Opinion
J-S87033-16 No. 880 MDA 2016
01-06-2017
IN RE: INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO: D.B.J., JR., A MINOR APPEAL OF: D.B.J., SR., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 23, 2016
In the Court of Common Pleas of Centre County
Orphans' Court at No(s): 4080 BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
D.B.J., Sr., ("Father") appeals from the order, entered in the Court of Common Pleas of Centre County, terminating his parental rights to D.B.J., Jr., ("Child") (born September 2014). We affirm.
Father has eight other children, three of whom are minors. None of these children is in Father's custody. A.A.M.'s ("Mother") parental rights to Child were also terminated; Mother did not appeal the termination order. Mother has four other children, none of whom is in her custody.
The family came to the attention of Children and Youth Services ("CYS") when Mother was pregnant with Child. Mother had a history of drug and alcohol abuse, domestic violence, and "overall instability." N.T. Termination Hearing, 10/27/15, at 12. While pregnant with Child, Mother had been going to a local hospital twice a month to receive narcotics injections for migraines; she did not inform the caregiver that she was pregnant.
CYS has been involved with Mother since 2005 with regard to her four other children. N.T. Termination Hearing, 10/27/15, at 12.
Caseworker Rebecca McKinley-Walsh testified that the day after he was born, Child had trouble feeding, had breathing difficulties and an accelerated heart rate, and suffered from tremors. When Child was two days old, the hospital started him on morphine to help with his narcotic withdrawal. Id. at 27.
At that time, McKinley-Walsh spoke with Father about his ability to care for Child, especially since Mother was regularly incapacitated from migraines. Father was unable to commit due to his work schedule. Further, McKinley-Walsh reported that the month before Child was born, Father and Mother had been evicted from their apartment. In light of CYS' concerns about drug use, Father agreed to submit to a urine test, which was positive for marijuana. Id. at 32. Additionally, McKinley-Walsh was aware that Father had served ten years in prison in New York for an armed robbery; in light of his criminal record, McKinley-Walsh expressed doubt about Father's ability to rent an apartment in certain areas.
The court adjudicated Child dependent on September 19, 2014; neither parent appealed. In November 2014, Father and Mother did secure an apartment, and they signed a reunification service agreement with CYS. Tamsey Ochs, a reunification counselor at Family Intervention Crisis Services, met with the family in October 2014 to explain the services provided and to get the parents underway on their reunification plan. Id. at 52-54. While Father was initially involved in the reunification process, he was verbally aggressive and uncooperative, he refused half of the drug tests CYS sought, and the tests he complied with were all positive for marijuana. Id. at 55-56, 67. Several of his tests were also positive for alcohol, another concern of CYS' because Father admitted that he "became more aggressive when he was drinking." Id. at 69.
Ochs also testified that for one-third of Child's scheduled visits, Father "either left for a period of time or did not get out of bed." Id. at 78. With regard to his drug and alcohol counseling, Father was discharged from the services due to a lack of cooperation. Id. at 68. Thus, with respect to reunification goals, financial stability, healthy lifestyle, stable living environment, child care, and drug and alcohol counseling, McKinley-Walsh testified that Father met none of these objectives. Id. at 59-69. Finally, Ochs testified that at the June 2, 2015 review conference, Father was agitated, and stated he no longer wanted services, did not want to hear from the agency and that the agency workers were "no longer welcome" in his home. Id. at 55. She recounted the seven-month period that Father was involved with reunification services, stating he was uncooperative and verbally aggressive with both the counselors and with Mother. Id. at 55-56.
Mother continued to work with CYS, but she would not sign a new agreement. Reunification services ended in August 2015. N.T. Termination Hearing, 10/27/15, at 55.
Caseworker Lauren Stoud testified that in addition to providing case management services to the family, she observed Child at least once each month in the foster home. At the time of the hearing, Child was fourteen months old, was developmentally on track, was beginning to walk and talk, and was progressing in his motor skills. He no longer required early intervention services. Id. at 107-08. Child has been with the foster family his entire life. Stoud testified that Child has bonded with his foster parents and has a sibling relationship with the foster parents' daughter, who is one year older than Child. She also testified that the foster parents have addressed all of Child's physical and emotional needs, as well as his medical needs, and that the foster parents are a long-term option for Child. Id. at 107-17.
