J-S10001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.W., A MINOR         :       IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                                          :
                                          :
APPEAL OF: A.W., FATHER                   :          No. 2113 EDA 2015

              Appeal from the Order Entered June 17, 2015
             In the Court of Common Pleas of Monroe County
           Domestic Relations at No(s): CP-45-DP-0000064-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED FEBRUARY 26, 2016

     Appellant, A.W. (“Father”), appeals from the order entered in the

Monroe County Court of Common Pleas, which involuntarily terminated his

parental rights to minor child, T.W. We affirm.

     In its written opinion, the trial court fully sets forth the relevant facts

and procedural history of this case.1         Therefore, we will only briefly

summarize them. Mother and Father have had a volatile relationship since

before T.W. was born in 2012.       The Monroe County Children and Youth

Services (“CYS”) became involved in this case on June 30, 2012, upon

learning that T.W. had been injured when Father threw her, in her car seat,

out of a vehicle during an argument with Mother. T.W. was placed in CYS’

custody on July 1, 2012, because Mother and Father were both incarcerated;

T.W. has been in foster care since that time.      The court adjudicated T.W.


1
  (See Trial Court Opinion, filed April 11, 2014, at 1-14) (Permanency/goal
change appeal).
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S10001-16


dependent on August 3, 2012, with an initial permanency goal of

reunification.   Following several review hearings, the court changed the

permanency goal to adoption on January 24, 2014. Mother filed an appeal

from that order, which this Court affirmed on August 22, 2014. See In re

T.W., 106 A.3d 172 (Pa.Super. 2014) (unpublished memorandum).

      Meanwhile, on December 3, 2013, CYS filed a petition for involuntary

termination of the parental rights of Mother and Father.           The court

conducted multiple hearings on the termination petition throughout 2014

and 2015.    On June 12, 2015, the court terminated Mother’s and Father’s

parental rights to T.W.2 Father timely filed on July 10, 2015, a pro se notice

of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i).     The court did not consider Father’s

appeal and Rule 1925(a) statement, as he was represented by counsel.

Thereafter, counsel filed an amended notice of appeal and a Rule

1925(a)(2)(i) statement on July 17, 2015. Father also filed a pro se motion

requesting a new hearing based on ineffective assistance of counsel, which

the court dismissed.     Father’s counsel subsequently filed a petition to

withdraw. The court granted counsel’s petition and appointed new counsel

to assist Father on appeal.

      Father raises the following issues for our review:

         WHERE FATHER IMMEDIATELY UNDERTOOK HIS FAMILY

2
  Mother filed a separate appeal from the order terminating her parental
rights, which is docketed at No. 2188 EDA 2015 (J-S10002-16).


                                     -2-
J-S10001-16


       SERVICE PLAN OBJECTIVES, VISITED THE CHILD
       CONSISTENTLY, AND REFRAINED FROM DOMESTIC
       DISPUTES, DID THE TRIAL COURT ERR IN ITS FINDING
       THAT [CYS] PRESENTED CLEAR AND CONVINCING
       EVIDENCE THAT FATHER FAILED TO PERFORM PARENTAL
       DUTIES FOR A PERIOD OF MORE THAN SIX MONTHS?

       WHERE CHILD WAS PLACED BECAUSE OF MOTHER’S
       ALLEGATIONS OF ABUSE OF THE CHILD DURING A
       DOMESTIC DISPUTE, MOTHER WAS CONVICTED OF FILING
       A FALSE POLICE REPORT, FATHER WAS CLEARED OF
       CHARGES, AND FATHER REFRAINED FROM INVOLVEMENT
       IN DOMESTIC DISPUTES, DID THE TRIAL COURT ERR IN
       ITS FINDING THAT [CYS] PRESENTED CLEAR AND
       CONVINCING EVIDENCE THAT FATHER FAILED TO REMEDY
       THE CONDITIONS AND CAUSES OF THE ALLEGED ABUSE,
       AND REMOVAL OF THE CHILD?

       WHERE    FATHER    COMPLETED    THE    COUNSELING,
       PARENTING AND ANGER MANAGEMENT CLASSES IN THE
       FAMILY SERVICE PLAN, HAD TAKEN ADDITIONAL CLASSES
       ON HIS OWN, SEPARATED FROM MOTHER AND
       REFRAINED FROM DOMESTIC DISPUTES, DID THE TRIAL
       COURT ERR IN ITS FINDING THAT [CYS] PRESENTED
       CLEAR AND CONVINCING EVIDENCE THAT TERMINATION
       WAS IN THE BEST INTEREST OF THE CHILD?

       WHERE [CYS’] WITNESS TESTIFIED TO A SIGNIFICANT
       BOND BETWEEN FATHER AND CHILD, FATHER TOOK
       STEPS TO MINIMIZE END-OF-VISIT TRAUMA TO THE
       CHILD, AND THE TRIAL COURT INSTEAD FOCUSED ON
       THE CHILD’S BOND WITH HER FOSTER PARENTS, DID THE
       TRIAL COURT ERR IN FINDING THAT TERMINATION OF
       FATHER’S RIGHTS BEST SERVED THE NEEDS AND
       WELFARE OF THE CHILD?

       WHERE FATHER REFRAINED FROM INVOLVEMENT IN
       INCIDENTS OF DOMESTIC ABUSE AND CONTINUED TO
       COMPLY WITH THE FAMILY SERVICE PLAN, SEVERAL
       MONTHS PRIOR TO THE FILING OF THE FIRST
       TERMINATION PETITION, DID THE TRIAL COURT ERR IN
       CHARACTERIZING THESE EFFORTS AS “POST-PETITION”?

       DID THE TRIAL COURT ERR WHERE ITS FINDINGS OF


                              -3-
J-S10001-16


         FACT WERE NOT SUPPORTED BY CLEAR AND CONVINCING
         EVIDENCE?

         DID THE TRIAL COURT ERR IN FAILING TO DETERMINE
         THAT FATHER WAS REPRESENTED BY INEFFECTIVE
         COUNSEL, WHERE FATHER WAS PREJUDICED BY
         COUNSEL’S NUMEROUS ERRORS, INCLUDING FAILURE TO
         ADEQUATELY INVESTIGATE THE ASSERTIONS MADE BY
         CYS, AND GATHERING EVIDENCE WHICH COULD REBUFF
         THOSE ASSERTIONS?

(Father’s Brief at 3-4).

      Appellate review in termination of parental rights cases implicates the

following principles:

         In cases involving termination of parental rights: “our
         standard of review is limited to determining whether the
         order of the trial court is supported by competent
         evidence, and whether the trial court gave adequate
         consideration to the effect of such a decree on the welfare
         of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

            Absent an abuse of discretion, an error of law, or
            insufficient evidentiary support for the trial court’s
            decision, the decree must stand.       …    We must
            employ a broad, comprehensive review of the record
            in order to determine whether the trial court’s
            decision is supported by competent evidence.

         In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
         banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
         (internal citations omitted).

            Furthermore, we note that the trial court, as the
            finder of fact, is the sole determiner of the credibility
            of witnesses and all conflicts in testimony are to be
            resolved by [the] finder of fact. The burden of proof
            is on the party seeking termination to establish by


                                      -4-
J-S10001-16


           clear and convincing evidence the existence of
           grounds for doing so.

        In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
        2002) (internal citations and quotation marks omitted).
        The standard of clear and convincing evidence means
        testimony that is so clear, direct, weighty, and convincing
        as to enable the trier of fact to come to a clear conviction,
        without hesitation, of the truth of the precise facts in issue.
        In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
        may uphold a termination decision if any proper basis
        exists for the result reached. In re C.S., 761 A.2d 1197,
        1201 (Pa.Super. 2000) (en banc). If the court’s findings
        are supported by competent evidence, we must affirm the
        court’s decision, even if the record could support an
        opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
        (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

     CYS sought involuntary termination of Father’s parental rights on the

following grounds:

        § 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:

           (1) The parent by conduct continuing for a period of
           at least six months immediately preceding the filing
           of the petition either has evidenced a settled purpose
           of relinquishing parental claim to a child or has
           refused or failed to perform parental duties.

           (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 [her] physical or mental


                                     -5-
J-S10001-16


          well-being and the conditions and causes of the
          incapacity, abuse, neglect or refusal cannot or will
          not be remedied by the parent.

                               *    *    *

          (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 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.


                                   -6-
J-S10001-16



23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).

      “Parental rights may be involuntarily terminated where any one

subsection of Section 2511(a) is satisfied, along with consideration of the

subsection 2511(b) provisions.” In re Z.P., supra at 1117.

         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…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.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

      Termination under Section 2511(a)(1) involves the following:

         To satisfy the requirements of [S]ection 2511(a)(1), the
         moving party must produce clear and convincing evidence
         of conduct, sustained for at least the six months prior to
         the filing of the termination petition, which reveals a
         settled intent to relinquish parental claim to a child or a
         refusal or failure to perform parental duties. In addition,

            Section 2511 does not require that the parent
            demonstrate both a settled purpose of relinquishing
            parental claim to a child and refusal or failure to
            perform parental duties. Accordingly, parental rights
            may be terminated pursuant to Section 2511(a)(1) if
            the parent either demonstrates a settled purpose of
            relinquishing parental claim to a child or fails to
            perform parental duties.

         Once the evidence establishes a failure to perform parental
         duties or a settled purpose of relinquishing parental rights,
         the court must engage in three lines of inquiry: (1) the
         parent’s explanation for his…conduct; (2) the post-


                                     -7-
J-S10001-16


            abandonment contact between parent and child; and (3)
            consideration of the effect of termination of parental rights
            on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted).     Regarding the six-month period prior to filing the termination

petition:

            [T]he trial court must consider the whole history of a given
            case and not mechanically apply the six-month statutory
            provision.     The court must examine the individual
            circumstances of each case and consider all explanations
            offered by the parent facing termination of his…parental
            rights, to determine if the evidence, in light of the totality
            of the circumstances, clearly warrants the involuntary
            termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005).

      The     grounds    for   termination   of   parental   rights   under   Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary, those grounds may

include acts of refusal as well as incapacity to perform parental duties. In

re A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.”    Id. at 340.      The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued


                                        -8-
J-S10001-16


incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).

      “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.” In re Z.P., supra at 1118.

      “[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) the child has been removed from

parental care for [twelve] 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, 1275-76

(Pa.Super. 2003).

      Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare.    In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,



                                    -9-
J-S10001-16


paying close attention to the effect on the child of permanently severing the

bond.” Id. at 520. Significantly:

        In this context, the court must take into account whether a
        bond exists between child and parent, and whether
        termination would destroy an existing, necessary and
        beneficial relationship.     When conducting a bonding
        analysis, the court is not required to use expert testimony.
        Social workers and caseworkers can offer evaluations as
        well. Additionally, Section 2511(b) does not require a
        formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

     “The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his parental rights terminated.” In re B.L.L., 787

A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

        There is no simple or easy definition of parental duties.
        Parental duty is best understood in relation to the needs of
        a child. A child needs love, protection, guidance, and
        support. These needs, physical and emotional, cannot be
        met by a merely passive interest in the development of the
        child. Thus, this court has held that the parental obligation
        is a positive duty which requires affirmative performance.

        This affirmative duty encompasses more than a financial
        obligation; it requires continuing interest in the child and a
        genuine 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] to take and
        maintain a place of importance in the child’s life.



                                    - 10 -
J-S10001-16


        Parental duty requires that the parent act affirmatively
        with good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his…ability, even in difficult circumstances.
        A parent must utilize all available resources to preserve
        the parental relationship, and must exercise reasonable
        firmness in resisting obstacles placed in the path of
        maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with [the child’s] physical
        and emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of his…child is converted,

upon the failure to fulfill his…parental duties, to the child’s right to have

proper parenting and fulfillment of his…potential in a permanent, healthy,

safe environment.” Id. at 856.

     Importantly, neither Section 2511(a) nor Section 2511(b) requires a

court to consider at the termination stage, whether an agency provided a

parent with reasonable efforts aimed at reunifying the parent with his child

prior to the agency petitioning for termination of parental rights.    In re

D.C.D., ___ Pa.___, 105 A.3d 662, 672 (2014).        An agency’s failure to

provide reasonable efforts to a parent does not prohibit the court from

granting a petition to terminate parental rights under Section 2511. Id. at

___, 105 A.3d at 675.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned oral opinion of the Honorable Jonathan

Mark, we conclude Father’s issues one through six merit no relief. The trial


                                   - 11 -
J-S10001-16


court’s oral opinion comprehensively discusses and properly disposes of

these questions presented. (See N.T. Oral Opinion, 6/12/15, at 10-42 and

attached addendum) (finding: at time of termination hearing, T.W. had been

in CYS’ care for approximately 33 months; Mother and Father had volatile

relationship that included criminal charges, protections from abuse (“PFA”),

and domestic issues; underlying issues between Mother and Father have not

been resolved; T.W.’s safety, health and well-being are paramount concerns

and must be ensured; neither Mother nor Father has demonstrated current

ability to provide requisite assurance of T.W.’s safety; Father consistently

fought with CYS over visitations, regarding protocol and confirming

appointments; throughout entire case, Father failed to adhere to court’s

advisements; under Section 2511(a)(1), Mother and Father made progress

towards some    of   goals   but failed   to   take   necessary   steps   toward

reunification with T.W.; Mother and Father failed to perform parental duties

for more than six months, as both parents were incarcerated and spent

majority of time fighting with each other; CYS met statutory grounds for

termination under subsection (a)(1); Mother and Father refused to provide

essential parental care, control, and assistance to T.W.; CYS established

grounds for termination under Section 2511(a)(2); grounds for termination

also existed under Section 2511(a)(8), because T.W. had been removed

from Mother and Father’s care for at least twelve months, condition that led

to T.W.’s removal still exists, and termination of Mother and Father’s



                                    - 12 -
J-S10001-16


parental rights best serves needs and welfare of T.W.; court properly

considered Mother’s and Father’s post-petition efforts as grounds for

termination because termination petition was filed in December 2013, and

first termination hearing was not held until one year later; reunification

efforts are not valid consideration under subsections (a)(1), (a)(2), and

(a)(8); T.W.’s foster family provided love, care, companionship and support

that Section 2511(b) requires, while Mother and Father were busy filing

criminal charges and PFAs against each other and exhibiting pathological

codependency; T.W. has strong bond with foster family and severing that

bond would be detrimental to her; T.W. has not developed any traditional

bond with Mother and Father, as she spent her first several months in

hospital and has had only supervised visits with parents for most of her life;

only bond T.W. has with Mother and Father is biological; severing T.W.’s

bond with Mother and Father pales in comparison to severing bond with

foster parents, who wish to adopt T.W.; safety concerns also exist with

Mother’s and Father’s care of T.W.; CYS established grounds for termination

under    subsection   (b);   current   placement   goal   of   adoption   remains

appropriate and necessary).       The record supports the court’s decision;

therefore, we have no reason to disturb it.        Accordingly, we affirm as to

Father’s issues one through six on the basis of the court’s oral opinion issued

at the termination proceeding.

        In his final claim, Father argues trial counsel was ineffective



                                       - 13 -
J-S10001-16


throughout the proceedings, which severely prejudiced Father. Specifically,

Father asserts trial counsel failed to object to hearsay testimony regarding a

videotape that was not introduced at the hearing.             Father insists this

example is only one of “many” instances where incompetent evidence made

its way into the record because counsel failed to raise a proper objection at

the time. Father concludes the court used this evidence to determine CYS

had met its clear and convincing burden, and he is entitled to a new hearing.

We disagree.

      “Pennsylvania   statutes   do    not     require   counsel   in   termination

proceedings, although Pennsylvania case law does…and flowing from this it

is presumed that counsel would and should be effective.” In re Adoption

of T.M.F., 573 A.2d 1035, 1040 (Pa.Super. 1990) (en banc), appeal denied,

527 Pa. 634, 592 A.2d 1301 (1990).           This Court evaluates ineffectiveness

allegations in termination proceedings as follows:

         In the context of a termination proceeding, the best
         approach…is the fundamental fairness doctrine whereby, in
         the exercise of its broad scope of review, an allegation of
         ineffectiveness of counsel on appeal would result in a
         review by this Court of the total record with a
         determination to be made whether on the whole, the
         parties received a fair hearing, the proof supports the
         decree by the standard of clear and convincing evidence,
         and upon review of counsel’s alleged ineffectiveness, any
         failure of his stewardship was the cause of a decree of
         termination. Mere assertion of ineffectiveness of counsel is
         not the basis of a remand or rehearing, and despite a
         finding of ineffectiveness on one or more aspects of the
         case, if the result would unlikely have been different
         despite a more perfect stewardship, the decree must
         stand.


                                      - 14 -
J-S10001-16



Id. at 1044.      Thus, the “fundamentally fair hearing” right to effective

assistance of counsel in civil termination cases is more limited than the right

to effective assistance of counsel in criminal cases.     In re J.T., 983 A.2d

771, 775 (Pa.Super. 2009). If competent evidence of record supports the

termination decree, it should stand. Id.

      A   party   alleging   ineffectiveness   in   termination    matters   must

“demonstrate such ineffectiveness so undermined the truth determining

process that no reliable adjudication…could have been made.”            Matter of

J.P., 573 A.2d 1057, 1066 (Pa.Super. 1990) (en banc).             Additionally, the

party alleging ineffective assistance of counsel in this context “must show by

clear and convincing evidence that it is more likely than not that the result

would have been different, absent the ineffectiveness.”           In re K.D., 871

A.2d 823, 827 (Pa.Super. 2005), appeal denied, 586 Pa. 713, 889 A.2d 1216

(2005).

      Instantly, Father did not adequately develop his claim regarding

counsel’s ineffectiveness. Nevertheless, even if properly articulated, Father

cannot demonstrate that, absent the alleged ineffectiveness, the outcome of

the termination proceedings would have been different. See id. Competent

evidence of record supported the termination of Father’s parental rights.

See In re J.T., supra. Thus, Father’s ineffectiveness claim merits no relief.

Accordingly, we affirm the court’s order terminating Father’s parental rights.

