J-S43029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.D.C.           IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA




APPEAL OF: WESTMORELAND COUNTY
CHILDREN'S BUREAU

                                                       No. 323 WDA 2017


                  Appeal from the Order Dated January 18, 2017
             In the Court of Common Pleas of Westmoreland County
                      Orphans’ Court at No(s): 31 of 2016

    IN RE: ADOPTION OF A.D.C.                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




    APPEAL OF: WESTMORELAND COUNTY
    CHILDREN’S BUREAU

                                                      No. 324 WDA 2017


                  Appeal from the Order Dated January 18, 2017
             In the Court of Common Pleas of Westmoreland County
                      Orphans’ Court at No(s): 31 of 2016

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 31, 2017

        Appellant, the Westmoreland County Children’s Bureau (“Agency”),

appeals from the January 18, 2017, order denying Agency’s petition for

involuntary termination of the parental rights (the “TPR Petition”) of D.A.C.
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S43029-17


(“Father”) to his biological child, A.D.C. (“the Child”). Agency also appeals

from the order of the same date denying Agency’s petition to confirm

consent by the Child’s mother, M.L.A. (“Mother”), to adoption of the Child,

pending final resolution of Father’s parental rights (the “Consent Petition”).

Upon our review of the record, we conclude that the trial court improperly

considered evidence outside the record in rendering its determination —

specifically the Child Permanency Plans (“CPPs”) dated March 4, 2015, and

February 4, 2016. Accordingly, we vacate the orders below and remand to

the trial court for further proceedings consistent with this decision.

      Father and Mother first met in 2007 and moved in together shortly

thereafter. The Child was born in 2008; his half-brother, T.C. (“Brother”),

was born in 2011.       Trial Ct. Op., 1/18/17, at 2; Ex. WCCB-3, Order,

10/16/14, Findings of Fact, at 1 ¶ 1. On January 26, 2012, Father received

primary physical custody of the Child and Brother (“the Children”), and they

moved out of the family residence.

      On February 11, 2013, Agency received a referral alleging that Brother

was physically abused by Father’s then-girlfriend, M.H.          Trial Ct. Op.,

1/18/17, at 3; Ex. Ct.-A at 2.       Father agreed that M.H. would have no

unsupervised contact with the Children.       However, on January 31, 2014,

Agency took the Children, after Father allegedly allowed M.H. to collect the

Child from the bus stop on multiple occasions without supervision.




                                      -2-
J-S43029-17


       In February 2014, an adjudicatory hearing was held before a master;

following the master’s recommendation, the trial court ordered that physical

and legal custody of the Children be transferred to Mother.      Trial Ct. Op.,

1/18/17, at 4; Ex. Ct.-A at 2; Ex. WCCB-3, Order, 10/16/14, Findings of

Fact, at 1 ¶¶ 4-5; N.T., 11/3/16, at 103. Nevertheless, Mother left the Child

unattended for a significant amount of time while she was supposed to be

exercising primary physical custody, and, on September 14, 2014, the Child

was again taken into Agency’s custody.

       On January 4, 2016, Mother consented to the termination of her

parental rights via a signed consent to adoption.        On March 17, 2016,

Agency filed the petition to terminate Father’s parental rights pursuant to 23

Pa.C.S. § 2511(a)(2), (5), and (8) and § 2511(b). 1 On May 11, 2016, the

____________________________________________
1
       (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
(Footnote Continued Next Page)


                                           -3-
J-S43029-17


trial court held a hearing on the Consent Petition. On November 3, 2016,

the trial court held an evidentiary hearing on the TPR Petition.

      Agency’s first witness at the TPR Petition hearing was Abigail

Ackourey, a behavior health clinician, who had been “providing supervised

visitation and hands-on parenting during the visitation as needed since
                       _______________________
(Footnote Continued)
             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.



                                            -4-
J-S43029-17


November of 2015.” N.T., 11/3/16, at 3-4. The trial court summarized Ms.

Ackourey’s relevant testimony as follows:

     The Child became upset when Father was late for a visit, and
     was particularly upset when Father failed to attend [a] visit in
     August 2016. The reason offered by Father for the missed visit
     was problems with his transportation.       Father had missed
     previous appointments as well for this same reason.

