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                            2018 PA Super 119

IN THE INTEREST OF: N.M., A           :   IN THE SUPERIOR COURT OF
MINOR                                 :        PENNSYLVANIA
                                      :
                                      :
APPEAL OF: J.C., MOTHER               :
                                      :
                                      :
                                      :
                                      :   No. 154 EDA 2017

                 Appeal from the Order December 8, 2016
   In the Court of Common Pleas of Philadelphia County Family Court at
                     No(s): CP-51-DP-0000856-2016,
                        FID: 51-FN-000792-2016

                                  *****
IN THE INTEREST OF: N.M., A           :   IN THE SUPERIOR COURT OF
MINOR                                 :        PENNSYLVANIA
                                      :
                                      :
APPEAL OF: N.M., FATHER               :
                                      :
                                      :
                                      :
                                      :   No. 190 EDA 2017

            Appeal from the Order Entered December 8, 2016
 In the Court of Common Pleas of Philadelphia County Juvenile Division at
                    No(s): CP-51-DP-0000856-2016

                               *****
 IN THE INTEREST OF: N.W.M., A     :       IN THE SUPERIOR COURT OF
 MINOR                             :            PENNSYLVANIA
                                   :
                                   :
 APPEAL OF: N.M., FATHER           :
                                   :
                                   :
                                   :
                                   :       No. 3714 EDA 2017

              Appeal from the Decree Entered October 26, 2017
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     In the Court of Common Pleas of Philadelphia County Family Court at
                       No(s): CP-51-AP-0000573-2017,
                           CP-51-DP-0000856-2016

                                  *****
    IN THE INTEREST OF: N.W.M., A     :          IN THE SUPERIOR COURT OF
    MINOR                             :               PENNSYLVANIA
                                      :
                                      :
    APPEAL OF: J.C., MOTHER           :
                                      :
                                      :
                                      :
                                      :          No. 3715 EDA 2017

              Appeal from the Decree Entered October 26, 2017
     In the Court of Common Pleas of Philadelphia County Family Court at
                       No(s): CP-51-AP-0000573-2017,
                           CP-51-DP-000856-2016



BEFORE:      LAZARUS, J., OTT, J., and PLATT*, J.

OPINION BY LAZARUS, J.:                                  FILED MAY 04, 2018

       J.C. (Mother) and N.M. (Father) (collectively, Parents) appeal from the

trial court’s permanency orders1 designating reunification with Parents or

guardian as the current placement goal, declining to reunify Parents with their
____________________________________________


1 We have sua sponte consolidated Mother’s and Father’s appeals, 154 EDA
2017 & 190 EDA 2017 and 3714 EDA 2017 & 3715 EDA 2017, as they are
taken from the same orders and involve the same issues. See Pa.R.A.P. 513
(Consolidation of Multiple Appeals).


*Retired Senior Judge Assigned to the Superior Court.




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minor daughter, N.M. (born 2/16), or place N.M. in kinship care, and

maintaining the status quo with N.M. in foster care and mandating that N.M.

stay in foster care “until there’s a determination as to the cause of [N.M.’s]

injury.”2    Parents also appeal from the trial court’s subsequent decrees

changing the goal to adoption and involuntarily terminating3 their parental


____________________________________________


2   N.T. Permanency Review Hearing, 12/8/16, at 34.

3 As noted in the procedural history of this opinion, on October 26, 2017, the
trial court changed the goal from reunification to adoption and involuntarily
terminated Parents’ parental rights to N.M. in response to DHS’s May 23, 2017
involuntary termination petition. Parents have appealed that decision, which
we have chosen to consolidate with this matter. See infra n.1; see also In
re: N.M., 3714 EDA 2017 & 3715 EDA 2017. Notably, a court-ordered goal
change is not a condition precedent to the filing of a petition to terminate
parental rights. See In re Adoption of S.E.G., 901 A.2d 1017 (Pa. 2006).
On January 18, 2018, this Court stayed the order changing the goal to
adoption and terminating Parents’ rights. Our Court also reinstated parental
visitation until resolution of the current appeal.

       We also recognize that the trial court had jurisdiction to address the
petition to terminate Parents’ parental rights while the appeals of the current
permanency review orders were pending. The appeals of the permanency
review orders addressed Parents’ rights to reunification with N.M. and a
change of her placement to kinship care, which is a separate issue from
whether Parents’ rights should be terminated. See Pa.R.A.P. 1701(c) (“Where
only a particular item, claim or assessment adjudged in the matter is involved
in an appeal, . . . the appeal . . . shall operate to prevent the trial court . . .
from proceeding further with only such item, claim or assessment, unless
otherwise ordered by the trial court or other government unit or by the
appellate court or a judge thereof as necessary to preserve the rights of the
appellant.”).




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rights to N.M.4     After careful and deliberate consideration, we reverse and

vacate.

       On April 12, 2016, seven-month-old N.M. and her then-two-year-old

brother, E.M., were removed from Parents’5 care based on allegations of

physical abuse to N.M. Mother took N.M. several times to the pediatrician

when N.M. exhibited signs of increased fussiness. On the first occasion, the

morning of April 6, the pediatrician diagnosed N.M. with an ear infection and

prescribed an antibiotic.      Immediately following that doctor’s appointment,

Mother was at a play date with N.M. and felt a “popping on [N.M.’s] side.”

Mother returned to the pediatrician’s that afternoon; the doctor could not feel

the “popping” and told Mother the fussiness was from N.M.’s ear infection.

When N.M.’s heightened fussiness failed to decrease that evening, Father took

N.M. back to the pediatrician the next morning, April 7; the pediatrician

ordered an outpatient chest x-ray.             Parents took N.M. to the Children’s

____________________________________________


4 Due to the interrelated procedural history as well as the fact that the parties
and issues are the same in the matters, we have chosen to consolidate
Parents’ permanency appeals and termination appeals. See In the Interest
of M.T., 101 A.3d 1163 (Pa. Super. 2014) (where goal change issues and
termination issues in separately filed appeals were interrelated and implicated
trial court's assessment of sufficiency and weight of evidence, our Court
properly addressed issues together).

5 Mother is a nurse practitioner at the Hospital of the University of
Pennsylvania; Father is a graphic designer.




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Hospital of the University of Pennsylvania (CHOP) that same day; x-ray results

yielded mildly displaced acute fractures of her sixth and seventh left posterior

ribs.6 N.M. was admitted to CHOP for a magnetic resonance imaging (MRI)

and consultation with a team of doctors. The CHOP medical team identified

the primary concern as non-accidental trauma and determined that N.M.’s

injuries were not likely due to any genetic or metabolic causes.

