Matter of the Adoption of M.A.B. Appeal of: J.M.B. ( 2018 )

J-S43030-18 & J-S43031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF M.A.B. : PENNSYLVANIA
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APPEAL OF: J.M.B., JR., NATURAL :
FATHER : No. 290 WDA 2018
Appeal from the Decree January 26, 2018
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
2015-00068
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF N.M.B. : PENNSYLVANIA
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APPEAL OF: J.M.B., JR., NATURAL :
FATHER : No. 291 WDA 2018
Appeal from the Decree January 26, 2018
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
68 In Adoption 2015
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF M.A.B. AND N.M.B. : PENNSYLVANIA
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APPEAL OF: L.J.S.B., NATURAL :
MOTHER : No. 292 WDA 2018
Appeal from the Decree January 26, 2018
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
Nos. 68 and 68A in Adoption 2015
J-S43030-18 & J-S43031-18
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 06, 2018
In these consolidated appeals, J.M.B., Jr., (“Father”) and L.J.S.B.
(“Mother”) appeal the January 26, 2018 decrees involuntarily terminating their
parental rights to their special needs children, M.A.B. and N.M.B (collectively
the “Children”). M.A.B. was born in August 2009 and N.M.B. was born a year
later, in 2010. Mother and Father have not cared for the Children since 2013,
when the Children were three and four. Because the record supports the
findings and conclusions of the orphans’ court, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2013, Venango Children and Youth Services (“Venango CYS”) became
involved with the family. By February 2014, Venango CYS had to place the
Children in foster care. In March 2014, the Venango Court of Common Pleas
granted physical and legal custody of the Children to Venango CYS and
directed that the Children remain in foster care. On March 12, 2014, the trial
court adjudicated the Children dependent due to Father’s continued
incarceration, Mother’s substance abuse, Mother’s mental health status, and
poor housing conditions.
Mother moved to Erie County to obtain mental health and substance
abuse treatment. In July 2014, this case was transferred to Erie County Court
of Common Pleas and the Erie Office of Children and Youth (“Erie OCY”) began
working with this family.
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On January 26, 2015, when the Children were four and five years old,
Erie OCY transferred them to the pre-adoptive foster home where they
continue to reside. When the Children moved to their current foster home,
neither child was toilet trained and both exhibited behaviors consistent with
autism.
In August 2015, Erie OCY filed petitions to involuntarily terminate the
parental rights of Mother and Father. Fourteen months later, in October 2016,
the orphan’s court denied the petitions and Erie OCY appealed. On June 29,
2017, this Court issued an Opinion reversing the trial court, finding that Erie
OCY had met its burden that Mother and Father failed to comply with 23
Pa.C.S. 2511(a). Matter of Adoption of M.A.B., 166 A.3d 434, 436-38 (Pa.
Super. 2017) (footnotes omitted).1 However, because the record did not
sufficiently address whether CYS met its burden under 23 Pa.C.S. 2511(b),
we remanded this case to the trial court for a hearing that addressed whether
terminating parental rights would best serve the childrens’ needs and welfare.
23 Pa.C.S.A 2511(b).
The orphans’ court complied with our directive by holding a hearing on
December 7, 2017, and January 24, 2018. At the close of the hearing, the
court found that terminating the parental rights of Father and Mother would
best serve the Children’s needs and welfare pursuant to 23 Pa.C.S. § 2511(b).
N.T., 1/24/18, at 203-24. On January 26, 2018, the court entered decrees
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1 The author of this memorandum also authored the Court’s prior Opinion.
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involuntarily terminating the parental rights of Mother and Father. Father and
Mother timely filed notices of appeal, along with concise statements of errors
complained of on appeal.2
ISSUES ON APPEAL
Father now raises the following claims for our review:
1. Did the [orphans’] court abuse its discretion amd? [sic] and/or
commit an error of law when it failed to acknowledge and properly
weigh the manifestly unfair circumstances under which the
bonding assessment of Dr. von Korff was conducted?
2. Did the [orphans’] court commit an abuse of discretion and/or
error of law when it permitted Francine E. Cochis to testify as an
expert without voir dire, also did the [orphans’] court fail to
properly evaluate her testimony in light of the obvious bias
displayed by her towards the foster parents.? [sic]
3. Did the [orphans’] court commit an abuse of discretion and/or
error of law when it failed to give proper weight to the testimony
[sic] Rusty Weingard, MEd, a family based mental health
specialist, who spent extensive time with the biological parents
and children?
