J-S32002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.K.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
APPEAL OF: E.L., MOTHER : No. 2139 EDA 2016
Appeal from the Decree June 7, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000952-2015,
FID-51-FN-0016432915
BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 05, 2017
Appellant, E.L. (“Mother”), appeals from the decree entered in the
Philadelphia County Family Court, which involuntarily terminated her
parental rights to J.K.L. (“Child”).1 After careful review, we affirm.
____________________________________________
1
The termination hearing for J.K.L. ultimately concluded on June 7, 2016,
with the trial court involuntarily terminating Mother’s parental rights. On
July 7, 2016, Mother timely filed this appeal. Notwithstanding the initial
appeal filing date, the appeal was not listed for disposition due to the delay
in transmittal of the certified record to this Court. The certified record was
first due by August 8, 2016. After contact with the trial court, on September
8, 2016, the trial court advised that it had not completed its trial court
opinion. The trial court further stated it would try to complete the opinion
despite the fact that the trial judge was on medical leave. This Court
requested eight updates between September 23, 2016 and November 10,
2016; however, the trial court failed to respond until November 15, 2016,
when it informed this Court that the opinion would be ready by November
30, 2016. After the trial court failed to file the opinion by November 30,
2016, this Court again contacted the trial court for an update on December
(Footnote Continued Next Page)
___________________________
*Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history of this case are as follows.
On September 25, 2013, the Department of Human Services (“DHS”)
received a general protective services report, which alleged Mother’s failure
to provide Child’s sibling with essential medical care. As a result, DHS
enlisted the Health Intervention Program (“HIP”) to help Mother care for her
children. Between September 2013 and July 2015, Mother refused to
cooperate with HIP personnel and social workers. As a result, the health of
Child’s sibling continued to deteriorate. In early 2015, doctors diagnosed
Child with opposition defiant disorder (“ODD”) and arranged for Child to
receive weekly outpatient therapy; however, the treatment facility
discharged Child after he missed four of eight appointments.
On July 17, 2015, DHS filed an urgent dependency petition for Child
and his siblings. After a hearing on July 30, 2015, the court temporarily
_______________________
(Footnote Continued)
9, 2016. The trial court did not respond to this request or any of this Court’s
subsequent requests for updates in December 2016. On January 6, 2017,
the trial court informed this Court that it did not have an estimated filing
date for the opinion and record. Nevertheless, this Court finally received the
certified record and the opinion on January 25, 2017, causing the briefing
schedule to be delayed for almost six months. Further, this Court granted
Mother’s counsel a short extension of time to file her brief. Mother’s counsel
subsequently failed to file the brief within the extension, which resulted in
remand of the case for an abandonment hearing on March 7, 2017. A week
later, Mother’s counsel filed the brief and a request for an extension of time.
This Court denied counsel’s request for an extension of time and accepted
the brief as filed late. We offer the procedural history to explain the delay in
the resolution of this child-fast-track appeal. See In re T.S.M., 620 Pa.
602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching this Court for
unexplained delays in disposition of cases involving at-risk children,
causing them to remain in stasis for substantial, unnecessary time).
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committed Child and his siblings to the custody of DHS. On September 10,
2015, the court adjudicated Child and his siblings dependent. The court also
ordered DHS not to make any further efforts to reunify Mother and Child, in
light of the court’s aggravated circumstances determination, based on
Mother’s severe medical neglect of Child’s sibling. Despite the court order of
no further reunification efforts, the court ordered Mother to undergo mental
health treatment and engage in supervised visits with Child. As a result,
DHS offered Mother mental health treatment resources and supervised
visitation with Child. The court held a permanency review hearing on
October 26, 2015, where it determined continued placement of Child was
necessary and appropriate due to Mother’s failure to alleviate any of the
circumstances, which had led to the initial placement of Child.
On December 31, 2015, DHS filed a petition for involuntary
termination of Mother’s parental rights to Child. Mother proceeded to a
termination hearing on 6/7/16, where DHS presented the testimony of social
worker, Amy Sweat. Ms. Sweat testified Mother had not progressed to
unsupervised visits with Child due to Mother’s inability to manage Child’s
behavioral issues, redirect Child’s behavior, or engage Child during visits.
Ms. Sweat specifically opined that Mother was unable to address Child’s
needs in a supervised setting. Ms. Sweat also explained only a limited bond
exists between Mother and Child. Mother then claimed to have participated
in the court-ordered mental health treatment and expressed her love for her
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Child. The court ultimately terminated Mother’s parental rights to Child
pursuant to Sections 2511(a)(1), (a)(2), (a)(5), (a)(8), and determined
termination was in Child’s best interest pursuant to Section 2511(b). On
July 7, 2016, Mother timely filed a notice of appeal and concise statement of
errors complained of on appeal pursuant to 1925(b).
