In the Interest of: L.C., a Minor

J-S34002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: L.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

APPEAL OF: S.C., MOTHER

No. 3669 EDA 2016

Appeal from the Orders Dated October 25, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000864-2016
CP-51-DP-0000666-2015

BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 14, 2017

S.C. (“Mother”) appeals the decree terminating her parental rights to

her son L.C., pursuant to 23 Pa.C.S. § 2511 (a) and (b) 1 and the

permanency review order changing L.C.’s permanent placement goal from

reunification to adoption pursuant to 42 Pa.C.S. § 6351. We affirm.

L.C. was born during March 2015. The day following his birth, the

Philadelphia Department of Human Services (“DHS”) received a General

Protective Services (“GPS”) report indicating that Mother tested positive for

PCP and marijuana during the delivery. The report also noted Mother’s

____________________________________________

1
The parental rights of S.C.’s unknown-putative father were also
terminated.

* Retired Senior Judge specially assigned to the Superior Court.
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history of substance abuse, untreated mental health conditions, and her

prior involvement with DHS. The parental rights to three of L.C.’s siblings

were previously terminated involuntarily due to Mother’s drug use and

mental health problems, the most recent termination having occurred

approximately five months prior to L.C.’s birth.

On March 27, 2015, the juvenile court adjudicated L.C. dependent and

placed him in his current pre-adoptive foster home. As the initial

permanency goal was reunification, Mother was granted supervised visitation

with L.C. The trial court ordered Mother to receive a drug screen, a dual

diagnosis assessment, and three random drug tests through the clinical

evaluation unit (“CEU”). The trial court further directed that Mother was

precluded from in-home visitation until she engaged in a drug and alcohol

treatment program. Mother did not comply with the substance abuse

components of the plan. She left her initial CEU evaluation early, neglected

to appear for the rescheduled evaluation, and made no further contact with

the CEU.

On June 29, 2015, Mother was arrested for arson, reckless

endangerment, criminal mischief, and making terroristic threats. She was

incarcerated pending trial at Philadelphia’s Riverside Correctional Facility and

remained incarcerated through the termination hearing on October 25, 2016.

Prior to her arrest, Mother received a service plan that outlined her

objectives to complete drug and alcohol treatment, mental health treatment,

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parental training, and acquire sufficient housing. She was provided a second

service plan during her incarceration. That plan required Mother to utilize

programs available to her in jail. On May 26, 2016, Mother’s objectives

were:

(1) to comply with all policies while incarcerated; (2) to continue
to attend [a re-entry] program and to provide . . .
documentation of completion; (3) to obtain and maintain
employment; (4) to continue attending therapy sessions; (5) to
continue to be employed while incarcerated[.]

Trial Court Opinion, 1/25/17, at unnumbered page 5.

Mother’s compliance was negligible. Prior to incarceration, she failed

to maintain supervised visitation with L.C., neglected to contact the agency

or inquire as to L.C.’s well-being, and ignored her substance abuse

treatment through CEU. Although Mother currently asserts that she utilized

several programs while in prison, namely anger management, art therapy,

and parenting classes, she did not document these achievements. She also

claimed, without support, that she completed a course on CPR and the re-

entry program entitled “Chill Out.” Significantly, Mother did not claim to

have completed any drug and alcohol treatment or to have addressed her

mental health problems.

On September 23, 2016, DHS filed a petition for the involuntary

termination of Mother’s parental rights and a concomitant petition to change

L.C.’s placement goal from reunification to adoption. During the ensuing

hearing, Mother requested a continuance in order to document her

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compliance with the service plan objectives while in prison. The trial court

denied that entreaty and at the close of the evidence it granted DHS’s

petition for a goal change and terminated Mother’s parental rights pursuant

to 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b). Mother filed a

timely appeal.

She raises the following issues:

1. Was Mother denied a fair hearing and due process of law
when the Court denied her request for a short continuance to
locate the documentation of her completion of [the] case plan
objectives?

2. Did the Department of Human Services (DHS) sustain the
burden that Mother’s rights should be terminated when there
was evidence that Mother had completed and/or been actively
completing her permanency goals?

