In the Interest of: M.T., Appeal of: C.T. and M.T.

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2014 PA Super 223

IN THE INTEREST OF: M.T., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: C.T., III AND M.T., PARENTS

No. 1138 WDA 2013

Appeal from the Order entered June 10, 2013,

in the Court of Common Pleas of Blair County,

Civil Division, at No(s): CP-07-DP-0000077-2012

IN THE INTEREST OF: C.T., IV., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: C.T., III AND M.T., PARENTS

No. 1139 WDA 2013

Appeal from the Order entered June 10, 2013,

in the Court of Common Pleas of Blair County,

Civil Division, at No(s): CP-07-DP-0000076-2012

IN THE INTEREST OF: M.J.T., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: C.T., III AND M.T., PARENTS

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No. 541 WDA 2014

Appeal from the Decree entered March 5, 2014,

in the Court of Common Pleas of Blair County,

Orphans’ Court, at No(s): 2013 AD 39A

IN THE INTEREST OF: C.E.T., IV., A IN THE SUPERIOR COURT OF

MINOR PENNSYLVANIA

APPEAL OF: C.T., III AND M.T., PARENTS

No. 542 WDA 2014

Appeal from the Decree entered March 5, 2014,

in the Court of Common Pleas of Blair County,

Orphans’ Court, at No(s): 2013 AD 39

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,

OTT, WECHT, STABILE, and JENKINS, JJ.

OPINION BY ALLEN, J.: FILED OCTOBER 08, 2014

M.T. (“Mother”) and C.T., III (“Father”) (collectively “Parents”) have

appealed from the June 10, 2013 Orders changing the permanency

placement goal of the parties’ two dependent children, C.E.T., IV (d.o.b.

September 2010), and M.J.T. (d.o.b. October 2011) (“the Children”), to

adoption, and from the March 5, 2014 decrees terminating Mother and

Father’s parental rights.

We initially note that although the trial court conducted the

termination hearing on November 21, 2013, the trial court waited until this

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Court affirmed the Children’s goal change on March 4, 2014 before entering

the March 5, 2014 termination decrees. On April 17, 2014, this Court

entered an order granting en banc reargument, and withdrew the March 4,

2014 decision affirming the goal change. The trial court did not vacate the

termination decrees it entered on March 5, 2014. We find no error in such

action, and note that “a goal change from reunification to adoption [i]s not a

necessary prerequisite to the initiation of involuntary termination

proceedings.” In re N.W., 859 A.2d 501, 507 (Pa. Super. 2004) (citing In

re M.G., 855 A.2d 68 (Pa. Super. 2004) (emphasis in original)). Our

Supreme Court has held that “an agency may file a termination petition even

where reunification remains the permanency goal for the child.” In re

Adoption of S.E.G., 901 A.2d 1017, 1026 (Pa. 2006). This is due in part to

the policy espoused by the federal Adoption and Safe Families Act, 42 U.S.C.

§ 671-675, which imposes upon the states the requirement to focus on a

dependent child’s need for permanency, rather than the parents’ actions.

Consistent with the foregoing, we consider both the June 10, 2013 orders

effectuating goal change, and the March 5, 2014 decrees terminating Mother

and Father’s parental rights.

Critical to our analysis in this appeal is the trial court’s compelling,

detailed and accurate recitation of the evidence of record. Because of its

relevancy, we adopt and reproduce the trial court’s recitation of the facts

and procedure below:

Relative to the parents’ initial appeal concerning the goal

change to adoption, [the Superior] Court entered a decision filed

March 4, 2014 affirming [the trial] court’s Order of June 10,

2013 by a 2-1 decision. However, after submission of an

application for re-argument by the parents, [the Superior] Court

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subsequently entered an Order on April 17, 2014 granting their

application and vacating its prior March 4, 2014 Order. On June

3, 2014, [the Superior] Court entered an Order denying BCCYF’s

motion to consolidate the goal change and termination of

parental rights appeals, but indicated instead, that the cases will

be listed as related appeals. The matter of re-argument

pertaining to the goal change, and the termination of parental

appeals, is to be submitted on briefs by counsel of record for the

parties before an En Banc panel on August 5, 2014.

The subject children, C.E.T., IV and M.J.T., were removed

from the care of their parents on June 22, 2012 pursuant to a

Voluntary Placement Agreement signed by the parents, C.T., III

and M.T. C.E.T., IV was placed in the [M.] foster home on such

date, while M.J.T. was placed in the same foster home three (3)

days later (June 25, 2012) upon her release from the hospital. A

Dependency Petition was filed for both children on July 5, 2012,

and an Adjudicatory Hearing was scheduled before the master

on July 18, 2012. However, both parents and the paternal

grandparents, C.T.J. and P.T., requested that the matter be

heard by a judge in the first instance, therefore, the matter was

subsequently scheduled before the undersigned on September

13, 2012.

By Orders of Adjudication entered September 17, 2012,

both children were declared dependent and have remained in the

custody of BCCYF since such time. BCCYF initially became

involved with this family after receiving two (2) Childline reports

on June 19, 2012. The initial Childline report (C.L. No. 07-

11165) alleged that M.J.T. was the victim of abuse (serious

physical injury and serious physical neglect) by her paternal

grandfather, C.E.T., Jr., due to second degree burns suffered to

her feet, ankles, thigh and buttocks. She was admitted to UPMC

– Mercy Hospital in Pittsburgh, PA. (RR 3-4; Order of

Adjudication, 9/17/12 ¶15 (a)(1)). The second Childline report

(C.L. No. 07-11166) alleged that M.J.T. was the victim of abuse

(serious physical injury) as a result of severe proximal humerus

fracture and metacarpal fracture, as well as various bruising to

her face, head and extremities, and abrasions to the left eyelid,

nose, upper lip and chin that were inconsistent for a child her

age (at the time of the Childline referral the identity of the

perpetrator(s) was unknown). (RR 4; Order of Adjudication,

9/17/12, ¶15 (a)(1)).

