Adoption of: Z.E.G., Appeal of: T.J.K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF
OF: Z.E.G. : PENNSYLVANIA
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APPEAL OF: T.J.K. : No. 34 WDA 2020
Appeal from the Decree Entered November 25, 2019
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 38 in Adoption 2019
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF
OF: K.N.G. : PENNSYLVANIA
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APPEAL OF: T.J.K. : No. 35 WDA 2020
Appeal from the Decree Entered November 25, 2019
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 38A in Adoption 2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JUNE 10, 2020
Appellant, T.J.K. (“Mother”), appeals from the decrees entered in the
Erie County Court of Common Pleas, Orphans’ Court, which granted the
petition of C.G. (“Father”) for involuntary termination of Mother’s parental
rights to Z.E.G. (born in January 2012) and K.N.G. (born in April 2009)
(“Children”). We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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The relevant facts and procedural history of this case are as follows.
Mother and Father married in 2007 and separated in 2014. Prior to their
separation, Mother and Father lived in Michigan with Children. After their
separation, Father moved to Pennsylvania. At that time, Children resided
primarily with Mother in Michigan. In April 2016, during a visit with Father in
Pennsylvania, K.N.G. disclosed that she and Z.E.G. had been sexually abused
by Mother’s boyfriend, D.B. Michigan and Pennsylvania child protective
services became involved, deemed the allegations of abuse “founded” after
an investigation, and Father obtained primary physical custody of Children.
In 2017-2018, Mother and Father participated in extensive custody
litigation in Jefferson County, Pennsylvania, initiated by maternal
grandparents. After a custody trial, the court entered the following order
dated April 16, 2018, and entered the next day:
AND NOW, April 16, 2018, after a custody trial, IT IS
HEREBY ORDERED AND DECREED that Plaintiffs’ Petition for
Grandparent Custody is DENIED.
IT IS FURTHER ORDERED AND DECREED that Father…shall
have full physical and legal custody of the minor children,
there shall be no visitation granted to Mother until approved
by counseling and therapy.
Counseling shall occur as follows:
1. Mother and the Maternal Grandparents shall attend an
evaluation and counseling from Project Point of Light or
some other certified sex offender counseling program that
counsels both perpetrators and victims. They shall do their
evaluation and individual counseling until the children’s
counselors are approached to set up a therapeutic situation
and Mother and her family can have contact with the
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children. Mother, Maternal Grandparents and Maternal Aunt
will need to complete this counseling.
2. The [c]ourt envisions that after individual counseling and
accepting the abuse, that the entire family, paternal and
maternal, will work through Parkside Services in Erie to work
toward regular contact and visitation. In this case, because
of Mother’s prior conduct it may take years to occur.
3. Mother shall have NO CONTACT with [D.B.] and she will
cooperate with the authorities in prosecuting him for
criminal violations should the legal authorities file a case
against him.
(Order, filed 4/17/18).
On January 8, 2019, Father filed petitions for involuntary termination of
Mother’s parental rights (one petition per child) in Jefferson County, under 23
Pa.C.S.A. § 2511(a)(1) and (b). Father alleged, inter alia, that since the entry
of the custody order, Mother had not reached out to Children (through Father
or Children’s counselors) seeking to participate with Children in counseling
pursuant to the terms of the order. Father claimed his new wife, E.S.G., was
ready and willing to adopt Children, and that termination of Mother’s parental
rights would serve Children’s best interests and permit E.S.G. to adopt them.1
Mother filed motions to dismiss and answers to the petitions on February
22, 2019. In the motions to dismiss, Mother claimed venue was improper in
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1 A petition to terminate a natural parent’s parental rights, filed by one natural
parent against the other, is cognizable only if an adoption of the child is
foreseeable. See 23 Pa.C.S.A. § 2512(b) (stating petition for involuntary
termination of parental rights filed by one natural parent against other natural
parent must contain averment that petitioner will assume custody of child until
such time as child is adopted).
