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

J-S31044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.R., NATURAL MOTHER :
:
:
:
:
: No. 280 WDA 2019

Appeal from the Order Entered January 16, 2019
In the Court of Common Pleas of Lawrence County Orphans' Court at
No(s): 20011 of 2017, 0C -A,
CP-37-DP-0000095-2013

IN THE INTEREST OF: K.M.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.R., NATURAL MOTHER :
:
:
:
: No. 281 WDA 2019

Appeal from the Order Entered January 16, 2019
In the Court of Common Pleas of Lawrence County Orphans' Court at
No(s): 94 of 2013, DP, 20012 of 2017,

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

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

M.R. (“Mother”) appeals from the order terminating her parental rights

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

discretion and, therefore, affirm.
J-S31044-19

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

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

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

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

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

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

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

property. Father was intermittently present in the household but perpetrated

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

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

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

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

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

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

residence, they observed deplorable and unsanitary conditions.

The Children have been in foster care since their initial dependency

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

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

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1Father has also filed an appeal in this Court (docketed in this Court at 282
and 283 WDA 2019) regarding Children.

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J-S31044-19

permanency review hearings and issued the last permanency review order on

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

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

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

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

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

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

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

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

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

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

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

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

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

Mother raises the following issues on appeal:

1. Whether the Children and Youth Services Agency
(Agency) failed to make children available to the Court as
required and as mandated by the Child Protective Services
Laws (CPSL)[?]

____________________________________________

2 We note that Mother filed an appeal from the September 17, 2018
dependency order. In re Interest of J.A./K.R., 1451 WDA 2018, 1452 WDA
2018. In light of the instant appeal, Mother’s dependency appeal was
continued for consideration with this appeal. Here, we affirm the termination
of Mother’s parental rights, therefore Mother’s challenges to the dependency
proceedings have been rendered moot. We therefore will not address them
further. See Order, 1451 WDA 2018, 1452 WDA 2018.

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J-S31044-19

2. Whether the Court erred in determining that although
[Mother] had exceeded what was requested of her and then
determined that, although she completed all services
required by the Agency, the Court failed to apply the law to
the facts of the case and return [Children] to [Mother][?]

3. Whether the Agency failed to provide any type of
reunification counseling or generate a service plan to reunify
[Children] with [Mother][?] The agency withheld [Children]
and appropriate reunification services after all other
required services were completed by [Mother]. The Court
failed to apply the law to the facts on this matter.

4. Whether the Agency failed to provide visits between
[Mother] and Children, based solely on the alleged belief
that one of the two Children voiced her desire to not see
[Mother][?] The agency failed to provide competent
evidence that there was any basis to deny Mother visitation.
The Court failed to apply the law to the facts on this matter.

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

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

7. The Court failed to find that the Agency had provided any
competent testimony that [Children] were bonded with the
foster family or that they did not have a bond with Mother.
In fact, the Court was incapable of making any
determination about the child who was never presented for
testimony or evaluation by the Court.

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

9. Whether the evidence was sufficient to determine that
Mother suffered from an incapacity that she could not
overcome and permit [Children] to return home[?]

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J-S31044-19

10. Whether the Court misconstrued the testimony of the
expert psychologist, Dr. Gallo, by claiming that he was not
qualified to render an opinion on Mother’s parental capacity
when, indeed, his testimony was that Mother had no
apparent impediments to her capacity to parent[?]

11. Whether the Court erred in determining that Mother
failed to complete a second parental capacity evaluation
when the record indicated that she did and that the Agency
refused to accept the second evaluation because it was done
by an independent provider[?]

Mother’s Br. at vi-vii.

When reviewing orders terminating parental rights, we “accept the

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

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

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

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

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

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

The Pennsylvania Supreme Court has explained the reason for applying

an abuse of discretion standard to termination decisions:

[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
or an abuse of discretion.

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J-S31044-19

Id. at 826-27 (citations omitted).