      Order affirmed.


                                     - 15 -
J-S10001-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2016




                          - 16 -
                                                                               Circulated 02/18/2016 11:32 AM




)~·                   .                          COURT OF COMMON PLEAS OF MONROE COUNTY
'                                                     FORTY-THIRD JUDICIAL DISTRICT
                                                       COMMONWEALTH OF PENNSYLVANIA


                                  IN THE INTEREST OF:                NO. 64 DP 2012
                                                                     NO. 48 OCA 2013

                                  T.   w.,
                                  A Minor                            HEARING



                                                       TRANSCRIPT   OF PROCEEDINGS



                                  BEFORE:    Jonathan Mark, Judge

                                  DATE:      June 12, 2015
                                             9:30 a.m.

                                  PLACE:     Courtroom No. 1
 .i.i       ••·.·,·.0.:.~_;·_.·
                                             Monroe County Courthouse
-:/'                  ..
                  ~                          Stroudsburg, Pennsylvania


                                  APPEARANCES:

                                             ELIZABETH BENSINGER WEEKES, ESQUIRE
                                             529 Sarah Street
                                             Stroudsburg, Pennsylvania 18360
                                                  -- Solicitor

                                             DONALD M. LEETH, ESQUIRE
                                             818 Ann St:i:;eet
                                             Stroudsburg, Pennsylvania 18360
                                                     On behalf of Mother

                                             ERIC L. HAMILL, ESQUIRE
                                             501 Broad Street, Suite #3
                                             Milford, Pennsylvania 18337
                                                   -- On behalf of Father

        •·,..::




                                  ===================================================== ~
                                             Proceedings stenographically recorded by                 .,.~      .
                                                       Yvestre M. Torres, OCR                        ~ ~
                          ADDENDUM


ATTACHED TO THE TRANSCRIPT:




1.   OPINION IN SUPPORT OF ORDER PURSUANT To Pa. R.A.P.
1925 (a)

2.   ADDENDUM TO ANNOUNCEMENT HEARING

3.   NON-PRECEDENTIAL DECISION
!   i


                                                                                                                                                         3

                 1                                     P R O           C.E       ED ING                    s
                 2                      THE COURT:                      Good morning, everybody.

                 3                      MS. WEEKES:                        Good morning, Your Honor.
                 4                      MR. HAMILL:                       Good morning, Your Honor.

                 5                      THE COURT:                      We are here now as scheduled to

                 6   announce a decision in both of the cases involving

                 7   Time Warner, the dependent in this case, and the
                 8   termination of parental rights case.

                 9                      This case has been around for a while,                                                                  so
                10   I'm going to take a little bit of time to make sure

                11   that I try to be as clear as possible.                                                              We will get
                12   to this in more detail later, but the last hearing in

                13   this case was at the end of April, and the parties

                14   were given, I think, three or four weeks, whatever it

                15   was, to file some briefs,                                       some memoranda, and

                16   post-submmission filing.

                17                      Then even though this was a case involving a

                18   child, this is a highly-contested, long-running

                19   dependency case, relatively long-running termination

                20   of parental rights case, and so the Court wanted to

                21   take a little bit of time to look at some of the

                22   legal issues and the facts before making a decision.

                23                      That coupled with the Court's                                                 schedule,

                24   including federal trials and other matters and
            I
        I
            j
                25   personal matters, made it so that the extra month

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                                 Any reproduction of 11n official transcript without prior court approval I• prohibited.•
                                                                                                                                            4
     1   from the time the briefs were in until now elapse.

 2                             So today I will announce both decisions.

 3       Orders will be issued today or tomorrow,                                                                  at the

 4       latest, depending                            on whether the computer                                        system is

 5       cooperating                  with us or not.

 6                            At the last hearing, this case was at the

 7       end of April.                        The evidence was concluded.                                                 I do not

 8       anticipate                taking any evidence today or hearing any

 9       argument             today.               I will note that the parents are

10       here with their respective                                          attorneys.                      So Father is

11       here, I guess, with one of his two attorneys.                                                                           Right,

12       Mr. Hamill?

13                           MR. HAMILL:                        Correct.

14                            THE COURT:                     His second attorney,                                   I guess, is

15       not here, but I'm not sure if we really need two for

16       this.          I believe                 the guardian ad litem is also not

17       present.               I know that the guardian is on vacation,

18       and because                 it was                    we tried to schedule this, I

19       didn't know if she was going to have someone else sit

20       here to listen.                          But I know she was interested                                                 in

21       hearing           -- according                     to what was provided                                   to my

22       office -- the outcome, and, of course, a transcript,

23       if necessary.                      But everybody else is here.                                                 The

24       agency is here, represented by several people,

25       including             a couple of supervisors.

          Pursuant to 43 J.D.R.C.P. Rule 2/IOc "No trenscrlpt shall be furnished to • party uni/I all expenses of transcription are paid.
                     Any reproduction of an oH/cial tnmscr/pl wllhout prior court approval is prohibited,•
                                                                                                                                          5

 1                       Now, after the last hearing, I believe I

 2   indicated the parties were going to need to file
 3   memoranda and post-submission filings.                                                                Mother,

 4   Father and Monroe County Children and Youth Services

 5   -- who for the rest of this announcement, unless I

 6   slip, I will refer to as the agency -- filed briefs.

 7   Father and the agency included in their submission
 8   some findings of fact.

 9                       In addition, Father submitted, by praecipe,

10   an additional·document,                                     which I assume he was wanting

11   to make of record as part of the evidentiary record,
12   and that was, I believe,                                       a magisterial district

13   judge's order for document -- at least some kind of
14   document indication that a case that has been filed

15   against him, and had been mentioned during

16   termination hearing, had been dismissed,                                                                 and that is

17   in the file.                     I don't know if it was distributed to

18   other parties or not, but it is in the file.

19                       The Defendant in the matter in this case --

20   the Defendant in this case, I should say, has an open

21   -- has been opened in the records of Monroe County

22   Children and Youth Services since June 30, 2012,                                                                              and

23   this Court shortly thereafter.                                                   It is, as indicated,

24   a much litigated, highly-contested case and has been

25   all along.

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                                                                                                                                        6

 1                      In early 2014, an order was issued that

 2   changed the goal from reunification to adoption with

 3   a concurrent goal of reunification.                                                          And at that

 4   point, Mother appealed.                                       In response to the appeal,

 5   several things were filed of record.                                                           One of which

 6   was I issued an opinion on April 11, 2014, which I

 7   will from this point on hopefully remember to refer

 8   to as the appeal petition.

 9                      Then on August 22, 2014, the Superior Court

10   issued a memorandum opinion affirming the goal change

11   order and permanency review order.                                                        And both opinions

12   are in the record and filed in this matter, both here

13   and Superior Court, and I know all the attorneys, and

14   hopefully the parties, have copies as well.

15                       I am going to right now, so that we

16   understand, incorporate both opinions into this

17   announcement by reference.                                           At the end of this

18   announcement, I will, as indicated, issue the orders

19   to make the findings that are required.                                                                However, I

20   will be doing this orally today so that no more time

21   needs to go by.                         And I will, therefore, have an

22   opinion.

23                      So what I have done is I have prepared an

24   addendum that will be attached to the transcript, if

25   anyone orders a transcript or if there is an appeal,

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                                                                                                                                            7

     1   as I anticipate                         there will be regardless                                         of the

     2   outcome,             either by one or both of the parents or the

     3   agency.

     4                        The addendum                       that I am about to hand out to

     5   you now will be attached                                        to the transcript, and will

     6   be given to the court reporter to keep with the

     7   records of this case.                                     So if counsel will want to

     8   approach,               I will give you the addendum.                                                    There you

     9   go.       We will have the extra one for the guardian.

    10   We1ll       make sure that we leave one for Ms. Cerate.

    11                        In any event, the addendum is not in the

    12   form of an opinion but procedural                                                     and factual

    13   history.               The addendum                       is the law that I had applied

    14   to both the termination                                     of parental rights

    15   proceeding,                 and the decision you'll hear in that

    16   case.         And it also references                                       the standards and law

    17   that I applied                      in the permanency                              review hearing and

    18   issued a permanency                              review order.

    19                       Because              I do anticipate                           that there will be

    20   an appeal regardless                               of the outcome                          today filed by at

    21   least some party, it also references                                                         the appellant

    22   standard of review, which was listed and summarized

    23   in detail in the appeal petition previously                                                                     filed.

    24                       For convenience                           and ease of reference,                                      I am
\
    25   also going to include the prior opinions                                                                -- both my

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                     Any reproduction of an official tranitcrlpt without prior court approval Is prohibited.•
                                                                                                                                               8
      1   appeal          opinion and the Superior Court's opinion -- as

      2   addenda           to any transcript,                                and we will get those to

      3   the court reporter.

      4                        Instead of giving a draft out of the Court's

      5   -- my chambers•                        computer                 system, we will include a

      6   copy that is time stamped                                         in the file in the records

      7   of this case.

      8                        The factual and procedural                                             history of the

      9   dependency                case and the early portion of the

     10   termination                  of parental                     rights case were captured in

     11   the prior opinion,                             and so I am not going to repeat

     12   them in detail here.

     13                        In addition,                       the agency and Father have

     14   submitted              findings of fact.                                 With respect to the

     15   agency's             findings of fact, I affirm but I do not

     16   adopt findings                      1 through 12 and believe that they are

     17   supported              by competent evidence in the record.

     18                        I said I wasn't going to recount the history

     19   in detail or in full, but my remarks today do need to

     20   be put in context,                             so a very quick summary, again,

     21   incorporating                     everything                   that was composed in the

     22   long opinion                   -- appeal opinion that was written and

     23   the Superior                   Court's opinion.                               I will just note

     24   quickly the following:

·-
     25                   r. W.            was born                           jn                        2012,           and she is

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                                                                                                                                           9

     1   now three years old.                                    She was premature,                               and had to

     2   stay in the hospital                                 for an extended period after her

 3       birth as a result of a heart condition                                                             that was

 4       required             to be monitored.                               For still unexplained

 5       reasons,             neither parent mentioned                                         that when T. W. came

 6       into care.

 7                           T.w.          first came to the attention                                              of the

 8       agency on June 30th of 2012,                                             and the referral, which

 9       we have discussed                           and has been documented many times,

10       was that from Mother.                                    She had accused Father of

11       taking         TW.          out of the family van and throwing her in

12       the car seat from the van on the road whereT                                                                       w.       was

13       injured.

14                          -,. w.        was taken to Pocono Medical Center and

15       then to a regional facility for evaluation and

16       workup.             As I have detailed in the appeal petition,

17       despite           the parents' protestation                                          to the contrary,

18       injuries            were observed and reported by medical

19       personnel              from both hospitals,                                  although luckily not

20       as severe -- the injury was not as severe as first

21       thought by doctors at Pocono Medical Center.

22                           There were both old and new injuries that

23       were ultimately                       identified.                      Significantly,                          the

24       injuries            are still, for the most part, unexplained by

25       the parents.                    While there have been some suggestions,

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                     Any reproduction of an official transcript without prior court approval Is prohibited.•
                                                                                                                                        10

 1   some innuendo, some guesses, and some information

 2   that could possibly be an explanation, some of which

 3   was confirmed by one parent or another, all of those

 4   details are in the prior opinion.                                                       As we sit here

 5   today, there still really is no specific explanation

 6   for all the injuries, old and new, that were

 7   observed.

 8                      -r.w.: came into care -- not exactly as the
 9   parties have characterized in their filing, some of
10   which were cursory, although Mother's were much more

11   detailed than others -- but because after Mother had
12   accused Father of throwing                                         .T.w.
                                                                        I
                                                                                      and injuring her,

13   Father was arrested and then jailed.
14                       Mother, who was not honest about her

15   criminal history, had a warrant out for her arrest.

16   And when Mother was arrested on the outstanding

17   warrant from another state is when T. W. came into

18   care.          That was July 1, 2012, just shy of three years

19   ago from today.                          She has been in care continuously in

20   the same pre-adopt foster home ever since.

21                       To measure the time frame by traditional

22   benchmarks, : T W.. : has been in care for the following

23   length of time:                          First,             she has been in care 17

24   months as of the date the termination of parental

25   rights petition was filed in this matter.

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                  Any reproduction of an official transcript without prior court approval I!! prohibited,•
                                                                                                                                        11

 1                        She was in care 21 months as of the date the

 2    goal in this case was changed.                                                  And she has been in

 3    care for 23 months as of the time Mother filed the

 4    appeal         in the dependency                              case.             As of the final

 5    termination                 of parental                    rights hearing,                        -r w.          has been

 6    in care for 33 months,                                   add another month or two for

 7    briefs and the time the Court needed to put this

 8    announcement                  together,                 and she is, as noted, almost

 9    three years in care.

10                        Again, you know, I have detailed                                                      the

11    background               and the reasons why she came into care and

12    the reasons why as of the date the appeal petition

13    was filed, she remained                                    in care, but really have to

14    recount something                          so that the decision                                   today do read

15·   correctly              in context.

16                        So I am going to reference two things that,

17    I think,            are relatively                         undisputed,                    and I am just

18    going to quote or paraphrase                                            some of the passages, if

19    you will, from the appeal petition.                                                         So,        first, this

20    is a case where the parents had historically                                                                     a very

21    volatile            relationship,                       and that's kind of putting it

22    mildly, both before and afterT".W· was born, and both

23    before and after                        i-.w.         came into care.

24                       All that was detailed in the opinion.                                                                But

25    the time from the shelter care hearing through the

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                                                                                                                                        12
 1   time when Mother took the appeal,                                                      was really marked

 2   with criminal,                       protection                   from abuse, other filings

 3   back and forth between                                    the parties,                      neither party

 4   really being honest and upfront about the domestic

 5   filing and issues between                                         them or their relationship.

 6                        It was also marked with Mother admitting, or

 7   at least saying to authorities,                                                  that she lied about

 8   Father throwing·-..                         w.J        which resulted in charges

 9   against Mother,                        or at least amended charges, for

10   which she ultimately                                pled guilty, and the list goes

11   on and on.

12                       So,        in the opinion that I wrote -- the

13   appeal opinion                      -- the following passages                                           appear on

14   pages        18 and 19:                     The reasons why we changed the goal

15   to adoption,                   with a concurrent goal of reunification

16   are presaged                  by and captured in our recitation of the

17   facts of this case.

18                       In a nutshell                        -- and I am going to use her

19   name because                   I used initials in the opinion                                                   -- 'T.W·
                                                                                                                          • J


20   while still a premature                                    and fragile infant, was

21   dropped,            injured, and by both parents'                                                 account of the

22   incident,             the subject of a roadside tug-of-war

23   between Mother and Father.

24                      The underlying                          problem that caused ;-Y-W., to

25   be put in peril and injured is the well-documented,

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                 Any reproduction of an official transcript without prior court approval /s prohibited.•
                                                                                                                                              13
 1   deep-seated                 history of violence between Mother and

 2   Father that is embedded                                      in their relationship                                    and

 3   presents            a danger to others, especially                                                     T, W·

 4                       Despite anger management                                           classes, parenting

 5   classes,            services                 from the agency, counseling

 6   received            from a clinician,                               a minister and a pregnancy

 7   crisis group of her own choosing,                                                     as well as

 8   involvement                  in the criminal justice system and PFA

 9   court, Mother has to date been unable to extricate

10   herself           from her relationship                                     with Father, protect

11   herself           from Father, restrain her own violent and

12   abusive           tendencies,                    stop the alternating                                   pattern of

13   being a victim and then a perpetrator                                                            of abuse, or

14   stop her pathological                                  lying.

15                       In fact, based on the evidence,                                                     Mother and

16   Father's            history,                and the courtroom demeanor of both

17   parents,            we firmly believe the parties are together

18   and not, as Mom testified,                                         estranged.                      Simply put,

19   Mother has not demonstrated                                           necessary protective

20   capacities,                 and the reasons that caused T.W. to come

21   into care have not, despite Mother's protestations                                                                                  to

22   the contrary,                    been alleviated.

23                       Continued on page 20:                                       Under the settled law

24   summarized               in the appeal opinion, the applicable

25   standard            is the best interests of the child.                                                              Under

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                                                                                                                                              14
         1   equally well-established                                       law, ;T.W.~                    safety,

         2   permanency                and well-being                         are paramount, and these

         3   considerations                       trump either parents'                                   needs, desires

         4   and beliefs.

         5                        Based on our longitudinal view of the

         6   evidence,              our in-court                      observations of Mother on and

         7   off the witness stand, Mother's overall parenting

         8   history,             and the facts presented by the agency, the

         9   well-reasoned                     and articulated positions of the agency

        10   and T. W.'o ': guardian ad litem, and the applicable law,

        11   it was and is still obvious to us that Mother has

        12   simply not progressed                                 to the point where: T. W. could

        13   safety be returned to her.

        14                       That determination,                                 coupled with T. W.' .s

        15   needs and welfare,                            the amount of time T W. has been

        16   in care, and the firmly entrenched and oft-quoted

        17   doctrine that "a child's life simply cannot be put on

        18   hold in the hope that the parent will summon the

        19   ability to handle the responsibilities                                                           of parenting,"

        20   led us inexorably to the conclusion that the goal

        21   change we ordered was in :T"W.5                                                best interest.

        22                       Finally, on pages 25 and 26 of the case

        23   I'm sorry -- of the appeal opinion,                                                      T:-W,'-'          health,

        24   safety and well-being are the paramount concerns, and
I
    ;
'       25   her best interest is the guide star.

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                                                                                                                                        15
 1                         T.    w. ~.       safety must be ensured regardless of

 2   whether she was injured in the roadside incident,

 3   which scenario could be supported by at least

 4   Father's evidence;                              in the incident where Mother

 5   dropped her, which scenario could be supported by the

 6   statements of either or both parents; or in some

 7   prior incident which has yet to be explained by the

 8   parents, but that would be equally problematic.

 9                        In fact, ; T. W. 's ~ safety must be assured even

10   if Mother's no-injury                                  assertion is accepted.                                         Neither

11   parent has demonstrated                                     the current ability to

12   provide the requisite assurance.

