Involuntary Termination of Parental Rights; Witness Credibility
In the Int. of E.D.A. III, 2023 WL 8650259 (Pa. Super.) (unreported), allocatur granted Apr. 1, 2024, appeal dockets 15 – 24 MAP 2024
This case arises from trial court orders that involuntarily terminated E.A., Jr.’s (Father) and T.W.A.’s (Mother) parental rights to children, B.W., Ed.A., R.A., El.A., and A.A. Superior Court summarized the relevant factual and procedural background as follows:
The York County Office of Children, Youth, and Families (“CYF”) first became involved with the family in 2019 due to concerns with substance abuse by Mother and Father. A referral was made to CYF in August 2020 based on an allegation that they were abusing drugs and not properly disciplining or supervising the four oldest children. Those children were placed into care and adjudicated dependent on September 16, 2020. After A.A. was born, he was likewise placed into care and adjudicated dependent.
As a result of the dependency adjudications, Father was ordered to, inter alia, cooperate with both announced and unannounced home visits by CYF; complete a mental health evaluation and follow treatment recommendations; actively participate in services; obtain employment and provide proof of income to CYF; maintain safe, clean, and appropriate housing; submit to random drug testing; and continue his drug and alcohol treatment and participation in the methadone program. See Family Service Plan, 10/2/20, at 14, 16-18; see also Family Service Plan, 3/12/21, at 14 (adding, among other things, that Father notify CYF of any change in household members, attend medical appointments for the children, and adhere to the conditions of his probation); Family Service Plan, 8/9/21 (same, issued following A.A.’s birth and adjudication of dependency).
Meanwhile, in the companion dependency matters, allegations of physical abuse were made against Father and Mother in December 2020 and January 2021, as to B.W. and El.A., leading to an abuse investigation. The report included allegations that the parents slapped the children with an open hand, including when El.A. was less than one month old, and struck the children with a belt.
This Court recounted the testimony offered at the March 10, 2022 finding of abuse hearing as follows:
The [Child Advocacy Center] forensic interviewer … testified: “B.W. disclosed being beat — his words — that El.A. was slapped with a belt,” Father beat R.A. and El.A., Mother slapped B.W., and B.W. observed potential drug use. B.W. further reported El.A. suffered injuries, including bleeding from the mouth.
CYF Caseworker [Kristen] Marshall, who observed the interview, testified:
B.W. disclosed that he and his siblings were being punished with a black belt with little spikes on it. He reported that it was hurtful. B.W. actually stated it hurt more than a gun. He stated the spikes were sharp and caused him to bleed. He stated he would cry and he was hit over and over. The very red marks like — were left like it was bleeding, but it wasn’t. And he stated that both parents would hit him.
CYF additionally entered into evidence the forensic interview summary and a DVD video of the forensic interview. Ms. Marshall sought, but did not receive, medical records that might show physical injury to B.W. She also attempted multiple times to schedule an interview with Mother and Father, but was unsuccessful.
With respect to El.A., Ms. Marshall testified that B.W. stated Mother and Father sometimes slapped El.A., so there was blood under his tongue, and that El.A. would cry a lot and neighbors would hear. As stated above, B.W.’s statements led to a referral as to El.A. An investigation revealed El.A. was taken to the York Hospital emergency room for bleeding from the mouth in August 2019 when he was less than a month old.
Int. of B.W., 290 A.3d 702, 2022 WL 17973239, at *2-3 (Pa. Super. 2022) (non-precedential decision) (cleaned up). Following a prolonged investigation, partially due to the parents’ refusal to submit to police interviews, the court found both Mother and Father to be perpetrators of abuse against B.W. and El.A. As noted, this Court affirmed those findings.
On January 19, 2022, CYF filed petitions to terminate Father’s rights to all five children pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (5). As to the four oldest children, B.W., Ed.A., R.A., and El.A., CYF also sought termination pursuant to § 2511(a)(8).
The court held hearings on the petitions on April 1 and 18, 2022. With respect to Father, CYF presented the testimony of caseworker Kristen Marshall, Father’s probation officer and methadone counselor, and the family advocate and family therapist from Pressley Ridge. Through their testimony, it was relayed that Father had been consistent with his visits with the children and had made significant progress resolving his substance abuse. However, as of the first day of the hearing, CYF remained concerned because Father had not alleviated the environmental concerns at the house, made progress in his mental health treatment, or established financial stability. Additionally, visits had not progressed beyond supervised, and Father recently tested positive for alcohol, which particularly concerned CYF given his addiction issues and because one of the positive results was recorded immediately before a visit.
At the second hearing, over two weeks later, Father and Mother testified. Mother attempted to demonstrate that the house had since been made appropriate for reunification. For his part, Father recounted his work history and explained that he had scheduled an appointment to recommence his mental health treatment the following day. Finally, Father presented testimony from another CYF caseworker regarding Ms. Marshall’s alleged bias.
