J-A25039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.J.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.G., MOTHER :
:
:
:
: No. 937 EDA 2017
Appeal from the Order Entered February 23, 2017
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001260-2016,
CP-51-DP-0001846-2016
BEFORE: OTT, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 05, 2017
Appellant, S.G. (“Mother”), files this appeal from the decree dated and
entered February 23, 2017, in the Philadelphia County Court of Common
Pleas, granting the petition of the Department of Human Services (“DHS”)
and involuntarily terminating her parental rights to her minor, dependent
son, J.J.B. (“Child”), born in July 2016, pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).1, 2 Mother further appeals the
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 By separate decree the same date, the trial court involuntarily terminated
the parental rights of putative father, J.B., Jr. (“Father”), with respect to
Child. An appeal has not been filed by Father, nor is Father a party to the
instant appeal.
2 While the trial court incorporates Section 2511(a)(8) in its decree
terminating Mother’s parental rights, Decree of Involuntary Termination of
(Footnote Continued Next Page)
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order dated and entered February 23, 2017, changing Child’s permanency
goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6351. After
review, we affirm the trial court’s decree and order.
The trial court summarized the relevant procedural and factual history
as follows:
On August 22, 2016, the Department of Human Services (DHS)
received a Child Protective Services (CPS) report alleging J.J.B.
sustained three skull fractures and the cause of the fractures
was unexplained. The report stated J.J.B. suffered two skull
fractures on the right side of his head and one skull fracture on
the left side of his head. The report indicated J.J.B. had been in
the care of his father from August 18, 2016 until August 20,
2016. Father returned J.J.B. to the care of his mother on August
20, 2016. The report stated Mother observed that J.J.B. was
suffering from a small lump on his head. The report stated the
lump began to enlarge and Mother took J.J.B.[] to his primary
care physician. J.J.B.’s primary care physician sent him to St.
Christopher[’s] Hospital for Children [E]mergency [R]oom for an
examination. The report alleged that Father was unable to
explain how J.J.B. had been injured. J.J.B. was admitted to the
hospital for a full physical examination. The report was
indicated.
On August 24, 2016, DHS visited J.J.B. at St. Christopher’s
Hospital for Children. DHS learned that a skeletal scan and a
magnetic resonance imaging (MRI) scan had revealed that J.J.B.
had not sustained any other injuries. DHS learned Mother spent
the night of [] August 23, 2016 in J.J.B.[’s] hospital room. The
report indicated hospital staff had concerns about Mother’s
ability to care for J.J.B. because Mother failed to wake up and
feed and change J.J.B. when he cried. The report stated Mother
called a nurse to finish feeding J.J.B. because Mother wanted to
leave the hospital room for food for herself.
(Footnote Continued) _______________________
Parental Rights, 2/23/17, the petition filed by DHS did not include this
subsection. Petition for Involuntary Termination of Parental Rights,
12/22/16.
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On August 24, 2016, DHS spoke with Mother, who stated that
J.J.B. had been in the care of Father from August 18, 2016 until
August 20, 2016. Mother stated when J.J.B. was returned to
her care, he was exhausted, had two marks on the bridge of his
nose and bruising around his eyes. Mother observed a small
lump on the back of his head. Mother stated the lump on the
back of J.J.B.’s head did not concern her because he had been
born with a similar lump on his head.
Mother stated on August 22, 2016, she attended a post-natal
appointment at her primary care physician’s office, and left J.J.B.
in the care of Maternal Aunt. Mother stated she received a
phone call from Maternal Aunt stating J.J.B.’s head was swollen
and telling her to return to Maternal Aunt’s home to take J.J.B.
to the hospital. Mother retrieved J.J.B. from Maternal Aunt’s
home and took him to his primary physician who instructed her
to take J.J.B. to the emergency room.[3] Mother subsequently
took J.J.B. to the St. Christopher’s Hospital for Children
[E]mergency [R]oom, where J.J.B. was admitted.
DHS later learned that St. Christopher’s Hospital for Children
staff members had not noted any facial bruising or marks
between J.J.B.’s eyes upon his admittance to the hospital.
On August 24, 2016, DHS visited the home of Maternal Aunt,
where Mother, J.J.B. and J.J.B.’s adult Maternal Uncles and Aunt
resided. J.J.B.’s Maternal Uncles and Aunt confirmed the
sequence of events that led to J.J.B.[’s] hospitalization.
