Opinion
936 WDA 2023 937 WDA 2023 J-A06006-24
05-06-2024
IN RE: ADOPTION OF G.W., A MINORAPPEAL OF: FAYETTE COUNTY CHILDREN AND YOUTH SERVICESIN RE: ADOPTION OF T.W., A MINORAPPEAL OF: FAYETTE COUNTY CHILDREN AND YOUTH SERVICES
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Decree Entered August 2, 2023 In the Court of Common Pleas of Fayette County Orphans' Court at No(s): 27 ADOPT 2022, 28 ADOPT 2022
Benjamin D. Kohler, Esq.
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.
MEMORANDUM
LAZARUS, P.J.
Fayette County Children and Youth Services (CYS) appeals from the decrees, entered in the Fayette County Orphans' Court, denying its petitions to involuntarily terminate the parental rights of C.W. (Mother) to her minor children, G.W. (born November 2014) and T.W. (born October 2018) (collectively, Children). The trial court concluded that CYS did not prove, by clear and convincing evidence, that Mother's rights should be terminated under 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (8) of the Adoption Act.Because CYS has failed to provide this Court with sufficient documentation to conduct proper appellate review of whether it fulfilled its burden to terminate Mother's parental rights under subsection 2511(a), we are constrained to affirm.
On September 5, 2023, our Court, sua sponte consolidated the above-captioned appeals. See Pa.R.A.P. 513 (Court can consolidate cases on appeal that involve related parties and issues).
The trial court, however, granted CYS' petitions to involuntarily terminate the parental rights of S.T. and T.W., fathers of G.W. and T.W., respectively. Neither father is a party to these appeals.
Mother has a total of ten children; four of those children were privately adopted by a family in Westmoreland County (adoptive family). In the instant matter, Westmoreland County Children's Bureau (WCCB) received a referral on May 14, 2021, that Mother had been arrested and charged with endangering the welfare of children, attempted robbery, and public intoxication. On that day, Mother, who appeared to be intoxicated, attempted to break into the adoptive family's home while Children were with her. See N.T. Termination Hearing, 5/11/23, at 13-14. After Mother was taken into custody at the scene, she unsuccessfully instructed Children to open the door of the police cruiser so she could escape. Id. at 14. A WCCB supervisor testified that county records indicated Children were upset at the scene. Id.
While four of Mother's other children were adopted, a fifth child was also living with the adoptive family.
The July 9, 2021 adjudication and dispositional order also contains the following findings of fact: in April 2021, WCCB received a referral that Mother was using methamphetamines; Mother did not cooperate with drug testing; and, on May 5, 2021, police were called because Mother was impaired.
Mother denied having consumed alcohol or that she was drunk when she went to the adoptive family's home on May 14, 2021. See N.T. Termination Hearing, 5/12/23, at 248.
WCCB received two referrals listing Mother as the perpetrator of child abuse, in April and June of 2021, as a result of T.B. having excessive bruises on her shins, chest, back, arm, and upper leg. Id. at 21, 25-26. However, those reports were eventually deemed unfounded. One of the referrals reported that Mother was using crystal methamphetamine and was beating Children. Children presented with injuries from the incidents. Although the reports were deemed unfounded, WCCB supervisor Molly Clayton testified, "[j]ust because something is unfounded, doesn't mean the injuries did not occur, it just means they did not rise to the level of causing impairment, or significant pain." N.T. Termination Hearing, 5/11/23, at 34. See also WCCB Dependency Petition, 5/26/21, at ¶6 (indicating referrals regarding bruising and marks on T.W. "raise[d] concerns regarding adequate supervision and appropriate parental response to [] child"). The referrals and reports were not included in the record on appeal, which we discuss further infra.
On May 14, 2021, emergency custody of Children was granted to WCCB, the county where the parties resided at the time. Children were originally placed in kinship care with their maternal aunt. Id. at 15. On May 17, 2021, Children were placed in foster care. Id. On July 9, 2021, Children were adjudicated dependent after the court found, by clear and convincing evidence, that they were without proper care or control necessary for their physical, mental, or emotional health or morals. Id. at 16; see also 42 Pa.C.S.A. § 6302. A caseworker scheduled a mental health evaluation, noting that he had "concerns for Mother's mental health, due to erratic behavior," and, despite the fact that WCCB had contacted ARCPoint Labs to provide drug and alcohol testing for Mother, attempts at testing were unsuccessful. See Recommendation for Adjudication and Disposition, 7/9/21, at 1; see also WCCB Dependency Petition, 5/26/21, at 2. See Recommendation for Adjudication and Disposition, 7/9/21, at 2 (noting Mother has lengthy history of drug and alcohol use and "continues to demonstrate impaired conditions"). Mother's housing at the time was deemed "appropriate." Id.
In July 2021, Mother entered a guilty plea to criminal trespass and public drunkenness and was incarcerated. See N.T. Termination Hearing, 5/12/23, at 232. As a bond condition, the court entered a no-contact order, effective until August 1, 2021, against Mother with regard to Children. Supervised visits with Mother were ordered if/when the bond condition changed. See Recommendation for Adjudication and Disposition, 7/9/21, at 1, 3. The permanency plan listed the goal as return to parent, with a projected goal date of January 2022. Id. at 3.
Mother was released from jail in August of 2021.
The trial court adopted the hearing officer's recommendation for adjudication and disposition, by order, on July 14, 2021.
WCCB prepared a family service plan for Mother, which she signed, with the following objectives: (1) undergo drug and alcohol evaluation and comply with recommended treatment; (2) undergo mental health/psychiatric evaluation and comply with recommended treatment; (3) participate in parenting assessment; and (4) participate in parenting instruction until successful completion. See Adjudication/Dependency Dispositional Order, 7/9/21, at 4 (Petitioner's Exhibit 3); see also N.T Termination Hearing, 5/11/23, at 16-17, 22; Trial Court's Findings of Fact, 8/4/23, at ¶ 10.
WCCB supervisor Molly Clayton testified that Mother successfully completed five out of twenty-seven drug screens. Id. at 17-18. Ms. Clayton also testified that in August and September 2021, Melissa Franks, Psy.D., completed psychological evaluations of Mother, that Mother was cooperative, and that Mother attended four of five scheduled mental health sessions. Id. at 17, 22. Ms. Clayton testified that she was told Mother "might be able to be discharged in November of 2021, if she continued [with treatment]." Id. at 17. Finally, Ms. Clayton testified that Mother did not disclose to Dr. Franks that she had been diagnosed with schizophrenia in 2018 by Southwestern Pennsylvania Human Services, Inc. (SPHS). However, Mother testified that she was unaware of her schizophrenia diagnosis until she read the evaluation and that she never saw a doctor at SPHS. Id., 5/12/23, at 242; id. at 264 (Mother testifying "No one has ever told me that I was diagnosed with schizophrenia[,] but it's in that report. . . . I don't know of any diagnosis for me recent saying anything."); id. at 241 (Mother asking counsel on cross- examination, "Who diagnosed me with schizophrenia, that's like what your report says, I want to know who diagnosed me with schizophrenia. I've never seen [any] paperwork saying that.").
Mother self-reported that she had two drug and alcohol evaluations completed in June/July 2021 (Westmoreland County) and January 2022 (Fayette County), however WCCB supervisor Molly Clayton testified she "d[id]n't believe that [Mother] ever provided [her] agency with a copy of that." Id. at 25. However, Mother testified that CYS never told her to get a second drug and alcohol test, another parenting certificate, or another mental health evaluation in Fayette County. Id., 5/12/23, at 263.
On December 15, 2021, upon agreement and consent of the Honorable Linda Cordaro of the Court of Common Pleas of Fayette County, the case was transferred from WCCB to CYS because Mother and Children had relocated to Fayette County. Custody of Children was similarly transferred to Fayette County CYS. At the time the case was transferred to Fayette County, Mother was on house arrest for burglary charges and was renting a house on Pennsylvania Avenue, in Uniontown, Fayette County. See N.T. Termination Hearing, 5/12/23, at 207; id. at 244 (Mother testifying she left Westmoreland County and moved to Fayette County in November 2021).
Following the transfer of Mother's case to Fayette County in December 2021, CYS prepared a family service plan, which required Mother
[o]btain and maintain appropriate housing, free and clear of any safety o[r] health hazards[; a]ssure [C]hild[ren are] seen by the pediatrician as needed[;] cooperate with [CYS; d]emonstrate appropriate parenting[; a]ddress mental health concerns [by] successfully completing an assessment through a mental health facility of choice [and] openly communicat[e with] the mental health care provider in regards to personal and pertinent information they request [and] successfully complet[e] recommended treatment through a mental health care provider based on their assessment[; a]ddress drug and alcohol issues [by] successfully completing an assessment through a drug and alcohol provider of choice [and that is approved by the agency,] follow all recommendations made by the drug and alcohol provider[,] agree to scheduled and unscheduled urine and/or hair screenings conducted by [CYS,] openly communicat[ing] with the drug and alcohol provider regarding all personal and pertinent information they request[,] successfully complet[e] recommended treatment
though drug and alcohol provider based on their assessment[, and] enter into inpatient if unable to maintain sobriety.CYS' Petition to Terminate Parental Rights, 7/5/22, at 5.
Mother tested positive for methamphetamines in December 2021. As a result of this positive test, CYS informed Mother that she needed to complete, in Fayette County, a drug and alcohol assessment, follow all recommendations by an approved provider, schedule urine and/or hair screenings, and openly communicate with the drug and alcohol provider regarding all personal and pertinent information they request. See N.T. Termination Hearing, 5/11/23, at 133-34. Mother was also told by CYS that she needed to complete another mental health evaluation. Id. at 137.
In February and May of 2022, JusticeWorks coordinated with CYS to conduct Mother's drug and alcohol tests; the testing occurred from February 2022 through May 2022. See Petitioner's Exhibit 4, at 1-2. Out of a total of 70 tests that were administered, Mother tested positive 2 times (TCA (5/17/22) and alcohol (5/10/22)) and negative 44 times for drugs and alcohol, along with 16 missed tests, 4 refused tests, 4 inconclusive tests. Id.
On this date, when a JusticeWorks staff member told Mother she had tested positive, Mother allegedly threw her urine at the staff, telling them that they were lying to her about the positive result. See Petitioner's Exhibit 4, at 2.
