In Re: W.A.D, Jr. Appeal of: W.A.D., Sr. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: W.A.D., JR. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.A.D., SR.
No. 863 MDA 2014
Appeal from the Decree April 16, 2014
In the Court of Common Pleas of Centre County
Orphans' Court at No(s): 3935 A 2013
IN RE: J.M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.A.D., SR.
No. 864 MDA 2014
Appeal from the Decree April 16, 2014
In the Court of Common Pleas of Centre County
Orphans' Court at No(s): 3935 A 2013
BEFORE: BENDER, P.J.E., SHOGAN, J. and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 25, 2014
W.A.D., Sr., (“Father”) appeals from the decrees entered on April 16,
2014, that granted the petitions filed by Centre County Children and Youth
Services (CYS), and involuntarily terminated Father’s parental rights to
W.A.D., Jr. (born in July of 2008) and J.M.D. (born in January of 2010) (the
“Children”). We affirm.
The family first became known to CYS after W.A.D., Jr., was born, due
to his medical needs. After J.M.D. was born, CYS further assessed the
situation, concluding that there were parenting deficiencies in that physical
discipline caused bruising on the older child. Custody monitoring and
parental education services were implemented. At some point in 2010,
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Father and the Children’s biological mother (“Mother”) separated;1 Father
became homeless and was unemployed for a time. Dependency proceedings
took place in February of 2011, and the Children were eventually removed
from Mother’s custody in August of 2011. In July of 2012, CYS filed
petitions requesting a change of the permanency goal from unification to
adoption. Although the court denied the petitions initially, CYS renewed the
goal change petitions, and they were granted on January 30, 2013.2
Prior to the goal change proceedings, in October of 2011, services to
aid in unification were provided to Father and the Children. The goals set for
Father included: “(1) create a stable and healthy living environment for
himself and his [C]hildren; (2) promote the healthy growth and development
of the [C]hildren; and (3) demonstrate emotional stability and positive
healthy choices.” Orphans’ Court Opinion (O.C.O.), 6/13/14, at 7-8. As part
of the process, Father had weekly, two-hour supervised visits with the
Children. Among the issues noted were Father’s inability to adequately
supervise the Children and his obsession with the Children’s Mother, his ex-
wife, who was involved in a relationship with someone else and with whom
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1
Mother filed a protection from abuse petition against Father, which was
granted.
2
Father participated in the dependency hearings, but did not join in the
appeal Mother filed with this Court after the permanency goals were changed
to adoption. See In the Interest of: J.M.D., 83 A.3d 1063 (Pa. Super.
2013) (unpublished memorandum). This Court affirmed the orders changing
the goal to adoption.
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she had a child. Although these two-hour visitations were held initially at
Father’s home,3 the sessions were moved because Father became very
aggressive with the Children. Moreover, Father had problems engaging the
Children in age-appropriate activities. With regard to his sessions with
counselors, Father exhibited aggressive behavior toward the staff, had little
understanding that his efforts to reconcile with Mother violated the
protection from abuse order, and that his inability to complete monthly
income and expense statements made it impossible to assess his financial
stability.
CYS filed the termination petitions on December 16, 2013, and a
hearing was held on April 15, 2014. The court heard testimony from Joni
Hubler, a reunification counselor employed by Family Intervention and Crisis
Services, and Casie Rockey, a CYS a casework supervisor. Father testified
on his own behalf and presented his sister’s testimony in opposition to the
termination petitions. Additionally, the court heard testimony from M.K., the
Children’s foster mother. In its opinion, the orphans’ court concluded that:
While it is clear to this Court [Father] loves both of the minor
[C]hildren, it is also apparent [Father] lacks the capacity to
parent his [C]hildren, including recognizing potential dangers
and keeping them safe. [Father] was informed throughout the
life of the case, as the [C]hildren initially came into care over
supervision concerns, he needed to ensure he was supervising
the [C]hildren adequately at all times. Although [Father]
verbally acknowledged he understood the importance of
____________________________________________
3
At some point Father had obtained housing and a job.
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supervising the [C]hildren, he continues to be unable to
adequately provide supervision.
