IN RE: T.M.E.S. A/K/A T.M., A MINOR,
APPEAL OF: T.M.E.S., A/K/A T.M., A MINOR.
IN RE: T.S.M., A MINOR,
APPEAL OF: T.S.M.
IN RE: T.C.M., A MINOR,
APPEAL OF: T.C.M., A MINOR.
IN RE: T.R.M. A/K/A T.M., A/K/A T.M. A/K/A T.M. A MINOR,
APPEAL OF: T.R.M. A/K/A T.M. A/K/A T.M., A/K/A, A MINOR.
IN RE: T.J.M., A MINOR,
APPEAL OF: T.J.M., A MINOR.
IN RE: T.A.M., A MINOR,
APPEAL OF: T.A.M., A MINOR.
IN RE: N.D.M., A MINOR,
APPEAL OF: N.D.M., A MINOR.
Superior Court of Pennsylvania.
BEFORE: BENDER, J., BOWES, J. AND DONOHUE, J.
NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37
MEMORANDUM BY BENDER, J.
Kids Voice, the guardian ad litem (GAL) for the seven minor children involved in this consolidated matter, appeals from the trial court's January 12, 2012 order that denied the petitions filed by the Allegheny County Office of Children, Youth & Families (CYF) seeking termination of the parental rights of Tanea M. (Mother) pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).[1] We affirm.
In this appeal, the GAL raises the following issues for our review:
I. WHETHER THE TRIAL COURT VIOLATED CHILDREN'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE 14TH AMENDMENT BY RELYING ON EX PARTE EVIDENCE?
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED AS A MATTER OF LAW IN ACCORDANCE WITH THE COORDINATE JURISDICTION RULE, (THE LAW OF THE CASE) IN THAT THE SUPERIOR COURT HAD PREVIOUSLY REVERSED THE TRIAL COURT, CHANGED THE GOAL TO ADOPTION AND HELD THAT THERE CAN BE NO PURPOSE SERVED BY CONTINUING TO REUNITE THE FAMILY?
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED AS A MATTER OF LAW WHEN IT FOUND THAT THE OFFICE OF CHILDREN YOUTH AND FAMILIES DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE OF NEEDS AND WELFARE SUPPORTING THE TERMINATION OF PARENTAL RIGHTS OF MOTHER PURSUANT TO 23 PA.C.S. § §(5),(8) AND 2511(b)?
IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED AS A MATTER OF LAW IN CONSIDERING TESTIMONY OF THE CHILDREN, BECAUSE THE CHILDREN COULD NOT CEDE THEIR RIGHTS TO MINIMAL APPROPRIATE NURTURING?
V. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED AS A MATTER OF LAW IN CONSIDERING THE DEPENDENCY TRANSCRIPT OF CHILDREN'S TESTIMONY BECAUSE SUCH EVIDENCE WAS TAKEN UNDER ADVISEMENT BY THE TRIAL COURT, BUT NOT ADMITTED INTO EVIDENCE?
GAL's brief at 4.
Appellate review of cases involving termination of parental rights [is] subject to the following principles:
[O]ur scope of review is broad and comprehensive, but our standard of review is narrow. We consider all the evidence, along with the legal conclusions and factual findings of the trial court. We reverse only if we find an abuse of discretion, an error of law, or insufficient evidentiary support. With respect to evidentiary support, we determine only whether the trial court's findings are supported by competent evidence. We accord the hearing judge's decision the same deference that we would give to a jury verdict.
In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (citing In re C.M.S., 884 A.2d 1284, 1286 (Pa. Super. 2005), appeal denied, 587 Pa. 705, 897 A.2d 1183 (2006)). Further,
[i]n a proceeding to involuntarily terminate parental rights, the burden of proof is upon 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.
In re A.L.D., [797 A.2d 326, 336 (Pa. Super. 2002)] (quoting In re Adoption of Atencio, 539 Pa. 161, 166, 650 A.2d 1064, 1066 (1994)).
In re R.M.G., 997 A.2d 339, 347 (Pa. Super. 2010).
Moreover, termination of parental rights is controlled by Section 2511 of the Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511).
We have performed a comprehensive review of the certified record, the briefs of the parties, and the two thorough opinions submitted by the Honorable John T. McVay, Jr., of the Court of Common Pleas of Allegheny County, one opinion dated May 7, 2012, and the other opinion dated October 1, 2012. We conclude that Judge McVay's extensive, well-reasoned opinions properly disposed of the issues presented by the GAL on appeal and we discern no abuse of discretion or error of law.[2] Accordingly, we adopt Judge McVay's opinions as our own and affirm the orders appealed from on that basis.[3]
Orders affirmed.
Judge Bowes files a dissenting memorandum.
DISSENTING MEMORANDUM BY BOWES, J.:
As I disagree with the orphans' court's conclusion that T.M. ("Mother") shared a beneficial parent-child bond with her seven children T.M.E.S., T.S.M., T.C.M., T.R.M., T.J.M., T.A.M., and N.D.M. (collectively "the Children") that could not be severed without causing irreparable harm, I respectfully dissent from the learned majority's decision to affirm on the basis of the two opinions authored by the orphans' court in this case. Rather than affirming the orders denying the petitions to terminate Mother's parental rights to the Children, whose ages range from six to thirteen, I would reverse those orders and direct the orphans' court to enter orders terminating Mother's parental rights in order to facilitate adoption.
As the trial court presided over the Children's dependency proceedings and the underlying termination proceedings, I outline the overlapping history of both actions.[1] Since 2001, Mother has had an extensive and disconcerting history with the Allegheny County Office of Children, Youth, and Families ("CYF"). During 2002, allegations arose regarding physical abuse and neglect. T.C.M., now 13, T.M.E.S., now 12, and eleven-year-old twins T.S.M. and T.R.M., were initially adjudicated dependent in March of 2003. After a brief reunification, those children, along with ten-year-old T.A.M and seven-year-old N.D.M., were again adjudicated dependent in August of 2006. Six-year-old T.J.M. was adjudicated dependent in April of 2007. In each case, the court-approved permanency goal for the Children was reunification with Mother.
The Children have moved between Mother and various placement alternatives throughout their dependency, but as of August 20, 2010, when CYF filed the petitions to terminate Mother's parental rights, none of the children had resided with Mother since January 8, 2009. The five children who lived with Mother prior to January 2009 were removed on that date following allegations that Mother struck three of the children with a belt and that some children witnessed Mother having sex with her paramour ("H.W.") and smoking marijuana. In a prior appeal, we observed that the Children "displayed a disturbingly sophisticated knowledge of what marijuana looked like, how it was rolled into a "`blunt,' how it was smoked, and disclosed that they helped Mother roll `joints.'" In re T.M., 996 A.2d 21 (Pa.Super. 2010) (unpublished memorandum at 20). The juvenile court also appointed medical and educational guardians for the Children due to Mother's continued inattentiveness to the Children's mental health and educational needs.
During the review hearing following these allegations, CYF filed a petition to change the Children's permanency goal from reunification to adoption. After an evidentiary hearing, which incorporated the testimony of four expert witnesses, including the court-appointed psychologist, Cathy Sigmund, Ph.D., the juvenile court denied the petition on March 25, 2009. On appeal, we reversed the juvenile court's order denying the petition to change the permanency goal to adoption in 2010. Id. Mother did not seek an allowance of appeal in our Supreme Court.
In reaching our determination that the juvenile court abused its discretion in declining to alter the Children's permanency goal from reunification to adoption, we discussed Mother's litany of failures to attain her family service plan ("FSP") goals, her refusal to cooperate with service providers, her inability to meet the Children's educational and mental health needs, and the negative effect of her behavioral issues on her ability to provide a stable environment for the Children. As it relates to the apparent bond that Mother shared with the Children, we reasoned, inter a/ia,
The fact that the Children in this case are attached to Mother and to each other is only one of many factors the trial court must consider. This court has held that the bond between a parent and a child is only one factor to consider by the trial court in making a decision regarding a goal change. In re A.K., [936 A.2d 528 (Pa.Super. 2007)]. We also held that bonding is an important consideration, but it is not necessarily determinative. In re C.M., 882 A.2d 507, 513-514 (Pa.Super. 2005). Moreover, the relationship between a parent and child, though evident, may also be destructive and therefore not in the child's best interest. In re K.K.R.-S., 958 A.2d 529, 534-535 (Pa.Super. 2008) [(applying identical precepts to bond-effect examination pursuant to § 2511(b)].
Id. at 20. In addition, we observed, "the evidence reveals that none of the experts testified that the Children should be reunited with Mother at this time or in the near future." Id. at 28. Thereafter, we concluded,
We agree with the trial court that great deference must be afforded by the appellate court in these very difficult matters. Additionally, we appreciate the trial court's concerns regarding the sincere emotional and psychological issues confronting these children. However, on this record, it is clear that Mother is, at least partially, responsible for the difficulties her children have exhibited. Therefore, there can be no purpose served by continuing to work to reunite the family.
Id. at 29-30.
Upon remand, the juvenile court formally changed the Children's permanency goal to adoption and directed that the Children remain in the care of their respective foster homes. However, under the guise of concurrent planning, instead of preparing the Children for adoption, the juvenile court directed CYF to fashion a more accommodating visitation schedule for Mother and to provide her transportation to her visitations with the Children. In addition, the juvenile court permitted Mother to plan birthday parties and extended visits with some of the children. Moreover, the juvenile court apparently entertained Mother's request to restore the permanency goal to reunification; however, CYF filed the underlying petition to terminate her parental rights before any evidentiary hearings on that matter were conducted.
Even after CYF filed its petitions to terminate Mother's parental rights to the Children on August 20, 2010, the juvenile court continued to ignore this Court's conclusion that "there can be no purpose served by continuing to work to reunite the family." In re T.M., supra at 30. Specifically, it increased Mother's services and directed CYF to muster a unified crew to oversee Mother's visitation with all of the Children and provide parent instruction. Moreover, the juvenile court ordered the current courtappointed expert, Patricia Pepe, Ph.D., to recommend a concurrent plan for CYF to implement and ordered additional extended visitations at Mother's home for birthdays and Christmas.
Meanwhile, the trial court, sitting in the orphans' court division, held several evidentiary hearings between April 27, 2011 and November 23, 2011, regarding CYF's petition to terminate Mother's parental rights. As it relates to the prevailing issue in the case at bar, CYF presented Dr. Pepe's expert testimony on three separate occasions, April 27, June 22, and August 31, 2011, and introduced the respective foster parents' testimony from the dependency proceedings. Significantly, Dr. Pepe testified that the Children had a pathological bond with Mother and most of the Children suffered from symptoms of post-traumatic-stress disorder ("PTSD") or some other severe mental health impairment. She also opined that, while reunification with Mother was not in the Children's best interest, she did not
recommend terminating parental rights without adoptive resources. In addition, due to the Children's behavioral and intense individualized therapeutic needs, Dr. Pepe did not recommend that the siblings reside together.
On January 12, 2012, the orphans' court entered the instant order denying CYF's petition. The orphans' court reasoned that although CYF satisfied its burden by clear and convincing evidence to prove the statutory grounds to involuntarily terminate Mother's parental rights to the Children pursuant to § 2511(a)(2), the agency did not establish that termination was in the Children's best interest pursuant to § 2511(b). Trial Court Opinion, 5/7/12, at 24. Although the orphans' court acknowledged that the Children's permanent reunification with Mother was improbable, the court submitted that it would only terminate Mother's parental rights to facilitate an open adoption pursuant to 23 Pa.C.S. § 2731, which would permit Mother's continued communication and contact with all of the Children. Id. at 32.
The Children, acting through their guardian ad /item ("GAL"), timely filed a notice of appeal and simultaneously filed concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). While the Children present five questions for our review, I believe that two of the arguments are particularly salient: 1) whether the trial court erred in disregarding our prior directive to change the Children's permanency goal to adoption by ordering CYF to intensify services to Mother and extend the periods of visitation; and 2) whether the orphans' court abused its discretion in finding that CYF failed to adduce sufficient evidence to establish by clear and convincing evidence that terminating Mother's parental rights satisfied the Children's developmental, physical, and emotional needs and welfare pursuant to 23 Pa.C.S. § 2511(b).[2] I address these issues seriatim.
As the majority capably outlined the relevant scope and standard of review and explained the bifurcated nature of the involuntary termination proceedings, I will not repeat those principles herein. I add only the precepts relating to concurrent planning, which the trial court employed following the goal change, and the needs and welfare analysis pursuant to § 2511(b).
In In re Adoption of S.E.G., 901 A.2d 1017 (Pa. 2006), our Supreme Court explained concurrent planning as follows:
As its name implies, concurrent planning is a dual-track system under which child welfare agencies provide services to parents to enable their reunification with their children, while also planning for alternative permanent placement should reunification fail. The system developed in reaction to the substantial problems that arose under the prior system, which focused almost exclusively on reunifying families. In many cases, children languished in foster care for years while their parents attempted unsuccessfully to regain custody by demonstrating the ability to care for their children. Conversely, but equally unfortunately, some children were returned prematurely to unsafe environments in failed attempts at reunification, necessitating their re-removal and return to foster care. Even in cases where the parents clearly would not be able to regain custody, agencies and courts were unable to sever the parental rights in an expedited process and allow the pursuit of permanent, stable homes for children. As a consequence of all these scenarios, children suffered what became known as "foster care drift: the repeated transitions from foster care to foster home that occur when children stay on foster care for a lengthy period without a permanent plan." [See Richard Barth, Fred Wulczyn, & Tom Crea, From Anticipation to Evidence: Research on the Adoption and Safe Families Act, 12 VA. J. SOC. POL'Y & LAW 371, 373 (2005).]
