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

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2024
• Docket: 1490 WDA 2022
• Status: Unpublished

Opinion

J-A25020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: M.J., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.J., FATHER : : : : : : No. 1490 WDA 2022

Appeal from the Order Entered November 23, 2022 In the Court of Common Pleas of Erie County Juvenile Division at No(s): No. 151 of 2022

IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF OF M.L.J. : PENNSYLVANIA : : APPEAL OF: A.R.J., FATHER : : : : : No. 461 WDA 2023

Appeal from the Decree Entered March 21, 2023 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 2C AD 2023

BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: February 9, 2024

In this consolidated matter, A.R.J. (Father) appeals from the decision of

Erie County Court of Common Pleas (the juvenile court) to change the

permanency goal of the dependency proceedings involving his one-year-old

son, M.J. (the Child). See 1490 WDA 2022. Specifically, the juvenile court

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A25020-23

changed the primary goal of the permanency plan from reunification to

adoption, pursuant to the Juvenile Act. See generally 42 Pa.C.S.A. § 6351.

Four months later, while Father’s goal change appeal was pending, the court1

terminated Father’s parental rights, pursuant to the Adoption Act. See 23

Pa.C.S.A. § 2511(a)(2), (5); (b). Father appealed that decision as well. See

461 WDA 2023. After review, we affirm both the goal change order and the

termination decree.

The relevant factual and procedural history is as follows. This matter

involves only Father and the Child; C.G. (Mother) voluntarily relinquished her

rights. The Child was born in July 2021. At the inception of this case, Father,

Mother, and the Child lived with Mother’s four other children – the Child’s

siblings.2 On July 24, 2022, the Erie County Office of Children and Youth (the

Agency) learned of allegations involving the physical abuse and improper

discipline of one the siblings. It was reported that Father and Mother had left

Child alone with the siblings. The parents expected the eldest sibling, age 12,

to babysit the siblings, including the one-year-old subject Child. While the

parents were away, another sibling, age 7, went to a neighbor’s house. As

punishment, the parents directed the 7-year-old to stand against a wall for an ____________________________________________

1 At that point, the juvenile court judge was sitting as the orphans’ court.

2 Only the subject Child is at issue in this case. The other children are S.D. (age 12), A.G. (age 9), C.G. (age 8) and G.G. (age 6) (collectively, the siblings). The siblings have a different father. The siblings are not the subject of these proceedings. We note further that Appellant-Father has other children, who were also involved with the Agency. Those children are placed outside of Father’s care and are not involved in these proceedings either.

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hour. Father then repeatedly spanked the sibling with a large metal spoon.

Apparently, Father broke the spoon during the punishment. The sibling also

urinated while being hit and was forced to clean it up afterwards. The siblings

subsequently disclosed that the parents routinely used physical discipline.

Three days later, on July 27, 2022, the Agency conducted a home visit.

The 12-year-old sibling showed the caseworker a video of Mother disciplining

one of the Child’s siblings. In the recording, Mother threatened to punch the

sibling and used profanities. The 12-year-old sibling said she is expected to

care for the younger children, including cooking and cleaning. The 12-year-

old sibling said she is beaten if the other children do not do what they are

supposed to do. Another sibling had a burn, which the sibling said was the

result of operating the grill.

The Agency removed the Child and the siblings from the home. The

siblings were placed with the maternal grandmother, while the Child, who was

considerably younger than the siblings and required more attention, was

placed with foster parents who had experience with trauma. See Trial Court

Opinion, dated 1/20/23, regarding 1490 WDA 2022 (T.C.O. 1), at 9 (citing

N.T. (11/21/23) at 19).

The Agency subsequently filed dependency petitions for the Child and

siblings. The Agency alleged in Mother’s petition that she had an extensive

history with the Agency, dating back to 2015. She had been previously

indicated as a perpetrator of abuse, and she had a criminal history for reckless

endangerment. The Agency alleged in Father’s petition that he also had an

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extensive history of Agency involvement, dating back to 2014. Father had a

criminal history for public drunkenness and defiant trespass.

The juvenile court held an adjudicatory hearing on August 9, 2022.

Father stipulated to the allegations in the petition with some amendments.

He agreed to the following permanency plan: 1) contact the agency to sign

releases and schedule home visits; 2) participate in a mental health evaluation

and subsequent recommendations; 3) participate in an anger management

program; 4) participate in a drug and alcohol assessment; 5) participate in

random urinalysis; 6) maintain safe and stable housing; 7) maintain

employment; 8) participate in an approved parenting program; 9) participate

in a separate psychological evaluation with Dr. Peter von Korff; and 10)

participate in a psychiatric assessment.

The juvenile court conducted the first permanency review hearing on

November 21, 2022. The court learned that Mother and Father were criminally

charged for the abuse of one of the siblings, and that the criminal investigation

was still ongoing. The court heard testimony about the parents’ history with

the Agency, including prior instances of abuse. Critically – and most central

to this matter – the court also heard testimony that the one-year-old subject

Child had been abused as well.

