Adoption of N.M.T., Appeal of: M.G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF N.M.T. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: M.G. :
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:
:
:
: No. 1353 WDA 2019
Appeal from the Order Entered August 5, 2019
In the Court of Common Pleas of Fayette County Orphans’ Court at
No(s): 46 Adopt 2017
BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED JULY 07, 2020
M.G. (“Mother”) appeals from the August 5, 2019 order denying her
petition for the involuntary termination of the parental rights of M.T. (“Father”)
with respect to their seven-year-old son, N.M.T. (“Child”), born in April of
2012, pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), and
(b). Upon careful review, we affirm.
Since 2017, the Honorable Steve P. Leskinen has presided over two
parallel actions involving Child: a child custody matter filed by Father on May
23, 2017, and the subject involuntary termination matter filed by Mother on
June 22, 2017. The orphans’ court initially denied Mother’s petition by order
dated December 29, 2017 (“prior order”), which Mother timely appealed. This
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* Retired Senior Judge assigned to the Superior Court.
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Court vacated the prior order due to the orphans’ court’s legal error in failing
to appoint counsel to represent Child’s legal interests during the termination
proceeding that occurred on October 23, 2017 (“prior proceeding”).1 See In
re Adoption of N.M.T., 200 A.3d 585, 157 WDA 2018 (Pa. Super. filed
October 18, 2018) (unpublished memorandum). We remanded the case for
the court to appoint counsel to represent Child’s legal and best
interests. Further, we directed newly appointed counsel to review the prior
termination proceedings and notify the orphans’ court whether new
proceedings were required. See id.
On remand, the orphans’ court appointed counsel to represent Child’s
legal interests and a guardian ad litem (“GAL”) to represent his best
interests. A new termination hearing occurred on May 20, 2019 (“new
proceeding”). Child’s counsel advocated for the termination of Father’s
parental rights. In its statement in lieu of an opinion, the orphans’ court
stated that the GAL “did not recommend a finding that termination was in
[C]hild’s ‘best interests.’”2 Statement, 11/5/19, at 4.
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1 Pursuant to 23 Pa.C.S. § 2313(a), a child who is the subject of a contested
involuntary termination proceeding has a statutory right to counsel who
discerns and advocates for the child’s legal interests, defined by our Supreme
Court as a child’s preferred outcome. In re T.S., 192 A.3d 1080, 1082 (Pa.
2018) (citing In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)).
2 Neither Child’s counsel nor the GAL filed a brief in this appeal. Rather, they
filed separate letters stating that they “rely on and defer to” the opinion of the
orphans’ court.
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In the August 5, 2019 order, the orphans’ court denied Mother’s petition
because it found “no real evidence that the termination of parental rights
would be in the ‘best interests’” of Child. Order, 8/5/19. In addition, the
orphans’ court found, “Mother has continuously engaged in a suggestive and
vindictive effort to alienate [C]hild from his Father, and that such bad behavior
should not be, and will not be, rewarded.” Id. The orphans’ court then stated,
“In all other respects, the [c]ourt’s earlier findings remain unchanged.” Id.
The orphans’ court set forth the following findings from the prior
proceeding as follows:3
2. Father has had no contact with [C]hild since August of 2012,
but Mother deliberately excluded Father from contact with [C]hild,
and Father was unable to secure legal counsel that he could afford.
3. Father should have done more than he did to maintain contact
before formally filing for custody in May of 2017, but a
combination of ignorance and poverty prevented him from
pursuing a role in [C]hild’s life for the entire four and one-half year
period where no contact took place.
4. In a direct response to Father filing for custody in May of 2017,
Mother filed the within termination petition in June of 2017. . . .
5. At the time of filing, Mother was neither engaged to, nor
married to[,] the proposed adoptive father. Instead, the
engagement and marriage were directly triggered by the [c]ourt’s
remarks that it could not be in [C]hild’s best interests to terminate
parental rights where there was no legally qualified adoptive
father currently seeking to adopt.
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3 The following witnesses testified during the prior proceeding: Mother; J.T.,
Mother’s husband; Father; and Tony Schrim, the court-appointed reunification
counselor from the custody matter.
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6. The proposed adoptive father, [J.T.], married Mother on
September 21, 2017. . . . [They] got engaged during the
pendency of these proceedings sometime in July of 2017. Mother
is currently pregnant with his biological child.
7. [J.T.] is qualified to serve as a father figure, and is a perfectly
nice gentleman, but he simply has not been in the position as
stepfather long enough to bond with [C]hild to the point it is
necessary to exclude the biological father.
8. The [c]ourt finds as a fact, however, that [C]hild has not
accepted [J.T.] as his father, and hasn’t had enough time to
generate a permanent bond with him. In so finding, the [c]ourt
accepts the testimony of Tony Schrim, wherein [C]hild asserted
only that his maternal grandfather has been “I guess” my
father. In counseling sessions, [Child] expressed a desire to meet
his biological father. Schrim further opined that [Child] is more
reserved than a typical child his age, but that is not a negative for
reuniting with Father. He also suggested that [Child] will be
“quick to attach” to one or both, but it will depend on how he is
treated by and interacts with both. Schrim specifically noted that
[Child] did enjoy activities with [J.T.], but did not refer to him as
“Dad.”
9. The [c]ourt concludes that there have been periods of time
exceeding six months preceding the filing of the custody case and
the within termination proceeding where [Father] has failed to
perform parental duties, or that he evidenced a settled purpose of
relinquishing parental claim. Father’s inaction, or delayed action,
in this regard could qualify as grounds for termination under §
2511(a)(1), but only if such termination was in the best interests
of [C]hild.
10. The [c]ourt finds that the grounds set forth in § 2511(a)(2)
have not been established. . . . Father appears to be perfectly
capable of remedying his past failures to directly provide care for
[C]hild.
11. [C]hild is not firmly bonded with Father or with the proposed
adoptive father. Neither man has been an integral part of [C]hild’s
life for long enough to create a permanent bond. Going forward,
both men appear capable of making direct contributions to the
well-being of [C]hild.
