In the Interest of: T.J.J.M., a Minor

J-S14001-18

2018 PA Super 165

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

MINOR : PENNSYLVANIA

:

:

APPEAL OF: C.M., FATHER :

:

:

:

: No. 2807 EDA 2017

Appeal from the Order Entered August 4, 2017

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-AP-0000447-2017

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

MINOR : PENNSYLVANIA

:

:

APPEAL OF: C.M., FATHER :

:

:

:

: No. 2810 EDA 2017

Appeal from the Order Entered August 4, 2017

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-DP-0002285-2016

BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.

OPINION BY OTT, J.: FILED JUNE 13, 2018

C.M. (“Father”) appeals from the August 4, 2017 decree involuntarily

terminating his parental rights and the order changing the placement goal to

adoption with respect to his female child, T.J.J.M. a/k/a T.M. (“Child”), born

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 Retired Senior Judge assigned to the Superior Court.

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in July of 2016.1 Upon careful review, we vacate and remand in accordance

with the following decision.

Child was born prematurely at 35 weeks gestation, and she had cocaine,

opiates, and benzodiazepines in her system. Trial Court Opinion, 11/27/17,

at 3; N.T., 8/4/17, at 38-39. She remained hospitalized for approximately

three months. N.T., 8/4/17, at 42. Around the time of Child’s birth, the

apartment where Father and Mother resided sustained property damage due

to a flood. Id. at 68-69. Upon Child’s discharge from the hospital in October

of 2016, Father did not have housing. Id. at 68. The court placed Child in

the care of the Department of Human Services (“DHS”). The court adjudicated

Child dependent on October 28, 2016, and assigned her the placement goal

of reunification. DHS did not request a finding that aggravated circumstances

existed as to Father. As such, there is no order attributing aggravated

circumstances to him.

Father was required to satisfy Single Case Plan (“SCP”) goals to attend

supervised visitation at the office of the Community Umbrella Agency (“CUA”),

and to participate in a parenting and housing program. N.T., 8/4/17, at 42.

The CUA scheduled weekly visitation for Father with Child. Id. at 43. Father

attended three supervised visits after Child’s discharge from the hospital in

October 2016, which “went pretty well.” Id. at 43, 69-70. In October 2016,

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1 By separate decree entered on August 4, 2017, the trial court involuntarily

terminated the parental rights of D.C. (“Mother”), who did not appeal.

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subsequent to his supervised visits, Father was incarcerated for a probation

violation. Id. at 43, 101. Father remained incarcerated for two months. Id.

Upon his release, Father was required to reside in a self-help program for 90

days. Id. at 88-89.

The CUA caseworker’s first contact from Father after his release from

prison was on February 23, 2017, when he was in the self-help program. Id.

at 43. By that time, Father had obtained employment, for which he explained

he was on a probationary period for an unspecified amount of time.2, 3 Id. at

92. Father attended two supervised visits at an unspecified time in 2017, but

he did not consistently attend visits thereafter because of his work schedule 4

and his responsibilities and/or restrictions in the self-help program. Id. at 44,

48. Specifically, Father testified that the CUA office was a distance by public

transportation of approximately one hour and 45 minutes from his place of

employment. Id. at 92. Nevertheless, the CUA caseworker testified that

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2 Father introduced into evidence, and the court admitted, a letter from his

direct supervisor at his place of employment, which attested to Father’s

character and work ethic. See Father’s Exhibit 1.

3 Father testified that he began his employment in January. N.T., 8/4/17, at

91. With respect to the time of his shift, Father testified he started working

from “7:00 to 3:30 and then on to 9:00 to 5:30.” Id. at 91-92.

4 Father’s supervised visits were scheduled at the same time as Mother’s visits

every Thursday at 4:00 p.m. N.T., 8/4/17, at 73, 76-78. Father was unable

to arrive for the visits until 7:00 p.m. Id. at 73.

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Father stayed in contact with her on “at least [a] monthly” basis. Id. at 45-

46.

To accommodate his work schedule, the CUA scheduled one Saturday

visit for Father with Child, and, on June 30, 2017, Father confirmed that he

would attend the visit. Id. at 73, 76. However, the visit did not occur because

the foster parent was unavailable to bring Child. Id. at 73, 76. There is no

evidence that the CUA attempted to accommodate Father’s schedule for

supervised visits during April, May, or June of 2017. Id. at 77-81. During

Father’s phone call to the CUA caseworker on June 30, 2017, wherein he

confirmed the Saturday visit, Father informed the caseworker that, effective

July 17, 2017, his work schedule would change, and that he would be available

for supervised visits during the agency’s daytime hours. Id. at 46, 78-79.

