J-S08015-20

                                   2020 PA Super 59

    IN RE: C.B., A MINOR                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: BLAIR COUNTY                    :
    CHILDREN, YOUTH AND FAMILIES               :
                                               :
                                               :
                                               :
                                               :   No. 1487 WDA 2019

               Appeal from the Order Entered September 5, 2019
     In the Court of Common Pleas of Blair County Orphans' Court at No(s):
                                 2018 AD 40


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

OPINION BY OLSON, J.:                                   FILED MARCH 13, 2020

       Appellant, Blair County Children, Youth and Families, appeals from the

order entered September 5, 2019, denying Appellant’s petition for involuntary

termination of the parental rights of B.M.M. (“Mother”) to her dependent child,

C.B., a female child born in May 2017, pursuant to the Adoption Act, 23

Pa.C.S.A. § 2511.1         We affirm without prejudice to Appellant seeking

termination of Mother’s parental rights at a later date.

       The trial court set forth the following:

       The subject child in this case, [C.B.], was born [in] May []2017.
       [Appellant] took custody of the child on July 10, 2017. The child
       was adjudicated dependent on September 14, 2017. The child
       was placed in foster care after release from the hospital and
       eventually was placed with T.M., the child's paternal grandmother.
       [The incident that precipitated Appellant’s involvement with the
____________________________________________


1 On May 17, 2019, the trial court terminated the parental rights of C.B.’s
biological father, T.M.B. (“Father”), after Father voluntarily relinquished his
parental claim to C.B. Trial Court Final Decree, 5/17/19.
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        family concerned a specific incident of abuse for which Father] was
        eventually charged with serious criminal offenses. [During the
        incident, Father was alleged to have violently shaken C.B.2]
        []Mother[] was also charged with recklessly endangering another
        person and endangering the welfare of a child[3] for her failure to
        seek medical treatment for [C.B. following the incident involving
        Father]. Dependency proceedings preceded through the Court of
        Common Pleas [of Blair County].

        On November 14, 2018, [Appellant] filed a [p]etition for
        [t]ermination of [p]arental [r]ights [(“petition”)]. Tyler Rowles,
        Esquire was appointed counsel for the child and guardian ad litem
        counsel. The parents were provided an opportunity to object to
        Attorney Rowles serving as guardian ad litem counsel and counsel
        for the child. No party objected to the appointment. During the
        course of the proceedings, Attorney Rowles indicated that due to
        the developmental problems of the child and the child's age, he
        was confident he could serve in both capacities [without a conflict
        of interest.4]

        In [its petition, Appellant] alleged that [termination of] the
        parental rights of [Mother] are justified pursuant to 23 Pa.C.S.A.
        [§]§ 2511(a)(2),(a)(5),(a)(8), and (b).        In support of [its]
        position, [Appellant] averred, amongst other things, the details of
        the facts that gave rise to the criminal charges against the parents
        and the fact that those charges remained pending. [Appellant]
        also allege[s] that []Mother does not have a full understanding of
        [C.B.’s] injuries, that she has not taken responsibility for the
        injuries, and that she has not established that she can care for the
        child.    [Appellant] also avers that []Mother does not have
        independent and stable housing and that she does not have stable

____________________________________________


2 The record demonstrates that Father admitted to violently shaking C.B.; this
action ultimately led Appellant to seek the removal and placement of C.B.
Appellant’s Application for Emergency Protective Custody, 7/11/17. Father
pled guilty to aggravated assault, endangering the welfare of a child, simple
assault, recklessly endangering another person, and harassment.            18
Pa.C.S.A. §§ 2702(a)(1), 4304(a)(1), 2701(a)(1), 2705, and 2709(a)(1),
respectively; see also N.T., 2/19/19, at Petitioner’s Exhibit 4.

3   18 Pa.C.S.A. §§ 2705 and 4304(a)(1), respectively.

4   N.T., 12/6/18, at 1-4.

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J-S08015-20


      income. [Appellant] also assert[s] that the child is progressing
      well in the care of [T.M.].

