J-A31042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.J., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: LUZERNE COUNTY
CHILDREN AND YOUTH SERVICES AND
GUARDIAN AD LITEM

                                                    No. 1038 MDA 2014


               Appeal from the Decree entered May 27, 2014
              In the Court of Common Pleas of Luzerne County
                       Orphans' Court at No: A-8132


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 28, 2015

     Luzerne County Children and Youth Services (Agency) and the

Guardian ad Litem for K.J. (Child) (collectively, “Appellants”) appeal from a

decree denying the Agency’s petition to terminate the parental rights of Q.R.

(Father) to Child. Upon review, we affirm.

     Child is currently four years old.      Her involvement with the courts

began on March 26, 2012, when the Agency filed dependency petitions

regarding her and her then-one-year-old brother, Z.J.         Z.J. had been

admitted to the hospital with serious injuries: bleeding between his brain

and skull and a healing broken arm. To its petition, the Agency attached the

following allegations of dependency:

     On March 23, 2012, [Z.J.] was admitted to Geisinger Danville,
     from some facility in either Lackawanna [C]ounty or Luzerne
J-A31042-14


      [C]ounty.      [Z.J.] was admitted with bilateral retinal
      hemorrhaging, bilateral subdural hematoma, and a healing right
      humerus fracture. The natural parents indicate that [Z.J.’s]
      injuries were caused by him getting hit by a toy, [thrown] by
      this minor [C]hild.

      Physicians at Geisinger indicate that the trauma is non-
      accidental, and that the explanation provided by the natural
      parents is not plausible to cause [Z.J.’s] injuries. The natural
      parents are unwilling to explain the injuries[,] which are
      consistent with facts, thereby placing this [C]hild in present
      danger.

Dependency Petition, 3/27/12, at 5.        The Agency obtained temporary

custody of the children. The children were placed in foster care, where they

remain to     date.   On May 25, 2012, the          trial    court adopted the

recommendations of a juvenile master, and adjudicated Child dependent. As

part of the dependency adjudication, the trial court incorporated a Service

Plan for Father.

      The Service Plan provides the following reason for Father’s initial

referral:

      [Z.J.] has bilateral retinal hemorrhages, bilateral subdural
      hematomas, and an old right humerous [sic] fracture. At first,
      [Mother] and [Father] were unable to provide a medically
      plausible explanation for the injuries. [Mother] later admitted to
      shaking [Z.J.] when he would not stop crying.

Master’s    Recommendation     for   Adjudication     and       Disposition—Child

Dependent, 5/25/12, Attached Service Plan at B-1.           The Service Plan lists

the parenting knowledge and mental health of both parents.              Id.   The

Service Plan called for the Agency to refer Father to a parenting class and

mental health evaluation, and provide supportive counseling. Id. at F-1 – F-



                                     -2-
J-A31042-14



3.   Father was required to participate in counseling and receive a mental-

health evaluation. Id. at F-1 – F-3.

      Shortly after Child’s placement, Mother confessed to police that she

caused the injuries to Z.J.    Child Protective Services never investigated

Father and had no suspicion that he was involved in Z.J.’s abuse,

notwithstanding the Agency’s initial concerns. See N.T., 2/27/12, at 36-37.

      Thereafter, dependency proceedings continued with required periodic

permanency review hearings before the juvenile master. On July 20, 2012,

the trial court adopted the master’s findings following the three-month

review hearing.    Crucial to the trial court’s eventual decision regarding

termination, the July 20 order notes that Father lived in New York state, but

that he lacked legal immigration status at the time.     Order and Master’s

Recommendations, 7/20/12, at 2 (unpaginated).         As such, he was not

eligible to receive services. The order notes further that Father could not be

referred for Agency-provided services, because he lived out of state, but that

an interstate compact had been submitted. Id. at 10 (un-paginated).

      On November 21, 2012, the trial court adopted the master’s findings

made following another permanency review hearing. The master found that

Father had not complied with the permanency plan or alleviated the

circumstances leading to Child’s placement, because he had not engaged in

court-ordered services.   Order, 11/21/12, at 1-2.   The trial court adopted

similar findings following a March 18, 2013 permanency review hearing.




