Clear and Convincing Evidence, Not Credibility Alone: Justice Donohue’s Dissent on Termination of Parental Rights in In re E.D.A. III

Clear and Convincing Evidence, Not Credibility Alone: Justice Donohue’s Dissent on Termination of Parental Rights in In the Interest of E.D.A. III

I. Introduction

This commentary examines Justice Donohue’s dissenting statement in a cluster of consolidated cases before the Supreme Court of Pennsylvania, led by In the Interest of: E.D.A., III, a Minor; Appeal of: E.A., Jr., Father, Nos. 15–24 MAP 2024 (Pa. Mar. 26, 2025). The underlying proceedings involve the involuntary termination of the parental rights of a father (E.A., Jr.) and two mothers (T.M.A. and T.W.A.) to five minor children. The York County Office of Children, Youth and Families (“CYF”) sought termination under several subsections of Pennsylvania’s Adoption Act, 23 Pa.C.S. § 2511. The York County Orphans’ Court granted the petitions; the Superior Court affirmed. The Supreme Court granted allowance of appeal on a tightly framed question about the sufficiency of the evidence, but the majority later dismissed the appeal as improvidently granted (DIG), leaving the Superior Court’s decision intact. Justice Donohue dissented from the DIG. Her opinion is not a binding precedent, but it articulates a significant and carefully structured vision of what “clear and convincing evidence” must mean in termination-of-parental-rights (TPR) cases, and how appellate courts should police that standard. She argues that trial courts cannot satisfy the clear and convincing evidence requirement simply by deeming a single caseworker “credible” while ignoring or failing to engage with multiple other witnesses whose specific, professional testimony directly contradicts the caseworker’s generalized assertions. The dissent also criticizes the trial court’s cursory treatment of the statutory “needs and welfare” analysis under § 2511(b), especially in light of the Pennsylvania Supreme Court’s recent decision in Interest of K.T., 296 A.3d 1085 (Pa. 2023), which demands a child-focused, child-specific, and bond-sensitive inquiry. Although the majority did not reach the merits, Justice Donohue’s opinion is an important statement about:
  • the constitutional and statutory role of the “clear and convincing” standard,
  • the distinction between “credibility” and “competent evidence,”
  • the limits of appellate deference in TPR appeals, and
  • the proper structure and depth of § 2511(b) analyses after Interest of K.T.

II. Case Background and Procedural History

A. Parties and Children

The appeals involve five minor children:
  • E.D.A., III
  • B.W.
  • A.B.A.
  • R.M.A.
  • E.J.A.
The parents are:
  • Father: E.A., Jr.
  • Mothers:
    • T.M.A. (Mother of at least some of the children)
    • T.W.A. (Mother of the remaining children)
For purposes of the dissent, Justice Donohue refers to the parents collectively as “Parents.”

B. CYF Involvement, Dependency, and Services

The children were adjudicated dependent and removed from Parents’ care. CYF developed a permanency plan with numerous goals for Parents, including:
  • obtaining and maintaining suitable housing,
  • achieving financial stability,
  • engaging in mental health and substance abuse treatment,
  • addressing parenting concerns, including physical discipline, and
  • participating in supervised visitation and related services.
Parents were ordered to work with Pressley Ridge, a service provider that supplied:
  • a family advocate (focused heavily on home conditions, finances, and reunification goals), and
  • a family therapist (addressing parenting skills, mental health, and family dynamics).
Over time, multiple service providers—including Pressley Ridge staff and Mother’s drug counselor—reported substantial progress. Notably:
  • Pressley Ridge’s family advocate testified that by January 10, 2022, Parents’ home was appropriate for visitation and reunification, and that services could be closed because the family no longer needed advocacy.
  • The Pressley Ridge therapist testified that the home was appropriate and that Parents had made “significant progress,” particularly in relation to earlier physical discipline concerns.
  • Mother’s substance abuse counselor testified that Mother was compliant, had successfully completed intensive treatment, and continued voluntarily in advanced outpatient care.
  • Father had successfully completed methadone treatment in November 2021.

