|
(Cite
as: 984 A.2d 549) |
Superior
Court of Pennsylvania.
In
re T.C., S.C., and H.C., Minor Children.
Appeal
of R.C., Natural Father, Appellant.
Argued
Aug. 19, 2009.
Filed
Nov. 18, 2009.
*549
Stephanie E. Lombardo, Williamsport, for appellant.
Charles
F. Greevy, III, Williamsport, for Lycoming County Children and Youth,
appellee.
John
P. Pietrovito, Muncy, Guardian Ad Litem.
BEFORE:
GANTMAN, FREEDBERG, JJ. and McEWEN, P.J.E.
*550
OPINION BY FREEDBERG, J.:
?
1 R.C. (?Father?) appeals from the order of the Court of Common Pleas of
Lycoming County involuntarily terminating his parental rights to T.C., S.C., and
H.C., pursuant to the Indian Child Welfare Act (?ICWA?), 25 U.S.C. ?
1912.FN1
We affirm.
FN1.
Father is a Native American. Therefore, his children are protected by the ICWA,
25 U.S.C. ?? 1901-1923. See
23 Pa.C.S.A. ? 5404(a) (a child custody proceeding that pertains to a Native
American child is not subject to the Pennsylvania Adoption Act but is governed
by the IWCA).
?
2 The trial court set forth the facts and procedural history as follows, in
relevant part:
T.C.[,
a male,] was born on February 6, 1999, S.C.[, a female,] on December 21, 2000,
and H.C.[, a male,] on February 16, 2004. All three children are of the Native
American race as [Father] is a member of a federally recognized tribe known as
the Lac-Courte-Oreilles Band of Lake Superior Chippewa Indians. [Father] was not
married at the time of each of the children's birth.
On
February 13, 2006, a dependency hearing was held....[ FN2]
At that time, the children were declared dependent with placement in their
parents' home. A review hearing was held on August 28, 2006[,] before the
Honorable Richard A. Gray, who reaffirmed dependency and continued placement in
[Father's] home. On November 8, 2006, the police were called to the home and
reported that [Father] and his paramour ... were heavily intoxicated. The police
were called again on November 16, 2006; the police report indicated [Father] was
heavily intoxicated and was charged with simple assault, making terroristic
threats, and harassment. On December 11, 2006[,] and December 20, 2006, a review
hearing was held before the Honorable Kenneth D. Brown, who reaffirmed
dependency and ordered the children be placed in an approved foster home. On
December 20, 2006, [Lycoming County Children and Youth Services] placed the
children with [Foster Parents].
FN2.
The reasons for the agency's involvement with the family included, inter
alia,
domestic violence and alcoholism. N.T., 9/
On
May 14, 2007, a review hearing was held before th[e][c]ourt, which reaffirmed
dependency and ordered all the children to remain in the resource home together.
A review hearing was held before the Honorable Dudley N. Anderson on November 1,
2007, who found the children should continue in placement in the resource home
and [Father] was directed to attend drug and alcohol counseling. On February 8,
2008, the police were called to [Father's] home because Mother had slashed
[Father's] face. When Corporal Ottaviano of the South Williamsport Police
Department arrived, he found [Father] to be highly intoxicated and refusing
treatment. A review hearing was held on March 11, 2008 before the Honorable
William S. Keiser, in which he revoked the order for unsupervised visitation in
light of the February [8], 2008 incident.
On
April 24, 2008, [Lycoming County Children and Youth Services] filed the instant
[p]etition for [i]nvoluntary [t]ermination of [p]arental
[r]ights....
Trial
Court Opinion, 10/
FN3.
The mother of the children voluntarily relinquished her parental
rights.
?
3 Father raises the following issues on appeal, both of which relate to CYS's
burden of proof under the ICWA:
1.
Whether the lower court erred in terminating [Father's] parental rights where
the expert testimony introduced by the Lycoming County Children and Youth
Services did not conclusively satisfy the standard set forth in the Indian Child
Welfare Act?
2.
Whether the lower court erred in terminating [Father's] parental rights where
the Lycoming County Children and Youth Services did not meet its burden under
[the] Indian Child Welfare Act of proving beyond reasonable doubt termination
was justified?
Father's
brief at 6.
?
