In the Int of: K.J. Appeal of: Luzerne CYS& GAL ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.J., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: LUZERNE COUNTY
CHILDREN AND YOUTH SERVICES AND
GUARDIAN AD LITEM
No. 1038 MDA 2014
Appeal from the Decree entered May 27, 2014
In the Court of Common Pleas of Luzerne County
Orphans' Court at No: A-8132
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 28, 2015
Luzerne County Children and Youth Services (Agency) and the
Guardian ad Litem for K.J. (Child) (collectively, “Appellants”) appeal from a
decree denying the Agency’s petition to terminate the parental rights of Q.R.
(Father) to Child. Upon review, we affirm.
Child is currently four years old. Her involvement with the courts
began on March 26, 2012, when the Agency filed dependency petitions
regarding her and her then-one-year-old brother, Z.J. Z.J. had been
admitted to the hospital with serious injuries: bleeding between his brain
and skull and a healing broken arm. To its petition, the Agency attached the
following allegations of dependency:
On March 23, 2012, [Z.J.] was admitted to Geisinger Danville,
from some facility in either Lackawanna [C]ounty or Luzerne
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[C]ounty. [Z.J.] was admitted with bilateral retinal
hemorrhaging, bilateral subdural hematoma, and a healing right
humerus fracture. The natural parents indicate that [Z.J.’s]
injuries were caused by him getting hit by a toy, [thrown] by
this minor [C]hild.
Physicians at Geisinger indicate that the trauma is non-
accidental, and that the explanation provided by the natural
parents is not plausible to cause [Z.J.’s] injuries. The natural
parents are unwilling to explain the injuries[,] which are
consistent with facts, thereby placing this [C]hild in present
danger.
Dependency Petition, 3/27/12, at 5. The Agency obtained temporary
custody of the children. The children were placed in foster care, where they
remain to date. On May 25, 2012, the trial court adopted the
recommendations of a juvenile master, and adjudicated Child dependent. As
part of the dependency adjudication, the trial court incorporated a Service
Plan for Father.
The Service Plan provides the following reason for Father’s initial
referral:
[Z.J.] has bilateral retinal hemorrhages, bilateral subdural
hematomas, and an old right humerous [sic] fracture. At first,
[Mother] and [Father] were unable to provide a medically
plausible explanation for the injuries. [Mother] later admitted to
shaking [Z.J.] when he would not stop crying.
Master’s Recommendation for Adjudication and Disposition—Child
Dependent, 5/25/12, Attached Service Plan at B-1. The Service Plan lists
the parenting knowledge and mental health of both parents. Id. The
Service Plan called for the Agency to refer Father to a parenting class and
mental health evaluation, and provide supportive counseling. Id. at F-1 – F-
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3. Father was required to participate in counseling and receive a mental-
health evaluation. Id. at F-1 – F-3.
Shortly after Child’s placement, Mother confessed to police that she
caused the injuries to Z.J. Child Protective Services never investigated
Father and had no suspicion that he was involved in Z.J.’s abuse,
notwithstanding the Agency’s initial concerns. See N.T., 2/27/12, at 36-37.
Thereafter, dependency proceedings continued with required periodic
permanency review hearings before the juvenile master. On July 20, 2012,
the trial court adopted the master’s findings following the three-month
review hearing. Crucial to the trial court’s eventual decision regarding
termination, the July 20 order notes that Father lived in New York state, but
that he lacked legal immigration status at the time. Order and Master’s
Recommendations, 7/20/12, at 2 (unpaginated). As such, he was not
eligible to receive services. The order notes further that Father could not be
referred for Agency-provided services, because he lived out of state, but that
an interstate compact had been submitted. Id. at 10 (un-paginated).
On November 21, 2012, the trial court adopted the master’s findings
made following another permanency review hearing. The master found that
Father had not complied with the permanency plan or alleviated the
circumstances leading to Child’s placement, because he had not engaged in
court-ordered services. Order, 11/21/12, at 1-2. The trial court adopted
similar findings following a March 18, 2013 permanency review hearing.
