In the Interest of L.S., Appeal of: E.M.T.

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2022
• Docket: 434 WDA 2022
• Status: Unpublished

Opinion

J-S29032-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.S., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: E.M.T., MOTHER : : : : : : No. 434 WDA 2022

Appeal from the Order Entered March 25, 2022 In the Court of Common Pleas of Erie County Domestic Relations at No(s): CP-25-DP-0000069-2022

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: November 14, 2022

E.M.T. (“Mother”) appeals from the order adjudicating her minor child,

L.S. (“Child”) dependent, finding that aggravated circumstances existed

against Mother, finding no reasonable efforts towards reunification necessary,

and establishing adoption as the placement goal for Child. March 25, 2022

Order of Adjudication and Disposition (“3/25/22 Order”). By the 3/25/22

Order, the trial court further found that aggravating circumstances also

existed against G.T.S., Child’s father (“Father”).1 We affirm.

The trial court set forth the factual and procedural history of this matter

in its 1925(a) opinion issued on May 19, 2022 (“TCO”):

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* Retired Senior Judge assigned to the Superior Court.

1Father has also appealed the 3/25/22 Order. The trial court addressed both Mother’s and Father’s appeals in its 1925(a) opinion. J-S29032-22

On March 6, 2022, the [Erie County Office of Children & Youth (“OCY”)] received a General Protective Services Referral (“GPS”) after [Child]’s twin sister, A.S., was found unresponsive in her pack ‘n play. A.S. was transported to the hospital, where she was pronounced dead on arrival. [Mother and Father] reported to the Erie Police Department (“EPD”) that A.S. was fed around 9:00 a.m. and then put down for a nap around 10:30 a.m. in the pack ‘n play on a boppy pillow.[2] When Appellants went to check on A.S., she was face down on the side of the boppy pillow, unresponsive, at which time they reported they called 911. It was determined that A.S. died due to suffocation.

On March 7, 2022, [OCY] went to [Mother and Father’s residence] to follow up on the GPS referral and observed Child lying in the pack ‘n play sleeping on a boppy pillow. Through a follow-up investigation, [OCY] learned that Mother had been instructed repeatedly through Project First Step, Nurse-Family Partnership, and [OCY] about safe sleeping techniques and not using the boppy pillow without supervision.

TCO at 2 (citations to record omitted). An Emergency Protective Order for

Child was obtained on March 9, 2022. The order was issued based upon an

application that set forth OCY’s concerns that Child was not safe in the care of

her parents due to the parents’ continued use of the boppy pillow even after

the death of A.S. on the previous day, together with Mother’s history of failure

to meet the needs of her other children,3 her mental health history, and her

2A “boppy pillow” is a feeding and infant support pillow introduced by the Boppy Company and designed for support during “supervised awake time.” See www.boppy.com/pages/safe-product-use (last visited on November 2, 2022).

3Mother’s parental rights were involuntarily terminated as to K.B.T. on July 16, 2018, pursuant to 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b). Her parental rights were involuntarily terminated as to B.K.T., Jr., on October

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limited intellectual abilities. On March 14, 2022, OCY filed a petition for

dependency, seeking a finding of aggravated circumstances against both

Mother and Father.4 In addition to Mother’s continued disregard of the safe

sleeping techniques on which she had been repeatedly instructed, the

dependency petition cites Mother’s significant history with OCY dating back to

2017, the involuntary termination of her parental rights as to two of her other

children and her untreated mental health diagnoses, which include

schizophrenia, bipolar disorder, depression and anxiety. Petition for

Dependency at 4.

An adjudication and disposition hearing was held on March 21, 2022.

Following the hearing, the trial court found that OCY had established, by clear

and convincing evidence, that Child was without proper parental control, and

adjudicated Child dependent pursuant to 42 Pa.C.S. § 6302(1)(A). A

disposition hearing was held immediately following the adjudication, and

there, the trial court found OCY had established by clear and convincing ____________________________________________

18, 2018, pursuant to 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5) and (b). See OCY Exhibits 1 and 2.

