In re BLL

• Decision Date: 04 December 2001
• Citation: 2001 PA Super 341,787 A.2d 1007
• Parties: In re In the Interest of B.L.L., Appellee. Appeal of: L.L.S., Natural Mother.
• Court: Pennsylvania Superior Court

787 A.2d 1007

2001 PA Super 341

In re In the Interest of B.L.L., Appellee.

Appeal of: L.L.S., Natural Mother.

Superior Court of Pennsylvania.

Argued October 3, 2001.

Filed December 4, 2001.

Karen Hassinger, Washington, for appellant.

Joyce A. Hatfield-Wise, Washington, for Children and Youth Services of Washington County.

BEFORE: DEL SOLE, P.J., LALLY-GREEN and TAMILIA, JJ.

TAMILIA, J.:

¶ 1 L.L.S. (mother) appeals the April 4, 2001 Order terminating her parental rights with respect to her twelve-year-old daughter, B.L.L.¹

¶ 2 The record reveals that, on September 15, 1997, mother voluntarily placed B.L.L. in the care of Washington County Children and Youth Services (CYS) due to her substance abuse problem and inability to maintain housing. On December 2, 1997, B.L.L. was adjudicated dependent and placed with a foster family. CYS filed a petition for involuntary termination of the natural parents' parental rights pursuant to 23 Pa.C.S.A. § 2511, Grounds for involuntary termination.

¶ 3 Appellant raises the following questions for our review.

I. Did the trial court err in terminating... Mother's parental rights when she had voluntarily placed her child with [CYS] when the child was 8 years old in order for Mother to obtain adequate housing and later for her to complete drug treatment, when Mother has obtained adequate housing and has completed services including drug treatment, especially in light of the close bond between [m]other and child?

II. Did the trial court err in refusing the request to allow the expert witness, Dr. Michael Crabtree, to interview and evaluate Mother and issue an amended report in order to give an unbiased opinion, since Dr. Crabtree had failed to initially meet with or evaluate Mother?

III. Did the trial court err in refusing the request for scheduling an additional hearing to allow the child to testify when she had been present at all prior hearings, anxious to testify, but was absent from the last hearing after being intimidated by [a CYS] caseworker?

(Appellant's brief at 5.)

¶ 4 "`The standard of review in cases involving the termination of parental rights is limited to the determination of whether the orphans' court's decree is supported by competent evidence.'" In re Adoption of J.D.S., 763 A.2d 867, 870 (Pa.Super.2000), quoting In re Julissa O., 746 A.2d 1137, 1139 (Pa.Super.2000)

.

¶ 5 As the party seeking termination, CYS bore the burden of establishing, by clear and convincing evidence, grounds existed for doing so. "`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 hesitation, of the truth of the precise facts in issue.'" In re Adoption of C.A.W., 453 Pa.Super. 277, 683 A.2d 911, 914 (1996), appeal denied, 548 Pa. 631, 694 A.2d 619 (1997), quoting Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989)

.

¶ 6 In pertinent part, 23 Pa.C.S.A. § 2511 provides:

(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.

* * * * * *

(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.

¶ 7 Above all else in determining whether parental rights should be terminated, adequate consideration must be given to the needs and welfare of the child. In re Child M., 452 Pa.Super. 230, 681 A.2d 793 (1996), appeal denied, 546 Pa. 674, 686 A.2d 1307 (1996).

¶ 8 Mother argues that, "[a]t best, the evidence shows that [she] is struggling to overcome problems that lead her to seek voluntary placement of her daughter in the first instance. While it may be that Mother has not complied to the full satisfaction of [CYS], the more appropriate response from [CYS] would be to further assist Mother in achieving compliance, rather than terminating [her] parental rights." (Mother's brief at 12.)

¶ 9 Upon review of the Findings of Fact and Conclusions of Law adopted by the trial court, we find ample support for our conclusion the trial court weighed heavily the needs and welfare of B.L.L. in determining termination of appellant's parental rights was appropriate.

