J-S22042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.C., BIRTH MOTHER No. 1977 WDA 2014
Appeal from the Order entered November 7, 2014,
in the Court of Common Pleas of Allegheny County, Civil
Division, at No(s): TPR 034 of 2014
BEFORE: PANELLA, LAZARUS, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 03, 2015
S.C. (Mother) appeals from the order entered November 7, 2014, in
the Court of Common Pleas of Allegheny County, which terminated
involuntarily Mother’s parental rights to her minor daughter, L.C. (Child),
born in September of 2012.1 We affirm.
At the time Child was born, both she and Mother tested positive for
opiates. Mother also tested positive for benzodiazepines. As a result, Child
was placed in the care of the Allegheny County Office of Children, Youth and
Families (CYF) immediately upon her release from the hospital. Child was
adjudicated dependent by order dated December 12, 2012.
* Retired Senior Judge specially assigned to the Superior Court.
1
The parental rights of Child’s putative father, A.C., as well as the parental
rights of any unknown father that Child may have, were terminated by
separate orders entered that same day. Neither A.C., nor any other alleged
father, is a party to the instant appeal.
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On March 3, 2014, CYF filed a petition to terminate Mother’s parental
rights to Child involuntarily. A termination hearing was held on October 17,
2014, October 23, 2014, and November 6, 2014. During the termination
hearing, CYF caseworker Larry Restivo testified that Mother has failed to
remedy her drug abuse issues. N.T., 10/17-23/2014, at 47. Most notably,
Mr. Restivo explained that Mother had been asked to appear for drug
screens 89 times since December 20, 2011. Id. at 26. Of those 89
requested screens, Mother refused twice, tested positive 17 times, and failed
to appear 41 times.2 Id. Mother’s last positive drug screen took place on
May 21, 2014. Id. Mother tested positive for suboxone and
benzodiazepines. Id. Mr. Restivo acknowledged that Mother was attending
A & R Health at the time the screen was taken, which would explained her
positive test for suboxone, but he stated that Mother never has provided him
with a prescription for benzodiazepines, despite his requests. Id. at 27.
Dr. Anthony Cancilla testified that he discharged Mother from A & R
Health because “she was not reliable, she was not making progress, and it
would have been malpractice for me to keep her there as a patient.” Id. at
79-80. Dr. Cancilla stated that Mother “was telling us one thing and what
the urines were showing us were another,” and that he recommended
“emergency hospitalization at a psychiatric hospital on an addiction ward.”
2
Mr. Restivo noted that he sometimes did not have a working phone number
for Mother, and that Mother would not call him and provide him with a new
number. N.T., 10/17/2014 & 10/23/2014, at 34.
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Dr. Cancilla was asked about records relating to Mother’s treatment at A & R
Health, which he provided to CYF, but which were not entered into evidence
at the hearing. According to counsel for CYF, Dr. Cancilla’s records indicated
that Mother tested positive for heroin on August 9, 2014, and that Mother
“admitted that she relapsed and that she has used illicit drugs in the past
week.” Id. at 80-82. Dr. Cancilla agreed that, “[i]f it’s there, it’s accurate”
and “you have the corresponding urine report that will show that it was in
urine.” Id. at 80-81. Dr. Cancilla’s records also indicated that Mother did
not have a documented prescription for benzodiazepines. Id. at 82.
Other witnesses to testify included child psychologist Dr. Neil
Rosenblum; foster care caseworker Nicole Holtz; and Mother.
On November 7, 2014, the court entered its order terminating
Mother’s rights. Mother timely filed a notice of appeal, along with a concise
statement of errors complained of on appeal.
Mother now raises the following issues for our review.
1. Did the trial court abuse its discretion and/or err as a matter
of law in permitting Dr. Cancilla to testify in violation of Mother’s
rights under the Pa. Patient’s Bill of Rights and her constitutional
rights to privacy as Mother had revoked any prior consent to
allow the doctor to divulge any information about his treatment
of her[?]
2. Did the trial court abuse its discretion and/or err as a matter
of law in concluding that CYF met its burden of proving by clear
and convincing evidence that termination of Mother’s parental
rights would best serve the needs and welfare of the child
pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 5 (trial court answers omitted).
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We first address Mother’s claim that the trial court abused its
discretion and/or erred by permitting CYF to present the testimony of Dr.
Cancilla.
When we review a trial court ruling on admission of
evidence, we must acknowledge that decisions on admissibility
are within the sound discretion of the trial court and will not be
overturned absent an abuse of discretion or misapplication of
law. In addition, for a ruling on evidence to constitute reversible
error, it must have been harmful or prejudicial to the
complaining party.
An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.
Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (quoting Stumpf v.
Nye, 950 A.2d 1032, 1035–36 (Pa. Super. 2008), appeal denied, 962 A.2d
1198 (Pa. 2008)).
