In The Interest of: T.W., a Minor

J-S10001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

: PENNSYLVANIA

:

:

APPEAL OF: A.W., FATHER : No. 2113 EDA 2015

Appeal from the Order Entered June 17, 2015

In the Court of Common Pleas of Monroe County

Domestic Relations at No(s): CP-45-DP-0000064-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 26, 2016

Appellant, A.W. (“Father”), appeals from the order entered in the

Monroe County Court of Common Pleas, which involuntarily terminated his

parental rights to minor child, T.W. We affirm.

In its written opinion, the trial court fully sets forth the relevant facts

and procedural history of this case.1 Therefore, we will only briefly

summarize them. Mother and Father have had a volatile relationship since

before T.W. was born in 2012. The Monroe County Children and Youth

Services (“CYS”) became involved in this case on June 30, 2012, upon

learning that T.W. had been injured when Father threw her, in her car seat,

out of a vehicle during an argument with Mother. T.W. was placed in CYS’

custody on July 1, 2012, because Mother and Father were both incarcerated;

T.W. has been in foster care since that time. The court adjudicated T.W.

1

(See Trial Court Opinion, filed April 11, 2014, at 1-14) (Permanency/goal

change appeal).

_____________________________

*Retired Senior Judge assigned to the Superior Court.

J-S10001-16

dependent on August 3, 2012, with an initial permanency goal of

reunification. Following several review hearings, the court changed the

permanency goal to adoption on January 24, 2014. Mother filed an appeal

from that order, which this Court affirmed on August 22, 2014. See In re

T.W., 106 A.3d 172 (Pa.Super. 2014) (unpublished memorandum).

Meanwhile, on December 3, 2013, CYS filed a petition for involuntary

termination of the parental rights of Mother and Father. The court

conducted multiple hearings on the termination petition throughout 2014

and 2015. On June 12, 2015, the court terminated Mother’s and Father’s

parental rights to T.W.2 Father timely filed on July 10, 2015, a pro se notice

of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i). The court did not consider Father’s

appeal and Rule 1925(a) statement, as he was represented by counsel.

Thereafter, counsel filed an amended notice of appeal and a Rule

1925(a)(2)(i) statement on July 17, 2015. Father also filed a pro se motion

requesting a new hearing based on ineffective assistance of counsel, which

the court dismissed. Father’s counsel subsequently filed a petition to

withdraw. The court granted counsel’s petition and appointed new counsel

to assist Father on appeal.

Father raises the following issues for our review:

WHERE FATHER IMMEDIATELY UNDERTOOK HIS FAMILY

2

Mother filed a separate appeal from the order terminating her parental

rights, which is docketed at No. 2188 EDA 2015 (J-S10002-16).

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SERVICE PLAN OBJECTIVES, VISITED THE CHILD

CONSISTENTLY, AND REFRAINED FROM DOMESTIC

DISPUTES, DID THE TRIAL COURT ERR IN ITS FINDING

THAT [CYS] PRESENTED CLEAR AND CONVINCING

EVIDENCE THAT FATHER FAILED TO PERFORM PARENTAL

DUTIES FOR A PERIOD OF MORE THAN SIX MONTHS?

WHERE CHILD WAS PLACED BECAUSE OF MOTHER’S

ALLEGATIONS OF ABUSE OF THE CHILD DURING A

DOMESTIC DISPUTE, MOTHER WAS CONVICTED OF FILING

A FALSE POLICE REPORT, FATHER WAS CLEARED OF

CHARGES, AND FATHER REFRAINED FROM INVOLVEMENT

IN DOMESTIC DISPUTES, DID THE TRIAL COURT ERR IN

ITS FINDING THAT [CYS] PRESENTED CLEAR AND

CONVINCING EVIDENCE THAT FATHER FAILED TO REMEDY

THE CONDITIONS AND CAUSES OF THE ALLEGED ABUSE,

AND REMOVAL OF THE CHILD?

WHERE FATHER COMPLETED THE COUNSELING,

PARENTING AND ANGER MANAGEMENT CLASSES IN THE

FAMILY SERVICE PLAN, HAD TAKEN ADDITIONAL CLASSES

ON HIS OWN, SEPARATED FROM MOTHER AND

REFRAINED FROM DOMESTIC DISPUTES, DID THE TRIAL

COURT ERR IN ITS FINDING THAT [CYS] PRESENTED

CLEAR AND CONVINCING EVIDENCE THAT TERMINATION

WAS IN THE BEST INTEREST OF THE CHILD?

WHERE [CYS’] WITNESS TESTIFIED TO A SIGNIFICANT

BOND BETWEEN FATHER AND CHILD, FATHER TOOK

STEPS TO MINIMIZE END-OF-VISIT TRAUMA TO THE

CHILD, AND THE TRIAL COURT INSTEAD FOCUSED ON

THE CHILD’S BOND WITH HER FOSTER PARENTS, DID THE

TRIAL COURT ERR IN FINDING THAT TERMINATION OF

FATHER’S RIGHTS BEST SERVED THE NEEDS AND

WELFARE OF THE CHILD?

WHERE FATHER REFRAINED FROM INVOLVEMENT IN

INCIDENTS OF DOMESTIC ABUSE AND CONTINUED TO

COMPLY WITH THE FAMILY SERVICE PLAN, SEVERAL

MONTHS PRIOR TO THE FILING OF THE FIRST

TERMINATION PETITION, DID THE TRIAL COURT ERR IN

CHARACTERIZING THESE EFFORTS AS “POST-PETITION”?

DID THE TRIAL COURT ERR WHERE ITS FINDINGS OF

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FACT WERE NOT SUPPORTED BY CLEAR AND CONVINCING

EVIDENCE?

DID THE TRIAL COURT ERR IN FAILING TO DETERMINE

THAT FATHER WAS REPRESENTED BY INEFFECTIVE

COUNSEL, WHERE FATHER WAS PREJUDICED BY

COUNSEL’S NUMEROUS ERRORS, INCLUDING FAILURE TO

ADEQUATELY INVESTIGATE THE ASSERTIONS MADE BY

CYS, AND GATHERING EVIDENCE WHICH COULD REBUFF

THOSE ASSERTIONS?

(Father’s Brief at 3-4).

Appellate review in termination of parental rights cases implicates the

following principles:

In cases involving termination of parental rights: “our

standard of review is limited to determining whether the

order of the trial court is supported by competent

evidence, and whether the trial court gave adequate

consideration to the effect of such a decree on the welfare

of the child.”

In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972

A.2d 5, 8 (Pa.Super. 2009)).

Absent an abuse of discretion, an error of law, or

insufficient evidentiary support for the trial court’s

decision, the decree must stand. … We must

employ a broad, comprehensive review of the record

in order to determine whether the trial court’s

decision is supported by competent evidence.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en

banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)

(internal citations omitted).

Furthermore, we note that the trial court, as the

finder of fact, is the sole determiner of the credibility

of witnesses and all conflicts in testimony are to be

resolved by [the] finder of fact. The burden of proof

is on the party seeking termination to establish by

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clear and convincing evidence the existence of

grounds for doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.

2002) (internal citations and quotation marks omitted).

The standard of clear and convincing evidence means

testimony that is so clear, direct, weighty, and convincing

as to enable the trier of fact to come to a clear conviction,

without hesitation, of the truth of the precise facts in issue.

In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We

may uphold a termination decision if any proper basis

exists for the result reached. In re C.S., 761 A.2d 1197,

1201 (Pa.Super. 2000) (en banc). If the court’s findings

are supported by competent evidence, we must affirm the

court’s decision, even if the record could support an

opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]

(Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d

1165 (2008)).

CYS sought involuntary termination of Father’s parental rights on the

following grounds:

§ 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:

(1) The parent by conduct continuing for a period of

at least six months immediately preceding the filing

of the petition either has evidenced a settled purpose

of relinquishing parental claim to a child or has

refused or failed to perform parental duties.

(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 [her] physical or mental

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well-being and the conditions and causes of the

incapacity, abuse, neglect or refusal cannot or will

not be remedied by the parent.

* * *

(5) The child has been removed from the care of the

parent by the court or under a voluntary agreement

with an agency for a period of at least six months,

the conditions which led to the removal or placement

of the child continue to exist, the parent cannot or

will not remedy those conditions within a reasonable

period of time, the services or assistance reasonably

available to the parent are not likely to remedy the

conditions which led to the removal or placement of

the child within a reasonable period of time and

termination of the parental rights would best serve

the needs and welfare of the child.

* * *

(8) The child has been removed from the care of the

parent by the court or under a voluntary agreement

with an agency, 12 months or more have elapsed

from the date of removal or placement, the

conditions which led to the removal or placement of

the child continue to exist and termination of

parental rights would best serve the needs and

welfare of the child.

* * *

(b) Other considerations.―The court in terminating

the rights of a parent shall give primary consideration to

the developmental, physical and emotional needs and

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

terminated solely on the basis of environmental factors

such as inadequate housing, furnishings, income, clothing

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

parent. With respect to any petition filed pursuant to

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

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23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).

“Parental rights may be involuntarily terminated where any one

subsection of Section 2511(a) is satisfied, along with consideration of the

subsection 2511(b) provisions.” In re Z.P., supra at 1117.

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…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.

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

Termination under Section 2511(a)(1) involves the following:

To satisfy the requirements of [S]ection 2511(a)(1), the

moving party must produce clear and convincing evidence

of conduct, sustained for at least the six months prior to

the filing of the termination petition, which reveals a

settled intent to relinquish parental claim to a child or a

refusal or failure to perform parental duties. In addition,

Section 2511 does not require that the parent

demonstrate both a settled purpose of relinquishing

parental claim to a child and refusal or failure to

perform parental duties. Accordingly, parental rights

may be terminated pursuant to Section 2511(a)(1) if

the parent either demonstrates a settled purpose of

relinquishing parental claim to a child or fails to

perform parental duties.

Once the evidence establishes a failure to perform parental

duties or a settled purpose of relinquishing parental rights,

the court must engage in three lines of inquiry: (1) the

parent’s explanation for his…conduct; (2) the post-

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abandonment contact between parent and child; and (3)

consideration of the effect of termination of parental rights

on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted). Regarding the six-month period prior to filing the termination

petition:

[T]he trial court must consider the whole history of a given

case and not mechanically apply the six-month statutory

provision. The court must examine the individual

circumstances of each case and consider all explanations

offered by the parent facing termination of his…parental

rights, to determine if the evidence, in light of the totality

of the circumstances, clearly warrants the involuntary

termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005).

The grounds for termination of parental rights under Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary, those grounds may

include acts of refusal as well as incapacity to perform parental duties. In

re A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.” Id. at 340. The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

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incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).

“Termination of parental rights under Section 2511(a)(5) requires

that: (1) the child has been removed from parental care for at least six

months; (2) the conditions which led to removal and placement of the child

continue to exist; and (3) termination of parental rights would best serve the

needs and welfare of the child.” In re Z.P., supra at 1118.

“[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) the child has been removed from

parental care for [twelve] months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to

exist; and (3) termination of parental rights would best serve the needs and

welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76

(Pa.Super. 2003).

Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

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paying close attention to the effect on the child of permanently severing the

bond.” Id. at 520. Significantly:

In this context, the court must take into account whether a

bond exists between child and parent, and whether

termination would destroy an existing, necessary and

beneficial relationship. When conducting a bonding

analysis, the court is not required to use expert testimony.

Social workers and caseworkers can offer evaluations as

well. Additionally, Section 2511(b) does not require a

formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

“The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his parental rights terminated.” In re B.L.L., 787

A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental duties.

Parental duty is best understood in relation to the needs of

a child. A child needs love, protection, guidance, and

support. These needs, physical and emotional, cannot be

met by a merely passive interest in the development of the

child. Thus, this court has held that the parental obligation

is a positive duty which requires affirmative performance.

This affirmative duty encompasses more than a financial

obligation; it requires continuing interest in the child and a

genuine effort to maintain communication and association

with the child.

Because a child needs more than a benefactor, parental

duty requires that a parent exert [himself] to take and

maintain a place of importance in the child’s life.

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Parental duty requires that the parent act affirmatively

with good faith interest and effort, and not yield to every

problem, in order to maintain the parent-child relationship

to the best of his…ability, even in difficult circumstances.

A parent must utilize all available resources to preserve

the parental relationship, and must exercise reasonable

firmness in resisting obstacles placed in the path of

maintaining the parent-child relationship. Parental rights

are not preserved by waiting for a more suitable or

convenient time to perform one’s parental responsibilities

while others provide the child with [the child’s] physical

and emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of his…child is converted,

upon the failure to fulfill his…parental duties, to the child’s right to have

proper parenting and fulfillment of his…potential in a permanent, healthy,

safe environment.” Id. at 856.

Importantly, neither Section 2511(a) nor Section 2511(b) requires a

court to consider at the termination stage, whether an agency provided a

parent with reasonable efforts aimed at reunifying the parent with his child

prior to the agency petitioning for termination of parental rights. In re

D.C.D., ___ Pa.___, 105 A.3d 662, 672 (2014). An agency’s failure to

provide reasonable efforts to a parent does not prohibit the court from

granting a petition to terminate parental rights under Section 2511. Id. at

___, 105 A.3d at 675.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned oral opinion of the Honorable Jonathan

Mark, we conclude Father’s issues one through six merit no relief. The trial

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court’s oral opinion comprehensively discusses and properly disposes of

these questions presented. (See N.T. Oral Opinion, 6/12/15, at 10-42 and

attached addendum) (finding: at time of termination hearing, T.W. had been

in CYS’ care for approximately 33 months; Mother and Father had volatile

relationship that included criminal charges, protections from abuse (“PFA”),

and domestic issues; underlying issues between Mother and Father have not

been resolved; T.W.’s safety, health and well-being are paramount concerns

and must be ensured; neither Mother nor Father has demonstrated current

ability to provide requisite assurance of T.W.’s safety; Father consistently

fought with CYS over visitations, regarding protocol and confirming

appointments; throughout entire case, Father failed to adhere to court’s

advisements; under Section 2511(a)(1), Mother and Father made progress

towards some of goals but failed to take necessary steps toward

reunification with T.W.; Mother and Father failed to perform parental duties

for more than six months, as both parents were incarcerated and spent

majority of time fighting with each other; CYS met statutory grounds for

termination under subsection (a)(1); Mother and Father refused to provide

essential parental care, control, and assistance to T.W.; CYS established

grounds for termination under Section 2511(a)(2); grounds for termination

also existed under Section 2511(a)(8), because T.W. had been removed

from Mother and Father’s care for at least twelve months, condition that led

to T.W.’s removal still exists, and termination of Mother and Father’s

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parental rights best serves needs and welfare of T.W.; court properly

considered Mother’s and Father’s post-petition efforts as grounds for

termination because termination petition was filed in December 2013, and

first termination hearing was not held until one year later; reunification

efforts are not valid consideration under subsections (a)(1), (a)(2), and

(a)(8); T.W.’s foster family provided love, care, companionship and support

that Section 2511(b) requires, while Mother and Father were busy filing

criminal charges and PFAs against each other and exhibiting pathological

codependency; T.W. has strong bond with foster family and severing that

bond would be detrimental to her; T.W. has not developed any traditional

bond with Mother and Father, as she spent her first several months in

hospital and has had only supervised visits with parents for most of her life;

only bond T.W. has with Mother and Father is biological; severing T.W.’s

bond with Mother and Father pales in comparison to severing bond with

foster parents, who wish to adopt T.W.; safety concerns also exist with

Mother’s and Father’s care of T.W.; CYS established grounds for termination

under subsection (b); current placement goal of adoption remains

appropriate and necessary). The record supports the court’s decision;

therefore, we have no reason to disturb it. Accordingly, we affirm as to

Father’s issues one through six on the basis of the court’s oral opinion issued

at the termination proceeding.

In his final claim, Father argues trial counsel was ineffective

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throughout the proceedings, which severely prejudiced Father. Specifically,

Father asserts trial counsel failed to object to hearsay testimony regarding a

videotape that was not introduced at the hearing. Father insists this

example is only one of “many” instances where incompetent evidence made

its way into the record because counsel failed to raise a proper objection at

the time. Father concludes the court used this evidence to determine CYS

had met its clear and convincing burden, and he is entitled to a new hearing.

We disagree.

“Pennsylvania statutes do not require counsel in termination

proceedings, although Pennsylvania case law does…and flowing from this it

is presumed that counsel would and should be effective.” In re Adoption

of T.M.F., 573 A.2d 1035, 1040 (Pa.Super. 1990) (en banc), appeal denied,

527 Pa. 634, 592 A.2d 1301 (1990). This Court evaluates ineffectiveness

allegations in termination proceedings as follows:

In the context of a termination proceeding, the best

approach…is the fundamental fairness doctrine whereby, in

the exercise of its broad scope of review, an allegation of

ineffectiveness of counsel on appeal would result in a

review by this Court of the total record with a

determination to be made whether on the whole, the

parties received a fair hearing, the proof supports the

decree by the standard of clear and convincing evidence,

and upon review of counsel’s alleged ineffectiveness, any

failure of his stewardship was the cause of a decree of

termination. Mere assertion of ineffectiveness of counsel is

not the basis of a remand or rehearing, and despite a

finding of ineffectiveness on one or more aspects of the

case, if the result would unlikely have been different

despite a more perfect stewardship, the decree must

stand.

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Id. at 1044. Thus, the “fundamentally fair hearing” right to effective

assistance of counsel in civil termination cases is more limited than the right

to effective assistance of counsel in criminal cases. In re J.T., 983 A.2d

771, 775 (Pa.Super. 2009). If competent evidence of record supports the

termination decree, it should stand. Id.

A party alleging ineffectiveness in termination matters must

“demonstrate such ineffectiveness so undermined the truth determining

process that no reliable adjudication…could have been made.” Matter of

J.P., 573 A.2d 1057, 1066 (Pa.Super. 1990) (en banc). Additionally, the

party alleging ineffective assistance of counsel in this context “must show by

clear and convincing evidence that it is more likely than not that the result

would have been different, absent the ineffectiveness.” In re K.D., 871

A.2d 823, 827 (Pa.Super. 2005), appeal denied, 586 Pa. 713, 889 A.2d 1216

(2005).

Instantly, Father did not adequately develop his claim regarding

counsel’s ineffectiveness. Nevertheless, even if properly articulated, Father

cannot demonstrate that, absent the alleged ineffectiveness, the outcome of

the termination proceedings would have been different. See id. Competent

evidence of record supported the termination of Father’s parental rights.

See In re J.T., supra. Thus, Father’s ineffectiveness claim merits no relief.

Accordingly, we affirm the court’s order terminating Father’s parental rights.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/26/2016

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Circulated 02/18/2016 11:32 AM

)~· . COURT OF COMMON PLEAS OF MONROE COUNTY

' FORTY-THIRD JUDICIAL DISTRICT

COMMONWEALTH OF PENNSYLVANIA

IN THE INTEREST OF: NO. 64 DP 2012

NO. 48 OCA 2013

T. w.,

A Minor HEARING

TRANSCRIPT OF PROCEEDINGS

BEFORE: Jonathan Mark, Judge

DATE: June 12, 2015

9:30 a.m.

PLACE: Courtroom No. 1

.i.i ••·.·,·.0.:.~_;·_.·

Monroe County Courthouse

-:/' ..

~ Stroudsburg, Pennsylvania

APPEARANCES:

ELIZABETH BENSINGER WEEKES, ESQUIRE

529 Sarah Street

Stroudsburg, Pennsylvania 18360

-- Solicitor

DONALD M. LEETH, ESQUIRE

818 Ann St:i:;eet

Stroudsburg, Pennsylvania 18360

On behalf of Mother

ERIC L. HAMILL, ESQUIRE

501 Broad Street, Suite #3

Milford, Pennsylvania 18337

-- On behalf of Father

•·,..::

===================================================== ~

Proceedings stenographically recorded by .,.~ .

Yvestre M. Torres, OCR ~ ~

ADDENDUM

ATTACHED TO THE TRANSCRIPT:

1. OPINION IN SUPPORT OF ORDER PURSUANT To Pa. R.A.P.

1925 (a)

2. ADDENDUM TO ANNOUNCEMENT HEARING

3. NON-PRECEDENTIAL DECISION

! i

3

1 P R O C.E ED ING s

2 THE COURT: Good morning, everybody.

3 MS. WEEKES: Good morning, Your Honor.

4 MR. HAMILL: Good morning, Your Honor.

5 THE COURT: We are here now as scheduled to

6 announce a decision in both of the cases involving

7 Time Warner, the dependent in this case, and the

8 termination of parental rights case.

9 This case has been around for a while, so

10 I'm going to take a little bit of time to make sure

11 that I try to be as clear as possible. We will get

12 to this in more detail later, but the last hearing in

13 this case was at the end of April, and the parties

14 were given, I think, three or four weeks, whatever it

15 was, to file some briefs, some memoranda, and

16 post-submmission filing.

17 Then even though this was a case involving a

18 child, this is a highly-contested, long-running

19 dependency case, relatively long-running termination

20 of parental rights case, and so the Court wanted to

21 take a little bit of time to look at some of the

22 legal issues and the facts before making a decision.

23 That coupled with the Court's schedule,

24 including federal trials and other matters and

I

I

j

25 personal matters, made it so that the extra month

Pursuant to 4S J.D.R.C.P. Rule 260c "No transcript shall be fumished to • pel'ly until ell expenau of tr11nsctlption ,re paid.

Any reproduction of 11n official transcript without prior court approval I• prohibited.•

4

1 from the time the briefs were in until now elapse.

2 So today I will announce both decisions.

3 Orders will be issued today or tomorrow, at the

4 latest, depending on whether the computer system is

5 cooperating with us or not.