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Jefferson County, as Father and Children had been residing in Erie County
since June 2017. In her answers, Mother insisted she had demonstrated a
clear intent to defend and protect her parental claims to Children and had
made every effort to comply with the terms of the April 2018 order. Mother
maintained she tried to appeal the April 2018 order, but that appeal was
dismissed in September 2018. Mother contended she had been seeking
mental health treatment, including counseling from a certified sex offender
counselor who works with perpetrators and victims. Mother averred she was
also undergoing counseling for the trauma and injury she suffered as a result
of losing custody and being separated from her children. Mother stressed that
she was continuing to make all reasonable efforts to comply with the court’s
directives and to equip herself with the necessary therapy and training to
reestablish a healthy relationship with Children.
Mother further emphasized that the April 2018 order did not designate
a deadline in which Mother had to complete counseling. Mother said it was
her intent to follow her counselor’s advice regarding an appropriate time to
attempt reunification with Children. Mother also highlighted that she had been
consistent with her child support payments. Mother suggested her actions did
not demonstrate a settled purpose of relinquishing her parental rights.
On or around February 28, 2019, the Jefferson County Court of Common
Pleas transferred the case to the Erie County Court of Common Pleas, Orphans’
Court. Father filed amended petitions for involuntary termination of Mother’s
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parental rights, on July 17, 2019, raising the same allegations set forth in the
initial petitions and adding Section 2511(a)(2) as another ground for relief.
Mother filed responses to the amended petitions on July 25, 2019.
The court held termination hearings on October 9, 2019 and November
21, 2019.2 At the start of the termination hearing on October 9, 2019, the
court took judicial notice of the findings and facts and conclusions of law of
the Jefferson County Court of Common Pleas in the 2017-2018 custody action.
Father then testified as the first witness, indicating Children have lived with
him since April 2016. Father explained Children both have reactive
attachment disorder, and Z.E.G. also has ADHD and low muscle tone. Father
stated both Children have undergone and continue to undergo substantial
therapy due to the sexual abuse they endured at the hands of Mother’s
paramour. Father interpreted the April 2018 order as requiring Mother to
undergo sex offender treatment and then to reach out to Children’s counselors
to reestablish a connection with them. Father said Mother has not reached
out to any of Children’s counselors since the April 2018 order in an attempt to
pursue reunification.
Father asserted that Children have expressed no interest or desire to
have contact with Mother. Rather, Father insisted Children are fearful of
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2Mother did not meet the income requirements for court-appointed counsel
and did not retain private counsel, so she appeared pro se at the termination
hearings.
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having contact with Mother. Father said his wife, E.S.G., loves Children, treats
them as her own, and wants to adopt Children. Aside from paying child
support, Father maintained Mother has taken no overt act to parent Children.
Father admitted he did not give Mother a list of Children’s counselors, but he
stated Mother did not contact Father for a list of Children’s counselors.
Further, Father recounted that K.N.G. had disclosed the sexual abuse to
him during a visit in April 2016. K.N.G. told Father that Mother’s boyfriend
licks her private parts. Father called Mother about the allegations and Mother
initially said she had spoken to K.N.G. about that a year ago; but Mother
subsequently denied having prior knowledge of the allegations. Father said
the allegations of sexual abuse, and later allegations of physical abuse, against
Mother’s paramour were founded. (See N.T. Termination Hearing, 10/9/19,
at 6-43).
Colleen Prittie, Children’s blended case manager, testified that she
works for the Achievement Center and coordinates family services. Ms. Prittie
began working with K.N.G. in the fall of 2017 and with Z.E.G. in June 2018.
Ms. Prittie said Mother did not contact her at any point. Ms. Prittie confirmed
that Children fear Mother and do not want to have contact with her.
Specifically, Ms. Prittie indicated Children do not feel Mother believes their
allegations; Children are very angry with Mother and do not feel protected by
her. Ms. Prittie also said Children wrote letters to the court and to Mother
expressing their opinions because they did not want to testify in court.
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Children gave the letters to their guardian ad litem (“GAL”). Ms. Prittie helped
facilitate the process of Children writing their letters. (See id. at 43-63).