As noted above, CYF called Dr. Cancilla to testify concerning Mother’s
time as a patient at A & R Health, where he is employed as a contract
physician. N.T., 10/17-23/2014, at 65. According to Dr. Cancilla, A & R
Health specializes in using the medications suboxone and subutex, along
with counseling, to treat individuals with narcotics addiction. Id. at 75.
Mother’s counsel objected prior to Dr. Cancilla’s testimony, stating that
Mother “has indicated that while she may have … signed some modified
release for him in the past, that she has subsequently revoked that release
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and she is exerting her rights under the HIPAA act[3] as well as under the
patient’s rights and responsibilities act in Pennsylvania code” to prevent Dr.
Cancilla from testifying. Id. at 58. During Dr. Cancilla’s testimony, Mother’s
counsel again objected, citing HIPAA and the “Pennsylvania patients’ rights
and responsibilities act,” and stating that Mother revoked any release that
she may have signed in the past. Id. at 66. The court permitted Dr.
Cancilla’s testimony, explaining, inter alia, that “CYF has to prove this case.
They have the burden ….” Id. at 59-61, 68-74.
On appeal, Mother presents a variety of arguments as to why the court
acted improperly by permitting Dr. Cancilla to testify. Specifically, Mother
contends that the court violated physician-patient privilege pursuant 42
Pa.C.S. § 5929, that the court violated 4 Pa. Code § 255.5(b), and that the
court violated Mother’s constitutional rights to privacy and confidentiality, as
preserved by the “bill of rights for patients” found at 55 Pa. Code § 5100.53.
See Mother’s Brief at 11-13. However, during the termination hearing,
Mother objected only on the basis of HIPAA and the “Pennsylvania patients’
rights and responsibilities act,” bases she does not argue on appeal.4
3
“HIPAA” is an acronym commonly used to refer to the federal Health
Insurance Portability and Accountability Act of 1996.
4
Mother does argue that the trial court misinterpreted a section of the Code
of Federal Regulations relating to HIPAA. Mother’s Brief at 11. However,
Mother does not quote or discuss any provision of HIPAA which actually
would prohibit Dr. Cancilla from testifying. Additionally, Mother does not cite
to the “Pennsylvania patient’s rights and responsibilities act,” and our
research suggests that no such statute exists. It appears that, by
referencing the “patient’s rights and responsibilities act,” Mother’s counsel
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Thus, Mother has abandoned the preserved bases for her objections to
Dr. Cancilla’s testimony by failing to raise them in her brief on appeal, and
waived the bases she does argue on appeal by failing to raise them in the
trial court. See, e.g., Commonwealth v. Cousar, 928 A.2d 1025, 1041
(Pa. 2007) (quoting Commonwealth v. Boden, 159 A.2d 894, 900 (Pa.
1960)) (“The rule is well settled that a party complaining, on appeal, of the
admission of evidence in the [c]ourt below will be confined to the specific
objection there made.”). Accordingly, Mother is entitled to no relief on her
first issue.
We now turn to Mother’s second issue on appeal, in which she argues
that that the trial court abused its discretion by terminating her parental
rights to Child involuntarily.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
was referring to 4 Pa. Code § 255.5(b), as he quoted from Section 255.5(b)
after again mentioning the “patient’s rights and responsibility act” during
Mother’s testimony. N.T., 10/17-23/2014, at 162. However, it does not
appear that Section 255.5(b) pertains to, or derives from, a “patient’s rights
and responsibility act.” Even if it did, the subject provision relates only to
the “[p]roject staff” of “projects” operating in connection with the
“Governor's Council on Drug and Alcohol Abuse.” See 4 Pa. Code § 255.5.
There is no suggestion in Mother’s brief that Dr. Cancilla would qualify as
“project staff” under this provision.
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court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis. Here, Mother does not contend that CYF failed to meet its initial
burden under subsection 2511(a) of proving that the parent’s conduct
warranted termination.5 Accordingly, we turn to
the second part of the analysis pursuant to [subs]ection
2511(b): determination of the needs and welfare of the child
under the standard of best interests of the child. One major
aspect of the needs and welfare analysis concerns the nature
and status of the emotional bond between parent and child, with
close attention paid to the effect on the child of permanently
severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Subsection 2511(b) provides, in relevant part: “The court in terminating the
rights of a parent shall give primary consideration to the developmental,
5
Indeed, the trial court held, and we agree, that CYF proved that Mother’s
conduct warranted termination under subsections 2511(a)(2) (repeated and
continued incapacity to provide parental care based upon causes that will not
be remedied by the parent), (a)(5) (child in the agency’s care for six months
and the causes will not be remedied by the parent within a reasonable
period of time, and (a)(8) (child removed from the parent’s care for 12
months or more and the conditions which led to removal still exist).
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physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). We have explained the analysis under this subsection as follows.
Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child. …
[T]he trial court must also discern the nature and status of the
parent-child bond, with utmost attention to the effect on the
child of permanently severing that bond. However, in cases
where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. Accordingly,
the extent of the bond-effect analysis necessarily depends on the
circumstances of the particular case.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (internal
citations and quotation marks omitted).