13                        In this regard,                           it cannot be emphasized

14   enough that, under both parents' versions of the June

15   30, 2012 incident, T.W.                                     came into care because the

16   volatile nature of Mother and Father's relationship

17   shockingly caused them to become embroiled in an

18   argument that led them to literally play a game of

19   tug-of-war with TW.                                 in a car seat at the side of a

20   public road.

21                       While T v'I/. is now physically safe, the

22   tug-of-war between the parents continues, at times

23   literally and at times figuratively,                                                         and the

24   underlying               issues that cause their battles have not

25   been resolved.

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                                                                                                                                          16

 1                        That, of course, was all as of the time that

 2   the appeal opinion was written and as of the last

 3   permanency review and goal change hearing that had

 4   been conducted in the case.                                              Now, I read passages

 5   that have negative implications to be true to the

 6   facts and also to balance, as indicated, the opinion

 7   and as the parents have argued strenuously.

 8                       Both parents did make progress toward their

 9   goals.            In fact, in the proposed findings that

10   Children and Youth submitted, progress was noted, and

11   Mother's progress, I think, was noted in most, if not

12   all, of the review hearing orders up to the point

13   when the appeal was filed and afterwards as well.

14                       That continued in terms of checking off

15   goals throughout the time while the case was on

16   appeal and afterwards throughout the termination of

17   parental rights hearing.                                          Procedurally, there was an

18   overlap between the goal change request and

19   proceeding and the termination of parental rights

20   proceeding.

21                       And        I     think it's captured in the opinion,

22   but just quickly because there is a gap in this case

23   that needs to be explained, and probably all of us

24   need to do some self-examination on it, and that is

25   this:          As the dependency case progressed into the

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                                                                                                                                        17
 1   fall of 2013, the matter was scheduled                                                             to be reviewed

 2   by our dependency                           master pursuant                           to our three-month

 3   review protocol                        in September of 2013.

 4                       The agency appeared and objected                                                       to the

 5   jurisdiction                   of the master, and asked the Court to

 6   hear the case, so a hearing was scheduled.                                                                      The

 7   guardian            ad litem then asked for some additional                                                                 time

 8   to subpoena records                              from other states because of the

 9   issues that Mother had there that are referenced and

10   documented                in the exhibits and in the appeal opinion,

11   and the notes of testimony                                         that are cited in that

12   opinion.

13                       So a new hearing date was scheduled, and

14   that was for December                                 of 2013.                  I didn't write down

15   the specific day.                             While all that was going on, and

16   the guardian                  was gathering                        records, the agency filed

17   a termination                    of parental                    rights petition.                               That

18   petition            was filed and because the date can be

19   significant,                  depending                 on whose argument we look at,

20   the termination                       petition               was filed on December 3,

21   2013.

22                       So at that point, we had not yet had the

23   goal change hearing.                                 And there were two subsequent

24   review hearings                       where the change of goal was

25   addressed.                 And so it sort of begs the question why

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                                                                                                                                               18

 1   we didn1t                  include the termination                                       of parental                    rights

 2   petition                in those hearings,                               and the simple question

 3   --      the simple answer, which is contained                                                              in the

 4   footnote                of page 9 of the appeal petition,                                                       was that

 5   at the time the original master's hearing was

 6   scheduled,                   we had not yet been to the magic 15-month

 7   mark in the case, the agency did not ask for the

 8   termination                     of parental                    rights, and the parents had

 9   been making                     some progress,                        as had been indicated in

10   the orders;                     although,                 there were a whole host of

11   problems,                 as even my handful of passages                                                   that I read,

12   indicated.

13                           Then quite frankly, the parties asked since

14   the goal change had already been set up and started,

15   and the agency wanted to get itself together with

16   respect              to termination,                           and Mother and Father wanting

17   to put evidence                           and witnesses together,                                       they ask that

18   the hearing not be heard together.                                                           And even though

19   it's best practice                                to file the two together, there

20   were no concurrent                                filing, if you will, so they

21   started a goal change hearing.

22                          The order that I issued changed the goal.                                                                      I

23   did set a hearing on termination petition,                                                                      but then

24   by request                   from all parties, I agreed to postpone

25   that hearing until after the appeal was filed.

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                     Any reproduction of an offlcial transcripl without prior court approval ls prohlbiled. •
                                                                                                                                        19

 1   Looking           back that was probably                                      something                 that should

 2   not have been done.                                 It, you know, -- the reason that

 3   there is a best practice                                       now with filing at a proper

 4   point in a dependency                                  case towards a goal change and

 5   a termination                    petition                simultaneously                         is so you don•t

 6   have the time that you have here.                                                       You know, when you

 7   do one and you wait for an appeal and then come back

 8   and have the result.

 9                       In any event, that happened                                               at the time --

10   in real time going forward.                                             There were or appeared

11   to be rational                      reasons and bases for doing so.                                                       But

12   with the look back, it probably shouldn't                                                                 have been

13   done that way.

14                       In any event, the appeal was pursued.                                                                 The

15   appeal opinion                      that I talked about was written.                                                        The

16   parties          participated                       in the appeal, so did the

17   guardian            ad litem, and ultimately,                                           as indicated, the

18   Superior            Court -- the Superior Court affirmed the

19   goal change.

20                       So,       after the goal change order -- I1m                                                          sorry

21   -- after the Superior Court's order came down, and

22   the appeal period                           -- the period for filing the

23   petition            for the allowance of an appeal from the

24   Supreme Court expired, a termination petition                                                                        -- the

25   termination                 hearing scheduled on the termination

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                 Any Nproductlon of an official transcript without prior court approval is prohibited.•
                                                                                                                                       20
 1   petition at that point had been filed almost a year

 2   before the first hearing was scheduled; although,

 3   again,         it's         not what the Court wanted.

 4                       The hearing was scheduled in accordance

 5   with, you know, attorney schedules and that included

 6   a three-and-a-half                            month delay to accommodate the

 7   schedules of the attorneys for Father between the

 8   December of 2014 period and the March 2015 hearing.

 9                       So there were review hearings while the

10   appeal was going on, and then the termination of

11   parental rights and corollary dependency review and

12   permanency               placement                 review hearing were held in

13   December of last year and March of this year.

14                      Not much had changed, although, the parties

15   still had visits and continually visited; although,

16   visitation               had been very, very problematic,                                                     both with

17   respect to the agency's side and with respect to the

18   parents, especially with respect to Father.

19                       It came to light that during the --

20   somewhere during the appeal period and between the

21   last review hearing before the Court and then the

22   commencement                  of the termination and review hearing in

23   December of 2014, that despite the concurrent goal of

24   reunification,                     the agency admittedly stopped doing

25   what was in the court order and didn't move at all

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                 Any reproduction of an offlcllill transcript without prior court approval Is prohibited.•
                                                                                                                                     21
 1   towards reunification.

 2                       That shocking revelation came from the stand

 3   from one of the caseworkers, and it was borne out by

 4   the documents                    that were submitted,                                  and also by the

 5   cross-examination                          that was conducted by counsel for

 6   both parents.                      So the case proceeded to termination

 7   hearing with all parties calling multiple witnesses

 8   and making arguments and filing briefs on several

 9   legal issues and then the post-hearing                                                           submission

10   that I talked about.

11                       I do need to note that the parties continued

12   to make some progress, or at least keep checking off

13   some of the black and white stated goals in the plan.

14   However, there were several things that were

15   problematic:

16                      One, again, visitation, which became a

17   matter of principles                              between the agency and Father,

18   especially very unfortunately                                            in this case, was just

19   pot marked with issues even to the point where we had

20   to have a conference and figure out the e-mail

21   protocol and confirm appointments, and even then

22   there were some problems, and, you know, the parents,

23   especially              Father, wants to assess and have the Court

24   assess and pass blame.                                    That's not what the Court

25   does in these cases.

      Punuant to 43 J.D.R.C.P. Rule 260c "No transcript shall be furnished to• party uni/I al/ expenses of transcription are paid.
                Any reproduction of an official transcript without prior court approval Is prohibited.•
                                                                                                                                           22
     1                        On the other hand, I can say that, you know,

     2   Father throughout                            this whole procedure would not

 3       fully adhere to the advisement of the Court, and I am

 4       assuming             from his attorney,                                that at some point you

 5       have to parent,                         I guess put principles aside, and you

 6       have to work towards reunification                                                       rather than trying

 7       to catch every miscue that the agency does.

 8                            On the other hand, it's pretty clear that

 9       the agency didn't                           comply with the secondary portion

10       of the concurrent goal which was reunification.

11       However,             it should be noted that the agency did, of

12       course, pursue the primary first of the concurrent

13       goals which was adoption.

14                            In any event,                       as I indicated before,                                      even up

15       to the termination of parental rights hearing,                                                                         there

16       still had been no full explanation for the injury.

17       Mother had done well visiting,                                               except right before

18       the hearing,                   where she did not appear for the last

19       two or three visits.                                  I am not sure about since then.

20                           Father was working and doing some other

21       things.             However,                I know he continued his principle

22       fight with the agency,                                  at times casting dispersions

23       on the agency and even the Court.                                                      But that is how

24       Father had elected to play this case, despite the

25       best attempts of the Court and initially the best

          Pursuant to 43 J.D.R.C.P. Rule 25Dc "No lranscrlpt shall be furnished to a par!y until all expensas of transcription are paid.
                     Any raproductlon of an official transcript without prior court approval Is prohibited.•
                                                                                                                                        23
 1   attempts            of the agency to try to get him to focus on

 2   parenting              and.T.W,~                    best interest.

 3                       So at the conclusion                                   of the hearing, when I

 4   looked at the briefs, the parties had a pretty

 5   polarized              position.                    The guardian ad litem

 6   articulated                 a very cogent reason why rights should be

 7   terminated,                 why the dependency                                should be continued

 8   and the goal should be maintained                                                    as adoption.

 9                       Father and Mother articulated                                                 their beliefs

10   that because                   the agency had not worked towards the

11   concurrent               goal, that either as a matter of law or

12   fact or discretion,                              that termination                            should not be

13   granted,            and the impasse continued.

14                       So I will say this:                                   This is not a case

15   where it is the shining moment for any of us.                                                                          This

16   is not a case that I'm going to hold up in my

17   repertoire               as one where I guided the parties in the

18   best interest of the child in the best way possible.

19   I am not going to sit here and cast dispersions                                                                          on

20   anyone else.                     Everybody                 else hopefully                        has engaged in

21   that same self-reflection.

22                       From continuing                          these cases, you know --

23   through continuance                             requests and appeals, we tried to

24   give the parents some post-petition                                                       chance to finally

25   get it and make some progress,                                               to not fully following

      Pursuant to 43 J.D.R.C.P.Rule 250c "No transcript shell be furnished to a party until all eJ<penses oftranscriptlon   are paid.
                 Any reproduction of an official transcript without prior court approval is prohibited.•
                                                                                                                                            24
 1   the court orders, to principle                                                 arguments                 against the

 2   agency,            the Court or just arguments,                                               whether they are

 3   credible             or not, and, of course, with respect to the

 4   parents           quite frankly not being candid in their

 5   testimony,                and that especially                                  is one for Mother.

 6                        I hate saying no to things, but I've learned

 7   now that this case is going to look much different in

 8   a cold two-dimensional                                   record on appeal than it did

 9   to all of us who sat in the courtroom                                                           and listened to

10   the evidence,                     watched the witnesses,                                     observed the

11   parties           as the case went along.                                          So, unfortunately,                              I

12   have to make observations                                        such as those.

13                        I want to make this other observation                                                             as

14   well:          It is that the attorneys,                                           who really zealously

15   advocated              and fought for their clients can't testify

16   for clients,                   and I'm going to leave the factual

17   portion           as this:                  Mother and Father wanted to fight.

18   They wanted                 to fight the agency, they wanted to put

19   this in a position                            for appeal, whatever.                                      That was

20   then obvious                   to me.

21                       In the end, I don1t                                have the transcript.                                       No

22   one has requested                          one yet, but I think you're going

23   to come back and you're going to see that there was a

24   lot of venom, quite frankly on both sides, and in the

25   final analysis neither parent sat on that stand,

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                 Any reproduction of an oftlclal transcript without prior cou,t approval Is prohlblt11d.•
                                                                                                                                       25

1    either in this courtroom                                    because we were here for one

2    hearing,           or in my courtroom,                                No. 3, and told me in

3    any detail with any feeling or emotion about how they

4    had any -- about their feelings towards their bond

5    and other emotional                             and spiritual                       feelings towards

 6   their daughter.

 7                      That's understandable                                    after the passage of

 8   time.         It was disturbing                              to me then, and it's

 9   disturbing               to me now.                     So now,             we have to apply all

10   of this to the law,                             and I've laid it out here in the

11   addendum,             and I will note a couple of things.

12                     ·There           was a legal issue that I asked the

13   parties          to address early on in the termination, and

14   that is given the appeal filed by Mother and the

15   several requests                         for continuance                         asked for by counsel

16   for Father, did the statutory provision                                                             that

17   precluded              the Court from considering post-petition

18   efforts by the parents with respect to some, but not

19   all of the bases, were grounds for termination?

20                       Did that coalesce?                                 Did that stop it?                                Did

21   that create some type of exception                                                     to the rule?                       And

22   I got some briefs from the parties.                                                         I think the

23   parties'            research was the same as mine.                                                    There was no

24   real specific case on this issue, other than it is

25   pretty         clear that the statutory provision                                                        against

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                  Any reproduction of an official transcript without prior court approval Is prohibited.•
                                                                                                                                        26

 1   considering                 efforts              initiated after the given notice

 2   of filing a petition                               remained,                 and it has been

 3   enforced            consistently                      by our courts.

 4                       It makes sense because                                      -- at least under the

 5   current          cases ~nd current protocols                                              and rules for

 6   processing               the dependency                         and termination                           cases --

 7   and that is because                              at some point when a petition is

 8   filed in accordance                              with the current rule, and a

 9   child is in care, by definition                                                 in the one that's

10   been cited, for more than a year, it makes sense that

11   we need to look at the child and not put our main

12   focus on the parent.                                  And so we have to have some

13   kind of a cut off and this is what our

14   legislature                 had decided                     -- one second.

15                                           (Off the record.)

16                                     (Back on the record.)

17                       THE COURT:                      I sat through a bunch of

18   hearings,              and I am not just going to -- this is a

19   very important                      case.             So I don1t                  want to speed

20   through, but the president                                         judge is not in today, and

21   I have to attend to a matter in about five minutes

22   and then come back.

23                       In any event, I have concluded                                                   that -- and

24   no party has pointed me in a different                                                            direction --

25   that the rule still applies, even though the petition

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                  Any reproduction of an official transcript without prior court approval Is prohibited.•
                                                                                                                                             27

     1   was filed in December                                  of 2013,               and the custody appeal

     2   was continued.                         We didn't have the first hearing

     3   until a year later, and then it didn't conclude

     4   because           of the other requests until three or four

     5   months          after that.

     6                       Now, that brings us to the issue of does the

     7   rule apply in this case?                                         The agency asked for

     8   termination                 of parental                     rights on four grounds, and

     9   they were grounds set forth in 23 Pa C.S.A Section

    10   25ll(a)           1, 2,           5 and 8.

    11                       The rule on its face applies to the grounds

    12   stated as 1 and 8.                               It does not apply with respect to

    13   2 and 5.               With respect to the grounds under

    14   Subsections                 1 and 8,                the parties have taken the

    15   position            that all of their efforts were initiated

    16   prior to the filing of the termination petition.                                                                              And

    17   so the rule doesn't have application                                                         to the presented

    18   facts.

    19                       And that's one that I've looked at and

    20   thought about carefully,                                      and I don't agree with that,

    21   and here is why:                           To be sure, the parties were

    22   involved            in this case and had actually made some

    23   progress            towards many, in some instances,                                                     or at least

    24   some of the goals even early on in the case.
\
    25                      But the fact that you were starting to make

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                     Any reproduction of an oH/clal transcript without prior court approval is prohibited,•
                                                                                                                                        28
 1   some progress,                      but hadn't                   done other things that are

 2   necessary              or that you might have generally                                                       tried to

 3   get your child back doesn't mean that some specific

 4   effort that you're required to make -- and if you

 5   wait until after the petition                                               is filed, doesn't mean

 6   you get an exception                                to the rule.

 7                       Here is an example:                                    The example in this

 8   case is one of the things that the parties wanted the

 9   Court and the agency to believe was that they had

10   separated              themselves                  now finally.                         We're not going to

11   be together, but up until just before the termination

12   of parental                 rights hearing,                           there was really not much

13   indication               of that because of the continuous                                                        problems

14   between          them.

15                       So at some point there were fewer problems,

16   but, you know, we all have to have some objective

17   manifestation.                        Well, a divorce complaint wasn't

18   filed until a month after the termination                                                                 of parental

19   rights case was filed, and the fact that the parties

20   might have started to stop physically                                                           abusing each

21   other before the termination petition was filed

22   doesn't mean that because                                        they ultimately                          did that

23   months or years after it was filed, that they met the

24   threshold.

25                       So I do not agree that while -- let me back

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                 Any reproduction of an official transcript without prior courl approval Is prohibited,•
                                                                                                                                              29
 1   up --           while certainly                            some progress                       that the parties

 2   made towards the plan goal were achieved prior to

 3   filing the termination,                                         while some were starting

 4   prior and completed                                  after, there were several things

 5   that still remained unsatisfied                                                     or they were early

 6   only commenced                          or commenced                      in earnest after the

 7   petition                was filed.

 8                           The appeal was filed to give more time on

 9   those things, and the other requests                                                             for continuances

10   were made, presumably                                     to give more time to work

11   towards               reunification                       as well.                  That includes the

12   legal and physical                                separation between the parties.

13   That includes                        the still unexplained                                    injury of :T,W.
                                                                                                                                     ,I


14   and that includes a point where the parties were

15   looking              for and asking for something other than the

16   supervised                   visits that they have had because they

17   couldn't                get past having problems with those.                                                               So

18   with respect to 1 and 8 -- Subsections                                                                1 and 8                        I

19   believe              the rule is applied.                                     With respect to 2 and

20   5,      it is not.

