In Re: I.G.R-H., Appeal of: K.J.R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: I.G.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.J.R., MOTHER :
:
:
:
:
: No. 61 MDA 2019
Appeal from the Decree Entered August 24, 2018
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
84696
IN RE: A.J.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.J.R., MOTHER :
:
:
:
:
: No. 62 MDA 2019
Appeal from the Decree Entered August 24, 2018
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
84695
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED: JULY 10, 2019
K.J.R. (Mother) appeals from the decrees involuntarily terminating her
parental rights to her minor children, A.J.R. (born March 2007) and I.G.R.
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* Former Justice specially assigned to the Superior Court.
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(born July 2010) (collectively, Children), pursuant to 23 Pa.C.S.A. §
2511(a)(2), (5), (8), and (b).1 After careful review, we affirm.
On February 21, 2013, Berks County Children and Youth Services (CYS)
received a report that Mother was smoking marijuana on a daily basis,
suffered from mental health issues, and was not appropriately supervising and
feeding Children; CYS also learned that Father had been incarcerated on
domestic violence charges. See N.T., 8/13/18, at Ex. 1-2. Following a more
thorough investigation, which revealed a lengthy history of domestic violence
and abuse in the family, CYS caseworkers filed dependency petitions as to
Children on December 31, 2013. Id.
On April 3, 2014, the court adjudicated Children dependent, although
Children remained in the physical custody of Mother. See N.T., 8/13/18, at
Ex. 5-6. In November 2014, Children were removed from Mother’s custody
following concerns regarding her drug use, and placed in kinship foster care
with Maternal Grandmother and her husband (Maternal Grandparents). Id.
at Ex. 15-18. Permanency review hearings were held in August 2014, May
2015, and February 2016; Mother made moderate progress in her goals, but
minimal progress in addressing the issues leading to Children’s placement.
Id. at Ex. 11-12, 23-24.
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1 The parental rights of D.W.H. (Father) were terminated in August 2016.
Father appealed the termination to this Court, and we affirmed. Father did
not seek allowance of appeal with the Pennsylvania Supreme Court.
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On February 19, 2016, CYS filed petitions to terminate Mother’s parental
rights to Children pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).
The trial court held a hearing on August 12, 2016. Thereafter, the court
involuntarily terminated Father’s and Mother’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).
Father and Mother appealed, and on May 1, 2017, this Court affirmed
the termination of their parental rights. In re A.J.H., 170 A.3d 1182 (Pa.
Super. 2017) (unpublished memorandum), appeal granted, 169 A.3d 1078
(Pa. 2017), and vacated sub nom. In re A.J.R.-H., 188 A.3d 1157 (Pa. 2018).
Mother petitioned for allowance of appeal to the Supreme Court of
Pennsylvania, which granted allowance of appeal. In re A.J.H., 169 A.3d
1078 (Pa. 2017).
On July 18, 2018, the Pennsylvania Supreme Court vacated this Court’s
order affirming the trial court’s termination of Mother’s parental rights and
remanded for a new termination hearing, holding that the record failed to
support a finding that exhibits entered into evidence satisfied the business
records exception to the prohibition against hearsay; that the trial court thus
erred in admitting the records; and this Court incorrectly found that error
harmless. In re A.J.R.-H., 188 A.3d 1157, 1159-60 (Pa. 2018).
Prior to the commencement of the termination hearing, Mother filed a
motion requesting that the court recuse itself. See Motion to Recuse, 8/6/18,
at ¶¶ 1-8. Mother argued that because the court had previously terminated
her parental rights, the court had already formed a decision that would be
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prejudicial to Mother’s due process rights under the Pennsylvania and United
States Constitutions if the court were to preside over the hearing after
remand. Id. Additionally, Mother argued that the court had previously heard
and considered inadmissible evidence in its prior decision. Id. On August 7,
2018, the court denied the motion.
