J-S50045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: T.M.W.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: K.R., NATURAL MOTHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 902 WDA 2019

                  Appeal from the Order Entered May 10, 2019
      In the Court of Common Pleas of Clearfield County Orphans' Court at
                             No(s): No. 3438-2017

    IN RE: K.W.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: K.R., NATURAL MOTHER            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 903 WDA 2019

                  Appeal from the Order Entered May 10, 2019
      In the Court of Common Pleas of Clearfield County Orphans' Court at
                               No(s): 3439-2017


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED OCTOBER 11, 2019

        Appellant, K.R. (Mother), appeals from the orders entered May 10, 2019

that involuntarily terminated her parental rights to her children, T.M.W., born

2010, and K.W., born 2013 (collectively, Children), pursuant to the Adoption

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Act.1 We vacate both orders and remand for further proceedings consistent

with this decision.

        This Court previously summarized the history of this matter as follows:

        Mother has a lengthy history of involvement with Clearfield County
        Children, Youth and Family Services (the Agency) dating back to
        2000. N.T., 1/5/2018, at 48. The Agency became involved with
        Mother most recently due to truancy issues involving Children’s
        older sister, N.H., and due to poor living conditions in the family’s
        home. Id. at 58, 62. On February 10, 2016, Mother tested
        positive for amphetamines and methamphetamines. Id. She
        signed a voluntary placement agreement on February 11, 2016,
        and Children have remained in foster care since that time. Id. at
        58-60. The juvenile court adjudicated Children dependent on
        March 9, 2016, and changed their permanent placement goals
        from reunification to adoption on August 19, 2016. Id. at 59-61.

        On September 20, 2017, the Agency filed petitions to terminate
        Mother’s parental rights to Children involuntarily. The orphans’
        court conducted a hearing on January 5, 2018, during which both
        Children were represented by legal counsel, Joshua S. Maines,
        Esquire, and a guardian ad litem, Daniel C. Bell, Esquire.

In re T.M.W., No. 397 WDA 2018, unpublished memorandum at 1-2 (Pa.

Super. filed Sept. 6, 2018). Following the hearing, the orphans’ court entered

an order on February 12, 2018 terminating Mother’s parental rights to

Children. In its opinion in support of that order, the orphans’ court concluded

that grounds for the termination of Mother’s parental rights over Children exist

under Section 2511(a) (1), (2), (5), and (8) and Section 2511(b) of the

Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), (b).        Orphans’ Court

Opinion, 3/14/18, at 6-11.


____________________________________________


1   23 Pa.C.S. §§ 2101-2938.

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        Mother filed a timely appeal of the February 12, 2018 order.     In its

September 6, 2018 memorandum decision, this Court vacated the order of

February 12, 2018. T.M.W., No. 397 WDA 2018, unpublished memorandum

at 1.

        We first raised sua sponte the issue of whether Attorney Maines,

Children’s appointed legal counsel, adequately represented their interests in

the termination proceeding.2 Concluding that the record did not reveal any

evidence that Attorney Maines had attempted to ascertain Children’s preferred

outcomes regarding the potential termination of Mother’s parental rights or

advise the orphans’ court of Children’s preferences, we remanded for Attorney

Maines to interview Children, determine their preferred outcomes, and then

communicate this information to the orphans’ court. Id. at 5-7, 10-11.

        In addition, this Court found that “the [A]gency failed to set forth

evidence bearing on all of the needs and welfare factors, resulting in an

erroneous needs and welfare analysis by the orphans’ court.” Id. at 10. In

particular, this Court noted that the only evidence presented by the Agency

concerning Children’s relationship with Mother was the testimony of an Agency


____________________________________________


2  We based our authority to raise the adequacy of Children’s legal
representation sua sponte on In re Adoption of T.M.L.M., 184 A.3d 585 (Pa.
Super. 2018). In In re Adoption of K.M.G., ___ A.3d ___, 2019 PA Super
281 (filed Sept. 13, 2019) (en banc), an en banc panel of this Court overruled
T.M.L.M., holding “that the Superior Court only has the authority to raise sua
sponte the issue of whether the lower court appointed any counsel for the
child, and not the authority to delve into the quality of the representation.”
Id. at *5 (emphasis in original).

