In re M.S.

DISSENTING OPINION BY

DONOHUE, J.:

¶ 17 The learned Majority’s resolution of this case may appear to be more palatable under the facts presented here, but in my view, in order to achieve it, the Majority both ignores the clear statutory mandates of the Pennsylvania Juvenile Act, 42 Pa. C.S.A. § 6301 et seq., and reaches its own findings of fact that lack any support in the record on appeal. Contrary to the Majority’s decision to select the resolution it considers to be the most just, this Court is limited by the applicable statutory language in section 6302 of the Juvenile Act, and it is up to the Pennsylvania Legislature to modify the definition of “aggravat*619ed circumstances” to include conduct by a co-habitating sibling (or other third party), or to otherwise provide trial courts with the option of establishing adoption as the initial permanency goal even in the absence of aggravated circumstances, if it so chooses. Because I believe the Majority has clearly overstepped its bounds, I respectfully dissent.

¶ 18 In 1997, Congress enacted the Adoption and Safe Families Act (“ASFA”), 42 U.S.C. §§ 671 et seq., to improve the lives of child in foster care. As a general matter, the ASFA encourages states to promote the reunification of foster care children with their families when possible:

(B) [E]xeept as provided in subpara-graph (D), reasonable efforts shall be made to preserve and reunify families—
(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and
(ii) to make it possible for a child to safely return to the child’s home[.]

42 U.S.C. 671(a)(15)(B).

¶ 19 An exception to the goal of reunification is in circumstances where there are “aggravated circumstances” in the home, including abandonment, torture, and/or chronic or sexual abuse:

(D) reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that—
(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse)[.]

42 U.S.C. 671(a)(15)(D)(i).

¶ 20 Due to the requirements of the ASFA, and to obtain vital federal funding to assist with the care of foster children, in 1998 our Legislature amended the Pennsylvania Juvenile Act. In re C.B., 861 A.2d 287, 295 (Pa.Super.2004), appeal denied, 582 Pa. 692, 871 A.2d 187 (2005); In re Adoption of A.M.B., 812 A.2d 659 (Pa.Super.2002). Like the ASFA, the Juvenile Act now provides that the focus will be on reunifying families “whenever possible”:

(b) Purposes. — This chapter shall be interpreted and construed to effectuate the following purposes:
(1) To preserve the unity of the family whenever possible or to provide another alternative permanent family when the unity of the family cannot be maintained.

42 Pa.C.S. § 6801(b)(1). Consistent with the ASFA, where a trial court finds the existence of aggravated circumstances, it must make an initial determination as to whether all efforts at family reunification should cease immediately:

(c.l) Aggravated circumstances. — If the county agency or the child’s attorney alleges the existence of aggravated circumstances and the court determines that the child is dependent, the court shall also determine if aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made and schedule a dispositional hearing as required by section 6351(e)(3) (relating to disposition of dependent child).

*62042 Pa.C.S.A. § 6341(c.l). Under the Juvenile Act, the primary goals for children in foster care are “safety, permanency and well-being,” In re R.T., 778 A.2d 670, 678 (Pa.Super.2001) (quoting In Interest of Lilley, 719 A.2d 327, 334 n. 5 (Pa.Super.1998)), appeal denied, 568 Pa. 618, 792 A.2d 1254 (2001), and thus where aggravated circumstances exist courts must not place an “inappropriate focus on protecting the rights of parents.” C.B., 861 A.2d at 295.

¶ 21 Turning to the facts of this case, ECOCY did not plead the existence of aggravated circumstances in its dependency petition for M.S. Moreover, in its written opinion, the trial court did not make a factual finding that aggravated circumstances exist with respect to M.S. Nor could it. Section 6302 of the Juvenile Act defines “aggravated circumstances” in relevant part as a situation in which “[t]he child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent.” 42 Pa.C.S.A. § 6302 (emphasis added). While all parties agree that M.S. has been the victim of sexual violence,1 there is no evidence that the sexual violence was perpetrated by a parent. The Juvenile Act does not define sexual violence by siblings to constitute aggravated circumstances.