Mother raises the following issues for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
TERMINATING THE PARENTAL RIGHTS OF [MOTHER]
UNDER 23 PA.C.S.A. § 2511(A)(1)?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
TERMINATING THE PARENTAL RIGHTS OF [MOTHER]
UNDER 23 PA.C.S.A. § 2511(A)(2)?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
TERMINATING THE PARENTAL RIGHTS OF [MOTHER]
UNDER 23 PA.C.S.A. § 2511(A)(5)?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
TERMINATING THE PARENTAL RIGHTS OF [MOTHER]
UNDER 23 PA.C.S.A. § 2511(A)(8)?
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
FINDING 23 PA.C.S.A. § 2511(B), THAT TERMINATION OF
[MOTHER’S] PARENTAL RIGHTS BEST SERVE[S]…CHILD’S
DEVELOPMENTAL, PHYSICAL, AND EMOTIONAL NEEDS
AND WELFARE?
(Mother’s Brief at 4).
As a preliminary matter, Rule 1925(b) requires that statements
“concisely identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). “[A]ny issues not raised in accordance with Rule
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1925(b)(4) will be deemed waived.” Pa.R.A.P. 1925(b)(4)(vii). Additionally,
“appellate briefs and reproduced records must materially conform to the
requirements of the Pennsylvania Rules of Appellate Procedure. This Court
may quash or dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate Procedure.”
Wilkins v. Marsico, 903 A.2d 1281, 1284 (Pa.Super. 2006), appeal denied,
591 Pa. 704, 918 A.2d 747 (2007) (citing Pa.R.A.P. 2101).
Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). Importantly:
The argument portion of an appellate brief must include a
pertinent discussion of the particular point raised along
with discussion and citation of pertinent authorities. This
Court will not consider the merits of an argument which
fails to cite relevant case or statutory authority. Failure to
cite relevant legal authority constitutes waiver of the claim
on appeal.
In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal
denied, 620 Pa. 724, 69 A.3d 603 (2013). Where an appellant fails to raise
or properly develop issues on appeal, or where the brief is wholly inadequate
to present specific issues for review, a court will not consider the merits of
the claims raised on appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super.
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2000) (holding appellant waived claim where she failed to set forth adequate
argument concerning her claim on appeal; appellant’s argument lacked
meaningful substance and consisted of mere conclusory statements;
appellant failed to explain cogently or even tenuously assert why trial court
abused its discretion or made error of law). See also Lackner v. Glosser,
892 A.2d 21 (Pa.Super 2006) (explaining appellant’s arguments must
adhere to rules of appellate procedure, and arguments which are not
appropriately developed are waived on appeal; arguments not appropriately
developed include those where party has failed to cite any authority in
support of contention); Estate of Haiko v. McGinley, 799 A.2d 155
(Pa.Super. 2002) (stating rules of appellate procedure make clear appellant
must support each question raised by discussion and analysis of pertinent
authority; absent reasoned discussion of law in appellate brief, this Court’s
ability to provide appellate review is hampered, necessitating waiver of issue
on appeal).
Instantly, Mother’s Rule 1925(b) statement challenges only the
sufficiency of the evidence to terminate her parental rights pursuant to
Section 2511(a)(1). The statement fails to mention Mother’s current
challenges to the termination of her parental rights pursuant to Section
2511(a)(2), (a)(5), (a)(8), and (b). Further, while Mother’s appellate brief
lists challenges to termination pursuant to Sections 2511(a)(1), (a)(2),
(a)(5), (a)(8), and (b) in her statement of questions involved, Mother’s
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argument falls woefully short of the requisite standards. At the outset,
despite the five issues listed on appeal, Mother’s argument is only three
pages long. Mother also failed to divide her argument section into distinct
parts for each of her five issues raised on appeal. See Pa.R.A.P. 2119(a).
Mother further presents no cogent argument for her issues raised on appeal
or appropriate citations to supporting legal authority. See In re Estate of
Whitley, supra. In fact, Mother’s argument fails to address or even
acknowledge the issues raised in her statement of questions involved.
Instead, Mother raises a new argument in which she merely concludes the
court erred when it directed DHS not to make reasonable efforts to facilitate
the reunification of Mother and Child. Mother’s failure to include four of her
five issues in her Rule 1925(b) statement or address the five issues she
raised on appeal in the argument section of her appellate brief arguably
constitutes waiver. See Pa.R.A.P. 1925(b)(4)(vii)); Butler, supra.
Nevertheless, even if Mother had properly preserved her issues for our
review, she would not obtain relief. The standard and scope of review
applicable in a termination of parental rights case is as follows:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law,
or insufficient evidentiary support for the trial court’s
decision, the decree must stand. Where a trial court has
granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision
the same deference that it would give to a jury verdict.
We must employ a broad, comprehensive review of the
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record in order to determine whether the trial court’s
decision is supported by competent evidence.