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caseworker that, during supervised visits occurring between April 2016 and

February 2017, Mother was “more of a friend to [C]hildren than a parent” and

that Children’s behavior deteriorated considerably during the period when the

visitation was permitted. Id. at 8-9 (citing N.T., 1/5/18, at 67-68, 70). The

Agency also presented the testimony of a Children’s Aid Society employee who

stated that Mother would not engage with Children during these visits until

they approached her first. Id. at 9 (citing N.T., 1/5/18, at 105). We likewise

found the orphans’ court’s Section 2511(b) analysis deficient because the

court did not include any discussion in its opinion regarding whether Children

have a bond with Mother, the nature of that bond, or the effect on Children of

severing the bond. Id. at 9-10.

      Accordingly, we concluded that remand was also necessary to comply

with Section 2511(b), stating that, on remand, “the Agency must present

evidence addressing whether Children have a bond with Mother, the nature of

that bond, and what effect severing that bond may have on Children.” Id. at

12.   In addition, we directed the orphans’ court to “conduct a proper

subsection 2511(b) analysis that includes a discussion all of the applicable

considerations required by the statute and case law before granting or denying

termination.” Id.




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       The orphans’ court conducted a remand hearing on March 27, 2019.3 At

the hearing, Attorney Maines testified that he met separately on three or four

occasions with T.M.W., who was nearly nine years old at the date of the second

hearing, and K.W., who had recently turned six years old, to discuss their

preferred outcomes. N.T., 3/27/19, at 5-6, 10. Attorney Maines testified that,

while T.M.W., as the older child, expressed his desires in clearer terms, each

child advised him that they knew who Mother was and they missed her, but

they stated that they want to be with their respective foster parents and did

not want Mother to be their parent anymore. Id. at 5-8.

       Regarding the needs and welfare analysis of Section 2511(b), the

Agency presented the testimony of Dr. Allen Ryen, an expert in child

psychology, with a practice of over 40 years. N.T., 3/27/19, at 13-14. Dr.

Ryen testified that, based on the fact that it had been over three years since

their removal from Mother and the young age at the date of removal, they

would at most have an insecure bond with Mother. Id. at 15, 19, 21. Dr.

Ryen stated that he was more concerned with the prospect of disturbing the

“presumably secured bonds” that Children had with their foster parents, and

he “would assume [that Children’s] needs are being met by the foster parents

or they wouldn’t be foster parents.” Id. at 15-16.



____________________________________________


3 Subsequent to the remand, the orphans’ court entered orders on September
13, 2018 terminating the parental rights of Children’s natural father pursuant
to his voluntary consent.

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     However, Dr. Ryen did not perform a bonding assessment or meet with

Children, the foster families, or Mother, and he instead based his testimony

on information in a “very brief summary” he received from the Agency’s

counsel and the testimony of Attorney Maines regarding Children’s preferred

outcomes, id. at 14, 16-17, as the following testimony demonstrates:

     Q     And you have not directly met with anybody involved in this
     case; is that correct?

     A     To the best of my awareness, no. . . .

     Q      Dr. Ryen, you would agree with me, and I believe you
     testified to this, that you never met [Mother]; right?

     A     Not to my awareness.

     Q     And you’ve never met the children . . . at issue?

     A     No, I’ve not met the children.

     Q     Now, doctor, did you review the records in this case, or how
     did you become familiar with the facts of the case?

     A     I did not review the records. . . .

     Q     So your opinions today are based on your brief summary
     from the solicitor of children and youth?

     A     Based on that and upon information that I have been
     subjected to this afternoon.

     Q     So it would be safe to say, given you haven’t met with them,
     that you’ve never undergone any type of bonding assessment
     between [Mother] and her children?

     A     Correct.

     Q    So with that being said, short of a bonding assessment, you
     never had the opportunity to observe [Mother] with the children?

     A     True. . . .