Mother’s brief at 4.

At the outset, we address Mother’s contention that she was deprived

of due process because the trial court refused her request for a continuance

to gather proof of her purported progress with the service plan. Mother

argues that her request for a continuance was “particularly reasonable”

considering the circumstances. See Mother’s brief at 11-12. Unfortunately

for Mother, the reasonableness of her request is not the basis of our review.

In actuality, we review a trial court’s denial of a request for continuance for

an abuse of discretion. In re J.K., 825 A.2d 1277, 1280 (Pa.Super. 2003)

(citation omitted). As this Court explained,

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Because a trial court has broad discretion regarding whether a
request for continuance should be granted, we will not disturb its
decision absent an apparent abuse of that discretion. An abuse
of discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.

Id. With the correct standard in mind, we review Mother’s grievance and

find that the record reveals no abuse of discretion by the trial court in

denying Mother’s request for a continuance.

The following facts are relevant to our review. During the evidentiary

hearing, Mother testified that she completed several programs while

incarcerated that demonstrated her compliance with her objectives under

the service plan. N.T., 10/25/16, at 35-36. However, she neglected to

bring any documentation of her accomplishments to the hearing. Instead,

she asserted that the prison would not permit her to transport the

certificates of completion from the prison. Id. She admitted knowledge of

the scheduled proceeding two months in advance and allegedly mailed the

documents to a family member who was unable to bring them to court. Id.

at 39-40. However, based on Mother’s prior knowledge of the hearing, and

her previous experience with termination proceedings, the trial court found

that Mother’s explanation lacked credibility. Specifically, the court reasoned,

“[Mother] should have provided the documents to [counsel], she should

have brought the documents with her from prison, or she should have had a

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family member deliver the documents [for her].” Id. at 41. In short, the

court rejected Mother’s explanations and concluded, “If [Mother] was

diligent, she would have had the documents, if they exist, in [DHS’s] hands

in time for the hearing.” Id. at 42. Finally, in response to Mother’s

assertion that she did, in fact, attempt to have the documents delivered to

the court, it continued, “You knew two months ago this date was coming.

You’ve been through prior termination hearings. You’re not new to the

system or someone that’s coming in here with clean hands, in my opinion.”

Id. Thus, the trial court denied Mother’s request for a continuance and

rejected her uncorroborated testimony that she completed various prison

programs. Id. at 43.

As the certified record supports the trial court’s credibility

determination, we will not disturb it. We have stated, “it is the exclusive

province of the [fact-finder], not the court, to decide . . . the credibility of

the witnesses and the weight and effect to be given to all of the testimony.”

Commonwealth v. Hall, 867 A.2d 619, 633 (Pa.Super. 2005). Initially, the

trial court did not manifest “partiality, unreasonableness, bias, or ill-will” by

making a credibility determination against Mother and denying her request.

In re K.J., 27 A.3d 236, 243 (Pa.Super. 2011) (relating to the denial of

continuance for an evidentiary hearing based on parent’s alleged illness).

The trial court considered evidence that demonstrated Mother’s awareness of

her goals and established that she had sufficient notice of the hearing to

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obtain the documentation and transmit it to the court for review.

Significantly, one of Mother’s goals was to verify her progress with the

agency. Clearly, she failed in that regard. Likewise, there is no indication

that she attempted to produce the documents for counsel, and tellingly,

Mother’s brief does not allege prior counsel’s ineffectiveness for failing to

procure the purported documentation in anticipation of the hearing. As the

certified record sustains the trial court’s denial of Mother’s motion for a

continuance, there is no basis to disturb it.

In reference to Mother’s remaining claims, we first observe that, to the

extent that Mother challenges the juvenile court’s goal change order, that

issue is waived. While Mother purported to appeal the permanency review

order in which the juvenile court issued the goal change, she neglected to

assert any basis for reversal on appeal. At most, Mother’s brief set forth the

relevant statutory provisions under the Juvenile Act, i.e., § 6351, and then

proceeded to assail the order terminating her parental rights pursuant to the

Adoption Act without leveling any specific challenge to the goal change. The

failure to support her claim with relevant legal argument is fatal.

