Opinion
No. 37 WAP 2022 No. 38 WAP 2022
06-21-2023
In the INTEREST OF: K.T., a Minor Appeal of: K.T. In the Interest of: K.T., a Minor Appeal of: Allegheny County Children, Youth and Families
Caroline Tatem Buck, Esq., for Amicus Curiae Community Legal Services. Marsha Levick, Esq., Juvenile Law Center, for Amicus Curiae Juvenile Law Center. Mary Coyne Pugh, Esq., Montgomery Child Advocacy Project (MCAP), for Amicus Curiae Montgomery Child Advocacy Project. et al. David R. Fine, Esq., K&L Gates LLP, for Participants. Lila Lipshie Harris, Esq., Thomas C. Welshonce, Esq., KidsVoice, for Appellant. Matthew Aaron Hamermesh, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Appellee. Diann R. Stein McKay, Esq., Family Design Resources, Inc., for Appellant Office of Children, Youth and Families.
Caroline Tatem Buck, Esq., for Amicus Curiae Community Legal Services.
Marsha Levick, Esq., Juvenile Law Center, for Amicus Curiae Juvenile Law Center.
Mary Coyne Pugh, Esq., Montgomery Child Advocacy Project (MCAP), for Amicus Curiae Montgomery Child Advocacy Project. et al.
David R. Fine, Esq., K&L Gates LLP, for Participants.
Lila Lipshie Harris, Esq., Thomas C. Welshonce, Esq., KidsVoice, for Appellant.
Matthew Aaron Hamermesh, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Appellee.
Diann R. Stein McKay, Esq., Family Design Resources, Inc., for Appellant Office of Children, Youth and Families.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE DOUGHERTY In this discretionary appeal, we are asked to determine whether the court that denied a county agency's petition for involuntary termination of a mother's parental rights gave "primary consideration to the developmental, physical and emotional needs and welfare of the child" as required by 23 Pa.C.S. § 2511(b). More specifically, we explore whether the court evaluating the parent-child bond must determine whether the bond is necessary and beneficial to the child, and severing the bond would cause the child to experience extreme emotional consequences, rather than a mere "adverse" impact. Upon review, we find error and thus (1) vacate the orders below, and (2) remand to the trial court for further proceedings consistent with this opinion.
I. Background
The Child K.T. was born on June 17, 2016. Allegheny County Office of Children, Youth and Families (CYF) first became involved with her when she tested positive for cocaine at birth; CYF had been involved with Mother since 2009 regarding an older child. During CYF's investigation, Mother admitted use of marijuana and alcohol and CYF deemed her housing unstable. CYF referred Mother for a drug and alcohol abuse assessment with Pennsylvania Organization for Women in Early Recovery (POWER), as well as housing assistance and in-home services with Family Resource. CYF also required Mother to begin regular urine drug screenings.
Prompted by continued housing instability, a report of intimate partner violence between Mother and Child's biological father, and Mother's failure to follow through with service referrals, CYF sought a finding of dependency on January 26, 2017. Prior to the dependency hearing, CYF removed Child under an Emergency Custody Authorization (ECA) on March 7, 2017, due to a report Mother "allegedly became physical" with one of her older children who dropped Child. N.T. Termination Hearing, 3/22/21 at 15. On March 27, 2017, the dependency court found Child dependent and ordered all contact between Mother and Child to be supervised. Child was placed with a foster parent and adoptive resource, her godmother, in June 2017. The court also ordered Mother to complete a drug and alcohol assessment, related treatment, and urine drug screenings.
Father's parental rights were involuntarily terminated in October 2021.
Mother has two older children, daughter A. and son L.W.
For more than two years, while Child remained in her foster home, and prior to CYF filing for termination, Mother was inconsistent with participation in CYF's recommended services. During this time, she continued to struggle with her sobriety, mental health, and behavior, relapsing after treatment programs, testing positive on five occasions for substances, and gaining a criminal record of five summary citations, some involving her children, as well as aggressive behavior.
Mother attended some teaming and conferencing meetings with CYF. See N.T. 3/22/21 at 30. She attended most permanency review hearings. See id. at 31. Mother attended thirty-four of the fifty-seven mandated substance screenings. See id. at 84. In August 2017, Mother completed POWER's drug and alcohol assessment, after failing to comply on two other occasions, and she was "recommended for inpatient treatment." See id. at 62-63. Mother then checked herself into Gateway on September 27, 2017 for treatment and later transferred to Sojourner House. See id. at 63. She left Sojourner House without completing the program. See id. at 65. In December 2017, Mother completed an intake at Family Links after CYF referred her for mental health concerns. See id. at 85. Mother later began SHORES, a drug and alcohol treatment program, following a referral from CYF and a positive drug test, but SHORES discharged Mother for missing sessions. See id. at 65-66. On June 21, 2018, Mother completed another assessment with SHORES in which they recommended intensive outpatient services. See id. at 67. Instead, Mother agreed to twice a week, in-home counseling. See id. Mother successfully completed the SHORES program in January 2019. See id. at 72. In April 2019, Mother completed another drug and alcohol assessment and was given no further recommendations. See id. at 73-74. But, after another positive drug test result, CYF referred Mother for a POWER assessment in May of 2019. See id. Mother did not complete the assessment. See id.
While Mother was pregnant with Child, she pled guilty to two summary citations of disorderly conduct. See Int. of K.T. , No. DP-091-2017, slip op. at 7 (C.P. Allegheny, Nov. 22, 2021). After Child's removal from her care, Mother pled guilty in 2018 to four summary citations: retail theft, harassment subject to other physical conduct, defiant trespassing, and disorderly conduct. See id. In August of 2019, Mother pled guilty to another summary citation of disorderly conduct and was also involved in an incident leading to a summary citation of disorderly conduct, engaging in fighting, in November of 2019. See id. at 7-8. Following CYF's filing for termination in October 2019, Mother pled guilty in 2020 to summary citations for harassment and criminal mischief. See id. at 8. Testimony at the termination proceeding showed three incidents, those leading to Mother's August and November 2019 citations and 2020 citations, involved her older children. See infra Section I.A.
Prior to CYF's filing for termination, Mother attended most visits with Child which were typically scheduled for three times a week. Visits were both supervised and unsupervised. In October 2018, the court permitted Mother to have unsupervised, overnight visits with Child, but by February 2019, Mother's visits were moved back to supervised due to concerns about her sobriety. In April 2019, the court gave permission to move back to unsupervised visits, but before these could begin, Mother tested positive for substances and the court granted CYF's request visits remain supervised. Mother also failed to return Child timely on two occasions, and once required CYF to seek a court order returning Child to its custody. See Order to Take Child into Custody, 6/19/19. Although Mother stabilized her housing by May 2019, CYF had ongoing concerns with Mother's continued substance abuse, recent criminal offenses, and failure to return Child in a timely fashion, and by August 2019, Child's permanency goal was changed to adoption. See N.T. 3/22/21 at 29-30. By this time, Child was three years old and had not lived with Mother since June 2017.
According to appellants, Mother did not file an appeal from this decision. See Reply Brief at 3 n.5. Mother does not dispute this account.
Even during the period Child lived with Mother, Child was actually in maternal grandmother's care (with whom Mother lived) and Mother's contact was ordered to be supervised.
A. Termination Proceedings
In October 2019, CYF filed a petition to involuntarily terminate Mother's parental rights, and the court conducted a hearing over two days. CYF presented seven witnesses: Amanda McCloy, a CYF caseworker; William Pipkins, family transportation supervisor with Second Chance, the organization that scheduled, supervised, and provided transportation for a portion of Mother's visits with Child; Myelodie Turner, Mother's caseworker with Second Chance; Brett Basic, police detective dispatched for the incident resulting in Mother's August 2019 disorderly conduct offense; Ronald Bobick, police officer dispatched to assist in the enforcement of an ECA for Mother's older child L.W.; Ryan Miller, police sergeant dispatched for the incident resulting in Mother's October 2020 guilty pleas on criminal mischief and harassment citations; and Neil Rosenblum, Ph.D., court-appointed clinical psychologist who performed three individual and interactional evaluations of Mother, Child, and Foster Mother. Mother presented three witnesses: Daniel Garrighan, facility director of Jade Wellness Center where Mother received drug and alcohol outpatient services starting in August 2020; Jawana Warren, site director at the Clairton Family Center where Mother completed parenting classes in October 2020; and Lisa Penn, program manager with POWER.
Dr. Rosenblum testified regarding his three evaluations, conducted in May 2018, January 2020, and November and December 2020. See N.T. Termination Hearing, 5/13/21 at 73. His testimony covered his assessment of Mother's mental health and substance abuse, Child's relationship and interactions with Mother and Foster Mother, and his ultimate opinion that adoption best serves Child's needs and welfare.
Dr. Rosenblum diagnosed Mother with mixed personality disorder with borderline and antisocial features. See id. at 82. He testified Mother "has consistently shown signs of a mood disorder," "does present with ... a pattern of difficulty focusing[,] ... tends to be emotionally reactive to stress ... [and] has difficulty controlling her anger at times." Id. at 75, 83. He explained Mother was forthcoming about substance abuse, but struggles "to understand the role of drugs in her life." Id. at 79. Dr. Rosenblum testified Mother made some progress but ultimately issued a guarded prognosis for her improvement because personality disorders are difficult to treat and require "years of counseling, combined with maturity and, in [Mother]’s case, probably psychotropic medication[.]" Id. at 82-83.
Regarding the bond between Mother and Child, he testified that Child is "always glad to see [Mother]," "loves her[,]" and enjoys spending time with her, but Child's relationship with her is "more ancillary" and "playful" like a "big sister" or "aunt." Id. at 84, 90, 93. He said Mother is "nurturing" and "affectionate[,]" but "tends to be comfortable with creating an emotional dependency." Id. at 85, 87. She is not "as focused on helping [Child] to expand her developmental competencies and to build her self-esteem." Id. at 87. Specifically, he noted, in the last two evaluations, Mother "spent more time focus[ed]" on "[Child]’s appearance," suggesting "she's not getting adequate physical care" with Foster Mother, than "engaging [Child] in positive activities." Id at 85-86. He further testified "I think it makes [Child] uncomfortable." Id. at 86. He went on to explain "[i]t is pretty well-known that [Mother] and [F]oster [M]other do not get along" and "[F]oster [M]other indicates that [Mother] has harassed her[.]" Id. at 85.
Dr. Rosenblum further testified that Child "receives excellent, outstanding care from her [F]oster [M]other" and "[h]er primary attachment is definitely to her [F]oster [M]other." Id. at 88, 90. He testified "[F]oster [M]other does a particularly good job of building [Child's] confidence and encouraging her[.]" Id. at 87. He explained "[Child] has developed attachments, healthy attachments, to her [F]oster [M]other[ and] her foster siblings[.]" Id. at 89. He explained her foster home "is the foundation of her emotional well-being." Id. at 121.
The court also questioned Dr. Rosenblum. When the court asked whether "[M]other could mature to a point where she would be in a position to assume a safe and secure family environment," Dr. Rosenblum replied:
Not for this child, no. Again, I believe the die has been cast. Attachment is most critically formed in the — between one to two years of life. This child has lived now almost five years in the same home. I think she has a secure foundation, a secure relationship with her primary caregiver. I would say the verdict would be out as to whether birth mother might ever be in a position to parent a child successfully. But for this child I believe there would be significant trauma ... for her to be removed from this home. So I don't see a very favorable prognosis even if mother was functioning significantly better than she is now, which, again, there's no guarantee. But I think for this child the train has left the station quite some time ago.
Id. at 126-27. Finally, in response to the court's question if "[C]hild should be allowed to maintain some degree of contact with [M]other[,]" Dr. Rosenblum further testified:
Yeah. I always — almost always feel that way. I don't believe that [Mother]’s malicious towards [Child]. I think her love is genuine. ... [I]f we were to look at ideally what would be in [Child]'s best interest, certainly the love that [Mother] has for her if it can be shaped into a supportive role, not a critical role, not putting [F]oster [M]other down, not criticizing her care, there's always an advantage to having those connections to, you know, biological roots and people who love you.
Id. at 127-28.
Dr. Rosenblum, after three evaluations within a two-and-a-half-year period, ultimately opined adoption would best meet Child's needs and welfare, explaining he did not believe "[Mother] is in a position to assume ... a safe, secure family environment for [Child] that would allow her to grow and develop in a healthy manner without risk of some form of psychological harm or concern to her well-being." Id. at 93. As to CYF's question whether "th[e] lack of contact [with Mother would] be so detrimental to [Child] that this Court should not terminate parental rights," Dr. Rosenblum stated, "it would be a loss" that "does not outweigh the need for the opportunity to move forward in [Child's] life with the continuity of care and ... emotional support that she receives in her current family environment." Id. at 130.
CYF caseworker McCloy provided detailed testimony on CYF's involvement with Mother, as summarized above. Regarding Mother's supervised visits, she testified:
For the most part they seemed to go well. There were times where there was concerns about her lack of being interactive with [Child]. She was generally nurturing of [Child]. There were concerns at times that she would ... want to leave and come back to the visits to either go to the store or pick up food or things like that.
N.T. 3/22/21 at 128. On cross examination, responding to whether "there [were] any concerns raised during the unsupervised visits[,]" McCloy explained:
Not as far as the interaction between [Child] and [Mother]. The main concerns as far as them being switched between unsupervised and supervised has been
related to [Mother]’s sobriety as well as on one occasion there was an incident in which she did not return [Child] ... in a timely manner[.] ... But as far as the interaction, there were no major concerns reported.
Id. at 130-31.
McCloy also testified, "while [Child] does not often communicate to [me] regarding Mother directly, when being transported to visits, [Child] does look forward to seeing [Mother]." K.T. , No. DP-091-2017, slip op. at 16, citing N.T. 3/22/21 at 129.
Second Chance's transportation supervisor Pipkins testified Mother attended 167 of the 195 visits scheduled with Child since July 24, 2017, and that to his knowledge, no Second Chance staff raised a concern in their written summaries regarding Mother's visits. See N.T. 3/22/21 at 181-83.
Caseworker Turner testified about Mother's allegations that Foster Mother left Child alone once and did not provide Child with adequate care. See N.T. 5/13/21 at 10, 12, 20-21, 31-33. Turner explained these allegations were investigated and there were no concerns with Foster Mother's care. See id. at 10, 12. Turner also stated Mother told her "she and her sisters were looking for [Foster Mother] and if they seen her that there would be a problem" and that Mother regularly "watches [Foster Mother's] house because she doesn't feel like her child is safe." Id. at 8-9. Turner testified her own observations of Child in her foster home indicate: "[Child] is very comfortable. Whenever I visit she seems very happy. She smiles, she laughs. ... [S]he refers to the caregiver as mom ... [and] the caregiver's children as her brother and sister." Id. at 13-14.
Mother's complaints to Turner included showing her a picture of Child's underclothes, alleging they were not clean, and stating Child came to a visit hungry. See N.T. 5/13/21 at 12. Mother also sent Turner a video in which Mother asks Child about Foster Mother leaving Child in the care of her minor foster brother and Child, after some hesitation, states she was left with him for "eight hours." See id. at 26-33.
The three police officers who testified provided factual context for Mother's criminal record. Detective Basic testified that, on August 1, 2019, "[Mother] got into a physical altercation with a friend of hers named Linda Smiley ... and both Ms. Smiley and [Mother] were intoxicated at the time[.]" Id. at 43. He stated, "I guess [Mother's son L.M.] was picked up by Ms. Smiley is what was reported to us and like kind of thrown on the ground." Id. at 46. Sergeant Miller testified on August 5, 2020, Mother went to the home of her older daughter A.’s father, "pushed in the air conditioner and slapped the woman inside the house," allegedly because father was not feeding A. Id. at 66. Sergeant Miller investigated and observed there was food in the home and the home was clean and appropriate.
Another witness, Officer Bobick, testified regarding the enforcement of an ECA CYF obtained for Mother's son, L.M.
Lastly, the court heard testimony from Mother's three witnesses regarding Mother's progress following the initiation of involuntary termination proceedings. Their testimony established Mother successfully completed a parenting program, POWER's mentoring program to "build sober support ... and to maintain recovery[,]" and Jade Wellness's intensive outpatient treatment for drug and alcohol abuse; she also remained "fairly compliant" with Jade Wellness's subsequent "Level 1 Drug and Alcohol" outpatient treatment. Id. at 139-40, 161.
When evaluating a petition for involuntary termination of parental rights, the court may not consider the parent's efforts to remedy conditions described under subsection (a)(1), (6) or (8) which are first initiated after receiving notice of the filing of the petition. See 23 Pa.C.S. § 2511(b). Mother received notice of the termination petition on November 1, 2019. See CYF's Aff. Svc., 11/6/19.
On October 13, 2021, the trial court entered an order denying CYF's petition to terminate Mother's parental rights. Although the court found CYF proved grounds for termination, specifically 23 Pa.C.S. § 2511(a)(2), (5) and (8), the court held CYF failed to meet its burden under 23 Pa.C.S. § 2511(b). See, e.g. , In re Adoption of C.M. , ––– Pa. ––––, 255 A.3d 343, 358 (2021) (agency seeking termination has burden of proof to establish by "clear and convincing" evidence the existence of the statutory grounds for involuntary termination of parental rights). The court concluded "terminating the parental rights of Mother does not serve the needs and welfare of the child." Order Den. in Part Involuntary Termination, 10/13/2021. In its Pa.R.A.P. 1925(a) opinion, the court explained its decision. First, the court reviewed Mother's history with CYF, including both successful and failed attempts at complying with service referrals, personal struggles with substance abuse since the age of fourteen and mental health concerns, criminal record and treatment progress that occurred after the filing of termination. See K.T. , No. DP-091-2017, slip op. at 2-9, 14. The court also scrutinized Dr. Rosenblum's testimony, focusing on his opinion that Mother's love for Child "could be shaped into a supportive role wherein Mother is able to support [Foster Mother]" and that "a connection to the child's biological mother would be beneficial to her." Id. at 7. The court cited Dr. Rosenblum's statement that, "while [Child] seems to regress in maturity around [Mother], some of this is due to the inherently limited interactions they have in addition to Mother's concerns about [Child's] care and appearance." Id. at 6-7. The court also recognized Dr. Rosenblum ultimately concluded a continued relationship with Mother "does not outweigh the need for the opportunity for [Child] to move on with her life." Id. at 7.
Section 2511 provides, in relevant part:
(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.
...
(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. ....
23 Pa.C.S. § 2511.
The court acknowledged Section 2511 requires a bifurcated analysis, where it must first find, by clear and convincing evidence, statutory grounds for involuntary termination under Section 2511(a) exist, before moving on to determine whether termination would meet the needs and welfare of the child under subsection § 2511(b). See id. at 13. In addition to citing relevant Superior Court decisions, the court quoted this Court's guidance for its subsection (b) analysis:
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.["] 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M. , [––– Pa.Super. ––––] 53 A.3d 781, 791 (2012). In In re E.M ., [533 Pa. 115, 620 A.2d 481, 485 (1993) ], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to ... discerning [the] effect on the child of permanently severing the parental bond. In re K.M ., 53 A.3d at 791.
Id. at 12-13, quoting In re T.S.M. , 620 Pa. 602, 71 A.3d 251, 267 (2013) (alterations in original).
