J-S77030/14
IN RE: INVOLUNTARY TERMINATION : IN THE SUPERIOR COURT OF
OF PARENTAL RIGHTS TO E.A.F., Jr. : PENNSYLVANIA
:
APPEAL OF E.A.F., Sr., FATHER :
: No. 1990 EDA 2014
:
Appeal from the Decree entered June 13, 2014,
in the Court of Common Pleas of Lehigh County,
Orphans’ Court Division, at No. A2013-54
BEFORE: STABILE, JENKINS, AND STRASSBURGER, JJ.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 15, 2015
E.A.F., Sr. (Father), appeals from the decree of the Court of Common
Pleas of Lehigh County, entered on June 13, 2014, that terminated his
parental rights to his son, E.A.F., Jr., born in July of 2011, pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), and (8), and 23 Pa.C.S. § 2511(b). We
affirm.
The record supports this recitation of the facts of this case. Lehigh
County Office of Children and Youth Services (LCOCYS) first became aware
of this family on September 12, 2011, when it received a referral alleging
domestic violence between Mother and Father. LCOCYS received a second
referral on September 29, 2011, when Child was approximately two months
old, that Child had been hospitalized with dehydration and constipation. He
was diagnosed with “Hirschprung's Disease” and underwent surgery to
correct the condition. Another incident of domestic violence occurred on
Retired Senior Judge assigned to Superior Court.
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November 9, 2011, when Father struck Mother in the face while she was
holding Child. Father was charged with simple assault.
Child was hospitalized again on December 5, 2011, with bacterial
infections that required strict adherence to a particular treatment regimen.
Mother voluntarily placed Child in the custody of LCOCYS when she was
unable to care for Child’s medical needs. The trial court adjudicated Child
dependent on February 9, 2012, and placed him in the legal and physical
custody of LCOCYS. Neither parent was present for the Adjudication.
The adjudication order required the parents to submit to drug testing
once a week for three months; schedule and undergo a drug and alcohol
evaluation and follow through with all the recommendations of that
evaluation; attend all of Child’s medical appointments; attend all meetings at
SafeStart regarding Child; attend visits with the Child two times per week
for two hours each; engage in parenting classes; continue to attend Lehigh
Valley Community Mental Health for mental health treatment and sign a
release of information to provide their treatment records to LCOCYS; obtain
legal employment and stable housing; and follow through with
recommendations made by the LCOCYS.
The trial court held the first permanency review hearing in this matter
on May 3, 2012. Father attended but Mother, who was aware of the
hearing, did not. The trial court found that there had been minimal
compliance with its order by Father, no compliance by Mother, and that
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neither parent had made any progress toward alleviating the circumstances
that necessitated Child’s placement. Of twenty-four visits scheduled with
Child, Father attended two and Mother attended one. Neither parent had
submitted to drug testing.
The trial court held a second permanency review on August 9, 2012.
Neither parent attended that hearing. The trial court found that neither
parent had made any progress toward alleviating the circumstances that led
to Child’s placement, nor had either parent complied with the permanency
plan or visited with Child. The whereabouts of the parents were unknown
and neither had any contact with LCOCYS. The trial court ordered services
for the parents to remain as previously ordered.
In August 2012, LCOCYS assigned caseworker Heather Hudson to
Child’s case. At trial, Ms. Hudson testified about her attempts to engage the
parents in services and the parents’ failure to participate successfully in any
court-ordered services. N.T. 11/28/13, at 7-9.
LCOCYS filed a motion for aggravated circumstances on January 30,
2013, alleging the parents’ failure to maintain substantial and continuing
contact with Child for a period of more than six months. The trial court
heard the motion for aggravated circumstances at a permanency review
hearing held on February 14, 2013, and found that aggravated
circumstances existed. Father appeared at this hearing, but Mother did not.
The trial court again found neither compliance with, nor progress by, either
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parent in the court-ordered reunification services or in rectifying the
circumstances that led to Child’s placement.
On April 11, 2013, the trial court held a hearing on LCOCYS’ request to
modify Child’s placement by placing him in kinship care with his Paternal
Grandmother, T.P. The trial court denied the request on the ground of the
bond that Child had developed with his foster parents and foster sibling after
sixteen months of placement in their home.
At a permanency review hearing on September 23, 2013, the trial
court found that neither parent had complied with the permanency plan, and
that neither had made any progress toward reunification. By this time, Child
had been in the custody of LCOCYS and had been placed with the same
foster family for twenty-one months.
LCOCYS filed its petitions for the involuntary termination of the
parental rights of Mother and Father on May 7, 2013. The trial court held a
hearing on those petitions on October 28, 2013. Testifying at that hearing
were caseworker, Heather Hudson; casework supervisor, Rhoda Stoudt;
SafeStart childhood development manager, Dana Henry; Child’s court-
appointed special advocate, Beverly Walton; Mother; and Father. On June
13, 2014, the trial court entered its Decree terminating the parental rights of
Mother and Father pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8),
and 23 Pa.C.S. § 2511(b). Father filed a timely notice of appeal on July 8,
2014, and a notice of appeal amended to include his statement of errors
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complained of on appeal on July 9, 2014. Mother did not file an appeal and
she is not a party to this appeal.
