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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.V., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: V.M.B. :
:
:
:
:
: No. 1898 MDA 2018
Appeal from the Decree Entered October 17, 2018
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
85840
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 09, 2019
V.M.B. (Mother) appeals from the decree involuntarily terminating her
parental rights to her minor child, L.V. (born May 2014) (Child), pursuant to
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). 1 After careful review, we
affirm.
A prior panel of this Court discussed the facts and procedural history
underlying this appeal as follows:
BCCYS became involved with regard to Child in July 2014 due to
a report of “concerns about [Mother]’s care of Child[,] including
her anger and frustration with parenting [Child].” Notes of
Testimony (“N.T.”), 3/26/18, at 17; see also Exhibit 5.3 As a
result, services and monitoring were initiated. Id. Due to
continuing concerns, on January 26, 2015, BCCYS filed a
dependency petition. Id. at 19; see also Exhibit 5. Specifically,
____________________________________________
1 By separate decree, dated April 23, 2018, the court terminated the parental
rights of Lo.V. (Father). Father has not appealed the termination of his
parental rights.
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BCCYS noted issues as to “Mother’s inappropriate parenting, lack
of stable housing, domestic violence issues and mental health
issues.” Exhibit 5 at 7, ¶ 20. On February 18, 2015, Child was
adjudicated dependent but remained in the custody of Mother.
See Exhibit 6. Thereafter, on April 20, 2015, BCCYS was granted
emergency protective custody of Child. See Exhibit 9, at 1.
BCCYS expressed “ongoing concern due to Mother’s lack of
cooperation with services, lack of supervision of Child, unstable
housing and mental health issues.” See Exhibit 9, at 2, ¶ 3.
Notably, Mother was unable to continue residing with Child, with
her friend, C.L., and obtained inappropriate housing.4 N.T. at 20-
21; see also Exhibit 9 at 2, ¶ 1. The court entered a shelter care
order on April 27, 2015, after a hearing before and the
recommendation of a master on April 22, 2015. Pursuant to order
dated May 6, 2015, Child was fully committed to BCCYS. See
Exhibit 13.
Subsequent to a motion to modify placement, on February 23,
2017, physical and legal custody of Child were transferred back to
Mother. See Exhibit 18. However, on May 19, 2017, after the
caseworker arrived at the home and heard Mother yell at Child,
which continued, and observed Mother yank Child’s security
blanket away, BCCYS again sought, and was granted, emergency
protective custody of Child. See Exhibit 19; see also N.T. at 28-
29. Child has remained in care since. N.T. at 15.
DHS filed a petition to involuntarily terminate Mother’s parental
rights on December 6, 2017. The trial court held a hearing on
March 26, 2018. In support thereof, BCCYS presented the
testimony of Marsha Ganter, BCCYS Permanency Adoption and
Foster Care Supervisor, who supervised the case until November
2017, N.T. at 17; and Kimberly Reinert, Commonwealth Clinical
Group, who began treating Mother in October 2017 related to
domestic violence and anger management, and was qualified as
an expert in the area of mental health and domestic violence
treatment, id. at 52-54. BCCYS further offered Exhibits 1 through
70, which were marked and admitted without objection. Id. at 9-
14, 51-52. Mother, who was present and represented by counsel,
testified on her own behalf. She additionally presented the
testimony of C.L., a friend and purported source of support; and
Trista Putt, licensed professional therapist, Pennsylvania
Counseling Services. Child was represented by a guardian ad
litem during this proceeding.5
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By decree dated March 26, 2018, the trial court involuntarily
terminated the parental rights of Mother to Child pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).6 On April 23, 2018,
Mother, through appointed counsel, filed a timely notice of appeal,
as well as a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
3 The family had been known to BCCYS since 2012 as
a result of concerns related to parenting, housing, and
domestic violence. See Exhibit 5 at 5, ¶ 1.
4Specifically, one of the individuals with whom Mother
resided was a perpetrator of sexual abuse. N.T. at
21; see also Exhibit 9 at 2, ¶ 1. Further, attempts to
secure housing services and/or support through
Opportunity House and Berks Counseling Center were
unsuccessful. As testified by Ms. Ganter, as Mother
“had been problematic in both of those programs in
the past, neither of them would consider [taking] her
back. Berks Counseling Center housing indicated that
she had previously damaged property and was not
able to return and Opportunity House indicated that
she had been a behavioral problem in their facility
previously.” N.T. at 20-21.