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

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

child’s best interest under Section 2511(b). Here, we conclude that the trial

court properly terminated Mother’s parental rights pursuant to Section

2511(a)(2).3

Section 2511(a)(2) provides:

(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:

...

(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.

23 Pa.C.S.A. § 2511(a)(2).

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

party must produce clear and convincing evidence of the following: “(1)

repeated and continued incapacity, abuse, neglect or refusal; (2) such

incapacity, abuse, neglect or refusal has caused the child to be without

____________________________________________

3 We note that CYS also sought to terminate Mother’s parental rights pursuant
to subsection (a)(8). However, the trial court specifically found that Mother’s
rights could not be terminated under that subsection because Mother had
successfully remedied the physical conditions which initially triggered
Children’s removal from her care.

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J-S31044-19

essential parental care, control or subsistence necessary for his physical or

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

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

1266, 1272 (Pa.Super. 2003).

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

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

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

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

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

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

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

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

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

opinion. In both her first and fifth issue, the crux of Mother’s arguments lie in

her contention that CYS did not properly provide the testimony of both

Children. In particular, Mother points out that J.A. never testified during the

termination proceedings at all and K.M.R. did not testify during the most

recent proceedings.

Mother’s first and fifth issues lack merit. “[T]he admission and exclusion

of evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion.” In re R.T., 778 A.2d 670,

683 (Pa.Super. 2001) (internal quotation marks and citation omitted).

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J-S31044-19

Currently, this Court does not mandate that “an abused or neglected child [be

forced by his or her natural parent] to testify in an involuntary termination

proceeding.” In re B.L.L., 787 A.2d 1007, 1011 (Pa.Super. 2001) (citation

omitted). Accordingly, we conclude that the trial court did not abuse its

discretion by determining that good reason excused Children’s testimony

where Children’s legal counsel was present. See Trial Court’s Rule 1925(a)

Opinion at 8-11. Moreover, as detailed below, even in the absence of J.A.’s

testimony, we conclude that the trial court had sufficient evidence to support

the termination of Mother’s parental rights.

In her second, sixth, seventh, ninth, and tenth issues, Mother presents

the overarching argument that the evidence was insufficient to terminate her

parental rights pursuant to either Section 2511(a)(2) or Section 2511(b). She

specifically cites to her successful efforts at remedying her home and her

general compliance with her family service plan (“FSP”). She also points to

the testimony of her expert, Dr. Gallo, who testified that Mother had no

apparent impediments to her ability to parent Children.

However, the trial court concluded that ample evidence supported the

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

testimony of both fact and expert witnesses at trial established that Mother

has “extreme and sustained difficulties in emotionally relating to children.”

Trial Court Rule 1925(a) Opinion at 14. The trial court also noted a

“notice/demand” letter Mother sent to the court wherein she demands the

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J-S31044-19

return of her “property,” i.e. Children. See id. Further, the court properly

emphasized that ample evidence supported the conclusion that Children’s

interests would be best served by the termination of Mother’s parental rights,

as required under Section 2511(b). Id. at 13-15. To this end, the court

explained that multiple witnesses detailed Children’s toxic bond with both

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

parents who are an adoptive resource for Children. Id. Further, the trial court

aptly addressed Mother’s contention regarding the weight accorded to her

expert, Dr. Gallo, by noting that Dr. Gallo had never observed Mother interact

with Children. Id. According, we conclude that the trial court properly

determined that sufficient evidence supported the termination of Mother’s

parental rights under Sections 2511(a)(2) & (b) and affirm on the basis of the

court’s thorough reasoning. See Trial Court’s Rule 1925(a) Opinion at 12-15;

Trial Court’s January 16, 2019 Opinion at 31-38.

Turning to her third and fourth issues on appeal, Mother claims that CYS

failed to make reasonable efforts to reunify the family by ceasing to require

Children to visit with her. She argues that Children’s desire to stop her

visitation was not a sufficient reason to halt all visits. In support, she points

to case law that requires the opportunity for visitation absent a severe threat

to the child at issue. See In re C.J., 729 A.2d 89, 94 (Pa.Super. 1999) (stating

that as long as a child’s goal remains reunification, visitation should continue

unless a grave threat to the child exists).

