In re A.R.M.F.

CAVANAUGH, J„

Dissenting.

¶ 11 dissent.

¶ 2 The majority affirms because it finds that sufficient competent evidence was presented under the clear and convincing standard to support the trial court’s conclusion. I disagree. I would find that the evidence offered in support of termination fell far short of the clear and convincing standard.

¶ 3 It appears to me that the trial court terminated appellants’ parental rights because it found that they showed a pattern of poor judgment which might, in the future, result in some indeterminate harm to the children. No prior event of serious harm was shown. Although parents suffer from intellectual deficits, it was essentially undisputed that the children had not suffered abuse or neglect as a consequence. Further, I would conclude that whatever the perceived deficiencies of appellants’ abilities to diligently parent their children might be, evidence of parents’ willingness to remediate those deficiencies was shown. Part of the court’s rationale for termination was its conclusion that appellants refused to participate in, or to be capable of benefiting from, services such as counseling and supervision provided by the social service agencies charged with preserving the family unit. In my view, the evidence presented at trial did not clearly and convincingly support that conclusion at all. Rather, I believe the evidence showed that the parents have consistently permitted social service workers to provide countless hours of in-home services and counseling and that the parents and children have, in fact, benefited therefrom. Thus, I dissent. I would reverse the orders which terminated appellants’ parental rights.

¶ 4 In reviewing an order involving termination of parental rights, our scope of review is broad, and all the evidence as *1241well as the hearing court’s factual and legal determinations will be considered. In re N.C., 763 A.2d 913, 917 (Pa.Super.2000).

In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The standard of clear and convincing evidence is defined as testimony that is so “clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.” It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.

In re Julissa O., 746 A.2d 1137, 1139 (Pa.Super.2000) (quoting In re Adoption of Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994)) (citations omitted).

¶ 5 The facts, as gleaned from my review of the record, show that mother suffers from cerebral palsy which causes her, among other things, to walk somewhat unsteadily and speak somewhat unclearly. Mother has a full-scale I.Q. of 73, as measured on the Wechsler Scale, which places her in the “borderline intellectual functioning” category of normal intelligence, ie., mother is of low-normal intelligence, a category which is sometimes referred to as “borderline” mentally retarded. Father has an I.Q. of 64, measured via the same test-scale instrument, which places him in the “mild” range of mental retardation.

¶ 6 Father and mother apparently came to the attention of local social service providers in 1997, prior to the birth of A.R.M.F.1 Among other things, mother received in-home prenatal and postnatal counseling and training from nurses provided by the Bucks County Department of Health’s maternal care outreach program. The training sessions, which included unannounced visits, occurred at least biweekly and continued for more than two years. The evidence showed, as per the testimony of visiting nurse Joan Linus, that the children were adequately cared for by parents during that period. Although the home was untidy or cluttered at times, Nurse Linus testified that both A.R.M.F. and M.B.F. were adequately clothed and fed, that the children were healthy, received regularly medical care and that there were no issues regarding lack of hygiene, sanitation or safety in the home.

¶ 7 Nonetheless, in April of 1999, Bucks County Children and Youth Social Services Agency (CYS) began providing “general protective services” for the family. Apparently, neighbors had reported that the children were sometimes unattended and that the family home was filthy. Deborah Heagy, a CYS caseworker assigned to the family in January, 2000, testified that protective services had begun the previous April because mother and father “demonstrated serious lapses in judgment in parenting abilities. Concerns exist[ed] regarding supervision and housekeeping.”

¶ 8 On November 4, 1999, CYS filed a petition to adjudicate the children dependent. The petition specifically alleged that:

the condition of the [family] home is inappropriate and unsafe for young children .... Examples of this include cat feces on the floor, dangerous items such as pieces of broken furniture and stereo *1242equipment precariously resting throughout the home and trash littered on the floors.
On several occasions, in-home workers have witnessed medicine on the counters, laundry detergents and . cleaning solvents on the floor and in easy reach of the two-year [old] toddler.
Concerns also exist regarding supervision. Reports have been received to this Agency, that the toddler frequently gets outside without her parents knowledge. This is particularly alarming, as the home is located on a busy highway.

¶ 9 On November 5, 1999, the subject children were adjudicated dependent and placed into the temporary custody of CYS. From that date forward, mother and father received at least thirty hours per week of in-home services and they attended numerous hours of counseling sessions, both individually and as a couple. The children were placed together in a foster home in January of 2000, where they have resided since.