Here, the trial court concluded that the termination of Mother’s
parental rights would be in Child’s best interest. The court found that Child
is bonded with her foster mother, that “Mother is little more than a familiar
face to [Child,]” and that Child would not be harmed by the termination of
Mother’s rights. Trial Court Opinion, 1/26/2015, at 12. In contrast, the
court concluded that preserving Mother’s rights would be detrimental to
Child, as it would deny Child permanency. Id.
Mother argues that the trial court did not give “serious consideration
[to] the strong attachment, bond and love between Mother and [Child] ….”
Mother’s Brief at 18. Mother emphasizes her testimony during the
termination hearing that her visits with Child go well, and that it would be
harmful to Child if her parental rights were terminated. Id. at 15. Mother
also emphasizes the testimony of psychologist Neil Rosenblum, who stated
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that there is an attachment between Mother and Child, and that Mother
displays appropriate parenting skills. Id. at 15-16.
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion by terminating involuntarily
Mother’s parental rights to Child. During the termination hearing, CYF
caseworker Larry Restivo testified that Child was in a preadoptive foster
placement, and that Child is bonded with her foster mother. N.T., 10/17-
23/2014, at 49. Mr. Restivo agreed that Child’s foster placement is “a
stable, secure and nurturing environment.” Id. at 57. He opined that
termination of Mother’s parental rights would be in Child’s best interest. Id.
Psychologist Neil Rosenblum testified as an expert in child psychology.
Id. at 88. Dr. Rosenblum indicated that he conducted an evaluation of
Mother and her older child, C., in 2012, and an evaluation of Mother and
Child in 2014. Id. at 88-89, 92. Dr. Rosenblum explained that Child “was
definitely familiar with her mother and responded well to her play activities,”
and that Mother displayed “appropriate parenting skills.” Id. He opined that
there is attachment between Mother and Child, but not a primary
attachment, and noted that Child ran to her foster mother when the
evaluation concluded. Id. at 93. Dr. Rosenblum stated that he was
confident that Child’s primary attachment was to her foster mother, and that
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foster mother provides Child with “outstanding” care.6 Id. at 94-95, 103.
He opined that removing Child from her foster mother would be “very
dangerous and potentially emotionally damaging” to Child, and that adoption
would be consistent with Child’s needs and welfare. Id. at 95, 99. Dr.
Rosenblum emphasized Mother’s poor mental health, and explained that
Mother is someone “who just doesn’t get it in terms of taking a look at
herself and understanding the intensity of problems, … and who is not willing
to really work at making significant changes in her personal functioning and
in her physical and emotional dependency on drugs or prescribed medication
….” Id. at 89-90, 98-99.
Mother testified that Child calls her “mommy” and “comes running”
toward Mother during visits. Id. at 135. Mother stated that she is “closely
bonded” with Child. Id. at 147. According to Mother, if Child were in her
care, her bond with Child would be “way above and beyond” Child’s bond
with the foster mother. Id. Mother insisted that she is a “wonderful mother
6
In his 2014 evaluation, which was admitted as part of CYF Exhibit 4, Dr.
Rosenblum noted that Child refers to her foster mother as “Mom-Mom.” CYF
Exhibit 4, 2014 Evaluation, at 2. Dr. Rosenblum also indicated, in both the
2014 evaluation and his testimony, that Mother is prescribed
benzodiazepines in the form of Xanax. Id. at 1; N.T., 10/17/2014 &
10/23/2014, at 90-91. Dr. Rosenblum did not specify the source of this
information. However, he described Mother’s purported prescription for
Xanax as “highly questionable given the fact that Xanax is contra-indicated
for someone on a prescribed opioid pain medication such as Suboxone.” CYF
Exhibit 4, 2014 Evaluation, at 10.
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that loves my kids and knows what’s best for them,” and that Child would be
harmed if Mother’s parental rights were terminated. Id. at 135-36, 141.
Thus, the testimony presented during Mother’s termination hearing
supports the trial court’s conclusion that it is in Child’s best interest to
terminate Mother’s parental rights. Child is bonded with her foster Mother,
who provides her with exceptional care and support. In contrast, Child
never has resided with Mother. Further, while Mother and Child have a
bond, it is clear that, under the facts of the instant case, this bond is
outweighed by Mother’s inability or refusal to remedy her drug addiction,
and by Child’s need for permanence and stability. See In re Adoption of
C.D.R., 111 A.3d 1212, 1220 (Pa. Super. 2015) (concluding that the
mother’s bond with C.D.R was outweighed by the mother’s “repeated failure
to remedy her parental incapacity,” and by C.D.R.’s need for permanence
and stability). No relief is due.
Accordingly, because we conclude that the trial court did not abuse its
discretion by terminating involuntarily Mother’s parental rights to Child, we
affirm the order of the trial court.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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