6 At the last hearing, this case was at the

7 end of April. The evidence was concluded. I do not

8 anticipate taking any evidence today or hearing any

9 argument today. I will note that the parents are

10 here with their respective attorneys. So Father is

11 here, I guess, with one of his two attorneys. Right,

12 Mr. Hamill?

13 MR. HAMILL: Correct.

14 THE COURT: His second attorney, I guess, is

15 not here, but I'm not sure if we really need two for

16 this. I believe the guardian ad litem is also not

17 present. I know that the guardian is on vacation,

18 and because it was we tried to schedule this, I

19 didn't know if she was going to have someone else sit

20 here to listen. But I know she was interested in

21 hearing -- according to what was provided to my

22 office -- the outcome, and, of course, a transcript,

23 if necessary. But everybody else is here. The

24 agency is here, represented by several people,

25 including a couple of supervisors.

Pursuant to 43 J.D.R.C.P. Rule 2/IOc "No trenscrlpt shall be furnished to • party uni/I all expenses of transcription are paid.

Any reproduction of an oH/cial tnmscr/pl wllhout prior court approval is prohibited,•

5

1 Now, after the last hearing, I believe I

2 indicated the parties were going to need to file

3 memoranda and post-submission filings. Mother,

4 Father and Monroe County Children and Youth Services

5 -- who for the rest of this announcement, unless I

6 slip, I will refer to as the agency -- filed briefs.

7 Father and the agency included in their submission

8 some findings of fact.

9 In addition, Father submitted, by praecipe,

10 an additional·document, which I assume he was wanting

11 to make of record as part of the evidentiary record,

12 and that was, I believe, a magisterial district

13 judge's order for document -- at least some kind of

14 document indication that a case that has been filed

15 against him, and had been mentioned during

16 termination hearing, had been dismissed, and that is

17 in the file. I don't know if it was distributed to

18 other parties or not, but it is in the file.

19 The Defendant in the matter in this case --

20 the Defendant in this case, I should say, has an open

21 -- has been opened in the records of Monroe County

22 Children and Youth Services since June 30, 2012, and

23 this Court shortly thereafter. It is, as indicated,

24 a much litigated, highly-contested case and has been

25 all along.

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Any reproduction of an official transcript without prior court approval ls prohibited.•

6

1 In early 2014, an order was issued that

2 changed the goal from reunification to adoption with

3 a concurrent goal of reunification. And at that

4 point, Mother appealed. In response to the appeal,

5 several things were filed of record. One of which

6 was I issued an opinion on April 11, 2014, which I

7 will from this point on hopefully remember to refer

8 to as the appeal petition.

9 Then on August 22, 2014, the Superior Court

10 issued a memorandum opinion affirming the goal change

11 order and permanency review order. And both opinions

12 are in the record and filed in this matter, both here

13 and Superior Court, and I know all the attorneys, and

14 hopefully the parties, have copies as well.

15 I am going to right now, so that we

16 understand, incorporate both opinions into this

17 announcement by reference. At the end of this

18 announcement, I will, as indicated, issue the orders

19 to make the findings that are required. However, I

20 will be doing this orally today so that no more time

21 needs to go by. And I will, therefore, have an

22 opinion.

23 So what I have done is I have prepared an

24 addendum that will be attached to the transcript, if

25 anyone orders a transcript or if there is an appeal,

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Any reproduction of an offlcla/ transcrtpt without prior court approve/ /a prohibited."

7

1 as I anticipate there will be regardless of the

2 outcome, either by one or both of the parents or the

3 agency.

4 The addendum that I am about to hand out to

5 you now will be attached to the transcript, and will

6 be given to the court reporter to keep with the

7 records of this case. So if counsel will want to

8 approach, I will give you the addendum. There you

9 go. We will have the extra one for the guardian.

10 We1ll make sure that we leave one for Ms. Cerate.

11 In any event, the addendum is not in the

12 form of an opinion but procedural and factual

13 history. The addendum is the law that I had applied

14 to both the termination of parental rights

15 proceeding, and the decision you'll hear in that

16 case. And it also references the standards and law

17 that I applied in the permanency review hearing and

18 issued a permanency review order.

19 Because I do anticipate that there will be

20 an appeal regardless of the outcome today filed by at

21 least some party, it also references the appellant

22 standard of review, which was listed and summarized

23 in detail in the appeal petition previously filed.

24 For convenience and ease of reference, I am

\

25 also going to include the prior opinions -- both my

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Any reproduction of an official tranitcrlpt without prior court approval Is prohibited.•

8

1 appeal opinion and the Superior Court's opinion -- as

2 addenda to any transcript, and we will get those to

3 the court reporter.

4 Instead of giving a draft out of the Court's

5 -- my chambers• computer system, we will include a

6 copy that is time stamped in the file in the records

7 of this case.

8 The factual and procedural history of the

9 dependency case and the early portion of the

10 termination of parental rights case were captured in

11 the prior opinion, and so I am not going to repeat

12 them in detail here.

13 In addition, the agency and Father have

14 submitted findings of fact. With respect to the

15 agency's findings of fact, I affirm but I do not

16 adopt findings 1 through 12 and believe that they are

17 supported by competent evidence in the record.

18 I said I wasn't going to recount the history

19 in detail or in full, but my remarks today do need to

20 be put in context, so a very quick summary, again,

21 incorporating everything that was composed in the

22 long opinion -- appeal opinion that was written and

23 the Superior Court's opinion. I will just note

24 quickly the following:

·-

25 r. W. was born jn 2012, and she is

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9

1 now three years old. She was premature, and had to

2 stay in the hospital for an extended period after her

3 birth as a result of a heart condition that was

4 required to be monitored. For still unexplained

5 reasons, neither parent mentioned that when T. W. came

6 into care.

7 T.w. first came to the attention of the

8 agency on June 30th of 2012, and the referral, which

9 we have discussed and has been documented many times,

10 was that from Mother. She had accused Father of

11 taking TW. out of the family van and throwing her in

12 the car seat from the van on the road whereT w. was

13 injured.

14 -,. w. was taken to Pocono Medical Center and

15 then to a regional facility for evaluation and

16 workup. As I have detailed in the appeal petition,

17 despite the parents' protestation to the contrary,

18 injuries were observed and reported by medical

19 personnel from both hospitals, although luckily not

20 as severe -- the injury was not as severe as first

21 thought by doctors at Pocono Medical Center.

22 There were both old and new injuries that

23 were ultimately identified. Significantly, the

24 injuries are still, for the most part, unexplained by

25 the parents. While there have been some suggestions,

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10

1 some innuendo, some guesses, and some information

2 that could possibly be an explanation, some of which

3 was confirmed by one parent or another, all of those

4 details are in the prior opinion. As we sit here

5 today, there still really is no specific explanation

6 for all the injuries, old and new, that were

7 observed.

8 -r.w.: came into care -- not exactly as the

9 parties have characterized in their filing, some of

10 which were cursory, although Mother's were much more

11 detailed than others -- but because after Mother had

12 accused Father of throwing .T.w.

I

and injuring her,

13 Father was arrested and then jailed.

14 Mother, who was not honest about her

15 criminal history, had a warrant out for her arrest.

16 And when Mother was arrested on the outstanding

17 warrant from another state is when T. W. came into

18 care. That was July 1, 2012, just shy of three years

19 ago from today. She has been in care continuously in

20 the same pre-adopt foster home ever since.

21 To measure the time frame by traditional

22 benchmarks, : T W.. : has been in care for the following

23 length of time: First, she has been in care 17

24 months as of the date the termination of parental

25 rights petition was filed in this matter.

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11

1 She was in care 21 months as of the date the

2 goal in this case was changed. And she has been in

3 care for 23 months as of the time Mother filed the

4 appeal in the dependency case. As of the final

5 termination of parental rights hearing, -r w. has been

6 in care for 33 months, add another month or two for

7 briefs and the time the Court needed to put this

8 announcement together, and she is, as noted, almost

9 three years in care.

10 Again, you know, I have detailed the

11 background and the reasons why she came into care and

12 the reasons why as of the date the appeal petition

13 was filed, she remained in care, but really have to

14 recount something so that the decision today do read

15· correctly in context.

16 So I am going to reference two things that,

17 I think, are relatively undisputed, and I am just

18 going to quote or paraphrase some of the passages, if

19 you will, from the appeal petition. So, first, this

20 is a case where the parents had historically a very

21 volatile relationship, and that's kind of putting it

22 mildly, both before and afterT".W· was born, and both

23 before and after i-.w. came into care.

24 All that was detailed in the opinion. But

25 the time from the shelter care hearing through the

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12

1 time when Mother took the appeal, was really marked

2 with criminal, protection from abuse, other filings

3 back and forth between the parties, neither party

4 really being honest and upfront about the domestic

5 filing and issues between them or their relationship.

6 It was also marked with Mother admitting, or

7 at least saying to authorities, that she lied about

8 Father throwing·-.. w.J which resulted in charges

9 against Mother, or at least amended charges, for

10 which she ultimately pled guilty, and the list goes

11 on and on.

12 So, in the opinion that I wrote -- the

13 appeal opinion -- the following passages appear on

14 pages 18 and 19: The reasons why we changed the goal

15 to adoption, with a concurrent goal of reunification

16 are presaged by and captured in our recitation of the

17 facts of this case.

18 In a nutshell -- and I am going to use her

19 name because I used initials in the opinion -- 'T.W·

• J

20 while still a premature and fragile infant, was

21 dropped, injured, and by both parents' account of the

22 incident, the subject of a roadside tug-of-war

23 between Mother and Father.

24 The underlying problem that caused ;-Y-W., to

25 be put in peril and injured is the well-documented,

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13

1 deep-seated history of violence between Mother and

2 Father that is embedded in their relationship and

3 presents a danger to others, especially T, W·

4 Despite anger management classes, parenting

5 classes, services from the agency, counseling

6 received from a clinician, a minister and a pregnancy

7 crisis group of her own choosing, as well as

8 involvement in the criminal justice system and PFA

9 court, Mother has to date been unable to extricate

10 herself from her relationship with Father, protect

11 herself from Father, restrain her own violent and

12 abusive tendencies, stop the alternating pattern of

13 being a victim and then a perpetrator of abuse, or

14 stop her pathological lying.

15 In fact, based on the evidence, Mother and

16 Father's history, and the courtroom demeanor of both

17 parents, we firmly believe the parties are together

18 and not, as Mom testified, estranged. Simply put,

19 Mother has not demonstrated necessary protective

20 capacities, and the reasons that caused T.W. to come

21 into care have not, despite Mother's protestations to

22 the contrary, been alleviated.

23 Continued on page 20: Under the settled law

24 summarized in the appeal opinion, the applicable

25 standard is the best interests of the child. Under

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14

1 equally well-established law, ;T.W.~ safety,

2 permanency and well-being are paramount, and these

3 considerations trump either parents' needs, desires

4 and beliefs.

5 Based on our longitudinal view of the

6 evidence, our in-court observations of Mother on and

7 off the witness stand, Mother's overall parenting

8 history, and the facts presented by the agency, the

9 well-reasoned and articulated positions of the agency

10 and T. W.'o ': guardian ad litem, and the applicable law,

11 it was and is still obvious to us that Mother has

12 simply not progressed to the point where: T. W. could

13 safety be returned to her.

