J-S34009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: I.W., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: L.W., MOTHER : : : : : : No. 126 MDA 2020
Appeal from the Decree Entered December 20, 2019 In the Court of Common Pleas of Northumberland County Orphans' Court at No(s): 20 of 2019
IN RE: M.W., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: L.W., MOTHER : : : : : : No. 127 MDA 2020
Appeal from the Decree Entered December 20, 2019 In the Court of Common Pleas of Northumberland County Orphans' Court at No(s): 21 of 2019
IN RE: J.W., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: L.W., MOTHER : : : : : : No. 128 MDA 2020
Appeal from the Decree Entered December 20, 2019 In the Court of Common Pleas of Northumberland County Orphans' Court at No(s): 22 of 2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E. J-S34009-20
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 13, 2020
L.W. (“Mother”) appeals from the December 20, 2019 order involuntarily
terminating her parental rights to her three minor children, I (born in 2006),
J (born in 2007), and M (born in 2017). We affirm.
At the outset, we note that I and J have the same biological father, R.W.
In contrast, R.W. was the legal, but not the biological, father of M. R.W.’s
parental rights were also involuntarily terminated as to all three children, but
R.W. has not appealed that termination.
The trial court summarized the history of Mother and the children’s
involvement with Northumberland County Children and Youth Services (the
“Agency”) as follows:
[The Agency] became involved with [the] family in 2013 after receiving a referral involving sexual abuse of the minor child [J]. The allegation was that [J]’s father[,R.W.,] had been sexually abusing her. A safety plan was implemented so that … R.W. was not allowed to have any unsupervised contact with the minor children. The [child protective services] referral was indicated against … R.W. [R.W.] never appealed the indicated report [and failed to participate in a sex offender treatment program]. It was reported to [the Agency] that [R.W.] had relocated to Pittsburgh. Mother … expressed that she wanted to move to be with [R.W.]
Mother signed [a] Family Service Plan in March 2014. Mother appeared to be struggling both financially and mentally and it was recommended [that she attend counseling] [and] classes at the Family Center and [be assigned] a resource worker. Mother refused all services.
Maternal Grandmother contacted the Agency in June of 2014, expressing concern about Mother paying bills and providing food for the children. In July [of 2014,] Mother took the children to visit [R.W.] in Pittsburgh. Mother confirmed that she had taken
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the children to Pittsburgh. Mother also admitted that she had left the children alone with her father [the children’s maternal grandfather] even though he had sexually abused [Mother] as a child. When questioned why she left the children with her father she responded that she now trusts him. Allegheny County filed two [child] [p]rotective [s]ervice reports that the children were at imminent risk of sexual abuse and named both parents as perpetrators. Mother was requested to sign a safety plan and she refused. Several family members were discussed as options for places for the children to stay, however, they were all deemed inappropriate or unwilling to take the children. During this time[,] Mother made statements that no matter where the children were she would take them and flee to Pittsburgh.
A [r]isk assessment was done [and] … [t]he children were deemed to be at high risk of future potential abuse/neglect …[.] A safety assessment was also conducted and there were safety threats identified due to Mother failing to assure the [children’s] safety and there was a high likelihood of abuse.
On July 29, 2014, [the Agency] was granted a verbal [o]rder granting temporary legal and physical custody to the Agency. On that same day[,] while the children were being transported to the foster home[,] they disclosed that while in Pittsburgh[, they] had slept in the same bed as [R.W.] They also indicated that they had spent time with their maternal grandfather and had slept in the same bed with him.
A shelter care hearing was scheduled for August 1, 2014, at which time the parents stipulated to the children remaining in care. The adjudication hearing was held on August 7, 2014, and the children were adjudicated dependent.
Subsequent to placement[,] the children disclosed sexual abuse perpetrated by [their] maternal grandfather. A child protective services report indicated [the] maternal grandfather as perpetrator by commission of sexual abuse of … [J]. Mother was indicated as perpetrator by omission. Neither party appealed the indicated reports against them.
During this initial placement[,] Mother completed parenting classes, [counseling] services and maintained a home and employment. Mother was cooperative with the psychologist in developing a plan for protection of the children and transition back
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to her custody[,] which was accomplished[,] and the case was closed by November 9, 2017.
The Agency received a report on January 24, 2018 that [M]other had taken the children to be around [R.W.] again. This was confirmed by the children. Mother indicated she did not see the harm in [allowing contact between the children and R.W.] due to her case being closed. Due to ongoing concerns about Mother’s protective capacities[,] the Agency sought another verbal order that was granted on January 24, 2018. A shelter care hearing was held on January 26, 2018, and an [a]djudication hearing on February 9, 2018, where it was determined that physical and legal custody of the children [would] remain with [the Agency].
