In the Interest of: N.M., A Minor

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2018 PA Super 119

IN THE INTEREST OF: N.M., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: J.C., MOTHER :

:

:

:

: No. 154 EDA 2017

Appeal from the Order December 8, 2016

In the Court of Common Pleas of Philadelphia County Family Court at

No(s): CP-51-DP-0000856-2016,

FID: 51-FN-000792-2016

*****

IN THE INTEREST OF: N.M., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: N.M., FATHER :

:

:

:

: No. 190 EDA 2017

Appeal from the Order Entered December 8, 2016

In the Court of Common Pleas of Philadelphia County Juvenile Division at

No(s): CP-51-DP-0000856-2016

*****

IN THE INTEREST OF: N.W.M., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: N.M., FATHER :

:

:

:

: No. 3714 EDA 2017

Appeal from the Decree Entered October 26, 2017

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In the Court of Common Pleas of Philadelphia County Family Court at

No(s): CP-51-AP-0000573-2017,

CP-51-DP-0000856-2016

*****

IN THE INTEREST OF: N.W.M., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: J.C., MOTHER :

:

:

:

: No. 3715 EDA 2017

Appeal from the Decree Entered October 26, 2017

In the Court of Common Pleas of Philadelphia County Family Court at

No(s): CP-51-AP-0000573-2017,

CP-51-DP-000856-2016

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

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

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

trial court’s permanency orders1 designating reunification with Parents or

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

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1 We have sua sponte consolidated Mother’s and Father’s appeals, 154 EDA

2017 & 190 EDA 2017 and 3714 EDA 2017 & 3715 EDA 2017, as they are

taken from the same orders and involve the same issues. See Pa.R.A.P. 513

(Consolidation of Multiple Appeals).

*Retired Senior Judge Assigned to the Superior Court.

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

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

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

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

changing the goal to adoption and involuntarily terminating3 their parental

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

3 As noted in the procedural history of this opinion, on October 26, 2017, the

trial court changed the goal from reunification to adoption and involuntarily

terminated Parents’ parental rights to N.M. in response to DHS’s May 23, 2017

involuntary termination petition. Parents have appealed that decision, which

we have chosen to consolidate with this matter. See infra n.1; see also In

re: N.M., 3714 EDA 2017 & 3715 EDA 2017. Notably, a court-ordered goal

change is not a condition precedent to the filing of a petition to terminate

parental rights. See In re Adoption of S.E.G., 901 A.2d 1017 (Pa. 2006).

On January 18, 2018, this Court stayed the order changing the goal to

adoption and terminating Parents’ rights. Our Court also reinstated parental

visitation until resolution of the current appeal.

We also recognize that the trial court had jurisdiction to address the

petition to terminate Parents’ parental rights while the appeals of the current

permanency review orders were pending. The appeals of the permanency

review orders addressed Parents’ rights to reunification with N.M. and a

change of her placement to kinship care, which is a separate issue from

whether Parents’ rights should be terminated. See Pa.R.A.P. 1701(c) (“Where

only a particular item, claim or assessment adjudged in the matter is involved

in an appeal, . . . the appeal . . . shall operate to prevent the trial court . . .

from proceeding further with only such item, claim or assessment, unless

otherwise ordered by the trial court or other government unit or by the

appellate court or a judge thereof as necessary to preserve the rights of the

appellant.”).

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

vacate.

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

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

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

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

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

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

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

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

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

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

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

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

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4 Due to the interrelated procedural history as well as the fact that the parties

and issues are the same in the matters, we have chosen to consolidate

Parents’ permanency appeals and termination appeals. See In the Interest

of M.T., 101 A.3d 1163 (Pa. Super. 2014) (where goal change issues and

termination issues in separately filed appeals were interrelated and implicated

trial court's assessment of sufficiency and weight of evidence, our Court

properly addressed issues together).

5 Mother is a nurse practitioner at the Hospital of the University of

Pennsylvania; Father is a graphic designer.

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

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

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

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

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

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

A report was filed with the Philadelphia Department of Human Services

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

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

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

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

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

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

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

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

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6 At a follow-up appointment on April 21, 2016, it was noted that “[N.M.’s]

repeat skeletal survey . . . show[ed] healing of the prior known fractures as

well as likely nondisplaced healing fracture of the posterior left fifth rib ([that]

would be consistent with the same time frame as the previously identified

fractures), more visible now on follow-up imaging in the setting of ongoing

healing.” CHOP Visit Summary, 4/21/16.

