, : -----------------····-···· · ···· ·-·---�----�--------- .. -·----·· - record demonstrates that Mother failed to follow up on this despite repeated prompting

from CYS and Mr. Brian Dick in late 2016. CYS also facilitated reunification

counseling between Mother and Children from 2014 to 2017 through providers Tressa

French and Tanya Stahlman. During Ms. Stahlman's work with Mother and Children,

she refocused the sessions from reunification to resolution in order to address some

serious and outstanding issues between Mother and Children, particularly K.M.R. In

any event. at no time in this case did CYS fail to provide services for Mother or

opportunities for her to complete the FSP.

Children maintained regular, biweekly social visitation with Mother in the time

between January 2014 and November 2014, at which point CYS stopped scheduling

Visits at Children's behest. Ms. Pieri, Children's CYS caseworker, noted that their

refusal to attend stemmed from Mother's alleged misbehavior during some visits, such

as pinching K.M.R. and asking her to lie to CYS, which caused so much stress for

K.M.R. that she resorted to self-destructive and self-harming behavior. Recognizing

these dangers to Children's well-being, the Court issued an order on January 6, 2015

limiting visitation with Mother pending the discretion of a counselor who would

determine if and when visitation would resume, which was continually readopted by

subsequent permanency review orders. See, e.g., Permanency Review Orders,

9/15/15 and 9/17/18.

Father was also subject to the FSP, although his ability to comply was

somewhat hamstrung by his enrollment in the Teen Challenges Program and repeated

incarcerations. Indeed, when he was out of jail, Father was able to enjoy both social 53RO JUDICIAL DISTRICT . i -, : ) "+-- > •• ...

AWRENCE COUN.TY PENNSYLVANIA

20 visitation with Children and later counseling sessions with K.M.R.6 It is also apparent

that when he was not imprisoned, Father was in close contact with CYS, specifically

Children's caseworker Ms. Amber Pieri. By these indications, CYS seemed generally

willing to work with Father on his FSP compliance, and moreover there is nothing in

the record to suggest thatCYS deliberately withheld Father from a parental capacity

examination. Rather, given Father's intermittent availability and documented lack of a

permanent residence, it is likely thatthe time was not yet ripe for a parental capacity

assessment, a process which requires that the evaluator visit the home and observe

how the. parent and child interact intheir natural setting. Further, setting aside

concerns that Father failed to raise any issues at the hearings with respect to the

availability of a batterer's support group in Lawrence County, the FSP did not mandate

that he attend the support group with any specific provider." Indeed, even acceptinq

Father's premise as true (i.e. the dubious claim that no batterer's support groups of

any kind are available in Lawrence County), a thorough search by this Court

uncovered no legal requirement that CYS had to ensure Father's ability to complete

the FSP entirely within his county of residence.

In sum, Mother's and Father's contentions that CYS failed to provide a family

service plan and failed to provide reasonable efforts toward reunification are clearly

6 Father's visitation rights were also specifically addressed by a September 2015 Order of Court following his release from the Teen Challenges Program. The record indicates that Father enjoyed social visitation with Children approximately once every two weeks between September 2015 and February 2016. 7 Pa. RAP. 302(a) states that "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." See a/so.Jones v. Ott; 191 A:3d 782 {Pa. 2018). During the numerous 53RO termination hearings, Father never placed on the record any issue with respect to CYS' purported failure JUDICIAL DI.STRICT to ensure that he could attend a batterers support group in Lawrence County. Nonetheless, this Court addresses this contention with th� caveafth_at\we only do so in the interest of a full and fair exploration of the issues before the Superior Court. ·- · WRENCE COUNTY PENNSYLVANIA

21 i � •..•- t . :.

·--�-------------------------------·-· indefensible when considered next to the facts of this case. CVS developed FSPs for

both Parents and then expended considerable resources to help Parents realize the

overarching goal of reunification with Children. To the extent that Mother and Father

assert that their right to visitation with Children was improperly curtailed, it is

noteworthy that the question of visitation frequency was addressed through two orders

of court that instituted specific limitations in response to seriously concerning

misbehavior from each parent. Likewise, Father's additional arguments are betrayed

by his inability to maintain a residence suitable for a parental capacity evaluation and

the absence of any legal standard requiring the provision ofall reunification services in

the parent's home county.

Moreover, even if it is determined that CYS failed to provide reasonable efforts

toward achieving reunification, Mother's and Father's arguments necessarily fail. As

setforth by the D.C.D. Court, the appropriate sanction is a notation on the case record

which would then cost CVS thousands of dollars in federal funding. Besides the fact

that this Court made no such finding on the record, CVS met its statutory burden for

proving termination under 23 Pa. C.S. §2511.8 Therefore, regardless of the

reasonableness of CVS' reunification efforts, termination was proper in this case and

these errors should not be considered on .appeal. IV. Failure to Apply the Law to the Facts of the Case

Mother and Father each contend at No. 2 of their concise statements that this

Court failed to apply the law to the facts of the case and return Children to Parents,

53RO JUDICIAL DISTRICT ; . -. :_ 8· See IV. Failure to Ai,.plv the Law to the Facts of the Case, infra. '"1' ··· I'l, ·,..''. -I.l...' :.•,r ,...,., ' • (, (";·'. LWRENCE COUNYY PENNSYLVANIA � '-' • � .l i 1·· .• l... u � t ;

-.J J ' 22

··--··-·--------..--·- with Mother individually complaining that she was entitled to regain custody of

Children because she had completed her FSP,

The law that trial courts must apply to termination petitions is Well settled and

ironclad. Courts must always be mindful that parents have a constitutionally

guaranteed right to the. control, care and custody of their children, which is abrogated

and converted into the child's right to proper care only upon the breach of their

parental duties. In re AS., 11 A.3d 473, 478 (Pa. Super. 2010). In Pennsylvania,

courts safeguard these rights and balance the competing interests by adhering to the

bifurcated analysis mirroring the structure of 23 Pa. C.S. §2511:

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 delineated in Section 2511 (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 ofthe best interests of the child.

In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (citing In re L.M .. 923 A.2d

505, 511 (Pa. Super. 2007)). Clear and convincing evidence is defined by the

Superior Court as "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." 1.Q.. (citing In re C.S., 761 A2d 1197, 1201 (Pa,

Super. 2000) (en bane)).

For purposes of this appeal, CYS filed the termination petitions asserting that 53RO JUDICIAL DISTRICT grounds for termination existed asto.both .. .,,, . ,.. other and Father at 23 Pa. C.S. ,.M .. ·. ,

,WRENCE COUNTY PENNSYLVANIA

- ...,._, ..... 23

-----------------···----··--···-·-· · ····-····-·· . §2511 (a)(2) and (a)(B), and that Children's needs and welfare would be best served

by termination pursuant to Section 2511(b);9 In the January 16, 2019 Opinion, this

Court recounted at length the precedents which guided our evaluations of grounds for

termination at 23 Pa. C.S. §2511 (a)(2).10 Pertinent to any consideration of termination

under Section 2511 (a)(2) is that "parental incapacity that cannot be remedied [is] not

limited to affirmative misconduct; to the contrary, those grounds may include acts of

refusal as well as incapacity to perform parental duties." Matter of Adoption of M.A.B.,

166 A.3d 434, 444 (Pa. Super. 2017) (internal citations omitted) (emphasis added).

9 23 Pa. C.S. §2511; Grounds for involuntary termination

(a} General rule. - The rights ofaparent 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 ofthe parent has caused the child to be without essential parental care; control or subsistence necessary for his physical or mental weil-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannotor will not be remedied by the parent *** (8) The child has been removed from the care ofthe 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 or the child continue to exist

and termination of parental rights would serve the best needs and welfare of the child,

(b) Other considerations. - The court in terminating the rights of a parent shall give primary consideratlcn 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. 53RD JUDICIAL 10 See, e.g., In re N.A.M., 33 A.3d 95_,.1pO.(f;la.,-Super, 2Pl1}; In re Interest of Lilley, 719 A2d .327, 330 DISTRICT (Pa. Super. 1998); In re Geiger. 331 A.2ci':172 (Pa: :1975);�-in re E.AP., 944 A.2d 79, 82 (Pa. Super. 2008). WRENCE COUNTY PENNSYLVANIA

!/ . 24 . -..;.·_ .. 1 i .. : "

�--·. .,. r .' - For Section 2511 (a)(8), this Court extensively applied the tripartite test set forth by !D.

re M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003).11 Lastly, for the Section 2511(b)

branch of the analysis, this Court relied on M.A.B., supra, at 448 and T.S.M., supra, at

269 which require that trial courts consider the bonds that exist between a parent and

child, as well as myriad other factors, such as love, comfort, safety, and relationships

with the fosterfarruly. See also In re Adoption ofC.D.R., 111 A.3d 1212 (Pa. Super.