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12. [C]hild has the potential to have a permanently bonded
parental relationship with both Father and the proposed adoptive
father, but it hasn’t occurred yet. At this point, the statute does
not empower this [c]ourt to terminate Father’s parental rights
because [C]hild’s relationship with the proposed adoptive father
could possibly or even or even could probably become a solid
parental bond.
Orphans’ Court Opinion, 12/29/17, at ¶¶ 2-12. Therefore, the orphans’ court
found that terminating Father’s parental rights was not in the best interests
of Child pursuant to 23 Pa.C.S. § 2511(b). See id. at ¶ 13.
By way of further background, on June 22, 2017, the same date that
Mother filed the termination petition, the orphans’ court issued an order in the
custody matter appointing Tony Schrim, program director at Counseling
Connections, to provide reunification counseling for Father and Child
(“reunification order”). N.T., 10/23/17, at 69. At the time of the prior
proceeding, Mr. Schrim had conducted twelve sessions with Father, six
sessions with Mother, and an unspecified number of sessions with Child, but
Father and Child had not yet met. Id. at 70-72. Mr. Schrim testified that
Child “has some socialization issues and separation anxiety.” Id. at
71. Despite that, he testified that Child “readily engaged in conversation” with
him during private sessions. Id. at 72. Mr. Schrim testified that Child told
him, “I don’t have a dad. I guess my grandfather is my dad.” Id. at 73. Mr.
Schrim testified that at the end of Child’s last session three weeks before the
prior proceeding, Child was ready to be introduced to Father. Id. at
75. Finally, Mr. Schrim testified that Mother had been generally cooperative
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with the reunification counseling at the time of the prior proceeding, but her
“primary objection seemed to be meeting with [Father] or having [Child] meet
[Father]. And whenever these topics have been brought up, there is usually
some kind of disagreement or disconnect between [Mother and me].” Id. at
76.
While Mother’s appeal was pending from the prior order, she filed in the
orphans’ court a motion to stay the reunification order. An evidentiary hearing
occurred on April 6, 2018, when Child was nearly six years old and in
kindergarten, during which Mother presented the testimony of Scott Tracy,
Ph.D., whom she retained in the custody matter to perform a biopsychosocial
evaluation of Child. Mr. Shrim also testified at the April hearing. Following
the evidentiary hearing, the orphans’ court denied Mother’s motion to stay the
reunification order.
By the time of the May 20, 2019 hearing, six visits had occurred between
Father and Child, who was then seven years old. The visits were supervised
by Phyllis Jin, Esquire, who was court-appointed in the custody case. The
visits occurred on April 3, 2019, May 1, 2019, May 4, 2019, May 8, 2019, May
15, 2019, and May 18, 2019. All of the visits lasted for two hours except for
the sixth visit, which lasted for four hours. Ms. Jin provided written reports
from each visit, wherein she quoted Child’s statements to Father as well as
described Child’s behavior. We set forth her testimony most relevant to the
six visits, as follows.
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The first supervised visit occurred at an arcade game facility. Ms. Jin
testified that Father asked Child if he wanted something to eat, but Child
refused to look at Father, did not want Father to talk to him, did not want
Father to watch him play video games, and actively avoided Father by moving
to another area if Father approached him. N.T., 5/20/19, at 99-100. Ms. Jin
testified as follows with respect to the second or third air hockey game she
played with Child, at his request, after she won the first game against him.
And we were playing back and forth and he was killing me by the
second and third game. He was really playing hard into the
game. And he, at one point, he said, he was at the table facing
[Father], my back was toward [Father]. [Child] asked me . . .
how he was doing, and I said you are doing great, you are killing
me here. You know thinking he is referring to the game. . . . And
[Child] came around the table and he slammed down the little
handle that you push the puck with, and he said am I doing
good? I said you are doing great. You are killing me. He said I
don’t want to do great. And I said do you want me to win? I will
be happy to win this. He said I don’t mean air hockey. I said
what are you talking about? Are you talking about this visit? And
he said yes, am I doing great? And I said well it is not going as
good as this game, so why don’t you just scoot around the table
and we will finish the game. . . .
Id. at 101-102.
Ms. Jin testified that the second visit occurred at her office because Child
had fractured his right femur since the first visit, and he needed to use a
wheelchair during his recovery. N.T., 5/20/19, at 104. She testified that
although Father tried to engage Child in conversations about his leg, baseball,
or if he used crutches, Child did not want to speak with Father. Moreover,
Child repeatedly stated that Father is not his dad, that he did not like Father,
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that he did not want to talk to Father, and that he did not like Father because
Father left him when he was a baby. Child also remarked several times that
no one told him what to say. Id. at 104-105.
Ms. Jin testified that the third visit occurred in Mother’s home because
Ms. Jin was concerned about transporting Child due to his broken leg. Ms. Jin
testified that Mother and J.T. had agreed not to be present on the premises
during the visit, but they, in fact, remained on the property during the entire
visit. N.T., 5/20/19, at 107-109. Ms. Jin testified that Mother told Child, “I
am not going anywhere. If you need me, I will be here.” Id. at 108.
Ms. Jin described the visit as follows.
Q. Now, during this visit, did [Child] make any statements similar
to what he said in the past about [Father] or the visit?
A. Well initially he was upset when he saw [Father] come through
the door. [Father] said hello to [Mother] and he said hi to
[Child]. And [Child] was holding onto [Mother’s] hand. He was
laying on, still on the couch, and he said [, W]hat are you doing
in my house. This is not your house. And [Mother] said if you
need anything, just call and I will come in and so then she
left. But it was the same thing that had occurred in the prior
visits. You know, he would not talk to him. He laid on the couch
and he had either his arm over his eyes [--] [Father] was sitting
to his right [--] or [Child] took the pillow and he tried to cover
himself up.
Q. And again when [Father] asked him why he didn’t like him,
what was [Child]’s response?
A. He said, . . . I don’t like [Father]. [Father] asked him why. He
said, [B]ecause you left me when I was a baby. And [Father]
again said, I am here now and I’m trying to see you. And [Child]
said you are wasting my time.”
Id. at 109-110.
