# In the Interest of: J.A., Appeal of: M.R. > Superior Court of Pennsylvania · August 6, 2019 URL: https://www.frixlaw.com/law-library/cases/4423101 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** August 6, 2019 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4423101 ## How later opinions describe it (automated extraction) - stating that as long as a child’s goal remains reunification, visitation should continue unless a grave threat to the child exists ## Opinion text J-S31044-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: J.A., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: M.R., NATURAL MOTHER : : : : : : No. 280 WDA 2019 Appeal from the Order Entered January 16, 2019 In the Court of Common Pleas of Lawrence County Orphans' Court at No(s): 20011 of 2017, 0C -A, CP-37-DP-0000095-2013 IN THE INTEREST OF: K.M.R., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: M.R., NATURAL MOTHER : : : : : No. 281 WDA 2019 Appeal from the Order Entered January 16, 2019 In the Court of Common Pleas of Lawrence County Orphans' Court at No(s): 94 of 2013, DP, 20012 of 2017, BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 06, 2019 M.R. (“Mother”) appeals from the order terminating her parental rights to K.M.R. and J.A. (“Children”). We conclude the trial court did not abuse its discretion and, therefore, affirm. J-S31044-19 The trial court set forth the factual and procedural history, which we adopt and incorporate herein. See Trial Court Pa.R.A.P. 1925(a) Opinion, filed Mar. 6, 2019, at 1-3; Trial Court Opinion, filed January 16, 2019, at 1-24. By way of background, K.M.R. (d.o.b. November 6, 2001) and J.A. (d.o.b. January 18, 2006) are the daughters of Mother and C.A. (“Father”).1 Children were first adjudicated dependent in November 2013. Prior to that, Children had been living with Mother in a trailer on maternal grandfather’s property. Father was intermittently present in the household but perpetrated recurring acts of domestic violence against both Mother and K.M.R., fueled by his heavy use of alcohol and drugs. On November 2, 2013, Father’s severe beating of Mother, which required Mother to be flown via helicopter to Pittsburgh for medical treatment, lead to the emergency removal of the Children from the household. Children witnessed Father’s attack on Mother and ran to get help. When the Pennsylvania State Police responded to Mother’s residence, they observed deplorable and unsanitary conditions. The Children have been in foster care since their initial dependency adjudication in 2013, and have remained with the same foster parents, who are an adoptive resource for the Children. The trial court conducted numerous ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1Father has also filed an appeal in this Court (docketed in this Court at 282 and 283 WDA 2019) regarding Children. -2- J-S31044-19 permanency review hearings and issued the last permanency review order on September 17, 2018.2 In the interim, in April 2017, Children and Youth Services (“CYS”) filed motions to change Children’s goal from reunification to adoption and to terminate the parental rights of Mother and Father. Over a 16-month period, the trial court conducted multiple hearings regarding termination/goal change at which Children’s therapist, counselor, psychologist, and CYS caseworkers testified. The trial court also heard testimony from Mother, Father, and K.M.R. Ultimately, the trial court concluded that CYS had established, by clear and convincing evidence, that grounds for termination of Mother’s rights existed and, on January 16, 2019, issued an order terminating Mother’s parental rights with a comprehensive opinion in support thereof. Mother filed a timely Notice of Appeal and Pa.R.A.P. 1925(b) statement and the trial court submitted a Pa.R.A.P. 1925(a) opinion. Mother raises the following issues on appeal: 1. Whether the Children and Youth Services Agency (Agency) failed to make children available to the Court as required and as mandated by the Child Protective Services Laws (CPSL)[?] ____________________________________________ 2 We note that Mother filed an appeal from the September 17, 2018 dependency order. In re Interest of J.A./K.R., 1451 WDA 2018, 1452 WDA 2018. In light of the instant appeal, Mother’s dependency appeal was continued for consideration with this appeal. Here, we affirm the termination of Mother’s parental rights, therefore Mother’s challenges to the dependency proceedings have been rendered moot. We therefore will not address them further. See Order, 1451 WDA 2018, 1452 WDA 2018. -3- J-S31044-19 2. Whether the Court erred in determining that although [Mother] had exceeded what was requested of her and then determined that, although she completed all services required by the Agency, the Court failed to apply the law to the facts of the case and return [Children] to [Mother][?] 3. Whether the Agency failed to provide any type of reunification counseling or generate a service plan to reunify [Children] with [Mother][?] The agency withheld [Children] and appropriate reunification services after all other required services were completed by [Mother]. The Court failed to apply the law to the facts on this matter. 4. Whether the Agency failed to provide visits between [Mother] and Children, based solely on the alleged belief that one of the two Children voiced her desire to not see [Mother][?] The agency failed to provide competent evidence that there was any basis to deny Mother visitation. The Court failed to apply the law to the facts on this matter. 5. Whether the Court failed to take testimony from [Children] regarding their individual desire to reunify with [Mother] thereby requiring the Court to decide as to [Children] based upon the unsubstantiated testimony of one child, while the other was withheld from the Court without justification[?] 6. Whether the Agency failed to provide any competent testimony that the best interests of [Children] were served by termination of parental rights[?] 7. The Court failed to find that the Agency had provided any competent testimony that [Children] were bonded with the foster family or that they did not have a bond with Mother. In fact, the Court was incapable of making any determination about the child who was never presented for testimony or evaluation by the Court. 8. Whether the Court erred by issuing a final order on the Involuntary Termination rather [than] staying the matter pending the outcome [of] the Superior Court Dependency Appeal in this case[?] 