On August 25, 2016, DHS learned that J.J.B. was ready to be
discharged from St. Christopher’s Hospital [for] Children.
On August 25, 2016, DHS obtained an Order of Protective
Custody (OPC) for J.J.B. and went to St. Christopher’s Hospital
for Children to place him. Father was present at the hospital,
and refused to allow DHS to take custody of J.J.B. After Father
was restrained by hospital security, DHS took custody of J.J.B.
and placed him in a Concilio foster home.
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3 There is some disparity in the record between Maternal Aunt and Maternal
Grandmother. We do not, however, find this distinction significant to our
consideration.
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On August 26, 2016, a Shelter Care Hearing was held for J.J.B.[]
[T]he Honorable Lyris F. Younge lifted the OPC, ordered the
temporary commitment to DHS to stand and suspended visits for
Mother and Father until further order of the [c]ourt.
On September 15, 2016, and Adjudicatory Hearing for J.J.B. was
held before Judge Younge who ordered that the temporary
commitment to DHS stand. The visits of Mother and Father
remained suspended pending the outcome of further
investigation by DHS.
On September 27, 2016, an Adjudicatory Hearing for J.J.B. was
held before the Honorable Vincent Furlong, w[ho] continued the
case and ordered that the order regarding suspension of the
visits of Mother and Father stand.
On October 7, 2016, an Adjudicatory Hearing for J.J.B. was held
before Judge Vincent Furlong, who further deferred dependent
adjudication and ordered that the temporary commitment to
DHS stand.
On November 17, 2016, J.J.B.[’s] temporary commitment to
DHS was ordered to stand. Adjudication was further deferred;
the case was continued for further testimony by Dr. Maria
McColgan, the director of the Child Protection Program at St.
Christopher’s Hospital for Children[,] as to J.J.B.[’s] injuries.
On November 28, 2016, an Adjudicatory Hearing for J.J.B. was
held before Honorable Lyris F. Younge, who discharged the
temporary commitment to DHS, [and] adjudicated J.J.B.
dependent, committing him to DHS.
On November 28, 2016, Judge Younge found that aggravated
circumstances existed as to both Mother and Father in that J.J.B.
had been the victim of physical abuse resulting in serious bodily
harm by a parent and ordered that no further efforts be made to
preserve the family and reunify J.J.B. with his parents. Judge
Younge ordered that Voluntary Relinquishment of Parental Rights
petitions be offered to Mother and Father.
On December 19, 2016, DHS learned Mother and Father refused
to sign Voluntary Relinquishment of Parental Rights petitions.
J.J.B. had been in foster care since his discharge from St.
Christopher’s [Hospital for Children] on August 25, 2016.
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Trial Court Opinion (“T.C.O.”), 6/7/17, at 1-3.
DHS filed petitions for involuntary termination of parental rights and
for a goal change to adoption on December 22, 2016. The trial court held a
combined termination/goal change hearing on February 23, 2017.4 In
support thereof, DHS presented the testimony of Northeast Treatment
Centers (NET) Community Umbrella Agency (CUA) case manager, Telita
Thomas.5 Additionally, Mother, represented by counsel,6 testified on her
own behalf.7
____________________________________________
4 Mother incorrectly suggests in her brief that the goal change/termination
hearing commenced on November 28, 2016. Mother’s Brief at 6
(unpaginated). However, on November 28, 2016, the court conducted an
adjudicatory/aggravated circumstances hearing. See DHS Exhibit 1.
5 Counsel stipulated that the case manager would testify as to the statement
of facts presented in DHS’s petition for involuntary termination, but did not
stipulate as to the veracity of the statement of facts. Notes of Testimony
(“N.T.”), 2/23/17, at 11. DHS further presented DHS Exhibits 1 and 2. Id.
at 54. While the on the record exchange suggests that DHS Exhibit 2
includes DHS Exhibit 3 from the adjudicatory/aggravated circumstances
hearing on November 28, 2016, id. at 10-11, DHS Exhibit 2 as contained in
the certified record does not include this exhibit from the prior hearing.
Nonetheless, we observe that the dependency record does contain DHS
Exhibit 3 from the adjudicatory/aggravated circumstances hearing.
6 Mother, previously represented by appointed counsel, was represented by
private counsel at the termination/goal change hearing and in the instant
appeal. N.T. at 6. By way of further background, we note that Mother was
represented by different private counsel in the dependency matter prior to
appointment of counsel. See DHS Exhibit 1.