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The fourth visit occurred in Father’s home, and Ms. Jin testified “actually
it was probably the best visit as far as atmosphere goes. It is a fun
place. There is a little boy there who is six years old. There [are] a lot of
toys. . . .”4 N.T., 5/20/19, at 114. Ms. Jin testified that Child frequently
repeated the same phrases as in the prior visits. Id. at 112. Further, Ms. Jin
testified that although Father pointed out that Child’s picture was on the wall
of his home, Child called Father a liar and refused to look at the pictures.
When Father told Child he loved him, Child responded that Father does not
love him, that Father is a liar, and that Father had his chance to be Child’s
dad, but did not want to be his dad. Id. at 112-113 (emphasis added).
Ms. Jin testified that Father picked Child up for the fifth visit, which again
occurred at Father’s home. N.T., 5/20/19, at 114. She testified that the visit
was similar to all of the others. Ms. Jin explained that Child made a new
remark to Father, as follows:
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4 Father testified in the prior proceeding that he resided with his fiancée, J.B.,
and her then nearly five-year-old biological son, whom he legally adopted after
the natural father voluntarily relinquished his parental rights. N.T., 10/23/17,
at 43. As best we can discern, Father adopted him sometime between 2015,
and the time he filed the custody complaint in May of 2017. Father explained
that, in 2015, he retained the law firm representing him in the termination
and custody matters, and he began making payments to the firm at that time
in an effort to file the custody action concerning Child. Id. at 54-55. In
addition, Father testified that the same firm represented him in the adoption
proceeding. On cross-examination, Father testified that he adopted J.B.’s son
before initiating Child’s custody action because the natural father of the little
boy “was signing over his rights and I had to be there. So financially . . . we
had to make a hard decision on which one came first, unfortunately.” Id. at
55.
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Well, on every visit, he says I don’t want to be here. I hate my
dad. You are not my dad. I hate you. Those kind of statements
are made numerous times throughout the entire visit. . . . And
as [Father] continued to try and speak with [Child], [Child] said I
hate you and then [Father] asked him, you know, what would you
like to do? What can I do? He always asks him that. What can I
do to make this better? And [Child] yelled[, Y]ou’re not my
dad. Why are you causing trouble, making my mom bring me
here with a broken leg. If I break my leg again, my mom will go
to jail. You left me when I was a baby. I don’t have a stepdad.
I mean this is how he says things. I mean [Child] doesn’t say
them in complete sentences or . . . he just blurts out little
phrases. [Father] repeatedly said to him, I love you . . . I have
tried for the last two to three years to see you. I am not trying to
hurt you or anyone. [Child] said, [I]t has been more than three
years. You left me when I was a baby. You are just causing
trouble.
Id. at 116-117 (emphasis added).
The sixth visit also occurred at Father’s house. Ms. Jin testified that the
custody exchange with Mother, the maternal grandmother, Father, and J.B.
occurred at a gas station. During that custody exchange, when Mother and
maternal grandmother were getting Child out of the car, Child was saying, “I
don’t want to go. I don’t want to get out.” N.T. 5/20/19, at 118. Ms. Jin
testified that the maternal grandmother “was behind [Child], trying to help
him across the seat, and she said to him, I know you don’t want to go, [Child],
but nobody cares about you.” Id. at 119. In addition, Ms. Jin responded on
direct examination, in part:
Q. Incidentally, at these exchanges, what is [Mother’s] behavior
like at the exchanges?
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A. She is not happy to be there. And she expresses that quite
frequently. This is ridiculous. She has to get the wheelchair
out and put together and she [is] upset that she is there. …
You know she is upset. [S]he is not happy to be there.
Q. Does she . . . make these comments in front of [Child]?
A. Sometimes. Not all the time, but sometimes, yes.
Id. at 119.
Lastly, Ms. Jin testified that, during the sixth visit, Child stated to Father,
“I hate you. Why do I have to come here on a Saturday? You are wasting
my day off.” N.T. 5/20/19, at 122. She continued, “I thought that was kind
of an odd remark so I kinda joked with [Child,] and I said are you employed
that this is your off day. But he didn’t respond to that.” Id. Ms. Jin testified
as follows regarding Father’s response to Child:
[Father] replied I want to see you and visit with you. [Child] said,
you don’t care about me. You only care about the other boy. You
weren’t there for my birthday or Christmas and then he yelled,
you weren’t there. [Father] said, [Child], I did try for so long. I
know it is hard for you to understand. [Child] yelled, I don’t want
to be here. No matter how many times you make me come here,
I won’t love you. [Father] replied, I love you, [Child]. [Child]
interrupted and yelled, stop lying. You are lying. And then
[Father] said I do love you.
Id.
In addition, Mother presented the testimony of Child’s maternal uncle,
Child’s maternal grandmother, and Child’s maternal grandfather. Father
presented the testimony of J.B., his fiancée, and Ms. Jin. Mother called Dr.
Scott Tracy, a psychiatrist hired by Mother to evaluate and counsel Child, on
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rebuttal from Ms. Jin’s testimony. Finally, the orphans’ court incorporated all
of the testimony from the prior proceeding.5
Following the May hearing, by order dated and docketed August 5, 2019,
the orphans’ court denied Mother’s involuntary termination petition pursuant
to 23 Pa.C.S. § 2511(b). Order, 8/5/19. On September 4, 2019, Mother
timely filed a notice of appeal and a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans’ court
filed a statement in lieu of a Rule 1925(a) opinion on November 5,
2019. Statement, 11/5/19, at 4.
On appeal, Mother presents the following issues for our review, which
we have re-ordered for ease of disposition:
I. Whether the [orphans’] [c]ourt erred and abused its discretion
in failing to conclude that [Mother] met her burden of proof in
establishing grounds for termination of [Father’s] parental
rights pursuant to 23 Pa.C.S.A. [§] 2511(a)(1) and/or 23
Pa.C.S.A. [§] 2511(a)(2)?
II. Whether the [orphans’] [c]ourt erred and abused its discretion
in concluding that a combination of [F]ather’s ignorance and
poverty prevented him in pursuing a role in [Child’s] life for the
four and a half year period where no contact took place?