      The [trial c]ourt conducted several evidentiary hearings on
      [Appellant’s p]etition. These hearings occurred on December 6,
      2018, February 19, 2019, March 28, 2019, May 7, 2019, and
      August 14, 2019.

Trial Court Opinion, 11/8/19, at 1-2.

      Several witnesses testified at these proceedings[; s]pecifically,
      T.M., []Dr. Terry O'Hara, [Appellant’s] case worker Kierstin
      Whysong, [Appellant’s] case aide Stephanie Barton and [Mother.]

      T.M. provided several updates on her care of [C.B.,] as well as the
      child's progress.       She testified at numerous hearings.        Her
      testimony established that the child remains at a zero to
      three[-]month developmental stage. However, the child has
      shown some progress in certain areas. The testimony established
      that T.M. has a bond with the child and the child recognizes and
      responds to her. In light of the child's age and developmental
      stage, it is difficult to acquire evidence regarding the child's bonds
      with certain individuals.          It seems that T.M.'s testimony
      establishes that the child reacts more to individuals that she has
      a history with and with individuals [whose voices she is able to
      recognize]. T.M. testified that she communicates with [Mother]
      and provides her updates on the child's health and doctors
      appointments. She indicated that []Mother responds to her
      updates and is receptive to communication with her.               T.M.
      explained that she has learned how to care for the child by
      learning from the foster parents and due to her own research and
      experience with the child and the child's physicians.

      [Appellant] presented the testimony of Kierstin Whysong, a case
      worker[,] and the testimony of Stephanie Barton, a case aide.
      This testimony was utilized to explain [Appellant’s] position on the
      [petition] and to provide background on the child, T.M.'s
      involvement with the child, and [Mother’s] progress.            This
      testimony established several positives regarding []Mother. The
      testimony established that []Mother has been compliant with
      treatment recommended by [Appellant]. []Mother completed the
      Circles of Security Program through Kids First and has been
      cooperative with the United Way Parent Education Program.
      []Mother has also engaged in drug and alcohol treatment.


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     []Mother is also compliant with her visits regarding [C.B.] except
     when those visits had to be rescheduled for []Mother's work or
     unavailability. [Appellant’s witnesses] also expressed various
     concerns about reunification. [Appellant’s] witnesses indicated
     that []Mother's expectations of [C.B.] moving forward were not
     realistic. They also stated that []Mother did not have independent
     housing or stable employment. They raised concerns about
     []Mother's attentiveness to the child during visits and her ability
     to care for the child in the future. In addition, a large portion of
     [Appellant’s] expression of concern surrounded the underlying
     abuse of the child and the fact that []Mother's criminal charges
     remain pending. During a portion of Ms. Whysong's testimony,
     she acknowledged that if the criminal charges would be resolved
     in []Mother's favor, [Appellant] may move forward with
     reunification.   [Appellant’s] witnesses present some but not
     extensive testimony about the bond between the child and
     []Mother. Ms. Whysong indicated that she [did not attend] visits
     between []Mother and the child but understood from the aides
     that the child recognizes []Mother. Ms. Whysong believes that the
     child was bonded with []Mother during the visits.

     Dr. Terry O'Hara, an expert in the field of forensic psychology[,]
     testified at the evidentiary hearing. Two reports of Dr. Terry
     O'Hara were placed into evidence[; s]pecifically, a report dated
     November 8, 2017[,] and a report dated February 22, 2018. Dr.
     O'Hara's testimony at the evidentiary hearing preceded the
     second evaluation on February 22, 2018. Dr. O'Hara explained
     during his testimony that he was unable to complete an
     interactional evaluation due to the criminal charges against
     []Mother. Dr. O'Hara's testimony at the initial hearing was rather
     speculative in light of his inability to do the interactional evaluation
     at that time. However, Dr. O'Hara indicated that []Mother had
     been compliant with treatment and that she had denied any issues
     with domestic violence or psychiatric hospitalizations. The doctor
     also concluded that []Mother had an average IQ. The doctor felt
     that further evaluation of []Mother would be needed after
     disposition of her criminal charges so that he could assess her
     involvement in the criminal activity and assess what impact that
     would have on her parenting ability moving forward. [Appellant]
     asked Dr. O'Hara if he believed that independent housing would
     be a concern for []Mother's ability to care for the child and the
     doctor concluded that that would depend on the stability of the
     household where she would reside.