The court then stated "CYF failed to demonstrate, clearly and convincingly, that termination would meet the needs and welfare of [Child]" under Section 2511(b). Id. at 15. Specifically, the court opined CYF did not meet its subsection (b) burden because "[Child] ha[s] an emotional bond with [Mother], and [ ] permanently severing that bond would have a detrimental impact" or "adverse effect" on Child. Id. at 15, 18. Noting only two witnesses testified "to the emotional bond between Mother and [Child]," the court relied on CYF caseworker McCloy's testimony about Child's interactions with Mother and Dr. Rosenblum's opinion evidence to support its decision. Id. at 16-17. The court observed Dr. Rosenblum stated "[C]hild is eager to spend time with [Mother]" and "Child does have an attachment to Mother," "loves her" and "is always glad to see her." Id. at 17, quoting N.T. 5/13/21 at 84, 89. The court also quoted Dr. Rosenblum, clarifying "[w]hile the child has sometimes referred to her [F]oster [M]other as ‘mother’ or ‘mom,’ at other, later times, she has referred to Mother as ‘mom’ and [F]oster [M]other as ‘god mom.’ " Id.
Notably, the court considered "whether severing the bond between [Mother] and [Child] would adversely affect [Child]," referring to Dr. Rosenblum's recognition "that [Child] displayed reluctance at having to leave Mother at the end of the evaluation[:]" Child "began to cry[,] [and] ... had to be carried out to [Foster Mother]." Id. The court relied on Dr. Rosenblum's testimony "that there has been no significant period of time where Mother and [Child] were not in some sort of contact" and "Mother sees [Child] more than many of the parents that he's evaluated who are in a similar situation." Id. at 18. The court quoted Dr. Rosenblum's opinion it would be "beneficial to [Child] to maintain contact with biological relatives" and "[she] should be allowed to maintain some degree of contact with [M]other." Id. Based on this evidence, the court ultimately concluded "terminating the parental rights of Mother does not serve the needs and welfare of the child." Order Den. in Part Involuntary Termination, 10/13/2021.
B. Superior Court Opinion
CYF and Child, through a guardian ad litem , appealed to the Superior Court, and the three-judge panel affirmed in a split decision. The panel majority noted "Child present[ed] a substantially identical issue [as CYF,]" namely, whether the trial court erroneously denied termination "after CYF proved by clear and convincing evidence that termination of Mother's parental rights would best serve the developmental, physical and emotional needs and welfare of the child pursuant to 23 Pa.C.S.A. § 2511(b) [.]" Int. of K.T. , 1245/1279 WDA 2021, 2022 WL 1793083, at *2 (Pa. Super. June 2, 2022) (unpublished memorandum), quoting CYF's Superior Court Brief (original removed unnecessary capitalization).
Judges Colins and McCaffery comprised the majority, while Judge Murray filed a dissent.
According to the majority, CYF argued the trial court's conclusions "are manifestly unreasonable and unsupported by the record." Id. at *5. Although CYF acknowledged the record supports the court's finding of an emotional bond between Mother and Child, it claimed the court erroneously "neglected to examine Child's bond with her [Foster Mother] or consider Child's need for permanency as part of its needs and welfare analysis." Id. Child argued the trial court took Dr. Rosenblum's reports and testimony out of context to support its holding termination of Mother's parental rights would not serve Child's needs and welfare. See id.
The panel majority considered the matter a "close call" and noted "in a fact-intensive case involving ... termination of parental rights, the appellate court should review for an abuse of discretion and for whether evidence supports the trial court's conclusions; the appellate court should not search the record for contrary conclusions or substitute its judgment for that of the trial court." Id. at *2, quoting Int. of S.K.L.R. , ––– Pa. ––––, 256 A.3d 1108, 1124 (2021). The majority further acknowledged it must "accept the findings of fact and credibility determinations of the trial court if they are supported by the record. ... A decision may be reversed for an abuse of discretion only upon a determination 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." Id. , quoting T.S.M ., 71 A.3d at 267 (citations and quotation marks omitted in original).
Turning to Section 2511(b), the panel majority explained the parental bond issue is "not merely whether a bond exists, but whether termination would destroy this existing, necessary and beneficial relationship." Id. at *3, citing In re C.M.K. , ––– Pa.Super. ––––, 203 A.3d 258, 264 (2019). It acknowledged the "parent's emotional bond with her child is ... only one of many factors to be considered by the court when determining what is in the best interest of the child." Id. ,quoting In re N.A.M ., ––– Pa.Super. ––––, 33 A.3d 95, 103 (2011).
The Superior Court first used the phrase "necessary and beneficial" in In re P.A.B. , 391 Pa.Super. 79, 570 A.2d 522, 525 (1990), where the court reversed a decision terminating parental rights. The trial court in that case had focused exclusively on the parents’ inability to care for their children without assistance due to mental impairments. Interpreting "needs and welfare of the child" under subsection (a)(5), the P.A.B. court rejected this exclusive focus and directed courts to find what would best serve the children's needs and welfare. The stated goal for trial courts was to "examine the status of the natural parental bond to consider whether terminating the natural parents’ rights would destroy something in existence that is necessary and beneficial ." Id. (emphasis added). We subsequently endorsed this reasoning when considering the parental bond in the context of a Section 2511(b) analysis. See E.M. , 620 A.2d at 484-85 ; see also infra Section II.A.ii. Since then, our lower tribunals have evaluated whether the parental bond is necessary and beneficial to the child in such cases. See, e.g. , In re Adoption of J.N.M. , ––– Pa.Super. ––––, 177 A.3d 937, 944 (2018) ; see also infra note 23 and accompanying text.
Pennsylvania courts most often refer to the "best interests" of the child in the context of custody proceedings, where parents are adverse parties and have equal rights to the child. See Int. of Coast , 385 Pa.Super. 450, 561 A.2d 762, 767 (1989) (en banc), appeal denied , 525 Pa. 593, 575 A.2d 560 (1990) ("A best interest of the child analysis, employed traditionally in custody proceedings between two parents, is a balancing of the relative virtues of the two homes in question."); see also 23 Pa.C.S. § 5328(a) ("In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors[.]"). In Pennsylvania, this custody-specific balancing standard is not ordinarily applicable in the termination context when conducting a Section 2511(b) analysis. See, e.g. , In re Adoption of Steven S. , 417 Pa.Super. 247, 612 A.2d 465, 472 (1992), appeal denied , 533 Pa. 661, 625 A.2d 1194 (1993) ("In a termination case, the trial court must not apply a best interests analysis in the sense of balancing the foster home and the natural parents’ home."). But, courts and litigants have also used the phrase in its colloquial sense to argue for or against termination — rather than to import the custody term of art. See, e.g ., In re N.A.M. , ––– Pa.Super. ––––, 33 A.3d 95, 100 (2011), ("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."), quoting In re L.M. , ––– Pa.Super. ––––, 923 A.2d 505, 511 (2007) (emphasis added).
The Adoption and Safe Families Act (ASFA) also employs this phrase. See, e.g. , 42 U.S.C. § 675(5)(E)(ii) (providing the following exception to the permanency timeline: "a compelling reason" that filing for termination "would not be in the best interests of the child"); see also infra note 20 (explaining ASFA's permanency timeline and its purpose).
Following this framework, the majority reviewed the trial court's conclusions, recognizing Dr. Rosenblum testified about the parental bond, as well as Foster Mother's ability to meet Child's emotional and developmental needs, which the trial court did not address in its opinion. See id. at *3-5. The majority acknowledged the "abundant evidence that Child's bond with [Foster Mother] is a strong one, and the significant trauma that would be caused if Child was removed from the foster home." Id. at *5. The panel majority "allow[ed] that the record supports a finding that Child's needs and welfare may best be served by a life in foster mother's home[.]" Id.
Notwithstanding these observations, the majority affirmed, opining "[w]hile our Court has held that the orphans’ court can equally emphasize the relationship between a child and a foster parent, we have not required the court to do so." Id. , citing N.A.M. , 33 A.3d at 103 ("[T]he trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent."). In the majority's view, the record supported the trial court's "evaluation of the bond that clearly exists between Mother and Child, and its determination that this bond was worth preserving[,]" and the court was thus within its discretion to deny termination. Id.
Judge Murray dissented, finding the trial court erred in its Section 2511(b) needs and welfare analysis. She would have reversed because the trial court "focused exclusively on the bond between Mother and Child" and thus "ignored the legal mandate to consider ‘the benefit of permanency.’ " Id. at *6, citing T.S.M. , 71 A.3d at 253 ("Courts must determine whether the trauma caused by breaking [that] bond is outweighed by the benefit of moving the child toward a permanent home."). Judge Murray noted a "parent's emotional bond with his or her child is a major aspect" of a Section 2511(b) analysis, but the "mere existence of an emotional bond does not preclude the termination of parental rights. Rather, the orphans’ court must examine the status of the bond to determine whether its termination would destroy an existing, necessary and beneficial relationship[.]" Id. ,quoting N.A.M. , 33 A.3d at 103 (emphasis omitted, alteration in original). Finally, Judge Murray observed a finding of a beneficial bond should not be based merely on the child's affection or feelings for the parent, but rather in terms of the child's development and mental and emotional health. See id. at *7, quoting In re K.K.R.-S. , ––– Pa.Super. ––––, 958 A.2d 529, 535 (2008) ("If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent[.] Nor are we of the opinion that the biological connection between [the parent] and the child[ ] is sufficient in and of itself, or when considered in connection with a child's feeling toward a parent, to establish a de facto beneficial bond exists. The psychological aspect of parenthood is more important in terms of the development of the child and [ ] mental and emotional health than the coincidence of biological or natural parenthood.") (emphasis omitted, alterations in original).
II. The Present Appeal
CYF and Child filed a petition for allowance of appeal, and we granted review to consider the following issues as phrased by appellants:
1. Whether this Court should grant review to ensure that trial courts across the Commonwealth are uniformly applying the correct standard for evaluating the bond between a child and parent when conducting a needs and welfare analysis under Section 2511(b) of the Adoption Act in an involuntary termination of parental rights case by:
a. Clarifying that the trial court must evaluate whether the bond is necessary and beneficial to the child and not just whether any parent-child bond exists; and
b. Clarifying that the trial court must evaluate whether severing that bond would cause the child to experience extreme emotional consequences and not just any adverse effect?
2. Whether a divided three judge panel of the Superior Court, by ignoring this Court's decisions in In re T.S.M. , 620 Pa. 602, 71 A.3d 251 (2013) and In re E.M. , 533 Pa. 115, 620 A.2d 481 (1993), erred in affirming the trial court's denial of a petition for termination of parental rights when the almost 5-year-old child had been in care in a secure and stable kinship pre-adoptive foster home for almost four years, and it was undisputed that the mother was unlikely to ever be able to parent the child, that the mother was still court-ordered to have supervised visits due to concerns about the mother's behavior, and that the court-appointed psychologist opined that the child needed permanence through adoption by her kinship foster parent with whom the child enjoyed a strong and secure bond?
Int. of K.T. , ––– Pa. ––––, 283 A.3d 1249 (2022) (per curiam ). We proceed to consider the parties’ arguments on each question. A. Standards for Section 2511(b) Analysis
i. Arguments
CYF contends this Court has established factors specific to the parent-child bond assessment that a trial court must consider when conducting a needs and welfare analysis under Section 2511(b). CYF argues once a trial court determines the bond exists, it must then assess whether severing it by termination "would destroy something in existence that is necessary and beneficial" for the child and cause the child to "suffer extreme emotional consequences." CYF's Brief at 26, quoting P.A.B ., 570 A.2d at 525 and E.M. , 620 A.2d at 485 ; citing, e.g. , T.S.M. , 71 A.3d at 267. CYF proposes a step-by-step bond analysis incorporating this standard, emphasizing the mere existence of a bond or attachment of child to a parent does not preclude the termination of parental rights. See id. , citing T.S.M. , 71 A.3d at 267 ("[T]he mere existence of a bond or attachment of a child to a parent will not necessarily result in the denial of a termination petition."). CYF states the test as follows:
(1) determine if there is a bond,
(2) determine what is the nature, status or health of that bond, P.A.B. , 570 A.2d at 526, by,
(2)(a) assessing if the existing parent-child bond is "something in existence that is necessary and beneficial" to the child. Id. ("family ties that no longer help but rather hinder the children"), and,
(3) determine the effect on the child of severing the parent-child bond by,
(3)(a) assessing whether severance would cause not just some sense of loss or sadness but would cause the child to experience "extreme emotional consequences." E.M. , 620 A.2d at 485 ("It is clearly conceivable that a beneficial bonding could exist between a parent and child, such that, if the bond were broken, the child could suffer extreme emotional consequences.").
CYF's Brief at 32 (citations cleaned up). A parent's own feelings of love and affection for her child, CYF contends, does not preclude termination. See id. at 26, citing In re L.M. , ––– Pa.Super. ––––, 923 A.2d 505, 512 (2007).
CYF urges Section 2511(b) requires a "totality of the circumstances" or "totality of the evidence" review, and the "best interests" custody framework would support this analysis, while conceding the custody standard has not been required in termination proceedings. Nevertheless, CYF insists a child's best interests should be considered in the Section 2511(b) analysis, such that the focus is on the child rather than the parent's rights or interests. Moreover, CYF proposes, "[a]fter the State has established parental unfitness ... the court may assume at the dispositional stage [section (b)] that the interests of the child and the natural parents do diverge ... and thus has no obligation to consider the natural parents’ rights in selecting dispositional alternatives." Id. at 28, quoting Santosky v. Kramer , 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (emphasis omitted). Ultimately, consideration of what is in the child's best interests, CYF argues, ensures a more holistic Section 2511(b) assessment than conducted by the trial court here, and should include review of all the factors that impact the child's developmental, physical and emotional needs and welfare. CYF argues the trial court here simply held "so long as the child has ‘some bond’ with the parent and ... may feel a sense of loss or some sadness," termination is blocked, "even if the child has been in foster care for four years and there is no likelihood that the parent will ever be able to safely parent the child." Id. at 33. CYF contends this lower standard, reliant on a child's emotion towards a parent, reduces the terms of Section 2511(b) to "an exercise in semantics[,]" because "[e]ven the most abused of children will often harbor some positive emotion towards the abusive parent." Id. at 33-34, quoting K.K.R.-S. , 958 A.2d at 535.
CYF asserts the Superior Court correctly stated the trial court was required to discern whether the parent-child bond was "necessary and beneficial" to Child, but nevertheless failed to properly apply this standard to its review of the decision denying termination or recognize the trial court made no finding that the bond was necessary and beneficial to Child. For example, CYF contends the trial court did not assess the nature, quality or health of the parental bond considering Dr. Rosenblum's undisputed testimony Child's relationship with Mother is ancillary and not her primary attachment. CYF avers the trial court ignored Child's behavioral regression when visiting with Mother, Mother's "concerning tendency" to focus on Child's appearance, and Mother's reliance on creating emotional dependency rather than expanding Child's developmental competencies or self-esteem. See id. at 39-41.
CYF further avers the trial court ignored Section 2511(b) factors beyond the parental bond, noting the breadth of testimony that Child's bond with Foster Mother is primary to her well-being. See id. at 47, citing, e.g. , K.M ., 53 A.3d at 791-92 ("Whether a child's primary emotional attachment is with a foster parent rather than a birth parent is a significant factor in evaluating the child's developmental and emotional needs and welfare."). CYF argues the trial court ostensibly gave weight and credibility to certain evidence establishing the Section 2511(a) factors, but then abused its discretion by ignoring this same evidence in its Section 2511(b) analysis. See id. at 45-46, citing Int. of L.W. , ––– Pa.Super. ––––, 267 A.3d 517 (2021).
Child agrees this Court has established factors specific to the parent-child bond assessment, and that courts must determine the nature of the bond and the effect on the child of severing the bond. See Child's Brief at 23, citing E.M. , 620 A.2d at 485and T.S.M. , 71 A.3d at 267. Like CYF, Child contends the existence of a bond alone does not preclude termination, see id. , citing T.S.M. , 71 A.3d at 270-71, but rather "the court must determine whether the bond exists to such an extent that severing the bond would ‘destroy something in existence that is necessary and beneficial’ for the child and cause the child to ‘suffer extreme emotional consequences.’ " Id. , quoting E.M. , 620 A.2d at 484-85 ; see also id. at 24 n.9 (collecting Superior Court cases employing the "extreme emotional consequences" standard).
Child also contrasts the "extreme emotional consequences" standard with the lesser one applied by the trial court: whether termination would have an "adverse effect" on Child. See id. at 24, citing K.T. , No. DP-091-2017, slip op. at 18. Child submits the court apparently "eliminate[d] the need for a full needs and welfare analysis" where a bond exists. Id. at 24 n.9; see also id. at 32. Child specifically argues an "adverse effect" is a "much lower" standard than requiring "extreme emotional consequences" to preclude termination. Id. at 24 n.9. Child thus claims the Superior Court erred by overlooking the trial court's application of an incorrect standard.
Child also submits the trial court ignored Section 2511(b) factors beyond the parental bond. Child insists that "[i]f a child's primary attachment is to her foster parent, this should be a significant factor in the court's evaluation of the child's developmental and emotional needs and welfare." Id. at 23, citing K.M. , 53 A.3d at 792. Child argues the trial court ignored Child's bond with Foster Mother and the fact she is her primary attachment, even though the record contains substantial evidence that Child has a secure relationship with Foster Mother that provides emotional stability and well-being. See id. at 26. Furthermore, Child contends the court "failed to consider Child's need for permanency" by ignoring Dr. Rosenblum's opinion that "the only permanency outcome" is "adoption." Id. at 26-27, citing Dr. Rosenblum's Forensic Reports, 1/14/20 at 8 and 12/18/20 at 12-13.
The arguments of both appellants focus on the priority granted under both Pennsylvania and federal law to permanency for the Child. Relying on this Court's decision In re Adoption of S.E.G. , 587 Pa. 568, 901 A.2d 1017 (2006), CYF observes the Adoption and Safe Families Act of 1997 (ASFA) "was enacted to address a child welfare system that focused almost exclusively on reunifying families[,]" and sought to move children towards the benefit of adoption more quickly. CYF's Brief at 32-33. Child explains ASFA, "implemented in this Commonwealth by 1998 amendments to the Juvenile Act, 42 Pa.C.S. §§ 6301 - 6375, mandates that participating states pass laws requiring child services agencies to file petitions for termination of parental rights when the child has been in care for fifteen of the last twenty-two months, unless certain exceptions apply." Child's Brief at 31 n.10. Appellants emphasize this Court's recognition in T.S.M. that "[c]hildren are young for a scant number of years, and we have an obligation to see to their healthy development quickly." Child's Brief at 21; CYF's Brief at 50, quoting T.S.M. , 71 A.3d at 269. Appellants rely on the T.S.M. Court's statement that, "[f]ollowing ASFA, Pennsylvania adopted ... the goal of finding permanency for children in less than two years, absent compelling reasons." Child's Brief at 22; CYF's Brief at 50, quoting T.S.M. , 71 A.3d at 269. They argue the trial court, in denying termination, failed Child as she has been in foster care basically her entire life.
Amici supporting appellants agree the trial court's analysis based on an "adverse effect" of termination is a departure from a proper needs and welfare analysis. See Amici Brief at 14, 21. They assert the lesser standard applied below is unpredictable and will place a barrier to permanency for dependent children. See id. at 14, 23. Amici point out the physical, emotional, and behavioral symptoms children endure when cycling through families in the foster care system. See id. at 16-17, 19-21 (reviewing research on effects of adverse childhood experiences). Importantly, amici point out that without settling in a permanent home sooner rather than later, dependent children are at risk of aging out of the foster care system, without ever accessing the familial and community resources a permanent home provides. See id. at 22-23. According to amici , a permanent home provides children with a sense of security and belonging, and combats the negative impact of earlier adverse childhood experiences. See id. at 17-18, 20.