     Importantly, she testified that Father requested assistance with
     transportation to enable him to make the visits and to participate
     in hands-on parenting instruction, but that her agency “was
     unable to accommodate that.” She also acknowledged that
     transportation had been an issue for Father “off and on” since
     the case was assigned to her [in November 2015]. . . . Two
     previous visits in June 2016 were canceled because of Father’s
     lack of transportation. She had discussed the Father’s
     transportation problem with the caseworker in June 2016, and
     the possibility of providing bus passes to Father. Father at the
     time apparently indicated that he could not afford bus passes to
     facilitate attendance at the visits.

Trial Ct. Op., 1/18/17, at 8 (quoting N.T., 11/3/16, at 26; citing id. at 24-

25, 35-36).

     Agency’s next witness was Susan Reed, who had been retained by

Agency in October 2014 to provide Father with “physical abuse non-

offender’s treatment.”    Trial Ct. Op., 1/18/17, at 8.      The trial court

summarized the relevant portion of Ms. Reed’s testimony as follows:

     Father called Ms. Reed twice after a missed appointment
     scheduled for June 16, 2016, indicating that he had
     transportation problems. . . . Under cross-examination by
     Father’s counsel, Ms. Reed indicated Father called her on June
     16, 2016, the day of the last scheduled visit, to explain he could
     not attend the scheduled meeting, as he had a hole in his gas
     tank and thus had no transportation to get to the session. She
     also indicated he called a second time to explain his
     transportation difficulties.  Thereafter Ms. Reed called the


                                    -5-
J-S43029-17


      [Agency] caseworker      conveying   [F]ather’s   concerns   about
      transportation.

Id. at 9 (citing N.T., 11/3/16, at 37-38, 41-42).

      Agency’s following witness was Rachelle O’Malley, a senior clinician for

the Children’s Institute of Pittsburgh, who did an attachment and bonding

assessment of Father and the Child. N.T., 11/3/16, at 48-49.

      Ms. O’Malley testified that in contradistinction to his Mother,
      whom the Child acknowledges abandoned him, “he recognizes
      that his father is there for him,” but the Child was disappointed
      by Father’s failure to attend visits and “lost patience” with
      Father. With regard to the missed visit in August 2016, Ms.
      O’Malley testified that the Child was very upset when Father
      failed to show for the visit and he ripped up a picture he had
      made for his Father. At the time, Ms. O’Malley told the Child
      that they would make an attempt to find out why his Father
      missed the visit, which she acknowledged seemed unusual,
      given Father had twice confirmed his attendance in accordance
      with the service provider’s procedures.        Ms. O’Malley later
      learned Father had attempted to attend the visit, but had trouble
      of some sort with his vehicle. She did not inform the Child of
      Father’s attempt to attend the meeting, nor was she aware if
      anyone else had done so.

Trial Ct. Op., 1/18/17, at 13 (quoting N.T., 11/3/16, at 94-95; citing id. at

90, 97-99).

      Amanda Bush, Agency’s caseworker who was assigned to this matter

on April 7, 2015, also testified. Trial Ct. Op., 1/18/17, at 13; N.T., 11/3/16,

at 103.

      With regard to transportation, Ms. Bush testified that when she
      was initially assigned to the matter on April 7, 2015, Father
      indicated that he had difficulty with transportation. And so, not
      later than May or June 2015, [Agency] contracted for
      transportation services for Father.        In order to receive
      transportation, Father would need to notify Ms. Bush in advance


                                     -6-
J-S43029-17


      to provide adequate time for transportation arrangements to be
      made.

Id. at 14 (citing N.T., 11/3/16, at 109). Ms. Bush testified, “That’s been a

standing offer, and [Father] has been reminded several times throughout

the life of the case that if he does need transportation, he does need to

contact me.” N.T., 11/3/16, at 109.

      Before the August 2016 visit previously discussed, Father
      contacted Ms. Bush for transportation on only one occasion
      during her involvement in this case. . . . Regarding his difficulty
      attending visits and appointments, Ms. Bush acknowledged that
      Father had walked to numerous visits in the past, from his home
      in Jeanette to the relevant offices in Greensburg, which the [trial
      c]ourt notes is approximately five miles. . . . Father’s visits with
      the Child were initially in his home, but were terminated at that
      location prior to Ms. Bush’s involvement, due to alleged safety
      concerns resulting from the presence of lawnmowers and other
      equipment in the house, as well as the presence of an
      unidentified woman in Father’s home, who was taking a bath in
      his home when the Child walked in upon her during a visit. No
      testimony from the then-assigned caseworker was presented
      regarding this incident. . . . Ms. Bush testified at length
      regarding the outside appearance and condition of Father’s
      home, offering numerous exhibits of photographs of the outside
      of the home.

