In the Interest of: S.I.M.S., a Minor

J-A18031-16 & J-A18032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.I.M.S., A IN THE SUPERIOR COURT OF

MINOR PENNSYLVANIA

APPEAL OF: YORK COUNTY

CHILDREN AND YOUTH SERVICES

No. 103 MDA 2016

Appeal from the Order Entered December 17, 2015

In the Court of Common Pleas of York County

Juvenile Division at No(s): CP-67-DP-0000065-2013

===============================================

IN THE INTEREST OF: L.J.L.E.K., A IN THE SUPERIOR COURT OF

MINOR PENNSYLVANIA

APPEAL OF: YORK COUNTY CHILDREN

AND YOUTH SERVICES

No. 104 MDA 2016

Appeal from the Order Entered December 16, 2015

In the Court of Common Pleas of York County

Juvenile Division at No(s): CP-67-DP-0000066-2013

==============================================

IN RE: ADOPTION OF: S.I.M.S., A IN THE SUPERIOR COURT OF

MINOR PENNSYLVANIA

J-A18031-16 & J-A18032-16

APPEAL OF: YORK COUNTY OFFICE OF

CHILDREN, YOUTH AND FAMILIES

No. 172 MDA 2016

Appeal from the Order Entered December 16, 2015

In the Court of Common Pleas of York County

Orphans' Court at No(s): 2015-0031

===============================================

IN RE: ADOPTION OF: L.J.L.E.K., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: YORK COUNTY CHILDREN

AND YOUTH SERVICES

No. 173 MDA 2016

Appeal from the Order Entered January 19, 2016

In the Court of Common Pleas of York County

Orphans' Court at No(s): 2015-0030

===============================================

IN RE: ADOPTION OF: S.I.M.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: GAL

No. 134 MDA 2016

Appeal from the Order Entered December 16, 2015

In the Court of Common Pleas of York County

Orphans' Court at No(s): 2015-0031

===============================================

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J-A18031-16 & J-A18032-16

IN RE: ADOPTION OF: L.J.L.E.K. IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: GUARDIAN AD LITEM

No. 135 MDA 2016

Appeal from the Order Entered January 19, 2016

In the Court of Common Pleas of York County

Orphans' Court at No(s): 2015-0030

==============================================

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

PENNSYLVANIA

APPEAL OF: GUARDIAN AD LITEM

No. 136 MDA 2016

Appeal from the Order Entered December 16, 2015

In the Court of Common Pleas of York County

Domestic Relations at No(s): CP-67-DP-0000065-2013

===============================================

IN THE INTEREST OF: L.J.L.E.K., A IN THE SUPERIOR COURT OF

MINOR PENNSYLVANIA

APPEAL OF: GUARDIAN AD LITEM

No. 137 MDA 2016

Appeal from the Order Entered December 16, 2015

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J-A18031-16 & J-A18032-16

In the Court of Common Pleas of York County

Juvenile Division at No(s): CP-67-DP-0000066-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016

Appellants, Children, Youth and Families (“CYF”) and Guardian ad litem

(“GAL”), appeal from the orders denying the petitions to involuntarily

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

S.I.M.S. (born in April of 2010) and L.J.L.E.K. (born in June of 2011)

(collectively “the Children”), as well as the orders changing the goal to

placement with legal custodian and establishing a concurrent goal of

reunification. Appellants also appeal from the orders denying the petitions

to involuntarily terminate the parental rights of T.A., who is the father of

S.I.M.S. (“Father 1”) and C.K., who is the father of L.J.L.E.K. (“Father 2”),

as well as the orders changing the goal to placement with legal custodian

and establishing a concurrent goal of reunification.1 For the reasons that

____________________________________________

1

On February 25, 2016, this Court consolidated CYF’s appeals, which were

docketed at 103 MDA 2016, 104 MDA 2016, 172 MDA 2016, and 173 MDA

2016. On February 25, 2016, this Court consolidated GAL’s appeals, which

were docketed at 134 MDA 2016, 135 MDA 2016, 136 MDA 2016, and 137

MDA 2016. Moreover, this Court sua sponte consolidated CYF’s and GAL’s

appeals.