       A report was filed with the Philadelphia Department of Human Services

(DHS) on the day of N.M.’s admission to CHOP, April 7, 2016.             N.M. was

discharged from CHOP on April 12, 2016. On July 7, 2016, the court held an

adjudicatory hearing where Natalie Jenkins (a DHS social worker), Mother,

and Dr. Natalie Stavas (a CHOP pediatrician with a concentration in child abuse

cases) testified. Doctor Stavas opined that nothing was provided to the CHOP

team that would explain N.M.’s rib fractures, that it would be very unlikely

that E.M., a toddler and N.M.’s older brother, would be able to inflict the force

necessary to fracture N.M.’s ribs, and that blood tests and lab work did not



____________________________________________


6 At a follow-up appointment on April 21, 2016, it was noted that “[N.M.’s]
repeat skeletal survey . . . show[ed] healing of the prior known fractures as
well as likely nondisplaced healing fracture of the posterior left fifth rib ([that]
would be consistent with the same time frame as the previously identified
fractures), more visible now on follow-up imaging in the setting of ongoing
healing.” CHOP Visit Summary, 4/21/16.




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uncover any genetic disorders to explain the fractures.7        Social workers

testified that Parents, individually, gave consistent stories with regard to the

events leading up to discovering N.M.’s injuries, noting that Parents are the

sole caregivers for N.M., the family home was extremely safe, and E.M. is

never around N.M. unsupervised. Finally, Mother testified that she had no

idea how N.M.’s injuries occurred, but that E.M. would often forcefully run into

N.M.’s back when Mother was holding N.M. in her arms. Id. at 136.

       At the conclusion of the hearing, N.M. was adjudicated dependent8

based on the two unexplained acute rib fractures diagnosed at CHOP; she was

placed in the custody of DHS. DHS determined the abuse allegations to be

founded and identified Parents as the perpetrators.9
____________________________________________


7 Interestingly, Dr. Stavas testified that genetic testing showed a variant or
mutation that was “unlikely to contribute to the health of [N.M.’s] bones [but
she] could not make a definitive statement as to whether or not it contributed
to her fractures.” N.T. Adjudicatory Hearing, 7/7/16, at 53. Doctor Stavas,
however, did testify definitively that N.M. does not have osteogenesis
imperfect (OI), which is also known as brittle bone disease, a genetic disorder
that mainly affect the bones and results in bones that break easily.

8 Once a child has been adjudicated dependent, the issue of custody and
continuation of foster care are determined according to a child’s best interest.
R.P. v. L.P., 957 A.2d 1205 (Pa. Super. 2008).

9 As part of a dependency adjudication, a court may find a parent to be the
perpetrator of child abuse, as defined by the Child Protective Services Law
(CPSL). In re L.Z., 111 A.3d 1164, 1176 (Pa. 2015). The CPSL defines “child
abuse” in relevant part as follows:




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        N.M. was placed in foster care and E.M. was placed in approved kinship

care with his paternal grandmother, pursuant to an emergency protective

custody order. Importantly, no aggravated circumstances were found. The

trial court ordered Parents each to submit to a behavioral health evaluation,

complete parenting classes and attend individual therapy. On the same date,

E.M. was adjudicated dependent with supervision10 and he was reunified with

Parents.
____________________________________________


        The term “child abuse” shall mean intentionally, knowingly or
        recklessly doing any of the following:

           (1)   Causing bodily injury to a child through any recent act
                 or failure to act.
                                       *    *     *

           (5) Creating a reasonable likelihood of bodily injury to a
           child through any recent act or failure to act.

23 Pa.C.S. § 6303(b.1)(1), (5). The CPSL defines “child” as “[a]n individual
under 18 years of age.” 23 Pa.C.S. § 6303(a). “[B]odily injury” is defined
under the CPSL as “[i]mpairment of physical condition or substantial pain.”
Id. at § 6303(a).
10   Pursuant to 42 Pa.C.S. § 6341(a):

        [A] court is empowered . . . to make a finding that a child is
        dependent if the child meets the statutory definition by clear and
        convincing evidence. If the court finds that the child is dependent,
        then the court may make an appropriate disposition of the child
        to protect the child's physical, mental and moral welfare, including
        allowing the child to remain with the parents subject to
        supervision, transferring temporary legal custody to a relative or
        a private or public agency, or transferring custody to the juvenile
        court of another state.



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       On August 18, 2016, at an initial permanency review hearing, the court

discharged E.M.’s dependency petition and supervision, finding that Parents

had the protective capacity to care for E.M. and that E.M. was safe in Parents’

home. N.M., however, remained in foster care; the court refused Parents’

request to have N.M. placed in kinship care. The court further ordered that

Parents have supervised visits with N.M. and that DHS refer Parents for an

“expedited” parenting capacity evaluation.

       On December 8, 2016, the court held a permanency review hearing. At

the hearing, the court acknowledged that Parents had fully complied with their

service plan objectives. In coming to its decision to keep N.M. in foster care

and not reunite her with Parents or place her in kinship care, the court made

the following statements on the record:

       So, you know what, if we’re going to stay stuck, we’re going to
       stay stuck. Because either someone has to cop to it or there
       has to be a plausible explanation with the significance of
       the injuries to [N.M.] because I’m telling you that
       testimony by the doctor was so damning. She sealed any
       doubt, any variable that it could be anything but abuse.

                                       *       *   *

____________________________________________



42 Pa.C.S. § 6351(a). See In re D.A., 801 A.2d 614, 617 (Pa. Super. 2002)

(en banc) (emphasis added).




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       So, I don’t know how we get over this hurdle. I’m definitely not
       going to allow supervised visits in the parent’s home because I
       need line of sight, line of hearing. As far as I’m concerned . . .
       this is still an open investigation.11 Until we get some closure
       about how this happened, we’re not going to get beyond
       this. I can’t look the other way on that. I just can’t. . . .
       [U]nless somebody is willing to say, “This is how [N.M.] got
       injured,” [N.M.] can’t come back to that home because I
       can’t risk it a second time and a worse injury. I can’t do it.
       And we don’t have any explanations.

       So, I don’t know what you want me to do. I’m open to any
       suggestions to try to move this forward to reunification, but that’s
       the bottom line. We can talk about services and how parents are
       fully compliant. I'll find that the parents are fully compliant.
       It doesn't move the needle for me. We came in because a
       baby was injured. And the thing that brought this case into [court]
       still exist[s] with no explanation. Can’t do reunification if
       that’s the case.

                                       *       *   *

       We had the child abuse hearing. At some point in time if it’s going
       to move the needle[,] I would allow the doctor to testify today. I
       would. I would. I absolutely would.