14 That determination, coupled with T. W.' .s

15 needs and welfare, the amount of time T W. has been

16 in care, and the firmly entrenched and oft-quoted

17 doctrine that "a child's life simply cannot be put on

18 hold in the hope that the parent will summon the

19 ability to handle the responsibilities of parenting,"

20 led us inexorably to the conclusion that the goal

21 change we ordered was in :T"W.5 best interest.

22 Finally, on pages 25 and 26 of the case

23 I'm sorry -- of the appeal opinion, T:-W,'-' health,

24 safety and well-being are the paramount concerns, and

I

;

' 25 her best interest is the guide star.

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15

1 T. w. ~. safety must be ensured regardless of

2 whether she was injured in the roadside incident,

3 which scenario could be supported by at least

4 Father's evidence; in the incident where Mother

5 dropped her, which scenario could be supported by the

6 statements of either or both parents; or in some

7 prior incident which has yet to be explained by the

8 parents, but that would be equally problematic.

9 In fact, ; T. W. 's ~ safety must be assured even

10 if Mother's no-injury assertion is accepted. Neither

11 parent has demonstrated the current ability to

12 provide the requisite assurance.

13 In this regard, it cannot be emphasized

14 enough that, under both parents' versions of the June

15 30, 2012 incident, T.W. came into care because the

16 volatile nature of Mother and Father's relationship

17 shockingly caused them to become embroiled in an

18 argument that led them to literally play a game of

19 tug-of-war with TW. in a car seat at the side of a

20 public road.

21 While T v'I/. is now physically safe, the

22 tug-of-war between the parents continues, at times

23 literally and at times figuratively, and the

24 underlying issues that cause their battles have not

25 been resolved.

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16

1 That, of course, was all as of the time that

2 the appeal opinion was written and as of the last

3 permanency review and goal change hearing that had

4 been conducted in the case. Now, I read passages

5 that have negative implications to be true to the

6 facts and also to balance, as indicated, the opinion

7 and as the parents have argued strenuously.

8 Both parents did make progress toward their

9 goals. In fact, in the proposed findings that

10 Children and Youth submitted, progress was noted, and

11 Mother's progress, I think, was noted in most, if not

12 all, of the review hearing orders up to the point

13 when the appeal was filed and afterwards as well.

14 That continued in terms of checking off

15 goals throughout the time while the case was on

16 appeal and afterwards throughout the termination of

17 parental rights hearing. Procedurally, there was an

18 overlap between the goal change request and

19 proceeding and the termination of parental rights

20 proceeding.

21 And I think it's captured in the opinion,

22 but just quickly because there is a gap in this case

23 that needs to be explained, and probably all of us

24 need to do some self-examination on it, and that is

25 this: As the dependency case progressed into the

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17

1 fall of 2013, the matter was scheduled to be reviewed

2 by our dependency master pursuant to our three-month

3 review protocol in September of 2013.

4 The agency appeared and objected to the

5 jurisdiction of the master, and asked the Court to

6 hear the case, so a hearing was scheduled. The

7 guardian ad litem then asked for some additional time

8 to subpoena records from other states because of the

9 issues that Mother had there that are referenced and

10 documented in the exhibits and in the appeal opinion,

11 and the notes of testimony that are cited in that

12 opinion.

13 So a new hearing date was scheduled, and

14 that was for December of 2013. I didn't write down

15 the specific day. While all that was going on, and

16 the guardian was gathering records, the agency filed

17 a termination of parental rights petition. That

18 petition was filed and because the date can be

19 significant, depending on whose argument we look at,

20 the termination petition was filed on December 3,

21 2013.

22 So at that point, we had not yet had the

23 goal change hearing. And there were two subsequent

24 review hearings where the change of goal was

25 addressed. And so it sort of begs the question why

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18

1 we didn1t include the termination of parental rights

2 petition in those hearings, and the simple question

3 -- the simple answer, which is contained in the

4 footnote of page 9 of the appeal petition, was that

5 at the time the original master's hearing was

6 scheduled, we had not yet been to the magic 15-month

7 mark in the case, the agency did not ask for the

8 termination of parental rights, and the parents had

9 been making some progress, as had been indicated in

10 the orders; although, there were a whole host of

11 problems, as even my handful of passages that I read,

12 indicated.

13 Then quite frankly, the parties asked since

14 the goal change had already been set up and started,

15 and the agency wanted to get itself together with

16 respect to termination, and Mother and Father wanting

17 to put evidence and witnesses together, they ask that

18 the hearing not be heard together. And even though

19 it's best practice to file the two together, there

20 were no concurrent filing, if you will, so they

21 started a goal change hearing.

22 The order that I issued changed the goal. I

23 did set a hearing on termination petition, but then

24 by request from all parties, I agreed to postpone

25 that hearing until after the appeal was filed.

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19

1 Looking back that was probably something that should

2 not have been done. It, you know, -- the reason that

3 there is a best practice now with filing at a proper

4 point in a dependency case towards a goal change and

5 a termination petition simultaneously is so you don•t

6 have the time that you have here. You know, when you

7 do one and you wait for an appeal and then come back

8 and have the result.

9 In any event, that happened at the time --

10 in real time going forward. There were or appeared

11 to be rational reasons and bases for doing so. But

12 with the look back, it probably shouldn't have been

13 done that way.

14 In any event, the appeal was pursued. The

15 appeal opinion that I talked about was written. The

16 parties participated in the appeal, so did the

17 guardian ad litem, and ultimately, as indicated, the

18 Superior Court -- the Superior Court affirmed the

19 goal change.

20 So, after the goal change order -- I1m sorry

21 -- after the Superior Court's order came down, and

22 the appeal period -- the period for filing the

23 petition for the allowance of an appeal from the

24 Supreme Court expired, a termination petition -- the

25 termination hearing scheduled on the termination

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20

1 petition at that point had been filed almost a year

2 before the first hearing was scheduled; although,

3 again, it's not what the Court wanted.

4 The hearing was scheduled in accordance

5 with, you know, attorney schedules and that included

6 a three-and-a-half month delay to accommodate the

7 schedules of the attorneys for Father between the

8 December of 2014 period and the March 2015 hearing.

9 So there were review hearings while the

10 appeal was going on, and then the termination of

11 parental rights and corollary dependency review and

12 permanency placement review hearing were held in

13 December of last year and March of this year.

14 Not much had changed, although, the parties

15 still had visits and continually visited; although,

16 visitation had been very, very problematic, both with

17 respect to the agency's side and with respect to the

18 parents, especially with respect to Father.

19 It came to light that during the --

20 somewhere during the appeal period and between the

21 last review hearing before the Court and then the

22 commencement of the termination and review hearing in

23 December of 2014, that despite the concurrent goal of

24 reunification, the agency admittedly stopped doing

25 what was in the court order and didn't move at all

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21

1 towards reunification.

2 That shocking revelation came from the stand

3 from one of the caseworkers, and it was borne out by

4 the documents that were submitted, and also by the

5 cross-examination that was conducted by counsel for

6 both parents. So the case proceeded to termination

7 hearing with all parties calling multiple witnesses

8 and making arguments and filing briefs on several

9 legal issues and then the post-hearing submission

10 that I talked about.

11 I do need to note that the parties continued

12 to make some progress, or at least keep checking off

13 some of the black and white stated goals in the plan.

14 However, there were several things that were

15 problematic:

16 One, again, visitation, which became a

17 matter of principles between the agency and Father,

18 especially very unfortunately in this case, was just

19 pot marked with issues even to the point where we had

20 to have a conference and figure out the e-mail

21 protocol and confirm appointments, and even then

22 there were some problems, and, you know, the parents,

23 especially Father, wants to assess and have the Court

24 assess and pass blame. That's not what the Court

25 does in these cases.

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22

1 On the other hand, I can say that, you know,

2 Father throughout this whole procedure would not

3 fully adhere to the advisement of the Court, and I am

4 assuming from his attorney, that at some point you

5 have to parent, I guess put principles aside, and you

6 have to work towards reunification rather than trying

7 to catch every miscue that the agency does.

8 On the other hand, it's pretty clear that

9 the agency didn't comply with the secondary portion

10 of the concurrent goal which was reunification.

11 However, it should be noted that the agency did, of

12 course, pursue the primary first of the concurrent

13 goals which was adoption.

14 In any event, as I indicated before, even up

15 to the termination of parental rights hearing, there

16 still had been no full explanation for the injury.

17 Mother had done well visiting, except right before

18 the hearing, where she did not appear for the last

19 two or three visits. I am not sure about since then.

20 Father was working and doing some other

21 things. However, I know he continued his principle

22 fight with the agency, at times casting dispersions

23 on the agency and even the Court. But that is how

24 Father had elected to play this case, despite the

25 best attempts of the Court and initially the best

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23

1 attempts of the agency to try to get him to focus on

2 parenting and.T.W,~ best interest.

3 So at the conclusion of the hearing, when I

4 looked at the briefs, the parties had a pretty

5 polarized position. The guardian ad litem

6 articulated a very cogent reason why rights should be

7 terminated, why the dependency should be continued

8 and the goal should be maintained as adoption.

9 Father and Mother articulated their beliefs

10 that because the agency had not worked towards the

11 concurrent goal, that either as a matter of law or

12 fact or discretion, that termination should not be

13 granted, and the impasse continued.

14 So I will say this: This is not a case

15 where it is the shining moment for any of us. This

16 is not a case that I'm going to hold up in my

17 repertoire as one where I guided the parties in the

18 best interest of the child in the best way possible.

19 I am not going to sit here and cast dispersions on

20 anyone else. Everybody else hopefully has engaged in

21 that same self-reflection.

22 From continuing these cases, you know --

23 through continuance requests and appeals, we tried to

24 give the parents some post-petition chance to finally

25 get it and make some progress, to not fully following

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24

1 the court orders, to principle arguments against the

2 agency, the Court or just arguments, whether they are

3 credible or not, and, of course, with respect to the

4 parents quite frankly not being candid in their

5 testimony, and that especially is one for Mother.

6 I hate saying no to things, but I've learned

7 now that this case is going to look much different in

8 a cold two-dimensional record on appeal than it did

9 to all of us who sat in the courtroom and listened to

10 the evidence, watched the witnesses, observed the

11 parties as the case went along. So, unfortunately, I

12 have to make observations such as those.

13 I want to make this other observation as

14 well: It is that the attorneys, who really zealously

15 advocated and fought for their clients can't testify

16 for clients, and I'm going to leave the factual

17 portion as this: Mother and Father wanted to fight.

18 They wanted to fight the agency, they wanted to put

19 this in a position for appeal, whatever. That was

20 then obvious to me.

21 In the end, I don1t have the transcript. No

22 one has requested one yet, but I think you're going

23 to come back and you're going to see that there was a

24 lot of venom, quite frankly on both sides, and in the

25 final analysis neither parent sat on that stand,

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25

1 either in this courtroom because we were here for one

2 hearing, or in my courtroom, No. 3, and told me in

3 any detail with any feeling or emotion about how they

4 had any -- about their feelings towards their bond

5 and other emotional and spiritual feelings towards

6 their daughter.

7 That's understandable after the passage of

8 time. It was disturbing to me then, and it's

9 disturbing to me now. So now, we have to apply all

10 of this to the law, and I've laid it out here in the

11 addendum, and I will note a couple of things.