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006). (“An

appellate brief must provide citations to the record and to any relevant

supporting authority. The court will not become the counsel for an appellant

and will not, therefore, consider issues which are not fully developed[.]”).

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Next, we address Mother’s contention that the trial court erred in

finding that DHS proved by clear and convincing evidence the statutory

grounds to terminate her parental rights pursuant to 23 Pa.C.S. § 2511 (a)

and (b). Again, no relief is due. The pertinent scope and standard of review

of an order terminating parental rights 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 we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court's decision is
supported by competent evidence.

In re M.M., 106 A.3d 114, 117 (Pa.Super. 2014) (quoting In re S.H., 879

A.2d 802, 805 (Pa.Super. 2005)). In termination cases, the burden is upon

the petitioner to prove by clear and convincing evidence that the asserted

grounds for seeking the termination of parental rights are valid. In the

Interest of T.M.T., 64 A.3d 1119, 1124 (Pa.Super. 2013).

The standard of clear and convincing evidence is defined as
testimony 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
R.N.J., 985 A.2d 273, 276. The trial court is free to make all
credibility determinations, and may believe all, part, or none of
the evidence presented. In re M.G., 855 A.2d 68, 73-74
(Pa.Super. 2004). If the findings of the trial court are supported
by competent evidence, we will affirm even if the record could
also support the opposite result. In re Adoption of T.B.B., 835
A.2d 387, 394 (Pa.Super. 2003).

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Id.
Termination of parental rights is governed by 23 Pa.C.S. § 2511, which

provides in pertinent part as follows:

(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.

....

(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

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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. § 2511.

Termination of parental rights requires a “bifurcated analysis” under §

2511(a) and (b). Adoption of C.J.P., 114 A.3d 1046, 1049 (Pa.Super.

2015). We explained,

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 his or 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. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.

Id. at 1049-50 (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).

Herein, the trial court concluded that DHS met its burden to terminate

Mother’s parental rights to L.C. pursuant to § 2511(a) (1), (2), (5) and (8).

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See Trial Court Opinion/25/16, at unnumbered page 7. We need only agree

with the trial court as to any one subsection of § 2511(a) as well as (b) in

order to affirm the termination of parental rights. Adoption of C.J.P.,

supra at 1050. As we agree with the trial court’s conclusion that DHS

provided clear and convincing evidence to terminate Mother’s parental rights

to L.C. pursuant to § 2511(a)(1) and (b), we do not address the remaining

subsections of the statute.

Section 2511(a)(1) “provide[s] grounds for termination if the parent

evidenced a settled purpose of relinquishing parental claim to a child, or has

refused or failed to perform parental duties for a period of at least six

months.” In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012). DHS must

produce clear and convincing evidence of conduct that fulfills either one of

the two requirements outlined in § 2511(a)(1), it does not have to establish

both. In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (“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 perform parental duties.”) While the statute targets the six months

immediately preceding the filing of the petition to terminate, the trial court

must consider the entire history of the case and not apply the six-month

statutory period mechanically. In re of K.Z.S., 946 A.2d 753, 758

(Pa.Super. 2008).

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Our Supreme Court has noted that parental duty under § 2511(a)(1)

includes “an affirmative duty to love, protect and support” the child and “to

make an effort to maintain communication with that child.” In re Adoption

of S.P., supra at 828. When the parent’s fulfillment of those duties is made

more difficult by incarceration, “we must inquire whether the parent has

utilized those resources at his or her command while in prison in continuing

a close relationship with the child.” Id. Finally, our Supreme Court

explained,

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).

Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998).

In the instant case, DHS established by clear and convincing evidence

that Mother failed to perform her parental duties to L.C. for more than six

months prior to the date DHS filed the termination petition. L.C. was

separated from mother at birth, nearly eighteen months prior to the

termination petition. DHS established that Mother avoided court-ordered

drug and alcohol evaluations and failed to complete her service plan goals

prior to her June, 2015 incarceration. DHS Exhibit 3; N.T., 10/25/16, at 20-

21. Further, Mother failed to inquire after the child’s well-being or attempt

to arrange visitations. Id. at 21. Her efforts did not improve with

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incarceration. Recall that Mother neglected to provide DHS with

documentation of any progress toward her service plan goals, and the trial

court rejected Mother’s claim that she did, in fact, complete various

programs while in prison. Indeed, Mother’s primary contention on appeal is

that the trial court erred in failing to assess greater weight to her testimony

regarding her accomplishments. This argument is unavailing.