Mother was charged with theft by unlawful taking and escape arising from an incident that occurred on May 21, 2022. She was incarcerated in the Fayette County Prison, but was transferred to a state facility to serve a 15-30 month sentence on prior charges. On July 5, 2022, CYS filed petitions to involuntarily terminate Mother's parental rights to Children pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (8). In its petitions, CYS alleged that Mother "has not successfully completed the goals of the service plan and has not remedied the conditions which led to the placement of the children." Id. Although CYS recognized Mother completed a drug and alcohol assessment in June of 2021, undergone a mental health evaluation, attended parenting classes, and visited Children, it was noted that "[M]other was only minimally compliant with drug screens." Id.
Pursuant to 23 Pa.C.S.A. § 2511:
(a) General rule. - The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control[,] or subsistence necessary for 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.
* * *
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time[,] and termination of the parental rights would best serve the needs and welfare of the child.* * *
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (8).
On May 11-12, 2023, the court held termination hearings, during which WCCB supervisor Molly Clayton, Justice Works Youth Care (JWYC) family resource specialists Anastasia Wooser and Breanna Lucas, JWYC program director Laura Daumit, Child's Place parent educator Marlena Theodori, CYS supervisor Jennifer Guseman, Fayette County Prison counselor Jamee Waligura, and Mother each testified.
Children were represented by guardian ad litem, John A. Kopas, Esquire, and attorney, David Tamasy, Esquire, at the termination hearings. See 23 Pa.C.S.A. § 2313(a) (children have statutory right to counsel in contested involuntary termination proceedings), and In re K.R., 200 A.3d 969 (Pa. Super. 2018) (en banc), but see In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) ("[D]uring contested termination-of-parental-rights proceedings, where there is no conflict between a child's legal and best interests, an attorney-guardian ad litem representing the child's best interests can also represent the child's legal interests."). Attorney Kopas also had represented Children in the related dependency matter.
Mother was incarcerated at the time of the termination hearings, but was present on both days of hearings and testified on the second day. Mother was represented by Phyllis Jin, Esquire, at the hearing.
During her incarceration in 2022, Mother had 15-minute Zoom visits with Children, supervised by JWYC resource specialist, Breanna Lucas, every other Wednesday beginning in August. The JWYC resource specialist testified that T.W. was "very excited" for the Zoom visits and would "mostly . . . say I love you" back to Mother, while G.W usually "does not want to engage" in the visits. N.T. Termination Hearing, 5/11/23, at 95-96; see id. at 168 (G.W. "shut[s] down . . . [h]e is almost fearful."); id. at 173 (G.W. "doesn't even want to participate in some of the visits . . . [o]r he won't even acknowledge [Mother]."). Ms. Lucas testified that during these visits Mother commented to Children that foster parents should not be cutting T.W.'s hair, blamed caregivers for not giving her gifts to Children, that she would ask G.W. about school and soccer and that they would pray together, and that, since Christmas, the "majority of the visits were appropriate." N.T. Termination Hearing, 5/11/23, at 86-95.
JWYC staff member Anastasia Wooster, who drug tested Mother for three months in 2022, testified that Mother would "consistently have random men in her house [and] would leave her front door unlocked for the homeless people to sleep on her front porch." N.T. Termination Hearing, 5/11/23, at 53; id. at 61 (JWYC worker testifying there would be one to three random males in Mother's home every time she conducted drug tests four times/week). Ms. Wooster also testified that Mother accused CYS of withholding information about her case and forging information, stated that CYS was "in the business of stealing babies," alleged that CYS and JusticeWorks lied about her in court, and accused staff of tricking her when she was drug testing. Id. at 51, 53; see also Petitioner's Exhibit 4, undated, at 3-4. During a May 17, 2022 visit, Ms. Wooster testified that Mother talked to staff about her sex life, "fondled" the toes of a staff member, used inappropriate language for one's private parts, became irate after she was informed her drug screen was positive and, as a result, threw her urine on the caseworker. See N.T. Termination Hearing, 5/11/23, at 40-59. The urine-throwing incident resulted in Mother being charged with aggravated assault and harassment; she was ultimately acquitted of the assault, but found guilty of harassment. Id. at 63, 233.
Moreover, as a result of the home visit incident, JWYC was no longer willing to drug test Mother and no longer willing to supervise visits at the home or with only one caseworker present. Mother was also required to sign a "Client Expectation" contract due to the incident, which outlined JWYC's expectations and rules for visits in order "to ensure a safe and successful visit." JWYC Client Visit Expectations Form, Exhibit 6 to Dependency Petition, 1/15/23, at 1.
CYS caseworker Jennifer Guseman testified at the termination hearing that Mother refused to sign off on any of the three service plans they crafted, "saying she completed all her goals in Westmoreland County." N.T. Termination Hearing, 5/11/23, at 132, 144. Caseworker Guseman conducted a home study, concluding Mother's Uniontown home was "appropriate," that Children's rooms were "set up nicely" and that she had "working utilities." Id. Ms. Guseman testified that Mother initially refused to sign releases so that CYS could coordinate with Fayette County Drug and Alcohol to communicate any concerns, most notably Mother's positive 12/21/21 drug screen for methamphetamines. Id. at 134-35. Caseworker Guseman also testified that she had been contacted multiple times by JusticeWorks staff, who let her know that Mother appeared impaired, smelled of alcohol, and exhibited overall "erratic" behavior during their visits. Id. at 136. A Westmoreland County mental health evaluation provided to CYS caused Caseworker Guseman to have "concerns [that Mother] wasn't open and honest with her evaluator" regarding her alcohol consumption. Id. at 137.
Caseworker Guseman further testified that Mother did ultimately complete parenting classes through the Crime Victims Center in Westmoreland County, however CYS continues to have concerns about Mother's ability to parent. Id. at 139. Caseworker Guseman also testified that Children are safe in their current placement, where their needs are being met. Id. at 146. T.W. is "quite comfortable" with her foster family. Id. Although CYS staff admitted that Mother shares a "connection" with Children, that bond is not always healthy. Id. at 147, 162.
Marlena Theodori, a parenting educator for Child's Place, testified that she provided one-to-two-hour group parenting sessions (Triple P Program) to Mother and other Fayette County inmates in July and August of 2022. Id. at 106. As an evidence-based program, the sessions were geared toward enhancing and developing parenting strategies and skills so that the parent-inmates may form better bonds with their children. Id. at 105-106. Although Ms. Theodori testified that Mother "seemed open and willing to discuss [] topics . . . and was engaged during the[] classes," id. at 124, Mother refused to implement a "planned ignoring" technique with Children or set a realistic parenting goal, an exercise encouraged with the parents at group sessions. Id. at 111. Ms. Theodori testified Mother was noncompliant because she said that specific exercise was "unrealistic and there was no point in doing that while she was . . . [in] jail." Id. at 110-11. See also id. at 111 (Ms. Theodori stating Mother "can be very defensive . . . [o]r just very dismissive of anything [the parent educator] would try to give").
At an August 10, 2022 parenting session, Ms. Theodori testified that Mother got "a little bit hostile" toward her when she asked to observe Mother's Zoom visits with Children, stating that Mother "was very upset that . . . I wanted to come in and observe the video conference with her and her kiddos." Id. at 114. Ms. Theodori testified that Mother told her "she did not want to do it [anymore, and s]aid [']I'm done.[']" Id. As a result, Mother failed to complete the required six-week parenting program, attending only three sessions in total. Id. at 112. See also id. at 127 (Ms. Theodori testifying she did not think Mother received anything positive from classes or absorbed instructions from sessions); but see id. at 124 (Ms. Theodori testifying Mother would "talk about things [they worked on in sessions] and she would say, 'well[,] I've tried that[,] and it didn't work.'").
Jamee Waligura, a counselor at Fayette County prison who supervised Mother's Zoom visits with Children, testified that Mother's first few remote visits with Children were "very rocky [in the sense that Mother had] some outburst[s]," and would say inappropriate things. N.T Termination Hearing, 5/12/23, at 190-91. However, he testified that Mother "tries very hard to . . . be engaged [with Children during the visits]." Id. at 202. Moreover, Mr. Waligura testified that Mother's visits positively progressed in the two and a half months prior to the termination hearings.
While Mr. Waligura is "present" during the Zoom calls between Mother and Children from prison, he does not participate in the visits like JWYC providers do. Id. at 189. See also id. (Mr. Waligura testifying "[i]n the beginning of the [Zoom call] whenever we sign in, they will see my face because I will say good morning . . . [a]nd then I sit in my chair").
Finally, Mother testified that she participated in outpatient counseling at SPHS following a recommendation after her psychiatric evaluation. See id. at 242. Mother testified that she saw Dr. Susanne DeMarco for sessions "every week [for two to three months] until [Mother] was incarcerated." Id. Mother also testified that any men that were in the home when the Justice Works staff member conducted home visits were either the Children's uncles or their aunts' boyfriends. Id. at 208. Mother also testified that she had furnished rooms for Children at the Pennsylvania Avenue home and that the deadlocks on the bedroom, bathroom, and closet doors that staff members saw during in-home visits were already installed when she began renting the house. Id. at 210. Mother testified that she bonded with the JusticeWorks provider who "was almost getting close to feeling like family." Id. at 211. Mother also testified that she filed a grievance when she was not permitted to finish parenting classes in prison, that she "definitely would not have quit parenting classes, [but] just told [the parenting class instructor] that she wasn't welcome to sit in [on her visits with Children]." Id. at 221, 249. Mother later reenrolled in a different parenting program, which she completed in April 2023. See id. at 222.
Mother testified that Fayette County CYS did not include her in developing its family service plan or permanency plan and never was asked to sign it, but first learned of the plan when it was handed to her. Id. at 226. Moreover, Mother testified that CYS Caseworker Guseman never told Mother that she had to complete another parenting plan in Fayette County even though she had already completed her case plan objectives in Westmorland County. Id. at 263. Mother stated that she only has the best interests of Children at heart, that upon release from jail she will seek appropriate housing, and that when she was not incarcerated she had worked for a temporary agency and a personal care home agency. Id. at 228-29.
While incarcerated, Mother testified that she had been evicted from the Pennsylvania Avenue home. Id. at 237.
Mother further testified that she attends weekly Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings in jail and had another drug and alcohol evaluation conducted in January 2022 after having a positive urine test in December 2021. Id. at 236, 239. Mother admitted that she has relapsed three times with consuming alcohol, id. at 247, 253, and that she also made the following comments during a visit with JWYC supervisor Tonya Wright-(1) "dad had to go to Mars to start a new language" and (2) "she thinks it's good and bad spirits [that] jump inside of us at different times." Id. at 257-58. Mother testified that professionals told her she did not need to complete further drug and alcohol or mental health services. Id. at 252.