Furthermore, we note that the trial court, as the finder of
fact, is the sole determiner of the credibility of witnesses
and all conflicts in testimony are to be resolved by [the]
finder of fact. The burden of proof is on the party seeking
termination to establish by clear and convincing evidence
the existence of grounds for doing so.
The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
We may uphold a termination decision if any proper basis
exists for the result reached. If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result.
In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal
denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).
See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super.
2008) (en banc).
CYS sought the involuntary termination of Mother’s parental rights on
the following grounds:
§ 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.
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(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.
* * *
(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
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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(a)(1), (2), (5), (8); and (b).
“Parental rights may be involuntarily terminated where any one
subsection of Section 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1117
(Pa.Super. 2010).
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…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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
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perform parental duties.
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…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 Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he 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…her parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary, those grounds may
include acts of refusal as well as incapacity to perform parental duties. In
re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities.” Id. at 340. The fundamental test in termination
of parental rights under Section 2511(a)(2) was long ago stated in the case
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of In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania
Supreme Court announced that under what is now Section 2511(a)(2), “the
petitioner for involuntary termination must prove (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,
neglect or refusal caused the child to be without essential parental care,
control or subsistence; and (3) that the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied.” In Interest of Lilley,
719 A.2d 327, 330 (Pa.Super. 1998).
“Termination of parental rights under Section 2511(a)(5) requires
that: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to removal and placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re Z.P., supra at 1118.
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) [t]he child has been removed from
parental care for [twelve] months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76
(Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
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(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently severing the
bond.” Id. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship. When conducting a bonding
analysis, the court is not required to use expert testimony.
Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a
formal bonding evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and may properly have…her [parental] rights terminated.”
In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
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with the child.
Because a child needs more than a benefactor, parental
duty requires that a parent exert [herself] to take and
maintain a place of importance in the child’s life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of…her ability, even in difficult circumstances.
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 [the child’s] physical
and emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of…her child is converted,
upon the failure to fulfill…her parental duties, to the child’s right to have
proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment.” Id. at 856.
Importantly, neither Section 2511(a) nor Section 2511(b) requires a
court to consider at the termination stage, whether an agency provided a
parent with reasonable efforts aimed at reunifying the parent with her
children prior to the agency petitioning for termination of parental rights. In
re D.C.D., 629 Pa. 325, 342, 105 A.3d 662, 672 (2014). An agency’s failure
to provide reasonable efforts to a parent does not prohibit the court from
granting a petition to terminate parental rights under Section 2511. Id. at
346, 105 A.3d at 675.
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the opinion of the Honorable Lyris F. Younge, we
conclude Appellant’s issues would merit no relief. The trial court opinion
fully discusses and properly disposes of the questions presented. (See Trial
Court Opinion, filed January 25, 2017, at 3-5) (finding: on September 10,
2015, court determined aggravated circumstances existed due to Mother’s
severe medical neglect of Child’s sibling; based on this finding, DHS was not
required to make reasonable efforts to facilitate reunification of Mother and
Child; nevertheless, DHS provided Mother with Family Service Plan with
specific permanency objectives; despite aid of Family Service Plan, Mother
was unable to redirect Child’s behavioral problems or address Child’s needs
during supervised visits; due to Mother’s failures during supervised visits,
social worker opined unsupervised visits were inappropriate for Mother; DHS
has had custody of Child for eleven months at this point; during this time,
Mother repeatedly failed to meet any of her Family Service Plan permanency
objectives to allow reunification; under these circumstances, grounds for
termination of Mother’s parental rights exist pursuant to Sections
2511(a)(1), (a)(2), (a)(5), and (a)(8); additionally, termination of Mother’s
parental rights would not cause Child to suffer irreparable emotional harm;
social worker testified Child has limited bond to Mother; further, Child’s
foster parents are able to manage Child’s behavioral issues successfully; as
such, termination is in best interests of Child; therefore, court properly
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terminated Mother’s parental rights).2
Moreover, Mother’s current claim that DHS’ failed to provide her
reasonable reunification resources is not an appropriate consideration for the
court at the termination stage of the proceedings and would not have
prevented the grant of the termination petition in any event. See In re
D.C.D., supra. Further, DHS had no obligation to make reasonable
reunification efforts in light of the court’s September 10, 2015 finding of
aggravated circumstances. See 42 Pa.C.S.A. § 6351(b) (explaining no new
or additional reasonable efforts to preserve and reunify family are required if
court has determined aggravated circumstance exist). Thus, Mother’s claim
would not warrant any relief even if she had properly preserved it. Based on
the foregoing, we affirm the termination of Mother’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
____________________________________________
2
We observe Section 2511(a)(8) does not apply to Mother’s case because
Child had not been in DHS’ custody for twelve months prior to the
termination hearing. Nevertheless, the court’s reliance on Sections
2511(a)(1), (a)(2), and (a)(5) to terminate Mother’s parental rights was
proper.
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