Opinion
1430 WDA 2023 J-A09042-24
08-28-2024
IN THE INTEREST OF: L.M.S.B., A MINOR APPEAL OF: J.B., MOTHER
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered November 8, 2023 In the Court of Common Pleas of Cambria County Orphans' Court at No(s): 2023-995-IVT.
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
NICHOLS, J.
Appellant J.B. (Mother) appeals from the order granting the petition filed by Cambria County Children & Youth Services (the Agency) to terminate Mother's parental rights to L.M.S.B. (Child), born in February of 2023. On appeal, Mother contends that the Agency failed to prove by clear and convincing evidence that Mother's conduct warranted termination of her parental rights. For the reasons set forth below, we affirm.
We note that although the trial court also terminated the parental rights of S.G. and J.C. (collectively, Putative Fathers), neither Putative Father is a party to the instant appeal.
By way of background, the Agency filed a petition to involuntarily terminate Mother's parental rights on August 23, 2023. Following an evidentiary hearing on November 6, 2023, the trial court entered an order terminating Mother's parental rights.
The trial court appointed Suzann Lehmier, Esq., to represent Child as guardian ad litem. We note that the trial court did not conduct an on-the-record determination as to whether Attorney Lehmier could represent Child's best interests and legal interests without conflict. See, e.g., In re H.H.N., 296 A.3d 1258, 1263-64 (Pa. Super. 2023). Our Supreme Court has recognized that there is a presumption that there is no conflict between a child's best interest and legal interest when a child is too young to articulate a preference in the outcome of the proceedings. In re T.S., 192 A.3d 1080, 1088-90 (Pa. 2018). In the instant case, Attorney Lehmier stated on the record that there is no conflict between Child's best interests and legal interests due to her age. N.T. Hr'g, 11/6/23, at 73.
Appellant filed a timely notice of appeal and a Pa.R.A.P. 1925(a)(2)(i) statement. The trial court filed a Rule 1925(a) opinion incorporating its remarks at the conclusion of the November 6, 2023 hearing. See Trial Ct. Op., 12/13/23, at 2.
Hon. Norman A. Krumenacker, III, the presiding judge over the November 6, 2023 hearing and author of the trial court's Rule 1925(a) opinion, retired from the Cambria County Court of Common Pleas effective January 1, 2024.
Appellant raises the following issue for our review:
Whether the [trial] court abused its discretion or committed an error of law when it granted the petition to involuntarily terminate parental rights and ordered [Mother's] rights terminated to [] Child forever, without clear and convincing evidence that [Mother's] conduct warranted termination under 23 Pa.C.S. § 2511(a)[?]Mother's Brief at 4 (formatting altered).
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) (citations omitted and formatting altered). "[T]he 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 Q.R.D., 214 A.3d 233, 239 (Pa. Super. 2019) (citation omitted).
Termination of parental rights is governed by Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, which 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.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We note that we need only agree with the trial court as to any one subsection of Section 2511(a), as well as Section 2511(b), to affirm an order terminating parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
On appeal, Mother contends that the trial court erred when it granted the Agency's petition to terminate her parental rights. See Mother's Brief at 6. Specifically, Mother alleges that the Agency failed to meet its burden of clear and convincing evidence. Id. at 7. Mother further argues that she "remained compliant and attentive to the [trial court's] recommendation up until she no longer had a way to visit with [] Child. Furthermore, [the Agency] failed to provide any reason as to why [it] would no longer be aiding [Mother] with transportation." Id. at 9-10.
Section 2511(a)(1) provides 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.23 Pa.C.S. § 2511(a)(1).
When reviewing the involuntary termination of parental rights under Section 2511(a)(1), this Court has 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).
Further, the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent
facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.
Our courts have explained that parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, [our Supreme] Court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent exert himself [or herself] to take and maintain a place of importance in the child's life.In re T.J.J.M., 190 A.3d 618, 628 (Pa. Super. 2018) (citations omitted and formatting altered).
This Court has long recognized that a parent is required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities. 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.
In [In re Adoption of S.P., 47 A.3d 817 (Pa. 2012)], our Supreme Court reiterated the standard with which a parent must comply in order to avoid a finding that she abandoned her child.
