J-S35018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  IN THE INTEREST OF: N.W., A                  :   IN THE SUPERIOR COURT OF
  MINOR                                        :        PENNSYLVANIA
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  APPEAL OF: N.W., MOTHER                      :   No. 449 EDA 2019

                    Appeal from the Decree January 10, 2019
              In the Court of Common Pleas of Philadelphia County
                  Family Court at No: CP-51-AP-0000985-2018

  IN THE INTEREST OF: N.W., A                  :   IN THE SUPERIOR COURT OF
  MINOR                                        :        PENNSYLVANIA
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  APPEAL OF: N.W., MOTHER                      :   No. 450 EDA 2019

               Appeal from the Decree Entered January 10, 2019
              In the Court of Common Pleas of Philadelphia County
                  Family Court at No: CP-51-AP-0000986-2018

BEFORE:      OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY STABILE, J.:                          FILED SEPTEMBER 19, 2019

       N.W. (“Mother”) appeals from the decrees entered January 10, 2019, in

the Court of Common Pleas of Philadelphia County, which involuntarily

terminated her parental rights to her children, N.C.W., a female born in June



____________________________________________


* Retired Senior Judge assigned to the Superior Court.
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2013, and N.N.W., a male born in May 2015 (collectively, “the Children”). 1

After careful review, we are constrained to reverse.

       The facts and procedural history of this case are not entirely clear from

the certified record.2 The record indicates that the Philadelphia Department

of Human Services (“DHS”) first became involved with the Children due to

“[a]llegations of abuse” against Mother. N.T., 1/10/19, at 13. Specifically, it

appears that these allegations related to “inappropriate discipline” by Mother.

N.T., 10/10/18, at 9. The record indicates that Mother left the Children in the

care of a friend and that DHS retrieved the Children from the friend’s home.

N.T., 1/10/19, at 14. The Children were adjudicated dependent on May 4,

2016, and have remained in foster care since that time. Id. at 13.

       The Community Umbrella Agency (“CUA”) prepared Single Case Plan

(“SCP”) objectives for Mother, which included attending visitation, as well as

____________________________________________


1 The trial court entered separate decrees on the same date involuntarily
terminating the parental rights of the Children’s putative father, C.A., and the
parental rights of any unknown father that the Children may have. Neither
C.A., nor any unknown father, filed an appeal.

2 In its opinion, the trial court relies primarily on the facts alleged in DHS’s
termination petitions when summarizing the history of this case. We caution
the court that mere allegations in a pleading are not evidence, and that it is
not permissible to make findings of fact based on allegations alone, absent a
stipulation by the parties or admission into the record. See, e.g., General
Equipment Mfrs. v. Westfield Ins. Co., 635 A.2d 173, 181 (Pa. Super.
1993), appeal denied, 644 A.2d 1200 (Pa. 1994) (explaining, in the context
of judicial admissions, that “[i]n order to take advantage of the admission
contained in the pleadings, the specific paragraphs of the pleadings in which
the allegations appear must be offered into evidence.”).



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obtaining mental health treatment, employment, and housing.         Id. at 14.

Following the Children’s adjudication of dependency, Mother made significant

progress toward completing her objectives.       By the time of a permanency

review hearing on January 5, 2017, the juvenile court found Mother to be fully

compliant. Id. at 16; See Exhibits DHS 3 and 4 (permanency review orders

entered 1/5/17).3 Mother was attending mental health therapy and receiving

unsupervised visits with the Children in the community. Id. at 16-17. The

court once again found Mother to be fully compliant following a permanency

review hearing on July 21, 2017. N.T., 1/10/19, at 17; See Exhibits DHS 3

and 4 (permanency review orders entered 7/21/17). Mother was continuing

to attend mental health therapy and had completed a parenting class. N.T.,

1/10/19, at 17. She was also continuing to exercise unsupervised visits in the

community, although DHS did not believe she had appropriate housing. Id.

       Mother’s progress toward completing her SCP objectives deteriorated

briefly later that year. Mother stopped attending mental health therapy. Id.

at 18. She then reengaged with therapy but attended only sporadically. Id.

Mother also failed to visit with the Children on a consistent basis. Id. at 18-

19. After a permanency review hearing on October 8, 2017, the juvenile court

reduced Mother’s visits from unsupervised in the community to supervised at

CUA. Id. at 18.
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3 DHS Exhibits 3 and 4 are the Children’s dependency dockets, which include
the full text of the juvenile court’s orders. It is important to note that this
Court received only the termination record on appeal and that we do not have
access to the dependency record.

