ALLOCATUR WATCH

The state Supreme Court has agreed to take up a case involving whether parental rights should be terminated under the state Adoption Act of 1980 when a pathological bond exists between a child and a parent.

In January, a three-judge state Superior Court panel ruled 2-1 to affirm a ruling by Allegheny County Court of Common Pleas Orphans’ Court Division Judge John T. McVay Jr., adopting McVay’s opinion and reasoning in full.

In In re T.S.M., T.R.M., T.J.M., T.A.M. and N.D.M., McVay had denied petitions filed by the Allegheny County Office of Children, Youth and Families (CYF) seeking to terminate the parental rights of a mother of seven.

McVay had determined that the children’s bond with their mother was so strong that severing it would cause the children irreparable harm.

"The court finds that it does not serve the needs and welfare of these children to involuntarily terminate parental rights without adoptive placements," McVay said.

In T.S.M., according to McVay, the children and their mother "have an extended history with CYF dating back to 2001 with allegations of physical abuse and neglect being made in 2002."
Since that time, McVay said, all the children have done extended stints in foster care.

In April 2008, according to McVay, there was only one child in the mother’s custody, but, following a hearing, the Allegheny County Court of Common Pleas ordered two other children to be reunited with their mother.

The mother’s visitations with the rest of the children still in foster care remained supervised, however, McVay said.

But by August 2008, according to McVay, the court had returned all but two children to the mother’s custody.

On January 7, 2009, however, the court granted a motion by CYF seeking to have the five children who were living with the mother and one who was still in foster care taken to the Children’s Hospital of Pittsburgh for forensic interviews, according to McVay.

The following day, CYF brought an emergency custody authorization based on those interviews, during which the children said their mother hit them with belts and hangers, smoked marijuana and had sex with her paramour in front of them, McVay said.

All of the children who had been living with the mother were removed from her home that same day, according to McVay.

Over the next few years, the children remained in foster care, with several of them receiving therapy for various psychological and behavioral issues, McVay said.

In January 2012, McVay denied CYF’s petition to terminate the mother’s parental rights, finding that CYF had failed to provide clear and convincing evidence that doing so would serve the needs and welfare of the children.

When KidsVoice, the guardian ad litem for the seven children, appealed the decision to the Superior Court, McVay penned an opinion.

In the opinion, McVay began the discussion of his reasoning by referencing the 2009 Sandra Bullock film The Blind Side, which tells the story of Baltimore Ravens offensive lineman Michael Oher, who was adopted.

McVay pointed to "two compelling scenes that capture what it is that we do in Pennsylvania’s child dependency system."
The first scene McVay referenced was one in which Oher’s mother says that every time the state took her son from her, he ran away from the foster home to find her.

The second scene McVay referenced was one in which Oher’s foster mother asks him if he’d like her to become his legal guardian so he could become a part of her family and Oher responds that he thought he already was.

McVay said the two scenes "capture the essence" of the case and "underscore that what we should be doing is finding loving homes for kids and if there is attachment and bonding to their family, it is likely that children will continue to seek them out for some type of reunification."

According to McVay, court-appointed expert Dr. Patricia Pepe has testified to the children’s strong attachment to their mother.

It wasn’t until a termination of parental rights hearing in June 2011 — more than four years after the case first began — that Pepe testified on cross-examination that the bond between the children and their mother was pathological, McVay said.

But McVay further noted that Pepe still recommended family therapy and rehabilitation, rather than the termination of parental rights.

"While this court recognizes that bonding and attachment are different, and that there is a spectrum from health to pathological bonding, and from bonding to attachment, ultimately, the remedy for these children remained more family therapy and not their further psychological traumatization through involuntarily terminating their family relationships," McVay said, adding that several of the children’s foster parents and family members testified that the children had strong bonds with their mother.

According to McVay, Pepe recommended that the children maintain a relationship with their mother through either open adoption or subsidized permanent legal custody (SPLC) involving a parental relationship.

On appeal, Superior Court Judges John T. Bender and Christine L. Donohue voted to affirm McVay’s ruling, but Judge Mary Jane Bowes penned a dissenting opinion, disputing McVay’s assertion that Pepe had not mentioned the pathological nature of the bond between the children and their mother until the June 2011 hearing.

"In actuality … Dr. Pepe broached the subject of mother’s harmful attachment with the children during the first termination hearing on April 27, 2011," Bowes said. "Moreover, while Dr. Pepe did not specifically discuss pathological bonding in her comprehensive psychological reports, the facts underlying her expert testimony are resoundingly apparent from those evaluations."

And while Pepe did testify that pathology can be treated with family therapy and parental rehabilitation, McVay failed to address Pepe’s caveat that treatment is predicated on the children’s ability to trust and feel safe with a parent.

Bowes, noting that the only two children in this case who do not suffer from psychological or behavioral issues are the one with a strong attachment to his caregivers and the one who is too young to have had much contact with the mother, said she did not believe the mother was capable of successfully completing treatment.

"Thus, mindful of the alarming incidents of abnormal interpersonal behaviors among the children that are all directly attributable to mother and cognizant that the pathological bonds that mother shares with the children are not beneficial, I do not believe that the record sustains the orphans’ court’s finding that mother’s attachment with the children displays the hallmarks of a healthy parent-child attachment," Bowes said.

Bowes also took aim at McVay’s Blind Side references, calling them "unconvincing."

"While I appreciate the emotion that the orphans’ court draws from the two referenced scenes, at least as it relates to the reality that occasionally it is beneficial to preserve a child’s relationship with his birth parents through a permanency alternative other than adoption, that sentiment is evanescent in light of Dr. Pepe’s expert testimony that adoption is the ideal outcome for the children," Bowes said, adding that Pepe had "testified unequivocally that adoption was the preferred permanency option."

According to Bowes, Pepe specifically testified that she believed the children would benefit from the permanency and "’ceremony’" of adoption — including changing their names — rather than SPLC.

"Ultimately, the orphans’ court declined to embrace this aspect of Dr. Pepe’s recommendations, presumably in preference for the life-imitating-art-imitating-life rationale provided by The Blind Side," Bowes said. "In contrast to the orphans’ court’s reference to a motion picture, I would refer to the portion of the certified record that illustrates Dr. Pepe’s precise position regarding the positive significance of adoption."

KidsVoice Executive Director Scott Hollander declined to comment on the case.

Counsel for the mother, Kiersten M. Frankowski of the Allegheny County Bar Foundation Juvenile Court Project in Pittsburgh, also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI. •