Adopt. of: D.A.B, Jr., Appeal of: S.E.K. ( 2022 )

J-S38004-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: D.A.B., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: S.E.K., MOTHER :
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: No. 855 WDA 2021
Appeal from the Order Dated June 25, 2021
In the Court of Common Pleas of Westmoreland County Orphans' Court
at No(s): 029 of 2021
IN RE: ADOPTION OF: A.C.S.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: S.E.K., MOTHER :
:
:
:
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: No. 856 WDA 2021
Appeal from the Order Dated June 25, 2021
In the Court of Common Pleas of Westmoreland County Orphans' Court
at No(s): 028 of 2021
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 24, 2022
S.E.K. (Mother) appeals from the orders, dated June 25, 2021, that
involuntarily terminated her parental rights to her two children, A.C.S.B. (born
in September of 2016), and D.A.B., Jr. (born in June of 2017), following the
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* Retired Senior Judge assigned to the Superior Court.
J-S38004-21
filing of the termination petitions by the Westmoreland County Children’s
Bureau (WCCB).1 After review, we affirm.2
In her brief, Mother sets forth the following issues for our review:
1. Was clear and convincing evidence presented to show that
termination was warranted pursuant to 23 Pa.C.S.[] [§]
2511(a)(2), 2511(a)(5), 2511(a)(8), and [] 2511(b)?
2. Did the trial court abuse its discretion when it allowed the
[WCCB] to introduce … Mother’s criminal record where …
Mother objected to her record’s introduction on the grounds
it was not relevant?
3. Did the trial court abuse its discretion when it … allowed the
[WCCB’s] expert witness, Dr. Neil D. Rosenblum, to offer
expert opinion testimony that it was in the Child[ren]’s best
interests for … Mother’s parental rights to be terminated
where … Mother objected to Dr. Rosenblum’s qualifications
due to his disciplinary history and record of unethical
practices in child custody cases?
Mother’s brief at 4.
We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must
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1 Although the notices of appeal from the termination orders, dated June 25,
2021, appear on the trial court docket as having been filed on July 27, 2021,
they are time stamped as having been filed on July 22, 2021. Thus, we
determine that the appeals were timely filed within the 30 days allowed
pursuant to Pa.R.A.P. 903(a).
2These matters were consolidated sua sponte by this Court by order dated
August 20, 2021.
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J-S38004-21
stand. Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). The burden is upon the petitioner to prove
by clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid. R.N.J., 958 A.2d at 276. Moreover,
we have explained that:
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.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve conflicts
in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result. In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa. Super. 2003).
We have reviewed the certified records, the briefs of the parties, the
applicable law, and the comprehensive opinion authored by the Honorable
Justin M. Walsh of the Court of Common Pleas of Westmoreland County, filed
on September 1, 2021. We conclude that Judge Walsh’s well-reasoned opinion
properly disposes of the three issues raised by Mother. Of particular note,
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J-S38004-21
Judge Walsh points out that at the termination hearing, Mother left the
courtroom for the brief lunch recess and did not return. Thus, Mother did not
even provide testimony on her own behalf. Accordingly, we adopt Judge
Walsh’s opinion as our own and affirm the orders appealed from on that basis.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2022
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Circulated 02/11/2022 10:10 AM
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: )
ADOPTION OF: )
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No.
No.
28 0£ 2021
29 0f 202I
PURSUANT TO APPELLATE PROCEDURE RULE 1925(a)
ORDER OF COURT
Tbis matter was scheduled before the Court on Petitions for Involuntary Termination of
Parental Rights under 23 Pa.C.S.A. $ 2511, filed by the Westmoreland County Children's
Bureau (hereinafter "WCCB") on March 18, 2021. The WCCB sought to involuntarily terminate
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the parental rights of birth mother (hereinafter "Mother") and birth father
2. 4.3.