2.015); A.S., supra, at 483. In short, the law that Pennsylvania courts must

unwaveringly apply when evaluating termination petitions is 23 Pa. C.S. §2511, the

subsections. of which in turn necessitate the bifurcated analysis as further interpreted

and expanded through case law.

In the case sub judice, CYS had the burden of proving by clear and convincing

evidence that grounds for terminating Mother's and Father's parental rights existed

under 23 Pa. C.S. §2511(a)(2) and (a)(8). Regarding Mother (and disregarding her

assertion that she completed every item on the FSP; see llL supra), this Court was

satisfied that CVS provided clear and convincing evidence that Mother exhibited ah

irremediable emotional incapacity under Section 2511 (a)(2), i.e. that Mother could not

provide essential care and control of Children due to her inability to have any

semblance of an emotional relationship with them. However, this Court was not

persuaded that grounds for termination existed as to Motherunder Section 2511 (�)(8),

and thus denied that ground. Likewise, applying the test set forth by Section 2511 (b),

11 In reAdoption of M.E.P., E325 A.2d 1266, 1276(Pa. Super; 2003) stated as follows with respect to 53RC JUDiCIAL Section 2511 (a)(B): "[The] following factors must be demonstrated: (1) the child has been removed from DISTRICT parental care for 12 months or moi'�-fro.m· the date 9f,removal; (2) the conditions which led to the removal or placement of the child contlnue' to exisl;'"and (3) termination of parental rights would best serve_the needs and Welfare ofr;tl:A.c�i!_d.".- (.,,,!._ ,. ,L:� -,·,� •r:-.'4 I • - ,WRENCE COUNTY. i: i.Il.i PENNSVLIIANIA this Court was satisfied that Children's best interests would be served by termination.

Regarding Father, this Court. concluded that CYS met its burden for showinq that

grounds for terminating his parental rights existed under Section 2511 {a)(2) and (a){8),

and that it would again be in Children's best interests under Section 2511 (b) to have

his rights terminated. At all times, this Court applied the statutory and case law

provisions applicable to the asserted grounds for termination, and made its decisions

based on the strength of the evidence presented. Therefore, this matter should not be

considered on. appeal.

V. Failure to Stay Final Order Pending Dependency Appeals

At No. 8 on their concise statements, Mother and Father each argue that this

Court erred by failing to stay issuing its final order on the involuntary terminations

While the Dependency Appeals remained pending before the Superior Court.

Pennsylvania Rule of Appellate Procedure 1701 governs the effect an appeal

has on the trial court below. Pa. R.A.P. 1701 {a) states that unless otherwise

prescribed by the rules, "after an appeal is taken or review of a quasijudicial order is

sought, the trial court or other government unit may no longer proceed further in the

matter." However, Pa. R.A.P. 1701(c) (emphasis added) qualifies this by decreeing

that '[wlhere only a particular item, claim or assessment adjudged in the matter is

involved in an appeal. .. the appeal .or petition for review proceeding shall operate to

prevent the trial court or other government unit from proceeding further with only such

item, claim or assessment... '1

Additionally, clear precedent from the Pennsylvania Superior Court disfavors 53RD JUDICIAL staying all proceedings frivo[vj.ngJ:1.d.epen�ent child solely because one issue or order DISTRICT � .• - i .• �'

,WRENCE COUNTY PENNSYLVANIA ,. - -, � ;.., :' '. ... 26

··· ·-·---------------------------- is on appeal. "Depriving a Juvenile Court of jurisdiction merely because a single

Order, involving any issue or party; has been appealed ... would also frustrate the

statutory authority of the Juvenile Court to exercise continuing_ independent and

original authority to adjudicate in the best interests of a dependent child." In re Gdffin,

690 A.2d 1192, 1200 (Pa. Super. 1997). Indeed, "[maintaining] the status q1,.10 while

awaiting resolution of a parent's appeal could never justify the risk to a child forced to remain in a possibly safe or unsatisfactory situation." In re R.P., 956 A.2d 449, 455

(Pa. Super. 2008).

Here, the Dependency Appeals of October 5, 2018, involved separate issues

from the termination petitions and motions for goal change. While it is undeniable

that, for purposes of judicial economy, this Court scheduled and conducted hearings

for both tracks of cases concurrently, ultimately the two sets of cases are concerned

wlth different legal issues and outcomes. Therefore, this Court, pursuant to Pa. R.A.P.

1701(c)and the aforementioned case law, declined to stay the termination

proceedings; accordingly, this matter should not be. considered on appeal.

For the foregoing reasons, we respectfully request thatthe Superior Court

affirm our January 16, 2019 Order of Court, and dismiss the appeal in this matter:

53RD JUDICIAL I ,, �·. ; DISTRICT ' ,' • I •

,WAENC�- COUNTY Pi.NNSYLVANIA

27 Circulated 07/24/2019 10 50 AM

.- { '·...

K.M.R. : N0.940F2013,DP; NO. 20012 of 2017, OC-A

J.L.A.

APPEARANCES

For Children and Youth Services: Carolyn Flannery, .Esq. 1001 East Washington Street New Castle, PA 16101

For Natural Mother, M.R.: Dennis Mccurdy, Esq. 539 Main Street Harmony, PA 16037 ..;.J . <" For Natural Father, C.A.: Bradley G. Olson, Jr., Esq. z 28 North Mill Street (..')

Forthe Minors: New Castle, PA 16101

Paula Cialella, Esq. - Cl w ...;J . z ...-;,:: -, 113 N. Mercer Street � New Castle, PA 16101

Guardian Ad Litem: Nora DiBuono1 Esq. 701 First Avenue Ellwood City, PA 16117

Hodge, J. January 16, 2019

Presently before this Court are the Petitions for Involuntary Termination of

Parental Rights (Termination Petitions) filed by Lawrence County Children and Youth

53RCI Services (CYS) againstboth natural parents, M.R. (Mother) and C.A (Father) JUCICIAL DISTRICT (collectively Parents), as to two of their minor children; K.M.R. and J.L.A. (collectively

\WR£NC:1; C:OUNTY PENNSYI.V.ii.:NtA

--·--·-·-·--------·------ r (

Children), and Motio.ns for Goal Change from reunification to adoption. For the reasons

set forth below, this Court· grants the Petitions for Involuntary Termination of Parental

Rights and the Motions for Goal Change.1

Procedural Histery I

The lengthy and complicated procedural history and record of this case is virtually

inseparable from that of the companion dependency cases, and thus a brief summation·

of those earlier proceedings is as follows. Children were first taken into emergency care I

by an order of this Court dated N�er 4, 2013. CYS then filed a dependency

petition on November 18, 2013, and three days later, this Court adjudicated both

Children dependent, pursuant to the Juvenile Act (42 Pa. C.S. §§6301 et seq.), based on evidence presented that Father had physically assaulted Mother with Children p�ent �;� :;;_�� ..... .. �·� and that Mother's home had deplorable conditions. Accordingly, by dispositional:iirder:� · i·}� . - C!> . o-- =: �-� dated January 5, 20141 this Court assigned legal and physical custody of Childre5to � c';;:: -...... t=.i�

CYS.�Since the initial dependency finding this Court has conducted permanen�evi� � - u. � t$ii:c:;':J.:; hearings approximately every six months as required by the Juvenile Act and has c:..:) .: N· · """ii-·.

continued to find Children dependent, and their placement in foster care appropriate, as

_documented by each permanency review order to date and including the most recent

one issued on September 17, 2018.2

1.Although the bulk of this opinion and order addresses the Termination Petitions, filed under the Orphans' Court docket numbers (Nos. 20011 and 20012 of 2017, OC·A), for purposes-of judicial economy we include the Motions for Goal Change which were filed under the companion dependency docket numbers (Nos. 94 and 95 of 2013, DP). 53RO 2 JUOlCIAI. On October 5, 2018, Mother appealed this permanency review order to the Superior Court. Later, 'on DISTRICT November 1, 2018, Mother moved that adjudication on the Termination Petitions be stayed pending the Superior Court's decision on the dependency appeal, but this Court denied the motion. See Order of Court, December 4, 2018. LAWRENCE COUNTY P'E ...... SVL.VANI.A 2 ' ••