Father raises the following questions on appeal:
1. Did the lower court err when it found that [LCOCYS] had
proven by clear and convincing evidence that the paternal rights
of [Father] should be terminated?
2. Did the lower court err when it found that termination of the
parental rights of [Father] served the best interests of [Child],
when the circumstances that necessitated the original placement
of [Child] into the custody of [LCOCYS] no longer existed and
[Father] had an appropriate family member willing and able to
take custody of [Child]?
Father’s Brief, at 5.
Our standard of review is 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).
Further, we have stated:
Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court
even though the record could support an opposite result.
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
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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).
Requests to have a natural parent’s parental rights terminated are
governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
(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:
...
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child 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.
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...
(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.
23 Pa.C.S.A. § 2511.
In order to affirm the termination of parental rights, this Court need
only agree with any one subsection of Section 2511(a), in addition to
subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to do so by “clear and convincing
evidence,” a standard which requires evidence that is “so clear, direct,
weighty, and convincing as to enable the trier of fact to come to a clear
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conviction, without hesitance, of the truth of the precise facts in issue.” In
re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent-
child relationship. Parental rights are not preserved by waiting
for a more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or her
physical and emotional needs.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal
citations omitted).
To terminate parental rights pursuant to section 2511(a)(1), the
person or agency seeking termination must demonstrate through clear and
convincing evidence that, for a period of at least six months prior to the
filing of the petition, the parent’s conduct demonstrated a settled purpose to
relinquish parental rights or that the parent has refused or failed to perform
parental duties. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.
Super. 2003).
With respect to subsection 2511(a)(1), our Supreme Court has held:
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
In re Adoption of Charles E.D.M., 550 Pa.595, 602, 708 A.2d 88, 92
(1988). Further,
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the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
The Adoption Act provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.A. § 2511(b). The Act does not make
specific reference to an evaluation of the bond between parent and child but
our case law requires the evaluation of any such bond. See In re E.M., 533
Pa. 115, 620 A.2d 481 (1993). However, this Court has held that the trial
court is not required by statute or precedent to order a formal bonding
evaluation performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533
(Pa. Super. 2008).
Before we address the merits of Father’s appeal, we must address
certain shortcomings in his brief. In the argument section of his brief,
Father argues the claims that he makes in his questions presented, i.e., that
LCOCYS failed to present sufficient evidence to demonstrate that his
parental rights should have been terminated, that the termination of his
rights was not in Child’s best interests, and that a family member is
available to care for Child. Father also argues, however, that LCOCYS came
to the litigation with unclean hands, and that the trial court terminated his
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rights pursuant to the wrong subsections of the statute. We will not
consider the question of kinship care for Child or the question of LCOCYS’
unclean hands on the ground that Father has waived these issues by failing
to raise them in his statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b)(4)(vii); Yates v. Yates, 963 A.2d 535, 542 (Pa. Super.
2008). We must also reject Father’s “unclean hands” claim on the ground
that he failed to support it with any reference to our law, and has thusly
failed to develop an adequate argument. “The failure to develop an
adequate argument in an appellate brief may result in waiver of the claim
under Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140
(Pa. Super. 2007) (internal citation omitted). “[A]rguments which are not
appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (internal citations omitted). See Chapman-Rolle v. Rolle,
893 A.2d 770, 774 (Pa. Super. 2006) (stating, “[i]t is well settled that a
failure to argue and to cite any authority supporting an argument constitutes
a waiver of issues on appeal”) (quoting Jones v. Jones, 878 A.2d 86, 90
(Pa. Super. 2005)).
Finally, we decline to consider Father’s complaint that the trial court
erred when it terminated his parental rights pursuant to subsections 23
Pa.C.S.A. 2511(a) (2), (5) and (a)(8). He asserts subsections 2511(a)(5)
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and (8) do not apply to the facts of this case and asserts the court erred in
applying subsection 2511(a)(2) because father’s mother was willing and able
to care for Child. Appellant’s Brief, at 14-17. The trial court decision
thoroughly addresses subsections 2511(a)(2), (5), and (8), in addition to
subsection 2511(a)(1). We, however, need only agree with the trial court’s
analysis pursuant to one subsection, and we have chosen to analyze its
determination pursuant to subsection (a)(1). See Z.S.W., supra.
Our review of the record reveals that the trial court’s decision to
terminate Father’s parental rights under 23 Pa.C.S.A. §§2511(a)(1) and (b),
and to permit Child’s adoption without notice to or consent from Father, is
supported by clear and convincing evidence, and that there was no abuse of
the trial court’s discretion.
We have carefully read the trial court opinion in this matter and are
fully satisfied that it ably addresses the issues Father has raised on appeal.
Therefore, rather than conduct our own analysis of those issues, we will
affirm the trial court’s decree on the basis of the concise, thoughtful, and
well-written opinion of the Honorable Carol H. McGinley.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/2015
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