In Re Baby Boy S.

615 A.2d 1355, 420 Pa. Super. 37, 1992 Pa. Super. LEXIS 3818

• Court: Superior Court of Pennsylvania
• Decided: November 9, 1992
• Docket: 1960
• Status: Published

Opinions

MONTEMURO, Judge.

This is an appeal from an order terminating appellant’s parental rights to her now three year old son.

The background of this case is of a not unfamiliar type. In May of 1989, appellant, then eighteen years old, gave birth to a male child out of wedlock. The relationship which produced the child had been superficial and of short duration, and appellant’s family, which is dysfunctional at best, could offer her no assistance. Therefore, after leaving the hospital, appellant, at the urging of a social worker, took up residence with Mrs. Ann Labish, who had opened her home as a shelter for abused and neglected children, and teenage unwed mothers. Appellant was aware of the Labish’s facility, named New Arbor, through her sister’s previous residence there.

Shortly after arriving at the home, appellant approached Mrs. Labish concerning the possible adoption of her child. After several conversations with the Labishes concerning her decision to relinquish the child for adoption, Pamela and Eugene Klein, who had earlier inquired about adoption through New Arbor, were selected to receive the baby. At appellant’s request a meeting with the Kleins was arranged at their house. The meeting, which took place on May 18, 1989, lasted about an hour, during which time appellant was shown the house, and became acquainted with the Kleins. The next day, after having signed an entrustment agreement prepared by the Kleins’ attorney, appellant left New Arbor.

On June 6,1989, the Kleins filed, inter alia, a report of their intention to adopt appellant’s child. In early July, appellant revoked the entrustment agreement, and filed a petition to show cause why the child should not be returned. Hearings were held, and the court ordered psychological evaluations of appellant and her fiancee, and a home study. At the same time appellant’s request that Children and Youth Services be involved, or that the child be returned to her were denied.

On March 15, 1990, appellant left the jurisdiction for Raleigh, North Carolina, without informing her family, the court, or counsel, who located her in late June. The Kleins meanwhile filed a Complaint for Custody, and petitioned for termination of appellant’s parental rights. Hearings were held on these requests in August of 1990. In October of 1991, the trial court entered its decree terminating appellant’s parental rights. This appeal followed.

Appellant has presented us with five issues, which we will address seriatim.

First, it is claimed that the Kleins lacked standing to proceed with a termination action. Appellant argues that because no blood relationship exists between the Kleins and the child, because they were never granted custody by the court, and because appellant revoked the entrustment agreement, the Kleins lacked the legal capacity to seek termination of her parental rights.

Section 2512(a)(3) of the 1980 Adoption Act, 23 Pa.C.S.A. § 2101 et seq., governs the matter of who is entitled to pursue the involuntary termination of another’s parental rights.

(a) Who may file. — a petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:

(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt).

Despite appellant’s insistence to the contrary, the Kleins stood in loco parentis to the child, having had that status conferred upon them by virtue of the entrustment agreement signed by appellant, and they had filed a report of their intention to adopt. Appellant’s revocation of the entrustment agreement, despite the fact that it could by statute occur at any time prior to entry of a final decree of adoption, Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 (1981), nevertheless operated as an automatic eraser of standing no more than does any other revocation of consent to placement of the child out of the natural parent’s control. For example, a temporary placement of a child in foster care is not automatically ended by the natural parent’s attempt to retrieve the child, nor does the attempt deprive the agency to which the child was surrendered of the standing to contest the retrieval.