                                      -4-
J-S08015-20



Id. at 4-6.

       On September 5, 2018, the trial court denied Appellant’s petition finding

that Appellant had “failed by clear and convincing evidence to prove any of

the applicable sections pursuant to 23 Pa.C.S.A. § 2511.” Trial Court Order,

9/5/19. This appeal followed.5

       Appellant presents the following issues for our review:

          1. Whether the trial court erred and/or abused its
             discretion in concluding that [Appellant] did not meet
             its burden of proof by clear and convincing evidence
             to terminate the parental rights of [Mother] pursuant
             to 23 Pa.C.S.A. § 2511(a)(5)?

          2. Whether the trial court erred and/or abused its
             discretion in concluding that [Appellant] did not meet
             its burden of proof by clear and convincing evidence
             to terminate the parental rights of [Mother] pursuant
             to 23 Pa.C.S.A. § 2511(a)(8)?

          3. Whether the trial court erred and/or abused its
             discretion in concluding that [Appellant] did not meet
             its burden of proof of clear and convincing evidence to
             terminate the parental rights of [Mother] pursuant to
             23 Pa.C.S.A. § 2511(b)?


Appellant’s Brief at 4.

       In matters involving involuntary termination of parental rights, our

standard of review is as follows:

       The standard of review in termination of parental rights cases
       requires appellate courts “to accept the findings of fact and

____________________________________________


5 On October 1, 2019, Appellant filed a concise statement of errors complained
of on appeal with its notice of appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The
trial court subsequently filed its Rule 1925(a) opinion on November 8, 2019.

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J-S08015-20


      credibility determinations of the trial court if they are supported
      by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
      2012). “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. “[A] decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill will.” Id. The
      trial court’s decision, however, should not be reversed merely
      because the record would support a different result. Id. at 827.
      We have previously emphasized our deference to trial courts that
      often have first-hand observations of the parties spanning
      multiple hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
      2010)].

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “[T]he trial court is free to believe

all, part, or none of the evidence presented, and is likewise free to make all

credibility determinations and resolve conflicts in the evidence.” In re Q.R.D.,

214 A.3d 233, 239 (Pa. Super. 2019) (citation omitted).            “If competent

evidence supports the trial court’s findings, we will affirm even if the record

could also support the opposite result.”     In re B.J.Z., 207 A.3d 914, 921

(Pa. Super. 2019) (citation omitted).

      The termination of parental rights is guided by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis

of the grounds for termination followed by the needs and welfare of the child.

      Our case law has made clear that under Section 2511, the [trial]
      court must engage in a bifurcated process prior to terminating
      parental rights. 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 [trial]
      court determines that the parent’s conduct warrants termination
      of his or her parental rights does the [trial] 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


                                      -6-
J-S08015-20


      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 permanently severing any such
      bond.

In re B.J.Z., 207 A.3d at 921 (citation omitted, emphasis added). We have

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

weighty, and convincing as to enable the trier of fact to come to a clear

conviction, without hesitance, of the truth of the precise facts in issue.” In re

Z.P., 994 A.2d 1108, 1116 (Pa. Super. 2010) (citation omitted).

      Here, while the trial court found Appellant failed to provide clear and

convincing evidence to prove any of the grounds for termination of parental

rights under Section 2511(a), Appellant appeals only the trial court’s

determination under Sections 2511(a)(5) and (a)(8).            Appellant’s Rule

1925(b) Statement, 10/1/19; see also Appellant’s Brief at 4.          Therefore,

Appellant waives any claims under the remaining subsections of Section

2511(a). In re L.V., 209 A.3d 399, 413 (Pa. Super. 2019) (stating, failure to

preserve issue in Rule 1925(b) statement or statement of questions presented

in brief results in waiver of issue).

      Sections 2511(a)(5), (a)(8), and (b), provide as follows:

              § 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:

                                        ...

         (5) The child has been removed from the care of the parent
         by the court or under a voluntary agreement with an agency

                                        -7-
J-S08015-20


        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.