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     Following this setback, Mother remedied her lack of progress. During a

permanency review hearing on February 22, 2018, the juvenile court once

again found Mother to be fully compliant with her objectives. Id. at 19; See

Exhibits DHS 3 and 4 (permanency review orders entered 2/2/18). Mother

was attending her visits with the Children and the court upgraded her visits

from supervised back to unsupervised in the community. N.T., 1/10/19, at

19. An additional permanency review hearing took place on April 19, 2018,

during which the court found Mother to be fully compliant and directed that

the Children could return to her care once she remedied her lack of housing.

Id.; See Exhibits DHS 3 and 4 (permanency review orders entered 2/2/18)

(“Child may be reunified with [m]other, pending housing.”).

     Purportedly, Mother’s progress toward completing her SCP objectives

deteriorated for a second time. CUA reported that Mother’s attendance at her

mental health therapy decreased and that she was at risk of being discharged.

N.T., 1/10/19, at 20. In addition, CUA reported that Mother’s unsupervised

visits had become problematic, in that she would take the Children “to places

that had not been cleared” and return them “in poor condition.” Id. Mother

was living with a boyfriend. Id. However, she would not permit CUA to visit

her home. Id. Mother also was employed, but she quit her prior job and

began working “under the table” at a summer camp. Id. At a permanency

review hearing on October 10, 2018, the juvenile court reduced her visits from

unsupervised in the community to supervised at CUA. Id. at 20-21.




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       On December 19, 2018, DHS filed petitions to terminate involuntarily

Mother’s parental rights. The trial court held a hearing on January 10, 2019,

at which Mother failed to appear. At the conclusion of the hearing, the court

announced it would terminate Mother’s rights.4 The court entered decrees

memorializing its decision that same day. Mother timely filed notices of appeal

on February 11, 2019,5 along with concise statements of errors complained of

on appeal.

       Mother raises the following claims for our review:

       A. Whether the trial court committed reversible error and abused
       its discretion when it overruled [M]other’s objection, where DHS
       did not properly serve [M]other with notice of the hearing and goal
       change petitions[?] Thus [M]other’s right to due process was
       violated by the trial court.

       B. Whether the trial court committed reversible error when it
       involuntarily terminated [M]other’s parental rights where such
       determination was not supported by clear and convincing evidence
       under the Adoption Act 23 Pa. C.S.A. §[]2511 (a)(1), (a)(2),

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4 The trial court appointed legal counsel and a guardian ad litem to represent
the Children during the proceedings. The Children’s legal counsel explained
at the termination hearing that he met with the Children and that they “seem
to really not understand the adoption process, but they’re very happy where
they are. They want to stay where they are.” N.T., 1/10/19, at 33.

5 Generally, a party must file his or her notice of appeal within thirty days after
entry of the order. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by
this rule, the notice of appeal . . . shall be filed within 30 days after the entry
of the order from which the appeal is taken.”). Thirty days after January 10,
2019, was Saturday, February 9, 2019. Thus, Mother timely filed her notices
of appeal on Monday, February 11, 2019. See 1 Pa.C.S.A. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, . . . such day
shall be omitted from the computation.”).


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     (a)(5), and (a)(8) as [M]other made progress towards working
     and meeting her [SCP] goals?

     C. Whether the trial court committed reversible error when it
     involuntarily terminated [M]other’s parental rights without giving
     primary consideration to the effect that the termination would
     have on the developmental physical and emotional needs of the
     child as required by the Adoption Act 23 Pa. C.S.A. §[]2511(b)?

Mother’s brief at 2 (suggested answer and trial court answers omitted).

     We consider these claims mindful of our well-settled standard of review:

     The standard of review in termination of parental rights cases
     requires appellate courts to accept the findings of fact and
     credibility determinations of the trial court if they are supported
     by the record. If the factual findings are supported, appellate
     courts review to determine if the trial court made an error of law
     or abused its discretion. A decision may be reversed for an abuse
     of   discretion    only   upon     demonstration      of    manifest
     unreasonableness, partiality, prejudice, bias, or ill-will. The trial
     court’s decision, however, should not be reversed merely because
     the record would support a different result. We have previously
     emphasized our deference to trial courts that often have first-hand
     observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

     Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S.A. § 2511. It 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 Section 2511(a). Only if the court
     determines that the parent’s conduct warrants termination of his
     or her parental rights does the court engage in the second part of
     the analysis pursuant to Section 2511(b): determination of the
     needs and welfare of the child under the standard of best interests
     of the child. One major aspect of the needs and welfare analysis

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        concerns the nature and status of the emotional bond between
        parent and child, with close attention paid to the effect on the child
        of permanently severing any such bond.