9. Whether the evidence was sufficient to determine that Mother suffered from an incapacity that she could not overcome and permit [Children] to return home[?] -4- J-S31044-19 10. Whether the Court misconstrued the testimony of the expert psychologist, Dr. Gallo, by claiming that he was not qualified to render an opinion on Mother’s parental capacity when, indeed, his testimony was that Mother had no apparent impediments to her capacity to parent[?] 11. Whether the Court erred in determining that Mother failed to complete a second parental capacity evaluation when the record indicated that she did and that the Agency refused to accept the second evaluation because it was done by an independent provider[?] Mother’s Br. at vi-vii. When reviewing orders terminating parental rights, we “accept the findings of fact and credibility determinations of the trial court if they are supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). If the record supports those findings, we then review the decision “to determine if the trial court made an error of law or abused its discretion.” Id. We will reverse a decision “for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id. The Pennsylvania Supreme Court has explained the reason for applying an abuse of discretion standard to termination decisions: [U]nlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court’s legal conclusions are not the result of an error of law or an abuse of discretion. -5- J-S31044-19 Id. at 826-27 (citations omitted). A trial court may terminate parental rights only after finding grounds for termination existed under Section 2511(a) and that termination is in the child’s best interest under Section 2511(b). Here, we conclude that the trial court properly terminated Mother’s parental rights pursuant to Section 2511(a)(2).3 Section 2511(a)(2) provides: (a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: ... (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well- being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. 23 Pa.C.S.A. § 2511(a)(2). To terminate parental rights pursuant to Section 2511(a)(2), the moving party must produce clear and convincing evidence of the following: “(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child to be without ____________________________________________ 3 We note that CYS also sought to terminate Mother’s parental rights pursuant to subsection (a)(8). However, the trial court specifically found that Mother’s rights could not be terminated under that subsection because Mother had successfully remedied the physical conditions which initially triggered Children’s removal from her care. -6- J-S31044-19 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.” In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003). If the trial court has concluded that a parent’s parental rights should be terminated under Section 2511(a), then the court must determine whether, considering the child’s developmental, physical, and emotional needs and welfare, termination is in the best interests of the child. 23 Pa.C.S.A. § 2511(b); S.P., 47 A.3d at 830. In conducting this analysis, the court should examine the emotional bond between parent and child, with close attention to the effect on the child of permanently severing any such bond. For ease of disposition, we will address Mother’s issues grouped by the overarching issues they address, as the trial court did in its Rule 1925(a) opinion. In both her first and fifth issue, the crux of Mother’s arguments lie in her contention that CYS did not properly provide the testimony of both Children. In particular, Mother points out that J.A. never testified during the termination proceedings at all and K.M.R. did not testify during the most recent proceedings. Mother’s first and fifth issues lack merit. “[T]he admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.” In re R.T., 778 A.2d 670, 683 (Pa.Super. 2001) (internal quotation marks and citation omitted). -7- J-S31044-19 Currently, this Court does not mandate that “an abused or neglected child [be forced by his or her natural parent] to testify in an involuntary termination proceeding.” In re B.L.L., 787 A.2d 1007, 1011 (Pa.Super. 2001) (citation omitted). Accordingly, we conclude that the trial court did not abuse its discretion by determining that good reason excused Children’s testimony where Children’s legal counsel was present. See Trial Court’s Rule 1925(a) Opinion at 8-11. Moreover, as detailed below, even in the absence of J.A.’s testimony, we conclude that the trial court had sufficient evidence to support the termination of Mother’s parental rights. In her second, sixth, seventh, ninth, and tenth issues, Mother presents the overarching argument that the evidence was insufficient to terminate her parental rights pursuant to either Section 2511(a)(2) or Section 2511(b). She specifically cites to her successful efforts at remedying her home and her general compliance with her family service plan (“FSP”). She also points to the testimony of her expert, Dr. Gallo, who testified that Mother had no apparent impediments to her ability to parent Children. However, the trial court concluded that ample evidence supported the termination of Mother’s parental rights under Section 2511(a)(2) because the testimony of both fact and expert witnesses at trial established that Mother has “extreme and sustained difficulties in emotionally relating to children.” Trial Court Rule 1925(a) Opinion at 14. The trial court also noted a “notice/demand” letter Mother sent to the court wherein she demands the -8- J-S31044-19 return of her “property,” i.e. Children. See id. Further, the court properly emphasized that ample evidence supported the conclusion that Children’s interests would be best served by the termination of Mother’s parental rights, as required under Section 2511(b). Id. at 13-15. To this end, the court explained that multiple witnesses detailed Children’s toxic bond with both Mother and Father and Children’s strong desire to remain with their foster parents who are an adoptive resource for Children. Id. Further, the trial court aptly addressed Mother’s contention regarding the weight accorded to her expert, Dr. Gallo, by noting that Dr. Gallo had never observed Mother interact with Children. Id. According, we conclude that the trial court properly determined that sufficient evidence supported the termination of Mother’s parental rights under Sections 2511(a)(2) & (b) and affirm on the basis of the court’s thorough reasoning. See Trial Court’s Rule 1925(a) Opinion at 12-15; Trial Court’s January 16, 2019 Opinion at 31-38. Turning to her third and fourth issues on appeal, Mother claims that CYS failed to make reasonable efforts to reunify the family by ceasing to require Children to visit with her. She argues that Children’s desire to stop her visitation was not a sufficient reason to halt all visits. In support, she points to case law that requires the opportunity for visitation absent a severe threat to the child at issue. See In re C.J., 729 A.2d 89, 94 (Pa.Super. 