7 Mother, through counsel, additionally attempted to offer the testimony of
medical witnesses, as well as Maternal Grandmother, as to Child’s physical
state before and after his time in Father’s care from August 18 to August 20,
(Footnote Continued Next Page)
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By decree and order dated and entered February 23, 2017, the trial
court involuntarily terminated the parental rights of Mother pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and changed the permanency
goal to adoption. On March 17, 2017, Mother, through counsel, filed a
notice of appeal. Mother thereafter filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) on
March 23, 2017.8
(Footnote Continued) _______________________
2016. N.T. at 29, 41. Mother, however, abandoned the medical witnesses,
id. at 33-34, and the testimony of Maternal Grandmother was excluded by
the court, even after Mother then attempted to narrow it to lack of DHS
involvement with the home. Id. at 42-43. The court recognized that the
issue of Child’s injuries and abuse were already dealt with in the course of
the adjudicatory/aggravated circumstances hearing. Id. at 31-33, 42-43.
Moreover, regardless of any prior involvement or lack thereof, DHS was now
involved with Child. Id. at 43. Notably, Mother’s own testimony was limited
to the extent she attempted to testify as to Child’s injuries and abuse. Id.
at 37-39.
8 In children’s fast track matters, such as this matter, a concise statement of
errors complained of on appeal is required to be submitted with the notice of
appeal. Pa.R.A.P. 1925(a)(2)(i). However, as Mother filed a statement just
under one week after the notice of appeal and still within the thirty-day
appeal period, and there is no claim of prejudice as a result, we do not
penalize her. See In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009) (failure to
file 1925(b) statement concurrently with children’s fast track appeal results
in defective notice of appeal, which undergoes not per se quashal or
dismissal but, instead, case-by-case disposition since failure to file violates
procedural rule rather than trial court order); Cf. Mudge v. Mudge, 6 A.3d
1031 (Pa.Super. 2011) and J.M.R. v. J.M., 1 A.3d 902 (Pa.Super. 2010)
(failure to file a Rule 1925(b) statement of errors complained of on appeal,
when ordered by the Superior Court, will result in a waiver of all issues on
appeal).
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At the outset, we note that, in their briefs submitted with regard to the
instant appeal, DHS, as well as counsel for Child, argue that Mother waived
all issues on appeal and/or Mother’s appeal should be dismissed. DHS’s
Brief at 9-10; Child’s Brief at 14-16. DHS argues that Mother has waived all
issues on appeal as she failed to include a statement of questions involved in
her brief resulting “in an insufficient brief that has deprived counsel of the
opportunity to prepare a meaningful response to her argument and to allow
the [c]ourt to conduct a meaningful review of her claim.” DHS’s Brief at 9.
DHS further maintains that Mother failed to raise the issue asserted in her
brief, the fact that she had nothing to do child’s injuries and/or abuse, in her
concise statement. Id.
Similarly, counsel for Child argues that Mother abandoned the issue
raised in her concise statement related to presentation of medical witnesses
by failing to argue it in her brief. Child’s Brief at 16. In addition, counsel for
Child contends that Mother failed to challenge the termination of parental
rights before the trial court, instead attempting to contest her responsibility
for the abuse of Child. Id. at 15. Counsel for Child asserts the following:
Because [Mother] failed to present evidence or argument
challenging the termination of parental rights, this issue is
waived. Furthermore, [Mother] did not make appropriate
reference to any place in the record where she presented
evidence or argument relevant to challenging the termination of
parental rights. As such, she waived any claim regarding the
termination of her parental rights.
Id. (citations omitted).
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Pursuant to Pennsylvania Rule of Appellate Procedure 2111:
(a) General rule.-The brief of the appellant, except
as otherwise prescribed by these rules, shall consist of the
following matters, separately and distinctly entitled and in
the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in
question.
(3) Statement of both the scope of review
and the standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an
appeal to challenge the discretionary aspects
of a sentence, if applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise
relief sought.
(10) The opinions and pleadings specified
in Subdivisions (b) and (c) of this rule.
(11) In the Superior Court, a copy of the
statement of errors complained of on appeal,
filed with the trial court pursuant to Rule
1925(b), or an averment that no order
requiring a statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) was
entered.
(b) Opinions below.-There shall be appended to the
brief a copy of any opinions delivered by any court or other
government unit below relating to the order or other
determination under review, if pertinent to the questions
involved. If an opinion has been reported, that fact and
the appropriate citation shall also be set forth.