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

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

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

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

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

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

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

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

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

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

founded and identified Parents as the perpetrators.9

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7 Interestingly, Dr. Stavas testified that genetic testing showed a variant or

mutation that was “unlikely to contribute to the health of [N.M.’s] bones [but

she] could not make a definitive statement as to whether or not it contributed

to her fractures.” N.T. Adjudicatory Hearing, 7/7/16, at 53. Doctor Stavas,

however, did testify definitively that N.M. does not have osteogenesis

imperfect (OI), which is also known as brittle bone disease, a genetic disorder

that mainly affect the bones and results in bones that break easily.

8 Once a child has been adjudicated dependent, the issue of custody and

continuation of foster care are determined according to a child’s best interest.

R.P. v. L.P., 957 A.2d 1205 (Pa. Super. 2008).

9 As part of a dependency adjudication, a court may find a parent to be the

perpetrator of child abuse, as defined by the Child Protective Services Law

(CPSL). In re L.Z., 111 A.3d 1164, 1176 (Pa. 2015). The CPSL defines “child

abuse” in relevant part as follows:

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

care with his paternal grandmother, pursuant to an emergency protective

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

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

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

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

Parents.

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The term “child abuse” shall mean intentionally, knowingly or

recklessly doing any of the following:

(1) Causing bodily injury to a child through any recent act

or failure to act.

* * *

(5) Creating a reasonable likelihood of bodily injury to a

child through any recent act or failure to act.

23 Pa.C.S. § 6303(b.1)(1), (5). The CPSL defines “child” as “[a]n individual

under 18 years of age.” 23 Pa.C.S. § 6303(a). “[B]odily injury” is defined

under the CPSL as “[i]mpairment of physical condition or substantial pain.”

Id. at § 6303(a).

10 Pursuant to 42 Pa.C.S. § 6341(a):

[A] court is empowered . . . to make a finding that a child is

dependent if the child meets the statutory definition by clear and

convincing evidence. If the court finds that the child is dependent,

then the court may make an appropriate disposition of the child

to protect the child's physical, mental and moral welfare, including

allowing the child to remain with the parents subject to

supervision, transferring temporary legal custody to a relative or

a private or public agency, or transferring custody to the juvenile

court of another state.

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

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

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

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

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

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

“expedited” parenting capacity evaluation.

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

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

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

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

the following statements on the record:

So, you know what, if we’re going to stay stuck, we’re going to

stay stuck. Because either someone has to cop to it or there

has to be a plausible explanation with the significance of

the injuries to [N.M.] because I’m telling you that

testimony by the doctor was so damning. She sealed any

doubt, any variable that it could be anything but abuse.

* * *

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

(en banc) (emphasis added).

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So, I don’t know how we get over this hurdle. I’m definitely not

going to allow supervised visits in the parent’s home because I

need line of sight, line of hearing. As far as I’m concerned . . .

this is still an open investigation.11 Until we get some closure

about how this happened, we’re not going to get beyond

this. I can’t look the other way on that. I just can’t. . . .

[U]nless somebody is willing to say, “This is how [N.M.] got

injured,” [N.M.] can’t come back to that home because I

can’t risk it a second time and a worse injury. I can’t do it.

And we don’t have any explanations.

So, I don’t know what you want me to do. I’m open to any

suggestions to try to move this forward to reunification, but that’s

the bottom line. We can talk about services and how parents are

fully compliant. I'll find that the parents are fully compliant.

It doesn't move the needle for me. We came in because a

baby was injured. And the thing that brought this case into [court]

still exist[s] with no explanation. Can’t do reunification if

that’s the case.

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We had the child abuse hearing. At some point in time if it’s going

to move the needle[,] I would allow the doctor to testify today. I

would. I would. I absolutely would.

