In re B.L.W.

DISSENTING OPINION BY

KLEIN, J.:

¶ 1 I agree with the analysis of the law of the majority. If the record and the findings of fact of the trial judge supported the conclusions made by the trial judge, I would agree with the majority. However, the trial judge misstates the record, that misstatement is adopted by the majority, and therefore I must dissent.

¶ 2 Typical of the critical misstatements are the following:

(1) In its 1925(a) opinion, the trial court states that “[t]he mother’s testimony acknowledged that ‘father and mother tickled B.L.W. in inappropriate regions of her body.’” Trial Court Opinion, at 4. A review of the certified hearing transcript, however, reveals completely the opposite testimony from Mother, that she only tickled the child “in appropriate” places:

Q: Isn’t it true that you admit to tickling [B.L.W.], [B.L.W.’s] legs and other parts of her body in appropriate ways, what you described in, I believe, appropriate places such as her leg?

A: Her leg, that’s all.

Q: Nothing other than appropriate places?

A: No.

(N.T., 8/29/01 at p. 134).

¶ 3 (2) The majority states on page 386 of its decision that the record does not support the likelihood that appropriate therapy would enable Mother to provide appropriate parental care and that Mother’s “incapacity cannot be remedied.” This is not supported in the record, and such support is necessary because neither the trial court nor this Court is empowered to terminate parental rights under section 2511(a)(2) unless CYS shows by clear and convincing evidence that “the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.” 42 Pa.C.S. § 2511(a)(2) (emphasis added). The majority cites to one sentence in Dr. Rosen’s testimony, that he “would worry about [Mother’s] ability to protect herself and others in the home[,]” but neglects to include Dr. Rosen’s clarification, that this concern

was one of the reasons for referring to case management ... it might be difficult to remedy for the individual, but it might be able to be accommodated fairly quickly. For example, if another person was in the home or next door that she sought guidance from it doesn’t remedy her problem but it does accommodate it and it would be a way of managing the safety issue.

(N.T., 8/29/01, at pp 99-100). In fact, Dr. Rosen, who was referred by CYS, reached the opposite conclusion of that stated by the trial court and the majority. He stated:

A: I recommended that she be referred for mental retardation case management services, because those are people who can help her access other needed services ... I recommended more of a concrete kind of a service which could be done in her home which would involve modeling for her, demonstrating for her, practicing with her how to handle situations that were anticipated to be difficult in her life. And I thought that that was the best way to see whether or not she had ability to then regain custody and parent her children. I thought that, again, the case management would be a source of ongoing supervision. I think that people with mild mental retardation need to go to people for advice and particularly under new situations or stressful situations and need guidance ... Many of these folks are able to be self-sufficient, hold jobs, maintain a household, but clearly will need help in certain areas, in managing under certain circumstances in particular phases of their life.

Q: [I]s it your testimony that she could be a capable parent just with the right resources?

A: Potentially she could. Skills could be remedied] under the right circumstances.

>Je ifi

Q: I guess the bottom line is she does have some potential but it would take some serious work?

A: ... Again, her — of a hundred individuals, she would be the number one person and it’s — we would be able to tell once somebody actually tried to implement that kind of a strategy whether she could acquire the skills. (N.T., 8/29/01, at pp. 87-96).

¶ 4 (3) The majority states that Mother’s therapist, Mr. Edwards, indicated that “the therapy never progressed to a phase where parental roles and boundaries surrounding sexuality could be discussed.” Majority Opinion, at 384-85. The majority neglects to point out, however, that Mr. Edwards explained that we “ran out of time with the breakdown with her husband .... she had nothing to do with the breakdown of the sessions .... ” (N.T., 8/29/01 at 69-71) (emphasis added). It was Mother who initiated phone contact with Mr. Edwards after she was unable to attend the sessions physically, and Mr. Edwards stated that it was his belief Mother “was still looking for some direction.” Id. at 72.