     [Q]   So never met them, never had that observation?


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      A     Also true. Yes.

      Q    Without being able to see and observe them, you really can’t
      be sure whether there’s a bond that exists between the children
      and [Mother]. Correct?

      A    I can’t be absolutely certain, but I can certainly take some
      educated guesses.

      Q    Sure. And your testimony today is basically hypothetical,
      speculative testimony based upon your experiences?

      A     Correct.

Id.

      Crystal Vicklund, the Agency caseworker, also testified at the remand

hearing that Mother is currently incarcerated, id. at 30-31, but did not provide

testimony regarding Children’s bond with Mother or their bonds with their

current foster parents.

      The orphans’ court did not make any findings of fact or state any legal

analysis at the conclusion of the remand hearing.

      On May 10, 2019, the orphans’ court entered orders terminating

Mother’s parental rights as to Children.    In the orders, the orphans’ court

found Attorney Maines’s testimony credible that Children expressed a

preference for the termination of Mother’s parental rights and that Children

had the benefit of counsel as required by the Adoption Act. Order, No. 3438-

2017, 5/10/19, ¶¶3-4; Order, No. 3439-2017, 5/10/19, ¶¶3-4. The orphans’

court’s entire discussion pursuant to subsection 2511(b) consisted of one

sentence: “Dr. Ryen’s credible testimony proved to the Court that there is no

real emotional bond between Mother and the Children and that the best result

for the Children would be to terminate Mother’s parental rights so they may

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be adopted.”     Order, No. 3438-2017, 5/10/19, ¶6; Order, No. 3439-2017,

5/10/19, ¶6. The orphans’ court reaffirmed its conclusions announced in its

earlier opinion and determined that the Agency had met its burden of proof in

establishing grounds for termination under the Adoption Act.          Order, No.

3438-2017, 5/10/19, ¶8; Order, No. 3439-2017, 5/10/19, ¶8. Mother filed

timely appeals from the May 10, 2019 orders.4

       On appeal, Mother presents the following issue:

       Whether the [orphans’] court abused its discretion in finding that
       [the Agency] met its burden of proof by clear and convincing
       evidence to show that the needs and welfare of the children would
       be advanced by a termination of parental rights pursuant to 23
       Pa.C.S. § 2511(b)?

Mother’s Brief at 7.

       Mother contends that the Agency did not comply with this Court’s

instruction on remand that it present evidence on the issue of whether there

is a bond between Children and Mother, the nature of the bond, and the effect

on Children of severing the bond. Mother argues that Dr. Ryen’s testimony

was not sufficient to meet the Agency’s burden under Section 2511(b) because

he “had no first-hand knowledge of the case and therefore his testimony was

all speculation and conjecture,” Mother’s Brief at 14, and that the Agency did



____________________________________________


4 Mother filed concise statements of errors complained of on appeal with her
notices of appeal as required by Pa.R.A.P. 1925(a)(2)(i). On June 18, 2019,
the orphans’ court notified this Court that it would not file a further opinion in
these matters. On July 3, 2019, this Court entered a per curiam order sua
sponte consolidating the two appeals.

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not offer any additional evidence at the remand hearing regarding Children’s

bond with Mother.

      Our standard of review of a decree terminating parental rights is limited

to determining whether the orphans’ court abused its discretion, committed

an error of law, and whether its decision is supported by competent evidence.

In re B.J.Z., 207 A.3d 914, 921 (Pa. Super. 2019). The petitioner bears the

burden of demonstrating grounds for termination by clear and convincing

evidence, which “is defined as testimony that is so clear, direct, weighty and

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

hesitance, of the truth of the precise facts in issue.”      Id. (citation and

quotation marks omitted).

      Under Section 2511 of the Adoption Act, a court must engage in a

bifurcated analysis:

      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 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 of best interests
      of the child.

Id. (citation omitted).     Our Supreme Court has instructed that “the

determination of the child’s needs and welfare requires consideration of the

emotional bonds between the parent and child [with] utmost attention [to] be

paid to discerning the effect on the child of permanently severing the parental



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bond.”   In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation and internal

quotation marks omitted).