Trial Ct. Op., 1/18/17, at 14-15 (citing N.T., 11/3/16, at 110, 112, 115-16,

118-29); see also Ex. WCCB-4 (eleven photographs collectively marked as

one exhibit).

      Ms. Bush also testified that the condition of Father’s home had been

“regularly discussed throughout the life of this case” and that the only time

the condition was adequate was “[w]hen [Father] cleaned up for the Section




                                      -7-
J-S43029-17


8 inspection . . . approximately three months” prior to the hearing.          N.T.,

11/3/16, at 118. When asked about “hygiene,” Ms. Bush responded:

      It’s been covered in the context as a whole with the cleanliness
      of the home, having a clean space to prepare food, having a
      clean space for yourself. . . . There’s no stability in the condition
      of the home; there’s no stability in hygiene; there’s no stability
      in the safety hazards being present or not in the home.

Id. at 130.   During cross-examination, “Ms. Bush acknowledged Father’s

numerous transportation problems, indicating that Father had a variety of

vehicles during the case, all of which appeared to be unreliable.” Trial Ct.

Op., 1/18/17, at 15 (citing N.T., 11/3/16, at 148).

      Father testified on his own behalf.      The trial court summarized his

relevant testimony as follows:

      When Father “first started coming” to the [Agency], he told them
      that he “needed transportation. They couldn’t provide it. [He]
      told them [he]’d try to get [t]here as best [he] could.” Father
      described some of the efforts the [Agency] made to get him bus
      passes, indicating that bus passes were not put into his
      mailboxes as promised, and that though perhaps available in the
      [Agency’s] offices, he could[ not] get there to pick them up.
      Further, he testified his vehicles “went down” often and that
      transportation was the reason he couldn’t complete services.

      Thereafter, the following exchange occurred:

            Q:   Did you ever have conversation with Amanda
            Bush about your transportation?

            A:    She said at that point they couldn’t do nothing.
            What she’s referring to presently is she said, they’re
            going to terminate your rights, and if you need your
            transportation, then I can give it to you now. I don’t
            understand why she could do it now, but not before.
            That’s why I haven’t been there at all them
            appointments I was supposed to make.


                                      -8-
J-S43029-17



              ....

           I understand, you know, people have a hard time
           getting rides here and there. . . . But it ain’t my
           fault. Well, I feel it ain’t my fault. . . . They want to
           get there. But I can’t get there.

           I mean, yeah, I can walk there. But sometimes I
           don’t feel like walking from Jeanette to there all the
           time. That’s a long walk. And then, even when I
           was going to classes, I paid the bus fee, bus fee, bus
           fee. There’s times I’d run out of money by the end
           of the month, and I couldn’t do it.

     Father walked from Jeanette to Greensburg at least eight times
     for visits or appointments. Had he been provided with regular
     transportation, he was willing and would have participated in the
     non-offender’s treatment program and hands-on parenting
     instruction until completion. . . . Further regarding
     transportation, he affirmed that the [Agency]’s efforts to provide
     him with transportation had commenced only “recently.” . . .
     Regarding the presence of the unknown woman in his bathroom,
     a reason given by [Agency] for the termination of visits in his
     home, Father testified that the unknown person in the bathroom
     was his sister, taking a shower at his house. . . . Father stated
     as follows: . . .

        I tried to go do what I had to do, but I never had
        transportation to do it. So every time I got yelled at and,
        you ain’t here. You ain’t here. Well, the thing was I told
        you from the beginning that I needed a [sic] find a ride to
        get here. I’d do all of your classes for you; whatever you
        wanted me to do. So therefore you’re showing me that,
        you know, look. I’m not going to provide you any rides.
        Well then, look. I can’t be there. I told you that from the
        start.

     On the same subject, the following exchange occurred upon
     questioning by the [trial c]ourt:

           A: . . . I needed help, and I don’t feel that they gave
           me the proper help.



                                     -9-
J-S43029-17


              Q:     In what way?

              A:     Transportation. . . . And I just feel that they
              didn’t treat me right. That’s all, sir.

Trial Ct. Op., 1/18/17, at 16-18 (quoting N.T., 11/3/16, at 170, 172-74,

190-91, 198-99; citing id. at 172, 174, 185).