4 The scope and standard of review in this case are as follows:
In
an appeal from an order terminating parental rights, our scope of review is
comprehensive: we consider all the evidence presented as well as the trial
court's factual findings and legal conclusions. However, our standard of review
is narrow: we will reverse the trial court's order only if we conclude that the
trial court abused its discretion, made an error of law, or lacked competent
evidence to support its findings. The trial judge's decision is entitled to the
same deference as a jury verdict.
In
re L.M.,
923 A.2d 505, 511 (Pa.Super.2007) (citations omitted).
We
are bound by the findings of the trial court which have adequate support in the
record so long as the findings do not evidence capricious disregard for
competent and credible evidence. The trial court is free to believe all, part,
or none of the evidence presented, and is likewise free to make all credibility
determinations and resolve conflicts in the evidence. Though we are not bound by
the trial court's inferences and deductions, we may reject its conclusions only
if they involve errors of law or are clearly unreasonable in light of the trial
court's sustainable findings.
In
re M.G.,
855 A.2d 68, 73-74 (Pa.Super.2004) (citations omitted). If competent evidence
supports the trial court's findings, we will affirm even if the record could
also support the opposite result. In
re Adoption
of T.B.B.,
835 A.2d 387, 394 (Pa.Super.2003).
[1]
? 5 In addition, pursuant to the ICWA, we will affirm the termination order if a
reasonable fact-finder could conclude beyond a reasonable doubt ?that the
continued custody of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.? 25 U.S.C. ?
1912(f); see
also In
re A.N. and M.N.,
325 Mont. 379, 106 P.3d 556, 560 (2005).FN4
FN4.
Because no case law on point exists in this Commonwealth, we are guided in this
disposition by case law from other jurisdictions.
?
6 Instantly, the trial court terminated Father's parental rights pursuant to the
following provision of the ICWA:
?
1912. Pending court proceedings
...
(d)
Remedial services and rehabilitative programs; preventive measures. Any
*552
party seeking to effect a foster care placement of, or termination of parental
rights to, an Indian child under State law shall satisfy the court that active
efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.
...
(f)
Parental rights termination orders; evidence; determination of damage to child.
No termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
25
U.S.C. ? 1912(d), (f).FN5
FN5.
Father's issues on appeal relate only to Section 1912(f).
?
7 In terminating Father's parental rights, the trial court found as
follows:
[t]h[e]
[c]ourt finds the evidence does show beyond a reasonable doubt that to return
the children to [Father] is likely to result in serous emotional or physical
damage to the children. While [Father] has made great strides in the last seven
months to remain sober, he admits to being an alcoholic for over twenty-five
years. The [c]ourt finds that seven months is a relatively short period of time
to be sober, the possibility of relapse is great, and that the [c]hildren should
not have to wait any longer for permanency due to [Father's] alcohol issues.
[Father] has not been honest about his alcohol usage while on supervision in an
attempt to avoid jail and out of fear of losing his [children].[ FN6]
The [c]ourt also notes [Father] was on a SCRAM [ FN7]
unit during the majority of his time of sobriety.[ FN8]
Further, [Father] has made poor choices in relationships which have resulted in
domestic violence issues. [Father] seems to be a good father to his older
daughter; however, she admits one of the reasons she is staying with her father
is that her mother cannot always buy her the things she needs and [Father] is
able to do so.
FN6.
Father was previously convicted of driving under the influence, and he was
sentenced to a period of probation.
FN7.
Secure Continuous Remote Alcohol Monitor.
FN8.
Due to the domestic violence incident in February, 2008, Father was placed on a
SCRAM unit, and he was tested regularly for alcohol during scheduled
appointments with his probation officer. N.T., 9/
The
[c]ourt finds the children do not appear to have any real emotional connection
with [Father]. The testimony of several witnesses show the children have
flourished in their new environment. The [c]ourt feels that removal of the
children from the [foster parents'] home after nearly twenty-two months would
cause even more trauma to the children. Therefore, the [c]ourt finds [CYS] has
met its burden as determined by the ICWA. As such, the [c]ourt is satisfied that
termination of [Father's] parental rights will be in the best interests of the
children.
Trial
Court Opinion, 10/
?