In reaction to the situation, the United States Congress enacted the Adoption and Safe Families Act of 1997, (ASFA). ASFA altered the focus of dependency proceedings to include consideration of the need to move children toward adoption in a timely manner when reunification proved unworkable.
Id. at 1019 (internal citations omitted).
The High Court further explained:
In the years following the federal enactment of ASFA, Pennsylvania modified its statutes relating to dependent children to comport with the federal provisions. Significantly, Pennsylvania's legislature amended the Juvenile Act in 1998 to include the dual purposes of reunification and adoption rather than merely reunification: "This chapter shall be interpreted and construed to effectuate the following purposes: (1) To preserve the unity of the family whenever possible or to provide another alternative permanent family when the unity of the family cannot be maintained...." 42 Pa.C.S. § 6301(b)(1) (emphasis added to indicate amended language).
Id.
The Children frame their broad challenge to the juvenile court's handling of the post-remand dependency proceedings as a violation of the coordinate jurisdiction rule. However, considering that this is an appeal from an orphans' court order, I disagree with the underlying legal premise that the procedural posture of this case implicates either the coordinate jurisdiction rule or the doctrine of the law of the case. It is beyond cavil that juvenile court and orphans' court proceedings are separate procedures with distinct issues, purposes, and burdens of proof. See In re A.L.D., 797 A.2d 326, 339-340 (Pa.Super. 2002) ("the issues and purposes of the proceedings before the Juvenile Court and the Orphans' Court are wholly distinct"). Moreover, the propriety of the Children's permanency goal in the dependency proceedings is not at issue in this case. Nevertheless, I agree with the crux of the Children's position that the juvenile court erred in failing to follow our prior mandate. To state it simply, I cannot countenance the trial court's disregard of our directive to change the permanency goal from reunification to adoption, particularly where, as here, the court's indifference to the goal change clearly affected its subsequent § 2511(b) needs-andwelfare analysis during the termination proceedings. Thus, I believe that the trial court erred in this regard.
The Children argue that the trial court erred in increasing the level of services that CYF was required to provide to Mother following our direction to change the permanency goal in the juvenile court proceedings from reunification to adoption. Noting that the trial court expressed a position "that a legally designated court goal is largely irrelevant," the Children contend the trial court ignored our prior conclusion that reunification services would be futile in this case. Children's brief at 24 (quoting Trial Court Opinion, 5/7/12, at 23). In rejecting the Children's assertion, the orphans' court considered this Court's clear declaration that "there can be no purpose served by continuing to work to reunite the family," In re T.M., supra at 30, as mere dicta and pursued concurrent planning. The trial court purported to rely upon our Supreme Court's holdings in In re Adoption of S.E.G., supra and In re R.J.T., 9 A.3d 1179 (Pa. 2010), for support of this proposition. Trial Court Opinion, 5/7/12, at 21. For the following reasons, I disagree with the trial court's interpretation of the prevailing case law and, by necessity, the majority's decision to adopt the trial court's perspective.
We have consistently held that the practical effect of changing a permanency goal from reunification to adoption relieves child service agencies from continuing to provide reunification services to parents. See Interest of M.B., 565 A.2d 804, 807-808 (Pa.Super. 1989) (order changing permanency goal from reunification to adoption ends any dispute as to whether adoption is most appropriate goal and "[a]s a practical and legal matter . . . [it] allows CYS to give up on the parent"); see also In re Adoption of S.E.G., supra at 1021 (referencing Superior Court case law, "The cases . . . hold that the change of goal to adoption definitely and finally determines that the services provided by CYS were adequate and that CYS need not continue to provide services to the parent.").
Most recently, in In re R.J.T., supra at 1187 n.9, our Supreme Court acknowledged this Court's long-held position that a goal change generally releases a child service agency from further obligation to supply a parent with reunification services, and it recognized that public policy supports our view insofar as it encourages a judicious use of limited agency resources. However, for several reasons, including, inter alia, the agency's express assent to continue concurrent planning if the permanency goal was changed to adoption, the High Court declined to confront the merits of our case law in that case. Id. Instantly, however, since CYF never indicated that it would acquiesce to concurrent planning in the event the goal change was granted, the well-established jurisprudence should prevail over the trial court's desire to elevate concurrent planning above our directive to change the permanency goal to adoption.
Moreover, I believe that the trial court's reliance upon In re Adoption of S.E.G., supra and In re R.J.T., supra, is misplaced because, contrary to the trial court's characterization, our Supreme Court did not suggest, much less hold, that the principle of concurrent planning would trump an order formally changing a child's permanency goal from reunification to adoption. In reality, our Supreme Court addressed concurrent planning in those cases as grounds to pursue the termination of parental rights without a formal change of goal.
In In re S.E.G., supra, our Supreme Court held that child service agencies are not required to change a permanency goal to adoption prior to seeking to terminate parental rights. The Court reasoned that concurrent planning was intended to facilitate adoption without formally altering the dependent child's permanency goal from reunification. Id. at 1028-29. Similarly, in In re R.J.T., supra, the Supreme Court invoked concurrent planning as a basis to reverse this Court's decision to direct the trial court to change the dependent child's permanency goal to adoption. Specifically, the Supreme Court disposed of our concerns regarding the trial court's failure to grant the goal change by noting that the trial court's permanency order in favor of reunification also provided for concurrent planning to consider the appropriateness of adoption. Essentially, the Supreme Court found that concurrent planning would permit the termination of parental rights and adoption, even without a formal goal change. Id. at 1188.
In contrast to In re Adoption of S.E.G. and In re R.J.T., where our High Court relied upon concurrent planning to support the proposition that parental rights can be terminated without a formal goal change, the case at bar implicates the inverse scenario, that is to say, the trial court sought to use concurrent planning as a basis to ignore our proclamation that the continued use of reunification services would be futile and to disregard our directive to change the Children's permanency goal to adoption. I do not believe that our Supreme Court's discussions of concurrent planning in In re Adoption of S.E.G. and In re R.J.T. support the trial court's application of the principle in this case in order to evade adoption. See In re Adoption of S.E.G., supra at 1019 ("The [concurrent planning] system developed in reaction to the substantial problems that arose under the prior system, which focused almost exclusively on reunifying families"); In re R.J.T., supra at 1191 n.13 (stressing that concurrent planning does not necessitate goal change to adoption with ongoing services to parents but rather permits agencies to seek adoption while maintaining permanency goal of reunification). Simply stated, I would hold that the purpose of concurrent planning, i.e., providing an alternative to reunification, is not implicated where the juvenile court has been ordered by this Court to change the permanency goal from reunification to adoption.
From my perspective, the goal change from reunification to adoption extinguished the need for concurrent planning because it is implicit in the goal change that reunification is no longer a viable alternative. See Interest of M.B., supra at ("By allowing CYS to change its goal to adoption, the trial court has decided that CYS has provided adequate services to the parent but that he/she is nonetheless incapable of caring for the child and that, therefore, adoption is now the favored disposition"); In re A.L.D., 797 A.2d 326, 339 (Pa.Super. 2002) (same); In re Adoption of T.B.B., 835 A.2d 387, 398-399 (Pa.Super. 2003) (same). Accordingly, I am compelled to find not only that the trial court erred by ignoring the effect of the formal goal change in order to augment Mother's services and visitation, but also that it exacerbated its error by relying upon Mother's increased interaction with the Children in its § 2511(b) needs and welfare analysis as grounds to conclude that termination of Mother's parental rights was not in the Children's best interest.[3]
Next, as it relates to the §2511(b) needs and welfare analysis, the relevant edict follows:
In In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into needs and welfare of the child." In addition, we instructed that the orphans' court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. In re K.Z.S., 946 A.2d 753, 763 (Pa.Super. 2008).
While a parent's emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child. In re K.K.R.-S., 958 A.2d 529, 533-536 (Pa.Super. 2008). The mere existence of an emotional bond does not preclude the termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial court's decision to terminate parents' parental rights was affirmed where court balanced strong emotional bond against parents' inability to serve needs of child). Rather, the orphans' court must examine the status of the bond to determine whether its termination "would destroy an existing, necessary and beneficial relationship." In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa.Super. 2003). As we explained in In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010),
[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, this Court stated that the trial court should consider the importance of continuity of relationships and whether any existing parent-child bond can be severed without detrimental effects on the child.
23 Pa.C.S. § 2511(b).
Herein, the orphans' court found that Dr. Pepe's expert reports and testimony established parent-child bonds between Mother and the Children. The court also found that the Children had varying degrees of attachments toward Mother, which it attributed to Mother's continued visitations with the Children. While the orphans' court acknowledged Dr. Pepe's testimony describing the existing parent-child bonds as pathological, it discounted the expert's findings because Dr. Pepe never previously characterized the bond as pathological and because she stated that the pathology was treatable with family therapy and parental rehabilitation.
Next, relying upon Dr. Pepe's recommendation to forgo terminating Mother's parental rights unless adoptive resources existed, the orphans' court also referred to testimony of the Children's respective foster parents during the dependency proceedings. The foster parents, three of whom are maternal relatives, testified that the Children were attached to Mother. Likewise, all of the Children's foster parents except those of N.M. were receptive to Mother maintaining a relationship with her children through an open adoption or a similar arrangement. However, even after noting that nearly all of the foster parents were interested in open adoptions, which Dr. Pepe generally recommended, the orphans' court curiously cited a lack of adoptive resources as an additional ground to forgo terminating Mother's parental rights. Trial Court Opinion, 5/7/12, at 30 Specifically, the orphans' court reasoned, "it does not serve the needs and welfare of these children to involuntarily terminate parental rights without adoptive placements." Id. at 31. Thus, for all of the forgoing reasons, the orphans' court concluded, "CYF failed to clearly and convincingly prove that no irreparable harm would occur to [the] children if their relationships [with Mother] were terminated. . . ." Id. at 29.
I disagree with several aspects of the orphans' court's rationale. First and foremost, I do not believe that the record demonstrates the existence of a beneficial bond between Mother and the Children that is worth preserving. All of the Children suffer from either PTSD or severe mental health impairments, such as reactive detachment disorder or sexualized behavior, caused by Mother's abuse and neglect. Moreover, as discussed infra, the evidence adduced during the evidentiary hearings demonstrated that the bonds that Mother shares with the Children are laced with pathology.
The certified record is replete with evidence that establishes Mother's abuse, neglect, and exceptionally poor judgment and confirms the negative effects that Mother's behavior had upon her children. Mother not only continues to smoke marijuana, she previously beat the Children, permitted H.W. to abuse the Children, engaged in sexual activity in front of the Children, and in the ultimate display of corrupt parenting, upon learning of T.C.M.'s sexual abuse by H.W., she forced her daughter to speak to her assailant on the telephone.
The evidence bears out that Mother never attained her sobriety goals. The CYF caseworker assigned to the family testified that Mother submitted two positive urine screens prior to the termination proceedings and failed to submit samples for several other scheduled tests. N.T., 6/22/11, at 169. Significantly, Dr. Pepe's testimony confirmed that Mother's marijuana use clouded Mother's judgment and that evidence of the failed drug screens reaffirmed the doctor's recommendation against reunification. Id. at 96-97.
Dr. Pepe also testified that Mother initially lied to her regarding the allegations of physical abuse and denied any involvement. N.T., 4/27/11, at 229. However, Mother later recanted and admitted that she did, in fact, beat the Children. Id. Even in admitting some culpability, Mother diminished her role in the abuse. Mother characterized the beatings as "whoopings on their butt[s]" and continued to deny beating any of the Children with a belt, switch, or extension cord. Id. at 74.
Moreover, Dr. Pepe observed that Mother placed her relationship with H.W. over the Children's safety. N.T., 6/22/11, at 69-70. For example, during 2011, now-thirteen-year-old T.C.M. reported that H.W. had abused her sexually in the course of the family's brief reunification in 2008. N.T., 6/22/11, at 169. Specifically, T.C.M. disclosed that H.W. "touched her between her legs and hurt her there." CYF Exhibit F at 2. As the incident embarrassed the child, she did not disclose any further details. Id. Dr. Pepe reiterated, "she put her head down . . . and stated that she was not ready to talk about it." Id. Nevertheless, despite the child's unwillingness to revisit the ordeal, during an ensuing birthday visitation, which the juvenile court authorized in the face of our order directing the goal change to adoption, Mother forced T.C.M. to speak with her assailant, H.W., on the telephone. N.T., 4/27/11, at 111; N.T., 8/31/11, at 69. Dr. Pepe found Mother's conduct to be further evidence of her poor judgment. N.T., 4/27/11, at 111.
Despite H.W.'s heinous conduct, Mother continues to have a relationship with H.W., who apparently attends some of the visitations. CYF Exhibit F at 9. Dana Martin, a family therapist for Wesley Spectrum Family Therapy, relayed that she observed Mother and H.W. on one occasion and characterized the couple as overly affectionate. Id. at 15. Interestingly, Ms. Martin also indicated that Mother would not permit parental instruction during the visitations, yet another factor militating against the orphans' court's position that Mother's judgment is improving. Id.
