J. A29013/15 & J. A29014/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: R.-J.K., A MINOR                :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                                       :
APPEAL OF: R.-J.K., A MINOR,           :          No. 942 WDA 2015
                                       :
                       Appellant       :


               Appeal from the Order Entered May 12, 2015,
            in the Court of Common Pleas of Allegheny County
          Orphans’ Court Division at No. CP-02-AP-0000032-2015


IN RE: L.K., A MINOR                   :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                                       :
APPEAL OF: L.K.,                       :          No. 944 WDA 2015
                                       :
                       Appellant       :


               Appeal from the Order Entered May 12, 2015,
            in the Court of Common Pleas of Allegheny County
          Orphans’ Court Division at No. CP-02-AP-0000033-2015


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 22, 2015

     R.-J.K., a male child, and L.K., a female child, through their guardian

ad litem (“GAL”), appeal from the orders in the Court of Common Pleas of

Allegheny County denying the petitions for the involuntary termination of the
J. A29013/15 & J. A29014/15


parental rights of R.K. (“Father”), filed by the Allegheny County Office of

Children, Youth and Families (“CYF”). Upon careful review, we affirm.1

      Father and Mother are the natural parents of R.-J.K., born in

November of 2010, and L.K., born in October of 2011 (collectively, “the

Children”). Mother has an older son, E.H., the Children’s half-brother, born

in December of 2007, who is not a subject of the instant appeals.

      On    February    4,   2015,     CYF    filed   petitions   for   the   involuntary

termination of the parental rights of Father and Mother pursuant to

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

occurred on April 10, 2015, during which CYF presented the testimony of its

caseworker, Sharon Martin, and Neil Rosenblum, Ph.D., who performed

psychological evaluations of Father, Mother, R.-J.K., and L.K.                    Father

testified   on   his   own   behalf,    and     he    presented     the   testimony    of

David Richardson, the program director at the Center for Family Excellence.

In addition, Mother testified on her own behalf.

      In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court

explained that it found the testimony of the CYF caseworker, Ms. Martin, “to

be confusing, lacked an understanding of the necessary chronological order

in delivering pertinent information and didn’t have a working knowledge of

dates that were crucial to the understanding of this case for this [c]ourt’s


1
   In separate orders, the orphans’ court granted CYF’s petitions for the
involuntary termination of the parental rights of R.H. (“Mother”). Mother
filed notices of appeal, the disposition of which is by separate memorandum.


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satisfaction.”   (Trial court opinion, 7/10/15 at 4.)   In addition, the court

explained that it “multiple times [] had to ask its own questions as to dates

and goals satisfied as it related to potential setbacks that were crucial to an

understanding[,] and often the [c]ourt was left with equivocal answers

shading clarity.” (Id.)

      With this background in mind, the orphans’ court set forth the factual

history of this case, which the testimonial evidence supports. We summarize

as follows.      CYF first became involved with this family as a result of

allegations by Mother that Father hit Mother’s son, E.H., in the ear, causing

it to bleed. (Id. at 4.) Father admitted to hitting E.H. (Id.) Nevertheless,

CYF allowed E.H. to remain in the home with Mother and Father, and “[n]o

further abuse of E.H. was ever alleged.” (Id.)

      Thereafter, on November 29, 2011, Father was charged with a crime

involving domestic violence against Mother, and he pleaded guilty to

harassment and disorderly conduct on June 12, 2012. (Id.) Father received

a sentence of one year of probation, and he was ordered to attend anger

management classes and to have no violent contact with Mother.           (Id.)

Father successfully completed his probation.

      On February 12, 2013, Mother resided with a new paramour, with

whom she left the Children when she reported to the Allegheny County jail. 2


2
  Mother testified on cross-examination by counsel for CYF that she was
incarcerated for “[a] speeding ticket that turned into a warrant.” (Notes of
testimony, 4/10/15 at 135.)


                                     -3-
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(Id. at 5.) Mother’s paramour subsequently placed the Children with their

maternal grandmother.     (Id.)    Mother was released from jail eight days

later, on February 20, 2013, and she told CYF that she was not ready to

resume care of the Children. (Id.) On March 6, 2013, the Children were

adjudicated dependent, and they were placed in kinship foster care with

their maternal aunt.3 (Id.)

     CYF established the following Family Service Plan (“FSP”) goals for

Father:     to gain and maintain sobriety; to stabilize mental health; to

eliminate verbal and physical family abuse; to obtain and maintain

appropriate housing; to participate in a parenting program; to maintain

appropriate employment; and to maintain contact and cooperation with CYF.