Frances Tuck, a licensed clinical social worker, testified by phone that
she worked with Children at the Achievement Center. Ms. Tuck worked with
Z.E.G. for two years and with K.N.G. for a year and a half. Ms. Tuck conducted
trauma focused play therapy with Children. In Ms. Tuck’s opinion, Children’s
behaviors during play therapy supported their allegations of abuse. Z.E.G.
acted out extremely violent scenarios in play therapy, while K.N.G. was more
internal. Children both said they did not want contact with Mother and were
afraid to have contact with Mother. Ms. Tuck confirmed it is common for
abused children not to exhibit behavioral problems until after they leave the
abusive household and feel they are in a safer environment. (Id. at 64-78).
At the conclusion of Ms. Tuck’s testimony, Father rested his case.
Mother called her sister, J.R., as her first witness. J.R. testified that she
has never seen Children show fear of Mother. J.R. expressed doubts that D.B.
actually abused Children. J.R. suggested Father and his wife were playing a
game of “keep away” with Children. J.R. said Father has made every attempt
to shut out Mother and has blocked her access to Children. J.R. also claimed
Father gave misleading information to Children’s therapists. (Id. at 79-91).
In lieu of presenting a narrative of her testimony, Mother submitted a
written affidavit, which the court admitted as an exhibit. (Id. at 93). Upon
cross-examination by Father’s counsel, Mother stated she underwent four
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evaluations by her treating therapist. Mother admitted she did not produce
the results of those evaluations to Father or his counsel. Mother also conceded
that she did not contact Father for the names of Children’s counselors. Mother
indicated she was unsure if the sexual abuse of Children actually happened
because she has not spoken to Children about it since they made the
allegations. (Id. at 95-105). Following Mother’s testimony, the court
adjourned for the day.
The termination hearing continued on November 21, 2019. Dr. Julie
Davis, Ph.D., Mother’s psychologist, testified by phone3 that Dr. Davis had
been treating Mother continuously since August 2017. Dr. Davis explained
Mother underwent multiple assessments and evaluations, and she discussed
the results of those tests. Dr. Davis conceded that Mother did not submit to
the evaluations until after Father filed the termination petitions in this case.
Dr. Davis said she primarily works with sex abuse victims and works with sex
offenders peripherally. Dr. Davis indicated that Mother has not denied
Children’s abuse; rather, Mother denied knowledge of whether Children were
abused. Dr. Davis testified that Mother claimed to have removed her
paramour from the home after the allegations. (See N.T. Termination
Hearing, 11/21/19, at 3-20).
Mother’s last witness was Father’s wife, E.S.G. E.S.G. testified that she
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3 Dr. Davis testified as a fact witness, not an expert witness.
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was not trying to replace Mother or shut Mother out of Children’s lives. Rather,
E.S.G. was merely trying to “pick up the pieces” and act in Children’s best
interests. E.S.G. maintained that she had tried to urge Children to call Mother
more frequently when a prior order for supervised phone calls was in effect,
but Children did not want to speak to Mother. (See id. at 21-31).
After testimony concluded, the GAL sought to introduce letters from
Children expressing their opinions in the case. Mother objected to admission
of the letters, claiming she had no way to confirm whether Children actually
wrote the letters and whether Children wrote the letters of their own volition.
The GAL represented to the court that the letters expressed Children’s wish to
be adopted by E.S.G. The court admitted the letters and told Mother she could
raise her concerns again in closing arguments. The GAL then opined that it
was in Children’s best interests to terminate Mother’s parental rights. The
GAL stated Children are severely traumatized and damaged by the sexual
assault and Mother’s refusal to believe their allegations or protect them, and
more litigation would cause further damage.
On November 25, 2019, the court entered decrees granting Father’s
petitions for involuntary termination of Mother’s parental rights under Section
2511(a)(1) and (b). Mother timely filed notices of appeal on December 23,
2019, along with concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i). This Court has consolidated the appeals.
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Mother raises the following issues for our review:4
WHETHER THE TRIAL COURT ERRED IN TERMINATING THE
PARENTAL RIGHTS OF [MOTHER] WHERE THE RECORD
DOES NOT DEMONSTRATE CLEAR AND CONVINCING
EVIDENCE IN SUPPORT OF TERMINATION PURSUANT TO 23
PA.C.S.A. § 2511(A)(1)?