With respect to his parenting and housing goals, the CUA referred Father

to the Achieving Reunification Center (“ARC”) on December 14, 2016. Id. at

48. Father reported to ARC for his orientation meeting on December 20, 2016,

but ARC closed his case on February 23, 2017, due to his non-participation.

Id. at 48; DHS Exhibit 7.

On April 19, 2017, DHS filed a petition for the involuntary termination

of Father’s and Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),

(2), (5), (8), and (b). On the same date, DHS filed a petition for a goal change

to adoption.

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On August 4, 2017, a hearing occurred on the petitions, during which

DHS requested termination of Father’s parental rights pursuant to Section

2511(a)(1), (2), and (b). DHS presented the testimony of the CUA

caseworker, Amanda Mosley. Father testified on his own behalf. Mother did

not appear for the hearing, but she was represented by counsel. Child was

represented by a Child Advocate and a Guardian Ad Litem (“GAL”).

At the conclusion of the testimonial evidence, counsel for the parties

made closing arguments. See N.T., 8/4/17, at 112-121. The GAL stated, in

part, “I don’t think [Father’s] got [sic] a settled intent to abandon the child

and I think that he’s made some strides towards (inaudible) the dependent

issues which brought the case to [c]ourt. So I’m not sure [DHS has] met its

burden. And I’d hate to lose the possibility of [him as a] reunification

resource. . . .” Id. at 115. Thereafter, the trial court granted the involuntary

termination petition on the record in open court pursuant to 23 Pa.C.S. §

2511(a)(1) and (2). Id. at 126. The court did not address Section 2511(b)

on the record in terminating Father’s parental rights. Further, the court did

not dispose of the goal change petition on the record in open court.

By decree dated and entered on August 4, 2017, the court granted the

involuntary termination petition pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5),

(8), and (b). By separate permanency review order dated August 4, 2017,

the court changed Child’s goal to adoption. Father timely filed a notice of

appeal along with a concise statement of errors complained of on appeal

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pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua

sponte. The trial court filed its Rule 1925(a) opinion on November 27, 2017.5

On appeal, Father presents the following issues for our review:

1. Did the [t]rial [c]ourt commit reversible error, when it

involuntarily terminated Father’s parental rights where such

determination was not supported by clear and convincing

evidence under the [A]doption [A]ct, 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), and (8)?

2. Did the [t]rial [c]ourt commit reversible error, when it

involuntarily terminated Father’s parental rights without

giving primary consideration to the effect that the

termination would have on the . . . developmental, physical

and emotional needs of the child as required by the

[A]doption [A]ct, 23 Pa.C.S.A. § 2511(b)?

3. Did the [t]rial [c]ourt commit reversible error, when it

terminated Father’s parental rights and changed the child’s

goal to adoption as substantial, sufficient, and credible

evidence was presented at the time of trial which would

have substantiated denying the [p]etition for [g]oal

[c]hange?

4. Did the [t]rial [c]ourt commit reversible error when it

involuntarily terminated Father’s parental rights and

changed the child’s goal to adoption where Father was not

provided adequate services for a sufficient period of time?

Father’s brief at 4.6

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5The trial court addressed the involuntary termination decree but not the goal

change order in its opinion.

6 Pursuant to the Juvenile Act, 42 Pa.C.S. § 6301, et seq., permanency

planning for dependent children is conducted under the jurisdiction of the

juvenile court. Pursuant to the Adoption Act, 23 Pa.C.S. § 2101, et seq.,

involuntary termination of parental rights is conducted under the jurisdiction

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We begin with Father’s third and fourth issues regarding the goal change

order, which we review for an abuse of discretion. In re R.J.T., 9 A.3d 1179,

1190 (Pa. 2010). The Juvenile Act provides that it “shall be interpreted and

construed as to effectuate” its purposes. 42 Pa.C.S. § 6301(b). The Juvenile

Act’s first purpose is “[t]o preserve the unity of the family whenever possible

or to provide another alternative permanent family when the unity of the

family cannot be maintained.” 42 Pa.C.S. § 6301(b)(1).

The Juvenile Act provides that the court shall conduct periodic

permanency hearings “for the purpose of determining or reviewing the

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

the child might be achieved and whether placement continues to be best

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

child.” 42 Pa.C.S. § 6351(e)(1). Specifically, Section 6351(f) provides as

follows, in relevant part.