Since the adjudication hearing[,] [p]ermanency [r]eview hearings were held July 13, [2018], December 17, 2018, April 2, 2019, July 8, 2019 and October 4, 2019.
Trial Court Opinion, 4/2/20, at 1-4 (unpaginated).
On April 29, 2019, the Agency filed a petition to involuntarily terminate
Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511 (a)(1), (a)(2), (a)(5)
and (a)(8) and (b). A two-day hearing was held on the petition, on October
17, 2019 and December 9, 2019.
Mother testified on the first day of the hearing. She stated that she
understood that the first placement of her children had occurred because she
had allowed her children to have unsupervised contact with R.W. after there
had been an indicated report that he had sexually abused J. See N.T.,
10/17/19, at 64-65. She testified that she believed J’s allegations that R.W.
had sexually abused her, and in fact, she had been the one to report the
abuse. See id. at 80, 64. She further testified that after the children were
returned to her care, the Agency reviewed service plans with her and she was
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clear that the Agency was recommending that the children were not to have
contact with R.W. because of the sexual abuse. See id. at 66-68. Mother
admitted, however, that she allowed contact between the children and R.W.
after the case was closed. See id. at 65-66, 71.
Indeed, the family service plan dated November 9, 2017, which Mother
signed, not only prohibited Mother from allowing contact between R.W. and
the children, but also prohibited Mother from allowing contact between the
maternal grandfather and the children. See Service Plan, Exhibit A-2, at F-1.
Mother also testified that she knew that there had been an indicated report of
sexual abuse involving her father and the children. See N.T., 10/17/19, at 65.
She testified that she understood there was not supposed to be contact
between her father and the children because of the abuse, but that she
allowed for such contact anyway. See id. at 66, 73, 74.
Mother testified that she did not see the danger in the children’s contact
with R.W. or the trauma such contact may have caused the children. See id.
at 71. According to Mother, it was not until she started therapy in May of 2019
with a woman named Beverly Elps that she was able to understand the
potential harm of allowing those who had abused the children to have contact
with them. See id. at 72; see also Gillum Psychological Evaluation, 5/24/19,
at 3 (reporting Mother’s statement that she had “been in a program for [six]
weeks. It opened my eyes. My kids come first.”). Mother also testified that
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although she continued a physical relationship with R.W. until March of 2019,
she has since filed for divorce. See N.T., 10/17/2019, at 83, 86-87, 79.
The Agency also called Michael Gillum, who all parties stipulated was
qualified as an expert in the field of psychology, to testify at the hearing on
October 17, 2019. Gillum reported that he conducted a risk assessment
psychological evaluation on Mother to determine her ability to protect her
children from abuse. Gillum acknowledged that Mother “seemed to love her
children” but that her “judgment was problematic.” Id. at 20-21. He noted
that Mother had “continuously fail[ed] to protect” the children by engaging in
a “repeated pattern over a long period of time of[,] despite being told not to
put the kids at risk by placing them with people who could potentially molest
them, she continued to do it.” Id. at 28, 22-23.
Gillum believed Mother had dependency issues, in that she tended to
defer her decisions to others she had become submissive to, and prioritized
her relationship with men over the safety of her children. See id. at 26, 24.
He essentially concluded that Mother was likely to continue to tolerate
mistreatment of herself or her children because it was more important to her
to preserve her relationship with a man than it was to protect her children.
See id. at 27.
Gillum testified that he was “confident” that Mother could not be relied
upon to protect the children, as Mother could not be counted on to refrain
from putting the children “back in the care of one of these individuals who
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may have molested them, or might molest them.” Id. at 28. It was Gillum’s
opinion that if Mother “had custody or unsupervised visitation [the children]
would be at great risk of sexual abuse.” Id. at 29. When asked by Mother’s
counsel whether it was his position that Mother could not remedy these
concerns, Gillum responded:
Yes. My position is that having discussed this with her, and reviewed the history, she has had many opportunities where these issues have been discussed with her at length over the years and she rejected getting any type of treatment, trying to make changes … Her revelation was that she now needed to put her children first. I didn’t find that credible. … I would say within the … foreseeable future, I don’t believe she would make adequate changes to protect her children from potential perpetrators.
Id. at 46.