12 ·There was a legal issue that I asked the

13 parties to address early on in the termination, and

14 that is given the appeal filed by Mother and the

15 several requests for continuance asked for by counsel

16 for Father, did the statutory provision that

17 precluded the Court from considering post-petition

18 efforts by the parents with respect to some, but not

19 all of the bases, were grounds for termination?

20 Did that coalesce? Did that stop it? Did

21 that create some type of exception to the rule? And

22 I got some briefs from the parties. I think the

23 parties' research was the same as mine. There was no

24 real specific case on this issue, other than it is

25 pretty clear that the statutory provision against

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26

1 considering efforts initiated after the given notice

2 of filing a petition remained, and it has been

3 enforced consistently by our courts.

4 It makes sense because -- at least under the

5 current cases ~nd current protocols and rules for

6 processing the dependency and termination cases --

7 and that is because at some point when a petition is

8 filed in accordance with the current rule, and a

9 child is in care, by definition in the one that's

10 been cited, for more than a year, it makes sense that

11 we need to look at the child and not put our main

12 focus on the parent. And so we have to have some

13 kind of a cut off and this is what our

14 legislature had decided -- one second.

15 (Off the record.)

16 (Back on the record.)

17 THE COURT: I sat through a bunch of

18 hearings, and I am not just going to -- this is a

19 very important case. So I don1t want to speed

20 through, but the president judge is not in today, and

21 I have to attend to a matter in about five minutes

22 and then come back.

23 In any event, I have concluded that -- and

24 no party has pointed me in a different direction --

25 that the rule still applies, even though the petition

Pursuant to 43 J.D.R.C.P. Rule 260c "No transcript shall be tum/shed to a party uni/I all elfpenses of transcription are paid.

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1 was filed in December of 2013, and the custody appeal

2 was continued. We didn't have the first hearing

3 until a year later, and then it didn't conclude

4 because of the other requests until three or four

5 months after that.

6 Now, that brings us to the issue of does the

7 rule apply in this case? The agency asked for

8 termination of parental rights on four grounds, and

9 they were grounds set forth in 23 Pa C.S.A Section

10 25ll(a) 1, 2, 5 and 8.

11 The rule on its face applies to the grounds

12 stated as 1 and 8. It does not apply with respect to

13 2 and 5. With respect to the grounds under

14 Subsections 1 and 8, the parties have taken the

15 position that all of their efforts were initiated

16 prior to the filing of the termination petition. And

17 so the rule doesn't have application to the presented

18 facts.

19 And that's one that I've looked at and

20 thought about carefully, and I don't agree with that,

21 and here is why: To be sure, the parties were

22 involved in this case and had actually made some

23 progress towards many, in some instances, or at least

24 some of the goals even early on in the case.

\

25 But the fact that you were starting to make

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Any reproduction of an oH/clal transcript without prior court approval is prohibited,•

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1 some progress, but hadn't done other things that are

2 necessary or that you might have generally tried to

3 get your child back doesn't mean that some specific

4 effort that you're required to make -- and if you

5 wait until after the petition is filed, doesn't mean

6 you get an exception to the rule.

7 Here is an example: The example in this

8 case is one of the things that the parties wanted the

9 Court and the agency to believe was that they had

10 separated themselves now finally. We're not going to

11 be together, but up until just before the termination

12 of parental rights hearing, there was really not much

13 indication of that because of the continuous problems

14 between them.

15 So at some point there were fewer problems,

16 but, you know, we all have to have some objective

17 manifestation. Well, a divorce complaint wasn't

18 filed until a month after the termination of parental

19 rights case was filed, and the fact that the parties

20 might have started to stop physically abusing each

21 other before the termination petition was filed

22 doesn't mean that because they ultimately did that

23 months or years after it was filed, that they met the

24 threshold.

25 So I do not agree that while -- let me back

Pursuant to 43 J.D.R.C.P. Rule 260c "No transcript shall be furnished to a party until 1111/ expensH of transcription are paid.

Any reproduction of an official transcript without prior courl approval Is prohibited,•

29

1 up -- while certainly some progress that the parties

2 made towards the plan goal were achieved prior to

3 filing the termination, while some were starting

4 prior and completed after, there were several things

5 that still remained unsatisfied or they were early

6 only commenced or commenced in earnest after the

7 petition was filed.

8 The appeal was filed to give more time on

9 those things, and the other requests for continuances

10 were made, presumably to give more time to work

11 towards reunification as well. That includes the

12 legal and physical separation between the parties.

13 That includes the still unexplained injury of :T,W.

,I

14 and that includes a point where the parties were

15 looking for and asking for something other than the

16 supervised visits that they have had because they

17 couldn't get past having problems with those. So

18 with respect to 1 and 8 -- Subsections 1 and 8 I

19 believe the rule is applied. With respect to 2 and

20 5, it is not.

21 The second issue I asked the parties to

22 address -- and I1ll talk about this, and I'll take up

23 the other matter and I'll come back -- is the issue

24 framed by the opinion that Justice Baer wrote in the

25 case of In Re: D.C.D., which I had pointed out that

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30

1 the parties in that case did not yet have an A.3d

2 cite, and everybody had briefs and discussed that.

3 The issue is that what affect, if any, did

4 the fact that the agency admittedly didn1t follow the

5 order with respect to the concurrent goal, secondary

6 goal of reunification, have on this case, either as a

7 legal matter, factual matter or discretionary.

8 I think we've all read that opinion, and

9 I1ve had a chance to read -- there's another one

10 that1s been cited. There's another opinion by the

11 Superior Court that addresses a very similar issue

12 with the cite In Re: D.C.D. Here is my analysis of

13 that issue:

14 One, I think that the Court -- and on this

15 issue, I believe it was unanimous, although there was

16 an occurring opinion on a different matter --

17 indicated that the compliance with court orders is

18 not something that is statutorily required, at least

19 not under all the grounds for termination.

20 And so in terms of that, I believe, as you

21 will see in the addendum, that the case applies, and

22 reunification efforts were not a consideration with

23 respect to Subsections (a) (2), (a) (8) and (a) (1).

24 However, I do conclude that the efforts or lack of

25 efforts made towards reunification by the agency does

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Any reproduction of an official transcript without prior court approval Is prohibited.•

31

1 come into play, specifically under Section (a) (5) --

2 Subsection (a) (5).

3 Even In Re: D.C.D., and the subsequent

4 Superior Court decision, I have also indicated that

5 -- and I think that both parents argued -- that the

6 Court can consider them in exercising its discretion

7 with respect to actions or omissions of the parents

8 with respect to other grounds, but there's not a

9 statutory requirement.

10 Finally, while the considerations on D.C.D.

11 and the subsequent Superior Court case made it

12 explicitly clear that the remedy, if there is

13 otherwise a properly supported termination motion, is

14 not to deny the motion, but it is to make a finding

15 that would remove from the agency the ability to get

16 federal reimbursement and funding for a particular

17 case.

18 The parents, obviously, the way they wrote

19 their briefs, think that the policy ought to be

20 something different. But we have the unanimous

21 Pennsylvania Supreme Court telling all of us

22 otherwise. So regardless of how we believe the

23 issues were raised and the arguments were made, that

24 is the law. I am going to attend to this matter, and

25 I'll be back in just a couple of minutes.

Pursuant to 43 J.D.R,C.P. Ruta 250c "No transcript shall be furnished to a pal1.y until all expenses of transcription are paid.

Any raproducl/on of an official transcript without prior coul1. approval is prohibited."

32

1 (Off the record.)

2 (Back on the record.)

3 THE COURT: Sorry for the interruption. So

4 I think I ended with indicating my analysis of the

5 two legal issues. I just want to flush out why I

6 don1t believe that Subsection (a) (5) is covered by

7 or at least to the full extent -- covered by the In

8 Re: D.C.D. opinion.

9 One is {a) (5) was actually a subdivision or

10 subsection of the termination section that was

11 specifically mentioned by the Court In Re: D.C.D., at

12 one to which reunification services may be relevant,

13 and that is because of the language of (a) (5) that

14 talks about a parent cannot or will not remedy those

15 conditions within a reasonable period of time, and

16 then the services or assistance reasonably available

17 to that parent are not likely to remedy the

18 condition, et cetera, et cetera. Obviously, if

19 services aren1t fully provided then it would be tough

20 for them to rely on those services.

21 Having said that, I am not sure how much of

22 an impediment it is to this case. You know, the

23 construct of the concurrent goal was discussed in the

24 appeal opinion I filed before. It has also been

25 discussed by in several Supreme Court opinions

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1 and Superior Court opinions, and it is a way of -- a

2 new way of looking at cases so you don't have to walk

3 lockstep through all the different scenarios and

4 possible placements and possible goals.

5 In any event, it's constructed by the

6 concurrent planning so that you don't have to walk

7 lockstep through the different goals, either going

8 forward or going backwards in the cases where it is

9 streamlining from, Jet's say adoption, back to

10 reunification, and you can do some work on both ends.

11 So, we have a situation where it's common

12 to consider that a hybrid goal. And in this case, we

13 have the agency that worked towards one part of the

14 goal, the adoption part, but not the other which was

15 the unification.

16 In any event, when I looked at this and

17 applied the statutory provisions, because there had

18 been progress made and because the agency did not

19 work towards the concurrent part of the goal, I don't

20 think that termination under Section (a) (5) can be

21 supported. So I do not find that is ground for

22 termination.

23 With respect to {a) (1), that is one of the

24 sections that is subject to the pre versus

25 post-petition filing provision. And so I am going to

Pursuant to 43 J.D.R.C.P. Ru/a 250c "No transcript shall be furnished to a party until all expenses of transcription are paid.

Any reproduction of an official transcript without prior court approval is prohibited."

34

1 look at that too, and if I believe that with respect

2 to the actions and omissions and the conducts of the

3 parents towards reunification, that the grounds were

4 established at the time of filing with petition under

5 Subsection (a) (1), because they certainly had for

6 more than six months failed to perform their parental

7 duties.

8 Subsection 1 doesn't talk about incapacity.

9 It's not necessarily abandonment, but it1s just that

10 they haven't performed their duties. At that point

11 in time Mother was in jail. Father was in jail.

12 They both got out of jail. They spent a lot of time

13 fighting, and that was the height of their absolutely

14 incredible co-dependent relationship, and they

15 certainly weren1t providing the parental duties for

16 -, .w. then.

17 I believe the statute for the grounds were

18 established, and because I believe the post-petition

19 conduct, some of which was instituted afterwards,

20 shouldn't be considered on that ground. Nothing done

21 afterwards mattered.

22 With respect to (a) (2), it's typically

23 talking about the incapacity of the parents to

24 perform parental duties and to get back their child.

25 Many times that's discussed when there are physical,

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35

1 medical, substance abuse or mental health issues that

2 preclude the parents from having the requisite

3 capacity.

4 But it also talks about it in the context of

5 being incarcerated, and in one recent case even with

6 respect to having the long-term protection from abuse

7 order issued against the parent.