The caseworker testified that once the Children were removed, they

were referred to a clinic for a closer medical examination. The medical records

indicated that the Child’s “skeletal survey revealed a definite healed R 10th

posterior rib fracture and concern for a right parietal skull fracture…” See

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T.C.O.1 at 6 (citations to the record omitted). Regarding the parietal skull

fracture, the medical records stated:

Though there are accidental ways a parietal skull fracture can occur, there would have been swelling of this area and he would have had pain at the time this injury occurred, and there is no record of seeking any medical care – in the setting of the rib fracture, the skull fracture also is concerning for physical abuse and the situation raises concern for medical neglect.

Id. (citations omitted).

The caseworker also testified that the Agency was unsure what realistic

services it could provide Father:

Caseworker: We have many services in Erie County. I don’t know – I’ve been a caseworker for five years, and I don’t know what service you can put in the home. A parent should know not to beat their kid, to not talk to their child that way. You can put in homemakers family preservation, provide some education, but how do you go in and tell a parent – teach – you don’t talk to your kid – we don’t beat them. […] There are many – we are blessed with of services [sic] in Erie, and we have services in there to help them gauge them in the right direct, but honestly, how do you get there to tell them? They should know you can’t act like that. You can’t abuse your children. […] You can’t use extreme corporal punishment. You can’t try to bend and flex the laws in corporal punishment to where your children -- we have severely traumatized children in this case. Years of abuse as indicated in our system and our childline calls. I’m not sure what service we can provide to help.

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T.C.O. 1 at 7 (citing N.T. 11/21/23 at 28)

The caseworker went on to testify that, based on her conversation with

Father, Father believes the Child and siblings were wrongfully detained. She

also testified that Father does not think either he or Mother did anything

wrong. The caseworker also testified that Father supposed the 11-month-old

Child was injured because he always jumps off the bed. Finally, the

caseworker testified that Father had been involved with the Agency for years,

and that the Agency had addressed Father’s parenting before, but to no avail:

Caseworker: [Father,] in his assessment with Dr. von Korff[,] goes into pretty good detail about his parenting issues of corporal punishment. Again, Your Honor, I don’t know what service we can put in there to teach [the parents] to not use – we can provide education, but it appears even with his history – they have [had open cases] before. They were provided family preservation. They haven’t learned anything.

I’m sorry. They haven’t learned anything. They were open for two years, provided these services, and yet here we are years later, a time later, and we’re still doing the same thing, hurting kids.

Id.

At the conclusion of the November 2022 permanency review hearing,

the guardian ad litem recommended a concurrent goal of reunification and

adoption. The GAL made this recommendation after recognizing the safety

risk posed to the children, as well as the siblings’ stated affection for Mother.

The GAL stated: “I don’t have much belief that anything is going to change,

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but at this point in time, trying to juggle their stated affection has me asking

merely for a concurrent goal at this point.” See N.T., (11/21/23) at 44.

The juvenile court determined that Father had been moderately

compliant with the service plan, but that he had made no progress toward

alleviating the underlying causes of the original placement. The court

ultimately changed the goal of the subject Child’s permanency plan from

reunification to adoption:

[The juvenile court] determined based on the length of time the Agency had attempted to work with and provide services to the parents; the nature and extend of the abuse to the children; the prior physical abuse to [sibling C.G.] at one year old at the hands of Mother, the prima facie evidence of abuse to [the subject Child, M.J.,] who was also one year old; the need for the children to have a safe living environment; and the pending criminal charges against the parents; reunification was not in the Children’s best interest and changed the goal to adoption.

T.C.O. 1 at 9 (citing N.T. (11/21/23) at 44-46).

Although the court relieved the Agency of its obligation to provide

services, we note that the Agency did not allege the existence of “aggravated

circumstances” as defined by the Juvenile Act. See 42 Pa.C.S.A. § 6341(c.1);

§ 6303 (definitions). Instead, the juvenile court was seemingly under the

impression that a goal change order relieved the Agency of its obligation to

provide services.3

3 Whether a goal change relieves a child protective services agency from providing reunification services is not a settled question. See In re R.J.T., 9 (Footnote Continued Next Page)

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Father timely appealed the goal change decision. See 1490 WDA 2022.

Even though the appeal was pending, the juvenile court continued to hold

permanency review hearings, as is proper procedure. See In re H.S.W.C.-

B., 836 A.2d 908, 911 (Pa. 2003).

In January 2023, the Agency filed a petition to terminate Father’s rights,

alleging that grounds were established under 23 Pa.C.S.A. § 2511(a)(2) and

(b). Then, on March 14, 2023, two days before the orphans’ court held the

termination hearing the Agency amended its petition to include Section

2511(a)(5). Meanwhile, Mother voluntarily relinquished her rights to the Child

and the siblings. The orphans’ court conducted Father’s termination hearing

on March 16, 2023. 4 We discuss the details of that hearing when we address

Father’s termination appeal, but it suffices to say here that the court

terminated Father’s rights and issued a final decree on the same day. Father

appealed the termination decree as well.

Notably, a prior panel of this Court continued the goal change appeal to

consolidate it with the termination appeal. As an initial matter, we address

the atypical procedural disposition presented in this case. Our Supreme Court

has ruled that an order changing the permanency goal constitutes a final,

A.3d 1179, 1186 n.9 (Pa. 2010). Ultimately, as we discuss infra, it is a question we do not reach, because Father failed to preserve the issue. 4 The Child was represented by his GAL during the termination proceeding.

