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[U] In re Relinquishment of A.Y.

Superior Court of Pennsylvania

July 3, 2013

IN RE: RELINQUISHMENT OF: A.Y., A MINOR APPEAL OF: LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES IN RE: RELINQUISHMENT OF K.Y., A MINOR APPEAL OF: LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated January 9, 2013 In the Court of Common Pleas of Lackawanna County Orphans' Court at No(s): A-35-2012, A-36-2012

BEFORE: BOWES, J., OTT, J., and FITZGERALD, J. [*]

MEMORANDUM

OTT, J.

Lackawanna County Children & Youth Services ("CYS") appeals from the orders in the Court of Common Pleas of Lackawanna County granting the motion for demurrer made by counsel for K.Y. ("Father") and joined by counsel for L.Y. ("Mother"), with respect to the petitions filed by CYS to involuntarily terminate the parental rights of Father and Mother pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b). We affirm.

Mother and Father ("the parents") are the natural parents of two female children who are the subjects of this appeal, A.Y., born in June of 2008, and K.Y., born in June of 2009. The children were removed from Mother and Father in February of 2011, [1] due to concerns of domestic violence and drug abuse by the parents.[2] N.T., 6/11/12, at 21-25. The trial court adjudicated the children dependent on March 8, 2011, and ordered the following services: Drug and alcohol and mental health evaluations for Mother and Father, a domestic violence program for Father, and an anger management program for Mother. See Order, 3/8/11.

Thereafter, CYS established Family Service Plan goals ("FSP") for the parents, which included that both Mother and Father participate in a drug and alcohol evaluation, drug and alcohol screens, a mental health evaluation, an anger management program, a domestic violence program, and a diagnostic assessment at CYS. In addition, CYS established an FSP goal for Father requiring him to participate in a psychosexual evaluation due to CYS learning of an indicated report in Northampton County that he had sexually assaulted his minor female cousin. N.T., 6/11/12, at 26, 28.

In August of 2011, Mother and Father relocated to Bethlehem, in Northampton County. N.T., 9/18/12, at 94. Since the time of the children's dependency, Mother and Father became parents of another child, who is not the subject of this appeal. The parents and their third child live with an aunt of the children in Northampton County. Id. at 26-27.

On May 11, 2012, CYS filed petitions for the involuntary termination of Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b). The trial court held a hearing on the petitions on June 11, 2012, July 24, 2012, September 18, 2012, and December 18, 2012. At the conclusion of CYS's case-in-chief on December 18, 2012, Father's counsel made an oral motion for a "demurrer, " which was joined by Mother's counsel, on the basis that CYS failed to satisfy its burden pursuant to section 2511(a)(8). The trial court granted the motion for demurrer on the record in open court, and entered the written orders to this effect on January 9, 2013. CYS filed timely notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte.

On appeal, CYS presents the following issues for our review:

I. Whether the trial court's decision is not in accordance with the evidence or was an error of law or was an abuse of discretion by granting the demurrer sought by parents' counsel?
II. Whether the trial court erred by not issuing findings of fact when the demurrer was granted?

CYS's brief at 5.

In its first issue, CYS argues that the trial court failed to apply the appropriate standard in deciding counsels' request for a demurrer, and that it erred in granting the demurrer. In this case, we apply the standard applicable for deciding a request for a nonsuit, rather than a demurrer.[3] Orphans' Court Rule 11.2 provides as follows:

Rule 11.2 Conduct of a trial
The selection of a jury, the conduct of a trial and motions after trial shall conform to the practice and procedure in jury trials in the local Court of Common Pleas.

Orphans' Court Rule 11.2.[4]

"In actions at law, a nonsuit may be granted at the close of plaintiff's case only when it is clear that plaintiff has presented insufficient evidence to maintain the action. In ruling on a nonsuit, the trial court views the evidence in the light most favorable to plaintiff and gives plaintiff the benefit of all favorable evidence and all reasonable inferences therefrom." In re Estate of LeVin, 615 A.2d 38, 39 (Pa. Super. 1992) (citations omitted); see also In re Estate of Dunlap, 370 A.2d 314 (Pa. 1977) (same).