8 So I don't -- I think the agency has

9 established grounds with respect to (a) (2), but not

10 because of the parental capacity but because as of --

11 for the reasons I have articulated, and the parents

12 have not -- and they have refused to provide, by

13 their actions, the essential parental care, control

14 and assistance.

15 With respect to No. 8, that is another

16 provision or subsection, I should say -- I'm sorry

17 that is subject to the filing, or if you will, of the

18 petition. So pretty clearly you don't have to go

19 past the appeal opinion, and I wrote an appeal to

20 look at the time of filing of the petition that

21 statutory grounds were established, and for -- I

22 should have said this -- for No. 1, of course, the

23 time frame is six months and certainly the parents,

24 through Subsection 1, had failed to perform parental

25 duties for much more than six months as of filing of

Pursuant to 43 J.D.R.C.P. Rule 260c "No transcript shall be furnished to a party until all erpenses of transcription are paid.

Any reproduction of an official transcript without prior court approval is prohibitad. •

36

1 the petition, and then even for some time afterwards.

2 With respect to No. 8, the period is longer;

3 it's 12 months, and it's very clear that the parents

4 as of that time, you know, had met the 12-month

5 period. So if we walk through Subsection (a) (8), the

6 agency was required to show:

7 1. The child had been removed from the care

8 of the parent for at least 12 months. That's pretty

9 much undisputed.

10 2. The condition that led to removal or the

11 placement of the child still exists, and that was

12 certainly true back then, and I believe is, in large

13 measure, still true now. Even if I am wrong legally

14 on the time mark or the filing time mark.

15 3. The termination of parental rights best

16 serves the needs and welfare of the child. Under the

17 case, as I have cited in the addendum, there are two

18 needs and welfare analyses that needed to be

19 conducted in this case: One is under Subsection

20 (a) (8) and that is to see if the grounds for

21 termination is met.

22 Then next is under Subsection (b), for any

23 ground that is met, or any multiple grounds that are

24 satisfied, whether a general termination meets the

25 needs and welfare of the child. And so that's where

Pursuant to 43 J.D.R.C.P. Rule 260c "No tran1crlp11hall be furn/shed to • patty uni/I al/ ..vpenses of lrsnscrlpt/on •ro paid.

Any roproducllon of an oft/clal transcrlpl without prior court approval ls prohlb/11d."

37

1 we are now.

2 With respect to Subsection 8, which is not

3 required necessarily, and I will make this clear,

4 separate and apart from the holding in D.C.D.,

5 Subsection 8, when it's considered as the ground for

6 termination as opposed to Subsection (b), it does not

7 require an analysis of the reunification efforts of

8 either party or the agency, and that's pretty clear

9 from the cases.

10 In any event, with respect to the needs and

11 welfare analysis, here is the inescapable fact:

12 Whether you measure it as of the time of filing of

13 the termination petition or whether you come all the

14 way down almost three years later to this date, or we

15 measure it somewhere in the 24 to 30 some months time

16 frame while the appeal was pending while the

17 termination proceedings were ongoing, an inescapable

18 fact is this:

19 While the parties -- while Mother was making

20 apparently false accusations against Father, the

21 parties were filing criminal and PFA filings against

22 each other, they were exhibiting a pathological

23 co-dependency, although it's hard to imagine, and all

24 the other things that were in here, a foster family

25 was raising -,-:-w. The foster family was providing --

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Any reproduction of an off/c/a/lranscr/pt without prforcourl approval is prohlbltad."

38

1 not Mom and Dad -- was providing the love, care,

2 companionship and support that the law demands and

3 that 1.W. deserves - - not the parents - - and that is

4 an inescapable fact.

5 The evidence was very clear that Time is

6 very bonded with the foster family, and it was clear

7 to me that severing that tie would be very

8 detrimental to :T:W. There was also an indication

9 that there was some bonding between T W. and both

10 parents. However, I am going to indicate that T. W.

11 has been in foster care in a pre-adopt home and has

12 only supervised visits with a brief time when there

13 were some community visits with either parent for

14 virtually all her life.

15 The first few months of her life were spent

16 in the hospital. There was a brief period after the

17 hospital before she went into foster care that she

18 was with both parents, and I guess at some point with

19 Mom in a shelter, but that really -- that didn't

20 really establish any traditional bond. The bond that

21 is there is one that was developed with set visits

22 and because of the biological tie.

23 We can't discount the fact that there is a

24 biological tie. We can't discount the fact that T:W.

25 knows who her parents are. But, you know, a bond

Pursuent to 43 J.D.R.C.P. Rule 250c "No transcript shell be furnlshsd to a parly unt/1 sll expenses of transcription are paid.

Any reproduction of en otflclel transcript wilhout prior court epproval Is f'!Dhlb/led. •

39

1 that's developed while the child spends the first two

2 and a half to three years of her life in foster care,

3 isn1t quite the same thing than the bond that a

4 parent and child create and develop with something

5 other than biological tie and something other than

6 supervised visits and periods of time because of

7 incarceration or inability to get there when there

8 were no visits, especially with respect to Mother.

9 So with respect to the third component of

10 Subsection 8, I think that's pretty clearly met, and

11 for the same reasons the needs and welfare analysis

12 applied, the bond analysis applied with respect to

13 Subsection (b) .

14 In that regard, we're also supposed to look

15 at not only is there a bond between parent and child,

16 we have to look at what the affects of severing that

17 bond would be. And since there is a strong bond with

18 the foster family -- pre-adopt family -- we need to

19 look at what the affects of severing that would be.

20 My assessment of everything in this case,

21 including the facts, the evidence, my observations in

22 court of the parents and all the documents I reviewed

23 is that severing the bond with parents when they have

24 some biological problems pale in comparison to at

25 this point, and even as of the time the petition was

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Any reproduction of en ottlclsl lranscript without prior coutt approval ls prohibited."

40

1 filed, of severing the bond between T. w. and her

2 foster parents.

3 There is also a need to look at the safety

4 of a child, and that can be considered under the

5 needs and welfare analysis. The safety consideration

6 typically arises in cases involving physical or

7 sexual abuse against the child or severe neglect or

8 abandonment of the child or improper care, especially

9 with a child with special needs.

10 However, in this case safety considerations

11 are pretty clear, and the fact that again we don't

12 know what happened, and whether or not parents are

13 truly separated, which I don't think they have

14 established. Whether their volatile relationship can

15 cause problems for T.W, and safety problems for her

16 is something else all together, and I don't think

17 safety has been established either.

18 The needs and welfare analysis is a

19 difficult one in any case. It's a difficult one in

20 this case. But I think the agency has met its

21 burden, both under Subsection (a) (8) and under

22 Subsection (b). With respect to the dependency case,

23 the standards are not set forth in the addendum, and

24 that's because they're recited in full in the prior

25 opinion that I wrote.

Pur.suant to 43 J,D.R.C.P. Rule 260c "No transcript shall be furn/shed to a parl.y until a/I e"pensll5 of transcription are paid.

Any reproduction of an official transcript without prlorcourl. approval Is prohibited.•

41

1 With respect to the findings that I am

2 required to make regarding permanency, placement,

3 goals, et cetera, I am going to generally find as

4 follows, and I will include those in the order that

5 will be issued, and it will be as follows:

6 One, there is continuing and necessity for

7 the appropriateness of the current placement. Two,

8 the parents have shown moderate progress towards the

9 family service plan and goals in this case. There

10 has been some progress made towards alleviating the

11 circumstances that necessitated the original

12 placement.

13 Next, the appropriateness and feasibility of

14 the current placement goal is proper, and obviously

15 I'm terminating parental rights now because the goal

16 of adoption is a correct one in my estimation. A

17 likely date by which the goals of the child might be

18 achieved, that depends, of course, on whether appeals

19 are filed or not.

20 I think it can certainly be done in six

21 months if they are not, and whether the child has

22 been in placement for at least 15 of the last 22

23 months, and that, obviously, is yes. I will also

24 indicate the termination petition that was filed was

25 actually right around, maybe a little bit after the

Pursusnt to 43 J.D.R.C.P. Rule 250c "No transcript shall be furnished to II psl1y unt/1 a/I e1tpenses of tran.crlption ere paid.

Any reproduction of an official transcript without prior court approval Is prohibited.•

42

1 15-month period, what did I say, 17 months or so.

2 The bottom line here is this: While I am

3 not happy that the agency did not comply with the

4 court order, the secondary goal, you know, we have to

5 put that aside because all the cases cited,

6 especially the most recent ones, talked about that we

7 have to give these types of cases with the standard

8 of the best interest of the child in mind; the fact

9 that quite frankly while the appeal was going on or

10 whatever I let the case get slipped away

11 procedurally; the fact that the parents wanted to

12 exercise their right to fight with the agency and

13 stand on principles that provoked this case rather

14 than actually move towards reunification are things

15 we're going to have to learn from so we can move

16 forward.

17 So I will issue orders terminating parental

18 rights on three of these four grounds, not (a) (5). I

19 will issue a dependency order that will continue the

20 placement, continue dependency and include the

'cpl~:,

21 findings that I summarized today on the record.

22 Having done all this, I want to advise both

23 parents they have a right to appeal my decision. If

24 you wish to file such an appeal, the appeal must be

25 filed within 30 days of today's date. The appeal

Pursuant to 43 J.D.R.C.P. Ruta 25ac "No tr.msctlpt shall be furnished lo a party until all expenses of transcript/on are paid.

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43

1 must comply with a set of rules called the

2 Pennsylvania Rules of Appellant Procedure. And

3 because this is a case involving a dependent child, a

4 set of -- a subset of rules called the Children's

5 Fast Track Rules apply.

6 That means this case is on the fast track,

7 which is the same set that applies when Mother filed

8 the appeal in the dependency proceeding. If you wish

9 to file those, you have a right. Ma'am, you have a

10 court-appointed attorney. Mr. Leeth will be

11 available to talk about the options and to file, if

12 you want to do so.

13 Mr. Warner, you have your own attorney --

14 actually two attorneys. But if it comes to a point

15 where you cannot afford those attorneys, and you

16 qualify, the court will appoint an attorney for you

17 to discuss this matter and for any post-hearing

18 proceedings that may be filed. Thank you.

19 MS. WEEKES: Thank you, Your Honor.

20 (Proceedings concluded.)

21

22

23

24

25

Pursusnt to 43 J,D,R.C.P. Rule ISOc "No transcript shall be furnished to a p•rty until all expense& of transcription are paid.

Any reproduction of an official transcript without prior court approval is prohibited.•

Circulated 02/18/2016 11:32 AM

COURT OF COMMON PLEAS OF MONROE COUNTY

FORTY-THIRD JUDICIAL DISTRICT

COMMONWEAL TH OF PENNSYLVANIA

JUVENILE COURT DIVISION

In re T.W., a minor NO. 64 DP 2012

FID 45-FN-41-2012

· APPEAL DOCKET 792 EDA 2014

OPINION IN SUPPORT OF ORDER PURSUANT TO Pa. R.A.P. 1925(a)

In this Children's Fast Track matter, D.W. ("Mother") has appealed the order

entered on February 4, 2014, that continued T.W.'s dependency and changed the

permanency goal from reunification, with a concurrent goal of adoption, to adoption,

with a concurrent goal of reunification.1 Mother complied with the Fast Track rules by

filing her 1925(b) statement with her notice of appeal. We now issue this opinion

pursuant to Pa. R.A.P. 1925(a).2

The relevant history, including the first contact that Monroe County Children

and Youth Services (CVS) had with this family, predates T.W.'s birth.