The representation was proper under 23 Pa.C.S.A. § 2313(a), as the Child’s best interests did not conflict with his legal interests. See In re Adoption of K.M.G., 240 A.2d 1218, 1223-24 (Pa. 2020).

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appealable order. H.S.W.C.-B., 836 A.2d at 911. However, due to the time

needed for an appellate review, and in order to avoid gamesmanship, orders

changing the goal remain in effect pending appellate review. Id. “[A]ll

statutory review hearings should continue at the prescribed intervals;

generally, a stay should not be ordered and proceedings halted pending the

appeal.” Id.

Relatedly, this Court has held that a termination of parental rights

decree, once affirmed, renders moot any challenge to the dependency court’s

decision to change the goal of the permanency review hearing. See D.R.-W.,

227 A.3d 905, 917 (Pa. Super. 2020) (holding that an issue before a court is

moot if in ruling upon the issue the court cannot enter an order that has any

legal force or effect) (citing In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002))

see also In re Adoption of A.H., 247 A.3d 439, 446 (Pa. Super. 2021)

(holding that a decision to affirm the orphans’ court’s termination decree

necessarily renders moot the dependency court’s decision to change a child’s

goal to adoption).

This Court has relied on D.R.-W. when presented with a goal-change

appeal contemporaneously with a termination appeal. In such cases, the

lower court will typically terminate the appellant’s rights and change the goal

at the same time. The appellant then files separate appeals, seeking to

contest the goal change in the event the appellant successfully overturns the

termination decree. It is our practice, then, to address the termination matter

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first, and if we affirm the decree, we will then deem the goal-change appeal

moot.

Here, by contrast, Father timely appealed the goal change decision

months before the termination decree. For that reason, it is prudent to

address the substance of Father’s goal change appeal. Even if the goal change

issue was later rendered moot by the termination decree, the sequence of

these appeals compels us to address Father’s arguments in full. See In re

D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (holding that the mootness

doctrine applies when, inter alia, the question presented is capable of

repetition and apt to elude appellate review).

I. Goal change appeal, 1490 WDA 2022

Father presents three questions in his goal change appeal:

1. Whether the juvenile court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, the grounds for a change in goal to adoption, pursuant to 42 Pa.C.S.A. § 6351(f).

2. Whether the juvenile court committed an abuse of discretion and/or error of law when it concluded that the Agency established, by clear and convincing evidence, that the current permanency goal of reunification was no longer feasible?

3. Whether the juvenile court committed an abuse of discretion and/or error of law when it concluded that the Agency had established, by clear and convincing evidence, that the Agency shall no longer provide services to the Appellant?

Father’s Brief (1490 WDA 2022) at ix.

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Although Father presents three separate questions, he subsequently

collapses those questions into a single argument – simply, whether the court

committed a reversible error when it changed the permanency goal. See

generally id. at xv-xix.5

We are guided by the following scope and standard of the review. “[T]he

standard of review in dependency cases requires an appellate court to accept

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

supported by the record, but does not require the appellate court to accept

the lower court’s inferences or conclusions of law. Accordingly, we review for

an abuse of discretion.” In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations

omitted).

We have explained:

Placement of and custody issues pertaining to dependent children are controlled by the Juvenile Act [42 Pa.C.S.A. §§ 6301-6365], which was amended in 1998 to conform to the federal Adoption and Safe Families Act (“ASFA”). The policy underlying these statutes is to prevent children from languishing indefinitely in foster care, with its inherent lack of permanency, normalcy, and long-term parental commitment. Consistent with this underlying policy, the ____________________________________________

5 In contravention of Pa.R.A.P. 2119, Father does not divide the argument section of his Brief “into as many parts as there are questions to be argued,” nor includes a “distinctive” header. Critically, when it comes to Father’s third question presented (relating to cessation of services), Father provides no discussion or citation to authorities. Thus, to the extent he even meant to preserve that claim, we deem that issue waived. See Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018) (“We shall not develop an argument for an appellant, not shall we scour the record to find evidence to support and argument; instead, we will deem the issue to be waived.”).

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1998 amendments to the Juvenile Act, as required by the ASFA, place the focus of dependency proceedings, including change of goal proceedings, on the child. Safety, permanency, and well-being of the child must take precedence over all other considerations, including the rights of the parents.

In re A.B., 19 A.3d 1084, 1088 (Pa. Super. 2011) (citing In re N.C., 909

A.2d 818, 823 (Pa. Super. 2006)) (further citations and footnotes omitted)

(emphasis original).

Although the relevant statutory provisions of the Juvenile Act do not

reference the phrase “goal change,” the phrase has become a term of art.

R.J.T., 9 A.3d at 1183, n.6. The concept of a “goal change” is consistent with

42 Pa.C.S.A. § 6351(g), which requires the juvenile court, at the conclusion

of a permanency review hearing, to “order the continuation, modification or

termination of placement or other disposition which is best suited to the

safety, protection and physical, mental and moral welfare of the child.” Id.

Such a decision is synonymous with a decision to continue or change the

permanency plan goal. Id.

