In re RLTM

860 A.2d 190

In re R.L.T.M., a Minor,

Appeal of Lancaster County Children and Youth Services, Appellant.

Superior Court of Pennsylvania.

Submitted February 9, 2004.

Filed October 4, 2004.

Anne L. Cooper, Lancaster, for appellant.

Jeffrey Gonick, Leola, Guardian Ad Litem, for appellee.

Lisa J. McCoy, Lancaster, for A.M., appellee.

Maurice T. McKinney, Higley, AZ, for M.T.M., appellee.

Before: LALLY-GREEN, BOWES and CAVANAUGH¹, JJ.

BOWES, J.:

¶ 1 This is an appeal by Lancaster County Children and Youth Social Service Agency (CYSSA) from the June 30, 2003 denial of its petition to terminate the parental rights of A.M. ("Mother") and T.M. ("Father")² to their son, R.L.T.M. For the reasons that follow, we affirm.

¶ 2 R.L.T.M. was born January 7, 1990. When he was three months old, he suffered a brain injury and subsequently was diagnosed with cerebral palsy. CYSSA senior adoption caseworker Doris Risser explained the circumstances surrounding the diagnosis as follows:

The agency first became involved with the family in April of 1990. [R.L.T.M.] was three months old at that time. The initial report was received because [R.L.T.M.] suffered severe brain damage after he stopped breathing.

When he had been born, he weighed a little bit over four pounds. He was born in January of that year. There was supposed to be a heart monitor used to monitor [R.L.T.M.] at all times, and the monitor wasn't being used regularly. He was in the care of his father when he stopped breathing.

There are two stories. [Mother] told me that his father panicked and threw him against the wall and caused damage to his spinal cord, and the hospital reported to the agency that because the monitor wasn't used and he stopped breathing that was the cause of the brain damage and the cause of [R.L.T.M.] being borderline mentally retarded and having cerebral palsy. He was not born with mental retardation and cerebral palsy.

At that time, the agency became involved, but it was felt that [Mother] and [Father] were both going to go through the training and to learn how to properly care for the children. [Mother] also had the support of her mother at that time. So the case was not formally opened for services.

Q. Did the father continue to reside in the household after the injuries?

A. No. He left and he hasn't been involved with [R.L.T.M.] for a very long time.

After the first referral to the agency, there is no record of him being in the home.

N.T., 9/23/02, at 5-6.

¶ 3 On April 23, 1997, CYSSA received a report alleging medical neglect of R.L.T.M. by Mother. The agency eventually took the child into custody and placed him into foster care on May 19, 1999. On September 11, 2000, the goal of the family service plan was changed from reunification to adoption; Mother did not appeal that decision. The petition to terminate parental rights was filed on March 5, 2002. The common pleas court held hearings on May 16, 2002, and September 23-26, 2002, and ultimately denied the petition on June 30, 2003. This timely appeal followed.

¶ 4 CYSSA raises one issue for our review: whether the orphans' court abused its discretion in denying the petition to terminate parental rights based on its conclusion that termination did not serve R.L.T.M.'s needs and welfare. The orphans' court had concluded that CYSSA had sustained its burden of proof under 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8), but determined that R.L.T.M.'s bond with Mother, coupled with the child's limited intellectual capacity, militated against termination of parental rights.

¶ 5 Our scope and standard of review are settled. Whether the orphans' court grants or denies the petition to involuntarily terminate parental rights, "we are limited to determining whether the decision of the trial court is supported by competent evidence." In re C.S., 761 A.2d 1197, 1199 (Pa.Super.2000); see also Adoption of M.S., 445 Pa.Super. 177, 664 A.2d 1370 (1995) (Superior Court affirmed orphans' court's denial of petition filed pursuant to 23 Pa.C.S. § 2511(a)(1) and (2)).

Where the hearing court's findings are supported by competent evidence of record, "we must affirm the hearing court even though the record could support an opposite result." In re Adoption of B.D.S., 494 Pa. 171, 177, 431 A.2d 203, 206 (1981) (quoting Matter of Kapcsos, 468 Pa. 50, 54, 360 A.2d 174, 176 (1976)).

....

In a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by "clear and convincing" evidence the existence of grounds for doing so. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 465 A.2d 642 (1983). The standard of "clear and convincing" evidence is defined as testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-04 (1989).

In re Adoption of M.S., supra at 1373 (quoting In re Adoption of Atencio, 539 Pa. 161, 165-66, 650 A.2d 1064, 1066 (1994)). Moreover, "It is clear that in a termination proceeding, the focus [initially] is on the conduct of the parents. In the Interest of A.L.D., 797 A.2d 326 (Pa.Super.2002); In the Interest of M.B., 449 Pa.Super. 507, 674 A.2d 702 (1996)." In the Matter of B.L.W., 843 A.2d 380, 383 (Pa.Super.2004).

¶ 6 The court herein refused to terminate parental rights. Initially, the court found that CYSSA proved, based upon 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8), that R.L.T.M. has been without proper parental care and control. Those sections provide 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 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 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 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.

....

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

The court then stated as follows:

Upon careful consideration of the testimony presented in this matter, I reached the conclusion that the Agency sustained its burden of proof concerning the four grounds for terminating the parental rights. There can be little doubt that for a period in excess of a year that the child has been in placement and has been without proper parental care and control from either the father or the mother. Nevertheless, the fact that the Agency has established any one or all of the four grounds does not end my inquiry. I must engage in an analysis which assesses whether termination of parental rights is in the best interest of the child.

Trial Court Opinion, 9/12/03, at 3.³ Thus, although the court found that the statutory requirements were met for termination of parental rights, it concluded that the child's best interests compelled that Mother's rights should not be terminated based upon the significant bond shared by Mother and son. This evaluation by the orphans' court is based upon 23 Pa.C.S. § 2511(b), which provides, "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." Unlike 23 Pa.C.S. § 2511(a), subsection (b) "centers judicial inquiry upon the welfare of the child rather than the fault of the parent. In re Angry, 361 Pa.Super. 180, 522 A.2d 73, 75 (1987)." In re A.R., 837 A.2d 560, 565 (Pa.Super.2003). One commentator has stated:

The best interests of the child may not be separately considered by the court until a finding has been made that the statutory requirements for termination of parental rights have been met. The determination of the best interests of the child is a separate consideration and is not necessarily dictated by a finding that the statutory elements for termination are present. In terminating a parent's rights involuntarily, the court must consider the developmental, physical, and emotional needs and welfare of the child.

Wilder, Pa. Family Law Prac. and Proc. (5th ed.), § 32-6 (footnotes omitted).

¶ 7 CYSSA argues that the orphans' court abused its discretion by denying the agency's petition based upon its conclusion that termination of Mother's parental rights would not serve the needs and welfare of R.L.T.M. Our review of the record compels our disagreement.

¶ 8 The trial court relied upon the psychiatric attachment evaluation, or bonding assessment, performed by Cheryl Walters of Life Management Associates. In addition to performing psychological...