The court convened termination hearings on August 13, 16, and 23,
2018. Cherrie Sage, Children’s mobile therapist; Andrea Karlunas, Mother’s
domestic violence counselor; Ashlea Mellinger, CYS placement caseworker;
Marta Smith, Children’s trauma counselor; and Nichole Kauffman-Jacoby,
adoption caseworker for CYS, testified for CYS. Mother, represented by
counsel, was also called to testify by CYS. Children were represented by Molly
Sanders, Esquire, as guardian ad litem, and John Grenko, Esquire, as legal
counsel.2
Ms. Sage testified that she is a mobile therapist who treated both
Children, but primarily worked with A.J.R. See N.T., 8/13/18, at 154. A.J.R.’s
treatment goals were to work on expressing her feelings verbally and process
the trauma she had experienced while living with Mother. Id. Ms. Sage
testified regarding writings and drawings A.J.R. made while in counseling. Id.
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2 Accordingly, Children’s statutory right to counsel in a contested involuntary
termination proceeding was satisfied. See, e.g., In re Adoption of L.B.M.,
161 A.3d 172, 180 (Pa. 2017) (plurality). At the conclusion of the hearing,
Attorney Grenko indicated that he had met with Children, and that Children’s
preference was to remain with Maternal Grandparents and are happy in that
home. See N.T., 8/23/18, at 122-123. Children would like to remain in
contact with Mother, but expressed fear about doing so. Id. at 123. Children
wish to be adopted by their “Nanny and Poppy.” Id. at 124.
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at 154-55. In the writings, A.J.R. discussed Mother’s drug use and the
domestic violence between her parents, including an incident where Father
pointed a gun at Mother; A.J.R. expressed feelings of worry, sorrow,
disappointment, and anger. Id. at 156-64.
Ms. Sage testified regarding Children’s behavioral issues in kinship
foster care, and her ultimate recommendation that Children should not be
returned to the home of the parents unless the parents demonstrate the ability
to understand and accept the effects of trauma upon Children, improve their
own mental health, and adequately partner with relevant agencies. Id. at
158-59, 164-65. A.J.R. was discharged from therapy in October 2016, and
I.G.R. was discharged in November 2016. Id. at 172.
Ms. Karlunas testified that her involvement with the family began in
January 2014, when she conducted an intake interview of Mother and began
individual domestic violence treatment sessions. See N.T., 8/16/18, at 7. In
the course of her treatment of Mother, Ms. Karlunas prepared several
evaluations and reports with clinical recommendations. Id. at 8. Ms. Karlunas
testified that Mother reported several types of abuse by Father against her,
including physical, verbal, psychological, and sexual abuse. Id. at 8-9.
Mother reported being pushed, choked, punched, threatened with a gun, and
slapped; being yelled at, name-called, degraded, and put down; financial
abuse; Mother also relayed that she had three abortions at “[Father’s]
direction.” Id. However, Mother was uncooperative during treatment and
often showed up to sessions under the influence of drugs. Id. at 12-13.
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Mother minimized and denied behaviors, stating that she did not need
treatment, and minimized the effect of the domestic violence on Children. Id.
at 13-14. At one point, Ms. Karlunas advised Mother that if she did not
separate from Father, he may kill her. Id. at 20. Mother was discharged
unsuccessfully from treatment in December 2014. Id. at 10-11.
Ms. Karlunas also conducted domestic violence evaluations of both
Children. Id. at 11-12. She testified that A.J.R. related several incidents of
domestic violence, including Father assaulting Mother while A.J.R. was lying
in bed with Mother and threatening Mother with a gun. A.J.R. was hyper-
vigilant and worried extensively about Mother. Id. at 10-16. A.J.R. showed
other signs common of children in domestic violence situations, including
taking on a parental role towards her younger sister and Mother, and
exhibiting separation anxiety. Id. at 15-16. Ms. Karlunas diagnosed A.J.R.
with post-traumatic stress disorder (PTSD) and oppositional defiance disorder.
Id. at 59. I.G.R. presented with more severe anxiety; she clung to Maternal
Grandmother and was afraid to let her out of her sight. Id. at 16-18. Ms.
Karlunas also diagnosed I.G.R. with PTSD. Id. at 67-69.
Ms. Mellinger testified that at the beginning of the case, she attempted
to get in contact with Mother, who was unreachable by phone. Id. at 70-71.