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

     This Court, in discussing the grounds for termination of parental rights

under Sections 2511(a)(5) and (a)(8), stated,

     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. 23 Pa.C.S.A. § 2511(a)(5). “To terminate parental rights

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J-S08015-20


      pursuant to 23 Pa.C.S.A. § 2511(a)(8), the following factors must
      be demonstrated: (1) the child has been removed from parental
      care for 12 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–[12]76 (Pa. Super. 2003); 23
      Pa.C.S.A. § 2511(a)(8). “Section 2511(a)(8) sets a 12-month
      time frame for a parent to remedy the conditions that led to the
      children's removal by the court.” In re A.R., 837 A.2d 560, 564
      (Pa. Super. 2003). Once the 12-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 [Children & Youth Services
      (“CYS”)] supplied over a realistic time period. Id. Termination
      under Section 2511(a)(8) does not require the court to evaluate
      a parent's current willingness or ability to remedy the conditions
      that initially caused placement or the availability or efficacy of
      [CYS] services. In re Adoption of T.B.B., 835 A.2d 387, 396
      (Pa. Super. 2003); In re Adoption of M.E.P., supra.

In re Z.P., 994 A.2d at 1118 (original brackets omitted).

      Under Section 2511(a)(8), in determining whether the conditions that

led to removal and placement continue to exist, “[t]he 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.”   In re I.E.P., 87 A.3d 340, 345 (Pa. Super. 2014) (citation and

original quotation marks omitted).

      The application of Section [2511](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


                                     -9-
J-S08015-20


      indefinitely a child's need for permanence and stability to a
      parent's claims of progress and hope for the future.

Id. at 345-346 (citation and original brackets omitted).

      With respect to the “needs and welfare” analysis pertinent to
      [Sections] 2511(a)(8) and (b), we have observed:

         Initially, 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
         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).

Id. at 346 (citation and original brackets omitted, quotation marks in original,

emphasis added).

      Statutory and case law contemplates that either reunification or

adoption for a child occur within 18 months of removal and placement. In re

I.J., 972 A.2d 5, 12 (Pa. Super. 2009) (citation omitted).          A parent’s

affirmative duty to meet the needs of a child “encompasses more than a

financial obligation; it requires continuing interest in the child and a genuine

                                     - 10 -
J-S08015-20



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 [or herself] to take and maintain a place of importance in the child's

life.” In re Z.P., 994 A.2d at 1119 (citation omitted).

       Here, the record demonstrates that the specific incidents necessitating

the removal and placement of C.B. were allegations of child abuse stemming

from Father’s admitted shaking of C.B. and both parents’ failure to seek

immediate medical attention for C.B. Appellant’s Petition, 11/14/18, at ¶6(c);

see also Appellant’s Application for Emergency Protective Custody, 7/11/17,

at 3 (stating, “[d]ue to the doctor’s suspicion of child abuse, [C.B.] could not

ret[ur]n to her parents”), Trial Court Opinion, 11/8/19, at 2 (stating, “[i]n

support of [its petition, Appellant] averred, amongst other things, the details

of the facts that gave rise to the criminal charges against parents and the fact

that those charges remained pending [at the time the petition was filed]”).

The allegations of child abuse ultimately led to criminal charges being filed

against Mother, which remained pending at the time the petition was filed but

were resolved prior to closure of the evidentiary record.6 Trial Court Opinion,

11/8/19, at 13.

       Appellant contends that “when [it] got to the point of [C.B.] being in

placement for 15 months, [Appellant] was compelled to file [a petition].”
____________________________________________


6 The record demonstrates that Mother, as part of her plea agreement, was
sentenced to an aggregate 2 years’ probation and required, among other
things, to comply with all directives of Appellant. N.T., 8/14/19, Petitioner’s
Exhibit 3.