C. Termination Petitions and Orphans’ Court Decision

On January 19, 2022, CYF filed petitions to terminate Parents’ rights to all five children under:
  • § 2511(a)(1) (refusal or failure to perform parental duties),
  • § 2511(a)(2) (repeated and continued incapacity or neglect),
  • § 2511(a)(5) (child removed for at least six months; conditions persist; services unlikely to remedy within reasonable time; termination best serves needs and welfare), and
  • § 2511(a)(8) (child removed for at least twelve months; conditions persist; termination best serves needs and welfare, for the four older children).
The trial court ultimately cited § 2511(a)(1), (2), (5), (8), and (b) in its written opinions, but substantively analyzed only (a)(5), (a)(8), and (b). Key points in the trial court’s reasoning, as described and critiqued by the dissent, included:
  • a heavy focus on early-case conditions—unsanitary housing, clutter, odor, and pests—based on testimony from 2021 hearings,
  • a conclusion that Parents lacked “stable” employment and financial stability, based largely on job changes and purported documentation issues, and
  • a finding that Parents had not adequately addressed physical abuse concerns arising from 2020 incidents.
The court found a “finding of abuse” related to older allegations of physical discipline (use of a belt, slapping) and cited Parents’ “consistent denials” of “anything happened” as an additional reason for termination. Under § 2511(b), the court recognized that the children were bonded with Parents and enjoyed visits, but concluded termination was in their best interests because:
  • the children were safe in their foster placement,
  • they were receiving therapy, and
  • some “troubling behaviors,” suggesting trauma, had been reported.
The court did not conduct a child-by-child needs and welfare analysis and did not meaningfully grapple with evidence about the emotional harm that termination would likely cause.

D. Superior Court Affirmance and Supreme Court Review

The Superior Court affirmed, focusing—like the trial court—on the testimony of one CYF caseworker (“CYF Caseworker”). It treated the caseworker’s views on housing, finances, and unresolved abuse concerns as adequate to satisfy the clear and convincing evidence standard under § 2511(a)(5) and to support the § 2511(b) findings. The Supreme Court granted allocatur to answer a narrow but important question:
Does clear and convincing evidence exist to support a termination of parental rights decision where the trial court based its decision upon the testimony of one witness without acknowledging the competent testimony of multiple witnesses who provided testimony that directly contradicted that witness' testimony?
After full briefing and argument on November 20, 2024, the majority dismissed the appeal as improvidently granted. Justice Donohue dissented, arguing that:
  • the record and trial court opinions demonstrate a misapplication of the clear and convincing evidence standard,
  • the trial court’s near-exclusive reliance on one caseworker’s generalized, uncorroborated testimony cannot support termination, and
  • the Court should either reverse, or at minimum vacate and remand for a proper weighing of all competent evidence under §§ 2511(a) and (b).

III. Summary of Justice Donohue’s Dissent

Justice Donohue’s dissent has three core themes:
  1. Clear and convincing evidence cannot be reduced to a bare credibility determination. The dissent insists that even if a trial court finds a witness “credible,” that testimony must still be competent—rooted in specific, corroborated facts of record. Conclusory, vague, or contradicted assertions cannot, standing alone, satisfy the highest civil standard of proof in a proceeding that she repeatedly likens to the “civil equivalent to the death penalty.”
  2. Appellate courts must test findings against the record, especially in TPR cases. While acknowledging that appellate courts do not reweigh credibility, the dissent stresses that appellate review of TPR decisions includes a duty to:
    • ensure factual findings are supported by competent evidence, and
    • vacate or reverse when they are not.
    Deference to the trial court does not extend to accepting findings based solely on non-specific, uncorroborated testimony that is directly contradicted by multiple professional witnesses.
  3. The trial court’s § 2511(a) and (b) analyses were legally deficient. On § 2511(a), Donohue contends that the court:
    • improperly focused on early-case housing conditions and poverty, contrary to statutory guidance that environmental factors beyond the parent’s control cannot be the sole basis for termination,
    • mischaracterized Parents’ employment and finances despite substantial evidence of continuous work, and
    • ignored uncontradicted professional testimony that physical abuse concerns had been substantially addressed.
    On § 2511(b), she argues that the court:
    • used a “truncated” analysis,
    • failed to examine each child’s “developmental, physical and emotional needs and welfare” as required by Interest of K.T., and
    • disregarded powerful evidence of deep bonds and the likely severe emotional harm from severance.
In Justice Donohue’s view, CYF did not meet its burden under § 2511(a), so the court should never have reached § 2511(b). Even assuming arguendo that § 2511(a) grounds existed, she concludes that CYF also failed to demonstrate under § 2511(b) that termination would serve the children’s needs and welfare by clear and convincing evidence. The dissent would vacate the Superior Court’s affirmance and remand to the Orphans’ Court with instructions to:
  • re-evaluate the case using only competent, record-supported evidence,
  • consider all testimony from the termination hearings, not just historical snapshots, and
  • apply Interest of K.T. correctly in a full § 2511(b) analysis.