O.C.O. at 2. In its opinion, the court provided numerous examples of
Father’s inability to keep the Children safe and of Father’s continuing
discussions with the Children about Mother, indicating that they would all
“get back together and be a family[,]” which the court found was confusing
to the Children. Id. at 2-3. These discussions were further complicated
because Father displayed numerous pictures of Mother to the Children.
When counseling was suggested to help Father deal with his feeling about
Mother, he “initially refused because he felt that a counselor would change
his feelings for [Mother] or question his love for her.” Id. at 6. Although
Father eventually agreed to counseling, he stopped attending sessions,
indicating he no longer needed the services of a counselor because the
women he met online provided better counseling. Id.
Examples of the safety issues revolved around Father’s failure to
supervise the Children, “turning his back on the children multiple times to
send text messages[,]” leaving the Children alone in the kitchen while a
sharp knife lay on the table and while the stove was on, and failing to notice
when the Children left the visitation area or left Father’s apartment alone to
go outside. Id. at 2. The court further discussed Father’s aggression and
his statements to the Children that “[CYS] took you away” and “they took
[Christmas, Thanksgiving, and Halloween] away from us.” Id. at 3. The
court also explained Father’s inability “to understand and accept the
placement and role of the foster parents, continually telling the children he
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was their ‘only daddy’ and they should not call anyone else ‘daddy,’ including
their foster father.” Id. at 4. As for Father’s financial responsibilities, the
court noted Father’s problems when his debit card was stolen, and that he
failed to follow Ms. Hubler’s directions to dispute purchases on that card
totaling $2,500.00. Father also had issues with some outstanding electricity
bills, which he had not paid. The court also mentioned Father’s poor
decision-making in connection with his sending $800.00 to a woman he met
online.
The court ended its discussion about the evidence presented and its
conclusions regarding the decision to terminate Father’s parental rights by
stating:
[Father] made no significant or lasting progress toward reaching
the goals set forth by the agency. It is clear to the [c]ourt
[Father] has reached the limit of his parenting abilities and is
unable to make any further improvements. Although the [c]ourt
does not dispute [Father] loves his [C]hildren, their lives should
not be placed on hold indefinitely in the hope [Father] will
someday develop the ability to parent them. Testimony was
presented to this [c]ourt which indicated the [C]hildren are
becoming increasingly confused as to the roles of their foster
parents and [Father] in their lives. Although the [C]hildren love
[Father] and look forward to his visits, his inability to control his
temper and to conceal his animosity toward the agencies when
visiting with the [C]hildren is detrimental to their mental well-
being. Further, [Father’s] inability to properly parent the
[C]hildren and identify and protect them from potential dangers
is detrimental to their welfare. In contrast, the stability,
permanency, and resources offered by the foster parents to the
[C]hildren would best serve the needs and welfare of the
[C]hildren. The foster parents promote the growth and
development of the [C]hildren and the [C]hildren look to them
for guidance and as a significant part of their family unit.
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Id. at 8-9.
Father filed a timely notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). He now raises
the following issues for our review:
I. Did the trial court err by determining that there was sufficient
evidence to support termination of [Father’s] parental rights in
W.A.D. and J.M.D.?
II. Did the trial court err by receiving hearsay evidence in the
form of reports, notes of testimony, and court orders from
dependency proceedings pertaining to W.A.D. and J.M.D.?
III. Did the trial court err by permitting agency witness Joni
Hubler to offer opinion evidence on [Father’s] capacity to parent?
Father’s brief at 4.
The thrust of Father’s first argument is that CYS did not allege or
prove that he abused or neglected the Children. Moreover, Father contends
that CYS did not show that he lacked the capacity or the desire to meet the
Children’s needs. Rather, Father claims that “[t]he record is … devoid of
evidence that [Father] neglected [the Children] or that he lacked the
willingness to assume the role of their father.” Father’s brief at 12. Father
then identifies specific examples of the testimony provided by the witnesses
presented by CYS at the hearing, contending that the evidence presented did
not support a conclusion that he abused, neglected or refused to care for the
Children. Id. at 14. Thus, he claims that his parental rights to the Children
should not have been terminated.
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Our standard of review regarding orders terminating parental rights is
as follows:
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.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted grounds for seeking the termination of parental rights are valid.
