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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.R.R., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: ALLEGHENY COUNTY : OFFICE OF CHILDREN, YOUTH AND : FAMILIES : No. 206 WDA 2018
Appeal from the Order January 10, 2018 in the Court of Common Pleas of Allegheny County Orphans’ Court at No(s): CP-02-AP-0000055-2016
IN RE: A.R.R., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: ALLEGHENY COUNTY : OFFICE OF CHILDREN, YOUTH AND : FAMILIES : No. 207 WDA 2018
Appeal from the Order Entered January 10, 2018 in the Court of Common Pleas of Allegheny County Orphans’ Court at No(s): CP-02-AP-0000057-2016
BEFORE: BOWES, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 16, 2018
Allegheny County Office of Children, Youth and Families (CYF) appeals
from the orders entered January 10, 2018, in the Court of Common Pleas of Allegheny County, which denied its petitions to terminate involuntarily the parental rights of T.A.R. (Mother) and T.R.R. (Father) (collectively, Parents) to their children, J.R.R. (born in August 2002) and A.R.R. (born in November
2007) (collectively, Children).1 We affirm. ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1CYF had also filed a petition to terminate Parents’ parental rights to a third child, C.R. (born in June 2004). The orphans’ court granted CYF’s petition on
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We offer the following summary of the factual and procedural history of this case. In 2004, prior to CYF’s involvement, and at the recommendation of Children’s2 pediatrician, Parents sought services to assist them with J.R.R. and C.R. due to their suffering developmental delays. Services continued through A.R.R.’s birth in 2007, and remained in place until 2008. In 2008, “CYF became involved with the family after receiving a [Childline3] report that J.R.[R.], age five at the time, had appeared at school with bite marks and scratches and stated that C.R., his younger brother, had caused them.” Orphans’ Court Opinion, 3/28/2018, at 3. CYF investigated, but did not accept the family for services, because they were already receiving numerous services from various providers. In September 2008, CYF received two additional Childline reports, regarding Father injuring C.R. and C.R. injuring J.R.R. Additionally, CYF learned that Father was physically abusive toward Mother. “A CYF visit to the home revealed excessive clutter and indication that the family suffered from a tendency to hoard possessions.” Id. In November 2008, CYF accepted the ____________________________________________ November 8, 2017, and Parents filed a notice of appeal to this Court. This Court affirmed the order terminating Parents’ parental rights to C.R. on May 21, 2018. 2 At this point, only J.R.R. and C.R. had been born. 3“Childline is part of [a] mandated state wide protective services program which accepts child abuse [reports] and general well-being concerns.” CYF’s Brief at 7 n.3.
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family for services based upon the Childline reports and Father’s actions. CYF instituted a family safety plan and provided services to address the issues with excessive clutter.4 By April 2009, Children were still being injured by each other, Parents were not adequately supervising Children, and C.R. was increasingly violent with J.R.R. and Mother. On August 7, 2009, J.R.R. was admitted to Latrobe Hospital after he tried to jump out of a window. In addition, J.R.R. was becoming increasingly aggressive toward his family and there were incidents of him urinating on the floor. He stayed in Latrobe Hospital until returning home on August 12, 2009. On June 19, 2010, CYF removed J.R.R. from Parents’ care, and he was admitted to the Western Psychiatric Institute and Clinic (WPIC) due to displays of increased aggression. He was then transferred to Residential Enhancement Services, Planning Opportunities for New Directions (RESPOND), a mental health facility for intensive treatment of children with mental health disorders who have not succeeded at other facilities. He remained at RESPOND to receive therapeutic residential care from July 22, 2010 to October 14, 2011[,] when he returned to [P]arents’ home, although he continued to receive services of the RESPOND program Mobile Treatment Team following his discharge. Id. at 6. “On February 15, 2012, [C]hildren were adjudicated dependent on grounds that they suffered from a lack of supervision and because Parents ____________________________________________ 4 Those services continued until 2009 and then were discontinued when the providers reported that Parents were making only minimal progress toward resolving the issues with clutter.