       At the TPR Petition hearing, Agency introduced five orders from the

2014 dependency action2 — dated October 16, 2014, April 9, 2015,

September 24, 2015, March 31, 2016, and October 4, 2016 — along with

their accompanying master’s recommendations, as Ex. WCCB-3.               N.T.,

11/3/16, at 105.3 The order of April 9, 2015, noted “that visits with Father

had been moved from Father’s house to Project Star’s offices in Greensburg

in February 2015 due to unspecified concerns regarding Father allowing

individuals ‘unknown to the [A]gency in his home during his visits with the

[C]hildren.’” Trial Ct. Op., 1/18/17, at 5 (quoting Ex. WCCB-3, Order,

4/9/15, at 2).       The order of September 24, 2015, “notes that Father

struggled over the summer to attend some visits, citing ‘financial difficulties

and transportation issues.’” Id. at 6 (quoting Ex. WCCB-3, Order, 9/24/15,

at 1). The order of March 31, 2016, “noted that Father had . . . problems

affecting his progress[, including f]ailure to appropriately maintain his

home[.]” Id. at 6.
____________________________________________
2
    Docket No. CP-65-DP-0000015-2014.
3
  The entire record from the dependency action was not admitted into
evidence.



                                          - 10 -
J-S43029-17


      On January 18, 2017, the trial court denied the petition to terminate

Father’s parental rights to the Child and the petition to confirm consent by

Mother to the Child’s adoption.    In an opinion, the trial court stated that,

viewing the evidence presented in its totality, Father’s failure or inability to

participate in hands-on parenting sessions is the central reason why this

matter proceeded to the filing of the TPR Petition. Trial Ct. Op., 1/18/17, at

22. The trial court stated:

      The main reason Father’s transportation became so critical was
      the Agency’s decision, early on, to terminate visitation with the
      child at the Father’s home and to move the visitation to the
      offices of [Agency] and its service providers in Greensburg. . . .

      The factual basis for the Agency’s critical decision to terminate
      visitation in Father’s home is not entirely clear. The caseworker
      offered testimony, but since she was not assigned to the case
      until after the decision had been made and implemented, her
      understanding is based upon her review of the Agency file, and
      not her personal knowledge. She testified, however, that the
      inside of the house was cluttered with lawnmowers and parts,
      and that an unknown woman was present in the shower during
      one of the visits, whom the Child had walked in on while she was
      showering. No photographs of the inside of the house were
      offered, nor was testimony from the caseworker assigned to the
      case at the time of the decision to remove visits from Father’s
      home. The only testimony regarding the identity of the unknown
      woman was offered by Father, who indicated that the woman
      was his sister. None of the testimony offered showed that a
      continuation of visits in Father’s home posed any threat to the
      Child, particularly where Father would be receiving hands-on
      parenting instruction during such visits.

      [Agency] offered a significant amount of testimony tending to
      show its efforts to ensure Father had the necessary
      transportation and support necessary to achieve reunification.
      Father offered testimony to a large extent contradicting the
      [Agency]’s assertions. . . .



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J-S43029-17


     The caseworker, Ms. Bush, understood at the time of her initial
     assignment to the case on April 7, 2015, that Father had
     difficulty with transportation, that he owned a series of
     unreliable vehicles, and that he had resorted to walking to some
     of his appointments.

     Father described his efforts to attend required sessions,
     including his vehicle reliability problem and his efforts to walk to
     the sessions. He testified that he had been and was willing to
     complete all requirements.         Father clearly made significant
     efforts to do so. In fact, from the testimony offered by [Agency]
     and the service providers, Father did everything required of him
     except complete hands-on instruction and non-offender’s
     treatment, both of which demanded consistent attendance at
     visitation sessions and appointments.         According to Father,
     however, his pleas for assistance with transportation were
     mostly ignored until after the petition for termination of parental
     rights had been filed.

     The Child Permanency Plan (CPP) dated March 4, 2015, provided
     as part of the visitation plan, at page H-1, that transportation
     was the responsibility of Father. Likewise, the revised CPP dated
     February 4, 2016, again set forth as part of the visitation plan
     that transportation was the responsibility of Father. Nowhere in
     either CPP is there any reference to transportation assistance
     being offered or provided to Father.

     It is not necessary to doubt the credibility of the caseworker to
     conclude that whatever transportation assistance may have been
     offered to Father was offered on an ad hoc basis, sporadically,
     and not as part of any plan to assist Father, whom the Agency
     admits struggles with financial and intellectual challenges, and
     with acquiring the transportation essential for him to complete
     ordered services and achieve reunification. It is also plausible to
     conclude that the transportation was offered to Father only after
     February 4, 2016, the date of the last CPP and after the TPR
     Petition was filed as a prelude to the Father’s rights being
     terminated.