____________________________________________


11 To date, no criminal proceedings have been instituted against Parents
regarding the abuse to N.M. Despite the trial judge’s statement in her August
10, 2017 opinion that at the July 7, 2016 adjudicatory hearing “the Court
found child abuse aggravated circumstances existed,” in fact, DHS did not
pursue a finding of aggravated circumstances. See N.T. 7/7/16, at 17 (“It is
not my expectation to . . . pursue aggravated circumstances at this time.”);
id. at 19 (“I’m not requesting the aggravating finding.”). Under 42 Pa.C.S. §
6315(e)(2), “If the county agency or the child’s attorney alleges the existence
of aggravated circumstances and the court determines that the child has been
adjudicated dependent, the court shall then determine if aggravated
circumstances exist.”). Thus, it is a condition precedent that either the county
agency or child’s attorney allege aggravating circumstances before a trial
court can make such a determination.


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                                       *       *    *

        And as the [c]ourt I will be open and receptive to anything you
        bring for me. That’s why I’m not saying no if they had a geneticist
        come in and say, “This is where we are.”

        I’m willing to receive that, but, until such time I can’t do anything
        because the bottom line is I have to ensure the child’s safety.

                                       *       *    *

        I guess the other side of the conversation is if I leave her
        [in foster care] maybe I get closer to an answer as to what
        happened instead of moving her to grandmom. . . . So, I'm
        not going to consider kinship care.

N.T. Permanency Hearing, 12/8/16, at 14-16, 20, 22, 29-30 (emphasis

added).12 Mother and Father filed timely notices of appeal and court-ordered

Pa.R.A.P. 1925(b) concise statements of errors complained of on appeal.

        While the permanency matter was pending on appeal, the trial court

held further hearings in the matter on March 9, 2017, May 23, 2017, July 11,

2017 and October 26, 2017.            At the March 2017 hearing, Attorney Marc

Freeman entered his appearance as co-counsel13 for Mother, see N.T.

Dependency Hearing, 3/9/17, at 5, and attempted to admit two expert medical

reports to explain N.M.’s injuries. Id. at 8. The court, however, would not

permit Mother to have two attorneys, id. at 10, found Attorney
____________________________________________


12 Parents continued to engage in both individual and couple’s therapy.
Parents successfully graduated from Family School in July 2017.
13   Claire Leotta, Esquire, was counsel of record for Mother.


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Freeman’s conduct “disrespectful [a]nd a little arrogant,” id. at 13,

refused to take any testimony in the case, id. at 19, and ordered the

parties to work on how evidence will be presented in the case.

(Emphasis added).

       At the May 23, 2017 hearing, Attorney Freeman was listed as counsel

for Mother. With regard to permanency matters, the court chose to only hear

evidence regarding “where N.M. is, . . . is she receiving services, [and] was

she last seen in 30 days.” N.T. Hearing, 5/23/17, at 26. The court again

refused to accept from Attorney Freeman the reports and curriculum

vitae of two doctors regarding a non-abusive explanation for N.M.’s

injuries. Id. at 41. The focus of the court’s time was spent on addressing

outstanding motions in the case. Id. at 26-27.14 Ultimately, the court ruled

that: (1) any grandparent visitation with N.M. is immediately suspended; (2)

it is not in N.M.’s continued best interests to explore placement in kinship

care; and (3) supervised, line-of-sight parental visitation was continued. Id.

at 35, 37-39, 42. With regard to kinship care, the court determined it was

not to be explored despite DHS social worker Molly McNeil testifying that she

had conducted a full investigation on kinship care for N.M., that DHS had
____________________________________________


14 Specifically, the court referenced a motion to remove an attorney from the
City Solicitor’s Office from the case. The court, however, determined that it
did not have jurisdiction over the matter because it was brought in an
improper forum.


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approved paternal grandmother as a willing kinship provider, and that DHS

would explore her as a kinship provider. Id. at 31-32. Following the hearing,

DHS filed petitions to change the goal to adoption and to involuntarily

terminate Parents’ rights to N.M.15

       At the July 11, 2017 hearing, the court ruled on several motions from

the prior listing. Specifically, the court denied the request to have N.M. seen

by an out-of-state physician for additional medical testimony in the case,

noting that the child abuse finding, which was substantiated by a doctor at the

July 2016 adjudicatory hearing, was never challenged by Parents. The court

also denied a request to have witnesses appear via video feed.       The court

excluded Parents’ expert reports from Doctors Haluck and Mack,16 again

____________________________________________


15  On August 17, 2017, our Court denied Parents’ motion to stay the
termination hearing until resolution of their permanency appeals. However,
on December 1, 2017, our Court granted Parents’ motion to stay the
termination and goal change orders and reinstated Parents’ visitation pending
resolution of the instant matter. See Order, Nos. 3714 & 3715 EDA 2017
(filed 12/1/17). Our Court further ordered that reinstated visitation begin no
later than the week of January 29, 2018, permitting Parents four hours of
supervised visitation at the agency per week, modifiable by agreement of the
parties. Order, Nos. 3714 & 3715 EDA 2017 (filed 1/18/18).

16 At the hearing, Attorney Freeman told the trial judge that he had a
radiologist and endocrinologist to offer testimony in the matter. N.T. Hearing,
7/11/17, at 43. The court prevented the experts from testifying, noting that
the child abuse finding was final and that the only new evidence the court
would allow in would be something “that could not have been obtained at the
time of the adjudicatory hearing in July 2016 . . . [and would be something]



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noting that the child abuse finding was final and had not been timely

challenged.17     Finally, the court denied Parents’ motion to quash DHS’s

subpoena for their treatment records, finding that Parents had signed consent

forms waiving any potential psychotherapist-patient privilege. In concluding

the hearing, the court pronounced the following:

        Let me just say this and let me be clear: this matter is going to
        be heard for a contested goal change termination on 10/26/2017.
        That means by September 26, 2017, there should be an
        exchange of all exhibits amongst parties that are to be –
        that will be used in anticipation of the next court date. That
        would also include witness lists. So if there’s experts, CVs,
        whatever you need should be produced to all parties by
        September 26th and that gives you 30 days in anticipation of the
        next court date.

N.T. Hearing, 7/11/17, at 59 (emphasis in original and emphasis added).

        On October 26, 2017, the court held a goal change/termination hearing,

after which it granted DHS’ petitions and involuntarily terminated Parents’

rights to N.M. pursuant to sections 2511(a)(1), (2), (5), (8) and (b) of the

Adoption Act.18 The court largely based its decision to terminate under section

2511(a) on the fact that Parents had refused to comply with the service plan

objective of receiving appropriate mental health treatment to “address [and]
____________________________________________


unusual and [that] nobody could have foreseen that that would have been the
case in July 2016.” Id. at 45.

17See L.Z., supra n.7 (finding of child abuse in dependency proceeding can
be appealed to Superior Court).

18   23 Pa.C.S. §§ 2101-2910.