The children’s GAL argued that termination was in the best interests of each child. Specifically, the GAL was concerned that the physical abuse had been unaddressed and was wary of the last-minute efforts by the parents to finally re-initiate mental health treatment and attempt to make the home environment appropriate. Through legal counsel, the children expressed the following: B.W. wanted to return to his parents; Ed.A. wished to remain in the foster home and not return to his parent’s home; El.A., despite the finding of abuse, had a strong bond with his parents and would oppose termination; R.A. also had a strong bond with her parents and would oppose termination; and A.A., given his young age, could not express a legal position different from that expressed by the GAL.
At the conclusion of the hearing, adopting the GAL’s concerns, the orphans’ court terminated Father’s parental rights as to all five children, and issued separate orders changing each child’s permanency goal to adoption.
Slip op. at 3 – 7. Father appealed to Superior Court.
Superior Court affirmed orphans’ court’s termination of Father’s parental rights. Relying on the testimony of the caseworker, Ms. Marshall, Superior Court opined:
While Father urges us to accept the testimony that favored his assertion that the environmental issues had been resolved, it was wholly within the province of the orphans’ court to make credibility determinations regarding the testimony offered. Those credibility determinations are supported by the record and must therefore remain undisturbed. See M.G., supra at 73-74; T.B.B., supra at 394. Accepting these credibility determinations, our review of the certified record indicates that it was not solely the inability to provide financial documentation that supported termination. Rather, it was the failure to demonstrate the ability to provide safe and stable care for the children, as evidenced by the housing concerns, Father’s declining to take seriously the mental health treatment, and lack of evidence of a stable income to support five children.
Ms. Marshall, who had been assigned to the case since October 2020, testified that Father’s primary concerns at adjudication were substance abuse, environmental issues in the home, mental health, and drug testing. See N.T. Hearing, 4/1/22, at 197. With regard to the environmental issues, as noted hereinabove, Father’s goals included complying with unannounced and announced home visits by CYF, maintaining safe appropriate housing, and performing routine housekeeping.
During Ms. Marshall’s tenure, she attempted to make eight home visits. In November 2020, there were lice issues, the heavy smell of animal feces and urine smell, and problems with the toilet, stairwell railing, and one of the bedroom floors. At the next two visits, both in December 2020, the toilet and railing issues had been repaired. In January 2021, she was unable to enter the house due to COVID-19 concerns and lice. In July 2021, a proxy visited the house but was not permitted inside. Nonetheless, the proxy noted that it smelled like garbage outside and the front porch was messy. In August 2021, Ms. Marshall was denied entry into the house but noted a strong smell of animal feces when the door was opened. Again, in January 2022, she was not allowed into the house to conduct a home visit. Her last visit was conducted on March 24, 2022. See N.T. Hearing, 4/18/22, at 46-47.
During the last visit, which was unannounced, Mother was away from the home, but returned when called and was inside for a few minutes before admitting Ms. Marshall and her supervisor into the home. There was a potent smell of animal feces and urine, feces in the kitchen trash, a dog peeing sporadically in the house, space heaters throughout the home, including one on top of a laundry basket filled with clothes, no sink in the only bathroom, concerns with water damage in the parents’ bedroom, and animal feces in one of the children’s rooms. See N.T. Hearing, 4/1/22, at 200-203.
Slip op. at 13-14. Applying the required elements for termination, Superior Court concluded:
Turning to the elements of § 2511(a)(5), Father does not contest that all five children were removed from his care for a period exceeding six months. Therefore, the first element is satisfied. As to the second, third, and fourth elements, the initial placement was based upon concerns about Father’s drug use, inappropriate parenting, unstable employment, unsafe housing, and the need for mental health treatment. Once there were allegations and findings of abuse, that naturally became part of the concerns as to Father’s parenting and ability to provide a safe home environment. The orphan’s court concluded that while Father had made progress with regard to his drug treatment and the methadone program, “he could not remedy the remaining conditions within a reasonable time[,]” particularly as he “had services close unsuccessfully or declined [services.]” Orphans’ Court Opinion, 6/6/22, at 27.
As the record shows, the children were removed from Father and Mother for more than parent’s drug use or Father’s overdose. CYF received a referral several days prior to Father’s overdose. CYF had prior history with the family and feared Mother would revoke the safety plan implemented for the children’s welfare. From the outset, the revised safety plan, dated 10/02/2020, provided objectives that are not beyond the control of the parent related to … cooperating with agency services, financial stability, providing proof of income, securing appropriate housing and sleeping quarters for the children, routine housekeeping, and Methadone treatment, etc.
