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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.I.M.S., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: YORK COUNTY
CHILDREN AND YOUTH SERVICES
No. 103 MDA 2016
Appeal from the Order Entered December 17, 2015
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000065-2013
===============================================
IN THE INTEREST OF: L.J.L.E.K., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: YORK COUNTY CHILDREN
AND YOUTH SERVICES
No. 104 MDA 2016
Appeal from the Order Entered December 16, 2015
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000066-2013
==============================================
IN RE: ADOPTION OF: S.I.M.S., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
J-A18031-16 & J-A18032-16
APPEAL OF: YORK COUNTY OFFICE OF
CHILDREN, YOUTH AND FAMILIES
No. 172 MDA 2016
Appeal from the Order Entered December 16, 2015
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2015-0031
===============================================
IN RE: ADOPTION OF: L.J.L.E.K., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: YORK COUNTY CHILDREN
AND YOUTH SERVICES
No. 173 MDA 2016
Appeal from the Order Entered January 19, 2016
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2015-0030
===============================================
IN RE: ADOPTION OF: S.I.M.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: GAL
No. 134 MDA 2016
Appeal from the Order Entered December 16, 2015
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2015-0031
===============================================
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J-A18031-16 & J-A18032-16
IN RE: ADOPTION OF: L.J.L.E.K. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: GUARDIAN AD LITEM
No. 135 MDA 2016
Appeal from the Order Entered January 19, 2016
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2015-0030
==============================================
IN THE INTEREST OF: S.I.M.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: GUARDIAN AD LITEM
No. 136 MDA 2016
Appeal from the Order Entered December 16, 2015
In the Court of Common Pleas of York County
Domestic Relations at No(s): CP-67-DP-0000065-2013
===============================================
IN THE INTEREST OF: L.J.L.E.K., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: GUARDIAN AD LITEM
No. 137 MDA 2016
Appeal from the Order Entered December 16, 2015
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J-A18031-16 & J-A18032-16
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000066-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016
Appellants, Children, Youth and Families (“CYF”) and Guardian ad litem
(“GAL”), appeal from the orders denying the petitions to involuntarily
terminate the parental rights of K.S. (“Mother”) as to her two minor children,
S.I.M.S. (born in April of 2010) and L.J.L.E.K. (born in June of 2011)
(collectively “the Children”), as well as the orders changing the goal to
placement with legal custodian and establishing a concurrent goal of
reunification. Appellants also appeal from the orders denying the petitions
to involuntarily terminate the parental rights of T.A., who is the father of
S.I.M.S. (“Father 1”) and C.K., who is the father of L.J.L.E.K. (“Father 2”),
as well as the orders changing the goal to placement with legal custodian
and establishing a concurrent goal of reunification.1 For the reasons that
____________________________________________
1
On February 25, 2016, this Court consolidated CYF’s appeals, which were
docketed at 103 MDA 2016, 104 MDA 2016, 172 MDA 2016, and 173 MDA
2016. On February 25, 2016, this Court consolidated GAL’s appeals, which
were docketed at 134 MDA 2016, 135 MDA 2016, 136 MDA 2016, and 137
MDA 2016. Moreover, this Court sua sponte consolidated CYF’s and GAL’s
appeals.
*
Former Justice specially assigned to the Superior Court.
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follow, we vacate the trial court’s orders and remand for further proceedings
consistent with this decision.
On March 22, 2013, CYF filed an application for emergency protective
custody as to the Children on the basis the Children had unstable housing,
and following a hearing, the Children were placed with an emergency
caretaker. On April 9, 2013, the Children were adjudicated dependent with
the goal being return to a parent or guardian.