Following several years of dependency hearings, CVS presented the Motions for

Goal Change and Termination Petitions on April 11, 2017, alleging that Mother's and

Father's parental rights should be terminated pursuant to 23 Pa. C.S. §2511(a)(2) and

(8). This Court conducted the foTiowing hearings, and the fol)owlng witnesses testified,

over a sixteen-month period and formed the bulk of the factual record underlying this

opinion:

1. August 8 and 9, 2017; K.M.R. and therapist Tanya Stahlman;

2. September 26, 2017; Ms. Stahlman (continued) and counselor Brian Dick;

3. March 28 and 29, 2018; psychofogist Dr. Fred Gaito and CVS caseworker

Amber Pieri;

4. June 26, 2018; Ms. Pieri (continued) and testimony from Father and Mother;

5. August 27, 2018; CVS caseworker Kristen Pauline.

Besides the considerable evidence accumulated at .these hearings, aH parties

stipulated at the first hearing (August 8, 2017) to incorporate the factual record of the

dependency cases into the record of the Termination Petitions and Goal Change Motions. Following the close of evidence on August 27, 2018, this Court permitted a)I

parties to file proposed findings of fact and conclusions of law, which were received by October 31, 2018.

FINDINGS OF FACT

I. Parties to the Case

· 1. K.M.R. is a female child bom November 6, 2001, in Lawrence County,

Pennsylvania. 53Ro JUDICIAL OISTRICY

t.AWfUt:NCC COUNTY PI.NN!IVI..VANIA 3 ' . minimize it, even to the detriment of Children. On the few occasions Mother took

action in response to Father's behavior, such as staying In an alternate location

for the night, K.M.R. stated that Mother tended to reunite with him soon after. Id.

at 9, 13. 10. Neither Mother nor Father had a full-time job as of November 2013. A stay-at- · home mom, Mother's primary source of income consisted of monthly disability

checks she had been receiving since 2001. Meanwhile, Father was "a completely

different person; addicted to heroin, alcohol and pain pills, and mainly focused on

where to get and how to pay for his next dose of drugs. N.T., 6/26/18, at 19, 54

194, 195.

11. Mother declined to enroll K.M. R. in the local public school system, the Laurel

School District, and chose instead to homeschool her. Mother intended the same

for J .L.A. but could not do so because at the time, J.L.A. had not yet reached the

age of eight:years-oid, th� minimum required for schooling in Pennsylvania. Id. at

154, 202.

12.0n November 2, 2013, under the influence of drugs, Father beat, punched'and

assaulted Mother violently and constantly for a period of six hours and inflicted

injuries so-severe, including a punctured lung, that she had to be flown via

helicopter to Pittsburgh for medical treatment. Mother later estimated that Father

struck her approximately 300 times duriog this episode and that she required

near1y a week or hospitalization before becoming stable enough for release.

Children were present for and witnessed at least some portion or this attack, part SStito JUDICIAL lJISTRICT

s 1..AW#tt:HC& COV"fTY �C ... HSVf.VAHIA .' physlcal and legal custody. Children have remained with the same foster family

since December 14, 2013. See Permanency Review Order, September 17, 2018.

17. As required by the Juvenile Act, permanency review hearings have taken place

approximately every six months to evaluate whether the finding of dependency

· and Children's placement remains appropriate. The most recent review hearing

took place on September 17, 2018.

18. By the spring of 2014, within months of Children's initial placement, CVS

caseworker Kristen Pauline developed the initial Family Service Plan (FSP) (also

known as a Child Protective Plan, or CPP) that outlined the steps Parents were

required to take prior to any reunification with Children. The FSP was drafted in

response to the conditions that necessitated Children's removal from the home.

Some steps of the FSP applied toboth parents, while others pertained to only one

of them. Among the steps on Parents' FSP:

• Keep the home clean and free from clutter.

• Schedule a mental health assessment to determine if the parent has any mental health issues that would impact parenting the child.

• Obtain a psychological assessment.

• Complete domestic violence counseling.

• Complete anger management classes

• Complete a parental capacity assessment.

• Undergo a drug and alcohol evaluation.

N.T .. 3128118, at 144-45, 8128118 at 31. 53RO JUDICIAL DISTRICT

LAWAINC-C COUNTV ...e:NNSVI..VA.NIA 7 19. In addition to the affirmative steps required of Parents, reunification was

contingent upon the successful completion of counseling sessions between each

Parent and Children designed to discuss and work through outstanding issues. At

various times, Children participated in counseling sessions with either Parent, but

at no time were both Parents and both Children present at the same therapy

session. Between early 2014 and September 2015, therapy was facilitated by

Tressa French, and then by Tanya Stahlman from September 2015 to June 2017.

N.T., 8/8/17, at 9, 10.

20.Alongside the efforts to complete the FSP and counseling, Mother and Children

engaged in CVS-supervised social visitation from January 2014 to September

2014, as required by regulation.3 Largely at Children's insistence,£YS stopped,

scheduling and facilitating visits in September 2014, which prompted Mother.Jo C\J ··c . � c ..... � � file a Motion to Resume Visitation in November 2014. On January 6, 2015je ;i:: .. c, ..:. .) C.1.J - Ll.. 0: =l: : Court issued an order appointing a special counselor who had discretion td2 � 0, c.:;; � c :!: �J·" determine if, when, and how visitation would resume. These issues rema�d � -..,s.S � .... 4... � -'- g-� """' unresolved with each subsequent permanency review order, as all �pecifically c-... :.:;;] 9. . . provided that "Prchoitionot contact with [Children] shall continue unless

approved by [CYS] and by further order." Order of Court, January 6, 2015; N.T.,

3/28/18.; at 153.

21. Though unbeknownst to her parents at the time, K.M.R. was the victim of sexual•

•abuse committed by a neighbor, the now-deceased David Anderson, for a period

of approximately one year predating her placement with CYS, from sometime in 53RD JUDICIAL CISTftl�T

3 55 Pa. Code §3130.68. LAWRENCE COUNYV F'E'°'N$VL.VANIA 8 25. Dr. Gallo additionally testified as a fact witness with respect to the psychological

evaluation he performed on Mother on January 18 and 20. 2016, whose goal was

to evaluate . Mother'·s "psychological functioning and her fitness . for reunification for

her children." Id. at 32.

26.As part of the evaluation, Dr. Gallo administered a wide range intelligence test,

the Beck Anxiety inventory, the Beck Hopelessness Scale, the Minnesota

Multiphasic Personality Inventory, some projective tests, the Thematic

Apperception Test, and a parent/child relationship inventory, all of which are

approved diagnostic tools from the American Psychological Association. Dr.

Gallo obtained additional material for his evaluations from conversations with

other professionals familiar with Mother, such as counselor Jim Hines and

therapist Tressa French. Id. at 25-30.

27. Dr. Gallo drew the conclusions that Mother presenteffih a superior intellectual

'ability, did not present with severe depression or anxiety, did not demonstrate, .

signs of post-traumatic stress disorder, or any major psychological disorders. Dr.

Gallo further stated that Mother's 11psychological functioning is adequate and that

she has good parenting skills ... she appears to be highly motivated to resume the

strong connection with children regardless of the time that it is taking." Id. at 32·

33 (quoting from Mother's Exhibit D).

28. Dr. Gallo opined that Mother's psychological condition permitted her to resume

supervised visits with Children and proceed with reunification counseling. Id.

29.Although he reached conclusions on Mother's parenting abilities, Dr. Gallo'sll 53RCI JUDICIAL DISTRICT �ssessments were neither a custody evaluation nor a parental capacity•

LAWRENC£ CO'UNTY P£NNSYL.'1ANIA 10 (

focus for each patient. For Mother, the focus was on "her ability to attune to her

daughters' feelings, validate those feelings, understand their trauma experience,

develop the necessary skills to parent a child [who] has dealt with trauma in their

lives." For K.M .. R., the sessions centered on how to "process and find resolution

from the traumatic experiences that she has had in her life," both with respect to Parents and Mr. Anderson. N.T-,, 3116/17, at 65, 76.

41. When Ms. Stahlman first took over the therapy sessions, the clinical goal

remained family reunification. However, after K.M.R. expressed resistance to that

goal, Ms. Stahlman reoriented the sessions from reunification to resolution, i.e.