*

Former Justice specially assigned to the Superior Court.

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follow, we vacate the trial court’s orders and remand for further proceedings

consistent with this decision.

On March 22, 2013, CYF filed an application for emergency protective

custody as to the Children on the basis the Children had unstable housing,

and following a hearing, the Children were placed with an emergency

caretaker. On April 9, 2013, the Children were adjudicated dependent with

the goal being return to a parent or guardian.

On March 24, 2015, CYF filed petitions to involuntary terminate

Mother’s, Father 1’s, and Father 2’s parental rights to the Children, and

change the placement goal to adoption. On July 2, 2015, July 9, 2015, and

August 25, 2016, the trial court held hearings on the petitions. On

December 16, 2015, the trial court denied CYF’s petitions to involuntarily

terminate Mother’s, Father 1’s, and Father 2’s parental rights to the

Children. The trial court also entered orders on December 17, 2015,

changing the goal to placement with legal custodian and establishing a

concurrent goal of reunification.

On January 14, 2016, CYF filed timely notices of appeal and concise

statements of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(a)(2)(i) and (b). On appeal, CYF raises the

following issues for our review:

1. Whether the [trial] court erred in failing to find that [CYF]

presented clear and convincing evidence to change the goal

from reunification to placement for adoption?

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2. Whether the [trial] court erred in failing to find that [CYF]

presented clear and convincing evidence that:

a. The parents, by conduct continuing for a period of at

least six (6) months immediately preceding the filing of

the petition for involuntary termination of parental

rights either have evidenced a settled purpose of

relinquishing parental claims to the minor children, or

have failed to perform their parental duties

b. The repeated and continued incapacity abuse, neglect,

or refusal of the parents have caused the minor children

to be without essential parental care, control or

substance necessary for their physical or mental well-

being and that the conditions and causes of the

incapacity, abuse, neglect, or refusal cannot or will not

be remedied by the parents.

c. The minor children have been removed from the care of

the parents by the court or under a voluntary

agreement with the agency for a period of at least six

(6) months, the conditions that led to the removal or

placement of the children continues to exist, the

parents cannot or will not remedy those conditions

within a reasonable period of time, the services or

assistance reasonably available to the parents are not

likely to remedy the conditions which led to the removal

or placement of the minor children within a reasonable

period of time, and termination of parental rights will

serve the best needs and welfare of the minor children.

d. The minor children have been removed from the care

and custody of the parents by the court or under a

voluntary agreement with an agency, twelve (12)

months or more have elapsed from the date of the

removal or placement, the conditions which [led] to the

removal or placement of the minor children continues to

exist and termination of parental rights would serve the

needs and welfare of the minor children.

3. Whether the [trial] court erred in failing to find that [CYF]

presented clear and convincing evidence that terminating the

parental rights of the parents would serve the best interest

of the minor children and would otherwise advance the

developmental, physical, and emotional needs and welfare of

the minor children?

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CYF’s Brief at 1-2.

On January 21, 2016, GAL filed timely notices of cross appeal, see

Pa.R.A.P. 511 and 903(b), and concise statements of errors complained of

on appeal pursuant to Pennsylvania Rule of Appellate Procedure

1925(a)(2)(i) and (b). On appeal, GAL raises the following issues for our

review:

1. Whether, in denying the termination of Mother’s parental

rights, the [t]rial court erred in its application of the case law

in that it gave too much weight to the bond that Mother may

have with the [C]hildren without consideration of whether the

bond was positive or negative in its overall impact on the best

interests of the [C]hildren?

2. Whether, with regard to the Fathers, the trial court erred in

giving any weight to the existence of a bond in that there was

little to no evidence that any bond existed or that such a bond

should be given more weight than the lack of effort,

availability, or progress in being resources for the Children[?]

3. Whether the [t]rial court erred in failing to give appropriate

weight to the [C]hildren’s needs for permanence as those

factors relate to the best interests of the [C]hildren[?]

4. With regard to the [c]hange of [g]oal, the GAL joined in the

[s]tatement of [m]atters complained of [p]ursuant to

Pa.R.A.P. 1925(b) by [CYF] and joins in [CYF’s brief].

GAL’s brief at 5-6.

