In re B.L.W.

843 A.2d 380, 2004 Pa. Super. 30, 2004 Pa. Super. LEXIS 105

• Court: Superior Court of Pennsylvania
• Decided: February 12, 2004
• Status: Published

Opinions

OPINION BY

BOWES, J.:

¶ 1 N.W. (“Mother”) appeals from the order of the Court of Common Pleas of Dauphin County involuntarily terminating her parental rights to her daughter, B.L.W. ■ We have reviewed the notes of testimony and considered Mother’s arguments and the applicable law. We affirm.

¶ 2 We summarize the factual and procedural history. Dauphin County Social Services for Children and Youth (“Dauphin CYS”) first became involved with B.L.W. in May 1998, when it received allegations that Mother and J.C.W., Sr. (“Father”), had engaged in inappropriate sexual conduct with B.L.W., born September 23, 1992, and J.C.W., Jr., born March 26, 1984. Dauphin CYS sent a caseworker to conduct an unscheduled home visit on May 18, 1998. J.C.W., Jr. was on an overnight trip with his school. However, the caseworker spoke to B.L.W. who reported that Mother and Father had fondled her vagina, B.L.W. had fondled Father’s penis, and her parents engaged in sexual activity in the children’s presence. N.T., 8/29/01, at 9.

¶3 The investigation also revealed a storage box belonging to Father which contained items that appeared to be child pornography. Juvenile Court Summary, 6/9/98, at 1; N.T., 8/29/01, at 13. In addition, Dauphin CYS found a sound-activated tape recorder in the home’s only bathroom and quarter-sized holes in the bathroom wall that corresponded with holes in the parents’ bedroom wall. N.T., 8/29/01, at 9, 129-30. Dauphin CYS later determined that while family members used the bathroom, Father would record their activities and later would masturbate while listening to the recordings. On some occasions, he would directly observe family members in the bathroom by viewing them through the holes in the wall. Id. at 9-10, 12. As a result of the allegations of abuse and the conditions that caseworkers observed in the home, Dauphin CYS immediately placed B.L.W. in protective custody. N.T., 8/29/01, at 10.

¶ 4 The following day, May 19, 1998, the caseworker located and interviewed J.C.W., Jr., who told the Dauphin CYS caseworker that Mother and Father had engaged in sexual activity with another couple in front of J.C.W., Jr. and B.L.W. Juvenile Court Summary, 6/9/98, at 2; N.T., 8/29/01, at 13. Dauphin CYS immediately placed J.C.W., Jr. into shelter care. Mother informed Dauphin CYS that she and Father maintained a long-standing relationship with another couple with whom she and Father had an open sexual relationship, that Father engaged in sexual activity with the other woman in front of both Mother and the children, and that the other couple lived with Mother and her family at the time of the referral. N.T., 8/29/01, at 131. Mother knew that the male in the other couple had been convicted of possession of child pornography in 1987. N.T., 8/29/01, at 132. Mother also knew of the holes in the bathroom wall and the sexual activity that took place in front of the children, but she did not intervene to curtail the behavior. However, Mother denied fondling B.L.W. or witnessing anyone else fondle the child. She speculated that any inappropriate sexual touching involving B.L.W. likely would have been perpetrated by the other couple or Father. Juvenile Court Summary, 6/9/98, at 2-3; N.T., 8/29/01, at 13.

¶ 5 A detention hearing was held on May 21, 1998, and an adjudication hearing was held on June 26, 1998. After the adjudication hearing, both J.C.W., Jr. and B.L.W. were declared dependent and were placed in the legal custody of Dauphin CYS on June 26, 1998. N.T., 8/29/01, at 11. A family reunification plan was put into place requiring Parents to: (1) undergo psychological evaluations and abide by any recommendations; (2) participate in therapy together regarding the roles and boundaries surrounding sexuality; (3) implement changes to repair the bathroom walls immediately; (4) clean and organize the living areas of the house and B.L.W.’s bedroom to allow for private areas; and (5) participate in STEP parenting classes. Id. Over the ensuing six months, Father failed to comply with the plan and left the home to live with his girlfriend. Id. at 13. Parents have been separated since August 1999.

