J-S08015-20
2020 PA Super 59
IN RE: C.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: BLAIR COUNTY :
CHILDREN, YOUTH AND FAMILIES :
:
:
:
: No. 1487 WDA 2019
Appeal from the Order Entered September 5, 2019
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
2018 AD 40
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
OPINION BY OLSON, J.: FILED MARCH 13, 2020
Appellant, Blair County Children, Youth and Families, appeals from the
order entered September 5, 2019, denying Appellant’s petition for involuntary
termination of the parental rights of B.M.M. (“Mother”) to her dependent child,
C.B., a female child born in May 2017, pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511.1 We affirm without prejudice to Appellant seeking
termination of Mother’s parental rights at a later date.
The trial court set forth the following:
The subject child in this case, [C.B.], was born [in] May []2017.
[Appellant] took custody of the child on July 10, 2017. The child
was adjudicated dependent on September 14, 2017. The child
was placed in foster care after release from the hospital and
eventually was placed with T.M., the child's paternal grandmother.
[The incident that precipitated Appellant’s involvement with the
____________________________________________
1 On May 17, 2019, the trial court terminated the parental rights of C.B.’s
biological father, T.M.B. (“Father”), after Father voluntarily relinquished his
parental claim to C.B. Trial Court Final Decree, 5/17/19.
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family concerned a specific incident of abuse for which Father] was
eventually charged with serious criminal offenses. [During the
incident, Father was alleged to have violently shaken C.B.2]
[]Mother[] was also charged with recklessly endangering another
person and endangering the welfare of a child[3] for her failure to
seek medical treatment for [C.B. following the incident involving
Father]. Dependency proceedings preceded through the Court of
Common Pleas [of Blair County].
On November 14, 2018, [Appellant] filed a [p]etition for
[t]ermination of [p]arental [r]ights [(“petition”)]. Tyler Rowles,
Esquire was appointed counsel for the child and guardian ad litem
counsel. The parents were provided an opportunity to object to
Attorney Rowles serving as guardian ad litem counsel and counsel
for the child. No party objected to the appointment. During the
course of the proceedings, Attorney Rowles indicated that due to
the developmental problems of the child and the child's age, he
was confident he could serve in both capacities [without a conflict
of interest.4]
In [its petition, Appellant] alleged that [termination of] the
parental rights of [Mother] are justified pursuant to 23 Pa.C.S.A.
[§]§ 2511(a)(2),(a)(5),(a)(8), and (b). In support of [its]
position, [Appellant] averred, amongst other things, the details of
the facts that gave rise to the criminal charges against the parents
and the fact that those charges remained pending. [Appellant]
also allege[s] that []Mother does not have a full understanding of
[C.B.’s] injuries, that she has not taken responsibility for the
injuries, and that she has not established that she can care for the
child. [Appellant] also avers that []Mother does not have
independent and stable housing and that she does not have stable
____________________________________________
2 The record demonstrates that Father admitted to violently shaking C.B.; this
action ultimately led Appellant to seek the removal and placement of C.B.
Appellant’s Application for Emergency Protective Custody, 7/11/17. Father
pled guilty to aggravated assault, endangering the welfare of a child, simple
assault, recklessly endangering another person, and harassment. 18
Pa.C.S.A. §§ 2702(a)(1), 4304(a)(1), 2701(a)(1), 2705, and 2709(a)(1),
respectively; see also N.T., 2/19/19, at Petitioner’s Exhibit 4.
3 18 Pa.C.S.A. §§ 2705 and 4304(a)(1), respectively.
4 N.T., 12/6/18, at 1-4.
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income. [Appellant] also assert[s] that the child is progressing
well in the care of [T.M.].
The [trial c]ourt conducted several evidentiary hearings on
[Appellant’s p]etition. These hearings occurred on December 6,
2018, February 19, 2019, March 28, 2019, May 7, 2019, and
August 14, 2019.
Trial Court Opinion, 11/8/19, at 1-2.