"what does it mean to understand the circumstances that have happened to her,

how can [she] and her rnoiher talk about tne traumatic experiences that they have .1

had in relation to one another and then overcome those feelings.'' Children•

opposed reunification counseling because they "felt that their psychological safety

awas at risk." Id. at 65-66; N.T., 9126117, at 23.

42. Once the goal was changed to resolutio",, KM.R. made remarkable progress in identifying, sharing and verbalizing feelings, and developing healthy stress'coplnq

mechanisms, although she still occasionally �ngaged in self-harming behaviors

(rubbing her skin raw, digging her fingernails into her arm, etc.). There has

additionally been "progress in the reduction of negative feelings, n like. anger and

frustration4 between K.M.R. and Mother, but not much in the way of building

positive feelings. N.T., 3116117, at 66-67, 74, 94.

43. With respect to J.L.A., Ms. Stahlman believed that due to her age, she was 5)RI) JUDICIAL DISTRICT JtUmbed and "overwhelmed with the amount of emotions that she feels" and had

t.AWRENCE COUNTV P'ENNSV LVAN.&A 14 51.Ms. Amber Pieri has been the casewori

an educational leave of absence from CYS In August 2016, and was able to

access all of the documentation and notations compiled on this case. �· T.,

3/28/18,at 134.

52. Ms. Piert reported that Children's feelings toward contact with Parents, and

particularly Mother, evolved over the course of 2014. tn January 2014, Children

still reported a "positive outlook". owarcf reuniffcatfon wilh Parents; by late

September, these feetlngs changed to a refusal to participate in any social

visi1ation, in part due to allegations that Mothef exhibited inappropriate behavior

during the visits such as pinching K.M.R. and ask.Ing her to lie to CYS. Some

visits resulted in so much emotional distress to K.M.R. that she engaged in self-

destructlye behaviors such as biting/pinching herself and placing a plastic bag

over her head while threatening to suffocate herself. Id. at 153-54; N.T.• 3/29118,

at 21. 28.

53. Notwithstanding Children's newfound refusal to participate, CVS still made efforts

to facintate the social visits between Children and Mother for some length of time,

likely at least until November 2014. N.T., 3128118, at 145-46.

54.Ms. Pieri recalled that following Children's September 2014 refusal to continue

with social visitation; CYS had no immediate plans to refer the case for family

reunification counseling. N.T., 3/29118, at 29.

55. Setting aside issues pertainlng to visitation and therapy, Mother generally

complied' and successfully completed mos� parts of the FSP: she provided a drug sano JUDICIAL DISTRH:T and alcohol evaluation, completed parental education. classes and domestic

t.AWl'UiNCli COUNTY JICNN&Vt..VANIA 17 (

·violence counseling iit the Crisis Shelter, obtained psychotherapy, underwent a

psychological evaluation, and had a parental capacity assessment. N.T., 3/28/18,

at 178-84; Mother's Exhibits F-L

56. Mother, unsatisfied with the results of both the psychological evaluation and the

parental capacity assessment. and on her own initiative·, obtained the

aforementioned second psychological evaluation from Dr. Gallo and further

attempted to get a new parental capacity assessment from Ms. Susan McC�nnell,

even though she was not recognized as a service provider by CVS. Neither the

psychological evaluation from Dr. Gallo nor the attempted second parental

capacity assessment from Ms. McConnell was accepted by CVS for purposes of

the FSP. N.T., 3/28/18, at 177-78.

57. The only remaining portion of the FSP for Mother to complete. is the second

parental capacity assessment. Moreover, the physical conditions at Mother's

home that factored into the initial placement were no· longer present by Decemoer

2017. By this time, the home· had working utilities' and appropriate furnishings for Children. Id. at 143, 152.

E. Additional Findings

58. Mother testified at the June 26, 2018 termination hearing.

59. Mother testified that she received letters and cards from Children follO\Ning their

placement with CVS. N.T., 6/26/18, at 137.

60. Mother attended the traurri�unseling sessions with Ms. Stahlman between

2015 and 2017 but made it known that her primary focus was on reunification with 5:5RO JUDICIAL. Children. Id. at 125. DISTRICT

1.AWRENCfi COUNTY PENHSY l.,.VAHlA 18 61. Mother also submitted numerous requests to CYS to have social visitation

restored following its suspension in September 2014, but did not see Children in a

social capacity since then.4 Id. at 126.

. 62. For a period of at least five years pr�ceding the November 2013 incideht that

prompted placement, CYS responded to Mother's home on at least two occasions to follow up on reports filed by the paternal grandfather that the home was in

disarray. Id. at 140.

63. Mother believed that the paternal grandparents had influenced Children and

worked to tun, them against her and �abotage any attempts at reunification. Id. at

130.

64. In June 2017 Mdthereomposed and sent a "Notice/Demand" letter to cvs:

apparently out of frustration that Children had not yet been returned to her,

demanding the immediate retum of her "property," i.e. Children. In her letter,

Mother did not refer to either of Children by name because "I don't want their

names, I want my children." Mother had researched old English law and the

Declaration of Independence when drafting this letter and signed It at the bottom

with a fingerprint. Id. at 145-47, 208; CYS Exhibit 5.

65.Mother did not belie.ve any statements from CYS, therapists or other professionals

that Children did not want to return to her care, even though K.M.R. herself made ' . the same statement on the record during the March 16, 2017 permanency review

hearing. See Paragraph 90, infra; N.T., 6126/18, at 148, 150.

5)AO .JUDICIAL DISTRICT ' Besides the therapy sessions wtth Ms. Stahlman, Children saw Mother briefly in late 2017 al a hospital yisit foNowing the birth of Mother and Father's third child toge!her, AA, a minor not Involved In the cases sub Judice but Instead the subject of an unrelated depenllency case, No. 58 of 2017, OP. ,AWR�NCC COUNTV ,-«HHSYLVA"'IA 19 . •

66.Although she denied that her relationship with Father prior to November 2013 was

part of a cycle of domestic violence, Mother admitted that Father made threats

against. her in February 2013 that prompted her to seek a temporary Protection

From Abuse (PFA) Order against him. Moreover, Mother conceded that any _

children who witness a cycle of domestic violence would .likely be traumatized and

agreed with the conclusion that Children had been traumatized. Id. at 186-88.

IV. Findings as to Father

67 .As of June 2018, Father was working for City Rescue Mission in their

maintenance department and earning approximately $1 O per hour. N.T., 6/26/18,

at 16, 40.

68. Father was also required to complete the FSP after Children were placed in foster

care. N,T., 8/28/18; at 31.

69. Following his sentencing in March 2014, Father remained in the custody of the

Teen Challenges Program until his release ln July 2015. At this program, Father

took classes on anger management, drug and substance abuse, and life skills

(e.g·. finding a job). N.T., 6/26/18, at 22-23.

70.After his release from . Teen Challenges, Fath.er remained . on probation, subject to

regular check-ins with his probation officer and drug testing. Since July 2015,

Father has bee� incarcerated in the Lawrence County Correctlonat Facility on

· three separate occasions for new charges, such as driving under the influence

and retail theft: March 16, 2016-June 10, 2016; June 28,.2016-July 12, 2016;

September 26, 2016-January 27, 2017. Id. at 25-26; N.t., 3/28/18 at 138-39; · 53RI) JUDICIAL ClSTRICT Guardian Ad Litem Exhibit 1.

.A.WREN CE COUNTY J:-ENNSYLVANIA 20 t .

71.Within the year leading up to the November 2013 assault, Father admitted that he

had developed a severe drug problem, and over the days leading up to that

incident had ingested heroin, cocaine and benzos, N.T., 6/26/18, at 25, 38-39.

72 . Father also recalled that smaller incidents of domestic violence preceded his

November 2013 assault on Mother, such as pushing and shoving. Id,

73. Father testified that, although not living full-time with Mother and Children at her

residence, he had a .general knowledge ofthe living conditions there and the fact

that Children were not enrolled in the local public schools. However, Father was ' unaware of the sexual abuse inflicted upon KM.R. at that time. Id. at 41, 53.

74.Althoug h conceding that "I wasn't there as much as I should have been," Father

generally described his· pre-placement relationship with Children as "good"

because "when we were together, we were happy." Id. at 45.

75. Father acknowledged that his behavior was part of the reason for the trauma

Children suffered, particularly K.M.R. Id. at 96.