When Ms. Mellinger did speak to Mother, Mother indicated that she was going
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through withdrawal from K2.3 Id. at 72. Ms. Mellinger recommended that
Mother enter inpatient drug treatment, and in December 2014, referred
Mother to the Berks Treatment Access and Services Center (TASC). Id. at
72-74. Mother entered treatment at Gaudenzia House from April 2015
through program completion in October 2015. Id. at 72-76.
Following Mother’s discharge from Gaudenzia, Ms. Mellinger spoke with
Mother regarding further treatment options including halfway houses in
Schuylkill County and Lancaster County, although Mother was insistent about
returning to Reading. Id. at 77. Ms. Mellinger was unable to find aftercare
treatment for Mother in Reading, and Mother was discharged with no
aftercare. Id. Ms. Mellinger and the Gaudenzia team worried that Mother
wished to resume her relationship with Father. Id. at 80-81. In January
2016, Mother indicated to Ms. Mellinger that she had moved back in with
Father despite Ms. Mellinger cautioning Mother that the move would make it
difficult for Mother to regain custody of Children. Id. at 84-86.
Ms. Mellinger also testified regarding improvements to Children’s
behavior following their placement with Maternal Grandparents, and their
participation in therapeutic services, a set schedule, and other new activities.
Id. at 87-88. Children spoke of Mother, but not always in a loving or
____________________________________________
3 K2 is a synthetic cannabinoid. NATIONAL INSTITUTE ON DRUG ABUSE,
https://www.drugabuse.gov/drugs-abuse/synthetic-cannabinoids-k2spice
last visited May 29, 2019).
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affectionate way. Id. at 92. Children never asked to return home to live with
Mother or Father, or to see Mother and Father. Id. at 106.
Ms. Smith testified that she is the trauma counselor for Children and
meets with both Children weekly to address their goals and therapeutic needs
for their complex developmental trauma. See N.T., 8/23/18, at 7-9, 35-37.
Both Children were diagnosed with PTSD and showed symptoms of emotional
dysregulation; intrusive thoughts, memories, dreams, and negative thoughts;
and distrust of others and the world. Id. at 38.
The therapeutic goals for Children were to develop feelings of trust,
safety, and security. Id. at 11-12. A.J.R. has accomplished those goals and
trusts her grandparents, but does not trust her biological parents. Id. at 11.
I.G.R. has had more difficulty reaching her goals, likely because she was
younger when the trauma occurred; I.G.R. is also being treated by a
psychiatrist. Id. at 12, 16. Children refer to Mother and Father as “biological
parents”; A.J.R. has stated that she hates both of her parents for “what they
did to her.” Id. at 11, 31.
Ms. Smith also described A.J.R.’s account of the incident where Father
pointed a gun at Mother; A.J.R. stated that she intervened to put I.G.R. in the
closet, and stood between Mother and Father in an attempt to protect Mother.
Id. at 13. When drawing pictures of a “safe” house, Children drew pictures
of Maternal Grandparents’ home. Id. at 23-24. When drawing pictures of an
“unsafe house” Children drew pictures of Mother’s home. Id. A.J.R. wants
Maternal Grandparents to adopt her, and I.G.R. wishes to remain with
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Maternal Grandparents. Id. at 58. Ms. Smith’s professional opinion was that
Children’s best chance for success and healing was to remain in the home with
Maternal Grandparents, where they have a positive and affectionate
attachment. Id. at 31-32, 61. Ms. Smith opined that reunification counseling
would be detrimental to Children. Id. at 53-54.
Ms. Kauffman-Jacoby testified that she has been assigned to the case
since February 2016. Id. at 75. At the time she was assigned to the case,
Mother was attending supervised visitation, but did not have stable housing
or employment, and did not comply with mental health treatment, random
urinalysis, or other recommended services. Id. at 75-76. Ms. Kauffman-
Jacoby did not receive documentation that Mother successfully completed
drug and alcohol treatment or domestic violence treatment. Id. at 77. Father
contacted Mother repeatedly, and Mother was spending weekends with him.
Id. at 79.
Ms. Kauffman-Jacoby met with Children on a monthly basis for several
hours at a time. Id. at 79. Children appeared bonded with Maternal
Grandparents who, although they struggled at times with parenting and with
some marital issues, have been receptive to additional therapy and parenting
classes. Id. at 79-81. Children and Maternal Grandparents interacted in a
loving manner, and Maternal Grandparents met Children’s needs, including
appropriate discipline. Id. at 85.