Id. at 806. We have previously 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.”
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
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The termination of parental rights is controlled by 23 Pa.C.S. § 2511.
Under this statute, the trial court must engage in a bifurcated process in
which it initially focuses on the conduct of the parent under Section 2511(a).
See In the Interest of B.C., 36 A.3d 601 (Pa. Super. 2012). If the trial
court determines that the parent’s conduct warrants termination under
Section 2511(a), it must then engage in an analysis of the best interests of
the child under Section 2511(b). See id. Additionally, this Court “need only
agree with [the trial court’s] decision as to any one subsection in order to
affirm the termination of parental rights.” In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Herein, we review the decree pursuant to section 2511(a)(2) and (b),
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:
....
(2) 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.
....
(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
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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. § 2511(a)(2), (b).
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect, or refusal;
(2) such incapacity, abuse, neglect, or refusal caused the child to be without
essential parental care, control, or subsistence necessary for his physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect, or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
rights under section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
Father overlooks his failures to successfully complete the objectives
set forth for him so that he could regain custody of the Children. CYS
submitted evidence that for a period extending beyond two years, Father
has not been able to remedy his inability to properly parent the Children,
despite all the reunification efforts CYS employed. Although it appears that
Father has tried his best to meet the reunification skills imparted to him by
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the counselors, he has been unable to master them to the extent that he
progressed beyond the supervised visits held in a controlled environment.
In essence, Father is attacking the credibility and weight determinations
made by the trial court. Unfortunately for Father, we are unable to overturn
the orphans’ court’s decision on that basis. Moreover, our review of the
record reveals that competent evidence supports the court’s conclusion that
Father has exhibited an incapacity to parent his Children over an extensive
period of time. Accordingly, we must reject Father’s first claim that CYS
failed to prove the elements in connection with section 2511(a)(2).
Father’s second issue concerns the acceptance into evidence in this
termination proceeding of the record compiled in the dependency case.
Although Father admits that this practice is standard in Centre County, he
objects to this practice because he claims that these forms of evidence are
all hearsay. He discusses a report authored by Marggie C. Kozak that
“speaks well of [Father’s] capacity to parent[,]” but notes that because Ms.
Kozak never testified and because her report was based on accounts from
others who observed the stated behavior, a problem of double hearsay is
presented by the admission of the reports. Father’s brief at 17-18. Except
for this one particular report, Father does not itemize any other specific
document; rather he objects generally to the introduction of “volumes of
hearsay accounts[,]” which he claims “injects irremediable uncertainty into
the adjudicatory process.” Id. at 18.
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The orphans’ court responded to this issue in its opinion, stating:
[Father] argues the reports, transcripts, and Court Orders
from the dependency proceedings concerning the [C]hildren
were improperly admitted into the record. This Court disagrees.
Although the reports of staff admitted into the record do
contain hearsay, Ms. Hubler and Casie Rockey were qualified to
testify as to the content contained therein. They were each
personally involved with the family throughout the matter, and,
although they may not have observed each and every incident
contained within the reports of their respective agencies, they
reviewed those reports with the staff members who contributed
to them. Each of the incidents was discussed at meetings with
the individuals who observed them in the process of the
agency[’s] reaching its conclusions and making
recommendations based on those reports. Further, the Court
notes for each incident testified to at the hearing, the witness
was actually present for and observed the incidents to which she
testified. Neither Ms. Hubler or Ms. Rockey testified to incidents
for which they were not present. The Court relied on their
testimony when making its determination (along with the rest of
the testimony presented that day), and did not rely on any
statements contained within the reports admitted into the record
which were not substantiated by testimony at the termination
hearing as proof [Father] could not properly parent his
[C]hildren.
O.C.O. at 9. We have no reason to believe that the court impermissibly
relied on hearsay evidence contained in the documents relating to the
dependency proceeding. Moreover, Father acknowledges that the court did
not necessarily rely on these documents. Father’s brief at 16.