To arrive at this decision, the juvenile court must consider the following

matters at the conclusion of each permanency review hearing:

(1) The continuing necessity for and appropriateness of the placement.

(2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child.

(3) The extent of progress made toward alleviating the circumstances which necessitated the original placement.

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(4) The appropriateness and feasibility of the current placement goal for the child.

(5) The likely date by which the placement goal for the child might be achieved.

(5.1) Whether reasonable efforts were made to finalize the permanency plan in effect.

(6) Whether the child is safe.

[…]

42 Pa.C.S.A. § 6351(f) (some factors omitted).

Based on the determinations under Section 6351(f), the juvenile court

must then determine the best permanency plan option under 42 Pa.C.S.A. §

6351(f.1), which includes reunification and adoption:

(f.1) Additional determination.--Based upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:

(1) If and when the child will be returned to the child's parent, guardian or custodian in cases where the return of the child is best suited to the safety, protection and physical, mental and moral welfare of the child.

(2) If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the child's parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.

42 Pa.C.S.A. § 6351(f.1)(1)-(2).

“Because the focus is on the child’s best interests, a goal change to

adoption might be appropriate, even when a parent substantially complies

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with a reunification plan.” In re R.M.G., 997 A.2d 339, 347 (Pa. Super. 2010)

(citing In re N.C., 909 A.2d 818, 826-27 (Pa. Super. 2006)). Specifically,

where a parent’s skills remain problematic, a goal change to adoption might

be appropriate, regardless of the parent’s compliance with a permanency plan.

R.M.G., 997 A.2d at 347; see also In re A.K., 936 A.2d 528, 534 (Pa. Super.

2007).

In its Pa.R.A.P. 1925(a) opinion, the court explained its findings and

reasons for the goal change:

As previously set forth, the record reflects Father was residing with Mother, her four children and M.J. [(the subject Child)] when the five children were removed from the home due to allegations of physical abuse perpetrated on them by both parents. At the time of the hearing, Father was being criminally charged as a perpetrator of physical abuse regarding [one sibling], and investigated for allegations of physical abuse to [another sibling], and M.J.

Additionally, M.J. suffered a fractured rib and skull fracture while in the care of his parents, yet Father never sought medical care for his one-year-old, who suffered injuries that would have caused pain in his ribs and pain swelling to his skull.

While the court found Father to be moderately compliant with his treatment plan, the record reflects [he] has failed to acknowledge the reasons that led to the removal of all of the children in his home. In his psychological evaluation, Father told Dr. von Korff he did not do anything wrong and believes physically disciplining the children was necessary and appropriate. Further, [the Agency caseworker] testified that Father has voiced that the children have been wrongfully detained by the Agency and placed back in his care.

Regarding Mother, Father stated he believes she goes out of her way not to hurt the kids. Finally, Father’s only explanation for M.J.’s injuries is that he jumped off the bed.

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Where a parent fails, as Father does here, to acknowledge the circumstances that necessitated M.J.’s removal, i.e., physical abuse and neglect, it is impossible for the Agency to provide a service to rectify that.

Ultimately, these children were all living with Father at the time of the removal; and even assuming he was not the perpetrator of the physical abuse to M.J., he at a minimum failed to protect him, or any of the other children from Mother. Father’s continued belief that neither one of them has done anything wrong prevents a goal of reunification from being in M.J.’s best interest.

T.C.O. 1 at 14-15 (style adjusted).

On appeal, Father argues the court abused its discretion for two reasons.

Father argues the court should have ordered a concurrent goal (reunification

and adoption), as suggested by the guardian ad litem. Additionally, Father

cites to the court’s finding that he made moderate progress in his reunification

plan.

In our review, we note the GAL’s concurrent goal recommendation was

based on the children’s statements that they still loved the parents.6 It was

the GAL’s belief that an immediate move toward adoption might not be in the

siblings’ best interest, because even though the parents posed a safety risk,

an immediate severance of their relationship might cause them harm. This

position is reasonable. For one thing, concurrent goal planning is a best

practice recognized by the Dependency Bench Book. R.J.T., 9 A.3d at 1191,

n.14 (citing Pennsylvania Dependency Benchbook (2010) § 10.4 at 96).

6 The siblings referred to Father as “daddy,” even though he was not their biological father.

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Moreover, we have said that even though a goal change does not terminate a

parent’s rights, changing the goal to adoption might not be appropriate if

severing an existent parent-child bond would have a detrimental effect. See

Interest of H.J., 206 A.3d 22, 25 (Pa. Super. 2019) (citing In re N.C.,

supra, at 824; In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)).

Here, however, the subject Child was only a year old. We question

whether the GAL’s recommendation pertained to M.J. at all. And we note

further that the GAL provided an appellate brief in support of the goal change.

But more to the point, the GAL’s recommendation is merely that – a

recommendation. The GAL’s position during the dependency proceedings is

not a substitute for the court’s judgment and independent analysis under

Section 6351(f).

We are also unpersuaded by Father’s argument that his participation in

the reunification plan should defeat the goal change. Notwithstanding Father’s

participation, the record supported the court’s finding that Father either does

not understand, or refuses to accept, why the Agency intervened in this case.

