In the Int. of: N.W., Appeal of: N.W.
449 EDA 2019
Pa. Super. Ct.Sep 19, 2019Background:
- Children (born 2013 and 2015) were removed after allegations of inappropriate discipline and abandonment; adjudicated dependent May 4, 2016 and placed in foster care.
- CUA developed a Single Case Plan (SCP) for Mother requiring visitation, mental‑health treatment, employment, and suitable housing.
- Mother had periods of full compliance (visits unsupervised, therapy, parenting class) and periods of sporadic compliance; juvenile court found reunification possible pending housing in mid‑2018.
- Later CUA reports alleged decreased therapy attendance, inconsistent visits, and housing concerns; visits were reduced to supervised at times.
- DHS filed involuntary termination petitions Dec. 19, 2018; Mother did not appear at the Jan. 10, 2019 termination hearing; trial court terminated parental rights that day.
- Superior Court reversed, holding DHS failed to prove grounds for termination under 23 Pa.C.S. § 2511(a)(1) and (a)(2) by clear and convincing evidence (noting scheduling failures by CUA, lack of proof Mother’s housing problems were her fault, and no clear evidence Mother was incapable due to mental‑health needs).
Issues:
| Issue | Mother's Argument | DHS's Argument | Held |
|---|---|---|---|
| Adequacy of notice / due process | Mother: DHS did not properly serve notice of hearing and goal‑change petitions; due process violated | DHS: Service and procedures were adequate (trial court overruled objection) | Not reached on appeal — disposition decided on §2511(a)(2) ground; appellate court declined to resolve this claim |
| §2511(a)(1) — failure/refusal to perform parental duties | Mother: She made efforts and was in compliance in the relevant period; visited and worked toward reunification | DHS: Mother was inconsistent, failed SCP objectives and visits in six months before petition | Reversed — record did not show clear and convincing evidence of refusal/failure during six months before petition |
| §2511(a)(2) — repeated/continued incapacity, neglect, or refusal | Mother: Completed some SCP tasks; lack of housing was the only barrier and was being addressed | DHS: Noncompliance with SCP, inconsistent therapy and visits, unsuitable home | Reversed — DHS failed to prove repeated/incapacity that could not be remedied; evidence on visits, therapy need, and responsibility for housing was insufficient |
| §2511(b) — child’s needs and welfare / bond | Mother: Court failed to give primary consideration to children’s developmental/ emotional needs and bond with Mother | DHS: Termination serves children’s stability and foster placements | Not reached / not dispositive — Superior Court reversed on statutory §2511(a) grounds and therefore did not adopt a §2511(b) decision |
Key Cases Cited
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (standard of review and bifurcated §2511(a)/(b) analysis)
- In re L.M., 923 A.2d 505 (Pa. Super. 2007) (focus on parental conduct then child’s needs in termination cases)
- In re Z.S.W., 946 A.2d 726 (Pa. Super. 2008) (§2511(a)(1) requires clear and convincing evidence of conduct for six months prior)
- In re B.,N.M., 856 A.2d 847 (Pa. Super. 2004) (parental duty requires affirmative efforts to maintain relationship)
- In re C.M.S., 832 A.2d 457 (Pa. Super. 2003) (parental duty jurisprudence supporting active efforts requirement)
- In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super. 2003) (elements for §2511(a)(2) termination)
- In re A.L.D., 797 A.2d 326 (Pa. Super. 2002) (grounds for termination include incapacity and refusal, not only affirmative misconduct)
- General Equipment Mfrs. v. Westfield Ins. Co., 635 A.2d 173 (Pa. Super. 1993) (pleading allegations are not evidence; judicial admissions must be offered into evidence)