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understand the reason or cause of N.[]M.’s physical injuries.”       Trial Court

Opinion, 2/9/18, at 7. On November 17, 2017, Parents filed timely notices of

appeal and Pa.R.A.P. 1925(a)(2)(i) concise statements of errors complained

of on appeal.

      On appeal from the permanency orders, Mother and Father present the

following issues for our consideration:

      (1)   Whether the trial court erred and/or abused its discretion by
            entering an order on December 8, 2016 denying Mother &
            Father reunification with N.M.? More specifically, the trial
            court abused its discretion as substantial, sufficient and
            credible evidence was presented at the time of trial
            indicating Mother [and] Father were fully compliant with all
            of their goals and the Court indicated that finding on the
            record, yet ordered that the case remain "status quo".

      (2)   Whether the trial court erred and/or abused its discretion by
            entering an order on December 8, 2016 denying counsel’s
            repeated requests to have N.M. moved to a kinship care
            home rather than continue to reside in general foster care?
            More specifically, the trial court abused its discretion by not
            following State [and] Federal Laws regarding kinship care
            placement of children when substantial, sufficient and
            credible evidence was presented to the Court indicating that
            an approved family member was ready and available to care
            for N.M.

      (3)   Whether the trial court erred and/or abused its discretion by
            violating the protections of the Due Process Clause as
            guaranteed by both the Pennsylvania Constitution and the
            United States Constitution by halting the stated goal of
            reunification, without appropriate notice to Mother and
            Father of the Court’s change in the Permanency Plan, thus
            denying Mother and Father notice and an opportunity to
            prepare and be heard on such issue?



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       On appeal from the goal change/termination decrees, Parents present

the following issues for our consideration:

       (1)    Whether the [t]rial [c]ourt erred and/or abused its
              discretion by denying Parents[’] Motion to Recuse Judge
              Younge?

       (2)    Whether the [t]rial [c]ourt erred and/or abused its
              discretion when it excluded testimony from the Parents’
              licensed therapists?

       (3)    Whether the [t]rial [c]ourt erred and/or abused its
              discretion when it found clear and convincing evidence that
              the individual and couples therapy in which Parents were
              engaged in failed to comply with the Permanency Plan?

       (4)    Whether the [t]rial [c]ourt erred and/or abused its
              discretion when it excluded evidence that N.[]M.’s sibling[,]
              E.M.[,] had been returned to Parents’ custody and E.M. had
              been deemed safe in Parents’ care?

       (5)    Whether the [t]rial [c]ourt erred and/or abused its
              discretion by entering an order that no family members be
              explored for N.[]M.’s placement, despite counsel’s repeated
              requests to have N.[]M. moved to approved kinship care
              home rather than continue to reside in general foster care?

       (6)    Whether the [t]rial [c]ourt erred and/or abused its
              discretion in finding DHS met its burden by clear and
              convincing evidence that Parental rights to N.[]M. should be
              involuntarily terminated and the goal changed19 to
              adoption?
____________________________________________


19We have described our standard and scope of review in dependency
cases as follows:

       [W]e must accept the facts as found by the trial court unless they
       are not supported by the record. Although bound by the facts, we
       are not bound by the trial court's inferences, deductions, and



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Appellants’ Briefs, at 9.

       Before reviewing the merits of Parents’ issues, we must determine

whether we have jurisdiction over the appeals in the permanency matter. In

particular, we must examine whether the permanency review orders of

December 8, 2016, are appealable orders. See Kulp v. Hrivnak, 765 A.2d

796, 798 (Pa. Super. 2000) (“[W]e lack jurisdiction over an unappealable

order, it is incumbent on us to determine, sua sponte when necessary,

whether the appeal is taken from an appealable order.”). It is well-settled

that, “[a]n appeal lies only from a final order, unless permitted by rule or

statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013).

Generally, a final order is one that disposes of all claims and all parties. See

Pa.R.A.P. 341(b). Moreover, with regard to dependency matters, “[a]n order
____________________________________________


       conclusions therefrom; we must exercise our independent
       judgment in reviewing the court’s determination as opposed to the
       findings of fact, and must order whatever right and justice dictate.
       We review for abuse of discretion. Our scope of review,
       accordingly, is of the broadest possible nature. It is this Court’s
       responsibility to ensure that the record represents a
       comprehensive inquiry and that the hearing judge has applied the
       appropriate legal principles to that record. Nevertheless, we
       accord great weight to the court’s fact-finding function because
       the court is in the best position to observe and rule on the
       credibility of the parties and witnesses.

In re D.P., 972 A.2d 1221, 1225 (Pa. Super. 2009) (quoting In re C.M., 882
A.2d 507, 513 (Pa. Super. 2005)). In considering a goal change, “the best
interests of the child, and not the interests of the parent, must guide the trial
court, and the parent's rights are secondary.” Id. at 1227 (citing In re A.K.,
936 A.2d 528, 532-533 (Pa. Super. 2007)).

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granting or denying a status change, as well as an order terminating or

preserving parental rights, shall be deemed final when entered.”         In re

H.S.W.C.-B., 836 A.2d 908, 910 (Pa. 2003).

       Here, the trial court did not grant or deny a status change; the goal

remained reunification throughout and Parents never asked for it to be

changed. Moreover, the instant permanency orders neither affected visitation

nor custody. See id. (noting that all orders dealing with visitation or custody,

with exception of enforcement or contempt proceedings, are final when

entered.). Rather, the sole request Parents made at the permanency review

hearing was to remove N.M. from foster care and place her in kinship care,

which amounts to a request to change placement.20 That request was denied.


____________________________________________


20 Kinship care under 62 P.S. § 1303(b) is a subset of foster care in which the
care provider already has a close relationship to the child. In kinship care,
legal custody of the child remains with the agency, and the agency places the
minor child with an appropriate caregiver, who is typically a family member.
The court may place children with a foster family, although there might be
willing relatives, where foster care is in the best interests of the children or
aggravated circumstances exist. The goal of preserving the family unit cannot
be elevated above all other factors when considering the best interests of
children, but must be weighed in conjunction with other factors. Section
§1303(b) of the Kinship Care Program provides as follows:

       (b) Placement of children.— If a child has been removed from the
       child's home under a voluntary placement agreement or is in the
       legal custody of the county agency, the county agency shall give
       first consideration to placement with relatives. The county agency
       shall document that an attempt was made to place the child with



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       In In re H.S.W.C.-B., supra, the Supreme Court granted review to

determine whether an order denying a petition to change a family goal from

reunification to adoption and to terminate parental rights was final, and

therefore, appealable. In that case, two children were adjudicated dependent

and placed in foster care.         The court approved reunification as the goal,

provided mother continued to make efforts toward satisfying a family service

plan. After two years of permanency review hearings and mother’s minimal

gains toward achieving her service goals, CYS filed petitions to change the

goal from reunification to adoption and to involuntarily terminate mother’s

parental rights.     The court denied the petitions, without prejudice.     CYS

appealed the decision to our Court; the trial court stayed all proceedings below

until the appeal was decided. Our Court quashed CYS’s appeal, holding that

the order merely maintained the status quo, was not final, and, thus, was

unappealable. On appeal, the Supreme Court noted that, generally, a change

of placement goal is not appealable. However, the Court also recognized that

orders that are not status-changing, such as orders denying parental
____________________________________________


       a relative. If the child is not placed with a relative, the agency
       shall document the reason why such placement was not possible.