The juvenile court heard the caseworker’s testimony that the Agency was at

a loss, that it did not know what services it could provide – beyond those it

already provided – which could make Father understand that his form of

“discipline” constituted child abuse. As noted above, a goal change might be

appropriate where the parent lacks sufficient skills to care for the child, despite

the parent’s participation with the reunification plan. See R.M.G., 997 A.2d

at 347; see also In re A.K., 936 A.2d at 534.

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Although this Child’s dependency case had only been opened for three

months at the time of the goal change, the Agency was involved with Father

for some time. The instant case was not Father’s first experience with a

reunification plan. It was apparent to the court that reunification could not be

achieved any time soon, if at all. We cannot conclude that the juvenile court’s

goal change decision was an error of law or an abuse of discretion.

II. Termination appeal, 461 WDA 2023

Having disposed of Father’s goal change appeal, we turn to Father’s

appeal from the termination decree. Father presents the following issues for

our review:

1. Did the orphans’ court abuse its discretion in proceeding to hold a hearing on what was, in effect a new petition without Father having the benefit of required notice?

2. Did the orphans’ court abuse its discretion in terminating Father’s parental rights when the record is comprised of insufficient competent evidence to establish grounds for termination?

3. Did the orphans’ court abuse its discretion by finding that severance of Father’s parental rights would serve the Child’s best interests?

Father’s Brief (461 WDA 2023) at 7 (style adjusted).

In his first appellate issue on the termination appeal, Father alleges the

orphans’ court violated his right to due process when it permitted the Agency

to proceed with its amended petition. Recall that the Agency filed the original

termination petition in January 2023. In the original petition, the Agency

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alleged that termination was warranted under 23 Pa.C.S.A. § 2511(a)(2) and

(b). On March 14, 2023, two days before the court held the termination

hearing, the Agency amended its petition to allege a separate ground –

Section 2511(a)(5). Father claims the amended petition did not comply with

23 Pa.C.S.A. § 2313, which provides that the parent must receive at least ten

days’ notice. Father maintains that the amended petition constitutes an

entirely new petition, and because this new petition lacked proper notice, the

orphans’ court erred when it held the termination hearing. Father concludes

a remand is necessary.

It is well-settled that any individual whose parental rights are to be

terminated must be afforded due process – that is, certain procedural

safeguards. See In re Adoption of K.M.D., 261 A.3d 1055, 1059 (Pa. Super.

2021) (citing In re A.N.P., 155 A.3d 55, 66 (Pa. Super. 2017) and In re

Interest of K.B., 763 A.2d 436, 439 (Pa. Super. 2000)); see also Santosky

v. Kramer, 455 U.S. 745, 753 (1982) (“The fundamental liberty interest of

natural parents in the care, custody, and management of their child does not

evaporate simply because they have not been model parents or have lost

temporary custody of their child to the State.”). “Due process requires nothing

more than adequate notice, an opportunity to be heard, and the chance to

defend oneself in an impartial tribunal having jurisdiction over the matter.”

A.N.P., 155 A.3d at 66. (citation omitted).

Although we have explained that due process “is flexible and calls for

such procedural protections as the situation demands,” we are unwilling to

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allow the termination of parental rights “without strict compliance with the

procedures set forth by the Legislature….” Id. at 66, 68 (citing In re

Adoption of K.G.M., 845 A.2d 861, 865 (Pa. Super. 2004)) (further citation

omitted) (emphasis original). Strict compliance is warranted in termination

matters because of the gravity of such cases.7

Having underscored the constitutional rights implicated, and the

necessity for strict compliance with procedure, we identify the specific

provision at issue here. The Adoption Act explicitly addresses the notice

requirement in matters concerning the involuntary termination of parental

rights, and how that notice shall be served:

§ 2513. Hearing

(a) Time.--The court shall fix a time for hearing on a petition filed under section 2512 (relating to petition for

7 See K.M.D., 261 A.3d at 1059-60; see also In re Adoption of M.R.D.,

145 A.3d 1117, 1129 (Pa. 2016) (“termination of parental rights is one of the most serious and severe steps a court can take”); In Re: Adoption of: C.M., --- A.3d ---, 2021 WL 3073624, at *12 (Pa. 2021) (stating that a termination is the “civil law equivalent to the death penalty, forever obliterating the fundamental legal relationships between parent and child.”) see also Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super. 2012) (“termination of parental rights for all practical purposes ends the parent/child relationship as unequivocally as the death of the child”); and see Administration Office of Pennsylvania Court’s Office of Children and Families in the Courts, Pennsylvania Dependency Benchbook, “Termination of Parental Rights” at § 17.1 (3d ed. 2019) (Termination of parental rights “has often been called the ‘death penalty’ of dependency court, because of the seriousness and finality of a termination order severing all ties between a child and the biological parents.”).

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involuntary termination) which shall be not less than ten days after filing of the petition.

(b) Notice.--At least ten days' notice shall be given to the parent or parents, putative father, or parent of a minor parent whose rights are to be terminated, by personal service or by registered mail to his or their last known address or by such other means as the court may require. […]

23 Pa.C.S.A. § 2513(a)-(b).

Relying on the general, more elastic, notions of due process, the

orphans’ court reasons that the amended petition was proper because Father

was still on notice of the termination generally. See Trial Court Opinion,

6/16/23, regarding 461 WDA 2023 (T.C.O. 2) at 16-17. The court also

reasons the amended petition was proper, because the method of service

was proper. See T.C.O. 2, at 17 (citing Pa.O.C. Rule 15.6(a)). The Agency

argues that its amended petition was proper because the method of service

was proper. See Agency’s Brief at 10.