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In October 2013, the Agency petitioned the trial court to change the
goal for Child from reunification with her parents to adoption. The Agency
also filed petitions to terminate Mother’s and Father’s parental rights.
Regarding Father, the Agency averred he had failed to remedy the
conditions causing the placement by not addressing his mental health issues,
submit to random drug tests,1 or acknowledge the severity of Z.J.’s injuries.
Petition for Termination of Father’s Parental Rights, 10/25/13, ¶ 11. The
Agency also contended Father was not a placement resource at the time of
Child’s placement, and he had not remedied that deficiency.
After a continuance, the trial court held a hearing on February 27,
2014 on the Agency’s goal-change and termination petitions. At the
beginning of the hearing, Father revealed that he recently discovered that he
is not Z.J.’s natural father. Therefore, he voluntarily relinquished his
parental rights to Z.J. For her part, Mother voluntarily relinquished her
parental rights to both children.
At the hearing, the evidence showed that Father had limited resources,
and his lack of legal immigration status hindered his ability to receive
services. In fact, two attempts to establish interstate compacts with New
York failed, in part because of Father’s lack of legal residency. See Trial
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1
It is unclear why the Agency required Father to undergo drug testing. At
the termination of parental rights hearing, the Agency’s caseworker admitted
the Agency had no concerns that Father ever was using illegal drugs or
abusing alcohol. N.T., 2/27/14, at 48-49.
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Court Rule 1925(a) Opinion, 5/27/14, at 4. About ten months after Child’s
placement, Father became a U.S. citizen, which allowed him to apply for
Temporary Assistance for Needy Families (TANF),2 and provide public
assistance and medical coverage to Child.
The parties agreed to incorporate the dependency proceedings into the
record. To meet their burden, Appellants procured the testimony of Jessica
Sprow, an Agency caseworker; Sarah Thompsen, a mental-health counselor;
and Paul Durang, a family development specialist with Family Service
Association of Northeast Pennsylvania. Sprow testified that Child was placed
in foster care because of the injuries sustained by Z.J. and the fact that
neither Mother nor Father gave a medically plausible explanation for those
injuries. N.T., 2/27/14, at 17. Sprow also noted Father’s mental-health
issues, and that he missed two urinalysis appointments—despite admitting
that Father had tested negative during two other drug screening and the
Agency had no concerns that Father was using illegal drugs. Id. at 22-30,
48-49. Sprow also detailed problems setting up services for Father because
he lived in New York with his mother. Id. at 26-27, 42-45. Finally, Sprow
noted that during supervised visits, Father paid more attention to Z.J.—who
has Shaken Baby Syndrome—than to Child. Id. at 31-35, 51-52.
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2
TANF is a federal program that provides block grants to states to, among
other things, assist needy families. See 42 U.S.C. §§ 601-19.
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Thompsen testified that Father suffers from anxiety and showed
indicators of narcissistic traits. Id. at 73-78. As a result, she requested that
Father seek treatment from a psychiatrist. Id. at 79-80. On cross-
examination, she stated that Father’s mental-health issues might interfere
with his ability to parent, but that therapy, or possibly medication, might be
helpful. Id. at 81-83.
Durang testified as to his involvement with Father in the parenting
program. Over ten months, Father completed 13 out of 15 lessons
regarding parenting skills, but was discharged from the program for lack of
progress. Id. at 89-90. Corroborating Sprow’s testimony, Durang testified
that Father often paid more attention to Z.J. than to Child during supervised
visits. Id. at 94-97, 156-58.
Following the conclusion of testimony, the trial court took the goal-
change and termination requests under advisement. On March 12, 2014,
the trial court entered an order changing the goal for Child to adoption. On
May 27, 2014, the trial court issued an opinion, which it termed a
“Memorandum Issued Pursuant to Pa.R.A.P. 1925(a)” denying the petition to
terminate Father’s parental rights to Child.
