J-A09012-21
2021 PA Super 101
IN THE INTEREST OF: S.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.S., FATHER : No. 1127 WDA 2020
Appeal from the Decree Entered September 23, 2020
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No: CP-02-AP-0000166-2019
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY STABILE, J.: FILED: MAY 17, 2021
D.S. (“Father”) appeals from the decree entered September 23, 2020,
which terminated his parental rights to his daughter, S.S. (“Child”), born in
December 2009, involuntarily. After review, we vacate and remand.
This is a somewhat unconventional termination of parental rights case.
Father is Child’s adoptive father and biological grandfather. Child’s biological
mother, A.S., is Father’s biological daughter. Father adopted Child in April
2017, following the termination of A.S.’s parental rights. The record reveals
that A.S. had substance abuse issues and a related criminal history. Father is
divorced and adopted Child as a single parent.
Child’s time residing with Father after her adoption was relatively brief.
The Allegheny County Office of Children, Youth and Families (“CYF”) received
a referral regarding the family in May 2017, after Father disciplined Child by
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* Retired Senior Judge assigned to the Superior Court.
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striking her on the legs and buttocks with a flyswatter, inflicting abrasions.
Father was arrested in June 2017 and ultimately pleaded guilty to endangering
the welfare of children and harassment, receiving a sentence of five years of
probation. Father arranged for Child to stay with two family friends who had
provided childcare in the past, M.B. and M.B. (“Foster Parents”). Meanwhile,
CYF obtained an emergency custody authorization and formally placed Child
with Foster Parents on June 7, 2017. The juvenile court entered a shelter care
order on June 9, 2017, and adjudicated Child dependent on June 30, 2017.
CYF also conducted a child abuse investigation, resulting in a founded report
of abuse against Father.1
Father was released on bond on the same day as his arrest in June 2017.
Initially, a condition of Father’s bond prohibited him from having contact with
Child, but the condition was lifted in October 2017. Father’s reunification goals
were to cooperate with CYF, complete a parenting program to learn alternative
methods of discipline, and attend supervised visits with Child. Father complied
and completed a parenting program by October 2017. CYF referred Father for
visits and family counseling through Three Rivers Adoptions Council (“TRAC”),
and Father attended visits at TRAC consistently.
For reasons that are not entirely explained, the trial court ended services
at TRAC in May 2018. It appears that the court concluded TRAC was exhibiting
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1 After the incident involving the flyswatter, but before Child entered foster
care, Father shaved Child’s head. Child claimed that Father did this to punish
her for not brushing her hair, while Father insisted that Child wanted to donate
her hair in honor of her young cousin who died of leukemia.
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bias in favor of Father. After the court ended services at TRAC, CYF made
referrals to several other potential service providers. However, none of those
providers were able to facilitate visits between Father and Child successfully.
Father made himself available for visits, but Child refused to attend. Father’s
last visit with Child occurred in June 2018, although he did speak with her on
the phone two times after that.
CYF filed a petition to terminate Father’s parental rights involuntarily on
September 3, 2019, and the trial court conducted a hearing on the petition on
August 21, 2020.2 The critical point of contention during the hearing was why
Child began refusing to attend her visits with Father and what relevance that
should have on the court’s termination analysis. CYF argued that Child began
refusing to attend visits because of the trauma she suffered in Father’s care,
which Father refused to acknowledge. According to CYF, this rendered Father
incapable of parenting Child and demonstrated that he still had not remedied
the conditions leading to Child’s placement in foster care.
In support of this position, CYF presented the testimony of Child’s former
therapist, Megan Cook, MA, ATR-BC, LPC, among others. CYF did not qualify
Ms. Cook as an expert witness. However, Ms. Cook opined that Child exhibited
“sematic symptoms that are consistent with what we would see in . . . a child
who experienced trauma.” N.T., 8/21/20, at 97. Ms. Cook reported that Child
verbalized fear of Father and his disciplinary methods. Id. at 99. Although
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2 The trial court appointed legal counsel to represent Child during the hearing.
