 | Consideration of the Child's Needs and Welfare In a Termination Proceeding |
I. Introduction
“[T]he complete and irrevocable termination of parental rights is one of the most serious and severe steps a court can take, carrying with it great emotional impact for the parent and the children.” In re Bowman, 436 Pa. Super. 10, 14, 647 A.2d 217, 218-9 (1994), aff’d. by an equally divided court, 542 Pa. 268, 666 A.2d 274 (1995) (citation omitted). As a result, the “disruption of the parent-child relationship is warranted only in exceptional circumstances.” In re Matsock, 416 Pa. Super. 520, 530, 611 A.2d 737, 742 (1992) (citation omitted). In the case at issue, the trial court terminated the parent-child relationship even though there is no indication in the record that the trial court took the needs and welfare of the child into consideration.
“When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the court below is supported by competent evidence.” In re K.C.W., 456 Pa. Super. 1, 9, 689 A.2d 294, 298 (1997). If there is no competent evidence to support the decree, the decree cannot stand. Id. at 9, 689 A.3d at 298. Thus, “this Court will examine the record closely in termination cases to determine whether the evidence supports a termination and will reverse where the evidence fails to support a trial court’s decree and/or whether the trial court has failed to give adequate consideration to the effect of such a decree upon the welfare of the children.” Bowman at 14-5, 647 A.2d at 219.
In cases of involuntary termination of parental rights, the party seeking the termination of parental rights bears the burden of proving by “clear and convincing” evidence that grounds exist for doing so. Adoption of Godzak, 719 A.2d 365, 367 (Pa. Super. 1998); See also Santosky v. Kramer, 455 U.S. 745 (1982). The standard of “clear and convincing” evidence is defined as testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. K.C.W., 456 Pa. Super. at 9, 689 A.2d at 298.
II. The Trial Court Must Take Into Account the Needs and Welfare of the Child Before Terminating Parental Rights.
The Pennsylvania Adoption Act provides at 23 Pa. C.S.A §2511(b) that “[t]he court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.” Even where the court determines that grounds exist for termination under 23 Pa. C.S.A. § 2511(a), the court is prohibited by 23 Pa. C.S.A. § 2511(b) from actually terminating parental rights unless the court also finds, by clear and convincing evidence, that termination serves the child’s needs and welfare:
A trial court’s inquiry . . . may not cease even when it determines that the statutory requirements of 23 Pa. C.S. § 2511(a)(1) have been met. A trial court must the inquire whether termination will clearly serve the “needs and welfare” of the children. “Courts are required not only to focus on the behavior of the parent but more importantly, are required to consider the effects of termination on the welfare of the children].” “The court must determine by a clear and convincing showing that termination of the parent-child relationship is in the best interests of the children].”
In re Bowman, 436 Pa. Super. at 13, 647 A. 2d at 218, citations omitted, quoting Adoption of Hamilton, 379 Pa. Super. 274, 280, 283, 549 A.2d 1291, 1294, 1296.
The consideration of the needs and welfare of the child involves both tangible and intangible dimensions. Matsock, 416 Pa. Super. at 538, 611 A.2d at 747. The tangible dimension includes food, clothing, and shelter, while the intangible dimension includes parental love. Id. at 538, 611 A.2d at 747. “[B]efore granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child–the love, comfort, security, and closeness–entailed in a parent-child relationship, as well as the tangible dimension. Id. at 538, 611 A.2d at 747. Moreover, where “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.” In re P.A.B., 391 Pa. Super. 79, 86, 570 A.2d 522, 525 (1990).
In a line of cases dating back to 1990, the Pennsylvania Supreme Court and Superior Court have consistently reversed orders terminating parental rights where the court below failed to give proper consideration to the effect of termination on the child’s needs and welfare. One such case is Matter of Charles E.D.M., 550 Pa. 595, 602, 708 A.2d 88, 92 (1998), where the Pennsylvania Supreme Court explained that § 2511(b) requires the trial court to consider the child’s needs and welfare as a discrete element before entering an order terminating parental rights:
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent’s explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).
Because the party seeking termination in Charles E.D.M. “did not produce any evidence concerning the effect that the termination of [the mother’s] parental rights would have on the two children,” the Court found that the trial court “did not have competent evidence to make a proper determination pursuant to Section 2511(b).” Id., at 604, 708 A.2d at 92. Accordingly, the order of termination was reversed.