Additionally, Stoud testified that Child has been without essential parental care from Father and Mother, and that she did not see any possibility of that situation being remedied any time in the near future. Id. at 109. She also testified that it was the agency's position that termination of Father's and Mother's parental rights would be in Child's best interest. Id. at 113.
Father's counsel objected, arguing that Stoud was not qualified to opine on what is in Child's best interest. N.T. Termination Hearing, at 109-11.
At the conclusion of the termination hearing, counsel for the CYS summarized its position: The conditions that gave rise to Child's placement cannot or will not be remedied by Father, Child has been in placement for over six months, and that Child's needs and welfare would be best served by termination of parental rights. Id. at 113. The trial court determined that CYS had established by clear and convincing evidence that termination of both Father's and Mother's parental rights was appropriate under 23 Pa.C.S.A. § 2511(a)(2) and (a)(5), and that termination would best serve Child's needs and welfare. 23 Pa.C.S.A. § 2511(b). Father appealed, and he raises the following issues for our review:
§ 2511. Grounds for involuntary termination
(a) General Rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:23 Pa.C.S.A. § 2511(a)(2).
. . .
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
§ 2511. Grounds for involuntary termination
(a) General Rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:23 Pa.C.S.A. § 2511(a)(5).
. . .
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
Section 2511(b) provides:
Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. 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. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.23 Pa.C.S.A. § 2511(b).
1. Whether the trial court erred by receiving hearsay evidence at the termination of parental rights trial?Brief for Appellant, at 4.
2. Whether the trial court erred by receiving opinion testimony from a CYS worker at the termination trial about the ultimate issues in this case?
3. Whether, due to a failure by CYS to meet its burden of proof, the court of common pleas erred in terminating the parental rights of Father to Child?
When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that it would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence. Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa. Super. 2007) (internal citations omitted). Additionally, when considering whether termination would promote a child's needs and welfare, the court considers both tangible needs, such as food and shelter, and the intangible, such as love, comfort, security, as well as the status of the natural parental bond. The court evaluates these and all other factors involved in the child's best interests. In re T.M.T., 64 A.3d 1119 (Pa. Super. 2013).
The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. We may uphold a termination decision if any proper basis exists for the result reached. If the trial court's findings are supported by competent evidence, we must affirm the court's decision, even though the record could support an opposite result.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Pamela A. Ruest, we conclude that Father's issues merit no relief. CYS presented clear and convincing evidence that Child was removed from Father's care for six months, the conditions which led to removal or placement continue to exist, and that Father cannot or will not remedy those conditions within a reasonable period of time. 23 Pa.C.S.A. § 2551(a)(2). Father did not comply with the reunification plan, met none of the family service plan goals, and demonstrated an incapacity to perform parental duties. Despite seven months of reunification services, Father did not meet any of his goals or progress in his parenting ability, never getting to the point of unsupervised visits. See In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002); Amended Opinion and Order, 2/23/16, at 6-7.
The Guardian ad litem for Child has filed a brief supporting the trial court's order terminating Father's parental rights.
See Amended Opinion and Order, 2/23/16; Pa.R.A.P. 1925(a) Opinion, 6/8/16.
For the foregoing reasons, we find that the trial court's decision is supported by competent evidence. Adoption of K.J., supra. We discern no abuse of discretion. In re Adoption of S.P., 47 A.3d at 826-27 (Pa. 2012). Therefore, we rely on Judge Ruest's opinions to affirm the order terminating Father's parental rights, and we direct the parties to attach those opinions in the event of further proceedings.
We note that the trial court did not err in allowing caseworker Stoud to opine on whether Father and Mother would be able to remedy the conditions that led to placement. "[A] witness, whether lay or expert, will be permitted to testify concerning the ultimate issue to be decided by the trier of fact, provided that admission of the opinion testimony would not cause confusion or prejudice." In Interest of Paul S., 552 A.2d 288, 291 (Pa. Super. 1988). Here, the judge was sitting as trier of fact; thus, there was no danger that Stoud's lay opinion based on her observations of and interactions with the family would cause confusion or prejudice. We also note that caseworker McKinley-Walsh's testimony with respect to CYS' history with the family and the history of dependency was not hearsay. McKinley-Walsh testified with respect to her personal observations of Child and parents the day after Child was born. See In re Child M., 681 A.2d 793 (Pa. Super. 1996) (evidence focused on observed behavior not hearsay).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/6/2017
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