IV. Detailed Analysis

A. The Central Legal Question: Can “Clear and Convincing” Rest on a Single, Uncorroborated Witness?

The allocatur question goes to the heart of how TPR cases should be adjudicated: If a trial court:
  • hears conflicting evidence from multiple professionals and service providers,
  • explicitly credits only the testimony of one agency caseworker, and
  • does not acknowledge or engage with the contrary testimony,
can that alone satisfy the constitutionally required clear and convincing standard? Justice Donohue’s answer is no, for two intertwined reasons:
  1. Credibility ≠ Competency. A witness may be honest and believable, yet offer testimony that is too vague, non-specific, or contradicted to qualify as “competent evidence” capable of bearing the weight of clear and convincing proof.
  2. Clear and convincing evidence requires more than a “close call.” When supported, detailed professional testimony points strongly in one direction (here, toward reunification progress), and a single caseworker offers generalized opinions to the contrary without specific, proven factual support, the evidence at most yields a close call. Under Pennsylvania case law, a “close call” is inconsistent with the idea of being “without hesitancy” about the truth of the facts in issue.
Justice Donohue stresses that if the evidence is nearly in equipoise—or if doubts remain—the high burden of proof is not met, and parental rights must not be terminated.

B. Precedents and Authorities Shaping the Dissent

1. Constitutional Framework: Santosky, Addington, and Winship

The dissent grounds its approach in U.S. Supreme Court precedent:
  • Santosky v. Kramer, 455 U.S. 745 (1982) Santosky holds that due process requires the State to prove grounds for terminating parental rights by “clear and convincing evidence.” The Court recognized that:
    • parents have a fundamental liberty interest in the care, custody, and control of their children, and
    • when the State seeks to “destroy weakened familial bonds,” it must provide “fundamentally fair procedures.”
    Justice Donohue quotes Santosky’s observations that:
    • parents’ rights do not “evaporate” merely because they are not model parents or have temporarily lost custody, and
    • the heightened burden of proof is designed to reduce the risk of erroneous terminations.
  • Addington v. Texas, 441 U.S. 418 (1979), and In re Winship, 397 U.S. 358 (1970) These cases explain that the purpose of a burden of proof is to instruct the factfinder about how confident society expects them to be in their factual conclusions. Justice Donohue uses this to underscore that in TPR cases, society requires especially high confidence—approaching certainty short of the criminal standard—before severing the parent-child relationship.