Appellant would have us believe that upon revocation of consent by the natural mother, the adoptive parents are faced with no option other than returning the child, and that with loss of physical custody standing is also compromised.¹ However, this court has concluded, albeit in a different context, that even removal of a child from the home of prospective adoptive parents does not preclude their protesting such removal, or from prosecuting a previously filed petition to adopt. Adoption of Baby Boy McKnight, 338 Pa.Super. 603, 607 n. 1, 488 A.2d 56, 58 n. 1 (1985). Standing to seek termination of parental rights has also been found in prospective adoptive parents who received custody from an agency, Mitch v. Children and Youth Social Service Agency, 383 Pa.Super. 42, 556 A.2d 419 (1989) alloc, dn., 524 Pa. 620, 571 A.2d 383, and where the custodians of the child received him from relatives of the mother, with no agency acting as intermediary. See, In re Adoption of J.M.E., 416 Pa.Super. 110, 610 A.2d 995 (1992). We have also ruled, in a case having certain features in common with this one, that where the natural mother has revoked her relinquishment of parental rights shortly after the child has been received by the adoptive parents, they can return the child, or, “if they ha[ve] any basis for doing so, [can] file[ ] a petition under the Adoption Act asking the court to terminate [the mother’s] parental rights involuntarily.” Commonwealth ex rel Grimes v. Yack, supra. The latter procedure was followed by appellants. See also, In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984) (following a petition of habeas corpus filed by the natural mother for return of the child, the adoptive parents instituted a petition for involuntary termination of mother’s parental rights). Appellees are, therefore, properly situated to bring the instant action, and the merits may accordingly be addressed.

Appellant’s next claim is that the trial court erred in permitting the Kleins to retain the child, and in denying her request that during the proceedings the child be returned to her. The argument, that appellant was entitled to return of the child, is grounded in the assumption already disposed of, that the Kleins lacked standing to seek termination of appellant’s parental rights. As we have already noted, the premise is invalid. So too is its corollary. Appellant provides us with no authority for the proposition that the trial court, when faced with a decision such as this case presented, is limited to those responses championed by one of the parties.

It is next argued that the court’s decision to terminate appellant’s parental rights under 23 Pa.C.S.A. § 2511(a)(2) lacked sufficient evidentiary support. Where a petition for termination of parental rights has been lodged, the proponent must produce clear and convincing evidence to support it.² Id. Our scope of review is then limited to determining whether the ensuing decree is reinforced by competent proof. Id. Therefore, the trial judge’s actions in deciding a case, its findings of fact, its resolution of evidentiary conflicts, are to be accepted unless they are unsupported by the record, or reveal an abuse of discretion or an error of law. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984).

In assessing the propriety of the result here, we find that our supreme court’s decision in the case of In re Michael J.C., supra provides an instructive analog. There, the 17 year old natural mother executed a Consent to Adopt, and after a private adoption was arranged, revoked her consent, filing a petition for habeas corpus seeking return of the child, and triggering an inquiry into the statutory grounds for involuntary termination. The trial court found, despite appellant’s limited contact with the child, and based on a psychological assessment of appellant, that termination was statutorily warranted. This court reversed, but our supreme court affirmed the decision of the trial judge, holding that the expert testimony concerning appellant’s parenting ability was not merely speculative. It also found that the statute does not require a showing that “a putative parent have an opportunity to inflict substantial physical or mental harm upon a child before the state can intervene.” Id. 506 Pa. at 525, 486 A.2d at 375; see also, In re William L., 477 Pa. 322, 383 A.2d 1228 (1978). While it is true that the appellant in Michael J.C. demonstrated some undesirable personality traits which appellant herein does not, the case analysis applied to both must be the same.

Specifically, the trial court found that the grounds for the involuntary termination of appellant’s parental rights are set forth in 23 Pa.C.S.A. § 2511(a)(2) and (b):

(a) (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 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.

In applying the provisions of (a)(2) to the case before it, the trial court properly noted that only after sufficient evidence is produced to fulfill the statutory requirements for termination is the best interests of the child issue explored. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986).