In addition to describing the sexual assault, T.C.M. reported, albeit equivocally, that Mother was physically abusive, that she did not feel safe in Mother's home, and that H.W. punched her and beat her twin brothers, T.S.M. and T.R.M. See CYF Exhibit F at 6-7. Similarly, as early as 2009, now-twelve-year-old T.M.E.S. disclosed that H.W. beat him with a belt. N.T., 4/22/11, at 81. T.M.E.S. also confirmed to Dr. Pepe during the child's December 12, 2010 psychological evaluation that Mother lived with H.W. and that the couple had recently relocated together. CYF Exhibit F at 3. Likewise, a long-time placement resource for several of the Children indicated that T.M.E.S. advised her that H.W. brandished a firearm and leveled it at the child. CYF Exhibit B at 31. In addition, she expressed concern that the Children stated that a video camera was set up in the home so that the Children could view Mother's sexual exploits on television. Id. She also noted that the Children alleged to have imbibed alcohol. Id. at 31-32
As with their older siblings, the eleven-year-old-twins, T.R.M. and T.S.M., revealed even more disturbing details about Mother and her ongoing relationship with H.W. T.R.M. has permanent neurological damage due to either Mother's neglect or abuse when he was an infant. N.T., 4/22/11, at 97. When approached by Dr. Pepe, Mother initially denied any involvement in her son's injuries and explained that he had fallen off the bed; however, she subsequently altered her explanation and admitted that an unidentified person assaulted T.R.M. Id. at 75. T.R.M. believes that Mother is responsible for his injuries. N.T., 6/22/11, at 58. He told Dr. Pepe that his father informed him that the injuries were the result of Mother's physical abuse.[4] Specifically, T.R.M. indicated, "She banged my head off of the wall." CYF Exhibit F at 19, 30.
T.R.M. confirmed to Dr. Pepe that he observed Mother having sex with H.W. on several occasions, n.t., 6/22/11, at 59, and he indicated that Mother offered to teach him how to perform oral sex. CYF Exhibit F at 11, 20. As it relates to physical abuse, T.R.M. stated that he was whipped with a belt and punched with a closed fist in his calf. Id. at 20. The child identified the punching action as "frogg[ing]." Id. He further explained to Dr. Pepe that H.W. "punched all of the Children and that in fact [Mother] saw [H.W.] punch them." Id.
Like his twin brother, T.S.M. observed sexual activity and was beaten by both Mother and her paramour with a belt and metal coat hanger. N.T., 6/22/11 at 62, 63; N.T., 4/22/11, at 44. Notably, the certified record reveals that as of Dr. Pepe's first psychological evaluation report, a nocontact order existed between T.S.M. and Mother that precluded Dr. Pepe from recommending reunification. CYF Exhibit B at 36.[5] During his second psychological evaluation, T.S.M. told Dr. Pepe that his first memory was "my mom having sex." CYF Exhibit F at 15. He described the sexual activity he observed in the home as Mother "humping, kissing [H.W.], belly on belly and around and around[.]" CYF Exhibit B at 6. He continued, "they do it all of the time," "they lick their wieners or penuckles," "they suck their penuckles." Id. at 6. Tragically, T.S.M. also reported that his older sister, T.C.M., herself a victim of H.W.'s sexual abuse, "tried to get him to lick her butt, but he . . . refused to do so." Id. T.S.M. previously had advised a foster parent that T.C.M. "poured juice on her private area and made him lick it off." Id. The child also related that H.W. taught him to "push his butt checks together." CYF Exhibit F at 13. Regardless of the veracity of T.S.M.'s allegations against his older sister, it is evident that Mother's poor judgment is the genesis of the child's fixation with sex.
In relation to allegations of physical abuse in Mother's home, T.S.M.'s foster parents reported that T.S.M. indicated that Mother threw T.R.M. against a wall and broke his arm. Id. at 13, 14. T.S.M. also stated that Mother beat him with a hanger in the shower and scalded his genitals. Id. Tellingly, when Dr. Pepe asked T.S.M. why he thought his behaviors were improving under his foster parent's care, he responded because "he was not getting whooping's and not seeing sex." Id. at 13.
Finally, I observe that T.A.M., currently age ten, stated that he witnessed domestic violence in the home. N.T., 6/22/11, at 64. He stated that Mother was abused by H.W. and that both Mother and H.W. would beat him. CYF Exhibit F at 25. Specifically, he indicated that H.W. "smacked her and he smacked all of us." Id.[6]
I believe that the forgoing evidence belies the orphans' court's finding that Mother's offensive behaviors and poor judgment did not affect the Children negatively and that preserving Mother's station in the Children's lives best satisfied their developmental, physical, and emotional needs and welfare. In contrast to the orphans' court, I must conclude that Mother's persistent failure to provide the Children with the irreducible minimum level of care foreclosed any reasonable hope the family had to reunite, and that by preserving Mother's parental rights, the orphans' court effectively condemned the Children to the juvenile system until they reach the age of majority.
Furthermore, unlike the orphans' court, I cannot discount Dr. Pepe's findings, which she proffered during the first evidentiary hearing, that Mother's bonds with the Children exhibit characteristics of pathology, i.e., an unhealthy alignment between a traumatized child and a dangerous parent, where the child normalizes the abuse or dysfunction because his relationship with the dangerous parent defines his identity and since the negative behavior is all the child knows. N.T., 4/27/11, at 235-237. At a subsequent hearing, Dr. Pepe described this type of bond as follows:
It's more a pathological attachment that's reflective of pathogenic care. It's not an attachment where the parent is trying to foster the child's integrity and independence and psychological well-being. It's a dependent pathological relationship in that the child is concerned about "What's going to happen to me," because children need to have somebody that they know that's going to take care of them to some degree.
So even if though there may have been abuse, there continues to be a reliance on that adult.
N.T., 6/22/11, at 46.
Dr. Pepe identified the pathology in Mother's bond with all of the Children except T.J.M., the youngest. As it relates to T.S.M., she observed, "he's described on multiple occasions he's afraid of mother, he's divulged numerous incidents, yet even when there was a no contact order[,] he described missing her [and] wanting to see her." N.T., 4/27/11, at 235; see also N.T., 6/22/11, at 64 (characterizing T.S.M.'s relationship with Mother as a pathological bond). Similarly, Dr. Pepe detected aspects of pathology in Mother's relationship with T.C.M., "I see some pathological dynamics in . . [T.C.M.'s belief that] . . . `If I'm really, really, really, really bad, they'll finally get tired of it all and just send me home.[7]'" N.T., 6/22/11, at 47. Likewise, the dynamics among T.M.E.S., Mother, and H.W. suggest pathology insofar as T.M.E.S. is fearful of H.W.'s physical abuse but is willing to sacrifice himself in some ways in order to be with Mother. Id. at 56-57. Next, as it relates to T.R.M., Dr. Pepe found elements of pathology in the child's fear of retaliation for "telling Mom's business." Id. at 59. However, she explained that due to the bond that T.R.M. forged with his foster parents, the pathology will not "hold him back" from moving past the ordeals that occurred in Mother's home. Id. at 57. With respect to T.A.M., Dr. Pepe indicated that the child had a pathological bond with Mother based upon the domestic violence that he witnessed in Mother's home and his desire to return with Mother despite the abuse. Id. at 64-65.
Dr. Pepe also characterized Mother's bonds with the younger children as unhealthy. The relationship between Mother and N.D.M., who was diagnosed with reactive attachment disorder, is injurious in that the nowseven-year-old-child will attach indiscriminately with anyone with whom he has contact. Id. at 65-66. She further explained that the disorder generally is caused by pathogenic care such as the persistent neglect of a child's physical and emotional needs. Id. at 86. Finally, while Dr. Pepe did not find aspects of a pathological bond between Mother and T.J.M., she testified that T.J.M.'s primary attachment was with his then-foster parent, whom he identified as his "mommy." Id. at 67. She described the child's attachment to Mother as an inferior, continued attachment. Id.
Having found sufficient evidence of the pathological attachments in this case, I would also find that the orphans' court's justification for discounting this phenomenon is untenable. While the orphans' court was not bound by Dr. Pepe's expert testimony or under any obligation to accept her expert conclusion, the court's independent decision must be founded on the certified record. Cf. M.A.T. v. G.S.T., 989 A.2d 11, 19-20 (Pa.Super. 2010) (en banc) (although not binding in custody case, trial court must consider expert conclusion and if it declines to follow recommendations, competent evidence must support its independent decision).
Herein, I first point out that Dr. Pepe did not, as the orphans' court asserts, first raise this issue during her June 22, 2011 cross-examination. See Trial Court Opinion, 5/7/12, at 27. In actuality, as noted supra, Dr. Pepe broached the subject of Mother's harmful attachment with the Children during the first termination hearing on April 27, 2011. See N.T., 4/27/11, at 235-237. Moreover, while Dr. Pepe did not specifically discuss pathological bonding in her comprehensive psychological reports, the facts underlying her expert testimony are resoundingly apparent from those evaluations. Thus, I do not prescribe to the implication that Dr. Pepe proffered the existence of the pathological bonds as a novel basis to support her conclusions.
Furthermore, although Dr. Pepe acknowledged that pathology can be treated with family therapy and parental rehabilitation, Dr. Pepe included a caveat that the orphans' court failed to address: treatment is based upon the Children's trust and their assurance of safety. Dr. Pepe explained, "So I think that there can be some progress through therapy, but primarily it's got to be [the] children's capacity to trust a parent. Trust is very basic, and physical well-being is very basic, safety issues." N.T., 6/22/11, at 132. She ultimately concluded, "So I think that children would have to have like complete reassurance that their safety could be absolutely assured without any concerns, and especially for these children." Id. Thus, heedful of this significant qualification, I conclude that, while the orphans' court was correct in stating that pathology was treatable, the certified record bears out that Mother lacks the predicate elements for a successful treatment regimen, i.e., the trust and complete reassurance of the Children that she is capable and willing to assure their safety and wellbeing unequivocally. Accordingly, I do not believe that a potential, but unlikely, remedy is an adequate ground to disregard Dr. Pepe's findings that Mother's bonds with the Children exhibit characteristics of pathology.
Furthermore, in addition to discussing the unhealthy relationships that Mother shares with the Children, Dr. Pepe pointed out that due to Mother's behaviors and neglect, T.C.M., T.S.M., and T.A.M. suffer from symptoms of PTSD; T.R.M. is neurologically impaired and receives specialized treatment for sexualized behaviors, including exposing himself, proffering explicit descriptions of sex acts, and threatening to rape another child; and N.D.M. was diagnosed with reactive attachment. Id. at 46, 59-60, 65-66, 100-101; N.T., 4/27/11, at 82, 96-97, 99-100. Indeed, the only two children without severe mental health and behavioral issues are T.M.E.S., who enjoyed a strong attachment with his caregivers, and T.J.M., the youngest child who was fortunate enough to have avoided most of Mother's abuse and neglect.
Thus, mindful of the alarming incidents of abnormal interpersonal behaviors among the Children that are all directly attributable to Mother and cognizant that the pathological bonds that Mother shares with the Children are not beneficial, I do not believe that the record sustains the orphans' court's finding that Mother's attachment with the Children displays the hallmarks of a healthy parent-child attachment. Thus, unlike the majority, I would hold that CYF demonstrated by clear and convincing evidence that terminating Mother's parental rights would not destroy any existing, necessary, and beneficial parent-child relationships.
I also reject the trial court's reliance upon the purported lack of adoptive resources as a ground to preserve Mother's parental rights. First, it is beyond argument that CYF is not required to establish a pre-adoptive home for a child prior to terminating a parent's parental rights. In re K.C.F., 928 A.2d 1046, 1053-1054 (Pa.Super. 2007); see also 23 Pa.C.S. § 2512(b) ("If the petitioner is an agency it shall not be required to aver that an adoption is presently contemplated nor that a person with a present intention to adopt exists."). In In re Adoption of L.J.B., 18 A.3d 1098 (Pa. 2011) (plurality) (quoting In re Burns, 379 A.2d 535, 541 (Pa. 1977)), our Supreme Court explained, "when `a child is in the custody of an approved adoption agency,' no need exists for either the child to be imminently adopted or for the agency to put an adoption plan into motion, as `one of the purposes of the Adoption Act of 1970 was to permit an agency to seek termination of parental rights independently of adoption.'
From my perspective, the orphans' court's consideration of the putative lack of adoptive resources for the sake of the Children's best interest is simply an end-run around the express provisions of the Adoption Act. This Court addressed a similar factual scenario in In the Matter of T.D., 949 A.2d 910, 922-923 (Pa.Super. 2008), and concluded that the child's "age, loyalty to his natural parents, and apparent lack of an identifiable pre-adoptive placement will not automatically preclude him from attaining permanency after parental rights have been terminated." See also In re K.C.F., supra at 1053-1054. Meaningfully, we also recognized that in light of the birth parents' inability to provide the child with a minimum level of care, preserving their parental rights "would foreclose any hope for adoption and condemn [the child] to foster care until he reaches majority." In the Matter of T.D., supra at 923. Thus, unlike the orphans' court, I do not believe that the putative absence of adoptive resources necessarily precluded termination of Mother's parental rights to the Children pursuant to the § 2511(b) best-interest analysis.
Second, and more importantly, the certified record does not sustain the conclusion that adoptive resources were missing. As the GAL accurately observes, CYF considers all of the Children's placement resources as potential pre-adoptive homes, even if they were never formally identified in that manner. See N.T., 6/22/11, 174. Indeed, as I previously noted, the orphans' court referenced its examination of the Children's respective foster parents and observed that all of the foster parents except N.M.'s then-preadoptive parents were amenable to maintaining contact with Mother. See Trial Court Opinion, at 27-29; GAL Exhibit 3 (N.T., 7/6/11, at 43, 80, 91, 102, 150, 162). Thus, in my view, the orphans' court's concern about the lack of adoptive resources was unsupported. Moreover, our receipt of subsequent information that some of the Children's placement options have changed since the trial court denied CYF's petition to terminate Mother's parental rights does not negate the fact that all of the identified resources actually existed when the orphans' court made its determination.
Finally, I reject as unconvincing the orphan's court's reliance upon excerpts from the motion picture, THE BLIND SIDE. While I appreciate the emotion that the orphans' court draws from the two referenced scenes, at least as it relates to the reality that occasionally it is beneficial to preserve a child's relationship with his birth parents through a permanency alternative other than adoption, that sentiment is evanescent in light of Dr. Pepe's expert testimony that adoption is the ideal outcome for the Children. Indeed, as I summarize below, the orphans' court introduced this precise theme during the evidentiary hearing, and Dr. Pepe testified unequivocally that adoption was the preferred permanency option. N.T., 8/31/11, at 95-99.