2. Pennsylvania Termination Jurisprudence

The dissent relies heavily on recent Pennsylvania Supreme Court decisions that have elevated scrutiny in TPR cases:
  • In re T.R., 465 A.2d 624 (Pa. 1983) Pennsylvania adopted the clear and convincing standard for TPR shortly after Santosky. This forms the baseline for the dissent’s state-law analysis.
  • In re Adoption of C.M., 255 A.3d 343 (Pa. 2021) C.M. is central. It emphasizes that in TPR cases:
    • “Specificity and corroboration are crucial to the foundation of competent evidence.”
    • “Credibility is not a substitute for competency.”
    • Unsupported opinion is not competent evidence, even if the witness is found credible.
    Justice Donohue uses this framework to argue that the CYF Caseworker’s generalized beliefs about housing, finances, and unresolved abuse are not specific or corroborated, and thus cannot sustain the decree.
  • In re Adoption of S.P., 47 A.3d 817 (Pa. 2012) and Matter of Adoption of Charles E.D.M., II, 708 A.2d 88 (Pa. 1998) (with Adoption of Atencio, 650 A.2d 1064 (Pa. 1994)) These cases describe the standard of appellate review:
    • appellate courts defer to trial courts’ credibility determinations, but
    • must examine whether the factual findings are supported by competent evidence.
    Charles E.D.M. is especially important: the Court there reversed a TPR decree for lack of competent record evidence—precisely what the dissent argues is required here.
  • Interest of S.K.L.R., 256 A.3d 1108 (Pa. 2021) S.K.L.R. cautions about “laundry lists” of goals imposed on parents and stresses that:
    • trial courts must carefully consider all evidence at termination hearings,
    • the burden on the agency is exacting, and
    • the goals set by child welfare agencies must be realistic and relevant.
    Justice Donohue invokes this to highlight that Parents here worked diligently through an extensive service plan, and that trial courts should not lightly discount such efforts.
  • Hiller v. Fausey, 904 A.2d 875 (Pa. 2006) Hiller recognizes the constitutional dimension of parental rights under Pennsylvania law. The dissent uses it to reiterate the gravity of permanently severing the parent-child relationship.
  • Interest of N.B.-A., 224 A.3d 661 (Pa. Super. 2020) Quoted for the classic formulation of “clear and convincing evidence” as evidence that is “so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Justice Donohue uses this definition to argue that any case characterized as a “close call” cannot, by definition, meet that standard.
  • Interest of K.T., 296 A.3d 1085 (Pa. 2023) This recent decision significantly rearticulates the requirements of § 2511(b):
    • The analysis must be child-focused and must consider all three dimensions of “needs and welfare”: developmental, physical, and emotional.
    • Courts must examine each child’s specific needs and circumstances on a case-by-case basis.
    • Bond analysis is “but one part” of § 2511(b); the question is whether the bond is “necessary and beneficial.”
    • Court must also consider permanency and time in care.
    • Crucially: where a bond exists, termination requires clear and convincing evidence that severing the bond will serve the child’s needs and welfare; the analysis cannot be truncated or based solely on the existence of some adverse impact.
    The dissent relies heavily on K.T. to show that the trial court’s very brief, generalized § 2511(b) discussion is legally inadequate.

C. Clear and Convincing Evidence and the Role of Competent Evidence

Justice Donohue repeatedly ties the discussion back to the nature of the clear and convincing standard in TPR cases.
  • Heightened scrutiny because rights are fundamental. Parental rights are a fundamental liberty interest. Because termination is a permanent and drastic remedy—the “civil equivalent to the death penalty”—the law requires a high level of certainty before foreclosing the possibility of reunification.
  • Clear and convincing is the highest civil burden. It is stricter than a “preponderance of the evidence” (more likely than not), but less strict than “beyond a reasonable doubt.” It demands not just that one side’s evidence slightly outweighs the other’s, but that the evidence supporting termination is so strong that the trier of fact has no real hesitancy about the operative facts.
  • Competent, specific, and corroborated evidence is required. The dissent, echoing C.M., establishes a crucial hierarchy:
    • First, evidence must be competent: grounded in specific, observable facts, rather than speculation or generalized impressions.
    • Second, where possible it should be corroborated by other sources or professionals (e.g., service providers, therapists, advocates).
    • Third, credibility determinations matter only within the universe of competent evidence; they cannot transform non-specific, contradicted assertions into a clear and convincing evidentiary foundation.
Justice Donohue critiques the lower courts for:
  • reciting the clear and convincing standard in form, but
  • functionally treating the trial court’s decision as insulated by deference to its “credibility” finding regarding the CYF Caseworker,
  • without asking whether the caseworker’s testimony was, in fact, competent and corroborated.