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

        We focus our attention on Mother’s second claim, as it is dispositive of

this appeal.6 While Mother asserts in her statement of questions involved that

the trial court terminated her parental rights pursuant to Section 2511(a)(1),

(2), (5), and (8), our review of the record confirms that the court applied

Section 2511(a)(1) and (2) only. The statute provides as follows, in relevant

part:

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

                                           ***

23 Pa.C.S.A. § 2511(a)(1), (2).


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6 In light of our disposition of Mother’s second claim, we need not consider her
first and third claims.

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      To satisfy the requirements of Section 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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).

The trial court must then consider the parent’s explanation for his or her

abandonment of the child, in addition to any post-abandonment contact. Id.

This Court has emphasized that a parent does not perform parental duties by

displaying a merely passive interest in the development of a child.            In re

B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d

1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003),

appeal denied, 859 A.2d 767 (Pa. 2004)). Rather,

      [p]arental 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
      or her 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 his or her physical and emotional
      needs.

Id. (citations omitted).

      In addition, this Court has described the requisite analysis pursuant to

Section 2511(a)(2) as follows:

      In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
      2511(a)(2), the following three elements must be met: (1)


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        repeated and continued incapacity, abuse, neglect or refusal; (2)
        such incapacity, abuse, neglect or refusal has caused the child to
        be without essential parental care, control or subsistence
        necessary for his physical or mental well-being; and (3) the
        causes of the incapacity, abuse, neglect or refusal cannot or will
        not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). “The grounds for termination 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, 337 (Pa. Super. 2002) (citations

omitted).

        In its opinion, the trial court explains that it terminated Mother’s rights

pursuant to Sections 2511(a)(1) and (2) based on the credible testimony of

former CUA case manager Makeda Hunter, and current CUA case manager Joe

Sargent, who detailed Mother’s lack of progress toward completing her SCP

objectives during the termination hearing. Trial Court Opinion, 3/22/19, at

19-20. The court provides a recitation of this testimony but engages in no

further analysis. Id. Instead, the court directs our attention to its explanation

at the conclusion of the hearing, during which it stated as follows, in relevant

part:

        Regarding Mother, the record is clear, convincing, and
        uncontradicted that Mother failed to complete any of the
        objectives laid out for her and was inconsistent throughout the life
        of the case where she would come into compliance at times and
        then fall out of compliance completely at other times, presenting
        a resource that had no potential permanency, presented no
        security for the children. All the attempts made by the agency
        and through the two case workers that testified, attempted to

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        offer mom services, which if accepted and completed, may have
        brought her into compliance and may have secured the basis for
        a parental relationship. As a result of mom’s lack of consistent
        compliance, the parental relationship was allowed to dissipate to
        the point where she is no longer recognized or the testimony
        supports a finding that there is no parental relationship between
        [M]other and the two children.

        Considering the evidence as a whole, [sic] complies with the
        requirements under the statute 2511 (a)(1) and (2). . . .

Id. at 22-23 (quoting N.T., 1/10/19, at 37-38).

        Mother responds by arguing, in effect, that the record refutes the trial

court’s findings. Regarding Section 2511(a)(1), Mother argues that she was

making an effort to comply with and complete her SCP objectives during the

six months preceding the filing of the termination petition. Mother’s brief at

4. She asserts that she visited with the Children, strove to reunify with them,

and achieved full compliance. Id. at 6. Regarding Section 2511(a)(2), Mother

argues that she completed certain SCP objectives, which demonstrates that

she could remedy the conditions requiring the Children’s placement. Id. at 4.

She maintains that the only thing preventing her from reunifying with the

Children was her lack of housing, which she was attempting to remedy. Id.

at 7.