(hereinafter "Father"). At the time of the hearing, held on June 24, 2021,
Father appeared along with his counsel, Emily Smarto, Esq. Likewise, Mother appeared initially
along with her counsel Stephen Crevak, Esq. Prior to the start of the hearing, Father and his
counsel executed paperwork to voluntarily relinquish his parental rights. Following a colloquy of
Father's rights on the record, the Court accepted his voluntary relinquishment and excused both
Father and his attorney. Further, it is noted that, during the course of the hearing, Mother
appeared to the Court to foll asleep while seated at counsel table. Additionally, Mother failed to
return to the courtroom following a brief recess for lunch and was.not available to offer any
testimony on her own behalf 1/D 54RN0-»J19
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EXHIBIT
B
After careful consideration of the evidence presented at the hearing, the Petitions to
Involuntarily Terminate the Parental Rights as to Mother were granted based upon the findings
of fc
a t and applicable law.
The relevant portions of Section 2511, establishing the grounds under which a court may
terminate parental rights, are as follows:
$ 2511. Grounds for involuntary termination.
(a) General rule. The rights of a parent in regard to a child may be terminated after a
petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has
caused the child to be without essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and causes of the incapacity, abuse,
neglect or refsal
u cannot or will not be remedied by the parent.
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(5) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, six (6) months or more have elapsed from the date
of removal or placement, the conditions which led to the removal or placement of the
child continue to exist and are not likely to be remedied within a reasonable period of
time, and termination of parental rights would serve the needs and welfare of the child.
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(8) The child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the removal or placement of the child
continue to exist and termination of parental rights would serve the needs and welfare of
the child.
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(b) Other considerations. -- The court in terminating the rights of a parent shall give
primary consideration to the developmental, physical and emotional needs and welfare of
the child. The rights of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(I), (6) or (8), the court shall not consider any efforts by
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the parent to remedy thc conditions described therein which are first initiated subsequent
to the giving of notice of the filing of the petition.
I. FACTUAL AND PROCEDURAL HISTORY OF THE CASE
The factual history of this case begins nearly two years ago, when the WCCB received a
referral that a child had passed away while in the care of Mother and Father. The WCCB
provided services to the parents before the children were removed from their care at the
Adjudication Hearing on October 11, 2019, which included offender's counseling and drug and
alcohol services. These issues remained largely unaddressed throughout the course of the
dependency matter, with Mother being found to have only made minimal progress towards
reunification in any permanency review hearing.
The WCCB petitioned this Court to terminate the parental rights of Mother and Father on
March 18, 2021. At that point, the children had already been in placement for a period of 15
months, with Mother showing still only minimal progress towards alleviating the circumstances
that necessitated placement. A hearing on these Petitions took place on June 26, 2021.
In the hearing itself, the Court notes a few facts regarding the concerning behavior that
Mother exhibited. First and foremost, her instant drug screen taken prior to the start of the
hearing indicated that Mother was positive for THC and cocaine. Secondly, during the course of
testimony taken in the morning, the Court noted on the record that Mother appeared to be falling
asleep at counsel table. Finally, when the hearing was recessed for a short break, Mother did not
return to the courtroom for the remainder of the hearing, even prior to her opportunity to testify
on her own behalf.
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II. ANALYSIS
On appeal, Mother argues that the Court erred in finding that the Agency reached its
evidentiary burden relative to each of the statutory grounds for termination cited in the Court's
Order for Termination (Sections 2511(a)(2), 2511(a)(5), 2511(a)(8) and 2511(b). Additionally,
Mother argues that the Court committed reversible error by admitting Mother's criminal history
into the record over Mother's objection and by qualifying Dr. Neil Rosenblum as an expert
witness over Mother's objection. Lastly, Mother contends that the Court committed reversible
error by considering her criminal history as relevant evidence in this matter.
I. Factual Sufficiency of Findings Pursuant to Sections 2511(a)02), 2511(a)(5), 2511(a)(8)
and 251 l{b)
First, the Court will address whether termination was warranted based upon the facts
supported by the record under the various sections of the Adoption Act; namely, sections
2511(a)02), 2511(a)(5), 2511(a)(8), and 2511(b). It is a well-settled principle of law that an
appellate court will defer to the trier of fact on issues related to findings of fact, absent evidence
that such findings are wholly unsupported by the record. . Again, it is worth noting
that, aside from the evidence that her counsel was able to elicit during cross-examination of the
WCCB witnesses, Mother put forth no evidence of her own to counter any of the factual
testimony presented against her because she failed to return to the courtroom following a short
recess.