D. Application to § 2511(a): Housing, Financial Stability, and Abuse Allegations

1. Housing and “environmental factors”

Under § 2511(a)(5) and (8), CYF had to prove that the conditions leading to removal continued to exist and were unlikely to be remedied within a reasonable period of time. The trial court’s core concerns: unsanitary and unsafe housing (dog feces, bugs, clutter, odors, needed repairs). Justice Donohue’s critique:
  • Reliance on stale evidence. The trial court leaned heavily on testimony from early 2021, more than a year before the termination hearing, when the home did have serious cleanliness and pest issues.
  • Failure to weigh more recent—and more relevant—evidence. Multiple professionals with extensive, ongoing involvement testified at the January 2022 permanency review and April 2022 termination hearings that:
    • the home was appropriate for children to visit and live in,
    • the living conditions met reunification standards, and
    • all necessary improvements had been completed.
    The family advocate’s “sole goal” was to ensure the home was appropriate for reunification; she testified that goal was fully met and recommended services be closed.
  • Context of environmental factors and poverty. § 2511(b) expressly states:
    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.
    Parents here were renters; some of the repairs (e.g., structural issues) were the landlord’s responsibility and in areas not accessible to children. CYF did not present evidence that these conditions created an actual safety risk in the child-occupied areas.
  • Caseworker’s limited observation and generalized concerns. The CYF Caseworker identified:
    • dog feces,
    • space heaters, and
    • needed repairs,
    but:
    • admitted the children had beds,
    • acknowledged Parents had maintained the same rental since October 2020, with no eviction history, and
    • did not explain how the cited issues endangered the children or negated the suitability of the home as judged by multiple other professionals.
    Her testimony, in the dissent’s view, lacked the specificity and corroboration required to outweigh the detailed assessments of the Pressley Ridge team and other providers.
For Justice Donohue, the record—viewed with the clear and convincing standard in mind—cannot sustain a finding that unsuitable housing continued to exist and could not be remedied, particularly where:
  • service providers charged with evaluating the home repeatedly declared it appropriate, and
  • remaining problems were either minor, outside Parents’ control, or in non-child-accessible areas.

2. Financial stability and employment

The trial court heavily faulted Parents for lack of “financial stability,” based almost entirely on the CYF Caseworker’s opinions. Key factual points:
  • The CYF Caseworker testified that:
    • Mother and Father changed jobs frequently, so she did not believe they had “stable employment,” and
    • Parents did not provide “sufficient” documentation of employment and expenses.
  • On cross-examination and in other testimony:
    • the caseworker admitted Parents provided pay stubs at times (e.g., from FedEx),
    • Parents testified that they ensured any job change was accompanied by a new job starting within a few days, resulting in almost no gaps in income over the preceding year, and
    • Mother explained that some job changes were necessitated by conflicts with CYF-imposed testing and treatment schedules.
  • Pressley Ridge professionals confirmed that:
    • Parents were continuously employed, and
    • income verification had been provided via Pressley Ridge.
  • CYF had not actually asked for documentation of expenses but nonetheless criticized Parents for not providing it.
Justice Donohue’s conclusions:
  • Changing jobs, without more, does not equal financial instability, especially where there are virtually no gaps in income.
  • It is improper to fault Parents for failing to meet documentation requirements that CYF never clearly imposed.
  • Pressley Ridge professionals—tasked with evaluating readiness for reunification—considered Parents financially stable enough that advocacy services could be closed.
Thus, once again, the only “evidence” of financial instability is the caseworker’s generalized belief, contradicted by more specific, professional testimony. Under the clear and convincing standard, the dissent deems this insufficient.

3. Physical abuse allegations

The case also involved serious allegations of physical abuse, primarily:
  • B.W. being hit with a belt, and
  • slapping resulting in injury to E.l.A. (blood under the tongue, crying, neighbors hearing).
Key procedural facts:
  • The allegations dated back to incidents before the children were adjudicated dependent in 2020.
  • CYF did not complete its investigation until January 11, 2022—over a year after the initial reports—apparently in part because Parents were reluctant to submit to police interviews while seeking criminal counsel (a right they possessed).
  • CYF eventually issued “indicated” findings of abuse as to both Parents in January 2022.
  • On March 10, 2022, the trial court made a finding of abuse related to those incidents.
  • Parents were never criminally charged.
Justice Donohue’s concerns are several:
  • Distortion arising from delayed investigation. By postponing the formal abuse determination for over a year, CYF effectively froze the narrative at the time of the original allegations, obscuring the progress Parents made in the interim.
  • Unaddressed evidence of progress. At the termination hearing, the Pressley Ridge therapist, who met with Parents weekly, testified that:
    • the physical abuse incidents were about “almost two years” in the past,
    • Parents had made “significant progress” since then, and
    • all advocacy services should be closed.
    Parents were actively engaged in mental health treatment, with any service interruptions attributed to insurance issues, not non-compliance.
  • Failure of the trial court to engage with this testimony. The trial court simply declared that the abuse issue had not improved “for a year and a half, two years,” while ignoring specific professional evidence to the contrary.
  • Lack of corroboration for CYF Caseworker’s pessimistic assessment. The caseworker’s belief that Parents had not sufficiently progressed in addressing abuse concerns was not supported by concrete evidence and was inconsistent with the therapist’s testimony. Moreover, the caseworker’s own knowledge of Parents’ therapy was shaky and inconsistent.
Justice Donohue concludes that there is “a complete lack of competent evidence” to support a finding that Parents failed to make progress on physical abuse concerns, and thus a failure of proof under § 2511(a).