76.Father and Children engag�d in social visitation approximately every other week

between September 2015 and February 2016, pursuantto a September 2015

court order that placed oversight and discretion for visitation or any contact with

Children in the hands of the court and CYS. Father stated thathe generally

enjoyed these . .visits. ld. at 50, 93, 100 . 77.Social visitation with Children ceased after February 2016, following Father's

incarceration, and any contact with him from January 2017 onward was solely

within the confines of supervised sessions with Ms. Stahlman. Id. at 103. 53RD JUDI_CIAL DISTRICT

-AWRE:N.CI:: COUNTY PCNNSY I.VANIA 21

··---·----·-··------------ '88. Ms. Pieri testifi� that It would be in Children's best interests if the termination of

parental rights is granted because •there ls no bond or attachment with the gins

and either parent and they do not feel safe to go home." Id. at 170.

89. Ms. Stahlman testified that after her work witli Children, she observed that "they

did not feel that there was an attachment to their biological mother ... and they

were fearful that returning back to [her] home [and] the behaviors and

environment that was present previous to their placement In foster care would

represent itself: N.T., 9/26/17, at 23.

90. Testifying to her circumstances at a permanency review hearing, K.M.R has

stated that she has no desire to return to Mother's home or care, 'does not love

her, and does not want any relationship with her going forward. K.M.R. has

articulated similar apprehensions about living with Father. N.T., 3/16/17, at 40, 47.

48, 53-54.

CONCLUSIONS OF LAW

l. Conclusions as to Mother

1. Prior to, during, and after the events relating to the placement of Children, Mother

exhibited an irremediable emotional Incapacity toward her Children that has

caused, and would continue to cause, Children to be without essential parental

care necessary for their mental well-being, which is grounds for termination under 23 Pa. C.S. §2511(a)(2).

· 2. Although Children had been removed from Mother's care for a per'iod of more.

than 12 months predating the filing of the Termination Petitions. the conditions $)RD JUDJCIAL DISTnlC::T

,wRCNCI COUN'rV ..CNN·V�VAHIA 24 which led to the removal and placement of Children have ceased to exist, and

thus there are no grounds for termination under 23 Pa. C.S. §2511{aJ(8).

3. The terrnlnatlon of Mother's parental rights will serve the developmental, physical,

and emotional needs of the child as contemplated by 23 Pa. C.S. §2511{b).

· 11. Conclusions as to 'Father

4. Father has exhibited repeated and continued incapacities that have caused

Children to be without-essential parental care, control or subsistence necessary

for their physical or mental well·being and these incapacities cannot be remedied,

which is grounds for termination under 23 Pa. C.S. §2511 (a)(2).

5. Children have been removed from Father's care for a period of more than 12

months, the conditions which led to their removal and placement continue to exist,

and termination would be in their best interests; thus, grounds for termination exist

under 23 Pa. C.S. §2511 (a)(8).

6. The termination of Father's parental rights will serve the developmental, physical,

and emotional needs of the child as contemplated by 23 Pa. C.S. §2511 (b).

Ill. Discussion

· It is a fundamental principle of American law, and one that has been affirmed by

the highest court in the land, that all parents have a constitutionally protected right to the

control, care and custody of their children. Santosky v. Kramer, _455 U.S. 745 (1982).

However, this right is not absolute; "a parent's basic constitutional right-to the custody

and rearing of... his children is converted, upon the failure to fulfill ... parental duties, to

the children's right to have proper parenting and fulfillment of the child's potential in a 53R[) JUDICIAL permanent, healtl:ly, safe environment." In re A.S., 11 A.3d 473, 478 (Pa. Super. 2010) DISTRICT

L.AWRENCE COUNTY PENNSVLVANtA. 25 ' .

(internal citations omitted). In Pennsylvania, the starting point for this process is the

Adoption Act, 23 Pa. C.S. §§2501 et seq., and any petition for the involuntary

termination of parental rights brought thereunde·r must be based on one or more of the

statutory grounds found at 23 Pa. C.S. §2511, which provides, in relevant part, as

follows: Section 2511. Grounds for involuntary termination (a) General rule. - The rights of a parent in regard to a child may be terminated after a petitlon filed on any of the following grounds:

(2) The repeated and continued Incapacity, abuse, riegl� QT r.efusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being a11a the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by 1he parent ..... (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 or the child continue to exist and termination of parental rights would

... serve the best 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: Wrth respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court 5JRD shall not consider any efforts by the parent to remedy the conditions described JUOICIA&. Of8TRICT

LAWRCNCC COUNTY �N..,.YI.VANIA 26 � .

therein which are first initiated subsequent to the giving of notice of the. filing of the petition ..

When considering this petition, the court must engage in a bifurcated analysis

mirroring the order of the statutory provisions before parental rights may be terminated:

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 delineated in Section 2511 (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 the best interests of the child.

In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (citing In re L.M., 923A.2d 505,

511 (Pa. Super. 2007)). Clear and convincing evidence is defined by the Superior Court

as "evldence 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.'" 1Q.. (citing fn re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en bane)).

In other words, there are two separate, but nonetheless related, analyses that

must take place when evaluating a pe�tion for involuntary termination: first, the _grounds

for termination under 23 Pa. C.S. §2511 (a), which must be proven by clear and

-convincing evidence; and second, as judged under a best interests standard, the

termination must serve the needs and welfare of the child under Section 2511 (b).

Wh�n considering grounds for termination under Section 2511(a)(2), we are

S3RO bound by the longstanding test first enumerated by our Supreme Court in In re Geiger, JUPICIAI.. DISYAIC'r 331 A.2d 172 (Pa. 1975) and restated In subsequent cases:

L.AWRENCE COUN'l'Y PENNSYLVANIA. 27 Three things must be shown before a natural parent's rights in a child will be terminated: (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 withoutessential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacityJ abuse, neglect or refusal cannot or Will not be remedied.

In re N.A.M., 33 A.3d 95, 100 (P�. Super. 20·11); see also In Interest of Lilley, 719

A.2d 327, 330 (Pa. Super. 1998).

Additionally, 11the grounds for termination of parental rights under Section

2511 (a)(2), due to parental incapacity that cannotbe rernedled, are not limited to

affirmative misconduct: to the contrary, those grounds may include acts of refusal as well

as incapacity to perform parental duties.. 11• Matter of Adoption of M.A.B., 166 A.3d 434,

444 (Pa, Super. 2017) (citing In re A.LD., 797A.2d 326 (Pa. Super. 2002)). Further,

parents are expected and required to make diligent efforts toward a reasonably prompt

assumption. of full responslbllitles. A.LD., supra; at 337.5 Our Superior Court has also

elaborated' on the meaning of Section 2511 (a)(2):

5 CYS or any chii<;I welfare agency has a corresponoinq duty to "put forth a goo� faith effOrt in making services available to the parent," to facilitate reunification (unless a goal change motion has been granted), and this duty is "independent of the parent's duty to accept such efforts." In the Interest of CK, 165 A.3d 935, 943 (Pa. Super. 2017) (citing In re J;J., 515 A.2d 883, .890 (Pa. 1986)}. However, even in cases where the agency has not diliger.itly made reasonable efforts toward reunification, the trial court may still grant a termination petition. In re D.C.D., 105.A3d 662, 675 (Pa, 2014}. Instead ofdenying the termination petition; the appropriate remedy is to "conclude on the record that the agency failed to make reasonable efforts, which imposes a financial penalty on the agency ... under federalIaw." Id.

In the instant case, Mother made the argument in her Post". Trial Memorandum that CYS acted in a "dilatory" manner and failed to provide reunification services, which constituted an "extreme failure" on their part. See Mother's Post-Trial Memorandum at 4. While this Court notes that CYS did not facilitate 53!iD social visitation between Mother and Children after September 2014 (later extended by the January 2015. JU.DIC IA I.. DISTRICT Order' of Court) and recognizes that temporal gaps existed In between the provision of various reunification services, based on the years' worth of counseling and other services extended to Parents, we do not find that CYS failed to make reasonable efforts for reunification prior to filing the Termination Petitions. .LAWRENCE COUNTY f'.ENNSYI.VANIA· 28

··-····-·····-----·-------------------------- [Section 2511 (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 i'h [Section 2511 (a)(2)J 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. ..

In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2908)(emphasis in original).

Next, when evalua.ting grounds for termination under Section 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." In re Adoption of M.E.P.1 .825 A.2d

1266, 1276 (Pa. Super. 2003). Termination under Section 2511(a)(8), notably, "does not

require an evaluation of the parent's willingness or ability to remedy the conditions thaf led lo placement of his or her children." M.A.B,, supra, at 446; In re In the Interest of

S.H., 879 A.2d 802, 807 (Pa. Super. 2005). Bearing great similarity to the Section

2511 (b) analysis, the third element Of the test under Section 2511 (a)(8) merits particular

mention, as it "focuses not on the parent's conduct, but on the children and-their needs.

