Quick, In re

• Decision Date: 11 May 1989
• Citation: 384 Pa.Super. 412,559 A.2d 42
• Parties: In re Heather Marie QUICK, Shawn Michael Quick and Stacey Lynn Quick, Minors. Appeal of Dolores Marie Smith QUICK, Mother of the Above Named Children. 1301 Pitts. 1988
• Court: Pennsylvania Superior Court

Page 42

559 A.2d 42

384 Pa.Super. 412

In re Heather Marie QUICK, Shawn Michael Quick and Stacey Lynn Quick, Minors Appeal of Dolores Marie Smith QUICK, Mother of the Above Named Children.

1301 Pitts. 1988

Superior Court of Pennsylvania.

Argued Feb. 28, 1989.

Filed May 11, 1989.

[384 Pa.Super. 413] Edward A. Olds, Pittsburgh, for appellant.

James A. Hickey, Pittsburgh, for appellees.

Timothy W. Pawol, Pittsburgh, for Children and Youth Services of Allegheny County, participating party.

Before CIRILLO, Presiding Judge, and BROSKY and TAMILIA, JJ.

TAMILIA, Judge:

Appellant appeals an Order entered on August 2, 1988 which made final a decree nisi terminating her parental rights. Appellant is the natural mother of Heather, age 13, Shawn, age 11, and Stacey, age 10, who were first removed from the home in 1979, and were later returned, only to again be removed in 1985 when husband and another man were arrested for sexually abusing them. On February 27, 1985, the children were adjudicated dependent because of physical and sexual abuse by husband and other adults while in the care of mother and husband, resulting in their placement in foster or institutional care. Both appellant and her husband were convicted of three counts of endangering the welfare of children. Appellant was sentenced to serve one to two years imprisonment and she was released from jail on July 8, 1987. On March 17, 1987, a petition for involuntary termination of parental rights was filed by appellee Allegheny County Children and Youth Services, (CYS), seeking termination of the rights of appellant, her husband Kenneth Quick, and an alleged unknown natural father. The rights of the father were terminated by a June 3, 1987 Order by Judge Nathan Schwartz. (Memorandum and Decree, 2/16/88, p. 1.) By an August 11, 1987 Order, Judge R. Stanton Wettick, who had presided over the dependency proceedings, was assigned to Orphan's Court Division at the request of the Administrative Judge of the Orphan's court, for the purpose of hearing the contested termination of mother's rights. ¹ On January 4, 1988, mother presented a motion seeking recusal of Judge Wettick, urging that having previously presided as juvenile court judge, he would have formed opinions based on the evidence, thus depriving her of a fair and impartial termination hearing; this motion was denied the next day. After a hearing, Judge Wettick entered a decree nisi on February 16, 1988 terminating mother's rights pursuant to 23 Pa.C.S. § 2511(a)(5), to which mother filed exceptions. Following argument before the court en banc, the Order in question was issued, and mother timely filed an appeal with this Court.

Appellant first contends the court erred in finding clear and convincing evidence supporting termination was established by CYS. Section 2511(a)(5) provides as follows:

§ 2511. 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:

....

(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 child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a)(5).

We recently discussed our standard of review of parental termination in In re Adoption of Hamilton, 379 Pa.Super. 274, 549 A.2d 1291 (1988), stating:

The evidentiary standard for terminating parental rights was formulated by the United States Supreme Court which established that parental rights may not be terminated in the absence of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In In re: T.R., 502 Pa. 165, 465 A.2d 642 (1983) our state supreme court adopted the reasoning of Santosky as a matter of state law applicable to all termination proceedings. This principle requires evidence which is "so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy of the truth of the precise facts in issue." In re Shives, 363 Pa.Super. 225, 227-28, 525 A.2d 801, 802 (1987) (citation omitted). In assessing whether the trial court's determination is based on clear and convincing evidence, we review the chancellor's findings. In the Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984), quoted in In re Adoption of Faith M., 509 Pa. 238, 240, 501 A.2d 1105, 1106 (1985); In re J.G.J., Jr., 367 Pa.Super. 425, 532 A.2d 1218 (1987). "Absent an abuse of discretion, an error of law or insufficient evidentiary support for the findings of the Orphans' Court, an appellate court will not reverse a hearing court's order to terminate." Shives, supra, 363 Pa.Super. at 227-28, 525 A.2d at 802.

