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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: P.T.M. AND K.L.M., MINORS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: J.H. AND C.N.M., :
FATHER AND MOTHER :
: No. 1539 MDA 2017
Appeal from the Decree Entered September 5, 2017
in the Court of Common Pleas of Lancaster County,
Orphans’ Court at No(s): 0287-2017
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 21, 2018
J.H. (“Father”) and C.N.M. (“Mother”) appeal from the Decree entered
on September 5, 2017, granting the Petition filed by the Lancaster County
Children and Youth Social Service Agency (“Agency”) to terminate their
parental rights to their minor, female child, K.L.M. (“K”) (born in April of
2015). Mother additionally challenges the termination of her parental rights
her minor, male child, P.T.M. (“P”) (born in June of 2009).1 After careful
review, we vacate and remand for additional proceedings in the trial court.
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1 P’s father is R.F.M., whose paternal rights to P were voluntarily terminated
by a Decree entered on June 5, 2017. Trial Court Opinion, 11/2/17, at 1 n.1.
R.F.M. has not filed an appeal from the termination of his parental rights, nor
is he a party to the instant appeal.
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In its Opinion, the trial court summarized the factual and procedural
history underlying the instant appeal, which we adopt as though fully restated
herein. See Trial Court Opinion, 11/2/17, at 1-14.
On September 5, 2017, the trial court entered its Decree terminating
the parental rights of Mother to P, and of Mother and Father to K. On October
3, 2017, both parents filed a joint, single Notice of appeal from the Decree,
along with a Concise Statement of errors complained of on appeal, pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).2
Father and Mother argue that the Agency did not establish, by clear and
convincing evidence, the grounds for termination pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and/or (8). Brief for Appellants at 15-57. Father and
Mother further contend that, even if the Agency established by clear and
convincing evidence grounds for termination pursuant to 23 Pa.C.S.A.
____________________________________________
2 On April 16, 2013, the Note to Pa.R.A.P. 341 was amended to state that,
where one or more orders resolves issues arising on more than one docket or
relating to more than one judgment, an appellant must file separate notices
of appeal from each order or judgment. See Pa.R.A.P. 341, Note. In General
Electric Credit Corp. v. Aetna Casualty and Surety Co., 263 A.2d 448,
452 (Pa. 1970), the Pennsylvania Supreme Court stated that “taking one
appeal from several judgments is not acceptable practice and is discouraged.”
In Commonwealth v. C.M.K., 932 A.2d 111, 113 (Pa. Super. 2007), this
Court quashed a joint notice of appeal filed by co-defendants from separate
judgments of sentence, citing General Electric, supra and Pa.R.A.P. 512,
Note. Father and Mother should have filed a separate notice of appeal from
the termination Decrees as to each child, and had the appeals entered on
separate dockets. If they had done so, the appeals would have been
consolidated for the convenience of the panel and the parties, in any event.
See Pa.R.A.P. 513. We, therefore, do not find the appeals defective, and will
address them.
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§ 2511(a), the Agency did not establish, by clear and convincing evidence,
the 23 Pa.C.S.A. § 2511(b) requirement, i.e., that the developmental, physical
and emotional needs and welfare of the children would not be harmed by
termination of parental rights. Brief for Appellants at 52. Father and Mother
assert that the case should be remanded for a proper subsection (b) analysis.
In reviewing an appeal from the termination of parental rights, we
adhere to the following standard:
[A]ppellate 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 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, 9
A.3d 1179, 1190 (Pa. 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. Id.; R.I.S., 36 A.3d [567,]
572 [(Pa. 2011) (plurality opinion)]. As has been often stated, an
abuse of discretion does not result merely because the reviewing
court might have reached a different conclusion. Id.; see also
Samuel Bassett v. Kia Motors America, Inc., 613 Pa. 371, 34
A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575 Pa. 647, 838
A.2d 630, 634 (Pa. 2003). 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 we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We 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. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an opposite result,
as is often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the trial court
and impose its own credibility determinations and judgment;
instead we must defer to the trial judges so long as the factual
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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 Atencio, 539 Pa. 161, 650 A.2d
1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
The burden is upon the petitioner to prove, by clear and convincing
evidence, that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “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.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a). See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Section 2511
provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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
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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.