62 P.S. § 1303(b).




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termination, have been regularly reviewed on appeal.          See In the Interest

of A.L.D., 797 A.2d 326 (Pa. Super. 2002) (all decrees in termination of

parental rights cases, whether granting them or denying them, are considered

final, appealable orders).21 Unlike the mother in H.S.W.C.-B., who requested

a goal change, Parents here requested a placement change – from foster care

to kinship care. Thus, we do not find H.S.W.C.-B. controlling.

       Case    law   has    supported     the   argument,   however,   that   certain

interlocutory, non-final permanency orders are appealable as collateral order

under Pa.R.A.P. 313(b).        Compare In re: N.E., 787 A.2d 1040 (Pa. Super.

2001) (collateral order where DHS appealed from order requiring it pay

portion of dependent child’s dental bills); In re: Tameka M., 580 A.2d 750

(Pa. 1990) (CYS’s appeal from order requiring it reimburse foster family for

expenses in sending child to private preschool is collateral order) with In re

H.K., 161 A.3d 331 (Pa. Super. 2017) (right to participate and present

evidence during dependency proceedings is not separate from, or collateral
____________________________________________


21 In H.S.W.C.-B., supra, the Court noted that “[m]aintaining the status
quo[, by denying goal changes,] could put the needs and welfare of a child at
risk.” Id. at 911. “Foster care may be the status quo, but to ‘allow these
children to languish in foster care . . . not only defies common sense, but it is
contradictory to the applicable law and to the best interest of the children.’”
In re R.T., 778 A.2d 670, 681 (Pa. Super. 2001). In R.T., parents had been
provided services by CYS for “eight fruitless years,” and had been “[unable]
or refus[ed] to complete the goals on their Placement Plan Amendments.” Id.
at 682. Again, the status quo in these cases involved goals, not placement.



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to, those proceedings); In re J.S.C., 851 A.2d 189 (Pa. Super. 2004) (order

granting parent’s petition to compel visitation not collateral order where CYS

did not possess “right” to prevent parent from visiting with child).

      However, to be considered a collateral order, the order must be

separable from and collateral to the main cause of action, where the right

involved is too important to be denied review, and the question presented is

such that if review is postponed until final judgment in the case, the claim will

be irreparably lost.   See Pa.R.A.P. 313(b).    Here, we do not find that the

instant permanency order is separable from or collateral to the main cause of

action where the only request was to change the placement of N.M. (from

foster care to kinship care) and where the placement remained the same.

Moreover, review of that decision will not be irreparably lost if we postponed

it at this point.

      We conclude, however, that because the trial court has terminated

Parents’ parental rights to N.M., the entire record from the permanency

hearings, including that from the December 8, 2016 hearing, is now

reviewable on appeal from the court’s termination decrees.         See In the

Interest of A.L.D., supra (all decrees in termination of parental rights cases

are considered final, appealable orders). Procedurally, the entry of the orders

terminating Parents’ rights to N.M. acts to finalize the interlocutory




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permanency review orders. Therefore, we will address the merits of the claims

raised in these consolidated appeals.

        In their first two issues in the permanency appeals, Parents contend that

the court erred by not reunifying them with N.M. and in denying their repeated

requests to have N.M. placed into kinship care.

        At permanency hearings,22 the court is required to comply with 42

Pa.C.S. § 6351(f), which designates the appropriate matters to be determined

at such hearings, including:



____________________________________________


22   Under section 6351:

        (e) Permanency hearings.

           (1) The court shall conduct a permanency hearing for the
           purpose of determining or reviewing the permanency plan
           of the child, the date by which the goal of permanency for
           the child might be achieved and whether placement
           continues to be best suited to the safety, protection and
           physical, mental and moral welfare of the child. In any
           permanency hearing held with respect to the child, the court
           shall consult with the child regarding the child’s permanency
           plan, including the child’s desired permanency goal, in a
           manner appropriate to the child’s age and maturity. If the
           court does not consult personally with the child, the court
           shall ensure that the views of the child regarding the
           permanency plan have been ascertained to the fullest extent
           possible and communicated to the court by the guardian ad
           litem under section 6311 (relating to guardian ad litem for
           child in court proceedings) or, as appropriate to the
           circumstances of the case by the child’s counsel, the court-



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       (1) The continuing necessity for and appropriateness of the
       placement.

       (2) The appropriateness, feasibility and extent of compliance with
       the permanency plan developed for the child.

       (3) The extent of progress made toward alleviating               the
       circumstances which necessitated the original placement.

       (4) The appropriateness and feasibility of the current
       placement goal for the child.

       (5) The likely date by which the placement goal for the child might
       be achieved.

       (5.1) Whether reasonable efforts were made to finalize the
       permanency plan in effect.

       (6) Whether the child is safe.

                                       *       *    *

       (9) If the child has been in placement for at least 15 of the last 22
       months or the court has determined that aggravated
       circumstances exist and that reasonable efforts to prevent or
       eliminate the need to remove the child from the child’s parent,
       guardian or custodian or to preserve and reunify the family need
       not be made or continue to be made, whether the county agency
       has filed or sought to join a petition to terminate parental rights
       and to identify, recruit, process and approve a qualified family to
       adopt the child unless:

____________________________________________


          appointed special advocate or other person as designated
          by the court.

42 Pa.C.S. § 6351(e)(1). The court shall conduct permanency review hearings
“[w]ithin six months of the date of the child’s removal from the child’s
parent[;] or each previous permanency hearing until the child is returned to
the child’s parent, guardian or custodian or removed from the jurisdiction of
the court.” Id. at (e)(3)(i)(A). The court shall also conduct permanency
hearings “[w]ithin 30 days of a petition alleging that the hearing is necessary
to protect the safety or physical, mental or moral welfare of a dependent
child.” Id. at (e)(3)(ii)(D).

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         (i) the child is being cared for by a relative best suited to
         the physical, mental and moral welfare of the child;

         (ii) the county agency has documented a compelling reason
         for determining that filing a petition to terminate parental
         rights would not serve the needs and welfare of the child;
         or

         (iii) the child’s family has not been provided with necessary
         services to achieve the safe return to the child’s parent,
         guardian or custodian within the time frames set forth in the
         permanency plan.