Furthermore, the finding of abuse raises safety concerns regarding the children. The parent’s consistent denials that anything happened regarding the finding of abuse is concerning. During the period that the children have been out of the home, Father started probation for fighting. Mother reported that an argument escalated to the point that her mother threatened to file a protection from abuse order against her. A service provider closed out services and recommended anger management because Father was inappropriate, and a permanency review report noted reports of Father and Mother fighting inside and outside of the home.
The children were removed from the home for more than six months. They have been removed for almost twenty months at this time. Parents certainly made progress with regard to the Methadone program as required by the family service plan cited. The parents could not remedy the remaining conditions within a reasonable time. Given that Father has had services close unsuccessfully or declined, it is not likely that available services will remedy the remaining conditions that led to the removal or placement of the children. … [T]he court believes termination serves the best interests of the children who require permanency.
There was testimony that the children enjoy their visits with their parents and are bonded to them. Despite this the court believes termination is in the children’s best interests. The safety and well-being of the children is of paramount concern to the court. The children are all together in a safe environment with [their foster mother], whom they call “mom-mom,” and they are receiving therapy. The children have exhibited troubling behaviors, which suggests trauma. R.A., as young as she is, has been observed placing her finger in her anus. B.W. has expressed suicidal ideation and anxiety. B.W. and Ed.A. have been observed trying to bite each other on the buttocks and on their penises. Ed.A. has also engaged in fecal smearing. A.A. was born with a club foot that requires special care and appointments.
Id. at 26-28 (cleaned up).
Although Father addressed his drug addiction and should be commended for that, significant concerns remained as to whether Father could readily provide care for any of the children given the condition of the home, his failure to prove a stable income, and disengagement with mental health treatment, particularly in light of the findings of abuse.
Slip op. at 14-16.
Dissenting, Judge McCaffery would “conclude the orphans’ court, which was in agreement that both Parents have successfully complied with drug treatment, did not address the consistent testimony by multiple service providers across several hearings, including the termination proceedings, that both Parents have been in compliance with their housing, parenting, and mental health goals.” Dissent slip op. at 2. The dissent reasoned:
My rationale is not that the court erred in accepting the testimony of one witness over other evidence, but rather that the court failed to address the extensive testimony that was in direct contradiction of the testimony it cited. In light of this incomplete review, I would disagree there was clear and convincing evidence to support termination of “one of the oldest fundamental rights protected by the Due Process Clause’ of the Fourteenth Amendment.”
Slip op. at 2-3. Specifically, the dissent found that orphans’ court failed to address “the extensive, consistent testimony given by the Pressley Ridge witnesses that the home was safe and appropriate”:
I reiterate that at the November 10, 2021, status review hearing, Ms. Myers testified Parents’ five-bedroom apartment was appropriate and Parents were resolving the issue of the bedroom ceiling with their landlord. N.T., 11/10/21, at 23. At the January 11, 2022, permanency review hearing, Ms. Luciano testified that: one day earlier, she inspected Parents’ living room, kitchen, and the Children’s proposed bedrooms; the ceiling was repaired and required only finishing and painting; and her services should come to an end because Parents achieved the goal of having appropriate housing. N.T., 1/11/22, at 23-25, 30-31.
At the April 1, 2022, termination hearing, Ms. Myers stated: she visited Parents’ home five days earlier; she did not observe any pet feces or urine, aside from a litter box that merely needed changing; there was a working sink in the bathroom; and she had no concerns with safety issues nor with visitation being held in the home. N.T. 4/18/22, at 130-34.
It is clear that in a termination appeal, we accept the orphans’ court’s credibility determinations if they are supported by the record. See In re D.L.B., 166 A.3d at 325-26. Here, the Majority holds the court’s credibility findings — crediting the testimony of Caseworker Marshall — is supported by the record. See Maj. Memo. at 13. However, in my view, in addressing Parents’ housing goals, the orphans’ court did not address at all the testimony by the Pressley Ridge witnesses, including Ms. Luciano’s statement, three months earlier, that Parents have met their goal of appropriate housing, to the extent she suggested her services come to a successful end. See N.T., 1/11/22, at 25. Given the lack of any discussion of the above testimony, which came later in time than the initial observations cited in the orphans’ court’s opinion, I cannot agree that the housing conditions, which led to Children’s removal, continued to exist. See 23 Pa.C.S. § 2511(a)(5), (b).
Dissent slip op. at 21-22 (emphasis in original). Judge McCaffery concluded: “I emphasize my rationale is not that the orphans’ court should not have believed Caseworker Marshall, but rather than the court failed to address the testimony of the Pressley Ridge and other agency witnesses.” Id. at 26.
The Pennsylvania Supreme Court will consider the following issue:
Does clear and convincing evidence exist to support a termination of parental rights decision where the trial court based its decision upon the testimony of one witness without acknowledging the competent testimony of multiple witnesses who provided testimony that directly contradicted that witness’ testimony.
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