¶ 10 Mother and father steadfastly maintained regular weekly visits with the children. Most of the visits took place in the family home and were supervised by social workers from both Ken-Crest Personal Support Services and Lutheran Children & Family Services. Six-month reviews were conducted by the court. The reviews in April of 2000 and in October of 2000 revealed that parents were making satisfactory progress toward the goal of family reunification.

¶ 11 In November of 2000, mother was reportedly arrested for endangering the welfare of a child following an incident in her home in which she scraped father’s visiting teenage son from a previous marriage on the forehead with a fork.2 The charges were dropped shortly thereafter and a subsequent child protective services investigation reported that the incident was unfounded. Nonetheless, in February of 2001, CYS petitioned to change the placement goal from reunification to adoption and in May, 2001, CYS petitioned to involuntarily terminate the parental rights of mother and father.

¶ 12 Evidentiary hearings on the involuntary termination petition were conducted on July 23rd and September 23rd of 2001 and on January 14th, April 15th and November 25th of 2002. CYS presented the testimony of psychologist Joseph Schaller, Lutheran C & FS social worker Kevin Nash and CYS caseworker Ms. Hea-gy. Parents presented the testimony of licensed registered nurse Ann Gordon, Ken-Crest personal support coordinator Barbara Jolly, Ken-Crest personal support worker Shannon Dunsmore, parents’ neighbor Carolyn Scott, nurse Joan Linus and psychologist John E. Thvedt. Mother and father testified themselves as well.

¶ 13 Dr. Schaller, who evaluated mother and father for CYS, testified that mother, although “anxious” about the “evaluation situation” was nonetheless “pleasant [and] cooperative.” He testified that “she seemed very concerned about her children and distraught that she was separated from them.” He testified that his “primary concern” regarding mother’s parenting ability was her diminished cognitive ability:

[CYS’ counsel] Q. What did you observe that could potentially limit [mother’s] ability to parent?
A. I think my primary concern was that there certainly was some limitation in cognitive functioning which would result in the kind of diminished flexibility *1243and diminished capacity to deal with more complex and unstructured situations. My concern with [mother] has to do with the fact that her internal resources were somewhat limited.
Q. What do you mean by “internal resources?”
A. Her cognitive ability, just her available knowledge of the world and how things worked in a more practical level, and her capacity to maintain certain emotional control and emotional stability. These are the kinds of internal resources I had questions about.

¶ 14 Dr. Schaller testified that father has an “engaging personality, he can be quite friendly, he articulates well — in other words, he can use language well, and he also, you know, presents himself I think as having a number of skills.” Given father’s objective cognitive deficits, however, Dr. Schaller concluded that that father “appears to be more capable than he may actually be.”

¶ 15 Ultimately, Dr. Schaller concluded, with respect to both parents’ ability to successfully parent the subject children:

Q. What is your conclusion, sir, as to their ability and capacity to physically care and provide parental care for their children?
A. It was my impression that their ability and their capacity was extremely limited by the things that you have reviewed, some of the internal difficulties [cognitive and/or emotional deficits] and the lack of external supports [family help and/or provider agency services], that only under fairly optimal situations did I view them as being capable of being successful in meeting the needs of these two children.
Q. And as the case was presented to you, did those optimal situations exist?
A. Apparently not.

¶ 16 Mr. Nash testified for CYS that he had spent many hours, approximately thirty 90 minute sessions, observing the conditions of the parents’ home and their interactions with the subject children during weekly supervised visits. He testified that the “home was mostly in order, pretty much clean.” He testified to “occasional things” which required remediation, such as “a bleach bottle in the bathroom that they had to put away, and most of those recommendations were heeded.” There was also a period of time when the home was cluttered with boxes and bags of clothing, but those were eventually removed. He testified that during one visit, a pointy drawing tool, either a protractor or compass, was removed from a box of crayons, and that a continuing issue of cat-box odor and cat-feces on the floor had been resolved. He testified to finding an unopened sample package of Tylenol in the possession of one of the children during a visit. He testified that on one visit, the elder of the girls fell out of a swing while mother was supervising. Apparently mother had been swinging the child but lost her grip and the child fell down. He testified that as a result, mother “was very upset, felt very badly, wanted me to understand she didn’t do that on purpose. I told her I understood. She was very remorseful.”