                                       -3-
J-A31042-14



       In October 2013, the Agency petitioned the trial court to change the

goal for Child from reunification with her parents to adoption. The Agency

also filed petitions to terminate Mother’s and Father’s parental rights.

Regarding Father, the Agency averred he had failed to remedy the

conditions causing the placement by not addressing his mental health issues,

submit to random drug tests,1 or acknowledge the severity of Z.J.’s injuries.

Petition for Termination of Father’s Parental Rights, 10/25/13, ¶ 11.        The

Agency also contended Father was not a placement resource at the time of

Child’s placement, and he had not remedied that deficiency.

       After a continuance, the trial court held a hearing on February 27,

2014 on the Agency’s goal-change and termination petitions.               At the

beginning of the hearing, Father revealed that he recently discovered that he

is not Z.J.’s natural father.          Therefore, he voluntarily relinquished his

parental rights to Z.J.       For her part, Mother voluntarily relinquished her

parental rights to both children.

       At the hearing, the evidence showed that Father had limited resources,

and his lack of legal immigration status hindered his ability to receive

services.   In fact, two attempts to establish interstate compacts with New

York failed, in part because of Father’s lack of legal residency.       See Trial
____________________________________________


1
  It is unclear why the Agency required Father to undergo drug testing. At
the termination of parental rights hearing, the Agency’s caseworker admitted
the Agency had no concerns that Father ever was using illegal drugs or
abusing alcohol. N.T., 2/27/14, at 48-49.



                                           -4-
J-A31042-14



Court Rule 1925(a) Opinion, 5/27/14, at 4. About ten months after Child’s

placement, Father became a U.S. citizen, which allowed him to apply for

Temporary Assistance for Needy Families (TANF),2 and provide public

assistance and medical coverage to Child.

       The parties agreed to incorporate the dependency proceedings into the

record. To meet their burden, Appellants procured the testimony of Jessica

Sprow, an Agency caseworker; Sarah Thompsen, a mental-health counselor;

and Paul Durang, a family development specialist with Family Service

Association of Northeast Pennsylvania. Sprow testified that Child was placed

in foster care because of the injuries sustained by Z.J. and the fact that

neither Mother nor Father gave a medically plausible explanation for those

injuries.   N.T., 2/27/14, at 17.        Sprow also noted Father’s mental-health

issues, and that he missed two urinalysis appointments—despite admitting

that Father had tested negative during two other drug screening and the

Agency had no concerns that Father was using illegal drugs. Id. at 22-30,

48-49. Sprow also detailed problems setting up services for Father because

he lived in New York with his mother. Id. at 26-27, 42-45. Finally, Sprow

noted that during supervised visits, Father paid more attention to Z.J.—who

has Shaken Baby Syndrome—than to Child. Id. at 31-35, 51-52.


____________________________________________


2
  TANF is a federal program that provides block grants to states to, among
other things, assist needy families. See 42 U.S.C. §§ 601-19.



                                           -5-
J-A31042-14



      Thompsen testified that Father suffers from anxiety and showed

indicators of narcissistic traits. Id. at 73-78. As a result, she requested that

Father seek treatment from a psychiatrist.             Id. at 79-80.    On cross-

examination, she stated that Father’s mental-health issues might interfere

with his ability to parent, but that therapy, or possibly medication, might be

helpful. Id. at 81-83.

      Durang testified as to his involvement with Father in the parenting

program.    Over ten months, Father completed 13 out of 15 lessons

regarding parenting skills, but was discharged from the program for lack of

progress. Id. at 89-90. Corroborating Sprow’s testimony, Durang testified

that Father often paid more attention to Z.J. than to Child during supervised

visits. Id. at 94-97, 156-58.

      Following the conclusion of testimony, the trial court took the goal-

change and termination requests under advisement.            On March 12, 2014,

the trial court entered an order changing the goal for Child to adoption. On

May 27, 2014, the trial court issued an opinion, which it termed a

“Memorandum Issued Pursuant to Pa.R.A.P. 1925(a)” denying the petition to

terminate Father’s parental rights to Child.