(c) Pleadings.-When pursuant to Rule 2151(c)
(original hearing cases) the parties are not required to
reproduce the record, and the questions presented involve
an issue raised by the pleadings, a copy of the relevant
pleadings in the case shall be appended to the brief.
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(d) Brief of the Appellant.-In the Superior Court,
there shall be appended to the brief of the appellant a copy
of the statement of errors complained of on appeal, filed
with the trial court pursuant to Pa.R.A.P. 1925(b). If the
trial court has not entered an order directing the filing of
such a statement, the brief shall contain an averment that
no order to file a statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) was entered by the
trial court.
Rules 2114 through 2119 establish and set forth in great detail the
specifics as to each of the required sections of the brief. See Pa.R.A.P.
2114-2119. Rule 2101 provides as follows with regard to non-compliance:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as
the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are
in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be quashed or
dismissed.
Pa.R.A.P. 2101.
We have held that an appeal may be dismissed and/or quashed where
the deficiencies of the appellant’s brief are such that we are unable to
conduct a meaningful review. Karn v. Quick & Reilly, Incorp., 912 A.2d
329, 337 (Pa.Super. 2006); Branch Banking & Trust v. Gesiorski, 904
A.2d 939, 943 (Pa.Super. 2006); Commonwealth v. Maris, 629 A.2d
1014, 1017 (Pa.Super. 1993). Of particular importance, an appellant must
include a Statement of Questions Involved. Branch Banking & Trust, 904
A.2d at 94; Maris, 629 A.2d at 1016. As we indicated in Maris:
“This Court possesses discretionary authority to quash,
dismiss or deny allowance of appeal based upon the
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substantial defects of appellant’s brief. Pa.R.A.P. 2101.”
Commonwealth v. Ely, [] 554 A.2d 118, 119
([Pa.Super.]1989). . . . “We decline to become appellant’s
counsel. When issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate
to present specific issues for review a [c]ourt will not
consider the merits thereof.” Sanford, [] 445 A.2d [149,
150 (Pa.Super. 1982)]. . . .
Maris, 629 A.2d at 1017. Significantly, a failure to preserve issues by
raising them in both the concise statement of errors complained of on
appeal and statement of questions involved portion of the brief on appeal
results in a waiver of those issues. Krebs v. United Refining Co. of
Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (“We will not ordinarily
consider any issue if it has not been set forth in or suggested by an appellate
brief’s statement of questions involved, and any issue not raised in a
statement of matters complained of on appeal is deemed waived.”) (citations
omitted).
Likewise, “where an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.” In re
W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011), appeal denied, 611 Pa. 643,
24 A.3d 364 (2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super.
2010)); see also Pa.R.A.P. 2119(a) (stating, “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—
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the particular point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent.”).
Lastly, “issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a). Pursuant to Pa.R.A.P.
2117(c) and 2119 (c) and (f), the brief must provide an indication in the
record where such issues were raised below.
We find that Mother has waived all issues on appeal. In her concise
statement, Mother raised trial court error related to the exclusion of the
testimony of medical and other witnesses as to Child’s health status before
and after his visit with Father. Concise Statement of Errors Complained of
on Appeal, 3/23/17. However, Mother failed to raise these issues in the
statement of questions involved section of her brief as she failed to include
such a section in her brief.9 Further, to the extent an issue can be
deciphered from her argument in her brief, Mother essentially maintained
her lack of responsibility for Child’s injuries.10 Mother’s Brief at 8-11. She
abandoned any reference to the claims of the trial court’s failure to allow
____________________________________________
9 We observe that the table of contents of Mother’s Brief does, however,
reference a statement of questions involved. Mother’s Brief at 1
(unpaginated).
10 While Mother sets forth the relevant law as to Section 2511 regarding the
statutory grounds for termination of parental rights, as taken from the trial
court’s opinion, Mother provides limited analysis, if any, in order to
adequately develop any such claims related thereto. Mother’s Brief at 8-11
(unpaginated).
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medical and other testimony related to Child’s physical condition before and
after his visit with Father. Mother, thus, failed to preserve a challenge
related to her initial claims by failing to additionally raise these issues in a
statement of questions involved section of her brief, and by failing to present
argument related thereto in her brief. She, likewise, failed to preserve a
challenge related to the claims raised in her argument by failing to include
these in her concise statement as well as a statement of questions involved.