Following the trial court’s decision, Appellants moved for
reconsideration. To their motion, they attached the March 12, 2014
dependency order changing the goal to adoption. In response, Father,
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averring that he had never been served with the goal-change order, moved
to reconsider the goal-change order.3 The trial court vacated the March 12
order, later admitting it had signed that order—which the Agency prepared—
in error. Trial Court Supplemental Rule 1925(a) Opinion, 7/7/14 2 n.1. The
trial court refused, however, to reconsider its order denying Appellant’s
termination petition. This appeal followed.
Before this Court, Appellants raise six claims of error. However, at the
core, Appellants’ appeal can be encapsulated into one main issue and two
subsidiary issues. Appellants’ main argument is:
I. Did the trial court err in finding that [the Agency] failed to
meet its burden by clear and convincing evidence for
Father’s termination of parental rights [under 23 Pa.C.S.A.
§ 2511(a)(2), (5), and (8)]?
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3
The record supports Father’s contention. In fact, no record evidence
exists regarding service of any orders entered in the dependency
case. The orders themselves contain merely stamps reflecting filing. There
is nothing written or stamped on the orders reflecting service, and no
certificates of service by the clerk of courts exist. The docket contains only
evidence of the orders’ filing.
The Rules of Juvenile Court Procedure require the clerk of courts (or the
equivalent officer) to serve court orders and notices on the litigants, and to
keep a record of the “date and manner of service of the order or court
notice.” Pa.R.J.C.P. 1166(C)(8), 1167(B). That was not done here. This
Court is troubled by the lack of any record evidence showing the clerk of
courts served the dependency court orders on the parties. Amplifying our
concern is the fact that Father was never served with the goal-change
order—an order that affected his parental rights.
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Appellants’ Brief at 3 (capitalization removed). The two subsidiary
arguments are Appellants’ claims that (1) the trial court abused its discretion
in limiting the presentation of evidence at the termination hearing; and (2) a
claim that the trial court assumed facts not of record. Appellant’s other
arguments are subsumed within its first claim. We will address this appeal
accordingly.
In cases involving the termination of parental rights, our scope of
review is broad and comprehensive, though our standard of review is
narrow. In re P.S.S.C., 32 A.3d 1281, 1285 (Pa. Super. 2011); In re
Adoption of M.R.B., 25 A.3d 1247, 1251 (Pa. Super. 2011). We must
accept the factual findings of the lower court that are supported by the
record. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). We may reverse only if
the lower court erred as a matter of law or abused its discretion. Id.
In termination proceedings, the petitioner bears the burden by clear
and convincing evidence. Adoption of M.R.B., 25 A.3d at 1251.
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. 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. If
competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.
Id. (internal quotations and citations omitted).
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In this case, Appellants argue the trial court erred in failing to
terminate Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(2), (5), and
(8); and (b), which provide:
(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.
(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)(1), (6) or (8), the court shall not
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consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511 (other sections omitted). Termination of parental rights
is proper where any one subsection of § 2511(a) is satisfied, along with the
considerations of § 2511(b). In re Z.P., 994 A.2d 1108, 1117 (Pa. Super.
2010). Therefore, we must examine whether the trial court abused its
discretion in not terminating Father’s parental rights to Child under each of
the three subsections at issue here, § 2511(a)(2), (5), and (8). We address
Subsection (2) first. Then, we address Subsections (5) and (8) together.
“The grounds for termination of parental rights under section
2511(a)(2) are not limited to affirmative misconduct. The grounds include
acts of refusal as well as an incapacity to perform parental duties. Parents
are required to make diligent efforts towards the reasonably prompt
assumption of full parental responsibilities.” In re A.L.D., 93 A.3d 888,
895-96 (Pa. Super. 2014) (internal citations omitted). A party seeking
termination under § 2511(a)(2) must demonstrate:
(1) repeated and continued incapacity, abuse or neglect;
(2) that causes the child to be without essential parental care,
control, or subsistence; and
(3) the causes of the incapacity, abuse, or neglect cannot or
will not be remedied.