¶ 17 Mr. Nash’s direct testimony concluded as follows:

Q. Mr. Nash, from all the visits that you supervised and as a result of your observations, do you have some concerns for the children?
A. Yes.
Q. What are those concerns, sir?
A. My concerns mostly surround the consistent display of poor judgment by the parents. There are obviously some safety concerns that stem from the poor judgment, supervision concerns stem from that poor judgment.

*1244¶ 18 Ms. Heagy testified for CYS to substantially the same events. She added that there have been times when mother and father argue and that father sometimes leaves the home for indeterminate periods of time following arguments with mother. This was of concern to her because “I believe that they [parents] have shown some poor judgment in their parenting, and I think they need to rely on one another to help them be stronger as a unit.” Ms. Heagy testified that she has told both parents that “in order to get their kids back ... I have emphasized counseling, I have emphasized showing good judgment, demonstrating good judgment in the supervision of the children. Those are the things I have emphasized most.”

¶ 19 Mother and father both testified that their occasional arguments primarily revolve around blaming each other for the fact that the children were removed from the home. It was shown that mother and father received couples counseling from June through September of 2000. They received family counseling from January through May of 2001. Mother had individual counseling from November of 1999 through September of 2000, which terminated only when the therapist she was seeing left the provider agency. Mother and father received a certificate of achievement presented by The Parenting Resource and Education Network of Lakeside Youth Service dated January 17, 2000, for completing 16 sessions of parenting education.

¶ 20 LRN Ann Gordon testified for mother and father that she has been in their home on “numerous occasions,” encompassing approximately 100 visits, beginning in February of 2001, prior to the birth of their third child. The subject children were present at perhaps six of those visits. Nurse Gordon’s opinion was that mother had more than enough ability to properly attend to the needs of all of her children. She also testified that father, who was present during perhaps 30 of the 100 visits3, is “very good with the children.” When asked on cross-examination about mother’s intellectual deficits, Nurse Gordon testified that they are insignificant and that mother is “very high functioning with her handicap.”

¶ 21 Barbara Jolly, a Ken-Crest support services provider testified for mother and father as well. Ms. Jolly testified that mother does have some “mild cognitive limitations” which do not interfere with her ability to manage her activities of daily living:

... [Mother] manages all of her financial affairs. She keeps a checkbook. She does banking. She pays bills. She needs no help with that. So, certainly she has the judgment^] I think that proves a certain level of judgment that a lot of people that I work with who receive our services do not have.
Q. [by CYS’ counsel] Okay. What about her other daily needs, does she have limitations in that respect?
A. Well, I mean, [mother] takes care of all of her personal hygiene. She shops for her own clothing. She shops for food for the household, she provides meals for everyone in the household, and they may not be a gourmet level but she provides meals and she does have in the house the things she needs for them.

¶ 22 Ms. Jolly additionally prepared a two-page report in February of 2001, which was admitted into evidence and which detailed the numerous services, including counseling, that parents are receiving and from which they ar^ benefiting. *1245She noted the large number of visits that parents have had with the subject children which either she or her staff have observed. She reported that conditions in the home had steadily improved. She reported that the house was organized, appropriately clean and that any safety hazards had been removed. She noted that mother and father are “getting along very well and are really supporting each other as partners.” The report concluded that “[i]t is my opinion that [mother] possesses the skills and knowledge to provide a safe, healthy home for [M.B.F.] and [A.R.M.F.]. With continued support from Ken-Crest services, I feel she should be re-united with her daughters.”

¶ 23 Nurse Linus, who provided regular, on-going services to parents and the subject children in the family’s home from approximately June of 1997, until January of 2000, testified on direct examination as follows:

Q. Were you aware that the children were going to be removed from the house?
A. No. I learned of it after the fact.
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Q. When you instructed the [parents] as to care or safety, did you have any problem communicating with them?
A. No. A lot of interaction took place between the three of us, because [father] was usually home in the afternoon.
Q. And did they [parents] do what you instructed them to do?
A. Yes.
Q. Did you ever have a feeling that they just weren’t getting what you were telling them to do?
A. No, I didn’t feel that way, no.
Q. Did you feel that the children were neglected?
A. No.
Q. Did you ever feel that they were abused?
A. No.
Q. Did you ever feel that they were improperly supervised?
A. No.