Mother presented her own expert, Dr. Frederick Gimino, a licensed
psychologist, to testify at the hearing on December 9, 2019. Dr. Gimino
testified that his evaluation of Mother was limited to a neuropsychological
evaluation to determine whether Mother had any neuropsychological issues
which would impede her ability to protect the children and was not done to
determine anything to do with custody. See N.T., 12/9/2019, at 5, 18, 22.
Dr. Gimino acknowledged that he met only with Mother and not the children.
See id. at 17. He testified that he concluded that Mother did not have any
neuropsychological impairments, i.e. she did not “have anything wrong with
her brain.” Id. at 22. Although Dr. Gimino did agree that his report
recommended that Mother be allowed to continue to develop her relationship
with her children by gradual transitions, he also testified:
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I didn’t judge [Mother] in terms of her abilities to be a good parent, whether or not she was a threat to her children. I just said her mental health status was not contributing to these problems with her.
Id. at 30.
Following the hearing, the trial court issued an order involuntarily
terminating Mother’s parental rights as to each one of her minor children, I, J
and M, pursuant to Sections 2511 (a)(1), (a)(2), (a)(5), (a)(8) and Section
2511 (b). Mother filed a timely notice of appeal on January 14, 2020, and
raises two issues in her appellate brief:
I. Whether the trial court erred and/or abused its discretion in its determination that [the Agency] presented clear and convincing evidence to terminate Mother’s rights under 23 Pa.C.S.A. § 2511(a)(1), 2511 (a)(2), 2511 (a)(5) and 2511 (a)(8)?
II. Whether the trial court erred and/or abused its discretion by determining that [Mother] failed to remedy the conditions that led to placement?
Appellant’s Brief at 9.
When this Court reviews an order of a trial court terminating parental
rights, we must accept the findings of fact and credibility determinations of
the trial court as long as the record supports them. See In the Interest of
D.R.-W., 227 A.3d 905, 911 (Pa. Super. 2020). If the findings of fact are
supported by the record, this Court may only reverse the order if the trial
court made an error of law or abused its discretion. See id. We may not
reverse merely because the record could support an alternate result. See id.
Instead, we give great deference to the trial court because trial courts often
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have the opportunity to observe the parties first-hand over the course of
multiple hearings. See In the Interest of D.F., 165 A.3d 960, 966 (Pa.
Super. 2017). Further, the trial court, as the fact-finder, is free to believe all,
part or none of the evidence presented and is likewise free to resolve any
conflicts in the evidence. See id.
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. Under Section 2511, a trial court must
engage in a bifurcated process prior to terminating parental rights. See In re
L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Initially, the trial court must find
that the party seeking termination has proven by clear and convincing
evidence that the parent’s conduct satisfies any one of the eleven statutory
grounds set forth for termination under Section 2511 (a). See id.; 23 Pa.
C.S.A. § 2511 (a)(1-11). If the trial court finds that one of those subsections
has been satisfied, it must then, pursuant to Section 2511(b), make a
determination of the needs and the welfare of the child under the best
interests of the child standard. See In re L.M., 923 A.2d at 511; 23 Pa.C.S.A.
§ 2511(b).
Here, regarding the first prong of the analysis, the trial court found that
the Agency had proven by clear and convincing evidence that Mother’s conduct
met the grounds for termination of her parental rights under Sections 2511
(a)(1), (a)(2), (a)(5) and (a)(8). Mother does not challenge the subsections
individually, but rather makes the broad assertion that the trial court erred by
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terminating her parental rights under the umbrella of all four. This Court has
made clear that it only needs to agree with the trial court that the Agency met
its burden as to any one subsection in order to affirm the termination of
parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). We conclude that the trial court correctly determined that the Agency
met its burden pursuant to Section 2511 (a)(2), which provides that parental
rights may involuntarily be terminated on the grounds that:
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.
23 Pa. C.S.A. § 2511(a)(2).
Accordingly, under Section 2511(a)(2), parental rights may be
terminated if it is shown that: 1) there was repeated and continued incapacity
of the parent; 2) such incapacity caused the children to be without essential
parental care; and 3) the incapacity cannot or will not be remedied. See In
re N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011). “Parents are required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. (emphasis added).
Here, the trial court noted that the children had first been adjudicated
dependent because Mother had left the children unsupervised with R.W. even
though she was aware of the indicated report that R.W. had sexually abused
their daughter. The court also pointed out that Mother had left the children
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unsupervised with their maternal grandfather, who had sexually abused
Mother when she was a child, and it was subsequently disclosed that the
grandfather had also sexually abused the children.