5 Notably, counsel was appointed pursuant to order
dated December 26, 2017 in anticipation of the March
26, 2018 termination hearing. See Preliminary Order,
12/26/17. We observe that counsel was appointed “to
act as Guardian Ad Litem for [Child], pursuant to the
provisions of the Adoption Act of Pennsylvania, [23
Pa.C.S.A. § 2101, et seq.]” Id. While Molly Sanders,
Esquire, or J. Kathleen Marcus, Esquire, were
specifically appointed, for reasons unclear from the
record, Melissa Krishock, Esquire, appeared at the
hearing. At the hearing, Attorney Krishock argued in
support of termination. N.T. at 125. She further
submitted a brief to this Court in support of this
position.
6This decree memorialized the decision placed by the
court on the record at the hearing wherein the court
stated, “...[M]om has not gotten to the point where
she can do this. And it’s been 30-some months. By
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the statute I believe I have to enter the decrees. I
will do so....” N.T. at 126.
See In the Interest of L.V., 198 A.3d 465, *1-2 (Pa. Super. 2018)
(unpublished memorandum) (footnotes in original).
Following Mother’s timely first appeal, a panel of this Court determined
that Child, who was four years old at the time of the termination hearing, had
been denied her statutory right to counsel pursuant to In re Adoption of
L.B.M., 161 A.3d 172, 180 (Pa. 2017) (plurality). Id. at *5. Accordingly, the
panel vacated the termination decree without prejudice and remanded the
matter to determine Child’s legal preferences. Id. Following remand, Sharon
M. Scullin, Esquire, was appointed to serve as Child’s legal counsel. See
Order, 10/1/18, at 1.
On October 2, 2018, Mother filed a petition seeking to reinstate visits
with Child. See Petition to Reinstate Visits, 10/2/18, at 1. Mother argued
that BCCYS was attempting to prevent contact with Child to break the bond
between Mother and Child. Id. at 1-2. Initially, the court issued a rule to
show cause why the petition should not be granted, and scheduled a hearing
on the petition. See Order, 10/9/18, at 1.
On October 15, 2018, Attorney Scullin submitted a report detailing her
meetings with Child, both alone and with B.S. (Foster Mother). See
Memorandum of Counsel to the Minor Child, 10/15/18, at 1. The report was
clear and unequivocal that Child prefers to be adopted by Foster Mother, to
whom she refers as “Mommy.” Id. at 1-2. Child wishes to be adopted as
soon as possible, even if that means not seeing Mother, to whom Child refers
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by first name. Id. Following receipt of counsel’s report, the trial court re-
entered the termination decree. See Decree, 10/17/18, at 1. Additionally,
the trial court denied Mother’s motion to reinstate visitation as moot. See
Order.
Mother timely filed a notice of appeal and concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises the following issues:
A. WHETHER THE HONORABLE COURT ERRED AS A MATTER OF
LAW BY TERMINATING [MOTHER’S] PARENTAL RIGHTS AS TO
HER CHILD?
B. WHETHER THE EVIDENCE PRESENTED BY [BCCYS] WAS
INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE
HONORABLE COURT’S DECISION TO TERMINATE [MOTHER’S]
PARENTAL RIGHTS IN THAT THE ALLEGATIONS RAISED BY
[BCCYS] CANNOT AS A MATTER OF LAW BE SUFFICIENT
GROUNDS TO TERMINATE PARENTAL RIGHTS?
C. WHETHER THE HONORABLE COURT ERRED IN AND ABUSED
ITS DISCRETION IN TERMINATING [MOTHER’S] PARENTAL
RIGHTS WHERE [MOTHER] HAS TAKEN SUFFICIENT STEPS TO
REMEDIATE THE ISSUES THAT LED TO THE PLACEMENT OF
[CHILD]?
D. WHETHER THE HONORABLE COURT ERRED AS A MATTER OF
LAW IN TERMINATING [MOTHER’S] PARENTAL RIGHTS BASED ON
THE LENGTH OF TIME [CHILD] HAS BEEN IN [CARE] WHERE
THERE WERE COMPELLING REASONS NOT TO TERMINATE HER
RIGHTS ESPECIALLY IN LIGHT OF THE STEPS TAKEN TO
REMEDIATE THE ISSUES THAT LED TO THE INITIAL PLACEMENT
AND THE FACT THAT REASONABLE STEPS WERE NOT TAKEN TO
AVOID [CHILD’S] RETURN TO CARE?