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2 The orphans’ court entered four decrees, including one decree terminating
each parents’ rights to each child. Our review of the record indicates that
Mother filed one notice of appeal from both decrees terminating her parental
rights. We caution Mother that the correct procedure in this circumstance is
to file separate notices of appeal for each decree. See Pa.R.A.P. 341, Note
(“Where . . . one or more orders resolves issues arising on more than one
docket or relating to more than one judgment, separate notices of appeal must
be filed.”). In a recent case, our Supreme Court held that the failure file
separate notices of appeal from an order resolving issues on more than one
docket “requires the appellate court to quash the appeal.” Commonwealth
v. Walker, 185 A.3d 969, 977 (Pa. 2018). However, the Court clarified that
it would apply its holding only “in future cases,” because of decades of prior
case law that seldom quashed appeals for that reason, and because the
citation to case law contained in the note to Rule 341 was unclear. Id. Thus,
because Mother filed her notice of appeal prior to the filing of our Supreme
Court’s decision in Walker, on June 1, 2018, we do not quash her appeal.
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Father’s Brief at 4 (unnecessary capitalization omitted).
Mother raises the following additional claims:
A. Whether the [o]rphans’ [c]ourt committed an abuse of
discretion and/or error of law when it concluded that [Erie OCY]
had established, by clear and convincing evidence, the grounds
for termination pursuant to 23 Pa.C.S.A. §2511(a)(2)[?]
B. Whether the [o]rphans’ [c]ourt committed an abuse of
discretion and/or error of law when it concluded that [Erie OCY]
had established, by clear and convincing evidence, the grounds
for termination pursuant to 23 Pa.C.S.A. §2511(b)[?]
Mother’s Brief at 3.
LEGAL ANALYSIS
We review an orphans’ court decree terminating parental rights
involuntarily to determine whether the record of the hearing below supports
the factual findings of the orphan’s court and if so, whether the orphan’s court
made an error of law or abused its discretion:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
involuntary termination parental rights. It requires a bifurcated analysis:
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) (citations omitted).
As noted above, this Court, in an earlier appeal, reviewed the evidence
supporting the Petitions to Involuntarily Terminate Parental rights and held
that Erie OCY met its burden for the first part of the test, i.e., Erie OCY
presented sufficient evidence pursuant to Section 2511(a)(2) and (a)(8). In
re M.A.B., 166 A.3d at 445-46. We, therefore, now focus our analysis on the
second part of the test, i.e., whether the record supports the orphans’ court
determination that Erie OCY met its burden pursuant to Section 2511(b).
Section 2511(b) provides, in relevant part:
(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.
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23 Pa.C.S. § 2511(b).
Our Courts have interpreted this provision as requiring the orphan’s
court to determine whether termination of parental rights would best serve
the developmental, physical and emotional needs and welfare of the child:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. 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.
[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.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted). Thus, we review whether the orphan’s court properly
concluded that terminating the parental rights of Mother and Father would
best serve the needs and welfare of the Children.
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Father’s appeal
We begin by reviewing the claims presented by Father. Father first
argues that the orphan’s court abused its discretion and committed an error
of law “when it failed to acknowledge and properly weigh the manifestly unfair
circumstances under the bonding assessment of Dr. von Korff was conducted.”
Father’s Brief at 4.
In particular, Father complains that Dr. von Korff’s bonding assessment
was “manifestly unfair” because Dr. von Korff’s analysis was a “contest-like”
comparison between him and the foster parents. Id. at 6, 8. Father also
assails the bonding assessment on the basis that it attributes the Children’s
poor behaviors to him while attributing the Children’s positive behaviors to
their foster parents without adequate supporting evidence. Id. at 6.
Peter von Korff, Ph.D., who conducted a bonding assessment of the
Children, concluded that the Children do not have a secure attachment to their
parents. N.T., 12/7/17, at 13-14. Dr. von Korff further concluded that the
Children are developing a secure attachment to their pre-adoptive foster
parents. Id. at 15, 21-24.
Dr. von Korff testified that he did not conduct a “contest-like”
comparison of Father and Mother versus the Children’s foster parents as
Father alleges. See N.T., 12/7/17, at 60-61. He testified that it “wasn’t ever
my intent to pit them against each other. . . . I think [I] would have done a
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disservice to the [C]hildren and the Court if I simply tabulated all of the
advantages of the [foster] home or these individuals versus the [parents].”
Moreover, the record reveals that Dr. von Korff spent sufficient time
observing the interactions of Mother and Father with the Children in an effort
to identify evidence of a secure attachment. Id. at 65-66.
Our review indicates that the record provides ample support for the
orphan court’s determination to place significant weight on Dr. von Korff’s
conclusion. See In the Interest of D.F., 165 A.3d 960, 966 (Pa. Super.
2017), appeal denied, 170 A.3d 991 (Pa. 2017) (“The Orphans’ 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.”).
Contrary to Father’s contention, the trial court did not abuse its discretion or
err as a matter of law in its consideration of Dr. von Korff’s bonding
assessment. Accordingly, Father’s first claim does not merit any relief.
