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In re M.I.

Superior Court of Pennsylvania

June 28, 2013

IN THE INTEREST OF: M.I. APPEAL OF: D.I., MOTHER IN THE INTEREST OF: J.F. APPEAL OF: D.I., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Order of October 18, 2011 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-DP-0012066-2007, March Term, 2009, Nos. 90022, 90023.

BEFORE: STEVENS, P.J., LAZARUS, J., and COLVILLE, J.[*]

MEMORANDUM

LAZARUS, J.

D.I. (Mother) appeals from the trial court's order involuntarily terminating her parental rights to her minor children, M.I. and J.F. After careful review, we affirm.

In a prior panel decision, our Court stated the underlying facts of this case as follows:

M.I. (DOB [June 2005]) and J.F. (DOB [January 2007]) were placed in the custody of the City of Philadelphia's Department of Human Services (DHS) after J.F. tested positive for cocaine at birth. Both children were adjudicated dependent on April 12, 2007 and placed in foster care. In February 2009, the court held a hearing on DHS's request to change Mother and Father's visits to supervised visitation based upon a psychologist's testimony that M.I. was exhibiting extreme anxiety from his inability to form an attachment to a parental figure.
In March 2009, DHS filed a petition to change the goal to adoption/terminate; after several hearings, the trial judge, the Honorable Daniel J. Anders, terminated Mother's rights, pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8), [1] to children in November 2009. At the termination hearings, it was established that Mother had complied with all DHS family service plan (FSP) objectives (visits, housing, medication management, and mental health therapy) and had been "very consistent" with her visitation, only having missed a total of two visits in April of 2009. However, Dr. Patrick McHugh, a psychologist testifying for DHS, opined that Mother has a dependent personality disorder that cannot be reasonably treated and which negatively impacts her ability to parent M.I. and J.F. Doctor McHugh testified that in the one-hour time period he observed parents and children (and also in the presence of the children's foster mother) on December 19, 2008, Mother played and interacted with the children. He also testified, however, that there was not an excessive amount of affection or physical hugging between Mother and children during the interaction. Finally, he noted that when the visit concluded, the children did not have trouble saying goodbye or separating from parents. From this limited observation, he opined that M.I. and J.F. would not suffer any negative effect if Mother's rights were terminated. Ultimately, the trial judge found that DHS proved by clear and convincing evidence that Mother's parental rights should be terminated under sections 2511(a)(2), (5), and (8) on the basis that:
Parents have through their incapacity or refusal to parent left both children to be without parental care [and] control. That those conditions that brought this case initially into care still exist, namely, parents' unaddressed mental health issues. That those conditions have not, cannot, and will not be remedied by the parents through their demonstrated refusal to obtain mental health evaluations. They have delayed for nearly two years in obtaining those mental health evaluations and have subsequently, once having those mental health evaluations in place, have then drug [sic] their feet in even enrolling in services.

N.T. Termination Hearing, 11/5/2009, at 18-20 (emphasis added). With regard to finding that DHS proved termination was warranted under section 2511(b), the court stated:

I am giving primary consideration to the developmental, physical and emotional needs and welfare of the children. Although, in my view visitation was consistent, it is most confounding to me that with the amount of visitation that occurred, the amount of unsupervised visitation that occurred through December of 2008, which was almost continuously for two full years, that despite all that visitation, that there was under Doctor McHugh's finding, no bond between these parents and their children.
I attribute that to the personality disorders both parents suffer from. So their inability to address that leads me to believe that, A, there is more than sufficient clear and convincing evidence under 2511A, to terminate, but then also explains why there is no bond between the parents and their children[.] I believe it's in the children's best
interests to given them the permanency they deserve after the parents have failed to take advantage of the extensive services that were offered to them.

Id. (emphasis added).