E. WHETHER THE HONORABLE COURT ERRED AS A MATTER OF
LAW AND DEPRIVED MOTHER OF HER RIGHTS BY GRANTING A
HEARING ON MOTHER’S PETITION TO REINSTATE VISITS
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FOLLOWING THE REMAND BY SUPERIOR COURT WHERE MOTHER
HAD NOT SEEN [CHILD] FOR A PERIOD OF TIME ONLY TO DEEM
THE HEARING MOOT BECAUSE COUNSEL FOR [CHILD], WHILE
KNOWING THE PETITION WAS PENDING, [CHOSE] TO MEET WITH
[CHILD] PRIOR TO A JUDICIAL DETERMINATION ON MOTHER’S
PETITION?
Mother’s Brief at 4-5.
We review cases involving the termination of parental rights mindful of
the following:
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations
omitted).
Termination requires a bifurcated analysis:
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.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Instantly, we focus our analysis on subsection (a)(2) and (b). The
relevant subsections of 23 Pa.C.S.A. § 2511 provide:
(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.
***
(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.
To satisfy the requirements of Section 2511(a)(2), the moving party
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.”
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See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The
grounds for termination are not limited to affirmative misconduct, but concern
parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,
1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward
the reasonably prompt assumption of full parental duties. Id.
At the outset, we note that Mother addresses her first four issues en
masse in one section of argument. See Mother’s Brief at 9-15. Essentially,
she contends that BCCYS did not prove by clear and convincing evidence that
grounds existed for termination under any subsection of the statute. Id.
Mother claims that she was making efforts to remedy the conditions leading
to Child’s placement, and that it is not enough as a matter of law to terminate
her rights “for becoming frustrated with a toddler’s behavior and raising her
voice or cursing at that child in an isolated incident.” Id. at 15. Mother asserts
that “there is no evidence whatsoever” that Child was negatively impacted by
“the incident.” Id. Mother’s arguments are without merit.
The trial court explained:
In this case, Mother has failed to alleviate the concerns which led
to the child’s placement, including failing to complete domestic
violence counseling and failing to address the ongoing concerns
regarding her mental health.
While Mother has participated in court ordered services, she has
not successfully completed treatment for domestic violence.
Mother has attended domestic violence counseling since June 1,
2015. However, it was noted that Mother can be defensive when
questioned about her history of domestic violence, fails to see the
effects of domestic violence on children, and has limited insight
on how to create healthy relationships and set boundaries. In
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addition, Mother refuses to discuss her past relationship with
[Child’s] father, which has been a significant detriment to her
counseling. After nearly two years of treatment, Mother’s clinician
reported that Mother has a poor prognosis and recommended that
Mother not be in a primary caretaking role. Further, after an
incident where Mother’s behavior threatened a clinician, Mother
was temporarily not allowed to continue her treatment.
Mother’s mental health continues to be a concern. In 2015,
Mother was diagnosed with an intermittent explosive disorder, and
anger management continues to be part of her mental health
treatment. Mother has expressed that some of her triggers, in
regards to her feelings of frustration, are when children cry and
when she is not listened to. Mother’s clinician stated that those
triggers were “extremely” concerning, given [Child’s] age. While
another clinician testified that Mother is making progress in
regards to anger management, when questioned by the [c]ourt,
the clinician testified that the majority of [Mother’s] treatment is
done through self-reporting. To date, Mother has not successfully
completed [m]ental [h]ealth treatment. For these reasons, the
[c]ourt finds that termination is warranted under this section.
Trial Court Opinion, 12/10/18, at 9.
Marsha Ganter, BCCYS permanency adoption and foster care supervisor,
testified extensively regarding Mother’s mental health issues, domestic
violence with her partners, lack of familial support and stable housing, and
angry and at times violent reactions to Child. See N.T., 3/26/18, at 17-42.
Kimberly Reinert, who is employed by the Commonwealth Clinical Group,
treated Mother for her domestic violence and anger management issues, and
also testified extensively regarding Mother’s lack of progress. Id. at 52-60.
Ms. Reinert expressed her concerns that Mother would continue to lose her
temper and have issues caring for Child full time. Id. at 59.
