Termination of Parental Rights pursuant to 23 Pa.C.S. § 2511(b)(8)

In the Interest of: S.K.L.R., 2020 WL 6696060 (Pa. Super.) (unreported), allocatur granted Feb. 16, 2021, appeal dockets 5 & 6 WAP 2021

The orphans’ court summarized the relevant background in this parental termination case as follows:

Beginning in September 2017, the Agency offered services to Mother and her husband, [T.S.H.], the father of her third child, [B.H.2], who was born [in July 2017]. The Agency had concerns that Mother was overwhelmed with caring for three young children under the age of three years. It had been reported that Mother was “rough with the children when disciplining them and struggles to demonstrate appropriate parenting.” In addition, Mother had a history of mental health issues. Services through Justice Works and Wesley Spectrum Services were offered.

On December 5, 2017, the Agency received a referral from Children’s Hospital regarding the minor child [B.H.], who was then four (4) months old. [B.H.] underwent a CT scan and MRI testing as a result of having an increased head circumference. Test results revealed ongoing subdural hematomas on both sides of the child’s head. Hospital personnel were concerned these findings indicated non-accidental trauma; Mother had no explanation for the child’s condition. On December 7, 2017, the Agency assumed emergency custody of Mother’s three minor children; and on December 11, 2017, after a shelter care hearing, the children were retained in Agency custody.


On January 19, 2018, the children were adjudicated dependent and ordered to remain in Agency custody with continued placement in their respective kinship foster homes. [Since nineteen months before the termination hearings, S.K.L.R. and L.M.J.R. have resided together in a pre-adoptive kinship foster home.] Mother was directed to continue with mental health treatment and individual counseling, and take prescribed medications; participate in nurturing parenting instruction, which should include a parenting curriculum and/or hands-on parenting instruction; participate in life skills services, including instruction on home maintenance and budgeting and connections to community resources; participate in anger management counseling; obtain and maintain appropriate and stable housing, and keep it in a clean and safe condition; and secure and maintain a verifiable legal source of income.

Slip op. at 2-3.  In 2019, Mother signed a “Consent to Adoption of Birth Parent or Putative Father Who Is Relinquishing Parental Rights,” agreeing to the voluntary termination of her parental rights with respect to the Children; however, the consents to adoption were not confirmed. DHS alleged that it did not receive notice of Mother’s revocation of consent to adoption until months later, after which DHS filed petitions for the involuntary termination of the parental rights of Mother and Father to both children pursuant to 23 Pa.C.S. § 2511(a) and (b), the relevant portions of which provide:

(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. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

Slip op. at 15-16, quoting 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). The orphans’ court denied the Agency’s petitions to involuntarily terminate the parents’ parental rights as premature “because Mother had made a modicum of progress, albeit inconsistently” and DHS presented minimal evidence concerning “whether severing the parent-child relationships would serve the developmental, physical, and emotional needs and welfare of the children.” Slip op. at 5.  Having preserved Mother’s rights, the orphans’ court also determined that Father had similarly progressed little during his incarceration, but provided him additional time to fulfill his parental obligations, presumably after his anticipated release from incarceration when next eligible for parole in May 2020. DHS appealed, arguing that it established grounds for involuntary termination of Mother’s parental rights pursuant to § 2511(a)(8), and (a)(5), due to her lack of compliance with the services required for reunification. Moreover, DHS contended that Mother was engaging in substance abuse, attended only eight of twenty- six visitations in a six-month period and that she was easily agitated during her visits with the Children.

Superior Court reversed the orphan court’s order, concluding that DHS satisfied its evidentiary burden under § 2511(a)(8) with respect to Mother by proving that S.K.L.R. and L.M.J.R. had been removed from parental care for a period exceeding twelve months and that the reasons for removal persisted. Specifically, Superior Court disagreed that DHS failed to provide evidence in support of its petition, noting, inter alia, the testimony of the children’s case worker regarding Mother’s interactions with the children supporting DHS’s contention that termination would serve the needs and welfare of S.K.L.R. and L.M.J.R.  While Superior Court acknowledged that it has “previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings,” Slip op. at 13-14, citing In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010), it reasoned that the orphans’ court’s speculation regarding Mother’s anticipated progress was irrelevant to the analysis required by the statute:

…unlike the grounds outlined in § 2511(a)(5), there is no component of subsection (a)(8) that requires evidence that a parent cannot remedy the underlying conditions within a reasonable period of time or that continued services would not likely alleviate the conditions which led to placement. Hence, the portion of the orphans’ court’s dedication to Mother’s anticipated progress is not only entirely speculative, but also statutorily irrelevant to the § 2511(a)(8) analysis. In re Adoption of R.J.S., supra at 511.

Slip op. at 22.  Based on its review of the record, Superior Court concluded:

While Mother and Father may profess to love S.K.L.R. and L.M.J.R., a parent’s own feelings of love and affection for a child, alone, will not preclude termination of parental rights. Id. As of the date of the hearing, S.K.L.R. and L.M.J.R. had been in placement for approximately twenty-five months, and are entitled to permanency and stability. Their lives “simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting.”

Slip op. at 33 (internal citations omitted).

The Pennsylvania Supreme Court granted allocatur, limited to the following issues:

(1) Whether the Superior Court erred in rejecting the trial court’s findings under 2511(a)(8) and 2511(b), thereby conflicting with this Honorable Supreme Court’s holding in In re R.J.T., 9 A.3d 1179 (Pa. 2010).

(2) Whether the Superior Court in the instant case has substituted its own discretion for that of the trial court, thereby substantially departing from an accepted and usual course of judicial proceedings.