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J-S31044-19

However, the trial court properly explained that Mother’s visitation with

Children was stopped due to Mother’s own alleged misconduct during visits

and the attendant self-destructive and self-harming behavior specifically

reported by K.M.R. See Trial Court’s Rule 1925(a) Opinion at 20. We conclude

that the trial court permissibly declined to force Children to continue visitation

under such circumstances, and affirm pursuant to the trial court’s reasoning.

As referenced above, Mother also appealed the trial court’s September

17, 2018 dependency order. However, the trial court declined to stay the

instant termination proceedings in light thereof. In her eighth issue, Mother

contends that the trial court’s denial of her Motion to Stay constituted an abuse

of discretion because many issues she intended to raise in the dependency

appeal could prove dispositive for termination/goal change proceedings. In

response, the trial court cited authorities, inter alia, Pa.R.A.P. 1701(c), for the

proposition that proceedings should only be stayed pending appeal when the

same claims are at issue in both the appellate and trial court proceedings.

Here, the termination/goal change proceedings concerned different issues

than those relevant to the dependency proceedings. Therefore, we concur with

the trial court’s decision to dismiss Mother’s bid to stay the termination/goal

change proceedings. See Trial Court’s Rule 1925(a) Opinion at 26-27.

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

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

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

- 10 -
J-S31044-19

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

incorporate herein.

Order affirmed.

Judge Stabile joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/6/2019

- 11 -
 Circulated 07/24/2019 10'47 !
. I
........_,

IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS

LAWRENCE COUNTY, PENNSYLVANIA

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

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

OPINION

Hodge, J. March 6, 2019

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

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

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

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

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

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

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

PROCEDURAL HISTORY

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

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

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

sake republish below:

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

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

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

Besides the considerable evidence accumulated at these hearings, all parties
stipulated at the first hearing (August 8, 2017) to incorporate the factual record
of the dependency cases into the record of the Termination Petitions and Goal
Change Motions. Following the close of evidence on August 27, 2018, this
Court permitted all parties to file proposed findings of fact and conclusions of
law, which were received by October 31, 2018.
53RD
JUDICIAL
DISTRICT
1
Mother timely appealed these permanency review orders to the Superior Court on October 5, 2018,
which are currently docketed aU4:&°fF1nd;J452 WDA 2018 (hereinafter, Dependency Appeals).
,w·RE:NcE:· c o urs r v
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 On January 16, 2019, upon consideration of the parties' submissions,

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

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

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

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

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

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

appeal.

MATIERS COMPLAINED OF ON APPEAL

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

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

follows:

A. Mother

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

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

Services Laws (CPSL}.

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

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

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

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

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

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

,WR.EN CE COUNTY
PENNSVLVA NIA

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 and appropriate reunification services after all other required services were completed

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

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

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

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

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

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

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

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

while the other was withheld from the Court without justification.

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

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

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

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

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

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

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

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

Dependency Appeal in this case.

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

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

10. Whether the Court misconstrued the testimony of the expert psychologist,
53RD
JUDICIAL Dr. Gallo, by claiming that he was not qualified to render an opinion on mother's
DISTRICT : � ;_ _ �-.:. r � _. ( · � · " , · , :,
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 parental capacity when, indeed, the testimony was that mother had no apparent

impediments to her capacity to parent.

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

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

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

independent provider.

B. Father

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

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

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

return the children to the father.

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

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

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

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

to apply the law to the facts on this matter.

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

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

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

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

facts on this matter.

5. Whether the Court failed to take testimony from both children regarding
SlRD
JUDICIA,L their individual desire to reurJify_ w(th.[Father] thereby requiring the Court to make a
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 decision as to both children based upon the unsubstantiated testimony of one child,

while the other was withheld from the Court without justification.

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

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

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

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

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

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

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

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

Court Dependency Appeal fiied by mother in this case.

