Opinion
J-S68029-19 No. 1097 WDA 2019 No. 1098 WDA 2019 No. 1099 WDA 2019 No. 1100 WDA 2019
01-06-2020
IN THE MATTER OF THE ADOPTION OF: D.R.P. APPEAL OF: B.D., MOTHER IN THE MATTER OF THE ADOPTION OF R.Z-W.P. APPEAL OF: B.D., MOTHER IN THE MATTER OF THE ADOPTION OF: J.L.P. APPEAL OF: B.D., MOTHER IN THE MATTER OF THE ADOPTION OF: E.R.P. APPEAL OF: B.D., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered June 21, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s): 124 in Adoption 2018 Appeal from the Decree Entered June 21, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s): 124A in Adoption 2018 Appeal from the Decree Entered June 21, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s): 124B in Adoption 2018 Appeal from the Decree Entered June 21, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s): 124C in Adoption 2018 BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
B.D. (Mother) appeals from the trial court's decrees, entered in the Court of Common Pleas of Erie County, involuntarily terminating her parental rights to her four minor children, D.R.P. (born 6/2006), R.Z.-W.P. (born 1/2009), J.L.P. (born 5/2012) and E.R.P. (born 10/2015) (collectively, Children). After careful review, we affirm.
Biological father, J.P., has filed a separate appeal from the court's decrees terminating his parental rights to Children. See 1094 EDA 2019, 1095 WDA 2019 & 1096 WDA 2019.
The court appointed Attorney Christine Konzel as counsel to represent Children's legal interests in the contested termination matter. Attorney Alison Scarpitti was appointed as Children's guardian ad litem. See 23 Pa.C.S. § 2313(a) (children have statutory right to counsel in contested involuntary termination proceedings) and In re K.R., 200 A.3d 969 (Pa. Super. 2018) (en banc), but see In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) ("[D]uring contested termination-of-parental-rights proceedings, where there is no conflict between a child's legal and best interests, an attorney-guardian ad litem representing the child's best interests can also represent the child's legal interests.").
Erie County Office of Children & Youth (OCY) did not file a brief in the matter. However, OCY takes the position that "there is no discernible mistake of fact or error of law committed by the trial court which would warrant reversal of its decision." OCY Letter, 11/18/19.
Father is a truck driver who is on the road an average of five to seven days a week. Mother was a stay-at-home mother at the time of the termination hearings, who was in charge of Children while Father was working. In June 2017, while Father was in Florida for his job, D.R.P. told him in a phone call that Mother had smacked him on the back during an argument. Father called Erie County Office of Children & Youth (OCY) and relayed his concerns about Mother, the existence of deplorable conditions in the family home, and apparent domestic violence and Mother's mental health issues (diagnosis of bipolar disorder and clinical depression). In response, OCY initiated family-based mental health services for the entire family. In July 2017, a caseworker had contact with Children who had indicated that they were fearful for their safety and had suffered injuries as a result of another physical altercation at home. On July 25, 2017, OCY sought protective custody of Children; the court subsequently adjudicated Children dependent and placed them in foster care. Mother admitted that she had physically abused Children, that Children reported they are fearful of her, that she had two children removed from her care over 20 years ago, and that she has a criminal history of aggravated assault and criminal conspiracy.
Father also testified that he was advised by OCY to file a protection from abuse (PFA) petition against Mother to prevent Children from being taken away from him. N.T. Termination Hearing, 5/6/19, at 44-47. Father complied and filed the petition; however, he later withdrew the petition.
OCY formulated a dispositional plan for the family. Parents were to participate in random urinalysis testing, psychological evaluations, bonding assessments, mental health treatment, and advised to maintain safe and stable housing. The court granted Parents supervised visitation with Children. Father's visitation progressed to unsupervised for just two visits in June 2018, but returned to supervised in the summer of 2018 after OCY discovered that Father had been allowing Mother to have unauthorized and unsupervised contact with Children.
Jennifer Adams, a therapist with Parkside Psychological Associates, testified that she provided counseling with Mother's family beginning in late 2017/early 2018. N.T. Termination Hearing, 4/11/19, at 7-9. Adams focused on rapport building, assessment and treatment planning, and techniques for Parents to use to validate and support the Children. Id. at 9. Adams testified that D.R.P. had told her he witnessed violence between Mother and one of his brothers in the home, observed fights "that involved throwing things between [F]ather and [M]other," and reported that Mother had been physically abusive towards him. Id. at 19.
Doctor Peter Von Korff, an expert in the field of psychology and bonding assessments, testified that termination would be in Children's best interests. Doctor Von Korff, who conducted a psychological evaluation of Mother, concluded that she "has unmet needs for attention and gratification and emotional reward and carries often a lot of hostility about that, and that hostility sort of leaks out one way or another." Id. at 33. Doctor Von Korff also opined that while Mother was open about her flaws, she was "equally closed to any idea of change or submission to authority," describing her as a "change-resistant [and] treatment-resistant person." Id. at 34. In addition, OCY Caseworker Lisa Langer testified that Parents seemed unwilling and resistant to working on the suggested family services. Id. at 94.