WHETHER THE TRIAL COURT ERRED IN TERMINATING THE
PARENTAL RIGHTS OF [MOTHER] WHERE THE RECORD
DOES NOT DEMONSTRATE CLEAR AND CONVINCING
EVIDENCE PURSUANT TO 23 PA.C.S.A. § 2511(A)(2)?
WHETHER THE TRIAL COURT ERRED IN TERMINATING
[MOTHER’S] PARENTAL RIGHTS WHERE THE COURT’S
RELIANCE ON THE TESTIMONY OF THE [GAL] WAS
IMPROPER?
DID THE TRIAL COURT ERR IN CONDUCTING A BEST
INTEREST ANALYSIS UNDER SECTION 2511(B) OF THE
ADOPTION ACT WHERE THE EVIDENCE ON THE RECORD
DID NOT SUPPORT A FINDING THAT THE CHILDREN’S
DEVELOPMENTAL, PHYSICAL AND EMOTIONAL NEEDS
WOULD BE SECURED BY TERMINATING MOTHER’S
PARENTAL RIGHTS?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY NOT
ALLOWING [MOTHER] TO INTRODUCE EXHIBITS TO
SUPPLEMENT HER SWORN AFFIDAVIT OF TESTIMONY?
(Mother’s Brief at 12-14).
Appellate review of termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
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4 Mother has retained private counsel for this appeal.
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In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by the finder of fact. The burden of proof is
on the party seeking termination to establish by clear
and convincing evidence the existence of grounds for
doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
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For purposes of disposition, we combine Mother’s first and second
issues. Mother argues Father failed to satisfy his burden to prove termination
of her parental rights was proper under Section 2511(a)(1). Mother asserts
she was actively engaged in counseling with Dr. Davis, has been continuously
paying child support, and was actively involved in the underlying custody
action, in the six months preceding the filing of the termination petitions.
Mother claims she adhered to the court’s April 2018 order by undergoing
counseling that focused on Children’s abuse. Mother insists she demonstrated
an effort to provide for Children despite the many obstacles in her way.
Mother maintains she was ignored and blocked by Father any time she tried
to contact Children’s counselors. Mother submits the record does not evidence
a settled purpose of relinquishing her parental claim to Children or a refusal
or failure to perform parental duties.
Additionally, Mother contends Father failed to satisfy his burden to prove
termination of her parental rights was proper under Section 2511(a)(2).
Mother suggests she substantially complied with the April 2018 order, as
evidenced by her treatment with Dr. Davis. Mother avers the court failed to
consider the various evaluations she underwent with Dr. Davis. Mother admits
those evaluations took place after Father filed the termination petitions, but
she emphasizes the court was not precluded from considering those efforts
under a Section 2511(a)(2) analysis. Given Mother’s completion of a sex
offender evaluation and ongoing treatment with Dr. Davis, Mother concludes
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the record does did not support termination of her parental rights under
Section 2511(a)(2). We disagree.
Father sought involuntary termination of Mother’s parental rights to
Children on the following grounds:
§ 2511. Grounds for involuntary termination
(a) General Rule.―The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.
(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(a)(1), (a)(2), and (b). “Parental rights may be
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involuntarily terminated where any one subsection of Section 2511(a) is
satisfied, along with consideration of the subsection 2511(b) provisions.” In
re Z.P., supra at 1117.
Under Section 2511(a)(1):
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for …her conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of …her parental
rights, to determine if the evidence, in light of the totality of
the circumstances, clearly warrants the involuntary
termination.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
Instantly, the court decided Father met his burden to establish
termination of Mother’s parental rights under Section 2511(a)(1), explaining:
The evidence in support of Father’s contention that Mother
has refused or failed to perform parental duties under
section 2511(a)(1) is fairly straightforward. Father
presented clear and convincing evidence that Mother has
had no contact with the Children since 2017, and other than
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paying child support, she has performed no parental duties,
even after the Custody Order was entered in 2018 that gave
her a means to do so.13
13 To the extent Mother argues that pursuit of custody
litigation is, in and of itself, performance of parental
duties under the facts of this case, that argument is
defeated by her failure to diligently follow the
resulting Custody Order.