(Notes of testimony, 4/10/15 at 25.) In addition, CYF arranged three-hour

weekly supervised visits between Father and the Children. (Id. at 36.)

     By orders dated May 12, 2015, the orphans’ court denied CYF’s

petition for the involuntary termination of Father’s parental rights to the

Children.      The orphans’ court accompanied the subject orders with

19 findings of fact. On June 17, 2015, the GAL filed notices of appeal and

concise     statements of errors   complained   of on appeal pursuant    to




3
  E.H. was adjudicated dependent on August 10, 2012, but he was not
removed from parental custody until March 6, 2013, at which time he was
also placed in kinship care with the maternal aunt. (Trial court opinion,
7/10/15 at 4-5.)


                                     -4-
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Pa.R.A.P. 1925(a)(2)(i) and (b).4 The orphans’ court filed its Rule 1925(a)

opinion on July 10, 2015.

      On appeal, the GAL presents the following issues for our review:

            I.       Whether the [orphans’] court abused its
                     discretion and/or erred as a matter of law in
                     denying the petition to involuntarily terminate
                     [] Father’s parental rights pursuant to
                     23 Pa.C.S.[A.] § 2511(a)(8) after the statutory
                     grounds for termination were proven by clear
                     and convincing evidence?

            II.      Whether the [orphans’] court abused its
                     discretion and/or erred as a matter of law in
                     concluding that the involuntary termination of
                     Father’s parental rights would not best meet
                     the developmental, physical, and emotional
                     needs and welfare of the Children pursuant to
                     23 Pa.C.S.[A.] § 2511(b)?

GAL’s brief at 7.5




4
  A notice of appeal must be filed within 30 days after entry of the order
from which the appeal is taken. See Pa.R.A.P. 903(a). Rule 108(b)
provides that the date of entry of an order is “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b)”. Pa.R.A.P. 108(b). In this case,
there is no date of entry on the certified docket of the subject orders. As
such, the appeal period has not been triggered, and, therefore, the GAL’s
appeals are timely. See In re L.M., 923 A.2d 505 (Pa.Super. 2007)
(declining to quash appeal as untimely where the docket does not show that
notice of entry of involuntary termination of parental rights order was
given).
5
   CYF filed a brief on appeal, which it designated as an “appellee brief.”
However, like the GAL, CYF argues in its brief that the orphans’ court erred
in   failing   to   terminate   Father’s  parental    rights  pursuant    to
Section 2511(a)(8) and (b).


                                       -5-
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     We consider the GAL’s issues mindful of our well-settled standard of

review.

          [A]ppellate courts must apply an abuse of discretion
          standard      when     considering       a  trial  court’s
          determination of a petition for termination of
          parental rights.       As in dependency cases, our
          standard of review requires an appellate court to
          accept the findings of fact and credibility
          determinations of the trial court if they are supported
          by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
          1179, 1190 (Pa. 2010). If the factual findings are
          supported, appellate courts review to determine if
          the trial court made an error of law or abused its
          discretion. Id.; R.I.S., [614 Pa. 275, 284,] 36 A.3d
          567, 572 (Pa. 2011) (plurality opinion)]. As has
          been often stated, an abuse of discretion does not
          result merely because the reviewing court might
          have reached a different conclusion. Id.; see also
          Samuel Bassett v. Kia Motors America, Inc., 613
          Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
          Christianson v. Ely, [575 Pa. 647, 654-655], 838
          A.2d 630, 634 (Pa. 2003). Instead, a decision may
          be reversed for an abuse of discretion only upon
          demonstration       of   manifest       unreasonableness,
          partiality, prejudice, bias, or ill-will. Id.

          As we discussed in R.J.T., there are clear reasons for
          applying an abuse of discretion standard of review in
          these cases. We observed that, unlike trial courts,
          appellate courts are not equipped to make the fact-
          specific determinations on a cold record, where the
          trial judges are observing the parties during the
          relevant hearing and often presiding over numerous
          other hearings regarding the child and parents.
          R.J.T., [608 Pa. at 28-30], 9 A.3d at 1190.
          Therefore, even where the facts could support an
          opposite result, as is often the case in dependency
          and termination cases, an appellate court must resist
          the urge to second guess the trial court and impose
          its own credibility determinations and judgment;
          instead we must defer to the trial judges so long as
          the factual findings are supported by the record and


                                    -6-
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            the court’s legal conclusions are not the result of an
            error of law or an abuse of discretion.         In re
            Adoption of Atencio, [539 Pa. 161, 165,] 650 A.2d
            1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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 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).