The trial court found, based on the psychological evaluations performed at the court’s request by Dr. Donna Zaffey, that appellant’s borderline intellectual function, her emotional immaturity and instability, leading to suicide threats in the presence of her sister and Mrs. Labish, plus her dependency and limited conceptual abilities were irremediable. Dr. Zaffey stated that appellant’s deficiencies would prevent her from “maintaining stable employment, stable education functioning, or establishing realistic goals for herself,” (N.T. 8.9.90 at 18) and that she was incapable of calculating the consequences of her own actions. (Id. at 134). Appellant offered nothing but her own self appraisal in rebuttal. Compare, In re Adoption of B.J.R., 397 Pa.Super. 11, 579 A.2d 906 (1990). She also testified to her intention to seek employment in order to contribute to the child’s support. As potential caretaker for the child, appellant testified about people whom she knew only on a first name basis, and would trust with the care of her child because, as the trial court noted, they “seemed nice.” (T.C.O. at 7).

The psychologist noted her opinion that appellant did not possess:

the intellectual, emotional, social maturity for the effective parenting skills necessary to adequately care for the child and provide the child with a stable home environment.”

(N.T. 8.9.90 at 31).

Moreover, the expert felt that appellant would be unable to acquire the necessary skills in the foreseeable future. (Id. at 33, 121), and noted that any child subject to appellant’s care could be expected to demonstrate the same limitations as appellant. (N.T. at 104) Dr. Zaffey explained that although appellant could benefit from training, she would never function at a higher cognitive level, and that even with training she would require constant supervision due to her inability to generalize or transfer skills from one situation to another. (Id. 94). These deficits and the low potential for improvement were attributed to a paucity of resources stemming from arrested development. (Id. at 107). Further, according to the expert, appellant was not prepared to seek such training as might prove beneficial. When questioned as to where she would acquire information on raising her child, appellant stated that she would read books. Testing had revealed appellant’s reading level at fourth grade. (Id. at 102) (Id. at 98-99) There was also testimony to the effect that nothing could compensate for appellant’s intellectual deficit. (Id. at 95)

The trial court also noted that appellant’s husband, Bryan Lashley, appeared little better equipped to deal with the child than appellant. Although not the father of this child,³ Mr. Lashley declared himself prepared to regard it as his own. He had, in fact, fathered a child some months older than appellant’s, and at the time of hearing had had little contact with it, providing no financial support. Mr. Lashley, too, is of limited intellectual ability, and his employment history is uncertain at best. The psychological evaluation of Mr. Lashley, although hampered by his failure to appear for two out of three scheduled sessions, did demonstrate emotional insecurity, immaturity and dependency much like appellant’s, and he himself admitted prior problems with drugs and alcohol.

All of this information led the trial court to conclude that the statutory requirements for termination of parental rights had been met. Here, the trial court’s conclusions comport with the holding in Michael J.C., supra, compare, In re Adoption of B.J.R., supra (parental rights of mother of special needs child terminated on the basis of mother’s inability to remediate circumstances leading to child’s removal).

Finally, there is the matter of appellant’s departure from Pennsylvania. Appellant left Pittsburgh for Raleigh, North Carolina on March 15, 1990, without informing her family, or counsel, who was unable to locate her until June 20, 1990. She also notified no one else involved with her child of her change in residence, although she knew that there would be further court proceedings in the case. Moreover, since the child’s birth, appellant has made one attempt to see him. On this occasion, she called the Kleins and asked for access to the baby. She was not denied access, but was told by Mrs. Klein that she wished to discuss the matter with her husband, and would telephone appellant the next day. The number given by appellant to Mrs. Klein had been disconnected, a fact corroborated by Mr. Berman, the probation officer conducting the court ordered home study, who met with the same lack of success in attempting to reach her by telephone. Appellant made no other attempt to see the child, sent him no gifts or cards, and when he was past infancy, made no attempt to telephone him. She failed to petition the court for the entry of any schedule on which an acquaintance with her son could be established, despite the fact that no barrier erected by the court forbade her attempting such visits, and she made no effort to resist the trial court’s dilatory handling of this case. While the trial court is much to blame for the timing of its actions here, the fact that psychological evaluations and home studies were ordered argues there that there was, at least initially, some hope of appellant’s obtaining custody of the child. Appellant’s own lack of interest in the actuality, as opposed to the idea of the baby, prevented her taking action. Normally, such a lack of involvement for only six months would be sufficient to justify termination. Here the period was over three years.

