J-S20044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION: R.C.B. A/K/A R.C.B. IN THE SUPERIOR COURT OF
A/K/A R.L.B., A MINOR PENNSYLVANIA
APPEAL OF: T.S., BIRTH MOTHER
No. 1642 WDA 2015
Appeal from the Order Entered September 18, 2015
in the Court of Common Pleas of Allegheny County
Civil Division at No.: CP-02-AP-0000088-2015
IN RE: ADOPTION OF: R.L.B. III, A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: T.S., BIRTH MOTHER
No. 1643 WDA 2015
Appeal from the Order September 18, 2015
in the Court of Common Pleas of Allegheny County
Orphans' Court at No.: CP-02-AP-0000114-2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 09, 2016
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S20044-16
Appellant, T.S. (Mother), appeals from the orders of the court of
Common Pleas of Allegheny County that terminated her parental rights to
her sons R.C.B., born in May of 2000, and R.L.B. III (R.L.B.), born in
October of 2001 (Children).1 Mother concedes that she withdrew her
opposition to the terminations during the hearing on termination of parental
rights which occurred on September 18, 2015. Nevertheless, she appeals on
the grounds that the trial court erred (or abused its discretion) in not finding
that Appellee, the Allegheny County Office of Children, Youth and Families
(CYF), failed to meet its burden of proof by clear and convincing evidence.
The Guardian Ad Litem has filed a motion to dismiss for failure to preserve
the questions below. Mother filed an answer, by counsel. For the reasons
that follow, we affirm the orders of termination, and deny the motion to
dismiss as moot.2
Mother is a resident of Ohio. Ohio authorities removed the Children
from Mother’s custody in August of 2013, over concerns about Mother’s
ability to care for her children. Mother has a long history of mental illness,
abuse of alcohol and other substances, criminal assaults, and depression.
____________________________________________
1
This Court consolidated the two appeals sua sponte by order dated
November 5, 2015.
2
The trial court also terminated the parental rights of R.B. II, the putative
father (Father), as well as any Unknown Father of the Children. Father
voluntarily withdrew his contest at the hearing. (See N.T. Hearing, 9/18/15,
at 45). None of these persons filed an appeal.
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These concerns were intensified by a fatality in the family, specifically, the
suicide of an older brother of the Children.
CYF placed the Children with their Father in Pittsburgh. However, they
were soon removed after Father assaulted the older brother, R.C.B. The trial
court adjudicated the Children dependent on October 16, 2013. R.C.B. was
placed with M.M., a navy chaplain (Foster Father). R.L.B. was assigned to a
shelter but joined his brother with Foster Father M.M. the following year and
remains with them.
CYF filed a petition to terminate involuntarily the parental rights of
Mother and the putative father and any unknown father of R.C.B. on May 4,
2015, and a petition to terminate involuntarily the parental rights of Mother
and the putative and any unknown father of R.L.B. on July 10, 2015. The
trial court held a hearing on those petitions on September 18, 2015.
Testifying at that hearing were Mother, by telephone from Ohio, Father, and
CYF caseworker, Therese Tuminello.
Mother had contested the termination of her parental rights but she
withdrew her objection to the proceeding at the September 18, 2015,
hearing. (See N.T. Hearing, 9/18/15, at 7). On inquiry by the trial court,
Mother testified that no one was forcing her to withdraw and that no one
promised her anything in exchange for her withdrawal. (See id.).
Mother’s family service plan (FSP) goals were: 1) cooperate with CYF;
2) maintain contact with the Children; 3) undergo a drug and alcohol
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evaluation and follow all recommendations; 4) maintain safe and appropriate
housing; 5) complete domestic violence counseling; 6) complete a parenting
class; and 7) undergo a mental health evaluation and follow all
recommendations. The only FSP goal Mother achieved was to maintain
contact with the Children by phone and through visits about every three
months (See id. at 20).
CYF caseworker, Therese Tuminello, testified that the termination of
Mother’s parental rights would meet the needs and welfare of the Children.
(See id. at 28). R.C.B. had been residing in his current foster home with
Foster Father since August of 2014. R.L.B. moved into the home on
September 8, 2015, after having visited with Foster Father since August of
2014. Ms. Tuminello testified that her observations of the Children with
Foster Father were very positive and that CYF was very pleased with the
placement. (See id. at 27). According to Ms. Tuminello, the Children have
bonded with Foster Father. (See id. at 28).