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The daughter, M.J.T., was seen by Dr. Janet Squires and

Dr. Joy Richmond while at UPMC – Mercy. Both doctors opined

that the bruising and fractures could not have been caused by an

accidental source. (RR 5). More specifically, Dr. Squires

reported that after reviewing an x-ray of M.[J.T.]’s injuries, the

right humerus fracture was estimated to be one (1) to three (3)

weeks old, and that the metacarpal fracture was most likely

caused by squeezing or pounding of the hand. (See Dependency

Petitions, p. 5).

In our September 17, 2012 Order of Adjudication, we

specifically made the following finding:

“…the court finds clear and convincing evidence that the

child, M.J.T., was the victim of abuse (serious physical

injury) relating to the bruises, abrasions and fractures.

The court further finds clear and convincing evidence that

the bruising, abrasions, fractures and burns all would have

caused M.J.T. severe pain and would have significantly

impaired the child’s functioning and development for a

period of time. With respect to the identify (sic) of the

perpetrator of the bruises, abrasions and fractures,

however, there is only prima facie evidence that the

perpetrators of the abuse are the parents and

grandparents due to the fact that they were the only ones

responsible for the welfare of the children during the time

that the injuries occurred…”

Order of Adjudication, 9/17/12, ¶15(a)(1)

The 6th Month Permanency Review hearing was held

December 11, 2012. In our Permanency Review Order of

December 13, 2012, we found that “[t]he parents still must

come to a greater understanding and appreciation relative to the

burn injuries and fractures that [M.J.T.] suffered, including the

cause(s) of such injuries.” (Permanency Review Order,

12/13/12, ¶3(b)(ii)). We also found that each child was doing

well in the [M.] foster home and that Mr. & Mrs. M[.] were a

permanent adoptive resource if reunification did not occur.

(Permanency Review Order, 12/13/12, ¶23(b)). Finally, we

found that the parents had made “slow progress relative to the

FICS Reunification Services.” (Permanency Review Order,

12/13/12, ¶23(i)).

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Reunification services were initiated through Family

Intervention Crisis Services (hereinafter “FICS”) on July 26,

2012 and remained open until June 10, 2013. (RR 10, 60, 128,

275 & 283). During the course of time, visits were increased,

but always remained fully supervised. FICS also offered

separate counseling sessions and parenting education sessions

once per week with both parents. (RR 10, 61 & 134). The

counseling and parenting sessions were later combined in

February of 2013. (Id.). In addition, FICS facilitated the

Women Aware Program for the mother, the Men Helping Men

Program for the father, with the goal of assisting the parents in

their relationship with one another. (RR 56 & 135).

In addition to the services provided by FICS, the family

was afforded numerous other services to assist them in reaching

the goal of reunification. (RR 10-11, 55 & 70). For example, the

parents attended the Family Resource Center Parenting Program

in September 2012, and were scheduled to continue until

November 15, 2012. (RR 10-11). However, both parents were

discharged from the program due to the distraction caused by

[Father] openly flirting with other women in the group (RR 70).

Further, both parents were engaged with the Parents as

Teachers Program (RR 55), and both children receive Early

Intervention Services (RR 51 & 217). Shelley McCune of FICS

noted that there were some positive attributes for the parents,

for example, they were cooperative, kept a clean and orderly

house, possessed a strong desire to have their children return

home, and developed a good relationship with the resource

parents. (RR 13-15).

Ms. McCune, however, also noted several deficiencies that

the parents shared, including a lack of understanding of the

injuries that their daughter had suffered which resulted in her

placement. (RR 17). A particular concern was the fact that

neither parent recognized the child’s obvious body bruising; did

not realize that she had suffered several broken bones, and had

no knowledge nor any explanation as to how those injuries

occurred. (RR 17). The parents’ lack of knowledge and their

failure to offer a viable explanation as to what occurred to their

daughter has been, and continues to be, a very serious concern

to this court because of the difficulty this creates in ensuring that

the children are safe in the care, custody and control of their

parents. (RR 17).

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Ms. McCune further noted that the parents were very

dependent on the children’s paternal grandparents for basic

support. For example, the grandparents provided child care,

transportation, financial assistance and general assistance in

every day matters that the parents could not understand or

handle on their own. (RR 19-20). Although we recognize that a

positive support system is important in any family situation, of

particular concern to this court is that the serious and significant

injuries suffered by the daughter occurred while she was solely

in the care, custody and control of the paternal grandfather (RR

19-20).

During the supervised visits observed by FICS, there were

several ongoing safety concerns. (RR 72, 76-78 & 81). Ms.

McCune testified during one occasion, C.E.T. was playing with an

open pair of adult scissors and the parents needed prompting to

remove them from his possession. (RR 78). There was another

occasion when the parents had a space heater on the floor of

their residence that became hot enough to burn on contact with

the skin. (RR 78). The children would walk over toward the

heater, which needed to be addressed several times with the

parents. (Id.). Ms. McCune expressed concern with the parents’

inability to recognize situations that could jeopardize the safety

of their children. (Id.).

Another area of concern noted at the initial Adjudicatory

hearing was the parents’ inability to recognize appropriate

developmental stages for their children. For example, the father

would refer to the daughter as walking when she was actually

crawling; they both claimed that the daughter was crawling and

pulling herself up at the age 4 months; etc. Due to these

concerns, BCCYF requested that both parents undergo

psychological evaluations to assess their intellectual functioning

and parenting skills. (RR 8, 20-21).