At the conclusion of the hearing, the court ordered the parties to submit, within 30 days, proposed findings of fact, conclusions of law, and arguments in support of their respective positions. N.T. Termination Hearing, 5/12/23, at 266. The court also incorporated the related dependency petitions and orders and any transcripts from relevant dependency proceedings into the instant record. Id. at 181-82. See also id. at 182 (trial judge agreeing to incorporate "whatever is in the official file at the clerk of courts office" in the dependency matter).
The court also ordered that Mother's visitation be expanded to two times each week for 15 minutes per visit and that foster mother participate in the visits and provide Mother with a "daily recap of the [C]hildren's activities." Id. at 267.
As discussed infra, several critical documents are not included in the certified record on appeal. For instance, there is no transcript from a May 18, 2021 shelter care hearing that was referenced in Westmoreland County Children and Youth Service's Dependency Petition.
On August 2, 2023, the orphans' court entered decrees denying CYS' petitions to involuntarily terminate Mother's parental rights to Children, concluding that Mother "immediately began to work on the goals of the [case] plan" once the case was opened. Trial Court Findings of Fact, 8/4/23, at 8 (noting Mother underwent mental health treatment and attended parenting classes). The court also took note that Mother "has been consistent with her visitation with [Children]," and, even while she was incarcerated, "Mother utilized the opportunities for visitation [] and [] maintained contact with [Children]." Id. The court credited Mother for completing a mental health evaluation, drug and alcohol evaluations, and parenting classes. Id. at 9. Similarly, the court recognized that Mother has been attending AA and NA meetings while in jail. Id. at 10.
In its findings of fact, the court referred to March 2022, October 2022, January 2023 and April 2023 permanency review hearings at which Mother was deemed to be moderate to minimally compliant with her Fayette County family service plan. Id. at 5. The court also stated that although "Mother's conduct in this case certainly has been bizarre at times and unacceptable . . . these incidents do not appear to be the norm and do not evidence that Mother cannot or will not remedy the conditions which cause the [Children's] removal." Id. at 11.
CYS filed a timely notice of appeal. On August 22, 2023, CYS filed its Pa.R.A.P. 1925 concise statements of errors complained of on appeal. See Pa.R.A.P 1925(a)(2). CYS presents the following issues for our consideration:
CYS failed to file its Rule 1925 statements contemporaneously with its notices of appeal pursuant to Pa.R.A.P. 1925(a)(2). However, we will not find waiver because there has been no allegation of prejudice from the late filings. See In re K.T.E.L., 9883 A.3d 745, 747 n.2 (Pa. Super. 2009); see also In the Int. of R.R.D., 300 A.3d 1077, 1080-81 (Pa. Super. 2023).
(1) Whether [CYS] proved by clear and convincing evidence that the parental rights of [] Mother of [Children] should be involuntarily terminated?
(2) Whether the [orphans'] court improperly excluded evidence of Mother's methamphetamine use?
(3) Whether the denial of the petitions for termination of parental rights violates the Adoption and Safe Families Act.Appellant's Brief, at 5.
Notably, Children's attorney, David Tamasy concurs with CYS' first issue- that the trial court erred by not terminating Mother's parental rights under section 2511(a). However, he does not believe that the court erred with regard to CYS' issues 2 and 3.
We note that:
In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty[,] and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation and quotation marks omitted). We review a trial court's decision to involuntarily terminate parental rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to determining whether the trial court's order is supported by competent evidence. Id.
A party seeking termination of parental rights bears the burden of proving, by clear and convincing evidence, that at least one of eight grounds for termination under section 2511(a) exists, and that termination promotes the emotional needs and welfare of the child set forth in section 2511(b). Parental rights may be involuntarily terminated where any one subsection of section 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions. In re Adoption of R.J.S., 901 A.2d 502, 508 n.3 (Pa. Super. 2006).
Mother has been incarcerated twice while Children have been in placement. The first incarceration was directly related to the reason Children were removed from her care and adjudicated dependent.
Due to the state of the record, we can only surmise that Mother was first incarcerated on May 15, 2021 (instant matter) and was released sometime in late July or early August 2021. Mother was reincarcerated on June 13, 2022, and was still in prison at the time of the termination hearings in May 2023. Mother testified that her minimum release date was February 26, 2024, and that her maximum date is May 2024. See N.T. Termination Hearing, 5/12/23, at 243.
This Court has long held that a parent's absence or failure to support his or her child due to incarceration is not, in itself, conclusively determinative of the issue of parental abandonment. In re Adoption of McCray, [] 331 A.2d 652, 655 (Pa. 1975). Indeed, incarceration alone is not an explicit basis upon which an involuntary termination may be ordered pursuant to [s]ection 2511 of the Pennsylvania Adoption Code. In re C.S., 761 A.2d 1197, 1201 [] (Pa. Super. 2000) (en banc). Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison to continue and pursue a close
relationship with the child or children. McCray, supra at 655. An incarcerated parent desiring to retain parental rights must exert him or herself to take and maintain a place of importance in the child's life. Adoption of Baby Boy A., [] 517 A.2d 1244, 1246 (Pa. 1986).In re R.I.S., 36 A.3d 567, 573 (Pa. 2011).
Here, Mother has consistently participated in her biweekly 15-minute Zoom visits with Children while incarcerated. See N.T. Termination Hearing, 5/12/23, at 190-99. In addition, there was testimony that Mother sent letters, coloring pages, and books to Children while she has been in prison. Id., 5/11/23, at 175. See also Trial Court Finding of Fact, 8/4/23, at 4 (Mother "attempted to send hand-made jewelry to [C]hildren"). See In re R.I.S., supra at 574 ("[W]e reiterate the definitive principle that when a parent uses the opportunities that are available in prison to make sincere efforts to maintain a place of importance in the lives of . . . her children, incarceration alone will not serve as grounds for the involuntary termination of . . . her parental rights.") (emphasis added).
While "the fact of incarceration alone neither compels nor precludes termination of parental rights," In re D.J.S., 737 A.2d 283, 287 (Pa. Super. 1999), "[t]he cause of incarceration may be particularly relevant to the [s]ection 2511(a) analysis, where imprisonment arises as a direct result of the parent's actions which were 'part of the original reasons for the removal' of the child." In re Z.P., 994 A.2d 1108, 1120 (Pa. Super. 2010), citing In re C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en banc).
CYS asserts that Mother has been inconsistent in following her mental health assessment recommendations despite being diagnosed with trauma, stress-related disorder, alcohol use disorder, severe and sustained remission, and schizophrenia. See N.T. Termination Hearing, 5/11/23, at 167. Mother had only confirmed 2 of the 6 scheduled in-home visits and has engaged in "inappropriate verbal and physical behaviors with [the JWYC Visitation House workers, including] behaviors that were sexual in nature[.]" CYS' Petition to Terminate, 7/5/22, at 6 (unpaginated); see also Petitioner's Exhibit 4, undated, at 3-4 (indicating Mother accused JWYC workers of "spicing up" her urine, told staff how much she loved them, consistently had random men in her house, told JWYC worker to not send in urine test and to keep it a secret, left front door unlocked for homeless people, accused caseworkers of withholding information about her case and forging documents, accused staff of tricking her when they conducted drug tests, objectified staff, talked inappropriately in front of Children, and talked to staff about her sex life). Mother, on the other hand, disputed much of this testimony. See N.T. Termination Hearing, 5/12/23, at 203-64.
Caseworker Guseman also testified that at some point, Mother had suffered a brain aneurism. Ms. Guseman testified that Dr. Franks, who allegedly performed Mother's August and/or September 2021 psychiatric evaluations, suggested Mother have neuropsychological testing to determine if she is experiencing any residual effects from that trauma. See N.T. Termination Hearing, 5/11/23, at 160-61, 170. Again, the record does not include either of the psychiatric evaluations performed by Dr. Franks on Mother so we cannot assess whether this is, in fact, an accurate statement.
One caseworker testified that Mother told her she used to be a sex slave when she was a child in foster care. See N.T. Termination Hearing, 5/11/23, at 75.
Based upon our comprehensive review of the record, we conclude that the record on appeal lacks evidence to prove, clearly and convincingly, that Mother has failed to address and fulfill her mental health or drug and alcohol goals under either the Westmoreland County or Fayette County service plans. Specifically, CYS has not provided this Court with sufficient documentationto satisfy its burden to terminate Mother's parental rights under subsection 2511(a). Those missing documents include, but are not limited to: Mother's permanency review hearing orders from Westmoreland and Fayette Counties; any mental health evaluations and recommendations regarding Mother from Westmoreland County; any drug and alcohol evaluations and recommendations regarding Mother from Westmoreland County; Dr. Franks' two mental health evaluations of Mother; SPHS' mental health evaluation of Mother (containing schizophrenia diagnosis); and Mother's criminal record.
In addition to witness testimony at the termination hearings, CYS submitted the following exhibits that were admitted into evidence at the termination hearing on May 11, 2023, and are included in the certified record on appeal:
• Verified Return of Service for T[].W[].;
• Proof of Publication for S[].T[].;
• Order of Adjudication of July 9, 2021;
• JusticeWorks drug test dates;
• A-K Photos of Locks;
• Client visit expectations;
• JusticeWorks Policies of Visitation;
• JusticeWorks list of visits;
• JusticeWorks overview of concerns; and
• Quest Lab Report 12/21/21.Exhibit Receipt of Petitioner's Exhibits, 8/3/23. All of these exhibits, save for the adjudication of delinquency order, are from Fayette County.
CYS' appellate brief and its witnesses at the termination hearing repeatedly reference Mother's 2018 schizophrenia diagnosis by SPHS, her consistent refusal to take medications to manage her mental health issues, two psychiatric evaluations conducted by Dr. Franks in 2021, and several of Mother's mental health and drug and alcohol evaluations indicating whether further treatment was recommended or necessary. None of that documentation has been included in the certified record for our consideration, significantly hindering our appellate review. See N.T. Termination Hearing, 5/11/23, at 27-28 (WCCB supervisor Molly Clayton testifying, while she "did not personally follow-up" with Dr. Franks about a concern she had regarding an August 2021 phone conversation with Mother, another WCCB "case[]worker did reach out to [Dr.] Franks about the phone call" but Clayton didn't "know the specific conversation that the case[]worker and [Dr.] Franks had."). The fact that record evidence indicates that Mother had, or almost had, almost achieved her goals prior to the case being transferred, further gives us pause. See N.T. Termination Hearing, 5/11/23, at 17 (Ms. Clayton testifying she was told Mother "might be able to be discharged in November of 2021, if she continued [with treatment]"); Id. at 17; see also Recommendation for Adjudication and Disposition, 7/9/21, at 3 (WCCB permanency plan listing goal as return to parent, with projected goal date of January 2022).