                                  *     *      *

      (11) If the child has a sibling, whether visitation of the child with
      that sibling is occurring no less than twice a month, unless a
      finding is made that visitation is contrary to the safety or well-
      being of the child or sibling.

      (12) If the child has been placed with a caregiver, whether the
      child is being provided with regular, ongoing opportunities to
      participate in age-appropriate or developmentally appropriate
      activities. In order to make the determination under this
      paragraph, the county agency shall document the steps it has
      taken to ensure that:

         (i) the caregiver is following the reasonable and prudent
         parent standard; and

         (ii) the child has regular, ongoing opportunities to engage in
         age-appropriate or developmentally appropriate activities.
         The county agency shall consult with the child regarding
         opportunities to engage in such activities.

Id. at (f) (emphasis added). Moreover, based upon the determinations made

under subsection (f) and all relevant evidence presented at the hearing, the

court shall determine one of the following:

      (1) If and when the child will be returned to the child’s parent,
      guardian or custodian in cases where the return of the child is best


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      suited to the safety, protection and physical, mental and moral
      welfare of the child.

      (2) If and when the child will be placed for adoption, and the
      county agency will file for termination of parental rights in cases
      where return to the child’s parent, guardian or custodian is not
      best suited to the safety, protection and physical, mental and
      moral welfare of the child.

      (3) If and when the child will be placed with a legal custodian in
      cases where the return to the child’s parent, guardian or custodian
      or being placed for adoption is not best suited to the safety,
      protection and physical, mental and moral welfare of the child.

      (4) If and when the child will be placed with a fit and willing
      relative in cases where return to the child’s parent, guardian or
      custodian, being placed for adoption or being placed with a legal
      custodian is not best suited to the safety, protection and physical,
      mental and moral welfare of the child.

Id. at (f.1). On the basis of the determination made under subsection (f.1),

the court shall order the continuation, modification or termination of

placement or other disposition which is best suited to the safety, protection

and physical, mental and moral welfare of the child. Id. at (g).

      Instantly, N.M. was removed from Parents’ care on April 12, 2016, and

adjudicated dependent on July 7, 2016. She had been in placement for 5

months at the time of the December 2016 placement hearing and for more

than 15 months at the time of the October 2017 termination/goal change

hearing. N.M. is now two years old. While a CHOP pediatrician testified at

the adjudicatory hearing in July 2016 that nothing was provided to the CHOP

team that would explain N.M.’s rib fractures, Mother did testify that E.M. would

often forcefully run into N.M.’s back when Mother was holding N.M. in her


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arms.    Doctor Stavas testified that it would be very unlikely that E.M., a

toddler, would be able to impart the necessary force to fracture N.M.’s ribs;

however, that does not completely rule out the possibility. Moreover, while

the results of N.M.’s blood tests and lab work did not uncover any specific

genetic disorders to explain the fractures, testing showed that N.M. has a

genetic variant that, while unlikely to contribute to the her bone health, could

not be definitively ruled out by Dr. Stavas23 as contributing to her fractures,

noting that the mutation is “not in the literature.” 24 See N.T. Adjudicatory

Hearing, 7/7/16, at 84. Parents’ stories regarding the events leading up to

discovering N.M.’s injuries were internally consistent; they have remained

consistent to date. Cf. In the Interest of J.R.W., 631 A.2d 1019 (Pa. Super.
____________________________________________


23  Andrew C. Edmondson, MD, PhD, a geneticist fellow at CHOP, issued a
progress note on May 3, 2016, concluding that her genetic mutation (LEPRE1),
see infra n.24, is inconsistent with the inheritance pattern of the recessive
form of OI and that her fractures do not fit with the described phenotype of
individuals with recessive OI due to that type of mutation. Thus, he opined,
that “this change is most likely a neutral variant [and] does not explain her
clinical presentation.” Progress Notes of Andrew C. Edmondson, MD, PhD,
5/3/16, at 1.

24 Genetic testing revealed that N.M. has a gene, LEPRE1, that affects collagen
modification and produces prolyl 3-hydroxylase 1 (P3H1). P3H1 interacts with
collagen and modifies amino acids in the collagen chains.    Recessive Forms
of OI, Osteogenesis Imperfecta Foundation (May 2007). Although Dr. Stavas
testified that N.M. does not have OI, see N.T. Adjudicatory Hearing, 7/7/16,
at 84, defects in P3H1 appear to account for most of the cases of severe/lethal
OI which do have biochemically abnormal collagen, but do not have a collagen
mutation. In fact, recessive OI has been discovered only in individuals with
lethal, severe or moderate OI. Recessive Forms of OI, supra. See supra
n.7.

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1993) (child abuse case where parents provided various, inconsistent reasons

for child’s life-threatening injuries).   Thus, the court’s strategy of denying

kinship care and leaving N.M. in foster care to force Parents to explain the

root cause of her injuries has not been a winning one. See In re: L.Z., 111

A.3d 1164, 1171 (Pa. 2015) (recognizing dissent in prior appeal that observed

“child abuse cases often involve ‘an apparent conspiracy of silence,’ where all

the parents and caregivers refuse to explain who was responsible for the child

at the exact moment of injury.”).

        At the conclusion of the July 7, 2016 adjudicatory hearing, the trial court

noted that parents were fully compliant with their objectives, however, it

ordered N.M. remain in foster care “until the cause of N.M.’s injury was

determined” and “until the Court [is] advised of an explanation of N.M.’s

injuries while in the care of Mother and Father.” Trial Court Opinion, 8/10/17,

at 4.




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       While Parents did not challenge the court’s July 2016 finding 25 of child

abuse,26 the court acknowledged that parents submitted to all requested

evaluations, parenting classes, and therapy. DHS referred Mother to have a

parenting capacity evaluation completed.           On October 17, 2016, Doctors

William Russell, Ph.D., and Sheetal A. Duggal, Psy.D., examined Mother to

“assess [her] ability to provide safety and permanency to her daughter[,

N.M.].” Report of Forensic Evaluation, 10/17/16, at 1. In that report, Doctors

Russell and Duggal opined that if Parents followed their recommended course

____________________________________________


25 Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S. §§
6301-75. However, the Child Protective Services Law (CPSL) controls
determinations regarding findings of child abuse, which the juvenile courts
must find by clear and convincing evidence. See In the Interest of J.R.W.,
631 A.2d 1019 (Pa. Super. 1993). The CPSL, defines, in part, a “founded
report,” where there has been a judicial adjudication that includes a “finding
of dependency under 42 Pa.C.S. § 6341 (relating to adjudication) if the court
has entered a finding that a child who is the subject of the report has been
abused.” 23 Pa.C.S. § 6303(a)(1)(iii). “Child abuse” is defined, in part, under
the CPSL as “intentionally, knowingly or recklessly . . . [c]ausing bodily injury
to a child through any recent act or failure to act.” Id. § 6303(b.1)

26 Under the Juvenile Act, courts employ a prima facie evidentiary standard in
making a legal determination as to the identity of the abuser in child abuse
cases. See 23 P.S. § 6381(d) (“Evidence that a child has suffered serious
physical injury, sexual abuse or serious physical neglect of such a nature as
would ordinarily not be sustained or exist except by reason of the acts or
omissions of the parent or other person responsible for the welfare of the child
shall be prima facie evidence of child abuse by the parent or other person
responsible for the welfare of the child.”). However, there must still be clear
and convincing evidence to establish that the child was abused. Moreover, a
finding of child abuse under the Juvenile Act is not the same as a finding of
guilt in a criminal proceeding.