4. “Close calls” and the meaning of clear and convincing

CYF itself described the case as a “close call” in its brief, acknowledging that the trial court could have created a “cleaner record” and suggesting a remand to “clean things up.” Justice Donohue seizes on this:
  • By definition, a “close call” implies hesitancy or doubt about the operative facts.
  • Under Interest of N.B.-A., clear and convincing evidence exists only when the factfinder can reach a conviction “without hesitancy.”
  • Therefore, characterizing a case as a “close call” is tantamount to conceding that the clear and convincing threshold is not met.
The dissent thus rejects the notion that deference should insulate such cases from reversal. If the result is truly a close call, the law requires that parental rights not be terminated.

E. Application to § 2511(b): Needs, Welfare, and Bonds

Section 2511(b) directs the court to:
give primary consideration to the developmental, physical and emotional needs and welfare of the child.
Under Interest of K.T., this requires:
  • a child-centered analysis,
  • consideration of all three categories of needs (developmental, physical, emotional),
  • a case-by-case, child-specific inquiry, and
  • where a bond exists, a determination whether that bond is “necessary and beneficial” to the child, and whether severing it serves the child’s needs and welfare.
Justice Donohue identifies multiple deficiencies in the trial court’s § 2511(b) analysis:
  • Truncated reasoning. With respect to Father, the trial court devoted only a single paragraph to § 2511(b). The analysis for Mother was similarly brief. This brevity, in a case involving two parents and five children, is incompatible with K.T.’s requirements.
  • Failure to perform child-by-child analysis. The trial court did not examine each of the five children’s specific developmental, physical, and emotional needs or how termination would affect each child’s welfare.
  • Concession that bonds exist, but no serious examination of their importance. The trial court acknowledged:
    • the children are bonded with Parents, and
    • they enjoy visits.
    Nevertheless, it concluded that termination was appropriate because the children were safe with their foster mother, attending therapy, and had exhibited “troubling behaviors” that suggested trauma. It did not connect those “troubling behaviors” to Parents, especially given that parental contact was strictly supervised.
  • Overlooking detailed evidence of likely emotional harm from termination. Multiple professionals and attorneys for the children gave powerful testimony:
    • Pressley Ridge witnesses:
      • described B.W.’s anxiety, suicidal ideation, and distress about not returning home,
      • testified that the children had “healthy relationships” with Parents, and
      • opined that ongoing contact with Parents would be beneficial.
    • Children’s legal counsel (distinct from the guardian ad litem (GAL)) uniformly reported:
      • B.W. was “very black and white” about wanting to return home and that termination would have serious emotional effects.
      • E.D.A. was bonded to Parents, was comfortable with foster mother, but wanted more time for Parents to solidify their progress and opposed termination.
      • El.A. opposed termination, and his counsel believed termination would be detrimental to his overall well-being.
      • R.A. had a strong bond with Parents, especially Mother, and counsel was “very concerned” about the impact of termination.
      • A.A., being very young, would be affected vicariously through the impact on siblings.
    The trial court gave no meaningful weight to this testimony in its written § 2511(b) analysis.
  • Over-reliance on the CYF Caseworker’s contrary opinion. The sole testimony cutting against this mass of evidence was the CYF Caseworker’s bare assertion—based on only two observed visits—that termination would not have long-term adverse effects on the children. For Justice Donohue, this unsupported opinion cannot, by itself, amount to clear and convincing evidence that severing existing bonds is in the children’s best interests.
Under K.T., when bonding exists, termination is permissible only if clear and convincing evidence shows the bond is not “necessary and beneficial” and that severance will itself serve the children’s needs and welfare. Justice Donohue finds no such evidence here, and thus concludes that the § 2511(b) burden is unmet.