A 9th Month Interim Review Hearing was held March 5,

2013. In our March 12, 2013 Permanency Review Order, we

stated the following: “FICS has a concern in that despite the

investment of services and the passage of time, the visits remain

fully supervised as the parents are not always fully attentive to

the children which raises safety concerns” and “the parents

cannot consistently ensure that the children are safe in their

care. FICS also expressed a concern with the father being

disrespectful toward the mother, and that he has been verbally

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abusive in the past as well, which negatively affects the mother’s

self-esteem.” (Permanency Review Order, 3/12/13,

¶¶3(a)(ii)and3(b)(ii).

In our March 12, 2013 Permanency Review Order, we also

indicated that before the children could be reunified with their

parents, that “[t]he court needs to be satisfied that they are

capable of being fully attentive to the needs of their children and

that they can consistently provide a safe and secure

environment.” (Permanency Review Order, 3/12/13, ¶7).

The psychological evaluations of the parents occurred on

January 30 and February 12, 2013, by Marilyn Morford, Ph.D.

(RR 98). Dr. Morford is a licensed psychologist with a specialty

in child psychology. The purpose of her evaluation was to

determine the parents’ intellectual, personal, and emotional

functioning, as well as their parenting ability and the relationship

between the children and parents. (RR 99; Psychological

Evaluations, p. 1). Dr. Morford’s Psychological Evaluations were

admitted as Petitioners’ Exhibits 1 & 2 at the March 13, 2013

hearing and are incorporated herein.

Dr. Morford testified that both parents have some

limitations with intellectual functioning (RR 101; M.T.

Psychological Report, p. 6; C.T. Psychological Report, p. 5).

After conducting an assessment of [Mother’s] verbal

comprehension, she was considered to have an approximate

developmental age of an average 14 year old, while [Father’s]

verbal comprehension placed him approximately at the

developmental age of a 9 year old. (RR 103; Id.). Dr. Morford

explained that at these developmental ages, the parents would

have limitations with their abstract reasoning and planning.

Such would also significantly affect their functioning in relation to

their parenting ability. (RR 103-104). Further, the parents were

observed to have difficulty with adaptive skills and daily

functions. (RR 126).

Dr. Morford also expressed concern with the mother’s lack

of understanding of developmental milestones relative to the

children. (RR 107). As to the father, Dr. Morford noted that he

had a tendency to deny basic flaws and that he had issues with

maturity, such as impulse control. (RR 109). Dr. Morford

explained that the father’s level of intellectual maturity may be

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affecting his ability to focus on monitoring the children and

responding to them at an appropriate level. Consequently,

[Father’s] intellectual immaturity was found to be one of the

primary factors that affected his ability to properly parent the

children. (RR 109-110).

At the 9th Month Interim hearing, Dr. Morford continued to

question whether the parents could remedy the circumstances

related to the safety issues that necessitated the children’s

placement in a reasonable amount of time due to their limited

intellectual abilities and emotional needs. (RR 114 & 125).

Further, Dr. Morford found it significant that the service

providers who had been in the home the prior six (6) months

offering reunification services determined that they could not

scale back from a full level of supervision. (RR 115). Therefore,

Dr. Morford did not foresee a time in the near future when daily

checks and supervision would not be important to monitor the

safety of the children in their parents’ home. (RR 115).

At the time of the 9th Month Interim hearing in March

2013, Ms. McCune confirmed that with the lack of progress being

made relative to the visits and counseling, she concurred with

Dr. Morford in her belief that she did not foresee any time in the

near future that visitation could be scaled back from full-time

supervision. (RR 147). Even though the parents were generally

cooperative with the services, there remained a lack of

consistency, the parents were easily distracted, they were not

consistently implementing what they had been taught; and

safety issues continued to persist. (RR 148-149). Ms. McCune

stated that the parents also continued to have unrealistic

developmental expectations for their children. (RR 152). Ms.

McCune also noted that the parents provided inconsistent

statements as to how the injuries to their daughter occurred.

(RR 157-158).

At the 9th Month Review hearing, it was expressed to the

parents by this court and BCCYF that they needed to show

significant improvement and consistency before reunification

with the children would occur. (RR 184-185). Unfortunately,

over the next three (3) month period, FICS felt the need to

continue to provide fully supervised visits as they still had

significant concerns concerning the parents not consistently

implementing safety suggestions and being able to supervise

their children on their own. Furthermore, if the grandparents

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were present, the parents would tend to step back and rely upon

the help of the grandparents. (RR 206-207). FICS still noted

continued safety concerns concerning the children, and the need

to intervene to avoid potential safety hazards. (RR 208-210 &

215).

Despite the numerous services provided to the parents, as

of June 2013, Ms. McCune still could not recommend that the

children be returned to the parents’ care. In fact, she was not

able to provide a time frame for the parents to achieve a level of

unsupervised visits due to their lack of progress to date. (RR

217-218, 220). Ms. McCune also pointed out that there were

more concerns in the most recent two (2) months than there

had been in the prior months. (RR 231-238). Ms. McCune

testified that the parents actually regressed in the area of

consistently recognizing and addressing safety concerns. (RR

218, 220).

After the 12th Month Review Hearing held June 7, 2013,

we entered an Order on June 10, 2013, wherein we made the

following findings as to both parents:

“[T]he mother and father have attended nearly all

meetings and visits with FICS Reunification Services, but

they have failed to recognize and appropriately address

the safety concerns for the children on a consistent basis.