1999) (stating that as long as a child’s goal remains reunification, visitation should continue unless a grave threat to the child exists). -9- J-S31044-19 However, the trial court properly explained that Mother’s visitation with Children was stopped due to Mother’s own alleged misconduct during visits and the attendant self-destructive and self-harming behavior specifically reported by K.M.R. See Trial Court’s Rule 1925(a) Opinion at 20. We conclude that the trial court permissibly declined to force Children to continue visitation under such circumstances, and affirm pursuant to the trial court’s reasoning. As referenced above, Mother also appealed the trial court’s September 17, 2018 dependency order. However, the trial court declined to stay the instant termination proceedings in light thereof. In her eighth issue, Mother contends that the trial court’s denial of her Motion to Stay constituted an abuse of discretion because many issues she intended to raise in the dependency appeal could prove dispositive for termination/goal change proceedings. In response, the trial court cited authorities, inter alia, Pa.R.A.P. 1701(c), for the proposition that proceedings should only be stayed pending appeal when the same claims are at issue in both the appellate and trial court proceedings. Here, the termination/goal change proceedings concerned different issues than those relevant to the dependency proceedings. Therefore, we concur with the trial court’s decision to dismiss Mother’s bid to stay the termination/goal change proceedings. See Trial Court’s Rule 1925(a) Opinion at 26-27. Pursuant to the foregoing, and after reviewing the trial court’s comprehensive opinions, the record, the parties’ briefs, and relevant law, we see no abuse of discretion or error of law. Accordingly, we affirm based on the - 10 - J-S31044-19 well-reasoned opinions of the Honorable John W. Hodge, which we adopt and incorporate herein. Order affirmed. Judge Stabile joins the memorandum. Judge Olson concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/6/2019 - 11 - Circulated 07/24/2019 10'47 ! . I ........_, IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS LAWRENCE COUNTY, PENNSYLVANIA K.M.R. NO. 94 OF 2013, DP; NO. 20012 of 2017, OC-A J.L.A. NO. 95 OF 2013, DP; NO. 20011 of 2017, OC-A OPINION Hodge, J. March 6, 2019 Presently before the Superior Court are the appeals of M.R. (Mother) and C.A. (Father) (collectively, Parents), the natural parents of K.M.R. and J.L.A. (Children). to this-Court's Order of January 16, 2019, granting Lawrence County Children and Youth Services' (CYS) Petitions for Involuntary Terminations of Parental Rights and Motions for Goal Change from reunification to adoption. For the reasons set forth in this opinion, issued pursuant to Pa. RAP. 1925(a). we respectfully request that the Superior Court affirm our Order and dismiss this appeal. PROCEDURAL HISTORY The procedural history of these cases, which ultimately stretches back to November 2013, is recounted in more detail in the Opinion attached to the January 16. 2019 Order of Court, which we incorporate herein by reference and for continuity's sake republish below: Children were first taken into emergency care by an order of this Court dated November 4, 2013. CYS then filed a dependency petition on November 18, 53RO JUDICIAL 2013, and three days later, this Court adjudicated both Children dependent, DISTRICT r-·J• t" ,... ';-,. "' \ll 1, pursuant to the Juvenile Acr(42 Pa: c.s�-§§6301 et seq.), based on evidence LAWRtNCE COUNTY PENNSYl,.VANIA : : 47 ' I .. .. • j I ' .. ·�' • presented that Father had physically assaulted Mother with Children present and that Mother's home had deplorable conditions. Accordingly, by dispositional order dated January 5, 2014, this Court assigned legal and physical custody of Children to CYS. Since the initial dependency finding, this Court has conducted permanency review hearings approximately every six months as required by the Juvenile Act and has continued to find Children dependent, and their placement in foster care appropriate, as documented by each permanency review order to date and including the most recent one issued on September 17, 2018.1 Following several years of dependency hearings, CYS presented the Motions for Goal Change and Termination Petitions on April 11, 2017, alleging that Mother's and Father's parental rights should be terminated pursuant to 23 Pa. C.S. §2511(a)(2) and (8). This Court conducted the following hearings, and the following witnesses testified, over a sixteen-month period and formed the bulk of the factual record underlying this opinion: 1. August 8 and 9, 2017; K.M.R. and therapist Tanya Stahlman; 2. September 26, 2017; Ms. Stahlman (continued) and counselor Brian Dick; 3. March 28 and 29, 2018; psychologist Dr. Fred Gallo and CYS caseworker Amber Pieri; 4. June 26, 2018; Ms. Pieri (continued) and testimony from Father and Mother; 5. August 27, 2018; CYS caseworker Kristen Pauline. Besides the considerable evidence accumulated at these hearings, all parties stipulated at the first hearing (August 8, 2017) to incorporate the factual record of the dependency cases into the record of the Termination Petitions and Goal Change Motions. Following the close of evidence on August 27, 2018, this Court permitted all parties to file proposed findings of fact and conclusions of law, which were received by October 31, 2018. 53RD JUDICIAL DISTRICT 1 Mother timely appealed these permanency review orders to the Superior Court on October 5, 2018, which are currently docketed aU4:&°fF1nd;J452 WDA 2018 (hereinafter, Dependency Appeals). ,w·RE:NcE:· c o urs r v PE;�NSVL._VAN-IA i: L 7 2 ' : . � \ \--·--·--� On January 16, 2019, upon consideration of the parties' submissions, applicable law, and the evidentiary record, this Court issued an Opinion with findings of fact and conclusions of law in support of the Order granting CYS' Termination Petitions and Motions for Goal Change. Once again, those findings of fact and conclusions of law, as set forth in the January 16, 2019 Opinion and Order of Court, are incorporated herein by reference. On February 14, 2019, Mother and Father each filed timely notices of appeal and concise statements of matters complained ofon appeal. MATIERS COMPLAINED OF ON APPEAL Both Mother and Father have filed timely Notices of Appeal and Concise Statements of Matters Complained of on Appeal. The issues they complain of are as follows: A. Mother 1. Whether the Children and Youth Services Agency [CYS] failed to make [Children] available to the Court as required and mandated by the Child Protective Services Laws (CPSL}. 