¶ 6 In July 1998, Dauphin CYS made an “indicated” finding of sexual abuse pursuant to the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq.; that finding was not appealed by either party. N.T., 8/29/01, at 10. Mother’s son, J.C.W., Jr., was returned to her care and custody in June 2000. He was sixteen years old at the time and is not involved in this appeal. B.L.W. has remained in Dauphin CYS custody since her 1998 placement and had resided in the same foster home for nearly four years by the August, 2001 hearing. Id. at 49. On May 31, 2000, the orphans’ court changed the permanency goal for B.L.W. from reunification to adoption.

¶ 7 Mother moved to Mt. Carmel, Pennsylvania, in 2000 with J.C.W., Jr. The residence there has been deemed neat, well-kept, and without physical safety issues. While in Mt. Carmel, Northumber-land County Children and Youth Agency (“Northumberland CYS”) assigned a caseworker to Mother based upon allegations that Mother was hitting J.C.W., Jr. N.T., 8/29/01, at 146. In addition, Northumber-land CYS provided parenting classes and anger control counseling from November 2000 until April 2001. In February, March, and April 2001, Mother began counseling for sexual abuse but failed to complete the program.

¶ 8 Dauphin CYS filed a petition to terminate Mother’s parental rights to B.L.W. on January 24, 2001, and a termination hearing was held on August 29, 2001. The Honorable Todd A Hoover of Dauphin County Court of Common Pleas involuntarily terminated both parents’ parental rights. Father’s rights were terminated without contest, and he is not a party to the present appeal. Mother filed a timely notice of appeal on November 15, 2001.

¶ 9 Our scope and standard of review are settled.

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. See In re K.C.W., 456 Pa.Super. 1, 689 A.2d 294, 298 (1997). Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. Id. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge’s decision the same deference that we would give to a jury verdict. See In re Child M., 452 Pa.Super. 230, 681 A.2d 793, 800 (1996). 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. See In re Matsock, 416 Pa.Super. 520, 611 A.2d 737, 742 (1992).

In re C.S., 761 A.2d 1197, 1199 (Pa.Super.2000). It is clear that in a termination proceeding, the focus is on the conduct of the parents. In the Interest of A.L.D., 797 A.2d 326 (Pa.Super.2002); In the Interest of M.B., 449 Pa.Super. 507, 674 A.2d 702 (1996).

¶ 10 The court herein terminated parental rights based upon 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8). Those sections provide as follows:

§ 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 fifing 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.

(5)The child has been removed from the care, of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

¶ 11 Mother contends¹ the trial court erred in determining that Dauphin CYS met its burden of proof under 23 Pa.C.S. § 2511(a) (1), (2), (5), and (8) and erred in “making other considerations under 23 Pa.C.S. § 2511(b).” Mother’s brief at 4. While the trial court found that Dauphin CYS met its burden of proof under each section quoted above, we need only agree with its decision as to any one subsection in order to affirm the termination of parental rights. In re J.E., 745 A.2d 1250 (Pa.Super.2000); see also In re J.I.R., 808 A.2d 934, 940 n. 6 (Pa.Super.2002). For the following reasons, we conclude that the trial court correctly concluded that Appellee met its burden of proof under 23 Pa.C.S. § 2511(a)(2).

¶ 12 Mother began attending counseling sessions with Pennsylvania Counseling Services at the Renaissance Counseling Center in Lebanon, Pennsylvania, in September 1998, with staff therapist Mr. Jan Edwards. Mr. Edwards testified the sessions terminated in June 1999, when Father ceased to provide Mother with transportation to the sessions. Id. at 71. He also testified that Mother was cooperative with counseling but that the therapy never progressed to a phase where parental roles and boundaries surrounding sexuality could be discussed. Id. at 68-70, 77, 79. After the therapy terminated in June 1999, Mr. Edwards decided not to enroll Mother in a parenting course to address that concern because Mother failed to demonstrate during nine months of treatment that she had any real capacity to address these complex issues. Id. at 72.

¶ 13 Mother returned to counseling at the beginning of May 2000, this time with Anthracite Behavioral Health Services in Mt. Carmel, Pennsylvania. Id. at 174. These sessions ended in mid-July. Id. at 25-26. Mother admitted that she did not address sexual roles and boundaries or basic parenting skills during this short period. Id. at 119-20.