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displayed a lack of improvement in their ability to parent [C]hildren despite the provision of various services to aid them.” Id. at 4. J.R.R. was removed from Parents’ home at his own request. A.R.R. was removed from Parents’ care after she was found unattended, and there were reports of violence between her and her brothers. With respect to J.R.R., CYF placed him at Auberle Shelter until August 3, 2012. He then moved into a foster home until December 20, 2013, when he returned to [P]arents. J.R.[R.] remained in the care of [P]arents until April 7, 2014[,] when he became very aggressive and agitated during a psychological evaluation with Dr. Patricia Pepe, a licensed psychologist, resulting in his admission to WPIC until April 16, 2014. He was then placed with the Mercy Behavioral Health Diversion and Acute Stabilization (DAS) program. [J.R.R. returned home on May 7, 2014.] Id. at 6. With respect to A.R.R., at the time of dependency, CYF placed her in an Every Child foster home for two days, but she was removed from there after being found wandering unattended. On May 25, 2012, CYF placed A.R.R. with her maternal aunt, where she stayed until November 2012 when her aunt could no longer manage A.R.R.’s behavior. A.R.R. moved to a foster home at that time, where she remained until March 2014, when the foster mother “reported that she could no longer manage Parents’ negative involvement.” Id. at 7. A.R.R. then returned home, where she was living with Parents, J.R.R., and C.R. On June 9, 2014, A.R.R., reported that she and/or her siblings had showered with Father. Children were again removed from the home.
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J.R.[R.] returned to his prior foster home where his behaviors improved until November of 2015 when he became very aggressive towards his foster mother, threatened to harm her grandchild, and displayed suicidal and homicidal ideations. The foster family requested his removal at that time and he was placed at a local hospital and then transported to Southwood Psychiatric Hospital. J.R.[R.] remained at Southwood from November 30, 2015 to December 4, 2015[,] before moving to Family Services of Western PA Diversion and Acute Stabilization (DAS) program at the recommendation of service providers at Southwood who believed that it was therapeutically necessary for him as a step down placement as he would likely not adjust well to a foster home setting at that time. On December 13, 2015, he moved to a Family Links home then to Family Links Pathways until June 21, 2016, and from there to his current foster home.
Id. at 6-7.
A.R.[R.] moved to foster care, where foster mother reported that A.R.[R.], age six at the time, was soiling herself, and also that she behaved aggressively, and was hitting her teachers. CYF admitted A.R.[R.] to Southwood Psychiatric Hospital on March 26, 2015 to May 5, 2015[,] after which she returned to foster care until July 22, 2015. However, A.R.[R.]’s aggression continued, and after she threatened to harm herself and others in the home, CYF admitted her to WPIC from July 22, 2015 to November 3, 2015. She then moved to Family Links Pathways from November 2015 to July 2016 and then to RESPOND where she continued to reside at the time of the TPR hearings.
Id. at 7-8.
On March 28, 2016, CYF filed petitions to terminate involuntarily the parental rights of Mother and Father as to J.R.R., C.R., and A.R.R. The orphans’ court initially conducted termination of parental rights (TPR) hearings on April 8, 2016, July 1, 2016, October 7, 2016, January 13, 2017, and April
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21, 2017.5 In the meantime, on March 28, 2017, the Pennsylvania Supreme Court decided In Re: Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (requiring appointment of counsel to serve child’s legal interests). Accordingly, the orphans’ court appointed legal counsel for each child and held de novo TPR hearings on the petitions to terminate parental rights on September 8, 2017, September 14, 2017, September 25, 2017 and October 12, 2017.6 At those hearings, the orphans’ court heard testimony from the following individuals: Jessica Judy (a supervisor from a service provider); Dr. Todd Ryan Hode (program director for the RESPOND program); Leann Rendulic (a CYF caseworker assigned to this family); Wanda Beasley (a CYF caseworker assigned to this family); Tamryn Brown (A.R.R.’s mental health outpatient therapist); and Parents. In addition, the orphans’ court heard testimony from two psychologists, who reached opposite conclusions regarding termination. This family was initially evaluated by Dr. Patricia Pepe from 2011 to 2014. After an incident in 2014 where J.R.R. became violent with Dr. Pepe, this case was reassigned ____________________________________________ 5 Even in a complex case such as this one, it is unacceptable for the orphans’ court to take a year to complete a TPR hearing. See In re T.S.M., 71 A.3d 251, 256 n.12 (Pa. 2013) (“An eight month delay between the filing of a termination petition and a hearing thereon, without some explanation is inconsistent with the best practices for dependent children in need of permanency.”). 6The orphans’ court also incorporated J.R.R.’s testimony from January 13, 2017.