A group of thirty-five amici , including child welfare agencies, Montgomery Child Advocacy Project, the Defender Association of Philadelphia, Support Center for Child Advocates, Child Advocacy Unit of Montgomery County Public Defender's Office, children's and parents’ counsel, and psychologists, filed a joint brief in support of appellants.
Mother responds that "extreme emotional consequences" is a brand new standard for assessing the effect of termination pursuant to Section 2511(b), never endorsed by this Court beyond dicta from E.M. and T.S.M. Mother argues the phrase was used by the E.M. Court to demonstrate the potential result if the court ignores the parent-child bond when considering a petition for termination. See Mother's Brief at 18, quoting E.M. , 620 A.2d at 485 ("[i]t is clearly conceivable that a beneficial bonding could exist between a parent and child, such that, if the bond were broken, the child could suffer extreme emotional consequences."). And, according to Mother, the T.S.M. Court merely referred to "extreme emotional consequences" when describing a party's argument. Id. at 19, quoting T.S.M. , 71 A.3d at 266 ("There, the Court stated only that ‘Mother observes that this Court has stated that the breaking of a child's bond to a parent can result in the child suffering "extreme emotional consequences." ’ "). Mother insists, in the alternative, if the Court finds T.S.M. supports this "new standard," the present case is factually distinguishable from T.S.M. , which involved an unhealthy, abusive parent-child bond unlike Mother and Child's, such that it should not apply here. Id. at 19-20.
Mother also claims appellants’ proposed standard shifts the burden to parents opposing termination to prove termination would cause their child to suffer extreme emotional consequences, departing from longstanding precedent requiring the party seeking termination to establish termination is warranted. Id. at 21. With respect to appellants’ argument the parent-child bond must be "necessary and beneficial," Mother mainly contends this language arises from a Superior Court decision, P.A.B. , 570 A.2d at 527, and the E.M. Court actually articulated a different standard drawn directly from the language of Section 2511(b) : whether "severing the natural parent-child relationship would be contrary to the needs and welfare of the children." Mother's Brief at 20 n.6 (emphasis in original), quoting E.M. , 620 A.2d at 485. Mother acknowledges the Superior Court has relied on the "extreme emotional consequences" verbiage, but contends such lower court holdings are contrary to E.M. ’s holding and the purpose of Section 2511(b). Id. at 19 n.5, quoting e.g. , J.N.M. , 177 A.3d at 944 ("When examining the effect upon a child of severing a bond, courts must examine whether termination of parental rights will destroy a necessary and beneficial relationship, thereby causing a child to suffer extreme emotional consequences.") (quotation marks omitted). Mother asserts the court must consider "the significant gravity of a termination of parental rights, which has far-reaching and intentionally irreversible consequences for the parents and the child." Id. at 15, quoting C.M. , 255 A.3d at 358.
Mother thus claims the Superior Court did not err in affirming because the trial court properly considered all relevant factors under Section 2511(b) and the record supports the court's decision not to terminate. Mother points to the trial court's opinion where "over ten" out of nineteen total pages are dedicated to reviewing the evidence presented at the hearing. Id. at 30. Moreover, Mother contends there is no requirement that the trial court "explicitly weigh each and every potentially relevant factor and piece of evidence when examining the child's needs and welfare in a termination proceeding." Id. , citing Commonwealth v. Moto , 611 Pa. 95, 23 A.3d 989, 996 (2011) ("[I]n the absence of evidence to the contrary, we presume that the trial court carefully considered the entire record, and we do not require the court to prove that it did so by citing to each fact and circumstance of the case.") (emphasis in original).
Amici supporting Mother recognize the court must consider other factors in addition to "whether termination would destroy an existing, necessary and beneficial relationship." Amici Brief at 8, quoting In re I.J. , ––– Pa.Super. ––––, 972 A.2d 5, 12 (2009) ; see also id. at 6-7. However, they contend the court is not required to consider whether severance would cause extreme emotional consequences or give other Section 2511(b) factors the same weight as the parent-child bond, the severance of which, in their view, should receive "utmost attention." See id. at 7, 10, 18, citing In re C.M.S. , ––– Pa.Super. ––––, 884 A.2d 1284, 1287 (2005) ("The 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."). The agency seeking termination, amici contend, must prove "family ties either do not exist or no longer help but rather hinder the children." Id. at 20, quoting P.A.B. , 570 A.2d at 526. According to amici , this is because parents have a "prima facie right to custody" of their children, id. at 19, quoting Ellerbe v. Hooks , 490 Pa. 363, 416 A.2d 512, 514 (1980), and family integrity is a constitutional right that cannot "be diluted because of a parent's income, disability, or lack of access to adequate medical care nor the fact that a potentially more resourced third party could offer a suitable alternative home." Id. at 5; see also id. at 20, citing Troxel v. Granville , 530 U.S. 57, 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; Santosky , 455 U.S. at 759, 102 S.Ct. 1388 ("The factfinding does not purport—and is not intended—to balance the child's interest in a normal family home against the parents’ interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home.").
A group of twelve amici , including Juvenile Law Center, Community Legal Services of Philadelphia, Children's Rights, Give Us Back Our Children/Philadelphia, Movement for Family Power, NYU School of Law Family Defense Clinic, the Sayra and Neil Meyerhoff Center for Families, Children and the Courts, Women's Law Project, and law professors, filed a joint brief in support of Mother.
Amici emphasize the benefits in dependent children's development and long-term well-being if they maintain contact with biological parents. See id. at 12-16 (reviewing research, including interviews with youth formerly in foster care and a 2021 report by the federal Children's Bureau, that supports "relational permanency," i.e. , maintaining children's connections with families of origin). Amici assert separation of biological families harms communities and "intensif[es] profound racial disparities in our child welfare system rooted in the devaluing [of] Black parent and child bonds." Id. at 6; see also id. at 17, quoting Am. Bar Ass'n, Resolution 606, 11-12 (2022); id. at 21-29 (reviewing history of vagrancy, apprenticeship, and child welfare laws).
ii. Discussion
We begin by confirming our standard of review in this appeal from the Superior Court's decision affirming the trial court's decision not to terminate Mother's parental rights. We review the court's decision for abuse of discretion or error of law, and may reverse when that discretion has been abused or when the law has been misapplied. See S.K.L.R. , 256 A.3d at 1129. To the extent an issue raises purely a question of law or statutory interpretation, our standard of review is de novo and our scope of review is plenary. See In re J.W.B. , 659 Pa. 561, 232 A.3d 689, 695 (2020), citing Roverano v. John Crane, Inc. , 657 Pa. 484, 226 A.3d 526, 534–36 (2020). This first issue before us involves the interpretation and application of Section 2511(b) and we consider the parties’ arguments through the latter, broad review standards. Specifically, appellants ask whether the trial court may deny termination under subsection (b) after considering only the child's bond with her parent and finding an "adverse effect" or "detrimental impact" of severing that bond. First, we reiterate that the party seeking termination must prove "by clear and convincing evidence the existence of the statutory grounds for doing so," including that termination would best serve the child's needs and welfare pursuant Section 2511(b), in addition to termination grounds under subsection (a). C.M. , 255 A.3d at 358-59 (internal quotations omitted). There is no dispute here that subsection (a) grounds were established.
We next emphasize the pivotal language from Section 2511(b), which mandates that the court, having determined subsection (a) has been satisfied, "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." In interpreting a statute, we first consider the statute's plain language and may ascribe to its words and phrases the meaning they have acquired through their common and approved usage and in their context of the overall statutory scheme. See 1 Pa.C.S. § 1921 ; see also Commonwealth v. Gamby , ––– Pa. ––––, 283 A.3d 298, 306 (2022) ; Whitmoyer v. Workers' Comp. Appeal Bd. , 646 Pa. 659, 186 A.3d 947, 954 (2018). If we determine the statutory text is ambiguous, we may look to considerations beyond the text. Whitmoyer , 186 A.3d at 954. The plain language of Section 2511(b) clearly mandates that, in assessing the petition to terminate parental rights, the "primary consideration" must be the child's "developmental, physical and emotional needs and welfare." This of course requires the court to focus on the child and consider all three categories of needs and welfare. Although subsection (b) itself does not specify a method for determining whether granting or denying termination best serves the child's needs and welfare, our case law has provided some elucidation of this requirement.
Notably, courts should consider the matter from the child's perspective, placing her developmental, physical, and emotional needs and welfare above concerns for the parent. See C.M. , 255 A.3d at 358 ("A parent's right to make decisions concerning the care, custody, and control of his or her children is among the oldest of fundamental rights. [However, t]he time-tested law of the Commonwealth requires that we balance this intrinsic parental interest within the context of a child's essential needs for a parent's care, protection, and support.") (citations omitted); In re H.S.W.C.-B, 575 Pa. 473, 836 A.2d 908, 911 (2003) (In termination proceedings and appeals, "the best interest of the children is always paramount[.]"). Cf . In re R.I.S. , 614 Pa. 275, 36 A.3d 567, 579 (2011) (plurality opinion) (Baer, J., concurring) ("It is incumbent upon the judicial system to be child-focused. Regardless of the heartbreak to a parent, children are entitled to every opportunity for a successful life, and a permanent, loving parental relationship greatly fosters that opportunity.").
Contending the statute does not support our analysis of subsection (b), Dissenting Op. at 1117, 1122-23, our learned colleague in dissent reviews dictionary definitions of the terms "developmental," "physical," "emotional," "needs," and "welfare" to reach the same initial conclusions on the statute's plain meaning as we do. Id. at 1122 (reasoning subsection (b) is "child-focused" and "require[s] a comprehensive and holistic examination of the effect of terminating parental rights upon a child across multiple domains of that child's life"). At the same time, the dissent acknowledges that, beyond the statute's directive to focus on the child's needs and welfare, it does not prescribe how exactly to evaluate them all in reaching a termination decision. Id. ("The General Assembly left open the question of how to evaluate a child's needs and welfare.") (emphasis in original).
Accordingly, the determination of the child's particular developmental, physical, and emotional needs and welfare must be made on a case-by-case basis. See In re Adoption of L.A.K. , ––– Pa. ––––, 265 A.3d 580, 593 (2021). We have observed "the law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved." T.S.M. , 71 A.3d at 268–69. Thus, the court must determine each child's specific needs. See, e.g., In re Adoption of S.P ., 616 Pa. 309, 47 A.3d 817, 831 (2012) (affirming trial court's conclusion termination "best serve[d]" child's needs and welfare where father would likely not be able to provide for her, especially considering her special needs of developmental delays, child did not have a relationship with father, and child had strong bond with half-sister placed in same foster family).
Moreover, the child's "emotional needs" and "welfare" include "intangibles such as love, comfort, security, and stability." T.S.M. , 71 A.3d at 267 (citation and brackets omitted). As further guidance, we have identified factors, i.e. , specific needs and aspects of the child's welfare, that trial courts must always consider. The court must consider "whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." Id. at 268 ; see e.g. , In re D.C.D. , 629 Pa. 325, 105 A.3d 662, 677 (2014) (trial court properly considered child's "strong bond with her foster family with whom she has lived nearly all her life and who has indicated a desire to adopt her" pursuant to Section 2511(b) ). And, if the child has any bond with the biological parent, the court must conduct an analysis of that bond, which "is not always an easy task." T.S.M. , 71 A.3d at 267. We next review our two most consequential decisions regarding this latter requirement, which is at the heart of appellants’ first issue.
In E.M. , we first recognized that consideration of the child's bond with the parent should be part of the subsection (b) analysis. We considered the lower court's decision to terminate parental rights despite the psychologist-expert's testimony that "a better assessment of the [children's] relevant emotional factors could have been made" if she had observed them interacting with the foster father and biological mother, instead of only with their foster mother. 620 A.2d at 484. The Superior Court affirmed termination, holding "once a parent is adjudged incompetent under Section 2511(a)" and "adoption is imminent, ... there is no need to ascertain whether a beneficial bonding exists as between the natural parent and the children, nor whether additional factors counsel that continuing the relationship might otherwise serve the needs and welfare of the child." Id. at 485 (emphasis omitted). We reversed, noting the record — which included scant evidence about the bond between the children and their biological mother — could not support termination, and reasoned "[w]here there has not been adequate consideration of the emotional needs of the children, a termination of parental rights cannot be sustained." Id. at 484. We also observed that "[w]hile ... some bond between [mother] and the children would not per se block a termination of [parental] rights, it is at least a factor" to explore. Id. at 485. We rejected the Superior Court's reasoning to the contrary, holding that even with Section 2511(a) satisfied and the existence of an adoptive resource, "a beneficial bonding could exist between a parent and child, such that, if the bond were broken, the child could suffer extreme emotional consequences ." Id. (emphasis added). We further reasoned "[s]uch an intense bond may exist" that termination would not best serve the child's needs and welfare. Id. (emphasis added). We thus remanded "for a reevaluation of the needs and welfare of the children, taking into account whatever bond[ ] may currently exist between the children and [mother], as well as other factors having bearing upon whether termination is proper." Id.
When we decided E.M. , Section 2511(b) read "[t]he court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child." 620 A.2d at 483. Section 2511(b) was amended in 1995 to add the "developmental, physical and emotional" qualifiers found in the current statute. Matter of Adoption of Charles E.D.M., II , 550 Pa. 595, 708 A.2d 88, 92 n.2 (1998). We recognize the importance of these qualifiers in guiding our interpretation of subsection (b), see Majority Op. at 1104-06, and simply note the statutory amendment did not alter the "primary consideration" to be given the child's needs and welfare, and E.M. remains apt precedent for interpreting Section 2511(b).
In T.S.M. , we further explained the utility of the parental bond in the overall Section 2511(b) analysis by emphasizing the importance of permanency and stability, unanimously holding "[c]ourts must determine whether the trauma caused by breaking [the parent-child] bond is outweighed by the benefit of moving the child toward a permanent home." 71 A.3d at 253. The children in T.S.M. spent nearly a decade in foster homes without any adoptive resource. Id . Evidence also showed their mother's abuse and neglect caused them mental and behavioral impairments. Id. at 254-255, 261. The court nevertheless denied termination because the children had a bond with their mother and "CYF failed to prove that irreparable harm would not befall the children if the relationship with Mother were severed." Id. at 260. We found the court's denial "manifestly unreasonable, and thus an abuse of discretion" by relying only on this bond and ignoring the damage their unhealthy attachment with mother caused them, including its negative impact on their ability to "form attachments to foster families who could have provided [them] the necessary love, care and stability[.]" Id. at 270-71. We explained:
The utmost attention should be paid to discerning the effect on the child of permanently severing the parental bond. ... [A]ttention must be paid to the pain that inevitably results from breaking a child's bond to a biological parent, even if that bond is unhealthy, and we must weigh that injury against the damage that bond may cause if left intact. Similarly, while termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home, termination may be necessary for the child's needs and welfare in cases where the child's parental bond is impeding the search and placement with a permanent adoptive home.
Id. at 267, 269 (quotation marks and citation omitted). We ultimately directed the trial court on remand to terminate mother's parental rights. Id. at 271.
In T.S.M. , the record established the mother's abuse and neglect likely caused the children's manifold psychological and behavioral conditions that complicated their ability to bond with a foster family. See id. at 270. The mother also "appear[ed] to [ ] interfer[e] [more overtly] with the children's bonding to their foster families ... For example, [the son] reported that [the mother] told him that he would not be adopted and that his foster brothers were not his brothers." Id. (quotation marks omitted). Considering these facts and that the expert witness-psychologist recommended adoption for most of the children, we reasoned "[w]hether or not the children have current bonds to their foster families, there appears to be a strong likelihood of an eventual adoption." Id. (quotation marks omitted).
Our unanimous decision in T.S.M . also highlighted the importance of permanency and the need to find stability for dependent children in a timely fashion. As then-Justice Baer stated so eloquently, courts considering a termination petition "must keep the ticking clock of childhood ever in mind. Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly ." Id. at 269 (emphasis added). The T.S.M. Court acknowledged Pennsylvania's "dual focus [on] reunification and adoption, with the goal of finding permanency for children in less than two years, absent compelling reasons," in accordance with federal law. Id. ; see 42 U.S.C. § 675(5)(E)(ii) (ASFA requires agencies in participating states to move for termination when children have been in foster care for fifteen of the most recent twenty-two months, in the absence of compelling reasons termination would not be in child's best interests); 42 Pa.C.S. § 6351(f)(9) (courts must determine at each permanency hearing, inter alia , "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"). T.S.M. further advised courts to move away from "concurrent planning" for reunification, and towards an alternative permanent home, "when it becomes clear [ ] parents will be unable to provide [for] their children's basic needs in the near future[,]" e.g. , after a permanency goal change to adoption. See id. at 271-70. Otherwise, courts might "create confusion for the children and potentially increase the difficulty for them to bond with preadoptive parents, thus perpetuating the problem of foster care drift." Id. at 270. Accordingly, notwithstanding T.S.M. ’s language directing "utmost attention" to the parental bond, a fuller review of relevant case law indicates that bond, plus permanency, stability and all "intangible" factors may contribute equally to the determination of a child's specific developmental, physical, and emotional needs and welfare, and thus are all of "primary" importance in the Section 2511(b) analysis. Judge Bowes, writing for the panel in N.A.M., observed that, although the parental bond is a "major aspect" of the Section 2511(b) analysis, "it is nonetheless only one of many factors to be considered by the court," in addition to the intangibles "such as love, comfort, security, and stability." 33 A.3d at 103. Moreover, the court must consider whether, in the context of all these factors, the parental bond is "necessary and beneficial" to the child. See id. (courts "must examine the status of the bond to determine whether its termination would destroy existing, necessary and beneficial relationship") (quotation marks omitted). See also Int. of M.E. , ––– Pa.Super. ––––, 283 A.3d 820, 836–37 (2022) (To the extent there is a bond, the trial court must examine whether termination of parental rights will destroy a "necessary and beneficial relationship[.]"); J.N.M. , 177 A.3d at 944 ("When examining the effect upon a child of severing a bond, courts must examine whether termination of parental rights will destroy a ‘necessary and beneficial relationship[.]’ "); P.A.B. , 570 A.2d at 525–26 (courts must consider the parental bond and determine "whether terminating the natural parents' rights would destroy something in existence that is necessary and beneficial"). It is only a necessary and beneficial bond, after all, that should be maintained when Section 2511(b) mandates the child's needs and welfare are of "primary" importance. As the statute directs, courts must evaluate whether maintaining the bond serves the child's developmental, physical, and emotional needs and welfare. This evaluation involves considering the effect of severing a child's bond with her parent. T.S.M. , 71 A.3d at 267, 269. Severance of a "necessary and beneficial" bond would predictably cause more than the "adverse" impact that, unfortunately, may occur whenever a bond is present. By contrast, severance of a necessary and beneficial relationship is the kind of loss that would predictably cause "extreme emotional consequences" or significant, irreparable harm. See E.M. , 620 A.2d at 484 ("a beneficial bonding could exist between a parent and child, such that, if the bond were broken, the child could suffer extreme emotional consequences"); see also, e.g. , M.E. , 283 A.3d at 837 ("To the extent there is a bond, the trial court must examine whether termination of parental rights will destroy a ‘necessary and beneficial relationship,’ thereby causing a child to suffer ‘extreme emotional consequences.’ "); J.N.M. , 177 A.3d at 944 ("When examining the effect upon a child of severing a bond, courts must examine whether termination of parental rights will destroy a necessary and beneficial relationship, thereby causing a child to suffer extreme emotional consequences[.]") (quotation marks and citation omitted). Moreover, by evaluating the impact of severance to determine if it will impose more than an adverse or detrimental impact, courts correctly refine their focus on the child's development and mental and emotional health rather than considering only the child's "feelings" or "affection" for the parent, which even badly abused and neglected children will retain. See T.S.M. , 71 A.3d at 267, quoting K.K.R.-S. , 958 A.2d at 535 ("[e]ven the most abused of children will often harbor some positive emotion towards the abusive parent") (alteration in original); see also K.T. , 2022 WL 1793083, at *7 (Murray, J., dissenting), quoting K.K.R.-S. , 958 A.2d at 535.
