In re A.R.M.F. , 837 A.2d 1231 ( 2003 )

OLSZEWSKI, J.:

¶ 1 H.E.F. (father) and C.D.F. (mother) filed consolidated appeals from the order of the trial court terminating them parental rights to their daughters, A.R.M.F. and M.B.F. (children). We affirm.

¶2 Mother gave birth to A.R.M.F. on July 13, 1997, and to M.B.F. on May 9, 1999. On November 4, 1999, the Bucks County Children & Youth Social Services Agency (Agency) filed a petition to adjudicate the children dependent and remove them from the home. In its petition, the Agency stated that it had escalating concerns for the children despite the fact that it had been providing services to father and mother since April of 1999. The petition alleged:

Most notably, the condition of the ... home is inappropriate and unsafe for young children. Though this issue has been addressed with the parents on several occasions, permanent and effective changes have not been made. Examples of this include cat feces on the floor, dangerous items such as pieces of broken furniture and stereo equipment precariously resting throughout the home and trash littered on the floors.

On several occasions, in-home workers have witnessed medicine on the counters, laundry detergent and cleaning solvents on the floor and in easy reach of the two-year old toddler.

Concerns also exist regarding supervision. Reports have been received to this Agency, that the toddler frequently gets outside without her parents knowledge. This is particularly alarming, as the home is located on a busy highway. It is unclear where the children spend their nights. Questions exist regarding [father’s] nighttime paper route and the possibility of the children not having stable plans at night.

Petition to Adjudicate Dependency and to Enter an Order of Disposition, 11/4/1999. On November 5, 1999, the children were adjudicated dependent and placed in the physical and legal custody of the Agency.

¶3 On May 8, 2001, the Agency filed petitions for Involuntary Termination of Parental Rights and Duties of Natural Parents under Section 2511(a)(2), (5) and (8) of the Adoption Act. On March 3, 2003, the trial court granted the Agency’s petition. The children were approximately six and four years of age at that time.

¶ 4 Father and mother raise three issues on appeal. First, they claim that the Agency failed to provide clear and convincing evidence for the involuntary termination of their parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5) and (8). Second, they argue that the Orphan’s Court erred when it found that it would be in the best interest and welfare of the children to terminate mother and father’s parental rights. Finally, the parents claim that the Orphan’s Court erroneously denied their petition for expert witness fees.

¶ 5 Our standard of review in this case is as follows:

In reviewing an involuntary termination of parental rights, we must “employ a broad, comprehensive review of the record” in order to determine whether the termination order is supported by competent evidence. In re Adoption of T.M.F., 392 Pa.Super. 598, 573 A.2d 1035, 1044 (1990) (en banc); Matter of Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984). “Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the findings of the Orphans’ Court, [we] will not reverse a hearing court’s decision to terminate.” In re Skives, 363 Pa.Super. 225, 525 A.2d 801, 802 (1987). While the scope of review is broad, we are limited to determining whether the order is supported by competent evidence and whether the court adequately considered the effect of such decree on the welfare of the child. In the Interest of L.S.G., 767 A.2d 587 (Pa.Super.2001). This court will affirm if competent evidence supports the trial court’s findings, even if the record could also support the opposite result. Id. at 590.

In re J.T. & R.T., 817 A.2d 505, 508-09 (Pa.Super.2003). Moreover, the party seeking termination must have established grounds for termination by clear and convincing evidence. In re Julissa O., 746 A.2d 1137, 1139 (Pa.Super.2000). 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 Adoption of Alendo, 539 Pa. 161, 650 A.2d 1064, 1066 (1994).

¶ 6 As stated above, the Agency petitioned to terminate mother and father’s parental rights based on Section 2511(a)(2), (5) and (8) of the Adoption Act. 23 Pa.C.S.A. §§ 2511(a)(2), (5) and (8). The relevant parts of those sections state:

(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 refusal cannot or will not be remedied by the parent.

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

(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 best serve the needs and welfare of the child.

¶ 7 In order to terminate parental rights under Section 2511(a)(2), three elements must be met: “(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super.2003) (citations omitted).

¶ 8 Under Section 2511(a)(5), the party moving for termination must show the following factors:

(1) the child has been removed from parental care for at least six months; (2) the conditions which led to the child’s removal or placement continue to exist; (3) the parents cannot or will not remedy the conditions which led to removal or placement within a reasonable period of time; (4) the services reasonably available to the parents are unlikely to remedy the conditions which led to removal or placement within a reasonable period of time; and (5) termination of parental rights would best serve the needs and welfare of the child.