¶ 5 (4) The majority statés that “Mr. Edwards decided not to enroll Mother in a parenting course to address that concern [parental roles and boundaries surrounding sexuality] because Mother failed to demonstrate during nine months of treatment that she had any real capacity to address these complex issues.” Majority Opinion, at p. 385 (citing N.T., 8/29/01, at 72). I find no support in the record for this conclusion. Mr. Edwards took responsibility for not entering Mother in the parenting course covering sexual boundary issues, but for another reason: he wanted her to progress further in the counseling sessions with him and he believed it premature at that point, and he was not given any time frame by CYS as to when the specific areas of therapy needed to be completed. (N.T., 8/29/01 at pp. 70-80).

¶ 6 (5) The majority states in footnote 2 that CYS may “give up on a parent” once the service plan goal has been changed from reunification to adoption, citing In the Interest of A.L.D. and In the Interest of M.B. However, my review indicates that the court ordered a goal of concurrent reunification to coincide with the goal of adoption. Attached to CYS’ brief is a copy of an order dated May 31, 2000 indicating that the plan was “ modified (proceed with adoption with concurrent planning); mother is to obtain counseling with special focus on her ability to parent, internalization of the issues relating to her child’s sexual victimization and her role in that victimization and, finally, how to insure child’s future safety.” On May 4, 2001, CYS filed a petition that acknowledges that after a hearing on April 24, 2001, [this date may be an error in CYS’ petition — I think it was probably April 24, 2000, which resulted in the May 31, 2000 order]”the court ordered goal was concurrent planning of reunification to coincide with the recommended goal of adoption.” The May 31, 2000 order, which is not included in the certified record on appeal, is not, in my view, a clear change of goal plan from which Mother could appeal. Also, the majority’s attempt to find waiver of the claim regarding CYS’ efforts is not convincing; CYS’ efforts are inextricably tied to Mother’s ability to meet the goal of reunification and therefore are crucial to a determination of whether CYS has met its burden to justify termination under section 2511(a)(2). Section 2511(a)(2) states:

(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 the cause of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

¶ 7 I agree that if a parent does everything that he or she is told to do but still cannot carry out the duties of being a parent, termination is appropriate and should take place. In re J.T., 817 A.2d 505 (Pa.Super.2003) (Opinion by Klein, J.) (where record supported conclusion that mother was unable to care for children without continued intensive CYS involvement, termination was proper). Termination under Pennsylvania law can have a harsh result in some cases, and this is one of them. The foster parents have allowed the child to visit with Mother regularly, and Mother has seen the child on a regular basis. However, after adoption, there is no requirement that the foster parents continue to allow the mother to visit. The adoptive parents will have the right to totally cut Mother off from her daughter, whom she has been visiting faithfully whenever given the opportunity. Likewise, the adopting parents have the legal right to cut off all visits with the child’s older brother once an adoption takes place.

¶ 8 I do agree with the majority that ultimately it may be concluded that Mother will never be able to adequately care for B.L.W. But ultimately is not now. At this point, we cannot say that mother would not be able to adequately parent child if she had the appropriate support from the appropriate agency. In this case, I believe CYS essentially abandoned Mother after the psychological report obtained by CYS indicated that Mother needed a different kind of support than that originally anticipated by CYS. While the initially suggested program would not provide the kind of support that Mother would need so that she could potentially be reunited with her daughter, CYS ignored the recommendations for a different modality of treatment. CYS should not be permitted to ignore the psychologist’s recommendations for the kind of support and treatment needed by Mother, then complain that she has not progressed enough, and then totally cut off a Mother from her child.

¶ 9 CYS set a goal of reunification. Mother followed through with recommended therapy the best that she could, and ultimately, Dr. Rosen, a psychologist, concluded that she needed practical, in-home counseling rather than traditional therapy in order to improve her parenting abilities. CYS was not able to provide this kind of counseling. Although such counseling is available, most likely through mental health and retardation services, CYS did nothing to assist Mother in making referrals so that she could obtain the counseling she needed. Instead, CYS resorted to termination proceedings. In light of Mother’s compromised circumstances, and without CYS support or direction, the goal was unattainable. Simply stated, the record does not support the conclusion that Mother cannot or will not remedy the parenting problems. In fact, the record shows the opposite; Mother has made great efforts to comply with CYS’ checklist, and it is CYS that has illustrated an unwillingness or inability to provide the needed services to support Mother in reaching the goal of reunification.