As such, we find that Mother has waived such claims. See Krebs, 893 A.2d
at 797; In re W.H., 25 A.3d at 339 n.3.
Moreover, DHS and Child additionally argue that Mother’s challenge to
the causation of Child’s injuries is precluded by the doctrine of collateral
estoppel and/or res judicata. DHS’s Brief at 11-12; Child’s Brief at 15. In so
doing, DHS and Child point to the fact that the trial court already made a
finding of abuse and aggravated circumstances.
On appeal, Mother claims that she “had nothing to do with the
Child’s three skull fractures that ultimately led to the termination
of her parental rights. In making this argument Mother ignores
that upon the adjudication of dependency, the trial court entered
an order that was not appealed or otherwise challenged and
which found that “[t]he Child . . . has been the victim of physical
abuse resulting in serious bodily injury . . . proven as to Mother .
. .[.]” Because of the earlier finding that Mother [sic] in the
dependency proceeding that Mother was the perpetrator of the
physical abuse against the Child, Mother is collaterally estopped
from challenging that finding in this matter.
DHS’s Brief at 11.
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The “doctrines [of res judicata and collateral estoppel] serve to
preclude the litigation, respectively, of claims and issues that have
previously been litigated.” Chada v. Chada, 756 A.2d 39, 42 (Pa.Super.
2000). Generally, res judicata will bar any future suit on the same cause of
action between the same parties where a final judgment has been rendered.
Id. For the doctrine to apply, the former and latter suits must possess the
following common elements: “(1) identity in the thing sued upon; (2)
identity in the cause of action; (3) identity of persons and parties to the
action; and (4) identity of the capacity of the parties suing or being sued.”
Id.
Collateral estoppel applies when:
(1) the issue decided in the prior case is identical to one
presented in the later case; (2) there was a final judgment on
the merits; (3) the party against whom the plea is asserted was
a party or in privity with a party in the prior case; (4) the party
or person privy to the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in the
prior proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
Id. Generally, collateral estoppel bars issues that were already litigated in
prior proceedings, while res judicata bars subsequent claims that could have
been litigated in prior actions. Id.
Here, the court litigated the issue of Child’s injuries and/or abuse and
causation in the context of the dependency matter on November 28, 2016.
Further, after hearing the evidence, the court entered a finding of abuse and
aggravated circumstances, with Mother as a perpetrator, at the
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adjudicatory/aggravated circumstances hearing on November 28, 2016.
See Order of Adjudication and Disposition – Child Dependent, 11/28/16;
Aggravated Circumstances Order, 11/28/16. Mother participated in and was
represented by counsel during these proceedings. Subsequent to the entry
of these findings, Mother failed to appeal. See DHS Exhibit 1. Mother
would, therefore, be collaterally estopped from challenging the issue of
Child’s injuries and/or abuse and her related responsibility in the involuntary
termination proceedings. Notwithstanding, had Mother appropriately raised
and preserved a challenge as to the statutory grounds for termination of her
parental rights, as well as the goal change, we would find such claims
without merit.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.
at [325-26, 47 A.3d at] 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings. See In
re R.J.T., [608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
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In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “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.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004)
(citation omitted). “[I]f competent evidence supports the trial court’s
findings, 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)
(citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the
child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which is so “clear, direct,
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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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter
of Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91
(1998)).
In the case sub judice, the trial court terminated Mother’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b)11. We
have long held that, in order to affirm a termination of parental rights, we
need only agree with the trial court as to any one subsection of Section
2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). We, therefore, analyze the court’s decision to
terminate under Sections 2511(a)(2) and (b), which provide 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:
...
(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.
____________________________________________
11 We disagree with the trial court as to the application of 23 Pa.C.S.A. §
2511(a)(8) as Child had not been removed from Mother’s care for a period
of twelve months. 23 Pa.C.S.A. § 2511(a)(8) (requiring, in part, that “12
months or more have elapsed from the date of removal or placement”).
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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(a)(2), and (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination 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 Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002)). Nevertheless, parents are required to make diligent efforts towards
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the reasonably prompt assumption of full parental responsibilities. In re
A.L.D., 797 A.2d at 340. A parent’s vow to cooperate, after a long period of
uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. Id.