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11 To date, no criminal proceedings have been instituted against Parents

regarding the abuse to N.M. Despite the trial judge’s statement in her August

10, 2017 opinion that at the July 7, 2016 adjudicatory hearing “the Court

found child abuse aggravated circumstances existed,” in fact, DHS did not

pursue a finding of aggravated circumstances. See N.T. 7/7/16, at 17 (“It is

not my expectation to . . . pursue aggravated circumstances at this time.”);

id. at 19 (“I’m not requesting the aggravating finding.”). Under 42 Pa.C.S. §

6315(e)(2), “If the county agency or the child’s attorney alleges the existence

of aggravated circumstances and the court determines that the child has been

adjudicated dependent, the court shall then determine if aggravated

circumstances exist.”). Thus, it is a condition precedent that either the county

agency or child’s attorney allege aggravating circumstances before a trial

court can make such a determination.

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And as the [c]ourt I will be open and receptive to anything you

bring for me. That’s why I’m not saying no if they had a geneticist

come in and say, “This is where we are.”

I’m willing to receive that, but, until such time I can’t do anything

because the bottom line is I have to ensure the child’s safety.

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I guess the other side of the conversation is if I leave her

[in foster care] maybe I get closer to an answer as to what

happened instead of moving her to grandmom. . . . So, I'm

not going to consider kinship care.

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

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

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

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

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

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

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

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

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

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

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12 Parents continued to engage in both individual and couple’s therapy.

Parents successfully graduated from Family School in July 2017.

13 Claire Leotta, Esquire, was counsel of record for Mother.

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

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

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

(Emphasis added).

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

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

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

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

refused to accept from Attorney Freeman the reports and curriculum

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

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

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

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

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

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

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

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

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

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14 Specifically, the court referenced a motion to remove an attorney from the

City Solicitor’s Office from the case. The court, however, determined that it

did not have jurisdiction over the matter because it was brought in an

improper forum.

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

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

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

terminate Parents’ rights to N.M.15

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

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

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

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

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

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

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

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15 On August 17, 2017, our Court denied Parents’ motion to stay the

termination hearing until resolution of their permanency appeals. However,

on December 1, 2017, our Court granted Parents’ motion to stay the

termination and goal change orders and reinstated Parents’ visitation pending

resolution of the instant matter. See Order, Nos. 3714 & 3715 EDA 2017

(filed 12/1/17). Our Court further ordered that reinstated visitation begin no

later than the week of January 29, 2018, permitting Parents four hours of

supervised visitation at the agency per week, modifiable by agreement of the

parties. Order, Nos. 3714 & 3715 EDA 2017 (filed 1/18/18).

16 At the hearing, Attorney Freeman told the trial judge that he had a

radiologist and endocrinologist to offer testimony in the matter. N.T. Hearing,

7/11/17, at 43. The court prevented the experts from testifying, noting that

the child abuse finding was final and that the only new evidence the court

would allow in would be something “that could not have been obtained at the

time of the adjudicatory hearing in July 2016 . . . [and would be something]

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

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

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

forms waiving any potential psychotherapist-patient privilege. In concluding

the hearing, the court pronounced the following:

Let me just say this and let me be clear: this matter is going to

be heard for a contested goal change termination on 10/26/2017.

That means by September 26, 2017, there should be an

exchange of all exhibits amongst parties that are to be –

that will be used in anticipation of the next court date. That

would also include witness lists. So if there’s experts, CVs,

whatever you need should be produced to all parties by

September 26th and that gives you 30 days in anticipation of the

next court date.

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

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

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

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

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

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

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

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unusual and [that] nobody could have foreseen that that would have been the

case in July 2016.” Id. at 45.

17See L.Z., supra n.7 (finding of child abuse in dependency proceeding can

be appealed to Superior Court).

18 23 Pa.C.S. §§ 2101-2910.

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

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

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

of on appeal.

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

following issues for our consideration:

(1) Whether the trial court erred and/or abused its discretion by

entering an order on December 8, 2016 denying Mother &

Father reunification with N.M.? More specifically, the trial

court abused its discretion as substantial, sufficient and

credible evidence was presented at the time of trial

indicating Mother [and] Father were fully compliant with all

of their goals and the Court indicated that finding on the

record, yet ordered that the case remain "status quo".

(2) Whether the trial court erred and/or abused its discretion by

entering an order on December 8, 2016 denying counsel’s

repeated requests to have N.M. moved to a kinship care

home rather than continue to reside in general foster care?

More specifically, the trial court abused its discretion by not

following State [and] Federal Laws regarding kinship care

placement of children when substantial, sufficient and

credible evidence was presented to the Court indicating that

an approved family member was ready and available to care

for N.M.