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5 Dr. Tracy testified during the May proceeding and Child’s counsel also
presented his testimony from the April 6, 2018 custody hearing. Although the
testimony from the custody hearing was incorporated by the orphans’ court
and is partially contained in the reproduced record, Mother failed to include a
copy of the same in the certified record; thus, we are unable to review it. We
note that it is Mother’s responsibility to ensure that the certified record
contains all items necessary to review her claims. Commonwealth v.
Tucker, 143 A.3d 955, 963 (Pa. Super. 2016).
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III. Whether the [orphans’] [c]ourt erred in qualifying Tony Schrim,
an unlicensed therapist, as an expert witness, and failing to
disregard any testimony proffered by him?
IV. Whether the [orphans’] [c]ourt erred and abused its discretion
in failing to adopt the expert testimony of Dr. Scott Tracy?
V. Whether the [orphans’] [c]ourt erred and abused its discretion
in failing to conclude that the developmental, physical and
emotional needs and welfare of [Child] warrant a termination
of [Father’s] parental rights pursuant to 23 Pa.C.S.A. [§]
2511(b)?
VI. Whether the [orphans’] [c]ourt erred and abused its discretion
in finding that there is no real evidence that the termination of
parental rights would be in the best interests of [C]hild?
VII. Whether the [orphans’] [c]ourt erred and abused its discretion
in concluding there was no legally qualified adoptive father
currently seeking to adopt [Child] in the within matter?[6]
VIII. Whether the [orphans’] [c]ourt erred and abused its discretion
in concluding that [Child] has not accepted the proposed
adoptive father as his father and that he was not bonded with
the proposed adoptive father to the point necessary to exclude
the biological father?[7]
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[6]This issue relates to the orphans’ court’s finding in the prior order that
Mother’s engagement and marriage to J.T. was “directly triggered by the
[c]ourt’s remarks that it could not be in [C]hild’s best interest to terminate
parental rights where there was no legally qualified adoptive father currently
seeking to adopt.” Orphans’ Court Opinion, 12/29/17, at ¶ 5; see also 23
Pa.C.S. §§ 2901, 2902, 2711. Because there is no dispute in this appeal that
J.T., as Child’s legal stepfather, is qualified to adopt Child if Father’s parental
rights were terminated, we need not review this issue.
[7]Likewise, this issue relates to the orphans’ court’s finding in the prior order
that a bond did not then exist between Child and JT. Mr. Schrim’s testimony,
set forth above, supports the orphans’ court’s finding in that regard. However,
by the time of the new proceeding, there was no dispute that a bond had
developed between Child and J.T.
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IX. Whether the [orphans’] [c]ourt erred and abused its discretion
in failing to consider and/or adopt the testimony of [Mother]
and the proposed adoptive father in regards to the best interest
and welfare of [Child], in regard to the bond that [Child] shared
with the proposed adoptive father for over a year and in that
[Child] considers and calls the proposed adoptive father dad?
X. Whether the [orphans’] [c]ourt erred and abused its discretion
in concluding that [Mother] has continuously engaged in a
suggestive and vindictive effort to alienate [Child] from
[Father]?
Mother’s Brief at 4-6.
We apply the following standard of review:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
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., 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., [613] Pa. [371],
34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575 Pa. 647, 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.
As we discussed in R.J.T., there are clear reasons for applying an
abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an opposite
result, as is often the case in dependency and termination cases,
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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, 650 A.2d 1064, 1066
(Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which 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. One major aspect of the needs and welfare
analysis concerns the nature and status of the emotional bond
between parent and child, with close attention paid to the effect
on the child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the following provisions are relevant:
(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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(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
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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.
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(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. § 2511(a)(1), (2), (b).
Mother’s first and second issues on appeal asserts that the orphans’
court abused its discretion in determining that she did not satisfy her burden
of proof under Section 2511(a)(1) and/or (2). Mother’s Brief at 24. With
respect to Section 2511(a)(1), “the moving party must produce clear and
convincing evidence of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to perform parental
duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation
omitted). We have explained,
[T]he trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory
provision. The court must examine the individual circumstances
of each case and consider all explanations offered by the parent
facing termination of his or her parental rights, to determine if the
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evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted). The
court must then consider “the parent’s explanation for his or her conduct” and
“the post-abandonment contact between parent and child” before moving on
to analyze Section 2511(b). In re M.X.G., 933 A.2d 647 (Pa. 2007)(per
curiam) (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.
1998)).
Our Supreme Court has explained that parental duty “is best understood
in relation to the needs of a child.” In re Burns, 379 A.2d 535, 540 (Pa.
1977).
A child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely passive
interest in the development of the child. Thus, this Court has held
that the parental obligation is a positive duty which requires
affirmative performance. This affirmative duty encompasses
more than a financial obligation; it requires continuing interest in
the child and a genuine effort to maintain communication and
association with the child. Because a child needs more than a
benefactor, parental duty requires that a parent ‘exert himself to
take and maintain a place of importance in the child’s life.’
Id. (citations omitted).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development of
the child.” In re B., N.M., 856 A.2d at 855 (quoting In re C.M.S., 832 A.2d
457, 462 (Pa. Super. 2003)). Rather, “Parental duty requires that the parent
act affirmatively with good faith interest and effort, and not yield to every
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problem, in order to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances.” Id. (citation omitted).
Contrary to Mother’s assertion, we conclude that the orphans’ court
indeed determined that Mother met her burden under Section 2511(a)(1). As
the orphans’ court stated in its opinion,
The court concludes that there have been periods of time
exceeding six months preceding the filing of the custody case and
the within termination proceeding where [Father] has failed to
perform parental duties, or that he evidenced a settled purpose of
relinquishing parental claim. Father’s inaction, or delayed action,
in this regard could qualify as grounds for termination under §
2511(a)(1)… .
Orphans’ Court Opinion, 12/19/17, at ¶9.