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Ms. Cook did not provide therapy to Child until September 2018, after Child
had already begun refusing to attend visits with Father, she also reported that
Child’s symptoms became exacerbated “before or right after a visit with either
[F]ather or with biological mom or with any phone calls.” Id. at 96, 99. Ms.
Cook added that Child’s symptoms became exacerbated at the mere mention
of “visits or court or experiences[.]” Id. at 99-100. She agreed that Foster
Parents were supportive of Child attending visits with Father and opined that
Child’s fearful behaviors appeared genuine, as they had remained consistent
throughout a year and a half of treatment. Id. at 101-03.
Conversely, Father contended that Child refused to attend visits because
Foster Parents alienated Child from him. Father testified on his own behalf
and presented testimony from Neil Rosenblum, Ph.D. Dr. Rosenblum testified
that he conducted a series of evaluations of Child, Father, and Foster Parents
between 2017 and 2020. Id. at 170. He reported that Child appeared fearful
of Father at the start of their first and only evaluation together in 2017, but
that her mood improved after about ten minutes, and that she then interacted
with Father comfortably. Id. at 175-76. Child was also able to acknowledge
the positive aspects of her relationship with Father. Id. at 177-78. By 2020,
however, Child’s positive attitude toward Father was gone, and she insisted
that she hated him and did not want to see him again. Id. at 177. While Dr.
Rosenblum acknowledged that Child was justified in being fearful of Father,
he emphasized that Child’s fear did not improve but became “entrenched and
. . . broadened in nature over time.” Id. at 178.
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Dr. Rosenblum blamed Foster parents for this situation. He opined that,
while Foster Parents may profess to encourage Child’s visits with Father, he
observed body language indicating that they support Child’s refusal to attend.
Id. at 175, 187. In a report discussing his 2017 evaluations, Dr. Rosenblum
recounted that Child arrived for her evaluation with Father “crying profusely”
and sitting on her foster mother’s lap, while the foster mother held on to Child
“tightly, much as a parent might hold an infant in distress.” Exhibit 15 at 8-
10. After the evaluation with Father ended, Child returned to the waiting room
with a “smile on her face and look[ing] pleased,” to which her foster mother
responded by “look[ing] rather unhappy and possibly disappointed to a certain
degree that the session went so well.” Id. at 9. Dr. Rosenblum also reported
that Foster Parents made statements during later evaluations suggesting their
disinterest in encouraging Child’s visits. While summarizing a 2018 interview
with Foster Parents, for example, Dr. Rosenblum recounted that they did not
believe it was their responsibility to force Child to visit with Father, that Child
had “made up her mind” that she did not want to visit, and that they wanted
to adopt Child. Exhibit 16 at 7. Dr. Rosenblum recommended strongly against
terminating Father’s rights, explaining, “to me it’s unarguable that [Child] has
been alienated, it’s as clear as black and white, it’s as plain as day[,]” and
that research indicates alienation may lead to psychological damage later in
life. N.T., 8/21/20, at 189, 202, 216, 225-27.
Following the hearing, on September 23, 2020, the trial court entered a
decree terminating Father’s parental rights involuntarily. Father timely filed
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a notice of appeal, along with a concise statement of errors complained of on
appeal, on October 22, 2020. The court issued its opinion on December 22,
2020, explaining that it rejected Dr. Rosenblum’s testimony based in part on
a report by psychiatrist Donnesha Slider, M.D. The court indicated that it had
admitted Dr. Slider’s report during Child’s dependency proceeding, although
it did not admit her report at the termination hearing, and she did not testify
at the termination hearing.
Father now raises the following claims for our review:
1. Did the trial court abuse its discretion and/or err as a matter of
law in granting the petition to involuntarily terminate Father’s
parental rights pursuant to 23 Pa.C.S.[A.] §[]2511(a)(2), (5), and
(8)?
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 Father’s parental rights
would best serve the needs and welfare of the child pursuant to
23 Pa.C.S.[A.] §[]2511(b)?
Father’s Brief at 5 (trial court answers omitted).
We focus our analysis on Father’s first claim, as it is dispositive of this
appeal. Our standard of review is as follows:
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
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
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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).