(3) Whether the trial court erred and/or abused its discretion by

violating the protections of the Due Process Clause as

guaranteed by both the Pennsylvania Constitution and the

United States Constitution by halting the stated goal of

reunification, without appropriate notice to Mother and

Father of the Court’s change in the Permanency Plan, thus

denying Mother and Father notice and an opportunity to

prepare and be heard on such issue?

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

the following issues for our consideration:

(1) Whether the [t]rial [c]ourt erred and/or abused its

discretion by denying Parents[’] Motion to Recuse Judge

Younge?

(2) Whether the [t]rial [c]ourt erred and/or abused its

discretion when it excluded testimony from the Parents’

licensed therapists?

(3) Whether the [t]rial [c]ourt erred and/or abused its

discretion when it found clear and convincing evidence that

the individual and couples therapy in which Parents were

engaged in failed to comply with the Permanency Plan?

(4) Whether the [t]rial [c]ourt erred and/or abused its

discretion when it excluded evidence that N.[]M.’s sibling[,]

E.M.[,] had been returned to Parents’ custody and E.M. had

been deemed safe in Parents’ care?

(5) Whether the [t]rial [c]ourt erred and/or abused its

discretion by entering an order that no family members be

explored for N.[]M.’s placement, despite counsel’s repeated

requests to have N.[]M. moved to approved kinship care

home rather than continue to reside in general foster care?

(6) Whether the [t]rial [c]ourt erred and/or abused its

discretion in finding DHS met its burden by clear and

convincing evidence that Parental rights to N.[]M. should be

involuntarily terminated and the goal changed19 to

adoption?

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19We have described our standard and scope of review in dependency

cases as follows:

[W]e must accept the facts as found by the trial court unless they

are not supported by the record. Although bound by the facts, we

are not bound by the trial court's inferences, deductions, and

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Appellants’ Briefs, at 9.

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

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

particular, we must examine whether the permanency review orders of

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

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

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

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

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

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

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

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

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conclusions therefrom; we must exercise our independent

judgment in reviewing the court’s determination as opposed to the

findings of fact, and must order whatever right and justice dictate.

We review for abuse of discretion. Our scope of review,

accordingly, is of the broadest possible nature. It is this Court’s

responsibility to ensure that the record represents a

comprehensive inquiry and that the hearing judge has applied the

appropriate legal principles to that record. Nevertheless, we

accord great weight to the court’s fact-finding function because

the court is in the best position to observe and rule on the

credibility of the parties and witnesses.

In re D.P., 972 A.2d 1221, 1225 (Pa. Super. 2009) (quoting In re C.M., 882

A.2d 507, 513 (Pa. Super. 2005)). In considering a goal change, “the best

interests of the child, and not the interests of the parent, must guide the trial

court, and the parent's rights are secondary.” Id. at 1227 (citing In re A.K.,

936 A.2d 528, 532-533 (Pa. Super. 2007)).

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

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

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

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

remained reunification throughout and Parents never asked for it to be

changed. Moreover, the instant permanency orders neither affected visitation

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

with exception of enforcement or contempt proceedings, are final when

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

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

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

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20 Kinship care under 62 P.S. § 1303(b) is a subset of foster care in which the

care provider already has a close relationship to the child. In kinship care,

legal custody of the child remains with the agency, and the agency places the

minor child with an appropriate caregiver, who is typically a family member.

The court may place children with a foster family, although there might be

willing relatives, where foster care is in the best interests of the children or

aggravated circumstances exist. The goal of preserving the family unit cannot

be elevated above all other factors when considering the best interests of

children, but must be weighed in conjunction with other factors. Section

§1303(b) of the Kinship Care Program provides as follows:

(b) Placement of children.— If a child has been removed from the

child's home under a voluntary placement agreement or is in the

legal custody of the county agency, the county agency shall give

first consideration to placement with relatives. The county agency

shall document that an attempt was made to place the child with

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

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

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

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

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

provided mother continued to make efforts toward satisfying a family service

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

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

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

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

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

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

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

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

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

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

____________________________________________

a relative. If the child is not placed with a relative, the agency

shall document the reason why such placement was not possible.