On March 24, 2015, CYF filed petitions to involuntary terminate
Mother’s, Father 1’s, and Father 2’s parental rights to the Children, and
change the placement goal to adoption. On July 2, 2015, July 9, 2015, and
August 25, 2016, the trial court held hearings on the petitions. On
December 16, 2015, the trial court denied CYF’s petitions to involuntarily
terminate Mother’s, Father 1’s, and Father 2’s parental rights to the
Children. The trial court also entered orders on December 17, 2015,
changing the goal to placement with legal custodian and establishing a
concurrent goal of reunification.
On January 14, 2016, CYF filed timely notices of appeal and concise
statements of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a)(2)(i) and (b). On appeal, CYF raises the
following issues for our review:
1. Whether the [trial] court erred in failing to find that [CYF]
presented clear and convincing evidence to change the goal
from reunification to placement for adoption?
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2. Whether the [trial] court erred in failing to find that [CYF]
presented clear and convincing evidence that:
a. The parents, by conduct continuing for a period of at
least six (6) months immediately preceding the filing of
the petition for involuntary termination of parental
rights either have evidenced a settled purpose of
relinquishing parental claims to the minor children, or
have failed to perform their parental duties
b. The repeated and continued incapacity abuse, neglect,
or refusal of the parents have caused the minor children
to be without essential parental care, control or
substance necessary for their physical or mental well-
being and that the conditions and causes of the
incapacity, abuse, neglect, or refusal cannot or will not
be remedied by the parents.
c. The minor children have been removed from the care of
the parents by the court or under a voluntary
agreement with the agency for a period of at least six
(6) months, the conditions that led to the removal or
placement of the children continues to exist, the
parents cannot or will not remedy those conditions
within a reasonable period of time, the services or
assistance reasonably available to the parents are not
likely to remedy the conditions which led to the removal
or placement of the minor children within a reasonable
period of time, and termination of parental rights will
serve the best needs and welfare of the minor children.
d. The minor children have been removed from the care
and custody of the parents by the court or under a
voluntary agreement with an agency, twelve (12)
months or more have elapsed from the date of the
removal or placement, the conditions which [led] to the
removal or placement of the minor children continues to
exist and termination of parental rights would serve the
needs and welfare of the minor children.
3. Whether the [trial] court erred in failing to find that [CYF]
presented clear and convincing evidence that terminating the
parental rights of the parents would serve the best interest
of the minor children and would otherwise advance the
developmental, physical, and emotional needs and welfare of
the minor children?
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CYF’s Brief at 1-2.
On January 21, 2016, GAL filed timely notices of cross appeal, see
Pa.R.A.P. 511 and 903(b), and concise statements of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(a)(2)(i) and (b). On appeal, GAL raises the following issues for our
review:
1. Whether, in denying the termination of Mother’s parental
rights, the [t]rial court erred in its application of the case law
in that it gave too much weight to the bond that Mother may
have with the [C]hildren without consideration of whether the
bond was positive or negative in its overall impact on the best
interests of the [C]hildren?
2. Whether, with regard to the Fathers, the trial court erred in
giving any weight to the existence of a bond in that there was
little to no evidence that any bond existed or that such a bond
should be given more weight than the lack of effort,
availability, or progress in being resources for the Children[?]
3. Whether the [t]rial court erred in failing to give appropriate
weight to the [C]hildren’s needs for permanence as those
factors relate to the best interests of the [C]hildren[?]
4. With regard to the [c]hange of [g]oal, the GAL joined in the
[s]tatement of [m]atters complained of [p]ursuant to
Pa.R.A.P. 1925(b) by [CYF] and joins in [CYF’s brief].
GAL’s brief at 5-6.
Initially, we note that our review is guided by the following legal
precepts:
[With regard to the termination of parental rights,]
appellate courts must apply an abuse of discretion standard
when considering a trial court's determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
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findings of fact and credibility determinations of the trial court if
they are supported by the record. In re R.J.T., 608 Pa. 9, 30, 9
A.3d 1179, 1190 (2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. As has been often stated,
an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.
As [the Supreme Court] discussed in In re R.J.T., there
are clear reasons for applying an abuse of discretion standard of
review in these cases. [The Supreme Court] observed that,
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. In re R.J.T., [608 Pa. at 28–30], 9 A.3d at 1190.