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J-S08015-20



Appellant’s Brief at 19. Appellant argues that at the time the petition was

filed, Mother had not resolved her criminal case. Id. at 19-20. Appellant also

argues Mother still had contact with Father, did not have independent housing,

only obtained employment after the petition was filed, and had not

participated in a non-offenders treatment program. Id. at 20-21. Appellant

contends Mother failed to remedy the conditions that necessitated removal

and placement of C.B. prior to the filing of the petition, and at the initial

hearing on the petition, C.B. had been in placement for 17 months. Id. at

19-21. Appellant avers it did not start the reunification process prior to filing

the petition because Mother’s bail conditions required fully supervised

visitation and because Appellant’s expert witness, Dr. O’Hara, was unable to

recommend reunification based on Mother’s refusal to discuss anything

relating to the incident that caused C.B.’s injuries.    Id. at 19.    Appellant

contends it provided clear and convincing evidence that satisfied the

requirements for termination of Mother’s parental rights under Sections

2511(a)(5) and (a)(8) and that Mother “presented no evidence that she can

care for a child with such significant needs.” Id. at 16, 21. C.B., through her

guardian ad litem, joined Appellant’s argument in support of termination of

Mother’s parental rights. C.B.’s Brief at 4.

      Mother contends Appellant did not prove the requirements for

termination of her parental rights by clear and convincing evidence but,

rather, supported its petition for termination with evidence based on

speculation and conjecture in an attempt to shift the burden of proof to

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J-S08015-20



Mother. Mother’s Brief at 1. Mother argues that she complied with Appellant’s

training and treatment requirements, that her housing situation remains a

concern only because Appellant lacks information and has not visited Mother’s

home, that once Mother obtained employment Appellant raised concerns

about how she will provide childcare and continue to work, and that she

resolved her criminal case. Id. at 5-7.

       A review of the record demonstrates that 16 months elapsed from the

time C.B. was removed from Mother’s parental care in July 2017 to November

2018 when Appellant filed the petition.7 Therefore, the first requirements of

both Sections 2511(a)(5) and (a)(8) were satisfied.

       As to the second requirements under Sections 2511(a)(5) and (a)(8),

Appellant was required to demonstrate by clear and convincing evidence that

the conditions which led to the removal and placement of the child

continued to exist at the time the petition was filed. See In re Z.P., 994 A.2d

at 1118. The analysis of whether the second requirements under Sections

2511(a)(5) and (a)(8) have been satisfied differs only in that Section

2511(a)(5) permits the trial court to consider the parent’s current willingness

and ability, within a reasonable time, to resolve the condition, that led to the

removal and placement of the child, while Section 2511(a)(8) does not permit

such a consideration. Id.


____________________________________________


7We note that when the trial court closed the record in this matter in August
2019, C.B. had been in placement for 25 months.

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      Here, the trial court gave “little weight to several of [Appellant’s]

allegations against []Mother.” Trial Court Opinion, 11/8/19, at 9. Specifically,

the trial court found Appellant failed to present credible evidence as to why

Mother’s housing conditions, employment status, or contact with Father, who

was incarcerated for “a lengthy prison term,” supported termination of

Mother’s parental rights. Id. at 9-11. These factors might justify termination

but they are not the factors that led to the removal and placement of C.B. in

the case sub judice. Since these factors did not lead to C.B.’s removal and

placement, we concur in the trial court’s conclusion that they do not support

termination under Sections 2511(a)(5) or (a)(8).

      The specific incidents that led to the removal and placement of C.B.

were the allegations of child abuse and Mother’s failure to seek immediate

medical care. In examining whether these specific incidents continued to exist

at the time the petition was filed, the trial court recognized Appellant’s

assertion that the underlying abuse and pending criminal charges, as well as

the fact C.B. had been in placement for 15 months, justified termination of

Mother’s parental rights. Id. at 12. The trial court, however, concluded that

      [t]aking [Appellant’s] position to its logical conclusion would mean
      that []the [trial c]ourt would have a basis to terminate parental
      rights when criminal charges are filed against a parent when those
      criminal charges were awaiting disposition at the fifteen month
      mark. [The trial c]ourt is aware of no support for that legal
      conclusion. Nothing in our statutes indicate that the underlying
      abuse or the pendency of charges of this nature alone support the
      automatic termination of parental rights.