        After careful review of the certified record in this case, and mindful of

our standard of review, which requires us to show great deference to the trial

court, we conclude that the record does not support the court’s findings by

clear and convincing evidence. With respect to Section 2511(a)(1), the record

belies the court’s finding that Mother refused or failed to perform parental

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duties during the six months immediately preceding the filing of the

termination petitions on December 19, 2018. As detailed above, Mother was

in full compliance with her SCP goals just prior to the relevant six-month

period and needed only appropriate housing in order to regain custody of the

Children.    See Exhibits DHS 3 and 4 (permanency review orders entered

4/19/18). The record suggests that Mother remained in full compliance well

into the relevant six months. As recently as July 13, 2018, the juvenile court

entered orders indicating that Mother’s reunification with the Children was

imminent. The orders provided that visits between Mother and the Children

could “be further modified up to and including reunification by agreement of

the parties.” Id. (status review orders entered 7/13/18).

       While there was some testimony at the termination hearing that Mother

failed to attend her visits with the Children consistently during the relevant

six-month period, this testimony was both unclear and misleading. Ms. Hunter

testified that Mother was not visiting the Children “regularly” around the time

of the October 10, 2018 permanency review hearing, but did not provide any

further detail.7 N.T., 1/10/19, at 20-21. Moreover, the record contains a copy

of the transcript from the October 10, 2018 permanency review hearing, which

refutes this characterization. At the hearing, Ms. Hunter testified regarding

Mother’s participation in visits as follows:


____________________________________________


7Mr. Sargent testified that Mother missed her most recent visit in January.
N.T., 1/10/19, at 29.

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     Q. Okay. And as far as visitation, what is the current status of
     visitation?

     A. Visitation is biweekly at the agency.

     Q. And so that’s twice per month supervised at your agency?

     A. Yes.

     Q. And is [M]other consistent with visits?

     A. The visits are setup [sic] on my schedule, so so far, we’ve done
     two in September and we’ll do another two in October.

                                    ***

     Q. Okay. And -- okay. And I have that there was a period of time
     where mom wasn’t visiting for several months. What was your
     testimony regarding the visits currently? I didn’t hear you. I’m
     sorry.

     A. So right now, the visits are biweekly at the agency and they’re
     based on my schedule, so I try and look at what I have available
     and offer mom and the kids visits when I can get there.

     Q. So are you offering them biweekly?

     A. Yes.

     Q. Oh, okay. And--

     A. So I did two in September with her and she was there with
     them.

                                    ***

     Q. So there’s no set schedule with –

     A. No.

     Q. Okay. In August, did mom have any visits?

     A. No.


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      Q. Was that based upon your schedule?

      A. Yes.

      Q. Okay.    Were those visits made up (unintelligible)
      scheduling permit her to visit?

      A. No, I didn’t make them up yet.

      Q. Okay so the plan is to make those visits up?

      A. Sure. I can offer an extra hour on her visits for October.

N.T., 10/10/18, at 7-10 (emphasis added).

      Accordingly, while the record contains testimony indicating that Mother

was visiting the Children inconsistently, it is not clear how inconsistent her

visits were. More troublingly, it appears that at least part of the reason Mother

was visiting with the Children inconsistently was not that she was failing to

attend scheduled visits, but that CUA was failing to schedule the visits to which

Mother was entitled, even going as long as a month at a time without allowing

her to see the Children. This was not sufficient evidence, nonetheless clear

and convincing, from which the trial court could conclude that Mother had

refused or failed to perform her parental duties during the relevant six-month

period.

      The record also fails to support the trial court’s findings by clear and

convincing evidence with regard to Section 2511(a)(2). DHS focused much

of its evidence during the termination hearing on its assertion that Mother

failed to comply with her SCP objectives. However, noncompliance with SCP

objectives is not by itself a statutory basis for the termination of parental

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rights. With regard to Section 2511(a)(2), a parent’s noncompliance with SCP

objectives is relevant only to the extent that it reveals he or she has exhibited

a “repeated and continued incapacity, abuse, neglect or refusal” that “has

caused the child to be without essential parental care, control or subsistence”

and that the parent “cannot or will not” remedy. 23 Pa.C.S.A. § 2511(a)(2).

      In the instant case, the record reveals no clear and convincing evidence

sufficient to support a finding that Mother’s purported failure to comply with

her SCP objectives renders her incapable of providing parental care, or that

she cannot or will not remedy that incapacity.        In addition to attending

visitation, as listed above, Mother’s objectives included obtaining mental

health therapy, employment, and housing. N.T., 1/10/19, at 14.