While we are aware that several of these documents may be part of the adoption docket in Mother's case in Westmoreland County, merely because the life of a termination of parental rights case may span multiple counties does not relieve CYS of its duty to ensure that it is able to provide this court with all information necessary for a determination as to whether termination is proper. See In re Adoption of L.A.K., 265 A.3d 580, 591-92 (Pa. 2021) ("significant and permanent consequences for both the parent and child can follow the termination of parental rights[, and,] recogni[zing] the gravity attendant to the termination of parental rights, the moving party must establish the statutory grounds by clear and convincing evidence . . . that is . . . so [] 'clear, direct, weighty[] and convincing as to enable the trier or fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.") (citations and quotation marks omitted).
In fact, save for a July 9, 2021 adjudication and dispositional order, the record is nearly devoid of any information speaking to Mother's compliance level with her service plan objectives from the date her first plan was ordered in Westmoreland County until the case was transferred to Fayette County.
Our standard of review is well-established. As an appellate court we must accept the findings of fact and credibility determination of the trial court if they are supported in the record. In re Adoption of B.G.W., 206 A.3d 576, 582 (Pa. Super. 2019). Moreover, unlike trial courts, "appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents." Id.
We remind CYS that, as the appellant, it bears the responsibility to ensure that the certified record is complete in order for our Court to conduct proper appellate review. See In re R.N.F., 52 A.3d 361, 364 (Pa. Super. 2012); see also Pa.R.A.P. 1921, Note ("Ultimate responsibility for a complete record rests with the party raising an issue that requires appellate court access to record materials.") (citation omitted). Although the record bears out the fact that Children were removed from Mother's care based on mental health and drug/alcohol issues in 2021, we are unable to assess whether Mother has, is able to, or will remedy those conditions or causes of her incapacity, see 23 Pa.C.S.A. § 2511(a)(2), whether those conditions continue to exist, id. at §§ (a)(5), (8), and whether termination would best serve Children's needs and welfare. Id.
As CYS notes in its appellate brief, under subsection (a)(1), "the [c]ourt should not only look at the six (6) month period prior to the filing of the [termination p]etitions[, but i]nstead, the totality of the circumstances must be considered." Appellant's Brief, at 14, citing In re: Bowman (Appeal of Shuey), 666 A.2d 274 (Pa. 1995). We agree. Using a totality of the circumstances approach, we are required to consider Mother's actions over the life of the case, which necessarily includes the level of her compliance regarding the goals set out for her in Westmoreland County, as well as her compliance levels in Fayette County.
With that standard in mind, we are constrained to affirm the orphans' court's determination that CYS did not prove that termination was warranted under 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8). Considering the inadequate record on appeal, we are simply unable to assess whether Mother has been "either unable or unwilling to apply the instruction given" in light of the services provided to her. Appellant's Brief, at 15. Relatedly, but equally important, we are unable to determine whether the trial court's findings of fact and credibility determinations are supported in the record. In re Adoption of B.G.W., supra.
In particular, we note that subsection 2511(a)(8) does not require an evaluation of Mother's willingness or ability to remedy the conditions that led to placement of her Children. See In re In the Interest of S.H., 879 A.2d 802, 807 (Pa. Super. 2005). Rather, it requires that the conditions continue to exist. Id. Without the pertinent information in the record-specifically Mother's mental health diagnoses are and any recommended treatments-we simply cannot assess her level of compliance and willingness to remedy the conditions that led to Children's placement.
We note that even though the trial court ruled in Mother's favor by denying CYS' petitions to terminate, it surprisingly made the following findings of fact that contradicted Mother's own testimony:
• "Mother stated that she leaves the door to her front porch unlocked so that if anyone is homeless, they may sleep on her couch there[;]"
• "Mother consistently made inappropriate comments to Justice[]Works staff during supervised visits[;]"
• "Mother refused to complete the [Triple P Parenting] sessions;"
• "Caseworker [] Guseman . . . prepared and reviewed a Family Service Plan with Mother . . . at which time she refused to sign the plan, saying that she completed her goals in Westmoreland County[;]"
• "Mother refused to sign [an updated drug and alcohol assessment] release[;]" and
• "Mother was refusing medication management for her diagnosis of schizophrenia."Trial Court Findings of Fact, 8/4/23, at 3-4. But see N.T. Termination Hearing, 5/12/23, at 208, 211, 221, 226, 242, 249, 252, 263-64.
In light of our disposition, we need not address whether the court erred in terminating Parents' parental rights pursuant to section 2511(b) or whether the court's order violates the Adoption and Safe Families Act. See In re Adoption of B.G.S., 245 A.3d 700, 705 (only if court determines parent's conduct warrants termination of his or her parental rights does court engage in second part of termination analysis under section 2511(b)-determination of needs and welfare of child under best interests of child standard) (citation omitted). As to CYS' evidentiary issue regarding evidence of Mother's methamphetamine use, we find no merit to this claim. CYS contends that the trial court "improperly disallowed the proffered evidence" where an admission or denial of methamphetamine use by Mother "would be an important fact in the CYS case to prove that Mother has not resolved her substance abuse issue." Appellant's Brief, at 21. Although the trial judge did ask counsel to "[p]lease move on," during cross-examination of Mother, the court did so only after counsel asked Mother four times if she had consumed methamphetamines in December 2021. See N.T. Termination Hearing, 5/12/23, at 246. Moreover, the court made a finding of fact that Mother tested positive for methamphetamines at December 21, 2021 drug screen. See Trial Court Findings of Fact, 8/4/23, at 3. Thus, even if the court improperly stopped counsel from asking Mother a fifth time if she had used methamphetamines in December 2021, the error was harmless where the trial court found, in fact, that she had tested positive for the drug.
We would be remiss if we did not recognize that this case presents a unique factual history where: Mother parented G.W. for more than 6½ years and T.W. for more than 2½ years, albeit not without prior agency involvement, before their current dependency adjudication and placement; Mother was incarcerated more than once (and, in fact, was in prison during the termination hearing) since Children's placement; and, the parties lived in two different counties that each ordered Mother to comply with separate family service plans in order to reunify with Children. It appears that transferring jurisdiction of this matter has complicated CYS' ability to have its issued reviewed on appeal. See supra at n.27.
Panella, P.J.E., joins this Memorandum.
Beck, J., files a Dissenting Memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BECK, J.
I respectfully dissent. Based upon the orphans' court's own factual findings-all of which are supported by evidence in the certified record transmitted to this Court on appeal-it is apparent that, as a matter of law, the conditions which led to the removal of G.W. and T.W. ("Children") from the care of C.W. ("Mother") continued to exist at the time CYS filed the petition to terminate Mother's parental rights (fourteen months after Children's removal from her care) and at the time of the hearing on the petition (twenty-four months after removal). Even accounting for our limited standard of review and deference to the orphans' court in termination of parental rights cases, my review of the orphans' court's opinion makes clear that it conflated the legal analysis required for a finding of termination pursuant to 23 Pa.C.S. § 2511(a)(8) with that for the other subsections of section 2511(a), thereby applying the wrong law to its own factual findings and resulting in an erroneous decision. Furthermore, the orphans' court used an incorrect legal framework to evaluate whether CYS's evidence proved that termination best served Children's needs and welfare under sections 2511(a)(8).
The learned Majority does not account for these legal errors in its decision and determines instead that the record on appeal is incomplete, hindering our appellate review to such an extent that this Court is constrained to affirm. While I agree that the certified record has its flaws, if the proper legal analysis is applied, the deficiencies in the record do not prevent this Court from conducting appellate review. Upon conducting such a review, I would vacate the orders denying the petitions to terminate Mother's parental rights and remand this case to the orphans' court for prompt proceedings consistent with this dissent.
Section 2511(a) "provides eleven enumerated grounds describing particular conduct of a parent which would warrant involuntary termination." In re Adoption of C.M., 255 A.3d 343, 359 (Pa. 2021); see 23 Pa.C.S. § 2511(a)(1)-(11). Each subsection is distinct. The petitioner only needs to prove one of the grounds alleged under subsection (a) in order to shift the focus to section 2511(b), which requires the court to determine whether termination serves the children's developmental, physical, and emotional needs and welfare. In re K.R., 200 A.3d 969, 979 (Pa. Super. 2018) (en banc).
In the case at bar, Fayette County Children and Youth Services ("CYS") sought to terminate Mother's parental rights under subsections (a)(1), (a)(2), (a)(5), and (a)(8). The orphans' court determined that CYS did not prove, by clear and convincing evidence, any of these statutory grounds to terminate Mother's parental rights. In my view, the orphans' court erred in its legal analysis conducted under section 2511(a)(8).
The relevant portions of the Adoption Act provide as follows:
(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:
* * *
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
* * *
(b)Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.23 Pa.C.S. § 2511(a)(8), (b) (emphasis added).
CYS argues that it presented sufficient clear and convincing evidence proving that Mother's continuous difficulties with mental health, substance abuse, housing, and the criminal justice system have prevented her from reunifying with Children. See CYS's Brief at 14-19. It asserts that, despite the orphans' court's ultimate conclusion, the court's own factual findings demonstrate that CYS met its burden. See id. at 16. From CYS's perspective, the orphans' court erroneously focused upon Mother's love for her children instead of the evidence demonstrating that Mother has unresolved issues that have prevented reunification.
In reviewing an agency's challenge to the denial of its petition to terminate a parent's rights, particularly in a case that may have presented a close judgment call for the orphans' court, we abide by our Supreme Court's specific instructions and words of caution:
Termination of parental rights is among the most powerful legal remedies that the judicial system possesses. The decision to sever permanently a parent's relationship with a child is often bound up in complex factual scenarios involving difficult family dynamics and multiple service providers. Our trial courts are tasked with carefully considering and weighing all of the evidence presented at termination hearings in determining whether the petitioning party has met its burden of proving by clear and
convincing evidence that termination meets the exacting standards outlined in the Adoption Act.
Because trial courts are on the front lines assessing the credibility of witnesses and weighing competing and often challenging evidence, it is paramount that, in reviewing trial courts' decisions in this arena, appellate courts defer to trial courts' first-hand observations as they relate to factual determinations. In this regard, we reiterate that appellate courts must review such decisions for an abuse of discretion or error of law, and appellate courts may reverse trial courts only when that discretion has been breached or when the law has been misapplied. In other words, an appellate court should review the certified record to decide whether it supports the trial court's order, regardless of whether the appellate court agrees with the result that the trial court reached.Interest of S.K.L.R., 256 A.3d 1108, 1129 (Pa. 2021) (emphasis added); see also In re Adoption of L.A.K., 265 A.3d 580, 597 (Pa. 2021) ("This Court has repeatedly stated that in termination cases involving close calls, deference to the trial court's determination is particularly crucial."). Stated another way, our job is to "review the record for an abuse of discretion and for whether evidence supports that trial court's conclusions;" we may not "search the record for contrary conclusions or substitute [our] judgment for that of the trial court." S.K.L.R., 256 A.3d at 1124.