* * *
Mother’s testimony [as set forth in her affidavit] reveals
three main excuses for her failure to initiate contact with the
Children’s counselors under paragraph 1 of the Custody
Order. First she blames Father for not identifying the
counselors, which…the court did not find persuasive given
Mother made no effort whatsoever to seek out that
information. It is well settled that a parent must utilize all
available resources to preserve the parental relationship and
must exercise reasonable firmness in resisting obstacles
placed in the path of maintaining the parent-child
relationship. [See In re B., N.M., supra]. This she did not
do.
Her second explanation is that she was delayed in following
the Custody Order while the Superior Court appeal was
pending. However, the appeal did not stay the Custody
Order, and she provided no other reason why she could not
follow the Custody Order during the pendency of the appeal.
In fact, she demonstrated the opposite conclusion by
arguing that her continued work with Dr. Davis after the
Custody Trial, including during the pendency of the appeal
is evidence that she was attempting to follow the Custody
Order at that time.
Her third explanation is that the Custody Order did not
provide a deadline by which she was required to act. In this
respect Mother is correct, but, in this court’s view, that does
not relieve her of her obligation to begin performing parental
duties at the earliest possible time. Mother testified that
she was busy with her own therapy and was not yet in a
place in her life to advance to therapeutic contact with the
Children. However, this argument did not satisfy the court.
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Mother testified that she has been in counseling with Dr.
Davis since 2017. She also testified to numerous times
throughout the history of this case where she was given
specific custody rights, for example in the Michigan custody
orders, but never acted diligently to enforce those rights.
Throughout the history of this case, as evidenced by her
testimony before court, statements in her Affidavit and
Response to the [termination] petition[s], and in the
Findings from the Custody Trial, Mother has demonstrated
a pattern of avoidance, followed by blaming others for the
natural consequences of her own failures to work diligently
to overcome the obstacles she asserts were placed in her
path of maintaining the parent-child relationship.
(Trial Court Opinion, filed January 22, 2020, at 18-20).
Additionally, the court found incredible Mother’s testimony concerning
her difficulties in contacting Children’s counselors. The trial court noted that
Mother was present at the custody trial in Jefferson County, at which Ms.
Prittie (Children’s blended case manager) had testified, and nothing prevented
Mother from reaching out to her to explore reunification counseling with
Children’s counselors. Further, the court explained that Mother’s testimony,
“when considered as a whole, reflected that she has made no progress toward
understanding how her continuing focus on the veracity of the Children’s
abuse allegations, as opposed to accepting the Children’s belief that they were
abused, has been the primary cause of the Children’s alienation from her.”
(Id. at 14-15).
We agree with the court’s analysis. See In re Z.P., supra. The April
2018 custody order made clear that Mother needed to accept that the abuse
occurred. The order also provided a roadmap for Mother to rebuild a
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relationship with Children. At the time of the 2019 termination hearings,
Mother was still unable to come to grips with the abuse, even though child
protective services had determined Children’s allegations were founded, and
Children’s counselors testified that Children’s behaviors were consistent with
being abused.
Additionally, Mother admitted that she made no effort to contact Father
or Children’s counselors at any point since entry of the April 2018 order.
Instead, Mother blamed Father for not reaching out to her with more
information. Aside from paying child support, Mother made no effort to
perform any parental duties in the six months prior to the filing of the
termination petitions. The record supports the court’s termination decision
under Section 2511(a)(1).5 Therefore, Mother’s first and second issues merit
no relief.
In her third issue, Mother argues the court’s reliance on the GAL’s
recommendations was improper. Mother asserts the GAL did not fulfill the
obligations outlined in Section 6311 of the Juvenile Act, because she did not
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5 In its Rule 1925(a) opinion, the court stated termination of Mother’s parental
rights was also proper under Section 2511(a)(2) for the same reasons the
court set forth supporting termination under subsection (a)(1). (See Trial
Court Opinion at 20 n.14). Nevertheless, in its decrees terminating Mother’s
parental rights, the court did not mention Section 2511(a)(2). In any event,
because Father only needed to prove termination was proper under one
subsection of Section 2511(a), in conjunction with Section 2511(b), we need
not consider Mother’s argument under Section 2511(a)(2). In re Z.P., supra
at 1117.