As discussed supra, a witness’ credibility is a determination for the

fact-finder and will not be disturbed by this Court absent a showing of abuse

of discretion. In re J.K., supra at 1280. Mother provided no

documentation to establish her compliance with the plan and the trial court

did not find Mother’s testimony about her progress credible. N.T., 10/25/16,

at 41-42. Moreover, Mother’s continued interaction with drug and alcohol,

her absence from treatment prior to incarceration, and her demonstrable

lack of interest in L.C.’s well-being before and after incarceration further

demonstrate her failure to perform her parental duties to L.C. See In re

Adoption of S.P., supra at 828. Tellingly, while Mother assails the trial

court for allegedly making a faulty credibility determination, she neither

justified her failure to comply with the drug and alcohol treatment or the

remaining components of the service plan nor explained her indifference

toward L.C. Indeed, Mother did not make any remedial efforts prior to her

incarceration and even to the extent that her alleged achievements in prison

may be accepted as true, which the trial court declined to do, Mother made

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those purported gains only as a result of her confinement. Id. at 25, 27-28.

Furthermore, as it relates to the remaining considerations under Matter of

Adoption of Charles E.D.M., II, supra, Mother proffered no explanation

for her behavior and her post-separation contact was nonexistent. In sum,

the certified record sustains the trial court’s finding that DHS established by

clear and convincing evidence that Mother failed to perform her duties at any

time since L.C. was adjudicated dependent, including the final six months

prior to the termination petition pursuant to § 2511(a)(1). Hence, no relief

is due.

Finally, we consider whether DHS satisfied its burden pursuant to §

2511(b). Section 2511(b) requires the trial court to consider L.C.’s well-

being, including the bond he may have with Mother. We have elucidated this

principle as follows:

[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also
consider the intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent. Additionally,
this Court stated that the trial court should consider the
importance of continuity of relationships and whether any
existing parent-child bond can be severed without detrimental
effects on the child.

Adoption of C.J.P., supra at 1054 (citations omitted).

In the instant case, L.C. has been separated from Mother since birth

and, as of the date of the hearing, had no contact with her for more than

one and one-half years. N.T., 10/25/16, at 21. Mother never assumed any

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responsibility for addressing L.C.’s physical or emotional needs. Id. at 28.

She is a stranger to her son. Thus, no parent-child bond exists.

Accordingly, the certified record supports the trial court’s determination that

terminating Mother’s parental rights will have no detrimental effects on L.C.

Conversely, the evidence demonstrated that L.C. shares a strong bond

with his foster mother (“Foster Mother”), whom he refers to as “mom.” Id.

at 23-24, 26. L.C. has resided with Foster Mother in what is now his pre-

adoptive home since he was days old. Id. at 23. At every permanency

review hearing during the dependency proceedings, the juvenile court

attested to L.C.’s safety and well-being with Foster Mother. In addition to

her proactive attitude in obtaining L.C.’s medical care and addressing his

potential mental health issues, Foster Mother continues to satisfy all of his

daily needs. Id. at 23-24. In short, Foster Mother is the child’s primary

source of love, security, stability, and support. Id. at 24.

The foregoing evidence demonstrates that L.C.’s developmental,

physical and emotional needs and welfare are best provided for by his

current pre-adoptive environment with Foster Mother. Thus, we find that

the certified record supports the trial court’s conclusion that L.C.’s needs and

welfare will be served by the termination of parental rights pursuant to §

2511(b), in order to facilitate his adoption.

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Accordingly, we affirm the decree terminating Mother’s parental rights

to L.C. and the juvenile court order changing the placement goal to

adoption.

Decree affirmed. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2017

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