Further, in In re A.D., 93 A.3d 888, 896–97 (Pa.Super. 2014), we
analogized a no-contact order to imprisonment and held that such an order
created parental incapacity. In so holding, this Court stated as follows:
Just as our Supreme Court discussed a parent’s incapacity
relative to long-term incarceration in In re Adoption of S.P.,
[616 Pa. 309, 47 A.3d 817 (2012)], parental incapacity caused by a
no-contact order is not only relevant to a court’s conclusion that
grounds for termination exist under § 2511(a)(2), but where, as
here, the order is required to protect the children from further
sexual abuse at the hands of the excluded parent, we find that it
is dispositive.
Father’s repeated behaviors and his failure to be present for his
children due to the no-contact order has caused the children to
be without essential parental care, control, or subsistence
necessary for their physical and mental well-being.
Notwithstanding Father’s moderate compliance with the few
requirements CYS established for him, the conditions and causes
of his parenting incapacity cannot be remedied as long as the
no-contact order remains in place. We agree with the court’s
refusal to put on hold the need for consistent parental care and
stability of K.R.D., A.D., and C.D. simply because Father must
abide by the no-contact order that was entered for their safety.
Thus, we reject Father’s premise that the trial court erred in
terminating his parental rights based upon his inability to
remedy his parental incapacity.
Id. at 897.
In the instant matter, in finding grounds for termination pursuant to
Section 2511(a)(2), the trial court reasoned,
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So[,] because the [c]ourt is clear that reunification is not a
viable option[,] because I could not safely return the child to the
care of any parent because I cannot ascertain exactly who
inflected [sic] the injury[,] and[,] based on my previous
findings[,] I find with clear and convincing evidence that the
right of [M]other [] as to this child [] . . . should be involuntarily
terminated pursuant to 2511[(a)(2)].
N.T. at 57-58. The court further expounded in its Rule 1925(a) opinion,
stating,
As of the February 23, 2017[] hearing, J.J.B. had been in care
for six (6) months. As a result of the Aggravated
Circumstance[s] hearing detailing the physical abuse of J.J.B. by
Mother, the [c]ourt suspended visitation with Mother. Moreover,
the [c]ourt found the physical abuse, medical neglect, or refusal
of parent caused the child to be without essential parental care.
T.C.O. at 4 (citations to record omitted).
A review of the record supports the trial court’s determination of a
basis for termination under Section 2511(a)(2). The record reveals that
Child suffered three skull fractures, as well as a hematoma with bleeding,
without explanation. N.T. at 20; see also DHS Exhibit 3, 11/28/16. Child’s
injuries were determined not to be accidental, but inflicted. Id. In addition,
Mother delayed seeking care for Child for two days, despite acknowledging
symptoms.12 Id. at 22, 55. As a result, in order to protect Child, Mother’s
visitation with Child was suspended. Id. at 20; see also Shelter Care
____________________________________________
12 Mother acknowledged a lump on the back of Child’s head, which swelled.
She additionally noted fatigue and marks and/or bruising around the bridge
of Child’s nose and eyes. Petition for Involuntary Termination of Parental
Rights, 12/22/16, at Exhibit “A”, Statement of Facts re: [Child], ¶¶ a, c.
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Order, 8/26/16. The court additionally issued findings of abuse and
aggravated circumstances. Order of Adjudication and Disposition – Child
Dependent, 11/28/16; Aggravated Circumstances Order, 11/28/16; N.T. at
20. Notably, Mother was found to be a perpetrator of abuse. Id.
As summarized by the trial court,
. . .[T]he information within the Shelter Care Hearing is that I
had an infant that presented to St. Christopher’s with three skull
factures, bi-lateral fractures across the parallel [sic] zone and a
frontal bone fracture in the forehead region, also a hematoma
with acute bleeding. And neither parent can give plausible
explanation as to why that happened.
Dr. McColgan testified exhaustively at the last hearing, which I
believe was the Adjudicatory Hearing on November 28th, that the
injuries sustained to this child were not accidental in nature, but
were intentional.
So with that in mind[,] in an abundance of caution because we
are here to ensure the safety of the children, with no plausible
explanation[,] the [c]ourt would not even allow supervised visits
based on that. And, in the previous hearing[,] I was kind of
concerned about the demeanor of the parent[s] as well. So that,
coupled with the fact that the adjudicatory was also an
Aggravated Circumstances Hearing in which the Court found,
yes, there was a find[ing] of child abuse and aggravated
circumstances.