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interview Mother during the course of the proceedings. Mother submits that
Section 6311 requires a GAL to interview the parents in dependency
proceedings. Mother admits there is no statute delineating a GAL’s powers
and duties with respect to private termination proceedings. Nevertheless,
Mother suggests the powers and duties of a GAL outlined in the Juvenile Act
should be construed to require a GAL in a private termination proceeding to
interview the parents prior to making a recommendation regarding whether
termination serves the best interests of the children.
Mother contends the GAL spoke with Mother for only a moment prior to
the termination hearing, when the GAL asked Mother if she would be willing
to voluntarily relinquish her parental rights. Mother emphasizes that the GAL
asked her only two questions on cross-examination. Mother insists a GAL is
appointed to conduct a thorough investigation of the circumstances
surrounding a termination proceeding, which cannot be properly executed if a
GAL interviews only a few interested parties. Mother also claims the court
improperly allowed the GAL to submit unauthenticated letters from Children,
in violation of Pa.R.E. 901. We disagree.
Preliminarily, as a general rule, a Rule 1925 statement of errors
complained of on appeal must concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent
issues; issues not included in the Rule 1925 concise statement are waived on
appeal. In re A.B., 63 A.3d 345 (Pa.Super. 2013).
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This Court has considered the question of what constitutes
a sufficient [concise] statement on many occasions, and it
is well-established that [an a]ppellant’s concise statement
must properly specify the error to be addressed on appeal.
The [concise] statement must be specific enough for the
trial court to identify and address the issue an appellant
wishes to raise on appeal. Further, this Court may find
waiver where a concise statement is too vague. When a
court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. A [c]oncise
[s]tatement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no
[c]oncise [s]tatement at all.
Id. at 350 (internal citations omitted) (holding mother waived claims on
appeal by failing to specify issues complained of on appeal in her concise
statement).
Instantly, Mother raised 19 claims of error in her Rule 1925(a)(2)(i)
statement. Significantly, however, Mother did not include a challenge to the
GAL’s alleged failure to fulfill her duty to interview Mother under Section 6311
of the Juvenile Act. As a result of Mother’s failure to specify this claim of error
in her concise statement, the trial court did not address it in the court’s Rule
1925(a) opinion. Consequently, we deem this particular claim of error waived
on appeal.6 See id.____________________________________________
6 In her concise statement at allegation #10, Mother raised the following
issue: “Whether the [c]ourt [erred] in finding that based on the opinion of the
GAL, who had never had any contact with the Mother, her therapists or the
[Children’s] current therapists,…that the bond between Mother and [Children]
had been properly examined pursuant to 23 Pa.C.S.A. [§] 2[5]11(b), and
correctly found that the best interests of [Children] were served by clearing a
path to permanency through the proposed step parent adoption by
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Mother did, however, preserve her claim challenging the GAL’s
presentation of allegedly unauthenticated letters from Children, in violation of
Pa.R.E. 901 (stating: “Unless stipulated, to satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is”).7
“[T]he decision of whether to admit or exclude evidence is within the
sound discretion of the orphans’ court. A reviewing court will not disturb these
rulings absent an abuse of discretion. Discretion is abused if, inter alia, the
orphans’ court overrides or misapplies the law.” In re A.J.R.-H., 647 Pa.
256, 273, 188 A.3d 1157, 1166 (2018) (internal citations omitted).
In In re B.J.Z., 207 A.3d 914 (Pa.Super. 2019), the appellant/father
claimed the trial court erred by allowing statements made by the two oldest
____________________________________________
[Children’s] step mother.” (Rule 1925(a)(2)(i) statement, filed 12/23/19, at
3). To the extent this claim purported to encompass Mother’s current
challenge to the GAL’s alleged failure to fulfill her duties under the law, we
deem it too vague to have preserved Mother’s contention on appeal. See In
re A.B., supra. Rather, the issue as framed in Mother’s concise statement
aligns more closely with Mother’s fourth issue on appeal, challenging the
court’s Section 2511(b) analysis.