To warrant termination under Section 2511(a)(2), the petitioner must show by clear and
convincing evidence that the repeated and continued incapacity, abuse, neglect or refusal of a
parent has caused a child to be without cssential parental care, control or subsistence, and that the
causes of such incapacity, abuse, neglect or refusal cannot or will not be remedied. The evidence
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presented to the Court indicated that the Children were still considered dependents and in the
care and custody of the WCCB fro a lack of parental care and control. Beginning at the time
when the dependency case was initiated in October 2019, and continuing until the date of the
hearing, the WCCB identified drug and alcohol issues, mental health issues, parenting
deficiencies, and the fact that Mother is an indicated perpetrator of physical abuse as issues that
Mother needed to address. Testimony was presented from Jean Defilippis of ARC Point Labs
that Mother, over the life of the case, had tested positive for non-prescribed substances 71 times
out of the 103 successful screens that she submitted. As recently as one week prior to the
hearing, Mother tested positive for a metabolite of cocaine and ethanol. An instant screen
administered to Mother prior to the start of the hearing also indicated that Mother was positive
for THC and cocaine, but those results still needed to be verified by the lab. Although Mother
did complete a mental health evaluation, she last participated in mental health treatment in July
2020, To assist with parenting, the WCCB referred Mother for the Substance Abuse Family
Education (SAFE) parenting program and hands-on parenting through the Monessen Family
Center, parent-child interaction therapy through In-Clusion, and therapeutic visitation through
Ncvach, Inc. Mother has been inconsistent in her participation with any of these services; in fact,
she has not been permitted to engage in anything other than supervised visitation since the
inception of the dependency case.
The Court found by clear and convincing evidence that Mother's children have been
without essential parental care, control and subsistence due to her incapacities and neglect.
Additionally, the Court found that these same incapaeities and neglectful conduct will not be
remedied by Mother. At the time of the hearing, the children had been in placement under a
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dependency order for approximately 20 months, and Mother had not demonstrated anything
more than minimal progress towards allowing the children to return to her.
For these reason, the Court found that the WCCB satisfied the evidentiary burden under
Section 2511(a(2) and that termination would be warranted, pending the further 2511(b)
analysis.
Under Section 2511(a)(5) of the Adoption Act, the Court would be justified in
terminating parental rights if:
[t]he child has been removed from the care of the parent by the court or under a
voluntary agreement with an agency, six (6) months or more have elapsed from
the date of removal or placement, the conditions which led to the removal or
placement of the child continue to exist and are not likely to be remedied within a
reasonable period of time, and termination of parental rights would serve the
needs and welfare of the child.
Similarly, Section 2511(a)(8) requires a showing that the child has been removed from
the care of the parent by the court or under a voluntary agreement for a period of at least 12
months, the conditions which led to the removal or placement of the child continue to exist, and
termination of parental rights would best serve the needs and welfare of the child. Because of the
stark similarity in these subsections, the Court will analyze them concurrently.
As stated previously, the children were removed from Mother's care by an Order of
Court following an adjudication hearing in October 2019. At the time of the hearing, the children
had been out of Mother's care for approximately 20 months. The conditions causing removal,
such as the drug and alcohol, mental health, parenting, and perpetrator of abuse conditions, all
remained unresolved at the time of the hearing and are not likely to be remedied within any
reasonable amount of time. The WCCB recommended Mother to utilize an abundance of
services to attempt to address these conditions, including drug and alcohol providers, mental
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health providers, parenting providers, and therapeutic parenting providers. The needs, welfare,
and best interest of the children will be served by terminating Mother's parental rights, as the
children can take steps towards achieving permanency through the adoption process with their
foster family. Indeed, as part of the January 15, 2021 Permanency Review Order, this Court
found that continuing to allow Mother to visit, even in a supervised manner, with the children
posed a grave threat to their well-being.