4 OCY sought aggravated circumstances against Father based upon his conviction of an equivalent crime in another jurisdiction. See 42 Pa.C.S. § 6302(3)(iv). The dependency petition alleges that, in addition to Father’s continued disregard for safe sleeping techniques despite repeated warnings, he has a significant criminal history in the state of Illinois and the Commonwealth of Pennsylvania, including sexual offenses with a minor child victim under the age of 9 in Illinois, and two prior convictions for simple assault and criminal conspiracy-robbery in Pennsylvania. Dependency Petition at 4.

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evidence that aggravated circumstances existed with regard to both Mother

and Father pursuant to 42 Pa.C.S. § 6341(c.1).5

Mother does not appeal from the adjudication of dependency or the trial

court’s determination that aggravating circumstances existed; instead, Mother

only challenges the establishment of the placement goal of adoption for Child,

presenting the following claims for our review:

1. Whether the Trial Court committed an error of law by allowing the irrelevant, unconstitutional five-year-old testimony of Dr. Peter v[o]n Korff?

2. Whether the Trial Court committed an error of law by changing the goal from reunification to adoption without providing [] Mother the ability [to] correct any issues since substantial changes have occurred since the 2018 adoption cases. ____________________________________________

5 Section 6341(c) states that “[i]f the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing…to make a proper disposition of the case. 42 Pa.C.S. § 6341(c). Section (c.1) states:

Aggravated circumstances.—If the county agency or the child’s attorney alleges the existence of aggravated circumstances and the court determines that the child is dependent, the court shall also determine if aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made and schedule a hearing as required in section 6351(e)(3)(relating to disposition of dependent child).

42 Pa.C.S. § 6341(c.1). “Aggravated circumstances” include those in which “[t]he parental rights of the parent have been involuntarily terminated with respect to a child of the parent.” 42 Pa.C.S. § 6302(5).

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Mother’s Brief at 2.

Our standard of review for dependency cases is as follows:

[T]he standard of review in dependency cases requires an appellate court to accept the finding of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). See also In re M.S., 980 A.2d

612, 614 (Pa. Super. 2009). Under this standard, we must determine whether

the judgment of the trial court was manifestly unreasonable, whether it

disregarded or misapplied the law, or whether its action was the result of

partiality, bias or ill will. In the Matter of S.B., 943 A.2d 973, 977 (Pa.

Super. 2008), appeal denied, 959 A.2d 320 (Pa. 2008).

At the hearing, OCY presented, without objection, seventeen exhibits,

as well as the testimony of four witnesses, including that of OCY supervisor

Rhiannon Bernadini, licensed psychologist Dr. Peter Von Korff, Lisa

Kobusinski, senior family specialist through Project First Step; and Tiffany

Thomas, nurse home visitor. In its opinion, the trial court provided extensive

analysis of each of those witness’s testimony, with citations to the record.

See TCO at 3-10. We adopt the trial court’s recitation of their testimony for

the purpose of this appeal. See id. Exhibits 1 through 8 included historical

orphans’ court dependency court documentation as it pertained to Mother’s

other two children.

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Before this Court, Mother claims, first, that the trial court erred in

allowing the testimony of Dr. von Korff, who performed a psychological

evaluation of Mother at a prior dependency docket regarding the minor child,

K.B.T., in 2017. She avers that his testimony is irrelevant because the

evaluation occurred five years ago, and he did not perform a new evaluation

of Mother in this case.6 Mother’s Brief at 6.

“The decision of whether to admit or exclude evidence is within the

sound discretion of the [trial] court. A reviewing court will not disturb these

rulings absent an abuse of discretion. Discretion is abused if, inter alia, the

6 In her brief, Mother also asserts that Dr. von Korff’s testimony should be barred because it was unconstitutionally ordered. Mother’s Brief at 7-8. This argument is raised for the first time before this Court, and is therefore waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”); Trigg v. Children’s Hospital of Pittsburgh of UPMC, 229 A.2d 260, 269 (Pa. 2020) (“[I]t is axiomatic that issues not raised in lower courts are waived for purposes of appellate review, and they cannot be raised for the first time on appeal.”); Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017) (“[I]ssues, even those of constitutional dimension, are waived if not raised in the trial court.”) (citation omitted).