In his next claim, Father challenges the testimony of the Children’s
therapist, Francine Cochis, LCSW. Ms. Cochis opined that the Childrens’
behavior would likely regress if the orphans’ court removed them from their
foster parents and returned them to Father and Mother. N.T., 1/24/18, at 41,
62.
Father first contends that the orphans’ court erred “when it permitted
Francine E. Cochis to testify as an expert witness without proper voir dire.”
Father’s Brief at 4. Our review of the record reveals that counsel for Erie OCY
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did, in fact, conduct voir dire of Ms. Cochis’ qualifications. Additionally,
counsel for Father did not object or cross-examine Ms. Cochis on her
qualifications. See N.T., 1/24/18, at 25-27.3 Thus, this claim of error has
no factual basis.
Moreover, to the extent that Father’s counsel challenges whether Ms.
Cochis had the appropriate qualifications to testify as an expert, Father failed
to object to her qualifications and thus, waived any challenge. See State
Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015),
(quoting Lockley v. CSX Transp. Inc., 66 A.3d 322, 325 (Pa. Super. 2013)
(“‘It is axiomatic that [i]n order to preserve an issue for appellate review, a
party must make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to a basic and
fundamental error will result in waiver of that issue.’”))).
Father further claims that the orphan’s court failed to “properly evaluate
her testimony in light of the obvious bias displayed by her towards the foster
parents.” Father’s Brief at 4. This claim of error goes to a challenge to the
weight that the orphan’s court gave to Ms. Cochis’ testimony. As we discussed
above, we must accept the credibility and weight determinations of the
orphans’ court when the record supports them, as it does here. See D.F.,
165 A.3d at 966.
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3Counsel for Father asked only for clarification as to what area Ms. Cochis
would be testifying as an expert. N.T., 1/24/18, at 28.
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In his final claim, Father contends that the orphans’ court failed to give
adequate weight to the testimony of Rusty Weingard, M.Ed., who provided
family therapy to the Children, Father, and Mother. Father’s Brief at 4.
According to Father, Mr. Weingard opined that it would be detrimental to the
Children to sever their relationship with their parents. Father’s Brief at 13,
citing N.T., 1/24/18, at 166.
We note initially that Father mischaracterizes Mr. Weingard’s testimony.
Mr. Weingard’s testimony was inconclusive about the impact of severing the
Children’s bond with the biological parents. Rather, Mr. Weingard testified
about the impact of severing the Children’s bond with both the biological and
foster parents. N.T., 1/24/18, at 166. He never testified about the impact of
severing the bond with the biological parents only.
Father additionally argues that the orphan’s court erred in not placing
more weight on Mr. Weingard’s opinion because Mr. Weingard spent more
time than Dr. von Korff or Ms. Cochis did observing him and the Children.
Father’s Brief at 6, 13. Father also argues that Mr. Weingard observed him
with the Children under circumstances that were more representative of “real
life.” Id. at 6.
This argument is a challenge to the weight the orphan’s court chose to
give to the opinions of the experts. Such a determination is within the
discretion of the orphans’ court and we will not disturb it. D.F., 165 A.3d at
966.
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Mother’s appeal
We next address claims Mother raised. In her first claim, Mother argues
that the orphans’ court abused its discretion by terminating her parental rights
pursuant to Section 2511(a)(2). Mother’s Brief at 10-15. As noted above,
this court already held in the first appeal that Erie OCY presented sufficient
evidence to terminate Mother’s parental rights pursuant to Section 2511(a).
In Re M.A.B., 166 A.3d at 445.4 Thus, the only issue properly before us in
this appeal is whether the record supports the trial court’s conclusion that Erie
OCY presented sufficient evidence pursuant to Section 2511(b).
In her second issue, Mother avers that the orphan’s court erred by
finding that Erie OCY met its burden under Section 2511(b). In particular,
Mother argues that the orphans’ court failed to consider the trauma that
terminating her parental rights would inflict on the Children. Mother’s Brief at
10, 17. Mother maintains that much of the evidence presented during the
termination hearing pitted the Children’s bond with her against their bond with
their pre-adoptive foster parents “in an unequal and unfair compare and
contrast evaluation.” Id. at 16-17. She insists that the court acted improperly
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4 We also note that Mother waived this claim by failing to include it in her
concise statement of errors complained of on appeal. Mother alleged in her
concise statement that the orphans’ court abused its discretion and/or erred
by terminating her parental rights pursuant to Section 2511(a)(8) and (b).
She made no mention of Section 2511(a)(2). See In re M.Z.T.M.W., 163
A.3d 462, 466 (Pa. Super. 2017) (“[I]t is well-settled that issues not included
in an appellant’s . . . concise statement of errors complained of on appeal are
waived.”).
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by failing to consider the Children’s bond with her “in isolation, separate and
apart from the bond of the foster family.” Id. at 16.