¶ 22 This lack of aggravated circumstances is significant. While section 6341(c.l), quoted above, permits the trial court to consider the immediate termination of attempts at reunification between a child in foster care and her family when aggravated circumstances are found to exist, the Juvenile Act contains no similar authorization in the absence of aggravated circumstances. Instead, after a child has been adjudicated dependent and removed from the home, the Juvenile Act provides only that the trial court must conduct a permanency hearing within six months of the removal “for the purpose of determining or reviewing the permanency plan of the child, the date by which the goal of permanency for the child might be achieved and whether placement continues to be best suited to the safety, protection and physical, mental and moral welfare of the child.” 42 Pa.C.S.A. § 6351(e)(1). From this text, it is clear that at the first permanency hearing, the trial court must determine whether an initial permanency goal has been established. If no permanency goal has previously been established, then the trial court must establish one.

¶ 23 In contrast with section 6341(c.l), the Juvenile Act contains no provision authorizing a trial court to consider the immediate termination of efforts at family reunification in the absence of aggravated circumstances. By setting the initial permanency goal at adoption, however, this is precisely what the trial court did in this case. As this Court has recognized, once a trial court sets the permanency goal at adoption, the local child welfare agency has no further obligation to provide the parents with any services to assist with possible reunification. S.B., 943 A.2d at 978; see also In re N.W., 859 A.2d 501, 509 (Pa.Super.2004) (holding that a trial court’s decision to change the goal to adoption “allows CYS to give up on the parents”).2

*621¶ 24 Setting the initial goal at adoption in this case would allow ECOCY to “give up” on Appellant R.S. (“Mother”) before providing her with any services or making any attempts at reunification, a result not sanctioned either by the ASFA or the Juvenile Act. This Court has repeatedly held that the Commonwealth is required to make reasonable efforts to promote reunification between a child and her parents. See, e.g., In re I.J., 972 A.2d 5 (Pa.Super.2009); In re: Adoption of R.J.S., 901 A.2d 502, 507 (Pa.Super.2006). Here, as a matter of law, the ECOCY should be required to make reasonable efforts to reunite M.S. with her Mother before petitioning the trial court to change the permanency goal to adoption and/or filing a petition to terminate Mother’s parental rights.

¶ 25 The Majority describes this statutory analysis as “myopic” and contends that nothing prevented the trial court from setting the initial permanency goal as adoption.3 In this regard, however, the Majority does not reference any provision of the ASFA or the Juvenile Act in support of this position. The Majority instead states merely that it “does not read the [ASFA] and the [Juvenile Act] so narrowly as to turn a blind eye to the realities of this case”, Majority Opinion at 5, without making reference to any provision of either the ASFA and/or the Juvenile Act that permits a trial court to ignore the fundamental goal of family reunification in favor of immediate adoption in the absence of aggravated circumstances. The Majority likewise cites to no prior decision of any Pennsylvania appellate court, as it does not appear that either our Supreme Court or this Court has ever held that a trial court may establish the initial permanency goal at adoption in the absence of aggravated circumstances.

¶ 26 I likewise take issue with the Majority’s conclusion that “[i]n the case of the ASFA, the presence of ‘aggravated circumstances’ sufficient to justify termination of parental rights merely requires that, ‘the parent has subjected the child to aggravated circumstances [such] as [... ] sexual abuse [...].’ 42 U.S.C. § 671(a)(15)(D)(i). It is beyond cavil that [Mother] ‘has subjected’ M.S. to sexual abuse by failing to supervise her sons,....” Majority Opinion at 616.

¶ 27 First, section 671 of the ASFA does not involve the termination of parental rights. Instead, section 671 sets forth specific requirements with which states must comply in connection with the placement of children in foster care — including the obligation to make reasonable efforts at family reunification in the absence of aggravated circumstances. See 42 U.S.C. 671(a)(15)(B) & (D) (quoted hereinabove). Termination of parental rights is not at *622issue in this appeal, as this case instead involves only ECOCY’s request to establish M.S.’s initial permanency goal at adoption while she is in foster care.

¶ 28 Second, the Majority’s suggestion that section 671(a)(15)(D)(i) of the ASFA contains a definition of “aggravated circumstances” that may be applied in this case lacks any proper basis. Removing the ellipses in the Majority’s abbreviated quotation, section 671(a)(15)(D)(i) provides that no attempts at reunification are necessary if “the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse)”. 42 U.S.C. § 671(a)(15)(D)(i) (emphasis added). As such, the ASFA does not contain a definition of “aggravated circumstances,” instead deferring to state law to provide one. Pennsylvania’s definition of the term does not contain the “has subjected” language relied upon so heavily by the Majority, and instead, as explained hereinabove, expressly limits “aggravated circumstances” resulting from sexual abuse to acts committed “by a parent.” The Majority admits that in this case there are no aggravated circumstances attributable to Mother in the form of sexual abuse of M.S. Majority Opinion at 614-15.

