Loading...
HomeMy WebLinkAbout2005-70 Adoption INRE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ADOPTION OF AP., BORN 7/31/2001 NO. 70 ADOPTIONS 2005 ADOPTION OF AP., BORN 2/16/2002 NO. 71 ADOPTIONS 2005 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., June , 2006 On July 25, 2005 Cumberland County Children and Youth Services filed a petition to involuntarily terminate mother's parental rights to these two sisters. 1 Beginning on August 31, 2005 and on eight other days over the next 5 months we held hearings on the petition. On April 3, 2006 after reviewing the notes of testimony as well as the briefs filed by all parties we found that grounds for termination of mother's parental rights had been established under Section 2511 (a )(8) of the Adoption Act. 2 Mother has filed this timely appeal from that order. On appeal she has raised several issues which may be summarized as follows: 1) the evidence was insufficient to justify the order of termination; 2) we erred in reopening the record to take additional testimony after closing arguments; 3) we erred in allowing certain expert testimony; and 4) the Juvenile Ace (42 Pa. C.S.A S 6301 et seq) is unconstitutional. We will address those issues in the opinion that follows. 1 Father has voluntarily agreed to relinquish his parental rights conditioned upon the termination of mother's. 223 Pa. C.S.A. ~ 2511 (a)(8). 342 Pa. C.S.A. ~ 6301 et seq. NO. 70 ADOPTIONS 2005 - 71 ADOPTIONS 2005 FACTUAL BACKGROUND Mother and her former husband are the natural parents of four children, including these two girls. In December of2003 mother had a fifth child to her paramour. Feeling overwhelmed, she asked the agency to put her four older children into placement.4 However, rather than place the children, the Agency made arrangements for their father and the paternal grandmother to keep the children for a few days to give mother a break. By May of2004 there were numerous agencies providing services to the family. On May 11,2004 an interagency meeting was held to discuss major concerns with regard to the children's well being. First and foremost among those concerns was mother's failure to follow through with servicess Despite having been invited to attend the meeting, mother did not do so. After the meeting, the agency caseworker and the family based team went out to meet with mother to discuss their concerns. Rather than work to address those concerns, mother stated that she no longer wanted her four older children, desiring instead to start a new life with her boyfriend and their new baby. As a result of the May 11, 2004 meeting the four older children were placed by the Agency.6 Two of the children went into the custody of their father and paternal grandmother, where they remain today. The two girls at issue in these proceedings were placed with mother's sisters. After a brief stay with their maternal aunts, these girls were placed together in the foster home where they have remained for more than two years. 4 The Agency had an open case on this family and had been working with it for quite some time. 5 Other concerns included mother's being overwhelmed with her parenting responsibilities, constantly calling crisis intervention, padlocking the children in their car seats to control them, letting them sit in high chairs for hours, and medicating them to make them sleepy and, therefore, easier to control. See Transcript of Proceedings, Volume 1, August 31,2005, pp. 7-11. 6 We note that the Agency had decided to pursue placement of the children even before mother agreed to it. 2 NO. 70 ADOPTIONS 2005 - 71 ADOPTIONS 2005 Shortly after the placement of her four older children mother expressed a desire to have them adopted. On repeated occasions the Agency counseled her that she should not be so quick to give up on her children. Rather, she was advised to work on the goals in her permanency plan in order to achieve reunification. Nevertheless, mother approached the foster mother in July of 2004 to ask if she would consider adopting these girls. Mother visited with the children sporadically until September of2004. She has not visited with them since then. She did attend the permanency review hearing that was held on November 10, 2004. At that time the Agency, the Guardian Ad Litem, and the children's natural father were all requesting a goal change to adoption. The Juvenile Master recommended that the goal remain "return home" because Mother was still "unsure of what she wants to have happen." The Master concluded his report with the following: Counsel for the children's mother indicates that the system has failed her and that she should continue to have an opportunity to reunite with her children. Mother was advised that she needed to cooperate with the Agency and work actively to attempt to get her children back. Since it is an early date to change the goal to adoption, it is recommended that the present placements continue with the goal to remain to return home unless progress is made, a change of goal to adoption should be seriously considered at the next permanency hearing. (emphasis added).7 Mother made no attempt to see or contact these girls until the next scheduled permanency review on May 25,2005.8 At that time her attorney informed the Agency 7 See CCCYS Exhibit #2, p. 7. 