Upon review, we are troubled by the Agency’s inclusion of a last second

amendment. Although the grounds for termination under Section 2511(a)(2)

are similar as those under Section 2511(a)(5), they are by no means identical.

We share Father’s concern that an untimely amended petition could “in effect

submarine responding parties with a completely different case to defend.” See

Father’s Brief at 11. Contrary to the position of the Agency and the rationale

of the orphans’ court, we do not see how the method of service has any

bearing on the timing of service. The issue is not whether Father properly

received the amended petition, but whether he had enough time to prepare

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to defend the additional ground. Not only did the Agency fail to give Father

10 days’ notice, as set forth in Section 2513, but the Agency hardly gave

Father two days’ notice. Quite clearly, the inclusion of Section 2511(a)(5) was

out of bounds.

The question now becomes whether the improper inclusion of Section

2511(a)(5) constitutes reversible error. Although the orphans’ court

terminated Father’s rights under Section 2511(a)(5), the court also concluded

that the Agency met its burden under Section 2511(a)(2). This Court needs

only agree with the orphans’ court as to any one subsection under Section

2511(a), as well as (b), to affirm the termination of a parent’s rights. See,

e.g., In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). And as

we discuss below, we conclude that the record supports the court’s

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

Ultimately, we disagree with Father’s argument that improper inclusion

of Section 2511(a)(5) in the amended petition would defeat termination under

Section 2511(a)(2), which was properly noticed in the original petition. We

are guided by our decision in In re Adoption of J.N.F., 887 A.2d 775 (Pa.

Super. 2005). In J.N.F., the father was served with a termination petition.

The court then held a hearing to determine whether the father planned on

contesting the termination. The father did not participate, nor did he respond

to the inquiry of whether he desired to be appointed counsel. At the time,

father was incarcerated. In any event, the termination proceeding was

scheduled. A little more than two weeks before the hearing, the local agency

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filed an amended petition. Although the father received the original

termination petition, father did not receive the amended petition. The court

subsequently terminated the father’s rights. On appeal, he alleged that he

lacked notice, among other issues.

This Court noted the error but found it harmless. We first explained that

the trial court’s jurisdiction was invoked by the original termination petition,

of which the father had proper notice. J.N.F., 887 A.2d at 781. We also noted

that Father did not respond when asked whether he would challenge the

termination. We held:

Technically, [the agency] should have served the amended petition on [the father] to permit him an opportunity to respond to its specific allegations. However, inasmuch as we have already found that [the father] failed to take proper steps to challenge the termination proceedings, the failure of [the agency] to inform [the father] of the specific allegations it was averring against him in the amended termination petition was irrelevant. Therefore, whatever error was occasioned by [the agency’s] failure to serve the amended termination petition on [the father] was harmless.

Id. at 781-82.

Instantly, the orphans’ court, the Agency, and GAL rely on J.N.F. for

the proposition that once Father was properly served with the original petition

in January 2023, thereby invoking the court’s jurisdiction, any subsequent

amendment was allowable. We disagree with this assertion. Instead, we find

J.N.F. to be analogous insofar as we may conclude that an improper

amendment does not necessarily undo the propriety of the original petition.

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Because Father had received proper notice of Section 2511(a)(2), he

was able to defend against that claim. The improper inclusion of Section

2511(a)(5) did nothing to change this fact. We will not conclude that the

inclusion of Section 2511(a)(5), in an improper amendment, renders invalid

the inclusion of Section 2511(a)(2) in the original petition. Instead, the

remedy is to limit our review to the court’s decision under Section 2511(a)(2).

Perhaps in a different case, we would be persuaded by Father’s argument that

an improper amendment sullies the rest of the petition. But as Father

concedes in his Brief, that was not what happened here. See Father’s Brief

at 11. In short, we conclude that the orphans’ court committed an error when

it permitted the Agency to proceed on Section 2511(a)(5); however, we

conclude the error was harmless because the Agency could properly proceed

on Section 2511(a)(2).

We turn now to the substantive termination analysis, beginning with our

well-settled standard of review:

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. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.

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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

Our Supreme Court has repeatedly stated that in termination cases,

deference to the trial court is particularly crucial. In re Adoption of L.A.K.,

265 A.3d 580, 597 (Pa. 2021); see also Interest of S.K.L.R., 265 A.3d 1108,

1124 (Pa. 2021) (“When a trial court makes a ‘close call’ in a fact-intensive

case involving…the termination of parental rights, the appellate court should

review the record for an abuse of discretion and for whether evidence supports

that trial court’s conclusions; the appellate could should not search the record

for contrary conclusions or substitute its judgment for that of the trial court.”).