      Regarding mental health, Ms. Hunter testified that Mother’s attendance

at therapy decreased significantly sometime after April 2018. N.T., 1/10/19,

at 19-20. Mother’s mental health provider discharged her at an unspecified

time and Mother reengaged in treatment in September 2018. N.T., 10/10/18,

at 7-9. Mr. Sargent testified that Mother last attended mental health therapy

in November 2018 and that she was only attending therapy sporadically prior

to that. N.T., 1/10/19, at 28. Thus, the evidence supports the trial court’s

finding that Mother was not compliant with her mental health SCP objective

at the time of the termination hearing.

      However, after exhaustive review, the record contains no evidence that

Mother was in need of mental health treatment. As discussed above, DHS


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initially became involved with Mother due to her allegedly poor parenting skills

and neglect. Specifically, DHS received allegations that Mother disciplined the

Children improperly and that she abandoned the Children at a friend’s home

and did not return. The record does not indicate that Mother suffers from any

diagnosed mental health condition, and it is not even clear why the juvenile

court ordered her to attend mental health therapy in the first place. While it

is possible that the court believed Mother’s behavior at the start of this case

suggested that she was suffering from an underlying mental health problem,

there is no indication of that in the record either. Moreover, Mother had been

attending therapy, albeit inconsistently, for nearly two years by the time of

the termination hearing and it is not apparent why ongoing treatment would

be necessary. Absent some evidence in the record that Mother’s inconsistent

attendance at therapy renders her incapable of providing parental care, her

noncompliance with a mental health objective does not support termination of

her parental rights pursuant to Section 2511(a)(2).

      Mother’s failure to comply with her employment and housing objectives

is equally unavailing. Ms. Hunter testified during the termination hearing that

Mother has held a variety of jobs throughout the Children’s dependency. She

explained:

      For the most part, [Mother] was employed at a department store
      . . . and then she quit there and went to work at a summer camp,
      where she was off the books, then she told me about a job at
      McDonald’s that lasted for about a week and the last contact I had
      with her, she was supposed to be starting a job but didn’t tell me
      where.

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N.T., 1/10/19, at 27. Ms. Hunter left her employment at CUA on November

22, 2018. Id. at 21. While Mr. Sargent testified that he took over this case

on December 10, 2018, he did not specify whether Mother ultimately obtained

new employment, nor did anyone ask him to clarify her employment status.

Id. at 28. As for Mother’s housing, Ms. Hunter testified that Mother moved in

with her boyfriend, but that she did not permit CUA to visit the home. Id. at

20. Mother also acknowledged that the home “was not appropriate for the

[C]hildren.” N.T., 10/10/18, at 7.

      Accordingly, the record indicates that Mother has maintained some form

of employment throughout most if not all of this case. While it appears that

Mother’s recent employment has been inconsistent, DHS did not produce clear

and convincing evidence that Mother’s circuitous career path has been

improper or inadequate to provide for herself or for the Children. Conversely,

while Mother’s lack of appropriate housing certainly does suggest that she is

incapable of providing parental care, the record does not reveal why Mother

has remained without housing. Significantly, the Adoption Act defines both

Mother’s income and her housing as “environmental factors.” 23 Pa.C.S.A. §

2511(b).   Section 2511(b) provides that a trial court may not terminate a

parent’s rights involuntarily “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.” Id. In the instant matter, the record

does not contain evidence that Mother was at fault for her lack of housing,

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other than a single unexplained statement by Ms. Hunter that Mother failed to

follow through with “the efforts that we made to help [her] secure housing[.]”

N.T., 1/10/19, at 23. Absent further development of this issue, and given the

dearth of other evidence buttressing the trial court’s conclusions, the record

does not support involuntary termination pursuant to Section 2511(a)(2) by

clear and convincing evidence.

      Based on the foregoing, we conclude that the record does not support

the trial court’s decision to terminate Mother’s parental rights to the Children

and that it was an abuse of the court’s discretion to conclude otherwise. We

therefore reverse the court’s January 10, 2019 decrees. DHS may file new

petitions to terminate Mother’s parental rights, but we stress that the court

may not grant those petitions unless DHS presents evidence and develops a

clear record establishing grounds for termination pursuant to Section 2511.

      Decrees reversed. Jurisdiction relinquished.

      Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/19



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