8 Because mother objected to the Master conducting the permanency review on that date, it was rescheduled before us on June 29,2005. The hearing was held and the goal was changed from "return home" to "adoption". Mother appealed and the goal change was affirmed by the Superior Court. See MDA 14152005 3 NO. 70 ADOPTIONS 2005 - 71 ADOPTIONS 2005 that mother wanted to resume visits. The Agency sought input from the children's counselor. Based upon her recommendation, the visits were not resumed. 9 Despite the Juvenile Master's admonition that she "needed to cooperate with the Agency", mother had no contact with her caseworkers between the hearing in November 2004 and the scheduled hearing in May 2005. She has consistently failed to cooperate with the Agency or any other service provider. She made no secret of the fact that she has a deep (and in our view unfounded) distrust of the Agency. As she candidly stated at the conclusion of her direct testimony: Q. Do you feel that there's any way that trust can be restored between you and Cumberland County Children and Youth? A. I do not. I feel that the trust between Cumberland County Children and Youth and myself is irretrievably broken. 10 Furthermore, she made no attempt to comply with the terms of her permanency plan. Specifically, she did not 1) maintain contact with the children; 2) participate in medical and dental care, educational planning or counseling for them; 3) participate and successfully complete the TIPS program; 4) keep the Agency informed of her current address and phone number or; 5) obtain a psychiatric evaluation and comply with the treatment recommendations. 11 Mother's parenting skills, or lack thereof, had a direct impact on the development of these children. The foster mother described their condition when they came to live with her: The main problem that we had when we first got these girls were the speech. The older child could not - - you could not understand the older child. The younger child could not talk at all. 9 See Transcript of Proceedings, Volume 1, August 31, 2005, p. 66. 10 Transcript of Proceedings, Volume 6, November 30, 2005, p. 78. 11 See CCCYS Exhibits 10 and 11. 4 NO. 70 ADOPTIONS 2005 - 71 ADOPTIONS 2005 They were not potty-trained. They threw major temper tantrums. They screamed and yelled almost all night long. Our house was like chaos the first good couple of months that we had the children. It was just nonstop. ... - - because the girls just threw such major temper tantrums. They were violent with one other. They were violent with the other children. ... They just were very violent. 12 The older child also showed signs of emotional abuse. She articulated a fear of her mother and of having to return to her. Through the patient efforts of the foster parents, appropriate medical attention, and counseling, the girls have thrived. They are developmentally on track and feel safe and loved. As importantly, the children have bonded with their fosterladoptive parents. They consider them to be their "mom and dad". No such bond exists between mother and the children. Sufficiency of the Evidence Mother's first allegation of error is that the evidence was not sufficient to justify termination of her parental rights under Section 2511 ( a) of the Adoption Act. It is well established that a party seeking termination of parental rights bears the burden of establishing by "clear and convincing evidence" that the grounds exist. Adoption of Atencio, 539 Pa. 161, 166,650 A.2d 1064,1066 (1994). "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 hesitancy, of the truth of the precise facts in issue." Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203- 1204 (1989). The Agency sought to terminate mother's rights under Section 2511 (a)(8) of the Adoption Act. That particular provision provides as follows: 12 Transcript of Proceedings, Volume 2, September 7,2005, pp. 53-54. 5 NO. 70 ADOPTIONS 2005 - 71 ADOPTIONS 2005 (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: (8) The child has been removed from the care of the parents by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child. 