Therefore,. . .we must defer to the trial judge so long as the
factual findings are supported by the record and the court's legal
conclusions are not the result of an error of law or an abuse of
discretion.
In re Adoption of S.P., 616 Pa. 309, 325-27, 47 A.3d 817, 826-27 (2012)
(citations omitted).
The Adoption Act, 23 Pa.C.S.A. §§ 2101–2938, controls termination of
parental rights proceedings. In re L.M., 923 A.2d 505, 511 (Pa.Super.
2007). Specifically, Section 2511 requires the trial court to engage in a
bifurcated process before terminating parental rights. Initially, the focus is
on the conduct of the parents.
The party seeking termination must prove by clear and
convincing evidence that the parent's conduct satisfies the
statutory grounds for termination delineated in Section 2511(a).
Only if the [trial] court determines that the parent's conduct
warrants termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to Section
2511(b): determination of the needs and welfare of the child
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under the standard of best interests of the child. One major
aspect of the needs and welfare analysis concerns the nature
and status of the emotional bond between parent and child, with
close attention paid to the effect on the child of permanently
severing any such bond.
In re Adoption of J.M., 991 A.2d 321, 323 (Pa.Super. 2010) (quotation
omitted). Clear and convincing evidence is “testimony that is so clear,
direct, weighty and convincing” as to enable the fact-finder to come to a
clear conviction, “without hesitance, of the truth of the precise facts in
issue.” Id. (quotation omitted).
Moreover, we note that we review a trial court’s determinations
regarding a goal change under an abuse of discretion standard. Thus, we
“accept the findings of fact and credibility determinations of the trial court if
they are supported by the record, but [we are] not require[d]. . .to accept
the lower court's inferences or conclusions of law.” In re A.B., 19 A.3d
1084, 1088 (Pa.Super. 2011) (quotation omitted).
Petitions for a goal change are controlled by the Juvenile Act, 42
Pa.C.S.A. §§ 6301-6375. We have recognized that the statute seeks to
benefit the best interests of the child, and not the parents. In re M.S., 980
A.2d 612, 615 (Pa.Super. 2009). “Pennsylvania’s Juvenile Act focuses upon
reunification of the family, which means that the unity of the family will be
preserved ‘whenever possible.’” Id. (quotation omitted).
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Further, at permanency review hearings for dependent children
removed from the parental home, a trial court must consider the following
factors.
§ 6351. Disposition of dependent child
...
(f) Matters to be determined at permanency hearing.—
At each permanency hearing, a court shall determine all of the
following:
(1) The continuing necessity for and appropriateness
of the placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for
the child.
(3) The extent of progress made toward alleviating
the circumstances which necessitated the original
placement.
(4) The appropriateness and feasibility of the
current placement goal for the child.
(5) The likely date by which the placement goal for
the child might be achieved.
(5.1) Whether reasonable efforts were made to
finalize the permanency plan in effect.
(6) Whether the child is safe.
...
(9) If the child has been in placement for at least 15
of the last 22 months or the court has determined
that aggravated circumstances exist and that
reasonable efforts to prevent or eliminate the need
to remove the child from the child’s parent, guardian
or custodian or to preserve and unify the family need
not be made or continue to be made, whether the
county agency has filed or sought to join a petition
to terminate parental rights and to identify, recruit,
process and approve a qualified family to adopt the
child[.]
42 Pa.C.S.A. § 6351(f)(1)-(6), (9).
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In the case sub judice, the record is clear that, in denying CYF’s
petitions to involuntarily terminate the parental rights of Mother and the two
fathers, the trial court relied solely upon a parent-child bond analysis. For
instance, during the December 16, 2015, hearing, the trial court, indicating
it had reviewed the testimony from the previous hearings, ruled as follows:
Turning first to the July 2, 2015, transcript, Kelly Jacobs,
the children’s therapist, testified that based upon what the
children have told her she believes that the children do enjoy
visits with mother the majority of the time. She thinks it’s clear
that there is a love between mother and children. But she goes
on to say that she does not know to what extent because she
has not seen them together.