CYS advocated for adoption by Maternal Grandparents to serve the
Children’s best interests; CYS recommended that contact with Mother be
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limited until approved by Children’s trauma therapist. Id. at 83. Ms.
Kauffman-Jacoby testified that it would not be detrimental to Children if
Mother’s rights were terminated; rather, it would be detrimental if Children
were denied the stability and permanency achieved with Maternal
Grandparents over the four years they had been in care. Id. at 84-85.
Mother testified to several incidents of domestic violence Father had
committed against her, including breaking her nose in October 2011, aiming
a gun at her in front of Children in November 2012, and hitting her in the face
in November 2012. See N.T., 8/13/18, at 45-55. Mother filed a petition
seeking a protection from abuse (PFA) order on October 4, 2013; at the
termination hearing, Mother claimed that she exaggerated the allegations in
the petition. Id. at 55-56. After Mother failed to appear at the hearing on
the PFA, it was dismissed, and eventually, Mother moved back in with Father.
Id. at 58-61. Mother testified that she and Father, although no longer in a
romantic relationship, “had sexual intercourse on certain occasions” and
“remain friends.” Id. at 71-72, 81-82. Mother testified that she did not feel
Father was a risk to Children. Id. at 84-85.
Mother admitted that she was addicted to marijuana from the age of
thirteen until approximately 2012, when she became addicted to K2. Id. at
63. Her addiction became so severe that on September 30, 2014, an
ambulance was called due to Mother’s irrational behavior. Id. at 64-65.
Additionally, Mother used drugs around Children, and while driving intoxicated
with Children in the car, hit a parked car. Id. at 74-75.
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Mother completed drug treatment at Gaudenzia, and upon discharge,
was to attend an aftercare program. Id. at 67. Mother was unsuccessfully
discharged from aftercare due to attendance issues, although she claimed that
she was unable to make the appointments because of her work schedule and
traffic, and stated that she “did the best [she] could.” Id. at 67-69. Mother
admitted that Gaudenzia recommended a step-down program but Mother
chose to return to Reading. Id. at 70. Mother did not complete agency-
requested urinalysis, nor does she attend Narcotics Anonymous or any other
kind of meeting. Id. at 75, 141. Mother also conceded that she did not
successfully complete domestic violence counseling or attend a mental health
evaluation. Id. at 73, 139. Mother admitted that the last time she asked
Maternal Grandmother about Children was in July 2018, and that she did not
inquire with her caseworker about Children. Id. at 88-89.
Mother is currently employed by a recycling company, where she
supervises eighteen other employees. Id. at 98-99. She earns $13.00 an
hour. Id. at 98-100. Mother has been sober for three years. Id. at 125.
At the conclusion of the hearings, the court terminated Mother’s parental
rights. On October 26, 2018, Mother filed a motion requesting that the trial
court enforce an Act 101 agreement between the parties or, conversely, grant
her the right to appeal the termination of her parental rights nunc pro tunc.
Following a hearing, the trial court reinstated Mother’s appellate rights nunc
pro tunc.
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Mother timely appealed and filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On
appeal, Mother raises the following issues for review:
A. Whether the trial court erred as a matter of law, abused its
discretion, and violated [Mother’s] due process rights under
Articles 1 and 11 of the Pennsylvania Constitution and the
Fourteenth Amendment of the United States Constitution by
failing to recuse itself[?]
B. Whether the trial court erred as a matter of law and abused its
discretion by permitting the Berks County Children and Youth
Services, over objection, to submit Exhibits 1, 2, 15, 16, 23, 40,
and 54 into evidence because the exhibits were submitted for the
truth of the matter asserted therein and did not fall under any
hearsay exception?
C. Whether the trial court erred as a matter of law and abused its
discretion by permitting Berks County Children and Youth
Services, over objection, to submit Exhibit 40 because the exhibit
was irrelevant and any probative value was outweighed by its
unfairly prejudicial impact on the fact finder?
