In The Matter of B.L.W., 2004 PA. Super 30 (Pa. Super 2/12/2004)

Page 1

2004 PA. Super 30

IN THE MATTER OF: B.L.W., A MINOR, Appellee APPEAL OF: N.W., MOTHER, Appellant.

No. 1851 MDA 2001.

Superior Court of Pennsylvania.

Filed: February 12, 2004.

Appeal from the Decree of October 24, 2001, in the Court of Common Pleas of Dauphin County, Orphans' Court Division, at No. 5699-2001.

BEFORE: DEL SOLE, P.J., JOHNSON, HUDOCK, MUSMANNO, LALLY-GREEN, KLEIN, BENDER, BOWES AND GRACI,^* JJ.

OPINION BY BOWES, J.:

¶ 1 N.W. ("Mother") appeals from the order of the Court of Common Pleas of Dauphin County involuntarily terminating her parental rights to her daughter, B.L.W. We have reviewed the notes of testimony and considered Mother's arguments and the applicable law. We affirm.

¶ 2 We summarize the factual and procedural history. Dauphin County Social Services for Children and Youth ("Dauphin CYS") first became involved with B.L.W. in May 1998, when it received allegations that Mother and J.C.W., Sr. ("Father"), had engaged in inappropriate sexual conduct with B.L.W., born September 23, 1992, and J.C.W., Jr., born March 26, 1984. Dauphin CYS sent a caseworker to conduct an unscheduled home visit on May 18, 1998. J.C.W., Jr. was on an overnight trip with his school. However, the caseworker spoke to B.L.W. who reported that Mother and Father had fondled her vagina, B.L.W. had fondled Father's penis, and her parents engaged in sexual activity in the children's presence. N.T., 8/29/01, at 9.

¶ 3 The investigation also revealed a storage box belonging to Father which contained items that appeared to be child pornography. Juvenile Court Summary, 6/9/98, at 1; N.T., 8/29/01, at 13. In addition, Dauphin CYS found a sound-activated tape recorder in the home's only bathroom and quarter-sized holes in the bathroom wall that corresponded with holes in the parents' bedroom wall. N.T., 8/29/01, at 9, 129-30. Dauphin CYS later determined that while family members used the bathroom, Father would record their activities and later would masturbate while listening to the recordings. On some occasions, he would directly observe family members in the bathroom by viewing them through the holes in the wall. Id. at 9-10, 12. As a result of the allegations of abuse and the conditions that caseworkers observed in the home, Dauphin CYS immediately placed B.L.W. in protective custody. N.T., 8/29/01, at 10.

¶ 4 The following day, May 19, 1998, the caseworker located and interviewed J.C.W, Jr., who told the Dauphin CYS caseworker that Mother and Father had engaged in sexual activity with another couple in front of J.C.W., Jr. and B.L.W. Juvenile Court Summary, 6/9/98, at 2; N.T., 8/29/01, at 13. Dauphin CYS immediately placed J.C.W., Jr. into shelter care. Mother informed Dauphin CYS that she and Father maintained a long-standing relationship with another couple with whom she and Father had an open sexual relationship, that Father engaged in sexual activity with the other woman in front of both Mother and the children, and that the other couple lived with Mother and her family at the time of the referral. N.T., 8/29/01, at 131. Mother knew that the male in the other couple had been convicted of possession of child pornography in 1987. N.T., 8/29/01, at 132. Mother also knew of the holes in the bathroom wall and the sexual activity that took place in front of the children, but she did not intervene to curtail the behavior. However, Mother denied fondling B.L.W. or witnessing anyone else fondle the child. She speculated that any inappropriate sexual touching involving B.L.W. likely would have been perpetrated by the other couple or Father. Juvenile Court Summary, 6/9/98, at 2-3; N.T., 8/29/01, at 13.

¶ 5 A detention hearing was held on May 21, 1998, and an adjudication hearing was held on June 26, 1998. After the adjudication hearing, both J.C.W., Jr. and B.L.W. were declared dependant and were placed in the legal custody of Dauphin CYS on June 26, 1998. N.T., 8/29/01, at 11. A family reunification plan was put into place requiring Parents to: (1) undergo psychological evaluations and abide by any recommendations; (2) participate in therapy together regarding the roles and boundaries surrounding sexuality; (3) implement changes to repair the bathroom walls immediately; (4) clean and organize the living areas of the house and B.L.W.'s bedroom to allow for private areas; and (5) participate in STEP parenting classes. Id. Over the ensuing six months, Father failed to comply with the plan and left the home to live with his girlfriend. Id. at 13. Parents have been separated since August 1999.

¶ 6 In July 1998, Dauphin CYS made an "indicated" finding of sexual abuse pursuant to the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq.; that finding was not appealed by either party. N.T., 8/29/01, at 10. Mother's son, J.C.W., Jr., was returned to her care and custody in June 2000. He was sixteen years old at the time and is not involved in this appeal. B.L.W. has remained in Dauphin CYS custody since her 1998 placement and had resided in the same foster home for nearly four years by the August, 2001 hearing. Id. at 49. On May 31, 2000, the orphans' court changed the permanency goal for B.L.W. from reunification to adoption.

¶ 7 Mother moved to Mt. Carmel, Pennsylvania, in 2000 with J.C.W., Jr. The residence there has been deemed neat, well-kept, and without physical safety issues. While in Mt. Carmel, Northumberland County Children and Youth Agency ("Northumberland CYS") assigned a caseworker to Mother based upon allegations that Mother was hitting J.C.W., Jr. N.T., 8/29/01, at 146. In addition, Northumberland CYS provided parenting classes and anger control counseling from November 2000 until April 2001. In February, March, and April 2001, Mother began counseling for sexual abuse but failed to complete the program.

¶ 8 Dauphin CYS filed a petition to terminate Mother's parental rights to B.L.W. on January 24, 2001, and a termination hearing was held on August 29, 2001. The Honorable Todd A. Hoover of Dauphin County Court of Common Pleas involuntarily terminated both parents' parental rights. Father's rights were terminated without contest, and he is not a party to the present appeal. Mother filed a timely notice of appeal on November 15, 2001.

¶ 9 Our scope and standard of review are settled.

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. See In re K.C.W., 456 Pa.Super. 1, 689 A.2d 294, 298 (1997). Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Id. 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. See In re Child M., 452 Pa.Super. 230, 681 A.2d 793, 800 (1996). 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. See In re Matsock, 416 Pa.Super. 520, 611 A.2d 737, 742 (1992).

In re C.S., 761 A.2d 1197, 1199 (Pa.Super. 2000). It is clear that in a termination proceeding, the focus 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.D., 674 A.2d 702 (Pa.Super. 2002).

¶ 10 The court herein terminated parental rights based upon 23 Pa.C.S. § 2511 (a) (1), (2), (5), and (8). 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 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.

(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.

¶ 11 Mother contends¹ the trial court erred in determining that Dauphin CYS met its burden of proof under 23 Pa.C.S. § 2511 (a) (1), (2), (5), and (8) and erred in "making other considerations under 23 Pa.C.S. § 2511 (b)." Mother's brief at 4. While the trial court found that Dauphin CYS met its burden of proof under each section quoted above, we need only agree with its decision as to any one subsection in order to affirm the termination of parental rights. In re J.E., 745 A.2d 1250 (Pa.Super. 2000); see also In re J.I.R., 808 A.2d 934, 940 n. 6 (Pa.Super. 2002). For the following reasons, we conclude that the trial court correctly concluded that App...