The parents continue to work with Parents as Teachers in

their home weekly. The child, [C.E.T., IV], continues to

receive therapy for his developmental delays through both

Denise Adams and the FICS Parent Educator, and the

mother will utilize at times the tools and techniques that

she has been taught, but not on a consistent basis. The

visits that occur remain fully supervised due to safety

concerns. [The parents] have not demonstrated any

ability to protect their children on a consistent basis, and

often have immature responses to FICS’ staff when safety

concerns are expressed. Despite the efforts and time

investment by the service providers, there does not appear

to be any hope of significant improvement. As a result, we

cannot find that the children would be protected and safe

in their parents’ care.”

(Permanency Review Order 6/10/13, ¶3(a)(ii) and ¶3(b)(ii))

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We also made the following specific factual findings:

***

(c) The foster parents are an adoptive resource, and

both BCCYF and FICS support Mr. and Mrs. M[.] in their desire to

adopt the children.

(d) Despite the number of services that have been in

place for the past one (1) year, the parents have not made

significant progress and have not shown any insight or

demonstrated any consistency that they can safely protect their

children if they were in their custody. This is especially

concerning considering the children are only two (2) and one (1)

year of age.

(e) There has never been any plausible explanation or

further information provided as to [M.J.T.]’s 2nd degree burn

injuries to her feet/ankles, thigh and buttocks (CL No. 07-11165)

nor her fractures and bruising (CL No. 07-11166) which occurred

during times when only the parents and paternal grandparents

were the caregivers. As a result, the parents have not

demonstrated any ability to remedy the circumstances that

originally led to placement.

(f) There exists a parent-child relationship between the

children and their biological parents, but the children have also

developed a parent-child relationship with Mr. and Mrs. M[.],

where they have been placed since 6/22/12. The children look

to the M[.]s to meet their needs, and are provided safety,

structure and appropriate care within their home.

As a result, under the Order section, we changed the goal

to adoption and directed that reasonable efforts were no longer

required for either parent, and that compelling reasons no longer

existed not to pursue TPR. (Permanency Review Order, 6/10/13,

¶23(b) – (c)).

At the November 21, 2013 combined 18th Month

Permanency Review and TPR proceeding (filed to Blair County

No. 2013 AD 39 & 39A), the BCCYF caseworker Nicole Heidler

testified. Ms. Heidler confirmed that the children were

comfortable in the M[.] foster home and that both children refer

to the M[.]s as “mom” and “dad” and that they sought the M[.]s

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out to meet their needs. (RR 242-243, 291-292). Ms. Heidler

also testified that the children were not only bonded to their

foster parents, but also to each other. (RR 292-293). In the

M[.]’s care, C.E.T., IV was making progress with his speech

development through Headstart, and M.J.T. was also progressing

and had no developmental issues since her placement. (RR

293).

Even though the supervised visits at the BCCYF office with

the parents generally went well, Ms. Heidler testified that the

foster parents appeared to be more of the parental figures to

these children based upon her own observations of their

interactions together. (RR 307). There are no separation issues

noted for the children at the end of visits with their parents. (RR

299-300). [The pre-adoptive foster parents] also expressed a

willingness to discuss [Parents’ continued contact with Children]

if a TPR Petition was granted. (RR 300).

Ms. Heidler testified that BCCYF believed it would be in the

children’s best interests to terminate the parental rights of

[Parents], as the children had been with their adoptive resource

for nearly 1½ years, more than half of their respective young

lives. (RR 302-303). The children’s needs have been met by

Mr. & Mrs. M[.], and the children have grown and thrived within

their home. Therefore, BCCYF desired the termination of

parental rights so that the children could achieve permanency.

(Id.).

Therefore, in our Permanency Review Order of November

27, 2013, the goal remained adoption, reasonable efforts

continued not to be required for either parent and compelling

reasons did not exist. (Permanency Review Order 11/27/13,

¶23/Order). We also entered under separate cover an Order

deferring any decision relative to the TPR Petition until the

Pennsylvania Superior Court entered its decision relative to the

parents’ appeal of our Permanency Review Order of June 10,

2013, wherein we changed the goal to adoption.

Trial Court Opinion, 7/22/14, at 2–8 (bolded dates in original).

On appeal, Mother and Father collectively raise three issues pertaining

to the Children’s goal change:

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I. Whether the trial court erred and abused its discretion by

determining the best interests of the child would be served

by changing the Placement Goal to Adoption where: there

is insufficient evidence that such a Goal Change would be

in the best interest of the child; there is insufficient

evidence of conduct by the parents that places the health,

safety or welfare of the child at risk; and the trial court

fails to account for the parent-child relationship shared

between the parents and their biological children.

II. Whether the trial court erred and abused its discretion in

changing the goal for the child from reunification to

adoption when the parents had exhibited compliance with

the permanency plan having attended nearly all visits and

participated in or completed nearly all recommended

services and the trial court failed to fully consider the bond

between the parents and child.

III. Whether the trial court erred and abused its discretion

where an improper amount of weight was applied to the

parents’ inability to explain the origin of injuries suffered

by M.T., although the parents agree that some injury did

occur without their knowledge.

Parents’ Brief at 5.

We address Parents’ issues together because they are interrelated,

and implicate the sufficiency and weight of the evidence assessed by the

trial court to the testimony at the twelve-month permanency review hearing.

Our Supreme Court set forth our standard of review for dependency

cases as follows:

[T]he standard of review in dependency cases requires an

appellate court to accept the findings of fact and credibility

determinations of the trial court if they are supported by the

record, but does not require the appellate court to accept the

lower court’s inferences or conclusions of law. Accordingly, we

review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

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In a change of goal proceeding, 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. In re A.K., 936 A.2d 528, 532-533 (Pa. Super. 2007). The

burden is on the Agency to prove the change in goal would be in the child’s

best interests. In the Interest of M.B., 674 A.2d 702, 704 (Pa. Super.