Later in the testimony she indicates that the children told
her positive things about their visits with mother and that it was
clear from her conversations with the children that they do have
a love for their mom.
The Catholic Charities therapist, Chelsea Jones, also
testified at that day’s hearing. On cross-examination when
asked to describe the interaction that occurs between mother
and children, she says it’s positive, mother loves the children,
there is physical contact. The children in her opinion don’t seem
uncomfortable with her. They seem comfortable with her.
When we came back to [the] hearing on July 9, 2015, the
caseworker, Kristina Scott, indicated that she had the
opportunity to observe the interaction between the children and
their mother and opined that the interaction between the
children and their mother and the children and their foster
parents really doesn’t differ. They are equally as excited to see
[Mother] as their foster parents.
And she went on to testify that she believes the same is
true regarding the interaction [Father 2] has with his child, that
it is the same as with the foster parents. In regard to that
interaction between foster parents and the children, Ms. Scott
testified that the children have [a] very good interaction with the
foster family. They sit next to them on their laps, or they are
standing behind them playing in their hair. They have a very
good bond with the foster parents.
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Later in her testimony Ms. Scott was asked if she believes
there would be any long-term negative impact upon [S.I.M.S.] if
her parents’ rights were to be terminated. She says, yes, if
mother was cut completely out of their lives. She went on to say
that mother and children have a very strong bond. She also
indicated that she believes it’s not just mother that has a strong
bond with the children, but the children also have a strong bond
with their mother.
On the third day of the hearing, on August 25, 2015, Ms.
Scott again testified, and she indicated that [S.I.M.S.] interacts
very well with her mother, as does [L.J.L.E.K.].
Further in the testimony she indicates that her opinion that
the children and mother share a strong bond with each other is
based upon her observing the interaction between the two
children and their mother.
And finally, Ms. Scott testifies with regards to the bonding
issue that she believes that [Father 2], father of [L.J.L.E.K.], has
a strong bond with [L.J.L.E.K.].
And that is the extent of the testimony on the parent/child
bond that was presented at this hearing.
So the question for the [c]ourt is, given the extent and
nature of that testimony and the requirement we not terminate
parental rights unless the evidence we found credible clearly and
convincingly proves that it is in the best interest of the child in
question to do so, and that a key component of that best
interests analysis is what, if any, bond exists between parent
and child, and what the nature of the bond is.
We cannot conclude that the evidence presented with
regards to these petitions on the three days of the hearing
clearly and convincingly proves that it is in the best interest and
welfare of the child to terminate the parents’ rights because of
the fact all of the evidence of bonding presented tends to prove
that there is a strong bond between mother and her children and
[Father 2] and his child, and that in particular [S.I.M.S.] would
suffer long-term ill effects should she be cut off from her
mother.
Now, it is for that reason that I’m going to deny the
request that the mother’s rights to these two children be
terminated. And because I don’t think it would be in the best
interest of the children under these circumstances to terminate
either of the father’s rights, we are not going to terminate their
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rights. There’s no point in leaving the child with only one
parent.
N.T., 12/16/15, at 7-12.2
Additionally, at the hearing, the trial court indicated that based on the
parent-child bond assessment, it was denying CYF’s request to change the
goal to adoption. Id. at 12.
We conclude that, while the parent-child bond was an important factor
to be considered by the trial court in the matter at hand, it was not the sole
factor. As indicated supra, in termination matters, the trial court must
initially focus on the parents’ conduct and determine whether the party
seeking termination has proven by clear and convincing evidence that the
parents’ conduct satisfies one of the statutory grounds for termination under
Section 2511(a). In re Adoption of J.M., supra. The trial court
improperly conducted no such inquiry in this case.