Mother filed an appeal from the court's termination order; our Court reversed and remanded the case, finding that Mother had been deprived of the opportunity to present her two expert witnesses, Doctors Steven E. Samuel and James L. Loving, on whether a bond existed between Mother and Children. In re: M.I., J.F., 3660, 3661, 3662, & 3663 EDA 2009 (Pa. Super. filed October 14, 2010). Specifically, upon remand our Court directed the trial court to permit Dr. Samuel to testify regarding the results of a bonding assessment he would conduct between Mother and Children. Additionally, this Court directed that Dr. Loving be permitted to testify in rebuttal to Dr. McHugh's trial testimony, which included psychological and bonding evaluations. Id. On remand, a different trial judge, the Honorable Kevin M. Dougherty, was assigned to the case. Judge Dougherty held hearings (remand hearing) on June 13 & 14, 2011 and September 16, 2011, at which Mother's experts testified. Essentially, Dr. Loving testified at the remand hearing that he found Dr. McHugh's testimony to be conclusory and unsupported by objective evidence. Doctor Loving also submitted an eight-page report which expressed concerns about the evaluation methods employed by Dr. McHugh. Mother's counsel called Dr. Samuel to the stand where he testified regarding the parenting capacity and bonding evaluation he performed regarding Mother. After meeting with Mother on four occasions as well as with J.F. and M.I. on two occasions, during which he administered psychological and psycho-diagnostic testing, Dr. Samuels opined that Mother had the psychological capability of parenting J.F. and M.I., but that the children had an insecure attachment to Mother. Clinically, an insecure attachment suggests that the children are "anxiously interested, but are not all that close [to Mother] psychologically or emotionally." N.T. Remand Hearing, 9/16/2011, at 26. In fact, Dr. Samuels testified that J.F. and M.I. would not suffer irreparable harm were they separated from Mother and returned to their foster mother. Id. at 25.

Following the hearings, Judge Dougherty issued an order stating that Judge Anders' October 18, 2010 order terminating Mother's parental rights "shall remain in effect." In his Pa.R.A.P. 1925(a) opinion, Judge Dougherty makes the following statement in support of order to terminate:

The totality of the evidence proffered by the parties during the proceedings demonstrated clearly and convincingly that no meaningful bond developed between the children of concern and [Mother]. Accordingly, the elements set forth in 23 Pa.C.[S.A.] §§ 2511(a) and (b) having been sufficiently satisfied by the City of Philadelphia – Department of Human Services [-] the parental rights of [Mother] should properly terminate.

Trial Court Opinion, 1/27/2012, at 3.

On August 24, 2012, our Court remanded this case to the trial court for a full review of the evidence presented over the three years since DHS sought termination of Mother's rights, making sure to include the effect that Mother's experts had on the import of the case. The trial court issued a new opinion, dated March 8, 2013, that responded to our remand order and specifically addressed Mother's experts' testimony and its impact upon the balance of evidence presented at the termination hearings.

In his opinion, the trial judge indicated that he "was unable to reconcile the difference of opinion testimony offered by Dr. Samuel and Dr. Patrick McHugh with regard to whether [Mother] suffered from a personality/psychological disorder which served to prevent her from parenting appropriately." Trial Court Opinion, 3/8/2013, at 5. Despite the inability to reconcile the experts' testimony on the issue of Mother's alleged psychological disorder, [2] the trial court ultimately determined that the totality of the evidence presented during the ten evidentiary hearings in this matter sufficiently supported the decision to terminate Mother's parental rights under subsections 2511(a)(2), (5), and (8) and 2511(b) of the Act.

On appeal, Mother raises the following issues for our review:

1. Whether the trial court erred in terminating Mother's parental rights.
2. Whether trial court deprived Mother of the right to counsel by not permitting counsel to make a closing argument.
3. Whether the court erred in not permitting [a] witness to testify.
4. Whether the court erred by not exercising its own independent judgment in analyzing evidence and setting forth decision (and improperly relying on decision of first trial judge who recused himself from case).

We review a trial court's decision to involuntarily terminate parental rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to determining whether the trial court's order is supported by competent evidence. Id.

The trial court concluded that Mother did not present a settled purpose of reunification with children and that the conditions which led to Mother's separation with children continued to exist. Children were initially removed from Mother's care when DHS was notified that Mother and J.I. tested positive for cocaine at J.I.'s birth, Mother lacked health insurance, and there were minimal food and infant supplies in the home for Children. During its investigation, DHS learned that Mother had an extensive history with New Jersey's Division of Youth and Family Services and that 11 of her children with Father had been removed from her care due to neglect, drug abuse, failure to thrive, and medical neglect; their parental rights to those children have been terminated and the children have since been adopted. See In re: J.I.R., 808 A.2d 934, 939 (Pa. Super. 2002) ("While prior terminations are clearly not dispositive of whether parental rights should be terminated in the future, they are clearly relevant factors in determining whether a parent's current assertions that he or she is capable of providing proper parental care to the child are credible.").