In re Adoption of M.E.P., 825 A.2d at 1273-74 (citing In re B.J.R., 397 Pa.Super. 11, 579 A.2d 906, 908 (1990).

¶ 9 Similarly, under Section 2511(a)(8), the moving party must demonstrate that “(1) The child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child.” In re Adoption of M.E.P., 825 A.2d at 1275-76.

¶ 10 The Orphans’ Court held evi-dentiary hearings on July 23, 2001, September 23, 2001, January 14, 2002, April 15, 2002, and November 25, 2002, to consider the Agency’s petition to involuntary terminate mother and father’s parental rights to A.R.M.F. and M.B.F. The Agency presented the testimony of Dr. Joseph Schaller, a licensed psychologist; Kevin Nash, a social worker for Lutheran Children & Family Services; and Deborah Heagy, the Agency caseworker assigned to A.R.M.F. and M.B.F. The court found each of these witnesses to be credible. Trial Court Opinion, 3/3/2003, at 5, 8, and 13. We will not disturb a finding of credibility on appeal. See In re Adoption of M.E.P., 825 A.2d at 1273. The witnesses’ testimony is summarized below.

TESTIMONY OF DR. JOSEPH SCHAL-LER

¶ 11 In January of 2000, about two months after A.R.M.F. and M.B.F. were removed from mother and father’s home, the Agency requested that Dr. Joseph Schaller evaluate mother and father to determine whether they could be reunited with their children. N.T., 7/23/2001, at 17. To aid him in his evaluation, Dr. Schaller conducted the Wechsler Adult Intelligence Test on both mother and father.

¶ 12 The test showed that mother’s full scale intelligence quota (IQ) is 73, which is below 95 percent of the population. Id. at 17-18. A score of 70 is the point at which someone would be considered mentally retarded. Id. at 18. Dr. Schaller opined that mother has “some limitation in cognitive functioning which would result in the kind of diminished flexibility and diminished capacity to deal with more complex and unstructured situations.” Id. at 19. He expressed concern over her ability to maintain emotional control or emotional stability. Id. Dr. Schaller concluded that mother would need extensive intervention and support by family members or social services agencies in order to develop parenting skills and observe her interact with her children. Id. at 19-20.

¶ 13 Father’s test score indicated that his IQ is 64, which is in the extremely low classification and in the upper range of what would be considered mental retardation. N.T., 7/23/2001, at 24. Dr. Schaller observed that father appears to be more capable than he may actually be, and that his capacity to deal with stressful and unstructured situations would be lower than one would assume just by talking to him. Id. at 25.

¶ 14 In order to be reunited with their children, Dr. Schaller recommended to the Agency that mother and father should strive to maintain a stable marriage, without excessive tension and arguing, and one where they would be together physically and emotionally. Id. at 20-21. He also emphasized the importance of individual, couple, and family counseling. Id. at 21-22, 26.

¶ 15 In February 2001, the Agency requested that Dr. Schaller evaluate mother and father a second time because they had not successfully complied with his recommendations, and there were additional factors that raised the Agency’s concern. Id. at 28. Father admitted that he had been away from the household for several months due to conflict between him and mother, that he was not employed, and that they had difficulty relating to some of the people providing in-home support. Id. at 29-30. Dr. Schaller also noted that mother was “rigid” and inflexible, she had a great deal of difficulty accepting her need for support, she often minimized that need, and she resented the efforts of people to help her. Id. at 30-31.

¶ 16 Dr. Schaller concluded that father and mother would be capable of meeting the needs of their children only under fairly optimal conditions, which did not exist then or at the time of his hearing testimony. Id. at 33.

TESTIMONY OF KEVIN NASH

¶ 17 Kevin Nash is employed as a social worker by Lutheran Children & Family Services and has been A.R.M.F. and M.B.F.’s caseworker since April 17, 2000. N.T., 7/23/01, at 51. Mr. Nash served as the primary supervisor for visits between the children and their parents at the parents’ home. Id.

¶ 18 Mr. Nash testified that when he began visiting mother and father’s home, there was a bleach bottle in the bathroom that was accessible to the children, and he told the parents that it needed to be placed out of reach of the children. Id. The parents did not remove the bottle until several visits later, after being advised numerous times to do so. Id.