Several witnesses testified at these proceedings[; s]pecifically,
T.M., []Dr. Terry O'Hara, [Appellant’s] case worker Kierstin
Whysong, [Appellant’s] case aide Stephanie Barton and [Mother.]
T.M. provided several updates on her care of [C.B.,] as well as the
child's progress. She testified at numerous hearings. Her
testimony established that the child remains at a zero to
three[-]month developmental stage. However, the child has
shown some progress in certain areas. The testimony established
that T.M. has a bond with the child and the child recognizes and
responds to her. In light of the child's age and developmental
stage, it is difficult to acquire evidence regarding the child's bonds
with certain individuals. It seems that T.M.'s testimony
establishes that the child reacts more to individuals that she has
a history with and with individuals [whose voices she is able to
recognize]. T.M. testified that she communicates with [Mother]
and provides her updates on the child's health and doctors
appointments. She indicated that []Mother responds to her
updates and is receptive to communication with her. T.M.
explained that she has learned how to care for the child by
learning from the foster parents and due to her own research and
experience with the child and the child's physicians.
[Appellant] presented the testimony of Kierstin Whysong, a case
worker[,] and the testimony of Stephanie Barton, a case aide.
This testimony was utilized to explain [Appellant’s] position on the
[petition] and to provide background on the child, T.M.'s
involvement with the child, and [Mother’s] progress. This
testimony established several positives regarding []Mother. The
testimony established that []Mother has been compliant with
treatment recommended by [Appellant]. []Mother completed the
Circles of Security Program through Kids First and has been
cooperative with the United Way Parent Education Program.
[]Mother has also engaged in drug and alcohol treatment.
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[]Mother is also compliant with her visits regarding [C.B.] except
when those visits had to be rescheduled for []Mother's work or
unavailability. [Appellant’s witnesses] also expressed various
concerns about reunification. [Appellant’s] witnesses indicated
that []Mother's expectations of [C.B.] moving forward were not
realistic. They also stated that []Mother did not have independent
housing or stable employment. They raised concerns about
[]Mother's attentiveness to the child during visits and her ability
to care for the child in the future. In addition, a large portion of
[Appellant’s] expression of concern surrounded the underlying
abuse of the child and the fact that []Mother's criminal charges
remain pending. During a portion of Ms. Whysong's testimony,
she acknowledged that if the criminal charges would be resolved
in []Mother's favor, [Appellant] may move forward with
reunification. [Appellant’s] witnesses present some but not
extensive testimony about the bond between the child and
[]Mother. Ms. Whysong indicated that she [did not attend] visits
between []Mother and the child but understood from the aides
that the child recognizes []Mother. Ms. Whysong believes that the
child was bonded with []Mother during the visits.
Dr. Terry O'Hara, an expert in the field of forensic psychology[,]
testified at the evidentiary hearing. Two reports of Dr. Terry
O'Hara were placed into evidence[; s]pecifically, a report dated
November 8, 2017[,] and a report dated February 22, 2018. Dr.
O'Hara's testimony at the evidentiary hearing preceded the
second evaluation on February 22, 2018. Dr. O'Hara explained
during his testimony that he was unable to complete an
interactional evaluation due to the criminal charges against
[]Mother. Dr. O'Hara's testimony at the initial hearing was rather
speculative in light of his inability to do the interactional evaluation
at that time. However, Dr. O'Hara indicated that []Mother had
been compliant with treatment and that she had denied any issues
with domestic violence or psychiatric hospitalizations. The doctor
also concluded that []Mother had an average IQ. The doctor felt
that further evaluation of []Mother would be needed after
disposition of her criminal charges so that he could assess her
involvement in the criminal activity and assess what impact that
would have on her parenting ability moving forward. [Appellant]
asked Dr. O'Hara if he believed that independent housing would
be a concern for []Mother's ability to care for the child and the
doctor concluded that that would depend on the stability of the
household where she would reside.
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Id. at 4-6.