62 P.S. § 1303(b).

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

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

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

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

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

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

Case law has supported the argument, however, that certain

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

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

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

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

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

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

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

evidence during dependency proceedings is not separate from, or collateral

____________________________________________

21 In H.S.W.C.-B., supra, the Court noted that “[m]aintaining the status

quo[, by denying goal changes,] could put the needs and welfare of a child at

risk.” Id. at 911. “Foster care may be the status quo, but to ‘allow these

children to languish in foster care . . . not only defies common sense, but it is

contradictory to the applicable law and to the best interest of the children.’”

In re R.T., 778 A.2d 670, 681 (Pa. Super. 2001). In R.T., parents had been

provided services by CYS for “eight fruitless years,” and had been “[unable]

or refus[ed] to complete the goals on their Placement Plan Amendments.” Id.

at 682. Again, the status quo in these cases involved goals, not placement.

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

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

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

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

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

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

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

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

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

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

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

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

it at this point.

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

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

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

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

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

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

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

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

raised in these consolidated appeals.

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

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

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

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

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

at such hearings, including:

____________________________________________

22 Under section 6351:

(e) Permanency hearings.

(1) The court shall conduct a permanency hearing for the

purpose of determining or reviewing the permanency plan

of the child, the date by which the goal of permanency for

the child might be achieved and whether placement

continues to be best suited to the safety, protection and

physical, mental and moral welfare of the child. In any

permanency hearing held with respect to the child, the court

shall consult with the child regarding the child’s permanency

plan, including the child’s desired permanency goal, in a

manner appropriate to the child’s age and maturity. If the

court does not consult personally with the child, the court

shall ensure that the views of the child regarding the

permanency plan have been ascertained to the fullest extent

possible and communicated to the court by the guardian ad

litem under section 6311 (relating to guardian ad litem for

child in court proceedings) or, as appropriate to the

circumstances of the case by the child’s counsel, the court-

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(1) The continuing necessity for and appropriateness of the

placement.

(2) The appropriateness, feasibility and extent of compliance with

the permanency plan developed for the child.

(3) The extent of progress made toward alleviating the

circumstances which necessitated the original placement.

(4) The appropriateness and feasibility of the current

placement goal for the child.

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

be achieved.

(5.1) Whether reasonable efforts were made to finalize the

permanency plan in effect.

(6) Whether the child is safe.

* * *

(9) If the child has been in placement for at least 15 of the last 22

months or the court has determined that aggravated

circumstances exist and that reasonable efforts to prevent or

eliminate the need to remove the child from the child’s parent,

guardian or custodian or to preserve and reunify the family need

not be made or continue to be made, whether the county agency

has filed or sought to join a petition to terminate parental rights

and to identify, recruit, process and approve a qualified family to

adopt the child unless:

____________________________________________

appointed special advocate or other person as designated

by the court.

42 Pa.C.S. § 6351(e)(1). The court shall conduct permanency review hearings

“[w]ithin six months of the date of the child’s removal from the child’s

parent[;] or each previous permanency hearing until the child is returned to

the child’s parent, guardian or custodian or removed from the jurisdiction of

the court.” Id. at (e)(3)(i)(A). The court shall also conduct permanency

hearings “[w]ithin 30 days of a petition alleging that the hearing is necessary

to protect the safety or physical, mental or moral welfare of a dependent

child.” Id. at (e)(3)(ii)(D).

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(i) the child is being cared for by a relative best suited to

the physical, mental and moral welfare of the child;

(ii) the county agency has documented a compelling reason

for determining that filing a petition to terminate parental

rights would not serve the needs and welfare of the child;

or

(iii) the child’s family has not been provided with necessary

services to achieve the safe return to the child’s parent,

guardian or custodian within the time frames set forth in the

permanency plan.

* * *

(11) If the child has a sibling, whether visitation of the child with

that sibling is occurring no less than twice a month, unless a

finding is made that visitation is contrary to the safety or well-

being of the child or sibling.

(12) If the child has been placed with a caregiver, whether the

child is being provided with regular, ongoing opportunities to

participate in age-appropriate or developmentally appropriate

activities. In order to make the determination under this

paragraph, the county agency shall document the steps it has

taken to ensure that:

(i) the caregiver is following the reasonable and prudent

parent standard; and

(ii) the child has regular, ongoing opportunities to engage in

age-appropriate or developmentally appropriate activities.

The county agency shall consult with the child regarding

opportunities to engage in such activities.