7 Mother also suggests the GAL violated Rule of Professional Conduct 3.7 by
submitting the “unauthenticated letters.” Mother did not raise this particular
claim in her concise statement and does not adequately develop this argument
on appeal, so we deem it waived. See In re A.B., supra. See also In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017) (stating it is well-settled
that this Court will not review claim unless it is developed in argument section
of appellant’s brief and supported by citations to relevant authority; failure to
do so constitutes waiver of issue on appeal).
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children into evidence by way of the children’s legal-interests attorney. The
appellant claimed the court had essentially relied on inadmissible hearsay,
because the appellant was unable to question the children in court. In its Rule
1925(a) opinion, the trial court relied on the Supreme Court’s decision in In
re Adoption of L.B.M, 639 Pa. 428, 161 A.3d 172 (2017) (holding court must
appoint legal-interests counsel for child in contested termination proceeding
to represent child’s “legal interest” which is synonymous with “preferred
outcome”), to support its decision that statements from a child’s legal-
interests counsel regarding the child’s preferred outcome in the case do not
constitute inadmissible hearsay. In re B.J.Z., supra at 919. The trial court
stated: “We do not believe that the Supreme Court of Pennsylvania would
mandate that children in these hearings must testify under the rationale that
it would otherwise be permitting inadmissible hearsay. Such a decision would
likely cause additional distress and long-lasting, if not permanent, emotional
impact on children.” Id.
This Court agreed with the trial court’s analysis, and added that
“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.”
Id. (internal citations omitted). Consequently, this Court held that the trial
court did not err in allowing the children’s legal-interests counsel to provide
the court with information regarding the children’s position on termination of
their father’s parental rights. Id. at 920.
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Instantly, the trial court explained:
The GAL presented GAL Exhibits 1 and 2, which are a
collection of hand written letters by or on behalf of the
Children offered in lieu of their testimony in court. Both
letters express the Children’s hurt, anger, and rejection of
Mother in favor of Father and [E.S.G.] The letters were
considered by the court to the extent they fulfilled the GAL’s
obligation as attorney for the Children to represent the
Children’s preferences in this matter, and also for the
purpose of showing the Children’s current state of mind.
However, they were not considered as proof of the truth of
any of the factual matters asserted therein.
(Trial Court Opinion at 17).
We see no abuse of discretion in the court’s admission of Children’s
letters under the facts of this case. See In re A.J.R.-H., supra. The GAL,
who also served as Children’s legal-interests counsel,8 was entitled to present
Children’s preferred outcome in this case. See L.B.M., supra. The court
considered the letters solely for the purpose of showing Children’s preferred
outcome. While In re B.J.Z. involved a hearsay challenge, we find this Court’s
reasoning in that case instructive here, and conclude that the court’s
admission of Children’s letters expressing their preferred outcome did not
violate Rule 901. See Pa.R.E. 901; In re B.J.Z., supra.
____________________________________________
8 The trial court did not appoint separate legal-interests counsel for Children
and instead permitted the GAL to represent both Children’s best and legal
interests. Mother does not challenge the dual appointment on appeal. See
In re Adoption of K.M.G., 219 A.3d 662 (Pa.Super. 2019) (en banc), appeal
granted in part, ___ Pa. ___, 221 A.3d 649 (2019) (holding Superior Court
does not have authority to review sua sponte whether conflict existed between
counsel’s representation and child’s stated preference in involuntary
termination of parental rights proceeding).
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Further, Ms. Prittie testified about Children’s letters and stated that she
had helped to facilitate the letter-writing process. Notably, after the GAL
sought to admit Children’s letters, Mother did not attempt to re-call Ms. Prittie
for additional cross-examination related to the letter-writing process. In any
event, even if the court erred by admitting Children’s letters, the record does
not indicate that such error would have contributed to the court’s decision to
terminate Mother’s parental rights, where Father, Ms. Prittie, Ms. Tuck, and
the GAL confirmed that Children’s preferred outcome in the case was to remain
with Father and E.S.G. and to terminate Mother’s parental rights. Compare
In re A.J.R.-H., supra (explaining that where erroneous evidentiary ruling
could potentially have affected decision to terminate parent’s rights, error is
not harmless and parent is entitled to new hearing and decision). Thus,
Mother’s third issue on appeal merits no relief.