On September 5, 2018, the trial court denied Appellant’s petition finding
that Appellant had “failed by clear and convincing evidence to prove any of
the applicable sections pursuant to 23 Pa.C.S.A. § 2511.” Trial Court Order,
9/5/19. This appeal followed.5
Appellant presents the following issues for our review:
1. Whether the trial court erred and/or abused its
discretion in concluding that [Appellant] did not meet
its burden of proof by clear and convincing evidence
to terminate the parental rights of [Mother] pursuant
to 23 Pa.C.S.A. § 2511(a)(5)?
2. Whether the trial court erred and/or abused its
discretion in concluding that [Appellant] did not meet
its burden of proof by clear and convincing evidence
to terminate the parental rights of [Mother] pursuant
to 23 Pa.C.S.A. § 2511(a)(8)?
3. Whether the trial court erred and/or abused its
discretion in concluding that [Appellant] did not meet
its burden of proof of clear and convincing evidence to
terminate the parental rights of [Mother] pursuant to
23 Pa.C.S.A. § 2511(b)?
Appellant’s Brief at 4.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
____________________________________________
5 On October 1, 2019, Appellant filed a concise statement of errors complained
of on appeal with its notice of appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The
trial court subsequently filed its Rule 1925(a) opinion on November 8, 2019.
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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 observations of the parties spanning
multiple hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “[T]he trial court is free to believe
all, part, or none of the evidence presented, and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re Q.R.D.,
214 A.3d 233, 239 (Pa. Super. 2019) (citation omitted). “If competent
evidence supports the trial court’s findings, we will affirm even if the record
could also support the opposite result.” In re B.J.Z., 207 A.3d 914, 921
(Pa. Super. 2019) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the [trial]
court must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the parent.
The party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the [trial]
court determines that the parent’s conduct warrants termination
of his or her parental rights does the [trial] 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
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standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re B.J.Z., 207 A.3d at 921 (citation omitted, emphasis added). We have
defined clear and convincing 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.” In re
Z.P., 994 A.2d 1108, 1116 (Pa. Super. 2010) (citation omitted).
Here, while the trial court found Appellant failed to provide clear and
convincing evidence to prove any of the grounds for termination of parental
rights under Section 2511(a), Appellant appeals only the trial court’s
determination under Sections 2511(a)(5) and (a)(8). Appellant’s Rule
1925(b) Statement, 10/1/19; see also Appellant’s Brief at 4. Therefore,
Appellant waives any claims under the remaining subsections of Section
2511(a). In re L.V., 209 A.3d 399, 413 (Pa. Super. 2019) (stating, failure to
preserve issue in Rule 1925(b) statement or statement of questions presented
in brief results in waiver of issue).
Sections 2511(a)(5), (a)(8), and (b), provide 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:
...
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
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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(a)(5), (a)(8), and (b).
This Court, in discussing the grounds for termination of parental rights
under Sections 2511(a)(5) and (a)(8), stated,
Termination of parental rights under Section 2511(a)(5) requires
that: (1) the child has been removed from parental care for at
least six months; (2) the conditions which led to removal and
placement of the child continue to exist; and (3) termination of
parental rights would best serve the needs and welfare of the
child. 23 Pa.C.S.A. § 2511(a)(5). “To terminate parental rights
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pursuant to 23 Pa.C.S.A. § 2511(a)(8), the following factors must
be demonstrated: (1) the 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 1266, 1275–[12]76 (Pa. Super. 2003); 23
Pa.C.S.A. § 2511(a)(8). “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 court must next determine whether the conditions
that led to the child's removal continue to exist, despite the
reasonable good faith efforts of [Children & Youth Services
(“CYS”)] supplied over a realistic time period. Id. Termination
under Section 2511(a)(8) does not require the court to evaluate
a parent's current willingness or ability to remedy the conditions
that initially caused placement or the availability or efficacy of
[CYS] services. In re Adoption of T.B.B., 835 A.2d 387, 396
(Pa. Super. 2003); In re Adoption of M.E.P., supra.
In re Z.P., 994 A.2d at 1118 (original brackets omitted).
Under Section 2511(a)(8), in determining whether the conditions that
led to removal and placement continue to exist, “[t]he relevant inquiry in this
regard is whether the conditions that led to removal have been remedied and
thus whether reunification of parent and child is imminent at the time of the
hearing.” In re I.E.P., 87 A.3d 340, 345 (Pa. Super. 2014) (citation and
original quotation marks omitted).