The court then noted that after the children were returned to Mother’s
care, Mother again allowed the children to have contact with R.W. Mother
testified that she did not see this as an issue because the case had been
closed. The Agency, concerned that Mother did not have the capacity to
protect her children, once again sought to have the children adjudicated
dependent, and ultimately sought to terminate Mother’s parental rights.
In support of the termination, the trial court also pointed to the
testimony of Michael Gillum, whose “observations and opinions [the court
found] to be entirely consistent with the court’s observations and findings.”
Trial Court Opinion, 4/2/20, at 7 (unpaginated). Namely, the court highlighted
the testimony of Gillum that Mother’s judgment was problematic, that she was
willing to tolerate her children being mistreated in order to preserve her
relationship with others, and that the children would be at great risk of sexual
abuse if returned to Mother’s care. Gillum clearly testified that it was his
opinion that Mother could not remedy her incapacity to protect her children
from abuse. See N.T., 10/17/19, at 46.
Based on the above, we find that there is sufficient evidence in the
record to support the court’s conclusion that Mother’s continued incapacity to
protect her children by exposing them to others who have harmed them, or
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may harm them, cannot or will not be remedied. This Court has clearly held
that the grounds for terminating parental rights under Section 2511 (a)(2)
include the incapacity to perform parental duties. See In re N.A.M. 33 A.3d
at 100. Undoubtedly, “the parental duty extends beyond mere restraint from
actively abusing a child; rather, there exists a duty to protect the child from
the harm others may inflict.” In the Interest of JOV, 686 A.2d 421, 423 (Pa.
Super. 1996). Mother has repeatedly failed to do so here and there was
testimony credited by the trial court that Mother lacked the capacity to protect
her children from future harm. As such, we see no error of law or abuse of
discretion in the trial court’s conclusion that the Agency presented clear and
convincing evidence that Mother’s parental rights were properly terminated
under Section 2511 (a)(2).
In her second issue, however, Mother argues that while she has made
poor decisions in the past, the “intensive counseling in 2019” made her realize
“the dangers her children were put into by meeting their natural father.”
Appellant’s Brief at 16. Thus, Mother appears to argue that she has already
remedied the conditions that led to placement - or at least that she is now
willing to do so - and termination of her parental rights is therefore improper.
We disagree.
In the first place, Mother, along with I and J, have been involved with
the Agency since 2013. Over the years, Mother has repeatedly allowed the
children to have contact with people she knows to be sex abusers. By her own
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admission, Mother did not recognize the danger in doing so until she began
her therapy in May of 2019, after the termination petition had already been
filed and six years after her involvement with the Agency began. As this Court
has stated:
A child’s life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities. The court cannot and will not subordinate indefinitely a child’s need for permanence and stability to a parent’s claims of progress and hope for the future.
In the Interest of D.R.-W., 227 A.3d at 914 (citation omitted); see also In
re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001) (stating that parents who
cannot or will not meet parental requirements of care within a reasonable
amount of time following state intervention may properly have their rights
terminated).
In any event, Gillum testified that he simply did not credit Mother’s claim
that she had an “epiphany” as a result of the counseling beginning in May of
2019 that she now knew she had to put the children first. N.T., 10/17/19, at
47. He explained:
I didn’t find that credible that she had a revelation in 2019, after years of this, that she should put her children first. … [S]he did not demonstrate remorse, or did not talk about mistakes she had made in the past. … She just made the statement … that she needed to [put the children first] so everything would be okay now.
Id. Moreover, Gillum testified that:
[W]ith the depth and severity of the issues [Mother] has, to tell me that she went to informal counseling for six weeks [referring to the therapy with Beverly Elps in 2019] and now saw the light,
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and was completely changed. That’s pretty much impossible for someone with this degree of problems to say.
Id. at 48-49. Gillum acknowledged that it was his understanding that Mother
continued to be in therapy with a licensed psychotherapist. He testified that
while he was unable to predict the future, he still could not “be very optimistic
about the prognosis of [Mother] reaching a point where we would feel she no
longer represents a threat to her children, protecting her children.” Id. at 49-
50.
The trial court specifically found the testimony of Gillum credible,
testimony which clearly refutes Mother’s argument that she has remedied the
conditions that led to placement. Mother essentially argues that the trial court
should not have credited Gillum’s opinions because he conducted only a three-
hour interview with Mother and a 45-minute long interview each with I and J,
and because Gillum consulted the Agency solicitor reports which contained
inaccuracies and hearsay. The court, however, was well aware of what Gillum
relied upon in order to reach his conclusions. See id. at 18-19, 34-35; Gillum
Psychological Evaluation, 5/24/19, at 2-6 (unpaginated) (discussing the
interview with each L.W., I and J, the observation of Mother visiting with the
children, and the administration of mental health/personality testing). With
that knowledge before it, the court credited Gillum’s opinions and conclusions,
as was its clear prerogative to do. See In the Interest of D.F., 165 A.3d at
966.
