Child M., In re

• Decision Date: 24 July 1996
• Citation: 681 A.2d 793,452 Pa.Super. 230
• Parties: In re CHILD M., Minor Child. Appeal of Debbie D. SMITH, Natural Mother.
• Court: Pennsylvania Superior Court

Page 793

681 A.2d 793

452 Pa.Super. 230

In re CHILD M., Minor Child Appeal of Debbie D. SMITH, Natural Mother.

Superior Court of Pennsylvania.

Submitted April 29, 1996.

Filed July 24, 1996.

Nicole J. Spring, Public Defender, Williamsport, for appellant.

Gerald W. Seevers, Williamsport, for Child M., appellee.

Charles F. Greevy, III, Williamsport, for Lycoming County, Children & Youth Services, participating party.

Before CIRILLO, President Judge Emeritus, BECK, J. and CERCONE, President Judge Emeritus.

CERCONE, President Judge Emeritus:

This is an appeal from a final decree which involuntarily terminated the parental rights of appellant, the natural mother, to her minor child. We affirm.

Lycoming County Children and Youth Agency (the Agency) instituted the action underlying this appeal pursuant to section 2511 of the Adoption Act, 23 Pa.C.S.A. § 2101 et seq. The Agency alleged that appellant physically abused her young son, called "Child M." in the trial court filings and proceedings. The Agency also averred that appellant sexually abused the boy and permitted and encouraged others to do so. As a consequence of this alleged ill-treatment, the Agency contended that Child M. suffered severe physical and emotional harm and that his best interests necessitated the termination of appellant's parental rights so that he could be adopted. ¹ Appellant denied that she ever abused or neglected her son.

Child M. was born on January 1, 1987 and is now nine years old. The Agency initially became involved with the family in December of 1987 because it received complaints concerning appellant's neglect of her son. In June of 1989, Child M. was hospitalized for abdominal pain and rectal bleeding after ingesting metal fibers which became lodged in his intestinal tract. Five days later, the natural mother was arrested and charged with the murder of Child M.'s younger brother, an infant known as "Child N." While appellant was incarcerated, Child M.'s maternal grandparents assumed custody. However, the Agency opposed that placement because the grandparents had an extensive history of Agency involvement. Nevertheless, the lower court approved the placement of Child M. with his maternal grandparents, subject to protective oversight by the Agency.

Appellant was ultimately convicted of involuntary manslaughter with respect to the death of Child N. While she was held in the State Correctional Institution at Muncy, the Agency closed Child M.'s case. Appellant was released in December of 1991. The Agency became involved again four months later, in early April of 1992, when it learned that appellant and her paramour were exercising unsupervised custody over Child M. and that someone had taken the boy to a hospital emergency room with injuries sustained after he purportedly fell down a stairway. The Honorable Thomas C. Raup, President Judge of Lycoming County, conducted a hearing on the matter on May 11, 1992 at which all parties were represented by counsel. President Judge Raup did not adjudicate Child M. to be a dependent child, but did enter a consent order remanding the boy to the custody of his maternal grandparents, subject to protective supervision by the Agency. The order provided that all visitation between appellant and Child M. would be supervised by the maternal grandparents.

Four months later, on September 11, 1992, the Agency filed a request for emergency custody alleging that during an investigation of the maternal grandparents for the physical abuse of one of their other grandchildren, the Agency learned that the grandparents were also assaulting Child M. The trial court granted the request and placed Child M. in emergency foster care. The trial court subsequently conducted a hearing on the case and approved long-term foster care placement for Child M. upon appellant's stipulation. At this time, the Agency's goal was to return the boy to his mother. On December 3, 1992, a placement case review resulted in confirmation of the child's dependent status. The court directed the Agency to see that a psychologist monitored the progress of gradually increasing contact between appellant and Child M.