With that standard in mind, I first examine whether the orphans' court's factual findings are supported by the record. According to the orphans' court, the conditions leading to Children's removal from Mother's care were Mother's arrest and concerns about Mother's mental health and drug and alcohol use. Orphans' Court Opinion ("Opinion"), 8/4/2023, at 10; see also id. at 1-2 (Findings of Fact ("F.F.") ¶¶ 7, 10).
The record reflects that G.W. (age eight at the time of the hearing) and T.W. (age four at the time of the hearing), are the ninth and tenth of Mother's children. Mother has not raised Children's eight older siblings. Six were adopted and two were raised by a relative. Notes of Testimony ("N.T."), 5/11-12/2023, at 179. A month prior to Children's removal, Westmoreland County Children's Bureau ("WCCB") received a report alleging that Mother was using methamphetamine. CYS Exhibit 3 (Dependency Adjudication Order). Mother initially refused to cooperate with WCCB's investigation by submitting urine screens. Id.
On May 14, 2021, Mother was arrested after she attempted to break into a house while under the influence and accompanied by Children, who were then ages six and two. N.T., 5/11-12/2023, at 13-14. As a result, the Court of Common Pleas of Westmoreland County ("juvenile court") removed Children from Mother's care and placed them in WCCB's legal custody. Opinion, 8/4/2023, at 1 (F.F. ¶ 7). Children have been in the same foster home since three days after their initial removal. Id. (F.F. ¶ 9).
Following her arrest, Mother was incarcerated and her conditions of bond prohibited contact with Children. WCCB filed a petition to adjudicate Children dependent under the Juvenile Act, 42 Pa.C.S. §§ 6301-6375. The agency had concerns about Mother's mental health based upon Mother's "erratic behavior." CYS Exhibit 3 (Dependency Adjudication Order).
Additionally, Mother tested positive for benzodiazepines on an agency drug screen, and Mother was "impaired" during the incident that led to Children's removal, which was especially concerning because Mother had a lengthy history of substance abuse. Id. In fact, CYS had previously placed Children with their paternal grandmother for a month in October 2020, because of Mother's and G.W.'s father's impairment from drugs and alcohol. Id. The juvenile court in Westmoreland County adjudicated Children dependent on July 9, 2021.
Mother was released from incarceration in or around late July 2021. Opinion, 8/4/2023, at 2 (F.F. ¶ 11); N.T., 5/11-12/2023, at 13-14. Shortly thereafter, she "report[ed] for a mental health evaluation in August 2021, and she attended [four] out of [five] sessions." Opinion, 8/4/2023, at 2 (F.F. ¶ 14); N.T., 5/11-12/2023, at 17. Around the same time, Mother called WCCB and made "nonsensical statements saying that [T.W.] was a robot," that Children's foster parents were selling T.W.'s organs, and that she wanted Children removed from the foster parents' home. Opinion, 8/4/2023, at 2 (F.F. ¶ 15); N.T., 5/11-12/2023, at 20, 31. Mother began mental health treatment in October 2021. Opinion, 8/4/2023, at 4 (F.F. ¶ 30); N.T., 5/11-12/2023, at 137. She was not cooperative with drug screens, participating in only five out of twenty-seven screens. Of those five, she tested positive for alcohol on two occasions. Opinion, 8/4/2023, at 2 (F.F. ¶ 13); N.T., 5/11-12/2023, at 16-18. Mother obtained her own housing in Fayette County and WCCB transferred the case to CYS in December 2021. Opinion, 8/4/2023, at 2(F.F. ¶ 16); N.T., 5/11-12/2023, at 19-20.
Shortly after the case transfer, Mother tested positive for methamphetamines on December 21, 2021. Opinion, 8/4/2023, at 3 (F.F. ¶ 28); N.T., 5/11-12/2023, at 133-34. She subsequently underwent two drug and alcohol assessments, neither of which indicated that she needed treatment. However, according to the orphans' court's findings of fact, "Mother … failed to provide honest information relative to her drug and/or alcohol use," refused to sign a release to permit CYS to provide information to the evaluator, and "reported that she had been 'clean' since 2014, despite the fact that Mother tested positive for methamphetamines on [a] December 21, 2021 drug screen." Opinion, 8/4/2023, at 3-4 (F.F. ¶¶ 28, 32); N.T., 5/11-12/2023, at 134-38, 247. After undergoing the updated assessments requested by CYS, Mother tested positive twice, once for TCA and once for alcohol. Opinion, 8/4/2023, at 3 (F.F. ¶¶ 18-19); N.T., 5/11-12/2023, at 38. She also refused or was unavailable for screens. Opinion, 8/4/2023, at 3 (F.F. ¶ 18); N.T., 5/11-12/2023, at 38. Mother received mental health treatment from October 2021 until March 2022, but refused "medication management for her diagnosis of schizophrenia" and stopped going to treatment. Opinion, 8/4/2023, at 4 (F.F. ¶¶ 30-31); N.T., 5/11-12/2023, at 137, 167, 178-79, 238.
Later, the orphans' court stated that it was "indeterminable whether Mother was completely honest during the drug and alcohol evaluations," despite entering findings of fact indicating that Mother was indeed not honest during her evaluations. Compare Opinion, 8/4/2023, at 9 with id. at 3-4 (F.F. ¶¶ 28, 32).
"TCA" is not identified in the record, but possibly stands for tricyclic antidepressants.
Caseworker "Jennifer Guseman testified credibly that despite Mother's negative drug screens, Mother's behaviors continued to be very 'erratic', and it was indeterminable whether Mother's behaviors resulted from impairment or mental health issues." Opinion, 8/4/2023, at 3 (F.F. ¶¶ 29); N.T., 5/11-12/2023, at 136. For example, at a May 17, 2022 supervised visit at her home, Mother "reeked of alcohol," "appeared to be impaired," "slurred words," and "was nodding off while playing on the floor with [C]hildren." Opinion, 8/4/2023, at 2 (F.F. ¶¶ 19); N.T., 5/11-12/2023, at 42-43. When the service provider supervising the visit and administering the drug screen told Mother that her screen was positive for TCA, "Mother became very upset and threw the cup with urine toward the caseworker." Opinion, 8/4/2023, at 2 (F.F. ¶¶ 19); N.T., 5/11-12/2023, at 42-43.
Mother was arrested and charged with harassment in connection with the urine-throwing incident in May 2022. N.T., 5/11-12/2023, at 163, 203. That same month, she was arrested again and charged with theft of an ankle monitor and escape from the ankle monitor. Id. at 234. Unable to make bail, she was re-incarcerated in the Fayette County Jail while awaiting trial. Opinion, 8/4/2023, at 5 (F.F. ¶ 51); N.T., 5/11-12/2023, at 234. While she was in jail, Mother began attending Narcotics Anonymous ("NA") and Alcoholics Anonymous ("AA"), and she visited with Children via short Zoom sessions. Opinion, 8/4/2023, at 4-5 (F.F. ¶¶ 34, 35); N.T., 5/11-12/2023, at 213, 236.
Meanwhile, on July 15, 2022, which was sixteen months after Children entered foster care, CYS filed the petition to terminate Mother's parental rights.
Ultimately, Mother was convicted of harassment in the urine-throwing case. According to Mother, two weeks before the termination hearings, she was sentenced to ninety-eight days in prison, which was ordered to run consecutive to her criminal trespass sentence stemming from the incident that brought Children into care. N.T., 5/11-12/2023, at 233.
Mother remained incarcerated at the Fayette County Jail at the time of the May 2023 hearings on CYS's petitions. Her release date was uncertain, as she still had to transfer to a state correctional institute to complete her sentences in the criminal trespass and harassment cases. Id. at 234. Because she had been incarcerated waiting for trial in the ankle monitor case for almost a year, Mother anticipated a filing by her lawyer asserting her speedy trial rights if the Commonwealth did not bring her to trial within the following month. Id. Nonetheless, at the time of the termination hearing, these criminal charges also remained pending, preventing her from serving her sentences in her other two cases and from working on her maintenance of sobriety outside of jail or prison.
According to Mother, her minimum release date for the trespass conviction had passed in February 2023, and her maximum release date was a year away. N.T., 5/11-12/2023, at 243. Mother had filed a petition for post-conviction relief on the trespass conviction that was still pending before the trial court judge. Id. at 235.
As indicated by the above citations, my review of the record reveals that the orphans' court's findings of fact are supported by the evidence included in the certified record before this Court on appeal. Because the factual findings supported by the record, I now turn to a determination of whether the orphans' court's legal conclusions are "the result of an error of law or an abuse of discretion." In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012).
In finding that CYS failed to meet its burden of proving termination under section 2511(a)(8), the orphans' court offered the following analysis:
The child has been removed from Mother, and [twelve] or more months have elapsed from the removal; however, clear and convincing evidence has not been presented that the conditions which led to the removal continue to exist and termination would best serve the needs and welfare of [Children].
Mother's conduct in this case certainly has been bizarre at times and unacceptable. A few of the most blatant examples include Mother greeting caseworkers without being properly clothed and making remarks to caseworkers of a sexual nature. At one time, Mother left a disturbing voicemail to a Westmoreland County caseworker about her child being a "robot," and the foster parents were selling her organs. These incidents, although disturbing, do not appear to be the norm, and do not evidence that Mother cannot or will not remedy the conditions which caused the removal.
Mother clearly loves [Children], and this is best evidenced by Mother's consistent visitation with [Children]. Despite her incarceration, Mother has consistently visited, and she has requested additional visitation time. For the past year, Mother has been limited in her ability due to her incarceration. She has utilized the resources available to her while incarcerated, and she demonstrates the desire to remedy the conditions which led to the removal of [Children].Orphans' Court Opinion, 8/4/2023, at 10-11 (emphasis added).