We review the facts, with all conflicts resolved in favor of the Orphans' Court as trier of fact and sole judge of credibility. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986).

Hamilton, supra at 278, 549 A.2d at 1293.

A review of the evidence in this matter supports the factual findings of the orphan's court regarding the family:

Shawn is seriously retarded. He will always require a living situation that includes adult supervision. Following his removal from his parents' home, he was returned to the foster home where he had lived from 1979 to 1982. He has resided in this home since April 1985. The foster parents have made a long-term commitment to Shawn.

Stacy is a mildly retarded and hyperactive child. She has resided in her current foster home since July 1985. This is a specialized foster home supervised by the PRYDE program.

Heather is a moderately retarded and emotionally disturbed child. Following her removal, she was placed for approximately one year at Holy Family Institute, a residential treatment program for seriously disturbed children. Thereafter, she spent approximately two months at the John Merck Program which provides intensive treatment to children with serious acting out behavior. From the fall of 1986 to the spring of 1987, she was placed in a specialized foster home supervised by the PRYDE program. This placement failed because of Heather's acting out behavior. In June 1987, she was placed in the PRYDE foster home where her sister Stacey is residing. She continues to reside in this home.

The foster parents of Stacey and Heather have made a long-term commitment to raise Heather and Stacey if they are not returned to a natural parent. Also, they are prepared to adopt both children if the rights of the mother are terminated.

The mother is an intellectually limited woman who comes from a very deprived background. She has an I.Q. of approximately 60 and does not read nor [sic] write. She was one of ten children raised in a home that did not provide structure or nurturing. While growing up, she was sexually abused in her home. Witnesses described her as having extremely low self-esteem and chronic dependency needs.

Following the children's removal, she attended the Mon-Yough MH/MR Base Service Unit for counseling for her immediate needs. She visited her children regularly but did not become involved in any counseling that addressed issues concerning their needs or ways in which she could improve herself as a parent. At that time, criminal charges were pending against her and she was extremely depressed over the events in her life.

On March 14, 1986, the mother was convicted of three counts of endangering the welfare of her children and sentenced to jail. She was released from jail on July 8, 1987. Following her release, she first lived with her sister, then by herself, and since October 1987 with a boyfriend and his family. She has not begun counseling on any regular basis. However, approximately four weeks prior to trial, she obtained a complete psychological evaluation at the Mon-Yough MH/MR Base Service Unit. Expert witnesses who testified on behalf of the mother said that at some time in the future there is a possibility that she would be capable of raising her children. These witnesses testified that this would require intensive counseling (perhaps on a daily basis) for at least two to three years. Even then, her prognosis is guarded according to these witnesses.

(Slip Op., Wettick, J. and Zavarrella, J. per curiam, 8/2/88, pp. 2-4.)

Mother argues the court erred in concluding the conditions which led to the removal of the children continued to exist at the time of trial. She urges the abusive conduct of her husband and her inability to protect the children from the conduct while she lived with husband led to the removal, and she argues she remedied this prior to trial by leaving her abusive husband, filing for divorce, and setting up a safe new life. Mother further contends her own testimony on cross-examination and the testimony of caseworker Cynthia Cook was not sufficient to sustain the burden of CYS of proving the continued existence of the conditions which led to removal, and the court erred by considering the generalized testimony of her own expert witness regarding attributes of women whose children are sexually abused in the home.

After a careful and comprehensive review of the record, testimony, and briefs, we perceive no abuse of discretion on the part of trial court in finding the condition which led to the removal of the children continues to exist. We agree with the trial court's conclusion that the condition was the mother's inability to protect her children, and that she had not undergone counseling or been involved in any other treatment...