There is no dispute that prior to the supervised visits that began in April
of 2019, Father last saw Child in the fall of 2012. N.T., 10/23/17, at 46-
50. Father testified on direct examination that he resided with Mother in the
home of Child’s maternal grandparents until Child was three or four months
old. Id. at 46. He testified that he chose to move out because he was “just
totally made a fool of in that house [by Mother and the maternal
grandmother]. And I had nothing to do other than get out, delete myself from
that situation.” Id. at 47.
Thereafter, Father met with Child and Mother outside of the home
approximately three times, and then “it started to fade out with the visitation.”
N.T., 10/12/17, at 48. Father explained, “After I moved out, nothing was
asked of me. I was trying to get visitation, something settled outside of the
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[c]ourts and nothing of the sort was happening until Christmas time. When
Christmas [of 2012] rolled around[,] I did have a lot of Christmas presents for
him[,] and I was unable to see him.” Id. at 50. Father continued to respond:
Q. Did you ask to see him?
A. Yes, I did.
Q. And who did you ask?
A. I asked [Mother].
Q. And what was the response you got?
A. Something about her being sick, not being able to make it. I
could not come see him. And I asked if she could at least come
to my parents’ house so I could give him the gifts that she could
take to him. And that was out of the question. And then nothing.
Id. Father testified with respect to why he waited so long to file a custody
complaint, as follows.
Q. Can you tell us why you haven’t done anything up until May
23rd of [2017], as far as enforcing your right to see [Child]?
A. At that time, I was struggling. And I regret this to the day I
die. I have a lot of time to make up with him. But at that time,
financially I knew I was going to have to go through this type of
situation, to where there was no way that I could have an attorney
and all that, have Child Support on me. And I wanted to work, I
worked my way up the ladder. I went into . . . as nothing[,] and
I am an Assistant Manager now making good money. My
motivation was [Child] the whole time.
Id. at 51.
We discern no abuse of discretion by the orphans’ court in concluding
that Father’s failure to maintain any association with Child for four and one-
half years prior to filing the custody action warrants the termination of his
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parental rights pursuant to Section 2511(a)(1). See In re B., N.M., 856 A.2d
at 855 (“[T]he trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. . . . Parental duty
requires that the parent act affirmatively with good faith interest and effort,
and not yield to every problem, in order to maintain the parent-child
relationship to the best of his or her ability, even in difficult
circumstances.”) (citations omitted).8 Although statutory factors of (a)(1)
were met, the orphans’ court concluded that termination of Father’s parental
rights would not be in the best interests of Child, as require by 23 Pa.C.S. §
2511(b).
Regarding Section 2511(a)(2), this Court has explained that the moving
party must produce clear and convincing evidence of the following elements
to terminate parental rights:
(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.
____________________________________________
8 Because we conclude that Father’s parental inaction for four and one-half
years supports the orphans’ court’s finding regarding Section 2511(a)(1), we
need not consider Mother’s second issue, wherein she asserts that the
orphans’ court abused its discretion in finding that Father’s “ignorance and
poverty prevented him from pursuing a role in [C]hild’s life for the entire four
and one-half year period where no contact took place.” Mother’s Brief at
4. This finding is not relevant in light of the orphans’ court’s ultimate
determination. See id. at ¶ 9.
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See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).
In the instant case, the record supports the orphans’ court’s conclusion that
Mother did not meet her evidentiary burden under Section 2511(a)(2) because
“Father appears to be perfectly capable of remedying his past failures to
directly provide care for [C]hild.” Orphans’ Court Opinion, 12/29/17, at ¶
10. Indeed, Father initiated a custody action on May 23, 2017. Likewise,
during the prior proceeding, he testified:
Q. Are you able to provide for [Child] now?
A. Absolutely, yes.
Q. [W]e have stipulated that there is a child support issue
pending.
A. Yes.
Q. And you are ready, willing and able to support [Child]?
A. 100%.
N.T., 10/23/17, at 51. As such, Mother did not prove that Father had not
remedied the conditions that led Child to be without Father’s parental care.
Mother’s first issue fails.
Mother’s remaining issues challenge the orphans’ court’s conclusion that
Mother did not meet her burden of proof with respect to Section
2511(b). Mother’s Brief at 4-6. That section provides:
(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,
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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. § 2511(b).
This Court has stated:
The focus in terminating parental rights under section 2511(a) is
on the parent, but the focus turns to the children under section
2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008) (en banc). Under section 2511(b), we examine
whether termination of parental rights would best serve the
developmental, physical, and emotional needs and welfare of the
child. In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super.
2005). “Intangibles such as love, comfort, security, and stability
are involved in the inquiry into the needs and welfare of the child.”
Id. at 1287 (citation omitted).
In the Interest of M.T., 101 A.3d 1163, 1181 (Pa. Super. 2014) (en
banc). As part of the needs-and-welfare analysis, the orphans’ court “must
also discern the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that bond.” In re
C.M.S., 884 A.2d at 1287 (citation omitted). However, “[i]n cases where
there is no evidence of any bond between the parent and child, it is reasonable
to infer that no bond exists. The extent of any bond analysis, therefore,
necessarily depends on the circumstances of the particular case.” In re
K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).
Here, there is no dispute that a bond does not exist between Father and
Child. However, the orphans’ court determined that Mother has alienated
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Child from Father since the prior proceedings, which had prevented any
bonding. The orphans’ court found, “Mother’s cold and arrogant behavior is
psychological child abuse. Any time that [C]hild can spend in a more relaxed
and kind environment, such as that available at Father’s home, would be
beneficial to [C]hild.” Statement, 11/5/19, at 4. As such, the orphans’ court
concluded that terminating Father’s parental rights was not in Child’s best
interest.
The orphans’ court’s conclusion is based on credibility findings in favor
of Father and against Mother. In addition, the orphans’ court made credibility
findings in favor of Mr. Schrim and against Dr. Tracy. The orphans’ court
stated, in part:
Mother is completely biased and self-serving, and she deviated
from the truth whenever she thought it might aid her. . . . Father
has demonstrated nothing short of complete sincerity and
unbelievable patience throughout these difficult and prolonged
proceedings.