In termination of parental rights cases, the burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We have stated:

The standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.

In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

Instantly, CYS filed termination petitions pursuant to section 2511(a)(8) and (b) of the Adoption Act, which provide as follows:

(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:
(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.
(b) Other considerations.―The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(8), (b).

"[T]o terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8), the following factors must be demonstrated: (1) the child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa. Super. 2003); 23 Pa.C.S.A. § 2511(a)(8).

"Section 2511(a)(8) sets a 12-month time frame for a parent to remedy the conditions that led to the children's removal by the court." In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the 12-month period has been established, the court must next determine whether the conditions that led to the child's removal continue to exist, despite the reasonable good faith efforts of CYS supplied over a realistic time period. Id. The "relevant inquiry in this regard is whether the conditions that led to removal have been remedied and thus whether reunification of parent and child is imminent at the time of the hearing." In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009). With respect to the "needs and welfare" analysis pertinent to sections 2511(a)(8) and (b), we have observed:

[I]nitially, the focus in terminating parental rights is on the parent, under Section 2511(a), whereas the focus in Section 2511(b) is on the child. However, Section 2511(a)(8) explicitly requires an evaluation of the "needs and welfare of the child" prior to proceeding to Section 2511(b), which focuses on the "developmental, physical and emotional needs and welfare of the child." Thus, the analysis under Section 2511(a)(8)
accounts for the needs of the child in addition to the behavior of the parent. Moreover, only if a court determines that the parent's conduct warrants termination of his or her parental rights, pursuant to Section 2511(a), does a court "engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child." Accordingly, while both Section 2511(a)(8) and Section 2511(b) direct us to evaluate the "needs and welfare of the child, " we are required to resolve the analysis relative to Section 2511(a)(8), prior to addressing the "needs and welfare" of [the child], as proscribed by Section 2511(b); as such, they are distinct in that we must address Section 2511(a) before reaching Section 2511(b).

In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc) (citations omitted).

In addition, section 2511 requires a bifurcated analysis.

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. § 2511).

Instantly, we conclude that the trial court applied the correct standard in deciding counsels' request for a "demurrer", and that it did not err in granting the "demurrer". In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court explained that, although CYS satisfied the first prong of section 2511(a)(8), i.e., the children had been removed from the care of the parents for twelve months or more, it failed to satisfy its burden respecting the remaining prongs. With respect to the third prong of 2511(a)(8), i.e., termination of parental rights would best serve the needs and welfare of the children, the court found that CYS presented "no evidence that terminating Mother's and Father's parental rights would have a positive effect upon the children." Trial Court Opinion, 2/25/13, at 5. Based on our review of the testimonial evidence, we agree.

Jennifer Breig, the family's CYS caseworker from May of 2011 to January of 2012, testified that the parents had supervised visits with the children, and she had no concerns about the appropriateness of the parents with the children. N.T., 7/24/12, at 35-37. She testified that the children run to the parents, and call them "mom and dad." Id. at 36. Likewise, Stacy Vogler-Musil, the CYS caseworker after Ms. Breig through the time of the hearing, testified that the parents displayed a loving interaction with the children during visits. N.T., 9/18/12, at 21-22. She testified, in part, that "the children recognize who their parents are and do love them." Id. at 23. Although Ms. Vogler-Musil testified she believed the children's bond with parents resembled that of an aunt and uncle and not a parental bond, CYS did not present any evidence that terminating Mother's and Father's parental rights would best serve the children's needs and welfare. Because CYS failed to satisfy its burden of proof with respect to the third prong of section 2511(a)(8), we discern no error by the court in concluding that CYS presented insufficient evidence to maintain its action.