Even if this issue were not waived, we would still find it lacking in merit. Mother offers no elaboration with regard to the so-called unconstitutionally- ordered 2017 evaluation, and there is nothing in the record to support the notion that Mother objected to the evaluation at the time it was performed or at any time thereafter. Dr. von Korff testified that he interviewed Mother on three different occasions prior to submitting his November 6, 2017 written report, and that she was an accommodating subject and was receptive to the evaluation. N.T. at 43. Compare In re T.R., 731 A.2d 1276 (Pa. 1999), wherein the Pennsylvania Supreme Court determined that a mother’s state constitutional right to privacy precluded the trial court from compelling her to participate in a psychological evaluation, the results of which would be disclosed to the interested parties.

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[trial] court overrides or misapplies the law.” In re A.J.R.-H., 188 A.3d 1157,

1166-67 (Pa. 2018) (citations omitted). “The well-settled test for relevancy

states that evidence is relevant if ‘(a) it has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.’” Interest of S.K.L.R., 256 A.3d 1108

(Pa. 2021) (quoting Pa.R.E. 401).

The trial court addressed the admission of Dr. von Korff’s testimony in

its opinion:

In a dependency proceeding, the Court must consider all relevant evidence in determining whether the child is without proper parental care. Here, [OCY] offered the testimony of Dr. von Korff’s 2017 psychological assessment, evaluation, and recommendations pertaining to Mother’s ability to properly parent her other children. Specially, Dr. von Korff testified that Mother reported to him that her first psychiatric hospitalization was at the age of seven (7), followed by several psychiatric hospitalizations as a teenager.

According to Dr. von Korff, Mother had been in and out of psychiatric facilities throughout the entirety of her life. He testified to a reasonable degree of medical certainty that the testing and the interview work confirmed that “[s]he is a chronically mentally ill individual in need of constant psychiatric oversight.” Dr. Von Korff concluded that Mother’s psychological issues would require ongoing psychiatric care with appropriate medication. - - -

[Dr. von Korff] ultimately concluded that Mother’s psychological issues will persist throughout her life. Thus, Dr. von Korff’s findings were not limited to her ability to parent in 2017 safely. Rather, it addressed her ability to parent at that time and her ongoing psychological needs that would continue to persist throughout her life and would require appropriate psychological care and medications. Indeed, this testimony is relevant to Mother’s ability to parent L.S., as there is no evidence offered that

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Mother has received the continued and intensive treatment Dr. von Korff deemed necessary.

Additionally, Dr. von Korff testified that Mother’s history of disregard for [OCY]’s safety concerns throughout her 2017 dependency demonstrated “a kind of false belief in her own capacity to manage things,” which caused concerns for her ability to safely parent the child. This testimony was consistent with the prevalent theme regarding Mother throughout the adjudication proceeding, i.e., her disregard for safety concerns regarding parenting and her belief that she did not have to follow the advice of the service providers.

TCO at 12-13 (transcript citations omitted). We agree with the analysis of the

trial court. Dr. von Korff’s testimony regarding Mother’s mental health issues

directly relate to allegations presented in the dependency petition.7 His

testimony therefore had a tendency to make those factual allegations more or

less probable than they would be without the evidence. Moreover, Dr. Korff’s

testimony was a fact of consequence in determining the action. The trial court

committed no error of law in permitting the expert testimony into evidence.

7 The dependency petition states:

[Mother] has a significant history with [OCY], dating back to 2017, due to concerns about her ability to safely care for and meet the basic needs of her children. Additional concerns regarded her untreated mental health diagnoses, which included Schizophrenia, Bipolar, Depression, and Anxiety. [Mother] has two previous children removed from her care on March 24, 2017, and January 22, 2018. Despite working with service providers to resolve the issues related to unfit parenting and unstable mental health, [Mother]’s rights were involuntarily terminated to these two children on July 16, 2018, and October 18, 2018, respectively.

Dependency Petition at IA.(c).

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In her second issue, Mother argues that the trial court erred in its

determination that reasonable efforts did not need to be made by OCY to

reunify Child with her parents and in establishing adoption as the placement

goal. Mother’s Brief at 8-10. She refers to the testimony of the specialist

from Project First Step, Ms. Kobusinski, who had worked with Mother in the

prior dependency cases as well as at present, and that of the nurse home

visitor, to buttress her contention that she has made substantial growth in her

ability to care for Child. Id. Mother asserts that she had been abiding by,

and benefitting from, the instructions and services that were being provided

by OCY since she became pregnant with A.S. and Child, and that even Dr. von

Korff attested to the fact that her mental health could improve if she continued

to work with her providers. Id. at 9.