With respect to the two witnesses qualified as experts, this [c]ourt
did find the testimony of Tony Schrim to be more credible and
persuasive than the testimony of Dr. Scott Tracy, despite the
latter’s superior curriculum vitae and other professional
qualifications. In that regard, Dr. Tracy was financially rewarded
by Mother, and it was clear that she expected value for her
money. . . . On the other hand, Mr. Schrim received a relatively
modest payment for his services, and the court was impressed
with his sincerity and the common-sense logic of his opinions. In
that regard, the evidence is clear that [Child] did not begin calling
the proposed adoptive father “dad” until after Schrim testified that
[Child] considered his grandfather to be his “father,” at which
point Mother clearly demanded compliance from [Child] to support
the narrative she wanted the [c]ourt to believe.
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Statement, 11/5/19, at 2-3 (emphasis in original). Given the above
testimony and evidence, the orphans’ court did not abuse its discretion in
concluding that termination of Father’s parental rights was not in Child’s best
interest.
Turning to Mother’s next issue on appeal, she contends that the orphans’
court erred in qualifying Mr. Schrim in the prior proceeding as an expert in the
field of family counseling, bonding, and reunification. Mother’s Brief at
42. Mother argues that the orphans’ court erred because (1) Mr. Schrim was
precluded from testifying to conduct of Father that occurred prior to the filing
of the involuntary termination petition and (2) Mr. Schrim was not licensed in
Pennsylvania. We review this issue for an abuse of discretion. See In re
C.M.T., 861 A.2d 348, 355 (Pa. Super. 2004) (internal quotations and
citations omitted) (stating, “The decision to admit or to exclude evidence,
including expert testimony, lies within the sound discretion of the trial
court. Generally, we review a trial court’s evidentiary rulings for abuse of
discretion[.]”).
Pennsylvania Rule of Evidence 702 governs the admissibility of expert
testimony. The rule provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed
by the average layperson;
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(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a
fact in issue; and
(c) the expert’s methodology is generally
accepted in the relevant field.
Pa.R.E. 702. Our Supreme Court has made clear, “[T]he standard for
qualification of an expert witness is a liberal one. The test to be applied when
qualifying an expert witness is whether the witness has any reasonable
pretension to specialized knowledge on the subject under
investigation.” Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa. 1995)
(emphasis in original).
During the prior proceeding, Mother’s counsel objected to the orphans’
court permitting the testimony of Mr. Schrim, stating, “I don’t believe that he
can produce any testimony whatsoever with respect to [Father’s] conduct
prior to the filing of this Petition that would lead to grounds for
termination.”9 N.T., 10/23/17, at 65. The orphans’ court denied Mother’s
objection because Mr. Schrim was appointed as a reunification counselor in
the custody case, which Father initiated before Mother filed the involuntary
____________________________________________
9 The orphans’ court inferred that Mother was relying on Section 2511(b),
which provides, in part, “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(b).
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termination petition. See N.T., 10/23/17, at 65. We discern no abuse of
discretion.
Mother’s claim that the orphans’ court abused its discretion in permitting
the testimony of Mr. Schrim because he was not licensed in Pennsylvania is
waived due to her failure to lodge an objection in this regard during the prior
proceeding. Thompson v. Thompson, 963 A.2d 474, 475-476 (Pa. Super.
2008) (“In order to preserve an issue for appellate review, a party must make
a timely and specific objection at the appropriate stage of the proceedings
before the trial court. Failure to timely object to a basic and fundamental
error will result in waiver of that issue.”) (citation omitted).
Even if not waived, we would conclude that Mother’s claim is without
merit, based on Mr. Schrim’s testimony during voir dire by Mother’s counsel,
as follows:
Q. Mr. Schrim, are you licensed as a counselor in Pennsylvania?
A. No.
Q. Have you ever been licensed as a counselor in Pennsylvania?
A. No.
Q. And with respect to licensing, is it a requirement of the
Commonwealth of Pennsylvania in order for someone to be
licensed in order to provide family counseling?
A. No.
Q. What are the state requirements?
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A. There are no real state requirements. The requirements that
exist are primarily those identified by insurance companies for the
purposes of billing.
N.T., 10/23/17, at 68.10 As such, even if not waived, Mother’s claim would
fail for being disingenuous.
In her next issue, Mother argues that the orphans’ court abused its
discretion in failing to “adopt the testimony” of Dr. Tracy “due to the
substantial amount of evidence which supports Dr. Tracy’s
conclusions.” Mother’s Brief at 47. In reviewing this issue, we are mindful
that the orphans’ court was required to give Dr. Tracy’s testimony “due
consideration,” but it “was not obligated to delegate its decision-making
responsibility” to Dr. Tracy. K.W.B. v. E.A.B., 698 A.2d 609, 613 (Pa. Super.
1997) (citing Rinehimer v. Rinehimer, 485 A.2d 1166, 1169 (1984) (“While
it need not accept their conclusions, ‘the lower court was obligated to consider
the testimony of the two experts[.]’”).
Upon thorough review, we deem Dr. Tracy’s conclusions equivocal with
respect to Section 2511(b), discussed infra. To the extent that Dr. Tracy’s
conclusions supported terminating Father’s parental rights, the orphans’ court
considered his testimony along with all of the evidence in this case. We
____________________________________________
10 During the May proceeding, Dr. Tracy confirmed that in Pennsylvania “there
is no law that prevents people from participating in the practice of counseling
or psychotherapy” without a license. N.T., 5/20/19, at 81-82. Dr. Tracy
testified that a license is required “to give a Behavioral Health Diagnosis.” Id.
at 82.
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discern no abuse of discretion by the orphans’ court in refusing to adopt Dr.
Tracy’s conclusions, in light of the totality of the evidence.
Mother’s remaining issues are all related, thus we review them
together. In short, Mother argues that Child “is an extremely shy child, [and]
has attachment issues and separation anxiety. To now disrupt [Child]’s life[,]
in light of his personality and in light of the love and stability that he receives
in his bonded relationship with [J.T.] . . . [,] is certainly contrary to [C]hild’s
best interest.” Mother’s Brief at 36. The record does not support Mother’s
argument.