In addition, the court found that CYS failed to satisfy its burden with respect to the second prong of section 2511(a)(8), i.e., the conditions that led to the children's placement continue to exist. The court stated,

[T]he evidence clearly shows that the parents are engaged in services, are substantially, if not fully, compliant with the permanency plan and are working hard in order to achieve successful reunification. Statutory grounds do not exist to terminate Mother's and Father's parental rights pursuant to Section 2511(a)(8) since the conditions that led to the minor children's placement, namely domestic violence and alleged drug concerns, have been alleviated.

Trial Court Opinion, 2/25/13, at 5. We agree.

Father's counsel presented the testimony, via telephone, of Mario Caballero, a psychotherapist at Lehigh Valley Community Mental Health ("LVCMH"). Mr. Caballero testified that Father first visited LVCMH's office in Easton, in Northampton County, on two occasions in February of 2012. N.T., 9/18/12, at 139-140. Both Father and Mother began services at LVCMH's office in Bethlehem, in Northampton County, in March of 2012, upon referral by CYS. Id. The record supports the following summary by the trial court of Mr. Caballero's testimony:

Father's mental health counselor at [LVCMH], Mario Caballero, who is also familiar with the status of Mother's treatment, was qualified as an expert in mental health treatment, family counseling, anger management and parenting. Mr. Caballero testified that the parents continue to attend individual and family counseling, have learned to manage their anger effectively, acquired the requisite coping skills and are "working very hard" in order to achieve reunification. He opined that no barriers existed that would prevent the parents from achieving successful reunification with the minor children. As to the concerns of drug abuse, the parents submitted to an evaluation at Lehigh Valley Drug and Alcohol wherein it was determined that they did not meet criteria for treatment.

Trial Court Opinion, 2/25/13, at 3-4.

Mr. Caballero testified that LVCMH referred Father and Mother to Lehigh Valley Drug and Alcohol Intake, and they complied in April of 2012. Id. at 183. The results of the Drug and Alcohol Intake were that the parents were not using drugs and alcohol at the time, and that they did not need drug and alcohol treatment. Id. at 153, 183. In addition, Father and Mother had completed an anger management program through LVCMH, which included the topic of domestic violence. Id. at 144, 179. Mr. Caballero testified that there were no reports of domestic violence with this family during the time that LVCMH has been providing services to them. Id. at 144. Further, Ms. Vogler-Musil testified that, by the time the parents received notice of the filing of the termination petitions, [5] they had started all of the services directed by the court in its adjudication order, i.e., drug and alcohol and mental health evaluations, a domestic violence program, and an anger management program. N.T., 12/18/12, at 24-25, 37. Moreover, the testimonial evidence supports the following summary by the court of the programs the parents had completed by the time of the hearing. "At the time of the termination hearing, the parents had successfully completed anger management, group therapy, domestic violence and parenting classes. Furthermore[, ] the parents submitted to psychiatric evaluations and were fully compliant with all aspects of their mental health treatment plan, including attending all sessions and appointments as scheduled." Trial Court Opinion, 2/25/13, at 3.

In addition, CYS presented no evidence that reunification could not commence immediately. On direct examination, Ms. Vogler-Musil testified that the parents were living with an aunt of the children, and that she had not attempted to verify if the aunt's home would be appropriate for the children. N.T., 9/18/12, at 26-27. Ms. Vogler-Musil testified that, if the court determined that Mother's and Father's parental rights should not be terminated, she "would have to verify the home and make sure that [it is] safe and appropriate for the children. . . ." Id. at 27-28. Based on the foregoing, we conclude CYS did not satisfy its burden with respect to the second prong of section 2511(a)(8) in that it failed to prove by clear and convincing evidence that the conditions which led to the children's placement continue to exist and that reunification between the parents and the children would not be imminent.[6] As such, the trial court did not err in granting counsels' motion for "demurrer".