¶ 29 Third, not only is it not “beyond cavil” that Mother has subjected M.S. to sexual abuse by failing to supervise her sons, there is little evidence of record to support such a factual finding. The trial court made no finding of fact that Mother was aware that the siblings were sexually abusing M.S., or that any of her actions vis-á-vis M.S. amounted to aggravated physical neglect. As such, the only relevant evidence in this regard was the trial court’s reference to an allegation by one of the brothers that Mother was aware of the sexual abuse. Trial Court Memorandum at 1. None of the brothers testified at the adjudicatory hearing, however, and it is unclear when the statement was made or whether it was made under oath. In any event, neither the master at the adjudicatory hearing nor the trial court ever ruled on the credibility of this allegation. To the contrary, neither the master nor the trial court found that Mother’s decision to leave M.S. in the care of her 15 year-old brother while she was at work amounted to aggravated physical neglect.

¶ 30 Based upon the record on appeal, I do not disagree with the Majority that the chances for reunification between Mother and M.S. are very slight, and that the foremost concern here is the permanency arrangement that best suits M.S.’s emotional and physical well-being. Trial Court Memorandum, 9/29/08, at 4. However, in light of the absence of “aggravated circumstances” as defined under the Juvenile Act and the otherwise pervasive statutory scheme under the Juvenile Act to promote family reunification, I conclude that it was error for the trial court to establish the initial permanency goal in this case at adoption, thus relieving ECOCY of the obligation to provide any services to Mother to promote reunification between parent and child.4 As a result, I would reverse the trial court’s decision and remand with instructions that the initial permanency goal for M.S. be set at reunification. This permanency goal could then be changed to adoption if and when the trial court determines that ECOCY “has provided adequate services to the parent but that he/ she is nonetheless incapable of caring for the child.” S.B., 943 A.2d at 978; In re A.L.D., 797 A.2d 326, 339 (Pa.Super.2002).

¶ 31 It is the function of this Court to determine the legislative intent of an en*623actment and give effect to that intention. Commonwealth v. Reefer, 816 A.2d 1136, 1141 (Pa.Super.), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003); Commonwealth v. Campbell, 758 A.2d 1231, 1233-34 (Pa.Super.2000). In this regard, the Pennsylvania Legislature has limited the definition of “aggravated circumstances” in 42 Pa.C.S.A. § 6302 to acts of sexual violence perpetrated by the parents, and has required a finding of “aggravated circumstances” before establishing an initial permanency goal at adoption. It is not this Court’s role to substitute our judgment for that of the Pennsylvania Legislature, and because in my view the Majority has done so, I respectfully dissent.

. Per section 6302, rape and incest are types of "sexual violence,” and sexual violence by a parent constitutes an aggravated circumstance.

. Contrary to the Majority’s contention that Mother "espouse[s] the position that setting the initial goal at adoption in this case would allow ECOCY to 'give up’ on her before providing any services or attempts at reunification,” Majority Opinion at 618, this position *621te: “giving up”) is one that has repeatedly and without exception espoused by this Court in precisely this circumstance (setting the goal at adoption). See, e.g., S.B., 943 A.2d at 978; In re N.W., 859 A.2d 501, 509.

. The Majority argues that "the initial permanency goal for M.S. need not be set at reunification, especially since ECOCY has provided any and all reasonable services toward this end without success.” Majority Opinion at 614-15. The record on appeal, however, is devoid of any support for such an assertion. To the contrary, the record is clear that ECO-CY took M.S. into custody immediately after the allegations of sexual abuse by the brother came to light, arguing successfully at the initial detention hearing that the lack of any reunification services prior to removal from the home was justified under the facts presented. There is likewise no evidence that ECOCY provided any reunification services after M.S.'s removal. In light of the trial court’s establishment of the initial permanency goal at adoption, ECOCY now has no legal obligation to provide any such services to Mother.

. We note that it is also M.S.’s stated desire to be reunited with her Mother if possible.