F. Appellate Review, Credibility Determinations, and the DIG

Justice Donohue also addresses:
  • Scope of appellate review. She reaffirms that appellate courts:
    • do not reweigh credibility, but
    • must verify that findings are supported by competent evidence,
    • especially when a fundamental right is at stake.
    The dissent warns against conflating deference to credibility findings with abdication of the duty to examine whether those findings actually rest on competent, record-supported testimony.
  • Bias concerns. In a notable passage, another CYF employee apparently challenged the impartiality or motivation of the CYF Caseworker. The trial judge:
    • publicly defended the caseworker as overworked and frustrated,
    • stated he would not allow such criticism to create a “victim mentality” for Parents, and
    • essentially declined to consider testimony calling the caseworker’s neutrality into question.
    This episode deepens the dissent’s concern that the trial court aligned itself with the agency rather than maintaining strict neutrality, further justifying close appellate scrutiny of the evidentiary basis for termination.
  • Dismissal as improvidently granted (DIG). By dismissing the appeal, the majority left in place the termination orders and the Superior Court’s affirmance without answering the important legal question on which it had granted review. Justice Donohue criticizes this outcome as:
    • effectively endorsing a practice whereby “clear and convincing evidence” can be deemed satisfied by a single caseworker’s testimony, even when contradicted by multiple other professionals, and
    • missing an opportunity to clarify, for the “bench and bar,” the proper role of evidence and credibility in TPR cases.
    She urges that if there is a legal basis to uphold this termination on this record, it should be explained in a reasoned opinion—not left unexplained through a DIG.

V. Complex Concepts Simplified

1. “Clear and convincing evidence” vs. other standards

Three common burdens of proof are:
  • Preponderance of the evidence (“more likely than not”): used in most civil cases. If the evidence tips even slightly in favor of one side, that side wins.
  • Clear and convincing evidence: higher than preponderance. The evidence must be very strong, leaving the factfinder with no real hesitation about the truth of the critical facts. This is required in TPR cases because of the fundamental rights at stake.
  • Beyond a reasonable doubt: the highest standard, used in criminal cases.
In TPR cases, “close calls” should not result in termination because a close call means the factfinder is hesitant or uncertain—which contradicts the very definition of clear and convincing evidence.

2. “Competent evidence” vs. “credibility”

  • Competent evidence is evidence that:
    • is legally admissible,
    • relates directly to the issues in the case,
    • is specific (not vague or generalized), and
    • is preferably corroborated by other evidence.
  • Credibility refers to whether the factfinder believes a witness is telling the truth.
A critical insight from In re Adoption of C.M., embraced by the dissent, is that:
“Credibility is not a substitute for competency.”
Even a very believable witness cannot carry the clear and convincing burden if the witness’s testimony is:
  • non-specific,
  • unsubstantiated, or
  • contradicted by more detailed professional evidence.

3. “Indicated” child abuse findings

Under Pennsylvania child welfare law:
  • An “indicated” report means that the agency has found evidence meeting a relatively low threshold to suspect abuse.
  • It is not the same as a criminal conviction and does not require proof beyond a reasonable doubt.
In this case, CYF found Parents “indicated” for physical abuse more than a year after the alleged incidents. Justice Donohue emphasizes that regardless of the “indicated” finding:
  • the TPR court still must find current grounds for termination by clear and convincing evidence, and
  • evidence that Parents have addressed the underlying issues since the time of the incidents must be weighed.

4. Procedural concepts: dependency, permanency review, GAL and legal counsel

  • Dependency: A child is declared “dependent” when a court finds the child needs care or control that the parents are not then providing. The State may remove the child and provide services to work toward reunification.
  • Permanency review hearings: Regular hearings where the court reviews parents’ progress, children’s status, and whether the goal should remain reunification or change to adoption or another permanent arrangement.
  • Termination of parental rights (TPR): A separate proceeding where the court decides whether to permanently sever the legal relationship between parent and child, paving the way for adoption.
  • Guardian ad litem (GAL) vs. legal counsel for the child:
    • The GAL represents the child’s “best interests” (what is objectively believed to be best for the child).
    • Legal counsel represents the child’s expressed wishes.
    • In this case, some children’s counsel strongly opposed termination, emphasizing the children’s wish to return home and likely emotional damage from severance, while the GAL supported termination.