1996). In contrast, in a termination of parental rights proceedings, the

focus is on the conduct of the parents under 23 Pa.C.S.A. § 2511. In re

M.B., 674 A.2d at 705.

Section 6302 of the Juvenile Act defines a “dependent child” as a child

who:

(1) is without proper parental care or control, subsistence,

education as required by law, or other care or control

necessary for his physical, mental, or emotional health, or

morals. A determination that there is a lack of proper

parental care or control may be based upon evidence

of conduct by the parent, guardian or other

custodian that places the health, safety or welfare of

the child at risk, including evidence of the parent’s,

guardian’s or other custodian’s use of alcohol or a

controlled substance that places the health, safety or

welfare of the child at risk[.]

42 Pa.C.S.A. § 6302(1) (emphasis added).

In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this Court clarified

the definition of “dependent child” further.

The question of whether a child is lacking proper parental care or

control so as to be a dependent child encompasses two discrete

questions: whether the child presently is without proper

parental care and control, and if so, whether such care and

control are immediately available.

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Id. at 872 (internal quotations and citations omitted); see also In re J.C.,

5 A.3d 284, 289 (Pa. Super. 2010). Additionally, we note that “[t]he burden

of proof in a dependency proceeding is on the petitioner to demonstrate by

clear and convincing evidence that a child meets that statutory definition of

dependency.” G.,T., 845 A.2d at 872.

With regard to a dependent child, in In re D.A., 801 A.2d 614 (Pa.

Super. 2002) (en banc), this Court explained:

[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) 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 public agency, or

transferring custody to the juvenile court of another state. 42

Pa.C.S. § 6351 (a).

Id. at 617.

Regarding the disposition of a dependent child, section 6351(e), (f),

(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for

its permanency plan for the subject child. Pursuant to those subsections of

the Juvenile Act, the trial court is to determine the disposition that is best

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

the child.

Section 6351(e) of the Juvenile Act provides in pertinent part:

(e) Permanency hearings.-

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(1) [t]he 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. …

42 Pa.C.S.A. § 6351(e).

Section 6351(f) of the Juvenile Act prescribes the pertinent inquiry for

the reviewing court:

(f) Matters to be determined at permanency hearing.-

At each permanency hearing, a court shall determine all of

the following:

(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.

***

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(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 an petition to terminate parental rights and to identify,

recruit, process and approve a qualified family to adopt the

child unless:

(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.

(f.1) Additional determination. – 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 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 return to the child’s parent,

guardian or custodian or being placed for adoption is not

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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 wiling

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.

(5) If and when the child will be placed in another living

arrangement intended to be permanent in nature which is

approved by the court in cases where the county agency

has documented a compelling reason that it would not be

best suited to the safety, protection and physical, mental

and moral welfare of the child to be returned to the child’s

parent, guardian or custodian, to be placed for adoption, to

be placed with a legal custodian or to be placed with a fit

and willing relative.

(f.2) Evidence. – Evidence of conduct by the parent that places

the health, safety or welfare of the child at risk, including

evidence of the use of alcohol or a controlled substance that

places the health, safety or welfare of the child at risk, shall be

presented to the court by the county agency or any other party

at any disposition or permanency hearing whether or not the

conduct was the basis for the determination of dependency.

(g) Court order.- 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.

***

42 Pa.C.S.A. §6351.

Finally, the court should consider the bond between the child and his

parents, foster parents, and siblings. In re H.V., 37 A.3d 588, 594-595 (Pa.

Super. 2012).

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This Court has stated:

[T]he focus of all dependency proceedings, including

change of goal proceedings, must be on the safety, permanency,

and well-being of the child. The best interests of the child take

precedence over all other considerations, including the conduct

and the rights of the parent. . . . [W]hile parental progress

toward completion of a permanency plan is an important factor,

it is not to be elevated to determinative status, to the exclusion

of all other factors.

In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007). In In re N.C., 909 A.2d

818, 823 (Pa. Super. 2006), another goal change case, the trial court

granted a goal change to adoption despite the fact that the mother had

made substantial progress toward completing her permanency plan. This

Court held that the mother’s parenting skills and judgment regarding her

children’s emotional well-being remained problematic.

Here, CYF presented ample testimony from which the trial court could

properly change the Children’s goal from return to parents with a concurrent

goal of adoption to a sole goal of adoption. Ms. Shelley McCune, a counselor

with Family Intervention Crisis Services who worked with Parents, could not

recommend that Children could be safely returned home to Parents, and she

could not provide a time-frame for reunification. N.T., 6/7/13, at 27-28.

She testified that Paternal Grandparents are not a good option for placement

because of M.J.T.’s burns, and she was also concerned that Paternal

Grandparents would allow Parents to be with the Children unsupervised, and

there was too great a risk to the Children’s safety. Id. at 3, 17, 30-31. Ms.

McCune acknowledged that Children have a relationship with Parents, but

view them as “fun mom and dad” because there is continuous entertainment

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during the visits. Id. at 28, 34. Ms. McCune also observed that Children

have a parent/child relationship with their foster parents, and noted that the

foster parents are more structured, and allow Children to play on their own

and be creative. Id. at 29. Ms. McCune averred that stability was in the

best interests of the Children. Id. at 29-30, 45. She testified that Parents

were not demonstrating any insight into how to safely parent; Ms. McCune

explained:

It’s not just one situation. It’s the overall picture. It’s the

continued things that we’re seeing and the continuing having to

redirect and prompt and review. Some of the things that we see

were things that were addressed last summer. We need to see

at this point that [Parents] are able to transition these things

over without somebody constantly saying, hey, that’s a risk to

these children, that’s a danger, that’s a safety issue.