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of treatment, joint couples’ counseling individual therapy, and medication

protocols, “[Parents] should be able to provide safety and permanency to

[N.M.]” Parenting Capacity Evaluation Report, 10/17/16, at 14.

        At the December 2016 permanency hearing, the court denied Parents’

requests to be reunified with N.M. or to place her in kinship care. The court

expressed “grave concerns” about the safety of N.M. if moved into kinship

care. The court found Mother lacked credibility at the abuse hearing, and that

it could not reunify N.M. with Parents while “the thing that brought this case

into [court] still exist[s] with no explanation.”     N.T. Permanency Hearing,

12/8/16, at 16. Finally, the trial judge noted that if it left N.M. in foster care

“maybe [she] would get closer to an answer as to what happened instead of

moving [N.M.] with grandmom.” Id. at 29.

        While reunification with Parents may not have been appropriate

following the December 2016 permanency review hearing, the court’s reason

for not at least placing N.M. in kinship care is unsupported by the evidence of

record and, thus, was an abuse of discretion.27 See In the Interest of M.T.,

____________________________________________


27   In In re R.R., 686 A.2d 1316 (Pa. Super. 1996), we noted:

        It is true that in furtherance of its goal of preserving family unity
        whenever possible, 42 Pa.C.S. § 6301(b) of the Juvenile Act
        requires clear and convincing evidence of dependency before the
        court can intervene in the relationship between a parent and child.
        In the Interest of R.T., [] 592 A.2d [55,] 58 [(Pa. Super.



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supra (while parental progress toward completion of permanency plan is

important factor, it is not to be elevated to determinative status, to exclusion

of all other factors). Paternal grandmother was willing and able to provide

kinship care for N.M. E.M. had thrived in paternal grandmother’s care upon

his initial placement.     At the May 2017 permanency hearing, a DHS social

worker testified that she would explore paternal grandmother as a willing,

approved kinship provider. To deny kinship care based on the unsupported

speculation that Parents would abuse visitation rights and visit paternal

grandmother’s home without agency supervision is overreaching.                 The

Juvenile Act provides for the protection of children under these exact

circumstances.      See 42 Pa.C.S.A. 6351(a)(2)(iii) (disposition of dependent

child allows court to “permit the child to remain with . . . guardian, or other

custodian, subject to conditions and limitations as the court prescribes,

including supervision as directed by the court for the protection of the child.”).

____________________________________________


       1991)]. However, the Juvenile Act does not require proof that a
       parent has committed or condoned abuse before a child can be
       found dependent. Rather, dependency as defined in the Act exists
       where a child is without proper parental care, defined as “care or
       control necessary for his physical, mental, or emotional health or
       morals.” 42 Pa.C.S. § 6302. Thus the Juvenile Act permits a
       finding of dependency if clear and convincing evidence establishes
       that a child is lacking the particular type of care necessary to meet
       his or her individual special needs.

Id. at 1317-18.


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In fact, it is exactly this unwarranted and continued assumption that has kept

N.M. in protracted foster care, especially where the court found that Parents

had fully complied with their service plan objectives, which included behavioral

health evaluations, completion of parenting classes, attending individual

therapy and parenting capacity evaluations. See N.T. Permanency Review

Hearing, 12/8/16, at 16 (“I’ll find that parents are fully compliant.”). Tellingly,

the court’s refusal to provide kinship care or reunify N.M. with Parents has

provided the evidentiary platform to support DHS’ termination petition. In

essence, this is an example of judicially-created parental alienation.

      We remind the court that “the primary purpose of the Juvenile Act is ‘to

preserve the unity of the family whenever possible and to provide for the care,

protection, and wholesome mental and physical development of children

coming within the provisions of this chapter.’” 42 Pa.C.S.A. § 6301(b)(1).

Moreover, the foregoing goals are to be achieved “in a family environment

whenever possible, separating the child from parents only when necessary

for his welfare or in the interests of public safety.”            42 Pa.C.S.A. §

6301(b)(3) (emphasis added). Any decision to remove the child from his home

must be reconciled with the paramount purpose of preserving the unity of the

family. In Re Angry, 522 A.2d 73, 75 (Pa. Super. 1987) (citations omitted).

Involuntary termination of parental rights presupposes a finding by the

juvenile court that the child is dependent and that, in the best interest of the



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child and by reasons of “clear necessity,” removal from the parental home is

required. Id. at 75.

       Here, the trial court’s repeated refusal to consider approved kinship

care, in light of the fact that it also found Parents fully compliant with their

treatment goals as of December 2017 and where DHS supported kinship

placement with paternal grandmother, is an abuse of discretion and not

supported by the record. The court’s decision runs counter to the primary

purpose of the Juvenile Act, to preserve the family unit. Even if the court

specifically found that returning N.M. to her Parents was not best suited to her

safety and protection, the court was obligated to explore the possibility of her

placement with “a fit and willing relative.” See id. 42 Pa.C.S. § 6351(f.1)(4).

Accordingly, we are constrained to reverse the court’s December 8, 2016

permanency orders, which are not supported by clear and convincing

evidence.28




____________________________________________


28 Moreover, the court’s refusal to accept any medical testimony to explain
N.M.’s injuries, despite asking for same at several hearings, created an
insurmountable barrier to their reunification with N.M.