Mother does not deny that she has failed to complete domestic violence
counseling and mental health treatment, but instead argues that she has
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“made strides” in both. See Mother’s Brief at 11. Mother downplays her
violent outbursts and the consequent trauma Child has experienced as a result
of repeated reunifications and placements. Id. at 11-15. Mother also
minimizes the extent to which she is “stressed out” with Child’s behavior
during supervised visitation, though she admitted during testimony that she
requires help even during these short periods. See Mother’s Brief at 11-15;
see also, N.T., 3/26/18, at 114-116.
Consistent with the foregoing, we discern no error in the trial court’s
finding that competent, clear and convincing evidence supported the
termination of Mother’s parental rights pursuant to Section 2511(a)(2), based
upon Mother’s continued incapacity – including her inability to complete
domestic violence counseling and mental health treatment – that resulted in
Child being without essential parental care, the cause of which “cannot or will
not be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.
Next, we consider whether Child’s needs and welfare will be met by
termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “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.” Id. The court is not required to use expert
testimony, and social workers and caseworkers may offer evaluations as well.
Id. Ultimately, the concern is the needs and welfare of a child. Id.
We have stated:
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[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Where there is no evidence of a bond between the
parent and child, it is reasonable to infer that no bond exists. Id. “[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 [the child’s] potential in a
permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004) (citations omitted).
Initially, we note that Mother has made no effort to argue that the trial
court abused its discretion with regard to this section and the needs and
welfare of Child. Accordingly, she risks waiver. See In re Adoption of
R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super. 2013) (declining to address
subsection 2511(b) where the appellant did not make an argument concerning
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that subsection). However, even in the absence of waiver, such claim would
be unavailing.
The trial court opined:
After reviewing the testimony and considering the exhibits, this
[c]ourt finds that the termination of Mother’s rights will serve the
best interests of the child. [Child] has spent all but ten months of
her short life in foster care, and is well cared for and loved in her
current foster home. The record shows that [Child] looks to her
foster mother to fulfill her needs. Importantly, [Child] has had to
endure significant trauma in being reunified with Mother, and
then, only three (3) months later, being placed in custody, once
again. [Child] is currently in treatment to deal with this trauma.
In addition, Mother’s domestic violence counselor expressed
serious concerns over situations that would trigger Mother’s
frustration and annoyance, including when children cry and when
Mother feels as though she is not being listened to. Given [Child’s]
age, this is extremely concerning. In addition, the counselor
noted concerns about Mother’s ability to identify safe and
appropriate caretakers. This would have a significant impact on
[Child’s] safety. While Mother does have a positive relationship
with [Child], expert testimony showed the termination of Mother’s
rights would benefit [Child], and provide [Child] with stability.
Trial Court Opinion, 12/10/18, at 12 (record citations omitted).
We discern no abuse of discretion in the trial court’s conclusion that
Child’s needs and welfare are best served by termination. Accordingly, clear
and convincing evidence supports the trial court’s termination of Mother’s
parental rights under Section 2511(a)(2), as well as the Section 2511(b)
findings that the severance of the bond between Mother and Child would not
harm Child, and adoption would best serve Child’s needs and welfare. See
Z.P., 994 A.2d at 1126-27; K.Z.S., 946 A.2d at 763.
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We next address Mother’s final issue, in which she contends that the
court erred in first scheduling a hearing on the petition to reinstate visitation
with Child, and then denying the petition as moot. See Mother’s Brief at 16.
Mother argues, without citation to any legal authority, that the trial court “had
an obligation to follow through with said hearing and decline to read counsel’s
report prior to the hearing.” Id. Because Mother has not supported her
argument with citation to any relevant legal authority, Mother has waived this
issue. See, e.g., S.M.C. v. W.P.C., 44 A.3d 1181, 1189 (Pa. Super. 2012);
see also Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (noting
that 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); see also
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (“This Court
will not act as counsel and will not develop arguments on behalf of an
appellant.”); see also Pa.R.A.P. 2119(a).
Regardless of waiver, this issue is without merit. Upon remand, this
Court ordered that the trial court ascertain Child’s legal preferences and that,
if Child’s preferred outcome was consistent with the result of the prior
termination proceedings, the trial court should re-enter its March 26, 2018
decree. See L.V., 198 A.3d 465, at *5. This Court did not direct or require
visitation. Upon receipt of Attorney Scullin’s report, the trial court was,
indeed, advised of Child’s clear legal preferences and, accordingly, re-entered
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the termination decree. The trial court did not commit an error of law or abuse
its discretion. T.S.M., 71 A.3d at 267.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/09/2019
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