Initially, we note that our review is guided by the following legal

precepts:

[With regard to the termination of parental rights,]

appellate courts must apply an abuse of discretion standard

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

termination of parental rights. As in dependency cases, our

standard of review requires an appellate court to accept the

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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, 30, 9

A.3d 1179, 1190 (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. As has been often stated,

an abuse of discretion does not result merely because the

reviewing court might have reached a different conclusion.

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 [the Supreme Court] discussed in In re R.J.T., there

are clear reasons for applying an abuse of discretion standard of

review in these cases. [The Supreme Court] observed that,

unlike trial courts, appellate courts are not equipped to make the

fact-specific determinations on a cold record, where the trial

judges are observing the parties during the relevant hearing and

often presiding over numerous other hearings regarding the child

and parents. In re R.J.T., [608 Pa. at 28–30], 9 A.3d at 1190.

Therefore,. . .we must defer to the trial judge so long as the

factual findings are supported by the record and the court's legal

conclusions are not the result of an error of law or an abuse of

discretion.

In re Adoption of S.P., 616 Pa. 309, 325-27, 47 A.3d 817, 826-27 (2012)

(citations omitted).

The Adoption Act, 23 Pa.C.S.A. §§ 2101–2938, controls termination of

parental rights proceedings. In re L.M., 923 A.2d 505, 511 (Pa.Super.

2007). Specifically, Section 2511 requires the trial court to engage in a

bifurcated process before terminating parental rights. Initially, the focus is

on the conduct of the parents.

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 [trial] court determines that the parent's conduct

warrants termination of his or her parental rights does the court

engage in the second part of the analysis pursuant to Section

2511(b): determination of the needs and welfare of the child

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

aspect of the needs and welfare analysis concerns the nature

and status of the emotional bond between parent and child, with

close attention paid to the effect on the child of permanently

severing any such bond.

In re Adoption of J.M., 991 A.2d 321, 323 (Pa.Super. 2010) (quotation

omitted). Clear and convincing evidence is “testimony that is so clear,

direct, weighty and convincing” as to enable the fact-finder to come to a

clear conviction, “without hesitance, of the truth of the precise facts in

issue.” Id. (quotation omitted).

Moreover, we note that we review a trial court’s determinations

regarding a goal change under an abuse of discretion standard. Thus, we

“accept the findings of fact and credibility determinations of the trial court if

they are supported by the record, but [we are] not require[d]. . .to accept

the lower court's inferences or conclusions of law.” In re A.B., 19 A.3d

1084, 1088 (Pa.Super. 2011) (quotation omitted).

Petitions for a goal change are controlled by the Juvenile Act, 42

Pa.C.S.A. §§ 6301-6375. We have recognized that the statute seeks to

benefit the best interests of the child, and not the parents. In re M.S., 980

A.2d 612, 615 (Pa.Super. 2009). “Pennsylvania’s Juvenile Act focuses upon

reunification of the family, which means that the unity of the family will be

preserved ‘whenever possible.’” Id. (quotation omitted).

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Further, at permanency review hearings for dependent children

removed from the parental home, a trial court must consider the following

factors.

§ 6351. Disposition of dependent child

...

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

At each permanency hearing, a court shall determine all of the

following:

(1) The continuing necessity for and appropriateness

of the placement.

(2) The appropriateness, feasibility and extent of

compliance with the permanency plan developed for

the child.

(3) The extent of progress made toward alleviating

the circumstances which necessitated the original

placement.

(4) The appropriateness and feasibility of the

current placement goal for the child.

(5) The likely date by which the placement goal for

the child might be achieved.

(5.1) Whether reasonable efforts were made to

finalize the permanency plan in effect.

(6) Whether the child is safe.

...

(9) If the child has been in placement for at least 15

of the last 22 months or the court has determined

that aggravated circumstances exist and that

reasonable efforts to prevent or eliminate the need

to remove the child from the child’s parent, guardian

or custodian or to preserve and unify the family need

not be made or continue to be made, whether the

county agency has filed or sought to join a petition

to terminate parental rights and to identify, recruit,

process and approve a qualified family to adopt the

child[.]