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Mother also appears to contend that the court’s reliance on Gillum’s
opinion that she had not remedied the conditions that led to placement was
improper because her expert, Dr. Gimino, offered the contrary “opinion that
these conditions could or may be remedied at this point.” Appellant’s Brief at
18. This claim is without merit.
As an initial matter, Mother misrepresents the testimony of Dr. Gimino.
Dr. Gimino testified only that if Mother continued therapy “she may make
progress,” N.T., 12/7/2019, at 18, and that “it was difficult to answer” whether
she would ever be able to have the protective capacity to take care of the
children. Id. at 13. He did not at any point testify that Mother had remedied
- or that she would remedy - the conditions that led to the children’s
placement. The thrust of Dr. Gimino’s testimony was, in essence, that Mother
did not have any neuropsychological issues that were the source of her
inability to ensure the children’s safety by not allowing them to have contact
with those who had sexually abused them.
Moreover, even if there was a conflict in the experts’ testimony in the
manner alleged by Mother, it was within the province of the trial court, as fact-
finder, to resolve any such conflict as it deemed proper. See In the Interest
of D.F., 165 A.3d at 966. As noted above, the trial court credited Gillum’s
testimony, which supports the trial court’s finding that Mother has evinced a
continued incapacity to protect her children which cannot be remedied. Mother
has simply failed to demonstrate that the trial court erred or abused its
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discretion by finding that there was clear and convincing evidence that
Mother’s parental rights should be terminated pursuant to Section 2511
(a)(2).
Because we find that the trial court properly terminated Mother’s rights
under Section 2511(a)(2), we must next review the trial court’s determination
pursuant to Section 2511 (b) that termination was in the best interests of I, J
and M. Mother does little to challenge this determination. She merely asserts
that the Agency “has not provided evidence to show that termination would
be in the best interest of the minor children.” Appellant’s Brief at 15. We
disagree.
At the hearing, all counsel stipulated that all three children were in
placement with foster parents who were a permanency option. Counsel also
stipulated that if the Agency called the caseworker currently involved with the
children to the stand, the caseworker would testify that J and I were reluctant
to visit with Mother. See N.T., 12/9/19, at 34. She would also testify that M,
who has been in the Agency’s custody since she was seven months old, clearly
preferred her foster father to Mother during visits and that M is obviously
bonded to her foster father. See id. at 35.
All counsel also stipulated that if the Agency called I and J's foster
mother to the stand, she would testify to the children’s improved academic
performance and how they had generally blossomed since being in her care.
See id. at 38. Following these stipulations, both the appointed guardian ad
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litem and counsel for the children argued for termination of Mother’s parental
rights to all three children. See id. at 42-43; see also Brief of Legal Counsel
for the Children at 6 (“All of the children desire to be adopted by their foster
parents, where they have found the safety and security that they deserve.”).
Gillum also testified at the hearing that I had stated during their
interview that he did not wish to see Mother and that he loved his foster
parents. See id. at 37. The trial court further noted:
Gillum’s report from his interview with the children was that both [I] and [J] were bonded with their foster family. Gillum clearly indicated Mother’s lack of protective capacity of the children and urged the court to consider termination of her parental rights. Indeed[,] it was Gillum’s opinion to a reasonable degree of scientific certainty that the children would be at extreme risk of sexual abuse should Mother retain unsupervised visits or custody.
Trial Court Opinion, 4/2/20, at 8 (unpaginated).
Based on all of the above, we simply do not agree with Mother’s bald
assertion that there is insufficient support in the record for the trial court’s
determination that it was in the best interests of I, J and M to have Mother’s
parental rights terminated.
We note that while Mother does assert that “she cares for [her]
children,” Appellant’s Brief at 15, and also note that Gillum testified that
Mother seemed to love her children, this Court has held that the mere
existence of a parent’s emotional bond to her children does not preclude the
termination of her parental rights. See In re N.A.M., 33 A.3d at 103. Rather,
in evaluating the needs and welfare of the children, the trial court can also
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look to the safety needs of the children and the love, comfort, security and
stability the children have with their foster parents. See id. The trial court did
so here, and concluded that under the circumstances of this case, termination
of Mother’s parental rights was in the best interests of the children. Mother
has not shown, nor do we find, that the trial court erred or abused its
discretion in reaching this conclusion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/13/2020
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