      Following    the   trial   court’s   decision,     Appellants    moved   for

reconsideration.    To their motion, they attached the March 12, 2014

dependency order changing the goal to adoption.             In response, Father,




                                      -6-
J-A31042-14



averring that he had never been served with the goal-change order, moved

to reconsider the goal-change order.3 The trial court vacated the March 12

order, later admitting it had signed that order—which the Agency prepared—

in error. Trial Court Supplemental Rule 1925(a) Opinion, 7/7/14 2 n.1. The

trial court refused, however, to reconsider its order denying Appellant’s

termination petition. This appeal followed.

       Before this Court, Appellants raise six claims of error. However, at the

core, Appellants’ appeal can be encapsulated into one main issue and two

subsidiary issues. Appellants’ main argument is:

       I.     Did the trial court err in finding that [the Agency] failed to
              meet its burden by clear and convincing evidence for
              Father’s termination of parental rights [under 23 Pa.C.S.A.
              § 2511(a)(2), (5), and (8)]?




____________________________________________


3
  The record supports Father’s contention. In fact, no record evidence
exists regarding service of any orders entered in the dependency
case. The orders themselves contain merely stamps reflecting filing. There
is nothing written or stamped on the orders reflecting service, and no
certificates of service by the clerk of courts exist. The docket contains only
evidence of the orders’ filing.

The Rules of Juvenile Court Procedure require the clerk of courts (or the
equivalent officer) to serve court orders and notices on the litigants, and to
keep a record of the “date and manner of service of the order or court
notice.” Pa.R.J.C.P. 1166(C)(8), 1167(B). That was not done here. This
Court is troubled by the lack of any record evidence showing the clerk of
courts served the dependency court orders on the parties. Amplifying our
concern is the fact that Father was never served with the goal-change
order—an order that affected his parental rights.



                                           -7-
J-A31042-14



Appellants’ Brief at 3 (capitalization removed).          The two subsidiary

arguments are Appellants’ claims that (1) the trial court abused its discretion

in limiting the presentation of evidence at the termination hearing; and (2) a

claim that the trial court assumed facts not of record.       Appellant’s other

arguments are subsumed within its first claim. We will address this appeal

accordingly.

      In cases involving the termination of parental rights, our scope of

review is broad and comprehensive, though our standard of review is

narrow.   In re P.S.S.C., 32 A.3d 1281, 1285 (Pa. Super. 2011); In re

Adoption of M.R.B., 25 A.3d 1247, 1251 (Pa. Super. 2011).             We must

accept the factual findings of the lower court that are supported by the

record. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). We may reverse only if

the lower court erred as a matter of law or abused its discretion. Id.

      In termination proceedings, the petitioner bears the burden by clear

and convincing evidence. Adoption of M.R.B., 25 A.3d at 1251.

      The standard of clear and convincing evidence is defined as
      testimony that 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. The 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.             If
      competent evidence supports the trial court’s findings, we will
      affirm even if the record could also support the opposite result.

Id. (internal quotations and citations omitted).




                                     -8-
J-A31042-14



     In this case, Appellants argue the trial court erred in failing to

terminate Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(2), (5), and

(8); and (b), which 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.

        (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) 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

                                    -9-
J-A31042-14


      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 (other sections omitted). Termination of parental rights

is proper where any one subsection of § 2511(a) is satisfied, along with the

considerations of § 2511(b). In re Z.P., 994 A.2d 1108, 1117 (Pa. Super.

2010). Therefore, we must examine whether the trial court abused its

discretion in not terminating Father’s parental rights to Child under each of

the three subsections at issue here, § 2511(a)(2), (5), and (8). We address

Subsection (2) first. Then, we address Subsections (5) and (8) together.

      “The   grounds for    termination of    parental rights under    section

2511(a)(2) are not limited to affirmative misconduct. The grounds include

acts of refusal as well as an incapacity to perform parental duties. Parents

are required to make diligent efforts towards the reasonably prompt

assumption of full parental responsibilities.”   In re A.L.D., 93 A.3d 888,

895-96 (Pa. Super. 2014) (internal citations omitted).        A party seeking

termination under § 2511(a)(2) must demonstrate:

      (1)    repeated and continued incapacity, abuse or neglect;

      (2)    that causes the child to be without essential parental care,
             control, or subsistence; and

      (3)    the causes of the incapacity, abuse, or neglect cannot or
             will not be remedied.

