J-A23006-18

                                   2019 PA Super 18


    IN RE: C.M.K., A MINOR                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: ALLEGHENY COUNTY                :
    OFFICE OF CHILDREN AND YOUTH               :
    AND FAMILIES                               :
                                               :
                                               :
                                               :   No. 402 WDA 2018

              Appeal from the Order Entered February 16, 2018
     In the Court of Common Pleas of Allegheny County Orphans' Court at
                       No(s): CP-02-AP-0000009-2016


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

OPINION BY BOWES, J.:                                 FILED JANUARY 24, 2019

       The Allegheny County Office of Children, Youth, and Families (“CYF” or

“Agency”) appeals from the orphans’ court’s February 16, 2018 order denying

CYF’s petition to involuntarily terminate the parental rights of J.K.-T.

(“Father”) to his minor daughter, C.M.K.1 After careful review, we reverse the

determination that grounds for termination pursuant to 23 Pa.C.S. §

2511(a)(2) had not been proven by clear and convincing evidence, vacate the

order denying CYF’s petition, and remand for further proceedings.

       C.M.K. was born in August 2011. The family has been known to CYF

since February 2010 due to issues with substance abuse, domestic violence,

and reports Mother was not able to properly and safely care for C.M.K.’s older

half-sister, N.R.L. C.M.K. was removed from Mother’s care on June 28, 2014,

____________________________________________


1 That same day, the orphans’ court terminated involuntarily the parental
rights of K.C. (“Mother”). We address her appeal in a separate memorandum.
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after the Allegheny County Office of Children, Youth, and Families (“CYF” or

“Agency”) received reports that Mother had left C.M.K. with an inappropriate

caregiver and Father took C.M.K. and returned her to Mother the following

day.    After CYF was unable to contact Father, the agency obtained an

emergency custody authorization for C.M.K. and her older sibling.

       Following a shelter care hearing, C.M.K. was to be returned to Mother,

but she remained in CYF’s custody after both parents tested positive for

alcohol after court. Following an adjudicatory hearing in July 2014, C.M.K.

was returned to Mother; however, the child was again removed from Mother’s

care on August 19, 2014. C.M.K. and her half-sister were placed in the same

pre-adoptive foster home, where they remain. The court adjudicated C.M.K.

dependent on September 29, 2014. At the time, Father was incarcerated in

the Allegheny County jail related to charges stemming from an assault on

Mother.    In order to be reunified with C.M.K., the court ordered Father to

undergo treatment for drug and alcohol addiction, domestic violence, and

anger management.

       C.M.K. remained in placement until January 2016,2 when CYF filed its

first petitions seeking to involuntarily terminate Mother’s and Father’s parental

rights. The court convened hearings on the petitions on May 13, 2016, and

August 5, 2016. At the hearing, Eric Bernstein, Psy.D., a child psychologist

who had performed evaluations of the family, and Veronica Shannon, a CYF
____________________________________________


2Permanency review hearings were held in February 2015, May 2015, June
2015, August 2015, November 2015, February 2016, and August 2016.

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caseworker, testified for CYF.         Mother and Father were both present and

testified on their own behalves. Additionally, Mother presented the testimony

of Neil Rosenbloom, Ph.D., a psychologist who had evaluated the family; Julia

Ofrichter, an outpatient therapist at Mercy Behavioral Health; Angela

Terenzio, a social worker at Second Chance; and Karen Hadix, an outpatient

therapist employed by Three Rivers Adoption Center.            C.M.K.’s counsel

presented the testimony of Maggie Swartzfager, a therapist employed at the

Youth Advocate Program, and Dawn R. Paul, an elementary school teacher.

Following the hearing, the court denied both petitions on September 14,

2016.3

       CYF re-filed its petitions seeking to involuntarily terminate the parental

rights of Mother and Father on February 6, 2017. The court convened hearings

on the petitions on October 27, 2017, October 31, 2017, and January 23,

2018.4     Additionally, it admitted into evidence transcripts of the prior

termination hearings. On February 16, 2018, the orphans’ court entered an

order denying CYF’s petition as to Father, finding that CYF had not proved by
____________________________________________


3 CYF appealed the denial of its termination petition to this Court, but withdrew
its appeal on January 10, 2017. See 1489 WDA 2016. However, the
concomitant appeals docketed at 1486 WDA 2016 and 1487 WDA 2016 were
not withdrawn, and this Court affirmed the orphans’ court’s finding that CYF
did not make reasonable efforts to finalize the permanency plan for C.M.K.
See In re C.K., 165 A.3d 935 (Pa.Super. 2017).

4 Attorney Rebecca Heaton Hall represented the legal interest of C.M.K. See
In re T.S., 192 A.3d 1080, 1082 (Pa. 2018) (reiterating, in contested
termination of parental rights proceedings, 23 Pa.C.S. § 2313(a) requires
appointment of counsel to represent child’s legal interests, i.e., child’s
preferred outcome).

