In re SH

879 A.2d 802

In re In the Interest of S.H.

Appeal of V.H.

Superior Court of Pennsylvania.

Submitted May 9, 2005.

Filed July 13, 2005.

Ralph T. Forr, Jr., Altoona, for V.H., appellant.

Terressa E. George, Altoona, for S.H., appellee.

William R. Brenner, Hollidaysburg, Children and Youth, appellee.

Before: LALLY-GREEN, McCAFFERY, and JOHNSON, JJ.

OPINION BY JOHNSON, J.:

¶ 1 V.H. (Mother) appeals from the order terminating her parental rights to her eight-year old daughter, S.H. (Child). The trial court terminated Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (8), based on Mother's long-term addictions to drugs and alcohol, her mental health problems, and Child's need for permanency and stability. On appeal, Mother argues that the trial judge abused her discretion by declining to recuse herself, because the same trial judge sentenced Mother in a criminal matter in 2002 and changed Child's placement goal to adoption at a hearing in 2003. Mother also contends that the trial court gave insufficient consideration to Child's needs and welfare, and that the Blair County Children & Youth Services (CYS) did not present clear and convincing evidence to satisfy the requirements of § 2511(a) and (b). Finding no merit in Mother's claims, we affirm.

¶ 2 Child was born on January 27, 1997. In October 2001, CYS received reports that Child was being sexually abused by her natural father, S.W.H. (Father). CYS found the abuse to be "indicated," and thereafter Child was removed from Father. On October 30, 2001, Mother signed a voluntary placement plan for Child and entered a hospital for inpatient mental health treatment. Since that time, Child has remained in CYS's care continuously. On two earlier occasions, CYS had become involved with the family due to Mother's problems and her inability to care for Child, but it did not seek custody of Child until the reports of sexual abuse in 2001.

¶ 3 Mother has an extensive history of addictions and mental health problems. Between February 1998 and October 2001, Mother was admitted to the Altoona Hospital nine times for inpatient mental health treatment, and was admitted to at least four detoxification programs for her drug and alcohol addictions. After Child's placement with CYS, numerous dependency and permanency hearings were held, and CYS provided counseling and mental health services to Mother. Early in 2002, Mother was sentenced to two years' probation on drug charges. When she was arrested for violating her probation on June 20, 2002, Mother's probation was revoked and she was sentenced to two to four years' incarceration.

¶ 4 On February 27, 2003, the court declared Child dependent and changed her placement goal to adoption. Mother appealed the goal change to our Court, and we affirmed. See In re: S.H., appeal of V.H., 625 WDA 2003 (Jan. 23, 2004) (non-precedential decision). On June 17, 2004, CYS filed a petition to terminate Mother's and Father's parental rights.

¶ 5 Before the termination hearing, Mother was placed under a detainer by the United States Immigration and Naturalization Service (INS). On August 13, 2004, Mother attended an INS hearing and was scheduled for deportation to Argentina following her incarceration. The record does not give any other information regarding Mother's deportation.

¶ 6 Two weeks after the INS hearing, the termination hearing occurred. At this time, Mother filed a motion for recusal. The presiding judge, the Honorable Jolene Grubb Kopriva, was the same judge who sentenced Mother to two to four years' imprisonment on drug charges, and who changed Child's placement goal to adoption in 2003. Judge Kopriva denied Mother's motion. At the hearing, Mother introduced evidence that she successfully completed several programs on parenting, drugs and alcohol, social skills, spirituality, and mental health during her imprisonment. CYS introduced testimony from the February 2003 goal change hearing and it presented the testimony of its caseworker, who testified that Child is thriving in fostercare and that termination is in Child's best interest. On November 17, 2004, Judge Kopriva entered an Order and Opinion terminating Mother's parental rights to Child. Mother then filed the instant appeal. The Order also terminated Father's parental rights, but he is not a part of this appeal.

¶ 7 Mother raises the following questions for our review:

I. DID THE TRIAL COURT COMMIT AN ERROR OF LAW BY INVOLUNTARILY TERMINATING MOTHER'S PARENTAL RIGHTS WITHOUT FULLY CONSIDERING THE IMPACT OF TERMINATION ON THE EMOTIONAL

NEEDS AND WELFARE OF THE CHILD?