21                           The second issue I asked the parties to

22   address              -- and I1ll                    talk about this, and I'll take up

23   the other matter and I'll come back -- is the issue

24   framed by the opinion that Justice Baer wrote in the

25   case of In Re: D.C.D.,                                      which I had pointed out that

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                      Any reproduction of an o"1cia/ transcript without prior court approval Is prohibited.''
                                                                                                                                          30

1    the parties in that case did not yet have an A.3d

2    cite, and everybody had briefs and discussed that.

3                        The issue is that what affect,                                                    if any, did

4    the fact that the agency admittedly didn1t                                                                   follow the

5    order with respect to the concurrent goal, secondary

6    goal of reunification,                                   have on this case, either as a

7    legal matter, factual matter or discretionary.

 8                       I think we've all read that opinion,                                                             and

 9   I1ve     had a chance to read -- there's another one

10   that1s         been cited.                       There's another opinion by the

11   Superior Court that addresses a very similar issue

12   with the cite In Re: D.C.D.                                              Here is my analysis of

13   that issue:

14                       One, I think that the Court -- and on this

15   issue, I believe it was unanimous,                                                       although there was

16   an occurring opinion on a different matter --

17   indicated that the compliance with court orders is

18   not something that is statutorily required, at least

19   not under all the grounds for termination.

20                        And so in terms of that,                                          I believe, as you

21   will see in the addendum, that the case applies, and

22   reunification                     efforts were not a consideration with

23   respect to Subsections                                     (a) (2),             (a) (8) and (a) (1).

24   However,              I do conclude that the efforts or lack of

25   efforts made towards reunification by the agency does

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                   Any reproduction of an official transcript without prior court approval Is prohibited.•
                                                                                                                                          31

 1   come into play, specifically                                            under Section                         (a) (5)           --

 2   Subsection                (a) (5).

 3                       Even In Re: D.C.D.,                                 and the subsequent

 4   Superior            Court decision,                            I have also indicated that

 5   -- and I think that both parents argued --                                                                   that the

 6   Court can consider                             them in exercising                                its discretion

 7   with respect                   to actions or omissions                                        of the parents

 8   with respect                   to other grounds, but there's not a

 9   statutory              requirement.

10                       Finally, while the considerations                                                        on D.C.D.

11   and the subsequent                             Superior Court case made it

12   explicitly                clear that the remedy, if there is

13   otherwise              a properly                   supported termination motion, is

14   not to deny the motion, but it is to make a finding

15   that would remove from the agency the ability to get

16   federal reimbursement                                  and funding for a particular

17   case.

18                       The parents,                       obviously,                  the way they wrote

19   their briefs,                     think that the policy ought to be

20   something              different.                      But we have the unanimous

21   Pennsylvania                   Supreme Court telling all of us

22   otherwise.                  So regardless                        of how we believe the

23   issues were raised and the arguments were made, that

24   is the law.                    I am going to attend to this matter, and

25   I'll be back in just a couple of minutes.

       Pursuant to 43 J.D.R,C.P. Ruta 250c "No transcript shall be furnished to a pal1.y until all expenses of transcription are paid.
                  Any raproducl/on of an official transcript without prior coul1. approval is prohibited."
                                                                                                                                            32

 1                                          (Off the record.)

 2                                     (Back on the record.)

 3                       THE COURT:                      Sorry for the interruption.                                               So

 4   I think I ended with indicating my analysis of the

 5   two legal issues.                              I just want to flush out why I

 6   don1t       believe              that Subsection                            (a) (5)          is covered by

 7   or at least to the full extent -- covered by the In

 8   Re: D.C.D. opinion.

 9                       One is             {a) (5)           was actually a subdivision or

10   subsection               of the termination section that was

11   specifically                  mentioned                  by the Court In Re: D.C.D.,                                              at

12   one to which reunification                                         services may be relevant,

13   and that is because                              of the language of (a) (5)                                         that

14   talks about a parent cannot or will not remedy those

15   conditions               within a reasonable period of time, and

16   then the services or assistance reasonably                                                                  available

17   to that parent are not likely to remedy the

18   condition,               et cetera, et cetera.                                      Obviously,                   if

19   services aren1t                        fully provided then it would be tough

20   for them to rely on those services.

21                       Having said that, I am not sure how much of

22   an impediment                    it is to this case.                                   You know, the

23   construct              of the concurrent goal was discussed in the

24   appeal opinion                      I filed before.                            It has also been

25   discussed              by                in several Supreme Court opinions

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                  Any reproduction of an official transcript without ptlorcourt approval Is prohibited.•
                                                                                                                                        33

1    and Superior Court opinions,                                            and it is a way of -- a

2    new way of looking at cases so you don't have to walk

3    lockstep through all the different scenarios and

4    possible placements                             and possible goals.

 5                       In any event,                       it's constructed by the

 6   concurrent               planning so that you don't have to walk

 7   lockstep through the different goals, either going

 8   forward or going backwards in the cases where it is

 9   streamlining                  from,           Jet's say adoption, back to

10   reunification,                     and you can do some work on both ends.

11                       So, we have a situation where it's common

12   to consider that a hybrid goal.                                                   And in this case, we

13   have the agency that worked towards one part of the

14   goal, the adoption part, but not the other which was

15   the unification.

16                       In any event, when I looked at this and

17   applied the statutory provisions,                                                    because there had

18   been progress made and because the agency did not

19   work towards the concurrent part of the goal, I don't

20   think that termination under Section                                                          (a) (5) can be

21   supported.                  So I do not find that is ground for

22   termination.

23                       With respect to {a) (1), that is one of the

24   sections that is subject to the pre versus

25   post-petition                     filing provision.                               And so I am going to

       Pursuant to 43 J.D.R.C.P. Ru/a 250c "No transcript shall be furnished to a party until all expenses of transcription are paid.
                  Any reproduction of an official transcript without prior court approval is prohibited."
                                                                                                                                         34

1    look at that too,                           and if I believe that with respect

2    to the actions and omissions and the conducts of the

3    parents          towards               reunification,                        that the grounds were

4    established                 at the time of filing with petition under

 5   Subsection                (a) (1),            because they certainly had for

 6   more than six months                                failed to perform                              their parental

 7   duties.

 8                       Subsection                   1 doesn't talk about incapacity.

 9   It's not necessarily                                abandonment,                     but it1s                just that

10   they haven't performed                                   their duties.                          At that point

11   in time Mother was in jail.                                              Father was in jail.

12   They both got out of jail.                                            They spent a lot of time

13   fighting,              and that was the height of their absolutely

14    incredible               co-dependent                      relationship,                       and they

15   certainly              weren1t              providing                 the parental                      duties for

16   -, .w.    then.

17                        I believe                 the statute for the grounds were

18    established,                  and because                     I believe the post-petition

19    conduct,            some of which was instituted                                               afterwards,

20    shouldn't             be considered                        on that ground.                             Nothing done

21    afterwards               mattered.

22                        With respect to (a) (2),                                       it's typically

23    talking about the incapacity of the parents to

24    perform          parental                duties and to get back their child.

25    Many times that's discussed when there are physical,

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                   Any reproduction of an off/cla/ transcript without prior court approve/ ls prohibited.•
                                                                                                                                        35

 1   medical,            substance abuse or mental health issues that

 2   preclude            the parents from having the requisite

 3   capacity.

 4                       But it also talks about it in the context of

 5   being incarcerated,                              and in one recent case even with

 6   respect to having the long-term protection                                                                   from abuse

 7   order issued against the parent.

 8                       So I don't -- I think the agency has

 9   established                 grounds with respect to (a) (2), but not

10   because of the parental capacity but because as of --

11   for the reasons I have articulated, and the parents

12   have not -- and they have refused to provide, by

13   their actions, the essential parental care, control

14   and assistance.

15                       With respect to No. 8,                                      that is another

16   provision              or subsection,                         I should say --                           I'm sorry

17   that is subject to the filing, or if you will, of the

18   petition.                 So pretty clearly you don't have to go

19   past the appeal opinion, and I wrote an appeal to

20   look at the time of filing of the petition that

21   statutory grounds were established,                                                       and for -- I

22   should have said this -- for No. 1, of course,                                                                         the

23   time frame is six months and certainly the parents,

24   through Subsection                             1, had failed to perform parental

25   duties for much more than six months as of filing of

       Pursuant to 43 J.D.R.C.P. Rule 260c "No transcript shall be furnished to a party until all erpenses of transcription are paid.
                  Any reproduction of an official transcript without prior court approval is prohibitad. •
                                                                                                                                        36

 1   the petition,                     and then even for some time afterwards.

 2                        With respect to No. 8, the period is longer;

 3   it's       12 months,                  and it's very clear that the parents

 4   as of that time, you know, had met the 12-month

 5   period.              So if we walk through Subsection                                                       (a) (8), the

 6   agency was required to show:

 7                        1.        The child had been removed from the care

 8   of the parent for at least 12 months.                                                              That's pretty

 9   much undisputed.

10                        2.        The condition that led to removal or the

11   placement              of the child still exists,                                            and that was

12   certainly               true back then,                          and I believe is,                              in large

13   measure,             still true now.                             Even if I am wrong legally

14   on the time mark                                 or the filing time mark.

15                        3.        The termination of parental rights best

16   serves the needs and welfare of the child.                                                                     Under the

17   case, as I have cited in the addendum,                                                            there are two

18   needs and welfare analyses that needed to be

19   conducted               in this case:                         One is under Subsection

20   (a) (8) and that is to see if the grounds for

21   termination                  is met.

22                        Then next is under Subsection                                                 (b), for any

23   ground that is met, or any multiple grounds that are

24   satisfied,                whether a general termination                                                meets the

25   needs and welfare of the child.                                                   And so that's where

       Pursuant to 43 J.D.R.C.P. Rule 260c "No tran1crlp11hall be furn/shed to • patty uni/I al/ ..vpenses of lrsnscrlpt/on •ro paid.
                  Any roproducllon of an oft/clal transcrlpl without prior court approval ls prohlb/11d."
                                                                                                                                        37

1    we are now.

2                       With respect to Subsection 8, which is not

3    required necessarily,                                and I will make this clear,

4    separate and apart from the holding in D.C.D.,

5    Subsection               8, when it's considered as the ground for

6    termination                as opposed to Subsection                                          (b), it does not

7    require an analysis of the reunification                                                               efforts of

 8   either party or the agency, and that's pretty clear

 9   from the cases.

10                       In any event, with respect to the needs and

11   welfare analysis, here is the inescapable                                                                 fact:

12   Whether you measure it as of the time of filing of

13   the termination                       petition or whether you come all the

14   way down almost three years later to this date, or we

15   measure it somewhere in the 24 to 30 some months time

16   frame while the appeal was pending while the

17   termination                 proceedings                    were ongoing,                       an inescapable

18   fact is this:

19                       While the parties -- while Mother was making

20   apparently               false accusations against Father,                                                        the

21   parties were filing criminal and PFA filings against

22   each other, they were exhibiting a pathological

23   co-dependency,                      although it's hard to imagine, and all

24   the other things that were in here, a foster family

25   was raising -,-:-w.                           The foster family was providing --

       Pursuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be furnished to a parly unt/1 all expenses ot transcript/on are paid.
                  Any reproduction of an off/c/a/lranscr/pt without prforcourl approval is prohlbltad."
                                                                                                                                       38
 1   not Mom and Dad -- was providing                                                   the love, care,

 2   companionship                    and support                     that the law demands and

 3   that    1.W.           deserves               - - not the parents                               - - and that is

 4   an inescapable                      fact.

 5                       The evidence was very clear that Time is

 6   very bonded with the foster family, and it was clear

 7   to me that severing that tie would be very

 8   detrimental                 to :T:W.                  There was also an indication

 9   that there was some bonding between T W. and both

10   parents.              However,                I am going to indicate                                      that          T. W.

11   has been in foster care in a pre-adopt                                                            home and has

12   only supervised                       visits with a brief time when there

13   were some community                             visits with either parent for

14   virtually             all her life.

15                       The first few months of her life were spent

16   in the hospital.                           There was a brief period after the

17   hospital           before she went into foster care that she

18   was with both parents,                                  and I guess at some point with

19   Mom in a shelter, but that really -- that didn't

20   really establish                        any traditional bond.                                       The bond that

21   is there is one that was developed with set visits

22   and because of the biological                                             tie.

23                      We can't discount the fact that there is a

24   biological               tie.           We can't discount the fact that                                                    T:W.
25   knows who her parents are.                                           But, you know, a bond

      Pursuent to 43 J.D.R.C.P. Rule 250c "No transcript shell be furnlshsd to a parly unt/1 sll expenses of transcription are paid.
                 Any reproduction of en otflclel transcript wilhout prior court epproval Is f'!Dhlb/led. •
                                                                                                                                          39

 1   that's developed while the child spends the first two

 2   and a half to three years of her life in foster care,

 3   isn1t       quite the same thing than the bond that a

 4   parent and child create and develop with something

 5   other than biological                                  tie and something other than

 6   supervised visits and periods of time because of

 7   incarceration                    or inability to get there when there

 8   were no visits, especially with respect to Mother.

 9                       So with respect to the third component of

10   Subsection                8, I think that's pretty clearly met, and

11   for the same reasons the needs and welfare analysis

12   applied, the bond analysis applied with respect to

13   Subsection                 (b) .

14                        In that regard, we're also supposed to look

15   at not only is there a bond between parent and child,

16   we have to look at what the affects of severing that

17   bond would be.                         And since there is a strong bond with

18   the foster family -- pre-adopt family -- we need to

19   look at what the affects of severing that would be.

20                       My assessment of everything in this case,

21   including the facts, the evidence,                                                       my observations in

22   court of the parents and all the documents I reviewed

23   is that severing the bond with parents when they have

24   some biological problems pale in comparison to at

25   this point, and even as of the time the petition was

       Pursuant to 43 J.D.R.C.P. Rule 250c "No transcript shall be fu,nlshed to II parl.y until ell expenses of lranscrlpllon a,e paid.
                  Any reproduction of en ottlclsl lranscript without prior coutt approval ls prohibited."
                                                                                                                                           40

1    filed, of severing the bond between T.                                                           w.      and her

2    foster parents.

3                       There is also a need to look at the safety

4    of a child, and that can be considered                                                             under the

 5   needs and welfare analysis.                                              The safety consideration

 6   typically             arises in cases involving physical or

 7   sexual abuse against the child or severe neglect or

 8   abandonment                 of the child or improper care, especially

 9   with a child with special needs.

10                       However,                in this case safety considerations

11   are pretty clear, and the fact that again we don't

12   know what happened,                              and whether or not parents are

13   truly separated,                         which I don't think they have

14   established.                     Whether their volatile                                        relationship                      can

15   cause problems                      for T.W, and safety problems                                                  for her

16   is something                   else all together, and I don't think

17   safety has been established                                            either.

18                       The needs and welfare analysis                                                     is a

19   difficult              one in any case.                                It's         a difficult one in

20   this case.                  But I think the agency has met its

21   burden,           both under Subsection                                      (a) (8)           and under

22   Subsection                 (b).           With respect to the dependency                                                    case,

23   the standards are not set forth in the addendum, and

24   that's because they're recited in full in the prior

25   opinion           that I wrote.

       Pur.suant to 43 J,D.R.C.P. Rule 260c "No transcript shall be furn/shed to a parl.y until a/I e"pensll5 of transcription are paid.
                   Any reproduction of an official transcript without prlorcourl. approval Is prohibited.•
                                                                                                                                            41

 1                        With respect to the findings                                                 that I am

 2   required             to make regarding permanency,                                                   placement,

 3   goals, et cetera, I am going to generally                                                                    find as

 4   follows,             and I will include those in the order that

 5   will be issued, and it will be as follows:

 6                        One, there is continuing                                          and necessity                         for

 7   the appropriateness                               of the current placement.                                                Two,

 8   the parents have shown moderate progress                                                                  towards the

 9   family service plan and goals in this case.                                                                            There

10   has been some progress made towards alleviating                                                                              the

11   circumstances                     that necessitated                               the original

12   placement.

13                        Next, the appropriateness                                            and feasibility of

14   the current placement                                   goal is proper, and obviously

15   I'm terminating                        parental                 rights now because the goal

16   of adoption                  is a correct one in my estimation.                                                              A

17   likely date by which the goals of the child might be

18   achieved,              that depends, of course, on whether appeals

19   are filed or not.

20                        I think it can certainly be done in six

21   months          if they are not, and whether the child has

22   been in placement                            for at least 15 of the last 22

23   months,           and that, obviously,                                    is yes.                 I will also

24   indicate the termination                                       petition that was filed was

25   actually             right around, maybe a little bit after the

       Pursusnt to 43 J.D.R.C.P. Rule 250c "No transcript shall be furnished to II psl1y unt/1 a/I e1tpenses of tran.crlption   ere paid.
                  Any reproduction of an official transcript without prior court approval Is prohibited.•
                                                                                                                                                       42

           1   15-month period,                          what did I say,                           17 months or so.

           2                        The bottom line here is this:                                                    While I am

           3   not happy that the agency did not comply with the

           4   court order, the secondary goal, you know, we have to

           5   put that aside because                                    all the cases cited,

           6   especially                the most recent ones, talked about that we

           7   have to give these types of cases with the standard

           8   of the best interest                                 of the child in mind; the fact

           9   that quite frankly while the appeal was going on or

          10   whatever             I let the case get slipped away

          11   procedurally;                     the fact that the parents wanted to

          12   exercise             their right to fight with the agency and

          13   stand on principles                               that provoked this case rather

          14   than actually                     move towards reunification                                            are things

          15   we're going to have to learn from so we can move

          16   forward.

          17                        So I will issue orders terminating parental

          18   rights on three of these four grounds, not                                                                    (a) (5).              I

          19   will issue a dependency                                     order that will continue the

          20   placement,                continue dependency                                 and include the
'cpl~:,
          21   findings that I summarized                                         today on the record.

