J-S57001-19

                              2020 PA Super 49


 IN RE: R.A.M.N., A MINOR                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: LCCYS                        :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 750 MDA 2019

               Appeal from the Decree Entered April 29, 2019
     In the Court of Common Pleas of Luzerne County Orphans’ Court at
                              No(s): A-8687

 IN RE: F.A.N., A MINOR                 :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
 APPEAL OF: LCCYS                       :
                                        :
                                        :
                                        :
                                        :
                                        :    No. 778 MDA 2019

               Appeal from the Decree Entered April 29, 2019
     In the Court of Common Pleas of Luzerne County Orphans’ Court at
                              No(s): A-8686


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

OPINION BY BOWES, J.:                  FILED: MARCH 5, 2020

      In these consolidated appeals, Luzerne County Children and Youth

Services (“CYS”) appeals from the April 29, 2019 decrees denying its petitions

to terminate the parental rights of K.N. (“Mother”) to her two minor children,

F.A.N. and R.A.M.N. We affirm.

      F.A.N. and R.A.M.N. were born during July 2006 and December 2009,

respectfully.   Their third sibling, C.N., died on January 4, 2013, due to a
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traumatic head injury that she suffered while in the care of Mother and/or

Mother’s former paramour. CYS immediately placed F.A.N. and R.A.M.N. in

care.    The juvenile court adjudicated F.A.N. and R.A.M.N. dependent on

January 9, 2013. On December 14, 2017, the juvenile court entered an order

finding Mother responsible for C.N.’s death by act of omission because she

failed to protect the child from harm. However, neither Mother nor her former

paramour, in whose care she left her daughter before she went to work that

day was charged with a criminal offense.

        The orphans’ court succinctly summarized the relevant procedural

history as follows:

        [The children] have been in placement for six (6) years and have
        been most recently placed with their maternal great grandmother
        since March of 2019. Prior to March of 2019, the children were
        living with a traditional foster family . . . for the majority of their
        placement. The children were originally placed in January of 2013
        because [CYS] alleged that Mother was a safety threat to the
        children in light of Mother not offering a “plausible” explanation
        for [C.N.’s] death on January 4, 2013. . . . Within the last three
        and [one-]half . . . years, Mother had expanded visits with her
        children commencing with supervised visits and concluding with
        unsupervised overnight visits with the children every weekend.

Trial Court Opinion, 7/17/19, at 3 (citations omitted).

        On March 20, 2018, CYS filed petitions to terminate Mother’s parental

rights pursuant to 23 Pa.C.S. § 2511 (a)(8).1 CYS alleged, inter alia, that the
____________________________________________


1 The orphans’ court appointed Joseph Mashinski, Esquire, as both legal
counsel for the children pursuant to § 2313(a) and guardian ad litem. As
F.A.N. and R.A.M.N. desired to reunite with Mother, the certified record does
not reveal a conflict between their legal interest and counsel’s advocacy in



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conditions that led to the placement of F.A.N. and R.A.M.N. continued to exist.

As articulated by CYS, because Mother cannot or will not explain how C.N.

sustained her fatal injuries approximately six years earlier, she remains a

threat to the children’s safety. N.T., 1/22/19, at 84-85. As stated in its brief,

the gravamen of CYS’s position is that Mother “continues to be a safety threat

in [her] home . . . [until she] provide[s] a plausible explanation as to how the

[child] sustained the fatal injuries.” CYS brief at 13.

       On May 21, 2018, CYS filed concomitant petitions to change the

permanency goals for both children from reunification to adoption. The trial

court consolidated CYS’s termination and goal-change petitions for disposition.