II. DID [CYS] FAIL TO PROVE BY CLEAR AND CONVINCING EVIDENCE BOTH THAT MOTHER REFUSED OR WAS UNABLE TO PARENT THE CHILD AND WHAT BEST SERVES THE NEEDS AND WELFARE OF THE CHILD?

III. DID THE TRIAL COURT ABUSE ITS DISCRETION AND ALLOW THE APPEARANCE OF IMPROPRIETY TO ARISE BY REFUSING TO RECUSE ITSELF AND INSISTING ON BOTH SENTENCING APPELLANT MOTHER TO 2 TO 4 YEARS IN STATE PRISON AND 6 MONTHS LATER DIRECTING THAT HER DAUGHTER BE PLACED FOR ADOPTION?

Brief for Appellant at 4.

¶ 8 Our scope and standard of review follow.

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.

In re C.S., 761 A.2d 1197, 1199 (Pa.Super.2000) (citations omitted). In addition, the trial court, as fact finder, is the sole determiner of the credibility of witnesses and resolves all conflicts in testimony. See In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.2002).

¶ 9 In her first question, Mother argues that the trial court did not sufficiently consider the impact termination would have on Child.

The trial court, in considering what situation would best serve the child[ren]'s needs and welfare, must examine . . . whether terminating the natural parents' rights would destroy something in existence that is necessary and beneficial.

In re C.S., 761 A.2d 1197, 1202 (Pa.Super.2000) (internal citations and quotation marks omitted). Mother briefly argues, without citation to legal authority, that the trial court should have granted her motion for a special bonding assessment. Brief for Appellant at 9. Given Mother's failure to cite apposite legal authority, however, we find no error in the trial court's denial of Mother's request for the court to provide a psychological evaluation of Child using public funds. See Nemirovsky v. Nemirovsky, 776 A.2d 988, 994 (Pa.Super.2001) (finding waived an issue in the appellant's brief where the brief contained only "a cursory, four sentence argument" and no citation to caselaw on that issue); see also In re Adoption of T.B.B., 835 A.2d 387 (Pa.Super.2003) (affirming the trial court's denial of a parent's request for an independent psychological evaluation in a termination proceeding).

¶ 10 We now reach the broader issue of whether the court gave sufficient consideration to the effect of termination on Child. We conclude that it did. In its Opinion, the trial court recited the testimony of Child's counselor, Ms. Marion Henry, that Child would not suffer any long-term emotional harm from termination/adoption. Trial Court Opinion, 11/17/04 (T.C.O.), at 10, 14 (citing Notes of Testimony, 2/27/03, at 113). In addition, the trial court considered the testimony of Mr. Lynn Kagarise, who evaluated the family in December 2002. T.C.O. at 13-14. The trial court specifically noted Mr. Kagarise's statement that if there is a bond between Mother and Child, it is "dysfunctional and unhealthy." T.C.O. at 13. The court also noted Child's need for permanency. T.C.O. at 9. Given these statements, we cannot conclude that the trial court failed to adequately consider the effect of termination upon Child.

¶ 11 In her second question for review, Mother contends that CYS did not prove the elements of § 2511 by clear and convincing evidence. Mother correctly states that "[i]n a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so." In re M.G. and J.G., 855 A.2d 68, 74 (Pa.Super.2004) (quoting In re Julissa O., 746 A.2d 1137, 1139 (Pa.Super.2000)). Our appellate review, however, does not require us to find clear and convincing evidence. We will affirm if the trial court's findings are supported by competent evidence, even if the record could also support an opposite result. See In re A.R.M.F., 837 A.2d 1231, 1233 (Pa.Super.2003).

¶ 12 In addition, we need only find competent evidence to support the trial court's decision as to any one subsection of 23 Pa.C.S. § 2511(a) to affirm the termination. See In re B.L.W., 843 A.2d 380, 384 (Pa.Super.2004). Accordingly, we will analyze Mother's argument by examining the requirements of § 2511(a)(8), which requires CYS to prove:

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.

23 Pa.C.S. § 2511(a)(8). Mother does not develop any argument regarding the first, second, and fourth requirements; thus, we will only discuss the third element, whether there is competent evidence that "the conditions which led to the...