The abuse-of-discretion standard in termination cases “is a highly deferential

standard and, to the extent that record supports the court’s decision, we must

affirm even though evidence exists that would also support a contrary

determination.” In re P.Z., 113 A.3d 840, 849 (Pa. Super. 2015) (citation

Clear and convincing evidence is evidence that is so “clear, direct,

weighty and convincing as to enable the trier of fact to come to a clear

conviction, without hesitance, of the truth of the precise facts in issue.” In re

C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of

Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).

Termination of parental rights is governed by Section 2511 of the

Adoption Act, which requires a bifurcated analysis.

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Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in section 2511(a). Only if the court determines that the parent's conduct warrants termination of his 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[.]

In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).

As we discussed above, the only ground the Agency properly preserved

under Section 2511(a) was Subsection 2511(a)(2). Thus, we address the

court’s decision to terminate Father’s rights under that Subsection, which

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 under Section 2511(a)(2), the Agency must

prove “(1) repeated and continued incapacity, abuse, neglect or refusal; (2)

that such incapacity, abuse, neglect or refusal cause the child to be without

essential parental care, control or subsistence; and (3) that the causes of the

incapacity, abuse, neglect or refusal cannot or will not be remedied.” C.M.K.,

203 A.3d at 262. The grounds for termination are not limited to affirmative

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misconduct, but concern parental incapacity that cannot be remedied. In re

Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010). Parents are required to make

diligent efforts toward the reasonably prompt assumption of full parental

duties. Id.

In its Rule 1925(a) opinion, the orphans’ court cited the testimony of

several witnesses it relied upon to reach its decision. Kristine Kirkpatrick, the

Agency’s intake caseworker, testified about the law enforcement’s

investigation into the Child’s injuries. Mother and Father were subsequently

charged with Endangering the Welfare of a Child for failing to obtain medical

care. Father also had pending charges of Simple Assault and Endangering the

Welfare of a Child, as they relate to the abuse of the Child’s sibling. See

T.C.O. 2 at 8 (citations to the record omitted).

Karin Wickwire, a nurse practitioner and forensic examiner, testified as

an expert in the field of child maltreatment. She testified that the Child had

a “parietal skull fracture” and “healing fracture of the right tenth rib in the

back, posterior rib.” She said these injuries likely occurred several weeks

before their discovery, although the rib fracture was more recent. Id. at 9-10

(citations to the record omitted). The rib fracture was diagnostically labeled

as physical child abuse. Id.

Dr. Peter von Korff, an expert in the field of child psychology, conducted

an interview with Father and the siblings; the subject Child was too young to

be interviewed. Dr. von Korff testified that the children lived in a culture of

insecurity, abuse, corporal punishment, and neglect. Id. at 11. Dr. von Korff

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testified that Father did not believe there was anything wrong with disciplining

the sibling, even though the “discipline” resulted in an assault charge. Dr.

von Korff also testified that Father continued to lack insight into the

seriousness of the subject Child’s injuries. For instance, Father did not ask

who hurt the Child or how the Child got hurt. Instead, Father was upset at

the Agency for intervening, which he felt was unwarranted and wrong. Id. at

12. Critically, Dr. von Korff testified that while Father had some basic

parenting skills “that could be worked with,” the services that were already in

place would not benefit Father. Dr. von Korff testified that Father would need

“attachment oriented psychotherapy,” which would be a “long term

commitment” and would require Father’s buy in. Id. (citations to the record

Finally, the orphans’ court noted the testimony of the Agency’s

caseworker, Molly Freeborough, who testified about the family’s history with

the Agency. Ms. Freeborough testified that Father began living with Mother

in January 2020. At that time, the household, including Father, had been the

subject of an open investigation, and the family was receiving services. Id. at

13. Between January 2020 and March 2022 – (the Child was born in July

2021) – the Agency had received numerous reports regarding “inappropriate

discipline; drug and alcohol use; poor living conditions; and lack of

supervision.” Id. However, the Child and the siblings were permitted to stay

at home. The case was closed on March 17, 2022.

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In May 2022, the Agency received a report that Father’s son – another

non-subject sibling – had engaged in inappropriate touching with another

sibling in the household. The Agency also received a report that there were

concerning marks and bruises on another sibling. After an investigation, the

case was closed on June 1, 2022. On June 21, 2022, the Agency received

another report about inappropriate touching among the siblings. However,

Father declined services. Id. at 13-14.

The next report was on June 24, 2022, involving Father’s discipline of a

sibling with the spoon – the event which triggered the Child’s removal from

Father’s care. Ms. Freeborough testified that Father had been belligerent and

combative throughout the case, that he had taken no responsibility for the

removal of the Child, and believed that his methods of discipline were

appropriate. Id. at 14.

On appeal, the crux of Father’s argument is that he was compliant with

the reunification plan, that he had made moderate progress, and that the

court terminated his rights too soon. See generally Father’s Brief at 15-18.8

After review, we discern no abuse of discretion or error of law. To the

extent that the Agency filed a termination petition soon after the Child’s

removal, the timing of such a petition is relative. When the Child was removed

8 Father’s Brief on this appeal (461 WDA 2023), like his Brief concerning the

goal change order (1490 WDA 2022), also circumvents Pa.R.A.P. 2119. Again, Father does not divide his argument section into corresponding headings. See Footnote 5, supra. Waiver is not appropriate in this case, however, because it is still possible to follow his argument.