Moreover, as it relates to the best interest of the children inquiry under
Section 2511(b), we conclude the trial court improperly limited its inquiry to
an assessment of the natural parent-child bond, and even in this regard, the
trial court’s analysis is incomplete as it relates to Father 1 and Father 2.
Specifically, with regard to the fathers’ bonds, the trial court did not conduct
____________________________________________
2
On January 19, 2016, the trial court subsequently filed this portion of the
transcript as an Opinion and order.
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any bond analysis with regard to Father 1 and S.I.M.S., and the bond
analysis with regard to Father 2 and L.J.L.E.K. is scant.
In any event, with respect to Section 2511(b), this Court has
explained the requisite analysis involves a determination of whether
termination of parental rights would best serve the developmental, physical,
and emotional needs and welfare of the child. This Court has stated:
“Intangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa.Super. 2005) (citation omitted).
While an examination of the parent-child bond, and the effect
severance of the bond will have on the child are important considerations
under Section 2511(b), they are not the sole considerations. See id.
Stated differently, the trial court must give adequate consideration to all of
the needs and welfare of the child, and not solely to the emotional bond, if
any, between the natural parent and child. In re K.Z.S., 946 A.2d 753
(Pa.Super. 2008).
Additionally, as our Supreme Court has stated: “Common sense
dictates that courts considering termination must also consider whether the
children are in a pre-adoptive home and whether they have a bond with
their foster parents.” In re T.S.M., 620 Pa. 602, 629, 71 A.3d 251, 268
(2013) (citation omitted). Moreover, our Supreme Court has directed that,
in weighing the bond considerations pursuant to Section 2511(b), “courts
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must keep the ticking clock of childhood ever in mind.” Id. at 631, 71 A.3d
at 269. The Supreme Court observed in In re T.S.M. that “[c]hildren are
young for a scant number of years, and we have an obligation to see to their
healthy development quickly. When courts fail. . .the result, all too often, is
catastrophically maladjusted children.” Id.
Further, with regard to the termination of parental rights, inasmuch as
the record suggests Father 1 and Father 2 are incarcerated, it bears
mentioning that our Supreme Court has held that incarceration is a factor to
be considered in determining whether a parent’s rights should be
involuntarily terminated. In re Adoption of S.P., supra. Here, the trial
court did not mention Father 1’s and Father 2’s incarceration in conducting
its termination analysis.
Finally, as it relates to the permanency review hearing and in
determining whether a goal change was necessary, in rendering its orders,
the trial court erroneously relied solely on a parent-child bond assessment
and did not consider the factors set forth in Section 6351(f). We conclude
this was error. See 42 Pa.C.S.A. § 6351(f); In re R.J.T., supra (indicating
the trial court must consider the factors in Section 6351(f) in determining
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what placement is best suited to the safety, protection and physical, mental
and moral welfare of the child under 42 Pa.C.S.A. § 6351(g)).3
For all of the aforementioned reasons, we vacate the trial court’s
orders entered in this matter and remand for the trial court to conduct a
proper analysis under Sections 2511(a) and (b) of the Adoption Act with
regard to CYF’s petitions to involuntarily terminate the parental rights of
Mother, Father 1, and Father 2 as to the Children. Moreover, we direct the
trial court to conduct a proper analysis under the Juvenile Act as it applies to
CYF’s petition for a change of goal as to the Children.
Orders Vacated; Case remanded with Instructions; Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
____________________________________________
3
We note that, in its Pa.R.A.P. 1925(a) opinion, the trial court elaborated
that it considered factors (1) to (6) of Section 6351(f). However, although
the trial court admitted that the date by which the goal for the Children
might be achieved is “unknown,” and reunification is “currently not
appropriate because Mother is not ready to resume custody of the
Children[,]” the trial court declined to change the goal placement to adoption
solely because of the “strong, positive bond between Mother and the
Children[.]” Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 2/22/16, at 7-10.
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