¶ 19 Mr. Nash testified that on October 19, 2000, A.R.M.F., then age 3, tried to pull a car seat off a pile of stacked boxes, almost pulling it down on her. Id. at 54. Mr. Nash prevented the accident. Mr. Nash noted that the home was extremely cluttered with bags of clothes, extra dressers, furniture, boxes containing unknown items, and extra things for the children. Id. at 58. He also stated that there were foul odors in the home due to the cat’s liter box. Id. at 58. Additionally, during the that visit, father told Mr. Nash that he planned to move to Wildwood, New Jersey, leaving mother with Joey, father’s child from a previous relationship. Id. at 59.

¶20 Further incidents occurred during visits on March 8, and March 15, 2001. During those visits, Mr. Nash observed A.R.M.F. pull a sharp compass out of her crayon box, which had to be taken from her by a social worker. Id. at 62. Also, Mr. Nash testified that mother attempted to serve expired yogurt to the children. Id. at 63.

¶ 21 On March 30, 2001, Mr. Nash and mother returned to the home after shopping at K-Mart. When they returned, the home was in disarray. “There [were] different desk pieces and drawers and cabinets all over the living room, there were different chairs, a lot of chairs in the living room at the time we had most of the visits.” Id. at 64. On that same day, M.B.F. was rooting around in boxes and mother’s purse and she got a hold of a sample package of Tylenol. Id. at 64-65. Mr. Nash had to take the Tylenol from the child.

¶ 22 In April of 2001, the children were in three other precarious situations. On April 5, mother was holding M.B.F. (then 23 months old) in a swing and pushing her. Id. at 65. At one point, mother let go of M.B.F.’s hands and the child fell 18 to 24 inches to the ground and landed on her back. Id. On April 26, A.R.M.F. and M.B.F. were being supervised by mother when A.R.M.F. wandered into a dangerous area under a tree where branches were being pulled down. Id. at 67. Mr. Nash had to rebuke the child, who then ran back to mother. Id. Following that incident, but while the branches were still being pulled down, A.R.M.F. wandered to a pile of old wood that had rusty nails sticking out of it. Id. at 67-68. Mother seemed not to notice the precarious situation. Id.

¶ 23 Mr. Nash testified that he had concerns for A.R.M.F. and M.B.F. He stated, “My concerns mostly surround the consistent display of poor judgment by the parents. There are obviously some safety concerns that stem from that poor judgment, supervision concerns stem from that poor judgment.” Id. at 71.

¶ 24 Mr. Nash also commented on the interpersonal relationships between the parents and A.R.M.F. and M.B.F. He stated that the children identify mostly with their half-brother, Joey. N.T., 1/14/2002, at 118.

Other than that, the visit basically consists of the girls coming into the home, grabbing some toys and playing basically on their own_ [Tjhey are supervised but there’s very little interaction between mom and dad and the kids, except for when, if they have a snack ready for them, they’ll bring the snack to them and give it to them.

Id. Mr. Nash testified that on another occasion, he was to bring the children to meet father, mother, and Joey at a Wal-Mart for family pictures. Id. at 119-20. Father did not show up, and he and Joey did not get to be in the family picture. Id. Joey was quite upset about that situation. Id. During the visit, mother exclaimed that “she felt like she was raising three children with [father] in the house, and was worried about when the [children] come back that she wouldn’t be able to do it without his assistance, without his help.” Id. at 120. Furthermore, Mr. Nash testified that A.R.M.F. does not acknowledge Shannon’s existence, and M.B.F. takes very limited interest in Shannon. Id. at 120-21.

TESTIMONY OF DEBORAH HEAGY

¶ 25 Ms. Heagy is employed as a caseworker for Bucks County Children & Youth (Agency). She has been assigned to A.R.M.F. and M.B.F. since January of 2000. Ms. Heagy provided testimony concerning mother and father’s capacity to parent A.R.M.F. and M.B.F. She testified that the Agency has the same concerns as it had when it filed for involuntary termination of parental rights in November 1999. N.T., 7/23/01, at 94.

¶ 26 Ms. Heagy testified about the parents’ relationship. She believes that because mother and father have shown poor judgment in their parenting, they need to rely on one another and be stronger as a unit. Id. at 102. Sometime in 2000, however, the parents thought they were going to be evicted from their apartment. “[T]he family’s plan was for [father] to move to Wildwood with his friends, for Joey to move to Wildwood with I believe [father’s] relatives, and for [mother] to live in a car parked on the apartment’s property.” Id. at 102-03.