     Transportation assistance in this case was especially important
     given the termination of visits in Father’s home and the
     testimony offered that Father did everything asked of him
     otherwise, that was not dependent upon consistent attendance
     at visitation sessions or required appointments to be made. The


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J-S43029-17


     fact that transportation does not appear to have been provided,
     at least not in any coherent, understandable, or planned way, or
     perhaps not at all until after the petition for termination of
     parental rights was filed, appears to have inhibited Father’s
     reunification efforts.

     Father, by the testimony of the WCCB caseworker and service
     providers, was cooperative and was making progress. All parties
     seem to agree that the fundamental reason Father was unable to
     complete hands-on parenting instruction and physical abuse
     non–offender’s treatment was inconsistent visitation.          The
     primary reason for that failing appears to be Father’s difficulties
     with transportation. The primary reason transportation became
     such an important issue in this case was the largely unexplained
     decision to terminate visitation at the Father’s home.

     . . . Leading to the August 2016 visit, the Child still viewed
     [Father] as his father, drew a picture to give to him and looked
     forward to seeing him, despite Father’s already limited visitation
     and his uncontradicted testimony that he was prevented from
     calling the Child by telephone at the foster home. Father failed
     to attend the August 2016 visit because of transportation
     problems and he so informed the Agency and its service
     providers. The Child apparently was never told that Father
     attempted to attend that meeting and that he had called to
     inform the Agency of the reason for his failure to attend. After
     this date, the Child seems to have given up on his father. . . .

     . . . That Father expressed frustration over the lack of
     transportation services, which the Agency made necessary by
     removing the visits from Father’s home, is understandable. And
     the fact that transportation seemingly became more available
     after the filing of the TPR Petition suggests that these services
     were provided less to help Father achieve reunification and more
     to prepare the termination case for presentation to the [trial
     c]ourt.

     Based upon the record presented, the [trial c]ourt cannot
     without hesitancy find that the statutory requirements of (a)(2),
     (5) and (8) have been established. Given the lack of concerted
     effort to provide the transportation necessary to achieve
     reunification in this case, the [trial c]ourt cannot determine that
     the conditions which led to removal of the Child continue to



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J-S43029-17


      exist, or that such conditions, if they continue to exist, cannot or
      will not be remedied.

Id. at 23-27.    The trial court concluded that Agency “had not met its

burden.” Id. at 27.

      The trial court explained its decision to deny the Consent Petition as

follows:

      The Adoption Act, 23 Pa.C.S.A. § 2101 et seq., provides for the
      [trial c]ourt’s authority and discretion in proceeding upon
      adoption petitions and, prior thereto, proceeding to terminate
      parental rights either voluntarily or involuntarily. The present
      proceeding to terminate Mother’s parental rights was pursuant to
      23 Pa.C.S.A. § 2504, which provides an alternative procedure for
      voluntary relinquishment of parental rights by execution of
      consents to an adoption followed by petition to the [trial c]ourt
      for hearing thereon. Section 2504 provides in pertinent part
      relative to the substance and outcome of hearings on § 2504
      petitions as follows:

            (a) Petition to confirm consent to adoption. -- If
            the parent or parents of the child have executed
            consents to an adoption, upon petition by the
            intermediary . . . the court shall hold a hearing for
            the purpose of confirming a consent ....

            (b) Hearing. -- Upon presentation of a petition filed
            pursuant to this section, the court shall fix a time for
            a hearing . . . . After hearing, . . . the court may
            enter a decree of termination of parental rights . . .
            and duties, including the obligation of support, in the
            case of a relinquishment to an agency.

      23 Pa C.S.A. § 2504 (emphasis added).           The language of
      subparagraph (b), read in conjunction with subparagraph (a),
      indicates that, when considering such a petition, the [trial c]ourt
      must determine more than the validity of the parent’s consent; it
      must also determine whether the consenting parent’s rights
      should be terminated.




                                     - 14 -
J-S43029-17


      The statutory language requires the [trial c]ourt to consider the
      consent in its context, that of a proceeding for the adoption of a
      child. Based upon the record and facts as set forth above, and
      more fully in th[e trial c]ourt’s January 18th Opinion and Order
      of Court, the [trial c]ourt does not find that it is in the best
      interests of the Child to terminate Mother’s parental rights where
      no new parent-child relationship is contemplated as a
      consequence of th[e trial c]ourt’s decision not to terminate
      Father’s parental rights.