The application of Section [2511](a)(8) may seem harsh when the
parent has begun to make progress toward resolving the problems
that had led to removal of her children. By allowing for
termination when the conditions that led to removal continue to
exist after a year, the statute implicitly recognizes that a child's
life cannot be held in abeyance while the parent is unable to
perform the actions necessary to assume parenting
responsibilities. This Court cannot and will not subordinate
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indefinitely a child's need for permanence and stability to a
parent's claims of progress and hope for the future.
Id. at 345-346 (citation and original brackets omitted).
With respect to the “needs and welfare” analysis pertinent to
[Sections] 2511(a)(8) and (b), we have observed:
Initially, the focus in terminating parental rights is on the
parent, under Section 2511(a), whereas the focus in Section
2511(b) is on the child. However, Section 2511(a)(8)
explicitly requires an evaluation of the “needs and welfare
of the child” prior to proceeding to Section 2511(b), which
focuses on the “developmental, physical and emotional
needs and welfare of the child.” Thus, the analysis under
Section 2511(a)(8) accounts for the needs of the child in
addition to the behavior of the parent. Moreover, only if a
court determines that the parent's conduct warrants
termination of his or her parental rights, pursuant to Section
2511(a), does a 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 of best
interests of the child.” Accordingly, while both Section
2511(a)(8) and Section 2511(b) direct us to evaluate the
“needs and welfare of the child,” we are required to resolve
the analysis relative to Section 2511(a)(8), prior to
addressing the “needs and welfare” of the child, as
proscribed by Section 2511(b); as such, they are distinct in
that we must address Section 2511(a) before reaching
Section 2511(b).
Id. at 346 (citation and original brackets omitted, quotation marks in original,
emphasis added).
Statutory and case law contemplates that either reunification or
adoption for a child occur within 18 months of removal and placement. In re
I.J., 972 A.2d 5, 12 (Pa. Super. 2009) (citation omitted). A parent’s
affirmative duty to meet the needs of a child “encompasses more than a
financial obligation; it requires continuing interest in the child and a genuine
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effort to maintain communication and association with the child. Because a
child needs more than a benefactor, parental duty requires that a parent exert
himself [or herself] to take and maintain a place of importance in the child's
life.” In re Z.P., 994 A.2d at 1119 (citation omitted).
Here, the record demonstrates that the specific incidents necessitating
the removal and placement of C.B. were allegations of child abuse stemming
from Father’s admitted shaking of C.B. and both parents’ failure to seek
immediate medical attention for C.B. Appellant’s Petition, 11/14/18, at ¶6(c);
see also Appellant’s Application for Emergency Protective Custody, 7/11/17,
at 3 (stating, “[d]ue to the doctor’s suspicion of child abuse, [C.B.] could not
ret[ur]n to her parents”), Trial Court Opinion, 11/8/19, at 2 (stating, “[i]n
support of [its petition, Appellant] averred, amongst other things, the details
of the facts that gave rise to the criminal charges against parents and the fact
that those charges remained pending [at the time the petition was filed]”).
The allegations of child abuse ultimately led to criminal charges being filed
against Mother, which remained pending at the time the petition was filed but
were resolved prior to closure of the evidentiary record.6 Trial Court Opinion,
11/8/19, at 13.
Appellant contends that “when [it] got to the point of [C.B.] being in
placement for 15 months, [Appellant] was compelled to file [a petition].”
____________________________________________
6 The record demonstrates that Mother, as part of her plea agreement, was
sentenced to an aggregate 2 years’ probation and required, among other
things, to comply with all directives of Appellant. N.T., 8/14/19, Petitioner’s
Exhibit 3.