23 Pa. C.S.A. 2511 (a)(8). We were satisfied by clear and convincing evidence that all of the elements required for termination under the above provision had been proven. The children were removed on May 11, 2004. More than 12 months had passed at the time the petition was filed in July 2005. The conditions which led to the removal continued to exist. Mother had taken no steps to improve her parenting skills or to cooperate with the Agency in addressing the concerns which led to placement. She did not complete the TIPS parenting program nor did she obtain a psychiatric evaluation. She is no more cooperative with the Agency today than she was when the children were placed. In fact, if it is possible, her willingness to cooperate is even less today than it was when the children were placed, albeit for different articulated reasons. 13 Finally, it was crystal clear that termination of mother's parental rights would best serve the needs and welfare of the children. It would open the way for them to be adopted by the foster parents with whom they are bonded and by whom they are loved. To take them from the safe, secure and loving environment in which they have thrived 13 She was uncooperative at first because she did not want to work toward reunification. She now states that her uncooperative attitude stems from a distrust of the Agency. We find that her distrust was totally unfounded. We suspect that it was manufactured to excuse her unwillingness to work toward reunification. Furthermore, we have found her testimony regarding Agency plots and threats to take her youngest child to have been entirely unbelievable. In general, we have determined credibility issues in favor of the Agency and its witnesses. 6 NO. 70 ADOPTIONS 2005 - 71 ADOPTIONS 2005 would be devastating to them. On the other hand, they have no real bond with mother and continued loss of contact with her will not adversely affect them. Opening the Record to Allow Additional Evidence After six days of hearings between August 31,2005 and November 30,2005, we scheduled closing arguments for December 14, 2005. We also asked the parties to submit briefs in support of their respective positions. In her brief mother drew our attention to the case of In re: TF., 847 A.2 738 (Pa.Super 2004). In that case, the Superior Court reversed the trial court's order granting the termination of parental rights because there was a "dearth of evidence" regarding the needs and welfare of the children. Id at 744. As a result the Superior Court remanded the case "to allow the parties to provide additional evidence concerning the effects of termination of mother's parental rights on each child." Id at 745. During closing arguments, we expressed doubts as to whether the record contained sufficient evidence as to the effects upon the children of the termination of mother's parental rights. 14 In light of the Superior Court's ruling in TF. we felt that it would be prudent to take additional evidence on that issue. It did not make sense to have the case remanded to take additional testimony when the problem could be avoided by taking the testimony before we made a decision. 14 See Transcript of Proceedings Volume 7, December 14, 2005, p. 2-3 7 NO. 70 ADOPTIONS 2005 - 71 ADOPTIONS 2005 Expert Testimony Mother alleges that we "erred in qualifying an unlicensed and uncertified therapist as an expert and erred in allowing her testimony."lS Although she is not specific, we assume mother is referring to the testimony of Shelly Koch, a therapist who had been counseling one of the children since 2004. Ms. Koch has a Master's degree in mental health counseling which she received in 2003.16 She had counseled children since 2001 and had been employed as a child mental health counselor with Holy Spirit Hospital for more than three years when she was called to testify in this case.17 Based upon that background, we allowed her to testify as an expert in the field of mental health I. IS counse mg. Constitutionality of Juvenile Act Finally, mother challenges the constitutionality of the Juvenile Act (42 Pa. C.S.A. S 6301 et seq). However, she did not make any such challenge before us. Since we did not rule upon that issue, we are not in a position to address it in this opinion. DATE Edward E. Guido, J. Lindsay D. Baird, Esquire Dirk Berry, Esquire Megan Malone, Esquire Jacqueline M. Verney, Esquire CCC& YS Probation 15 See "Concise Statement of Matters Complained of on Appeal", p. 2. 16 Transcript of Proceedings, Volume 1, August 31,2005 p. 53. 17 Transcript of Proceedings, Volume 1, August 31, 2005 p. 54. 18 "(T)he standard for qualifying an expert witness is a liberal one: the witness need only have a reasonable pretension to specialized knowledge on a subject for which expert testimony is admissible." Commonwealth v. Doyen, 848 A.2d 1007, 1014 (Pa. Super 2004). 8