N.T. at 20. The court further recounted,
There was some testimony at that time about mom didn’t notice
symptoms and mom might have delayed getting the child to a
physician right away. So, I understand what [counsel for
Mother] has indicated that there was no health center opened on
Saturday or Sunday[,] but there’s always [sic] emergency room
that [sic] open 24/7. And in such a small child[,] when you
notice swelling and a lump on the head and the baby wasn’t
responding as the baby usually does, which was the testimony,
surely mom should have made every effort to get the baby
emergency care. That did not happen.
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N.T. at 54-55.
Hence, the record substantiates the conclusion that Mother’s repeated
and continued incapacity, abuse, neglect, or refusal has caused Child to be
without essential parental control or subsistence necessary for his physical
and mental well-being. See In re Adoption of M.E.P., 825 A.2d at 1272.
Moreover, Mother cannot or will not remedy this situation. See id. As this
Court has stated, “[A] child’s life cannot be held in abeyance while a parent
attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a
child's need for permanence and stability to a parent’s claims of progress
and hope for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513
(Pa.Super. 2006). As noted above, in order to affirm a termination of
parental rights, we need only agree with the trial court as to any one
subsection of Section 2511(a) before assessing the determination under
Section 2511(b), and we, therefore, need not address any further
subsections of Section 2511(a). In re B.L.W., 843 A.2d at 384.
We next determine whether termination was proper under Section
2511(b). Our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M. [a/k/a E.W.C. & L.M.
a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485
(1993)], this Court held that the determination of the child’s
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“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791. However, as discussed below, evaluation of a child’s bonds
is not always an easy task.
In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “In cases where there is
no evidence of any bond between the parent and child, it is reasonable to
infer that no bond exists. The extent of any bond analysis, therefore,
necessarily depends on the circumstances of the particular case.” In re
K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “[T]he 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., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal
citations omitted).
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33
A.3d 95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
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In the case sub judice, in determining that termination of Mother’s
parental rights favors Child’s needs and welfare under Section 2511(b) of
the Adoption Act, the trial court stated,
2511[(b)] consideration have [sic] been taken in [sic] by
the [c]ourt. Ms. Thomas testified that the child is very bonded
and attached to the current caregiver who’s a pre[-]adoptive
resource. Parents have had no contact so, therefore, there’s no
irreparable harm, no detrimental harm in doing so. And the
testimony was that there was no negative effects in not having
visitation of the parents.
So[,] with that in mind, I do find that it’s in the best
interest of [Child] to be adopted.
N.T. at 57-58. In its Rule 1925(a) opinion, the trial court elaborated as
follows:
In order to terminate the parental rights, the party seeking
termination must prove by clear and convincing evidence that
the termination is in the best interest of the child. The best
interest of the child is determined after consideration of the
needs and welfare of the child. The trial court must examine the
individual circumstances of each case and consider all
explanations offered by the parent facing termination of this [sic]
parental rights to determine if the evidence, in light of the
totality of the circumstances, clearly warrant [sic] involuntary
termination.
In the instant matter, on November 28, 2016 the [c]ourt found
clear and convincing evidence was presented and established
[a]ggravated [c]ircumstances and child abuse of J.J.B. existed as
to the [m]other and [f]ather. The [c]ourt found no reasonable
efforts on part of the DHS to reunify J.J.B. During this
proceeding, the [c]ourt was concerned parents failed to exercise
their right to make independent efforts towards reunification and
Mother failed to do so.
When determining the best interest of the child, many factors
are to be analyzed, “such as love, comfort, security, security and
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stability. Another factor that a court is to consider is what, if
any, bond exist for the child.
Pursuant to Section 2511(b), the trial court must take account
whether a natural parental bond exists between child and
parent, and whether termination would destroy an existing,
necessary and beneficial relationship. In the instant matter, the
testimony established that the child, J.J.B., would not suffer any
irreparable emotional harm if [M]other’s parental rights were
terminated. [T]he social worker testified J.J.B. had not had any
visitation pursuant to suspension of visits by the [c]ourt.
Furthermore, the social worker testified J.J.B. has been with the
foster parent the majority of his life. J.J.B. is very bonded with
his foster parent. Testimony established there is a parent/child
bond between J.J.B. and his foster parent which did not exist
between the child and his mother.