The orphans' court elaborated upon its analysis in its Pa.R.A.P. 1925(a) statement in lieu of opinion, indicating that its
findings of fact do include that Mother's compliance has not always been perfect with respect to the goals set for her by Fayette [County] CYS. However, the findings of fact also include that Mother has consistently demonstrated that she wishes to maintain her parental relationship with, and to care for, her children. The length of time a child is in foster care, in itself, is not determinative of whether a biological parent's rights should be terminated, nor is less-than-stellar compliance by that parent. Here, in fact, after permanency review hearings in October 2022, January 2023 and April 2023 hearings, [the juvenile court] consistently found that Mother was at least minimally compliant with her Family Service Plan. Further, after the January 2023 and April 2023 hearings, [the juvenile court] found that Mother was as compliant as she could be, given her incarceration. After consideration for the factors that [CYS] highlights as evidence of Mother's unsuitability and the factors that demonstrate Mother's dedication to maintaining her parental relationship with her children, there was not sufficient evidence to support termination of Mother's parental rights.Orphans' Court Statement in Lieu of Opinion ("Statement"), 9/6/2023, at 2-3 (numbering supplied; italicized emphasis in original; bolded emphasis added).
In accordance with the statutory language, the correct (a)(8) analysis requires a determination of whether: (1) twelve months have elapsed since the juvenile court removed the child from the parent's care; (2) the conditions that led to the removal continue to exist; and (3) terminating the parent's rights serves the child's needs and welfare. In re C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en banc). Despite the orphans' court's accurate recounting of the elements of subsection (a)(8), it is evident from the face of the opinions that it used an incorrect legal standard to evaluate CYS's petition under this subsection.
The orphans' court intermingles cases addressing a parent's incarceration under subsection (a)(1) when analyzing whether CYS met its burden to prove grounds under other subsections, including subsection (a)(8). Although factual matters under the Adoption Act do not always neatly fit into legal boxes, our Supreme Court has emphasized time and again that we must hew closely to the statutory language. See, e.g., In re K.T., 296 A.3d 1085, 1105 (Pa. 2023) (analyzing the "pivotal language" of the statute); S.P., 47 A.3d at 827-28 (cautioning this Court to avoid "improperly quoting" caselaw applying a different subsection because the statutory grounds are distinct and cannot be conflated).
CYS exacerbates this by presenting a very disjointed argument that intermixes allegations of error under all the subsections with a heavy emphasis upon caselaw focused upon subsection (a)(1). See CYS's Brief at 10-19. This does not hamper our review, however, as we review pure questions of law pursuant to a de novo standard. Interest of K.T., 296 A.3d 1085, 1104 (Pa. 2023).
Here, the orphans' court's conclusions of law focus almost exclusively on caselaw applying subsection (a)(1). See Opinion, 8/4/2023, at 7 (Conclusions of Law, ¶¶ 2-4). In its section 2511(a)(8) analysis, it emphasized the limitations imposed by incarceration, Mother's earnestness in visiting Children over Zoom, and Mother's "utiliz[ation of] the resources available to her while incarcerated." Id. Further, in reaching its findings, the orphans' court appears to have operated under an assumption that it legally could not recognize Mother's incarceration as part of the conditions that continued to exist, particularly because Mother did what she could to comply with her goals from prison. However, this analysis perpetuates the error observed by our Supreme Court in S.P.-applying cases analyzing parental abandonment under section 2511(a)(1) to other subsections without critically engaging with the language of the statute.
Section 2511(a)(1) provides "grounds for termination if the parent 'evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties' for a period of at least six months." S.P., 47 A.3d at 827-28 (quoting 23 Pa.C.S. § 2511(a)(1)). In In re McCray's Adoption, 331 A.2d 652 (Pa. 1975), which interpreted an earlier statute akin to subsection (a)(1), our Supreme Court observed that a parent "has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child," but that incarceration made "performance of this duty 'more difficult.'" S.P., 47 A.3d at 828 (quoting McCray, 331 A.2d at 665). The McCray Court determined that a
parent's absence and/or failure to support [a child] due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent's responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.S.P., 47 A.3d at 828 (quoting McCray, 331 A.2d at 665).
The S.P. Court recognized that this Court often quoted this passage from McCray and its progeny to support its erroneous "assertion that incarceration alone cannot be grounds for termination under any provision of [section] 2511(a)." S.P., 47 A.3d at 828. Instead, the S.P. Court determined that "incarceration neither compels nor precludes termination." Id. The Court held that "incarceration, while not a litmus test for termination, can be determinative" of the elements of section 2511(a)(2). Id. Although section 2511(a)(8) was inapplicable in S.P. for different reasons, the Court noted that a majority of Justices in In re R.I.S., 36 A.3d 567 (Pa. 2011) (plurality), agreed that a parent's incarceration can be a factor in an orphans' court's decision to terminate parental rights under several of the enumerated grounds, including whether the conditions leading to removal continued to exist pursuant to subsection (a)(8). S.P., 47 A.3d at 829-30, nn. 8-9.
Additionally, in the instant case, the orphans' court opined that Mother demonstrated the desire "to remedy the conditions which led to [Children's] removal," as well as her wish "to maintain her parental relationship with, and to care for, her children." Statement, 9/6/2023, at 3. But unlike other subsections of the termination statute, a parent's "willingness or ability to remedy the conditions" that led to the children's removal is not pertinent to the legal determination required under subsection (a)(8). In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa. Super. 2006); see also In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009) (holding that the orphans' court erred by "improperly conflat[ing] the statutory requirements of subsections (a)(2) and (a)(5) with those of subsection (a)(8)").
Compare, e.g., 23 Pa.C.S. § 2511(a)(1) (directing courts to examine the parent's conduct for evidence of intent to relinquish parental claim, or refusal or failure to perform parental duties), and (a)(2) (directing courts to consider whether certain parental incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent), and (a)(5) (directing courts to determine whether the parent cannot or will not remedy the conditions which led to the removal or placement of the child within a reasonable period of time and whether services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time), with (a)(8) (directing courts to decide whether the conditions that led to the placement or removal of the children continue to exist).
The orphans' court opined that Mother's "bizarre," "unacceptable," and "disturbing" behavior did not "appear to be the norm" and did "not evidence that Mother cannot or will not remedy the conditions which caused the removal." Opinion, 8/4/2023, at 10. Additionally, the orphans' court emphasized its findings in the dependency matter that Mother "was at least minimally compliant with her Family Service Plan" since October 2022 and that she "was as compliant as she could be, given her incarceration." Id. at 3. Importantly, nowhere does the orphans' court conclude that Mother has remedied the conditions which led to Children's removal, as the law is clear that a finding that a parent "was making progress toward remedying the conditions," is legally insufficient to preclude termination under (a)(8). R.J.S., 901 A.2d at 511; see also C.L.G., 956 A.2d at 1006-08 (affirming termination of parental rights under (a)(8) even though parent made "substantial progress" and was sober in prison; that the parent was incarcerated for drug offenses demonstrated that her "drug related issues continued to impact" her child and parent's "ability to care" for her child). "The relevant inquiry regarding the second prong of section 2511(a)(8) is whether the conditions that led to removal have been remedied and thus whether reunification of parent and child is imminent at the time of the hearing." In re M.E., 283 A.3d 820, 832 (Pa. Super. 2022) (cleaned up; emphasis added); see also Matter of Adoption of L.C.J.W., 311 A.3d 41, 51 (Pa. Super 2024) (specifying that the pertinent issue "is whether, after a full year of services, [the parent] had remedied the conditions such that she was presently able to resume care and custody of her children").
The orphans' court compounded its legal errors by arriving at a conclusion that was manifestly unreasonable when viewed in combination with its own factual findings. Applied to the proper legal framework, the orphans' court's findings demonstrate that the conditions leading to Children's removal from Mother's care continue to exist. As found by the orphans' court, Children were placed in foster care because of Mother's arrest and incarceration, her substance abuse, and her mental health. After two years, Mother once again was unable to care for Children because of a second incarceration. Mother's only sustained period of sobriety occurred in the confined environment of prison. See C.L.G., 956 A.2d at 1008. Even if the orphans' court was not convinced that Mother's mental health was a barrier to reunification, according to the court's own findings, Mother's substance abuse, which intertwined with her sustained involvement with the criminal justice system and repeated incarcerations, persisted.
By virtue of the orphans' court's own findings, this is not a situation where the children were about to be reunified and the parent's incarceration was a mere temporary setback. Mother had not even achieved unsupervised visitation prior to entering prison for a second time. Mother relapsed several times after she was released from her initial incarceration. While relapses may be expected by a person struggling with overcoming addiction, her relapses plus her second incarceration prevented her from gaining any traction towards reunification. Even assuming, arguendo, that Mother was released immediately after the hearing, she would need time to demonstrate that she could sustain her sobriety in the world. See C.L.G., 956 A.2d at 1008. ("While it appears that [m]other has managed to remain drug-free in the confines of incarceration, whether she can maintain that status among the external pressures of the outside world remains to be proven.").
This Court has recognized "that the application of section 2511(a)(8) may seem harsh when the parent has begun to make progress toward resolving the problems that had led to the removal of her children." R.J.S., 901 A.2d at 513.
However, by allowing for termination when the conditions that led to removal of a child continue to exist after a year, the statute implicitly recognizes that a child's life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities. The court cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future. Indeed, we work under statutory and case law that contemplates only a short period of time, to wit [eighteen] months, in which to complete the process of either reunification or adoption for a child who has been placed in foster care.Id.
In my opinion, the intermingling of legal standards by the orphans' court has led the Majority astray in its review of this matter. The Majority determines that it is "constrained to affirm" the denial of the petition because
the record on appeal lacks evidence to prove, clearly and convincingly, that Mother has failed to address and fulfill her mental health or drug and alcohol goals under either the [WCCB] or [CYS] service plans. Specifically, CYS has not provided this Court with sufficient documentation to satisfy its burden to terminate Mother's parental rights under subsection 2511(a).Maj. Op. at 22. The Majority laments the absence of the following "missing documents," see id. at 22, some of which the Majority identifies as "critical," see id. at 16:
• Referrals alleging physical abuse of Children by Mother in April and June 2021 and WCCB reports deeming such allegations to be unfounded, id. at 3 n.7;
• "Transcript from May 18, 2021 shelter care hearing that was referenced in [WCCB's dependency petition]," id. at 16;
• Permanency review hearing orders from Westmoreland and Fayette Counties; id. at 22;
• Any mental health or drug and alcohol evaluations and recommendations regarding Mother from Westmoreland County, id.;
• Psychiatric evaluations performed by Dr. Franks on Mother; id. at 21 n.23, 22;
• "SPHS' mental health evaluation of Mother (containing schizophrenia diagnosis)," id.; and
• "Mother's criminal record," id.