See id. at 896 (quoting In re Geiger, 331 A.2d 172, 173-74 (Pa. 1975)).
Regarding § 2511(a)(2), the trial court found Appellants failed to carry
their burden:
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In the case at bar, the evidence adduced at trial does not
support the contention that Father has displayed a repeated and
continued incapacity to perform parental duties for [Child]. The
conditions which gave rise to placement involved abuse by
Mother. Father has displayed a commitment to reunification
with his daughter in that he has worked toward obtaining his
citizenship status, which therefore enabled him to provide
medical assistance for his [C]hild[,] and enables him to provide
housing assistance for his [C]hild. He visits with his [C]hild[,]
and [C]hild calls him “other daddy.” [N.T., 2/27/14, at 32.]
Father did not receive an entirely favorable recommendation
from his parenting education provider; however, the notes of
testimony reveal that the testimony of Mr. Durang and Ms.
Sprow contradict [sic] with regard to bonding between [C]hild
and [F]ather. [Id. at 157-58, 205-06.] Based upon the evidence
presented, this court finds that the Agency did not meet its
burden[,] by clear and convincing evidence, that parental rights
should be terminated [under § 2511(a)(2)].
Trial Court Rule 1925(a) Opinion, 5/27/14, at 4-5.
Appellants’ argument mainly disputes the trial court’s weighing of
evidence, which is the trial court’s role. We are not in a position to
reconsider factual findings supported by the record. Moreover, though
Appellants note that Father never completed his court-order services, they
fail to note that (1) the Agency had no suspicion that Father was using illegal
drugs; or (2) that Father completed 13 out of 15 lessons with Durang. As
the trial court stated, termination of parental rights requires proof by clear
and convincing evidence. Id. at 5-6. We find no abuse of discretion in its
finding that Appellants did not carry their burden regarding § 2511(a)(2).
Termination under § 2511(a)(5) and (8) is similar. Each subsection
concerns termination of parental rights to a child who has been placed under
the care of an agency.
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To satisfy the requirements of Section 2511(a)(5), the moving
party must produce clear and convincing evidence regarding the
following elements: (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 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 B.C., 36 A.3d 601, 607 (Pa. Super. 2012) (citing In re Adoption of
M.E.P., 825 A.2d 1266, 1273-74 (Pa. Super. 2003)).
Similarly, section (a)(8):
sets a 12–month time frame for a parent to remedy the
conditions that led to the children’s removal by the court. Once
the 12–month period has been established, the court must next
determine whether the conditions that led to the child[ren]’s
removal continue to exist, despite the reasonable good faith
efforts of [the agency] supplied over a realistic time period.
Termination under Section 2511(a)(8) does not require the court
to evaluate a parent’s current willingness or ability to remedy
the conditions that initially caused placement or the availability
or efficacy of [agency] services.
In re T.M.T., 64 A.3d 1119, 1125-26 (Pa. Super. 2013) (quoting In re
K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008)).
Here, it is undisputed that Child has been under the Agency’s care for
more than 12 months. The trial court found that the condition leading to the
placement of Child—the abuse of Z.J.—no longer exists because Mother
admitted to committing the abuse and Father has been cleared of any
involvement. Appellants argue that the trial court erred in failing to take
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into account the service plan attached to the dependency orders. We find
Appellants’ argument unpersuasive.
The record supports the trial court’s determination that Child was
originally placed because of the injuries to her half-brother, Z.J. The order
permitting the Agency to take custody of Child, the order adjudicating Child
dependent, and the Agency caseworker’s testimony at the termination
hearing show that the condition giving rise to the placement of Child was
the abuse of Z.J. Mother initially accepted responsibility for Z.J.’s abuse
(but later recanted), and Father has been cleared. As such, this case is not
analogous to In re I.J., 972 A.2d 5, 11-12 (Pa. Super. 2008),4 because
there, the conditions leading to placement (the mother’s incapacity)
continued to exist. Appellants fail to acknowledge the reason for Child’s
placement. Though a service plan may have been developed as part of that
placement, it was not the reason that the Agency took custody of Child.
