J-A16002-17
J-A16003-17
                            2017 PA Super 269

IN THE INTEREST OF: R.W., A             :     IN THE SUPERIOR COURT OF
MINOR CHILD                             :          PENNSYLVANIA
                                        :
           v.                           :
                                        :
APPEAL OF: WESTMORELAND COUNTY          :
CHILDREN’S BUREAU                       :
                                        :     No. 24 WDA 2017


                 Appeal from the Order December 12, 2016
          In the Court of Common Pleas of Westmoreland County,
             Domestic Relations, at No(s): 65-FN-000083-2014
                          CP-65-DP-0000094-2014


IN THE INTEREST OF: R.W., A             :     IN THE SUPERIOR COURT OF
MINOR CHILD                             :          PENNSYLVANIA
                                        :
           v.                           :
                                        :
APPEAL OF: J.R.M.                       :
                                        :
                                        :     No. 53 WDA 2017

                 Appeal from the Order December 15, 2016
          In the Court of Common Pleas of Westmoreland County,
              Domestic Relations, at No(s): CP-65-DP-94-2014

BEFORE: STABILE, FORD ELLIOTT, P.J.E., and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING OPINION BY STRASSBURGER, J.:
FILED: August 18, 2017

     I agree with the Majority’s conclusion that, based upon the record

evidence, Appellants are unable to meet the difficult burden of establishing

that the trial court abused its discretion when it directed the Agency to


* Retired Senior Judge assigned to the Superior Court.
J-A16002-17
J-A16003-17

initiate termination proceedings.    See Morgante v. Morgante, 119 A.3d

382, 386-87 (Pa. Super. 2015) (“We do not lightly find an abuse of

discretion, which requires a showing of clear and convincing evidence. This

Court will not find an ‘abuse of discretion’ unless the law has been

overridden or misapplied or the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown

by the evidence in the certified record.”).

      I do believe this is a close case, and the evidence only slightly weighs

in favor of affirmance. Nonetheless,

      [t]his case epitomizes why appellate courts must employ an
      abuse of discretion standard of review, as we are not in a
      position to make the close calls based on fact-specific
      determinations. Not only are our trial judges observing the
      parties during the hearing, but usually, as in this case, they have
      presided over several other hearings with the same parties and
      have a longitudinal understanding of the case and the best
      interests of the individual child involved. Thus, we must defer to
      the trial judges who see and hear the parties and can determine
      the credibility to be placed on each witness and, premised
      thereon, gauge the likelihood of the success of the current
      permanency plan. Even if an appellate court would have made a
      different conclusion based on the cold record, we are not in a
      position to reweigh the evidence and the credibility
      determinations of the trial court.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

      However, I disagree with the trial court’s decision to decrease

visitation substantially,1 and with the Majority’s conclusion that such limited



1
 Notably, the trial court does not address this issue, raised by Mother, in its
1925(a) opinion.
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contact with Mother was appropriate because “the frequency of the visitation

transitions was having a negative effect on Child.” Majority Opinion at 22. I

fail to see how the frequency of transitions Child has faced as he has gone

back and forth between Mother and Foster Mother bolsters the trial court’s

finding that limited contact with Mother is in the best interest of Child.

Furthermore, when ordering such a substantial reduction in visitation prior to

the termination hearing, the trial court has essentially stacked the deck

against Mother, making it that much more difficult to prevail in these

proceedings.

      In light of the foregoing, I would reverse the portion of trial court’s

order that reduces Mother’s visits to twice a month. While I would affirm the

remainder of the order, I would do so cautiously.2




2
  While the trial court has not abused its discretion in concluding that the
Agency must proceed with filing a petition to terminate rights based on the
lack of a self-evident exception to 42 Pa.C.S. § 6351(f)(9), in order for
Mother and Father’s rights to be terminated, the Agency will still have to
prove by clear and convincing evidence the statutory elements for
termination under 23 Pa.C.S. § 2511(a) and (b). See In re P.Z., 113 A.3d
840, 848 (Pa. Super. 2015) (holding that a court’s refusal to allow an agency
to withdraw its termination petition based on the lack of a self-evident
exception to 42 Pa.C.S. § 6351(f)(9) “is not tantamount to an order
terminating parental rights”). Indeed, in my view, unless circumstances
change, the Agency may have a difficult time meeting its burden of clear and
convincing evidence.


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