When proceeding to a disposition of a dependent child under 42 Pa.C.S.

§ 6351, the court may make any of the enumerated orders of disposition best

suited to the safety, protection and physical, mental, and moral welfare of the

child, including transferring temporary legal custody to a public agency

authorized by law to receive and provide care for the child. See 42 Pa.C.S. §

6351(a)(2)(iii). Under subsection (b), the court is not permitted to enter the

required findings under subsections (b)(1), (b)(2), or (b)(4) if the court

previously determined that “aggravated circumstances exist and no new or

additional reasonable efforts to prevent or eliminate the need for removing

the child from the home or to preserve and reunify the family are required.”

42 Pa.C.S. § 6351(b). Where the court has found, as here, that aggravated

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circumstances exist, it must then determine whether reasonable efforts to

prevent the need from removing the child from the home shall be made, and

it “may end reasonable efforts at its discretion.” See In re L.V., 127 A.3d

831, 839 (Pa. Super. 2015); In re A.H., 763 A.2d 873, 878 (Pa. Super. 2000).

Instantly, the trial court explained that:

Based on Mother’s history with [OCY] regarding the safety of the children in in care, as set forth in the Emergency Protective Orders for [B.K.T. and K.B.T] which ultimately led to the termination of her parental rights to those children; the preventable death of A.S. and Mother[‘]s repeated demonstration that, despite services both in 2017-2018 and 2022, she is still unable to safely parent, the [trial] [c]ourt concluded that [OCY] did not have to make reasonable efforts for reunification.

TCO at 14.

The trial court noted the testimony of the OCY supervisor, Ms.

Bernardini, who performed the GPS investigation and spoke to the service

providers who had been assisting Mother with parenting. Ms. Bernardini

confirmed that Mother allowed the two babies to sleep together on their sides

with boppy pillows and blankets, notwithstanding the instructions she had

been repeatedly given not to do so. TCO at 4; N.T. at 13, 17-18. The trial

court summarized the testimony of the Project First Step senior family

specialist, Ms. Kobusinski, who began working with Mother in 2017 when she

was pregnant with K.B.T., on housing, parenting, childbirth education, and

connecting with mental health services. Ms. Kobusinski had reported in 2017

that Mother was exceptionally challenging to work with, missed visits, and

became easily agitated when Project First Step or OCY staff attempted to

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educate her or redirect her when she struggled with caring for her baby. TCO

at 7; N.T. at 69-70. The trial court noted the family specialist’s

acknowledgement, on cross-examination, that Mother was in a better state of

mind in 2022 than she had been in 2017-18, and appeared to being doing

“okay” with the children; nevertheless, the court emphasized Ms. Kobusinski’s

testimony that providers continued to work with Mother on feeding issues due

to doctors’ concerns that the children were being overfed and on each of seven

visits to the home in the weeks prior to A.S.’s death, she attempted to educate

her on safe sleeping procedures. TCO at 8; N.T. at 76, 82.

The testimony of Ms. Thomas, the nurse home visitor was also

summarized in the trial court’s opinion; the trial court noted her statements

that toward the end of January, 2022, Mother was putting the babies in bed

with the boppy pillows despite her numerous attempts to advise and educate

her as to the dangers of utilizing incorrect sleeping techniques, including

suffocation and/or sudden infant death syndrome. TCO at 9; N.T. at 94, 96.

Finally, the trial court cited, but did not give great weight to Dr. von Korff’s

acknowledgement, on cross-examination, that Mother could have fared better

in a present day evaluation, assuming she had received all of the prescribed

treatment she needed in the years since 2017; the trial court cited Dr. von

Korff’s testimony that he did not consider appointments with a blended case

manager and mental health treatment delivered by eleven different therapists

over the past five years as a fulfillment of the recommendations he made in

2017 for Mother’s care. TCO at 6-7; N.T. at 56-57.

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After a careful review of the record, we can find no support for Mother’s

assertion that she has grown substantially in her ability to care for Child. We

find no abuse of discretion in the trial court’s determination that reasonable

efforts towards reunification were no longer necessary, and in establishing the

placement goal of adoption. We therefore affirm the March 25, 2022 Order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/2022

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