2. Whether the Court erred in determining that [Mother] had exceeded what was requested of her and then determined that [Mother], although she completed au services required by [CYS], and thereby, the Court failed to apply the law to the facts of the case and return [Children] to the mother. 3. Whether [CYS] failed to provide any type of reunification counseling or generate a service plan to reunify[Children] with [Mother]. [CYS] withheld the children 53RD JUDICIAL DISTRICT ,WR.EN CE COUNTY PENNSVLVA NIA ' 3 \.;.�_ . . L· � .: ... ..·,; ···t -: " . ! i � •· \.. J. i. i '---·--·-· ------------------------------------ and appropriate reunification services after all other required services were completed by [Mother]. The Court failed to apply the law to the facts on this matter. 4. Whether [CYS] failed to provide visits between [Mother] and children, based solely on the alleged belief that one of the two children voiced her desire to not see [Mother]. [CYS] failed to provide competent evidence that there was any basis to deny mother visitation. The Court failed to apply the law to the facts on this matter. 5. Whether the Court failed to take testimony from both children regarding their individual desire to reunify with [Mother] thereby requiring the Court to make a decision as to both children based upon the unsubstantiated testimony of one child, while the other was withheld from the Court without justification. 6. Whether [CYS] failed to provide any competent testimony that the best interests of the children were served by termination of parental rights. 7. The Court failed to find [CYS] had provided any competent testimony that the children were bonded with the foster family or that they did not have a bond with mother. In fact, the Court was incapable of making any determination about the child who was never presented for testimony or evaluation by the Court. 8. Whether the Court erred by issuing a final order on the Involuntary Termination rather than staying the matter pending the outcome of the Superior Court Dependency Appeal in this case. 9. Whether the evidence was sufficient to determine that mother suffered from an incapacity that could not overcome and permit the children to return home. 10. Whether the Court misconstrued the testimony of the expert psychologist, 53RD JUDICIAL Dr. Gallo, by claiming that he was not qualified to render an opinion on mother's DISTRICT : � ;_ _ �-.:. r � _. ( · � · " , · , :, . " - � .) : � l.�; ( L .J.UDIC1AL DISTRICT � f ;. i � . ,: I�,·, L.AWRENCE COUNTY WW IHR -·o� 1"1/ . , • , 1, • i. r ·1·. � Ii] PENNSYLVANIA 6 .. ,., . Accordingly, for purposes of this Opinion, Mother's and Father's issues will be organized and divided into the following five categories of analysis: • I: Failure to Have Children Appear in Court or Take Their Testimony (Mother's and Father's points 1 and 5). • 11: Lack of Competent Testimony or Other Evidentiary Issues (Mother's and Father's 6 and 7; Mother's 9 and 10). • 111: Issues with the Reunification Plan or Provision of its Services (Mother's 3,4 and 11; Father's 3,4,9 and 10). • IV: Failure to Apply the Applicable Law (Mother's and Father's 2). • V: Failure to Stay Termination Pending Dependency Appeals (Mother's and Father's 8). DISCUSSION Our Supreme Court has set forth the appellate standard of review in termination of parental rights cases as follows: 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." In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). "If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion." Id. "A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will." Id. The trial court's decision, however, should not be reversed merely because the record would support a different result. Id. at 827. We have previously emphasized our deference to trial courts that often have first-hand 53flD observations of the parties spanning multiple hearings. JUDICIAL DISTRICT · {, . .. I.'·"°'.': ;-\.L l\WR��CE COUNTY PE:NNSVLVANIA 7 In re T.S.M., 71 A.3d 251, 267 (Pa. 2013), Appellate courts review goal change orders in an identical matter by also employing an abuse of discretion standard. In re R.M.G., 997 A.2d 339, 345 (Pa. Super. 2010). I. Failure to Have Children Appear in Court or Take Their Testimony In each of their respective concise statements at Nos. 1 and 5, both Mother and Father contend that CYS failed to make Children available to this Court as required by the Child Protective Services Laws and thatthis Court erred by failing to take testimony from both Children regarding their indiviqual wishes for reunification. With respect to.the Child Protective Services Laws (CPSL) that Mother and Father both cite, Mother and Father are correct that there is a body of law known in this Commonwealth under that name. 23 Pa. C.S. §§6301-6386. However, these statutes · are not generally concerned with dependency and termination cases but rather have a purpose described by the Supreme Court as follows: The legislature sought to encourage greater reporting of suspected child abuse in order to prevent further abuse and to provide rehabilitative services for abused children and their families. The [CPSLJ also establishes a statewide central registry for the maintenance of indicated and founded reports of child abuse. as identifying perpetrators ofabuse serves to further protect children. Recognizing that identifying someone as a child abuser can profoundly impact that person's reputation, the release of such information is advocated only in certain limited venues. [Reports] of indicated and founded abuse identifying the perpetrator can be released to law enforcement, social work agencies, employers in child care services and other related venues. 