Instantly, DHS case worker Jennifer Koslosky testified that Mother failed to satisfy the FSP objective of obtaining and maintaining stable housing. In addition, Koslosky noted that Mother and Father had not reported their whereabouts or changes of address to DHS when they resided at five different addresses from 2007 through September 2009. Koslosky also testified that Mother had not obtained timely, mental health/psychiatric examinations, having been ordered by the court to do so since 2007. In fact, the final mental health evaluations were not completed until after DHS filed its petition to terminate Mother's parental rights. See In re R.M.G., 997 A.2d 339, 349 (Pa. Super. 2010) ("parent's avowed intent to cooperate in a remediation program at the eleventh hour, after a long period of uncooperativeness . . . may properly be rejected as untimely and/or insincere.") (citation omitted).

Here, we recognize that Judge Dougherty has a distinct disadvantage by not having presided over Mother's termination hearing; he was not able to observe the witnesses firsthand and, therefore, his ability to assess their credibility has been hampered. However, based upon the testimony from DHS caseworkers, it is apparent that Mother did not timely meet her stated FSP objectives and, as a result, she has failed to comply with those conditions that would lead to reunification with her children. Specifically, Mother's failure to timely comply with the court's repeated orders to obtain a psychological evaluation left unresolved mental health issues that affect her parenting abilities and relationship with her children. Mother is an admitted drug addict who has severe anxiety and panic episodes.

Although Mother does not have cognitive limitations that would affect her ability to parent, her significant emotional limitations place children in an unsafe parenting environment. Accordingly, we find that the court's decision to terminate Mother's parental rights under sections 2511(a)(5) and (8) is supported by the evidence.[3] In re A.R., supra.

With regard to Mother's claim that counsel was not afforded the opportunity to present a closing argument to the trial judge, we find this issue meritless as well. Here, the trial judge chose to not hear closing arguments from any of the parties involved in the termination proceedings. In In Interest of Del Signore, 375 A.2d 802 (Pa. Super. 1977), our Court noted that the constitutional rights in termination proceedings are derived from the due process clause of fourteenth amendment of U.S. Constitution, not the sixth amendment. Due process requires that before parental rights can be terminated the state must support its allegations by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745 (1982). After ten days of hearings, the trial judge acted well within his discretion in determining that he had heard sufficient evidence in order to make a reasoned decision based upon relevant law. We can discern no prejudice suffered by Mother in not permitting counsel to present a closing argument where she was afforded the procedural due process safeguards attendant to such hearings. In Del Signore, supra.

Mother next asserts that the trial court erred by not permitting her to present the testimony of Jeanette Redmond at her termination hearing. Mother raised this issue in her Pa.R.A.P. 1925(b) statement filed with the trial court in 2009. However, it does not appear that either the trial court or this Court has addressed the merits of the issue. In our Court's decision in October 2010, we did not mention the issue regarding whether the trial court properly denied Mother's request to offer Redmond's testimony; our decision only specifically addressed the propriety of the trial court's exclusion of testimony from Mother's experts, Doctors Loving and Samuel.

Mother sought to offer the testimony of Redmond, a psychotherapist and social worker, to show that M.I. had been sexually abused in the foster home and remained at risk in the home. The trial court excluded her testimony as irrelevant because Redmond did not personally observe the foster parent and child interact in the foster home and her testimony would have been hearsay. M.I. was not called to testify. We agree that the testimony should have been excluded, but for a different reason.

For purposes of section 2511(a), the focus in terminating parental rights is on the parent, not the foster parent. In Re: Adoption of C.L.G, 956 A.2d 999 (Pa. Super. 2008). Therefore, any testimony regarding M.I.'s relationship with his foster parent is irrelevant when making a termination decision under section 2511(a).[4]

With regard to Mother's final claim, we find that it too is meritless. Based upon the number of remand orders and resultant trial court opinions filed in this matter, we conclude that the trial judge has exercised his own independent judgment in coming to the ultimate decision to terminate Mother's parental rights. As we noted, Judge Dougherty has been limited in his first-hand exposure to much termination testimony, having been assigned to the case more than one-and-a-half years after DHS filed its termination petition. However, we are confident that his decision is supported by the record evidence and that he has exercised his independent judgment in coming to that decision.

Order affirmed.

COLVILLE, J., concurs in the result.

Judgment Entered.


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