¶ 10 The record reveals that prior to being placed with CYS, B.L.L. was doing poorly in school, missing school for significant periods of time and exhibiting behavioral problems. During this time, mother was doing drugs and unable to care for the child. When an aunt was no longer able to care for B.L.L., mother placed her with CYS. Thereafter, mother attended only 20 of 38 scheduled visits with her. When mother failed to appear for the other 18 visits, B.L.L. became clearly upset.

¶ 11 Mother did not follow through with court-ordered services, has suffered from depression, anxiety and panic attacks, and refused to submit the name of her boyfriend to CYS so that a child care clearance check could be performed. Moreover, mother has used cocaine, heroin and ecstasy and has a long and continuing drug problem, which she refuses to acknowledge. Upon evaluation of mother's case, the psychological expert testified within a high degree of psychological certainty that mother would not be able to recover quickly enough to be an effective parent. The record further reveals that, while in foster care, B.L.L. has improved both academically and behaviorally. Upon independent review of the record, we find CYS satisfied its burden of proof and the trial court's decision was based upon sufficient and competent evidence of record.

¶ 12 To the extent mother challenges the expert opinion rendered by psychologist, Dr. Michael Crabtree, we find no abuse of discretion with respect to the admission of his testimony.

`[T]he admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law.'

Detterline v. D'Ambrosio's Dodge, Inc., 763 A.2d 935, 938 (Pa.Super.2000), quoting Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 707 (Pa.Super.2000),

appeal denied, 785 A.2d 90, 2001 Pa.LEXIS 41 (Pa.2001).

¶ 13 It is clear that the evidence presented was founded upon a thorough and detailed evaluation of mother's records. The evidence established that mother has been a drug addict since the age of 10, refuses to acknowledge that she is a drug addict, has been treated in 10 different facilities, recently relapsed and does not possess the mental stability to be an effective parent.

¶ 14 Finally, we find no error on behalf of the trial court in refusing to schedule an additional hearing to allow B.L.L. to testify. The record unequivocally establishes that the child's needs and welfare are best served by termination of mother's parental rights. B.L.L. was represented by a guardian ad litem who presented her own expert evidence with respect to the child's needs and welfare. Moreover, we find no support for mother's argument that B.L.L. was intimidated by CYS caseworkers or otherwise discouraged from testifying.

¶ 15 While appellant raises an interesting point concerning the failure of the court to continue the hearing and permit the child to testify, she does not point or reference any statutory or judicial finding which requires the court in a termination proceeding to hear from the child. In the only Pennsylvania case which addresses this issue, In re Child M., supra, this Court noted that appellant did not cite any appellate decision which entitled a natural parent to force an abused or neglected child to testify in an involuntary termination proceeding. Id. at 798. In that case, this Court specifically refused to create such a requirement. We do likewise, but believe amplification and discussion of this issue will be of aid to the bar and the court in future cases which may involve this issue.

¶ 16 At the outset, we look to proceedings which involve custody changes or analogous consideration vis a vis the placement of children as delineated in 23 Pa. C.S.A. § 101 et seq., the Domestic Relations Code. Other proceedings involving custody related matters are covered in the Juvenile Act and Protection From Abuse Act, and clearly detail the reciprocal responsibilities of the parties and the court in dealing with children's testimony.

¶ 17 The three proceedings which statutorily define hearings relating to children and custody changes are the Child Custody Act, 23 P.S. § 2501 et seq., the termination of parental rights sections contained therein at section 2511, Grounds for involuntary termination, and section 2512, Petition for involuntary termination, and the Adoption Act, 23 Pa.C.S.A. §§ 2301, 2501 et seq. It becomes readily apparent when reviewing the statutory and case law respective to custody, adoption and termination of parental rights, the standard of review in custody cases is markedly different than that in adoption and termination cases, and the scope of review is also distinguishable.

CUSTODY

¶ 18 The most significant difference between custody cases and termination cases lies with the quality of the determination which directly impacts on the standard of review. As between parents and others who have standing in a custody case, the standard of review is preponderance of the evidence. A child involved in a custody procedure,...