42 Pa.C.S.A. § 6351(f)(1)-(6), (9).

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In the case sub judice, the record is clear that, in denying CYF’s

petitions to involuntarily terminate the parental rights of Mother and the two

fathers, the trial court relied solely upon a parent-child bond analysis. For

instance, during the December 16, 2015, hearing, the trial court, indicating

it had reviewed the testimony from the previous hearings, ruled as follows:

Turning first to the July 2, 2015, transcript, Kelly Jacobs,

the children’s therapist, testified that based upon what the

children have told her she believes that the children do enjoy

visits with mother the majority of the time. She thinks it’s clear

that there is a love between mother and children. But she goes

on to say that she does not know to what extent because she

has not seen them together.

Later in the testimony she indicates that the children told

her positive things about their visits with mother and that it was

clear from her conversations with the children that they do have

a love for their mom.

The Catholic Charities therapist, Chelsea Jones, also

testified at that day’s hearing. On cross-examination when

asked to describe the interaction that occurs between mother

and children, she says it’s positive, mother loves the children,

there is physical contact. The children in her opinion don’t seem

uncomfortable with her. They seem comfortable with her.

When we came back to [the] hearing on July 9, 2015, the

caseworker, Kristina Scott, indicated that she had the

opportunity to observe the interaction between the children and

their mother and opined that the interaction between the

children and their mother and the children and their foster

parents really doesn’t differ. They are equally as excited to see

[Mother] as their foster parents.

And she went on to testify that she believes the same is

true regarding the interaction [Father 2] has with his child, that

it is the same as with the foster parents. In regard to that

interaction between foster parents and the children, Ms. Scott

testified that the children have [a] very good interaction with the

foster family. They sit next to them on their laps, or they are

standing behind them playing in their hair. They have a very

good bond with the foster parents.

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Later in her testimony Ms. Scott was asked if she believes

there would be any long-term negative impact upon [S.I.M.S.] if

her parents’ rights were to be terminated. She says, yes, if

mother was cut completely out of their lives. She went on to say

that mother and children have a very strong bond. She also

indicated that she believes it’s not just mother that has a strong

bond with the children, but the children also have a strong bond

with their mother.

On the third day of the hearing, on August 25, 2015, Ms.

Scott again testified, and she indicated that [S.I.M.S.] interacts

very well with her mother, as does [L.J.L.E.K.].

Further in the testimony she indicates that her opinion that

the children and mother share a strong bond with each other is

based upon her observing the interaction between the two

children and their mother.

And finally, Ms. Scott testifies with regards to the bonding

issue that she believes that [Father 2], father of [L.J.L.E.K.], has

a strong bond with [L.J.L.E.K.].

And that is the extent of the testimony on the parent/child

bond that was presented at this hearing.

So the question for the [c]ourt is, given the extent and

nature of that testimony and the requirement we not terminate

parental rights unless the evidence we found credible clearly and

convincingly proves that it is in the best interest of the child in

question to do so, and that a key component of that best

interests analysis is what, if any, bond exists between parent

and child, and what the nature of the bond is.

We cannot conclude that the evidence presented with

regards to these petitions on the three days of the hearing

clearly and convincingly proves that it is in the best interest and

welfare of the child to terminate the parents’ rights because of

the fact all of the evidence of bonding presented tends to prove

that there is a strong bond between mother and her children and

[Father 2] and his child, and that in particular [S.I.M.S.] would

suffer long-term ill effects should she be cut off from her

mother.

Now, it is for that reason that I’m going to deny the

request that the mother’s rights to these two children be

terminated. And because I don’t think it would be in the best

interest of the children under these circumstances to terminate

either of the father’s rights, we are not going to terminate their

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rights. There’s no point in leaving the child with only one

parent.

N.T., 12/16/15, at 7-12.2

Additionally, at the hearing, the trial court indicated that based on the

parent-child bond assessment, it was denying CYF’s request to change the

goal to adoption. Id. at 12.

We conclude that, while the parent-child bond was an important factor

to be considered by the trial court in the matter at hand, it was not the sole

factor. As indicated supra, in termination matters, the trial court must

initially focus on the parents’ conduct and determine whether the party

seeking termination has proven by clear and convincing evidence that the

parents’ conduct satisfies one of the statutory grounds for termination under

Section 2511(a). In re Adoption of J.M., supra. The trial court

improperly conducted no such inquiry in this case.