(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.

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of the orphans’ court. Instantly, the Honorable Lyris F. Younge presided over

both matters.

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(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 . . . 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. . . .

42 Pa.C.S. § 6351(f)(1)-(6), (9) (emphasis added). “These statutory

mandates clearly place the trial court’s focus on the best interests of the child.”

In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (citation omitted). “Safety,

permanency, and well-being of the child must take precedence over all other

considerations.” Id. (citation omitted) (emphasis in original). Moreover, the

burden is on the child welfare agency “to prove the change in goal would be

in the child’s best interest.” In re D.P., 972 A.2d 1221, 1227 (Pa. Super.

2009).

Instantly, Father asserts that he was “working full time,” which “was the

best way to obtain the stable housing needed for him to be reunited” with

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Child. Father’s brief at 19-20 (citation to record omitted). Father argues that

changing Child’s placement goal to adoption was against the weight of

evidence, as follows.

Despite being in regular contact with the CUA social worker, DHS

and CUA failed to offer Father any visits at a time that was

compatible with his work schedule. Similarly, Father is willing to

attend parenting and housing classes, but was not offered these

services at a time compatible with his work schedule. If DHS and

CUA worked with Father to establish a consistent visitation

schedule and other reunification services that did not conflict with

his work schedule he would be able to complete his goals, reunite

with [Child] and preserve the family.

Id. at 20 (citations to record omitted). For the following reasons, we are

constrained to agree.

The juvenile court’s certified record indicates that the first permanency

review hearing occurred on March 9, 2017, which found minimal compliance

by Father with the permanency plan. Contrary to Section 6351(f)(5), the

order did not include the likely date by which the goal might be achieved. On

April 19, 2017, DHS filed the petition for a goal change, which was

approximately six months after Child was placed. The next permanency

review hearing occurred on June 8, 2017, which maintained the placement

goal of reunification, but made no findings with respect to either parent’s

compliance. Like the first permanency review order, the June 8, 2017 order

did not include the likely date by which the goal might be achieved.

Thereafter, on August 4, 2017, the goal change/termination hearing occurred,

at which time Child was in placement for ten months, less than the statutory

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15 - 22 months provided for in Section 6351(f)(9). The August 4, 2017 goal

change order found that there was no compliance by Mother with the

permanency plan, but omits any finding with respect to Father’s compliance.

During the subject proceedings, Ms. Mosley, the CUA caseworker,

testified that Child was placed because Father did not have housing at the

time of Child’s discharge from the hospital. N.T., 8/4/17, at 68. She testified

that Father was appropriate at the visits she supervised, and that the visits

“went pretty well.” Id. at 69-70. Ms. Mosley testified that Father has been

cooperative with her. Id. at 83.

It is undisputed that Father worked full-time and had maintained

communication with Ms. Mosley regarding scheduling supervised visits. There

is no evidence that Ms. Mosley attempted to accommodate Father’s work

schedule more than once, by scheduling a Saturday visit sometime after June

30, 2017, which never occurred because of the unavailability of Child’s foster

parents. Father testified that his new work schedule gives him off on Fridays.

However, he testified that Ms. Mosley told him that the foster parents are only

available on Mondays – Wednesdays, which are impossible for him due to his

work schedule. Id. at 94-95. Father testified that it would be easier for him

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to visit with Child if she were placed in kinship care with her maternal aunt,

who resides in South Philadelphia.7, 8 Id. at 95, 97.

With respect to his parenting and housing goals, the CUA referred Father

to ARC on December 14, 2016, four months before filing the petition for the

goal change. Father testified that he was in contact with ARC regarding his

work schedule, and that he and the agency tried to work around it but had

been unsuccessful. Id. at 95. Father testified that he is willing to participate

in the required classes. Id.

Ms. Mosley testified that Child currently receives early intervention

services, which includes occupational therapy, and she is under the care of a

medical specialist for gastrointestinal issues. Id. at 40. DHS did not present

any evidence concerning Child’s daily medical needs. As such, DHS did not

focus on whether Father is capable of meeting Child’s medical needs.9

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7 Father testified that he was unaware why Child was not placed with her

maternal aunt. N.T., 8/4/17, at 95. At the conclusion of the testimonial

evidence, the trial court stated that it would be willing to entertain a hearing

on placing Child in kinship care with her aunt. Id. at 128-130.

8There is no record evidence regarding where Child’s foster parents reside.