Terry O’Hara, Ph.D., conducted individual psychological evaluations of
Mother and the Children, as well as interactional evaluations of the Children
with Foster Father and with Mother between July of 2015 and August of
2015. (See O’Hara Report, CYF Exhibit 1). Dr. O’Hara’s report, supporting
termination and adoption, were admitted without objection. (See N.T.
Hearing, at 33).
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Dr. O'Hara observed that Foster Father exhibited several positive
parenting skills. He was meaningful and specific in his praise of both boys,
interacted well with them, joked with them, and was calm and relaxed in
their presence. Dr. O’Hara observed a secure attachment between the
Children and Foster Father. Both R.C.B. and R.L.B. expressed a desire to
reside with Foster Father. Dr. O’Hara observed that the Children also
expressed a desire to reside with Mother, (while conceding that was not
practical or likely), praised her, and interacted well with her at times, but he
did not have sufficient evidence that the Children experienced a secure
attachment with Mother.
Dr. O’Hara opined that Mother is not in a position to provide for the
needs and welfare of the Children because of her significant psychiatric
problems, her criminal history, chronic unstable housing, substance abuse,
lack of accountability for her actions, and longstanding history of domestic
violence. He opined that the Children would be at risk if returned to
Mother’s care. Dr. O’Hara recommended that Mother’s parental rights be
terminated and the Children adopted. According to Dr. O’Hara, the benefits
of adoption for the Children, including safety and security, outweighed any
possible detriment caused by the termination of Mother’s parental rights.
(See O’Hara Report, CYF Exhibit 1).
The trial court entered its orders terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8) and (b) on September 18,
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2015. Mother filed her notices of appeal and concise statements of errors
complained of on appeal on October 19, 2015.3 See Pa.R.A.P. 1925.
The Guardian ad litem filed a motion to dismiss, arguing that Mother,
by withdrawing her contest of the petition, failed to preserve any issues on
appeal. (See Motion to Dismiss, 11/23/15, at 2-3). The motion was
deferred to this panel for disposition.
Mother raises the following question on appeal:
I. Did the trial court abuse its discretion and/or err as a matter
of law in concluding that [CYF] met its burden of proving that
termination of [Mother’s] parental rights would best serve the
needs and welfare of the [C]hildren pursuant to 23 Pa.C.S.A.
§2511(b) by clear and convincing evidence[?]
(Mother’s Brief, at 7).
Our standard of review is well-settled:
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.
____________________________________________
3
October 19, 2015 was a Monday; Mother’s appeal was timely.
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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
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).
Here, the trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. §§ 2511(a) (2), (5), (8), and (b). In order to affirm the
termination of parental rights, this Court need only agree with any one
subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101–2938, 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:
* * *
(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.
* * *
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(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 (2), (b).
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do 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
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) (citations
omitted).
The fundamental test in termination of parental rights under Section
2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa. 636,
331 A.2d 172 (1975). There the Pennsylvania Supreme Court announced
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that, under what is now Section 2511(a)(2), the petitioner for involuntary
termination must prove “[t]he 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.” Id. at 173.
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, 485 (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. See In re K.K.R.-S., 958 A.2d 529,
533 (Pa. Super. 2008).
We begin our analysis by observing, as already noted, that Mother
withdrew any objection to CYF’s petitions at the hearing. (See N.T. Hearing,
9/18/15, at 7). In her motion to dismiss, the Guardian ad litem for the
Children argues that Mother has thus failed to preserve any issues on appeal
by withdrawing her contest at the hearing. (See Motion to Dismiss,
11/23/15, at 2-3). Furthermore, the Guardian ad litem argues, Mother
waived any claim on appeal by her failure to identify a specific reviewable
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issue in her concise statement. (See id.; see also Concise Statement,
10/19/15). We are sympathetic to the arguments raised by the Guardian
ad litem.
Nevertheless, in consideration of the significance of the issues under
review, in the interest of judicial economy, and with the hope of avoiding, if
possible, the burdens of additional unnecessary appeals, we decline to
dismiss without our own independent review of the merit, vel non, of
Mother’s claims. Accordingly, we will deny the motion to dismiss.