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clear and convincing evidence that grounds for termination existed as to

Father under § 2511(a)(2). Specifically, focusing solely on Father’s history of

domestic violence, the court determined,

      CYF’s evidence again fell short of establishing that Father cannot
      or will not remedy this concern. The record does not show that
      there is an ongoing concern about Father engaging in domestic
      violence. There is no evidence that Father has engaged in
      domestic violence outside of the incident with Mother in 2014. The
      record also does not show that Father does not appreciate the
      importance of addressing how prior domestic violence has affected
      the Child. Father is currently participating in family therapy to
      address this issue. The only evidence CYF presented to establish
      that Father cannot or will not remedy this concern is a single
      frustrated conversation Father had with the CYF worker. The
      evaluator did not explore Father’s understanding of the need to
      address how prior domestic violence may have affected the Child.
      The evaluator was also unable to conclude that the relationship
      between Father and the Child could not be repaired.
      Consequently, the Court finds the evidence insufficient to
      establish, clearly and convincingly, that Father “cannot or will not”
      remedy the "conditions and causes" of his "incapacity" as a
      parent.

Trial Court Opinion,5/14/18, at 7-8 (footnote omitted).

      Since the court framed the issue of domestic violence as “the critical

issue that needed to be addressed,” it discounted the remaining conditions,

including the role that Father’s substance abuse played in his continuing

incapacity   to   perform   parental   duties.    Based    upon   its   §2511(a)

determination, the court did not make any findings under § 2511(b).

      On March 20, 2018, CYF filed a notice of appeal along with a statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

The agency raises two issues for our review:



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      I. Did the orphans’ court err as a matter of law and/or abuse its
      discretion in denying CYF’s petition to involuntarily terminate
      Father’s parental rights pursuant to 23 [Pa.C.S. § 2511(a)(2)]
      when CYF proved by clear and convincing evidence that grounds
      for termination existed?

      II. Did the orphans’ court err as a matter of law and/or abuse its
      discretion by failing to address what would best serve [C.M.K.’s]
      needs and welfare pursuant to 23 [Pa.C.S. § 2511(b)] by clear
      and convincing evidence?

CYF’s brief at 5.

      We review cases involving the termination of parental rights according

to the following standards.

      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) (internal citations and quotations

omitted).

      Termination 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


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J-A23006-18


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

     As CYF argues that it proved by clear and convincing evidence that

grounds for termination existed under 23 Pa.C.S. § 2511(a)(2), we focus our

analysis on subsection (a)(2) and (b). Those subsections provide:

     (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:

           ....

           (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.

           ....

     (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. § 2511(a)(2) and (b).




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      To satisfy the requirements of § 2511(a)(2), the moving party must

prove “(1) repeated and continued 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). The grounds for

termination are not limited to affirmative misconduct, but concern parental

incapacity that cannot be remedied.       In re Z.P., 994 A.2d 1108, 1117

(Pa.Super. 2010). Parents are required to make diligent efforts toward the

reasonably prompt assumption of full parental duties. Id.

      Here, CYF argues that Father’s inconsistency and inability to fully comply

with his family service plan, drug screening, and family therapy amount to a

parental incapacity that cannot be remedied. CYF’s brief at 28-29. As noted

supra, we examine the orphans’ court’s decisions for an error of law or abuse

of discretion, and whether the findings of fact are supported by the record.

T.S.M., supra at 267. We are constrained to conclude that they are not.

Rather, the record establishes the following facts.

      C.M.K., who is seven years old, has been in care for over four years. As

a result of the turbulence of her upbringing, including the domestic violence

she witnessed, she has numerous behavioral issues, including violent

outbursts. During that time, Father was ordered to participate in treatment

for drug and alcohol addiction and to submit to random screenings, to

participate in treatment and therapy for domestic violence and anger

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management, and to regularly visit with C.M.K. From February 2015 through

November 2015, the court’s orders reflected that Father was in “moderate”

compliance. In February 2016 and August 2016, the court found that Father

was in substantial compliance. However, these conclusions are not supported

by the record.

      With regard to Father’s drug requirements, he was not in compliance.