Mother and T.W's father, E.W. ("Father"), were married in May of 2011. Their

time together has, to put it mildly, been very turbulent, Their roller coaster

relationship has been a'2Jn-again, off-again affair that is marked by numerous claims

l_., .... _. __ ,....__ __ {'

of domestic violence by each parent, criminal charges flying back-and-forth, multiple

I

T.W.'s·father did not file an appeal.

20ver

the course of this case, four hearings have been transcribed All four transcripts, with accompanying

exhibits, are included in the certified record. For clarity and ease of reference,the transcripts will be cited as

follows:

• The transcript of the July 2, 2012 Shelter Care Hearing will be cited as "N.T. l, pp._"

• The transcript of the August 2, 2012 Adjudication Hearing will be cited as "N.T. 2, pp._"

• The transcript of the December 20, 2013 Review Hearing will be cited as "N.T. 3, pp._"

• The transcript of the second day of the review hearing, convened on January 24, 2014, will be cited as

"N.T., 4 pp._"

filings under the Protection From Abuse ("PFA") Act, outright lies told by Mother

about Father, instability, periods of separation, and, significantly, a rare level of

pathological co-dependence that has continually brought Mother and Father back

together despite the volatility of their union. Acts of violence occur when Mother and

Father are together and when they are separated. (N.T. 2, pp. 9-14; N.T. 3, pp. 11,

14-18, 21-27, 52-56, 65-67, and Exhibits 2 through 4; N.T. 4, pp. 23-24, 30-31, 45-

46, 84-88, 110-122, and GAL Exhibits 1 through 5).

Mother and Father both have children other than T.W. In fact, both have

children from prior relationships thatwere also marked by domestic violence.

Including T.W., Mother has four children with four different fathers. Her

relationships with the· fathers of her three other children involved abuse, violence,

and multiple PFA orders, some of which were issued against Mother. (N.T. 2, pp. 13-

14; N.T. 3, pp.15-16 and Exhibit 4; N.T. 4, pp. 141-150). In part because of this

history, Mother does not have custody of any of her minor children. Mother's oldest

son, who is an adult, lives with Mother in Monroe County. However, her eight year-

old son lives with his father in Georgia, a state that Mother cannot visit due to an

outstanding arrest warrant. Mother has not seen her younger son in person since

December of 2010. Similarly, Mother has a five year-old daughter who lives with her

father in Florida. Mother last saw her daughter in April of 2011 when the police

removed the child from Mother so that the child could be returned to her father. (N.T.

2, pp. 13-14; N.T. 4, pp. 146-150). Finally, as discussed below, T.W. has been in

care in Monroe County since July 1, 2012.

2

Father has at least sixteen children with several different mothers. His

children range in age from a son who is twenty-two down to T.W., who is now two

years old. (N.T. 2, pp. 13-14; N.T. 3, p. 111; N.T. 4, pp. 122-127). Domestic

problems in Father's past relationships started almost twenty-five years ago when the

mother of his oldest child obtained a PFA against him. (N.T. 4, p. 127). The

continuation of domestic problems led to the initial contact between CVS and Father.

In October of 2011, after Mother and Father were married but before T.W. was

born, the mother of nine of Father's children filed in this Court a petition, on behalf of

herself and all nine children, seeking a PFA against Father. CVS was ordered to

assess the safety of the children. Following a hearing, the petition was granted and

an eighteen-month PFA was issued against Father. The children and their mother

were all named as protected persons. After the PFA was issued, the children and

their mother moved to New Jersey. (N.T. 2, pp. 5-10; N.T. 4, pp. 122-127).

Subsequently, Mother became pregnant with T.W. Nonetheless, the domestic

violence between Mother and Father continued. They tried some forms of counseling,

but subsequent history has demonstrated that the counseling was not successful.

T.W. was born In 2012. She was very premature and had to stay in

the hospital for a long time after birth. As a result, T.W. has a heart condition that

needs to be monitored. Although both parents were aware of the condition, neither

mentioned it to caseworkers when T.W. came into care. CVS later found out about

the condition from one of T.W.'s doctors. (N.T. 2, pp. 9-15; N.T. 3, pp. 132-133).

T.W. first came to the attention of CVS on June 30, 2012. On that date, the

agency received a referral that T.W. had been injured when Father threw her in her

3

car seat out of the family's van during a roadside argument with Mother. T.W. was

initially taken to Pocono Medical Center, a local hospital, where she was diagnosed

with a concussion and tests showed that she had hairline fractures. As a result, T.W.

was transported to the pediatric trauma unit at Lehigh Valley Hospital, a regional

medical facility located in Allentown, Pennsylvania. (N.T. 1, pp. 5, and 13-14; N.T. 2,

pp. 9-18, Ex. 7, 8, and 9; N.T. 3, pp.39-48, Mother's Exhibits 1 and 2, and GAL

Exhibit 1; Dependency Petition, filed July 9, 2012).

T.W. spent one night in Lehigh Valley Hospital. While T.W. had observable

injuries, she was luckily not as seriously injured as originally thought. She was

described as having a contusion on the left side of her head, a history of prematurity,

and having suffered a fall, a head injury, and post concussive syndrome. She was

released the next day. (N.T. 2, pp. 9-18, Exhibits 7, 8, and 9; N.T. 3, pp. 39-48,

Mother's Exhibits 1 and 2, and GAL Exhibit 1 ).

CYS caseworkers interviewed Mother at Lehigh Valley Hospital about the

incident. Regarding T.W.'s injuries, Mother told the caseworkers that the incident

occurred while Father was driving her to a new job. During the trip, a bad argument

erupted. Father became enraged, called Mother horrible names, hit and slapped her,

and pulled her hair. At one point, Father pulled over. When Mother tried to take T.W.

out of the car to keep her safe, a tug-of-war over the baby ensued. In a fit of rage,

father grabbed the seat and threw it to the ground with tremendous force. Father

started to leave, but then came back and broke Mother's cell phone. He then drove

away, leaving Mother and T.W. at the side of the road (N.T. 2, pp. 9-20; Dependency

Petition, filed July 9, 2012. See N.T. 3, pp. 39-48). The statement Mother gave the

4

caseworkers was consistent with the statements she gave to the Pennsylvania State

Police and medical personnel. (N.T. 3, pp. 100-102). In all initial statements, Mother

unequivocally stated that Father threw T.W. in her car seat out of the vehicle.

The caseworkers also obtained from Mother a history of her relationship with

Father. Mother told the caseworkers that Father is verbally and physically abusive,

very controlling, and vulgar. She stated that Father had assaulted her on several

occasions and showed the caseworkers scars and burns up and down her arms that

she said were inflicted by Father. The caseworkers took photos of the burns and

scarring that were later admitted into evidence during the adjudication hearing.

Mother also told the caseworkers that Father had raped her and had "put out a hit on"

the woman who was the mother of nine of his children and who had obtained PFA

against him. (N.T. 2, pp. 9-20; Dependency Petition, filed July 9, 2012. See N.T. 3,

pp. 39-48).

Based on Mother's statements and T.W.'s injuries, the caseworkers developed

a safety contract. The plan included Mother filing for a PFA against Father, having

no contact with Father, and taking T.W. to a shelter where Mother had previously

sought refuge from Father. Mother agreed to the contract. (N.T. 2, pp. 18-19).

The caseworkers explained to Mother that, given the circumstances, CVS

would be opening a case, investigating the matter, and providing necessary services.

Mother was told the investigation would include running criminal history checks.

Mother was then asked whether she had any criminal history. Mother denied having

any history. (N.T. 2, p. 20).

5

As a result of the incident, Father was charged with Aggravated Assault and

related charges. He was incarcerated in the Monroe County Correctional Facility in

lieu of bail.

CVS caseworkers ran Mother's criminal history. They discovered that Mother

had not been honest with them, in that she had a substantial arrest record, including

a charge of cruelty to children, although dispositions for some of the arrests were not

reported. Significantly, the history also revealed that there was an outstanding

warrant out of Georgia for Mother's arrest on forgery charges which was lodged with

the notation that Georgia would extradite. (N.T. 1, pp. 2, 5, and 10; N.T. 2, pp. 20-25;

N.T. 3, pp. 46-48). Later, CVS learned that Mother had used several names and

aliases in several states and that she had or may have additional criminal history in

other states. (N.T. 1, p. 7; N.T. 2, pp. 20-24).

Mother was arrested on the warrant on July 1, 2012. That same day, CVS

sought and was granted emergency protective custody of T.W. since both of her

parents were incarcerated and no suitable relatives were immediately available. T.W.

has been in care ever since.

Over the next few weeks, several hearings were held. In addition, Mother's

story and position began to change. In broad summary:

A shelter care hearing was held on July 2, 2012. The hearing was convened

quickly in order to give Mother the opportunity to place her position on the record and

advise the Court, CVS, and the guardian ad fitem of possible family or other

placement resources for T.W. before she faced extradition to Georgia. ln fact,

Mother was allowed to participate in the hearing by telephone from jail so that she

6

could assert her position. (N.T. 1, pp. 2-8 and 15p19). Mother provided the names of

several family members, including her 21 year-old son with whom she lived, as family

resources. (Id. at 10-13). Surprisingly, Mother then began the process of recanting

her story and accusations against Father. She said that the charges (which were

based on statements she made to authorities) were false and inaccurate, that she

would not testify against Father, that she did not believethat father had injured T.W.,

that the doctors at Lehigh Valley indicated that Pocono Medical Center had

misdiagnosed T.W., and that T.W. did not have any injuries. (Id. at 8-11, 13, and 15).

Mother also stated that, if she was extradited to Georgia and Father was released

from prison, she wanted T.W. to be with Father. (Id. at 13 and 15).

Around the same time, a separate extradition hearing was held. In advance of

the hearing, the Commonwealth filed a motion to detain Mother here as a material

witness in the case against Father. At hearing, the Assistant District Attorney

assigned to the case represented that he had personallycommunicated with officials

from Georgia who, despite the extradition notation in the data base, declined to

extradite Mother. Thus, both extradition and the Commonwealth's motion became

moot.

At one point while both parents were in jail, Mother attempted to use deception

to arrange an in-jail meeting with Father. Specifically,she falsely told officials at the

jail that the undersigned had given her permission to meet with Father in the

correctional facility to discuss their cases and T.W. Of course, no such permission

had been given. The in-jail meeting was foiled when the correctional facility called

7

CVS and was told that the Court had not given any such permission. (N.T. 2, pp. 61-

63).

Prior to the adjudication hearing, Father gave his first version of what had

happened on June 30, 2012. He indicated that it was Mother who violently pulled

T.W. in her car seat from the car. (N.T. 2, pp. 44-47, and 53).

In addition, Mother was arrested and criminally charged for the incident and

injuries sustained by T.W. As a result, as of the time of the adjudication hearing, both

parents stood charged with committing crimes against T.W.