Upon careful review, we observe that the record is replete with evidence
demonstrating that termination of Mother’s parental rights would best serve
the Children’s needs and welfare. This includes the testimony of Dr. von Korff.
As explained above, Dr. von Korff conducted a bonding assessment of the
Children, Father, Mother, and the foster parents, and prepared a report
detailing his findings.
During the termination hearing, Dr. von Korff opined that the Children
lack a secure attachment to Father and Mother. N.T., 12/7/17, at 13-14. He
based this conclusion on the Children’s “impulsive and dysregulated” behavior
in the presence of their parents. Id. at 12-13. He recalled one incident during
which the Children “made almost continual reference to feces. They laughed
hysterically. They couldn’t contain themselves. And I’m sure the parents had
a challenging time . . . because their children were simply not tractable.” Id.
at 12. In addition, while the Children were excited to see their parents and
were affectionate toward them, “the talk is about toys, and what I got last
time, or what snack I’m going to get and that sort of thing. That’s the quality
of the contact.” Id. at 20.
During the bonding assessment, the Children gave inconsistent
responses as to whether they would like to return to their parents’ care, and
Dr. von Korff opined that they have “no real developed thinking on the
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matter.” Id at 45-46, 64. In his report, Dr. von Korff related the following
incident:
The examiner put the game aside and invited the [C]hildren
to play with Lego blocks. While they played he encouraged them
to speak informally about the fact of having two homes. [M.A.B.]
announced, “That’s what I have.” Asked whether that experience
is easy or hard she replied that it is hard. Asked why, she stated,
“The judge has to decide.” She explained, “You can’t have the
other home,” and she repeated, “The judge will have to decide.”
The examiner asked both children what it would be like if
the judge were to say that they should stay where they are now.
Both children indicated that would be “okay.” . . . [T]he examiner
asked, “Even if [Father] and [Mother] are sad?” Both children
nodded that it would still be “okay.”
However, after roughly thirty minutes of Lego play, [N.M.B.]
announce casually that he would rather go live with “[Father] and
[Mother]”.[5] Asked about this turnabout, he replied, “They give
us food, anything we want to eat.” [M.A.B.] seconded this
sentiment, saying, “They give us whatever we want.” [N.M.B.]
nodded at his sister’s apparent endorsement.
Petitioner’s Exhibit 19 at 12.
While Dr. von Korff testified that the Children do not appear to have a
secure attachment to anyone, he opined that they are developing a secure
attachment to their foster parents. N.T., 12/7/17, at 15, 21-24. He recalled
observing positive interactions between the Children and their foster parents
during the bonding assessment, and concluded that the foster home is where
the Children “have their greatest sense of security, and their greatest
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5During this exchange, both Dr. von Korff and N.M.B. referred to Father and
Mother using their first names.
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opportunity to work within an environment that fosters further development
of security. That’s where things are getting going. They’re not all the way
home yet, but things have been getting going there.” Id. at 21, 23.
Ultimately, Dr. von Korff opined that termination of Mother’s parental
rights would not have a detrimental impact on the Children. Id. at 24. He
explained:
. . . . As I said in my report, and it’s painful to say, but the
[C]hildren will say that they are going to be okay either way. And
in their own minds, that’s as close as they can come. As I said in
my report, [M.A.B.] said more than once that, [“]the Judge will
decide.[”] And my own opinion was that the [C]hildren were
communicating -- or at least [M.A.B.], was communicating to me
that it’s high time for a decision.
Id.
Mother further argues that the orphans’ court should have analyzed the
Children’s relationship with her “in isolation.” This assertion is contrary to the
Pennsylvania Supreme Court’s analysis. Our Supreme Court has explained
that a child’s relationship with his pre-adoptive foster parents is an important
aspect of the Section 2511(b) analysis. T.S.M., 71 A.3d at 268 (“Common
sense dictates that courts considering termination must also consider whether
the children are in a pre-adoptive home and whether they have a bond with
their foster parents.”). Moreover, as we explained above, Dr. von Korff
testified that he did not merely pit Father and Mother against the Children’s
foster parents during his bonding assessment as Mother alleges. See N.T.,
12/7/17, at 60-61.
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Thus, the record confirms that the orphan’s court properly determined
that terminating Mother’s parental rights would best serve the Children’s
needs and welfare. While the Children have a relationship with Mother, that
relationship is similar to one that a child would have with a friendly visitor. In
contrast, the Children are developing a more secure attachment to their foster
parents, with whom they have lived for more than three years. Since the
Children are only eight and nine years old, three years is a significant period
of time to develop a meaningful bond with the family who provides stability,
security and safety to them on a daily and consistent basis.
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion or commit an error of law by terminating the parental
rights of Father and Mother to the Children involuntarily. Therefore, we affirm
the court’s January 26, 2018 decrees.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2018
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