In response to the orphans' court's query of whether a child would understand the difference between adoption and subsidized permanent legal custody ("SPLC"), a flexible placement alternative that exists in the juvenile court system, Dr. Pepe explained:
Dr. Pepe: My concern is — this isn't case specific. I have recommended SPLC in the past. My concern with these children is to have permanency in adoption. That I think — I mean, I have had a number of times where when children become teenagers, there is a lot of difficulties that occur and adoption provides greater stability. The adoptive parents have a greater stability to work out the issues of the child rather than say, I can't do this anymore, and then the child is back in the system. I think it is important to avoid them coming back into the system at all costs.
The Court: Absolutely.
Dr. Pepe: So I think it depends upon what the situation is, and I think this case with these children, with the severity of their behavioral dysfunctions, with the severity of their psychological problems, if they have developed a relationship with an adult that understands what the magnitude of the problem is, I would definitely check that out with the capacity to help the child and care for the child. I do believe it is in their best psychological interest to have the permanency through adoption.
N.T., 8/31/11, at 95-96.
Unmoved by Dr. Pepe's response, the orphans' court continued its line of questioning regarding whether children understand the difference between the two options. The following exchange ensued.
Dr. Pepe: I think the children come to understand — for example, when I have spoken to children after adoption, they really enjoy the ceremony of adoption, the changing of their names, of understanding they are permanent, that they can move on essentially with their lives, that they don't have the system involved in their lives any longer.
The Court: Sure. You can do that with SPLC. I am trying to understand the differences. You can do both. Not changing names and so forth, but the system involvement.
Dr. Pepe: Yes, I understand that, but I'm saying what it means to the children to have those experiences. It is generally positive for them and it gives them a sense of moving forward and understanding that this is permanent for them.
Also about SPLC is if a parent does make progress and can prove to the court that they made progress at some future date, but the child has developed a primary attachment in their home, that that may not be — I don't know how that would be weighed.
The Court: The Court would have to weigh it.
Dr. Pepe: Correct. I mean, my experience with these children is that I do believe that they would benefit from the permanency that adoption has to offer. I understand that SPLC can also offer that permanency, but not to the same magnitude as adoption; that they are home, they are safe, and they are going to remain in this home until they become adults themselves.
Id. at 97-99.
Ultimately, the orphans' court declined to embrace this aspect of Dr. Pepe's recommendations, presumably in preference for the life-imitating-art-imitating-life rationale provided by THE BLIND SIDE. In contrast to the orphans' court's reference to a motion picture, I would refer to the portion of the certified record that illustrates Dr. Pepe's precise position regarding the positive significance of adoption. That is to say, during his June 2011 interactional evaluation, T.A.M. stated his desire to be adopted by his foster parents and excitedly announced that he would change his Christian first name, middle, and surname to "Alvin Anthony [B.]" N.T., 8/31/11, at 74. Dr. Pepe further elucidated that T.A.M. understood the permanence of adoption and that adoption foreclosed his reunification with Mother, and he was very positive about that opportunity. Id. at 75. I believe that T.A.M.'s knowledgeable reaction to his proposed adoption exemplifies some of the specific benefits of adoption over SPLC that Dr. Pepe highlighted for the trial court. Thus, for all of the reasons outlined in Dr. Pepe's expert testimony, I believe that the orphans' court's reference to THE BLIND SIDE is inapposite. Although SPLC undoubtedly is an appropriate alternative to adoption in some circumstances, the case at bar does not present one of those scenarios.
I respectfully dissent.
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA ORPHAN'S COURT
IN RE: CASE NOS.
Tam, M 185-2010
N.M. 186-2010
Tad. M. 187-2010
Tae. M. 188-2010
Tai. M. 189-2010
Ti. M. 190-2010
Ty. M. 191-2910
OPINION
JOHN T, McVAY, Jr.
HISTORY OF CASE
Allegheny County's Office of Children Youth and Families (CYF) filed TPR petitions on August 30, 2010, that sought tewiination against mother T[redacted.data]. M. and fathers W. B[redacted.data]W. S[redacted.data] J.L. J[redacted.data] and C.J. J[redacted.data] and the unknown fathers pursuant to the Adoption Act of 1980, as amended under the following sections of 23 Pa. C.S.A. § 2511 (a)(1)(2)(5)(8) and (b).
T[redacted.data] M. is'the mother of Tad. M. (D.O.B. 02/[redacted.data]1999), Tam. M. (D.O.B, 06/[redacted.data]2000), Tai. M. (D.O.B. 07/[redacted.data]/2001), Ti. M. (D.O.B. 07/[redacted.data]/2001), Ty. M. (D.O.B. 10/[redacted.data]/2004), N.M. (D.O.B. 08/[redacted.data]/2005) and Tae M. (D.O.B. 11/[redacted.data]/2006). The Guardian Ad Liter') (GAL) appeals the January 12, 2012 Order of this Court denyirng the termination of Mother's parental rights.[1]
Factual and Procedural Summary
The mother and children have an extended history with CYF dating back to 2001 with allegations of physical abuse and neglect being made in 2002. Since then, all of the children had been found dependent by previous trial judges and all of the children had been in multiple stranger placements for varying and significant amounts of time. At this court's first hearing with this family on April 4, 2008 Tad. M. was the only child in the mother's custody. After the hearing, this court ordered the reunification of Ti. M. and Tai. M. with Mother and found that Mother was in substantial compliance and progress in meeting her Family Service Plan goals and In Home Services were to continue. Mother's visits with all other children in placement remained supervised. On June 18, 2008, upon motion of Mother, this court modified Mother's visitation permitting a change of location and increasing visits upon agreement of the parties.
At the next Permanency Review Hearing on July 11, 2008, this court ordered Ta, M., Ty. M., N.M., and Tae. M. to remain in foster care placement with Mother to continue to work and cooperate with In Home Services. CYF was to investigate Mother's paramour and all other possible caretakers and visits with Tae. M. were increased to overnights.
Approximately one month later on August 15, 2008, this court heard In Home Dependency Reviews for Tad. M., Ti. M. and Tai. M. and Permanency Reviews for the children who remained in placement (Tae. M., N.M., Ty. M. and Ta. M.). The court found Mother to be in substantial compliance with the Permanency Plan and that she was making progress toward alleviating the circumstances that necessitated the current placement. At the conclusion of the hearing, it was ordered that In Home Services were to remain in place and Mother was to comply with her family service plan (FSP) goals. In addition, this court ordered that Tae. M. be returned to Mother's custody, and again, as opposed to yet another stranger care placement, with Mother and children to continue with family therapy. The other children N.M., Ty. M., and Tam. M. were to remain in their newer foster homes. Mother's visitation remained status quo. In addition, it was ordered that interactional evaluations between Mother and children with Dr. Sigmund were to take place in Mother's home.
On August 27, 2008, this court ordered the return of Tam. M. to Mother's home as opposed to another stranger care placement, with In Home Services. The child was to be enrolled in school and all necessary information was to be transferred so that Tam. M. could begin the 2008 school year. After August 27, 2008, all of the children had been returned to Mother, except for N.M. and Ty. M. who remained in foster care, Within a week of Tam. M.'s return to Mother, the GAL filed a Motion To Compel Compliance in which numerous allegations were made alleging Mother's failure to comply with FSP goals as per this court's order dated August 15, 2008. A hearing was held on September 12, 2008, and Mother was ordered to comply with all FSP goals and should Mother fail to comply within ten (10) days, CYF was ordered to bring a Shelter Hearing before this court on September 26, 2008. Mother was also ordered to provide an address for her paramour and he was not to be around the children unsupervised. Neither CYF nor the GAL filed for a subsequent emergency hearing.
The next review hearing on this matter was on November 21, 2008. At the conclusion of the In Home Dependency Review hearing for Tad, M., Tam. Tai, M., Ti. M. and Tae. M., it. was ordered that the children's placement with Mother remain status quo. The criminal history of Mother's paramour was considered. The Shelter Review of N.M. and Ty. M. required both children to remain in their current foster homes.
Mother's visits with her placed children were to remain status quo with extended visits for the Thanksgiving and Christmas holidays, and the visits were to move to unsupervised overnight upon the agreement of the parties, with spot supervision to be provided by the agencies. This case was scheduled for review before this court on January 9, 2009.
On January 7, 2009 and two days prior to the next scheduled review hearing, CYF's motion requesting that Tad. M., Tam. M., Tai. M., Ti. M., Ty. M. and N.M. be transported to Children's Hospital of Pittsburgh (C. H. P.) for forensic interviews was granted. The next day, January 8, 2009, CYF brought an Emergency Custody Authorization based on the forensic interviews at C.H.P. in which the children disclosed that Mother "whoops them with belts and hangers", smokes weed and had witnessed Mother and paramour having sexual relations.
All children who had been residing with Mother were removed on January 8, 2009. At the January 9, 2009 shelter hearing, this court ordered that Tad. M., Tam. M., Tai. M., and Tae, . M. remain placed in shelter foster homes with the children to continue to attend their current schools. Ty. M. and N.M. were to remain in their current foster placements. If Mother was unavailable, the GAL was to be appointed Educational Guardian and Sharon Profeta, Esquire was to be appointed as Medical Guardian. Mother's visits were to be supervised every other week, split between the foster homes. Mother was also ordered to have a urine screen on January 9, 2009 and randomly thereafter. The next hearing on this matter was a shelter hearing which took place on February 6, 2009. At the time of this hearing all seven (7) children were in stranger homes. CYF caseworker, Claire Chiaverini, testified that Tae. M., Ti. M., Ta. M., Ty. M. and N.M. were all doing well in foster care, despite the fact that Tad. M. and Tai. M. had been placed in several stranger foster homes since their placement on January 9, 2009. CYF requested a "goal change" to adoption with permission to place in appropriate preadoptive homes. CYF also requested the "goal change hearing" due to the new allegations of abuse and neglect and the fact that the case has been active since 2002. The minor child, Tad. M. also testified recanting her disclosures of physical discipline that she had made to the C.H.P. forensic interviewer. At the end of this hearing it was ordered that all children remain in placement with permission to place and Mother's supervised visits were to remain status quo. Also, an expedited "contested goal change hearing" was scheduled for March 6, 2009 before this court. Finally, and prior to the March 6, 2009 hearing, this court had ordered that an interactional evaluation with all children, at the same time, be completed by Dr. Sigmund and considered at the expedited goal change hearing.
On March 6 and March 16, 2009, the court considered CYF's and GAL' s request for a single goal change to adoption under the Allegheny County abolished practice of a "contested goal change" permanency, review hearing. Mother's position was to keep reunification as a goal. During the two-day hearing, the court heard from nine different witnesses including Dr. Cathy Sigmund, Ph.D., the court appointed Psychologist. Dr. Sigmund had most recently evaluated Mother and all children on February 27, 2009, at which time she conducted an interactional evaluation with Mother and all of the children and individual evaluations of Mother and the older children, Tad. M., Tai. M., Tim. M. and Ta. M. Dr. Sigmund's report indicated that all of the children continue to be attached and bonded with Mother, as well as bonded and attached to each other. The report also found that Mother did a good job managing her time and activities between her children whose ages range from 2 to 10 years. Dr. Sigmund also noted the fact that the children were better behaved while with Mother than during their individual interviews. Dr. Sigmund indicated that the children's behavior was suggestive of a need for individual, behavioral, professional health interventions and a need for evaluations by a psychiatrist for possible medication management. Dr. Sigmund expressed concern regarding inconsistencies with regard to the children's allegations of physical abuse and the lack of any recent physical evidence of abuse. Dr. Sigmund's report also notes concern about the repeated issues that these children have had to endure i.e. excessively poor and multiple stranger care placements and opined that out of home stranger placements may be as re-traumatizing as physical injury or neglect.
Prior to making a recommendation concerning an appropriate permanency goal, Dr. Sigmund advised that she would need the following information: 1) Any additional corroborating information from CYF, Kids Voice, CASA and/or Parent Advocate; 2) information from CYF detailing the children's placement history and related outcomes; 3) final outcome of recent allegations of physical and sexual abuse; 4) Children's medical and dental histories, schedule of appointments, missed appointments, both when in Mother's care and outside of Mother's care; 5) children's academic and educational information and history including special education services and evaluations; and 6) Mother's and children's participation in behavioral health services, outcomes and schedule of appointments, compliance, rates, etc.
Dr. Sigmund's psychological evaluation of Mother was based on Mother's presentation, on clinical interviews, and on CYF's historic information concerning Mother. Dr. Sigmund determined that Mother meets clinical criteria for the following diagnoses: Cannabis abuse, Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, Rule Out, Mood Disorder NOS and Rule Out. Personality Disorder NOS. Dr. Sigmund's recommendation for Mother was to receive In Home, Family Focused Behavioral Health Services to address symptoms and problems with her diagnoses. The report also recommended that Mother should receive a complete drug and alcohol evaluation for substance use/abuse and any rehabilitation services and treatment. In addition, Mother's continued, supervised visitation with children be contingent upon Mother's being compliant with mental health services and clean urine screens.
At the conclusion of the March 16, 2009 hearing, this court ordered all children to remain in their current placements and denied CYF's request for a goal change to adoption for all children. The court denied the goal change based upon Dr. Sigmund's evaluation and conclusion of a strong family bond and attachment and because she needed more information in order to further evaluate. Mother was ordered to have mental health and drug and alcohol evaluations and was required to follow all recommendations and submit to random urine screens. The court also ordered Mother to complete all FSP goals with recommendations from Dr. Sigmund and Tad. M.'s therapist, Ms. Mocha. The next scheduled review for this case was set for June 17, 2009.
