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[U] In re Relinquishment of A.Y.

Superior Court of Pennsylvania

July 3, 2013

IN RE: RELINQUISHMENT OF: A.Y., A MINOR APPEAL OF: LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES IN RE: RELINQUISHMENT OF K.Y., A MINOR APPEAL OF: LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated January 9, 2013 In the Court of Common Pleas of Lackawanna County Orphans' Court at No(s): A-35-2012, A-36-2012

BEFORE: BOWES, J., OTT, J., and FITZGERALD, J. [*]

MEMORANDUM

OTT, J.

Lackawanna County Children & Youth Services ("CYS") appeals from the orders in the Court of Common Pleas of Lackawanna County granting the motion for demurrer made by counsel for K.Y. ("Father") and joined by counsel for L.Y. ("Mother"), with respect to the petitions filed by CYS to involuntarily terminate the parental rights of Father and Mother pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b). We affirm.

Mother and Father ("the parents") are the natural parents of two female children who are the subjects of this appeal, A.Y., born in June of 2008, and K.Y., born in June of 2009. The children were removed from Mother and Father in February of 2011, [1] due to concerns of domestic violence and drug abuse by the parents.[2] N.T., 6/11/12, at 21-25. The trial court adjudicated the children dependent on March 8, 2011, and ordered the following services: Drug and alcohol and mental health evaluations for Mother and Father, a domestic violence program for Father, and an anger management program for Mother. See Order, 3/8/11.

Thereafter, CYS established Family Service Plan goals ("FSP") for the parents, which included that both Mother and Father participate in a drug and alcohol evaluation, drug and alcohol screens, a mental health evaluation, an anger management program, a domestic violence program, and a diagnostic assessment at CYS. In addition, CYS established an FSP goal for Father requiring him to participate in a psychosexual evaluation due to CYS learning of an indicated report in Northampton County that he had sexually assaulted his minor female cousin. N.T., 6/11/12, at 26, 28.

In August of 2011, Mother and Father relocated to Bethlehem, in Northampton County. N.T., 9/18/12, at 94. Since the time of the children's dependency, Mother and Father became parents of another child, who is not the subject of this appeal. The parents and their third child live with an aunt of the children in Northampton County. Id. at 26-27.

On May 11, 2012, CYS filed petitions for the involuntary termination of Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b). The trial court held a hearing on the petitions on June 11, 2012, July 24, 2012, September 18, 2012, and December 18, 2012. At the conclusion of CYS's case-in-chief on December 18, 2012, Father's counsel made an oral motion for a "demurrer, " which was joined by Mother's counsel, on the basis that CYS failed to satisfy its burden pursuant to section 2511(a)(8). The trial court granted the motion for demurrer on the record in open court, and entered the written orders to this effect on January 9, 2013. CYS filed timely notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte.

On appeal, CYS presents the following issues for our review:

I. Whether the trial court's decision is not in accordance with the evidence or was an error of law or was an abuse of discretion by granting the demurrer sought by parents' counsel?
II. Whether the trial court erred by not issuing findings of fact when the demurrer was granted?

CYS's brief at 5.

In its first issue, CYS argues that the trial court failed to apply the appropriate standard in deciding counsels' request for a demurrer, and that it erred in granting the demurrer. In this case, we apply the standard applicable for deciding a request for a nonsuit, rather than a demurrer.[3] Orphans' Court Rule 11.2 provides as follows:

Rule 11.2 Conduct of a trial
The selection of a jury, the conduct of a trial and motions after trial shall conform to the practice and procedure in jury trials in the local Court of Common Pleas.

Orphans' Court Rule 11.2.[4]

"In actions at law, a nonsuit may be granted at the close of plaintiff's case only when it is clear that plaintiff has presented insufficient evidence to maintain the action. In ruling on a nonsuit, the trial court views the evidence in the light most favorable to plaintiff and gives plaintiff the benefit of all favorable evidence and all reasonable inferences therefrom." In re Estate of LeVin, 615 A.2d 38, 39 (Pa. ...


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