During the ensuing hearings, Allison Miller, the CYS caseworker who was

assigned to the family since 2016, confirmed that Mother exercised

unsupervised visits since January 2018, and since Thanksgiving 2018, Mother

exercised periods of overnight visitation without incident. N.T., 1/22/19, at

27-28. Ms. Miller also stated that the agency had no safety concerns regarding

Mother’s unsupervised overnight visitations, and did not identify any concerns

or hazards while the children have been in Mother’s physical custody. Id. at

53. Nevertheless, invoking a “state safety manual,” which CYS neglected to

identify or present to the orphans’ court, Ms. Miller explained that Mother’s

failure to proffer a “plausible explanation” rendered her a threat to the
____________________________________________


opposition to the termination petitions. See In re T.S., 192 A.3d 1080, 1089-
90, 1092-93 (Pa. 2018) (absent conflict between legal interest and best
interests, it is not error for court to permit one attorney to represent both
interests contemporaneously).

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children’s safety. Id. at 31-32. Thus, despite Mother’s compliance with her

reunification requirements, the family’s progress toward reunification, and the

absence of an actual safety concern, the agency sought to terminate Mother’s

parental rights. Id. at 40-42.

      In addition, CYS called as a witness Paul Bellino, M.D., the expert in

pediatrics and child abuse whose report was admitted during the 2017 child

abuse proceedings against Mother and her paramour. Presently, Dr. Bellino

testified that, based on the mechanics of the child’s traumatic head injuries,

it was probable that C.N. sustained the injury after Mother left the residence

for the day, and C.N. was alone with the paramour. N.T., 4/2/19, at 35-36,

50-51.     Dr. Bellino’s physical examination of C.N. revealed pre-existing

fractures in the child’s ribs and arms when she presented to the hospital with

the head trauma. Id. at 29-30. He continued, however, that he had no reason

to doubt Mother’s contention that C.N. looked healthy when Mother left for

work on the day the child died. Id. at 37.

      Following the close of CYS’s evidence, Mother moved for a directed

verdict, contending that the agency “offered no evidence or testimony

regarding the second part of that 2511(a)(8) factor [(the conditions which led

to the removal or placement of the child continued to exist)], and . . . that

termination of parental rights would best serve the needs and welfare of the

child.”   Id. at 54-55.   In open court, the orphans’ court granted Mother’s

petition, denied the petition to involuntarily terminate Mother’s parental

rights, and denied the requested goal change. Id. at 64-65. On April 29,

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2019, the orphans’ court entered an order formalizing its in-court ruling and

directing that the children be returned to Mother at the close of the academic

year, June 11, 2019. Trial Court Order, 4/29/19. CYS filed timely notices of

appeal, which we consolidated sua sponte, and its concomitant statement of

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

      CYS presents a single issue for our review: whether the orphans’ court

erred in granting Mother’s directed verdict and denying CYS’s petition to

terminate Mother’s parental rights. CYS brief at 6. Mother filed a brief in

support of the orphan’s court’s decision. While counsel for F.A.N. and R.A.M.N.

neglected to file a responsive brief, he submitted a letter to this Court stating

that the children joined Mother’s brief.

      In matters involving involuntary termination of parental rights, our

standard of review is as follows:

      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.” In re Adoption of S.P., [47 A.3d 817, 826 (Pa.
      2012)]. “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. “[A] decision may be reversed for an
      abuse of discretion only upon demonstration of manifest
      unreasonableness, partiality, prejudice, bias, or ill-will.” Id. The
      trial court’s decision, however, should not be reversed merely
      because the record would support a different result. Id. at [325-
      26, 47 A.3d at] 827. We have previously emphasized our
      deference to trial courts that often have first-hand observations of
      the parties spanning multiple hearings. See In re R.J.T., [9 A.3d
      1179, 1190 (Pa. 2010)].




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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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.” In re M.G.

& J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).            “[I]f

competent evidence supports the trial court’s findings, we will affirm even if

the record could also support the opposite result.” In re Adoption of T.B.B.,

835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).

      The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). Instantly,

CYS sought to terminate Mother’s parental rights pursuant to § 2511(a)(8),

which provides 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:

            ....

            (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.

23 Pa.C.S. § 2511(a)(8).

      As it relates to the argument that CYS raises on appeal,



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       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 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 Z.P., 994 A.2d 1108, 1118 (Pa.Super. 2010).