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

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

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

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

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

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

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

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

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

for the termination of his parental rights.

While Mother and Father each raise some unique questions on appeal,
53RO
generally their Concise �t.l?tem.e_nts feature many similar or outright identical issues;
> : � l.�; ( L
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6

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

organized and divided into the following five categories of analysis:

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

and Father's points 1 and 5).

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

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

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

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

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

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

Father's 8).

DISCUSSION

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

of parental rights cases as follows:

The standard of review in termination of parental rights cases requires
appellate courts "to accept the findings of fact and credibility determinations of
the trial court if they are supported by the record." In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012). "If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law or abused its
discretion." Id. "A decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or
ill-will." Id. The trial court's decision, however, should not be reversed merely
because the record would support a different result. Id. at 827. We have
previously emphasized our deference to trial courts that often have first-hand
53flD observations of the parties spanning multiple hearings.
JUDICIAL
DISTRICT
· {, . .. I.'·"°'.': ;-\.L

l\WR��CE COUNTY
PE:NNSVLVANIA

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

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

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

Super. 2010).

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

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

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

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

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

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

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

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

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

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

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

LAWRENCE COUNTY
PENNSYLVA.NIA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

proceedings.

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

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

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

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

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

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

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

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PENNSYLVANIA
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 R.J.C.P. 1128(8)(1 ). After first reiterating that a proceeding is never to move forward

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

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

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

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

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

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

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

Also pertinent to dependency hearings are several provisions of the Juvenile

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

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

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

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

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

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

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

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

IWRENc;E COUNTY
PENNSYLVANIA
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 In answering the question of whether children shall testify at involuntary

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

requirement nor is there any Pennsylvania appellate decision which permits or

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

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

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

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

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

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

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

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

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

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

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

preferences to the court with respect to the potential terminations.

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

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

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

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

.AWRE:NCE COUNTY
PE:NNSYLVANIA
11

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

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

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

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

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

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

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

remaining proceedings due to the fraught and tempestuous relationships between

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

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

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

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

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

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

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

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

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

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

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

matters should not be considered on appeal.

II. Lack of Competent Testimony and Other Evidentiary Issues

In their concise statements, Mother and Father each raise several issues with
53RO
JUDICIAL respect to the testimony elicited and evidence adduced at the proceedings. Both
DISTRJCT
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 Parents, at Nos. 6 and 7, contend that CVS supplied neither "any competent

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

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

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

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

expert witness, Dr. Fred Gallo.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

professionals credibly testified to the troubling emotional relationship between Mother
S3RD
JUDICIAL and Children. Ms . .Stahlman and Mr. Dick also commented on Mother's lack of
OiSTRICT
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 empathy toward the traumatic experiences Children endured at her home and

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

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

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

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

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

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

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

2013.

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

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

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

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

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

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

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

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

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

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

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

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

difficulties in emotionally relating to Children. For his part, Father's own testimony
53RD
JUDICIAL underscored his struggles with substance abuse, domestic violence, and the criminal
DISTRICT
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14
 justice system, all of which influenced this Court's conclusions as to his present and

prospective inability to take Children into his care.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ill. Issues with Reunification and the Family Service Plan

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

that CYS failed to provide any type of reunification counseling or generate a service
53RD
JUDICIAL plan for reunification, and that CYS failed to provide any visitation between Parents
DISTRICT
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 and Children. Additionally, Father argues at Nos, 9 and 10 that CYS failed to refer

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

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

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

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

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

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

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

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

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

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

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

service agencies typically fulfill this requirement through the implementation of family

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

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

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

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

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

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

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

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

biological relationship,' child welfare agencies must work 'toward termination of
53RD
JUDICIAL parental rights, placing the child with adoptive parents,' ideally within 18 months." Id.
DISTRICT . ,··,, ....
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AWRENCE ·COUNT.V
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at 944 (quoting B.L.L., supra, at 1016). The Superior Court has also stated that "We

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

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

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

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

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

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

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

2002)).