In the May proceeding, Dr. Tracy testified on direct examination by
Child’s counsel that following the April 6, 2018 custody hearing, he conducted
weekly psychotherapy sessions for Child discussed above. He testified that
he treated Child for the following conditions:
Number one was separation anxiety[,] which was his initial
diagnosis. The second was impulsivity. [Child] is an active little
boy. And the third thing that we were looking at was the
possibility of a developmental delay[,] so what that essentially
means is that there were parts of [Child] that were somewhat
behind or somewhat immature for what you would expect to see
[in] a child [of his age].
N.T., 5/20/19, at 73. Dr. Tracy acknowledged that there has been “some
improvement over the course of the past year with regard to” Child’s
separation anxiety. Id. at 74. For instance, Dr. Tracy testified Child “seemed
to be doing well in school. He has had some success with athletic activities
within [his] peer group.” Id. Significantly, Dr. Tracy opined that the cause
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of Child’s separation anxiety “clearly was a result of the ongoing litigation
between [Mother] and [Father].” Id. at 75. Likewise, Dr. Tracy testified that
with respect to a possible developmental delay, there has been “[n]o
regression. Maybe some slight improvement and that is something, you
know[,] that what I would recommend is that we continue to monitor as the
child progresses from first into second grade.” Id. at 75.
On cross-examination by Mother’s counsel, Dr. Tracy testified:
Q. [H]ave you observed [Child’s] reunification with [Father]
having any negative impact on [C]hild?
A. Well[,] so I think the negative impact, if I am answering your
question, is just the angst that he has and the resistance that he
has for the meetings. I mean he is functioning in school. You
know, he is successful on an athletic team. So I don’t think that
it is like causing a secondary depression or, we don’t see any
evidence of post-traumatic stress. . . .
Id. at 92-93. Further, because of improvement in Child’s separation anxiety,
Dr. Tracy testified that he decreased the frequency of Child’s sessions during
the last year from weekly, to biweekly, to monthly. Id. at 72, 89-90.
With respect to the effect on Child of terminating Father’s parental
rights, Dr. Tracy testified on direct examination, as follows.
Q. Can you offer an opinion as to the effect a proposed termination
of [Father]’s parental rights would have on [Child]?
A. So[,] I don’t think that [Child] would have any deleterious
effects which means I don’t know that he would suffer any
psychological consequences. . . . In my interactions with [Child]
in the year, I don’t know that he processes [Father] as being a
significant figure in his life. I do think with the reunification
counseling though that [Child] now clearly understands that
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[Father] is his biological father. I don’t know that he has much
meaning in that.
...
Q. If the parental rights of [Father] were not terminated, if the
request was denied, could that result in positive influence in
[Child]’s life?
A. So I will give you an answer that I usually tell clients. Today,
my crystal ball has broke [sic]. And so it is very difficult to predict,
you know, what’s going to happen in the future. I think it could
be positive, you know. And I mentioned, . . . the timing of all this
is the most difficult. And so what [Child] is entering now [is] the
stage of concrete operations. And that’s where the world for him
is very rigid. . . . And so this was a twist for him that he wasn’t
prepared for. I think that’s worsened because I do believe we are
dealing with a child that has a slight developmental delay, and so
if this . . . event would have occurred when [Child] was a little
older, I don’t think he would have the amount of conflict and
turmoil. If it would have happened younger, before concrete
operations, I don’t think he would have it. But you are at a
formidable stage right now where the child is resisting this
reunification.
...
Q. And is that out of the ordinary given his developmental delays,
his separation anxiety, his impulsivity?
A. No, with all of the things, that’s not out of the ordinary. Now,
at the age of 12 or 13, he may want to seek his father, right. And
so again][,] that’s where my crystal ball, if it would work, that
would be typically, what you would see is the child then enters
formal operations, which is right at the onset of adolescence, and
all that changes and he may have a desire to see his biological
father. Most kids [d]o.
N.T., 5/20/19, at 76-78. Based on this equivocal testimony, we discern no
abuse of discretion by the orphans’ court in concluding that terminating
Father’s parental rights was contrary to Child’s best interests.
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Moreover, Dr. Tracy’s testimony ultimately supported the orphans’
court’s conclusion that Mother has alienated Child from Father since the prior
proceeding. On cross-examination by Father’s counsel, Dr. Tracy
acknowledged that, in August of 2018, which was approximately four months
after the orphans’ court denied Mother’s request to stay the reunification
order, he recommended that reunification counseling be transferred from Mr.
Schrim to Kate Vozar. N.T., 5/20/19, at 85-86. He explained that he
“frequently [makes referrals] to her.” Id. at 86. Dr. Tracy stated that Child’s
reunification counseling was transferred to Ms. Vozar, and that he received a
“verbal report” from her. Id. He testified:
Q. Do you know that Kate Vozar discharged them from
reunification counseling?
A. So[,] what I remember from the verbal report was, I didn’t
know discharge, but that she, I guess she had found evidence of
parental alienation, so that’s the context that I remember.
Q. So you were informed that she suspected parental alienation?
A. Yes.
Id. at 86. Dr. Tracy did not opine whether parental alienation existed in this
case. However, on cross-examination by Father’s counsel, he testified:
Q. You will agree with me that if parental alienation is happening,
that can affect the anxiety of the child. Correct?
A. Yes.
Q. When it comes to reunification.
A. Yes.
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Q. And[,] in fact[,] it is a huge factor with regard to anxiety with
a child attempting to reunify with another parent?
A. Right. And so that’s what fuels, if you remember me talking
about adverse childhood experiences, so it is that parental
alienation where one parent is talking about another, arguing
about another in front of the child, that is at the root of the
adverse childhood experience.
Q. [I]f I can give you a hypothetical, if a child is being exchanged
for a visit with the parent he is being reunified with, and during
that exchange, the child says I don’t want to go. He is not my
dad. And the mom says to the child, I know you don’t want to
go. These people don’t care. Is that something that could affect
him?
A. Yes.
Id. at 90-91.