Justice Baer further explained the statutory purpose behind this imperative timeframe:
Prior to the mid–1990s, our national policy toward dependent children was to await reunification of parents and children. While undoubtedly a laudable goal, this single-minded focus on reunification led to 560,000 children in foster care as of September 1998, one-third of whom had been languishing in the foster care system for over three-years and drifting from placement to placement [(known as "foster care drift")], while their parents were unable to remedy the problems that led to the children's placement. In reaction to this dire situation, the United States Congress enacted ASFA, thereby altering the focus of dependency proceedings to include consideration of the need to move children toward adoption in a timely manner when reunification proved unworkable. One year after ASFA, in 1998, the Pennsylvania General Assembly amended our Juvenile Act in response to the federal legislation. Our statutory scheme was modified to shift the statute's focus from a singular concern with reunification of the family to the dual purposes of preserving family unity when possible, and providing an alternative permanent family for a child when reunification of the biological parent and child could not be timely achieved.
R.I.S. , 36 A.3d at 576–77 (Baer, J., concurring) (citations omitted); see also S.E.G. , 901 A.2d at 1018-19 (discussing ASFA's response to foster care drift)
"[C]oncurrent planning is a dual-track system under which child welfare agencies provide services to parents to enable their reunification with their [dependent] children, while also planning for alternative permanent placement should reunification fail." S.E.G. , 901 A.2d at 1019. ASFA mandated concurrent planning, like the 22-month permanency timeline, to prevent foster care drift. 42 U.S.C. § 671(a)(15)(F) ("In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which ... provides that ... reasonable efforts to place a child for adoption or with a legal guardian, including identifying appropriate in-State and out-of-State placements may be made concurrently with reasonable efforts of the type described in subparagraph (B) [relating to reunification]") (footnote omitted); S.E.G. , 901 A.2d at 1028, citing id. ("ASFA requires state plans to provide for concurrent planning as a measure to limit the time children spend in the foster care system[.]").
The dissent ridicules our alleged "incessant focus upon ‘permanency,’ " as if it's a dirty word or "equate[s] [ ] to adoption," Dissenting Op. at 1135-36, and "automatically supersedes all other needs and all other aspects of child welfare." Id. at 1133. This far-fetched, reductive mischaracterization of our analysis is apparently designed to support the dissent's discussion of guardianship. Id. at ––––, 1117-18, 1132-37. But rather than view permanency as the automatic end game of the termination court's review, we understand permanency as an important pillar of the larger analysis of the dependent child's welfare — in both the federal and state context. Majority Op. at 1108 n.19-20; T.S.M , 71 A.3d at 269.
The dissent objects to the phrase "necessary and beneficial" as too "abstract" and "amorphous" to provide guidance to courts assessing the parental bond, see Dissenting Op. at 1117-18, 1131, even though we derive its meaning from the plain text of subsection (b) and precedents. The dissent argues this standard is inflexible in asking courts to consider both a child's needs and welfare, as subsection (b) instructs, in evaluating the bond. Id. at 1130. Rather, the dissent prefers that trial courts shy away from severing any parental bond by advocating for prolonged dependency and more guardianship and downplaying the instability children face in the foster care system. The dissent leaves unclear at what point, if ever, under its standard, a court may properly sever the parental bond. See id. at 1118-19; see also id. at 1127 n.78 (emphasizing the children in T.S.M. "underwent thirty to forty psychological evaluations," which showed their parental bonds were "unhealthy with traumatic aspects," and "their dependency case dragged on for the better part of a decade.") (internal quotations and brackets omitted).
The dissent also baselessly claims we "focus[ ] upon subtracting relationships from children's lives," id. at 1134, and "minimize[ ] a child's relationship to a parent in most situations." Id. at 1117 (emphasis in original). The dissent imagines we "attach nearly insurmountable weight" or a "universal threshold" against the parental bond, see id. at 1123, 1129-30, and baldly asserts we favor termination in order to lighten the agency's burden. See id. at 1117-18, 1129-30, 1131-32, 1137. Relying on these mischaracterizations, the dissent further contends our use of the phrase "necessary and beneficial" runs contrary to subsection (b) and precedent. See id. 1122-23; see also id. at 1128, citing T.S.M. , 71 A.3d at 262. But in doing so, the dissent largely ignores the issue at hand. As we have stated, evaluating whether a parent-child bond is necessary and beneficial does not pre-determine "most" such bonds as unworthy of preservation; indeed, we direct courts to continue their subsection (b) analysis even after finding child is bonded with parent. They must determine whether maintaining the bond serves the child's needs and welfare and consider other subsection (b) factors. The dissent agrees with this standard, see Dissenting Op. at 1126 (recognizing "the importance of full evaluation of a child's needs and welfare" and the parental bond), but recasts it, seemingly to open the door to its inapt discussion about a permanency continuum and guardianship. See id. at 1134-37. But, the "necessary and beneficial" requirement does not promote termination or lessen the agency's (or other petitioning party's) burden, and moreover, it is in line with our precedent. See supra note 12. In E.M. , we concluded the existence of some bond does not "per se block termination," but contemplated "a beneficial bond[ ]" or "intense bond" might. 620 A.2d at 485. Likewise, in T.S.M. , the analysis did not stop at finding a "bond" but dug deeper into the children's other needs — permanency, "love, care, and stability" — before severing that "pathological" bond. 71 A.3d at 260. Both decisions make clear termination should not be denied based solely on an emotional bond and adverse effect.
The dissent seems to prefer its apparently interchangeable phrases "nature," "nature and health" or "nature and quality" in assessing the bond and insists the Court adopted such phrases in its T.S.M. decision. See id. at 1118-19, 1128-29, 1137. But the T.S.M. Court did not employ this language in its discussion though indeed it considered the harm the pathological parental bond caused in that case. 71 A.3d at 267-271. Lower courts, at times, used the term "nature" along with "status" to describe the "necessary and beneficial" bond inquiry. See. e.g., N.A.M. , 33 A.3d at 103 ("One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child. ... court[s] must examine the status of the bond to determine whether its termination would destroy an existing, necessary and beneficial relationship") (internal quotation marks omitted). This makes sense: a court determining whether the parental bond is necessary and beneficial to the child is obviously assessing the bond's "nature" and "quality" and/or "health."
The Superior Court's recent unpublished decisions often employ this standard. See, e.g. , Int. of S.L.D. , 833/4 EDA 2021, 2021 WL 4774835, at *5 (Pa. Super., Oct. 13, 2021) (unpublished memorandum) ("The key questions when conducting this analysis are whether the bond is necessary and beneficial and whether severance of the bond will cause the child extreme emotional consequences."); Int. of A.D. , 1181 WDA 2020, 2021 WL 2073342, at *4, 255 A.3d 1271 (Pa. Super., May 24, 2021) (unpublished memorandum) ("The Orphans’ Court should instead focus on the existence of the child's bond with the parent, if any, and whether the child will ‘suffer extreme emotional consequences’ from severing that bond."); Int. of E.B. , 680 EDA 2018, 2018 WL 5629870, at *6 (Pa. Super., Oct. 31, 2018) (unpublished memorandum) ("[C]ourts must examine whether termination of parental rights would destroy an existing, necessary and beneficial relationship and whether severance of a bond would cause the child to suffer extreme emotional consequences.") (citations and quotation marks omitted); In re T.D.M. , 589 WDA 2013, 2013 WL 11260412, at *7 (Pa. Super., July 22, 2013) (unpublished memorandum) ("[T]his court finds that termination of the mother's parental rights would not cause the child to suffer any extreme emotional consequences[.]").
But other Superior Court panels — such as the majority below — have held termination is precluded where severance would have "detrimental" or "adverse" effects on the child. See, e.g., In re A.S. , ––– Pa.Super. ––––, 11 A.3d 473, 483 (2010) (considering "whether any existing parent-child bond can be severed without detrimental effects on the child"); In re S.C. , ––– Pa.Super. ––––, 247 A.3d 1097, 1110 (2021) (same); In re Adoption of C.D.R. , ––– Pa.Super. ––––, 111 A.3d 1212, 1219 (2015) (same). And, in one case, the Superior Court considered whether severance of the parental bond would cause the child "undue dismay." In re D.A.T ., ––– Pa.Super. ––––, 91 A.3d 197, 208 (2014), appeal denied , 626 Pa. 685, 95 A.3d 278 (2014) (affirming court's finding termination would best serve child's needs and welfare given child's primary attachment to foster parents who met his needs, mother's inability to meet child's overall psychological and physical needs for almost two years prior to termination hearing, and nature of child's bond with mother is such that severance would not cause the child undue dismay).
The dissent untenably claims we "erase[ ] a child's ‘feelings’ and ‘affection’ " from subsection (b) by requiring courts to test for more than "an adverse or detrimental impact." See Dissenting Op. at 1132. Obviously, and as we have stated, courts may weigh the child's feelings and affection towards a parent, relative to all her developmental, physical, and emotional needs and welfare. See T.S.M. , 71 A.3d at 269 ("[A]ttention must be paid to the pain that inevitably results from breaking a child's bond to a biological parent, even if that bond is unhealthy, and we must weigh that injury against the damage that bond may cause if left intact. ... [W]e have an obligation to see to [children's] healthy development[.]"); see also In re K.K.R.-S. , ––– Pa.Super. ––––, 958 A.2d 529, 535 (2008) ("If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent.").
We are painfully aware of the heavy and irrevocable consequences of termination; we have described it as a "death penalty" in the dependency context. C.M. , 255 A.3d at 362. Although it is always a difficult and fraught process, we have nevertheless concluded that, under certain circumstances, termination of parental rights is intended "to prevent children from growing up in an indefinite state of limbo, without parents capable of caring for them, and at the same time unavailable for adoption by loving and willing foster families[.]" In re H.S.W.C.-B , 575 Pa. 473, 836 A.2d 908, 910–11 (2003) (citations and quotation marks omitted). It is for this reason courts must not only consider the child's bond with the biological parent, but also "examine the intangibles such as the love, comfort, security, and stability the child might have with the foster parent." In re K.Z.S. , ––– Pa.Super. ––––, 946 A.2d 753, 763 (2008) (emphasis added); see also N.A.M. , 33 A.3d at 103 (same); A.S. , 11 A.3d at 483 (same). It is why federal law sets a twenty-two-month permanency timeline and requires concurrent planning so that agencies can prepare to quickly place the child in an alternative, permanent home if reunification efforts fail. See supra notes 19-20; 42 U.S.C. § 671(a)(15)(F) (concurrent planning provision); id. § 675(5)(E)(ii) (permanency timeline); see also id. § 675(5)(C) (ASFA requires participating states adopt "procedural safeguards" by holding a permanency hearing and determining a permanency plan at least every twelve months the child is in foster care).
In the present case, as we have stated, the trial court concluded termination would have a "detrimental" and "adverse" impact on Child, K.T., No. DP-091-2017, at 17-18, and on appeal, the Superior Court panel majority affirmed because the record supported the lower tribunal's holding "permanently severing that bond would have a [detrimental] impact on [Child]." K.T. , 2022 WL 1793083, at *3, 281 A.3d 1040, quoting K.T., No. DP-091-2017, at 15.
Neither lower tribunal, however, explicitly considered whether severance in this case would destroy a necessary and beneficial parental bond, despite the panel majority's reiteration of relevant case law mandating such consideration while reviewing the entire record. Although the trial court relied in part on Dr. Rosenblum's testimony that "Child does have an attachment to Mother and that [Child] ‘loves her, she enjoys seeing her and spending time with her,’ " K.T., No. DP-091-2017, at 17, quoting N.T. 5/13/21 at 87, the court did not expressly evaluate whether the bond was necessary and beneficial.
There was, of course, evidence the bond might be harmful to Child, that Mother: seemed "comfortable with creating an emotional dependency" with Child rather than helping her "expand her developmental competencies [ ] to build her self-esteem[;]" involved Child in her conflict with Foster Mother; and made Child "uncomfortable" with her "concerning tendency ... to focus or fuss about [Child]’s appearance, ... that she's not getting adequate physical care" with Foster Mother. See N.T. 5/13/21 at 85-87.
It is also unclear whether the trial court considered Child's bond with Foster Mother, as required by T.S.M. , 71 A.3d at 268 — its opinion is silent on this point despite record evidence that Child calls Foster Mother "mom" and lived almost all of her life with her. Nor did the court expressly consider any part of the record that established Child's foster home is the foundation of her emotional well-being, care, and development. Further, we cannot discern whether the trial court considered that Child is in a preadoptive home , T.S.M. , 71 A.3d at 268, beyond simple acknowledgment in its procedural history that Foster Mother is an "adoptive resource." See K.T., No. DP-091-2017, at 3, 15-18. The court apparently did not evaluate whether Mother is potentially impeding Child's future permanent placement in this preadoptive home, as directed by T.S.M. , 71 A.3d at 269, despite undisputed evidence that Mother repeatedly criticized Foster Mother. Moreover, the court did not discuss the importance of permanency, let alone explicitly determine pursuant to T.S.M. whether the "detrimental impact" of severance was nevertheless outweighed by the benefit of moving Child toward a permanent home.
Child is now nearly seven years old (born June 17, 2016) and has lived with Foster Mother since June 2017.
In fact, the lower tribunals focused their Section 2511(b) analysis only on whether severing the parental bond would have an "adverse" or "detrimental" impact on Child and, finding such impact was supported by the record, concluded this one factor precluded termination of Mother's parental rights, above all other elements that should comprise a complete subsection (b) needs and welfare analysis. But a court conducting the Section 2511(b) needs and welfare analysis must consider more than proof of an adverse or detrimental impact from severance of the parental bond. We emphasize analysis of the parental bond is but one part of the overall subsection (b) analysis, which includes a determination of whether the bond is necessary and beneficial to the child, i.e. , whether maintaining the bond serves the child's developmental, physical, and emotional needs and welfare.
The Section 2511(b) inquiry must also include consideration of other important factors such as: the child's need for permanency and length of time in foster care consistent with 42 Pa.C.S. § 6351(f)(9) and federal law ASFA, 42 U.S.C. §§ 675(5)(C), (E) ; whether the child is in a preadoptive home and bonded with foster parents; and whether the foster home meets the child's developmental, physical, and emotional needs, including intangible needs of love, comfort, security, safety, and stability. These factors and others properly guide the court's analysis of the child's welfare and all her developmental, physical, and emotional needs. See T.S.M. , 71 A.3d at 268–69 ("[T]he law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved."). Trial courts have the discretion to place appropriate weight on each factor present in the record before making a decision regarding termination that best serves the child's specific needs. Finally, to meet its burden, the party seeking termination must prove by clear and convincing evidence that termination best serves the child's needs and welfare. See C.M. , 255 A.3d at 358–59. To determine whether the petitioning party has met this burden, the court must conduct a full subsection (b) analysis focused on the child. The court must not truncate its analysis and preclude severance based solely on evidence of an "adverse" or "detrimental" impact to the child. Therefore, to grant termination when a parental bond exists, there must be clear and convincing evidence that the bond is not necessary and beneficial.
The dissent questions why we discuss intangibles in the foster home. Dissenting Op. at 1129 n.92. Yet the dissent simultaneously recognizes this Court has interpreted emotional needs and welfare to include intangibles such as love, comfort, security, and stability and that courts should assess those intangibles in the foster home. Id. at 1119 ("whether a child is in a pre-adoptive home with caregivers who provide necessary love, care, and stability").
The dissent unmoors this concept from its context in our review of the subsection (b) standard and factors, using this myopic approach to argue we impose a "new" four-factor test for subsection (b) that removes trial court discretion to look at other considerations. Dissenting Op. at 1117, 1129. Indeed, to satisfy its rhetorical goals, the dissent goes so far as to fabricate a completely baseless interpretation of our holding and ignores our repeated recognition that the trial court has discretion to weigh all the evidence and make credibility determinations regarding agency witnesses. Id. at 1130. The dissent also imagines that an "incongruent result" of our holding is "a trial court may weigh only a ‘necessary and beneficial’ parental bond" but "any degree and quality of bond existing between a child and foster caregivers." Id. (emphasis omitted). Yet, by its own inapposite logic, the dissent proposes trial courts must always weigh the health of the parental bond and its interference with the child's bonding to a foster parent, but requires no similar inquiry of the foster caregiver bond. See id. at 1118-19. Nevertheless, the dissent prefers its own pre-defined list of three subsection (b) factors and eight sub-factors. Id. at 1118-19.
First, we have not invented an exhaustive list of considerations nor removed discretion from the court, but instead above emphasize factors the trial court below did not adequately consider. We recognize termination decisions involve a case-by- case, child-focused determination of child's specific developmental, physical, and emotional needs and welfare. Majority Op. at 1104-06. Courts making these determinations must consider and weigh certain evidence if it is present in the record , but the court naturally may look to additional information that is relevant to the inquiry. Even the dissent agrees there are mandatory factors beyond the parent-child bond and the impact of severance; they are all included in its own test. Dissenting Op. at 1119 ("the child's permanency and security needs, ... whether a child is in a pre-adoptive home ... with caregivers who provide necessary love, care, and stability; ... whether a child has a bond with a foster caregiver; ... the length of time children have spent in foster care") (footnotes omitted). But the dissent's test goes beyond the specific issue before us, and creates new, problematic issues.
For example, the dissent's suggested factor (3)(e) requires trial courts to always consider whether a child "feels competing loyalty to a parent and foster caregiver," id. at 1119, even though this point is beyond the issue before us and we never previously required such consideration under subsection (b). See T.S.M. , 71 A.3d at 269-70. Moreover, despite the dissent's criticism of our analysis as improperly "pre-tilt[ed]" against the parental bond, Dissenting Op. at 1117-18, notably it is the dissent's test that is "pre-tilted" against the foster parent, even in a case such as this one, where the foster parent is a pre-adoptive resource. Our purpose here is not a quest for an exhaustive list of factors beyond those addressed by the parties in the present appeal, but rather to decide the issue before us based on their arguments.
Nor does our analysis "discount[ ]" the pain of severance, as the dissent pretends. See, e.g. , Dissenting Op. at 1117-18. The dissent envisions hypothetical situations where the "bond may not be beneficial, but it may nonetheless be necessary to the child insofar as the pain of severing it would be so traumatic that it trumps all other considerations." Id. at 1130. First, we note the trial court here did not find the bond to be healthy or unhealthy. Moreover, as we have stated, see Majority Op. at 1136-37, the court must consider the effect of severance, including any emotional pain to the child. The bond analysis we advance focuses on all the child's needs and overall welfare and allows the trial court discretion to elect the termination decision that is best for the child.
The dissent contends we "alleviate agency burdens." Dissenting Op. at 1137; see also id. at 1117-18. However, in reiterating the imperative burden for termination here, we emphasize it remains unchanged and with the agency or other party petitioning for termination. C.M. , 255 A.3d at 358 (burden balances constitutional parental rights, the child's needs and welfare, and termination's irreversible effect).