53RD JUDICIAL DISTRICT LAWRENCE COUNTY PENNSYLVA.NIA 8 G.V. v. Department of Public Welfare, 91 A.3d 667, 670-71 (Pa. 2014) (quoting P.R. v. Department of Public Welfare, 801 A.2d 478, 483 (Pa. 2002)). Indeed, the statute itself uses nearly identical language in expressing its purpose to "encourage more complete reporting of suspected child abuse" and to enhance the capability of each county to investigate and prosecute suspected abusers while protecting and rehabilitating affected children. 23 Pa. C.S. §6302(b). While there are some intersections between the CPSL and dependency/termination issues, those connections are irrelevant to the case at bar. See, e.g. 23 Pa. C.S. §§6339, 6341 (d), 6375(k). Moreover, the only section directly dealing with evidentiary issues, 23 Pa. C.S. §6381, has clear language that does not specify any requirement that children must be made available to the Court by a child services agency, and we will not read such a provision into the law at this time. See 1 Pa. C.S. §1921 (b). In short, there is simply no applicable mandate in the CPSL regarding making children available to the court to which CYS failed to adhere at the termination/dependency proceedings. Because this case is a blend of dependency and termination issues, it is appropriate to evaluate the rules each of these types of proceedings has regarding the presence and testimony of the children involved. For dependency proceedings, the starting point is Pa. R.J.C.P. 1128(A), which states that generally "all parties shall be present at any proceeding" unless certain exceptions apply. Among those exceptions is that "the court may proceed in the absence of a party upon good cause shown except that in no case shall a hearing occur in the absence of a child's attorney. lf a .SJRD JUDICIAL child has a guardian ad.litem and J�g�l counsel, both attorneys shall be present." Pa. DISTRICT • i. �·-- .; : i __ �. •• ... AWRENCE COUN.TY PENNSYLVANIA 20 visitation with Children and later counseling sessions with K.M.R.6 It is also apparent that when he was not imprisoned, Father was in close contact with CYS, specifically Children's caseworker Ms. Amber Pieri. By these indications, CYS seemed generally willing to work with Father on his FSP compliance, and moreover there is nothing in the record to suggest thatCYS deliberately withheld Father from a parental capacity examination. Rather, given Father's intermittent availability and documented lack of a permanent residence, it is likely thatthe time was not yet ripe for a parental capacity assessment, a process which requires that the evaluator visit the home and observe how the. parent and child interact intheir natural setting. Further, setting aside concerns that Father failed to raise any issues at the hearings with respect to the availability of a batterer's support group in Lawrence County, the FSP did not mandate that he attend the support group with any specific provider." Indeed, even acceptinq Father's premise as true (i.e. the dubious claim that no batterer's support groups of any kind are available in Lawrence County), a thorough search by this Court uncovered no legal requirement that CYS had to ensure Father's ability to complete the FSP entirely within his county of residence. In sum, Mother's and Father's contentions that CYS failed to provide a family service plan and failed to provide reasonable efforts toward reunification are clearly 6 Father's visitation rights were also specifically addressed by a September 2015 Order of Court following his release from the Teen Challenges Program. The record indicates that Father enjoyed social visitation with Children approximately once every two weeks between September 2015 and February 2016. 7 Pa. RAP. 302(a) states that "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." See a/so.Jones v. Ott; 191 A:3d 782 {Pa. 2018). During the numerous 53RO termination hearings, Father never placed on the record any issue with respect to CYS' purported failure JUDICIAL DI.STRICT to ensure that he could attend a batterers support group in Lawrence County. Nonetheless, this Court addresses this contention with th� caveafth_at\we only do so in the interest of a full and fair exploration of the issues before the Superior Court. ·- · WRENCE COUNTY PENNSYLVANIA 21 i � •..•- t . :. ·--�-------------------------------·-· indefensible when considered next to the facts of this case. CVS developed FSPs for both Parents and then expended considerable resources to help Parents realize the overarching goal of reunification with Children. To the extent that Mother and Father assert that their right to visitation with Children was improperly curtailed, it is noteworthy that the question of visitation frequency was addressed through two orders of court that instituted specific limitations in response to seriously concerning misbehavior from each parent. Likewise, Father's additional arguments are betrayed by his inability to maintain a residence suitable for a parental capacity evaluation and the absence of any legal standard requiring the provision ofall reunification services in the parent's home county. Moreover, even if it is determined that CYS failed to provide reasonable efforts toward achieving reunification, Mother's and Father's arguments necessarily fail. As setforth by the D.C.D. Court, the appropriate sanction is a notation on the case record which would then cost CVS thousands of dollars in federal funding. Besides the fact that this Court made no such finding on the record, CVS met its statutory burden for proving termination under 23 Pa. C.S. §2511.8 Therefore, regardless of the reasonableness of CVS' reunification efforts, termination was proper in this case and these errors should not be considered on .appeal. IV. Failure to Apply the Law to the Facts of the Case Mother and Father each contend at No. 2 of their concise statements that this Court failed to apply the law to the facts of the case and return Children to Parents, 53RO JUDICIAL DISTRICT ; . -. :_ 8· See IV. Failure to Ai,.plv the Law to the Facts of the Case, infra. '"1' ··· I'l, ·,..''. -I.l...' :.•,r ,...,., ' • (, (";·'. LWRENCE COUNYY PENNSYLVANIA � '-' • � .l i 1·· .• l... u � t ; -.J J ' 22 ··--··-·--------..--·- with Mother individually complaining that she was entitled to regain custody of Children because she had completed her FSP, The law that trial courts must apply to termination petitions is Well settled and ironclad. Courts must always be mindful that parents have a constitutionally guaranteed right to the. control, care and custody of their children, which is abrogated and converted into the child's right to proper care only upon the breach of their parental duties. In re AS., 11 A.3d 473, 478 (Pa. Super. 