Importantly, Ms. Mosley testified that they “are older[,] and they are not

willing to adopt.” Id. at 50 (emphasis added).

9 Ms. Mosley provided the only testimony on direct examination regarding

Father’s ability to meet Child’s medical needs, as follows.

Q. And do you believe that [Father] is prepared to provide for

[Child’s] medical needs at this point?

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In sum, the court issued the goal change order when Child had been in

placement for approximately ten months, and no likely date had ever been

set for the achievement of Child’s placement goal. Father participated in three

supervised visits immediately after Child’s placement and before his

incarceration and two visits on an unspecified date after his release from

prison. Upon his release, Father secured full-time employment, and he was

working to obtain housing and be reunited with Child. Father maintained

communication with the CUA caseworker after he secured employment in an

attempt to resolve the conflict between his work schedule and the requisite

supervised visitation. Likewise, Father communicated with ARC in an attempt

to resolve the conflict between his work schedule and the requisite parenting

and housing classes. Finally, the record reveals that Child is not placed with

a pre-adoptive resource, and that the foster parents are limited in their

availability to bring Child to supervised visits. Based on the foregoing, we

conclude that the evidence does not support changing Child’s placement goal

to adoption. Therefore, the trial court abused its discretion in issuing the

order, and we are constrained to vacate.

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A. No.

Q. Has he ever participated in her medical care at this time?

A. Not to my knowledge.

N.T., 8/4/17, at 48.

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It follows that we agree with Father’s first and second issues on appeal,

that the court abused its discretion in terminating his parental rights. We

review these issues according to the following standard.

The standard of review in termination of parental rights cases

requires appellate courts to accept the findings of fact and

credibility determinations of the trial court if they are supported

by the record. If the factual findings are supported, appellate

courts review to determine if the trial court made an error of law

or abused its discretion. A decision may be reversed for an abuse

of discretion only upon demonstration of manifest

unreasonableness, partiality, prejudice, bias, or ill-will. The trial

court’s decision, however, should not be reversed merely because

the record would support a different result. We have previously

emphasized our deference to trial courts that often have first-hand

observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

In Santosky v. Kramer, 455 U.S. 745, 747-748 (1982), the United

States Supreme Court held, “Before a State may sever completely and

irrevocably the rights of parents in their natural child, due process requires

that the State support its allegations by at least clear and convincing

evidence.” In addition, the Court explained:

The fundamental liberty interest of natural parents in the care,

custody, and management of their child does not evaporate

simply because they have not been model parents or have lost

temporary custody of their child to the State. Even when blood

relationships are strained, parents retain a vital interest in

preventing the irretrievable destruction of their family life. If

anything, persons faced with forced dissolution of their parental

rights have a more critical need for procedural protections than do

those resisting state intervention into ongoing family affairs.

When the State moves to destroy weakened familial bonds, it

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must provide the parents with fundamentally fair procedures.

Id. at 753-754.

Instantly, termination of parental rights is governed by Section 2511 of

the Adoption Act, which requires a bifurcated analysis.

Initially, the focus is on the conduct of the parent. The party

seeking termination must prove by clear and convincing evidence

that the parent’s conduct satisfies the statutory grounds for

termination delineated in Section 2511(a). Only if the court

determines that the parent’s conduct warrants termination of his

or her parental rights does the court engage in the second part of

the analysis pursuant to Section 2511(b): determination of the

needs and welfare of the child under the standard of best interests

of the child. One major aspect of the needs and welfare analysis

concerns the nature and status of the emotional bond between

parent and child, with close attention paid to the effect on the child

of permanently severing any such bond.

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

addition, we need only agree with the trial court as to any one subsection of

Section 2511(a), as well as Section 2511(b), in order to affirm. See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

The relevant sections of the Adoption Act in this case are as follows:

(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

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for his physical or mental 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.

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

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With respect to Section 2511(a)(1), our Supreme Court has held,

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 or her conduct; (2) the post-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 Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Further,

the 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 or her parental rights, to determine if the

evidence, in light of the totality of the circumstances, clearly

warrants the involuntary termination.

In re N.M.B., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted)

(emphasis added).

Our courts have explained that parental duty “is best understood in

relation to the needs of a child.” In re Burns, 379 A.2d 535, 540 (Pa. 1977).

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.’

Id. (citations omitted); see also In re C.M.S., 832 A.2d 457, 462 (Pa. Super.

2003), appeal denied, 859 A.2d 767 (Pa. 2004).