       The only component of § 2511(a)(8) at issue in this case is whether the

reason for placing F.A.N. and R.A.M.N. in placement continues to exist.2 The

crux of CYS’s position is that, considering the circumstances of C.N.’s death,

including Dr. Bellino’s testimony that C.N. had pre-existing fractures in her

ribs and arms when she presented to the hospital, Mother’s failure to provide

a plausible explanation for C.N.’s fatal injuries demonstrated that the condition

that led to the placement of F.A.N. and R.A.M.N. six years earlier continued

to exist. CYS’s brief at 11-13. For the following reason, we disagree.

       In denying CYS’s petition to terminate Mother’s parental rights, the

orphans’     court    reviewed      the    evidence     adduced    during   the   two

termination/permanency hearings.               Specifically, the court considered the

testimony of Allison Miller, who confirmed Mother’s participation in the court-


____________________________________________


2 CYS concentrates its argument in relation to the second prong of
§ 2511(a)(8), which is the component that the orphans’ court found deficient.
We observe however, that the agency’s brief reiterates the identical assertion
that Mother remains a safety concern in arguing in favor of the third prong of
the subparagraph, i.e., whether termination of parental rights would best
serve the needs and welfare of the child. As the orphans’ court’s decision to
deny the petition rested on the second prong, we will focus on the agency’s
argument in that context.

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ordered services and her progression toward reunification. N.T., 1/22/19, at

40-41, 44-45, 90, 96. Similarly, Ms. Miller testified regarding the absence of

safety concerns during approximately two years of unsupervised visitations.

Id. at 91, 94, 101-103. As noted, supra, Dr. Bellino opined that, while the

exact time of injury would be difficult to determine, he believed that the

injuries occurred after Mother left for work. N.T., 4/2/19, 35-37.

      The trial court processed the foregoing testimony and reasoned,

              In the case at bar, despite Mother’s full compliance with the
      Court ordered services for three and [one-]half . . . years, [CYS]
      filed a petition to terminate mother’s parental rights based on the
      fact that Mother did not give a “plausible” explanation as to how
      C.N. was fatally injured six (6) years ago. This [c]ourt finds that
      [CYS] had no intention whatsoever in returning the minor children
      to the Mother even though she has been compliant with all court
      ordered services. Despite the fact that Mother has an indicated
      status of abuse, Mother was never criminally charged with any
      wrongdoing. No further legal determination was made as to who
      injured . . . C.N. The closest to determining who injured the child
      is reliance upon Dr. Bellino to ascertain the approximate time of
      the injury based on its severity. In Dr. Bellino’s medical opinion,
      . . . it was more likely that the child was injured after 6:00 a.m.
      on the date of the child’s death. Mother was not home at 6:00
      a.m. because she left for work at 5:00 a.m. Therefore, it can be
      deduced that Mother would not have been home when the child
      was injured. The [c]ourt finds that Mother fully complied with the
      family service plan. [The reunification counselor] has stated that
      she had no concerns with Mother being with her children on an
      unsupervised basis. Mother can never remedy the condition
      which gave rise to placement. She cannot give life to her
      daughter who died a tragic and unexplained death. The
      court notes that there is truly no applicability of the facts in this
      tragic case to the sole ground, 23 Pa.C.S. Section 2511 (a)(8),
      upon which [CYS] filed an involuntary termination of parental
      rights petition in this case. To follow [CYS’s] argument,
      Mother is expected to admit to killing her child in order to
      “remedy” the condition that gave rise to placement. Surely,


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       that is not a “remedy” contemplated by the legislature or the
       judiciary as it relates to 2511 (a)(8). The agency failed to meet
       its burden because the applicability of 2511 (a)(8) to this case is
       without merit.

Trial Court Opinion at 19-20 (emphases added).

       Our review of the certified record supports the orphans’ court’s

conclusion that CYS failed to satisfy its burden of proving the statutory

grounds to terminate Mother’s parental rights pursuant to § 2511(a)(8). As

we highlight infra, the testimony does not sustain the agency’s assertion that

the conditions that led to placement continued to exist.