2010). In Pennsylvania, courts safeguard these rights and balance the competing interests by adhering to the bifurcated analysis mirroring the structure of 23 Pa. C.S. §2511: 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 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 ofthe best interests of the child. In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (citing In re L.M .. 923 A.2d 505, 511 (Pa. Super. 2007)). Clear and convincing evidence is defined by the Superior Court as "evidence as that which is so 'clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." 1.Q.. (citing In re C.S., 761 A2d 1197, 1201 (Pa, Super. 2000) (en bane)). For purposes of this appeal, CYS filed the termination petitions asserting that 53RO JUDICIAL DISTRICT grounds for termination existed asto.both .. .,,, . ,.. other and Father at 23 Pa. C.S. ,.M .. ·. , ,WRENCE COUNTY PENNSYLVANIA - ...,._, ..... 23 -----------------···----··--···-·-· · ····-····-·· . §2511 (a)(2) and (a)(B), and that Children's needs and welfare would be best served by termination pursuant to Section 2511(b);9 In the January 16, 2019 Opinion, this Court recounted at length the precedents which guided our evaluations of grounds for termination at 23 Pa. C.S. §2511 (a)(2).10 Pertinent to any consideration of termination under Section 2511 (a)(2) is that "parental incapacity that cannot be remedied [is] not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties." Matter of Adoption of M.A.B., 166 A.3d 434, 444 (Pa. Super. 2017) (internal citations omitted) (emphasis added). 9 23 Pa. C.S. §2511; Grounds for involuntary termination (a} General rule. - The rights ofaparent in regard to a child may be terminated after a petition filed on any of the following grounds: (2) The repeated and continued incapacity, abuse, neglect or refusal ofthe parent has caused the child to be without essential parental care; control or subsistence necessary for his physical or mental weil-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannotor will not be remedied by the parent *** (8) The child has been removed from the care ofthe 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 or the child continue to exist and termination of parental rights would serve the best needs and welfare of the child, (b) Other considerations. - The court in terminating the rights of a parent shall give primary consideratlcn 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. 53RD JUDICIAL 10 See, e.g., In re N.A.M., 33 A.3d 95_,.1pO.(f;la.,-Super, 2Pl1}; In re Interest of Lilley, 719 A2d .327, 330 DISTRICT (Pa. Super. 1998); In re Geiger. 331 A.2ci':172 (Pa: :1975);�-in re E.AP., 944 A.2d 79, 82 (Pa. Super. 2008). WRENCE COUNTY PENNSYLVANIA !/ . 24 . -..;.·_ .. 1 i .. : " �--·. .,. r .' - For Section 2511 (a)(8), this Court extensively applied the tripartite test set forth by !D. re M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003).11 Lastly, for the Section 2511(b) branch of the analysis, this Court relied on M.A.B., supra, at 448 and T.S.M., supra, at 269 which require that trial courts consider the bonds that exist between a parent and child, as well as myriad other factors, such as love, comfort, safety, and relationships with the fosterfarruly. See also In re Adoption ofC.D.R., 111 A.3d 1212 (Pa. Super. 2.015); A.S., supra, at 483. In short, the law that Pennsylvania courts must unwaveringly apply when evaluating termination petitions is 23 Pa. C.S. §2511, the subsections. of which in turn necessitate the bifurcated analysis as further interpreted and expanded through case law. In the case sub judice, CYS had the burden of proving by clear and convincing evidence that grounds for terminating Mother's and Father's parental rights existed under 23 Pa. C.S. §2511(a)(2) and (a)(8). Regarding Mother (and disregarding her assertion that she completed every item on the FSP; see llL supra), this Court was satisfied that CVS provided clear and convincing evidence that Mother exhibited ah irremediable emotional incapacity under Section 2511 (a)(2), i.e. that Mother could not provide essential care and control of Children due to her inability to have any semblance of an emotional relationship with them. However, this Court was not persuaded that grounds for termination existed as to Motherunder Section 2511 (�)(8), and thus denied that ground. Likewise, applying the test set forth by Section 2511 (b), 11 In reAdoption of M.E.P., E325 A.2d 1266, 1276(Pa. Super; 2003) stated as follows with respect to 53RC JUDiCIAL Section 2511 (a)(B): "[The] following factors must be demonstrated: (1) the child has been removed from DISTRICT parental care for 12 months or moi'�-fro.m· the date 9f,removal; (2) the conditions which led to the removal or placement of the child contlnue' to exisl;'"and (3) termination of parental rights would best serve_the needs and Welfare ofr;tl:A.c�i!_d.".- (.,,,!._ ,. ,L:� -,·,� •r:-.'4 I • - ,WRENCE COUNTY. i: i.Il.i PENNSVLIIANIA this Court was satisfied that Children's best interests would be served by termination. Regarding Father, this Court. concluded that CYS met its burden for showinq that grounds for terminating his parental rights existed under Section 2511 {a)(2) and (a){8), and that it would again be in Children's best interests under Section 2511 (b) to have his rights terminated. At all times, this Court applied the statutory and case law provisions applicable to the asserted grounds for termination, and made its decisions based on the strength of the evidence presented. Therefore, this matter should not be considered on. appeal. V. Failure to Stay Final Order Pending Dependency Appeals At No. 8 on their concise statements, Mother and Father each argue that this Court erred by failing to stay issuing its final order on the involuntary terminations While the Dependency Appeals remained pending before the Superior Court. Pennsylvania Rule of Appellate Procedure 1701 governs the effect an appeal has on the trial court below. Pa. R.A.P. 1701 {a) states that unless otherwise prescribed by the rules, "after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter." However, Pa. R.A.P. 1701(c) (emphasis added) qualifies this by decreeing that '[wlhere only a particular item, claim or assessment adjudged in the matter is involved in an appeal. .. the appeal .or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item, claim or assessment... '1 Additionally, clear precedent from the Pennsylvania Superior Court disfavors 53RD JUDICIAL staying all proceedings frivo[vj.ngJ:1.d.epen�ent child solely because one issue or order DISTRICT � .