During the new proceeding, Dr. Tracy testified on rebuttal to Ms. Jin’s
testimony. On rebuttal, Dr. Tracy testified that he reviewed Ms. Jin’s reports
and opined that they revealed “resistance behaviors” by Child and separation
anxiety, “especially in that first visit or two when he repeatedly wanted to call
[Mother].” N.T., 5/20/19, at 131. Dr. Tracy continued on inquiry by Mother’s
counsel:
Q. And with respect to the statements of [Child] that are
contained in the report, do you have any concerns after viewing
those reports containing the statements that there is alienation
going on?
A. So as it was described and as I read it in there, I didn’t see
overt signs of alienation. And so you know what that means is I
didn’t observe it myself. . . . And so . . . there was one sentence
in there that seemed unusual for a child that age to say, but other
than that, it doesn’t mean that he didn’t say that, and it was only
one time. So alienation, parental alienation is not a one-time
event. It is a process. And so you would have to see those kinds
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of statements time and time again, serially, with multiple
observations, and so with the three that I saw there I don’t
appreciate parental alienation from what I saw. . . .
Id. at 131-132. Similarly, on cross-examination by Father’s counsel, Dr.
Tracy confirmed his opinion that there would have to be a continued pattern
of behavior, more than just one observation, for parental alienation to exist.
Id. at 135.
On cross-examination by Father’s counsel, Dr. Tracy was presented with
the February 28, 2019 report of Kate Vozar, the former reunification
counselor, and asked to acknowledge its parallel or similarity to Ms. Jin’s
report from the first supervised visit. Dr. Tracy acknowledged that both
reports indicated that Child did not want to “do great” in his visit with
Father. See N.T., 5/20/19, at 133-135. Thereafter, on inquiry by the
orphans’ court with respect to Ms. Jin’s reports, Dr. Tracy testified:
Q. When a child is seven years old and they come up with a
statement like I don’t like you because you left me while I was a
baby. How would he know that someone left while he was a baby?
A. That’s one of the statements that was somewhat puzzling
because at that developmental level, it would be unlikely that a
child would say that particular statement if he hadn’t heard it… .
Q. And assuming he wasn’t asked specifically, you know, who told
you to say that, isn’t it odd that he would say nobody told me
what to say?
A. That is an odd response for that age, yes.
Q. And again the following week, you left me when I was a baby,
you are wasting my time. I mean wasting my time seems like an
odd concept to me for a seven year old.
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A. Correct. At this developmental level, yes.
Q. On the visit on the 8th, as it is documented, everything you
say is a lie. You had your chance to be my dad. That’s not him
talking, is it?
A. The lie part might be. The second clause in that doesn’t….
Q. He heard somebody say that?
A. Correct, yea. That’s what I think.
Q. And then on the 15th, why would you make my mother bring
me here with a broken leg. If I break it again, my mom will go to
jail. He didn’t think of that himself, did he?
A. No, I am not sure what would prompt him to say that my
mother would go to jail. I am sure he probably heard family
members talking about hey this is terrible you have got to go with
a broken leg. The second part, again the second part of that
clause is difficult for me to comment on.
Q. Now on May 18th, Ms. Jin documented that mom said in his
hearing at the custody exchange I know you don’t want to go
[Child], but nobody cares about you and this is ridiculous.[11] In
his hearing. Is that not something that would be an alienating
comment designed to sabotage the visit?
A. If it was said directly to the child, yes.
Q. Well if it was said when he can hear it. I mean in his hearing,
does it make a difference if it is addressed to him or if he just
hears it?
A. No, I think in, a lot of times children hear things from other
rooms, and so I have no way to answer the context of that. But
that would be something that he would have heard from adults
whether it was directed to him or whether it was secondary or
indirect, yes. That’s an adult[-]oriented comment.
____________________________________________
11 Ms. Jin’s testimony was that the maternal grandmother, not Mother,
remarked to Child during a custody exchange when she “was behind [Child],
trying to help him across the seat, and she said to him, I know you don’t want
to go, [Child], but nobody cares about you.” N.T., 5/20/19, at 119.
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Q. And on that visit, which was May 18th, [Mother] says as quoted
by Ms. Jin, but nobody cares about you. And later on in the visit,
child says to Father, you don’t care about me. That’s exactly what
his mom said so I mean he didn’t think of that himself, he had
help.
A. Correct, right, whether i[t] was direct or indirect.
Q. I mean young children resist things that they think that they
can be successful at resisting[,] and[,] to the extent that he
continues to resist, it is because he believes he will be met with
success if he continues to resist. He feels persistence will be
rewarded.
A. Correct. In behaviorism, we call that secondary gain.
Id. at 136-139.
Based on the testimony of Dr. Tracy and Ms. Jin, we discern no abuse
of discretion by the orphans’ court in determining that Mother alienated Child
from Father. Further, there is no evidence that Child’s visits with Father have
increased his separation anxiety. Mr. Schrim’s testimony supports the
orphans’ court’s finding that “[Child] is more reserved than a typical child his
age, but that is not a negative for reuniting with Father.” Orphans’ Court
Opinion, 12/29/17, at ¶ 8; see also N.T., 10/23/17, at 77, 80. In addition,
the record supports the orphans’ court’s credibility determinations in favor of
Mr. Schrim and against Mother with respect to whether Child was calling J.T.
“dad” at the time of the prior proceeding, when J.T. was his legal stepfather
for one month. See Orphans’ Court Opinion, 12/29/17, at ¶ 8; see also N.T.,
10/23/17, at 73-75, 86.
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In sum, the record supports the finding of the orphans’ court that Child
had been ready to reunify with Father at Mr. Schrim’s last session with Child
three weeks before the prior proceeding, and that Mother subsequently
alienated Child from Father during the pendency of this matter. We discern
no abuse of discretion by the orphans’ court in concluding that terminating
Father’s parental rights under the totality of the circumstances in this
protracted case does not serve Child’s developmental, physical, and emotional
well-being under Section 2511(b).12 Accordingly, we affirm the order denying
Mother’s petition for the involuntary termination of Father’s parental rights.
Order affirmed.
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12 [A]ppellate courts are not equipped to make the fact-specific
determinations on a cold record, where the trial judges are
observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the child and
parents. Therefore, even 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.
Adoption of S.P., 47 A.3d at 826-827.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/07/2020
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