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Appellant’s Brief at 19. Appellant argues that at the time the petition was
filed, Mother had not resolved her criminal case. Id. at 19-20. Appellant also
argues Mother still had contact with Father, did not have independent housing,
only obtained employment after the petition was filed, and had not
participated in a non-offenders treatment program. Id. at 20-21. Appellant
contends Mother failed to remedy the conditions that necessitated removal
and placement of C.B. prior to the filing of the petition, and at the initial
hearing on the petition, C.B. had been in placement for 17 months. Id. at
19-21. Appellant avers it did not start the reunification process prior to filing
the petition because Mother’s bail conditions required fully supervised
visitation and because Appellant’s expert witness, Dr. O’Hara, was unable to
recommend reunification based on Mother’s refusal to discuss anything
relating to the incident that caused C.B.’s injuries. Id. at 19. Appellant
contends it provided clear and convincing evidence that satisfied the
requirements for termination of Mother’s parental rights under Sections
2511(a)(5) and (a)(8) and that Mother “presented no evidence that she can
care for a child with such significant needs.” Id. at 16, 21. C.B., through her
guardian ad litem, joined Appellant’s argument in support of termination of
Mother’s parental rights. C.B.’s Brief at 4.
Mother contends Appellant did not prove the requirements for
termination of her parental rights by clear and convincing evidence but,
rather, supported its petition for termination with evidence based on
speculation and conjecture in an attempt to shift the burden of proof to
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Mother. Mother’s Brief at 1. Mother argues that she complied with Appellant’s
training and treatment requirements, that her housing situation remains a
concern only because Appellant lacks information and has not visited Mother’s
home, that once Mother obtained employment Appellant raised concerns
about how she will provide childcare and continue to work, and that she
resolved her criminal case. Id. at 5-7.
A review of the record demonstrates that 16 months elapsed from the
time C.B. was removed from Mother’s parental care in July 2017 to November
2018 when Appellant filed the petition.7 Therefore, the first requirements of
both Sections 2511(a)(5) and (a)(8) were satisfied.
As to the second requirements under Sections 2511(a)(5) and (a)(8),
Appellant was required to demonstrate by clear and convincing evidence that
the conditions which led to the removal and placement of the child
continued to exist at the time the petition was filed. See In re Z.P., 994 A.2d
at 1118. The analysis of whether the second requirements under Sections
2511(a)(5) and (a)(8) have been satisfied differs only in that Section
2511(a)(5) permits the trial court to consider the parent’s current willingness
and ability, within a reasonable time, to resolve the condition, that led to the
removal and placement of the child, while Section 2511(a)(8) does not permit
such a consideration. Id.
____________________________________________
7We note that when the trial court closed the record in this matter in August
2019, C.B. had been in placement for 25 months.
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Here, the trial court gave “little weight to several of [Appellant’s]
allegations against []Mother.” Trial Court Opinion, 11/8/19, at 9. Specifically,
the trial court found Appellant failed to present credible evidence as to why
Mother’s housing conditions, employment status, or contact with Father, who
was incarcerated for “a lengthy prison term,” supported termination of
Mother’s parental rights. Id. at 9-11. These factors might justify termination
but they are not the factors that led to the removal and placement of C.B. in
the case sub judice. Since these factors did not lead to C.B.’s removal and
placement, we concur in the trial court’s conclusion that they do not support
termination under Sections 2511(a)(5) or (a)(8).
The specific incidents that led to the removal and placement of C.B.
were the allegations of child abuse and Mother’s failure to seek immediate
medical care. In examining whether these specific incidents continued to exist
at the time the petition was filed, the trial court recognized Appellant’s
assertion that the underlying abuse and pending criminal charges, as well as
the fact C.B. had been in placement for 15 months, justified termination of
Mother’s parental rights. Id. at 12. The trial court, however, concluded that
[t]aking [Appellant’s] position to its logical conclusion would mean
that []the [trial c]ourt would have a basis to terminate parental
rights when criminal charges are filed against a parent when those
criminal charges were awaiting disposition at the fifteen month
mark. [The trial c]ourt is aware of no support for that legal
conclusion. Nothing in our statutes indicate that the underlying
abuse or the pendency of charges of this nature alone support the
automatic termination of parental rights.