The court must consider the needs and welfare ofthe children, incl.uding the presence, of

any parent-child emotional bond, which encompasses intangibles such as love, comfort,

security, and stability." In re Adoption of R.J.S., 90·1 A.2d 502, 514 (Pa. Super. 2006). 5:3RD JUDICIAL .DISTRICT

.WRENCE COUNTV PENNSYt.\(ANIA 29 For its part, the Section 2511 (b) analysis requires the court to consider

"intangibles such as love, comfort. security, and stability ... when inquiring about the

rieeds and welfare of the child. The court must also discern the nature and status of the

parent-child bond, paying close attention to the effect on the, child of permanently

severing the bond ... {the] extent ofthe bond-effectanalysis necessarily depends on the

. unique facts and circumstances ofthe particular case." M.A,B., supra, at 448 (internal

· citations omitted). Indeed, our Supreme Court has underscored the ln,portance of

performing a bonding analysis, even in those relationships where the conne.ction

between parent $nd child may be tenuous, dysfunctional or stagnated: "Obviously,

attentron must be paid to the pain that inevitably results from breaking a child's bond to a

biological parent, even i.f that bond is unhealthy, and we must weight that i_njury against

the damage that bond may cause if left intact." In re J;S.M.; 71 A.3d 251, 269 (Pa.

2013).

However, although the parent-child bond is to be considered under Section

251 t(b),. "it is nonetheless only one of many factors to be considered by the court when determining what is in th.e best interest of the child." In re Adoption of C.D.R., 111 A.3d

1212 (Pa. Super. 2015) (quoting N.A.M., supra, at 103). Besides the bonding analysis,

"the trial court can equaJly emphasize the safety needs of the child, ·and should also

consider the intangibles, such asthe love, comfort, security, and stability the child might

have with a fos.ter parent." A.S., supra, at 483. The Supreme Court has also noted that

bonds with foster parents may be considered when performing an analysis under

. Section 2511 (b): "Common sense dictates that courts considering termination must also 53RD JUDICIAL consider whetherthe children are in a pre-adoptive home and whether they have a bond DISTRICT

l\,WRENCE COUNTY PENNSYLVANl'A 30 ----------..L-----------·-�·---------- .'

with their .foster parents." T.S,M., supra, at 268. In short, aside from evaluating the

quality and effect of severing the bond between child and natural parent, a court. in

accordance with the guidance set forth by precedent, may consider many factors when

determining whether a termination meets the needs and welfare of the child pursuaet to

Section 2511 (b).

Application as to Mother

CYS has petitioned that Mother's parental rights to Children be terminated

pursuant to Sectfon 2511 (a)(2) and (8), each of which we will evaluate in conformity with the principles recited above.

First, with respect to Section 2511(a)(2), this Court concludes that CYS has

presented clear and convincing evidence that Mother has displayed a repeated and

continued incap� for parenting that has left Children to be without essential parental

� control, or-substance, the causes of which cannot be remedied. Specifically,

Mother has displayed an emot!o.naJ Incapacity manifesting as an inability to empathize

with and validate the feelings of Children which directly and negatively impacts their mental well-being'.

From the case record, such a disconnect is clearly traceable to the parties' pre-

placement circumstances. Prior to November 2013, it was observed by K.M.R. that

Mother oonslstently "put blinders on" to Father's flagrantly destructive behav.ior, and the

physical and emotional tolls it took on Children. Thus, even before the events directly

triggering Children's placement, Mother was unable to empathize and lend herself as a

source of emotional support during Father's bouts of abuse that even he conceded SJ11to JUDICIAL. OIS'rRICl' formed a significant share of the trauma Chndren endured. Once Children had been

AWl'te!NCll COUNTY f'CN ...,Y ... YANIA 31 (

taken into CYS care, and after they gained the ability and resources to .work through the

traumas of their past, Mother remained a cold or distant figure for them, as noted

through the observations of no fewer than three professionals who worked with them.

During his 2014 parental capacity assessment, and as recounted on the witness stand,

Mr. Dick repeatedly noted the sheer lack of any emotional attachment between Mother

.and Children, exacerbated by her inability to put Children's needs ahead of her own. Mr.

Dick further explained that Mother simply failed to appreciate the traumas Children had

experienced, her part in them, and what she could do to repair the relationship moving

forward.

Ms. Stahlman worked with Mother and Children1 both in Individual and in group

therapy, to facilitate a 'resolotlon" between the parties overfne traumas they had all

experienced and how to proceed moving forward to a healthy relationship based on trust

and open communication. Ms. stahlman conducted weekly therapy sessions for a

period tasting r:iearly two years; from September 201-5 to June 2017, which provided her

with regular opportunities to observe how Mother interacted with Children. Although she remarked atseveral points during her testimony that Mothergenerally cooperated With

the therapy sessions and even showed progress, Ms. Stahlman ultimately conctudeq

that their work did not produce the hoped-fodeelings of "love, connection, [and]

attunement to feelings" between the parties, nor did it lead to Mother being able to

independentiy display empathy With Children. Ms. stahlman further noted that, besides

getting defensive about her behavior, Mother made troubling statements during some

sessions thatdownplayed or minimized or negatively compared Children's traumas 53RD JUCICIAL. (which at this point was known to include K.M.R.'s sexual abuse) to that of other children CISTRICT

WRENCE: COUNTY. P£NN5YLVAN'IA 32 in. an apparent effort to encourage them to move on or "get past" what had happened.

These statements clearly were contrary to the therapy sessions' goals of validation and

acceptance of another's trauma, but supported Mother's focos on her own feelings at the

expense, however unintentional, of her daughters.

Ms. Pieri, the CYS caseworker who had firsthand observations of Mother and

�hildren since August 201.6 supplemented by two-year's worth of her predecessor's notes, additionally relayed her impressions that no bond existed between Children and

Mother. Also from this time is the "notice/demand" letter Mother sent to CYS in June

2017 in which she demanded the immediate return of not merely her children, whom she ·;

refused to call by name, but her "property." It is hard to imagine a greater emotional

disassociation between a mother and her children than the characterization of her

offspring as anonymous chattels.

ln contrast to Mr. Dick, Ms. Stahlman, and Ms. Pieri, all of whom had months or (

years of personal experiences observing Mother and Children together, Dr. Gallo at no

time witnessed Mother interact with Children when completi.ng his January 2016

psychological evaluation of her; Thus, we accord less weight to any of his conclusions

insofar as they pertain to the relationship between Mother and Children, and the

reunification thereof. This. is not to discount Mother's petformance on the psychological

ests he administered, but rather to ernphastze the fact that Dr. Gallo's work'. is largely

isolated from the remainder of the professionals in this.case, all of whom were

contracted through or an agent of CVS.

These realities of Mother's relationship with Children establish that the emotional 53RO .Juo1c1AL separation began long before the parties came into contact with CVS in November 2013. DIS,-RIC,-

ir..WRENCE COUNTY .PENNSY LV·A�IA 33 ,,

Since then, despite· having several years to learn, reflect. and act on the suggestions for

improvement provided to her by experienced professionals, Mother is no closer now than

she was then to having a productive emotional relationship with her daughters. Mother's

emotional incapacity is distinct when examined alongside otherindicators of her ability to

parent. As required of her under the taw, Mother successfully complied with nearly all of

the requirements of the FSP and showed she would. be able to provide a materially

·appropriate home for Children if they were to be returned to hercare, In contrast to

other termination cases, in wtiich a parent's compliance With a family-service plan is

minimal or nonexistent, Mother's willingness and .ability to cooperate with many of the

requirements merits commendation. Additionally, this court is mindful of Mother's own

hlstory.of trauma and abuse, and does not seek to minimize or discount what she has

endured. However, these mitigating and sympathetic factors aside, we cannot look past

Mother's lack otsuccess and demonstrated inability at emotionally bonding with her

daughters.

While a parent's duties certalnlylnclode providing a physical home and sustenance for his/her children, the duty does not end there. Our Supreme 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 metby a merely passive interest tn the development of the child. Thus, this court has held thatthe parental obligation is· a positive duty which requires affirmative performance. 53RD JUDICIAL DISTRICT'

,wRENCE COUNTY ;raNNSVL.VI\NIA 34 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 the child needs more than a benefactor. parental duty requires that a parent "exert himself to take and maintain a place ofimportance in child's life."