Charles E.D.M. relied in its holding on the Court’s decision in Matter of Atencio, 539 Pa. 161, 650 A.2d 1064 (1994). In Atencio, the Supreme Court upheld a trial court order denying the termination of a father’s parental rights where “the record [was] devoid of evidence that termination of [the father’s] parental rights would serve [the child’s] needs and welfare.” Atencio, 539 Pa. at 168, 650 A.2d. at 1067.
Similarly, in In re E.M., 533 Pa. 115, 620 A.2d 481 (1993), the Supreme Court reversed a termination of a mentally retarded mother’s parental rights, despite clear evidence that the mother was incapable of providing proper parental care, because the trial court had failed to consider the effect of termination on the children. Noting that the mother had alleged that “a strong emotional bond exist[ed] between herself and the children,” the court stated:
“[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.” Where there has not been adequate consideration of the emotional needs of the children, a termination of parental rights cannot be sustained.
E.M., 533 Pa. at 123, 620 A.2d at 485, quoting In re P.A.B., 391 Pa. Super. at 86-87, 570 A.2d at 525-26.
The Court emphasized the need to consider the emotional bond between the parent and child:
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. . . . 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.
E.M., 533 Pa. at 123, 620 A.2d at 485.
The Superior Court has confronted this issue as well. In In re P.A.B., despite agreeing with the trial court that the parents were incapable of caring for the children, the Court reversed a termination order because of the trial court’s failure to consider the parent-child bond. The Court noted:
The Parents raised the three children for six, four, and two years respectively, until CYS found it necessary to remove them from the home. Since removal, the Parents have maintained a visitation schedule and have participated in parenting classes. While CYS presented extensive testimony that the Parents had difficulty with such functions as shopping, dressing the children, administering medication, and controlling the children’s behavior, none of this testimony negated the existence and quality of the emotional parent-child bond. Several of the social workers testified that the Parents obviously loved their children.
P.A.B., 391 Pa. Super. at 89, 570 A.2d at 527.
The court found especially significant the absence of evidence that the parent-child bond, once destroyed by termination of parental rights, would be replaced by another bond:
[T]he record only suggests in one statement in testimony that there may be a possibility that Melissa’s foster parents will adopt her. No alternative permanent solutions are on the horizon for Patrick and Mark. Thus, termination would cut off a natural and beneficial parent-child bond and would not facilitate putting another in its place.
Id. at 91, 570 A.2d at 528.
In another Superior Court case, the Court concluded that the father “has not been a good father.” Bowman, 436 Pa. Super. at 16, 647 A.2d at 220. Nonetheless, the Court held that the termination order must be reversed because “the record fail[ed] to demonstrate that a termination of [the father’s] parental rights will be in the best interests of the children.” Id. at 17-18, 647 A.2d at 220. The Court reasoned:
[I]t appears from this record that the breaking of the strong bond which exists between father and sons may well be prejudicial to the best interests of these boys. This was a factor which the trial court failed to consider. The court did not make a finding and, indeed, did not consider whether termination would serve the “needs and welfare” of the children, as required by 23 Pa. C.S. 2511(b). This, as we have observed, is an important consideration, for the irrevocable termination of parental rights can have a severe and lasting emotional impact on the children as well as on the terminated parent. Our own review of the record in this case fails to disclose evidence that the children’s “needs and welfare” will be enhanced by a termination of their father’s parental rights.
Id. at 17, 647 A.2d at 220.
As these cases illustrate, before a trial court may terminate parental rights, it must consider the bond between a parent and child as it affects the needs and welfare of the child. This is so even where there is parental incapacity, or where other grounds for termination under § 2511(a) have been proven.1 Only where the court finds, by clear and convincing evidence, that termination best serves the child’s physical and emotional needs and welfare, may the court terminate parental rights.
1Note also that in petitions brought under subsections 2511(a)(5) and (8) of the statute, the agency’s burden of proof under § 2511(a) is not met without proof that “termination of parental rights would best serve the needs and welfare of the child.” This is a discrete element of each of these two subsections that must be proven by clear and convincing evidence. See Matsock, 416 Pa. Super. at 541, 611 A.2d. at 748.