¶ 27 Ms. Heagy stated that father has a pattern of “leaving the home or wanting to leave the home or [mother] kicking him out or wanting to. He has left many times, even for a few days at a time, and come back.” Id. at 95. He told Ms. Hea-gy that he wanted to renew his driver’s license in New Jersey because he intended to move there. Id. at 109. On October 20, 2000, he stated to Ms. Heagy that he was just renting a room from mother and would stay there until he could move out. N.T., 1/14/2002, at 42-43. Again on November 11, 2000, father said he was moving out unless mother got rid of their two cats. Id. at 43.

¶ 28 Ms. Heagy testified that mother told her when father leaves the home, she gets lonely and would knock on neighbors’ doors for company. Id. at 100. Ms. Hea-gy recounted that before the Agency took A.R.M.F. and M.B.F. into their custody, the Agency found that mother was taking the children with father on his two a.m.-to-six a.m. paper route because she was afraid to be alone in the apartment without him. Id.

¶29 Ms. Heagy stated that she has heard father talk about nine children that he believes he has with numerous women. Id. at 95. He continues to have contact with Angela Blunk, the mother of his son Charles, and his ex-wife Jane Szalma. Id. at 97. Angela actually lived with mother and father in October 2000. Id. Ms. Hea-gy testified that mother did not like it when Angela lived with them, nor did she like it when father invited at least five other people to live with them in their apartment, including Angela’s son Chad. Id. Mark is another individual that father invited to stay at the home against mother’s wishes. Mark is mother’s former boyfriend. Id. at 110.

¶ 30 While Angela was living at the home, there was an incident involving mother and Charles. Mother allegedly raked Charles’ head with a fork. Id. at 114. According to Ms. Heagy, mother told her that Angela was not present, Charles was arguing with her, and that she may have accidentally hit him with the fork. Id.

¶ 31 Ms. Heagy testified that the parents’ living situation is a constant stress on their ability to parent and having all the different people in the home adds to the instability of the marriage. Id. at 115. Moreover, father does not seem to recognize this problem or care that mother does not like these people in the home. Shannon, who was born to mother and father on May 27, 2001, was recently returned to them after being in the temporary custody of the Agency. Id. at 98. Shannon’s return was prefaced on extensive in-home services provided to the family. Id. Only one week after Shannon’s homecoming, however, father invited Chad back into the home. Id. at 99.

¶ 32 Ms. Heagy testified that mother and father already receive thirty hours of in-home services each week. Id. at 118. She stated that the Agency does not believe those services would be sufficient for them to support A.R.M.F. and M.B.F. because it is concerned what will happen when the workers leave. Id. Ms. Heagy stated that the parents would need in-home service whenever the children are awake in order for the children to be returned home. Id. at 52.

¶ 33 Ms. Heagy told the court that on one visit to the home, she took A.R.M.F. to the bathroom to wash her hands and found razor blades in the sink. N.T., 1/14/2002, at 37. There was no soap, no towel, and there was trash on the floor, which A.R.M.F. started to clean up. Id. at 37-38. Ms. Heagy also stated that cat feces were found in the home on numerous occasions and the parents were asked repeatedly to pick up the mess. Id. at 80. She stated that cat feces had been found in the home within the month prior to the hearing. Id.

¶ 34 According to Ms. Heagy, mother is not always open to suggestions of her supporters. In March of 2000, mother was trying to put on M.B.F.’s coat — M.B.F. was a little under two years old at the time. Id. at 112. As mother was putting on M.B.F.’s coat, the child’s thumb got bent back in the sleeve. Id. Ms. Heagy suggested that mother reach in to pull the child’s hand through, but mother said “she is able to take care of her own children without caseworkers watching her.” Id. Another incident occurred on November 2, 2000. According to Ms. Heagy, mother did not heed the advice of a foster care worker to tie her shoelace, and she tripped and fell while carrying M.B.F. N.T., 1/14/2002, at 33-34. Ms. Heagy stated that mother sometimes argues with her when she makes suggestions. N.T., 7/23/2001, at 113.

¶ 35 Ms. Heagy also testified to mother’s physical ability. She stated that mother suffers from cerebral palsy, which affects her gait, speech, and arm strength. N.T., 7/23/01, at 101. In fact, mother has been advised not to carry the baby from room to room, but to put her in a stroller or carrier. Id.