          22                       Having done all this,                                     I want to advise both

          23   parents           they have a right to appeal my decision.                                                                     If

          24   you wish to file such an appeal, the appeal must be

          25   filed within 30 days of today's date.                                                             The appeal

                 Pursuant to 43 J.D.R.C.P. Ruta 25ac "No tr.msctlpt shall be furnished lo a party until all expenses of transcript/on are paid.
                            Any reproduction of an o"'clal transcript without prior court approval Is prohibited.•
                                                                                                                                           43
     1   must comply with a set of rules called the

     2   Pennsylvania                    Rules of Appellant                                Procedure.                    And

     3   because            this is a case involving a dependent                                                            child, a

     4   set of --               a subset of rules called the Children's

     5   Fast Track Rules apply.

     6                        That means this case is on the fast track,

     7   which is the same set that applies when Mother filed

 8       the appeal in the dependency                                             proceeding.                       If you wish

 9       to file those, you have a right.                                                      Ma'am, you have a

10       court-appointed                        attorney.                    Mr. Leeth will be

11       available               to talk about the options and to file, if

12       you want to do so.

13                            Mr. Warner, you have your own attorney                                                               --

14       actually             two attorneys.                           But if it comes to a point

15       where you cannot afford those attorneys,                                                                and you

16       qualify,            the court will appoint an attorney                                                         for you

17       to discuss                this matter and for any post-hearing

18       proceedings                 that may be filed.                                  Thank you.

19                           MS. WEEKES:                       Thank you, Your Honor.

20                                     (Proceedings concluded.)

21

22

23

24

25

          Pursusnt to 43 J,D,R.C.P. Rule ISOc "No transcript shall be furnished to a p•rty until all expense& of transcription are paid.
                     Any reproduction of an official transcript without prior court approval is prohibited.•
                                                                               Circulated 02/18/2016 11:32 AM


                      COURT OF COMMON PLEAS OF MONROE COUNTY
                            FORTY-THIRD JUDICIAL DISTRICT
                          COMMONWEAL TH OF PENNSYLVANIA
                               JUVENILE COURT DIVISION


In re T.W., a minor                                             NO. 64 DP 2012

                                                                FID 45-FN-41-2012

                                                              · APPEAL DOCKET 792 EDA 2014


        OPINION IN SUPPORT OF ORDER PURSUANT TO Pa. R.A.P. 1925(a)

        In this Children's Fast Track matter, D.W. ("Mother") has appealed the order

entered on February 4, 2014, that continued T.W.'s dependency and changed the

permanency goal from reunification, with a concurrent goal of adoption, to adoption,

with a concurrent goal of reunification.1             Mother complied with the Fast Track rules by

filing her 1925(b) statement with her notice of appeal.                      We now issue this opinion

pursuant to Pa. R.A.P. 1925(a).2

        The relevant history, including the first contact that Monroe County Children

and Youth Services (CVS) had with this family, predates T.W.'s birth.

        Mother and T.W's father, E.W. ("Father"), were married in May of 2011. Their

time together has, to put it mildly, been very turbulent,                             Their roller coaster

relationship has been a'2Jn-again, off-again affair that is marked by numerous claims
                 l_., .... _. __ ,....__ __ {'
of domestic violence by each parent, criminal charges flying back-and-forth, multiple

I
 T.W.'s·father did not file an appeal.
20ver
      the course of this case, four hearings have been transcribed All four transcripts, with accompanying
exhibits, are included in the certified record. For clarity and ease of reference,the transcripts will be cited as
follows:
     • The transcript of the July 2, 2012 Shelter Care Hearing will be cited as "N.T. l, pp._"
     • The transcript of the August 2, 2012 Adjudication Hearing will be cited as "N.T. 2, pp._"
     • The transcript of the December 20, 2013 Review Hearing will be cited as "N.T. 3, pp._"
     • The transcript of the second day of the review hearing, convened on January 24, 2014, will be cited as
          "N.T., 4 pp._"
filings under the Protection From Abuse ("PFA") Act, outright lies told by Mother

about Father,   instability, periods of separation,    and, significantly, a rare level of

pathological   co-dependence    that has continually brought Mother and Father back

together despite the volatility of their union.   Acts of violence occur when Mother and

Father are together and when they are separated.         (N.T. 2, pp. 9-14; N.T. 3, pp. 11,

14-18, 21-27, 52-56, 65-67, and Exhibits 2 through 4; N.T. 4, pp. 23-24, 30-31, 45-

46, 84-88, 110-122, and GAL Exhibits 1 through 5).

       Mother and Father both have children other than T.W.            In fact, both have

children from prior relationships thatwere also marked by domestic violence.

       Including T.W., Mother has four children with four different fathers.           Her

relationships with the· fathers of her three other children involved abuse, violence,

and multiple PFA orders, some of which were issued against Mother. (N.T. 2, pp. 13-

14; N.T. 3, pp.15-16    and Exhibit 4; N.T. 4, pp. 141-150).      In part because of this

history, Mother does not have custody of any of her minor children.        Mother's oldest

son, who is an adult, lives with Mother in Monroe County.       However, her eight year-

old son lives with his father in Georgia, a state that Mother cannot visit due to an

outstanding arrest warrant.     Mother has not seen her younger son in person since

December of 2010. Similarly, Mother has a five year-old daughter who lives with her

father in Florida.   Mother last saw her daughter in April of 2011 when the police

removed the child from Mother so that the child could be returned to her father. (N.T.

2, pp. 13-14; N.T. 4, pp. 146-150).      Finally, as discussed below, T.W. has been in

care in Monroe County since July 1, 2012.




                                              2
       Father has at least sixteen children with several different mothers.           His

children range in age from a son who is twenty-two down to T.W., who is now two

years old.   (N.T.   2, pp. 13-14; N.T.   3, p. 111; N.T. 4, pp. 122-127).      Domestic

problems in Father's past relationships started almost twenty-five years ago when the

mother of his oldest child obtained a PFA against him. (N.T. 4, p. 127).              The

continuation of domestic problems led to the initial contact between CVS and Father.

       In October of 2011, after Mother and Father were married but before T.W. was

born, the mother of nine of Father's children filed in this Court a petition, on behalf of

herself and all nine children, seeking a PFA against Father.       CVS was ordered to

assess the safety of the children.    Following a hearing, the petition was granted and

an eighteen-month     PFA was issued against Father. The children and their mother

were all named as protected persons.       After the PFA was issued, the children and

their mother moved to New Jersey. (N.T. 2, pp. 5-10; N.T. 4, pp. 122-127).

       Subsequently, Mother became pregnant with T.W. Nonetheless, the domestic

violence between Mother and Father continued. They tried some forms of counseling,

but subsequent history has demonstrated that the counseling was not successful.

       T.W. was born       In        2012. She was very premature and had to stay in

the hospital for a long time after birth. As a result, T.W. has a heart condition that

needs to be monitored. Although both parents were aware of the condition, neither

mentioned it to caseworkers when T.W. came into care. CVS later found out about

the condition from one of T.W.'s doctors. (N.T. 2, pp. 9-15; N.T. 3, pp. 132-133).

       T.W. first came to the attention of CVS on June 30, 2012. On that date, the

agency received a referral that T.W. had been injured when Father threw her in her



                                            3
car seat out of the family's van during a roadside argument with Mother. T.W. was

initially taken to Pocono Medical Center, a local hospital, where she was diagnosed

with a concussion and tests showed that she had hairline fractures. As a result, T.W.

was transported to the pediatric trauma unit at Lehigh Valley Hospital, a regional

medical facility located in Allentown, Pennsylvania. (N.T. 1, pp. 5, and 13-14; N.T. 2,

pp. 9-18, Ex. 7, 8, and 9; N.T. 3, pp.39-48, Mother's Exhibits 1 and 2, and GAL

Exhibit 1; Dependency Petition, filed July 9, 2012).

       T.W. spent one night in Lehigh Valley Hospital. While T.W. had observable

injuries, she was luckily not as seriously injured as originally thought.     She was

described as having a contusion on the left side of her head, a history of prematurity,

and having suffered a fall, a head injury, and post concussive syndrome.      She was

released the next day.    (N.T. 2, pp. 9-18, Exhibits 7, 8, and 9; N.T. 3, pp. 39-48,

Mother's Exhibits 1 and 2, and GAL Exhibit 1 ).

       CYS caseworkers interviewed Mother at Lehigh Valley Hospital about the

incident.   Regarding T.W.'s injuries, Mother told the caseworkers that the incident

occurred while Father was driving her to a new job. During the trip, a bad argument

erupted. Father became enraged, called Mother horrible names, hit and slapped her,

and pulled her hair. At one point, Father pulled over. When Mother tried to take T.W.

out of the car to keep her safe, a tug-of-war over the baby ensued. In a fit of rage,

father grabbed the seat and threw it to the ground with tremendous force.       Father

started to leave, but then came back and broke Mother's cell phone. He then drove

away, leaving Mother and T.W. at the side of the road (N.T. 2, pp. 9-20; Dependency

Petition, filed July 9, 2012. See N.T. 3, pp. 39-48). The statement Mother gave the



                                            4
caseworkers was consistent with the statements she gave to the Pennsylvania State

Police and medical personnel. (N.T. 3, pp. 100-102). In all initial statements, Mother

unequivocally stated that Father threw T.W. in her car seat out of the vehicle.

       The caseworkers also obtained from Mother a history of her relationship with

Father. Mother told the caseworkers that Father is verbally and physically abusive,

very controlling, and vulgar.   She stated that Father had assaulted her on several

occasions and showed the caseworkers scars and burns up and down her arms that

she said were inflicted by Father.    The caseworkers took photos of the burns and

scarring that were later admitted into evidence during the adjudication hearing.

Mother also told the caseworkers that Father had raped her and had "put out a hit on"

the woman who was the mother of nine of his children and who had obtained PFA

against him. (N.T. 2, pp. 9-20; Dependency     Petition, filed July 9, 2012. See N.T. 3,

pp. 39-48).

       Based on Mother's statements and T.W.'s injuries, the caseworkers developed

a safety contract.   The plan included Mother filing for a PFA against Father, having

no contact with Father, and taking T.W. to a shelter where Mother had previously

sought refuge from Father. Mother agreed to the contract. (N.T. 2, pp. 18-19).

       The caseworkers explained to Mother that, given the circumstances, CVS

would be opening a case, investigating the matter, and providing necessary services.

Mother was told the investigation would include running criminal history checks.

Mother was then asked whether she had any criminal history. Mother denied having

any history. (N.T. 2, p. 20).




                                           5
        As a result of the incident, Father was charged with Aggravated Assault and

related charges.       He was incarcerated in the Monroe County Correctional Facility in

lieu of bail.

        CVS caseworkers ran Mother's criminal history.       They discovered that Mother

had not been honest with them, in that she had a substantial arrest record, including

a charge of cruelty to children, although dispositions for some of the arrests were not

reported.       Significantly,   the history also revealed that there was an outstanding

warrant out of Georgia for Mother's arrest on forgery charges which was lodged with

the notation that Georgia would extradite. (N.T. 1, pp. 2, 5, and 10; N.T. 2, pp. 20-25;

N.T. 3, pp. 46-48).        Later, CVS learned that Mother had used several names and

aliases in several states and that she had or may have additional criminal history in

other states. (N.T. 1, p. 7; N.T. 2, pp. 20-24).

        Mother was arrested on the warrant on July 1, 2012. That same day, CVS

sought and was granted emergency protective custody of T.W. since both of her

parents were incarcerated and no suitable relatives were immediately available. T.W.

has been in care ever since.

        Over the next few weeks, several hearings were held.         In addition, Mother's

story and position began to change. In broad summary:

        A shelter care hearing was held on July 2, 2012.       The hearing was convened

quickly in order to give Mother the opportunity to place her position on the record and

advise the Court, CVS, and the guardian ad fitem of possible family or other

placement resources for T.W. before she faced extradition to Georgia. ln fact,

Mother was allowed to participate in the hearing by telephone from jail so that she



                                                6
could assert her position. (N.T. 1, pp. 2-8 and 15p19).   Mother provided the names of

several family members, including her 21 year-old son with whom she lived, as family

resources.   (Id. at 10-13). Surprisingly, Mother then began the process of recanting

her story and accusations against Father. She said that the charges (which were

based on statements she made to authorities) were false and inaccurate, that she

would not testify against Father, that she did not believethat father had injured T.W.,

that the doctors at Lehigh Valley indicated that Pocono Medical Center had

misdiagnosed T.W., and that T.W. did not have any injuries. (Id. at 8-11, 13, and 15).

Mother also stated that, if she was extradited to Georgia and Father was released

from prison, she wanted T.W. to be with Father. (Id. at 13 and 15).

        Around the same time, a separate extradition hearing was held. In advance of

the hearing, the Commonwealth filed a motion to detain Mother here as a material

witness in the case against Father.       At hearing, the Assistant District Attorney

assigned to the case represented that he had personallycommunicated with officials

from Georgia who, despite the extradition notation in the data base, declined to

extradite Mother. Thus, both extradition and the Commonwealth's motion became

moot.

        At one point while both parents were in jail, Mother attempted to use deception

to arrange an in-jail meeting with Father. Specifically,she falsely told officials at the

jail that the undersigned had given her permission to meet with Father in the

correctional facility to discuss their cases and T.W. Of course, no such permission

had been given. The in-jail meeting was foiled when the correctional facility called




                                            7
    CVS and was told that the Court had not given any such permission. (N.T. 2, pp. 61-

    63).

           Prior to the adjudication hearing, Father gave his first version of what had

    happened on June 30, 2012. He indicated that it was Mother who violently pulled

    T.W. in her car seat from the car. (N.T. 2, pp. 44-47, and 53).

           In addition, Mother was arrested and criminally charged for the incident and

    injuries sustained by T.W. As a result, as of the time of the adjudication hearing, both

    parents stood charged with committing crimes against T.W.

           An adjudication hearing was held on August 2, 2012.3 At the hearing, several

witnesses testified and medical records from Pocono Medical Center and Lehigh

Valley Hospital were admitted into evidence. It was established that T.W. had been

injured, but not as seriously as originally thought. (N.T. 2, pp. 18-20, 28-30, and

Exhibits 3, 7, 8, and 9). At the conclusion of the hearing, T.W. was adjudicated

dependent and her placement in foster care was continued. The initial permanency

goal was reunification. Neither parent appealed the dependency adjudication.

           Based on her age, T.W. qualified for this Court's three-month review protocol.

Accordingly, three-month permanency and placement review hearings were held

before the dependency Master throughout the remainderof 2012 and into 2013. The

last hearing before the Master was held in May of 2013. Throughout the proceedings

before the Master, the permanency goal approved by this Court was reunification,

with a concurrent goal of adoption. (See Orders dated October 25, 2012, January 10,

3
  The adjudication hearing was initially scheduled for mid-July 2012, but was continued and then rescheduled to
August 2, 2012, because of the subsequent charges that were filed against Mother, the preliminary and other
hearings that were being held in the criminal cases, and a series of unfortunate conflicts that arose regarding
attorney representation for the parents. These intervening events account for the delay between the shelter care
hearing and the adjudication hearing.

                                                       8
2013,     and     May      10,     2013).        No     party     objected to        any     of the       Master's

recommendations.

         This case was scheduled for another review hearing before the Master in

September of 2013.               At the hearing, the parties appeared.                  CYS objected to the

jurisdiction of the Master. Even though no hearing was held that day, the appearance

was significant in that Mother showed up with- injuries that she said were inflicted by

Father in an incident for which Father was criminally charged.                             The charges were

later dropped because Mother refused to cooperate. (N.T. 3, pp. 21-22).

         As a result of the objection lodged by CYS, a hearing before the Court was

scheduled in October 2013. However, the guardian ad /item asked for a continuance

so that she could obtain records regarding Mother from both Florida and Georgia.

The continuance was granted.

         A review hearing was convened before the Court. Evidence was taken on

December 20, 2013, and January 24, 2014. At the conclusion of the review hearing,

the Court issued the goal change order from which Mother has filed this appeal,"

         The two-day review hearing generated a substantial amount of evidence.

Due, in part, to changes in counsel for both parents over the course of this case, a

significant portion of the two-day hearing repeated evidence, much of which is

summarized above, that was introduced in prior proceedings.                                  In addition, new


4
  On December 3, 2013, CYS filed a petition for termination of the parental rights of both parents. We recognize
that, in an appropriate case, it is a "best practice" to hold goal change and termination of parental rights hearings
simultaneously. In this case, we did not adopt this procedure because the petition for a review hearing was tiled
and the review hearing was originally scheduled within the relevant fifteen month period, the rescheduling
before the court and attendant continuance were requested by CYS and the guardian ad litem, not parents, the
termination petition was not filed until after the review hearing had been scheduled, and, significantly, review
orders and record facts demonstrated that parents had made moderate progress. In the order that Mother is
challenging in this appeal, we scheduled a hearing on the termination petition. However, at the request of the
parties, that hearing has been continued until this appeal is decided.

                                                          9
evidence was presented,        and matters that had been previously recited were

expanded upon and clarified.

       At the review hearing, Father provided his version of what happened on June

30, 2012. The first portion of Father's story is consistent with the statements Mother

made at the time.   Like Mother, Father indicated that the incident occurred when a

very bad argument erupted while Father was driving Mother to work and a tug-of-war

over T.W.'s car seat occurred after Father had pulled over to the side of the road. In

all other respects, the parents' respective versions of events were diametrically

opposed. (N.T. 4, pp. 91-101).

       Father denied that he hit or verbally or physically abused Mother. In addition,

Father stated that Mother was the instigator.   He adamantly denied throwing T.W. in

car seat from the vehicle.     Instead, he testified that he tried to block Mother from

removing T.W. from the van, but that Mother, in the tug-of-war, was violently pulling

at the car seat and ultimately violently pulled the seat out of the van. Thereafter,

Mother held the car seat behind her while threating various types of action against

Father. This version of events is consistent with what Father had previously told CYS

workers. (N.T. 2, pp. 42-43, and 46-48; N.T. 3, pp. 3 and 48; N.T. 4, pp. 91-101).