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

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

court shall determine one of the following:

(1) If and when the child will be returned to the child’s parent,

guardian or custodian in cases where the return of the child is best

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

welfare of the child.

(2) If and when the child will be placed for adoption, and the

county agency will file for termination of parental rights in cases

where return to the child’s parent, guardian or custodian is not

best suited to the safety, protection and physical, mental and

moral welfare of the child.

(3) If and when the child will be placed with a legal custodian in

cases where the return to the child’s parent, guardian or custodian

or being placed for adoption is not best suited to the safety,

protection and physical, mental and moral welfare of the child.

(4) If and when the child will be placed with a fit and willing

relative in cases where return to the child’s parent, guardian or

custodian, being placed for adoption or being placed with a legal

custodian is not best suited to the safety, protection and physical,

mental and moral welfare of the child.

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

the court shall order the continuation, modification or termination of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

____________________________________________

23 Andrew C. Edmondson, MD, PhD, a geneticist fellow at CHOP, issued a

progress note on May 3, 2016, concluding that her genetic mutation (LEPRE1),

see infra n.24, is inconsistent with the inheritance pattern of the recessive

form of OI and that her fractures do not fit with the described phenotype of

individuals with recessive OI due to that type of mutation. Thus, he opined,

that “this change is most likely a neutral variant [and] does not explain her

clinical presentation.” Progress Notes of Andrew C. Edmondson, MD, PhD,

5/3/16, at 1.

24 Genetic testing revealed that N.M. has a gene, LEPRE1, that affects collagen

modification and produces prolyl 3-hydroxylase 1 (P3H1). P3H1 interacts with

collagen and modifies amino acids in the collagen chains. Recessive Forms

of OI, Osteogenesis Imperfecta Foundation (May 2007). Although Dr. Stavas

testified that N.M. does not have OI, see N.T. Adjudicatory Hearing, 7/7/16,

at 84, defects in P3H1 appear to account for most of the cases of severe/lethal

OI which do have biochemically abnormal collagen, but do not have a collagen

mutation. In fact, recessive OI has been discovered only in individuals with

lethal, severe or moderate OI. Recessive Forms of OI, supra. See supra

n.7.

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

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

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

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

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

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

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

at the exact moment of injury.”).

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

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

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

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

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

at 4.

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

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

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

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

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

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

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

Russell and Duggal opined that if Parents followed their recommended course

____________________________________________

25 Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S. §§

6301-75. However, the Child Protective Services Law (CPSL) controls

determinations regarding findings of child abuse, which the juvenile courts

must find by clear and convincing evidence. See In the Interest of J.R.W.,

631 A.2d 1019 (Pa. Super. 1993). The CPSL, defines, in part, a “founded

report,” where there has been a judicial adjudication that includes a “finding

of dependency under 42 Pa.C.S. § 6341 (relating to adjudication) if the court

has entered a finding that a child who is the subject of the report has been

abused.” 23 Pa.C.S. § 6303(a)(1)(iii). “Child abuse” is defined, in part, under

the CPSL as “intentionally, knowingly or recklessly . . . [c]ausing bodily injury

to a child through any recent act or failure to act.” Id. § 6303(b.1)

26 Under the Juvenile Act, courts employ a prima facie evidentiary standard in

making a legal determination as to the identity of the abuser in child abuse

cases. See 23 P.S. § 6381(d) (“Evidence that a child has suffered serious

physical injury, sexual abuse or serious physical neglect of such a nature as

would ordinarily not be sustained or exist except by reason of the acts or

omissions of the parent or other person responsible for the welfare of the child

shall be prima facie evidence of child abuse by the parent or other person

responsible for the welfare of the child.”). However, there must still be clear

and convincing evidence to establish that the child was abused. Moreover, a

finding of child abuse under the Juvenile Act is not the same as a finding of

guilt in a criminal proceeding.

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

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

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

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

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

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

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

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

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

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

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

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

While reunification with Parents may not have been appropriate

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

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

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

____________________________________________

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

It is true that in furtherance of its goal of preserving family unity

whenever possible, 42 Pa.C.S. § 6301(b) of the Juvenile Act

requires clear and convincing evidence of dependency before the

court can intervene in the relationship between a parent and child.

In the Interest of R.T., [] 592 A.2d [55,] 58 [(Pa. Super.