An adjudication hearing was held on August 2, 2012.3 At the hearing, several

witnesses testified and medical records from Pocono Medical Center and Lehigh

Valley Hospital were admitted into evidence. It was established that T.W. had been

injured, but not as seriously as originally thought. (N.T. 2, pp. 18-20, 28-30, and

Exhibits 3, 7, 8, and 9). At the conclusion of the hearing, T.W. was adjudicated

dependent and her placement in foster care was continued. The initial permanency

goal was reunification. Neither parent appealed the dependency adjudication.

Based on her age, T.W. qualified for this Court's three-month review protocol.

Accordingly, three-month permanency and placement review hearings were held

before the dependency Master throughout the remainderof 2012 and into 2013. The

last hearing before the Master was held in May of 2013. Throughout the proceedings

before the Master, the permanency goal approved by this Court was reunification,

with a concurrent goal of adoption. (See Orders dated October 25, 2012, January 10,

3

The adjudication hearing was initially scheduled for mid-July 2012, but was continued and then rescheduled to

August 2, 2012, because of the subsequent charges that were filed against Mother, the preliminary and other

hearings that were being held in the criminal cases, and a series of unfortunate conflicts that arose regarding

attorney representation for the parents. These intervening events account for the delay between the shelter care

hearing and the adjudication hearing.

8

2013, and May 10, 2013). No party objected to any of the Master's

recommendations.

This case was scheduled for another review hearing before the Master in

September of 2013. At the hearing, the parties appeared. CYS objected to the

jurisdiction of the Master. Even though no hearing was held that day, the appearance

was significant in that Mother showed up with- injuries that she said were inflicted by

Father in an incident for which Father was criminally charged. The charges were

later dropped because Mother refused to cooperate. (N.T. 3, pp. 21-22).

As a result of the objection lodged by CYS, a hearing before the Court was

scheduled in October 2013. However, the guardian ad /item asked for a continuance

so that she could obtain records regarding Mother from both Florida and Georgia.

The continuance was granted.

A review hearing was convened before the Court. Evidence was taken on

December 20, 2013, and January 24, 2014. At the conclusion of the review hearing,

the Court issued the goal change order from which Mother has filed this appeal,"

The two-day review hearing generated a substantial amount of evidence.

Due, in part, to changes in counsel for both parents over the course of this case, a

significant portion of the two-day hearing repeated evidence, much of which is

summarized above, that was introduced in prior proceedings. In addition, new

4

On December 3, 2013, CYS filed a petition for termination of the parental rights of both parents. We recognize

that, in an appropriate case, it is a "best practice" to hold goal change and termination of parental rights hearings

simultaneously. In this case, we did not adopt this procedure because the petition for a review hearing was tiled

and the review hearing was originally scheduled within the relevant fifteen month period, the rescheduling

before the court and attendant continuance were requested by CYS and the guardian ad litem, not parents, the

termination petition was not filed until after the review hearing had been scheduled, and, significantly, review

orders and record facts demonstrated that parents had made moderate progress. In the order that Mother is

challenging in this appeal, we scheduled a hearing on the termination petition. However, at the request of the

parties, that hearing has been continued until this appeal is decided.

9

evidence was presented, and matters that had been previously recited were

expanded upon and clarified.

At the review hearing, Father provided his version of what happened on June

30, 2012. The first portion of Father's story is consistent with the statements Mother

made at the time. Like Mother, Father indicated that the incident occurred when a

very bad argument erupted while Father was driving Mother to work and a tug-of-war

over T.W.'s car seat occurred after Father had pulled over to the side of the road. In

all other respects, the parents' respective versions of events were diametrically

opposed. (N.T. 4, pp. 91-101).

Father denied that he hit or verbally or physically abused Mother. In addition,

Father stated that Mother was the instigator. He adamantly denied throwing T.W. in

car seat from the vehicle. Instead, he testified that he tried to block Mother from

removing T.W. from the van, but that Mother, in the tug-of-war, was violently pulling

at the car seat and ultimately violently pulled the seat out of the van. Thereafter,

Mother held the car seat behind her while threating various types of action against

Father. This version of events is consistent with what Father had previously told CYS

workers. (N.T. 2, pp. 42-43, and 46-48; N.T. 3, pp. 3 and 48; N.T. 4, pp. 91-101).

Father's rendition of what happened during the June 30, 2012 incident was not

the only evidence presented during the review hearing of Mother's inappropriate

physical handling of T.W. and was not the only explanationfor T.W.'s injuries that he

advanced. Additionally, Father showed a CVS supervisor text messages in which

Mother informed Father that she had dropped T.W. two days before the June 30,

2012 incident and admitted to making up the allegationsagainst Father. (N.T. 3, pp.

10

59-62; N.T. 4, pp. 42-49). CVS found the timing of Father's disclosure to be

problematic, because the disclosure was made months after T.W. was adjudicated

dependent and long after the dropping incident should have been reported to medical

personnel. (N.T. 3, pp. 59-62; N.T. 4, pp. 25-26, 37, 42, and 49).

Along similar lines, Father's two versions about how T.W. was or could have

been injured was inconsistent with both parents' early contention, which Mother

resurrected during the review hearing, that T.W. had not been injured. (N.T. 3, pp.

59-62).

Between the time T.W. came into care and commencement of the December

2013 review hearing, significant events transpired in the parents' criminal cases.

First, Mother fully and formally recanted her story. She said that Father did not throw

T.W. out of the van. As a result, and because the injuries to T.W. were more

ambiguous than initially thought, the Commonwealth ultimately withdrew the charges

against Father. Mother, in turn, pied guilty to an amended charge of false reports to

law enforcement based on her lying to the police about Father. She was placed on

probation. (N.T. 3, pp. 39-48 and 95-104).

Evidence presented during the review hearing demonstrated that Mother and

Father's continuing course of abusive and violent conduct against each other, of

which the June 30, 2012 indent was a part, has not abated. Specifically, even after

Mother and Father were told they needed to stop the pattern of abuse and violence

before T.W. could safely be returned to either or both of them, there were additional

incidents in which one parent assaulted or allegedly assaulted the other. In several

of the incidents, police responded and the parent who committed the assault was

11

charged. In one incident, caught on videotape, Father assaulted Mother outside a

community library. In another incident, Mother cut Father with a knife. In still

another, mentioned above, Father assaulted Mother, who soon thereafter appeared

for a Master's hearing with a split lip.

The evidence also demonstrated that the parallel pattern of neither parent

following through on charges also continued: in each case in which an arrest was

made, charges were dropped because the victim spouse declined to cooperate or

appear for hearings. Similarly, the pattern of Mother and Father getting back

together after bouts of violence continued. After each incident, the parties

reconciled, although most recently they have played their reconciliation close to the

vest. (N.T. 3, pp. 11, 14-18, 58-62, and 65-75; N.T. 4, pp. 23-31 and 45-46).

PFA filings also continued. Father filed multiple PFA petitions against Mother,

the first three or four of which were dismissed because Father failed to appear. In a

final round of PFA filings, Father filed against Mother, Father's adult daughter, who

had purportedly come to live with him, also filed against Mother, and Mother filed a

against Father. All three petitions were dismissed after a hearing. (N.T., 3 pp. 14-18,

58-62, and Exhibit 4; N.T. 4, pp. 23-31, 110-122, and GAL Exhibits 1-5).

At the review hearing, Mother testified that she and Father are, finally,

estranged. She stated that they have not been together since September of 2013 ·

. when Father gave her the split lip. (N.T. 4, pp. 139-140). However, based on the

. history of this case, Mother's past deceptions, the evidence presented by CYS, the

conduct of both parents, and our in-court observations of Mother and Father, we did

not find Mother's statement credible. In this regard, as indicated, the violence and

12

domestic abuse has continued. The incident in which Mother cut Father with a knife

occurred at Father's residence. Despite the fact that the parties were supposedly

living apart and Father had asked for separate visits so he and Mother would not

come into contact with each other, Father has been seen driving Mother to and

dropping her off for visits and criminal hearings. Most recently, when CYS personnel

have attempted to ask about the current status of the parents' relationship, Father

has told them that it is none of the agency's business. (N.T. 3, pp. 11, 56-59, and 65-

75: N.T. 4, pp. 23-31, 71, and 84-88, 110-122).

While both parents demonstrated an inability to cease their violent and co-

dependent behaviors, each has made some progress. Specifically, both parents

completed their plan goals for counseling, parenting classes, anger management

classes, and related goals. In fact, Mother has exceeded the counseling and

education requirements, albeit with some prompting based on her criminal case and

probationary sentence. (N.T. 3, pp. 12, 49, and 52; N.T. 4, pp. 48 and 135-139). At

the same time, the evidence demonstrated that counseling and classes have not

been enough to help Mother either fix her unhealthy relationship with Father or

separate from him, and have similarly been insufficient to prompt Mother to stop her

own violent and abusive behaviors.

In addition, Mother has indicated that she is continuing her education, seeking

to become a nurse, and that she now works at JC Penny, both of which, if Mother is

following through, are positive. However, Mother has not responded to the requests

of CYS for documentation of her employment. (N.T. 3, pp. 11-12; N.T. 4, p. 140).

13

Further, both parents have visited on a regular or fairly regular basts, Mother

more so than Father. In fact, at one point, based on their completion of several plan

goals, Mother and Father progressed to having community visits. However, as

noted, there have some problems that resulted in Father asking for the visits to be

returned to the Agency. In addition, Father protested the participation of Mother's

family in visits, especially community visits. Further, the continued violence between

the parents, despite their completion of counseling and therapy, raised legitimate

safety concerns. As a result, visits were moved back to the CVS facility. (N.T. 3, pp.

12-15, 34-35, 49, and 52-60; N.T. 4, pp. 23-31, 48, 135, and 141-143).

Mother is currently living with her mother and her adult son in a three-bedroom

home in Stroudsburg. If she regains custody of T.W., Mother's plan would be to bring

T.W. into the home. However, the home is in a high crime and drug trafficking area.

In fact, Mother's adult son, whom she had at the outset of this case identified as a

resource for T.W., was arrested for possession of drugs with the intent to deliver after

selling drugs to a confidential informant in the home. (N.T. 3, pp. 11-12; N.T. 4, pp. ·

72-75, 132-133, 140, and 146-147).

Finally, consistent with their inconsistent, dysfunctional, co-dependent

relationship, each party, in his or her own way, advised the Court that they do not

believe that T.W. would be safe with the other parent. They did so despite the fact

that the circumstances that prompted each parent's safety concerns were known to

Mother and Father at the time of their past reconciliations and regardless of the fact

that they are now together again.

14

The totality of these facts and circumstances prompted us to issue the order

from which Mother has filed this appeal.

The applicable standard of review is well-established. As recently reiterated

by our Supreme Court:

[A]ppellate courts must apply an abuse of discretion

standard.... [l]n 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., [614 Pa. 275] 36 A.3d [567,] 572 [(Pa.2011)

(plurality) ]. 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. [613 Pa.

371], 34 A.3d 1, 51 ( [Pa.]2011); Christianson v. Ely, 575

Pa. 647, 838 A.2d 630, 634 (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 r

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