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to Dr. Neil Rosenblum, who conducted evaluations in 2014 and 2015. The case was then re-assigned back to Dr. Pepe. The orphans’ court summarized their testimony.7 Dr. Patricia Pepe who evaluated the family between 2011 and 2014, and again in 2016, opined that a lack of structure and “constant chaos” in the home resulted in the needs of [C]hildren not being met. Dr. Pepe reported that Mother was “extremely depressed, withdrawn, overwhelmed” and “in a state of hopelessness” and that Mother’s own mental health problems caused her to “shut down.” As a result, Mother was “not available to [C]hildren when they desperately needed her,” failed to provide stimulation and nurture, and as a consequence [C]hildren have been neglected and suffered “extreme developmental delays.” Dr. Pepe further opined that Mother failed to take responsibility for [C]hildren’s problems, or comprehend what changes she would have to implement in order to improve her ability to parent. Dr. Pepe reported that Mother failed to follow through with specific recommendations from service providers to help [C]hildren improve their level of functioning, and that Mother displayed extreme emotional volatility. In addition, she noted a tendency by Mother to believe that both she and [C]hildren were “always sick” and reinforced that belief in her contact with [C]hildren and others, contributing to their continued problem behaviors and inability by Mother to appropriately address those behaviors. Even while noting that Mother and Father were cooperative with her during psychological evaluations, Dr. Pepe maintained that they were “completely ineffective in addressing [Children’s] behaviors.” However, in at least one evaluation in August 2013, Dr. Pepe reported “greater family cohesion” with Mother and Father “in control” and “[a]ll three [C]hildren exhibit[ing] multiple bonding behaviors towards their parents suggestive of a primary ____________________________________________ 7 As this Court has explained, “a trial court has discretion to accept or reject a witness’ testimony, including that of an expert witness, and is free to believe all, part, or none of the evidence presented.” In re Bosley, 26 A.3d 1104, 1111 (Pa. Super. 2011) (citing Childress v. Bogosian, 12 A.3d 448, 456 (Pa. Super. 2011)).
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attachment,” indicating some positive efforts by Parents to manage their [C]hildren’s needs. Subsequently, however, when Dr. Pepe again attempted to evaluate the family’s progress in 2014, in the course of the meeting J.R.[R.] became agitated and aggressive, slapping Mother and pulling her hair. When Dr. Pepe attempted to intervene, J.R.[R.] punched her in the face resulting in J.R.[R.] being transported immediately for hospitalization at WPIC. Dr. Pepe thereafter declined to conduct further evaluations of the family, and did not evaluate the family again until 2016. Psychological evaluations in 2014 and 2015 were therefore conducted by Dr. Neil Rosenblum.
Based on her various psychological evaluations of the family, Dr. [] Pepe described Parents’ relationship with [C]hildren as “pathological” and “toxic.” While acknowledging that J.R.[R.] and A.R.[R.] suffer from significant developmental delays and behavioral and psychological problems, Dr. Pepe nevertheless attributed much of [C]hildren’s below age-level behaviors to Parents[’] failure to provide the necessary level of parenting supervision and structure to meet [Children’s] physical, emotional, and mental health needs, in order for them to function appropriately. According to Dr. Pepe, [P]arents lack the capacity to control [C]hildren and to respond to them appropriately as parents, despite the resources they have received over the years to assist them with managing [C]hildren’s needs.
Dr. Pepe testified that during psychological evaluations with J.R.[R.], he reported to her that [M]other and [F]ather fought a lot, expressed frustration with the chaos and conflict in the home, and although he did indicate a desire to live with [P]arents, he also stated contradictory desires to leave the home because [] it was not a calm environment, all [M]other did was put on movies, he did not have a clean house, and “Mom and Dad have to stop screaming.”
With respect to A.R.[R.], Dr. Pepe opined that Parents’ failure to provide her with the encouragement, opportunity and the parenting necessary to develop age appropriate skills has contributed to her developmental delays and problem behaviors. She noted that A.R.[R.] has tested in the above-average IQ range, and is “a very intelligent little girl [who] had the capacity to benefit from clearly defined expectations.” Dr. Pepe did recognize however, that even outside of Parents’ care, A.R.[R.] has continued to display problem behaviors.