D. Whether the trial court erred as a matter of law and abused its
discretion by terminating [Mother’s] parental rights where [CYS]
failed to prove by clear and convincing evidence the elements of
[23 Pa.C.S.A. § 2511(a)(2), (5), and (8)] because evidence
submitted at the termination hearing was insufficient to prove the
statutory requirements of the sections listed above?
E. Whether the trial court erred as a matter of law and abused its
discretion by terminating [Mother’s] parental rights in that the
evidence at the termination hearing failed to show that the needs
and welfare of [Children] are best served by termination?
Mother’s Brief at 5 (unnecessary capitalization omitted).
We review cases involving the termination of parental rights according
to the following:
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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) (internal citations and quotations
omitted).
Mother first argues that the trial court violated her due process rights
by denying her motion for recusal. See Mother’s Brief at 24. Mother claims
that there was an appearance of impropriety because the court relied on
improperly admitted exhibits at the previous termination hearing. Id. at 27.
Mother contends it was “unreasonable” to believe that the trial court could
have separated the information and made a decision solely based on the
evidence submitted after remand. Id.
A motion for disqualification or recusal is properly directed to and
decided by the jurist whose participation is challenged. In
disposing of a recusal request, a jurist must first make a
conscientious determination of his or her ability to assess the case
before the court in an impartial manner, free of personal bias or
interest in the outcome. This is a personal and unreviewable
decision that only the jurist can make. Once satisfied with that
self-examination, the jurist must then consider whether or not
continued involvement in the case would tend to undermine public
confidence in the judiciary.
Commonwealth v. Travaglia, 661 A.2d 352, 370 (Pa. 1995) (citations
omitted). With regard to motions for recusal, “it is the burden of the party
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requesting recusal to produce evidence establishing bias, prejudice or
unfairness which raises a substantial doubt as to the jurist’s ability to preside
impartially . . .” In re S.H. , 879 A.2d 802, 808 (Pa. Super. 2005). As to the
appearance of impropriety, “[b]ecause the integrity of the judiciary is
compromised by the appearance of impropriety, recusal is necessary where
the judge’s behavior appears to be biased or prejudicial.” Commonwealth
v. Benchoff, 700 A.2d 1289, 1295 (Pa. Super. 1997). Thus, “even if the
court determines that there is no actual prejudice, the court must recuse itself
if it appears that there is any improper influence.” Id.
We have held:
[i]t is insupportable that an experienced trial judge is incapable of
making factual determinations and legal findings in regard to the
same child at different hearings, based on separate statutory and
philosophic consideration.
In re Quick, 559 A.2d 42, 47 (Pa. Super. 1989). Further,
[w]here a jurist rules that he or she can hear and dispose of a
case fairly and without prejudice, that decision will not be
overruled on appeal but for an abuse of discretion. In reviewing
a denial of a disqualification motion, we recognize that our judges
are honorable, fair and competent.
S.H., 879 A.2d at 808.
Mother argues that significantly negative information “certainly had an
impact on the disposition of this case” and “created a reasonable risk of actual
bias.” See Mother’s Brief at 28. Although she contends that jurists cannot be
impartial, as we are to presume, Mother does not support this contention with
citation to precedential legal authority. Id. at 28-30. However, the essence
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of Mother’s argument is that there is no way the trial court could preside over
the proceedings following remand without the appearance of impropriety
because the trial court previously terminated her rights.
Despite this broad claim, we have no basis to find that the trial court
could not be impartial. There is no discrete allegation of trial court bias other
than the fact that the outcome was not in Mother’s favor. The trial court was
not involved in the dependency proceedings, but presided solely over
termination. Further, the record reveals that the court considered proper
information on remand, which we discuss infra. By denying Mother’s motion
for recusal, the court indicated that it could preside impartially. In our
examination of Mother’s argument and the record, we discern no appearance
of impropriety. Accordingly, the trial court did not err by denying Mother’s
recusal motion. S.H., 879 A.2d at 808.
In her second and third issues, Mother argues that the trial court erred
as a matter of law and abused its discretion in admitting certain exhibits in
violation of the rules against hearsay, and claims that an exhibit was irrelevant
and its probative value was outweighed by its prejudicial impact. See
Mother’s Brief at 31, 39.