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J-S08015-20



Id. at 12.      The trial court found that Appellant failed to establish “any

explainable nexus between the fact that the criminal charges remained

pending and the termination of parental rights other than the simple

conclusion that the resolution of the charges have not occurred within a

specified timeframe.” Id. at 13.

       Confronted with these unique circumstances,8 we must determine

whether evidence of the pendency of criminal charges, which are the direct

consequence of the specific incidents that led to the removal and placement

of the child, in itself, satisfies the second requirements of either Section

2511(a)(5) or Section 2511(a)(8) when the criminal charges remain pending

at the time the petition is filed.

       In addressing this issue, we are guided by this Court’s prior conclusion

that evidence of the “incarceration of a parent does not, in itself, provide

sufficient grounds for termination of parental rights; [the parent] must act

affirmatively, with good faith interest and effort, to maintain the parent-child

____________________________________________


8 Here, what led to the removal and placement of C.B. was specific incidents
of behavior or conduct by Mother that were episodic in nature. These specific
incidents were single occurrences that, while they could not be undone, were
not on-going. The analysis of the second requirement for termination under
either Section 2511(a)(5) or Section 2511(a)(8) is concerned with whether
the conditions, implying a situation that is on-going (i.e. unable to provide
adequate food for child), that led to the removal and placement of the child
continued to exist at the time the petition was filed. Because of Mother’s
pending charges and the concern with Mother’s self-incrimination, Dr. O’Hara
was not able to perform an assessment of Mother. As a result, Dr. O’Hara
was not able to reach a conclusion as to whether her conduct would reoccur
or if she understood the significance of her actions and omissions with regard
to the care of C.B.

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relationship to the best of his or her ability, even in difficult circumstances.”

In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citations

omitted); see also In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en

banc) (stating, “[i]ncarceration alone is not sufficient to support termination

under any subsection [of Section 2511(a)]” (emphasis added, citation

omitted)). We find the pendency of Mother’s criminal charges, which resulted

from allegations of child abuse and the failure to seek immediate medical care,

together with Mother’s restricted visitation with C.B. due to the conditions of

her bail, akin to the circumstances and limitations of an incarcerated parent.

Evidence of a parent’s pending criminal charges, in itself, does not justify

termination of parental rights under either Section 2511(a)(5) or Section

2511(a)(8).    In order to satisfy the second requirement of either Section

2511(a)(5) or Section 2511(a)(8), clear and convincing evidence must

demonstrate the parent failed to adequately maintain the parent-child

relationship taking into consideration the unique circumstances of the parent’s

pending criminal charges that were the direct result of the specific incidents

that led to the removal and placement of the child.

      Here, the trial court found, and the record supports, that prior to the

filing of the petition

      Mother participated in and completed every parenting class and
      treatment recommended by [Appellant]. The record established
      that []Mother was compliant with drug and alcohol treatment,
      completed a Circles of Security Program, and was compliant with
      parent education.     There was no credible evidence of any
      continued drug use and no evidence that []Mother failed to remain
      compliant with her visits with [C.B.]. [Appellant] presented no

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      explanation for why they did not increase []Mother's visitation
      with [C.B.] or activities with the child. While [the trial c]ourt has
      general familiarity with the criminal orders that were placed
      against []Mother, [Appellant] never made the details of these
      [o]rders part of the record of this proceeding. [The trial c]ourt
      does not recall any [o]rders that would have prevented
      [Appellant] from increasing the periods of contact between
      []Mother and [C.B.] to further ascertain []Mother's abilities. The
      criminal [o]rders also did not prevent [Appellant] from moving
      forward on any additional services for []Mother that would have
      further permitted her to maintain her parental rights. These
      [o]rders did not prevent a bonding assessment being done by Dr.
      O'Hara or any increased community services that would have
      helped maintain the mother/daughter relationship.