On March 23, 2009, the GAL filed an Appeal On Behalf of All Children, before the expert had concluded her evaluations and against the weight of the existing evidence as to best interests of the children in that the children had no meaningful relationship with any adult other than their mother, they Were living with total strangers, and most significantly, they were clearly bonded as a family. The Superior Court identified these appeals as Children's Fast Track Appeals and consolidated these appeals for purpose of briefing and argument.
On May 7, 2009, the court panted CYF's Emergency Motion to change Ty. M.'s placement because of yet another failed stranger care foster home. The court also ordered Mother to provide a list of possible family members as placement options and for CYF to employ Family Finding for all children which is a Pa. Supreme Court sanctioned best practice initiative. The record reflects that the court ordered Family Finding prior to the children having any meaningful relationships with the strangers with whom they were living and upon consideration of their strong attachment with Mother and each other and nobody else.
At the next permanency review hearing on July 1, 2009, the court found that Mother was in substantial compliance with the permanency plan and had made moderate progress towards achieving her FSP goals. The court ordered Mother to continue with all FSP goals and treatments, Sabrina Johnson was appointed medical guardian for Tae. M., and educational and medical guardian for Ti. M. and Ta. M. The next hearing date for this matter was rescheduled to August 19, 2009. This court notes that Dr. Sigmund's supplemental report dated July 1, 2009, recommended that the goal not be changed to adoption evidentiarily confirming this court's March 16, 2009 denial of CYF's request for a goal change.
As a result of a shelter hearing on July 27, 2009, the court ordered another removal of Ta. M. from placement with Sabrina Johnson and vacated her prior appointment as educational and medical guardian. The child was ordered to be placed in the foster home of B[redacted.data] S[redacted.data] and appointed Sharon Profeta, Esquire as the child's educational and medical guardian. On August 20, 2009, the court granted GAL'S Motion to Continue the Children's Shelter Review Hearings and also ordered the. CYF caseworker to have this family participate in the CYF Family Group Decision Making best practice initiative. This court would like to emphasize that Dr. Sigmund's supplemental report dated, July 1, 2009, and almost 3 years ago, recommended that this case be moved from the traditional CYF supervision/placement to a newer Family Group Decision Making (FGDM) which is a family empowerment initiative of Allegheny County CYF and the currently recognized Pa: Supreme Court best practice.
On September 9, 2009, the court granted GAL's Motion Confirming the Removal of Ti. M. from Foster Home due to allegations that child inappropriately touched the four year old. foster sister and his two year old biological brother, and ordered yet another shelter foster home as placement until the child could be placed in a long term foster home. The court reappointed Sharon Profeta, Esquire as the child's guardian.
The court deferred the "goal change hearing" on October 30, 2009, but conducted a permanency review hearing for each child. The court ordered Mother to continue to comply with her FSP and cooperate and follow all recommendations from Mercy Behavioral and POWER. CYF was ordered to continue to monitor this case and to provide services as previously ordered. CYF had to again be ordered to refer this case to Family Group Decision Making as nothing had happened and CYF had not followed best practice, Tad. M. was to remain at Holy Family Group Home with permission to place with an appropriate relative upon the agreement of all parties. Tai. M. to remain in the foster home of John Addison with permission to place the child in RESPITE care. CYF was also given permission to place the child with an appropriate relative upon agreement of all parties. Ta. M. was ordered to remain in his current foster home. Ti. M. was to remain in his current foster home. Ty, M. was to remain in the care of his godmother, D. H[redacted.data]. N. M. was to remain in the foster home of G. O[redacted.data]. M. was to remain in the foster home of S. J[redacted.data] Visitation between Mother and all children were to remain status quo.
On December 18, 2009, the court increased visits with Mother and Tad, M. which were to take place at Mother's home. The court also appointed Eli Ziokas, Esquire as temporary educational guardian of Tad. M., Tai. M. and Ty. M.
The next permanency review and goal change hearing took place on January 6, 2010, March 31, 2010, and April 7, 2010. On January 6, 2010, Dr. Sigmund's testimony was taken and incorporated into the record in which she again recommended that the goal not be changed to adoption. The permanency review hearing was continued to March 31, 2010. Approximately one year after the appeal was filed, on February 19, 2010, the Superior Court reversed the trial court's order of March 16, 2009, and changed the goal to adoption. The continued permanency review hearing took place on March 31, 2010 in which Dr. Pepe's and the CYF caseworker's testimony were taken and incorporated" into the record.[2] The hearing was continued by agreement of all parties to April 7, 2010 so the court could hear the testimony from all additional witnesses. On March 31, 2010, the court ordered that Tad. M. remain in the care of Holy Family, Ta. M. remain in the foster home of B.J. S[redacted.data], Tai. M. remain in the care of the foster home of S. B Ti. M. remain in the care of the foster home of B. B.[redacted.data]. N. M. remain in the care of the foster home of G[redacted.data] O[redacted.data], Tae. M. remain in the care of the foster home of S. J[redacted.data] and Ty. M. remain in the care of his godmother D. H[redacted.data]. At the conclusion of the hearing on April 7, 2010, all children were ordered to remain in their current placements with all other matters to remain status quo. This court would reemphasize that prior to and also after the Superior Court's February 19, 2010 Opinion changing the goal to adoption, both psychological experts, Dr. Cathy Sigmund twice and Dr. Patricia Pepe at every permanency review recommended against a goal change to adoption. The court continued the permanency review, . hearing until June 30, 2010.
On May 21, 2010, the court heard Mother's Motion requesting that CYF accommodate Mother's school schedule when making appointments for her and the children, and, when necessary, provide Mother transportation to the appointments. The court ordered the parties to meet to create a schedule that does not conflict with. Mother's schedule, and for CYF to provide transportation to said appointments as needed.
On June 7, 2010, CYF filed an emergency motion to change the placement of Ti. to an intensive residential treatment (IRT) foster home: which the court granted on June 9, 2010. On the same date, GAL filed an emergency motion requesting that Tai. M. be granted permission to travel out of state with the foster mother. The court granted GAL's motion with the only provision that missed visits be made up with Mother.
At the June 30, 2010 scheduled permanency review hearing, CYF and GAL requested a continuance so they could file legal briefs opposing Mother's request for a `goal change hearing." to change the goal back to reunification as consistent with all of the psychological evidence. The court granted the continuance and also ordered that Tad. M., Ty. M., Ti. M., N.M. and Tai M. shall remain in their current placements and all other matters remain status quo,
On July 7, 2010, the court granted CYF's motion confirming the placement of Tad. M. in the foster home of T. [redacted.data] and granted Mother's motion to permit Mother to have a supervised birthday visit in her home for her twins Tai. M. and Ti. M. The court also granted Mother's request for a birthday visit with N.M. on August 8, 2010.
The permanency review hearing scheduled for August 18, 2010, was continued to September 29, 2010. CYF filed TPR petitions for all children on August 30, 2010, contrary to their-long standing policy against the creation of legal orphans and the recommendations of both psychological experts.
At the September 29, 2010 Permanency review hearing, the court made the following findings contained in its October 18, 2010 CPCMS permanency review order. Mother has made moderate progress in complying with her permanency plan and alleviating the circumstances which necessitated original placement of the children." Mother has visited the children on a regular basis, and has been receiving her mental health therapy and moving towards psychological stability. Mother has also shown a lot of growth and has continued to be more collaborative and consistent with the children's M.H. therapists, medical providers and school personnel. The court also found that now a second expert, Dr. Patricia Pepe, retained by CYF and GAL because the first expert recommended reunification, also concluded that she also would not recommend a goal change to adoption specifically related to the best psychological interests of the children. Dr. Pepe opined that, given the magnitude of the children's psychological and behavioral issues, the reality of a successful adoption placement was unlikely for most of the children. The court then entered a voluminous and comprehensive order specifically ordering that all family members utilize one service provider and a unified crew be involved with the visitation with all children and Mother. During these visits, Mother was to be provided parent modeling, which includes assisting Mother with managing the children and help children address issues and intervene during parent/child visits. The court also ordered Dr. Pepe to evaluate all children and Mother, and to recommend a concurrent plan to be implemented by CYF Family Group Decision Making The court farther ordered the following for each child:
Ta. M. remain in placement in the foster home of B.J. S[redacted.data]. The child was to be evaluated for additional counseling and continue his extra curricular activities and continue to attend the same school for 2010-2011 school year;
Tad. M. remain in the foster home of T. P[redacted.data] and child was to have therapy addressing both immediate and long term psychological problems and have an individualized educational plan (MP) for the 2010-2011 school year. In addition, the child should be considered for a TSS outside of school hours as recommended by her former therapist. CYF was provided permission to place in an IRT;
Ta. M. was to remain in IRT foster home of T. and N. P.[redacted.data] The child was to continue individual counseling for his behavioral and emotional needs and have a new comprehensive TEP addressing his educational and behavioral needs. The child was to receive educational and therapeutic care and medications were to be monitored.
Tai. M. remain in the foster home of S. B[redacted.data]. The. child was to continue his M.H. therapy and have his medications monitored and increased as medically appropriate. Foster mother, Mother, teachers and therapists were to follow recommendations in Dr. Shonburg's report in dealing with child behavior and cognitive deficits. In addition, the child was to have special education classes for the 2010-2011 school year.
Ty. M. was to remain in the therapeutic foster home of M. D[redacted.data] The child was to receive intensive therapy as ordered by Dr. Clark and request a partial hospital classroom. The child's medications were to be monitored with collaboration between teachers and treating psychiatrist. In addition, the child was to continue mental health services and was ordered to have a neuropsychological evaluation for a thorough understanding of his cognitive and behavioral needs.
The. M. remain in the foster home of S. J.[redacted.data] and was to continue to attend YMCA day care and follow all recommendations of the YMCA developmental screening. Child to continue speech and OT therapy services.
On November 11, 2010, and at least fourteen months after ordered, and sixteen months after expert recommended, Mother was required to file a motion to have CYF provide FGDM[3] with the children's addresses so arrangements could be made to transport the children to the FGDM conference that was scheduled for Saturday, November 12, 2010. Incredibly, CYF had provided notice to Mother and Mother's attorney that the children were not going to be transported to the court ordered FGDM conference. Judge Mulligan ordered the FGDM conference scheduled for November 12, 2010 be postponed to November 20, 2010 and CYF was directed to be prepared to provide transportation for children to FGDM either directly or indirectly. On November 19, 2010, this court reaffirmed Judge Mulligan's November 12, 2010 order, and ordered the children to attend the November 26, 2010 FGDM conference and CYF to provide the children's addresses to FGDM so they could arrange for the transportation of the children.
On December 3, 2010, the court granted Mother's motion requesting extended supervised Christmas home visits with all of her children during the week of December 20, 2010. Mother's counsel filed a Motion to Compel Compliance With Court Order on December 10, 2010. CYF had sent Mother's counsel an e-mail outlining, Mother's Christmas visit that did not comply with this court's December 3, 2010 order. CYF had only scheduled a two hour visit with the children and Mother at CYF's Lexington offices, which was contrary to what the court ordered on December 3, 2010. Again, on December 17, 2010, this court granted Mother's Motion to Compel Compliance granting an extended supervised home visit with Mother and all of her children during the week of December 20, 2010 with FGDM to set up the visit in addition to what had already been scheduled.
On February 2, 2010, the court denied Mother's Motion to Compel Compliance with Court Orders dated October 18, 2010, as to the issue of the reasonable efforts of CYF, and upon reflection perhaps erroneously, as it was the court's intent to foster all parties' cooperation with Family Finding and Family Group Decision Making. The court, on the same date, granted Mother's motion for an extended birthday home visit, In addition, the court ordered CYF to provide transportation for all children to and from family group therapy and parent modeling at Wesley Spectrum on a weekly basis. CYF was also ordered to transport each child to attend individual therapy with Mother at Wesley Spectrum on a weekly basis per Dr. Pepe's recommendations.
Oil February 7, 2011, the court granted CYF's Motion to place Tae M. with an appropriate foster home and Mother to provide CYF information regarding potential relative placement for CYF investigation and consideration,
The court, on March 2, 2011, issued corrective orders for Tae. M., Ti. M., Ty. M, Ny. M., Ta. M. and Tad. M. ordering all to participate in weakly family therapy with Mother. In addition, Tad. M. and Mother were ordered to have weekly therapy together.
At the March 2, 2011 hearing, this court also issued an order that Mother's paramour was to have no contact with Tad, M. The court also appointed Stacy Mitchell the medical and educational guardian of Ny. M. and Sharon Profeta, Esquire, the medical and educational guardian of Tae. M.
On March 30 and April 4, 2011, the court conducted permanency review hearings for all children. At the conclusion of these hearings the court issued an order dated April 4, 2011, which found that Mother had been making moderate progress in complying with her permanency plan. The court noted that Dr. Pepe reported that Mother had made progress with interacting when all children are present. Dr. Pepe also reported that Mother had shown progress in developing insight into her own behavior and has addressed her mental health and D/A issues. The court also found that CYF had not made Dr. Pepe aware of the. court's October 18, 2010 order directing Dr. Pepe to develop a concurrent plan to be implemented by CYF Family Group Decision Making, four months previously. The court further found that THE GOAL FOR ALL CHILDREN, AS PER DR, PEPE'S RECOMMENDATION, IS TO STABILIZE THE CHILDREN BEHAVIORALLY AND PSYCHOLOGICALLY. At the time of this hearing. three of the children Tam. M., Tad. M. and Tae. M., were placed with relatives, and only one child N.M., was in a pre adoptive home, and two children were in IRT foster hornes.[4]
On July 6 and. 27, 2011, the court conducted permanency review hearings for all of the children, The court issued an order dated July 27, 2011, which made the following findings:
The order indicated that all of the children when interviewed in camera, on July 27, 2011, and they all expressed their wish to visit Mother and their siblings more frequently, and displayed a significant bond with Mother, as observed by the court in its unprofessional opinion. AU of the children expressed their desire to be reunited with Mother and their siblings. The court order also noted that Mother has been making moderate progress toward alleviating the circumstances which necessitated the original placement and was complying with her permanency plan. The court found that Mother had been consistently attending therapy at Mercy Behavior Health, was consistent with her medication management, and had been consistently visiting the children. The court order also noted that Mother continues to struggle with drugs or alcohol, and had tested positive for THC twice since April of 2011, but was clean when tested on July 27, 2011. The court also found that FGDM did not complete a concurrent plan for these children based on Dr. Pepe's recommendations since they were not provided the necessary information. The court ordered that a permanency planning/family engagement meeting to occur before the next court hearing where all parties were to attend.