The cases involving termination of parental rights have always emphasized the responsibility of the parent to exhibit reasonable firmness in attempting to overcome such obstacles as may be encountered in maintaining the status of parent in order to be excused from performing parental duties. See In re Baby Boy H., 401 Pa.Super. 580, 585 A.2d 1054 (1991). Here some of the obstacles were erected, albeit partially, by the court system itself. Appellant made no effort to combat these. She did, instead, leave the jurisdiction, without word to counsel, whose job was to protect the parental rights she was ostensibly so determined to preserve. This departure, in conjunction with her inert reaction to the trial court’s delay, bespeak not a parent interested in her child’s future, but a child interested in her own immediate gratification.

The trial court in this case determined that the statutory criteria for termination of parental rights were met, and thereafter that the best interests of the child lay with the adoptive parents. Any other result would have placed in real jeopardy the life of Baby Boy S.. Even assuming that the transfer of a child, now almost three and one half years old, to a home with people he has never met, to a state far removed from this one, and into an environment where the dubious attentions of two parents with mental ages of twelve and eleven respectively must be shared with another child is not a priori immediately harmful to the child’s well being, we need not, according to the Supreme Court in Michael J.C. permit appellant the opportunity to cause harm thereafter. We find no error of law or abuse of discretion in the trial court’s ruling.

Appellant next argues that the trial court committed reversible error in several of its evidentiary rulings. As grounds for these assertions, appellant posits the need for “two discrete stages” in the resolution of the case (Appellant’s Brief at 42), implying the necessity for two separate hearings: one to determine whether statutory grounds for termination exist, and a second to examine the best interests of the child. Consistent with this schema, she advances certain evidentiary rulings as errors in some measure because they were introduced at the wrong stage of proceedings.

We know of no rule in this Commonwealth⁴ requiring the bifurcation of termination hearings, or the separation of evidence into the equivalent of liability and damages assessments. While appellant is correct in stating that grounds for termination and best interests of the child are separate considerations, there is no authority for evidentiary or other division of relevant information. The necessary distinctions are drawn by the trial court after hearing all the relevant evidence— there is no hiatus between two segments of the proceedings, an arrangement which would only further delay cases in need of the most expeditious handling.

Specifically, she assigns error to the court’s having permitted testimony concerning appellant’s family background, by having allowed Ann Labish to opine on appellant’s ability as a parent, and by having excluded evidence concerning appellant’s care of her child by Mr. Lashley, and concerning the home study done in Pittsburgh prior to appellant’s departure. Appellant also complains that the trial court erroneously permitted evidence from non-experts on behalf of the Kleins, and as well, allowed Dr. Zaffey to testify by means of hearsay.

We must analyze appellant’s claims on the basis of the proposition that the admission or exclusion of evidence is a matter for the trial court to determine, whose decisions in these matters will not be reversed absent an abuse of discretion, and actual prejudice. Cohen v. Albert Einstein Medical Center, Northern Division, 405 Pa.Super. 392, 592 A.2d 720 (1991). As to appellant’s first contention, that the family background information educed during cross examination of appellant herself, and from Mrs. Labish was irrelevant, we disagree.