Finally, as the Adoption Act requires a second analysis to be perfonnccl prior to the
involuntary termination of parental rights, the Court is also obligated to consider whether the
children's developmental, physical and emotional needs and welfare would be served by
termination. Testimony was taken on this point from the WCCB Caseworker Janice Carnicella
and Dr. Neil Rosenblum. Both witnesses testified that there is, in fact, a bond between Mother
and the children. The nature of that bond, however, appears to be non-beneficial due to the
immense trauma that the children have experienced with Mother and the lack of any commitment
to or follow-through with the services designed to improve the relationship between them on the
part of Mother. Dr. Rosenblum recommended that the permanency goal for the children should
be changed from reunification to adoption. The Court further found that terminating the parental
rights of Mother would be in the best interest of the children because it would establish an
attainable end to the uncertainty that has characterized their lives for the past two years.
For all of the foregoing reasons, the Court found by clear and convincing evidence that
sufficient facts existed to warrant the termination of the parental rights of Mother under
subsections 2511(a)(2), 2511(a)(5), 2511(a)(8) and 2511(b) of the Adoption Act.
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2. Relevancy of Mother's Criminal Record
Mother's next argument is that the Court abused its discretion when it admitted
WCCB/Petitioner's Exhibit 1 into evidence. Prior to the hearing, the WC('B provided Mother
with notice of proposed exhibits. Mother prepared a Motion in Limine, arguing that four of the
more than twenty entries in her criminal rccord, should be excluded as either being irrelevant to
the proceeding or untimely. One such record identified by Mother was withdrawn from the
exhibit by the WCCB, as it referred to an arrest made against Mother, but the charges were
ultimately dropped. By way of counter-argument, the WCCB asserted that the criminal history
was relevant to demonstrate a continuing pattern of behavior by Mother.
"Relevant evidence" is defined as evidence that tends to establish a material fact or
supports a reasonable inference or presumption regarding a material fact. Com. v. Kennedy, 598
Pa. 621, 959 A.2d 916 (2008). Evidence may also be deemed to be "relevant" if it makes a fact at
issue more or less probable. Id. Depending upon the circumstances of a case, a criminal history
of a parent in a termination of parental rights hearing may be relevant. See In re Adoption of
C.D.R., 111 AJd 1212 (Pa.Super. 2015).
In this matter, two of the criminal cases identified, namely CR-4107-2011 and NT-89-
2014, pertain to drug charges for Mother. Mother argues that these are so far removed from the
lives of the children because of how long ago the cases were brought that they should be deemed
irrelevant, The WCCB argues that these matters are relevant to demonstrate the consistent
pattern that Mother has been using marijuana for several years. This evidence tends to establish
the fact that Mother's substance abuse issues are longstanding and that, insofar as they continue
to exist as of the time of the hearing, they are not likely to be remedicd in a reasonable amount of
time.
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The final criminal matter identified is a traffic case in which Mother was cited for driving
while on a suspended or revoked license. Again, the WCCB argument as to why this case is
relevant is that it demonstrates the continuous pattern of Mother's behavior. The Court agrees
that it tends to show that Mother behaves in a reckless manner, without regard for the restrictions
placed upon her by the law. 'The Court views this behavior as an indicator of the mental health
instability that Mother faces, as well as the poor judgment that incapacitates Mother and prevents
her from providing essential care to the children.
For the foregoing reasons, the Court ruled that this portion of Mother's criminal history is
relevant and admissible in the case at bar. Because these particular matters in Mother's eriminal
history only made a de minimis contribution to the culmination of evidence presented, the Court
believes that, even absent the consideration of these facts, sufficient evidence still existed to
warrant termination of Mother's parental rights.
3. Consideration of the Opinion ofDr. Neil Rosenblum
Lastly, Mother argues that the Court abused its discretion by admitting the opinion
evidence of Dr. Neil Rosenblum, a licensed psychologist who performed an interactional
evaluation between the children and their foster family and the children and Mother, as well as a
mental health assessment on Mother. The basis for Mother's argument is that Dr. Rosenblum had
been the subject of professional discipline on two separate occasions. In each instance, one
which took place in 1991 and the other in 2015, a written statement was issued outlining the
admitted misconduct and the discipline that would be applied to Dr. Rosenblum's practice. In
1991, when Dr. Rosenblum acted in a dual capacity of counselor and evaluator in a custody
matter and made custody recommendations to the court without having contact with one of the
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parties. he was fined and was obligated to practice under supervision. In 2015, after Dr.