      The circumstances in this case, relative to termination of
      Mother’s parental rights where Father’s parental rights remain
      intact, are akin to stepparent adoption cases where following the
      termination of one parent’s rights, but prior to the adoption
      being finalized, the adoption falls through because of a
      separation between the prospective stepparent and the other
      natural parent.     Pennsylvania courts’ review of those cases
      reveals “that the Adoption Act provides for termination of
      parental rights only in connection with a plan for adoption,” and
      that the law abhors the judicial creation of a parental vacuum
      where such void will not be filled within a new family unit. In re
      B.E., 377 A.2d 153, 154 (Pa. 1977); see also In re Adoption of
      J.D.S., 763 A.2d 867, 871 (Pa. Super. 2000) (“Termination of
      the natural parent’s rights prior to adoption and allowance of
      stepparent adoption is for the purposes of protecting the
      integrity and stability of the new family unit”) and In re
      Adoption of L.J.B., 18 A.3d 1098, 1108 n.11 (Pa. 2011) (“The
      public policy behind this is simple:        Pennsylvania will not
      countenance state-created orphans”).

      “Termination of parental rights permits the child and the
      adoptive . . . parents to establish a new parent-child relationship
      through adoption”. In re B.E.[, 377 A.2d] at 156. Here, no
      new parent-child relationship is contemplated and thus the
      termination of Mother’s parental rights, whether or not
      consented to, is not warranted, necessitated or suited to the
      best interests of the Child at this time.

Trial Ct. Op., 3/6/17, at 3-4.

      Agency appealed on February 16, 2017, and now raises the following

issues:



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J-S43029-17


      1.    The trial court erred in denying [the TPR Petition] pursuant
      to 23 Pa. C.S.A. § 2511 (a)(2), (a)(5), (a)(8) and (b) and
      abused its discretion by giving significant and weighty
      consideration to evidence outside the record without providing
      [Agency] an opportunity to respond, and improperly applying
      this evidence to reach its final decision;

      2.    The trial court erred in denying [the Consent Petition],
      consented to by Mother . . . pursuant to 23 Pa. C.S.A. § 2711
      and § 2504 where the record clearly evidences that the Consent
      was properly executed and at no time did Mother or her counsel
      challenge the validity of the Consent; and that the trial court
      abused its discretion when concluding that the [Consent Petition]
      is inextricably intertwined with the [TPR Petition] of Father and
      applied this as the only basis for its final decision to deny the
      [Consent] Petition.

Agency’s Brief at 4.

              Petition to Terminate Father’s Parental Rights

      We consider Agency’s first issue in light of our well-settled standard of

review in actions for termination of parental rights:

      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) (citations and quotation marks

omitted).




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      The only issue raised by Agency in challenging the trial court’s decision

to deny its TPR Petition is that the trial court “appl[ied] significant

consideration to evidence outside the record”:

      [I]n the Opinion of the [trial c]ourt, dated January 18, 2017 . . .
      the [trial c]ourt provides “a brief introduction and review of the
      relevant facts of the case as set forth in the record of the
      dependency action at docket number CP-65-DP-15-2014…”; and
      references an “Order of Court dated January 26, 2012 (“January
      2012 Custody Order”) at docket number 156 of 2012-D”; and
      “The Child Permanency Plan (CPP) dated March 4,
      2015…Likewise, the revised CPP dated February 4, 2016…” .

      The record of the [2014] dependency action was not admitted as
      evidence at the hearing on the Petition for Involuntary
      Termination of Parental Rights, although certain of its documents
      were; there is no reference at the same hearing to the custody
      actions filed between Mother and Father; neither the Agency, nor
      the Father, nor the [trial c]ourt, entered into evidence any of the
      Agency’s Child Permanency Plans.

      Additionally, the [trial c]ourt in its Opinion [of January 18,
      2017,] utilizes the contents of the CPP documents, without
      proper context, to disparage the Agency and caseworker, and
      draw conclusions that the evidence presented and admitted to
      the record at the hearing does not support.

Agency’s Brief at 13-14 (quoting Trial Ct. Op., 1/18/17, at 2-3, 24; citing id.

at 25-26).    Agency therefore appears to be challenging the trial court

opinion’s inclusion of (1) the January 2012 Custody Order, (2) the entirety of

the 2014 dependency docket, (3) the CPPs dated March 4, 2015, and




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J-S43029-17


February 4, 2016, and (4) any custody actions between Mother and Father.