***
(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.A. § 2511.
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With respect to subsection 2511(a)(1), our Supreme Court has held as
follows:
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect of termination
of parental rights on the child pursuant to Section 2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).
Further, this Court has directed that
the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. The
court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination
of his or her parental rights, to determine if the evidence, in light
of the totality of the circumstances, clearly warrants the
involuntary termination.
In re B.,N.M., 856 A.2d 847, 854-55 (Pa. Super. 2004) (citations omitted).
To satisfy the requirements of subsection 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal caused the child to be without essential
parental care, control or subsistence necessary for his physical or mental well-
being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272
(Pa. Super. 2003). The grounds for termination of parental rights under
subsection 2511(a)(2), due to parental incapacity that cannot be remedied,
are not limited to affirmative misconduct; to the contrary, those grounds may
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include acts of refusal as well as incapacity to perform parental duties. In re
A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
When we review the trial court’s analysis of subsection 2511(a)(5), we
consider the following:
Under [subsection] 2511(a)(5), we, thus, review the record to
determine whether [a child has] been removed from [the parent]
for six months and whether [the parent] can remedy the
conditions leading to the removal of [the child]. See[] In the
Interest of Lilley, 719 A.2d 327, 334 (Pa. Super. 1998) (the
child has been removed from the parents by the court and the
conditions which led to placement of the child continue to exist
and have not been remedied within a reasonable time and
termination of parental rights would best serve the needs and
welfare of the child). We also note that in considering the
importance of stability to a child’s welfare, the reasons why the
child has been with the third party for so long must be taken into
account. In Re: Adoption of Steven S., 417 Pa. Super. 247,
612 A.2d 465, 471 (1992), appeal denied, 533 Pa. 661, 625 A.2d
1194 (1993).
In re Adoption of T.B.B., 835 A.2d 387, 395 (Pa. Super. 2003).
Further, to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(8), it must be demonstrated that “(1) [t]he child has been removed
from parental care for 12 months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to exist;
and (3) termination of parental rights would best serve the needs and welfare
of the child.” In re Adoption of M.E.P., 825 A.2d at 1275-76. “Section
2511(a)(8) sets a 12-month time frame for a parent to remedy the conditions
that led to the children’s removal by the court.” In re A.R., 837 A.2d 560,
564 (Pa. Super. 2003). Once the 12-month period has been established, the
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trial court must next determine whether the conditions necessitating
placement persist, despite the reasonable good faith efforts Agency supplied
over a realistic period of time. Id. Terminating parental rights under
subsection (a)(8) does not require the trial court to evaluate a parent’s current
“willingness or ability to remedy the conditions that initially caused
placement.” T.B.B., 835 A.2d at 396 (citation omitted).
In its Opinion, the trial court provided a comprehensive summary and
analysis of the evidence supporting termination pursuant to subsections
(a)(1), (2), (5), and (8). See Trial Court Opinion, 11/2/17, at 2-14, 15-19.
Our review discloses that the trial court’s decision to terminate the parental
rights of Father and Mother under subsections (a)(1), (2), (5), and (8), is
supported by competent, clear and convincing evidence in the record, and we
discern no abuse of discretion in this regard. We therefore adopt the trial
court’s Opinion as to termination of Father’s and Mother’s parental rights
pursuant to subsections (a)(1), (2), (5) and (8). See Trial Court Opinion,
11/2/17, at 15-19.
Next, we address Father’s and Mother’s claim that the trial court abused
its discretion in terminating their parental rights to their children pursuant to
section 2511(b). See Brief for Appellants at 50-55. Father and Mother assert
that the trial court improperly failed to conduct a separate analysis pursuant
to subsection (b), requiring remand to the trial court for a full analysis
pursuant to that subsection. See id. at 55.