Part of those reasonable efforts toward reunification include the child services

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

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

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

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

provide visitation opportunities at least once every two weeks unless certain

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

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

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

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

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

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

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

•WR la:NCE COUNTY
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the family to achieve those ends, including visitation. In turn, the parent has a

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

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

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

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

move toward termination of the parent's rights.4

Despite the clear mandate favoring reunification imposed on CYS and other

child services agencies, an important question arises concerning the appropriate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

otherwise worthy and proven termination petition.

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

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

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

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

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

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

undergo mental health and psychological assessments, complete domestic violence

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

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

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

It is plainly evident that CYS provided reasonable efforts toward Mother

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

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

mental health and psychological evaluations. attended a domestic violence support

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

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

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

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 record demonstrates that Mother failed to follow up on this despite repeated prompting

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

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

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

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

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

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

opportunities for her to complete the FSP.

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

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

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

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

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

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

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

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

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

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

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

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

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

incarcerations. Indeed, when he was out of jail, Father was able to enjoy both social
53RO
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PENNSYLVANIA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the FSP entirely within his county of residence.

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

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

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

21
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·--�-------------------------------·-·
 indefensible when considered next to the facts of this case. CVS developed FSPs for

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

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

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

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

of court that instituted specific limitations in response to seriously concerning

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

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

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

the parent's home county.

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

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

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

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

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

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

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

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

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

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

53RO
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DISTRICT
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See IV. Failure to Ai,.plv the Law to the Facts of the Case, infra.
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PENNSYLVANIA
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 with Mother individually complaining that she was entitled to regain custody of

Children because she had completed her FSP,

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

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

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

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

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

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

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

Initially, the focus is on the conduct of the parent. The party seeking
termination must prove by clear and convincing evidence that the parent's
conduct satisfies the statutory grounds delineated in Section 2511 (a). Only if
the court determines that the parent's conduct warrants termination of his or
her parental rights does the court engage in the second part of the analysis
pursuant to Section 2511 (b): determination of the needs and welfare of the
child under the standard ofthe best interests of the child.

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

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

Superior Court as "evidence as that which is so 'clear, direct, weighty and convincing

as to enable the trier of fact to come to a clear conviction, without hesitance, of the

truth of the precise facts in issue." 1.Q.. (citing In re C.S., 761 A2d 1197, 1201 (Pa,

Super. 2000) (en bane)).

For purposes of this appeal, CYS filed the termination petitions asserting that
53RO
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.. .,,, . ,.. other and Father at 23 Pa. C.S.
,.M .. ·. ,

,WRENCE COUNTY
PENNSYLVANIA

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

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

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

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

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

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

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

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

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

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

(a} General rule. - The rights ofaparent in regard to a child may be terminated after a petition
filed on any of the following grounds:

(2) The repeated and continued incapacity, abuse, neglect or refusal ofthe parent has caused
the child to be without essential parental care; control or subsistence necessary for his physical
or mental weil-being and the conditions and causes of the incapacity, abuse, neglect or refusal
cannotor will not be remedied by the parent
***
(8) The child has been removed from the care ofthe parent by the court or under a voluntary
agreement with an agency, 12 months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or placement or the child continue to exist

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

(b) Other considerations. - The court in terminating the rights of a parent shall give primary
consideratlcn to the developmental, physical and emotional needs and welfare of the child. The
rights of a parent shall not be terminated solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and medical care if found to be beyond the
control of the parent, With respect to any petition filed pursuant to subsection (a)(1 ), (6) or (8),
the court shall not consider any efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the filing of the petition.
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See, e.g., In re N.A.M., 33 A.3d 95_,.1pO.(f;la.,-Super, 2Pl1}; In re Interest of Lilley, 719 A2d .327, 330
DISTRICT
(Pa. Super. 1998); In re Geiger. 331 A.2ci':172 (Pa:
:1975);�-in re E.AP., 944 A.2d 79, 82 (Pa. Super.
2008).
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PENNSYLVANIA

!/ .
24
. -..;.·_ .. 1 i .. : "

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

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

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

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

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

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

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

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

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

and expanded through case law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

considered on. appeal.