• - i .• �' ,WRENCE COUNTY PENNSYLVANIA ,. - -, � ;.., :' '. ... 26 ··· ·-·---------------------------- is on appeal. "Depriving a Juvenile Court of jurisdiction merely because a single Order, involving any issue or party; has been appealed ... would also frustrate the statutory authority of the Juvenile Court to exercise continuing_ independent and original authority to adjudicate in the best interests of a dependent child." In re Gdffin, 690 A.2d 1192, 1200 (Pa. Super. 1997). Indeed, "[maintaining] the status q1,.10 while awaiting resolution of a parent's appeal could never justify the risk to a child forced to remain in a possibly safe or unsatisfactory situation." In re R.P., 956 A.2d 449, 455 (Pa. Super. 2008). Here, the Dependency Appeals of October 5, 2018, involved separate issues from the termination petitions and motions for goal change. While it is undeniable that, for purposes of judicial economy, this Court scheduled and conducted hearings for both tracks of cases concurrently, ultimately the two sets of cases are concerned wlth different legal issues and outcomes. Therefore, this Court, pursuant to Pa. R.A.P. 1701(c)and the aforementioned case law, declined to stay the termination proceedings; accordingly, this matter should not be. considered on appeal. For the foregoing reasons, we respectfully request thatthe Superior Court affirm our January 16, 2019 Order of Court, and dismiss the appeal in this matter: 53RD JUDICIAL I ,, �·. ; DISTRICT ' ,' • I • ,WAENC�- COUNTY Pi.NNSYLVANIA 27 Circulated 07/24/2019 1047 AM .- { '·... IN THE INTEREST OF: IN THE COURT OF COMMON PLEAS LAWRENCE COUNTY, PENNSYLVANIA K.M.R. : N0.940F2013,DP; NO. 20012 of 2017, OC-A J.L.A. APPEARANCES For Children and Youth Services: Carolyn Flannery, .Esq. 1001 East Washington Street New Castle, PA 16101 For Natural Mother, M.R.: Dennis Mccurdy, Esq. 539 Main Street Harmony, PA 16037 ..;.J . . o-- =: �-� dated January 5, 20141 this Court assigned legal and physical custody of Childre5to � c';;:: -...... t=.i� CYS.�Since the initial dependency finding this Court has conducted permanen�evi� � - u. � t$ii:c:;':J.:; hearings approximately every six months as required by the Juvenile Act and has c:..:) .: N· · """ii-·. continued to find Children dependent, and their placement in foster care appropriate, as _documented by each permanency review order to date and including the most recent one issued on September 17, 2018.2 1.Although the bulk of this opinion and order addresses the Termination Petitions, filed under the Orphans' Court docket numbers (Nos. 20011 and 20012 of 2017, OC·A), for purposes-of judicial economy we include the Motions for Goal Change which were filed under the companion dependency docket numbers (Nos. 94 and 95 of 2013, DP). 53RO 2 JUOlCIAI. On October 5, 2018, Mother appealed this permanency review order to the Superior Court. Later, 'on DISTRICT November 1, 2018, Mother moved that adjudication on the Termination Petitions be stayed pending the Superior Court's decision on the dependency appeal, but this Court denied the motion. See Order of Court, December 4, 2018. LAWRENCE COUNTY P'E ...... SVL.VANI.A 2 ' •• Following several years of dependency hearings, CVS presented the Motions for Goal Change and Termination Petitions on April 11, 2017, alleging that Mother's and Father's parental rights should be terminated pursuant to 23 Pa. C.S. §2511(a)(2) and (8). This Court conducted the foTiowing hearings, and the fol)owlng witnesses testified, over a sixteen-month period and formed the bulk of the factual record underlying this opinion: 1. August 8 and 9, 2017; K.M.R. and therapist Tanya Stahlman; 2. September 26, 2017; Ms. Stahlman (continued) and counselor Brian Dick; 3. March 28 and 29, 2018; psychofogist Dr. Fred Gaito and CVS caseworker Amber Pieri; 4. June 26, 2018; Ms. Pieri (continued) and testimony from Father and Mother; 5. August 27, 2018; CVS caseworker Kristen Pauline. Besides the considerable evidence accumulated at .these hearings, aH parties stipulated at the first hearing (August 8, 2017) to incorporate the factual record of the dependency cases into the record of the Termination Petitions and Goal Change Motions. Following the close of evidence on August 27, 2018, this Court permitted a)I parties to file proposed findings of fact and conclusions of law, which were received by October 31, 2018. FINDINGS OF FACT I. Parties to the Case · 1. K.M.R. is a female child bom November 6, 2001, in Lawrence County, Pennsylvania. 53Ro JUDICIAL OISTRICY t.AWfUt:NCC COUNTY PI.NN!IVI..VANIA 3 ' . minimize it, even to the detriment of Children. On the few occasions Mother took action in response to Father's behavior, such as staying In an alternate location for the night, K.M.R. stated that Mother tended to reunite with him soon after. Id. at 9, 13. 10. Neither Mother nor Father had a full-time job as of November 2013. A stay-at- · home mom, Mother's primary source of income consisted of monthly disability checks she had been receiving since 2001. Meanwhile, Father was "a completely different person; addicted to heroin, alcohol and pain pills, and mainly focused on where to get and how to pay for his next dose of drugs. N.T., 6/26/18, at 19, 54 194, 195. 11. Mother declined to enroll K.M. R. in the local public school system, the Laurel School District, and chose instead to homeschool her. Mother intended the same for J .L.A. but could not do so because at the time, J.L.A. had not yet reached the age of eight:years-oid, th� minimum required for schooling in Pennsylvania. Id. at 154, 202. 12.0n November 2, 2013, under the influence of drugs, Father beat, punched'and assaulted Mother violently and constantly for a period of six hours and inflicted injuries so-severe, including a punctured lung, that she had to be flown via helicopter to Pittsburgh for medical treatment. Mother later estimated that Father struck her approximately 300 times duriog this episode and that she required near1y a week or hospitalization before becoming stable enough for release. Children were present for and witnessed at least some portion or this attack, part SStito JUDICIAL lJISTRICT s 1..AW#tt:HC& COV"fTY �C ... HSVf.VAHIA .' physlcal and legal custody. Children have remained with the same foster family since December 14, 2013. See Permanency Review Order, September 17, 2018. 17. As required by the Juvenile Act, permanency review hearings have taken place approximately every six months to evaluate whether the finding of dependency · and Children's placement remains appropriate. The most recent review hearing took place on September 17, 2018. 