      Father's rendition of what happened during the June 30, 2012 incident was not

the only evidence presented during the review hearing of Mother's inappropriate

physical handling of T.W. and was not the only explanationfor T.W.'s injuries that he

advanced. Additionally, Father showed a CVS supervisor text messages in which

Mother informed Father that she had dropped T.W. two days before the June 30,

2012 incident and admitted to making up the allegationsagainst Father. (N.T. 3, pp.



                                           10
 59-62; N.T. 4, pp. 42-49).     CVS found the timing of Father's disclosure to be

problematic, because the disclosure was made months after T.W. was adjudicated

dependent and long after the dropping incident should have been reported to medical

personnel. (N.T. 3, pp. 59-62; N.T. 4, pp. 25-26, 37, 42, and 49).

       Along similar lines, Father's two versions about how T.W. was or could have

been injured was inconsistent with both parents' early contention, which Mother

resurrected during the review hearing, that T.W. had not been injured. (N.T. 3, pp.

59-62).

       Between the time T.W. came into care and commencement of the December

2013 review hearing, significant events transpired in the parents' criminal cases.

First, Mother fully and formally recanted her story. She said that Father did not throw

T.W. out of the van.    As a result, and because the injuries to T.W. were more

ambiguous than initially thought, the Commonwealth ultimately withdrew the charges

against Father. Mother, in turn, pied guilty to an amended charge of false reports to

law enforcement based on her lying to the police about Father. She was placed on

probation. (N.T. 3, pp. 39-48 and 95-104).

      Evidence presented during the review hearing demonstrated that Mother and

Father's continuing course of abusive and violent conduct against each other, of

which the June 30, 2012 indent was a part, has not abated. Specifically, even after

Mother and Father were told they needed to stop the pattern of abuse and violence

before T.W. could safely be returned to either or both of them, there were additional

incidents in which one parent assaulted or allegedly assaulted the other. In several

of the incidents, police responded and the parent who committed the assault was



                                             11
 charged.     In one incident, caught on videotape, Father assaulted Mother outside a

 community library.      In another incident, Mother cut Father with a knife.           In still

 another, mentioned above, Father assaulted Mother, who soon thereafter appeared

 for a Master's hearing with a split lip.

        The evidence also demonstrated that the parallel pattern of neither parent

 following through on charges also continued:            in each case in which an arrest was

 made, charges were dropped because the victim spouse declined to cooperate or

 appear for hearings.      Similarly,    the pattern of Mother and Father getting back

 together     after bouts of violence       continued.     After each incident,    the parties

 reconciled, although most recently they have played their reconciliation close to the

 vest. (N.T. 3, pp. 11, 14-18, 58-62, and 65-75; N.T. 4, pp. 23-31 and 45-46).

        PFA filings also continued. Father filed multiple PFA petitions against Mother,

 the first three or four of which were dismissed because Father failed to appear.         In a

 final round of PFA filings, Father filed against Mother, Father's adult daughter, who

 had purportedly come to live with him, also filed against Mother, and Mother filed a

 against Father. All three petitions were dismissed after a hearing.      (N.T., 3 pp. 14-18,

 58-62, and Exhibit 4; N.T. 4, pp. 23-31, 110-122, and GAL Exhibits 1-5).

            At the review hearing,      Mother testified that she and Father are, finally,

 estranged.     She stated that they have not been together since September of 2013 ·

. when Father gave her the split lip. (N.T. 4, pp. 139-140).         However,     based on the

. history of this case, Mother's past deceptions, the evidence presented by CYS, the

 conduct of both parents, and our in-court observations of Mother and Father, we did

 not find Mother's statement credible. In this regard, as indicated, the violence and



                                                 12
domestic abuse has continued.      The incident in which Mother cut Father with a knife

occurred at Father's residence.     Despite the fact that the parties were supposedly

living apart and Father had asked for separate visits so he and Mother would not

come into contact with each other, Father has been seen driving Mother to and

dropping her off for visits and criminal hearings. Most recently, when CYS personnel

have attempted to ask about the current status of the parents' relationship,        Father

has told them that it is none of the agency's business. (N.T. 3, pp. 11, 56-59, and 65-

75: N.T. 4, pp. 23-31, 71, and 84-88, 110-122).

      While both parents demonstrated       an inability to cease their violent and co-

dependent behaviors, each has made some progress.              Specifically, both parents

completed their plan goals for counseling, parenting classes, anger management

classes, and related goals.       In fact, Mother has exceeded the counseling and

education requirements, albeit with some prompting based on her criminal case and

probationary sentence. (N.T. 3, pp. 12, 49, and 52; N.T. 4, pp. 48 and 135-139).         At

the same time, the evidence demonstrated that counseling and classes have not

been enough to help Mother either fix her unhealthy relationship with Father or

separate from him, and have similarly been insufficient to prompt Mother to stop her

own violent and abusive behaviors.

       In addition, Mother has indicated that she is continuing her education, seeking

to become a nurse, and that she now works at JC Penny, both of which, if Mother is

following through, are positive. However, Mother has not responded to the requests

of CYS for documentation of her employment.       (N.T. 3, pp. 11-12; N.T. 4, p. 140).




                                            13
       Further, both parents have visited on a regular or fairly regular basts, Mother

more so than Father. In fact, at one point, based on their completion of several plan

goals, Mother and Father progressed to having community visits.                  However, as

noted, there have some problems that resulted in Father asking for the visits to be

returned to the Agency.        In addition, Father protested the participation of Mother's

family in visits, especially community visits. Further, the continued violence between

the parents, despite their completion of counseling and therapy, raised legitimate

safety concerns. As a result, visits were moved back to the CVS facility. (N.T. 3, pp.

12-15, 34-35, 49, and 52-60; N.T. 4, pp. 23-31, 48, 135, and 141-143).

       Mother is currently living with her mother and her adult son in a three-bedroom

home in Stroudsburg. If she regains custody of T.W., Mother's plan would be to bring

T.W. into the home. However, the home is in a high crime and drug trafficking area.

In fact, Mother's adult son, whom she had at the outset of this case identified as a

resource for T.W., was arrested for possession of drugs with the intent to deliver after

selling drugs to a confidential informant in the home. (N.T. 3, pp. 11-12; N.T. 4, pp. ·

72-75, 132-133, 140, and 146-147).

       Finally,   consistent    with   their   inconsistent,   dysfunctional,   co-dependent

relationship, each party, in his or her own way, advised the Court that they do not

believe that T.W. would be safe with the other parent. They did so despite the fact

that the circumstances that prompted each parent's safety concerns were known to

Mother and Father at the time of their past reconciliations and regardless of the fact

that they are now together again.




                                               14
      The totality of these facts and circumstances prompted us to issue the order

from which Mother has filed this appeal.

      The applicable standard of review is well-established.    As recently reiterated

by our Supreme Court:

             [A]ppellate courts must apply an abuse of discretion
             standard.... [l]n dependency cases, our standard of
             review requires an appellate court to accept the findings
             of fact and credibility determinations of the trial court if
             they are supported by the record. In re: R.J. T., 608 Pa. 9,
             9 A.3d 1179, 1190 (Pa.2010). 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.; [
             In re] R.I.S., [614 Pa. 275] 36 A.3d [567,] 572 [(Pa.2011)
             (plurality) ]. As has been often stated, an abuse of
             discretion does not result merely because the reviewing
             court might have reached a different conclusion. Id.; see
           , also Samuel-Bassett v. Kia Motors America, Inc. [613 Pa.
             371], 34 A.3d 1, 51 ( [Pa.]2011); Christianson v. Ely, 575
             Pa. 647, 838 A.2d 630, 634 (2003). Instead, a decision
             may be reversed for an abuse of discretion only upon
             demonstration of manifest unreasonableness, partiality,
             prejudice, bias, or ill-will. Id.

             As we discussed in R.J. T., there are clear reasons for
             applying an abuse of discretion standard of review in
             these cases. We observed that, unlike trial courts,
             appellate courts are not equipped to make the fact-
             specific determinations on a cold record, where the trial
            judges are observing the parties during the relevant
             hearing and often presiding over numerous other hearings
             regarding the child and parents. R.J. T., 9 A.3d at 1190.
            Therefore, even where the facts could support an
            opposite result, as is often the case in dependency and
            termination cases, an appellate court must resist the urge
            to second guess the trial court and impose its own
            credibility determinations and judgment; instead we must
            defer to the trial judges so long as the factual findings are
            supported by the record and the court's legal conclusions
            are not the result- of an error of law or an abuse of


                                           15
              discretion. In re Adoption of Atencio, 539 Pa. 161, 165,
              650 A.2d 1064, 1066 (Pa.1994).


In re Adoption of S.P., 47 A.3d 817, 826-827 (2012). See also In re R.J. T., 9 A.3d

1179 (Pa. 2010); In re K.J., 27 A.3d 236 (Pa. Super. 2011); In re M.B., 19 A.3d 1084

(Pa. Super. 2011).

       The law that we applied in making factual findings and issuing the goal change

order from which Mother has appealed is equally well-settled. Once dependency is

found, the standard to be applied is the best interests of the child. This standard

applies to, among other considerations, disposition, placement, and custody of

dependent children, and the establishment of goals and goal changes for families.

On these issues, determinations turn on what is in the child's best interests, not on

what the parent wants or which goals the parent has achieved. See R.J. T., supra; In

re K.J., supra; In re K.C., 903 A.2d 12 (Pa. Super. 2006); In re B.S., 861 A.2d 974

(Pa. Super. 2004). Thus, in a goal change proceeding, a parent's progress toward

alleviating the circumstances that caused placement is but one factor that must be

considered. In re B.S., supra. In fact, when the best interests of the child so dictate, .

dependency and placement outside the home may be continued, even if the parent

has met all goals established in the Family Service plan. See In re K.C., supra.

      Additionally, as our Superior Court recently stated:

                     Placement of and custody issues pertaining
                     to dependent children are controlled by the
                     Juvenile Act [42 Pa.C.S. §§ 6301--65],which
                     was amended in 1998 to conform to the
                     federal Adoption and Safe Families Act
                     ("ASFA"). The policy underlying these
                     statutes is to prevent children from
                     languishing indefinitely in foster care, with its
                     inherent lack of permanency, normalcy, and

                                            16
                    long-term parental commitment. Consistent
                    with this underlying policy, the 1998
                    amendments to the Juvenile Act, as required
                    by the ASFA, place the focus of dependency
                    proceedings,  including change of goal
                    proceedings,    on    the   child.  Safety,
                    permanency, and well-being of the child
                    must take precedence over all other
                    considerations, including the rights of the
                    parents.

             In re N.C., 909 A.2d 818, 823 (Pa.Super.2006)(citations
             omitted) (footnotes omitted).

             Pursuant to § 6351(f) of the Juvenile Act, when
             considering a petition for a goal change for a dependent
             child, the juvenile court is to consider, inter alia: (1) the
             continuing necessity for and appropriateness of the
             placement; (2) the extent of compliance with the family
             service plan; (3) the extent of progress made towards
             alleviating the circumstances which necessitated the
             original placement; (4) the appropriatenessand feasibility
             of the current placement goal for the children; (5) a likely
             date by which the goal for the child might be achieved; (6)
             the child's safety; and (7) whether the child has been in
             placement for at least fifteen of the last twenty-two
             months. In re R.J. T., 9 A.3d at 1186-1187 n. 8 (" In re
             R.J. T. II "). The best interests of the child, and not the
             interests of the parent, must guide the trial court. In re
             S.B., 208 Pa.Super. 21, 943 A.2d 973, 978 (2008). As this
             Court has held, "a child's life simply cannot be put on hold
             in the hope that the parent will summon the ability to
             handle the responsibilities of parenting." In re N.C., 909
             A.2d at 824 (quoting In re Adoption of M.E.P., 825 A.2d
             1266, 1276 (Pa.Super.2003)).

In re M.B., 19 A.3d at 1088-89.

      In setting or changing goals and making statutorily required findings, juvenile

courts are not required to select only one goal at a time. Rather, as we have done

throughout the course of this case, courts may establish concurrent goals and direct

that child welfare agencies engage in concurrent planning, which in its most

frequently used form, "involves a dual-track system by which agencies are

                                          17
encouraged    to provide simultaneous      services aimed at both reunification       and

adoption."   In re S.E.G., 901 A.2d 1017, 1019 (Pa. 2006). See also R.J. T., supra.

 Indeed, concurrent planning has been identified as a "best practice." R.J. T., 9 A. 3d

at 1191 n. 14. This is "because it both protects the child from foster care drift, by

allowing agencies to consider adoptive resources ... while at the same time keeping

alive the potential for reunification." In re S.E.G., 901 A.2d at 1029. See also R.J. T.

       Prompted by Mother's appeal, we have again reviewed this case in light of the

law summarized above.        We remain firmly convinced that we neither erred nor

abused our discretion in issuing the goal change order. More importantly, we believe

the goal change order is consistent with the best interests of T.W.

       In her appeal statement, Mother lists seven assignments of error which, for the

most part, are subsumed in her first assignment in which she contends that "(t]he trial

court erred inasmuch as the evidence presented at the Permanency Review Hearing

was insufficient to support changing the goal to adoption instead of reunification".

(Mother's 1925(b) Statement, Paragraph 2). The remaining assignments of error

. take issue with specified findings and determinations. Mother claims that the

identified findings were individually erroneous and cumulatively led us to improperly

change the permanency goal. There is no merit to any aspect of Mother's arguments.

       The reasons why we changed the goal to adoption, with a concurrent goal of

reunification, are presaged by and captured in our recitation of the facts of this case.

In a nutshell, T.W., while still a premature and fragile infant, was dropped, injured,

and, by both parents' account of the June 30, 2012 incident, the subject of a roadside

tug-of-war between Mother and Father. The underlying problem that caused T.W. to



                                            18
                                        I   o   I    I




be put in peril and injured is the well-documented, deep-seated history of violence

between Mother and Father that is embedded in their relationship and presents a

danger to others, especially T.W.           Despite anger management classes, parenting

classes, services from CYS, counseling received from a clinician, a minister, and a

pregnancy crisis group of her own choosing, as well as involvement in the criminal

justice system and PFA court, Mother has to date been unable to extricate herself

from her relationship with Father, protect herself from Father, restrain her own violent

and abusive tendencies, stop the alternating pattern of being a victim and then a

perpetrator of abuse, or stop her pathological lying. In fact, based on the evidence,

Mother and Father's history, and the courtroom demeanor of both parents, we firmly

believe that the parties are together and not, as Mother testified, estranged. Simply

put, Mother has not demonstrated necessary protective capacities and the reasons

that caused T.W. to come into care have not, despite Mothers protestations to the

contrary, been alleviated.    Unless Mother makes drastic changes very soon, the

reasons will not be alleviated.

       In addition, Mother articulated a home plan that would have T.W. living in a

home, located in a high crime drug-trafficking area, out of which her maternal uncle

was caught selling drugs and now stands charged with felony drug crimes.

Obviously, that plan is not suitable.

       Further, while Mother's satisfaction of many plan goals is a positive, she has

not been able to put what she has learned into action in order to make the necessary

changes to properly parent T.W. and ensure her child's safety. Along similar lines,

Mother has indicated that she has a job and is going to school. However, she has



                                                    19
 not yet provided formal proof or documentation of her employment or the specifics of

the nursing program in which she has indicated she is enrolled.

       Finally, as of the original date scheduled for the review hearing before the

Master, T.W. had been in care approximately fourteen months. She has now been in

care for more than the 18 months in which our appellate courts have indicated that,

under current law, permanency should be achieved. See In re R.J.S., 901 A.2d 502

(Pa. Super. 2006); In re N.W, 859 A.2d 501 (Pa. Super. 2004). See a/so In re K.M.,

53 A.3d 781 (Pa. Super. 2012). During this time period, Mother was not able to learn

from her mistakes, capitalize on the counseling and services which she had received,

demonstrate the necessary protective capacities, alleviate the reasons for T.W.'s

removal from the home, or show that she has the ability to parent T.W. in a manner

consistent with T.W.'s best interests.

       Under the settled law summarized above, the applicable standard is the best

interests of the child. Under equally well-establishedlaw, T.W.'s safety, permanency,

and wellbeing are paramount, and these considerationstrump either parents' needs,

desires, and beliefs. Based on our longitudinal view of the evidence, our in-court

observations of Mother on and off the witness stand, Mother's overall parenting

history, the facts presented by CYS, the well-reasoned and articulated positions of

CYS and T.W.'s guardian ad /item, and the applicable law, it was and still is obvious

to us that Mother has simply not progressed to the point where T.W. could safely be

returned to her. That determination, coupled with T.W.'s needs and welfare, the

amount of time T.W. has been in care, and the firmly entrenched and oft-quoted

doctrine that "a child's life simply cannot be put on hold in the hope that the parent



                                          20
will summon the ability to handle the responsibilities of parenting," In re M.B., 19 A.3d

at 1088-89 (citations omitted), led us inexorably to the conclusion that the goal

change we ordered was in T.W.'s best interests.

       At the same time, the goal change with which Mother takes issue has not, as

she apparently fears, completely cut off all hope or the possibility of reunification.

Nothing in our order precludes Mother from redoubling her efforts or prevents either

the provision of reunification services or the possibility of reunification itself. In fact,

the order includes a concurrent goal of reunification.               We included that concurrent

goal because some progress had been made in that both parents had satisfied the

plan   goals    mentioned       above.   As   a        result, and   considering   all facts   and

circumstances, while termination and adoption planning must now take lead position

in this case, we did not at the time believe it necessary to completely cut off all

possibility of reunification.    If Mother is truly sincere about her desire to turn things

around, be truthful, and work toward demonstrating that she can provide for the

health, safety, welfare, needs, and best interests of T.W., she still has the ability to do

so.

       Mother's individual assignments of error may be discussed and disposed of

quickly. Mother's first contention is that this Court did not give proper weight to the

fact that she had "completed a Child Permanency Plan and would be capable of

completing any additional plan for the return of the minor child." (Mother's 1925(b)

Statement, Paragraph 3). This assertion is not supported by the record.

       We did, in fact, give credit and proper weight to the fact that Mother had

completed,     and in some instances exceeded, the plan goals mentioned above.