Because the conditions leading to Child’s placement no longer exist, the trial
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4
In I.J., the agency took custody of the children because of the mother’s
mental health issues, physical limitations, and inability to care for two of her
other children, who had been adjudicated dependent and were living with a
foster care family. I.J., 972 A.2d at 7-8. We held the trial court erred in
considering the mother’s attempts to remedy the conditions leading to
placement, which is not a factor to consider under § 2511(a)(8). Id. at 11-
12. We stated, “the trial court did not find that either Mother or Father had
remedied the conditions that led to removal of I.J.” Id. at 12. In contrast,
the trial court here found the conditions leading to placement of Child—the
abuse of Z.J. by Mother—had been remedied.
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court did not abuse its discretion in refusing to terminate parental rights
under § 2511(a)(5) or (8), and we need not address the remaining factors
for application of those subsections.
Appellants cite In re J.T., 817 A.2d 505 (Pa. Super. 2003), to support
their proposition that parental rights may be terminated under § 2511(a)(5)
or (8) notwithstanding the alleviation of the condition giving rise to
placement if another reason supports continued placement of the child.
That is not what we held in J.T. Rather, we merely reaffirmed the plain
meaning of § 2511(a)(8): that alleviatory steps taken by the parent
(inability to parent and inadequate housing in that case) are irrelevant under
§ 2511(a)(8). That subsection requires only that the conditions leading to
placement continue to exist. Id. Thus, J.T. actually supports our ruling
here, because the conditions leading to Child’s placement (Mother’s abuse of
Z.J.) do not continue to exist.
We reemphasize that this Court is not the proper forum to argue that
witnesses were not credible. Appellants insinuate that Father was somehow
at fault for Z.J.’s injuries, but they point to no supporting evidence or trial
court findings. Moreover, Appellants mistakenly rely on the trial court’s
findings adopted in the March 12, 2014 goal-change order. The trial court
vacated that order, having entered it in error.
We next briefly address Appellants’ argument regarding the trial
court’s limiting of evidence of Father’s progress in services relating only to
Z.J. “The admission or exclusion of evidence . . . is within the sound
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discretion of the trial court.” In re K.C.F., 928 A.2d 1046, 1050 (Pa.
Super. 2007); see also Pa.R.E. 611 (granting trial courts authority to
exercise reasonable control over the examination of witnesses and
presentation of witnesses). We have some difficulty understanding
Appellants’ argument, because they cite no supporting authority, and
instead merely claim the excluded evidence was “relevant.” It appears
Appellants contend this evidence was pertinent to show Father’s lack of
parenting ability. We find no abuse of discretion by the trial court, especially
given that Appellants have provided no authority supporting their argument.
Moreover, we note that the provision of services to Father, while pertinent to
his parenting ability, did not concern whether the conditions leading to
placement continued to exist under § 2511(a)(5) and (8).
Finally, we address Appellants’ argument that the trial court “assumed
facts not of record.” We have been unable to decipher Appellants’
argument. The difficulty is compounded by the insufficiency of Appellants’
concise statement on this matter. Indeed, the concise statement was so
imprecise that the trial court was forced to guess what Appellants were
arguing. See Trial Court Supplemental Rule 1925(a) Opinion, 7/7/14, at 16-
17. Again, given that Appellants cite no authority to support their vague
proposition, we find no merit to this argument.5
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5
Because no statutory grounds for termination existed under 23 Pa.C.S.A.
§ 2511(a), the trial court did not need to address the best interests of Child
(Footnote Continued Next Page)
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
_______________________
(Footnote Continued)
under § 2511(b). See In re M.T., 101 A.3d 1163, 1178-79 (Pa. Super.
2014) (en banc) (noting the analysis under § 2511 is bifurcated, and a court
must first determine that statutory grounds exist for termination under
§ 2511(a)).
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