Additionally, as noted above, Father’s second argument is a general
attack on the court’s findings and does not identify specific hearsay
statements by the witnesses that the court relied upon in arriving at its
conclusions. See In re Child M., 681 A.2d 793, 799 (Pa. Super. 1996)
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(stating that this Court must be provided “with proper references to specific
places in the certified record at which challenged testimony appears”). We
are further aware that the Pennsylvania Dependency Benchbook
(Administrative Office of Pennsylvania Courts, 2014) (Pa.D.B.) directs that
when a court is deciding a termination petition, it should consider the history
of the dependency proceedings, stating:
It is also helpful to the court to set forth a history of the
placement of the child. This should include a factual summary in
addition to the grounds on which Involuntary Termination has
been based. Including the date of initial referral to the agency,
date of adjudication of dependency, history of placement(s), and
copies of all court orders can assist in building the record for the
Judge’s decision.
Pa.D.B., at § 16.9.3. Lastly, we emphasize that Father had his opportunity
to challenge the dependency action and the goal change to adoption. He
cannot now use this termination proceeding to again litigate the issues
previously decided.
Father’s final issue relates to the testimony provided by Joni Hubler
over Father’s objection. Father contends that because Ms. Hubler was not
qualified as an expert, her “lay opinion on the ultimate issue for the trial
court: whether [Father] was a fit parent[,]” should have been prohibited,
i.e., not admitted. In response to this argument directed at the admission of
Ms. Hubler’s testimony, the trial court stated:
At the hearing, Ms. Hubler was asked questions regarding
the conclusions she reached regarding [Father’s] parenting
abilities, while Ms. Rockey was asked whether it was in the best
interests of the children for [Father’s] rights to be terminated.
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The Court accepted the testimony as indicative of the opinion of
the FICS and CYS agencies that [Father] was unable to parent
his [C]hildren appropriately and his rights should be terminated.
The Court did not accept this testimony as ultimate proof of the
matters, but merely as the opinions of the agencies to be taken
into consideration when making the determination of [Father’s]
parenting abilities and the best interests of the [C]hildren.
Further, the opinions accepted were rationally based on
the witnesses’ perceptions, helpful to determining [Father’s]
parenting ability and the best interests of the [C]hildren, and
were not based on scientific, technical, or other specialized
knowledge. See Pa.R.E. 701. Ms. Hubler testified she was
present at numerous visits and meetings with [Father] where his
inability to properly supervise his [C]hildren placed them at risk
of potential harm. Ms. Hubler also noted [Father’s] inability to
control his temper and inability to refrain from discussing
inappropriate topics with the [C]hildren often caused them to
become upset and confused. Ms. Hubler identified many specific
incidents in which [Father] demonstrated an inability to properly
parent his children.
. . .
Witnesses, whether lay or expert, are permitted to testify
concerning the ultimate issue to be decided by the trier of fact,
provided that admission of the opinion testimony would not
cause confusion or prejudice. See In Interest of Paul S., 380
552 A.2d 288 (Pa. Super. 1988) (superseded by statute on other
grounds as stated in In re: D.P., 972 A.2d 1221(Pa. Super.
2009)). The opinions provided by Ms. Hubler and Ms. Rockey
did not cause confusion or prejudice [Father]. The Court
accepted them as the opinions of the agencies to be taken into
consideration when making the determination of [Father’s]
parenting abilities and the best interests of the [C]hildren. The
Court did not accept them as the sole and final determination of
[Father’s] parenting abilities and the best interests of the
[C]hildren. Rather, these opinions were merely one of the many
things this Court considered when making its determinations.
O.C.O. at 10, 11.
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In addition to the court’s above-quoted statement, we note that
Pennsylvania Rule of Evidence 701 provides that:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701. See In re A.L.D., 797 A.2d 326, 338 (Pa. Super. 2002)
(stating that “Pennsylvania law allows the admission in these proceedings of
a lay witness’ testimony on a party’s parental capability, when that
testimony is based on personal observation”); In re Baby Boy S., 615 A.2d
1355, 1361 (Pa. Super. 1992) (stating that “the admission or exclusion of
evidence is a matter for the trial court to determine, whose decisions in
these matters will not be reversed absent an abuse of discretion, and actual
prejudice”). Accordingly, the court did not abuse its discretion in relying on
the testimony of Ms. Hubler, which we conclude was admissible under
Pa.R.E. 701 and the case law cited above.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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