See id. at 896 (quoting In re Geiger, 331 A.2d 172, 173-74 (Pa. 1975)).

      Regarding § 2511(a)(2), the trial court found Appellants failed to carry

their burden:

                                     - 10 -
J-A31042-14


      In the case at bar, the evidence adduced at trial does not
      support the contention that Father has displayed a repeated and
      continued incapacity to perform parental duties for [Child]. The
      conditions which gave rise to placement involved abuse by
      Mother. Father has displayed a commitment to reunification
      with his daughter in that he has worked toward obtaining his
      citizenship status, which therefore enabled him to provide
      medical assistance for his [C]hild[,] and enables him to provide
      housing assistance for his [C]hild. He visits with his [C]hild[,]
      and [C]hild calls him “other daddy.” [N.T., 2/27/14, at 32.]
      Father did not receive an entirely favorable recommendation
      from his parenting education provider; however, the notes of
      testimony reveal that the testimony of Mr. Durang and Ms.
      Sprow contradict [sic] with regard to bonding between [C]hild
      and [F]ather. [Id. at 157-58, 205-06.] Based upon the evidence
      presented, this court finds that the Agency did not meet its
      burden[,] by clear and convincing evidence, that parental rights
      should be terminated [under § 2511(a)(2)].

Trial Court Rule 1925(a) Opinion, 5/27/14, at 4-5.

      Appellants’ argument mainly disputes the trial court’s weighing of

evidence, which is the trial court’s role.     We are not in a position to

reconsider factual findings supported by the record.        Moreover, though

Appellants note that Father never completed his court-order services, they

fail to note that (1) the Agency had no suspicion that Father was using illegal

drugs; or (2) that Father completed 13 out of 15 lessons with Durang. As

the trial court stated, termination of parental rights requires proof by clear

and convincing evidence. Id. at 5-6. We find no abuse of discretion in its

finding that Appellants did not carry their burden regarding § 2511(a)(2).

      Termination under § 2511(a)(5) and (8) is similar.      Each subsection

concerns termination of parental rights to a child who has been placed under

the care of an agency.



                                    - 11 -
J-A31042-14


     To satisfy the requirements of Section 2511(a)(5), the moving
     party must produce clear and convincing evidence regarding the
     following elements: (1) the child has been removed from
     parental care for at least six months; (2) the conditions which
     led to the child’s removal or placement continue to exist; (3) the
     parents cannot or will not remedy the conditions which led to
     removal or placement within a reasonable period time; (4) the
     services reasonably available to the parents are unlikely to
     remedy the conditions which led to removal or placement within
     a reasonable period of time; and (5) termination of parental
     rights would best serve the needs and welfare of the child.

In re B.C., 36 A.3d 601, 607 (Pa. Super. 2012) (citing In re Adoption of

M.E.P., 825 A.2d 1266, 1273-74 (Pa. Super. 2003)).

     Similarly, section (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. Once
     the 12–month period has been established, the court must next
     determine whether the conditions that led to the child[ren]’s
     removal continue to exist, despite the reasonable good faith
     efforts of [the agency] supplied over a realistic time period.
     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 [agency] services.

In re T.M.T., 64 A.3d 1119, 1125-26 (Pa. Super. 2013) (quoting In re

K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008)).

     Here, it is undisputed that Child has been under the Agency’s care for

more than 12 months. The trial court found that the condition leading to the

placement of Child—the abuse of Z.J.—no longer exists because Mother

admitted to committing the abuse and Father has been cleared of any

involvement.   Appellants argue that the trial court erred in failing to take




                                   - 12 -
J-A31042-14



into account the service plan attached to the dependency orders. We find

Appellants’ argument unpersuasive.

       The record supports the trial court’s determination that Child was

originally placed because of the injuries to her half-brother, Z.J. The order

permitting the Agency to take custody of Child, the order adjudicating Child

dependent, and the Agency caseworker’s testimony at the termination

hearing show that the condition giving rise to the placement of Child was

the abuse of Z.J.        Mother initially accepted responsibility for Z.J.’s abuse

(but later recanted), and Father has been cleared. As such, this case is not

analogous to In re I.J., 972 A.2d 5, 11-12 (Pa. Super. 2008),4 because

there, the conditions leading to placement (the mother’s incapacity)

continued to exist.      Appellants fail to acknowledge the reason for Child’s

placement. Though a service plan may have been developed as part of that

placement, it was not the reason that the Agency took custody of Child.