Id. at 26. Ms. McCune stated that she felt “like we’ve gone backwards as

opposed to going forward.” Id. at 30. She averred that the longer the

current situation continued, the more difficult it would be on the Children to

change the goal to adoption at a later point in time. Id. at 45.

CYF Caseworker Nikki Heidler testified that Children had been placed

with their foster parents since their removal from Parents’ care on June 22,

2012, and that the foster parents were an adoptive resource. Id. at 52. Ms.

Heidler stated that Children are well-adjusted in the foster home, that they

play with their own toys and occupy themselves for an age-appropriate

amount of time, and that they are very focused. Id. Ms. Heidler noticed an

improvement in both of the Children’s speech. Id. She recommended a

change of goal to adoption, with Children remaining dependent and in CYF’s

legal and physical custody until adoption. Id. at 60. Ms. Heidler averred

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that there would be a major risk to Children’s safety if Parents were caring

for them with the assistance of Paternal Grandparents, as the four had been

the caregivers for Children, and were unaware of M.T.’s burns, fractures and

injuries prior to a physician diagnosing them. Id. at 67-68. Ms. Heidler

testified that Children were attached to their foster parents, and doing well

in their home. Id. at 59. Ms. Heidler testified that the foster parents would

be willing and able to provide an ongoing relationship between Children and

Parents. Id.

At the close of testimony, the trial court commented:

What I gather from Miss McCune’s testimony and the position of

the Agency is [--] I’m more concerned with a pattern being

established here. For example, that particular bath toy might

not have parts that can come apart or cause any kind of choking

hazard, but what about other toys that do? As I understood Miss

McCune’s testimony, the concern is having the [C]hildren do

these things, engage in these habits and this routine that maybe

present [sic] in this particular instance is not dangerous, does

not present a hazard[,] but maybe down the road it would

depending on a particular toy, depending on playing with a lawn

mower that does have a blade, does have gas and so forth.

N.T., 6/7/13, at 72-73. Finding that the CYF witnesses were credible in their

testimony that Parents are not capable of safely parenting Children, even

with the assistance of Paternal Grandparents, the trial court determined that

the Children could not be safely returned to Parents, and that their best

interests required a change in the placement goal to adoption.

Father and Mother essentially seek for this Court to re-weigh the

evidence and the credibility determinations of the trial court in order to find

that the trial court committed an abuse of its discretion. Our Supreme Court

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has explicitly directed that we may not do so. In In re R.J.T., the Supreme

Court persuasively stated:

[W]e are not in a position to make the close calls based on fact-

specific determinations. Not only are our trial judges observing

the parties during the hearing, but usually, as in this case, they

have presided over several other hearings with the same parties

and have a longitudinal understanding of the case and the best

interests of the individual child involved. Thus, we must defer to

the trial judges who see and hear the parties and can determine

the credibility to be placed on each witness and, premised

thereon, gauge the likelihood of success of the current

permanency plan. Even if an appellate court would have made a

different conclusion based on the cold record, we are not in a

position to reweigh the evidence and the credibility

determinations of the trial court.

In re R.J.T., 9 A.3d at 1190. The Supreme Court noted that, as in the

instant case, the trial court had not itemized its findings with the provisions

of section 6351(f), but had considered those factors. Id. The Supreme

Court found the trial court’s reasons for its conclusion regarding the goal for

the child in that matter to be supported by the record.

Thus, in In re R.J.T., our Supreme Court has instructed that we

cannot find an abuse of the trial court’s discretion where the record supports

the trial court’s decision that a goal change to adoption is “best suited to the

safety, protection and physical, mental and moral welfare of the child.” Id.

at 1190 (citing 42 Pa.C.S.A. § 6351(g)). Here, the record supports the

change of goal to adoption. We will not disturb the trial court’s credibility

determinations and weighing of the evidence.

With regard to the termination of parental rights, Mother and Father

collectively raise four issues:

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I. Whether the trial court erred and abused its discretion by

determining that the best interests of the child would be

served by terminating parental rights where: there is

insufficient evidence that termination would be in the best

interest of the child and there is insufficient evidence of

conduct by the parents that places the health, safety or

welfare of the child at risk.

II. Whether the trial court erred and abused its discretion in

terminating parental rights where there is not clear and

convincing evidence to indicate that: any repeated and

continued incapacity, abuse, neglect and/or refusal of the

parents has caused the child to be without essential

parental care, control or subsistence necessary for the

child’s physical and mental well-being; those alleged

conditions cannot or will not be remedied by the parents;

and that the alleged conditions continue to persist.

III. Whether the trial court erred and abused its discretion in

terminating parental rights of the above-named minor

child, C.T., where no abuse or neglect was clearly alleged

relative to the child.

IV. Whether the trial court erred and abused its discretion in

terminating parental rights of the above-named minor

child, M.T., where parents could not identify injuries that

may have occurred while the child was not under their

care.

Parents’ Brief at 6-7.

As with their goal change issues, Parents’ termination issues are

interrelated and implicate the trial court’s assessment of the sufficiency and

weight of the evidence. We therefore address the issues together.

We review appeals from the involuntary termination of parental rights

according to the following standard:

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[A]ppellate courts must apply an abuse of discretion standard

when considering a trial court’s determination of a petition for

termination of parental rights. As in dependency cases, our

standard of review requires an appellate court to accept the

findings of fact and credibility determinations of the trial court if

they are supported by the record. In re: R.J.T., 608 Pa. 9, 9

A.3d 1179, 1190 (Pa. 2010). If the factual findings are

supported, appellate courts review to determine if the trial court

made an error of law or abused its discretion. Id.; [In re]

R.I.S., [___ Pa. ___, ___, 36 A.3d 567, 572 (2011) (plurality

opinion)]. As has been often stated, an abuse of discretion does

not result merely because the reviewing court might have

reached a different conclusion. Id.; see also Samuel Bassett

v. Kia Motors America, Inc., [___ Pa. ___], 34 A.3d 1, 51 (Pa.