On independent review, however, we conclude that Mother has waived
her claim that the trial court erred or abused its discretion when it
terminated her paternal rights pursuant to section 2511(b). With exceptions
not relevant to the facts or procedure of this case, “[a] party waives all
defenses and objections which are not presented either by preliminary
objection, answer or reply[.]” Pa.R.C.P. 1032(a). Furthermore, “[i]ssues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a).
Finally, Mother’s concise statement fails to identify a specific
reviewable issue of trial court error. Instead, it asserts the generic
proposition that the court erred in concluding CYF met its burden of proof on
the bonding issue. (See Concise Statement, 10/19/15). This is not enough
to enable meaningful review.
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“[W]hen an appellant fails adequately to identify in a concise manner
the issues sought to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues.” Reinert
v. Reinert, 926 A.2d 539, 542 (Pa. Super. 2007) (citations omitted).
Similarly, in her brief, Mother fails to develop an argument supported
by citation to pertinent authority that the trial court erred in its analysis of
the bonding issue. (See Mother’s Brief, at 13-16).
Instead, with the exception of two brief citations to caselaw for general
principles, Mother supports her claim chiefly by revisiting the evidence and
asking us, in effect, to reach a different conclusion. (See id. at 14-16).
Mother does not develop an argument which links the facts of her case to
the general principles of law she cites. Accordingly, Mother does not develop
a coherent legal argument to support her conclusion that the trial court
erred in terminating her parental rights under our standard of review. She
has, therefore, waived that 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), appeal denied, 982
A.2d 509 (Pa. 2007) (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.
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Super. 2006) (citations omitted); see also 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)). “[T]he ‘argument’ section of an appellate brief must contain a full
discussion of the points raised accompanied by citation to pertinent
authority.” In re Child M., 681 A.2d 793 (Pa. Super. 1996) (citation
omitted). For all these reasons, Mother’s claim is waived.
Moreover, it would not merit relief. Our review of the record confirms
that it contains sufficient credible evidence to permit the trial court to
conclude that Mother’s repeated and continued incapacity, abuse, neglect or
refusal to parent the Children has caused them to be without the essential
parental care necessary for their physical or mental well-being, and that that
condition cannot be remedied. “The trial judge’s decision is entitled to the
same deference as a jury verdict.” In re L.M., supra at 511 (citations
omitted). “Though we are not bound by the trial court’s inferences and
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., supra at 73-74 (citations omitted).
Here, the trial court did address the bonding issue, finding that even
though the Children do have a bond with Mother, termination of Mother’s
parental rights will have a positive effect by ending the uncertainty of their
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present situation, and improving prospects for a permanent resolution of
their status. (See Trial Ct. Op., at 7).
Both Ms. Tuminello, the caseworker, and Dr. O’Hara opined that the
termination of Mother’s parental rights would be in the Children’s best
interest. Ms. Tuminello testified that CYF was very pleased with the
Children’s placement with Foster Father and that the Children have bonded
with him. (See N.T. Hearing, at 27-28). According to Ms. Tuminello, the
termination of Mother’s parental rights would meet the needs and welfare of
the Children. (See id. at 28).
Dr. O’Hara observed a secure attachment between the Children and
Foster Father and noted that both R.C.B. and R.L.B. expressed a desire to
reside with Foster Father. He opined that the Children would be at risk if
returned to Mother’s care because of her significant psychiatric problems,
her criminal history, chronic unstable housing, substance abuse, lack of
accountability for her actions, and her history of domestic violence.
According to Dr. O’Hara, the benefits of adoption for the Children outweigh
any possible detriment caused by the termination of Mother’s parental
rights. Dr. O’Hara recommended that Mother’s parental rights be terminated
and the Children adopted. (See O’Hara Report, CYF Exhibit 1).
We discern no basis on which to disturb the findings of the trial court.
Nor did the court commit any error of law.
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Accordingly, we affirm the trial court’s orders, entered September 18,
2015, terminating Mother’s parental rights pursuant to 23 Pa.C.S.A.
§2511(a)(2) and (b).
Orders affirmed. Motion to dismiss denied as moot.
Judge Panella joins the Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2016
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