Trial Court Opinion, 11/8/19, at 11. In discussing the pendency of the criminal

charges, the trial court stated,

      There can be numerous reasons why criminal charges may be
      delayed or why a criminal case may take some time to proceed to
      trial.  There were serious criminal charges pending against
      []Father and []Mother's case was joined with []Father's case.
      There were pretrial motions filed and the criminal practitioners
      were actively involved in discussions about the timing of trial.
      [Appellant] did not present any specific facts to suggest the delay
      of the criminal charges should be attributed to []Mother. The
      record reveals that []Mother's criminal charges were resolved
      prior to [the closure of the] evidentiary record[]. Nonetheless,
      [Appellant] did not request any further evaluations or treatment
      of []Mother at that point. This is despite the fact that [Appellant’s]
      witnesses indicated during the pendency of the [petition] that
      other options would be considered (including reunification) if the
      criminal charges were resolved [in Mother’s favor. Appellant]
      never explained why [its] position changed when the criminal
      charges were resolved during the pendency of the [petition] and
      prior to the final closing of the record. [Appellant] also never
      explained why [it] did not request an additional evaluation with
      Dr. O'Hara.

Id. at 13-14.




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J-S08015-20



      There would be a great deal of irony in the law if pending criminal

charges could support the termination of parental rights under Section

2511(a) while actual incarceration (and, obviously, conviction) does not, in

itself, support termination of parental rights. It is not a foreign concept in

Pennsylvania law that certain proceedings should or must be deferred where

criminal charges are pending.      See Spanier v. Freeh, 95 A.3d 342, 345

(Pa. Super. 2014) (recognizing trial court’s ability to stay civil proceedings

until criminal charges resolved if appropriate six-factor balancing test

satisfied). It is not our intent to suggest that a child’s life be held in abeyance

while the criminal charges are resolved but, rather, to find that the pendency

of criminal charges, in itself, does not automatically result in termination of

parental rights. Moreover, the adjudication of one’s guilt in charges stemming

from allegations of child abuse is not necessary to assess whether the parent

appreciates the harm caused and understands the wrongfulness of the conduct

or whether there will likely be a reoccurrence of the behavior and conduct.

See Commonwealth v. Brown, 26 A.3d 485, 508 (Pa. Super. 2011)

(holding, “a psychiatrist [is permitted] to presume a juvenile's guilt in

determining amenability to treatment”).

      Based upon the record currently before us, the record supports the trial

court’s determination that Mother complied with Appellant’s requirements for

reunification and maintained a relationship with C.B., albeit constrained by

fully supervised visitation, during the pendency of her criminal charges.

Appellant failed to present clear and convincing evidence that Mother’s

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behavior and conduct would reoccur or that she did not understand and take

responsibility for the actions and omissions that led to the pending criminal

charges.     While her criminal charges remained pending, Mother acted

affirmatively to adequately maintain the parent-child relationship with C.B,

given her unique circumstances. Therefore, we find no error in the trial court’s

determination that the pendency of the criminal charges, which were not filed

until sometime after the occurrence of the specific incidents that led to the

removal and placement of C.B., did not – by themselves – support

termination.    Consequently, Appellant failed to establish grounds justifying

termination of Mother’s parental rights pursuant to either Section 2511(a)(5)

or Section 2511(a)(8).9




____________________________________________


9 The record demonstrates the trial court analyzed the needs and welfare of
C.B. under Section 2511(b)’s best interest of the child standard where the
focus is on the child but did not analyze the needs and welfare of C.B. under
Section 2511(a). The trial court’s failure to perform a needs and welfare
analysis under Section 2511(a), however, constitutes no grounds for
reversible error in the case sub judice because the record supports the trial
court’s conclusion that Appellant failed to present clear and convincing
evidence of the second requirements of the either Section 2511(a)(5) or
Section 2511(a)(8). We remind the trial court that before determining the
needs and welfare of the child under the standard of best interest of the child
pursuant to Section 2511(b), the third requirements of both Sections
2511(a)(5) and (a)(8) require the trial court to evaluate the needs and welfare
of the child with a focus on the parent and the parent’s behavior, taking into
consideration, among other things, the parent-child bond and intangibles such
as love, comfort, security, and stability. See In re I.E.P., 87 A.3d at 346;
see also In re I.J., 972 A.2d at 12.

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     Order affirmed without prejudice to Appellant seeking termination of

Mother’s parental rights at a later date where a fuller record could be

developed given the resolution of Mother’s criminal charges.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2020




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