¶ 36 Additionally, Ms. Heagy testified that the parents have not displayed a commitment to receiving counseling. Mother and father attended couples counseling (with Joey) from June to September 2000, and they had family counseling from January to May 2001. Id. at 104. At one point, when the parents were not going to counseling, father said he was too busy and claimed that gas was too expensive. Id. at 104-05. But Ms. Heagy said that father would make longer trips for other reasons, and he was not in counseling because he did not want to participate. Id. at 105. Father has never participated in individual counseling. Id.

¶ 37 Ms. Heagy also testified about the welfare of A.R.M.F. and M.B.F. and their current living situation. She stated that they are in a foster family with Lutheran Family Services and have been in that family since April of 2000. Id. at 118-19. Ms. Heagy testified that the children and their foster parents seem to be “very well bonded.” Id. at 120. “The foster family tries to provide structure for the [children], and they are very loving.... They seem to be very comfortable in the home.” Id. Moreover, the family has expressed them desire to adopt the children if the children are not reunified with their biological parents. Id. at 120-21.

¶ 38 Mother’s relationship to her children on the other hand, seems to be strained. Ms. Heagy testified that mother expects the children to initiate play with her, instead of taking the initiative herself, and she gets upset when they do not. N.T., 1/14/2002, at 94. Ms. Heagy stated further that the introduction of Shannon into the home would make it more difficult for mother and father to care for A.R.M.F. and M.B.F. Id. at 95. Ms. Heagy concluded that the Agency believes that the termination of mother and father’s parental rights would best serve the needs and welfare of the children. Id. at 121.

¶ 39 After a thorough review of the record, we conclude that the Agency presented clear and convincing evidence to justify the order entered by the Orphans’ Court. As required by Section 2511(a)(2) of the Adoption Act, the Agency showed that father and mother continue in their incapacity to parent A.R.M.F. and M.B.F. through their consistent display of poor judgment, marital instability, and lack of commitment to counseling. Clearly, such actions and inaction by the parents has caused the children to be without essential parental care. As stated above, the children have been placed in danger multiple times. It seems highly probable that the children would be placed in perilous positions in the future if they were returned to them biological parents. Moreover, it appears to this Court that mother and father are either unable or unwilling to remedy them incapacity. Accordingly, we find that the Orphan’s Court did not abuse its discretion or commit an error of law when it ordered the parental rights of mother and father to be terminated.

¶ 40 The Agency also met them burden of proof under Sections 2511(a)(5) and (8). It is uncontested that the children had been removed from the parents’ home by court order for over twelve months, which satisfies the requirements under both Sections 2511(a)(5) and (8). Also, the conditions which led to the removal of the children continue to exist. The general condition of the home is constantly cluttered and also dangerous, as evidenced by incidents involving razor blades, Tylenol, a car seat, cat feces, and a bleach bottle. In addition, it is apparent that supervision problems have not been remedied, as A.R.M.F. wandered into dangerous situations twice. Further, the parents cannot or will not remedy the problems within a reasonable time period. Moreover, the court heard testimony concerning the ineffectiveness of the in-home services that have already been provided to mother and father to remedy the problems that led to the children’s removal, and the fact that they are not likely to be effective in the future.

¶ 41 Finally, the Agency also showed that the termination of parental rights would best serve the needs and welfare of the children. A.R.M.F. and M.B.F. are now six and four years old, respectively. They have lived in a stable foster home for over three years, and they are well bonded with their foster parents. Furthermore, the foster parents have expressed a desire to adopt the children. Testimony by Mr. Nash and Ms. Heagy showed that the children are not well bonded with their biological parents. While they enjoy going to their weekly visits, there is little interaction between the parents and A.R.M.F. and M.B.F.

¶ 42 Accordingly, we find that the Orphan’s Court properly terminated the parental rights of mother and father. The court did not abuse its discretion, nor did it commit an error of law. Rather, it relied on competent evidence presented by the Agency.

¶ 43 The parents’ third claim that the Orphan’s Court erroneously denied their request for expert fees is without merit. The court denied the parents’ request for fees on September 18, 2001. The parents, however, did not object or refer to the court’s order at any of the hearings that followed. Moreover, the parents presented an expert witness at the hearings without having secured fees from the court. Therefore, we do not see how the parents were prejudiced by the court’s order.

¶ 44 Order AFFIRMED.

¶ 45 Judge CAVANAUGH files a Dissenting Opinion.