¶24 It was further shown that Nurse Linus and Nurse Gordon were “mandated reporters,” ie., they were required by law to report to CYS any observations of abuse or neglect they might make regarding parents on their caseload. When Nurse Linus was asked why she never made any reports to CYS about the instant parents, she replied, “Because I felt as if the children were being adequately cared for. I felt even though things may not be the neatest, you know, I felt as if they were really working hard to be good parents. I don’t think the kids were ever in any danger.”

¶ 25 The court determined that the petitioning agency had proven by clear and convincing evidence that grounds for termination existed under any of the following three distinct statutory bases:

§ 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:
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(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.
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(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the *1246removal or ¡placement of the child continue to exist, the parent cannot or mil 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.
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(8) The child has been removed from the care of the parent by the court, or under a voluntary agreement with the agency, 12 months have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the children continue to exist and termination of parental rights would best serve the needs and welfare of the child.

23 Pa.C.S.A. §§ 2511(a)(2), (5), (8).

¶ 26 In terminating the parental rights of mother and father, the court opined as follows:

[Father] and [mother] lack the capacity to parent [A.R.M.F] and [M.B.F.]. Their incapacity has threatened the safety of the children. Since the children’s removal from the home the [parents] have been provided with many support services by the Agency. However, they have not availed themselves of the services and corrected their incapacity to parent. Were [A.R.M.F] and [M.B.F.] to be returned to the [parents’] household, the children’s safety would still be at risk. The conditions which led to the Adjudication of Dependency have not been remedied nor will they be. Since the parents refuse to acknowledge the need for services as well as accept the services offered, the parents cannot remedy the conditions which led to the placement within a reasonable period of time.

¶ 27 After careful review, I disagree. Although I realize that the evidence clearly showed that both parents suffer irremediably from intellectual deficits and mother from permanent physical disability, I cannot conclude that the evidence clearly and convincingly showed that the children were abused, neglected or harmed thereby or were caused thereby to be without essential parental care, control or subsistence necessary for their physical or mental well-being. Moreover, although the evidence showed that the cleanliness of the family home has always been inconsistent and that the parents’ attendance at some counseling arrangements outside the home has been spotty at times, there was no evidence that parents offered outright refusal to attend any scheduled training or counseling. Indeed, the record is replete with evidence of training, counseling and services actually attended and beneficially used, although again perhaps not consistently.

¶ 28 I further recognize that the matters involved in this case

are of the utmost importance and seriousness. A parent’s right to raise his child is one of the most basic rights of western civilization. It is so much a part of our cultural tradition that our courts have enshrined it with constitutional protection despite its absence from the document’s text.

In re Adoption of J.J., 366 Pa.Super. 94, 530 A.2d 908, 913 (Pa.Super.1987) (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). This court recently opined:

Almost one-half century ago, this court, per the Honorable Robert Wood-side, eloquently stated that the law should not presume to build a “perfect” home for those unfortunate children whose mothers and fathers are less than perfect parents.
*1247The family is an institution which preceded governments. Its sanctity was universally recognized before judges or statutes or welfare organizations were known to man. The right of a child to a mother and a mother to a child are rights created by natural law. They are rights attributable to the nature of mankind rather than to the enactments of law.
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A child cannot be declared “neglected” merely because his condition might be improved by changing his parents. The welfare of many children might be served by taking them from their homes and placing them in what the officials may consider a better home. But the Juvenile Court Law was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.

In Re Adoption of S.M., 816 A.2d 1117, 1123-24 (Pa.Super.2003) (quoting In Re Rinker, 180 Pa.Super. 143, 117 A.2d 780, 783 (1955)).

¶ 29 To the above list of good intentions I would add that the law does not provide a vehicle to take the children of the functioning mentally retarded who sometimes display poor judgment and give them to presumed insightful persons of normal intelligence. It is to the everlasting credit of our society that we have marshaled resources to provide services to parents who are sometimes less than skilled in the discharge of their parental responsibilities. With the continued provision of these services, there is no reason not to expect that the reason for their existence, ie., preservation of the family unit, may not be achieved.

¶ 30 I would reverse the orders of involuntary termination of parental rights.

. A.R.M.F. was born in July of 1997. Mother and father married in July of 1998. M.B.F. was born in May of 1999.

. Father reportedly has three sons from former unions. Mother and father are the parents of two additional children born to them since the subject children were removed from the home. There are no issues before us concerning the other children.

. Father has been variously employed as a handy-man, mechanic and delivery person, duties which keep him out of the house during many day-time visits. ,