I applaud and greatly respect my learned colleagues' desire to conduct a diligent review of the record in this very serious matter. As an appellate court, however, our role in this case is not to decide whether CYS satisfied its burden of proof at the hearing; instead, we must decide whether the orphans' court abused its discretion or erred as a matter of law in deciding that CYS did not. It is true that as part of such review, we must determine whether the trial court's factual findings are supported by the record. But we are not the finders of fact, and we cannot substitute our judgment for that of the orphans' court. See S.K.L.R., 256 A.3d at 1123-24. Moreover, neither the orphans' court nor this Court may substitute our judgment for that of the dependency court on the same factual issue. See Matter of Adoption of M.A.B., 166 A.3d 434, 446 (Pa. Super. 2017). The question we must consider is whether there was evidence of record admitted at the termination hearing to support the orphans' court findings, S.K.L.R., 256 A.3d at 1129, and not, as the Majority implicitly suggests, whether there was documentation presented at the hearing to bolster the testimony that the orphans' court found to be credible.
For example, the Majority's identification of "critical documents" includes a transcript from a May 18, 2021 shelter care hearing referenced in the WCCB's dependency petition. I disagree that the omission of this transcript impairs our review based upon its mere mention in the dependency petition. The focus of the termination proceeding "is whether CYS has satisfactorily borne its statutory burden for termination under section 2511; not to review the previous juvenile court proceedings." In re J.A.S., 820 A.2d 774, 781 (Pa. Super. 2003) (cleaned up). The jurisdiction of the orphans' court to terminate parental rights "is derived from a different statute" and the purpose of the proceedings under the Juvenile Act and the Adoption Act are "wholly distinct." Id.
The record reflects that CYS introduced the dependency petition alongside the juvenile court's dependency adjudication order without objection in the termination matter. But a dependency petition, similar to a complaint, simply contains unproven allegations that an agency presents to the juvenile court for adjudication. In my view, it carries little evidentiary weight other than showing consistency between an agency's concerns at the time of the initial dependency hearing and the termination testimony. The adjudication order contained factual findings by the juvenile court that were consistent with the testimony of WCCB's caseworker. Compare CYS Exhibit 3 (Adjudication Order) with N.T., 5/16-17/2023, at 12-34. Thus, we have sufficient evidence to ensure that the orphans' court's finding as to the basis for Children's removal is supported by the record.
By way of further example, the Majority observes that "CYS'[s] appellate brief and its witnesses at the termination hearing repeatedly reference" various documents external to the agency regarding Mother's mental health and drug and alcohol evaluations and treatment. Majority Opinion at 23. The Majority contends that the absence of these documents significantly hinders our appellate review. Id. Again, I disagree. This Court does not make factual findings or judge the witnesses' credibility. I recognize that the decree must be based upon competent evidence, and to the extent that CYS introduced Dr. Franks' recommendation to prove the truth of the matter asserted, it constituted hearsay. But Mother did not object to the testimony regarding statements by external service providers, and the testimony was admitted and considered by the orphans' court. Accord Com. ex rel. Robinson by Robinson v. Robinson, 478 A.2d 800, 805 (Pa. 1984) (holding that this Court erred by sua sponte raising evidentiary concerns in a child custody case where "no litigant has questioned the authenticity and adequacy of the reports or complained of their admission and consideration"); cf. generally In re A.J.R.-H., 188 A.3d 1157 (Pa. 2018) (vacating decree terminating parental rights because decree was based upon en masse introduction of 167 exhibits with multiple layers of hearsay over parent's hearsay objection).
The orphans' court made findings regarding these specific matters based upon the witnesses' testimony, which, again, came in without objection. Moreover, no one disputes the content of the providers' recommendations, except for Mother's disagreement about her mental health diagnoses. Compare N.T., 5/11-12/2023, at 240-43 (Mother denying that SPHS, her former mental health provider, diagnosed her with schizophrenia or that she refused medication), with id. at 137 (CYS caseworker Jennifer Guseman testifying that Mother signed a release permitting CYS to speak to SPHS and that SPHS informed Guseman that Mother was diagnosed with schizophrenia in 2018 and refused medication management). The orphans' court resolved the factual dispute in CYS's favor, stating in its findings of fact that Mother was diagnosed with schizophrenia. Opinion, 8/4/2023, at 4 (F.F. ¶ 30). As there was no objection raised by Mother before the orphans' court (nor any argument raised on appeal before this Court) concerning the absence of these reports, it is improper for this Court to sua sponte find that CYS's failure to present these reports before the orphans' court precluded a finding that it satisfied its burden of proving the standards for termination of parental rights under section 2511(a)(8).
The orphans' court nonetheless discounted Mother's mental health as a factor in its ultimate decision. This conclusion is of no moment as it relates to this Court's review given the continuing presence of the other conditions that led to Children's removal, as found by the orphans' court.
The Majority is also concerned that the "record is nearly devoid of any information speaking to Mother's compliance level with her service plan objectives from the date her first plan was ordered in Westmoreland County until the case was transferred to Fayette County." Majority Opinion at 23 n.27. Once again, I am constrained to disagree with my learned colleagues that this information was required to be included in the certified record before this Court. The record includes the testimony of WCCB caseworker supervisor Molly Clayton, which is competent evidence as to Mother's compliance with offered services.
Although the juvenile court orders can be helpful in establishing the elements of sections 2511(a), nothing in the Adoption Act requires introduction of the orders. The Majority also states that "record evidence indicates that Mother had, or almost had, almost achieved her goals prior to the case being transferred." Id. at 24. But even if Mother was making progress on her goals in Westmoreland County, she did not achieve reunification during that time, she had a positive screen shortly after her move to Fayette County, and she did not sustain the progress over time. Moreover, as discussed at length above, if the conditions that led to Children's removal continue to exist, and reunification is not imminent, Mother's progress early in the case simply is not a relevant consideration when assessing the elements of termination under section 2511(a)(8).
The juvenile court is required by statute to assess both compliance and progress at each permanency review hearing, see 42 Pa.C.S. § 6351(f)(2)-(3), but some juvenile courts neglect this task. At any rate, while the juvenile court's assessment of a parent's compliance with a permanency plan is a relevant metric, in my view, the more important and telling metric is the juvenile court's assessment of the parent's progress toward alleviating the circumstances that necessitated the original placement. Simply because a parent is cooperative with services does not mean that the parent internalizes the lessons learned, changes the concerning behavior, or is able to fix the problems that led to a child's removal. Likewise, although rare, a parent deemed noncompliant with their agency-directed and court-ordered services may be able to make the necessary progress on their own.
I share the Majority's desire for a more robust record in these cases. Termination of parental rights is not a technicality that occurs automatically after children are in foster care for a set number of months. No matter how much familiarity the parties, witnesses, and orphans' court have with the facts from the dependency matter, an agency-petitioner should always support its petition to terminate parental rights with a clear presentation of evidence that is derived from firsthand sources (to the extent possible) and that is tightly focused on the precise statutory elements at hand. But given our appellate role, the orphans' court's factual findings, the evidence presented at the hearing, and the legal elements that must be proven, I conclude that we have enough in the record before us to perform our appellate review.
That the orphans' court erred by finding that the conditions that led to Children's removal continued to exist is not the end of the matter. Section (a)(8) also requires a determination of whether "termination of parental rights would best serve the needs and welfare of the child." 23 Pa.C.S. § 2511(a)(8). Although section 2511(a) generally focuses on the behavior of the parent, the third prong of section 2511(a)(8) specifically "accounts for the needs of the child." C.L.G., 956 A.2d at 1008-09. Similar to section 2511(a)(5), which contains an identical needs and welfare prong, the third prong of section 2511(a)(8) "is not a mere formality flowing from the existence of the preceding [two] elements enumerated in the statute." See In re P.A.B., 570 A.2d 522, 525 (Pa. Super. 1990) (holding that the orphans' court committed an error of law by implying that satisfaction of the preceding four prongs of section 2511(a)(5) required the conclusion that termination would best serve the children's needs and welfare without considering the needs and welfare prong as a discrete consideration). Further, and in a similar fashion, under section 2511(b), the orphans' court must "give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). This Court has generally followed the same legal framework to assess the third prong of subsection (a)(8) and subsection (b).
Because the orphans' court determined that CYS failed to prove grounds to terminate Mother's parental rights under section 2511(a), it did not proceed to section 2511(b). The orphans' court, however, determined that CYS did not prove that termination served Childrens' needs and welfare pursuant to section 2511(a)(8). Section 2511 refers to the child's "needs and welfare" three times: twice as the final prong of two of the thirteen provisions listing the "grounds" for termination of parental rights in subsection (a), and once in subsection (b), which is applicable to all petitions, regardless of the particular grounds upon which the petitioner relies. Compare 23 Pa.C.S. § 2511(a)(5), (8) (including as the final element that "termination of the parental rights would best serve the needs and welfare of the child") with id. § 2511(b) (specifying that "[t]he court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child"). Although a comprehensive statutory analysis and historical overview of the statute and cases interpreting the statute is beyond the scope of this dissent, I would be remiss not to note that the "needs and welfare" language in the subsection (a)(5) and (a)(8) grounds provisions is similar, but not identical, to the language in subsection (b). Despite the General Assembly's directive for courts to interpret statutes in a manner that does not render any provision superfluous and that gives effect to each provision, see 1 Pa.C.S. §§ 1921(a), 1922(2), appellate courts largely have ignored the language differences and have not engaged in a full statutory analysis to discern the General Assembly's intent of including multiple provisions addressing the child's needs and welfare (likely because the issue has not been squarely presented for consideration on appeal). Instead, this Court has interpreted the needs and welfare analyses required under subsections (a)(8) and (b) to utilize the same legal standards and to be based upon the same evidence. See C.L.G., 956 A.2d at 1008-09 (although recognizing that subsections (a)(8) and (b) "are distinct" and finding "we must address [s]ection 2511(a) before reaching [s]ection 2511(b)," holding that both subsections "direct us to evaluate the 'needs and welfare of the child,'" and concluding, in discussion of both subsections, that the child's needs and welfare were best served by terminating her mother's rights because she does not share a parent-child bond with her mother, she shares a parent-child bond with her foster mother, removal from her foster mother would be detrimental to the child, and adoption by foster mother would allow her to experience permanence in situation where the court determined that reunification was not imminent); see also M.A.B., 166 A.3d at 448 (combining discussion of the children's needs and welfare pursuant to subsection (a)(8) and subsection (b) because the "third element of [s]ection 2511(a)(8) requires that the [o]rphans' [c]ourt conduct an analysis similar to that required under [s]ection 2511(b)"); accord R.I.S., 36 A.3d at 579 n.3 (plurality) (Baer, J., concurring) (noting the similarity between the last prong of section 2511(a)(8) and section 2511(b)); Because there is no advocacy on this issue before us, and because C.L.G. is an en banc decision that is binding upon this panel, I must follow this Court's prior decisions that use the same legal analysis for subsections (a)(8) and (b). And pursuant to our existing case law, both needs and welfare inquiries require courts to analyze the termination decision from the child's perspective and to prioritize the child's needs and welfare over that of the parent.