Sitting as a trial Judge in Orphan's Court and following a series of hearings on April 27, 2011, May 4, 2011, May 11, 2011, June 22, 2011, August 17, 2011, August 31, 2011, October 12, 2011 and November 23, 2011, and a lengthy review of the exhibits, this court on January 12, 2012, denied CYF's petition and found that CYF did not provide clear and convincing evidence that terminating the parental rights of [redacted.data] M. (mother) would serve the needs and welfare of the children under 23 Pa. C.S.A. 2511 (b). On February 12, 2012, the GAL filed a Notice of Appeal along with the following Concise Statement of Matters Complained on Appeal:
1.) The Trial Court abused its discretion and/or erred as a matter of law in accordance with the coordinate jurisdiction rule, in that the Superior Court of Pennsylvania (I.O.P, 65, 37, Nos, 518-523 Western District Appeal 2009) had previously reversed this Trial Court, changed the goal to adoption and held that there can be no purpose served by continuing to reunite the family.
2.) The Trial Court abused its discretion and/or erred as a matter of law in denying Children Youth and Families' petition to involuntarily terminate natural Mother's, T[redacted.data] R[redacted.data] M[redacted.data] a/k/a T[redacted.data] M[redacted.data] a/k/a M[redacted.data] R. M.[redacted.data] a/k/a T[redacted.data] Unrecorded a/k/a T[redacted.data] Unrecorded's rights pursuant to 23 Pa. C.S. 2511 (a)(2), (5) and (8).
3.) The Trial Court abused its discretion and/or erred as a matter of law when it found that CYF did not present clear and convincing evidence supporting the termination of parental rights of Mother pursuant to 23 Pa, C.S.s 2511(b).
4.) The trial court abused its discretion and/or erred as a matter of law in considering testimony of the children because the children could not cede their rights to minimal appropriate nurturing
5.) The Trial Court abused its discretion and/or erred as a matter of law in considering the dependency transcript of children's testimony, (marked for identification as "NM5"), because such evidence was taken under advisement by the court, but not admitted into evidence.
DISCUSSION
"The Blind Side," starring Sandra Bullock, as adapted from the Michael Lewis semi-autobiographical Michael Ober story, a current professional football player with the Baltimore Ravens, contains two compelling scenes that capture what it is that we do in Pennsylvania's child dependency system. Scene one opens with Leigh Ann Tuohy meeting Michael Oher's mom in her public housing apartment with the following dialogue:
Morn: You a fine Christian lady.
Leigh Anne Tuohy: Well, I try to be.
Mom: This is really nice what you're doin, but don't be surprised if one day you wake up and he gone.
Leigh Anne Tuohy: What do you mean?
Mom: He's a "runner." That's what the state called him after they took him from me.
Every foster home they sent him to, he'd slip out the window at night and come looking for me.
No matter where I was that boy would come and find me, take care of me."
The next scene is at a Tuohy family dinner at which time the Tuohy's want to ask Michael what he thinks about everything and begins with Mr. Tuohy:
Sean Tuohy: "Michael, We have something we'd like to ask you.
Michael: What?
Sean Tuohy: Leigh Anne and I, we... Well... We'd like to become your legal guardians.
Michael: What's that mean?
Sean Tuohy: What it means is, that we want to know if you'd like to become a part of this family.
Michael: kinda thought I already was."
These two scenes capture the essence of the M[redacted.data] Case and underscore that what we should be doing is finding loving homes for kids and if there is attachment and bonding to their family, it is likely that children will continue to seek them out for some type of reunification. The reality that children in stable, loving homes foster or adoptive, understandingly still want to see their families, and we as child welfare courts should recognize and develop both relationships. While this court continues to review this case and suggests that it has recently achieved a significant level of true permanency by finding homes through Family Group Decision Making and Family Finding, and has also somewhat stabilized the overall well-being of each of the children, the legal outcome remains in doubt. Fully understanding that the Adoption and Safe Families Act 1997 (AFSA) was enacted inter alia to expedite legal permanency and reduce "foster care drift," it is also abundantly clear that the ultimate exception to AFSA time frames should be until a child finds meaningful, loving relationships with a family and committed homes are established) Nothing else should legally matter. Unfortunately, this requires a change in thinking for attorneys, judges, social workers and all players in the child welfare system regarding minimizing or elimination of the adversarial nature of the current system and recognition of the need for a more family, solution-based, non adversarial approach, as has been continuously sought by this court. This court suggests that CYF and GAL viewed the case under traditional AFSA analysis and the old social work model requiring either expedient parent reunification or adoption, and focused solely on Mom's conduct. Current best practice reflects families telling CYF and the courts what works for the family with CYF, working collaboratively to strengthen, not terminate family bonds. Tinder this model, CYF acknowledges that its role is not that of a legal advocate, but to empower the family to protect their children, In Miyares, almost all foster families have relationships with Mom and the court sees these relationships as being at least similar to a separation or divorce custodial situation as it relates to these children. Many of these relationships are better than those between divorced parents. This court believes it should continue to to positively foster all of these adult and familial relationships.
In 2004, a Pew Commission Report entitled Pennsylvania Commission on Children in Foster Care Report to Congress emphasized:
" Although child welfare agencies and the courts share responsibility for improving outcomes for children in foster care, institutional barriers and long established practices often discourage them from collaborating. Effective collaboration requires that both entities change the way they think about their respective roles, responsibilities, and priorities and engage in a new way of doing business together. Jurisdictions in which courts and agencies have been able to make this shift have yielded better results for children"
The primary goal in the M[redacted.data] dependency case became and remains to stabilize the children behaviorally and psychologically, and then continue with the permanent, safe, and loving homes for every child that we now appear to have. This ultimate goal can best be accomplished through various permanent placements options of subsidized permanent legal. custodianship (SPLC), kinship care or open adoption Although the end result may have different legal names and definitions, each should provide those children with permanent, safe and stable homes, and without making a child a permanent legal orphan. Michael Oher's response best reflects what this court believes most children's understanding of permanence to be a safe, loving home. He thought that he already was part of the family and the legal relationship was insignificant to him. Permanence is foremost about the relationship and less about its legal characterization.
GAL's First Averment of Error
The GAL's first matter raised on Appeal avers that this court abused its discretion and/or erred as a matter of law in accordance with the coordinate jurisdiction rule in that the Superior Court of Pennsylvania (I.O:P. 65, 37 Nos. 518-523 Western District Appeal 2009) had previously reversed this court and changed the goal in this case to adoption and that there can be no purpose served by continuing to reunite this family. In Commonwealth v. Starr, 664 A.2d 1326 (Pa.1995) our Supreme Court described the law of the case doctrine (which includes the coordinate jurisdiction rule) as precluding a trial judge from acting in the following circumstance; "upon remand for further proceeding, a trial court may not alter the resolution of a legal question previously decided by the appellate court in the matter." Starr, 664 A.2d at 1331. This court contends that it did not violate the coordinate jurisdiction rule in this case. Upon receipt of the Superior Court's Opinion on February 19, 2010, this court changed the goal in this case to adoption as per the Superior Court's Opinion.
The GAL contends this court abused its discretion when after the goal in this case was changed to adoption it did not terminate CYF services for reunification. This court believes that the last sentence in the Superior Court's Opinion stating, "there can be no purpose served by continuing to work to unite the family" is dictum, and continued family services by CYF are not automatically terminated by a change of goal from reunification to adoption and perhaps more significantly, the issue was not addressed specifically by the Superior Court. In fact, this court contends that concurrent planning is always the preferred practice, in all dependency cases as outlined by our Supreme Court in In Re. R.J.T., 9 A.3d 1179 (Pa. 2010) and In Re S.E.G., 901 A.2d 1017 (Pa. 2006). The Supreme Court in In Re R.J.T., 9 A.3d at 1191 citing In Re. S.E.G., 901 A.2d at 1029, stated that "concurrent planning is encouraged because it both protects the child from foster care drift by allowing agencies to consider adoption resources (including kinship care) while keeping alive the potential of reunification." This court opines that the Supreme Court is essentially saying that court ordered goals are irrelevant and should certainly be flexible and about nothing more than to find a loving home for children. This court emphasizes that concurrent planning was ordered almost two years ago and should have been an ongoing best practice, but it never actually occurred as court ordered. The CYF caseworker's testimony on November 23, 2011, clearly illustrates that concurrent planning never took place (See RT. p. 157-159, Cross exam by parent advocate and questioned by the court).
Q. Your concerns about the children attending the Family Group Decision Making Conference, you testified because there was a court ordered goal of adoption, you didn't want confusion; correct?
A. Ms. Chiaverini: Confusion, and because of what was going to be stated there, it would have been very difficult for the children to process, I felt.
Q. But by the time that conference was scheduled, the Juvenile Court had already ordered that concurrent planning take place; correct?
A. Ms. Chiaverini: Correct. But we had also filed our TPR.
Q. The Court: When I ordered Family Group after the Superior Court had changed the goal in the case, what did you think that meant to you? What did you see as your role in the case?
A. Ms. Chiaverini: At that point in time I was very confused about what my role was. Another factor that this court considered in ordering concurrent planning was the GAL and MT's expert, Dr. Pepe's report on October 24, 2009, and November 24, 2009, page 36, stated:
"One of the referral issues posed by OCYF and Kids Voice is if there should be a goal change to adoption. I have multiple concerns about a goal change to adoption at the present time specifically related to the best psychological interests of the children. Of the seven children, only Tae. M. is in a viable preadoptive placement. Given the magnitude of the children's psychological and behavioral issues the reality of a successful adoptive placement presents as being unlikely. This issue is illustrated by the changes in foster placements that the children have experienced. Tad. M. has had eleven changes, Tam. M. five, Tai. M. six, Ti. M. six, Ty. M. thirteen, N. M. five and Tae. M. six. Some, but not all of the changes in placement occurred because of behavioral issues with the children. Some of the other reasons included the children being left alone in a car by a foster parent and a foster parent reportedly testing positive for drugs. An additional issue is related to attachment and bonding, During each of the interactional evaluations between T[redacted.data] and each child, it is obvious that all the children remain closely and emotionally aligned with their mother and continue to view her as a psychological parent. In fact, I was somewhat surprised by the degree of attachment N. M. exhibited as he had not been reunified with his mother, his siblings and has not been home since the incident when his physical well being was reportedly compromised. Consequently, at the present time, I do not recommend a goal change to adoption."
Given the fact that both psychological experts in this case had provided opinions "that the goal should not be changed to adoption" prior to and following the Superior Court's opinion on February 19, 2010, this court continued to order concurrent planning in this case. GAL and CYF chose not to withdraw their appeal despite their own expert recommending against their position.
Moreover, the relevancy of a goal change to adoption has been significantly diminished in child dependency cases by the Pa, Supreme Court's opinion in In Re. S.E.G., in which the court held that "an agency may file a termination petition even where reunification remains the peunanency goal for the child." In Re S.E.G. 901 A.2d at 1026. This court would opine that the goal in every dependency case should be to find a permanent, safe home for every child and nothing more and that a legally designated court goal, is largely irrelevant. Allegheny County no longer conducts contested goal change hearings prior to a TPR and believes it is a bad practice and has since modified its procedure, so that now the contested goal change is the TPR hearing.
GAL Second and Third Averment of Error
This court will address GAL's second and third averment of error together. GAL avers that the trial court abused its discretion and/or erred as a matter of law in denying CYF's petition to involuntarily terminate natural mother, T[redacted.data] M.'s parental rights pursuant to 23 Pa. C.S. § 251 (a)(2),(5) and (8). GAL also avers that the trial court abused its discretion and/or erred as a matter of law in finding CYF did not present clear and convincing evidence supporting the termination of parental rights of Mother pursuant to 23 Pa. C.S. § 2511(b).
The court may properly terminate parental rights based upon only one of several grounds alleged pursuant to 2511(a). See In Re 745 A.2d 1256 (Pa. Super 2000). In the present case, this court found that CYF did establish threshold grounds for termination pursuant to 23 Pa. C.S. § 2511 (a)(2) by clear and convincing evidence. In addition, this court found that all elements of 2511 (a)(5) and (a)(8) were proven by CYF by clear and convincing evidence except for whether the termination of parental rights would best serve the needs and welfare of the child which is a required element for both (a)(5) and (a)(8). However, this court found that CYF did not prove clearly and convincingly, that terminating Mother's rights would best serve the needs and welfare of the child pursuant to 23 Pa, C.S. 2511 (b). The statute provides: "[tjhe court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child". 23 Pa. C.S. § 2511(b). hi In re Adoption of R.J.S., the court stated:
Our case law has made it clear that under Section 2511, the court must engage in a bifurcated process prior to termination parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only after determining that the parent's conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interests of the child. Although needs and welfare analysis is mandated by statute, it is distinct from and not relevant to a determination of whether the parent's conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child.
In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa. Super. 2006). (internal citations omitted).