V. Failure to Stay Final Order Pending Dependency Appeals

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

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

While the Dependency Appeals remained pending before the Superior Court.

Pennsylvania Rule of Appellate Procedure 1701 governs the effect an appeal

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

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

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

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

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

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

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

item, claim or assessment... '1

Additionally, clear precedent from the Pennsylvania Superior Court disfavors
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DISTRICT � .• - i .• �'

,WRENCE COUNTY
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-, � ;.., :'
'.
...
26

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

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

statutory authority of the Juvenile Court to exercise continuing_ independent and

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

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

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

(Pa. Super. 2008).

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

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

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

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

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

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

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

For the foregoing reasons, we respectfully request thatthe Superior Court

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

53RD
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27
 Circulated 07/24/2019 1047 AM

.-
{
'·...

IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS

LAWRENCE COUNTY, PENNSYLVANIA

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

J.L.A.

APPEARANCES

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

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

Forthe Minors:
New Castle, PA 16101

Paula Cialella, Esq.
-
Cl
w
...;J
. z
...-;,::
-,
113 N. Mercer Street �
New Castle, PA 16101
Guardian .Ad Litem: Nora DiBuono1 Esq.
701 First Avenue
Ellwood City, PA 16117

OPINION

Hodge, J. January 16, 2019

Presently before this Court are the Petitions for Involuntary Termination of

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

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

\WR£NC:1; C:OUNTY
PENNSYI.V.ii.:NtA

--·--·-·-·--------·------
 r
(

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

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

Rights and the Motions for Goal Change.1

Procedural Histery
I

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

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

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

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

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

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

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

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

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

one issued on September 17, 2018.2

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

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

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

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

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

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

opinion:

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

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

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

Amber Pieri;

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

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

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

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

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

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

FINDINGS OF FACT

I. Parties to the Case

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

Pennsylvania.
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 ' .
minimize it, even to the detriment of Children. On the few occasions Mother took

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

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

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

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

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

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

194, 195.

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

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

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

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

154, 202.

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

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

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

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

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

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

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

s
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 .'
physlcal and legal custody. Children have remained with the same foster family

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

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

approximately every six months to evaluate whether the finding of dependency

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

took place on September 17, 2018.

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

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

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

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

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

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

of them. Among the steps on Parents' FSP:

• Keep the home clean and free from clutter.

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

• Obtain a psychological assessment.

• Complete domestic violence counseling.

• Complete anger management classes

• Complete a parental capacity assessment.

• Undergo a drug and alcohol evaluation.

N.T .. 3128118, at 144-45, 8128118 at 31.
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 19. In addition to the affirmative steps required of Parents, reunification was

contingent upon the successful completion of counseling sessions between each

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

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

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

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

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

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

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

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

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

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

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

3/28/18.; at 153.

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

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

of approximately one year predating her placement with CYS, from sometime in
53RD
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3
55 Pa. Code §3130.68.
LAWRENCE COUNYV
F'E'°'N$VL.VANIA 8
 25. Dr. Gallo additionally testified as a fact witness with respect to the psychological

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

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

her children." Id. at 32.

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

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

Multiphasic Personality Inventory, some projective tests, the Thematic

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

approved diagnostic tools from the American Psychological Association. Dr.

Gallo obtained additional material for his evaluations from conversations with

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

therapist Tressa French. Id. at 25-30.

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

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

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

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

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

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

33 (quoting from Mother's Exhibit D).

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

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

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

LAWRENC£ CO'UNTY
P£NNSYL.'1ANIA 10
 (

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

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

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

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

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

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

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

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

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

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

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

opposed reunification counseling because they "felt that their psychological safety

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

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

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

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

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

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

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

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

t.AWRENCE COUNTV
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 51.Ms. Amber Pieri has been the caseworiENl•U