This means that courts must consider the matter from each child's perspective, placing the child's "developmental, physical, and emotional needs and welfare above concerns for the parent." K.T., 296 A.3d at 1105-06. Our Supreme Court has cautioned that "the law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved." In re T.S.M., 71 A.3d 251, 268-69 (Pa. 2013). The party seeking termination bears the burden of proving, by clear and convincing evidence, that termination of parental rights serves a child's needs and welfare. K.T., 296 A.3d at 1105-06.
When determining whether the petitioner met its burden to prove that termination serves a child's needs and welfare, the orphans' court must consider, at a minimum, the factors delineated by our Supreme Court in K.T., all of which are of "'primary' importance in the [s]ection 2511(b) analysis" and "may contribute equally to the determination of a child's specific developmental, physical, and emotional needs and welfare." Id. at 1109.
The orphans' court must determine whether the parent and child share an emotional bond and assess whether the bond is "necessary and beneficial" to the child, such that "maintaining the bond serves the child's developmental, physical, and emotional needs and welfare." Id. If a bond exists, the court must ascertain the effect upon the child of severing the bond. Id. Because the severing of any parent-child bond may be emotionally painful for a child, the orphans' court cannot preclude termination based solely on evidence of an "adverse" or "detrimental" impact to the child. Id. at 1110-11. Instead, focusing upon the "child's development, and mental and emotional health," the orphans' court should assess whether severing the bond "is the kind of loss that would predictably cause extreme emotional consequences or significant, irreparable harm" to the child. Id.
The parent-child bond, however, is "but one part of the overall subsection (b) analysis." The orphans' court must also consider:
the child's need for permanency and length of time in foster care consistent with [the Juvenile Act,] 42 Pa.C.S. § 6351(f)(9) and [the federal Adoption and Safe Families Act], 42 U.S.C. §§ 675(5)(C), (E); whether the child is in a preadoptive home and bonded with foster parents; and whether the foster home meets the child's developmental, physical, and emotional needs, including intangible needs of love, comfort, security, safety, and stability.Id.
When conducting "a full subsection (b) analysis focused upon the child," the orphans' court has "discretion to place appropriate weight on each factor present in the record." Id. at 1113. However, when "weighing the difficult factors discussed above, courts must keep the ticking clock of childhood ever in mind. Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly." T.S.M., 71 A.3d at 269.
Here, the orphans' court found that CYS failed to present clear and convincing evidence that termination would best serve the needs and welfare of Children pursuant to subsection (a)(8). Opinion, 8/4/2023, at 10. In support, the orphans' court reasoned that Mother loves Children, which is best evidenced by her consistent visitation, including while incarcerated. Id. at 11. The court also focused upon Mother's desire to parent and her efforts. See id. at 10-11; see also Statement, 9/6/2023, at 2-3.
CYS argues that the orphans' court erred in this conclusion, as our law provides that "a parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights," and Children have the superior right at this point "to have proper parenting and fulfillment of [their] potential in a permanent, healthy, safe environment." CYS's Brief at 18-19 (quoting Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010); In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004)).
Once again, despite our deference to the orphans' court and our stringent standard of review, I conclude that the orphans' court erred by using an incorrect legal standard to assess Childrens' needs and welfare under the third prong of subsection (a)(8). A parent's efforts and some progress towards reunification is irrelevant to, and cannot form the basis of, a needs and welfare analysis under subsection (a)(8). In re I.J., 972 A.2d 5, 12 (Pa. Super. 2009). Furthermore, like the orphans' court in K.T., the orphans' court here erroneously truncated its analysis once it determined there was a "connection" between Mother and Children. See Opinion, 8/23/2023, at 10-11; see also id. at 5 (F.F. ¶¶ 42-43). "[A]n emotional bond with a parent is legally insufficient to preclude termination of parental rights without determining whether such bond is necessary and beneficial to the child and weighing the other factors present in the record." K.T., 296 A.3d at 1114-15. That Mother loves Children and was "dedicate[ed] to maintaining her parental relationship with her children," see Statement, 9/6/2023, at 3, is insufficient because children have myriad needs beyond love. See Z.P., 994 A.2d at 1121.
The main flaw in the orphans' court's analysis is its examination of the termination decision solely from Mother's perspective as opposed to Children's. The orphans' court reliance on the "connection" between Mother and Children failed to even consider whether the same was true from Children's perspective. A parent-child bond is more than a shared biological connection or a parent's or child's affection towards the other; instead, it is a "bilateral relationship." In re K.K.R.-S, 958 A.2d 529, 535 (Pa. Super. 2008). The court emphasized Mother's love towards Children, but, despite ample evidence in the record, made no mention of Children's feelings towards Mother or the effect that Mother's behavior and struggles have had upon Children.
For example, while finding that Mother has consistently visited with Children, the orphans' court failed to note that for the past year, such visits occurred electronically over Zoom. Opinion, 8/23/2023, at 4-5 (F.F. ¶¶ 38, 42). Even Mother recognized that her ability to connect with Children from jail was strained except when Children's foster mother participated in the call to provide relevant information about their daily lives and interests. See N.T., 5/11-12/2023, at 214, 231-32. The counselor at the jail described the Zoom visits as "very rocky" and difficult for Children to engage in but getting better. Id. at 190, 197.
The orphans' court's reference to the "connection" between Mother and Children is the term used by the CYS caseworker when describing their relationship. Id. at 147. Crucially, the orphans' court failed to mention the caseworker's caveated testimony that Children's connection with Mother is not always healthy. Id. at 147, 162. The caseworker explained that Mother does not take Childrens' feelings into consideration or allows her own feelings to predominate, which causes G.W., in particular, to shut down. See id. at 162-63. The orphans' court was not required to find the caseworker's testimony credible or convincing, but its failure to mention the caveats to her testimony or to analyze whether Children have a "necessary and beneficial" bond with Mother was legally erroneous. K.T., 296 A.3d at 1115.
The orphans' court determined that Children have "a bond with foster mother/father, in that [Children have] been placed in their home since May 17, 2021, and [Children] identify with the foster mom/dad as [their] family." Opinion, 8/4/2023, at 4 (F.F. ¶ 41). The evidence indicates that Children are very bonded to each other and to their foster parents, who they have been with since 2021. N.T., 5/11-12/2023, at 180. While Children know that Mother is their parent, they look to their foster parents for "the typical parent connection" of guidance, safety, and structure. Id. at 178. The court neglected entirely to discuss Childrens' need for security, safety, and structure in its needs and welfare analysis. Furthermore, while it is true that time in care does not pre-ordain the outcome (as the orphans' court blithely noted), it is a factor that the orphans' court must consider, which the orphans' court did not do. See K.T., 263 A.3d at 1110-11.
Curiously, the court made the following "finding of fact":
Considering the connection between [Children] and Mother, there was no testimony offered whatsoever to show that this connection can be severed without irreparable harm to [Children]; nor was it proven that the trauma caused by breaking the connection is outweighed by the benefit of moving the child toward a permanent home.Opinion, 8/4/2023, at 5 (F.F. ¶ 43). To say that CYS produced "no testimony whatsoever to show that this connection can be severed without irreparable harm to Children" without discussing the evidence CYS did produce is incongruent with the record and the law. While the petitioner presents the evidence and bears the burden of proof, it is up to the court to "evaluate whether maintaining the bond serves the child's developmental, physical, and emotional needs and welfare" and the "impact of severance to determine if it will pose more than an adverse or detrimental impact." See K.T., 296 A.3d at 1110-11.
Based upon the orphans' court's truncated analysis, it seems as if the orphans' court was looking for a CYS witness to recite "magic words" instead of conducting its own evaluation of the evidence before it. Accord id. at 1114. Orphans' courts are free to find the petitioner's evidence unconvincing or incredible, or to weigh a child's necessary and beneficial bond more than the other factors announced in K.T. But the court's failure, as here, to discuss the evidence CYS produced and to analyze it within the needs and welfare framework is legal error. Instead, as in K.T., the orphans' court in the case at bar gave no indication that it weighed the "subsection (b) considerations of foster parent bond, preadoptive home, and need for permanency" in its analysis "despite the fact the record included relevant evidence." Id.
In addition to the caseworker's testimony regarding the health of their connection to Mother, evidence was admitted that showed Children's reactions towards Mother. The record reflects that G.W., the oldest child, "disconnects" around Mother. Id. at 88-89, 147. G.W. does not want to participate in some of the visits, shuts down around Mother, and sometimes will not acknowledge her when she speaks to him. Id. at 162-63, 172-73. Normally, he is a "wild, loud, crazy kiddo" who enjoys engaging in activities in the foster home, but around Mother, G.W. is "somber." Id. at 147. The caseworker explained that G.W. has never expressed a desire to be with Mother. Id. at 168. Additionally, the record reflects that G.W. is in need of trauma therapy. He is starting to disclose trauma from his past, but he typically shuts down and will not discuss specifics. Id. at 168. He has told the caseworker, however, that he is "always afraid" because someone touched him inappropriately in the past (prior to his placement in this foster home). Id. at 173.
T.W., the younger child, who has spent half her life with Mother and half her life with her foster parents, seems more torn between them. Id. at 169. T.W., however, has demonstrated fear when Mother has outbursts, such as when Mother was "very upset" about T.W.'s finger being pinched in the door by G.W. and ran into the courtroom holding T.W.'s finger and accusing the foster parents of abuse. Id. at 169, 172.
Given Children's young ages, Children's time out of Mother's care, the maintenance of the relationship only by supervised visits and fifteen-minute Zoom calls, Children's relationship with their foster parents, their need for permanency and stability, and the effect of Mother's behaviors upon Children, the record in this case facially supports a conclusion that terminating Mother's rights serves Childrens' needs and welfare under a comprehensive needs and welfare analysis. Nevertheless, our standard of review does not permit us to make factual findings from the cold record without the benefit of the orphans' court's longitudinal knowledge and firsthand credibility determinations. See I.J., 972 A.2d at 13. Thus, I would remand the case to the orphans' court for it to conduct a comprehensive needs and welfare analysis under the proper legal standard. Id.
Based on the foregoing, I would vacate the orders denying CYS's petitions to terminate Mother's parental rights to Children and remand for prompt proceedings consistent with this dissent. Accordingly, I respectfully dissent.
Judgment Entered