      Instantly, CYF petitioned for the involuntary termination of Father’s

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

which 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:




                                    -7-
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                (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.

                ....

                (5)    The child has been removed from
                       the care of the parent by the court
                       or under a voluntary agreement
                       with an agency for a period of at
                       least six months, the conditions
                       which led to the removal or
                       placement of the child continue to
                       exist, the parent cannot or will not
                       remedy those conditions within a
                       reasonable period of time, the
                       services or assistance reasonably
                       available to the parent are not
                       likely to remedy the conditions
                       which led to the removal or
                       placement of the child within a
                       reasonable period of time and
                       termination of the parental rights
                       would best serve the needs and
                       welfare of the child.

                ....


                                   -8-
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                  (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)(1),(2), (5), (8), (b).

      On appeal, the GAL argues that the orphans’ court abused its

discretion or committed an error of law in denying CYF’s petitions pursuant

to Section 2511(a)(8) and (b).      To terminate parental rights pursuant to

Section 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


                                      -9-
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serve the needs and welfare of the child. In re Adoption of M.E.P., 825

A.2d 1266, 1275-1276 (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 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.

      With respect to Section 2511(b), this court has described the requisite

analysis as follows:

            Subsection 2511(b) focuses on whether termination
            of    parental    rights  would    best   serve   the
            developmental, physical, and emotional needs and
            welfare of the child. In In re C.M.S., 884 A.2d
            1284, 1287 (Pa. Super. 2005), this Court stated,
            “Intangibles such as love, comfort, security, and
            stability are involved in the inquiry into the needs
            and welfare of the child.” In addition, we instructed
            that the trial court must also discern the nature and
            status of the parent-child bond, with utmost
            attention to the effect on the child of permanently
            severing that bond. Id. However, in cases where
            there is no evidence of a bond between a parent and
            child, it is reasonable to infer that no bond exists.


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            In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
            2008). Accordingly, the extent of the bond-effect
            analysis necessarily depends on the circumstances of
            the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

      Regarding    the   “needs    and    welfare”    analysis   pertinent   to

Sections 2511(a)(8) and (b), we have observed:

            [I]nitially, the focus in terminating parental rights is
            on the parent, under Section 2511(a), whereas the
            focus in Section 2511(b) is on the child. However,
            Section 2511(a)(8) explicitly requires an evaluation
            of the “needs and welfare of the child” prior to
            proceeding to Section 2511(b), which focuses on the
            “developmental, physical and emotional needs and
            welfare of the child.”       Thus, the analysis under
            Section 2511(a)(8) accounts for the needs of the
            child in addition to the behavior of the parent.
            Moreover, only if a court determines that the
            parent’s conduct warrants termination of his or her
            parental rights, pursuant to Section 2511(a), does a
            court “engage in the second part of the analysis
            pursuant to Section 2511(b): determination of the
            needs and welfare of the child under the standard of
            best interests of the child.” Accordingly, while both
            Section 2511(a)(8) and Section 2511(b) direct us to
            evaluate the “needs and welfare of the child,” we are
            required to resolve the analysis relative to
            Section 2511(a)(8), prior to addressing the “needs
            and welfare” of [the child], as proscribed by
            Section 2511(b); as such, they are distinct in that
            we must address Section 2511(a) before reaching
            Section 2511(b).

In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en banc)

(citations omitted).

      With respect to the first issue in this appeal, the GAL asserts that the

Children have been removed from their parents since February 14, 2013, or


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for 25 months, far in excess of the 12-month statutory minimum.

Therefore, the GAL argues that the first factor of Section 2511(a)(8) is

satisfied.   Likewise, CYF argues that the first factor is satisfied as the

Children have been removed for more than 12 months.

      With respect to the second factor, whether the conditions that led to

the Children’s removal continue to exist, the GAL asserts that Father

“continues to display frustration, irritability[,] and impatience with the

Children.” (GAL’s brief at 17.) Further, the GAL, as does CYF, argues that

the orphans’ court erred in failing to terminate Father’s parental rights

because he “had ‘substantially’ completed his FSP [goals]. . . .”      (Id. at

17-18.)