To terminate parental rights pursuant to Section 2511(a)(2), the

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following factors must be demonstrated: (1) repeated and continued

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

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

subsistence necessary for his physical or mental well-being; and (3) the

causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.

2003).

To terminate parental rights pursuant to Section 2511(a)(5), the

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

parental care for at least six months; (2) the conditions which led to the child’s

removal or placement continue to exist; (3) the parents cannot or will not

remedy the conditions which led to removal or placement within a reasonable

period of time; (4) the services reasonably available to the parents are unlikely

to remedy the conditions which led to removal or placement within a

reasonable period of time; and (5) termination of parental rights would best

serve the needs and welfare of the child. See In re Adoption of M.E.P.,

supra at 1273-1274.

To terminate parental rights pursuant to Section 2511(a)(8), the

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

parental care for 12 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

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of the child. In re Adoption of M.E.P., supra at 1275-1276. “Section

2511(a)(8) sets a 12-month time frame for a parent to remedy the conditions

that led to the children’s removal by the court.” In re A.R., 837 A.2d 560,

564 (Pa. Super. 2003). Once the 12-month period has been established, the

court must next determine whether the conditions that led to the child’s

removal continue to exist, despite the reasonable good faith efforts of the child

welfare agency supplied over a realistic time-period. Id. Termination under

Section 2511(a)(8) does not require the court to evaluate a parent’s current

willingness or ability to remedy the conditions that initially caused placement

or the availability or efficacy of agency services. In re Adoption of T.B.B.,

835 A.2d 387, 396 (Pa. Super. 2003); In re Adoption of M.E.P., supra at

1276.

Finally, with respect to Section 2511(b), this Court has stated that,

“[i]ntangibles 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). Further, the trial court “must also

discern the nature and status of the parent-child bond, with utmost attention

to the effect on the child of permanently severing that bond.” Id. (citation

omitted). However, “[i]n cases where there is no evidence of any bond

between the parent and child, it is reasonable to infer that no bond exists.

The extent of any bond analysis, therefore, necessarily depends on the

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circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-763

(Pa. Super. 2008) (citation omitted).

Initially, Father argues that the court did not intend to terminate his

parental rights pursuant to Section 2511(a)(5) and (8) because it granted the

involuntary termination petition on the record in open court pursuant to

Section 2511(a)(1) and (2) only. N.T., 8/4/17, at 126. In its appellee brief,

DHS agrees. DHS brief at 8-9. The record confirms that, although DHS filed

the petition under Section 2511(a)(1), (2), (5), and (8), it sought termination

under (a)(1) and (2) during the hearing, which the trial court granted on the

record in open court. N.T., 8/4/17, at 114, 126. Because DHS did not proceed

under Section 2511(a)(5) and (8), we conclude that the trial court erred to

the extent it terminated Father’s parental rights pursuant to these

subsections.

With respect to both Section 2511(a)(1) and (2), Father argues, in part:

DHS filed a termination petition only six (6) months after [Child]

came into care. For four (4) of those six months, Father was not

offered any visits that did not conflict with his work schedule.

Between the time the termination petition was filed and the time

of the termination hearing, Father was offered one Saturday visit.

. . . Father confirmed his attendance, but the visit was ultimately

cancelled due to the foster family’s schedule. Similarly, DHS

offered no evidence that Father was offered parenting and housing

class at a time that did not conflict with his work schedule.

DHS’s failure to provide Father with visits with [Child] and other

necessary reunification services before filing for termination of his

parental rights violates his due process rights.

Father’s brief at 13-14 (citations to record omitted).

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The trial court reasoned on the record in open court, “I did have an

opportunity to receive testimony from [Father], not that I don’t find him

credible, but I find his testimony to be very telling.” N.T., 8/4/17, at 122.

The court emphasized Father’s acknowledgment that he relied on Mother with

respect to learning how Child was doing. Id. at 122-123. The court stated,

“I don’t know why [Father] would allow mom to be the filter by which [he]

kept in contact with [Child]. Given that mom has had challenges and mom’s

issues are what really brought [Child] into care. Father was aware of it. He

said he was working prior to, but as soon as [Child] was born positive for

[illicit] substances, [F]ather was on notice at that point that maybe mom was

not going to be a viable resource in terms of parenting for [Child].” Id. at

123. The court reasoned that, because Father communicated with Mother

about Child’s medical condition, he did not “demonstrate that he could

independently take care of this child.” Id. at 123. Indeed, in its Rule 1925(a)

opinion, the trial court found, “Father failed to demonstrate he was capable of

being a single parent of [Child] and depended on [Child’s] [m]other.” Trial

Court Opinion, 11/27/17, at 4 (citation to record omitted).