8 In its opinion accompanying the subject order, the trial court thoroughly set
*553
forth the testimony of the witnesses during the termination hearing. The
testimony established that, following the February 2008, domestic violence
incident, during which Father's face was slashed by Mother, Father became
serious about sobriety for the first time since the children were declared
dependent. There is no evidence that Father consumed alcohol from the evening of
the February incident to the time of the termination hearing, that is, a period
of approximately seven months. However, in violation of his probation, Father
failed to report the February, 2008, incident to his probation
officer.FN9
N.T., 9/
FN9.
Father was required to report all police contacts to his probation officer.
N.T., 9/
?
9 Moreover, the testimonial evidence reveals that, by the time of the
termination hearing, the children had been placed together with the same foster
family for a period of twenty-one months. N.T., 9/
I
saw pretty quick changes after the children went to the resource home. [E]ven as
far as their relationship with myself[,] they were just much more relaxed, they
were more engaging. They were able to communicate and eventually they started
becoming more demonstrative in giving hugs and kisses and being able to
emotionally connect with someone. There were also improvements in their ...
behavior, in their performance in school. Just in general they became much
happier, much more comfortable and confident in what their day-to-day life was
going to be.
...
They
continue to ... do superbly in their resource home. [A]ll three of *554
them have grown significantly. [H.C.] is speaking in full
sentences....
[S.C.]
has really blossomed socially. She is participating as a c[h]eer leader now.
She's gained more confidence.... [T.C.] is doing very well ... focusing on
school and ... extracurricular activities[,] and I see them just naturally being
loving with one another and with other people. I see them ... easily engaging
with other people and ... overall quite healthy.
Id.
at 115-116.
?
10 Finally, Bruce Anderson, a licensed psychologist, who performed a
psychological evaluation on Father, and interviewed the children and the foster
parents, opined that any change in placement ?would be extremely traumatic? for
the children. Id.
at 95. He opined that it is in the children's best interest to remain with the
foster parents. Id.
at 98.
[2]
? 11 Father argues that the testimony of the expert witness, Luann Kolumbus,
presented by Lycoming County Children and Youth Services (?CYS?), was
insufficient pursuant to the standard set forth in the ICWA. Specifically, he
argues it was insufficient because she (1) lacked sufficient information to make
an informed opinion and (2) deferred to the recommendations of CYS. Pursuant to
25 U.S.C. ? 1912(f), Father argues that this expert's testimony did not prove
beyond a reasonable doubt that placement with Father was likely to result in
serious physical or emotional harm. Upon careful review, we conclude Father's
claim lacks merit.
[3]
? 12 The ICWA requires the evidence for terminating parental custody to ?include
testimony of qualified expert witnesses that the continued custody of the child
by the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.? Section 1912(f); In
re A.N. and M.N.,
106 P.3d at 561. However, a trial court ?need not conform its decision to a
particular piece of evidence or a particular expert's report or testimony as
long as a reasonable person could have found beyond a reasonable doubt, that the
continued custody of the child by the parent ... is likely to result in serious
emotional or physical damage to the child.? In
re A.N. and M.N.,
106 P.3d at 562.
?
13 Kolumbus testified that she is a member of Lac-Courte-Oreilles Band of Lake
Superior Chippewa Indians. N.T., 9/
?
14 With respect to the instant matter, Kolumbus testified she supervised a
caseworker from the Indian Child Welfare agency who was assigned to the case.
Id.
at 25. Kolumbus opined that CYS made an active effort to provide remedial
services and rehabilitative programs to prevent the break-up of this family.
Id.
at 27-28. She testified as follows regarding termination of Father's parental
rights:
[It]
has been almost two years, and ... I would go with the recommendation of [CYS]
workers because they are there. They know the case better than we do. We will
rely on their recommendation *555
... because we are all looking at what's in the best interest of these
[children].
Id.
at 34. Further, with respect to the opinion of Bruce Anderson, the licensed
psychologist, that any change in placement ?would be extremely traumatic? for
the children, Kolumbus testified:
[W]e
also do ... the psychological evaluations.... I'm aware of bonding. I'm aware of
the other issues that affect children that are placed and placed and placed and
the traumatic injury it causes to them.... I think that if the bonding has
occurred and ... if they're doing well and happy ... then that's the part that
we focus on to[o].
Id.
at 35-36. She concluded that Father's parental rights should be terminated.
Id.
at 36.
?