Absent an abuse of discretion, a reviewing court will not disturb the trial
court’s rulings on the admission or exclusion of evidence in a proceeding for
termination of parental rights. A.J.R.-H., 188 A.3d at 1167. With regard to
the admission of evidence:
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the trial court must weigh the relevant and probative value of the
evidence against the prejudicial impact of that evidence. Evidence
is relevant if it logically tends to establish a material fact in the
case or tends to support a reasonable inference regarding a
material fact. Although a court may find that evidence is relevant,
the court may nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.
Commonwealth v. Vucich, 194 A.3d 1103, 1106 (Pa. Super. 2018), appeal
denied, 199 A.3d 885 (Pa. 2018). “Hearsay” is “a statement that (1) the
declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Pa.R.E. 801(c). “Hearsay is not admissible except as provided
by [the Pennsylvania Rules of Evidence], by other rules prescribed by the
Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.
Mother first argues that the dependency petitions – Exhibits 1 and 2 –
regarding Children, and the permanency review orders – Exhibits 15 and 16
– which removed Children from Mother’s custody, should not have been
admitted because the persons who authored the exhibits did not testify. See
Mother’s Brief at 33-34. Mother contends that allegations are not evidence,
and that although she was willing to stipulate to filing dates and allow the
court to take judicial notice of certain facts, the admission itself was “illegal.”
Id. at 34.
This Court has held that evidence from dependency proceedings may be
relevant and admissible in termination proceedings. In re Child M., 681 A.2d
793, 799 (Pa. Super. 1996). Here, the trial court explained:
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Exhibits One and Two are the allegations of dependency, the
petitions, and the docketing entries for both children. A pre-trial
hearing was held on August 13, 2018. At this hearing, the [c]ourt
held that the exhibits were admitted solely for “the purpose of
establishing when the petitions were filed, the dates, who was the
petitioner…” and that there were initial allegations filed. However,
they were not admitted for the truth of the matters that were
asserted in the paragraphs supporting the petition. Therefore,
they were admitted for that limited purpose.
Exhibits Fifteen and Sixteen are the petitions that led to the
placement of each child. Again, these were admitted for the
limited purpose of “showing that these were motions filed with the
agency which then resulted in the actual placement of the
children.”
Trial Court Opinion, 2/5/19, at 13 (citations to the record omitted).
Upon review, we see no error of law or abuse of discretion in the court’s
conclusion. The petitions and orders from Children’s dependency proceedings
were admitted for the limited purpose of providing filing dates and initial
allegations; thus they were not hearsay. Additionally, numerous witnesses
testified to the reasons Children were adjudicated dependent and removed
from Mother’s custody. Accordingly, there was no error. A.J.R.-H., 188 A.3d
at 1167.
Next, Mother argues that Exhibit 23, a May 2015 permanency review
order, was improperly admitted due to attached findings of fact prepared by
a juvenile court officer. See Mother’s Brief at 34. The summary report
contained the family’s history and progress up to the date of the hearing. Id.
Mother argues that these findings were based upon inadmissible hearsay. Id.
The trial court stated:
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Exhibit Twenty-Three is a Permanency Review Order, dated
5/15/2015, concerning A.R.-H. Mother objected to part of this
order, specifically the additional findings of fact. Here, the [c]ourt
admitted this exhibit as it was a certified copy of the [c]ourt, which
Mother did not object to. Therefore, it was admissible.
Trial Court Opinion, 2/5/19, at 13-14 (citations to the record omitted). Here,
Mother stipulated to the order’s admission as a certified court order. Further,
multiple witnesses over the course of the three-day termination hearing
testified about the history of the case and Mother’s lack of progress. Our
review reveals no trial court error. A.J.R.-H., 188 A.3d at 1167.
Next, Mother argues that the court erred in admitting Exhibit 40, which
was a United Judicial System of Pennsylvania Web Portal (UJS) printout of her
criminal history, which was certified by the Clerk of Court. See Mother’s Brief
at 35. Mother argues that despite this certification, a UJS printout is not self-
authenticating. Id. Mother asserts that CYS should have provided official
Clerk of Court certified sentencing forms. Id. at 35-36.
The trial court, again addressing an evidentiary claim, explained:
Exhibit Forty is a Court of Common Pleas docket regarding Mother.