The [c]ourt stated concern about reunification as a viable option
due to the [c]ourt’s safety concerns and failure to ascertain how
injury was inflicted on J.J.B.[] The [c]ourt found convincing the
testimony that J.J.B. suffered no negative effects in not having
visitation with his parents. Hence, the [c]ourt concluded the
child would not suffer irreparable harm.
T.C.O. at 5 (citations including citations to record omitted).
Upon review, the record supports the trial court’s finding that the
Child’s developmental, physical and emotional needs and welfare favor
termination of Mother’s parental rights pursuant to Section 2511(b). There
was sufficient evidence to allow the trial court to make a determination of
the Child’s needs and welfare, and as to the lack of a bond between Mother
and Child that, if severed, would not have a detrimental impact on him.
Visitation between Mother and Child remained suspended since Child
came into care at six weeks old. N.T. at 16; see also Shelter Care Order,
8/26/16; Order of Adjudication and Disposition – Child Dependent,
11/28/16. Significantly, CUA case manager, Telita Thomas, reported a lack
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of negative impact on Child as a result of the suspended visitation. Id.
Conversely, Ms. Thomas observed the existence of a strong bond between
Child and foster mother, id. at 14. Child had been placed with foster
mother, who is “willing to provide permanency,” for a majority of his young
life. Id. at 14, 17. Ms. Thomas testified that she ”doesn’t believe Child can
safely reunify with either parent.” Id. at 15. She further opined that
termination of parental rights would not harm Child and that it is in the best
interest of Child to be free for adoption. Id. at 16. Thus, we discern no
abuse of discretion and, as confirmed by the record, termination pursuant to
Section 2511(b) was proper.
While Mother may profess to love Child, a parent’s own feelings of love
and affection for a child, alone, will not preclude termination of parental
rights. In re Z.P., 994 A.2d at 1121. As we stated, a child’s life “simply
cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” Id. at 1125. Rather, “a parent’s
basic constitutional right to the custody and rearing of his child is converted,
upon the failure to fulfill his or 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.” In re B., N.M., 856 A.2d 847, 856 (Pa.Super.
2004) (citation omitted).
Lastly, we turn to the question of whether the trial court appropriately
changed the permanency goal to adoption. In so doing, our standard of
review is the same abuse of discretion standard as noted above. See In
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the Interest of L.Z., 631 Pa. 343, 361, 111 A.3d 1164, 1174 (2015) (citing
In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)), for the
proposition that the abuse of discretion standard applies in a dependency
matter; see also In re S.B., 943 A.2d 973, 977 (Pa.Super. 2008) (“In
cases involving a court’s order changing the placement goal from “return
home” to adoption, our standard of review is abuse of discretion.”)
Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act,
when considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the placement;
(2) the extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances
which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal for
the children; (5) a likely date by which the goal for the child
might be achieved; (6) the child’s safety; and (7) whether the
child has been in placement for at least fifteen of the last
twenty-two months. The best interests of the child, and not the
interests of the parent, must guide the trial court. As this Court
has held, a child’s life simply cannot be put on hold in the hope
that the parent will summon the ability to handle the
responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa.Super. 2011) (citations and
quotation marks omitted).
Additionally, Section 6351(f.1) requires the trial court to make a
determination regarding the child’s placement goal:
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall
determine one of the following:
...
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(2) If and when the child will be placed for adoption,
and the county agency will file for termination of
parental rights in cases where return to the child’s
parent, guardian or custodian is not best suited to the
safety, protection and physical, mental and moral
welfare of the child.
42 Pa.C.S.A. § 6351(f.1).
Upon review of the record, a challenge to the goal change lacks merit.
The record reveals that a change of the permanency goal to adoption was in
Child’s best interests. Mother was found to be a perpetrator of abuse as to
Child, whose injuries remained unexplained. Order of Adjudication and
Disposition – Child Dependent, 11/28/16; Aggravated Circumstances Order,
11/28/16; N.T. at 20. As a result, visitation between Mother and Child
remained suspended. Order of Adjudication and Disposition – Child
Dependent, 11/28/16. Child had resided with foster mother almost his
entire young life and, as such, was bonded with foster mother, not Mother.
N.T. at 14, 17. Therefore, the record supports that a goal change was in the
best interests of Child. Accordingly, after review of the record, we again
discern no abuse of discretion, and conclude that the trial court properly
changed Child’s permanency goal to adoption.
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Mother’s
parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b) and changed Child’s
permanency goal to adoption.
Decree and order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2017
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In the Interest of: J.J.B., a Minor
Combined Opinion