      An agency petitioning for the termination of parental rights may rely on

expert testimony to satisfy its burden under Section 2511(b); however,

“expert testimony is incompetent if it lacks an adequate basis in fact.” Helpin

v. Trustees of University of Pennsylvania, 969 A.2d 601, 617 (Pa. Super.

2009) aff'd, 10 A.3d 267 (Pa. 2010).

      Admissible expert testimony that reflects the application of
      expertise requires more than simply having an expert offer lay
      opinion. . . . Likewise, expert testimony must be must be based
      on more than mere personal belief, and must be supported by
      reference to facts, testimony or empirical data. . . . [P]roffered
      expert testimony must point to, rely on or cite some scientific
      authority . . . that the expert has applied to the facts at hand[.]

Nobles v. Staples, Inc., 150 A.3d 110, 114-15 (Pa. Super. 2016) (emphasis

added; citation and quotation marks omitted).      “No matter how skilled or

experienced the witness may be, he will not be permitted to guess or to state

a judgment based on mere conjecture.” Collins v. Hand, 246 A.2d 398, 404

(Pa. 1968); see also Helpin, 969 A.2d at 617.

      Upon review, we agree with Mother that Dr. Ryen’s testimony regarding

the bond between Children and Mother was based on conjecture and

speculation without an adequate basis in fact. Collins, 246 A.2d at 404. Dr.

Ryen testified that the sole factual basis for his opinion was a “very brief

summary” of the case provided by the Agency’s counsel and listening to

Attorney Maines’ testimony during the remand hearing regarding his

conversations with Children. N.T., 3/27/19, at 16-17. On cross-examination,

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Dr. Ryen admitted that his testimony was “basically hypothetical [and]

speculative” and “educated guesses” based on his history as a child

psychologist. Id. at 17. Indeed, Dr. Ryen appeared to formulate his opinions

regarding the bond entirely on two pieces of information: the age at which

Children were removed from their home with Mother and the length of time

since that removal.     While we do not doubt Dr. Ryen’s expertise and

experience, he must base his testimony “on more than mere personal belief”

and must still apply his expertise “to the facts at hand,” Nobles, 150 A.3d at

114-15, and we do not accept that a psychologist’s testimony regarding such

an intimate topic as a bond between a parent and child can stand on such a

flimsy factual foundation.

      Dr. Ryen additionally offered his opinion that Children would be harmed

by being removed from their foster parents; however, Dr. Ryen’s testimony

was based only on the “presumably secured bonds” between Children. N.T.,

3/27/19, at 15-16, 18 (emphasis added). Dr. Ryen did not explain any facts

upon which his opinion regarding these presumably secure bonds were based,

such as how long Children had been with their foster parents or whether

permanency goals were currently in place, and Dr. Ryen admitted on cross-

examination that he was not aware that K.W. had been removed from his

foster home in November 2018. Id. at 18. Instead, Dr. Ryen’s testimony was

based on assumptions: as he explained, “I would assume [that Children’s]

needs are being met by the foster parents or they wouldn’t be foster parents.”

Id. at 15.

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      Accordingly, we conclude that Dr. Ryen’s testimony did not satisfy our

instructions on remand set forth in our September 6, 2018 decision and as

mandated by precedent that the Agency present evidence regarding the bond

between Children and Moher, the nature of that bond, and the effect of

severing that bond. Because the Agency did not offer any additional evidence

at the remand hearing regarding Children’s bond with Mother, the orphans’

court erred in concluding that Agency met its burden of satisfying Section

2511(b) by clear and convincing evidence. We are therefore compelled to

vacate both orders dated May 10, 2019, and to remand for further proceedings

to allow the Agency to comply with Section 2511(b). See, e.g., In re C.P.,

901 A.2d 516, 520-23 (Pa. Super. 2006) (remanding to allow agency to

present further evidence regarding parent-child bond where testimony of

psychologist and social worker did not sufficiently address what degree of

bond existed and the effect of severing the bond).