      In essence, the GAL and CYF disagree with the orphans’ court’s factual

finding that accompanied the subject orders, as follows, in pertinent part:

             [Father] has substantially completed his Family
             Service Plan.     [Father]’s primary problem was
             alleged to have been domestic issues. [Father] was
             convicted of Harassment and sentenced to 1 year of
             probation to have commenced June 12, 2012. As a
             result of his conviction, [Father] was ordered into
             anger management as part of his sentence. No
             other issues related to domestic violence or parental
             issues have concerned this court. On April 1, 2013,
             [Father] participated in individual psychotherapy
             through Mercy Behavioral Health on a weekly basis.
             As of November 4, 2013, his therapist reported he
             had “no symptoms of mental health and didn’t
             require further treatment.” That therapist reported
             that [Father] continued to be involved in treatment
             because he felt he gained insight into relationship
             issues into the dynamics involving his children and
             their mother. In July of 2014, [Father] became a


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           client of Pittsburgh Community Services Inc. His
           goal was to get training and a job. [Father] has
           provided evidence of employment and has a
           management position. [Father] is a client of Center
           For Family Excellence and the [c]oordinator,
           David Richardson[,] testified to the eagerness and
           commitment of [Father].         [Father] has provided
           evidence of his attempt to get housing with the
           Housing of the City of Pittsburgh.        He is in a
           “catch 22” because he is unable to get assistance
           with housing for . . . the children without having the
           children returned to him.

Order, 5/12/15 at Finding of Fact #16.      Significantly, in its Rule 1925(a)

opinion, the orphans’ court clarified that it found Father had “satisfied his

goals[,] and that he was ready to parent [the Children].”           (Trial court

opinion, 7/10/15 at 7-8.)

     With respect to the third factor, the needs and welfare of the Children,

the GAL asserts that the orphans’ court abused its discretion in finding the

existence of a strong bond between the Children and Father and in failing to

follow the recommendation of Dr. Rosenblum that the goal for the Children

be adoption.   In addition, CYF argues that the Children’s kinship foster

parents can best serve their needs and welfare.

     Upon careful review, we conclude that the orphans’ court did not err as

a matter of law because Section 2511(a)(8), along with Section 2511(a)(5),

is “predicated on removal of the child from the care of the parent. . . .”

In re C.S., 761 A.2d 1197, 1200 n.5 (Pa.Super. 2000) (en banc).              In

In re C.S., this court held that Section 2511(a)(5) and (8) did not provide a

basis for terminating the father’s parental rights when he was incarcerated


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at the time of the child’s removal from the mother’s care.             Likewise, in

In re Z.P., 994 A.2d 1108 (Pa.Super. 2010), this court, in accordance with

In re C.S., supra, concluded that Section 2511(a)(5) and (8) did not

provide a basis for terminating the father’s parental rights when he was

incarcerated at the time of the child’s placement.

        In this case, the CYF caseworker, Ms. Martin, testified that the

Children were living with Mother and her new paramour, but not Father, at

the time of their removal.           (Notes of testimony, 4/10/15 at 11-13.)

Therefore, the Children were not removed from Father’s care. Based on the

foregoing case law, we conclude that Section 2511(a)(8) is inapplicable in

this matter.6   7
                    As such, the GAL’s first issue on appeal fails.8 It follows that



6
   We recognize that the orphans’ court denied the petitions for the
involuntary termination of Father’s parental rights under Section 2511(a)(8)
on a different basis; namely, that he has satisfied the conditions that led to
the Children’s placement, and that he is ready to parent the Children.
However, this court is “not bound by the orphans’ court’s rationale, and may
affirm its ruling on any basis.” See Brickman Group Ltd. v. CGU Ins. Co.,
865 A.2d 918, 928 (Pa.Super. 2004); see also Ario v. Ingram Micro,
Inc., 965 A.2d 1194, 1200 (Pa. 2009) (same).
7
    For the same reason, Section 2511(a)(5) is inapplicable in this case.
8
  Because the GAL does not challenge the subject orders with respect to
Section 2511(a)(1) or (2), we need not review the orders under those
subsections.   Nevertheless, we have carefully reviewed the testimonial
evidence in this case and the rationale of the orphans’ court set forth in its
Rule 1925(a) opinion. We discern no abuse of discretion by the court. See
In re Adoption of S.P., supra (explaining that, “even where the facts
could support an opposite result . . . an appellate court must resist the urge
to second guess the trial court and impose its own credibility determinations
and judgment; instead, we must defer to the trial judges so long as the


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we need not consider the GAL’s second issue regarding Section 2511(b).

See In re L.M., supra (explaining that, “[o]nly 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)”). Accordingly, we affirm the orders denying CYF’s petitions

for the involuntary termination of Father’s parental rights.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




factual findings are supported by the record and the court’s legal conclusions
are not the result of an error of law or an abuse of discretion”).


                                     - 15 -