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in July 2022, the Agency had been involved with the family for over two years,

and nearly a year before the Child’s birth. By the time the court held a hearing

on the Agency’s termination petition in March 2023, Father had demonstrated

all three prongs of the Section 2511(a)(2) inquiry.

First, Father had demonstrated repeated and continuous course of

conduct that involved abuse and neglect. But to the extent that such abuse

and neglect was merely poor parenting skills, Father was also told to adjust

those parenting skills. He refused. And that refusal also constitutes a refusal

to parent. Second, as a result of Father’s conduct, the Child had to be

removed and thus was without necessary parental care. Third, the conditions

which led to the Child’s removal – call it “abuse,” “neglect,” or more

generously, “poor parenting” – cannot or will not be remedied.

As to the third prong, Dr. von Korff testified that Father would need to

participate in long term therapy to improve his parenting skills – that the

standard services, including a 12-week anger management course, would be

insufficient. Critically, however, even this long-term therapy approach would

require Father’s “buy in.” But Father has made it clear that he has no interest

in buying into any remedial effort that would address the underlying cause of

the Child’s removal. Therefore, we conclude that the record supports the

orphans’ court’s termination decision, notwithstanding the fact that the

Agency moved relatively quickly in this case. Father’s second appellate issue

merits no relief.

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Having concluded that the orphans’ court did not err or abuse its

discretion under the first prong of the termination analysis under Section

2511(a), we next review the court’s conclusion that termination would best

serve the Child’s needs and welfare under Section 2511(b). That subsection

provides, in relevant part:

(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.

23 Pa.C.S.A. § 2511(b).

This Court has explained:

[S]ection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child.” In addition, we instructed that the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent of the bond- effect analysis necessarily depends on the circumstances of the particular case. Id. at 763.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

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Concerning the bond, the question is not merely whether a bond exists,

but whether termination would destroy this existing, necessary and beneficial

relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,

946 A.2d at 764 (holding there was no bond worth preserving where the child

had been in foster care for most of the child’s life, which caused the resulting

bond to be too attenuated). Moreover, the court is not required to use expert

testimony to resolve the bond analysis. In re Z.P., 994 A.2d 1108, 1121

(citing In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)). Finally, we

emphasize that “[w]hile a parent’s emotional bond with [their] child is a major

aspect of the Section 2511(b) best-interest analysis, it is nonetheless only one

of many factors to be considered by the court when determining what is in the

best interest of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)

(citation omitted).

On appeal, Father argues “there is no evidence of record in this matter

that the bonds between the parent and the child were evaluated at all, and it

does not appear that any witness offered testimony as to the negative effect

that severance of the bond may have on the subject Child.” See Father’s Brief

at 18. Father also notes that the Child was not placed with a pre-adoptive

foster parent, and in fact, at the time of the termination hearing, the Agency

was contemplating a kinship placement with a paternal aunt in Arizona. Father

cites the Agency’s permanency case worker – Michael Vicander – who testified

that a kinship placement can have the effect of improving the relationship

between parents and children. Thus, according to Father, termination would

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not be in the Child’s best interest if the plan for the Child’s permanency

involves an improved bond between Father and the Child. See id. at 18-19.

After review, we conclude Father’s argument merits no relief. First, we

recognize that when there is no evidence of a bond, it is reasonable to infer

that none exists. K.Z.S., 946 A.2d at 762-63. Perhaps more to the point, the

bond question is not merely whether one exists, but whether termination

would destroy a necessary and beneficial relationship. See J.M., supra. The

record clearly supports the notion that, to the extent Father and the Child had

a bond, it was not of the sort that should be preserved. The Child suffered

injuries that constituted child abuse. Whether Child suffered these injuries at

the hands of Father, or because of Father was neglectful, neither would

suggest a worthwhile parental bond. Mindful of the “culture of insecurity,

abuse, corporal punishment, and neglect” that was the Child’s homelife prior

to removal, we cannot conclude that the court erred when it determined there

was no bond worth preserving.

Of course, the bond question is one aspect of the best interest analysis.

See N.A.M., supra. To that end, we note that the caseworker testified that

the Child needed extra attention following his removal. Indeed, the Child’s

behavioral issues were significant enough that they proved too great for an

experienced foster family. All taken together, these facts support the court’s

decision that termination would best serve the Child’s needs and welfare under

Section 2511(b). Father’s third appellate issue merits no relief.

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In sum: we conclude that Father’s appeal from the goal change order,

docketed at 1490 WDA 2022, is moot considering the subsequent termination

of his parental rights. Nevertheless, given the sequence of these events and

that this type of goal change appeal was apt to elude appellate review, we

addressed the substance of Father’s claims and conclude that the goal change

was proper. Next, we conclude that the orphans’ court erred when it

entertained termination under Section 2511(a)(5). The Agency’s amended

petition did not afford Father with sufficient notice. However, that error was

harmless, because Father was still provided proper notice of the Agency’s

intention to terminate his rights under Section 2511(a)(2). We further

conclude that the court did not abuse its discretion or commit an error of law

when it ruled that the Agency established grounds for termination by clear

and convincing evidence under Section 2511(a)(2) and (b).

Goal change order affirmed. Termination decree affirmed.

DATE: 02/09/2024

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