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       Having determined that the court’s permanency order must be reversed,

we must also vacate the trial court’s decrees that prematurely changed the

goal from reunification to adoption and terminated29 Parents’ rights to N.M.30

____________________________________________


29 We note that even had we affirmed the permanency orders, we still would
have vacated the trial court’s termination orders. In her Rule 1925(a)
termination opinion, Judge Younge noted that a social worker testified that
“there is a deficiency in the protective capacities of Mother and Father because
they perceive each other in the family unit as safe and not responsible for
N.[]M[.]’s injuries [and that they] continue to reside with each other as
indicated perpetrators.” Trial Court Opinion, 2/9/18, at 7. Moreover, the court
relied upon testimony that the safety threat to N.M. continued to exist at the
time of the termination hearing, based upon the fact that the injuries to N.M.
were still unexplained. Finally, the court based its termination decision in
large part on the fact that Parents were not fully compliant with their
objectives “due to failure to address the mental health therapy order by the
Court from the inception of the case.” Id. at 8, citing N.T. Termination
Hearing, 10/26/17, at 276. To support the goal change to adoption, the trial
judge “reasoned . . . Mother and Father failed to present any solid evidence
as to progress made in their therapy[,] did not offer treatment plans, nor
progress reports or therapist testimony at the [termination] hearing[,] and
failed to provide assurances of a level of safety or permanency plan for N.[]M.
in fifteen (15) months.” Trial Court Opinion, 2/9/18, at 9. We are not
convinced that the record clearly and convincingly supports these findings.
See In re Matsock, 611 A.2d 737 (Pa. Super. 1992) (where no sexual abuse
charges had been filed against father nor had he been prosecuted for alleged
offense, our Court reversed termination decree where evidence showed father
fulfilled affirmative duty to work toward children returning home, even where
father “refused to admit his predetermined guilt [which the trial court found]
negated his ability to be ‘cured’.”).

     In reviewing the evidence in support of termination under section
2511(b), our Supreme Court stated as follows:

       [I]f the grounds for termination under subsection (a) are met, a
       court “shall give primary consideration to the developmental,



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____________________________________________


       physical and emotional needs and welfare of the child.” 23 Pa.C.S.
       § 2511(b). The emotional needs and welfare of the child have
       been properly interpreted to include “[i]ntangibles such as love,
       comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
       (Pa. Super. 2012). In In re E.M., 620 A.2d 481, 485 (Pa. 1993),
       this Court held that the determination of the child’s “needs and
       welfare” requires consideration of the emotional bonds between
       the parent and child. The “utmost attention” should be paid to
       discerning the effect on the child of permanently severing the
       parental bond. In re K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013). With regard to termination
under section 2511(b), the court found:

       Testimony of [a] social worker was that N.[]M. has a parent-child
       bond with her pre-adoptive foster parent. [A s]ocial worker
       testified N.[]M. has [a] good relationship with her foster mother
       [and] looks to her to meet her day[-]to[-]day[-]needs. N.[]M.
       has developed a bond with her foster mother in the twenty (20)
       months she has resided in the home. Furthermore, [a] social
       worker stated if N.[]M. w[ere] removed from her current foster
       home there would be a harmful emotional impact on N.[]M. The
       social worker testified N.[]M. could not be safely reunified with
       parents because a safety threat of the unexplained injury still
       exists. The social worker testified there were no safety concerns
       for N.[]M. in the foster home. Furthermore, the social worker
       testified N.[]M. had not experienced any significant injuries since
       entering foster care.

Trial Court Opinion, 2/9/18, at 9 (citations to record omitted).

While courts shall also consider whether children are in a pre-adoptive home
and are bonded with their foster parents, In re: T.S.M. at 269, here, the
court made absolutely no mention of the parent-child bond – the foundation
of a needs and welfare analysis under section 2511(b).

At the termination hearing, an agency worker testified that N.M. would “light
up” when she visited with Parents. N.T. Termination/Goal Change Hearing,
10/26/17, at 1-3 (237). Father testified that he and Mother have positive



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parental bonds with N.M., that N.M. gets very excited and “bangs on the glass”
when she comes to the agency for visits, that she calls them “mommy and
daddy,” and that she runs to them when she sees them at visits. Finally,
Father testified that a strong sibling bond exists between N.M. and E.M.
Accepting this uncontroverted testimony, we would find that the trial court
abused its discretion in terminating Parents’ parental rights under section
2511(b), where the evidence does not clearly and convincingly discern the
effect on the child of permanently severing the parental bond. In re: T.S.M.,
supra.

30 We find ourselves constrained to comment as follows: despite record
evidence that the trial court allegedly relied upon, the one factor, the elephant
in the room, is that the trial judge was and remains the cause of the
deteriorated bond between Parents and N.M. in this matter.

The record is replete with attempts by Parents to meet the goals set by the
trial judge, however she continued to put up barriers to reunification. As an
example, the trial judge stated at the December 8, 2016 hearing that she
wanted some testimony as to how the injuries happened. However, at every
hearing from March 2017 onward, she refused to allow such testimony, stating
that the failure of Parents to appeal her earlier decision with regard to the
etiology of N.M.’s injuries was final and could no longer be addressed. When
the agency stated that Parents had complied with their goals, the court said,
“l’ll find that [P]arents are compliant. It doesn’t move the needle for me.”
She further stated that “I guess the other side of the conversation is if I leave
her [in foster care] maybe I get closer to an answer as to what happened
instead of moving her to grandmom. . . . So, I’m not going to consider kinship
care.” When the agency determined that kinship placement was available and
appropriate, the trial court ruled in May of 2017 that grandparent visitation
with N.M. is immediately suspended; it is not in N.M’s continued best interests
to explore placement in kinship care. In short, despite the goals of the Child
Protective Services Law, the trial judge seems to have done everything in her
power to alienate these parents from their child, appears to have a fixed idea
about this matter and, further, she prohibited evidence to be introduced that
might have forced her to change her opinion.

While this court must take and does take the issue of abuse of a child very
seriously, the fact that a trial judge tells parents that unless one of them “cops



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       Permanency orders reversed.             Goal change/Termination decrees

vacated. Jurisdiction relinquished.31

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18

____________________________________________


to an admission of what happened to the child” they are going to lose their
child, flies in the face of not only the CPSL, but of the entire body of case law
with regard to best interests of the child and family reunification. We find that
the record herein provides example after example of overreaching, failing to
be fair and impartial, evidence of a fixed presumptive idea of what took place,
and a failure to provide due process to the two parents involved. Finally, the
most egregious failure in this matter is the refusal to allow kinship care,
despite the paternal grandmother being an available and approved source for
same. The punishment effectuated by the trial judge was, at best, neglectful
and, at worst, designed to affect the bond between Parents and N.M. so that
termination would be the natural outcome of the proceedings. This is an
extremely harsh penalty for parents who have complied in every way with the
requirements of the CPSL.
31We recognize that the Supreme Court has admonished our Court when we
have sua sponte directed that a different trial judge take over a case on
remand. See Reilly by Reilly v. SEPTA, 489 A.2d 1291 (Pa. 1985).
However, in light of the strong case Parents have made for recusal, the
sensitive nature of this case and the seeming confusion that the court has with
regard to certain issues (aggravated circumstances finding), we strongly
suggest if another petition for recusal is filed below, that the trial judge give
serious consideration as to whether her apparent bias warrants that she
recuse herself.


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