He tested positive for cocaine in October 2016, and his visits were changed to

supervised. See Permanency Review Order, 1/24/17, at 1-4. Rather than

accepting responsibility for the result, Father gave an excuse that he “must

have been exposed” to cocaine while attempting to remove the drug from his

brother’s apartment. See N.T., 10/31/17, at 38. Father was supposed to

attend drug screens and was indeed called for sixteen drug screens by his

caseworker, but attended only thirteen of them.     See Permanency Review

Order, 8/2/17, at 1-4. When questioned about this failure, Father again gave

excuses, stating that he was not aware of the requested screens or his

caseworker’s attempts to contact him at both Father’s telephone number and

his girlfriend’s phone number.   Id. This failure is reflected in the juvenile

court’s   January   2017   permanency   review   order   identifying   Father’s

noncompliance by noting that Father missed screens on October 18, 2016,

November 2, 2016, and December 14, 2016. Furthermore, in August 2017,

Father posted a video on Facebook in which Father appeared intoxicated and

was slurring his words. See Permanency Review Order, 8/2/17, at 1-4. Most

telling, during the November 2017 permanency review hearing that was held

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in the midst of the instant termination proceedings, the court found Father

was in minimal compliance, and had still not attended drug screens. See

Permanency Review Order, 11/8/17, at 1-4. Hence, the certified record belies

the court’s present finding that Father complied with his court-ordered FSP

goals.

         Likewise, the record will not sustain the trial court’s characterization of

Father’s compliance with family therapy. It is important to note that Father

was required to attend counseling with C.M.K. to address the trauma she had

undergone after witnessing Father commit acts of domestic violence against

Mother. Father admitted that he had committed acts of domestic violence

against Mother, acknowledged the extent of her injuries, and acknowledged

that both N.R.L. and C.M.K. had likely witnessed the violence. N.T., 1/23/18,

at 87-88. Father was slow to initiate family therapy. He attended the intake

interview in June 2016 and one session with both children.             Permanency

Review Order, 8/3/16, at 1-6. Following those early appointments Father did

not call immediately to schedule additional sessions, nor was the caseworker

able to reach him regarding arrangements. Father claimed that he had not

received any messages about additional appointments until January 2017.

Permanency Review Order, 1/24/17, at 1-4.                By April 2017, Father’s

participation in family therapy was inconsistent at best.        He attended two

individual sessions, but failed to attend any sessions with the children.

Permanency Review Order, 4/19/17, at 1-4. He missed an appointment in

May 2017 and did not call to reschedule, per the court’s order. Permanency

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Review Order, 8/2/17, at 1-4.     As noted infra, during the November 2017

permanency hearings that occurred parallel with the termination proceedings,

the court determined that Father         had not attended family therapy

consistently.   Permanency Review Order, 11/8/17, at 1-4.        Following that

review hearing, Father attended eleven individual therapy sessions, but none

of those sessions included C.M.K.    Most concerning is the fact that Father

stated to the caseworker that he would not attend sessions with his daughter

and did not understand why that aspect of therapy necessary.         See N.T.,

4/19/17, at 59.

      Accordingly, contrary to the trial court’s findings, the certified record

established both that Father was not in substantial compliance with his court-

ordered goals and that he neglected to remedy the causes leading to the

parenting incapacity.   Stated plainly, the trial court erred by refusing to

consider the full record, including more recent evidence to show that Father

still refused to remedy the causes of the incapacity and had not remedied the

incapacity in the four years that C.M.K. was in care. Z.P., supra at 1117. As

our Court recognized in In re Adoption of R.J.S., 901 A.2d 502, 513

(Pa.Super. 2006),

      the statute implicitly recognizes that a child’s life cannot be held
      in abeyance while a parent attempts to attain the maturity
      necessary to assume parenting responsibilities. The 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.




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As the certified record confirms that the causes of Father’s parenting

incapacity   persist   approximately    three   and   one-half   years   after   the

adjudication of his daughter’s dependency, the orphans’ court erred in finding

that clear and convincing evidence did not establish grounds for termination

under § 2511(a)(2).

      In light of our determination that CYF established grounds of termination

under § 2511(a)(2), we must remand for the trial court to consider whether

the needs and welfare of C.M.K. will be met by the termination of Father’s

parental rights pursuant to § 2511(b). In cases where the trial court has not

made findings pursuant to § 2511 (b), we have ordered that:

      On remand, the court must carefully consider the tangible
      dimension, as well as the intangible dimension-the love, comfort,
      security, and closeness-entailed in a parent-child relationship.
      The court must consider whether a bond exists between Child and
      Father, and whether termination would destroy an existing,
      necessary and beneficial relationship.

In re B., N.M., 856 A.2d 847, 859 (Pa.Super. 2004) (internal citations

omitted).

      In consideration of § 2511(b), we instruct the trial court to carefully

consider the certified record mindful of the foregoing principles and to

determine whether the termination of parental rights would best serve the

developmental, physical and emotional needs and welfare of the child,

including C.M.K.’s relationship with Father as well as her safety needs, the

bond she shares with her half-sister and her relationships with the foster

family, who provide for her emotional and physical well-being. See In re


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A.S., 11 A.3d 473, 483 (Pa.Super. 2010) (“the trial court can equally

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

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

have with the foster parent.”).

      Order vacated. Remanded for further proceedings consistent with this

opinion. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2019




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