¶ 14 The implications of Mother’s limited success with counseling were verified by Dr. Howard Rosen, a psychologist who evaluated Mother on June 16, 1999. He measured Mother’s full-scale IQ at sixty-two, which placed her in the mild range of mental retardation. Furthermore, Dr. Ro-sen found Mother to have a verbal IQ of only fifty-eight, with her lowest subscale scores coming from the vocabulary test and the comprehension subtest. Id. at 83-84. According to Dr. Rosen, the implications of this score are that Mother had minimal capacity to learn and benefit from counseling, therapy, or parenting classes. Based upon this fact, Dr. Rosen recommended that Dauphin CYS refer Mother to mental retardation services, which could provide her with alternative in-home services to improve her parenting. Id. at 87-88.

¶ 15 The trial court relied upon the following conclusions by Dr. Rosen in determining that grounds for termination under 23 Pa.C.S. § 2511(a)(2) have been met:

Dr. Rosen testified as to his concern that the mother is very vulnerable to the influence and suggestibility of others. He testified that the mother’s description of her childhood and her sexual encounters in her childhood were consistent and verified the results of what has happened to her in her later life. (N.T. 86). Those matters related specifically to Dr. Rosen’s concerns about her ability to protect the children or expose the children to things to which they should not be exposed. (N.T. 85, 1.19-22). Furthermore, Dr. Rosen testified that N.W. has very minimal abilities in social judgment which causes her to be vulnerable to the influence and suggestibility of others. (N.T. 85, 1.22-25-86, 1.1). He further opined that N.W.’s intellect, judgment and vulnerability are not going to change. (N.T. 86). Dr. Rosen diagnosed N.W.’s intellectual ability in the mild range of mental retardation and that her intellectual abilities will be a constant factor not likely to increase. (N.T. 86,1.6-9).

Dr. Rosen concluded by opining that N.W. needs considerable help in managing her (own) daily affairs, and particularly in managing emotionally charged or novel situations. (N.T. 87). He further recommended she be referred for mental retardation case management services, because those people can help N.W. access other needed services, and serve as a constant in her life, providing advice, counseling, and help in situations when she is under duress. N.W. also has a representative payee to assist her with her SSI payments. (N.T. 88, 1.11-13). In conclusion, Dr. Rosen opined that based upon his evaluation of N.W.’s level of function and I.Q., personality and mental health illness problems, her diagnosis and the child’s needs in order to be returned safely based upon her sex and age, he would have concerns about N.W.’s ability to protect herself and others in the home. (N.T. 98, 1.12-24).

Trial Court Opinion, 4/12/02, at 5-6.

¶ 16 Mother asserts that her psychological assessment revealed that she was not a good candidate for individual therapy due to her limited verbal reasoning skills and that Dr. Rosen instead recommended that she be afforded in-home support. However, the record does not demonstrate any likelihood that such therapy would enable Mother to overcome her limitations and to provide the essential parental care necessary to protect her daughter from possible future sexual abuse. Ms. Farah Ryan, the Northumberland CYS caseworker who had been involved with the family for more than a year, testified that in her opinion, B.L.W. was at high risk for potential future sexual abuse due to her age and inability to protect herself. Moreover, Dr. Rosen testified that “given [Mother’s] history and her limited abilities, I would worry about her ability to protect herself and others in the home.” N.T., 8/29/01, at 99.

¶ 17 The dissent contends that the record does not support our conclusion that Mother’s incapacity cannot be remedied. The reason the children were removed from the home rested upon-Mother’s inability to protect them and her willingness to expose them to conduct from which they should be shielded. Dr. Rosen opined that Mother has “very minimal abilities in social judgment.” Id. at 85. Moreover, he described Mother as being “very vulnerable to the influence and suggestibility of others.” Id. at 85-86. Significantly, in terms of her ability, or more appropriately, disability, Dr. Rosen stated, “I don’t think her situation is going to change.” Id. at 86.

¶ 18 Dr. Rosen explained that Mother did not possess the mental acuity to understand and anticipate acceptable social behavior. Id. at 90. Furthermore, he described her as being unable to alter her behavior through verbal instruction and interaction; the only way to attempt to change Mother’s behavior is by teaching her acceptable behavior through “role playing, rehearsing, practicing and giving her feedback on how she performs.” Id. at 90. However, Dr. Rosen acknowledged that the problem then arises “when novel situations come up, the generalization of the skills given her low performances^] is problematic.” Id. at 91.