Appellants argue that to preclude termination, a trial court must find, in addition to a necessary and beneficial bond, severance of the bond would cause the child to suffer extreme emotional consequences. But we conclude this proposed standard is too limiting. Instead, we view proof of "extreme emotional consequences" as one part of the court's broader analysis of a child's specific needs, where the nature of a parent-child bond might preclude termination. See E.M. , 620 A.2d at 485 ("[A] beneficial bonding could exist between a parent and child, such that, if the bond were broken, the child could suffer extreme emotional consequences."). In other words, evidence that severance would cause the child to suffer extreme emotional consequences is one way to demonstrate a necessary and beneficial bond, rather than the only way to preclude termination.
We therefore hold the Superior Court erred in the present case by affirming the order denying termination based on a legally erroneous application of Section 2511(b). We do not prescribe "magic words" for the trial court's recital, see Pa.R.A.P. 1925(a), and we recognize the case law on this issue has been opaque at times, but the court has to make clear all of the foregoing factors were considered and the correct standard applied in weighing them. The trial court here did not explain the subsection (b) considerations of foster parent bond, preadoptive home, and need for permanency – it made no reference to them at all in its discussion, despite the fact the record included relevant evidence. As we have explained, "an emotional bond" with a parent is legally insufficient to preclude termination of parental rights without determining whether such bond is necessary and beneficial to the child and weighing the other factors present in the record. Likewise, an "adverse effect" or "detrimental impact" of severance alone cannot demonstrate a necessary and beneficial bond. In this case, we cannot discern whether the court considered the other factors present in this record but we can conclude it conducted a legally erroneous parental bond analysis.
The dissent favors Mother's position that trial courts should not have to "explicitly weigh each and every potentially relevant factor and piece of evidence when examining the child's needs and welfare in a termination proceeding." Mother's Brief at 30 (emphasis omitted). See Dissenting Op. at 1138-39, quoting Commonwealth v. Jackson , 555 Pa. 37, 722 A.2d 1030 (1999) (courts need not "address, seriatim , the applicability and importance of each factor and fact in reaching its final determination," as legislature chose to impose no requirement for an express discussion of every consideration). The dissent ignores that we do not require an "express discussion of every consideration" or an explicit weighing of every piece of evidence. We simply expect termination courts to make clear the foregoing subsection (b) factors were considered and the correct standard applied in weighing them. In any event, the dissent's various statements on this point are at odds with its simultaneous recognition a "more robust analysis" by the trial judge was wanting here, and "the Superior Court erred" particularly in failing to acknowledge the trial judge must evaluate "child's relationship with a prospective long-term caregiver." Dissenting Op. at 1138 n.146, 1139-40. Our remand decision is necessary under such circumstances as Child is entitled to a decision based on this requisite consideration of all her needs and welfare.
B. Application of Section 2511(b) to the Present Record
i. Arguments
Having settled the first issue regarding the legal standard to be applied in a Section 2511(b) analysis, and having determined the lower tribunals erred in that analysis, we now address the parties’ arguments on the second record-based claim of error. In their separate briefs, CYF and Child both argue the record does not support a denial of termination when applying either the correct Section 2511(b) standard or the trial court's less stringent "adverse effect" or "detrimental impact" test. CYF avers "[t]he totality of the evidence does not ... logically lead to the trial court's conclusions" and argues this case is not a "close call." CYF's Brief at 36, 39. CYF relies, for example, on evidence establishing Mother's inability to provide healthy support, guidance, and care to Child, or to model socially acceptable interpersonal behaviors, renders her relationship with Child less than necessary and bordering on harmful. See id. at 41.
The parties repeat to some extent their positions on the first issue. We focus here on arguments we did not consider in Section II.A. supra .
Child argues Dr. Rosenblum's reports and testimony provide "overwhelming evidence that Child's bond with Mother was not necessary and beneficial," and "that severing that bond would not cause extreme emotional consequences." Child's Brief at 27 (quotation marks omitted). Child concedes the parental bond "could be of benefit to her," but contends the evidence does not establish severance would cause her to "suffer ‘extreme emotional consequences[.]’ " Id. at 31, quoting E.M. , 620 A.2d at 482. CYF and Child thus both challenge the evidentiary foundation for the trial court's conclusion Child would be "adversely affected" by severance, claiming the court abused its discretion in ignoring certain evidence and focusing improperly on other facts. See CYF's Brief at 42-44; Child's Brief 27-30.
Mother responds that appellants are improperly reweighing evidence when this Court has "explicitly instructed appellate courts to ‘defer to the trial judges who see and hear the parties and can determine the credibility to be placed on each witness [because appellate courts] ... are not in a position to reweigh the evidence and the credibility determinations of the Trial Court.’ " Mother's Brief at 31, quoting In re R.J.T. , 608 Pa. 9, 9 A.3d 1179, 1190 (2010) ; see also Amici for Mother's Brief at 9-10, quoting S.K.L.R. , 256 A.3d at 1124 ("[T]he appellate court should review the record for an abuse of discretion and for whether evidence supports that trial court's conclusions ... [and] not search the record for contrary conclusions or substitute its judgment for that of the trial court"). Mother concedes appellants’ arguments show the record might support a different result, but insists this does not establish an abuse of discretion. Mother's Brief at 29. Thus, Mother submits, the record supports the trial court's decision.
Mother further notes the trial court was not required to accept Dr. Rosenblum's ultimate conclusion that the harm of termination would not outweigh Child's need to move forward in her current family environment. Green v. Schuylkill Cnty. Bd. of Assessment Appeals , 565 Pa. 185, 772 A.2d 419, 424 (2001) ("[T]he fact-finder is not constrained to accept the ultimate opinion of an expert merely because the witness is unrebutted and has provided some credible testimony."), quoting Green v. Schuylkill Cnty. Bd. of Assessment Appeals , ––– Pa.Cmwlth. ––––, 730 A.2d 1017, 1021 (1999) (en banc ) (emphasis omitted). Mother emphasizes that denying termination does not mean Child's relationship with Foster Mother ends but rather that the status quo is maintained. ii. Discussion
Mother makes an additional argument that appellants ignore Permanent Legal Custody (PLC) as a potential solution to keep Child's connection with Mother while she remains in her foster home. PLC "is an arrangement whereby a juvenile court discontinues court intervention as well as supervision by a county agency, and awards custody of a dependent child, on a permanent basis, to a custodian. Parental rights are not terminated." In re S.H. , ––– Pa.Super. ––––, 71 A.3d 973, 977 (2013) (citation omitted); see also 42 Pa. C.S. § 6351(a)(2.1) (prescribing PLC as a type of custody order a court may grant when finding a child dependent).
Appellants respond that PLC is not before this Court because such remedy falls within the jurisdiction of juvenile court, outside the jurisdiction of the court proceeding here, and further, Mother made no appeal from the order that changed her permanency goal to adoption in 2019. See Appellants’ Joint Reply Brief at 3, quoting R.I.S. , 36 A.3d at 575 ("Questions regarding the propriety of an order granting or denying a goal change petition are, of course, discrete inquiries requiring an analysis of interests exquisitely separable from those interests reviewed in questions relating to the involuntary termination of parental rights."). We agree with appellants that PLC is outside the scope of the present appeal, although we acknowledge it is an option in appropriate cases, just as open adoption may suit other circumstances. See S.H. , 71 A.3d at 978 ; In re S.B. , 208 Pa.Super. 21, 943 A.2d 973, 983–84 (2008) (discussing the standard for PLC and situations for which it is best suited); 23 Pa.C.S. § 2731 et seq. (providing adoptive parents the option to enter a court-enforced agreement with their child's birth parents to facilitate ongoing contact or communication.).
The dissent agrees "PLC is not before us." Dissenting Op. at 1135. At the same time, the dissent insists we have placed PLC "off limits in cases involving the termination of parental rights[.]" Id. at 1135. As we have surmised, this is apparently intended to tee up inapposite discussion of PLC and guardianship, and an irrelevant and unsupported suggestion open adoptions are "rare." Id. at 1135-37. But we place no limits on a trial court's consideration of PLC in the appropriate context, which is not this case. PLC is a permanency goal when neither reunification nor adoption is best suited for the child, 42 Pa.C.S. § 6351(f.1)(3). For example, a court may grant PLC when a caregiver accepts legal responsibility of a child but is unwilling or unable to adopt. See id. ; see also 42 Pa. C.S. § 6351(a)(2.1). In any event, before PLC is available, the record must reflect the court ruled out adoption as a permanency goal, and it does not here. 42 Pa.C.S. § 6351(f.1)(3).
Appellants essentially argue the Superior Court should have reversed the denial of termination on this record, and further, they would have us order termination of Mother's parental rights on this record. We decline to do so. See, e.g. , S.K.L.R., 256 A.3d at 1123 (appellate courts "are not in a position to make the close calls based on fact-specific determinations"), quoting R.J.T. , 9 A.3d at 1190. Appellate courts reviewing such fact-bound claims arising in termination matters "should defer to the trial judges who see and hear the parties and can determine the credibility to be placed on each witness and, premised thereon, gauge the likelihood of the success of the current permanency plan[;] and ... [e]ven if an appellate court would have made a different conclusion based on the cold record, we are not in a position to reweigh the evidence and the credibility determinations of the trial court." Id. at 1124 (quotation marks omitted). We will not depart from this well-established standard here. Thus, considering termination's irreversible effect on a child's relationship with a parent, we allow the trial court an opportunity to review the record or further develop it with the foregoing clarification of the 2511(b) analysis in hand.
III. Conclusion
As we have today clarified the standard for courts applying 23 Pa.C.S. § 2511(b) to a petition for involuntary termination of parental rights, including all factors that must be considered by the court in that analysis, we conclude the orders below must be vacated and the matter remanded to the trial court for further proceedings consistent with this opinion.
Chief Justice Todd and Justices Donohue, Mundy and Brobson join the opinion.
Justice Wecht files a dissenting opinion.
DISSENTING OPINION
JUSTICE WECHT
Today, the Majority provides a new four-factor test for trial courts to use when conducting needs and welfare analyses under 23 Pa.C.S. § 2511(b) of the Adoption Act. As part of that test, the Majority adopts a standard for evaluation of parent-child bonds in termination of parental rights cases that the plain language of the Adoption Act does not support. The Majority's new rubric also violates this Court's tradition of affording trial courts discretion to assess children's needs and welfare holistically in making termination of parental rights decisions. Today's new standard for weighing the bond between the parent and child supplies a threshold that is amorphous and abstract. Even the Majority has trouble defining this new threshold. This rubric minimizes a child's relationship to a parent in most situations and restricts trial courts on the front lines from evaluating that relationship in conjunction with other considerations bearing upon the child's needs and welfare as they see fit. The threshold that the Majority attaches to a parent-child bond makes it easier for child welfare agencies to prove their cases, pre-tilts a trial court's decision toward termination of parental rights, minimizes a child's relationship to a parent in any case where there is a parent-child bond, and discounts the pain attendant to termination of that relationship as measured from the child's perspective. The Majority assumes that adoption is the solution for most children who cannot reunify with a parent, even though other permanency options exist. Until now, Pennsylvania law has allowed trial courts on the front lines to retain their discretion to evaluate each specific child in each specific case. Because the Majority departs from this path, I respectfully dissent.
See infra at 1129-30.
Section 2511(a) of the Adoption Act first requires the petitioner to prove one or more of eleven specified grounds for terminating parental rights. Only when the petitioner has done so may the court turn to Section 2511(b). That subsection, entitled "Other considerations," states, inter alia , that "[t]he court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child."
In contrast to Section 2511(a), which focuses upon the parent's conduct, the plain language of Section 2511(b) requires courts to focus upon the child's needs and welfare. Even when a petitioner has proven grounds to terminate under Section 2511(a), "termination must be decreed only where it serves the needs and welfare of the children." Stated plainly, even in circumstances where a parent's conduct might establish grounds for the termination of parental rights, severing the legal relationship between a parent and child does not necessarily serve the child's needs and welfare. Proof of grounds alone is necessary, but not sufficient; satisfaction of the needs and welfare analysis is required as well.
In re E.M. , 533 Pa. 115, 620 A.2d 481, 484 (1993).
In the absence of statutory factors prescribing a methodology for trial court evaluation of whether termination of parental rights serves a child's needs and welfare, this Court has provided some direction. In T.S.M. , this Court emphasized that the Section 2511(b) analysis must address "the needs and welfare of the particular children involved." T.S.M. did not set forth a closed and complete list of mandatory factors that a court must consider when conducting a Section 2511(b) analysis. It would be impossible to fashion such a list inasmuch as each child's circumstances are unique. What T.S.M. does mandate is that the trial court consider whether the petitioner has proved that the termination serves the child's needs and welfare by "weighing ... factors" that involve "contradictory considerations."
In re T.S.M. , 620 Pa. 602, 71 A.3d 251 (2013).
Id. at 268-69. As I discuss below, T.S.M. involved five children who spent extended time in foster care, suffered from psychological and behavioral conditions, and had a strong but unhealthy bond to their mother. This Court referred to the children as "catastrophically maladjusted." Id. at 269. While this Court's discussion has broader implications for Section 2511(b), its analysis was targeted toward the circumstances of the children in that case.
See id. at 269.
T.S.M. explained that trial courts must consider, to the extent applicable and in addition to any other considerations bearing on a particular child's developmental, physical, and emotional needs and welfare, the following considerations: (1) a child's "emotional needs and welfare," which include "intangibles such as love, comfort, security, and stability"; (2) any "emotional bond" between a parent and child, including (a) the nature of that bond, whether it is a healthy bond or whether the child's emotional attachment is derived from parental conduct that harms the children; and (b) the effect of permanently severing the bond upon the child; and (3) the child's permanency and security needs, including (a) whether a child is in a pre-adoptive home with caregivers who provide necessary love, care, and stability; (b) whether there is a strong likelihood of eventual adoption; (c) whether a child has a bond with a foster caregiver; (d) whether any unhealthy bond with a parent or the parent's actions are interfering with the child's ability to bond with a foster parent or obtain stability; (e) whether, to the extent that the child feels competing loyalty to a parent and foster caregiver, permanency could make the child feel more secure and resolve such conflict; and (f) the length of time children have spent in foster care, bearing in mind the "ticking clock of childhood." Overall, T.S.M. directed trial courts to pay "attention to the pain that inevitably results from breaking a child's bond to a biological parent, even if that bond is unhealthy," and to "weigh that injury against the damage that bond may cause if left intact."
Id. at 267.
Id. at 268 (citing E.M. , 620 A.2d at 485 ).
See id. at 267-69. This Court acknowledged that "evaluation of a child's bonds is not always an easy task," and recognized that a bond may be "strong" yet "unhealthy." See id.
Id. at 268.
Id.
See id. at 268-71.
See id. at 268, 270.
Id. at 268.
See id. at 268-70.
See id. at 270. Specifically, in explaining why the trial court abused its discretion in relying upon the children's bond with their mother and the children's lack of a guaranteed adoptive home in denying the termination petition, this Court admonished that "use of concurrent planning beyond its useful life can create confusion for the children and potentially increase the difficulty for them to bond with pre-adoptive parents." Id. In some scenarios, the child's bond to the parent who cannot care for the child interferes with the child's ability to bond to foster parents or causes the child to experience maladaptive behaviors. See id. To illustrate the complexity of these situations, this Court drew upon the expert psychologist's testimony to explain that courts should consider whether "the child is conflicted ‘between loyalty to a biological parent and loyalty to a foster parent, pre-adoptive parent, [or] adoptive parent. When it is clear to the child that they are in their permanent home, then the conflict can diminish, which can result in less disruptive behaviors and a greater sense of security.’ " Id. (citation omitted). The Majority critiques my inclusion of such a factor into the considerations that a trial court must consider. See Maj. Op. at 1113-14 n.28. Yet this consideration was one of the many integral parts of this Court's analysis in T.S.M. The tenor of the Court's rationale in T.S.M. was to caution trial courts that evaluations of parent-child bonds and a child's developmental, physical, and emotional needs and welfare is a complex task.
See id. at 269.
Id.
K.T. ("Child") was five years old when the trial court denied the petition filed by Allegheny County's Office of Children, Youth, and Families ("CYF") to terminate involuntarily the parental rights of Child's mother, K.S.T. ("Mother"). The dispute before us in this case centers upon the legal evaluation of Child's bond with Mother under Section 2511(b), and whether that bond serves Child's needs and welfare to a sufficient degree that it overcomes the grounds for termination.
See 23 Pa.C.S. § 2511(b) ; see also E.M. , 620 A.2d at 481-84 (requiring an evaluation of the parent-child bond as part of the Section 2511(b) analysis); T.S.M. , 71 A.3d at 268 (same).
CYF removed Child from Mother's care when Child was eight months old. Child spent four years in kinship foster care with her godmother. No one disputes that there were grounds to terminate Mother's parental rights under Section 2511(a). Nor does anyone dispute that Child shares a bond with both Mother and the godmother. One needs no psychology degree to discern what common sense predicts: since Child has spent most of her life in her godmother's daily care, her relationships with her godmother and Mother are significantly different. Unsurprisingly, by this point, Child's primary attachment is to her godmother, who is Child's source of emotional security.
While Mother's progress in meeting the goals set by CYF to reunify with Child has waxed and waned, her interest in Child never has. Mother attended most of her visits with Child. For a time, Child visited Mother's home overnight on an unsupervised basis. At other times, visits occurred under supervision. During most of Child's time in foster care, Child and Mother visited each other three times per week. Although Child was in Mother's direct care for only a brief time following birth, the trial court determined that Child had formed and maintained a bond with Mother. The parties in this case do not dispute the existence of that bond. This dispute centers upon competing interpretations of the nature of the bond, the effect upon the child of severing it, and the bond's overall place within the Section 2511(b) analysis.
See N.T., 3/22/21, at 126-27; N.T., 5/13/21, at 34.
The trial court declined to terminate Mother's parental rights. Child and CYF appealed. In its Pa.R.A.P. 1925(b) opinion, the trial court indicated that the petitioner, CYF, did not meet its burden of proving that termination met Child's needs and welfare under 23 Pa.C.S. § 2511(b). The trial court highlighted the evidence in the record which demonstrated that permanently severing Mother and Child's emotional relationship would "adversely affect" Child.
See Trial Ct. Op., 11/22/21, at 15-19.
A divided panel of the Superior Court affirmed the trial court's order. The panel majority rejected the notion that the trial court applied an incorrect legal standard to evaluate Child's needs and welfare. From the majority's perspective, Child and CYF simply disagreed with the trial court's discretionary weighing of the evidence. The panel majority acknowledged the "abundant evidence" in the record that "Child's needs and welfare may best be served by a life in [her godmother's] home." But, the majority noted, there also was record evidence that Mother is "nurturing," "affectionate," and "playful" with Child, that Child looks forward to seeing Mother, and that continued contact with Mother, "if it could be shaped into a supportive role" that was not "critical" of Child's godmother, would be "worth preserving" for Child. Per this Court's recent decision in S.K.L.R. , which reiterated that the Superior Court cannot reverse a trial court's order merely because the record would support the opposite result, the majority declined to find that the trial court abused its discretion.
See Interest of K.T. , 281 A.3d 1040, 2022 WL 1793083, at *5 (Pa. Super. 2022) (non-precedential decision). According to the panel majority, a trial court may, but is not required to, emphasize a child's relationship with a foster caregiver. The panel declared that, while a trial court may emphasize a child's relationship with a foster parent, the Superior Court has not required the trial court to do so. Id. (citing In re N.A.M. , ––– Pa.Super. ––––, 33 A.3d 95, 103 (2011) ("[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent.") (emphasis added)). But see T.S.M. , 71 A.3d at 268 ("Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents.") (emphasis added).
