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In re Adoption of R.K.Y.

Superior Court of Pennsylvania

July 23, 2013

IN THE MATTER OF THE ADOPTION OF: R.K.Y. APPEAL OF: J.R., NATURAL MOTHER IN THE MATTER OF: D.A.B. APPEAL OF: J.R., NATURAL MOTHER IN THE MATTER OF THE ADOPTION OF: J.C.Y. APPEAL OF: J.R., NATURAL MOTHER IN THE MATTER OF THE ADOPTION OF: R.Y.Y. APPEAL OF: J.R., NATURAL MOTHER

Appeal from the Decree January 14, 2013, Court of Common Pleas, Erie County, Orphans' Court at Nos. 45A In Adoption 2012, 45C In Adoption 2012, 45 In Adoption 2012, 45B In Adoption 2012.

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

OPINION

DONOHUE, J.

Appellant, J.R., the natural mother of R.K.Y (D.O.B. 4/14/2005), D.A.B. (D.O.B. 7/31/2001), J.C.Y. (D.O.B. 12/20/2003), and R.Y.Y. (D.O.B. 8/24/2006), appeals from the decrees dated January 14, 2013, terminating her parental rights to all four children. We affirm, although not for the reasons set forth by the trial court.

In May 2011, J.R. reported to police that she had observed bruises on her daughter, R.Y.Y., and that R.Y.Y.'s natural father, T.Y., [1] was responsible. At the urging of the police and a caseworker from the Erie County Office of Children and Youth ("OCY"), J.R. obtained a temporary protection from abuse order against T.Y. When J.R. refused to follow through to obtain a permanent protection from abuse order against T.Y., who remained in the home, on June 28, 2011 OCY removed the four children and filed dependency petitions for each of them. In the dependency petitions, OCY alleged that J.R., inter alia, had mental health issues, drank alcohol excessively, had one of her children take nude pictures of her, allowed the children to have 40 unexcused absences from school, and had engaged in domestic violence with T.Y. in the presence of the children. N.T., 12/14/2012, OCY Exhibit 1.

J.R. stipulated to a finding of dependency for the children, although she denied that she drank excessively, had herself acted violently towards her children, or had ever asked one of them to take nude pictures of her. On July 7, 2011, the trial court adjudicated the children dependent. The trial court conducted dispositional and permanency hearings on July 27, 2011, December 9, 2011, July 10, 2012, and July 18, 2012. Citing the parents' lack of progress in meeting their obligations for reunification, after the July 18, 2012 permanency hearing, the trial court changed the goal for each child to adoption. On July 26, 2012, OCY filed petitions for termination of parental rights for each of the four children pursuant to 23 Pa. C.S.A. § 2511(a)(1), (5), (7), (8), and (b).

At the evidentiary hearing on December 14, 2012, the children did not testify. J.R. and T.Y. testified on their own behalves. OCY called seven witnesses, including Sharon Slubowski ("Slubowski"), an OCY caseworker, and Nora Kreider ("Kreider"), Alicia Twilla ("Twilla"), and Audrey Smith ("Smith") from Parkside Psychological Associates ("Parkside"). OCY retained Parkside to conduct psycho-sexual evaluations of J.R. and the four children. N.T., 12/14/2012, at 11. Kreider interviewed J.R. and Twilla interviewed the four children as well as their foster (pre-adoptive) mother. Id. at 12, 56. During the interviews, the children made numerous accusations of physical and sexual abuse by their parents:

• R.Y.Y. reported sexual abuse by T.Y. and claimed that she had observed her mother having sex with both T.Y. and another man (on separate occasions). She also stated that J.R. hit her when she told her about T.Y.'s sexual abuse. Id. at 111-20 (OCY Exhibit 17).
• J.C.Y. said that J.R. had rubbed his penis and on another occasion had touched his buttocks when she was naked. He indicated that both T.Y. and one of his mother's other sexual partners had touched his private area, and claimed that when he told his mother about these events she responded that she did not care. He reported seeing his mother having sex with T.Y. and other men, and watching D.A.B. take nude pictures of her. Id. at 66-106 (OCY Exhibit 15).
• R.K.Y. claimed that J.R. had repeatedly punched and spanked her, and that one of J.R.'s sexual partners had touched her in her private area. She also indicated that she observed her parents having sex, and that she had been forced to watch pornography. Id. at 70-111 (OCY Exhibit 16).
• D.A.B. claimed that he had taken nude photographs of his mother. He also indicated that he had been forced to watch pornography. Id. at 58-97 (OCY Exhibit 14).

In contrast, during her interviews, J.R. agreed that T.Y. had, over her objections and attempts to prevent it, exposed the children to pornography, and that the children had witnessed T.Y. engage in domestic violence towards her. Id. at 16-36 (OCY Exhibit 12). She told Kreider that D.A.B. had taken pictures of her, but never in the nude. Id. at 16. She denied the remainder of the children's accusations, including that they had ever witnessed her having sex with anyone. She denied having any sexual partners other than T.Y. Id. at 16-36 (OCY Exhibit 12).

Smith did not meet with or interview either J.R. or the children. Instead, she reviewed reports of the interviews conducted by Kreider and Twilla in order to co-author (along with Kreider and Twilla) the psycho-sexual evaluations of J.R. (OCY Exhibit 12) and the four children (OCY Exhibits 14-17). Testifying as an expert in child psychology, Smith opined that J.R.'s mental health and drug and alcohol issues limited her ability to make good parenting decisions, and that her failure/refusal to acknowledge the sexual abuse reported by the children left her unable to parent the children safely. Id. at 49-50.

Relying on Smith's opinion, the trial court granted OCY's petitions and terminated J.R.'s parental rights to all four children. In its written memorandum opinion in support of its decrees, the trial court concluded that the children had suffered physical and sexual abuse "at the hands of their mother and the father, T.Y." Trial Court Memorandum Opinion, 1/14/2013, at 5. The trial court faulted J.R. for taking the position that the children were not being truthful with their allegations of abuse, ruling that she "cannot remediate that which [she does] not acknowledge." Id. at 5-7. Finding that J.R. could not provide the children with a safe environment, and that, in contrast, the pre-adoptive foster parents offered "permanency, stability and attention to their educational, psychological and physical needs in a calm environment, " the trial court terminated J.R.'s parental rights. Id. at 11.

This timely appeal followed, in which J.R. raises two issues for our consideration and determination:

1. The Orphans' Court committed an abuse of discretion and/or error of law when it indicated in the January 1[4], 2013 decrees that it also terminated J.R.'s rights pursuant to subsections 2511(a)(3), (a)(4), (a)(7), and (a)(9), as [OCY] did not identify these grounds in the petition, did not proceed on these grounds at trial, and did not introduce sufficient evidence to establish these grounds for termination.
2. Did the Orphans' Court commit an abuse of discretion and/or error of law when it relied upon hearsay statements of the children as substantive evidence that J.R. abused or neglected the children, exposed the children to inappropriate situations, and/or failed to protect the children, where the children did not testify at trial, the alleged statements/disclosures contained in the psycho-sexual reports are inadmissible as substantive evidence, and any other alleged statements/disclosures contained within the exhibits were objected to as hearsay[?]

J.R.'s Brief at 13.

The standards governing our review of an order terminating parental rights are well 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. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. 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. 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.
The burden is upon the petitioning person or agency to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. Moreover, we have explained:
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.'
The trial court is free to make all credibility determinations, and may believe all, part, or none of the evidence presented. If the findings of the trial court are supported by competent evidence, we will affirm ...

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