See id.4

       Agency does not cite any decisional law in support of its argument.5

Although we have not addressed this issue in a termination proceeding, in a

child and spousal support case we held:            “A trial court may not consider

evidence outside of the record in making its determination.          Nor may this

court uphold a trial court’s order on the basis of off-the-record facts.” Ney

v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007) (internal citations and

quotation marks omitted); see also M.P. v. M.P., 54 A.3d 950, 954 (Pa.

Super. 2012) (a trial court may not consider evidence outside the record in

making its decision). The same bar applies here. At bottom, this prohibition

stems from due process concerns.               “The right of a litigant to in-court

presentation of evidence is essential to due process:             ‘In almost every
____________________________________________
4
   The trial court had filed an opinion with its order denying the TPR Petition
on January 18, 2017. The trial court opinion of January 18, 2017, does not
address Agency’s concern that the trial court considered evidence outside
the record. The trial court did not file a separate opinion for the TPR Petition
subsequent to the notice of appeal, even though Agency had simultaneously
filed its statement of matters complained of on appeal with its notice of
appeal pursuant to the Children’s Fast Track requirements of Pa.R.A.P.
1925(a)(2). In its Rule 1925 Statement, Agency said that the trial court
“abused its discretion by giving significant consideration in its ruling to
evidence outside the record to which [Agency] had no opportunity to
respond[.]” Rule 1925 – Concise Statement of Errors, 2/16/17, at ¶ 1.
5
  Agency relies on Canon 2 of the Code of Judicial Conduct, 33 Pa. Code
§ 2.9(C) (“A judge shall not investigate facts in a matter independently, and
shall consider only the evidence presented and any facts that may properly
be judicially noticed”). No party argued that the trial court could take
judicial notice of the documents at issue. See Pa.R.E. 201.



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J-S43029-17


setting where important decisions turn on questions of fact, due process

requires an opportunity to confront and cross-examine adverse witnesses.’”

Wood v. Tucker, 332 A.2d 191, 192 (Pa. 1974) (quoting Goldberg v.

Kelly, 397 U.S. 254, 269 (1970)).       In evaluating whether the trial court

erred, this Court reviews for an abuse of discretion. Ney, 917 A.2d at 868.

      In this case, the only references to the January 2012 Custody Order

appear in the “Introduction” section of trial court opinion of January 18,

2017, and help to establish a chronology for this Court and to explain the

existing custody situation prior to Agency’s filing of the TPR Petition.   See

Trial Ct. Op., 1/18/17, at 3-4.    The trial court does not cite to this order

again, including in its analysis. The references are therefore harmless and

thus do not constitute an abuse of the trial court’s discretion.

      Additionally, contrary to the suggestion in Agency’s argument, the trial

court does not reference portions of the 2014 dependency docket that are

outside the record.    Instead, the trial court’s only references are to the

orders entered by Agency as Exhibit WCCB-3, which the trial court cites

throughout its summary of the 2014 dependency action. See Trial Ct. Op.,

1/18/17, at 4 (citing Order, 10/16/14, with accompanying Master’s

Recommendation, 10/14/14), at 5 (citing Order, 10/16/14; Order, 4/9/15,

with accompanying Master’s Recommendation, 3/26/15; Order, 9/24/15,

with accompanying Master’s Recommendation, 9/21/15), at 6 (citing Order,

9/24/15; Order, 3/31/16, with accompanying Master’s Recommendation,



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J-S43029-17


3/16/16; Order, 10/4/16, with accompanying Master’s Recommendation,

9/26/16); at 7 (citing Order, 10/4/16).       Similar to the “Introduction,” this

summary of the 2014 dependency action provides background to this Court,

explaining the circumstances leading to Agency’s TPR Petition. Thus, even if

the trial court’s references were not supported by exhibits submitted by

Agency during the TPR Petition hearing, the trial court’s inclusion of this

account of the 2014 dependency action would not be a ground for reversal.

      We reach a different conclusion regarding the trial court’s use of the

CPPs, however. The crux of this case is Father’s transportation difficulties.

There is no dispute that Father could not provide reliable transportation on

his own, as was testified to by all of the witnesses at the TPR Petition

hearing, including Agency’s own witnesses, Ms. Ackourey, Ms. Reed, Ms.