K.T. , 2022 WL 1793083, at *5, 281 A.3d 1040. The Superior Court found sufficient evidence to support the conclusion that Child's "primary attachment" is to her godmother, Child and her godmother share a strong positive bond, and Child's godmother has helped Child achieve stability, security, safety, and developmental and emotional success. Id. at *4-5.
Id. at *4-6. Because the CYF caseworker had never seen Child and Mother interact in person, most of the evidence regarding Child's relationship with Mother came from Neil Rosenblum, Ph.D., a forensic psychologist who evaluated the family. See id. at *3. While Dr. Rosenblum recommended that Child have continued contact with Mother, his ultimate recommendation was that such contact should not come at the expense of Child's permanency with her godmother. See id. at *5.
See Interest of S.K.L.R. , ––– Pa. ––––, 256 A.3d 1108, 1127-29 (2021) (emphasizing that appellate courts must defer to trial courts’ factual determinations because of the latter's "first-hand observations of the parties spanning multiple hearings" and experience "on the front lines assessing the credibility of witnesses and weighing competing and often challenging evidence").
Interest of K.T. , 2022 WL 1793083, at *5, 281 A.3d 1040. In contrast to the panel majority's refusal to find an error of law, Judge Murray dissented, opining that the trial court erred as a matter of law by considering only the parent-child bond and "ignoring Child's need for permanency." Id. at *8 (Murray, J., dissenting).
Child and CYF jointly filed a petition for allowance of appeal. They argued that the trial court erred as a matter of law by ignoring aspects of Child's needs and welfare beyond a parent-child bond and by using a standard of "adverse effect" to evaluate Child's bond with Mother. Child and CYF argue that an "adverse effect" standard is too lenient as a matter of law. They posit that lower courts across the Commonwealth uniformly must utilize a more exacting standard when called upon to evaluate a bond between a child and parent.
Child's Br. at 24-26; CYF's Br. at 44-47.
Child's Br. at 19-20; CYF's Br. at 33.
See Child's Br. at 20; CYF's Br. at 33.
Today, the Majority declares that the "only" parent-child bond which warrants preservation is one that is "necessary and beneficial." The Majority maintains that its test stems from the plain language of the Adoption Act and this Court's decision in E.M. , and that it has merely "clarified the standard." I am not convinced.
Maj. Op. at 1108-09.
533 Pa. 115, 620 A.2d 481 (1993).
Maj. Op. at 1117.
As the Majority observes, the legislature has provided few instructions to guide courts in weighing whether termination of a parent's rights serves a child's needs and welfare. The statute includes three categories of "needs and welfare": "developmental," "physical," and "emotional." The General Assembly did not define the term "needs" or the term "welfare." "The lack of definition naturally complicates a plain-language analysis, but it hardly precludes one." We may seek understanding elsewhere, including in dictionaries, which furnish insight into the common meaning of a term. Although courts typically refer to a child's "needs and welfare" as a joint package, each of these words has a meaning of its own. Reference to a child's "needs" is a signal that the legislature intended the court to focus upon aspects that are "of necessity" to the child. Defined in the singular, a "need" is "a physiological or psychological requirement for the well-being" of a person. Or, as another dictionary puts it, to "need" is "to require something/somebody because they are essential or very important, not just because you would like to have them." A child's "welfare," on the other hand, connotes "the state of doing well especially in respect to good fortune, happiness, well-being, or prosperity." Put differently, "welfare" is "the general health, happiness and safety of a person."
See Maj. Op. at 1105 ("Although subsection (b) itself does not specify a method for determining whether granting or denying termination best serves the child's needs and welfare. ...").
Reibenstein v. Barax , ––– Pa. ––––, 286 A.3d 222, 231 (2022).
See id. ; see also 1 Pa.C.S. § 1903(a) ("Words and phrases shall be construed according to ... their common and approved usage ....")
See, e.g., T.S.M. , 71 A.3d at 267.
Needs , Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/needs (last visited June 13, 2023).
"The singular shall include the plural, and the plural, the singular." 1 Pa.C.S. § 1902.
Need , Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/need (last visited June 13, 2023).
Need , Oxford Advanced Learner's Dictionary, https://www.oxfordlearnersdictionaries.com/us/definition/english/need_1 (last visited June 13, 2023).
Welfare , Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/welfare (last visited June 13, 2023).
Welfare , Oxford Advanced Learner's Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/welfare (last visited June 13, 2023).
A synthesis of these definitions indicates that Section 2511(b) requires courts to ascertain whether termination of a parent's rights serves a child's "developmental," "physical," and "emotional" requirements—i.e. , needs—and a child's "developmental," "physical," and "emotional" well-being—i.e. , welfare. By prescribing the terms "needs" and "welfare," the General Assembly has directed courts to examine the termination's effect upon domains that a child needs to survive and domains that help a child to thrive.
By shifting the focus from the parent's conduct to the child, and by directing courts to give "primary consideration to the developmental, physical and emotional needs and welfare of the child," the General Assembly has required a comprehensive and holistic examination of the effect of terminating parental rights upon a child across multiple domains of that child's life. The examination is child-focused. The General Assembly left open the question of how to evaluate a child's needs and welfare. Notably, the legislature did not expressly direct the trial court to examine the parent-child bond. The broad language of Section 2511(b) leaves ample room for this obvious and important consideration. So, at first glance, the Majority's attempt to target the child's requirements and the child's well-being by attaching the "necessary and beneficial" label to the bond seems reasonable. But the legislative command is for the court to give "primary consideration" to a child's "developmental, physical and emotional" requirements and well-being in "terminating the rights of a parent" (i.e. , making a termination decision). The General Assembly did not prioritize or limit consideration of a parent-child bond or any other particular consideration bearing upon termination, so long as the consideration relates to the child's "developmental, physical and emotional needs and welfare." It did not require each individual and distinct consideration to serve the child's requirements and well-being in order to count in the trial court's weighing; no, it is the ultimate result that must serve a child's needs and welfare. Consequently, the Majority's decision to attach nearly insurmountable weight to one (and only one) consideration under Section 2511(b) is not supported by the statutory language.
Nor does the Majority's analysis comport with our existing precedents, which have grappled at length with the competing interests at stake in termination cases. Consideration of a child's needs and welfare pre-dates the adoption in 1980 of express statutory language requiring such an analysis. Even before the legislature converted the termination decision into a two-step analysis, this Court unequivocally mandated that, given the nature of the rights at stake, courts could not consider a child's needs and welfare until after they considered whether the Commonwealth proved grounds for terminating parental rights. Government agencies bore this initial burden in order to ensure that they did not destroy families; these agencies were not free
See In re Adoption of R.I. , 468 Pa. 287, 361 A.2d 294, 299 (1976).
to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.
Id. at 298 (quoting Rinker Appeal , 180 Pa.Super. 143, 117 A.2d 780, 783 (1955) ).
In William L. , this Court explained that, notwithstanding a parent's constitutional interest in parenting his or her child, once the Commonwealth proved grounds for termination by clear and convincing evidence, the Commonwealth could "constitutionally intervene to protect the ‘physical or mental well-being’ of the child." The Court remained cognizant that the parent is not the only one with an interest in continuing the parent-child relationship. The child also has an "important" interest in continuing this relationship, because severing "close parental ties is usually extremely painful." The demanding standards of removal and termination of parental rights exist in order to protect the family , of which the child is a part, from "harmful and unwarranted state intrusion."
In re William L. , 477 Pa. 322, 383 A.2d 1228 (1978).
This Court did not officially adopt the "clear and convincing" evidentiary standard for all termination of parental rights cases until 1983, following the United States Supreme Court's decision in Santosky v. Kramer , 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In re T.R. , 502 Pa. 165, 465 A.2d 642, 644 (1983) ("We hold that in all proceedings to involuntarily terminate parental rights, which are not yet final, the petitioner must prove the statutory criteria for that termination by at least clear and convincing evidence."). In re T.R. arose under the 1970 version of the Adoption Act, which did not impose an express two-step process like the 1980 act. Nevertheless, this Court has continued to follow T.R. after the amendment of the Adoption Act. The petitioner is not only required to prove grounds by clear and convincing evidence in accordance with Santosky , but also must prove that termination meets the child's needs and welfare by clear and convincing evidence. E.M. , 620 A.2d at 484-85.
William L. , 383 A.2d at 1236.
Id. at 1241.
Id.
Assessment of a child's need for a "stable home and strong, continuous parental ties" cuts both ways. Where a parent has been unable to retain custody of a child and the "child has lived with one foster family for a considerable period of time," removing the child from the foster family, "or inflicting upon [the child] the fear that [the child] might be removed at any time," may "create psychological and emotional distress similar to that caused by [the child's] removal from [the child's] natural parent." In such a circumstance, the parent's interest in parenting the child may yield to the child's interest; a child need not remain indefinitely in the "limbo of foster care or the impersonal care of institutions" in order to preserve a parent-child relationship that no longer exists. When the interests of the parent and child conflict, the legislature "has constitutionally mandated that the interests of the weaker party, the child, should prevail."
Id .
Id .
Id .
Id. at 1236.
In 1980, two years after the In re William L . decision, the legislature amended and re-codified the Adoption Act. It was then that the General Assembly added Section 2511(b), which expressly required courts to consider the child's needs and welfare. The addition of Section 2511(b) was met with little fanfare by this Court, which did not consider the new statutory language until it decided E.M. in 1993.
At that time, Section 2511(b) instructed that "[t]he court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child." It was not until 1995 that the General Assembly added the "developmental, physical and emotional" descriptors. Matter of Charles E.D.M., II , 550 Pa. 595, 708 A.2d 88, 92 n.2 (1988).
E.M. involved a mother with intellectual disabilities who struggled to provide adequate care to her two sons, both of whom also were intellectually disabled. For six years, the county child welfare agency provided services to try to reunify the family, but the agency ultimately determined that reunification was not viable. The trial court ordered that the mother's rights be terminated.
E.M. , 620 A.2d at 481-82.
On appeal to the Superior Court, the mother argued that terminating her rights did not serve her children's needs and welfare in view of their shared parent-child bond. The eight-year-old and nine-year-old children were doing well with the stability provided by their foster home, but typically enjoyed visiting their mother. The nine-year-old child referenced having "two mommies and two daddies"—referring to his pre-adoptive foster parents, his mother, and his mother's live-in boyfriend—and expressed a preference to live with his foster parents. The eight-year-old child also referred to both sets of parents as "mommy and daddy." That child alternated between naming the foster parents and his mother and her boyfriend when asked where he preferred to live, once expressing a wish to live with both at the same time. The Superior Court affirmed the termination, declaring that:
In re E.M. , 401 Pa.Super. 129, 584 A.2d 1014, 1017-18 (1991), rev'd , 533 Pa. 115, 620 A.2d 481 (1993).
[O]nce a parent is adjudged incompetent under section 2511(a) whereby family unity cannot be preserved, but where adoption is imminent , then there is no need to ascertain whether a beneficial bonding exists as between the natural parent and the children, nor whether additional factors counsel that continuing the relationship might otherwise serve the needs and welfare of the child.
Id. at 1022 (emphasis in original).
Lest anyone think that the court disregarded evidence of the irretrievable loss of "what may be a present and continuing beneficial relationship with the natural mother," the court acknowledged that it was aware that it was doing precisely that, but opined that it was up to the "legislature to consider the propriety of this result."
Id. at 1023.
Judge Johnson dissented. In his view, because no one was advocating a return to the mother, "[t]he real issue [was] whether the benefits of change in legal status from foster care to adoption, weighed against the harm of taking [the m]other out of the children's lives, will serve the best interests of the children." He argued that "adoption may advance an abstract kind of stability while at the same time undermining the children's needs and welfare." He observed that "[t]he children are not confused or otherwise negatively affected by ongoing relationships with both sets of parents. Termination/adoption might simplify things for other parties but not for the children."
Id. at 1024 (Johnson, J., dissenting).
Id. at 1027 (Johnson, J., dissenting).
Id. (Johnson, J., dissenting).
This Court granted review. In considering whether the agency had met its burden, the Court found it striking that the agency's own expert witness, a psychologist, testified that the children shared a bond with their mother and that the expert could have better assessed the bond if she had conducted a joint evaluation of the children and their mother. The Court held that, "[w]hile the fact that there exists some bond between [the mother] and the children would not per se block a termination of parental rights, it is at least a factor that, according to [the agency's] own expert witness, should have been more fully explored." The Court found that the agency did not meet its burden to show by clear and convincing evidence that termination met the needs and welfare of the children.
The psychologist also recommended evaluating the children with their foster father. She had conducted an evaluation between the children and their foster mother and an individual evaluation of the children's mother. E.M. , 620 A.2d at 484.
Id . at 485.
This Court also disapproved the Superior Court's statement that there is no need to evaluate a bond where a parent is adjudged incompetent and where adoption is imminent:
We do not agree. It is clearly conceivable that a beneficial bonding could exist between a parent and child, such that, if the bond were broken, the child could suffer extreme emotional consequences. This is true regardless of whether adoption is imminent. To render a decision that termination serves the needs and welfare of the child without consideration of emotional bonds, in a case such as this where a bond, to some extent at least, obviously exists and where the expert witness for the party seeking termination indicates that the factor has not been adequately studied, is not proper.
Whether the bond exists to such a considerable extent that severing the natural parent-child relationship would be contrary to the needs and welfare of the children is an issue that must be more fully explored by the evidence. Such an intense bond may exist with respect to one, both, or neither of the children. The existing record is simply inadequate in its treatment of this issue.
The order of the Superior Court affirming the decree of the court of common pleas must, therefore, be reversed. The case will be remanded to the court of common pleas for a reevaluation of the needs and welfare of the children, taking into account whatever bonds may currently exist between the children and
[their mother], as well as other factors having bearing upon whether termination is proper.
Id . Notably, this Court did not address what those "other factors" might be.
The E.M. Court referenced "extreme emotional consequences" and "an intense bond," and also mentioned a bond existing "to such a considerable extent that severing the natural parent-child relationship would be contrary to the needs and welfare of the children ." This Court's reference to "extreme emotional consequences" undid the Superior Court's assumption that, once a court declares an incompetent parent unfit, and once presumptively loving and fit foster parents are waiting to adopt the children, then a fortiori , termination and adoption meet the children's needs and welfare. In practice, the Superior Court had declared that the effect upon a child of severing a bond with a parent did not warrant further consideration as a matter of law. This Court pointed out the fallacy of that assumption, particularly because the language of the Adoption Act required a separate analysis of children's needs and welfare.
E.M. underscores the importance of full evaluation of a child's needs and welfare, one that is based upon scrutiny of the parties actually before the court, rather than upon general assumptions. It also stands for the proposition that the petitioner can meet its burden for showing that termination serves a child's needs and welfare notwithstanding a parent-child bond, as "some bonds would not per se block a termination," while also mandating that a court must fully evaluate the bond before severing it for purposes of facilitating an adoption.
E.M., 620 A.2d at 485, 483.
In 1995, the General Assembly amended Section 2511(b) and added three descriptors to the phrase "needs and welfare." After the amendment, courts had to give primary focus to the child's "developmental, physical and emotional needs and welfare." Because we must assume that the General Assembly did not intend for these three descriptors to be mere surplusage, the addition of the descriptors indicates that the General Assembly requires a holistic assessment of these distinct aspects of a child's needs and welfare and does not permit the focus to aim only at one area.
Charles E.D.M., II , 708 A.2d at 92 n.2.
See Commonwealth v. Peck , 663 Pa. 484, 242 A.3d 1274, 1282 (2020).
In Charles E.D.M., II, a case involving a parent's petition to terminate the rights of the other parent, the Court emphasized that Section 2511(b) requires courts to look at the effect of termination of parental rights upon the child, not the effect upon the adults in the child's life. In that case, the child's father and stepmother testified that terminating the rights of the child's mother would bring finality for the father and stepmother, but they did not produce evidence concerning the effect upon the child; hence, they fell short of their burden for purposes of termination.
Charles E.D.M., II , 708 A.2d at 92-93. See also In re Adoption of Atencio , 539 Pa. 161, 650 A.2d 1064, 1066-67 (1994) (citing E.M. for the proposition that Section 2511(b) "requires the court to look to the effect of termination on the needs and welfare of the child involved").
Charles E.D.M.,II , 708 A.2d at 92-93.
In Charles E.D.M., II , the mother did not wish to disrupt the children's family situation with their father and stepmother; she merely wanted to remain present in the children's lives through visitation. This Court emphasized "the importance of a child's relationship with his or her biological parent," and opined that ongoing "contact will allow the children to continue to feel loved by their mother and receive her guidance and nurturing." Additionally, this Court noted that allowing some contact may ward off "the children's painful search for their biological mother as a teen or an adult and the emotional injuries caused by the separation." Thus, while this Court's decision in Charles E.D.M., II focused upon a termination of parental rights in a private family realm outside of the foster care system, it recognized that parents can add value to a child's life even when they are not in a caretaking role.
Id . at 93.
Id. (citing Betty Jean Lifton, Lost & Found: The Adoption Experience (1988)).
Meanwhile, in the late 1990s, federal lawmakers decided that the pendulum had swung too far toward protecting parental rights at the expense of dependent children's well-being. The United States Congress enacted the Adoption and Safe Families Act of 1997 (ASFA), which provided financial incentives to states to "move children toward adoption in a timely manner when reunification proved unworkable." Our General Assembly responded the following year by amending the Juvenile Act to comport with the federal legislation. This Court later summarized the changes thus: "[f]ollowing ASFA, Pennsylvania adopted a dual focus of reunification and adoption, with the goal of finding permanency for children in less than two years, absent compelling reasons."
See In re Adoption of S.E.G. , 587 Pa. 568, 901 A.2d 1017, 1019 (2006) (describing how the system's sole focus on reunification contributed to failed reunification attempts, bouncing between foster homes, or placement in congregate care).
Pub L. No. 105–89, 111 Stat. 2115 (1997).
S.E.G. , 901 A.2d at 1019 (citing 42 U.S.C. § 671(a)(15)(c) ).
Prior to ASFA, the sole express purpose of the Juvenile Act was "[t]o preserve the unity of the family whenever possible." S.E.G. , 901 A.2d at 1019. After ASFA, the General Assembly added a second purpose: to "provide another alternative permanent family when the unity of the family cannot be maintained." Id. ; 42 Pa.C.S. § 6301(b)(1).
T.S.M. , 71 A.3d at 269 ; see also 42 Pa.C.S. § 6351(f)(9) (requiring juvenile courts to determine whether an agency has filed a termination of parental rights petition if a dependent child has been in placement for fifteen of the last twenty-two months).
Twenty years after E.M. , this Court decided T.S.M. There, the Superior Court had affirmed the trial court's decision to deny a petition to terminate the parental rights of a mother who had been involved with the child welfare agency for almost a decade due to a pattern of abuse and neglect. Several reunification attempts had been made, but all had failed. The mother's five children had experienced "significant psychological and behavioral problems," in part due to their "pathological" and "unhealthy bond" with her. The children drifted between foster homes and other out-of-home settings, with some of the children experiencing as many as thirteen placements. At times, the mother overtly interfered with the children's adjustments to their foster caregivers. After the agency filed a petition to terminate the mother's parental rights, the trial court refused to do so based upon a finding that the mother and children maintained a "strong bond."