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It requires a bifurcated analysis:
. . . . Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 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).
To affirm a termination decree, we must agree with the trial court as to
any one subsection of Section 2511(a) in addition to Section 2511(b). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863
A.2d 1141 (Pa. 2004). Here, the court terminated Father’s rights pursuant to
Sections 2511(a)(2), (5), (8), and (b), which provide as follows:
(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:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
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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.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
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23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).
Father contends on appeal that he remedied the conditions leading to
Child’s removal from his care, and that he did all that he reasonably could to
achieve reunification. Father’s Brief at 27-28, 31-32. Father argues that Child
did not remain in foster care due to anything he did or failed to do, but because
Foster Parents thwarted his reunification efforts by alienating Child from him.
Id. at 28, 32. He directs our attention to the testimony of Dr. Rosenblum and
maintains that the trial court should not have rejected that testimony. Id. at
33-35. Significantly, Father observes that the court explained its rejection of
Dr. Rosenblum’s testimony by relying on the opinions of Dr. Slider, who did
not testify at the termination hearing and whose report it did not admit into
evidence at the termination hearing. Id. at 34-35. Father acknowledges that
Dr. Slider’s report was admitted during Child’s dependency proceeding, but he
insists that the court should not have relied on that evidence to terminate his
parental rights unless it was also admitted during the termination proceeding.
Id. Father asserts that he had no notice the court intended to consider Dr.
Slider’s report when rendering its termination decision, which prevented him
from calling Dr. Slider as a witness or challenging her opinions. Id.
Initially, our review of the record confirms that Dr. Slider did not testify
at the termination hearing, that the trial court did not admit her report into
the record at any point during the termination proceeding, and that the parties
and the court did not agree to “incorporate” the dependency record into the
termination proceeding, as sometimes occurs in these cases. Dr. Slider’s
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report does not appear anywhere in the certified record on appeal. Our review
of the record also supports Father’s assertion that he did not have notice the
court might consider Dr. Slider’s report when rendering its decision. Dr. Slider
was not listed as a potential witness on any of the pre-trial statements, and
her name was never mentioned during the termination hearing. Nonetheless,
the court indicates in its opinion that it relied on Dr. Slider’s report to terminate
Father’s parental rights. The court reasoned as follows, in relevant part:
Father has consistently averred that the refusal of [] Child to visit
stems from a psychological opinion that “parental alienation”
existed in this case and is not related to the trauma from his
conduct. Psychological evaluations were performed by Dr. Neil
Rosenblum, a stipulated expert in the area of psychology. The
Court routinely utilizes the services of Dr. Rosenblum and relies
on his expert opinions.
However, in this case the Court, respectfully, had concerns with
Dr. Rosenblum’s recommendations and opinion of “parental
alienation” that he proffered. To this end, the Court ordered that
another psychological expert review the case. Dr. Donnesha
Slider, a child and adolescent psychiatrist, [] authored a report
which was made part of the record during the March 13, 2019
permanency review hearing. The Court incorporated Dr. Slider’s
recommendations for reducing stress associated with the
triggering events pertaining to visitation with Father[ into its
permanency review order.3] This Court finds that the behavior
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3 The trial court’s March 13, 2019 permanency review order states as follows
regarding Dr. Slider’s report and recommendations:
At the Court’s request, Dr. Donnesha Slider, M.D., Child and
Adolescent Psychiatrist, reviewed the case. Her report was made
part the record, via agreed admission by the parties. Dr. Slider
made four (4) recommendations as part of her case review, which
included medication management of anxiety to reduce the intense
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exhibited by [] Child refusing to attend visitation was more
consistent with a traumatized child.