In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (citin� In re Burns, 379 A.2d

535 (Pa. 1977)).

At the present time, Mother demonstrates an inability to· empathize and validate

Children's feelings, and as a result would be unable to provide the love, guidance, and

support· a healthy parent-cblld relationship needs. Mother has certainly made modest

efforts through therapy and other aspects ofthe FSP to rebuild these ties with Children

but ultimately is unable, afteryears ofworl<, to do so; Children cannotwaltany longerfor

Mother to try.. 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 forthefutare."

R.J.S., supra, at513. Therefore, Mother's inability to remedy-these issues, and prQvide

the love and emotional support her daughters require for their present and future mental

well·being, supports grounds for termination under Section 2511(a)(2).

CYS has also petitioned that Mother's parental rights be terminated pursuant to

Section 2511 (a)(8). As stated above, each analysis under $ection 2511 (a)(B) must

examine whether CYS has presented clear and convincing evidence of three factors, as

of the time of the petition: (1) the child has been removed from parental care for 12

months or more from the date of removal; (2) the conditions which Jed to the removal or '53RD jUD!CIAL. DISTRICT placementot the· child continue to exist; and (3) termination of parental rights would best

�WREN�E COUNT'!! PENNS.VLVANIA 35 serve the needs and welfare ofthe child. M.E.P., supra, at 1276. Because the length of'

time between Child re n's removal from the home in November 2013 and the filing of the

Termination Petitions. .in April 2017 spans 41 months, the first factor· is satisfied. The

second factor, however, is unsatisfied because CYS has not adduced sufficient evidence

demonstrating thatthe conditions which led to Children'·s removal continue to exist. In contrast to Mother's emotional incapaclty, which was only later developed as

grounds for termination under Section2511 (a)(2), the condhlons on Mother's part which

led to Children's removal were the household's "deplorable" condition and her then-

present inability to care for Children due to her hospitalization following Father's assault.

Over the five years that have elapsed since Children's removal in November 2013, both

of these conditions have abated and no longer exist. First, Mother was released from

the hospital within several weeks of the assault and, although Children were by this time

in CVS care and adjudicated dependent, was nonetheless physically ableto provide

care if Children had been released to her custody.. Second, as relayed by both Mr. Dick

in 2014 and Ms. Pieri in 2017, Mother had cleaned up her home, obtained new

furnishings approprlate for Children, and secured working utilities, all of which indicated

that the household was .no longer in "deplorable" shape. While these steps forward were

overshadowed by later developments and revelations, Mother nonetheless remedied

both of the conditions that immediate.ly triggered Children's removal from her care. This

leaves the second factor under Section 2511 (a)(B) unsatisfied, which in turn stops us

from proceeding to the evaluation of the third factor. Accordingly, no grounds for the involuntary tem,ination of Mother's parental rights exist under Section 251 t(a)(B). ·53RD JUOJCI_AL OIST.RICT

A.WRENCE COUNTY PENNS YI.VANIA 36

---..'.!------------------------------·-------·· Now that grounds for termination have been established under Section

2511 (a)(2), we proceed to the second stage of the bifurcated analysis, the needs and

welfare analysis under Section 2511 (b).

First, thls Court will conduct the bond exarnlnatlcn, which we are duty bound by

ample precedent to perform. In re K.K.R.-S.1 958 A.2d 529, 533 (Pa. Super. 2008).

Upon reviewing. the evidence, it is clear that Mother and Children's long$tanding

relationship notwithstanding, they share an unhealthy bond that suffers from a paucity of

affection or meaningful positive connection. Prior to placement, Children and Mother

had a strained relationship at best, peribdically punctuated by Father's abusive

episodes. Following placement, no fewer than three professionals who worked

extensively with Mother and Children commented on the utter Jack of positive feelings or I

genuine emotional bonds that are needed for a healthy upbringing: Mr. Dick described

the relationship as "emotionally disconnected;" Ms. Stahlman plainly stated that Children

"don't feel accepted, loved and attached" to Mother; and Ms. Pieri succinctly noted no

bond or attachment existed between Mother and Children.

Behavior on the part of K.M.R. after social visits with Mother also speaks volumes

to the unhealthiness of their bond, such as self-harm fallowed by an outright refusal to

attend any more visits due to the toll the strained interactions took on her well-being.

Moreover, KM. R. herself stated that she has no feelings toward Mother, has no love for

her, and would be content to. never see her again. For J. L.A., it has been noted that her

ability to communicate with Mother is 'frozen and stagnant." On Mother's part, her

position has wavered from her seeming commitment to the resolution and reunification 53RO

Ju n 1c.1A 1. oiSTRICT process to referring to Children as "property." All the while, the bilateral relationship has

------·-··------'�----------------------------·---·--·--·-----·-··--··-·-· · (

be.en marked by hurt feelings, instability, and lack of trust. In short; there ls no

salvageable bond between Mother and Children, and consequently, Children would not

be harmed by the severance of that relationship.

By contrast, post-placement K.M.R. and J.l.A. have, by all measures, thrived with

their long-term foster family. Since enrolling in the Mohawk School District. K.M.R. has

made tremendous progress by achieving standout grades, joining student organizatfons

(e.g. marching band and the $Pring musical), and making numerous friends. J.L.A. has

also had academic success despite getting a later start at formal schooling than many of

her peers. The. foster parents have provided anything Children have needed, from

clothes and food to homework help -and transportation. For their . part, Children . have formed close-knit relationships with their foster famUy, to the pointthat their foster

siblings became simply known to them as 'brother and sister." At their foster and

ostehsibly pre-adcptive home, Children appear to be happy, safe, and loved. Therefore,

this Court concludes that terminating Mother's parental rights would be in Children's best

interests by meeting their needs and welfare as contemplated by Section 2511(b).

Aoplication as to Father

CYS has petitioned that Father's parental rights to Children be terminated

pursuant to Section 2511 (a)(2) and (8), each of which we will again evaluate in

conformity with the principles recited above.

With respectto Section 2511 (a)(2), CYS has demonstrated .by clear and

convincing evidence that Father has exhibited a repeated and continued incapacity for

parenting that has caused Children to be without essential parental care, control or 53RD JUDI_CIAL subsistence that cannot and will not be remedied. Unlike Mother, whose parental DISTRICT

\WRENCE COUNTY l>ENl•U

the provision of housing, food, guidance, and emotional support. Prtorto placement.

Father drifted in and out of Children's lives, leaving the primary responsibility for their

upbringing to Mother. When Father did reemerge into Children's lives, his appearances

were accompanied by heavy drinking, and later drug usage, as well as physical and

emotional abuse directed at Mother and K.M.R. in particular. It was Father's drug-fueled

outburst on November 2, 201'3 that directly triggered Children's placement with CVS as

the police response to his assault uncovered Mother's "deplorable" home and landed

him in the Lawrence County Correctional Facility pending disposition ofthe case,

Aside from a few gaps, Father generally spent. the time between November 2013

and January 2017 either in jail or under some type of court-supervision, which made him

further unavailable to comply with the FSP or focus on providing an appropriate home for

·Children. Once released in January 2017, Father still demonstrated some difficulty in

working with CVS and completing portions ofthe FSP, such as finishing a parenting

class and attending a batterers group. Additionally, Father lacked a fixed address or

suitable housing for Children. Father �as had contact with Children since they were

taken into CVS care, through the social visits between September 2015 and February

2016, and his therapeutic sessions with K.M.R in the spring of 2017. However, these

interactions, particular1y the therapeutic visits, revealed his emotional ties with Children

were just as frayed as Mother's: AS relayed by Ms. Stahlman, J.L.A. refused to attend

these visits altogether while K.M.R. primarily attended to feel a sense of resolution that

would then enable her to move forward without any relationship to Father. While Father 53RD JUO\CIA.L has also taken modest steps to comply with the FSP and. work toward reunification, once DISTRICT

,WRENCE COUNTY PENNSYl.VA'NIA 39 -·----- ,, __ \.

again this Court cannot endlessly wait for Father to mature to the point where he. can

provide a stable, loving home for Children. See In re D.J.S., 737 A.2d ·2a3 (Pa. Super.

"1999).