2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d

630, 634 (Pa. 2003). Instead, a decision may be reversed for an

abuse of discretion only upon demonstration of manifest

unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for

applying an abuse of discretion standard of review in these

cases. We observed that, unlike trial courts, appellate courts are

not equipped to make the fact-specific determinations on a cold

record, where the trial judges are observing the parties during

the relevant hearing and often presiding over numerous other

hearings regarding the child and parents. R.J.T., 608 Pa. 9, 9

A.3d at 1190. Therefore, even where the facts could support an

opposite result, as is often the case in dependency and

termination cases, an appellate court must resist the urge to

second guess the trial court and impose its own credibility

determinations and judgment; instead we must defer to the trial

judges so long as the factual findings are supported by the

record and the court’s legal conclusions are not the result of an

error of law or an abuse of discretion. In re Adoption of

Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis:

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Our case law has made clear that under Section 2511, the court

must engage in a bifurcated process prior to terminating

parental rights. Initially, the focus is on the conduct of the

parent. The party seeking termination must prove by clear and

convincing evidence that the parent’s conduct satisfies the

statutory grounds for termination delineated in Section 2511(a).

Only if the court determines that the parent’s conduct warrants

termination of his or her parental rights does the court engage in

the second part of the analysis pursuant to Section 2511(b):

determination of the needs and welfare of the child under the

standard of best interests of the child. One major aspect of the

needs and welfare analysis concerns the nature and status of the

emotional bond between parent and child, with close attention

paid to the effect on the child of permanently severing any such

bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

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

evidence that the asserted statutory grounds for seeking the termination of

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

2009). Here, the trial court terminated Mother and Father’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (8), and (b). Decrees, 3/5/14.

With regard to section (a):

§ 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:

***

(2) The repeated and continued incapacity, abuse, neglect

or refusal of the parent has caused the child to be without

essential parental care, control or subsistence necessary

for his physical or mental well-being and the conditions

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and causes of the incapacity, abuse, neglect or refusal

cannot or will not be remedied by the parent.

***

(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.A. § 2511(a)(2) and (8).

This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).

Here, the Children were removed from Mother and Father’s care on

June 22, 2012, when Mother and Father signed a Voluntary Placement

Agreement. The Children have remained in their foster/pre-adoptive

placement. Although the trial court did not enter the termination decrees

until March 5, 2014, after this Court filed its March 4, 2014 memorandum

affirming the goal change to adoption, the trial court based termination on

the evidence presented at the November 21, 2013 hearing. At the time of

the November 21, 2013 hearing, the Children had been removed from the

care of the parents, approximately 17 months had elapsed from the date of

the Children’s removal, and the conditions which led to the removal of the

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Children continued to exist, such that termination of parental rights best

served the needs and welfare of the Children. See 23 Pa.C.S.A. §

2511(a)(2) and (8).

The trial court explained:

We found that [the Agency] met its burden of providing

clear and convincing evidence that grounds for terminating the

parental rights of [Mother and Father] existed under both 23 Pa.

C.S.A. § 2511(a)(2) and (8). …

This case originated because of two (2) separate findings

of abuse relative to [M.J.T.] that occurred when she was in the

exclusive care of the paternal grandparents and/or her parents.

Neither the parents nor the paternal grandparents ever offered

any plausible explanation as to the serious injuries, nor did they

ever seem to appreciate the severe nature of such injuries. The

child abuse investigation concluded with a finding that abuse

occurred relative to the bruising and broken bones by clear and

convincing evidence as a result of a serious injury, as well as a

finding of prima facie evidence that the parents and paternal

grandparents were perpetrators of that abuse due to the fact

that they were the only individuals responsible for the welfare of

the child during the time of the injuries. (RR 4-5; 9/17/12, M.T.

Order of Adjudication, p. 4). This finding was never contested

nor appealed by the parents or paternal grandparents.

[The Agency] provided numerous services to the parents,

including parent counseling and parent education through FICS;

the Family Resource Center Parenting Program, the Parents as

Teachers Program, and Early Intervention. In addition, [F]ather

completed the Men Helping Men Program and [M]other

completed the Women Aware Program and participated in

counseling services with two different counselors. Despite all

such effort by the various service providers, there remained a

consistent and serious concern among those same service

providers relative to the parents’ ability to both identify and

adequately address safety issues. The concern over the parents’

inability to recognize and appreciate safety issues resulted in

FICS providing fully supervised visits, never being able to

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transition to even a level of being “loosely supervised”, much

less unsupervised visits.

We are fully satisfied that [the Agency] provided a

reasonable and good faith effort to reunify these children with

their parents. As determined by Dr. Morford, these parents have

an approximate intellectual capacity of a 9 year old ([Father])

and a 14 year old ([Mother]) respectively. This borderline

mental capacity prevents them from making progress toward

providing a safe environment for their children. This court

believes it to be appropriate to place the children’s needs for

safety and permanency ahead of a parent’s fundamental right to

parent a child if they lack the capacity to do so in a safe,

effective and consistent manner.

… These children have been removed from the care of their

parents, initially by a voluntary agreement with the Agency.