Mother objected as it was not a certified copy of court records.
However, Exhibit Forty was certified on August 1, 2018, and the
[c]ourt admitted the exhibit. Therefore, it was admissible, as it
was a certified copy of Mother’s criminal record.
Trial Court Opinion, 2/5/19, at 14 (citation to the record omitted).
We note that pursuant to Pa.R.E. 902(4) and 42 Pa.C.S.A. §§ 6103-
6104 (a copy of a record of governmental action or inaction authenticated as
provided in section 6103 shall be admissible as evidence that the
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governmental action or inaction disclosed therein was in fact taken or
omitted), Mother’s criminal history was properly certified and admitted.
Further, we find no merit to Mother’s claim that Exhibit 40 should not
have been admitted because it was irrelevant and more prejudicial than
probative. See Mother’s Brief at 39-40. Mother argues that her drug
convictions occurred prior to Children’s birth and painted her as a habitual
drug user unable to maintain sobriety. Id. However, Mother’s history of drug
abuse was indeed relevant to the case, as her addiction led to the removal of
Children from the home, and her failure to properly complete aftercare
treatment was a factor in the court’s decision to terminate her parental rights.
Mother herself testified about her long history of addiction and drug abuse,
and therefore, the admission of her criminal history was not more prejudicial
than probative. A.J.R.-H., 188 A.3d at 1167.
Mother next objects to the admission of Exhibits 54 and 55, which were
the therapist reports created by the Commonwealth Clinical Group. See
Mother’s Brief at 36. Mother argues that the exhibits contained notes from
Children, which she asserts were hearsay; Mother further argues that because
the therapist did not explain how the notes assisted with treatment, they were
improperly admitted for their truthfulness. Id.
“Testimony as to what a child tells other people is admissible in order to
establish that child’s mental state at the time he or she made the comment,”
particularly for purposes of identifying the child’s needs for therapy and
treatment. In re R.K.Y., 72 A.3d 669, 677 (Pa. Super. 2013). “[T]estimony
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introduced to show a child’s state of mind for treatment and therapy purposes
is admissible only for that limited purpose and not as substantive evidence of
the truth of the matters asserted.” Id. at 678.
Here, the notes included A.J.R.’s summary of traumas she had focused
on in treatment sessions, including domestic violence incidents between
Mother and Father and Mother’s drug usage. See N.T., 8/13/18, at 154-58.
Ms. Sage testified that she encouraged A.J.R. to draw and write so that A.J.R.
could process the traumas. Id. The trial court admitted the exhibits because
they were admissible as “expressions [of A.J.R.] as to her concerns and
worries that were related in treatment.” Id. at 162.
The trial court further observed:
Exhibits Fifty-Four and Fifty-Five are therapist reports from
Commonwealth Clinical Group, one for each child. The [c]ourt
reserved ruling on these exhibits until the therapist that prepared
them testified. Here, Mother did not object to the notes from the
children being admitted, but focused specifically on the reports
prepared by the mobile therapist. However, the therapist was
present, testified, and was cross-examined by Mother. Therefore,
the exhibits were properly admitted.
Trial Court Opinion, 2/5/19, at 14. Upon review, we agree that the exhibits
were properly admitted. R.K.Y., 72 A.3d at 677.
We now turn to Mother’s challenge to the termination of her parental
rights. Termination 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
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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).
Instantly, we focus our analysis on subsections (a)(2) and (b).
The relevant subsections of 23 Pa.C.S.A. § 2511 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.
***
(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 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.
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To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The
grounds for termination are not limited to affirmative misconduct, but concern
parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,
1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward
the reasonably prompt assumption of full parental duties. Id.
Mother argues that the evidence was not clear and convincing in support
of termination under Section 2511(a)(2). See Mother’s Brief at 43. She
claims that Children were not physically abused, the home was not unclean,
and she did not fail any urinalysis tests or engage in inappropriate visits with
Children. Id. Mother admitted to instances of domestic violence and drug
dependency, but argues that these instances were insufficient to support
termination. Id. at 43-44.