Additionally, the Court accepted the testimony of Megan Cook,
licensed professional counselor and board certified art therapist
[from the] Center for Victims, who provided corroborating
testimony. Ms. Cook testified that she began working with [] Child
in September of 2018, and she conducted weekly individual
therapy sessions to treat trauma. During the therapy, [] Child
verbalized fear of Father and the forms of discipline he used on
her. Ms. Cook credibly testified that the behavior exhibited and
the reactions of [] Child appeared to be typical of a child who
experienced trauma. The therapist concluded that [] Child’s
fearful behaviors, despite encouragement of support, were
genuine and specifically not[ed] that they were consistent
throughout the one and a half years of treatment. To the extent
that a conflict exists between Dr. Slider and Dr. Rosenblum, the
Court sitting in its role as fact finder, placed the appropriate
weight upon the reports and the evidence as well as considered it
in the overall context of this particular case as well as the
corroboration by trauma therapist Megan Cook. Accordingly, the
Court rejected the theory of “parental alienation” opined by Dr.
Rosenblum. . . .
****
This Court previously acknowledged that Dr. Rosenblum routinely
testifies in the Allegheny County Family Division as an expert;
however, the Court respectfully disagrees with his expert opinion
in this particular case. Dr. Rosenblum authored an opinion that
recommended against terminating parental rights. Although this
Court routinely finds merit in his opinions, with respect to this
case, the totality of the testimony and evidence presented at the
termination proceeding as well as credibility determinations, gave
reason for this Court to weigh his opinion as less persuasive for a
number of reasons. Dr. Rosenblum has viewed the issues
between [] Child and [] Father as parental alienation, which this
Court does not find persuasive. The overwhelming number of
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stress response for triggering events or environments. The use of
medication management was rejected by Father.
Exhibit 18 (Permanency Review Order dated March 13, 2019, at 2).
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witnesses and corroborating testimony, including the opinions of
Dr. Slider and Megan Cook, convinced this Court that [] Child’s
refusal to visit with [] Father was due to trauma, and not
alienation.
Trial Court Opinion, 12/22/20, at 18-19, 24-25 (unnumbered pages, footnote
and citations to the record omitted).
The trial court’s sua sponte consideration of evidence outside the record
is fatal to its termination decree. See M.P. v. M.P., 54 A.3d 950, 955 (Pa.
Super. 2012) (quoting Ney v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007)) (“A
trial court may not consider evidence outside of the record in making its
determination. Nor may this court uphold a trial court’s order on the basis of
off-the-record facts.”) (citations and quotation marks omitted). The court’s
explanation that it admitted Dr. Slider’s report into the record during Child’s
dependency proceeding does not remedy this error. Termination proceedings
often occur simultaneously with dependency proceedings, but these two types
of proceedings remain distinct, with their own docket numbers, records, and
divisions within the Court of Common Pleas. Father did not appeal from any
orders entered in Child’s dependency proceeding, and this Court does not have
access to the dependency record. Assuming Dr. Slider’s report is present in
the dependency record, we have no way of reviewing it and confirming that it
supports the court’s findings. Moreover, as Father argues, the court’s actions
denied him the opportunity to question Dr. Slider or otherwise challenge her
report during the termination hearing.
We cannot conclude that the trial court’s error was harmless. “[F]inding
harmlessness in a termination [of parental rights] case requires us to conclude
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that the evidentiary error could not have had any impact upon the [trial]
court’s decision.” In re A.J.R.-H., 188 A.3d 1157, 1175 (Pa. 2018). The
evidence supporting involuntary termination of Father’s parental rights in this
case was relatively tenuous, given that he complied with his reunification goals
by completing a parenting program and attending visitation to the extent Child
was willing to participate, and given that Dr. Rosenblum opposed termination.
CYF’s case depended to a large degree on discrediting Dr. Rosenblum, and the
fact that the court relied on Dr. Slider’s report to justify its findings contrary
to Dr. Rosenblum’s opinion makes it clear that the report impacted the court’s
decision.
Accordingly, we must vacate the decree terminating Father’s parental
rights to Child involuntarily and remand for a new hearing to be held as soon
as possible. See id. at 1179 (vacating the decrees and remanding for a new
hearing due to the trial court’s improper admission of hearsay evidence). After
the hearing, the trial court must enter a new decision granting or denying
termination. The court must base its decision on evidence admitted during
the termination proceedings.
Decree vacated. Case remanded for further proceedings consistent with
this opinion. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2021
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