Our courts have also held that a parent/child attachment is an important element when considering the needs and welfare of a child. In In re Mastock the Superior Court stated:
It is well established in the Commonwealth that "[c]ourts are required not only to focus on the behavior of the parent, but more importantly are required to consider the effects of termination on the welfare of the child." Before granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child-love, comfort, security, and closeness— entailed in a parent-child relationship, as well as the tangible dimension. "Continuity of relationships is also important to a child, for whom severance of close parental ties is usually extremely painful."
In Re Mastock, 611 A.2d 737, 747 (Pa. Super 1992). (internal citations omitted).
This case essentially held that bonding and attachment are to be accorded greater consideration than parental conduct. The most clearly convincing evidence in this case is the family's attachment and bonding to each other. A further review of Dr. Pepe's findings and comments in her reports and testimony provides clear evidence of the children's attachment with their mother. Dr. Pepe's evaluation and report dated 12/15/10 to 2/9/11, CYF's exhibit F provides the following observations and findings regarding the children's attachment with their mother and siblings including:
P. 26 Re: Tam. M. "He also described a continuing attachment towards his mother."
P. 27. "During the interactional evaluation with Ty. M., N. M. and Tad. M., Mother consistently exhibited positive. and appropriate parenting skills. She easily engaged in play with the children and was able to positively structure them in play. Additionally, she exhibited positive communication with the children and all three of the children were consistently responsive towards her. Particularly, Ty. M. and Tad. M. vied for attention from their mother. Ty. M. and N. M. were able to play together very well while Tad. M. tended to play on her own, given the different developmental levels of the children. All three of the children were responsive to their mother and exhibited a degree of attachment toward her."
P. 27. "During the interactional evaluation, specifically Ti. M. and Tae. M. seemed to exhibit a closer attachment toward their mother.'
P. 28,-29. Re: Ti. "At present time, I would recommend continued foster care and would not recommend adoption at this time. While he doesn't know how he would feel if he was adopted, he clearly expressed that he would feel horrible if he did not have any contact with his mother."
P. 30 Re: Tai. M. "While he seems to be beginning to exhibit primary attachment towards Ms. Brown and seems to begin to view her as a primary and psychological parent, he continues to express attachment towards his biological mother stating that he doesn't want Ms. Sarah to be his forever home, but he wants to reunify with his mother. In fact, the goal for Tai. M. may need to be permanent foster care pending Sarah's decision regarding adoption."
P. 31, Ty. M. described an on-going attachment towards his mother. In fact, he expressed that he has nightmares that he has to live in a foster home forever and will never see his mother again."
Dr. Pepe also provided direct testimony regarding the children's attachment towards their mother (see H.T., 4/27/2011, p. 118). "I think its, you know, N.M., I saw as being less attached. Certainly all children continue to have a degree of an attachment towards her. I would say that Tad. M, is very attached. The twins exhibit attachment. Ty. M. exhibits, I would say, a great deal of attachment to the point he becomes very emotionally upset. Tac. M., I mean he's certainly recognized her, but he's very young and he's not had as much contact in terms of, you know, he's been a part from her for a very tong period of time. I think that her maintaining the visits has kept the attachment." Dr. Pepe also noted that Tarn. M. identified his mother as his biological mother and was attached and bonded.
Dr. Pepe specifically provided an opinion that termination of Mother's rights would have a negative impact on Tad. M. due to her close emotional alignment with Mother, but would not recommend reunification with her (see H.T., 4/27/2011, p. 132)
On cross examination during the TPR, for the first time in the over four year history of the case, and never contained in any written report, at the June 22, 2011 continued TPR hearing, Dr. Pepe testified that the parent/child bond/attachment in this case was pathological in nature. This court emphasizes that this was the first time since Dr. Pepe's involvement in this case dating to 2009 (which includes 30 to 40 evaluations) that she ever characterized the parent/child attachment/bond as pathological. The GAL seemed to suggest that this should be evidence supporting involuntary termination but when further questioned by the court regarding pathological bonds, Dr, Pepe recommended that when pathological/bonding /attachment is found it is treated with family therapy and rehabilitation of the parent and does not requite the termination of parental rights. While this court recognizes that bonding and attachment are different, and that there is a spectrum from healthy to pathological bonding, and from bonding to attachment, ultimately, the remedy for these children remained more family therapy and not their further psychological traumatization through involuntarily terminating their family relationships.
This court was also presented with additional evidence as to the significance of the attachment these children have with their mother. When the foster parents in this case last testified before this court on July 6, 2011, they acknowledged the attachment that each child has with Mother. When C[redacted.data] B[redacted.data] (maternal aunt and foster mother of Tad. M.) testified, She indicated that she was aware of the bond and relationship Mother had with Tad. M. and would be willing to foster that bond if she were given SPLC of the child and allow Mother to be involved with the child (see H.T. 7/6/2011, p. 43) S[redacted.data] M[redacted.data] the maternal great aunt and foster parent for Tam. M., testified that she was aware of the bond between Mother and child and that she would be willing to continue and foster that bond and would be willing to allow Mother contact with the child if she were given SPLC or some other long term care for Tam. M. (see H.T. p.p. 69-71, 7/6/2011).
T[redacted.data] S[redacted.data] the MT foster parent for Ti. M., also testified and acknowledged the child's attachment to Wither in which he stated, "I know he has a tight bond with Mother and I would not be one to deny that, and it would be on his— and to his best benefit to make some sort of connection when he is ready to do that." (see H.T. p. 91, 7/6/2011). `When asked whether he would adopt Ti. M., Mr. S[redacted.data] responded in a way that indicates his awareness of the child's bond/attachment with his mother "and the main thing is that by adopting him, I think what I don't want to be is that person that takes him away from his mom momi and he resents that. And I want him to feel comfortable with it. You know, if adoption means that all it is, is just on a piece of paper that he is living with us and he knows in his mind that we weren't the entity that removed him from there and there is resentment you know, then adoption is okay. But if that's going to be the qualifier for him and he's going to turn and say, "You took my morn away from me by adopting" then its not in his best interest. And I will serve in his best interest as a permanent home for him until whenever. I don't really care about that part," (see H.T. pp.101-102, 7/6/2011),
M[redacted.data] A. B[redacted.data] Ty. M.'s IRT foster parent also acknowledged this child's attachment to his mother and the importance of maintaining the relationship. When asked about the child's behaviors after visiting with Mother she responded "like he'll be sad. And you can tell, if you know Ty. M., by little things that he does. Like when we come back, he'll want to be held a lot and reassured that you know, he'll see her again. I think he'll be very happy if he can have both of us." (see H.T., p.p. 149, 151, 7/6/2011).
T[redacted.data] R[redacted.data] a maternal cousin of the mother and the foster parent for Tae. M., also acknowledged that the mother and child have a bond (see H.T., p. 162, 7/6/2011). The only foster parent who was not willing to commit to an open adoption or any contact with Mother or child's siblings was S[redacted.data] M[redacted.data] the foster mother for N.M. Consideration of the foster parent's testimony supports the existing court ordered goal of concurrent planning for open adoption and SPLC, and contraindicates beyond any doubt in this court's mind that termination of Mother's parental rights is in the children's best psychological interests. Their testimony expressing their willingness to support the mother/child attachment collectively reminded the court of Leigh Anne Tuohy's acknowledgement to Michael's mother that "you will always be his mama,"
When the court finds, as in this case, that there is a significant attachment/bond between parent and child it must then conduct a second analysis to determine whether the attachment/bond is worth saving, and whether it can be severed without irreparable harm to the child In Re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Dr. Pepe recommends continuing the children relationship with their mother through open adoption or SPLC involving a parental relationship, and confirms this court's finding that termination of Mother's rights and complete severance of the parent/child bond would result in irreparable harm to these children and would not best serve their needs and welfare. Psychological trauma would occur to these children if their relationships were terminated. This court believes that CYF failed to clearly and convincingly prove that no irreparable harm would occur to these children if their relationships were terminated as required by In Re K.Z.S., 946 A.2d at 763. This court emphasizes that with involuntary termination there is no guarantee that Mother and kids would continue to have contact and avoid complete severance of their relationship and irreparable psychological harm.
Another factor which this court finds relevant in assessing whether termination would best serve the needs and welfare of a child is whether termination would have a negative effect on existing sibling bonds and attachments. In the instant case, there are seven siblings all residing in separate homes due to their many needs related to their psychological and behavioral issues. Throughout the history of this case, it has been evident that these children have bonds and attachments to each other in varying degrees. The fact that sibling bonding has not been substantially addre-ssed by CYF or the GAL in any of their evaluations or reports causes this court gave concern. If termination of parental rights were granted, this court believes that it would have psychologically devastating effects on the-se children if they are not provided an opportunity to maintain sibling relationships. This court finds that the termination of parental rights would have'a detrimental effect on the childrens' siblinc, bonds and would not best serve their needs and welfare. Traumatized children need their siblings and as many positive adult relationships as possible. Again, the long ago court ordered goal of open adoption or SPLC would preserve these sibling relationships and the clear attachment the children have with their mother and their current loving homes.
Another concern this court had was that CYF proceeded with termination of Mother's parental rights in this case despite the lack of adoptive resources for all but one of the children. This concern was reaffirmed by CYF's own expert witness, Dr. Pepe, who expressed concern about not having adoptive placements and proceeding with termination of parental rights:
And regarding psychologically, if children don't have adoptive placements and parental rights are terminated, that obviously leaves them in the status of orphan and its my opinion as a psychologist that having the status of an orphan is very psychologically difficult for children. So that's one of the concerns that I have,
(see H. T., 4/27/2011, p. 134).
The court contends that CYF's standard procedure in the majority of its termination cases is to wait until an adoptive resource is established for a child before a termination petition is filed. This court, on numerous occasions, has granted the withdrawal of CYF's termination petitions in cases where an adoptive resource is lost, and the child would be left a legal orphan if parents' rights were terminated, The National Council of Juvenile and Family Court Judges stated policy (NCJFCJ)" calls for judicial action to reduce the number of legal orphans at risk of aging out of foster care in the United States.[5] During the course of this case, CYF never provided a satisfactory explanation as to why its TPR policy was different in this case, or why it was an exception to the rule other than its acrimonious history with Mother and their sole focus on her conduct. The level of acrimony in this case was observed and noted by Dr. Pepe in her report dated October 5, 2009, to November 24, 2009, page 35, in which she states: "I have conducted many psychological evaluations for Allegheny County Dependency Court over a period of approximately twelve years and have not been involved with a case that has reflected the degree of divergence and emotional reaction on the part of not only the family members, but also the professionals that are involved with this case."
This court finds that it does not serve the needs and welfare of these children to involuntarily terminate parental rights without adoptive placements.
Finally, in assessing whether termination of parental rights will best serve the needs and welfare of these children, this court considered Dr. Pepe's recommendations for permanency. Dr. Pepe has only recommended the traditional adoption i.e., no relationship with birth patent for only one child, N.M. With all the other children she has either recommended permanent foster care (SPLC) or open adoptions, all of which contemplates continuing their relationship with their Mother, While this court does not have the authority to order an open adoption under the "Adoption Act" 23 Pa. C.S. § 2101 et. sec. PART III, Chapter 27 entitled "Petition for Adoption," Subchapter D., Voluntary Agreement for Continuing Relationship with Mother, a relatively new section of the "Adoption Act", provides as follows:
§ 2731 Purpose of Subchapter.
The purpose of this subchapter is to provide an option for adoptive parents and birth relatives to enter into a voluntary agreement for ongoing communication or contact that:
(1) is in the best interest of the child;
(2) recognizes the parties' interest and desires for ongoing communication or contact;
(3) is appropriate given the role of the parties in the child's life; and
(4) is subject to approval by the courts.
23 Pa. C. S. § 2731.
The operative language of Pennsylvania's new open adoption provision is voluntary. The court also notes that 23 Pa. C.S. § 2740, Procedures for Facilitating and Resolving Agreements Involving a County Child Welfare Agency, provides that the Department of Public Welfare was to develop in consultation with AOPC and Juvenile Court's Commission, procedures to facilitate the development of a voluntary agreement, when appropriate, before it is presented to the court. Based on Dr, Pepe's recommendation for open adoptions, this court has asked the parties to attempt mediation to see whether a voluntary agreement can be reached and be presented to the court. This court should not terminate Mother's parental rights when it is evident that CYF's expert, Dr. Pepe, considers continued relations with Mother important for these children, even if on a limited basis due to their attachment with Mother. If adoption cannot be agreed upon by the parties, then SPLC would provide the appropriate permanency option and is consistent with the psychological evidence.
GAL's Fourth and nil Averment of Error
The GAL's fourth and fifth averment of error contends that this court abused its discretion and/or erred as a matter of law in considering testimony of the children because the children could not cede their rights to minimal, appropriate nurturing, and by considering the dependency transcript of the children's testimony that took place on July 27, 2011 (marked for identification as "NM5"), which was taken under advisement by the court, but not admitted into evidence.
The GAL contends that because this court presided over the dependency and the dispositional hearings of the children in Juvenile Division, any testimony that it may have heard from the children must not be considered and this information could prejudice the judge's decision on the termination. Our Superior Court in In Re: Quick, 559 A.2d 42, 46 (Pa. Super. 1989) held that one judge, one family is the most consistent and efficient approach from a judicial point of view. "It went on to state that:
Unless it was avoidable, it would be self-defeating for the judge assigned to the termination case to be a different judge than the one who heard the dependency case. The argument by appellant that the de novo hearing was necessary, so that bias emanating from prior hearings on dependency would not infect the termination proceedings, is unmerited unless it can be established that bias actually existed in fact. It is not uncommon, but rather the rule, that children involved in juvenile and custody matters over many years, return to the same judge. Most children are not removed from home permanently nor are the parental rights terminated. The procedure permits the establishment of a baseline, as in medicine, for a determination of progress or deterioration of the child's stability and well being. With the commitment to Permanency Planning under federal and state guidelines, the Juvenile Court Judge becomes the key to monitoring the progress of the child and the effectiveness of the Child Welfare Agency and in determining whether legal mandates have been met in assisting the family toward reunification. No one is in a better position to determine whether the parties have fulfilled their mutual responsibilities toward these goals than the Juvenile Court Judge who was involved with the child from the beginning. A new judge will not have the benefit of recall of hearings, reports and directions not fully detailed in the cold or abbreviated reports and records presented at the termination proceeding. That is not to say these recollections will be the basis for the termination decision, which must stand on its own evidence and be established by clear and convincing evidence. Rather, it will assure the record is full and complete so that termination will not be granted if the agency is overreaching, or termination won't be denied because of a pro forma presentation. Indeed, to assure this continuity, discussion is being had and movement in favor of including termination proceedings in the Juvenile Act is underway in some states.