In her fourth issue, Mother admits her bond with Children is minimal.
Mother asserts she lacks a significant bond with Children because of the
various prohibitions by the court on her contact with them. Mother claims the
court failed to consider her bond with Children prior to 2016, when Mother
was the primary caretaker of Children. Mother concludes the court’s
termination decision under Section 2511(b) was improper. We disagree.
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
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are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. Significantly:
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.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have …her rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
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genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert herself to take and maintain a
place of importance in the child’s life.
Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of …her ability, even in difficult circumstances.
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with his or her physical and
emotional needs.
In re B., N.M., supra at 855 (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of …her child is converted, upon
the failure to fulfill …her parental duties, to the child’s right to have proper
parenting and fulfillment of [the child’s] potential in a permanent, healthy,
safe environment.” Id. at 856.
Instantly, the court granted Father’s petition for involuntary termination
of Mother’s parental rights under Section 2511(b), explaining:
Here, the totality of the evidence supports the conclusion
that whatever bond existed between Mother and Children in
2016, it has been severed from the Children’s perspective.
Given the time that has elapsed since Mother’s last contact
with the Children, and the consistent and unequivocal
testimony from every witness having contact with the
Children, including every professional witness, that the
Children…are firmly resistant to contact with Mother; and
given the corroborating letters produced by the Children as
to their present state of mind, and the fact that all but
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Mother agree that the Children would not be harmed by
terminating Mother’s parental rights and their best interests
would be served by bringing closure to this matter and
facilitating permanency through adoption, this court finds
that Father has satisfied his burden under section 2511(b)
that termination of Mother’s parental rights is in the best
interests of the Children.
Thus, even though the court believes Mother sincerely loves
the Children and hopes to one day be capable of parenting
them, the court cannot and will not subordinate indefinitely
the Children’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
(Trial Court Opinion at 21-22) (internal citation and quotation marks omitted).
Contrary to Mother’s assertion, the record shows the court considered
Mother’s bond with Children prior to 2016, but determined any bond had been
severed. The record supports the court’s sound reasoning and we see no
reason to disturb the court’s termination decision under Section 2511(b). See
In re Z.P., supra.In her fifth and final issue, Mother argues she submitted an extensive
list of proposed exhibits in this case, which the court excluded as irrelevant.
Mother asserts the court should have allowed her to introduce her proposed
exhibits to supplement her testimony.9 Mother claims the court should not
have mechanically applied the six-month lookback period, and was required
to consider the “whole case.” Mother insists her proposed exhibits would have
____________________________________________
9Mother sought to admit 25 exhibits, including custody orders from the earlier
proceedings in Michigan and Jefferson County and child protective services
reports.
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bolstered the statements Mother made in her affidavit. Mother concludes the
court’s refusal to admit her exhibits constitutes reversible error. We disagree.
Instantly, Mother framed this claim in her concise statement as follows:
“Whether the trial court erred as a matter of law by refusing to permit [Mother]
from concluding her testimony.” (Rule 1925(a)(2)(i) statement at 3). Mother
did not mention the court’s exclusion of any particular exhibits Mother
allegedly sought to admit or in what way the court prevented her from
“concluding her testimony,” which Mother had presented through an affidavit.
As such, we deem Mother’s fifth issue waived for vagueness in her concise
statement. See In re A.B., supra.Further, the court acknowledged that “the full history of the case was
recently litigated between the parties in the Custody Trial in Jefferson County,
resulting in the detailed Findings from that proceeding. Thus, the court did
not deem it necessary to re-litigate the entire case history at the [termination]
hearing.” (Trial Court Opinion at 18). Indeed, at the beginning of the
termination hearing on October 9, 2019, the court took judicial notice of the
36-page opinion by the Jefferson County Court of Common Pleas, which the
court authored in support of its April 16, 2018 order. Thus, even if Mother
had preserved this issue, we would still conclude the issue merits no relief, as
the trial court was certainly aware of the “whole story” involving the parties.
Accordingly, we affirm.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2020
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