O’Malley, and Ms. Bush.     N.T., 11/3/16, at 3, 24-26, 35-38, 41-42, 109,

112, 148, 170, 172-74, 190-91, 198-99. Father testified that Agency never

provided him with transportation, beyond informing him that bus passes

were available at its office.   Id. at 172-74, 190-91, 198-99; Trial Ct. Op.,

1/18/17, at 16-18.       Ms. Bush testified that Agency offered Father

transportation beginning in June 2015, but Father did not take advantage of

the service. N.T., 11/3/16, at 109-10, 148; Trial Ct. Op., 1/18/17, at 14-15.

      It was in connection with this issue that the trial court cited to the

March 4, 2015 and February 4, 2016 CPPs, which were never entered into

the record in this action. The trial court stated, “Nowhere in either CPP is



                                     - 20 -
J-S43029-17


there any reference to transportation assistance being offered or provided to

Father” and that it was “plausible to conclude that the transportation was

offered to Father only after February 4, 2016, the date of the last CPP and

after the TPR Petition was filed as a prelude to the Father’s rights being

terminated.” Trial Ct. Op., 1/18/17, at 24-25. Later, the court stated: “The

fact that transportation does not appear to have been provided, at least not

in any coherent, understandable, or planned way, or perhaps not at all until

after the petition for termination of parental rights was filed, appears to

have inhibited Father’s reunification efforts.” Id. at 25. Thus, the trial court

discerned from the CPPs that Agency had placed the responsibility for

transportation on Father and that Agency did not provide transportation

assistance to Father prior to February 4, 2016.

      Agency argues:

      The Agency had no opportunity to examine the CPP documents
      in advance and prepare testimony and evidence to provide the
      proper context for those documents. Thus, prejudice has
      occurred against the Agency. Further, the Court has misapplied
      the information contained in the CPP documents, thereby
      arriving at an erroneous conclusion substantiated only by ex
      parte communication.

Agency Brief at 14. Agency’s argument that it was entitled to an opportunity

to address the CPPs is well taken.     To the extent the trial court relied on

those materials to draw conclusions adverse to Agency, we believe Agency

deserved an opportunity to address that evidence.




                                     - 21 -
J-S43029-17


         In addition, we cannot determine whether the trial court would have

concluded that Agency had not provided sufficient transportation assistance

to Father if the CPPs had not corroborated Father’s testimony that he was

not offered sufficient assistance by Agency.        Without the CPPs, the trial

court’s determination of whether Agency provided transportation assistance

to Father would be a matter of weighing Ms. Bush’s testimony and Father’s

testimony against each other, without the CPPs tipping the scale in Father’s

favor.     We therefore cannot say that the trial court’s consideration of the

CPPs was harmless.

         Because the trial court impermissibly relied on evidence outside of the

record in this TPR matter, we conclude it abused its discretion. Cf. Ney, 917

A.2d at 866. For that reason, we vacate the orders below and remand to

the trial court for further proceedings during which either party may

introduce the CPPs into the record, where their content may be contested.

We leave it to the trial court to determine whether and to what extent a new

factual hearing is required. Because of the nature of this proceeding, any

new hearing shall be held as soon as possible.        Nothing in our disposition

shall be construed to preclude the trial court from reaching the same result

as it did prior to this appeal, if the trial court determines that such a result is

appropriate.




                                      - 22 -
J-S43029-17


                                   Consent Petition

       In declining to approve the Consent Petition, the trial court denied

Agency’s request to terminate Mother’s parental rights and to allow the

Child’s adoption.     The trial court reached that result because it concluded

that the Consent Petition was closely related to the petition to terminate

Father’s rights, which it denied. Because we remand the trial court’s denial

of the TPR Petition relating to Father, the basis for the trial court’s denial of

the Consent Petition is no longer applicable, and we therefore vacate the

trial court’s decision relating to the Consent Petition so that the court may

reconsider that issue in connection with its decision on the TPR petition.

       In conclusion, because the trial court impermissibly considered

evidence outside the record, we remand for further proceedings to be held

as soon as possible.6

       Orders vacated. Case remanded for further action consistent with this

memorandum. Jurisdiction relinquished.




____________________________________________
6
  The orders on appeal did not affect Agency’s custody of the Child, and,
thus, the Child shall continue to remain in its care pending further order of
the court. Indeed, no party has requested that the Child be removed from
Agency’s care.



                                          - 23 -
J-S43029-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017




                          - 24 -