¶ 19 This testimony by Dr. Rosen is crucial and cannot be ignored. A parent requires the ability to exercise judgments when novel situations arise, in order to ensure the safety of children. Every possible scenario in the realm of human behavior, especially depraved sordid behavior, cannot antieipatorily be' taught. Mother’s actions and inaction herein are perfect examples. No “appropriate support,” dissent at 391, could have taught Mother the proper judgment necessary for the protection of B.L.W. when Father drilled holes in the wall for the purpose of satisfying bizarre sexual proclivities. No “appropriate support” antieipatorily could have taught Mother the proper judgment required to choose not to engage in sexual intercourse in front of her children. Dr. Rosen made it clear that Mother’s disability is very difficult to remediate when novel situations arise. Id. at 91. The dissent intimates that after five years, Mother still could be referred for “appropriate support,” when Dr. Rosen’s testimony already has established such support cannot address Mother’s mental disability when novel situations arise. The record clearly supports the conclusion that Mother simply does not have the capacity to protect B.L.W.

¶ 20 One only has to read Mother’s testimony to get a sense of the intellectual limitations that impede her ability to provide B.L.W. with essential parental care and control. Mother admitted knowing that the man who was living in their home was a convicted child pornographer. Id. at 132. She admitted telling her family members, whom she now claims could be a help and support to her if B.L.W. returned, that she wanted the child pornographer to leave, but stated they did nothing to help her. Id. at 133. Mother admitted knowing that Father was utilizing holes in the wall “to peek at other people that used the bathroom,” but she did nothing to stop him. Id. at 137-38. Even if we ignored the evidence of Mother’s sexual activity in front of the children because she continues to deny it, the record is very clear that Mother knew about Father’s sexual activity in front of the children and failed to intervene. Id. at 134.²

¶ 21 There are many cases wherein the inability of the parent to provide children with the necessary care, control, and subsistence necessary for their physical or mental well-being cannot or will not be remedied. Clearly, in the instant case, despite Mother’s stated desire to raise her child, her incapacity cannot be remedied. We stated in In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super.2001):

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 may properly have his or her rights terminated.

¶ 22 We have acknowledged the unfortunate and disheartening effect such action may have on parents; however, “that does not make it any less appropriate, for it is the needs and welfare of the child that are of paramount concern to this Court.” In re J.A.S., 820 A.2d 774, 782 (Pa.Super.2003). The record herein compels our conclusion that Mother is not capable of providing B.L.W. with a safe and healthy environment in which to live, and there is no evidence in the record that this fact could change. “A parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.” In re E.M., 533 Pa. 115, 120, 620 A.2d 481, 484 (1993) (quoting In re William L., 477 Pa. 322, 345, 383 A.2d 1228, 1239 (1978)). While tragic in our view, such sympathies cannot cloud the consideration of whether parental termination meets the needs and welfare of B.L.W. As the trial court stated:

The court has personally observed [Mother] in the courtroom and found her to appear lethargic, passive, and with a generally flat affect. Based on the expert testimony of Or. Rosen, this court’s observations, and the totality of the circumstances, we have grave concerns not about [Mother’s] willingness to be a mother, but about her ability to provide the level of protection, security, and stability that B.L.W. needs and currently enjoys in her present home.

Trial Court Opinion, 4/12/02, at 14 (emphasis added). Thus, the evidence presented was sufficient to satisfy the criteria of 23 Pa.C.S. § 2511(a)(2).

¶ 23 Furthermore, the record is replete with support for the orphans’ court’s conclusion that the needs and welfare of B.L.W. are being appropriately provided for in her foster home. The child has resided with the same foster family since she and J.C.W., Jr. were adjudicated dependent in June. 1998. Id. at 37. The family regularly goes swimming and camping, visits relatives who live out of town, and provides B.L.W. with opportunities such as horseback riding lessons. Id. at 50-51. Ms. Sally Levy, B.L.W.’s adoption caseworker at Dauphin CYS, testified that B.L.W. is a “bright little girl” who “does extremely well in school” and is anxious to be adopted by her foster family. Id. at 49, 52. The foster family has provided a stable environment for B.L.W., and they hope to adopt B.L.W. when she becomes free for adoption. Id. at 53. As we have noted, “it is time to give [B.L.W.] a chance to have [her] fundamental needs met without the constant insecurity that comes with knowing that someday, perhaps in the unreasonably distant future, [she] might again be wrenched away from [her] committed and capable caregivers.” In re N.C., 763 A.2d 913, 919 (Pa.Super.2000).