       Without question, there is no factual basis for the agency’s assertion

that the conditions that preceded the placement of F.A.N and R.A.M.N. still

exists.   CYS does not assert that Mother represents a current risk to her

children’s safety. To the contrary, the agency’s case rests entirely upon the

fact that Mother has yet to proffer a “plausible explanation,” which CYS

believes is required by a safety manual that it never fully explained to the

orphans’ court or sought to admit into evidence.3

____________________________________________


3  To the extent that the agency’s cryptic references to the “safety manual”
refers to Pennsylvania’s Safety Assessment and Management Process
(“PSAMP”), its rote application of that manual is inappropriate. The PSAMP is
a guidebook that “provides reference material regarding . . . the in-home and
out-of-home care processes to assist the transfer of knowledge gained
from training to actual casework practice.” The Safety Assessment and
Management Process Reference Manual, Rev. 11/27/12 at 4 (emphasis
added). Importantly, however, the prefatory section of the manual titled
“Purpose and Discussion” directs that agencies utilize the manual as a tool to
make an informed decision. Indeed, the pertinent section reads, “A safety



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       While CYS is resolute that the predicate condition persists because

Mother is unable or unwilling to proffer a plausible answer for her daughter’s

tragic death, the agency neglected to present any evidence to demonstrate

that Mother will actually fail to protect F.A.N. and R.A.M.N. At its core, CYS’s

positon ignores that the predicate condition to be remedied pursuant to

§ 2511(a) is Mother’s alleged failure to protect her child, and not her lack of

explanation for the injuries.       As the trial court observed in its summation,

CYS’s perspective creates a standard that is impossible to satisfy. If Mother

had a plausible explanation for C.N.’s injuries, the juvenile court would not

have adjudicated her a perpetrator by omission in the first instance.         She

would have been held blameless.                The agency’s preoccupation with a

“plausible explanation” for C.N.’s injuries in the current case is centered on its

unfounded distrust of Mother rather than any evidence that Mother will fail to


____________________________________________


assessment and management system is reliant on good social work practice
and is congruent with family-centered and strength-based practice. The
County Children and Youth Agency is responsible for making an
independent judgment regarding the child’s safety.” Id. at 5 (emphasis
added).
      Hence, presuming, arguendo, that Ms. Miller was referencing the PSAMP
for the proposition that Mother was required to provide a “plausible
explanation” for her daughter’s injuries in order to be considered to have
remedied the conditions that led to the placement of F.A.N. and R.A.M.N., the
orphans’ court did not err in rejecting CYS’s position. Clearly, the manual
does not require the agency to demand anything of Mother. By its own terms,
the guidebook is a resource for agency to utilize in making an “independent
judgment regarding the child’s safety.”              Id.  (emphasis added).
Unfortunately, as evidenced by Ms. Miller’s mechanical reliance upon a
manual, there was a dearth of independent judgment exercised by CYS
regarding the safety of F.A.N. and R.A.M.N. in this case.

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protect her remaining children. Undeniably, the record bears out that Mother

poses neither a present nor imminent danger to the wellbeing of her children.

      Beyond Mother’s statement that C.N. was not evincing any injuries when

she left C.N. in her prior paramour’s care before going to work, Mother cannot

positively identify the former boyfriend as the perpetrator of child abuse. She

can merely implicate that individual, who was never charged with the

homicide, as a potential explanation for the injuries because he was the only

adult known to be present during the period that the injuries occurred.

Regardless, CYS specifically rejected the idea that Mother’s limited account of

the incident constituted a plausible explanation for the fatal injuries. N.T.,

4/2/19, at 17.

      The following exchange occurred during Ms. Miller’s cross-examination.

      Q. What does mom have to do to satisfy that manual [so] that she
      should know what happened to the children even if she doesn’t?