In its second issue, CYS argues the court erred by failing to provide findings of fact at the time it granted the "demurrer". CYS provides no legal argument or relevant authority to support its assertion. Therefore, this issue is waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that issues are waived if appellate brief fails to provide meaningful discussion with citation to relevant authority); see also Pa.R.A.P. 2119(b).

Lastly, to the extent CYS argues the court abused its discretion in dismissing its termination petitions unrelated to the demurrer, we disagree. We apply an abuse of discretion standard when reviewing a court's determination of a petition for termination of parental rights. In re Adoption of S.P., 47 A.3d 817 (Pa. 2012).

[O]ur standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; R.I.S., [ ___Pa. ___, ___, 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., [ ___ Pa. ___ ], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.
[E]ven where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, [539 Pa. 161, 165, ] 650 A.2d 1064, 1066 (Pa. 1994).

Id. at 826-827.

CYS argues that Mother and Father failed to comply with their FSP goals. Based on the foregoing sustainable findings of the trial court, we reject CYS's argument. Specifically, with respect to CYS's argument that Mother and Father failed to comply with their FSP goals of obtaining a diagnostic assessment at CYS, and Father obtaining a psychosexual evaluation, the trial court explained as follows:

CYS conceded that the parents were fully compliant with [their] permanency plan except for their failure to submit to diagnostic testing at CYS and Father's failure to submit to a psychosexual evaluation. However[, ] the parents did submit to a psychiatric evaluation in the Lehigh Valley area wherein it was recommended that they attend individual, group and family therapy in order to address anger management, parenting skills, family conflict and coping skills to reduce depression and anxiety. This Court finds that requiring the parents to submit to a diagnostic evaluation at CYS is unnecessary due to the thorough mental health and drug/alcohol evaluation performed in Lehigh Valley. It would be unduly burdensome to require the parents, who are nonresidents of Lackawanna County, to submit to diagnostic evaluations at CYS, especially since the parents were successful in obtaining equivalent evaluations that addressed the barriers of reunification. Finally, Father's failure to complete a psychosexual evaluation in a timely manner is irrelevant in determining whether involuntary termination is warranted under Section 2511(a)(8) since alleged concern of inappropriate sexual conduct of Father was not a condition that led to the removal or placement of the minor children.

Trial Court Opinion, 2/25/13, at 4-5. We agree.

With respect to the diagnostic evaluation at CYS, Ms. Vogler-Musil testified that CYS requested the parents complete a diagnostic evaluation at CYS in order to determine what parenting classes they needed. N.T., 9/18/12, at 84-85. Ms. Vogler-Musil acknowledged that the parents completed a parenting program through Pinebrook Services in Northampton County. Id. at 10-11. She testified as follows on cross-examination by Father's counsel:

Q. [D]id you ever say [in her communication with employees of the Pinebrook parenting program] we have in Lackawanna County a diagnostic that will tell you what you have to work on [with the parents]?
A. No..
Q. So Pinebrook was able to provide you that they know what to do when it comes to a parenting program?
A. From my understanding of it, yes.
Q. You're still trying to say that even though a parenting program was completed, we needed Lackawanna County to do a diagnostic?
A. I'm not saying that it's needed, I'm saying it's beneficial to making sure that everything is looked at. Is it needed, no. They completed the parenting program like I requested them which is wonderful, absolutely. But I requested the diagnostic as well.

Id. at 87-88.

Based on the foregoing testimony, we discern no abuse of discretion by the court in concluding that requiring the parents to submit to a diagnostic evaluation at CYS is unnecessary and unduly burdensome. Further, we discern no abuse of discretion by the court in concluding that Father's failure to obtain a psychosexual evaluation is irrelevant for purposes of section 2511(a)(8) since alleged inappropriate sexual conduct by Father was not a condition that led to the removal of the children from the parents' care[7] Accordingly, we affirm the orders of the trial court.

Orders affirmed.

Judgment Entered.


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