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supra (while parental progress toward completion of permanency plan is

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

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

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

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

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

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

speculation that Parents would abuse visitation rights and visit paternal

grandmother’s home without agency supervision is overreaching. The

Juvenile Act provides for the protection of children under these exact

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

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

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

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

____________________________________________

1991)]. However, the Juvenile Act does not require proof that a

parent has committed or condoned abuse before a child can be

found dependent. Rather, dependency as defined in the Act exists

where a child is without proper parental care, defined as “care or

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

morals.” 42 Pa.C.S. § 6302. Thus the Juvenile Act permits a

finding of dependency if clear and convincing evidence establishes

that a child is lacking the particular type of care necessary to meet

his or her individual special needs.

Id. at 1317-18.

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

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

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

health evaluations, completion of parenting classes, attending individual

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

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

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

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

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

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

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

protection, and wholesome mental and physical development of children

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

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

whenever possible, separating the child from parents only when necessary

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

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

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

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

Involuntary termination of parental rights presupposes a finding by the

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

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

required. Id. at 75.

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

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

treatment goals as of December 2017 and where DHS supported kinship

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

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

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

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

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

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

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

permanency orders, which are not supported by clear and convincing

evidence.28

____________________________________________

28 Moreover, the court’s refusal to accept any medical testimony to explain

N.M.’s injuries, despite asking for same at several hearings, created an

insurmountable barrier to their reunification with N.M.

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

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

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

____________________________________________

29 We note that even had we affirmed the permanency orders, we still would

have vacated the trial court’s termination orders. In her Rule 1925(a)

termination opinion, Judge Younge noted that a social worker testified that

“there is a deficiency in the protective capacities of Mother and Father because

they perceive each other in the family unit as safe and not responsible for

N.[]M[.]’s injuries [and that they] continue to reside with each other as

indicated perpetrators.” Trial Court Opinion, 2/9/18, at 7. Moreover, the court

relied upon testimony that the safety threat to N.M. continued to exist at the

time of the termination hearing, based upon the fact that the injuries to N.M.

were still unexplained. Finally, the court based its termination decision in

large part on the fact that Parents were not fully compliant with their

objectives “due to failure to address the mental health therapy order by the

Court from the inception of the case.” Id. at 8, citing N.T. Termination

Hearing, 10/26/17, at 276. To support the goal change to adoption, the trial

judge “reasoned . . . Mother and Father failed to present any solid evidence

as to progress made in their therapy[,] did not offer treatment plans, nor

progress reports or therapist testimony at the [termination] hearing[,] and

failed to provide assurances of a level of safety or permanency plan for N.[]M.

in fifteen (15) months.” Trial Court Opinion, 2/9/18, at 9. We are not

convinced that the record clearly and convincingly supports these findings.

See In re Matsock, 611 A.2d 737 (Pa. Super. 1992) (where no sexual abuse

charges had been filed against father nor had he been prosecuted for alleged

offense, our Court reversed termination decree where evidence showed father

fulfilled affirmative duty to work toward children returning home, even where

father “refused to admit his predetermined guilt [which the trial court found]

negated his ability to be ‘cured’.”).

In reviewing the evidence in support of termination under section

2511(b), our Supreme Court stated as follows:

[I]f the grounds for termination under subsection (a) are met, a

court “shall give primary consideration to the developmental,

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physical and emotional needs and welfare of the child.” 23 Pa.C.S.

§ 2511(b). The emotional needs and welfare of the child have

been properly interpreted to include “[i]ntangibles such as love,

comfort, security, and stability.” In re K.M., 53 A.3d 781, 791

(Pa. Super. 2012). In In re E.M., 620 A.2d 481, 485 (Pa. 1993),

this Court held that the determination of the child’s “needs and

welfare” requires consideration of the emotional bonds between

the parent and child. The “utmost attention” should be paid to

discerning the effect on the child of permanently severing the

parental bond. In re K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013). With regard to termination

under section 2511(b), the court found:

Testimony of [a] social worker was that N.[]M. has a parent-child

bond with her pre-adoptive foster parent. [A s]ocial worker

testified N.[]M. has [a] good relationship with her foster mother

[and] looks to her to meet her day[-]to[-]day[-]needs. N.[]M.

has developed a bond with her foster mother in the twenty (20)

months she has resided in the home. Furthermore, [a] social

worker stated if N.[]M. w[ere] removed from her current foster

home there would be a harmful emotional impact on N.[]M. The

social worker testified N.[]M. could not be safely reunified with

parents because a safety threat of the unexplained injury still

exists. The social worker testified there were no safety concerns

for N.[]M. in the foster home. Furthermore, the social worker

testified N.[]M. had not experienced any significant injuries since

entering foster care.