15 On cross-examination, Kolumbus revealed she was unaware of Father's recent
progress with his alcoholism. Id.
at 37-39. Nevertheless, she did not change her recommendation for termination.
She explained, ?I do have faith that ... social workers[,] knowing all this
information[,] and if they are still recommending the termination of parental
rights ... there's some reason for it and so ... I would agree with their
recommendation.? Id.
at 43.
?
16 Father relies on J.J.
v. State, Dep't of Health & Social Services,
38 P.3d 7 (Alaska 2001), in arguing that the opinion of Kolumbus was
insufficient because she lacked information about Father's alleged recent
sobriety. In J.J.,
the Supreme Court of Alaska reversed and remanded the order terminating the
mother's parental rights. In that case, the expert witness for the Department of
Health and Social Services relied on the case file provided by the Department in
recommending termination. The Alaska Supreme Court determined that the file was
incomplete because it did not include evidence of the mother's alcohol
rehabilitation and her recent sobriety. As such, the Court determined the
expert's conclusions lacked reliability.
?
17 In contrast to this case, the children in J.J.
were not going to remain with their current foster parents. Therefore, the
mother argued placing the children with her would be no more emotionally
disruptive than placing them in another foster home. The Alaska Supreme Court
determined that the trial court, instead of terminating the mother's parental
rights, should have reestablished visitation for an additional time period,
after which ?a reasonable person could with greater confidence decide whether
the State had met its burden of demonstrating the likelihood of future serious
harm to the children.? Id.
at 10. The Court continued, ?this option was available to the [trial] court
without interrupting an established relationship, as the children had not been
permanently placed.? Id.
at 10-11.
?
18 In this case, providing Father an additional time period to demonstrate
sobriety would interrupt the children's established relationship with the foster
parents, with whom they have lived for nearly three years, and who wish to adopt
them.FN10
Further, based on the testimonial evidence, a reasonable fact finder could
conclude beyond a reasonable doubt that removing the children from the foster
parents in order to reunite them with Father would cause them serious emotional
harm. As such, we conclude Father's reliance on J.J.
is inapposite to this matter. Kolumbus' lack of information on Father's claimed
recent sobriety does not require denial of the *556
petition for termination of his parental rights.
FN10.
T.C. and S.C. informed Bruce Anderson that they would like to live with the
foster parents until they are ?grown up.? H.C., because of his age and verbal
limitations, was unable to communicate his desire. N.T., 9/
?
19 We also reject Father's claim that the opinion of Kolumbus should be rejected
because she relied solely on CYS's case file. Father cites C.J.
v. State, Dep't of Health & Social Services,
18 P.3d 1214 (Alaska 2001) in support of his position. C.J.
is a related case to J.J.
In C.J.,
the Alaska Supreme Court determined that the conclusions of the same expert as
in J.J.
?appear to be little more than generalizations about the harms resulting from a
parent's absence and provide little discussion of the particular facts of this
case.? Id.
at 1218.
?
20 In contrast to the expert in C.J.,
in addition to the case file, Kolumbus was familiar with particular
circumstances of this case through the caseworker from the Indian Child Welfare
agency who was assigned to it. Kolumbus testified that she was updated by the
caseworker whom she supervised. N.T., 9/
?
21 Lastly, Father argues the evidence presented by CYS was insufficient to show,
beyond a reasonable doubt, that Father's continued custody of the children would
result in serious emotional or physical harm to them. We disagree.
?
22 Father relies on C.J.,
supra,
in arguing that, like C.J.,
he was successfully parenting his older child and had taken steps to put himself
in a position to parent the subject children. Further, Father argues that, based
on testimonial evidence regarding his recent sobriety, reasonable doubt existed
as to whether continued custody would likely lead to the children's physical or
emotional harm.
?
23 Father's sixteen-year-old daughter testified at the termination hearing that
she had been living with Father for approximately three months.FN11
N.T., 9/
FN11.
This daughter has a different mother than that of the subject children.
9/
?
24 In sum, competent evidence supports the trial court's findings. In addition,
based on the evidence, a reasonable fact finder could conclude beyond a
reasonable doubt that removing the children from the foster parents in order to
reunite them with Father would cause them serious emotional harm.
?
25 Accordingly, we affirm the trial court's order terminating Father's parental
rights pursuant to 25 U.S.C. ? 1912(f).
?
26 Order AFFIRMED.