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Id. at 12. The trial court found that Appellant failed to establish “any
explainable nexus between the fact that the criminal charges remained
pending and the termination of parental rights other than the simple
conclusion that the resolution of the charges have not occurred within a
specified timeframe.” Id. at 13.
Confronted with these unique circumstances,8 we must determine
whether evidence of the pendency of criminal charges, which are the direct
consequence of the specific incidents that led to the removal and placement
of the child, in itself, satisfies the second requirements of either Section
2511(a)(5) or Section 2511(a)(8) when the criminal charges remain pending
at the time the petition is filed.
In addressing this issue, we are guided by this Court’s prior conclusion
that evidence of the “incarceration of a parent does not, in itself, provide
sufficient grounds for termination of parental rights; [the parent] must act
affirmatively, with good faith interest and effort, to maintain the parent-child
____________________________________________
8 Here, what led to the removal and placement of C.B. was specific incidents
of behavior or conduct by Mother that were episodic in nature. These specific
incidents were single occurrences that, while they could not be undone, were
not on-going. The analysis of the second requirement for termination under
either Section 2511(a)(5) or Section 2511(a)(8) is concerned with whether
the conditions, implying a situation that is on-going (i.e. unable to provide
adequate food for child), that led to the removal and placement of the child
continued to exist at the time the petition was filed. Because of Mother’s
pending charges and the concern with Mother’s self-incrimination, Dr. O’Hara
was not able to perform an assessment of Mother. As a result, Dr. O’Hara
was not able to reach a conclusion as to whether her conduct would reoccur
or if she understood the significance of her actions and omissions with regard
to the care of C.B.
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relationship to the best of his or her ability, even in difficult circumstances.”
In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citations
omitted); see also In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en
banc) (stating, “[i]ncarceration alone is not sufficient to support termination
under any subsection [of Section 2511(a)]” (emphasis added, citation
omitted)). We find the pendency of Mother’s criminal charges, which resulted
from allegations of child abuse and the failure to seek immediate medical care,
together with Mother’s restricted visitation with C.B. due to the conditions of
her bail, akin to the circumstances and limitations of an incarcerated parent.
Evidence of a parent’s pending criminal charges, in itself, does not justify
termination of parental rights under either Section 2511(a)(5) or Section
2511(a)(8). In order to satisfy the second requirement of either Section
2511(a)(5) or Section 2511(a)(8), clear and convincing evidence must
demonstrate the parent failed to adequately maintain the parent-child
relationship taking into consideration the unique circumstances of the parent’s
pending criminal charges that were the direct result of the specific incidents
that led to the removal and placement of the child.
Here, the trial court found, and the record supports, that prior to the
filing of the petition
Mother participated in and completed every parenting class and
treatment recommended by [Appellant]. The record established
that []Mother was compliant with drug and alcohol treatment,
completed a Circles of Security Program, and was compliant with
parent education. There was no credible evidence of any
continued drug use and no evidence that []Mother failed to remain
compliant with her visits with [C.B.]. [Appellant] presented no
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explanation for why they did not increase []Mother's visitation
with [C.B.] or activities with the child. While [the trial c]ourt has
general familiarity with the criminal orders that were placed
against []Mother, [Appellant] never made the details of these
[o]rders part of the record of this proceeding. [The trial c]ourt
does not recall any [o]rders that would have prevented
[Appellant] from increasing the periods of contact between
[]Mother and [C.B.] to further ascertain []Mother's abilities. The
criminal [o]rders also did not prevent [Appellant] from moving
forward on any additional services for []Mother that would have
further permitted her to maintain her parental rights. These
[o]rders did not prevent a bonding assessment being done by Dr.
O'Hara or any increased community services that would have
helped maintain the mother/daughter relationship.
Trial Court Opinion, 11/8/19, at 11. In discussing the pendency of the criminal
charges, the trial court stated,
There can be numerous reasons why criminal charges may be
delayed or why a criminal case may take some time to proceed to
trial. There were serious criminal charges pending against
[]Father and []Mother's case was joined with []Father's case.
There were pretrial motions filed and the criminal practitioners
were actively involved in discussions about the timing of trial.