T.S.M. , 71 A.3d at 253. The children underwent "thirty to forty [psychological] evaluations as [their dependency case] dragged on for the better part of a decade." Id. at 260 n.19. The final psychologist to evaluate the children and their mother described the bonds between them as "unhealthy" with "traumatic aspects." See id. at 260 n.18. According to the psychologist, such bonds may occur after abuse; because the child has to depend on the parent, the child "normalize[s] the dysfunctional behavior." Id. Thus, the child remains closely aligned with a parent even though the child simultaneously "fear[s] and love[s]" the parent. Id.
Upon review, this Court described the situation as "a Catch–22." The mother's abusive parenting created pathological bonds, which could not be severed without additional pain to the children. Yet maintaining the bond kept the children tied to a parent who was not able to reunify with them and "stymied [the children] from forming healthy bonds with their foster families who could provide them permanency and, with it, well-being." This Court unanimously concluded that the trial court's denial of termination was manifestly unreasonable because the trial court ignored "the substantial, possibly permanent, damage done to these children by the prolonged, unhealthy, pathological bond" with their mother. Maintaining such a pathological bond with a parent who was not able to reunify with the children was particularly egregious because that bond negatively impacted "the children's ability to form attachments to foster families who could have provided the necessary love, care and stability that these children have so needed for the past decade."
Id. at 266 n.26.
Id.
Id. at 271.
Id.
In arriving at that conclusion, we set forth considerations that courts must consider when evaluating a child's needs and welfare, as discussed above. A few more observations concerning T.S.M. are instructive here. Significantly, although the T.S.M. children, through their guardian ad litem , asked the court to decide whether a "pathological bond is a bond that is necessary and beneficial" to a child, the Court did not answer that question directly or incorporate such a concept into its analysis of the bond. Instead, this Court held that "attention must be paid to the pain that inevitably results from breaking a child's bond to a biological parent, even if that bond is unhealthy," and directed courts to "weigh that injury against the damage that bond may cause if left intact." Stated differently, "[c]ourts must determine whether the trauma caused by breaking that bond is outweighed by the benefit of moving the child toward a permanent home."
See , supra , text accompanying nn. 7-19.
T.S.M. , 71 A.3d at 262.
Id. at 269.
Id. at 253.
Although the T.S.M. Court acknowledged that the Adoption Act explicitly excuses agencies from pleading that an adoption was "presently contemplated" or that "a present intention to adopt exists," we also determined that "[c]ommon sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." Notably, this Court left the analysis open-ended. We cautioned trial courts that "termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home," although we allowed that "termination may be necessary for the child's needs and welfare in cases where the child's parental bond is impeding the search and placement with a permanent adoptive home."
Id. at 268.
Id. at 269.
This Court recognized that "contradictory considerations exist as to whether termination will benefit the needs and welfare of a child who has a strong but unhealthy bond to his biological parent, especially considering the existence or lack thereof of bonds to a pre-adoptive family." Ultimately, T.S.M. did not prescribe any sort of bright-line test or mandate regarding a parent-child bond, other than requiring trial courts to evaluate the nature and health of that bond and the effect of severing it, and to weigh those considerations as part of the greater needs and welfare analysis. Thus, even in a case of an unhealthy parent-child bond that harms the child, this Court permitted trial courts to weigh the damage attendant to breaking the bond against the damage associated with leaving it intact.
Id. at 268.
The Court implicitly put its proverbial thumb on the side of ASFA's "permanency" mandate by cautioning trial courts to "keep the ticking clock of childhood ever in mind" and to maintain "vigilance to the need to expedite children's placement in permanent, safe, stable, and loving homes." However, the Court intentionally left the weighing of the aforementioned competing considerations open-ended, in view of our preference not to apply "the law regarding termination of parental rights ... mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved."
Id . at 269.
Id. at 268-69.
The foregoing discussion of this Court's case law reveals that the Majority in the instant case is not merely "clarifying" a legal standard. Rather, today's Majority is, in fact, imposing a legal standard previously unrecognized by this Court. Although the T.S.M. Court unanimously determined that the trial court abused its discretion in that case, it did so only after formulating a needs and welfare analysis that affords ample discretion to a trial court in the first instance. Here, however, the Majority actually restricts the trial court's discretion even as it professes to recognize it.
The Majority summarizes the factors that comprise a " Section 2511(b) inquiry" by offering the following list:
(1) whether the child and parent share a "necessary and beneficial" bond;
(2) "the child's need for permanency and length of time in foster care consistent with 42 Pa.C.S. § 6351(f)(9) and federal law ASFA, 42 U.S.C. §§ 675(5)(C), (E)";
(3) "whether the child is in a preadoptive home and bonded with foster parents"; and
(4) "whether the foster home meets the child's developmental, physical, and emotional needs, including intangible needs of love, comfort, security, safety, and stability."
Maj. Op. at 1113. The Majority's test queries whether the foster caregivers meet a child's "intangible needs of love, comfort, security, safety, and stability," but does not direct the trial court to consider whether the child's parents meet these intangible emotional needs of the child. Id. The direction in T.S.M. is to examine these intangibles generally. See T.S.M. , 71 A.3d at 267. The trial court should be examining the source of these intangibles for the child, regardless of the identity of the adult from which they emanate.
The Majority proclaims that all four of these factors are of " ‘primary’ importance" and that all "may contribute equally to the determination of a child's specific developmental, physical, and emotional needs and welfare." But the Majority proceeds promptly to contradict itself, declaring that "only a necessary and beneficial bond ... should be maintained," thereby imposing a universal threshold for the type of bond the Majority deems worthy of preservation. If trial courts truly maintain the discretion to "place appropriate weight on each factor present in the record," then they should be able to balance any parent-child bond among the other factors and evaluate each child's developmental, physical, and emotional needs and welfare as a whole.
Maj. Op. at 1108-09. See also id. at 1113 ("Trial courts have the discretion to place appropriate weight on each factor present in the record before making a decision regarding termination that best serves the child's specific needs.").
Id . at 1108-09 (emphasis added).
Id. at 1112-13.
The Majority's quest for a uniform legal standard regarding evaluation of a parent-child bond runs headlong into to the discretion that we afford trial courts in considering a child's individual circumstances. Consider this incongruent result of the Majority's rubric: a trial court may weigh only a "necessary and beneficial" parental bond against the other factors, but it must consider any degree and quality of bond existing between a child and foster caregivers. Indeed, under the Majority's newly formulated needs and welfare analysis, a trial court risks being overturned on appeal if it denies a petition to terminate parental rights based upon the child's beneficial bond with a parent that an agency witness declares to be unnecessary, even if the trial court believes that continued contact with the parent serves the child's developmental, physical, and emotional needs and welfare and there was an alternate route to permanency for the child.
Another problem is that the Majority's scheme is at odds with T.S.M. ’s express directive that trial courts weigh the pain of breaking a strong but unhealthy bond against the damage of leaving the bond intact. In such a situation, the bond may not be beneficial, but it may nonetheless be necessary to the child insofar as the pain of severing it would be so traumatic that it trumps all other considerations.
These problems arise because the Majority insists that the agency only fails to meet its burden if a bond is necessary and beneficial. While there has been Superior Court caselaw to that effect, this Court has never endorsed such a standard. As explained above, the Court did not adopt this standard in T.S.M. And in the Majority's own words, in E.M. , we "contemplated" that " ‘a beneficial bond[ ]’ or ‘intense bond’ " might warrant denial of a termination petition. We did not mandate that the bond had to meet both aspects. Requiring the bond to be both necessary and beneficial is inflexible and may not meet a particular child's overall needs and welfare.
See, e.g., In re P.A.B ., 391 Pa.Super. 79, 570 A.2d 522, 525 (1990). The Superior Court first used the phrase "necessary and beneficial" in P.A.B. The Superior Court proclaimed:
The bond with parents is unique and irreplaceable, making preservation of family ties prima facie in the best interests of the child. Conversely, where preserving family unity in form when no parent-child relationship exists will in fact cast the child into an unstable and unhappy environment, a consideration of the child's needs and welfare may warrant termination. If, as here, ties with natural parents are present and are an active force in the child's life, then needs and welfare becomes a concept that argues against termination rather than fosters it.
It follows that in a termination proceeding under 2511(a)(5), a court, in considering what situation would best serve the child's needs and welfare, must examine the status of the natural parental bond to consider whether terminating the natural parents’ rights would destroy something in existence that is necessary and beneficial. Hence, the party seeking termination, the one that bears the burden, must prove that the family ties either do not exist or no longer help but rather hinder the children. That the child has already been removed from the home, as is always the case in a termination proceeding instituted under 2511(a)(5), does not in itself mean that a beneficial parent-child bond does not exist. This fact alone cannot be dispositive of whether termination best serves the child's needs and welfare. Thus, to apply the statute correctly, there must be an inquiry into the status of the bond, regardless of whether the parents have a physical or mental incapacity.
Id. (cleaned up). The Superior Court offered no explanation of what type of bond would constitute a "necessary" bond for a child. Its focus was on whether a bond existed and whether it was beneficial to the child.
Maj. Op. at 1109 n.22 (citing E.M ., 620 A.2d at 485 ) (emphasis added).
The Majority denies that its decision today pre-determines that most parent-child bonds are unworthy of preservation. The Majority also insists that "courts may weigh the child's feelings and affection towards a parent, relative to all her developmental, physical, and emotional needs and welfare." But these assertions are at odds with the actual framework that the Majority has created today. If the Majority was serious, there would be no need to slap a universal and difficult-to-define label onto one factor. Nor would there be a need to force the trial court to predict the level of harm that might befall the child and to pinpoint such harm within an artificial range.
Id.
Id . at 1111 n.24.
I disagree with application of a label when it is almost impossible to describe the meaning of the label in the abstract. The Majority includes the disclaimer that it is not prescribing "magic words" for the trial court's recital, yet that is exactly the effect (if not the intent) of the Majority's decision to interject abstract, amorphous labels into one factor of its four-factor Section 2511(b) analysis. The Majority offers no explication of what constitutes a "necessary and beneficial bond." It merely advances a proposal for what happens in the absence of such a bond. Apparently, the answer lies in the type of bond that, if severed, would "predictably cause ‘extreme emotional consequences’ or significant, irreparable harm." The Majority later explains that "evidence that severance would cause the child to suffer extreme emotional consequences is one way to demonstrate a necessary and beneficial bond, rather than the only way to preclude termination." This explanation serves only to complicate the analysis. Under the Majority's confused attempts to explain its universal bond evaluation standard, a "necessary and beneficial" bond is one whose severance does more than cause an "adverse effect" and may cause "extreme emotional consequences," yet it also is a bond whose severance could generate an effect that lies between "adverse" and "extreme." , The closest that the Majority gets to an articulation of its standard is when it proclaims that courts must "refine their focus on the child's development and mental and emotional health rather than considering only the child's ‘feelings’ or ‘affection’ for the parent, which even badly abused and neglected children will retain." To be sure, there is a difference between a child who may experience some transient feelings of sadness from the legal severance of a parent's relationship and a child who may experience more significant effects upon his or her developmental, mental, or emotional health. That a child has "feelings" or "affection" for a parent does not mean that the relationship is one that is beneficial for the child, nor does it mean that those feelings override all other aspects of a needs and welfare analysis. But directing courts to focus upon the impact to a child's mental or emotional health means little if the court cannot even consider "an adverse or detrimental impact" and weigh it against the other factors. This erases a child's "feelings" and "affection" from the equation entirely, even though the analysis is supposed to focus upon the child and the child's emotional needs and welfare.
Id. at 1114.
Id. at 1109.
Id. at 1114 n.30. Considering that the burden always remains with the petitioner to prove that termination serves a child's needs and welfare, it is unclear who would "demonstrate a necessary and beneficial bond." The petitioner certainly would have no interest in doing so. Its goal would be to demonstrate the absence of a necessary and beneficial bond.
See id. at 1108-09.
See id. at 1109.
See id. at 1114 n.30.
Discerning the effect upon the child of severing the parent-child bond is a difficult task, because it essentially requires the trial court to predict the effect upon the child of an event that is yet to occur. Adding an amorphous threshold only serves to befog this prediction. It is not clear to me what evidence would need to exist in a record to prevent an appellate court from overturning the trial court's refusal to terminate parental rights because of a parent-child bond. Would predictions of outbursts, anxiety, or nightmares suffice to establish that a child's reaction is more than adverse? Or do only behaviors such as self-harm, suicide attempts, or aggression cross the adverse threshold? Is an expected diagnosis of a mental health disorder required? Can outpatient therapy to address feelings of loss or insecurity meet the standard? Or is only a need for inpatient therapy or hospitalization more than an "adverse impact"? Are we only concerned about a child who risks alienating the foster family and jeopardizing the placement, such that the level of foster parents’ tolerance would play a role in the analysis? The Majority provides no answers. It cannot do so, particularly under the established rubric that affords the trial court discretion to evaluate an individual child's circumstances.
Id. at 1110-11 (citing T.S.M. , 71 A.3d at 267 ) (quoting In re K.K.R.-S. , ––– Pa.Super. ––––, 958 A.2d 529, 535 (2008) ).
Maj. Op. at 1110-11.
The Majority acknowledges that every termination of parental rights case is a "difficult and fraught process" that has "heavy and irrevocable consequences," and invokes the familiar moniker that such termination represents the "death penalty" for the parent-child relationship. Because severance of a "necessary and beneficial" relationship involves more than "the ‘adverse’ impact" that "may occur whenever a bond is present," it seems that the Majority intends that the burden of proving that a "bond is not necessary and beneficial" should be readily attainable for the petitioner.
Id. at 1111.
Id. at 1109.
Id. at 1114.
Thus, while the Majority purports to equalize the four factors that it prescribes and to permit trial courts to wield their discretion in weighing those factors, in reality the Majority restricts the trial courts’ ability to afford most parent-child bonds very much consideration among the factors at all. There is no need to so restrict the weight given to the parental bond, particularly inasmuch as agencies already hold so many cards in the deck. As recognized by the Supreme Court of the United States, the agency must meet the high burden of "clear and convincing evidence" in part due to the state's "ability to assemble its case" with "an array of public resources," which "almost inevitably dwarfs the parents’ ability to mount a defense."
Santosky v. Kramer , 455 U.S. at 760, 763, 102 S.Ct. 1388. In fact, "because the child is already in agency custody, the [s]tate even has the power to shape the historical events that form the basis for termination." Id. at 763, 102 S.Ct. 1388 ; see also S.K.L.R. , 256 A.3d at 1129 (admonishing a child welfare agency for not adhering to concurrent permanency planning and "cutting in half" a parent's contact with the children due to the agency's presumption that the court would grant its petition to terminate the parent's rights involuntarily).
The Majority's disregard of the adverse effect of severing parent-child bonds minimizes the pain inflicted upon children when bonds are severed in the quest for permanency. The Majority's scheme removes discretion from the trial court and pre-weights the court's Section 2511(b) analysis toward adoption. Doing so further exacerbates the incessant focus upon "permanency" to the extent that this magic word has become a slogan or mantra that automatically supersedes all other needs and all other aspects of child welfare. I fully recognize and agree that security and stability are two crucial needs for children. I most certainly do not maintain that trial courts should deny every termination petition when a child and parent share a bond. But we cannot profess to give trial courts the discretion to evaluate factors that bear upon a child's needs and welfare and then refuse simultaneously to respect those courts’ discretion when they find that a parent-child relationship has value.
Accord In re T.S. , 648 Pa. 236, 192 A.3d 1080, 1104 (2018) (Wecht, J., dissenting) ("Having spent several years presiding in juvenile cases, I recognize and appreciate the importance of delivering permanency to the children involved in these contested TPR proceedings and the value of doing so without undue delay.").
Parents, even flawed and struggling parents whose situations fit into the grounds of Section 2511(a), may still be able to meet aspects of a child's developmental and emotional needs and welfare even if they cannot serve in a traditional or full-time caretaking role. No matter how beneficial the child's relationship is with a foster caregiver, a child's relationship with a parent is not easily replaced or replicated. Families are not fungible. The appealing image of foster parents "saving" abused and neglected children notwithstanding, children enter foster care as humans who already are interconnected with their own families and communities. Many foster families do the laudable, hard work of entering into the gap that opens for children while their parents work on addressing their own personal and systemic crises. I do not discount children's meaningful attachments to their foster caregivers nor the developmental, physical, and emotional progress that children make in foster caregivers’ care. But minimizing children's connection to parents or families of origin in a needs and welfare analysis does children a disservice.
See Randi Mandelbaum, Re-Examining and Re-Defining Permanency From Youth's Perspective , 43 Cap.U.L.Rev. 259, 297 (2015) ("As is apparent from youths’ responses and from numerous psycho-social studies, the biological family remains psychologically important to youth-even in cases of previous abuse and neglect or years of physical separation."); Chris Gottlieb, Remembering Who Foster Care is For: Public Accommodation and Other Misconceptions and Missed Opportunities in Fulton v. City of Philadelphia, 44 Cardozo L. Rev. 1, 26-27 (2022) (describing how relationships with families of origin "carry significant emotional weight, play a central role in identity development, and are critical to successful outcomes in the vast majority of foster care cases"); Ashley Albert & Amy Mulzer, Adoption Cannot be Reformed , 12 Colum. J. Race & L. 1, 29-30 (2022) (describing how adult adoptees describe loving their adoptive parents but nevertheless still feel affected by losses inherent in adoption, which may include enduring feelings of abandonment, confusion about identity and background, and loss of the "mirroring" of biological relatives that most people take for granted).
See Annette Appell, The Myth of Separation , 6 NW J.L. & Soc. Pol'y 291 (2011) (arguing that the child welfare system perpetuates the myth that "children can be fully and existentially separated from their parents," as well as the idea that "parents are fungible" and can be replaced by an adoptive parent).
One theory is that adoption may be preferred because of the myth that it can wipe the slate clean and permit "innocent and wounded children to start anew with healthier, untainted families." Sacha Coupet, Swimming Upstream Against the Great Adoption Tide: Making the Case for "Impermanence ," 34 Cap.U.L.Rev. 405, 406-07 (2005). As such, it allows society to ignore the situation "upstream" and "avoid dealing with the enormously complex root causes of child neglect and abuse." Id. at 410. Moreover, "with our gaze fixed downstream, we are tempted to overlook the state's failure to provide meaningful preventative services to avoid out-of-home placement, while celebrating the reconstituted adoptive nuclear family." Id.
See Gottlieb, supra , n.114 at 27 (observing that "foster and adoptive parents are entering the lives of children who have existing relationships with their parents and extended families" and those caregivers should be chosen accordingly).
The new standard formulated by today's Majority focuses upon subtracting relationships from children's lives instead of offering mechanisms or ideas that might add to the love that a child experiences while simultaneously meeting the child's important need for security, stability, and consistent care. Too often, we view a parent's failure to meet ASFA's timeframes as an indictment upon that parent's character and love for the child. In reality, many families become ensnared in the child welfare system for complex reasons that are not easy to untangle in eighteen short months. The current trend fixates upon providing security for children through legal permanency, but many children who are involved in the foster care system report being more concerned about "physical permanency" and "relational permanency." Unsurprisingly, children and youth value stability and emotional connections with caring adults more than the imposition of legally binding outcomes.
Id. at 15 (noting that research has shown that children can develop close bonds with multiple caregivers without diminishing existing relationships). Indeed, ASFA has created circumstances that allow for children to be bonded to multiple parental figures and caregivers. One unintended consequence of concurrent planning is that, in the quest to plan simultaneously for two widely divergent outcomes within a defined timeframe, some families end up in a limbo: the parents do not make enough progress to reunify with their children, yet visitation remains at intervals sufficiently frequent enough to allow the parents and children to maintain a bond.