      On remand, we direct the orphans’ court to conduct an additional

hearing in these matters within 45 days of the date of receipt of this decision.

At the hearing, the Agency must present evidence concerning whether a bond

exists between Children and Mother, the nature of the bond, and the effect on

Children of severing the bond. We note that the Agency is not required to

retain an expert to perform a formal bonding analysis of Mother and Children.

In re J.N.M., 177 A.3d 937, 944 (Pa. Super. 2018).          As this Court has

observed, “[w]hile it may be wise to conduct a bonding evaluation where there

is evidence of a bond, in other cases direct observation of the interaction

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between the parent and the child is not necessary and may even be

detrimental to the child.”    Id. at 944-45 (citation and quotation marks

omitted). Furthermore, the Agency is “free to rely upon the assessments of

social workers and caseworkers” to demonstrate the presence or absence of

a bond. Id. at 945.

      In addition to evidence related to the bond between Mother and

Children, the Agency may present evidence relevant to other factors related

to the needs and welfare of Children.         As this Court has explained, in

conducting a Section 2511(b) analysis, the orphans’ court “can equally

emphasize the safety needs of the child, and should also consider the

intangibles, such as the love, comfort, security, and stability the child might

have with the foster parent.” In re G.M.S., 193 A.3d 395, 401 (Pa. Super.

2018) (citation omitted).    The court may also “consider the importance of

continuity of relationships and whether any existing parent-child bond can be

severed without detrimental effects on the child.” Id. (citation omitted). The

other parties to the termination proceedings may present evidence supporting

or rebutting the Agency’s evidence if they so choose.

      The orphans’ court shall issue orders and an accompanying opinion

stating its findings of fact and conclusions of law regarding the Section

2511(b) analysis within 15 days of the date of the remand hearing. We remind

the orphans’ court that the needs and welfare analysis is not a mere formality

and that a one-sentence, conclusory finding that termination is proper under

Section 2511(b) is insufficient and would be a blatant disregard of this Court’s

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instructions. See C.P., 901 A.2d at 522; In re Adoption of A.C.H., 803 A.2d

224, 229-30 (Pa. Super. 2002); see also T.M.W., No. 397 WDA 2018,

unpublished memorandum at 12 (this Court’s instructions pursuant to earlier

remand). Accordingly, in its opinion, the orphans’ court shall address the bond

between Children and Mother, the nature of the bond, the effect of severing

any bond that remains, and such other Section 2511(b) factors as are

relevant.5

        In remanding this matter to the orphans’ court a second time, we are

mindful of our Supreme Court’s admonition that, when engaging in a needs

and welfare analysis under Section 2511(b) analysis, “courts must keep the

ticking clock of child ever in mind . . . and we have an obligation to see to

their healthy development quickly.” T.S.M., 71 A.3d at 269. Nevertheless,

“[w]e    recognize     that   the    complete      and   irrevocable   termination   of

parental rights is one of the most serious and severe steps a court can take,

carrying with it great emotional impact for the parent and the child.” C.P.,

901 A.2d at 519-20. We therefore may not sacrifice the strict requirements

of the Adoption Act, as crafted by our legislature, and our precedent in an

effort to effect the prompt resolution of this matter.



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5 We also note that, as Children’s advocate stated that Children knew who
Mother was and missed her, N.T., 3/27/2019, at 6, 8, this case is not one
“where there is no evidence of any bond between the parent and child[ren,]”
and thus it would not be “reasonable to infer that no bond exists.” In re
Q.R.D., 214 A.3d 233, 243 (Pa. Super. 2019) (citation omitted).

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      Finally, we note that, notwithstanding the vacatur of the May 10, 2019

orders, we leave undisturbed the earlier orders finding Children dependent

and placing Children in foster care. It is in the best interests of Children to

maintain the status quo while the orphans’ court acts on remand. Children

therefore shall not be returned to Mother during the period that the orphans’

court resolves the issues pursuant to our remand.

      Orders vacated. Case remanded for further proceedings consistent with

this decision. Panel jurisdiction retained.




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