The trial court succinctly rebutted this argument:
In this case, while Mother has tried to alleviate the concerns that
led to the placement of the children, she has been unable to fully
do so. Here, Mother is to be commended for completing a
six[-]month, in-patient drug treatment. However, Mother left
treatment with no aftercare in place, which was against the advice
of the treatment provider. Mother failed to complete her
counseling after her discharge. Mother began seeing Father
again, and stayed with him after she was discharged. Finally,
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Mother made no progress in her court-ordered services after
discharge. For these reasons, Mother failed to remedy the
conditions that led to the placement of her children. Therefore,
termination is warranted under this section.
Trial Court Opinion, 2/5/19, at 8-9 (citation to record omitted).
Again, we discern no error by the trial court. Mother has not provided
evidence of successful completion of domestic violence and mental health
treatment, or ongoing drug and alcohol treatment. Consistent with the record,
the trial court acted within its discretion in finding that competent, clear and
convincing evidence supported the termination of Mother’s parental rights
pursuant to Section 2511(a)(2), based upon Mother’s continued incapacity –
i.e., her inability to complete court-ordered services after discharge and
comply with the recommendations of her treatment providers – that resulted
in Children being without essential parental care, the cause of which “cannot
or will not be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at
1117.
Finally, we consider whether Children’s needs and welfare are met by
termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “In this
context, the court must take into account whether a bond exists between child
and parent, and whether termination would destroy an existing, necessary
and beneficial relationship.” Id. The court is not required to use expert
testimony, and social workers and caseworkers may offer evaluations as well.
Id. Ultimately, the concern is the needs and welfare of a child. Id.
We have stated:
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Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parent’s rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the children might have with their foster parent. See In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011). Where there is no evidence of a bond between
the parent and child, it is reasonable to infer that no bond exists. Id. “[A]
parent’s basic constitutional right to the custody and rearing of . . . her
child[ren] is converted, upon the failure to fulfill . . . her parental duties, to
the child[ren]’s right to have proper parenting and fulfillment of [the
children’s] potential in a permanent, healthy, safe environment.” In re
B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citations omitted).
Mother argues that Children’s needs and welfare are not best served by
termination because she has a loving bond with Children. See Mother’s Brief
at 50-51. However, the trial court aptly observed:
After reviewing the testimony and considering the exhibits, this
[c]ourt finds that the termination of Mother’s rights will serve the
best interests of the children. In this case, the children see a
trauma therapist once a week. Their therapist, Marta Smith,
testified as to the detrimental effect being reunited with Mother
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will have on the children. Both children have been diagnosed with
[PTSD], based on the experiences they had with Mother and
Father. Ms. Smith testified that it would be detrimental to reunite
the children with their Mother until [they] have completed trauma
therapy. She testified that the children do not trust Mother, and
that they have not made any statements about wanting to see
her. She further testified that Mother’s admission that she
continues to have contact with Father only strengthens her
opinion that the children should not be reunited with Mother. The
record shows that the children look to their grandparents to fulfill
their needs. Further, Ms. Kauffman-Jacoby testified that the
children have a loving and strong bond with their grandparents.
Both testified that the only thing that would be detrimental to the
children would be reunification with Mother and separation from
their grandparents.
Trial Court Opinion, 2/5/19, at 11-12 (citations to the record omitted).
We once more find no error of law or abuse of discretion in the trial
court’s conclusion. The record confirms that Children’s needs and welfare are
met by Maternal Grandparents, who ensure that Children are in therapy,
attending school, and participating in activities. Maternal Grandparents
attended therapy to address their own issues, and have progressed in that
regard and in their relationship with Children. Children appear ambivalent
about their future relationship with Mother. Although Children wish to
maintain contact with Mother, they also expressed apprehension about such
contact. Further, Children’s legal counsel articulated Children’s desire to
remain with Maternal Grandparents and be adopted by them.
Accordingly, we discern no abuse of discretion in the trial court’s
conclusion that Children’s needs and welfare are best served by termination.
In sum, clear and convincing evidence supports the trial court’s termination
of Mother’s parental rights under Section 2511(a)(2), as well as the Section
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2511(b) findings that any bond between Children and Mother is outweighed
by the fact that adoption would best serve Children’s needs and welfare. See
Z.P., 994 A.2d at 1126-27; K.Z.S., 946 A.2d at 763.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2019
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