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Dr. Pepe opined that if [C]hildren were not given the opportunity to live in a supportive and positive home environment outside of parental care, they would not be able to function as adults. She testified that [P]arents have had an extremely negative impact on [C]hildren, and that future contact with them would be detrimental to all three children, emphasizing instances in which [C]hildren exhibited poor behaviors after interacting with Parents. Dr. Pepe opined that Parents’ failure to internalize and effectuate positive change in their relationship with [C]hildren might be due to a lack of capacity given Parents’ own psychological conditions such as Mother’s “narcissistic” tendencies, leading her to become “self-absorbed” and “neglect” [C]hildren and [Father’s] impulsivity and aggression. Although Dr. Pepe recognized that [C]hildren were attached to Parents and that a bond exists between them, she opined that the parental relationship is detrimental to [C]hildren. Dr. Neil Rosenblum however, contradicted Dr. Pepe’s conclusions that Parents were harmful to [C]hildren. Rather, at the TPR hearings Dr. Rosenblum testified he disagreed with Dr. Pepe’s conclusion that the relationship between Parents and [C]hildren was “pathological” and “toxic,” and stated that his view of the family differed from Dr. Pepe’s. Dr. Rosenblum further testified that termination of parental rights would not necessarily serve the needs and welfare of [C]hildren.[5] _____________________
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that [C]hildren are “severely impaired developmentally [and] mentally” and that while “some of these concerns undoubtedly have been a manifestation of poor parenting and a dysfunctional home environment … on the other hand some of these manifestations and problems are clearly a function of genetics and biological impairments, which both parents evidence.”
Although Dr. Rosenblum recognized that Mother and Father are “challenged in their ability to respond effectively and consistently to the needs of [C]hildren,” he did not view their relationship with [C]hildren as totally unhealthy and toxic. He recognized that Parents were not able to stay consistently calm, and that Father evidenced a lack of impulse control. He additionally recognized that Mother had difficulty setting limits and utilizing parenting skills such as positive reinforcement in “real life situations.” He opined that “her own mental health problems contribute” to that inability, such that she “cannot consistently or uniformly incorporate the types of desired behavioral characteristics of parents … that would be [optimal] for [C]hildren.” Nevertheless, Dr. Rosenblum recognized a strong bond between Parents and [C]hildren, and observed that their relationship had important positive elements.
Dr. Rosenblum disagreed with Dr. Pepe’s suggestions that [C]hildren’s negative behaviors could be so heavily imputed to Parents. Rather, he testified that other circumstances and triggering factors, together with genetic and biological component[s] of [C]hildren’s mental health disorders, may have played a role in [C]hildren’s negative behaviors. For example, he noted that [C]hildren have difficulty with change and transition, and they did not fully understand why they did not live with Parents[,] which may have contributed to their outbursts. He reiterated that all three children are particularly challenging, each in their own right, that they suffer significant underlying mental health problems, and that they are prone to emotional volatility. He observed that although Parents have not been able to consistently manage [C]hildren’s behavior, [C]hildren have also not consistently succeeded in many other foster homes and mental health facilities outside of Parents’ care. He further noted a tendency by [C]hildren to fabricate or distort information and testified that A.R.[R.] in particular “lives in her own fantasy world at times[,]” which must be considered when assessing her allegations of sexual abuse and which make those allegations particularly difficult and challenging to address. He recognized
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that although A.R.[R.] does “act out sexually,” she in general “operates on a very primitive level” and that it had not been established with a high degree of accuracy that she has absolutely been sexually abused.
Dr. Rosenblum praised Parents for their “above and beyond” efforts to regularly and consistently visit with [C]hildren, and to stay informed about their various diagnoses and meet their intellectual needs, although he did acknowledge some limitations in Parents’ capabilities. However, he emphasized that Parents’ relationship with [C]hildren must be viewed in light of [C]hildren’s severe developmental problems, and “overwhelming” special needs, not all of which could be attributed to poor parenting. He stated that in this particular instance, Parents “have been placed under a microscope more than many” and that while “they struggle at times … [t]hey are far from perfect parents [but] are dealing with a very challenging group of children” and they parent appropriately in some ways.
Accordingly, Dr. Rosenblum testified that he had considerable reservations about recommending termination, particularly without the identification of an adoptive home. Rather, Dr. Rosenblum opined that “[C]hildren love their parents,” and that there is “considerable value and attachment and a positive connection” between [C]hildren and Parents. He stated that Parents “love their children [and while] there are some obviously unusual circumstances which prevent reunification and will most likely continue to do so … that doesn’t mean that [C]hildren should be totally cut off from [the] relationship which [is] meaningful even if they are not at a point where we can achieve reunification.”
Orphans’ Court Opinion, 3/28/2018, at 14-20 (citations to notes of testimony omitted).