Well more than twelve (12) months or more has elapsed from

the date of such removal and placement and the conditions

which led to the removal or placement of the children continue

to exist. In fact, at the time of the TPR proceeding, the children

had been in placement for seventeen (17) months. As stated

above, we are fully satisfied that a termination of parental rights

is in the best interest of each child.

Trial Court Opinion, 7/22/14, at 12-13.

The record supports the trial court’s reasoning. CYF Caseworker Nikki

Heidler testified to being the Parents’ caseworker since July of 2012. N.T.,

11/21/13, at 3. She confirmed that the Children had been in placement for

seventeen (17) months, and had been in the same foster/pre-adoptive

placement since June of 2012. Id. Ms. Heidler testified that Parents visited

the Children “one time a month” for “an hour and a half fully supervised at

Children and Youth.” Id. at 11. She explained, “In addition to receiving the

FICS services, [Parents] were receiving Parents as Teachers which they had

sought out on their own when the children came into placement. They were

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also receiving Early Intervention for [Father] that was helping with parenting

skills and helping them to help him develop.” Id. at 22. Nonetheless, Ms.

Heidler advocated for termination, and explained in detail and unequivocally:

The children have been in placement for over twelve

months. They have actually been in the same foster home for

seventeen months now. … There still remain unremedied issues

of incapacity, abuse, neglect by the parents. The injuries that

[M.J.T.] suffered were found to be abuse by prima facie

evidence. Those are still unexplained. However, the parents

have consistently reported to the Agency and to service

providers that they or the grandparents were the only people

that could have been caregivers for the children at that time.

The parents have not provided any information or documentation

that they have been addressing their intellectual or functioning

limitations. Those were observed and testified to by [Ms.

McCune from Family Intervention Crisis Services]. They were

also reported by [Dr.] Marilyn Morford. [Dr.] Morford also noted

that in her report that Mom is functioning at the level of a

fourteen year old and Dad is functioning at the level of a nine

year old. Both parents have difficulty understanding the safety

and developmental needs of the children. They have never

alleviated the safety concerns in the past or to proceed

past supervised visitation. When they were visiting with

FICS, they have never made the step to the point where

they could be unsupervised because of safety concerns in

those visits. In fact, in the last month that FICS was

providing services, [Parents] had regressed and there

were numerous issues that had to be addressed by FICS

during the visitations.

***

There has been no remedy to the circumstances that led to

the placement regarding the injuries to [M.J.T.] or to the lack of

supervision of the children.

N.T., 11/21/13, at 13-14 (emphasis supplied).

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Given the foregoing, we find the statutory grounds for termination

under 23 Pa.C.S.A. § 2511(a)(2) and (8) are supported by clear and

convincing evidence of record. In re R.N.J., supra.

With regard to 23 Pa.C.S.A. § 2511(b), the statute provides:

(b) Other considerations.--The court in terminating

the rights of a parent shall give primary consideration to

the developmental, physical and emotional needs and

welfare of the child. The rights of a parent shall not be

terminated solely on the basis of environmental factors

such as inadequate housing, furnishings, income, clothing

and medical care if found to be beyond the control of the

parent. With respect to any petition filed pursuant to

subsection (a)(1), (6) or (8), the court shall not consider

any efforts by the parent to remedy the conditions

described therein which are first initiated subsequent to

the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511 (b).

The focus in terminating parental rights under section 2511(a) is on

the parent, but the focus turns to the children under section 2511(b). In re

Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).

Under section 2511(b), we examine whether termination of parental rights

would best serve the developmental, physical, and emotional needs and

welfare of the child. In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super.

2005). “Intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.” Id. at 1287

(citation omitted).

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With regard to the needs and welfare analysis, the trial court in this

case observed:

It is also our belief that the record established by clear and

convincing evidence, after taking into consideration the

developmental, physical and emotional needs and welfare of the

subject children, that the termination of the parental rights of

[Mother] and [Father] would best serve the needs and welfare of

the children. It is interesting to note that the parents continue

to argue that they need more time and additional services to

effectuate reunification with their children. Despite the various

services put into effect, the parents have demonstrated an

inability to consistently provide a safe and secure environment

for their children. The children are thriving in their foster home

setting; they refer to their foster parents as “mom” and “dad”;

the foster parents have met all of their needs; and these

children, especially considering their young age, are entitled to

permanency and a safe and stable living environment. The

record also supports that the children have formed a loving and

secure bond with their [foster parents, who are also] their

adoptive resource.

Trial Court Opinion, 7/22/14, at 13.

Again, the record supports the determination of the trial court. For

example, the CYF caseworker, Ms. Heidler, testified that the Children are

“developing very well” and are “very bonded” with their pre-adoptive foster

parents, as well as one another. N.T., 11/21/13, at 4. She explained that

the pre-adoptive foster parents have been meeting the children’s needs and

the children “are thriving and growing and developing in the adoptive

home.” Id. at 14-15. With regard to the parental bond, Ms. Heidler

expressed:

The relationship between the parents, with the children, …

During those visits it appears to be more of a play date. They do

seek out the parents … to meet their needs during that visitation

when they need to go to the bathroom or if they need more food

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or something. However, those visits are frequently a lot of play

time, which it’s a play room. They’re little children. It’s

understandable for the circumstances. Whereas, in my

observations with [the pre-adoptive foster parents], are that

they’re more of a parental figure to the children than the parents

are.

Id. at 18-19.

The above evidence supports the trial court’s consideration of the

developmental, physical, and emotional needs and welfare of the Children in

determining that the Parents’ rights should be terminated pursuant to

section 2511(b). In re C.M.S. supra.

For the foregoing reasons, we affirm the trial court with respect to

both the dependent Children’s permanency placement goal change to

adoption, and the termination of Mother and Father’s parental rights.

Orders affirmed. Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/8/2014

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