In sum, Father's actions with respect to Children prior to placement showed a lack

of capacity to parent that partially resulted in Children being left without essential parental care, controland subsistence, and �is actions post-placement have reinforced

this incapacity. Fathe.r is presently without.adequate income, housing, or other means to

provide for Children, lacks an emotional relationship to them partly attributable to

previous abuse, has not fully complied with the FSP, and has had repeated run-ins with

the criminal justice system. These delays and distractions on hls part have hampered

Father's affirmative duty to work toward reunification; Taken together, these facts show

�hat Father cannot and will not be able to remedy his incapacity to parent Children, and thus grounds for termination exist under S�ction 2511(a)(2).

Next, with respect to Section 2511(a)(8), CYS presented clear and convincing

evidence that termination is warranted on this ground. Once more, the three factors that mast exist for granting termination under this subsection are: (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 bestserve the needs and welfare of. the child.

M. E. P ... supraj at 1276. A� Roted above, the first factor is easily met. Children were

taken into CYS care in November 2013 and the Termination Petition was not filed until

April 2017, a span of 41. months. 53RD .JUDICIAL DISTRl!=T

,w�ENCE .cOIJN.TY PENNSV·LVANtA 40

..... .·-····-·-· --··---1L--------------------------··--·· ······-···- \. � · t " ...... •

For the second factor, it is apparent that conditions on Father's part that led to

Children's removal or placement continue to exist. Indeed, Father played a large partin

creating the conditions leading to Children's removal ih November 2013. _At that time, in

addition to lacking a stable residence for Children when they were not with Mother,

Father was heavily· abusing drugs and alcohol, the overindulgence of which factored into

the brutal assault that prompted the response of the Pennsylvania State Police; Over

five years later l Father's situation has changed somewhat but not enough to defeat

termination. As before, Father lacks proper accornrnodatlons for Children. While Father

has not used some drugs� since that time, such as heroin or cocaine, Father still engages

in risky behavior that has occasionally landed him in jail; such as allegedly driving under

the Influence and stealing retaU goods, and further fails to. signal a present ability to take

Children into his care. Moreover, Father has not improved ih his capacity to be an

emotionally supportive parent to his daughters. Although Father has made some

progress post-placement, these efforts are a case of too little, too late for purposes of

remedying the conditions that led to Children's placement.

For the third element under subsection (8), we will engage in an analysis

nearly identical to that forthcoming under Section 2511 (b). It is evident to this Court that

· · there is no healthy bond between Father and Children, and that their needs and welfare

are met by their foster family; Prior to placement, Children saw Father on an itinerant

basis,insufficienfto create the strong and lasting ties needed fora long-term

relationship. When Father was around, hewas frequently under the influence of drugs

or alcohol, which further precluded Children from getUng to know him in a meaningful 53RQ' .JUDI.CIA.L and positive way. Additionally, we cannotignore the fact that Father played a-significant tllSTRiCT

,WRENCE COUNT\' l"ENNS'fl..V.I\N 11' .. �·,;, - (

role in the trauma Children experienced because they suffered or witnessed the

emotional and physical abuse he inflicted and how this Inevitably impacted their

relationships. Father's ability to bond with his daughters post-placement was equally

unsuccessful. This period was marked by. curtailed visitation due to stays in jail and

therapeutic visits that proved taxing for KM.R. while J.L.A. refused to participate

outright. Ms; Stahlman and Ms. Pieri, two professionals who spent considerable time

working with Fattier and Children, additiorially observed the Jack. of any bond between ' them. In short to the extent th.at any bond exists between Children and Father, it is

irreparably da.inaged as a result of years of negative and dysfunctional interactions.

iherefore, Children would not be harmed by the severance of this relationship.

As thoroughly recounted above, Children's tenure With their long-term foster

family has been, by contrast, one of relative stability and tranquility. Children have

bonded quite well with their foster family and become thoroughly asslrnllated. Living with

their foster family has given Children access to educational opportuniti:es and Social

outlets, and a sense of physical as We!I as emotional safety and security, that they· never

knew with Father. Shortly put; Children's foster family has proved themselves mote than

capable of meeting their needs and welfare, and this Court concludes that it is in their

best interest to remain there. Accordingly, CYS has satisfied all three elements under

Section 2511 (a)(8) for terminating Father's parental rights on these grounds.

Our analysis under Section 2511 (b) is hearly identical to the third prong under

Section 2511(a)(8), and we will simply reiterate what has already been set forth. Father'

lacks any significant bond with Children attributable to years of abusive and negative 53RO JUDl�IAL. behavior including significant absences from their lives. Children, for their part, feel no DISTRICT

,WRENCE COUNTY PENNSYLVANIA 42 j,

.affection toward Father and gen�rally wish to see him as little as possible. They appear

ready to move on from their relationship with Father and all of the. difficult emotions that

have. accompanied it, Thus, to the extent any bond exists between Children and Father,

its severance would not detrimentally impact Children.

Lastly, itis Well-documented that Children's foster family has been able to meet

their needs and welfare. Over the five years of Children'sstay, they have.formed

immeasurable bonds with their foster family and feel comfortable, safe, .and secure in

their care. Therefore, this Court concludes that. Children remaining in their foster

parents' care would be in their best interests.

In conclusion, CYS has presented clear and convincing evidence that Mother's

and Father's parental rights to Children should be teiminated pursuant to the. proper

statutory grounds, and that termination would be in their best interest. It is never an

easy decision to permanently and unequivocally terminate a parent's right to his/her

child, and it is a decision that is only reached after painstaking examination of'the

evidence as applied totne law. This case has only reached the final decision stage after

years of winding its way through the permanency review hearings and pre-terrnlnation

process. The complex factual and procedural history n.otwithstanding, it is apparent to

this Court that Children have no meaningfully positive relationships with either Mother or

Father, that neither parent is fully able or equipped to provide the appropriate home or

emotional support Chlldren need, and that Children's best interests are served by

maintaining their placement with their foster (and presumptiveiy pre-adoptive) family.

Accordingly, the Court enters the following order. 53RD ..JUCICIA,L. DISTRICT

IWRENcs· COUNTY PENNAVLVA,Nl'A 43 (

IN THE INTEREST OF: : IN THE COURT OF COMMON PLEAS

: LAWRENCE COUNTY, PENNSYLVANIA

K.M.R. : NO; 94 OF 2013, DP; NO. 20012 of 2017, OC-A

J.LA. : NO. 95 OF 2013, DP; NO. 20011 of 20171 OC-A

ORDER OF COURT

AND NOW, this . /(;_Jrday of January 2019, having reviewed the evidence . presented by all parties regarding the Involuntary Tetminations of Parental Rights and

Motion for Goal Change, the Court hereby ORDERS and DECREES as follows:

1. CVS' Motion for Goal Change from reunification to adoption is GRANT.ED. � ,....J < .. 2. CVS has demonstrated by clear .and convincing evidence that grounds fcJJ::the :· . - � Q.,

§2511 (a)(2). - involuntary termination of Mother's parental rights exist pursuant to 23 P@C.S1.:.0 O � - z � .. u, � 3. CVS has demonstrated by clear and convincing evidence that grounds for the �

involuntary termination of Father's parental rights exist pursuant to 23 Pa. C.S.

· §2511 (a)(2) and (8).

4. CVS has also demonstrated that Children's needs and well-being would be best

served by termination of their parents' rights as contemplated by 23 Pa. C.S. §2511 (b)

5. Mother's parental rights to K.M.R and J.L.A. are hereby TERMINATED.

6. Father's parental rights to K.M.R. and J.L.A are hereby TERMINATED. 53RO· JUOICIAJ.:. CISl"RICl"

,WRENCE COUNTY PENNSV.LVAN1A 44 __ , __:_:_ _ ·--·-------·--·-·-·- . '

7. Custody of K.M.R. and J.L.A. shall remain with CVS, which shall now have the

right to proceed with the appropriate filings for the adoptions of Children by their

foster family without further notice to or consent of Mother or Father.

8. The Prothonotary of Lawrence County is directed to serve notice of this order to

the counsel of record for all parties, or if not represented by counsel, to. the party's

last known address.

FOR iHECOURT:

,J. JOhn W. Hodge, Judge -J < -.. •c,J

- 'M. z (:) :c c, ec: c --w...., \;()' 0 0 z -, <(

u, � � c::)

53RD JU_DICIAL O_ISTRICT

�WRENCE COl:INTY PENNS_Yl.VANlA 45 . ;:----- . _ • �� '�-�- i_._ri_· ··i· �""'.:�:-! r,,.f .-.:"'.� '----:---- 1

----- ..... ------------------·-·-··---·-·-- ---------------- --