We will address each of appellant’s claims briefly. The first evidence objected to was that concerning the mental illness of appellant’s mother, the history of appellant’s sister’s pregnancies, and Mrs. Labish’s testimony concerning the family’s involvement with Children and Youth Services. All of this information was germane to the stability of appellant’s family, and her lack of a social support system to assist her with the baby. Ultimately, this evidence demonstrated why appellant chose to take her child to residence at New Arbor rather than returning to her parents’ home. Her sister’s previous stay at New Arbor, and appellant’s visits there, explain appellant’s initial familiarity with the shelter.⁵ It was this sister whom appellant described as a source of advice, and whose residence in Raleigh, North Carolina prompted appellant’s removal there. Sometime after appellant’s arrival, however, she and the sister became estranged. Thus, with the exception of Mr. Lashley’s presence, appellant recreated in North Carolina the same paucity of social support which led her to New Arbor.

Appellant next claims that Mrs. Labish was allowed to testify as an expert on appellant’s capability as a parent, although the witness lacked credentials which would allow her to so testify. The testimony given was based on personal observation of appellant’s ability to handle her child. Despite appellant’s claim that Mrs. Labish speculated on appellant’s future ability to care for the needs of her child, the trial court sustained appellant’s objection to that portion of her testimony. Appellant’s further statement that the trial court found Mrs. Labish’s assessment significant is not mirrored by the record.

Appellant next argues that witnesses produced on behalf of the Kleins were permitted to render opinion evidence as to the prospective adoptive parents’ background, capabilities, and effectiveness as parents. The main objection is not so much to their lack of expertise, but to their appearance at the “wrong” stage of the proceedings. For reasons already stated, we find no error in the witnesses’ order of appearance. Further, the evidence proffered through these witnesses were also matters of empirical experience, not the subject of expert knowledge.

Next appellant argues that her examination of witnesses was improperly limited on certain subjects. Specifically, she claims the trial court committed error in refusing to allow her to cross examine Dr. Zaffey concerning appellant’s ability to care for the child born of appellant’s marriage to Mr. Lashley. Our supreme court has found that evidence of a mother’s ability to care for a second child is irrelevant where her capability with regard to the first baby is in question. See, Matter of Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984).

Appellant next complains that the trial court erroneously restricted her cross examination of Dr. Zaffey as to the home study conducted by Probation Officer Berman, and, in addition, refused to allow certain questions to be put to Mr. Berman himself. As appellant no longer resides in the home scrutinized by Mr. Berman, the results of that home study were, as the trial court found, not germane to her current situation. The trial court therefore properly limited questions concerning a document made irrelevant by appellant’s relocation.

Finally, appellant argues that the procedures governing private adoption cases are unconstitutionally violative of the equal protection and due process clauses of both the Pennsylvania and United States Constitutions. The trial court noted that this issue was not properly pleaded, and timely notice not given the Attorney General as is required by Pa.R.C.P. 235(a). We see no reason to disagree.

Order affirmed.

ROWLEY, P.J., joins in this decision. HESTER, J., files a dissenting opinion.

1 . No argument has been made equating the Kleins with foster parents, whose lack of standing to sue has been determined in In re Crystal D.R., 331 Pa.Super 501, 480 A.2d 1146 (1984).

2 . Appellant argues that because she suffers from a mental handicap, a more stringent standard of proof is required here, and urges that the evidence must support termination beyond a reasonable doubt. However, our supreme court in In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986), concluded that application of the clear and convincing standard was appropriate even where mentally or physically impaired parents are involved. See also, In re Adoption of B.J.R., 397 Pa.Super. 11, 579 A.2d 906 (1990).

3 . Appellant and Mr. Lashley have a child together, born May 26, 1990.

4 . Appellant bases her argument on New York law, which does divide what is termed permanent neglect proceedings into fact-finding and dispositional hearings. See, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), citing Fam.Ct.Act §§ 622, 623. However, the Pennsylvania statute contains no parallel requirements. Moreover, Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), on which appellant relies as authority for the bi-stage decision making process, only holds that in any given proceeding, the child's best interests cannot be considered until it is determined that the statutory requirements for termination are met. No second hearing is required.

5 . It should be noted that when the social worker who interviewed appellant in the hospital, and who advised her going to New Arbor testified to essentially the same facts concerning appellant's family, appellant did not renew her objection.