      A. That—I don’t want mom to make up an answer as to what
      potentially could have happened, but I think having a plausible
      explanation as to how [C.N.] sustained all those significant
      injuries, then that would alleviate the safety threat.

N.T., 1/22/19, 42.

      Later, the children’s legal counsel inquired of Ms. Miller, “I’m asking how

do we reconcile this? There’s no active safety threat in the house, yet there’s

this overarching safety threat. How do we remedy that? How do we get past

that? How do we reconcile that?”       Id. at 103.   Tellingly, the caseworker

responded, “I don’t know.” Id.


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      Moreover, the certified record does not support CYS’s insinuation that

Mother is a safety hazard because she was present when the child abuse

occurred. The juvenile court adjudicated Mother a perpetrator by omission,

as opposed to commission, based on her failure to remove the child from

harm’s way rather than any intentional or reckless act that she committed.

More importantly, Dr. Bellino testified that Mother probably was not home

when the abuse occurred. By necessity, CYS’s position implies that Mother

assumed an active role in the child abuse and the only way that she can

remove that taint is to confess her involvement. In fact, when the orphans’

court was attempting to comprehend precisely how CYS expected Mother to

demonstrate a plausible explanation under the circumstances of this case, the

agency discounted the notion that Mother’s paramour perpetrated the abuse

while Mother was at work. It explained,

      Your Honor, based on the fact that it’s been six years and that has
      never been offered, and now today at the termination of parental
      rights hearing that would be offered as the plausible explanation
      while natural mother was home with the child for a period
      of that time and could have caused the injuries herself, and
      the child had prior injuries prior to being seen at Geisinger, the
      agency wouldn’t accept that as a plausible explanation today just
      for her to say, it was this individual now, six years later.

N.T., 4/2/19, at 17 (emphasis added). CYS never indicated what explanation

Mother could possibly proffer to demonstrate that she was able to remedy the

condition that led to the placement of her children.

      Thus, for all of the foregoing reasons, we conclude that the orphans’

court did not err in rejecting CYS’s mechanical application of one isolated

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component of a manual to conclude that Mother remained a safety risk despite

an overabundance of evidence to the contrary.

      Finally, while not included or even fairly suggested in the agency’s

statement of questions involved, CYS asserts in its brief that the orphans’

court erred in considering the lack of an adoptive resource in denying its

petition. CYS’s brief at 14-15. The gravamen of this argument is that the

Adoption Act does not require an agency to aver that an adoption is

contemplated. Id. at 15. This issue is waived. See Boutte v. Seitchik, 719

A.2d 319, 326 (Pa.Super. 1998) (“issues that are not set forth in the

statement of questions presented or reasonably suggested thereby are

deemed waived”); see also Pa.R.A.P. 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is fairly

suggested thereby.”).

      Moreover, the claim is meritless. While CYS’s statement of the law is

accurate insofar as an agency is not required to identify an adoptive resource

in seeking to involuntarily terminate parental rights, the orphans’ court did

not consider the dearth of pre-adoptive resources in that manner. If anything,

the court highlighted that, when the prior foster family requested that CYS

remove the children from their home, CYS squandered an opportunity to

return F.A.N. and R.A.M.N. to Mother’s home under its supervision. Instead

of encouraging reunification, CYS placed the children in formal kinship care

with their maternal great-grandmother, a move that continued to place


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restrictions on Mother’s contact with her children. See N.T., 4/2/19, at 71

(“The designation of formal kinship prevents [M]other from spending the night

at the caregiver’s house.”). In light of the orphans’ court’s prevailing desire

to expedite the family’s reunification, the court did not abuse its discretion in

considering CYS’s decision to place the children with their great-grandmother,

rather than returning them to Mother at an earlier point in time. See Trial

Court Opinion, 7/17/19, at 22.      (“The outcome in this case affords [the

children] the chance to live the remaining years of their childhood with their

Mother . . . as has been recommended by the . . . reunification therapist and

a licensed clinical psychologist who [CLS] chose not to call as a witness”). No

relief is due.

      Decrees affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/05/2020




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