                                                  21
                                     I   I   f   I




Indeed, it is for this reason that we made a finding in the order Mother has appealed,

as well as in prior review orders, that Mother has made moderate progress. At the

same time, viewing all facts and circumstances in light of the best interest standard,

the progress made by Mother was not enough. T.W.'s safety and Mother removing

herself and T.W. from the vortex of violence that marks Mother's relationship with

Father have throughout this case been overarching goals and considerations.

Despite receiving many services, Mother has simply not met this goal. Since Mother

has not developed or demonstrated necessary protective capacities to keep T.W.

safe, because the Court has found that Mother and father have not been forthcoming

about the current status of their relationship, and given the fact that Mother does not

have a suitable home plan, it is clearly not in T.W's best interests at this point in the

proceeding to work toward reunification as a primary goal. Again, in a goal change

proceeding, a parent's progress toward alleviating the circumstances that caused

placement is but one factor that must be considered. In re B.S., supra. In fact, when

the best interests of the child so dictate, dependency and placement outside the

home may be continued, even if the parent has met all goals established in the

Family Service plan. See In re K. C., supra.

       Mother's second assignment of error is that we failed to give proper weight "to

the medical testimony alleviating the circumstances which necessitated the original

placement; testimony from the treating physician indicated that the occipital hairline

fracture which necessitated the original placement was indicative of premature

delivery and eliminated physical abuse or blunt force trauma." (Mother's 1925(b)

Statement, Paragraph 4). Simply, we did not so err.



                                                 22
        Throughout this case, we have considered the medical testimony that has

been presented.         That evidence is summarized above. Our finding, based on that

evidence, is that T.W. was, in fact, injured, although the injuries were luckily not as

serious as first believed when a diagnostic test performed at Pocono Medical Center

revealed the hairline fractures.             Mother's disagreement with our finding does not

allege, much less demonstrate, an error of law or an abuse of discretion. This is

especially true since our finding is supported by both the documentary medical

evidence that was submitted at the adjudication hearing and the most recent review

hearing5 and the testimonial evidence that parents elicited from the Lehigh Valley

Hospital physician whom Father called as a witness.

         In this regard, the Lehigh Valley Hospital physician expressed his opinion that

the hairline fractures first seen at Pocono Medical Center were older injuries, not

acute injuries. However, he did not render an opinion, to a reasonable degree of

medical certainty or otherwise, that "eliminated physical abuse or blunt force trauma."

Rather, the doctor opined that the hairline fractures resulted from a previous trauma,

which another doctor speculated might have been a birth-related trauma, although

neither doctor knew anything about the birth itself or whether T.W. was delivered

normally or by C-Section. Similarly, no medical professionalat the time had a history

that included Father's version of events that transpired on June 30, 2012 or the fact

that Mother had dropped T.W. two days before. When the doctor's testimony is

viewed objectively, in full, and in conjunction with the medical records, it is clear that

5
 Counsel for Father, and to some extent the attorney for Mother, spent a substantial amount of time at the review
hearing asserting that the records from Lehigh Valley Hospital had not been previously admitted into evidence,
and asserting, or at least implying, that the records had been withheld by CYS, the Commonwealth, or both.
However, the record is clear that medical records from both Pocono Medical Center and Lehigh Valley hospital
were admitted during the adjudication hearing. (N.T. 2, pp. 2 and 31 and Exhibits 7, 8, and 9).

                                                       23
                                      I   I   t    I




 T.W. in fact had hairline fractures that resulted from some sort of trauma, but were

 not, in the doctor's opinion, acute injuries. In addition, the doctor acknowledged that

 there were objective signs 'of injury in the nature of a contusion on the left side of

 T.W.'s head.    Further, he ultimately did not dispute Pocono Medical Center's

 diagnosis of a concussion. In fact, Lehigh Valley Hospital discharged T.W. with a

 diagnosis of head injury and indicated that she had suffered a fall, a head injury, and

post-concussive syndrome. (N.T. 3, pp. 77-83, Mother's_ Exhibits 1 and 2, and GAL

Exhibit 1).

       Moreover, this argument is nothing but a reiteration of the assertion Mother

has made at various points in this case that T.W. did not sustain any injuries. Even if

that interpretation is accepted as true, it misses the point of the case - and the

objective facts. T.W.'s injuries brought T.W. to the attention of CVS and ultimately to

this Court. Mother and Father's incarceration, coupled with Mother's past, caused

· T.W. to come into care. Since then, it has been the need to keep T.W. safe and

parents' inability to ensure that need, not the fact that she was previously injured, that

has kept her in care. T.W.'s injuries have healed and the holes in her heart that both

parents failed to mention have mended. However, concern for T.W.' safety and over ·

Mother's lack of protective capacities remain.

       Due to Mother's admitted lying about the June 30, 2012 incident, her history of

deception, the fact that Mother and Father are both playing their cards close to the

vest, and the discrepancies between the statements of both parents and their

conduct, we may never know exactly what occurred on June 30, 2012, or precisely

what happened to T.W. when Mother dropped her several days before. What we do



                                                  24
                                     •   •   •    I




know is that on June 30, 2012, and on at least one prior occasion, T.W. was placed

in harm's way by one or both parents because of the volatile nature of their

relationship. Since her parents are still acting abusively towards each other, the

circumstances which caused T.W. to be put in peril continue to exist. Similarly,

neither parent has to date been able to demonstrateacceptable protective capacities.

Simply, T.W.'s safety is not ensured. Thus, it is at present largely irrelevant how the

medical evidence in this case is interpreted or how T.W's 2012 injuries are

characterized.

       T.W.'s health, safety, and well-being are the paramount concerns, and her

best interest is the guide star. T.W.'s safety must be ensured regardless of whether

she was injured in the roadside incident, which scenario could be supported by at

least Father's testimony; in the incident where Mother dropped her, which scenario

could be supported by the statements of both parents; or in some prior incident which

has yet to be explained by parents, but that would be equally problematic. In fact,

T.W.'s safety must be assured even if Mother's no-injury assertion is accepted.

Neither parent has demonstrated the current ability to provide the requisite

assurance. In this regard, it cannot be emphasized enough that, under both parents'

versions of the June 30, 2012 incident, T.W. came into care because the volatile

nature of Mother and Father's relationship shockingly caused them to became

embroiled in an argument that led them to literally play a game of tug-of-war with

T.W., in her car seat, at the side of a public road. While T.W. is now physically safe,

the tug-of-war between the parents continues, at times literally and at times




                                                 25
                                    I   •   I   I




figuratively, and the underlying issues that cause their battles have not been

resolved.

       Assignments of error four through six take issue with specific findings we

made regarding the reasonableness of efforts made by CYS to finalize T.W's

permanency plan. (Mother's 1925(b) Statement, Paragraphs 5, 6, and 7). All three

assignments are bootless.

       Mother first implies that efforts were unreasonable because "more than three

months expired without a review of the permanency plan." However, three month

reviews are not mandatory. The Juvenile Act and the applicable rules of Juvenile

Court Procedure require that courts conduct permanency and placement reviews at

least every six months. See 42 Pa.C.S.A. § 6351 (e)(3) and Pa. R.J.C.P. 16078.

While three month reviews are a best practice that this Court has generally adopted

for a targeted number of dependency proceedings pursuant to a local protocol, there

is simply no legal requirement to conduct ninety day reviews.

      We recognize that almost seven months elapsed between the most recent

review before the Master and the review hearing that was convened by this Court in

December of 2013. However, the extra month was not caused by any improper or

unreasonable act on the part of CYS or any omission by the Court. CYS exercised

its right to object to the jurisdiction of the Master. That action resulted in the

scheduling of a hearing before the court within the required six month period. The

hearing was continued slightly outside that period based on a reasonable request for

a continuance made by the guardian ad /item that was granted by the Court. Further,

after the hearing began, Mother (and Father) was given two hearing days of



                                            26
                                     I   •   1   I




opportunity to question witnesses and present evidence. Finally, Mother has not

alleged any prejudice and none is shown in the record. Under these facts, and

considering the overall circumstances of this case, we discern no unreasonable act

or omission on the part of CYS and no error or abuse of discretion on the part of this

Court.

         Mother next asserts that CYS .did not make reasonable efforts because the

agency did not asses her home. However, for the reasons discussed above, we do

not consider Mother's current home and home plan to be suitable for T.W.            In

addition, Mother has not progressed to the point where she has demonstrated the

necessary protective capacities for T.W. to be returned to her. In addition, her

volatile relationship with Father continues.          As a result, and given the other

circumstances of this case, we see no error on the part of CYS in declining to assess

Mother's home at this time.

         Mother's final reasonable efforts challenge is that CYS unreasonably switched

Mother's visits back from community visits to visits at the agency. However, given

the facts and circumstances discussed above, especially the safety issues that

remain, we believe that CYS acted reasonably in moving visits back to the agency at

the time the change was made.

         In her final assignment of error, Mother almost unbelievably contends that

"[t]he trial court erred by relying upon allegations of domestic violence between

Mother and Father." (Mother's 1925(b) Statement, Paragraph 8). This assignment of

error merits no response beyond the following statement: Given the facts and

circumstances of this case, we obviously did not err in considering the history of



                                                 27
                                     I   I   l    I



                                                                                     '   '




domestic violence between Mother and Father. Quite to the contrary, it would have

been beyond a gross abuse of our discretion to have ignored the history.

        For these reasons, we believe that our goal change order effectuated the

health, safety, needs, welfare, and best interests of T.W. and should be affirmed.



Date:     ~ J u { l'j

Cc:     Superior Court of Pennsylvania
        Jonathan Mark, Judge
        Donald M. Leeth, Esq.                                                 0
                                                                C"·   ~
        Eric L. Hamill, Esq.                                    c-            ""11
                                                                c;
        Elizabeth B. Weekes, Esq.                               :r    -a      0

        Lori J. Cerato, Esq.
                                                                      :::.    0
                                                                              c:
        Brett J. Riegel, Esq.
                                                               ,--<, .....   . ;;u
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                                             28
                                                                        Circulated 02/18/2016 11:32 AM



                  COURT OF COMMON PLEAS OF MONROE COUNTY
                        FORTY-THIRD JUDICIAL DISTRICT
                      COMMONWEALTH OF PENNSYLVANIA
                           JUVENILE COURT DIVISION

 IN THE INTEREST OF:                                      NO. 64 DP 2012
                                                          48 OCA2013
   T. W.         :, a minor


                     ADDENDUM TO ANNOUNCEMENT HEARING

       The law I applied to the facts of this case these cases in reaching the decisions I

am announcingtoday is well settled. In comprehensivesummary:

       1.     Termination of Parental Rights

       In termination cases, the burden is upon the petitioner, in this case Monroe

County Children and Youth Services ("CYS"), to prove by clear and convincingevidence

that its asserted grounds for seeking the termination of parental rights are valid. In re

T.D., 949 A.2d 910 (Pa. Super. 2008); In re S.H., 879 A.2d 802, 806 (Pa. Super. 2005).

Clear and convincing evidence has been defined as "testimonythat is so clear, direct,

weighty and convincing as to enable the trier of fact to come to a clear conviction,

without hesitation, of the truth of the precise facts in issue," In re K.Z.S., 946 A.2d 753,

757 (Pa. Super. 2008) (citation omitted). It is well established that a court must

examine the individual circumstances of each and every .case and consider all

explanations offered by the parentto determine if the evidence in light of the totality of

the circumstances clearly warrants termination. In re J.L.C. & J.R.C., 837 A.2d 1247,

1251 (Pa. Super. 2003).
       Termination of parental rights is controlled by Section 2511 of the Adoption Act,

23 Pa. C.S.A. Section 2511. In this case, CYS seeks termination of both parents'

parental rights on the following grounds:

             Section 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 any of the following
             grounds:

     (1)     The parents have, for a period of more than six (6) months
             prior to the filing of this pennon, failed to perform their
             parental duties;

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

                                            ***
      (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 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 aqency.
            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.           ·

                                      ***


                                             2
       (b)       Other considerations - The court in terminating the rights of
                 a parent shall give primary consideration of 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. Section 2511 (a)(1), (2), (5), (8), and (b). Satisfaction of any subsection of

Section 2511 (a), along with consideration of Section 2511 (b), is sufficient for involuntary

termination of parental rights.     In re K.Z.S., supra; In re R.J.S., 901 A.2d 502 (Pa.

Super. 2006). Accordingly, an appellate court "need only agree with the orphan's court

as to any one subsection of Section 2511(a), as well a~ Section 2511(b), in order to

affirm." In re B.L.W., 843 A.2d 380·, 384 (Pa. Super. 2004) (en bane), app. den., 863

A.2d 1141 (Pa. 2004). See also In re Adoption of C.J.P., _A.3d _, 2015 PA Super 80,

2015 WL 1668310 (Pa. Super, filed April 15, 2015); In re K.H.B., 107 A.3d 175 (Pa.

Super. 2014).

      Section 2511 requires 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 Section2511(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.
             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 permanentlysevering any such bond.


                                              3
 In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). See also In re

 Adoption of C.J.P., supra; In re T.D., supra; In re Adoption of R.J.S., supra.



        In analyzing the conduct of a parent, the applicable statutory language must be

 considered. As the third sentence of Section 2511{b) directs, when subsections (a)(1),

 (6), or {8) of Section 2511 {a) are cited as the grounds for termination, we may not

 consider actions of a parent to remedy the conditions that necessitated the dependent

 child's. placement which are initiated after the parent receives notice of the filing of the

termination petition. In re Adoption of C.J.P., supra; In re K.Z.S., supra; In re D.W, 856

A.2d 1231 (Pa. Super. 2004).

       Under Section 2511 {a)(1 Y, parental rights may be terminated if, for a period of at

least six months, a parent either demonstrates a settled purpose of relinquishing

parental claims to a child or fails to perform parental duties. In re Adoption of R.J.S.,

supra; In re Adoption of J.M.M., 782 A.2d 1024 (Pa. Super. 2001).            As the Superior

Court has explained:

              A court may terminate parental rights under Section
              2511 (a){1) where the parent demonstrates a settled purpose
              to relinquish parental claim to a child or fails to perform
              parental duties for at least the six months prior to the filing of
              the termination petition. Although it is the six months
              immediately preceding the filing of the petition that is most
              critical to the analysis, the court must consider the whole
              history of a given case and not mechanically apply the six-
              month statutory provision.            ·

In re K.Z.S., supra at 758 {Pa. Super. 2008) (case citations and quotation marks

omitted). See also In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).

      The grounds for termination of parental rights under Section 2511(a)(2), due to


                                              4
parental incapacity that cannot be remedied, are not limited to affirmative misconduct.

Rather, those grounds may include acts of refusal as well as incapacity to perform

parental duties.

             Parental rights may be terminated pursuant to Section
             2511(a)(2) if three conditions are met: (1) repeated and
             continued incapacity, abuse, neglect or refusal must be
             shown; (2) such incapacity, abuse, neglect or refusal must
             be shown to have caused the child to be without essential
             parental care, control or subsistence; and (3) it must be
             shown that the causes of the incapacity, abuse, neglect or
             refusal cannot or will not be remedied.

             Unlike subsection (a)(1), subsection (a)(2) does not
             emphasize a parent's refusal or failure to perform parental
             duties, but instead emphasizes the child's present and future.
             need for essential parental care, control or subsistence
             necessary for his physical or mental wellbeing. 23 Pa.C.S.A
             § 2511(a)(2). Therefore, the language in subsection (a)(2)
             should not be read to compel courts to ignore a child's need
             for a stable home and strong, continuous parental ties,
             which the policy of restraint in state interventionis intended
             to protect. This is particularlyso where disruption of the
             family has already occurred and there is no reasonable
             prospect for reuniting it. ... Further, grounds for termination
             under subsection (a)(2) are not limited to affirmative
             misconduct; those grounds may include acts of incapacityto
             perform parental duties.

In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (case citations and internal quotation

marks omitted) (emphasis in original). See In re Adoption of R.J.S., supra. Thus,

             While sincere efforts to perform parental duties can preserve
             parental rights under subsection (a)(1), those same efforts
             may be insufficient to remedy parental incapacity under
             subsection (a)(2). Parents are required to make diligent
             efforts toward the reasonably prompt assumption of full
             parental responsibilities.A parent's vow to cooperate,after a
             long period of uncooperativenessregarding the necessity or
             availability of services, may properly be rejectedas untimely
             or disingenuous.




                                           5
  In re Z.P., 994 A.2d at 1117~18 (case citations and internal quotation marks omitted).

  Moreover, a court may terminate parental rights under subsection (a)(2), even where

 the parent has never had physical custody of the child. In re Adoption of Michael J.C.,

 486 A.2d 371, 375 (Pa. 1984); In re Z.P, supra.

        For termination    under Section 2511 (a)(5), "the following factors must be

 demonstrated: (1) the child has been removed from parental care for at least six

 months; (2) the conditions which led to the child's removal or placement continue to

 exist; (3) the parents cannot or will not remedy the conditions which led to removal or

 placement within a reasonable period of time; (4) the services reasonably available to

 the parents are unlikely to remedy the conditions which led to removal or placement

 within a reasonable period of time; and (5) termination of parental rights would best

 serve the needs and welfare of the child." In re K.H.B., 107 A.3d 175 (Pa. Super. 2014)

(quoting In re Adoption of M.E.P., 825 A.2d 1266, 1273-74 (Pa.Super.2003)). See also

In re Adoption of K.J., 936 A.2d 1128, 1133 (Pa. Super. 2007), app. den., 951 A.2d

1165 (Pa. 2008).

       To terminate parental rights under Section 2511 (a)(B), the party seeking

termination of parental rights need only show "(1) that the child has been removed from

the care of the parent for at least twelve months; (2) that the conditions which led to the

removal or the placement of the child still exist; and (3) that termination of parental

rights would best serve the needs and welfare of the child." In re Adoption of R.J.S.,

supra at 511. See In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super. 2003). "Unlike

Section 2511 (a)(S), Section 2511(a)(8) does not require an evaluation of the remedial

efforts of either the parent... Instead, Section 2511 (a)(8) imposes a lengthier removal



                                            6
 period of one year." In re B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citing C.LG., 956

 A.2d at 1007).