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The focus in terminating parental rights under subsection 2511(a) is on
the parent, but it is on the child pursuant to subsection 2511(b). See In re
Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In
reviewing the evidence in support of termination under section 2511(b), our
Supreme Court has stated the following:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs and
welfare of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond. In
re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances … where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
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A child’s feelings toward a parent are relevant to the section
2511(b) analysis. Nonetheless, concluding a child has a beneficial
bond with a parent simply because the child harbors affection for
the parent is not only dangerous, it is logically unsound. If a
child’s feelings were the dispositive factor in the bonding analysis,
the analysis would be reduced to an exercise in semantics as it is
the rare child who, after being subject to neglect and abuse, is
able to sift through the emotional wreckage and completely
disavow a parent …. Nor are we of the opinion that the biological
connection between [the parent] and the children is sufficient in
of itself, or when considered in connection with a child’s feeling
toward a parent, to establish a de facto beneficial bond exists.
The psychological aspect of parenthood is more important in terms
of the development of the child and [his or her] mental and
emotional health than the coincidence of biological or natural
parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). “[A] parent’s basic constitutional right to the
custody and rearing of … her child is converted, upon the failure to fulfill … her
parental duties, to the child’s right to have proper parenting and fulfillment of
[the child’s] potential in a permanent, healthy, safe environment.” In re
B.,N.M., 856 A.2d at 856 (internal citations omitted).
With regard to section 2511(b), the trial court stated the following:
When the Agency has met its burden under [s]ection
2511(a), the [c]ourt must also look to the requirements of
[s]ection 2511(b) before terminating any parental rights. “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
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to the giving of notice of the filing of the petition.”[FN] 23 Pa.C.S.A.
§ 2511(b). Section 2511(b) centers judicial inquiry upon the
welfare of the child rather than the fault of the parent. In re A.R.,
837 A.2d [at 565]. “Considering what situation would best serve
the child’s needs and welfare, the court must examine the status
of the bond between the natural parent and the child to consider
whether terminating the parent’s rights would destroy an existing,
necessary and beneficial relationship.” [T.B.B., 835 A.2d at 396].
On appeal, the parents assert that the [c]ourt’s Order is not
supported by evidence, and not in the best interests of the
children. A review of the record, however, indicates otherwise.
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[FN]The parents’ Concise Statement asserts that this final sentence
of section 2511(b) violates their due process and equal protection
rights because the Agency can still use the setbacks and failures,
occurring after the Petition is filed, against the parents. The
[c]ourt notes that, in this matter, both the progress and setbacks
or failures of these parents occurred before the February 2017
Petition was filed; that the setbacks or failures continued
afterwards did not alter the [c]ourt’s decision.
Trial Court Opinion, 11/2/17, at 15-16 (footnote in original).
Although the trial court stated that the termination of Father’s and
Mother’s parental rights was in the best interests of the children, it failed to
discuss subsection (b) with regard to the evidence of record. Rather, the trial
court focused its analysis of the evidence strictly on subsection (a). A
consideration of both subsections (a) and (b) is necessary for the involuntary
termination of parental rights. Therefore, we are constrained to vacate the
Decree, and remand the matter to the trial court for a full section 2511(b)
analysis. See T.S.M., supra; In re K.Z.S., supra.
On remand, the trial court has the discretion to take additional
testimony and receive more evidence to complete the section 2511(b) best
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interests analysis. Accordingly, although we discern no abuse of the trial
court’s discretion with regard to 23 Pa.C.S.A. § 2511(a), we vacate the Decree
and remand the case for the trial court’s consideration and analysis under 23
Pa.C.S.A. § 2511(b). The trial court shall hold further evidentiary
proceedings, if necessary, and then enter a new decree.3
Decree vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/21/2018
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3 Because of our disposition, we do not reach the parents’ argument
concerning whether the second portion of section (b) is unconstititutional as
violative of the guarantee to due process, and the trial court’s reasoning for
rejecting that argument. See Trial Court Opinion, 11/2/17, at 15 n.5, supra.
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