Moreover, as it relates to the best interest of the children inquiry under

Section 2511(b), we conclude the trial court improperly limited its inquiry to

an assessment of the natural parent-child bond, and even in this regard, the

trial court’s analysis is incomplete as it relates to Father 1 and Father 2.

Specifically, with regard to the fathers’ bonds, the trial court did not conduct

____________________________________________

2

On January 19, 2016, the trial court subsequently filed this portion of the

transcript as an Opinion and order.

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any bond analysis with regard to Father 1 and S.I.M.S., and the bond

analysis with regard to Father 2 and L.J.L.E.K. is scant.

In any event, with respect to Section 2511(b), this Court has

explained the requisite analysis involves a determination of whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child. This Court has stated:

“Intangibles such as love, comfort, security, and stability are involved in the

inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa.Super. 2005) (citation omitted).

While an examination of the parent-child bond, and the effect

severance of the bond will have on the child are important considerations

under Section 2511(b), they are not the sole considerations. See id.

Stated differently, the trial court must give adequate consideration to all of

the needs and welfare of the child, and not solely to the emotional bond, if

any, between the natural parent and child. In re K.Z.S., 946 A.2d 753

(Pa.Super. 2008).

Additionally, as our Supreme Court has stated: “Common sense

dictates that courts considering termination must also consider whether the

children are in a pre-adoptive home and whether they have a bond with

their foster parents.” In re T.S.M., 620 Pa. 602, 629, 71 A.3d 251, 268

(2013) (citation omitted). Moreover, our Supreme Court has directed that,

in weighing the bond considerations pursuant to Section 2511(b), “courts

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must keep the ticking clock of childhood ever in mind.” Id. at 631, 71 A.3d

at 269. The Supreme Court observed in In re T.S.M. that “[c]hildren are

young for a scant number of years, and we have an obligation to see to their

healthy development quickly. When courts fail. . .the result, all too often, is

catastrophically maladjusted children.” Id.

Further, with regard to the termination of parental rights, inasmuch as

the record suggests Father 1 and Father 2 are incarcerated, it bears

mentioning that our Supreme Court has held that incarceration is a factor to

be considered in determining whether a parent’s rights should be

involuntarily terminated. In re Adoption of S.P., supra. Here, the trial

court did not mention Father 1’s and Father 2’s incarceration in conducting

its termination analysis.

Finally, as it relates to the permanency review hearing and in

determining whether a goal change was necessary, in rendering its orders,

the trial court erroneously relied solely on a parent-child bond assessment

and did not consider the factors set forth in Section 6351(f). We conclude

this was error. See 42 Pa.C.S.A. § 6351(f); In re R.J.T., supra (indicating

the trial court must consider the factors in Section 6351(f) in determining

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what placement is best suited to the safety, protection and physical, mental

and moral welfare of the child under 42 Pa.C.S.A. § 6351(g)).3

For all of the aforementioned reasons, we vacate the trial court’s

orders entered in this matter and remand for the trial court to conduct a

proper analysis under Sections 2511(a) and (b) of the Adoption Act with

regard to CYF’s petitions to involuntarily terminate the parental rights of

Mother, Father 1, and Father 2 as to the Children. Moreover, we direct the

trial court to conduct a proper analysis under the Juvenile Act as it applies to

CYF’s petition for a change of goal as to the Children.

Orders Vacated; Case remanded with Instructions; Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2016

____________________________________________

3

We note that, in its Pa.R.A.P. 1925(a) opinion, the trial court elaborated

that it considered factors (1) to (6) of Section 6351(f). However, although

the trial court admitted that the date by which the goal for the Children

might be achieved is “unknown,” and reunification is “currently not

appropriate because Mother is not ready to resume custody of the

Children[,]” the trial court declined to change the goal placement to adoption

solely because of the “strong, positive bond between Mother and the

Children[.]” Trial Court’s Pa.R.A.P. 1925(a) Opinion, filed 2/22/16, at 7-10.

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