Rosenblum issued a recommendation after only meeting with one parent who resided locally in
Allegheny County and not with the other parent who resided in the State of New Jersey and who
had already submitted her own custody evaluation, Dr. Rosenblum was suspended for 30 days
and was placed on probation for a period of 12 months following the suspension, in addition to
fines and costs assessed to him. Finally, he agreed to complete additional ethics training courses.
Dr. Rosenblum was fully restored to his active license on August 30, 2017.
The Pennsylvania Supreme Court has stated that it is well-settled that the standard for
qualifying an expert witness is a liberal one, and the decision rests in the sound discretion of the
trial court. Miller • Brass Rail Tavern. Inc., 541 Pa. 474, 664 A.2d 525, 528 (1995). Under the
Pennsylvania Rules of Evidence, an expert witness may offer an opinion to the court if his or her
scientific, technical, or specialized knowledge is greater than that of a layperson; if his or her
knowledge will assist the court to determine a fact in issue; and if his or her methodology is
generally accepted in the relevant field. Pa.R.E. 702. Once an expert offers an opinion, it is up to
the court to determine the veracity of the testimony and the appropriate weight it should be
given. Miller, 664 A.2d at 528.
Prior to offering his opinion as to the appropriate permanency goal for these children, Dr.
Rosenblum's qualifications as an expert were presented through testimony elicited by the WCCB
and subjected to cross-examination by Mother. After hearing testimony regarding Dr.
Rosenblum's education, employment history, and experience in offering court testimony, the
Court was satisfied with his credentials and recognized him as an expert witness under Rule 702.
No evidence was produced or law cited to indicate that, as a result of Dr. Rosenblum's two
disciplinary actions, his professional opinions should be stricken from a proceeding. Because Dr
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Rosenblum testified as to the methodology he used in completing the interactional evaluations of
both Mother and the children and the foster family and the children, the Court did not give much
weight to Dr. Rosenblum's prior disciplinary actions. As stated above, after conducting these
interactional evaluations, Dr. Rosenblum indicated that it was his professional opinion that the
children and Mother do not have a necessary and beneficial bond and that changing the goal of
the permanency plan from reunification to adoption was in the best interest of the children.
Bccause neither Pennsylvania law nor any portion of the agreements reached by Dr.
Rosenblum and the State Board of Psychology would seem to bar him from offering expert
testimony, the Court qualified Dr. Rosenblum as an expert and found his testimony to be credible
and helpful in reaching a decision in this matter. For these reasons, the Court did not abuse its
discretion in either qualifying Dr. Rosenblum as an expert or utilizing his opinion to support the
termination of Mother's parental rights.
III. CONCLUSIONS
Following a full-day trial on this matter, the Court found that the WCCB was able to
present sufficient evidence to justify termination of Mother's parental rights under Sections
2511(a)(2), 2511(a)5) and 2511(a)(8) of the Adoption Aet. Additionally, the Court found that
termination would serve the best interest of the children under Section 2511(b). The Court did
not abuse its discretion by either admitting the entries of Mother's criminal history specifically
objected to on the record or by admitting the expert testimony of Dr. Neil Rosenblum in the areas
of interactional evaluations and mental health assessments.
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For all of the foregoing reasons, the Court involuntarily terminated the parental rights of
Mothers
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·as to the minor children
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and -
2. A4..z J&.
BY THE COURT;
OGE.JUSTIN�---
,J.
J
ATTEST:
Clerk of Orphans' Court
cc: Debra M. Nicholson -- WCCB Solicitor
Emily Smarto, Esq. -- Counsel fro Birth Father
Stephen Crevak, Esq. - Counsel for Birth Mother
Leslie Uncapher, Esq. - Guardian ad litem
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