During the supervised visits, the Agency's case workers noted that appellant and her son engaged in interactions of a sexual nature. For example, appellant "nuzzled" the boy on his genitals and fondled him through his pockets. When Child M. responded by touching his mother's breasts, she laughed and giggled at him. In April of 1993, the Agency received a report that Child M. was the victim of sexual abuse by appellant and her paramour, Larry Probst. According to the report, the sexual abuse consisted of mutual touching of the genitals, oral sex and anal sex. The court appointed a guardian ad litem who filed a petition to terminate visitation between appellant and her son. After conducting a full hearing in the matter, the lower court terminated mother's right to visitation pending the outcome of the sexual abuse investigation.

Two months later, on June 9, 1993, the Agency filed a request to change the goal in the case from "return to the mother" to adoption. The Agency subsequently filed a petition to terminate parental rights. Mother requested an independent psychological evaluation for the child which both the Agency and the boy's guardian ad litem opposed. During the considerable delay that ensued, the court conducted regular placement case reviews. Eventually, the lower court approved mother's petition for the appointment of a clinical psychologist to serve as her expert. Because of mother's indigence, the court also approved payment of the costs for the evaluation. The trial court held a series of hearings on the termination petition between July of 1993 and February of 1995.

On June 14, 1995, President Judge Raup granted the Agency's request and entered a decree nisi involuntarily terminating appellant's parental rights. Appellant filed exceptions, which the trial court denied. President Judge Raup entered a final decree of termination on September 14, 1995. A timely notice of appeal followed. Appellant presents two issues for our consideration: (1) did the trial court err by admitting hearsay statements of the child into evidence and by refusing to require the child to testify; and (2) did the trial court err in denying appellant's request for her psychologist to conduct a joint evaluation session with both appellant and Child M. present?

As an initial matter, we note that Pennsylvania courts place a different emphasis on a decision to involuntarily terminate the rights of a natural parent than on a petition to change the goal of the family service plan from reunification to adoption. In a change of goal proceeding, the focal point is the child and whether the Agency's goal will serve that child's best interests. In Interest of M.B., 449 Pa.Super. 507, 513, 674 A.2d 702, 705 (1996). By way of contrast, termination proceedings center on the parents, and whether their conduct justifies termination of parental rights. Id. This case implicates President Judge Raup's termination order, not his decision to change the Agency's goal from reunification to adoption.

Pennsylvania law is clear that the trial court's decision on whether to terminate parental rights is governed by the statutory requirements of 23 Pa.C.S. § 2511. In Interest of M.B., 449 Pa.Super. at 512, 674 A.2d at 705; Commonwealth v. Arnold, 445 Pa.Super. 384, 389, 665 A.2d 836, 838 (1995). Appellate review of a decree which involuntarily terminates parental rights is limited to a determination of whether the Orphans' Court decision is supported by competent evidence. In re Adoption of L.D.S., 445 Pa.Super. 393, 394, 665 A.2d 840, 841 (1995), appeal denied, 544 Pa. 610, 674 A.2d 1073 (1996).

A party seeking to terminate parental rights bears the burden of proving by clear and convincing evidence the statutory grounds for doing so. In re E.M., 533 Pa. 115, 121, 620 A.2d 481, 484 (1993); In re Baby Boy S., 420 Pa.Super. 37, 44, 615 A.2d 1355, 1358 (1992). "The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989). See also: In re Shives, 363 Pa.Super. 225, 228, 525 A.2d 801, 802 (1987); Lookabill v. Moreland, 336 Pa.Super. 520, 523, 485 A.2d 1204, 1205 (1984).

In re Bowman, 436 Pa.Super. 10, 12, 647 A.2d 217, 218 (1994), aff'd by an equally divided court, 542 Pa. 268, 666 A.2d 274 (1995). The Superior Court must examine the record closely in such cases to ascertain whether the evidence supports termination. Id. at 14-15, 647 A.2d at 219. We will reverse if the evidence fails to support the Orphans' Court decree and/or when the hearing court has failed to give adequate consideration to the effect of such a decree upon the welfare of the child or children. Id. at 15, 647 A.2d at 219.

In this case, the Agency brought its petition for involuntary termination pursuant to section 2511(a)(2) and (5) of the Adoption Act. Therefore, this case must be evaluated under the following terms:

Grounds for involuntary termination

(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....

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the...