Because the conditions leading to Child’s placement no longer exist, the trial


____________________________________________


4
  In I.J., the agency took custody of the children because of the mother’s
mental health issues, physical limitations, and inability to care for two of her
other children, who had been adjudicated dependent and were living with a
foster care family. I.J., 972 A.2d at 7-8. We held the trial court erred in
considering the mother’s attempts to remedy the conditions leading to
placement, which is not a factor to consider under § 2511(a)(8). Id. at 11-
12. We stated, “the trial court did not find that either Mother or Father had
remedied the conditions that led to removal of I.J.” Id. at 12. In contrast,
the trial court here found the conditions leading to placement of Child—the
abuse of Z.J. by Mother—had been remedied.



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J-A31042-14



court did not abuse its discretion in refusing to terminate parental rights

under § 2511(a)(5) or (8), and we need not address the remaining factors

for application of those subsections.

       Appellants cite In re J.T., 817 A.2d 505 (Pa. Super. 2003), to support

their proposition that parental rights may be terminated under § 2511(a)(5)

or (8) notwithstanding the alleviation of the condition giving rise to

placement if another reason supports continued placement of the child.

That is not what we held in J.T.        Rather, we merely reaffirmed the plain

meaning of § 2511(a)(8): that alleviatory steps taken by the parent

(inability to parent and inadequate housing in that case) are irrelevant under

§ 2511(a)(8). That subsection requires only that the conditions leading to

placement continue to exist.      Id.    Thus, J.T. actually supports our ruling

here, because the conditions leading to Child’s placement (Mother’s abuse of

Z.J.) do not continue to exist.

       We reemphasize that this Court is not the proper forum to argue that

witnesses were not credible. Appellants insinuate that Father was somehow

at fault for Z.J.’s injuries, but they point to no supporting evidence or trial

court findings.   Moreover, Appellants mistakenly rely on the trial court’s

findings adopted in the March 12, 2014 goal-change order. The trial court

vacated that order, having entered it in error.

       We next briefly address Appellants’ argument regarding the trial

court’s limiting of evidence of Father’s progress in services relating only to

Z.J.   “The admission or exclusion of evidence . . . is within the sound

                                        - 14 -
J-A31042-14



discretion of the trial court.”         In re K.C.F., 928 A.2d 1046, 1050 (Pa.

Super. 2007); see also Pa.R.E. 611 (granting trial courts authority to

exercise    reasonable     control    over     the   examination   of   witnesses   and

presentation of witnesses).            We have some difficulty understanding

Appellants’ argument, because they cite no supporting authority, and

instead merely claim the excluded evidence was “relevant.”                  It appears

Appellants contend this evidence was pertinent to show Father’s lack of

parenting ability. We find no abuse of discretion by the trial court, especially

given that Appellants have provided no authority supporting their argument.

Moreover, we note that the provision of services to Father, while pertinent to

his parenting ability, did not concern whether the conditions leading to

placement continued to exist under § 2511(a)(5) and (8).

       Finally, we address Appellants’ argument that the trial court “assumed

facts not of record.”          We have been unable to decipher Appellants’

argument. The difficulty is compounded by the insufficiency of Appellants’

concise statement on this matter.              Indeed, the concise statement was so

imprecise that the trial court was forced to guess what Appellants were

arguing. See Trial Court Supplemental Rule 1925(a) Opinion, 7/7/14, at 16-

17.   Again, given that Appellants cite no authority to support their vague

proposition, we find no merit to this argument.5

____________________________________________


5
  Because no statutory grounds for termination existed under 23 Pa.C.S.A.
§ 2511(a), the trial court did not need to address the best interests of Child
(Footnote Continued Next Page)


                                          - 15 -
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      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015




                       _______________________
(Footnote Continued)

under § 2511(b). See In re M.T., 101 A.3d 1163, 1178-79 (Pa. Super.
2014) (en banc) (noting the analysis under § 2511 is bifurcated, and a court
must first determine that statutory grounds exist for termination under
§ 2511(a)).



                                           - 16 -