Father admitted to caseworkers numerous times that Mother was abusive toward the Children, and that he was not around to protect them because of his work schedule. Id. at 108. Caseworkers often observed Parents failing to intervene when Children were fighting amongst themselves. Id. at 111. Langer testified that Mother was also verbally abusive to Children, often calling D.R.P. a "fat a*s" and telling R.Z.-W.P. he had been switched at birth because he looked "like a Mexican." Id. at 100. Mother blamed OCY, in part, for Children being placed into protective custody, calling the caseworkers liars who acted upon unfounded allegations of abuse. N.T. Termination Hearing, 5/6/19, at 33-34.
In October 2018, OCY changed the goal from reunification to adoption. On November 27, 2018, OCY filed four petitions to involuntarily terminate Mother's parental rights to Children. The court held termination hearings on April 11, 2019 and May 6, 2019. After reviewing the evidence and testimony presented at the hearings, on June 21, 2019 the court issued decrees granting termination pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b).
Mother filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. She presents the following issue for our consideration: "Did the [t]rial [c]ourt abuse its discretion in terminating [Mother's] parental rights when the record is comprised of insufficient competent evidence." Appellant's Brief, at 6.
In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. 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." It is well[-]established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation omitted). We review a trial court's decision to involuntarily terminate parental rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to determining whether the trial court's decree is supported by competent evidence. Id.
Mother's argument section of her brief discusses the sufficiency of evidence, as it relates solely to termination under 23 Pa.C.S. § 2511(b). Thus, we confine our appellate review to this specific subsection of the Adoption Act.
In In re T.S.M., 71 A.3d 251, 267 (Pa. 2013), our Supreme Court noted "if the grounds for termination under subsection (a) are met, a court 'shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.'" 23 Pa.C.S. § 2511(b). Moreover, "[i]ntangibles such as love, comfort, security, and stability are involved in the inquiry into needs and welfare of a child." In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005). Further, in In re E.M., 620 A.2d 481 (Pa. 1993), this Court held that the determination of the child's "needs and welfare" requires an examination of "the status of the natural parental bond." Id. at 485. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012), overruled on other grounds by In re Adoption of L .B.M., 161 A.3d 172 (Pa. 2017).
Mother contends that Dr. Von Korff's observations about E.R.P.'s attachment issues had more to do with his age, "rather than the actions or inactions of [M]other." Appellant's Brief, at 11. Mother also asserts that where Dr. Von Korff testified that J.L.P. and R.Z.-W.P. had happy memories of their times with Parents, termination would have a negative effect on these children. Accordingly, she claims that the doctor's findings are flawed and should not have been relied upon by the trial court to terminate her parental rights under section 2511(b).
While Dr. Von Korff testified that some of the children had positive memories of Parents, he definitively testified that the attachment orientation between Mother and Children was insecure. N.T. Termination Hearing, 4/11/19, at 42. Doctor Von Korff also opined that Mother lacked "instrumental care" in dealing with Children, failing to appropriately comfort or be sensitive to their needs. Id. at 49. D.N.P. also expressed a deep hostility towards Mother for her abusive behavior, which Dr. Von Korff testified was caused by a "pathological influence on him [by Mother]." Id. at 55. Finally, Dr. Von Korff opined that severing ties to Parents would be recommended where the family environment "as a whole was destructive to their attachment security and [the Children's] emotional well-being." Id. at 58.
In addition to Dr. Von Korff's testimony, caseworker Shannon Spiegel and OCY supervisor Julie Lafferty testified that due to Children's unhealthy bond with parents, terminating their parental rights would be in Children's best interests and that an adoptive resource was necessary for Children to live "healthy, happy, successful lives." Id. at 116, 123, 139.
After reviewing the parties' briefs, relevant case law and the certified record on appeal, we affirm the trial court's decrees terminating Mother's parental rights to Children on the basis of the trial court opinion authored by the Honorable Shad Connelly. Judge Connelly's opinion thoroughly analyzes the issue raised on appeal by Mother, supporting termination with reference to relevant testimony and evidence from the two-day hearing. Specifically, termination is proper under section 2511(b) where several OCY employees and Dr. Von Korff testified that termination would be in Children's best interests where Children need security and dependency which they have not been able to receive from Mother. Further, Children are thriving in their pre-adoptive homes and have positive attachments to their foster families. See In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) ("Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents.").
Accordingly, we discern no abuse of discretion or error of law by the trial court where its decrees are supported by competent evidence. In re A.R., supra. We instruct the parties to attach a copy of Judge Connelly's opinion in the event of further proceedings in the matter.
Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/6/2020
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