18. By the spring of 2014, within months of Children's initial placement, CVS caseworker Kristen Pauline developed the initial Family Service Plan (FSP) (also known as a Child Protective Plan, or CPP) that outlined the steps Parents were required to take prior to any reunification with Children. The FSP was drafted in response to the conditions that necessitated Children's removal from the home. Some steps of the FSP applied toboth parents, while others pertained to only one of them. Among the steps on Parents' FSP: • Keep the home clean and free from clutter. • Schedule a mental health assessment to determine if the parent has any mental health issues that would impact parenting the child. • Obtain a psychological assessment. • Complete domestic violence counseling. • Complete anger management classes • Complete a parental capacity assessment. • Undergo a drug and alcohol evaluation. N.T .. 3128118, at 144-45, 8128118 at 31. 53RO JUDICIAL DISTRICT LAWAINC-C COUNTV ...e:NNSVI..VA.NIA 7 19. In addition to the affirmative steps required of Parents, reunification was contingent upon the successful completion of counseling sessions between each Parent and Children designed to discuss and work through outstanding issues. At various times, Children participated in counseling sessions with either Parent, but at no time were both Parents and both Children present at the same therapy session. Between early 2014 and September 2015, therapy was facilitated by Tressa French, and then by Tanya Stahlman from September 2015 to June 2017. N.T., 8/8/17, at 9, 10. 20.Alongside the efforts to complete the FSP and counseling, Mother and Children engaged in CVS-supervised social visitation from January 2014 to September 2014, as required by regulation.3 Largely at Children's insistence,£YS stopped, scheduling and facilitating visits in September 2014, which prompted Mother.Jo C\J ··c . � c ..... � � file a Motion to Resume Visitation in November 2014. On January 6, 2015je ;i:: .. c, ..:. .) C.1.J - Ll.. 0: =l: : Court issued an order appointing a special counselor who had discretion td2 � 0, c.:;; � c :!: �J·" determine if, when, and how visitation would resume. These issues rema�d � -..,s.S � .... 4... � -'- g-� """' unresolved with each subsequent permanency review order, as all �pecifically c-... :.:;;] 9. . . provided that "Prchoitionot contact with [Children] shall continue unless approved by [CYS] and by further order." Order of Court, January 6, 2015; N.T., 3/28/18.; at 153. 21. Though unbeknownst to her parents at the time, K.M.R. was the victim of sexual• •abuse committed by a neighbor, the now-deceased David Anderson, for a period of approximately one year predating her placement with CYS, from sometime in 53RD JUDICIAL CISTftl�T 3 55 Pa. Code §3130.68. LAWRENCE COUNYV F'E'°'N$VL.VANIA 8 25. Dr. Gallo additionally testified as a fact witness with respect to the psychological evaluation he performed on Mother on January 18 and 20. 2016, whose goal was to evaluate . Mother'·s "psychological functioning and her fitness . for reunification for her children." Id. at 32. 26.As part of the evaluation, Dr. Gallo administered a wide range intelligence test, the Beck Anxiety inventory, the Beck Hopelessness Scale, the Minnesota Multiphasic Personality Inventory, some projective tests, the Thematic Apperception Test, and a parent/child relationship inventory, all of which are approved diagnostic tools from the American Psychological Association. Dr. Gallo obtained additional material for his evaluations from conversations with other professionals familiar with Mother, such as counselor Jim Hines and therapist Tressa French. Id. at 25-30. 27. Dr. Gallo drew the conclusions that Mother presenteffih a superior intellectual 'ability, did not present with severe depression or anxiety, did not demonstrate, . signs of post-traumatic stress disorder, or any major psychological disorders. Dr. Gallo further stated that Mother's 11psychological functioning is adequate and that she has good parenting skills ... she appears to be highly motivated to resume the strong connection with children regardless of the time that it is taking." Id. at 32· 33 (quoting from Mother's Exhibit D). 28. Dr. Gallo opined that Mother's psychological condition permitted her to resume supervised visits with Children and proceed with reunification counseling. Id. 29.Although he reached conclusions on Mother's parenting abilities, Dr. Gallo'sll 53RCI JUDICIAL DISTRICT �ssessments were neither a custody evaluation nor a parental capacity• LAWRENC£ CO'UNTY P£NNSYL.'1ANIA 10 ( focus for each patient. For Mother, the focus was on "her ability to attune to her daughters' feelings, validate those feelings, understand their trauma experience, develop the necessary skills to parent a child [who] has dealt with trauma in their lives." For K.M .. R., the sessions centered on how to "process and find resolution from the traumatic experiences that she has had in her life," both with respect to Parents and Mr. Anderson. N.T-,, 3116/17, at 65, 76. 41. When Ms. Stahlman first took over the therapy sessions, the clinical goal remained family reunification. However, after K.M.R. expressed resistance to that goal, Ms. Stahlman reoriented the sessions from reunification to resolution, i.e. "what does it mean to understand the circumstances that have happened to her, how can [she] and her rnoiher talk about tne traumatic experiences that they have .1 had in relation to one another and then overcome those feelings.'' Children• opposed reunification counseling because they "felt that their psychological safety awas at risk." Id. at 65-66; N.T., 9126117, at 23. 42. Once the goal was changed to resolutio",, KM.R. made remarkable progress in identifying, sharing and verbalizing feelings, and developing healthy stress'coplnq mechanisms, although she still occasionally �ngaged in self-harming behaviors (rubbing her skin raw, digging her fingernails into her arm, etc.). There has additionally been "progress in the reduction of negative feelings, n like. anger and frustration4 between K.M.R. and Mother, but not much in the way of building positive feelings. N.T., 3116117, at 66-67, 74, 94. 43. With respect to J.L.A., Ms. Stahlman believed that due to her age, she was 5)RI) JUDICIAL DISTRICT JtUmbed and "overwhelmed with the amount of emotions that she feels" and had t.AWRENCE COUNTV P'ENNSV LVAN.&A 14 51.Ms. Amber Pieri has been the caseworiENl•U