[Appellant] did not present any specific facts to suggest the delay
of the criminal charges should be attributed to []Mother. The
record reveals that []Mother's criminal charges were resolved
prior to [the closure of the] evidentiary record[]. Nonetheless,
[Appellant] did not request any further evaluations or treatment
of []Mother at that point. This is despite the fact that [Appellant’s]
witnesses indicated during the pendency of the [petition] that
other options would be considered (including reunification) if the
criminal charges were resolved [in Mother’s favor. Appellant]
never explained why [its] position changed when the criminal
charges were resolved during the pendency of the [petition] and
prior to the final closing of the record. [Appellant] also never
explained why [it] did not request an additional evaluation with
Dr. O'Hara.
Id. at 13-14.
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There would be a great deal of irony in the law if pending criminal
charges could support the termination of parental rights under Section
2511(a) while actual incarceration (and, obviously, conviction) does not, in
itself, support termination of parental rights. It is not a foreign concept in
Pennsylvania law that certain proceedings should or must be deferred where
criminal charges are pending. See Spanier v. Freeh, 95 A.3d 342, 345
(Pa. Super. 2014) (recognizing trial court’s ability to stay civil proceedings
until criminal charges resolved if appropriate six-factor balancing test
satisfied). It is not our intent to suggest that a child’s life be held in abeyance
while the criminal charges are resolved but, rather, to find that the pendency
of criminal charges, in itself, does not automatically result in termination of
parental rights. Moreover, the adjudication of one’s guilt in charges stemming
from allegations of child abuse is not necessary to assess whether the parent
appreciates the harm caused and understands the wrongfulness of the conduct
or whether there will likely be a reoccurrence of the behavior and conduct.
See Commonwealth v. Brown, 26 A.3d 485, 508 (Pa. Super. 2011)
(holding, “a psychiatrist [is permitted] to presume a juvenile's guilt in
determining amenability to treatment”).
Based upon the record currently before us, the record supports the trial
court’s determination that Mother complied with Appellant’s requirements for
reunification and maintained a relationship with C.B., albeit constrained by
fully supervised visitation, during the pendency of her criminal charges.
Appellant failed to present clear and convincing evidence that Mother’s
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behavior and conduct would reoccur or that she did not understand and take
responsibility for the actions and omissions that led to the pending criminal
charges. While her criminal charges remained pending, Mother acted
affirmatively to adequately maintain the parent-child relationship with C.B,
given her unique circumstances. Therefore, we find no error in the trial court’s
determination that the pendency of the criminal charges, which were not filed
until sometime after the occurrence of the specific incidents that led to the
removal and placement of C.B., did not – by themselves – support
termination. Consequently, Appellant failed to establish grounds justifying
termination of Mother’s parental rights pursuant to either Section 2511(a)(5)
or Section 2511(a)(8).9
____________________________________________
9 The record demonstrates the trial court analyzed the needs and welfare of
C.B. under Section 2511(b)’s best interest of the child standard where the
focus is on the child but did not analyze the needs and welfare of C.B. under
Section 2511(a). The trial court’s failure to perform a needs and welfare
analysis under Section 2511(a), however, constitutes no grounds for
reversible error in the case sub judice because the record supports the trial
court’s conclusion that Appellant failed to present clear and convincing
evidence of the second requirements of the either Section 2511(a)(5) or
Section 2511(a)(8). We remind the trial court that before determining the
needs and welfare of the child under the standard of best interest of the child
pursuant to Section 2511(b), the third requirements of both Sections
2511(a)(5) and (a)(8) require the trial court to evaluate the needs and welfare
of the child with a focus on the parent and the parent’s behavior, taking into
consideration, among other things, the parent-child bond and intangibles such
as love, comfort, security, and stability. See In re I.E.P., 87 A.3d at 346;
see also In re I.J., 972 A.2d at 12.
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Order affirmed without prejudice to Appellant seeking termination of
Mother’s parental rights at a later date where a fuller record could be
developed given the resolution of Mother’s criminal charges.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2020
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