¶ 10 It is true that Mother has limited intelligence. However, we have held that this does not mean that she should be deprived of the opportunity to parent her child. See In re P.A.B., 391 Pa.Super. 79, 570 A.2d 522 (1990); see also Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986). Mother should have the chance to pursue appropriate counseling to see if she is able to develop enough parenting skills to have B.L.W. return to live with her. If, after Mother gets the support that the experts say she needs it is determined that she still cannot cope with raising her daughter, that is the time for termination. Not now.

¶ 11 This is not an unwilling or uncooperative mother. We do not yet know whether this is or is not a mother who is unable, despite best efforts, to care for her child. Mother has a relationship with B.L.W. and faithfully visits her. Clearly CYS felt confident enough in Mother’s parenting ability in June of 2000, when CYS returned J.C.W. to Mother’s care and custody. At the termination hearing, J.C.W. testified that Mother is a good provider for him and that he is very happy at home. At that hearing J.C.W. also recanted his prior story that he witnessed Mother and Father engaging in sexual behavior with another couple. (N.T., 8/29/01, at 168-69.) Mother and J.C.W. moved to Northumber-land County to be near family and a support network. J.C.W. is now almost 19 years old. J.C.W. stated that he has a good relationship with his Mother, that she takes good care of his basic needs — cooking for him, doing his laundry, and buying him things. He also testified that when he and B.L.W. lived together in the family residence, he often looked out for her and tried to protect her from any harm. He seems to be the best evidence of Mother’s present parenting abilities in a home setting. The majority acknowledges that Mother’s home “has been deemed neat, well-kept, and without physical safety issues.” Majority Opinion, at 383. (See Exhibit 10, Pictures).

¶ 12 Mother made great improvements after her abusive husband left the home. At the termination hearing it became evident that the conditions in Mother’s home are now notably different than those present when B.L.W. was originally removed from Mother’s care. These changes are largely due to the fact that Father, who allegedly had been sexually abusing B.L.W. and conducting sexual activity with his girlfriend (not Mother) ‘in front of B.L.W., is now separated from Mother and living with his girlfriend. Fortunately, that source of CYS’ concerns no longer exits. •

¶ 13 In a case such as this, CYS has to prove by clear and convincing evidence that, after appropriate support, Mother will not be able to provide for B.L.W.’s well-being in an environment that will be conducive to her development, emotionally, physically, psychologically, and intellectually. Since she did not get appropriate support, the trial court and majority are only guessing that Mother will not be able to do this. The conclusion flies in the face of the record, which shows Mother has made great strides already and has cooperated as much as possible with all programs CYS set forth for her. It is not Mother’s fault that the programs were not suited to her needs. That is the fault of CYS.

¶ 14 Moreover, there has been no finding of what effect termination would have on B.L.W. No one from the agency had determined, as of the date of the termination hearing, what, if any, effect termination would have on B.L.W. See In re Adoption of A.M.R., 559 Pa. 422, 741 A.2d 666 (1999); In re Adoption of A.C.H., 2002 PA Super. 218, 803 A.2d 224 (Pa.Super.) (filed July 2, 2002). This very issue was considered dispositive in a case considered by a panel of this Court, decided on December 9, 2003. See In re Involuntary Termination of C.W.S.M. and K.A.L.M.S., 2003 PA Super. 477, 839 A.2d 398 (2003).

¶ 15 I also find it telling in this case that B.L.W.’s guardian ad litem, who is also an attorney, has not filed a separate brief, but rather has adopted Mother’s appellate brief to represent the child’s position on appeal. I interpret B.L.W.’s guardian’s agreement with Mother’s position on appeal as a strong indication that she believes it is in B.L.W.’s best interest not to terminate Mother’s parental rights.

¶ 16 The record shows that CYS did not make a reasonable effort to provide appropriate services for Mother in order to permit her to reunify with B.L.W. Therefore, I would find that CYS has not yet met its heavy burden to justify termination without giving the Mother additional time to prove herself and help Mother obtain the recommended support. Because I find that the record in this case does not support termination under 2511(a)(2), I would reverse.