       The one year time period is significant. As the Superior Court has explained:

               Section 2511 (a)(B) sets a twelve-month time frame for a
               parent to remedy the conditions that led to the children's
               removal by the court. Once the twelve-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 DHS supplied
              over a realistic period. The 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. This Court has
              acknowledged:

                   [T]he application of Section (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     indefinitely a child's need for
                  permanence and stability to a parent's claims of
                  progress and hope for the future.

fn re I.E.P., 87 A.2d 340, 345-46 (Pa. Super. 2014) (case citations and internal

quotation marks omitted).

      With respect to the "needs and welfare" analysis pertinent to Sections (a)(B) and

(b), the Superior Court has observed:

             [l]nitially, 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


                                            7
               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).

In re Adoption of C.L.G., 956 A.2d 999, 1008-1009 (Pa. Super. 2008) (en bane)

(citations omitted). See also In re I.E.P., supra; In re Adoption of K.J., 936 A.2d 1128,

1133 (Pa. Super. 2007), app. denied, 951 A.2d 1165 (Pa. 2008). While the Superior

Court focused its analysis in these cases on Section 2511(a)(8), we believe that the

rationale applies equally to Section 2511(a)(5). Like Section (a)(8), Section (a)(5)

requires a finding that termination would best serve the needs and welfare of the child.

Accordingly, we must reach that determination before turning to Section 2511 (b).

       Simply put, Section 2511, including the subsectionscited and explained above,

outlines certain irreducible requirements that parents must provide for their children.

Parents who cannot or will not meet the requirementswithin a reasonabletime following

intervention by the state may properly be considered unfit and have their parental rights

terminated. In re K.Z.S., supra; In re B.L.L., 787 A.2d 1007 (Pa. Super. 2001).

       There is no simple or easy definition of parental duties. However, the appellate

cases make it very clear that parenting is· an active rather than a passive obligationthat,




                                             8
  even in the face of difficulty, adversity, and incarceration, requires a parent to take and

  maintain a place of importance in the child's life. The following passage is instructive:

                Parental duty is best understood in relation to the needs of a
                child. A child needs love, protection, guidance, and support.
                These needs, physical and emotional, cannot be met by a
                merely passive interest in the development of the child.
                Thus, this court has held that the parental obligation is a
                positive duty which requires affirmative performance.

                                              ***
                A parent must utilize all available resources to preserve the
               parental relationship, and must exercise reasonable firmness
               in resisting obstacles placed in the path of maintaining the
               parent-child relationship. Parental rights are not preserved
               by waiting for a more suitable or convenient time to perform
               one's parental responsibilities while others provide the child
               with his or her physical and emotional needs.

 In re K.Z.S., supra at 759. See also In re Burns, 379 A.2d 535 (Pa. 1997); Adoption of

 Baby Boy A. v. Catholic Social Services of the Diocese of Harrisburg, 517 A.2d 1244

 (Pa. 1986); In re Shives, 525 A.2d 801 (Pa. Super. 1987).

         In relation to the parental requirements _outlined in Section 2511, when a parent

 is separated from his or her child, it is incumbent upon the parent "to maintain

· communication    and   association   with    the   child.   This   requires   an. affirmative

 demonstration of parental devotion, imposing upon the parent the duty to exert himself,

to take and maintain a place of importance in the child's life.'' In re G.P.-R., 851 A.2d

 967, 977 (Pa. Super. 2004). When a parent has abandoned or effectively abandoned a

child,

               [t]o be legally significant, the post abandonment contact
               must be steady and consistent over a period of time,
               contribute to the psychological health of the child, and must
               demonstrate a serious intent on the part of the parent to
               recultivate a parent- child relationship and must also


                                               9
               demonstrate a willingness and capacity to understand the
               parental role. Theparent wishing to reestablish his
               parental responsibilities bears the burden of proof on
               this question.

 In re T.D., 949 A.2d at 919 (case. citations and brackets omitted) (emphasis in original).

 Finally, parents are required to make diligent efforts towards assumption or resumption

 of full parental responsibilities. Accordingly, a parent's vow to cooperate, after a long

 period of being uncooperative regarding the necessity or availability of services, may

 properly be rejected as untimely or disingenuous.     In re Adoption of K.J., supra; In re

 A.LO., 797 A.2d 326 (Pa. Super. 2002).

        Once statutory grounds for termination have been established, the court must, in

· accordance with Section 2511 (b), consider whether the child's needs and welfare will be

 met by termination. A proper Section 2511 (b) analysis focuses on whether termination

 of parental rights would best serve the developmental, physical, and emotional needs

 and welfare of the child.   Intangibles such as love, comfort, security, and stability are

 involved in the inquiry. One major aspect of the needs and welfare analysis concerns

the nature and status of the emotional bond, if any, between parent and child. If a bond

is determined to exist, the effect on the child of permanently severing the bond must be·

analyzed and considered.      See In re K.M., 53 A.3d 781 (Pa. Super. 2012); In re T.D.,

supra; In re L.M., supra; In re Adoption of R.J.S., supra. As to the bond analysis, the

Superior Court has stated:

              in conducting a bonding analysis, the court is not required to
              use expert testimony, but may rely on the testimony of social
              workers and caseworkers .. In re Z.P., 994 A.2d 11oa·, 1121
              (Pa. Super. 2010). This Court has observed that no bond
              worth preserving is formed between a child and a natural
              parent where the child has been in foster care for most of the



                                             10
              · child's life, and the resulting bond with the natural parent is
                attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa.Super.2008).

 In re K.H.B., 107 A.3d 175, 180 (Pa. Super. 2014).

       In addition to a bond examination, a court may equally

              emphasize the safety needs of the child under subsection
               (b), particularly in cases involving physical or sexual abuse,
              severe child neglect or abandonment, or children with
              special needs. The trial court should also examine the
              intangibles such as the love, comfort, security, and stability
              the child might have with the foster parent. Another
              consideration is the importance of continuity of relationships
              to the child and whether the parent-child bond, if it exists,
              can be severed without detrimental effects on the child. All
              of these factors can contribute to the inquiry aboutthe needs
              and welfare of the child.

In re K.Z.S., 946 A.2d at 763 (emphasis in original).

       When,·as here, the petitioner is an agency, "it shall not be required to aver that

an adoption is presently contemplated nor that a person with a present intention to

. adopt exists." 23 Pa.C.S. § 2512(b). However, the existence or absence of a pre-

adoptive home is an important factor. So is the relationshipbetween the child and the

foster or pre-adoptive parents. As our Supreme Court cogentlystated, "[c]ommonsense

'dictates that courts considering termination must also considerwhether the children are

in a pre-adoptive home and whether they have a bond with their foster parents. In re:

T.S.M., 71 A.3d 251, 268 (Pa. 2013). See In re K.M., supra.

       In reviewing evidence in support of termination under section 2511(b), our

Supreme Court recently stated:

             [l]f the grounds for termination under subsection(a) are met, ·
             a court 'shall give primary consideration to the
             developmental, physical and emotional needs and welfare of.
             the child.' 23 Pa.C.S. § 2511(b). The emotional needs and
             welfare of the child have been properly interpretedto include


                                            II
             '(i]ntangibles such as Jove, comfort, security, and stability. In ·
             In re E.M., [620 A.2d 481, 485 (Pa. 1993) ], this Court held
             that the determination of the child's 'needs and· welfare'
             requires consideration of the emotional bonds between the
             parent and child. The 'utmost attention"' should be paid to
             discerning the effect on the child of permanently severing the.
             parental bond.

In re T.S.M. 71 A.3d at 267. The Court additionally observed:

             contradictory considerations exist as to whether termination
             will benefit the needs and welfare of a child who has a strong
             but unhealthy bond to his biological parent, especially
             considering the existence or lack thereof of bonds to a pre-
             adoptive family. As with dependency determinations, we
             emphasize that the law regarding termination of parental
             rights should not be applied mechanically but instead always
            with an eye to the best interests and the needs and welfare
            of the particular children involved .... Obviously, attention
            must be paid to the pain that inevitably results from breaking
            a child's bond to a biological parent, even if that bond is
            unhealthy, and we must weigh that injury against the
            damage that bond may cause if left intact. Similarly, while
            termination of parental rights generally should not be granted
            unless adoptive parents are waiting to take a child into a
            safe and loving home, termination may be necessary for the
            child's needs and welfare in cases where the ohild's parental
            bond is impeding the search and placement with a
            permanent adoptive home.

                     In weighing the difficult factors discussed above,
             courts must keep the ticking dock of childhood ever in mind.
             Children are young for a scant number of years, and we
             have an obligation to see to their healthy. development
             quickly. When courts fail, as we have in this case, the result,
             all too often, . is catastrophically · malad justed cbildren .. In
             recognition of this reality, over the past fift\9en years.. a
            eubstantlal shift has occurred in our society's approach. to
            dependent children, requiring vigilance to the need .             to
            expedite children's placement in permanent, safe, .sta~Je,
            and loving homes .. [ASFA was enacted to combat· the
            problem of foster care drift, where children, .like the chlldren ·
            in this case, are shuttled from one foster home to another,
            waiting for -their parents to ·demonstrate ther ability to care
            for thechildren,

                                                                  ·.·   .·,
                                            12
  In re T.S.M., 71 A.3d at 269.

         In this case, both parents were incarcerated early on in the dependency case,

  and Mother remained on probation supervision up through most if not all of both cases.

  Standing alone, incarceration neither constitutes sufficient grounds for termination of

  parentalrights nor removes the obligation to perform required''bond effects" and "needs

 and welfare" analyses. However, it is a factor that must be consideredand, in a proper

 case, such as when a parent is serving a prohibitively long sentence, may be

 determinative.In re Adoption of S.P., 47 A.3d 817 (Pa. 2012); In re Z.P., supra. "Each

 case of an incarcerated parent facing termination must be analyzed on its own facts,

 keeping in mind... that the child's need for consistent parentalcare and stability cannot

 be put aside or put on hold simply because the parent is doing what [he orJ she is

 supposedto be doing in prison." In re E.A.P., 944 A.2d at 84.

       The analysis depends in part on the asserted grounds for termination. Jn

subsection (a)(1) abandonment cases, our Supreme Court has stated:

              [A] parent's absence and/or. failure to support due to
              incarceration is not conclusive on the issue of abandonment.
              Nevertheless, we are not willing to completely toll a parent's
              responsibilities during his or her incarceration. Rather, we
              must inquire whether the parent has utilized those resources
              at his or her command while in prison in continuinga close
              relationship with the child. Where the parent does not
              exercise reasonable firmness in declining to yield to
              obstacles, his other rights·may be forfeited.

In re Adoption of S.P., 47A.3d at 828 (quoting In re Adoption of McCray, 331 A.2d 652,

655 (Pa.. 1975) (footnotes
                    .· .
                           and
                            ·.
                               internal
                                .    . quotation
                                            .   .
                                                  marks
                                                  .
                                                        omitted).
                                                          .
                                                                  Thus, in an

abandonment case, a parent is required to both utilize .available resources and take

affirmative steps to support a parent-child relationship. If the parent fails to do so, his


                                            13
  parental rights may be terminated.       See In re Adoption of WJ.R., 952 A.2d 680 (Pa.

  Super. 2008); In re E.A.P., supra; In re K.J., supra. However, utilization of available

  resources does not guarantee preservation of parental rights. The statutory criteria, the

  facts and circumstances of each case, and the best interests, needs, and welfare of the

 child must all still be considered.

           In cases involving parental incapacity, our Supreme Court recently held that:

                 incarceration is a factor, and indeed can be a determinative
                 factor, in a court's conclusion that grounds for termination
                 exist under § 2511 (a)(2) where the repeated and continued
                 incapacity of a parent due to incarceration has caused the
                 child to be without essential parental care, control or
                 subsistence and that the causes of the incapacity cannot or
                 will not be remedied.

 In re Adoption of S.P, 47 A.3d. at 828. In more expanded terms, the Supreme Court

 stated:

                 In line with the expressed opinion of a majority of justices in
                 [In re R.I.S., 614 Pa. 275, 36 A.3d 567 (2011) ], our prior
                 holdings regarding incapacity, and numerous Superior Court
                decisions, we now definitively hold that incarceration, while
                 not a litmus test for termination, can be determinative of the
                question of whether a parent is incapable of providing
                "essential parental care, control or subsistence" and the
                length of the remaining confinement can be considered as
                highly relevant to whether "the conditions and causes of the
                incapacity, abuse, neglect or refusal cannot or will not be
                remedied by the parent," sufficient to provide grounds for
                termination pursuant to 23 Pa.C.S. § 2511(a)(2).

Id. at 830. In sum, a parent's incarceration "is relevant to the subsection (a)(2) analysis

and, depending on the circumstances of the case, it may be dispositive of a parent's

ability to provide the "essential parental care, control or subsistence+that the section

contemplates." In re A.O., 9,:'.tA.3d at 897.




                                                14
                                                                                                                         .. ,   '



          Finally,   before . filing a petition               for termination      of parental- rightsr- : the

  Commonwealth         is ge.ner~!ly required              to· make         reasonable efforts -to            promote.

  reunification of parent ~nd· ~hild. In re Adoption of R.J.S..                   See elso In re Adoption-of

 M.E.P., 825 A.2d 1266 (Pa. Super. 2003). However, the commonwealth does not have

 an obligation to make reunification efforts indefinitely.

                        The Commonwealth has an interest not only in family
                        reunification but also in each child's right to a stable, safe,
                       and healthy environment, and the two interests must both
                       be considered." .A parent's basic constitutional right to the
                       custody and. rearing of his orher child is converted, upon
                       the parent's: failureto  fulfill his or her parental duties, to the
                       child's right to have proper parenting and fulfillment of his or
                       her potential in a permanent, healthy, safe environment.
                       When reasonable efforts to reunite a foster child with his or
                       her biological parents have failed, then the child welfare
                       agency must work toward terminating parental rights and
                ·f: placing the child with adoptive parents. The process of
                 ' .;- reLin_ification ;<;>r adoption should be. completed within
               --~ eighteen (1~) months. While this time frame ma,' in some
            .          9ircu,nst~nces _ .seem short, it is based on· the policy that. a
              .: .. · child's life simply cannot be put on hold ill the hope that the
                       parent will: summon the ability to handle the responsibilities
                       of parenti_ng.

In re Adopt~on of R.J.S., supra at 507 (internal case citations, quotation marks, and

footnote omitted).
                                                                    .                     ..
        However, the ._fai.lure of. an agency to. make .: reasonable efforts to promote
                                 . .                            '       .            ·.    ·'.   .
reunification of parent and child will not def~at a·. properly supported petition for

termination of parental. rights .. Neither .the relevant provisions                oi s~cttor:i: 2s1 ·1       nor the

pertinent provisjons of the Juvenile .Act require a court to co_ns_id~r;                  th!:1 reasonable    efforts

provided to a pare~t-~y_tt,~::P_~titiQ~.!!19          ~9_en"cy_prior fo_termiQ_attq"n of:p~·rental,rights. In.

re D.C.D., 105 A.3d 662      .(Pa._2_014);.Jn.re . ~dopti<?fl of C.J.P.,.suphi.1ol~                  re.D.C.D.,



                                        .        .'
                                                         15
                      our Supreme Court analyzed the language of Section·
                      2511 (a)(2) of the Adoption Act, as well as Section 6351 of
                      the Juvenile Act, 42 Pa.C.S.A. § 6351. The Court reasoned
                      that, while "reasonable efforts may be relevant to a court's
                      consideration of both the grounds for termination and the
                      best interests of the child," neither of these provisiqns,when
                      read together or individually, requires reasonableefforts. Id.
                     at 671-75 (citation omitted). The Court also concluded that
                     reasonable efforts were. not required to protect a parent's
                     constitutional rightto the care, custody, andcontrol of his or
                     her child. Id. at 676-77. While the Supreme Court in D.C.D.
                     focused 'its analysis on· Section 2511(a)(2), we find the
                     Supreme . Court's reasoning equally applicable to Section
                     2511(a)(8). Uke Section 2511(a)(2), nothingin the language
                     of Section 2511(a)(8) suggests that reasonablereunification
                     servicesarenecessary to support the terminationof parental
                     rights.

1;;.    In re Adoptio_n of C.J.P., supra at *7. See also In re B.C., 36 A.3d at 611 (Section

       2511(a)(8) does not require an evaluation of the remedialefforts of either the parent or

       the agency); In re CL. G., supra. Along similar lines, when the goal of the case is

       adoption, {he adequacy of the agency's efforts toward reunification. is generally not a

       concern atthe termination of parental rights stage. In re B.L. W, 843 A.2d 380, 384· n.t

       (Pa. Super.· 2004) (en bane), app. den. 863 A.2d 1141 (Pa. 2004). Expanding on the

       analyses contained in the cited cases, we find that the reasoningof our Supreme Court
                                                                    'I'     •

       and Superior Court is equally applicable to Section 2511 (a)(1) which,· like Sections

       2511(a)(2) and (8), does not suggest, that reasonable reunlftcatlon . services are

       necessary to support the termination of parental rights.· Thus, while agencies must

       provide reasonable efforts to enable parents to work toward reunification with their

       dependent children when ordered to do so, "the. remedy for an .agency's failure to

       provide services is not to punish an innocent child, by delayingher permanencythrough

       denying termination, but instead to conclude on the record that the agency. hasfalled.to
                                                                                      .         .



                                                  16
make reasonable efforts, which imposes a financial penalty on the agencyof thousands

if not tens of thousands of dollars under federal law." In re D.C.D., 105 A.3d at 675.

       2.     Permanency and Placement Review

       The applicable standards are recited in the memorandum opinion issued in· the

dependency proceeding by the Superior Court on August 22, 2014, and the appeal

opinion issued by this Court on April 11, 2014.

      3.     Appellate Standard of Review

      If an appeal is filed, the applicable standard of review is summarized in the

appeal opinion we filed in the dependency case on April 11, 2014.




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