Id. at 47,
The GAL contends that any consideration of prior testimony of the children by this court is an abuse of discretion and/or error of law since Pennsylvania case law has established that children are not permitted to testify at parental termination hearings since children can not cede their rights to minimal appropriate nurturing. In Re. B.L.L,, 787 A.2d 1007, 1014 (Pa Super. 2001). This court did not consider the children's testimony for their personal preference as to with whom they want to live, but rather as additional evidence regarding the attachment the child has to his or her siblings, which this court finds to be relevant in determining the welfare and needs of the child,
This court opines that in Re: Ouick, supra, not only permits this court to consider what it recalls from prior Juvenile Court hearings, reports and records presented at the termination hearing, but to also consider this court's prior knowledge of the children and family a benefit in the termination proceeding, and consistent with the Pa. Supreme Court's best practice of one judge, one family. In the instant case, this court has presided over many hearings which involved the testimony of numerous witnesses (including the children) during the course of this case.[6] It has read approximately 40 plus psychological evaluations on this family prepared by the two experts. The court has also had an opportunity to look into these children's faces and see the love and attachment they have for their mother and each other. It recognizes that they are presently in loving homes. The court heard from Mom, the children, and the foster parents in order to provide for a better understanding of all relationships, and is clearly convinced in its finding,
In conclusion, it is the opinion of this court that it had properly denied CYF's petition to terminate the parental rights of Mother for all her children since it failed to present, clearly and convincingly, that involuntary termination would best serve the needs and welfare of these children, as opposed to open adoption or a subsidized custody agreement, and therefore, the ruling should be left undisturbed,
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA ORPHAN'S COURT
IN RE: CASE NOS.
Tam. M 185-2010
N.M. 186-2010
Tad. M. 187-2010
Tae. M. 188-2010
Tai. M. 189-2010
Ti, M. 190-2010
Ty. M. 191-2910
John T. McVay, Jr.
SUPPLEMENTAL OPINION
First and foremost, this court finds significant that the moving party in this case, "CYF" did not appeal the court's decision to deny its request to terminate Mother's rights. The failure of CYF to file an appeal speaks volumes about the merits of the appeal of this case and supports the trial court's respectful request for the Superior Court to reconsider its original Opinion of the GAL's premature appeal. This court would also request the Superior Court to consider looking at permanency and AFSA as first and foremost about family commitments to children-in terms of "loving homes and notabout a ticking clock that goes off automatically when a child has been placed X number of months; with no consideration as to whether-there is a peimarnent loving home for the child.
This court filed an Opinion on May 12, 2012, in response to the Guardian Ad Litum (GAL) appeal of its January 12, 2012 Order of this court denying the termination of Mother's parental rights. The GAL's appellant's brief argument (1.) avers that this court violated children's constitutional right to due process of law, as guaranteed by the Fourteenth Amendment, by relying on ex parte evidence. The Gal's brief provides four examples that it claims represents this court's reliance on ex parte evidence.
GAL first avers that this court relied and depended on Dr. Sigmund's testimony at the goal change hearing to not terminate Mother's rights irrespective of the fact that Dr. Sigmund did not testify at the TPR hearings. This court did not rely on or use Dr. Sigmund's ex parte testimony to deny CYF's TPR petition. This court had to reference Dr. Sigmund in the factual and procedural history of this case which was derived from the findings of facts contained in the court orders in the dependency cases of these children. The court orders relied on and used to develop the history of this case in its opinion were offered and accepted into evidence and made part of the record of the TPR hearings, without objections by the GAL (see CYF exhibit S and NM exhibit 4) which is not ex parte evidence, Therefore, GAL's allegation that Dr. Sigmund's ex parte testimony was relied upon by this court is incorrect. Understandably, in fact, this court notes that the GAL has similarly and necessarily included in its appellate brief as exhibit "D", a copy of the Superior Court's unreported, Non-presidential memorandum Opinion issued in the Juvenile Court's dependency cases of these children at 517-535 WDA 2009, which contains many references to Dr. Sigmund's testimony and reports, which was not admitted into evidence or made as part of the record at the TPR hearing. Dr. Sigmund's evaluation and testimony supporting reunification came after the Superior Court's decision and is cited to explain the evidence that the court had before it, after the GAL's premature appeal.
The GAL's second averment alleges that it is unknown what information the trial court relied on from the dependency case when it made its decision in the TPR hearing and avers this court relied on unknown evidence which it alluded to in its Opinion. As was stated above, this court relied on the finding of facts contained in the certified court orders that were admitted into evidence. In addition, the record is replete with this court stating that it has extensive knowledge of the parties, witnesses and facts of this case. In Re Quick, 559 A.2d 42 (Pa. Super 1989) permits the trial court "the benefit of recall not fully detailed in the cold or abbreviated reports and records presented at the termination proceeding" Id at 47. This court's knowledge of this case permitted the court to weigh evidence and assess the credibility of witnesses. This court did not rely on undisclosed evidence and made great efforts to disclose to all parties its extensive knowledge of these children and their mother. It considered the evidence presented at the TPR to make its decision.
The GAL's third averment alleges that it was error for the court to rely on its recollection of the children when the children did not testify in this matter. Again, this court did not hear or decide this case in a vacuum. The court's recollection of the children in this case can not be stricken from the court's memory. But the court's recollection of the children was not the sole determining factor in its decision and was certainly consistent with expert opinions and all other witnesses that testified that these children know, love and are bonded with their mother and termination without the prospect of ever seeing their mother or each other again would be psychological devistating for each of them.
The GAL's fourth and last averment of ex parte evidence was that the court referred to the children's testimony when they did not testify at the TPR hearing and the transcript of their testimony at the dependency hearing was not admitted into evidence. What the court did rely on was the July 27, 2011 Order of Court, from the children's dependency hearing was not in which the finding of fact clearly states that the children have displayed significant bonds with Mother, to the court and Dr. Pepe.
This court can not emphasize enough that it did not rely on ex-parte evidence in making its decision to deny the termination petition. The court considered only the evidence presented at the hearing. At the conclusion of the hearing and after considering all the testimony and exhibits, this court found that CYF failed to meet its burden clearly and convincingly, that the termination of Mother's parental rights would best serve the needs and welfare of these children. The court is convinced beyond any reasonable doubt that severance of the bonds with their mother and effectively between each other would be tragic.
The court would also like to address and clarify the GAL's assertation that Dr. Pepe was the court appointed licensed clinical psychologist. The GAL may be correct that the court and/or CYF paid for Dr. Pepe's services in the matter. The record is clear that Dr. Pepe got involved in this ease solely at the behest of GAL and CYF as is confirmed by Order of Court dated 10/18/2010, which states, "at the request of CYF and the GAL, this court permitted the children and the mother to be evaluated by a second therapist, Dr. Patricia Pep; which resulted in the same conclusion as the first psychologist, Dr. Sigmund." Dr. Pepe also testified at the 6/22/2011 TPR hearing. "I became involved in this case when I was approached by Alexis Sumulski and Jill Beck asking me to provide a second opinion with the family and I agreed to do so" (see H.T., 6/22/2011, p. 127). The record also reflects it was the GAL.who filed a Motion to Compel Dr. Sigmund to turn over her notes, tests, etc. to Dr. Pepe so she could evaluate this family. Therefore, GAL's assertion that Dr. Pepe was the court appointed psychologist is incorrect
The court would also note that one of the children whom GAL claimed to be in a pre adoptive home has since been removed at the request of the foster parents. This court brought all of the potential families in to find out the level of their commitment to these children and remains committed to finding a solution that suits all parties without destroying their attachments and love for each other.
This court notes that GAL's brief relies on Dr. Pepe's describing the bonds between children and Mother as pathological which was never indicated in any of her reports. Despite Dr. Pepe's finding of a pathological bond to some degree, she never provides clear and convincing evidence that terminating Mother's rights and likely making some of the children orphans, would best serve the needs and welfare of these children as opposed to the consistently and clearly stated alternative goals of open adoption or subsidized permanent legal custody agreement.
CONCLUSION
In conclusion, this court considered only evidence presented at the TPR hearings and it is the opinion of this court that it had properly denied CYF's petition to terminate the parental rights of Mother for all her children since it failed to present clear and convincing evidence that termination would best serve the needs and welfare of these children. As such the ruling should be left undisturbed.
[1] The parental rights of the various fathers, named and/or unknown, were terminated by the court following the same termination hearings. None of the fathers have appealed.
[2] We note that in his supplemental opinion, Judge McVay has updated the information about one of the minor children, who had been in a pre-adoptive home. That child was "removed at the request of the foster parents." See Trial Court Opinion (T.C.O.), 10/1/12, at 4.
[3] We also comment on Judge McVay's request that we reconsider our decision regarding the goal change for these children, wherein we felt compelled to reverse Judge McVay's denial of CYS's petitions for goal change. See T.C.O., 10/1/12, at 1. See also In re: T.M., 996 A.2d 21 (Pa. Super. 2010) (unpublished memorandum). "[A] court ... may modify or rescind any order within 30 days after its entry...." 42 Pa.C.S. § 5505. Once an order becomes final, the court loses jurisdiction to change that order. See City of Philadelphia v. Civil Service Comm'n., 702 A.2d 878, 880 (Pa. Cmwlth. 1997). Consequently, we may not grant reconsideration of our prior order as entered.
[1] Pursuant to the Adoption Act, 23 Pa.C.S. § 2101, et seq involuntary termination of parental rights is conducted under the jurisdiction of the orphans' court. Conversely, permanency planning for dependent children is conducted under the aegis of the juvenile court pursuant to the Juvenile Act, 42 Pa.C.S. § 6301, et seq. In these cases, the same trial judge presided over both matters.
[2] I restated the issues for ease of disposition. The Children's remaining arguments are unpersuasive.
[3] I note that, despite the additional services, visitations with the Children, and opportunities to address her parenting issues, Mother still failed to reunify with any of her seven children. While this appeal was pending, the juvenile court entered a shelter order placing T.C.M. in Mother's home under the auspices of CYF's legal custody. To be clear, however, Mother has not reunified with T.C.M. as the child remains dependent and under CYF's care and control. The child's permanency remains uncertain.
[4] As some of the younger children refer to H.W. as their father, it is unclear whether T.R.M. was identifying H.W. or his birth father as the source of this information.
[5] The first report also referred to unidentified criminal proceedings as additional obstacles to reunification. The source and outcome of those proceedings is unclear from the certified record.
[6] The record does not reveal whether seven-year-old N.D.M. or six-year-old T.J.M. witnessed Mother's sexual exploits or sustained the weight of H.W.'s abuse.
[7] As I noted in footnote three, the juvenile court eventually removed T.C.M. from her foster family and returned her to Mother's shelter care under CYF's control. Hence, Dr. Pepe's illustration might have proven prophetic.
[1] At the same termination hearings on April 27, 2011, May 4, 2011, May 11, 2011, June 22, 2011, August 17, 2011, August 31, 2011, October 12, 2011 and November 23, 2011, the parental rights of W. B[redacted.data] the father of Tad. M. and the unknown father were terminated pursuant to section 23 Pa. C.S.A. § 2511(a) (1)(2)(5)(8) and (b). The parental rights of W. S[redacted.data] the father of Tam. M. and the unknown father were terminated pursuant to section 23 Pa. C.S.A. § 2511 (a)(1)(2)(5)(8) and (b). The parental rights of J.L. [redacted.data], the father of Ti. M. and Tai. M. and the unknown father were terminated pursuant to section 23 Pa. C.S.A. § 2511 (a)(1)(2)(5)(8) and (b). The parental rights of C.J. J[redacted.data] the father of Ty. M., N.M. and Tae. M. and the unknown father's rights were terminated. pursuant to Section 23 Pa.C.S.A. § 2511 (a)(1)(2)(5)(8) and (b). See In Re C. W. Jr., 33.A.3d 1 (Pa. Super 2011).
[2] Dr. Pepe was retained to provide a second opinion in this case at the request of CYF and GAL, who both aiteqed that Dr. Sigmund was biased.
[3] FGDM is a family empowerment initiative of Allegheny County CYF and the court was perplexed that mother was required to file a Motion to have CYF provide the addresses of the children to employees of CYF FGDM and most significantly employ a best practice. The court issued two prior orders to have this family participate in the FGDM program. Judge Mulligan issued the initial order postponing the November 2, 2010 conference since this court was unavailable.
[4] The parties entered into evidence the court orders from the juvenile court dependency case. Pursuant to Rule 201 of the Pennsylvania Rule, of Evidence Pa. R. R Rule 201 Judicial Notice of Adjudicated Facts, this court is taking judicial notice of all court orders and findings of fact that have been issued by the juvenile court in. the dependency cases for all of the children,
[5] The NUCIFCJ Board of Trustees adopted this resolution at its spring meeting, March 21, 2012, in Las Vegas, NV.
[6] This court's first involvement with this case and family dates back to January of 2008
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