VI. Impact and Future Significance

Although Justice Donohue’s dissent is not binding precedent, it is likely to exert influence in several ways.

A. Guidance to Trial Courts

Trial courts in Pennsylvania TPR cases can draw from this dissent:
  • Evidence must be granular and up-to-date. Courts should:
    • avoid over-reliance on early-case snapshots, especially when later evidence shows progress, and
    • focus on conditions as of the time of the termination hearing.
  • Multiple professional perspectives must be weighed. Courts should meaningfully engage with testimony from therapists, advocates, counselors, and other service providers—not just agency caseworkers.
  • Environmental and financial factors require careful handling. Poverty, rental housing problems, and job changes cannot, by themselves, support termination if they are beyond the parents’ control or do not clearly endanger the children, in light of § 2511(b)’s explicit limitation.
  • § 2511(b) demands a rigorous, child-specific inquiry. After K.T., courts should:
    • analyze each child’s developmental, physical, and emotional needs,
    • consider the nature and quality of each child’s bond with each parent, and
    • explicitly address testimony about the emotional impact of termination.

B. Guidance to Appellate Courts and Practitioners

For appellate courts and advocates:
  • Deference has limits. Appellate courts must:
    • respect trial courts’ credibility findings, but
    • scrutinize whether those findings rest on competent, corroborated evidence that truly reaches the clear and convincing threshold.
  • Record-building is crucial. Practitioners should:
    • ensure extensive, detailed testimony from service providers is preserved,
    • document parents’ progress with specificity, and
    • highlight inconsistencies or lack of direct knowledge in agency witnesses’ testimony.
  • Framing “close calls.” The dissent invites appellate briefs to argue that:
    • if a TPR case is truly a “close call,” it necessarily fails the clear and convincing standard, and
    • termination must be reversed or vacated in such scenarios.

C. Substantive Child-Welfare Law and Poverty

Justice Donohue’s focus on environmental factors and poverty echoes broader concerns in child welfare:
  • Termination should not be the default response to poverty or substandard housing where parents:
    • are consistently employed,
    • maintain stable residence, and
    • cooperate with services to improve conditions.
  • Agencies and courts must distinguish between:
    • dangerous neglect, and
    • difficult circumstances of low-income families that may be ameliorated through support rather than severance.
The dissent thus reinforces the statutory command that environmental factors beyond parents’ control cannot be the sole basis for termination, and urges courts to give due weight to remediation efforts.

VII. Conclusion

Justice Donohue’s dissent in In the Interest of: E.D.A. III offers a detailed, principled vision of how the clear and convincing standard should operate in Pennsylvania termination-of-parental-rights cases. Key takeaways include:
  • The fundamental nature of parental rights demands that TPR decisions rest on specific, corroborated, competent evidence, not on generalized impressions or agency convenience.
  • “Credibility” findings about a single caseworker cannot substitute for a robust evidentiary foundation, particularly when multiple professionals with extensive involvement offer contrary testimony.
  • When evidence is a “close call,” the clear and convincing standard is not met; in such circumstances, termination is legally impermissible.
  • Under § 2511(b), and especially after Interest of K.T., courts must undertake a thorough, child-specific analysis of each child’s developmental, physical, and emotional needs, and explicitly evaluate whether severing existing bonds is necessary and beneficial—not merely convenient for the system.
  • Appellate courts retain a vital role in ensuring that TPR decrees are grounded in competent evidence; deference does not mean abdication, particularly in cases described as the “civil equivalent to the death penalty.”
While the majority’s DIG leaves the lower courts’ rulings formally undisturbed, Justice Donohue’s dissent provides a roadmap for future litigants, trial judges, and appellate panels. It underscores that in the most consequential of civil cases—the permanent severance of the parent-child bond—Pennsylvania law demands nothing less than clear, direct, weighty, and convincing proof, tested rigorously against the full record.

Case Details

Year: 2025
Court: Supreme Court of Pennsylvania

Judge(s)

Donohue, Christine

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