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

While courts shall also consider whether children are in a pre-adoptive home

and are bonded with their foster parents, In re: T.S.M. at 269, here, the

court made absolutely no mention of the parent-child bond – the foundation

of a needs and welfare analysis under section 2511(b).

At the termination hearing, an agency worker testified that N.M. would “light

up” when she visited with Parents. N.T. Termination/Goal Change Hearing,

10/26/17, at 1-3 (237). Father testified that he and Mother have positive

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____________________________________________

parental bonds with N.M., that N.M. gets very excited and “bangs on the glass”

when she comes to the agency for visits, that she calls them “mommy and

daddy,” and that she runs to them when she sees them at visits. Finally,

Father testified that a strong sibling bond exists between N.M. and E.M.

Accepting this uncontroverted testimony, we would find that the trial court

abused its discretion in terminating Parents’ parental rights under section

2511(b), where the evidence does not clearly and convincingly discern the

effect on the child of permanently severing the parental bond. In re: T.S.M.,

supra.

30 We find ourselves constrained to comment as follows: despite record

evidence that the trial court allegedly relied upon, the one factor, the elephant

in the room, is that the trial judge was and remains the cause of the

deteriorated bond between Parents and N.M. in this matter.

The record is replete with attempts by Parents to meet the goals set by the

trial judge, however she continued to put up barriers to reunification. As an

example, the trial judge stated at the December 8, 2016 hearing that she

wanted some testimony as to how the injuries happened. However, at every

hearing from March 2017 onward, she refused to allow such testimony, stating

that the failure of Parents to appeal her earlier decision with regard to the

etiology of N.M.’s injuries was final and could no longer be addressed. When

the agency stated that Parents had complied with their goals, the court said,

“l’ll find that [P]arents are compliant. It doesn’t move the needle for me.”

She further stated that “I guess the other side of the conversation is if I leave

her [in foster care] maybe I get closer to an answer as to what happened

instead of moving her to grandmom. . . . So, I’m not going to consider kinship

care.” When the agency determined that kinship placement was available and

appropriate, the trial court ruled in May of 2017 that grandparent visitation

with N.M. is immediately suspended; it is not in N.M’s continued best interests

to explore placement in kinship care. In short, despite the goals of the Child

Protective Services Law, the trial judge seems to have done everything in her

power to alienate these parents from their child, appears to have a fixed idea

about this matter and, further, she prohibited evidence to be introduced that

might have forced her to change her opinion.

While this court must take and does take the issue of abuse of a child very

seriously, the fact that a trial judge tells parents that unless one of them “cops

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Permanency orders reversed. Goal change/Termination decrees

vacated. Jurisdiction relinquished.31

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/18

____________________________________________

to an admission of what happened to the child” they are going to lose their

child, flies in the face of not only the CPSL, but of the entire body of case law

with regard to best interests of the child and family reunification. We find that

the record herein provides example after example of overreaching, failing to

be fair and impartial, evidence of a fixed presumptive idea of what took place,

and a failure to provide due process to the two parents involved. Finally, the

most egregious failure in this matter is the refusal to allow kinship care,

despite the paternal grandmother being an available and approved source for

same. The punishment effectuated by the trial judge was, at best, neglectful

and, at worst, designed to affect the bond between Parents and N.M. so that

termination would be the natural outcome of the proceedings. This is an

extremely harsh penalty for parents who have complied in every way with the

requirements of the CPSL.

31We recognize that the Supreme Court has admonished our Court when we

have sua sponte directed that a different trial judge take over a case on

remand. See Reilly by Reilly v. SEPTA, 489 A.2d 1291 (Pa. 1985).

However, in light of the strong case Parents have made for recusal, the

sensitive nature of this case and the seeming confusion that the court has with

regard to certain issues (aggravated circumstances finding), we strongly

suggest if another petition for recusal is filed below, that the trial judge give

serious consideration as to whether her apparent bias warrants that she

recuse herself.

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