Under Pennsylvania's ASFA-focused case law, eighteen months is the target timeframe to reunify or to terminate parental rights. In the Interest of C.K. , ––– Pa.Super. ––––, 165 A.3d 935, 944 (2017). In describing the imperative for agencies to make timely, reasonable efforts to attempt to reunify families, the Superior Court has observed: "[e]ighteen months is a very long period out of a child's short life, and there is no doubt that [eighteen] months of prolonged uncertainty is a burden borne most by the child. But [eighteen] months may seem quite short to a parent who has to overcome significant obstacles to regain custody." Id.
Mandelbaum, supra , n.114 at 275-78.
Id .
As scholars point out, ‘[r]ather than "permanency’ being code for terminating parental rights and adoption," there is a "permanency continuum" that includes "a variety of options to achieve permanency, some of which require termination and some of which do not." The currently prevailing narrative is that guardianships, which establish a legal relationship between a child and caregiver but do not require the termination of parental rights, are inherently less stable than termination and adoption. Yet "[e]mpirical research has demonstrated that options which do not require terminations lead to caregiving relationships that last just as long as traditional adoptions." Guardianship may lack the feel-good story of adoption, but if it offers long term stability with a caregiver, perhaps it is an option that should be more readily considered. For some children, guardianship can minimize or ameliorate the trauma of loss that the child already has experienced. It is true that ASFA, as incorporated by the General Assembly into the Juvenile Act, establishes a hierarchy of permanency options, and that the General Assembly has set adoption as the preferred alternative if reunification fails. But ASFA and the Juvenile Act afford courts the discretion to utilize other permanency options in cases that warrant alternative solutions.
Josh Gupta-Kagan, The New Permanency , 19 U.C. Davis J. Juv. L. & Pol'y 1, 12 (2015).
Id . at 18-19 (describing the research and positive effects for children, and arguing that guardianship is a secure and valuable option for permanency); Coupet, supra , n.116 at 412 ("[W]hile data reveal that alternatives to adoption, including subsidized guardianships, offer the same degree of lasting permanence for children, without the counter-therapeutic effects that accompany termination of parental rights and assumption of legally altered family identities, adoption still remains the most frequently pursued option once children cannot be reunified with biological parents.").
See 42 Pa.C.S. § 6351(f.1)(3) (including, within matters to be determined at a permanency hearing, the issue of whether "the child will be placed with a legal custodian in cases where the return to the child's parent, guardian or custodian or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child.").
See id. The Juvenile Act also lists several exceptions to the expectation that an agency must file a petition to terminate parental rights and "identify, recruit, process and approve a qualified family to adopt the child" after a child has been in placement for at least 15 of the last 22 months. 42 Pa.C.S. § 6351(f)(9). One is that "the child is being cared for by a relative best suited to the physical, mental and moral welfare of the child." Id. Another is that "the county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child." Id.
To that point, Mother argues here that there is no need to cause Child harm at all. Child could remain with her godmother under a permanent legal custodianship ("PLC") arrangement, Pennsylvania's version of guardianship, and maintain her relationship with Mother through visitation. The Majority rejects Mother's argument on the basis that PLC is outside the scope of the present appeal. I agree that the specific question of whether the juvenile court should change Child's permanency goal to PLC is not before us, as the sole determination made at the hearing below was whether the agency met its burden to support termination of parental rights under the Adoption Act; there was no simultaneous goal change hearing under the Juvenile Act. Even if we were to agree with Mother that PLC was in the best interests of Child, we could not order such a remedy as part of our review of the termination decree.
Mother's Brief at 26-27.
Maj. Op. at 1116 n.33.
Consistent with a recommendation in the Pennsylvania Dependency Benchbook published by the Administrative Office of Pennsylvania Court's Office of Children and Families, courts often combine hearings on petitions for termination of parental rights under the Adoption Act with hearings on requests for a change in the permanency plan goal under the Juvenile Act. In re R.J.T. , 608 Pa. 9, 9 A.3d 1179, 1191 n.14 (2010). This case is somewhat unusual because the same trial judge, sitting in Child's dependency matter, already had changed Child's permanency goal to adoption in mid-2019.
But I disagree with any implication that the topic of PLC is off limits in cases involving the termination of parental rights, including this case. Although the juvenile court in this case had set the permanency goal for Child as adoption well before the termination of parental rights hearing, that goal is subject to review at every permanency hearing under the Juvenile Act. In other words, the permanency goal is not an immutable status and is subject to change.
In Int. of L.T. , ––– Pa.Super. ––––, 158 A.3d 1266, 1278-79 (2017) ; see also 42 Pa.C.S. § 6351(f)(4), (f.1), and (g).
Counsel for Child dismisses any idea that PLC could offer permanency to Child or many other children. Counsel argues that use of the "adverse effect" standard could "relegate hundreds of foster children each year across Pennsylvania to a life without permanency." Child's counsel even goes as far as suggesting that such a standard would make termination of parental rights and adoption "impossible in many cases," and would impose "potentially disastrous consequences" upon foster children. CYF boards this bandwagon, asserting that the standard used by the trial court "risks creating a new generation of children who will languish in foster care." Then, in their joint reply brief, Child and CYF declare that subsidized PLC is "a less desirable permanency goal" that robs children of a "lifelong sense of belonging and stability that adoption brings."
Child's Br. at 19.
Id. at 20.
CYF Br. at 21.
Jt. Reply Br. at 5.
Permanency does not equate automatically to adoption. Yes, the General Assembly has prioritized adoption over PLC, but it also has recognized PLC as a valid permanency option. But we should not pretend that analysis of a child's needs and welfare at a termination of parental rights hearing pits reunification with the parent against adoption by the caregiver. When a trial court analyzes whether the agency has met its burden under Section 2511(b), it already has decided that the agency provided clear and convincing evidence that there are grounds under Section 2511(a). We do children a disservice when we construe Section 2511(b) to contemplate as options only a return to a parent, adoption, or languishing in foster care.
The juvenile court is tasked with conducting regular review hearings. Based upon statutory factors and the evidence presented during a permanency hearing, the juvenile court has discretion to determine "[if] and when the child will be placed with a legal custodian in cases where the return to the child's parent, guardian or custodian or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child." 42 Pa.C.S. § 6351(f.1)(3). See also 42 Pa.C.S. § 6301 (declaring one purpose of the Juvenile Act to be "[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 .") (emphasis added).
For example, Child's counsel asked Dr. Rosenblum several times about he predicted effect upon Child if she were to be removed from her godmother's care. Dr. Rosenblum responded but noted his belief that the issue before the trial court was whether or not to terminate Mother's parental rights, not whether or not to reunify Child with Mother. N.T., 5/17/21, at 131-32.
See In re P.G.F. , ––– Pa. ––––, 247 A.3d 955, 978 (2021) (Wecht, J., dissenting) ("While a child's preference about custody could be relevant to TPR (particularly if the child wants to live with the parent whose rights are subject to termination), that will not always be the case. The question that TPR proceedings ask is whether the child will have any ongoing connection with the parent and the parent's extended family. That is usually unrelated to where the child wants to live.").
Section 2511(b) asks whether, when giving primary consideration to the child's needs and welfare, the court should enact the "civil law equivalent to the death penalty, forever obliterating the fundamental legal relationships between parent and child." If any relationship continues between parent and child after a termination of the parent's rights and adoption of the child, it will spring entirely from the grace or rare whim of the adoptive parent. And while the legislature has allowed for a legally enforceable open adoption agreement, this "is [a] purely voluntary arrangement requiring the consent of the adoptive parents," and most assuredly is not something that a court can order in conjunction with terminating a parent's rights. , The bottom line is that if a court decides that adoption by a foster caregiver and continued contact with a parent serves a child's developmental, physical, and emotional needs and welfare, which is the ideal outcome recommended by CYF's own expert witness in the instant case, the trial court lacks the power to compel this result at the time it is deciding whether or not to terminate parental rights.
In re Adoption of C.M. , ––– Pa. ––––, 255 A.3d 343, 362 (2021).
The Majority asserts that I have declared that open adoptions are rare in foster care. Maj. Op. at 1116 n.33. I have made no such claim, other than to note that scholarship and studies suggest that caregivers adopting through foster care may be more likely to fear entering into an open adoption agreement than their counterparts adopting through the domestic infant adoption system. See infra n.141. My point here in referring to the grace or whim of the foster parent is simply to note that no matter what promises foster parents make prior to termination of parental rights, post-adoption contact remains within the adoptive parents’ discretion.
See 23 Pa.C.S. § 2731 -2742.
In re Adoption of G.L.L. , ––– Pa.Super. ––––, 124 A.3d 344, 348 (2015).
Although open adoption agreements are used widely in private adoptions, they are less common in adoptions stemming from foster care. See JaeRan Kim & Angela Tucker, The Inclusive Family Support Model: Facilitating Openness for Post-Adoptive Families , Child & Family Social Work (2019), available at https://doi.org/10.111/cfs.12675 (noting that foster parents often have negative attitudes about open adoption because of concerns about safety, even though open adoption often strengthens a child's sense of security, encourages attachment to the adoptive parents, and decreases the sense of parental abandonment).
N.T., 5/13/21, at 128-30.
I do not suggest that PLC is appropriate in every case where a parent-child bond exists, that continued contact with a parent is always desirable, or that adoption will not serve the needs and welfare of many children in foster care. I simply see no need to change the standard for evaluation of parent-child bonds in order to alleviate agency burdens in all termination of parental rights cases. Our current standard affords discretion to trial judges serving on the front lines to consider whether there is a parent-child bond, the nature and quality of that bond, and the predicted effect of severing that bond. Section 2511(b) and T.S.M. require the trial court to weigh the bond and attendant considerations alongside other matters that impact a child's developmental, physical, and emotional needs and welfare. This analysis applies in all termination of parental rights hearings: private parent-initiated TPRs, private adoption agency-initiated TPRs, and government-agency-initiated TPRs. It applies to TPRs involving very young children as well as older children. It applies to TPRs involving children placed with caring, stable pre-adoptive caregivers who provide excellent care as well as children placed in unstable or subpar foster homes (including foster homes that arguably do not meet a child's needs any better than the child's family of origin). The Adoption Act requires a holistic balancing of the totality of a child's individual circumstances. I see no need to depart from that standard by imposing a pre-judgment that one factor does not have value unless it meets an amorphous and arbitrary threshold.
When the Majority says that I "prefer[ ] that trial courts shy away from severing any parental bond by advocating for prolonged dependency and more guardianship and downplaying the instability children face in the foster care system," see Maj. Op. at 1109 n.22, it makes me seriously question whether the Majority is reading and understanding my actual words at all. The point at which a court may properly sever a parental bond is when the trial court, after considering all nuances of a child's particular situation and the evidence in the record, determines, in its ample discretion, that termination of parental rights serves a child's developmental, physical, and emotional needs and welfare. That is what the General Assembly instructed trial courts to do. Sometimes, after this analysis, the trial court will deem termination to serve a child's needs and welfare. At other times, the trial court will not. Sometimes termination and adoption is best, even if it severs a child's relationship with a parent. At other times, another form of permanency like guardianship is warranted to achieve permanency and protect a parent-child bond. Foster care drift is never warranted, and absolutely nothing in my dissent suggests that it is.
For example, Child and CYF focus upon children under five years of age and their need for permanency. See Jt. Reply Br. at 5. But the standard that they ask us to create does not apply solely to younger children. It applies to older children as well. Some of those children are at pronounced risk of becoming "legal orphans" if parental rights are terminated and the agency cannot locate a pre-adoptive home or the pre-adoptive placement fails prior to adoption finalization. See Gottlieb, supra , n.114, at 26-27.
I fear that the Majority is letting its assumption that the trial court did not conduct a full analysis cloud its judgment. From my perspective, the Majority is unnecessarily imposing a universal standard to fix a problem the Majority perceives in one case. The Majority and I agree that a trial court must bear in mind a range of considerations when conducting a Section 2511(b) analysis, not just the mere existence of a parent-child bond. As the Majority observes, the trial court here did not expressly articulate whether it considered other factors in making its analysis. Today's Majority assumes that the trial court's failure to mention its consideration of other factors means that the trial court short-circuited its Section 2511(b) analysis and relied solely upon the existence of a parent-child bond in denying the petition for termination. Apart from the Majority's holding that the trial court erred back then by relying upon a parent-child bond that did not meet the newly-articulated standard that the Majority imposes now, the Majority also decides that the trial court erred by failing to reference other needs and welfare factors that had factual support in the record. According to the Majority, a trial court must "make clear" that the court considered all of the needs and welfare factors and applied "the correct standard ... in weighing them." Distinctly absent is a citation to any statute, rule, or case requiring trial courts to set forth expressly their treatment of each factor of a Section 2511(b) analysis or that the trial court otherwise provide any particular explication of its decision. That is because the Majority imposes this requirement for the first time in termination of parental rights cases today.
If the Majority is "not invent[ing] an exhaustive list of considerations nor remov[ing] discretion from the court," and if it is merely "emphasiz[ing] factors the trial court below did not adequately consider," see Maj. Op. at 1113 n.28, I fail to see why section A of its opinion is necessary at all. If the problem was that the trial court did not give adequate consideration to factors that already exist in the law, then a simple remand would have sufficed. But we granted allowance of appeal to consider what the proper standard is for evaluating a parent-child bond in the context of the needs and welfare analysis. See 177-78 WAL 2022. The Majority may delude itself into thinking that its words will not impact anyone but the parties and the trial judge in this case, but the words it uses to convey its standards carry precedential effect and are not limited to this one dispute.
Although we share some common grounds, the Majority and I are not in full agreement concerning the distinct factors that the court must consider. Compare Maj. Op. at 1112-13 with text accompanying nn. 5-19 supra . The factors I set forth are directly derived from this Court's decision in T.S.M. However, I would not limit the factors to any pre-defined list, as each case is distinct. Some factors will be present in almost every case. In that regard, the Superior Court erred by relying upon cases that made evaluation of the child's relationship with a prospective long-term caregiver optional; in T.S.M. , this Court clearly made such a consideration mandatory when the child is in a foster home. See T.S.M. , 71 A.3d at 268. That the Superior Court so erred in one portion of its analysis does not mean that the trial court made the same mistake.
See Maj. Op. at 1112-15.
Id.
Id. at 1114-15.
Id. at 1114.
The Majority neglects to include any instructions as to where and when a trial court should set forth this analysis in the future. Should the court do so at the time it enters its order? Can the court issue a written opinion or make statements on the record within a reasonable time after entering the order? Can the court wait until the event of an appeal and then present its analysis in its Pa.R.A.P. 1925(a) opinion? Presumably, the Majority means the latter, as it cites to Pa.R.A.P. 1925(a) without further explanation. See Maj. Op. at 1114.
The Adoption Act certainly does not require any particular discussion. Nor do our rules of appellate procedure. The trial court's explanation which the Majority finds to be lacking was contained in its Rule 1925(a) opinion. That rule simply requires a court in children's fast track appeals to "file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, which may, but need not, refer to the transcript of the proceedings." Pa.R.A.P. 1925(a)(2)(ii). In accordance with the rule, the trial court provided its reasons for its decree: the existence of the parent-child bond and the detrimental effect upon Child of severing the bond. That the trial court only mentioned the parent-child bond expressly does not mean that the trial court only considered the parent-child bond and nothing else.
This scheme differs from the Child Custody Act, which requires the trial court to consider certain factors and to expressly delineate the reasons for its custody decision. See C.B. v. J.B. , ––– Pa.Super. ––––, 65 A.3d 946, (2013).
As Mother points out, in other areas of the law, we presume that "when a court has facts in its possession, it will apply them." In Commonwealth v. Jackson , this Court applied the presumption to a juvenile court's decision of whether to certify a juvenile accused of a delinquent act to be tried in adult criminal court. The Juvenile Act set forth statutory factors for the court's consideration, but the Act did not assign any particular weight to any of the factors. Moreover, except in circumstances that were not applicable, the Act placed the burden upon the Commonwealth to provide sufficient evidence to persuade a juvenile court to certify a minor to stand trial as an adult. Accordingly, while the Juvenile Act required the juvenile court to consider all of the factors set forth in the statute, the court's ultimate task was to determine whether the Commonwealth presented sufficient evidence to justify a transfer. This Court refused to require the juvenile court to "address, seriatim , the applicability and importance of each factor and fact in reaching its final determination."
Commonwealth v. Moto , 611 Pa. 95, 23 A.3d 989, 995 (2011).
Commonwealth v. Jackson , 555 Pa. 37, 722 A.2d 1030, 1034 (1999).
Id. at 1033.
Id. at 1034.
Id.
Id .
Likewise, it was CYF's burden here to prove by clear and convincing evidence that termination of Mother's parental rights served Child's developmental, physical, and emotional needs and welfare. As the Superior Court noted, the trial court heard evidence over the course of two days and actively questioned expert witness Neil Rosenblum, Ph.D., concerning his recommendations. It is not as if the trial judge was unaware of Child's relationship with her foster mother. After all, the very same trial judge presided over Child's dependency case for years. This same judge, when presiding over Child's dependency matter, was the one who changed Child's permanency goal to adoption in 2019. "Our trial courts are tasked with carefully considering and weighing all of the evidence presented at termination hearings in determining whether the petitioning party has met its burden of proving by clear and convincing evidence that termination meets the exacting standards outlined in the Adoption Act." That the trial court was unconvinced by CYF's evidence does not mean that the trial court erred as a matter of law by ignoring particular considerations or "relevant evidence" in the record supporting other aspects of a child's needs and welfare. The bottom line is that the legislature left the balancing of children's needs and welfare to the discretion of the trial court. I have no reason to believe that this trial judge did not perform his duty in this regard.
K.T. , 2022 WL 1793083, at *5, 281 A.3d 1040.
See CYF Ex. 1 (dependency orders signed by the Honorable Daniel Regan dating back to 2017).
S.K.L.R. , 256 A.3d at 1129.
See Maj. Op. at 1114.
That I believe the trial court did not abuse its discretion or err as a matter of law in writing its Rule 1925(a) trial court opinion in this case is not incongruent with my belief that a more robust opinion would be helpful for the parties and appellate courts. Because the effects of a termination of parental rights are severe and irreversible, I would endorse prospectively a recommendation that trial courts provide a more robust analysis, on the record or in a written opinion, that expressly articulates whether or not the petitioner met its burden as to any applicable Section 2511(b) factor discussed in T.S.M. , as well as any other factors that the trial court considered. At a minimum, it would be helpful for reviewing courts to have a brief explanation from the trial judge as to what considerations the fact-finder deemed most persuasive and as to how the trial court balanced the factors against the competing considerations advanced by the parties. We afford much discretion to the trial judges on the front lines. And rightly so. We will not overturn the trial court absent an error of law or abuse of discretion. A discussion binds the trial court closely to the "clear and convincing" evidentiary standard, focuses the court's attention upon the particular child at hand, and facilitates our appellate review of the trial court's exercise of its discretion. But I decline to impose a requirement retrospectively upon trial courts that does not exist in the statute and that did not exist when this case was tried.
See text accompanying nn. 5-19 supra .
See S.K.L.R. , 256 A.3d at 1123.
My position in this regard also takes into account a countervailing consideration: a more robust express written analysis requires some time allowance for trial courts. Some cases are more straightforward, while others are more complex. To require a written opinion in each and every case is to risk clogging the machinery of busy juvenile courts.
Because I disagree that the trial court was required to consider only a "necessary and beneficial bond," because there is evidence in the record supporting the trial court's decision, and because there is no requirement in the law for the trial court to have set forth its analysis and rationale expressly, I would affirm the trial court's disposition below.