Father indeed testified that he learned about Child’s medical problems

by talking to Mother. N.T., 8/4/17, at 106. However, pursuant to the

applicable law relating to Section 2511(a)(1), the trial court was required to

consider Father’s explanation for his conduct, which he expressed as follows

on direct examination:

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I’m just asking for like a fair shot and like work with me.

Sometimes, like, I understand people’s schedules get messed up.

. . . Don’t work against me. Ms. [Mosley] . . . [w]e don’t

communicate, because we used to communicate through

[Mother]. And maybe that’s my fault that I used to communicate

through the child’s mother. But I thought she was on the same

path that I want to be on, you know what I’m saying? But now I

realize today, . . . I got to do it on my own. . . .

Id. at 97-98. We conclude that the trial court in this case abused its discretion

in mechanically applying the six-month statutory provision under Section

2511(a)(1) and not considering Father’s explanation for his conduct. See In

re N.M.B., supra. We conclude, in light of the totality of the evidence, that

Father’s conduct does not clearly warrant the termination of his parental rights

pursuant to Section 2511(a)(1).

With respect to Section 2511(a)(2), Father argues that, “[i]f DHS and

CUA worked with Father to establish a consistent visitation schedule and other

reunification services that did not conflict with his work schedule[,] he would

be able to complete his goals and reunite with [Child].” Father’s brief at 15.

We conclude that the foregoing testimonial evidence did not demonstrate that

the causes of Father’s parental incapacity cannot or will not be remedied.

Therefore, we conclude that the court abused its discretion in terminating

Father’s parental rights pursuant to Section 2511(a)(2).

Further, we reject the contention of DHS in its appellee brief that our

Supreme Court’s decision in In the Interest of D.C.D., 105 A.3d 662 (Pa.

2014) defeats Father’s argument that the court abused its discretion in

terminating his parental rights because DHS did not provide reasonable efforts

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to reunify him with Child. See DHS’s brief at 12-13. The D.C.D. Court held

that this Court erred in reversing the trial court’s termination of the father’s

parental rights pursuant to Section 2511(a)(2) and (b) as a result of the

agency’s failure to provide reasonable efforts to enable the father to reunify

with his child. The Court held that there is no Pennsylvania or federal provision

“that requires delaying permanency for a child due to the failure of an agency

to provide reasonable services, when the court has otherwise held that

grounds for termination have been established and the court has determined

that termination is in the best interests of the child by clear and convincing

evidence.” D.C.D., 105 A.3d at 676. The D.C.D. Court concluded:

Applying this standard to the case at bar, the trial court did not

abuse its discretion in holding that [the agency] established

grounds for termination of [the f]ather’s parental rights by clear

and convincing evidence based on [the f]ather’s continued

incapacity to care for child. Moreover, the trial court recognized

for purposes of subsection 2511(b) that a parent’s continued

incarceration may factor into a determination of the child’s best

interests. In this case, the court did not abuse its discretion in

determining that [the c]hild’s best interests will be served by

terminating [the f]ather’s parental rights given the absence of

a bond with [the f]ather, [the f]ather’s expected incarceration

until [the c]hild is at least seven and likely longer, and her strong

bond with her foster family with whom she has lived nearly all her

life and who has indicated a desire to adopt her.

Id. at 677 (citation omitted). Instantly, we have concluded that DHS failed

to establish by clear and convincing evidence that Father’s parental incapacity

cannot or will not be remedied. To the extent that DHS did not provide Father

with ample time and opportunity to participate in supervised visitation and

parenting and housing classes at ARC, D.C.D. does not control in this case.

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Based on our disposition that the court abused its discretion in

terminating Father’s parental rights pursuant to Section 2511(a), we need not

consider the decree pursuant to Section 2511(b). See In re L.M., supra

(explaining, “Only if the court determines that the parent’s conduct warrants

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

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

and welfare of the child under the standard of best interests of the child.”)

Accordingly, we vacate the decree involuntarily terminating Father’s parental

rights and remand for entry of an order denying the involuntary termination

petition.

Goal change order vacated. Case remanded for entry of a new

permanency order maintaining Child’s placement goal of reunification and for

further permanency review hearings in juvenile court. Involuntary

termination decree vacated. Case remanded for entry of an order denying the

involuntary termination petition.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/18

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