As we said in In Re B.L.L., supra at 1013, citing In Interest of Lilley, 719 A.2d 327 (Pa.Super.1998), “A parent’s basic constitutional right to the custody and rearing of his or her child is converted, upon the failure to fulfill his or her parental duties, to the child’s right to have proper parenting and fulfillment of his or her potential in a permanent, healthy safe environment.”

In re J.A.S., supra at 782.

¶ 24 Order affirmed.

¶ 25 Judge KLEIN files a Dissenting Opinion.

1 . To the extent that Mother focused át oral argument upon the reasonableness of the efforts of Dauphin CYS prior to seeking termination of Mother’s parental rights, we note that Mother failed to raise such issue in both her statement of matters complained of on appeal and statement of questions presented. Moreover, even if properly raised, "the adequacy of CYS'[s] efforts toward reunification is not a valid consideration [at the termination of parental rights] stage, as the law allows CYS to 'give up on the parent’ once the service plan goal has been changed to adoption.” In the Interest of A.L.D., 797 A.2d 326 (Pa.Super.2002); accord In re Adoption of T.B.B., 2003 PA Super 398, 835 A.2d 387; In the Interest of M.B., 388 Pa.Super. 381, 565 A.2d 804 (1989). The dissent suggests that there does not exist "a clear change of goal plan from which Mother could appeal,” dissent at 390, and it implies that we rely on the May 31, 2000 order attached to the Dauphin CYS brief as our support for the fact that the goal, indeed, was changed from reunification to adoption. As we do not have the juvenile court record before us, even though it was marked as an exhibit at trial, n.t., 8/29/01, at 13, we do not rely on this order. However, there is no doubt that the goal was changed to adoption. See e.g., N.T., 8/29/01, at 52, 54, 58. Moreover, Mother never raised any issue suggesting that the goal was not changed nor that she had been denied any right to appeal. In light of the fact that we do not have the certified record from the juvenile court, coupled with Mother’s failure to raise any issue concerning the reasonableness of the efforts toward reunification by Dauphin CYS in her Rule 1925(b) statement or her brief to this Court, such an argument is not before us.

2 . The dissent emphasizes the trial court's mis-characterization of Mother's testimony that she and Father tickled B.L.W. in inappropriate places on her body, contending the testimony actually was that she tickled her in appropriate places. First, such criticism is unnecessary, herein since Mother’s testimony actually was that she tickled B.L.W. on the leg, without identifying where on her leg the touching occurred. Presumably, especially in light of Mother’s limited intelligence, the trial court may have considered this testimony vague insofar as establishing unacceptable contact. Moreover, it was Mother's counsel, not Mother, who characterized the tickling in "appropriate places.” N.T., 8/29/01, at 134. Indeed, when asked if Father’s conduct was appropriate, Mother replied, "No.” Id. More importantly, however, Mother also acknowledged a myriad of damning conduct that easily overrides any unfortunate, accidental misrepresentation by the trial court. For example, when asked why B.L.W. and J.C.W., Jr. were removed from the home, Mother spontaneously replied, "Because we had sex in front of the kids.” Id. at 107. In light of the record as a whole, this misstatement by the trial court is insignificant. Such a misstatement easily can occur, and it is important not to overemphasize it. Indeed, the dissent itself mischaracterizes J.C.W., Jr.'s testimony, claiming that he recanted his original statement that he witnessed sexual activity by his parents in their home. Dissenting Memorandum at 8. In actuality, J.C.W., Jr. stated that he did not remember telling the caseworker about witnessing sexual activity, not that he did not make the statement:

Q. You told me you didn’t remember telling the Children and Youth caseworker, who is not Miss Rice here, about the incident. Is it that you don’t remember or are you telling me that you never told anybody about it?

A. I don’t remember telling anybody.

N.T., 8/29/01, at 169-70. At any rate, in light of the fact that Mother herself testified that she “had sex in front of the kids,” id. at 107, any purported recantation by J.C.W., Jr. is inconsequential.