Applying [In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975),] the provision for termination of parental rights based upon abandonment, now codified as § 2511(a)(1), we noted that a parent "has an affirmative duty to love, protect and support [her] child and to make an effort to maintain communication and association with that child." [McCray, 331 A.2d at 655].
* * *
Where the parent does not exercise reasonable firmness in declining to yield to obstacles, [her] other rights may be forfeited.
Adoption of S.P., 47 A.3d at 828.In re J.R.E., 218 A.3d 920, 925 (Pa. Super. 2019) (some citations omitted and some formatting altered).
Here, in lieu of a Rule 1925(a) opinion, the trial court directed this Court to review the following portion of the transcript from the evidentiary hearing:
But it's clear that she was -- within a couple days of the birth, the services plan was in place. There's really been no compliance with behavioral health or drug or alcohol. What compliance has been done has been -- and this is important -- has been after the goal change. The key to success was from February when she started visitations until the goal changed July 6th. There's virtually no compliance during that period, except for attending some visitation. And on that note, she attended 11 of 20.
It took a long time to get the psychological together, but she did get it done. I don't fault her for the psychiatric since that became an issue later on. But this idea of noncompliance because of transportation just doesn't make it. It just doesn't make it. She lives within, plus or minus, two miles of the Agency. The Agency made arrangements for the service providers to come to the Agency. That just falls on deaf ears.
But I think it's important too -- and this goes back to the aggravating circumstances that apparently were filed February 21st, even though there isn't an order of record until July 6th. I find it very telling that if you -- if you knew of this in February, because she would have gotten -- according to the service plans, she got copies of all these recommendations and that goal change issue and really didn't do anything to address it until really today saying, well, you know, things change and people need a second chance, it is very telling that she has had three prior terminations. But it is also telling that at least two, the son and the daughter --I believe, if I got the testimony right, the son is in South Carolina with dad and the daughter is in Philadelphia with the aunt -- that she still has not parented any of her kids. And so I -- and today she was testifying that she was getting certain things scheduled, but if you look at the record as a whole, there was virtually no compliance until after the goal change. And like she just testified,
well, I got an appointment coming up Friday. Well, I think the ship has sailed.
The best interest of [] Child, [] Child does deserve permanency. And I believe [Dennis] Kashurba referenced it when he was asked, how long does this take? Well, you look at history. You know, I don't believe she can come into compliance and succeed within a reasonable period of time consistent with [] Child's best interests.
So as to [Mother], I am going to grant the termination. And as to [] Putative Fathers, again, those are really no-brainers. Those orders will be signed, okay.N.T. Hr'g, 11/6/23, at 74-76 (some formatting altered).
Mr. Kashurba is a psychologist who performs psychological evaluations for the Agency. See N.T. Hr'g, 11/6/23, at 25. Mr. Kashurba conducted a psychological evaluation of Mother for the instant matter. Id.
Following our review of the record, we discern no abuse of discretion or error of law in the trial court's conclusion that the Agency presented clear and convincing evidence to support termination of Mother's parental rights under Section 2511(a)(1). See T.S.M., 71 A.3d at 267.
The record reflects that Child was removed from Mother's custody two days after Child's birth due to Mother's mental health and substance abuse issues. N.T. Hr'g, 11/6/23, at 8. During the termination of parental rights hearing, Agency caseworker Barb Eckenrod testified that it was subsequently determined that Mother's mental health issues were untreated. Id.
Ms. Eckenrod testified that the Agency provided Mother with access to behavioral health services, drug and alcohol treatment following an assessment, and parenting instruction through the Bair Foundation. Id. at 9. Additionally, the Bair Foundation arranged visitation with Child for Mother. Id.
The record further reflects that Mother was closed out of drug and alcohol treatment for noncompliance. Id. at 11. Additionally, Mother was not compliant with family service plans and child permanency plans while Child was in placement. Id. at 13. While Mother appeared for visits with Child from March to May of 2023, she did not appear for visits scheduled in June, July, or August of 2023. Id. at 34-44, 46. A sheriff's deputy had to attend visits with Child due to Mother's aggressive behavior toward Agency employees. Id. at 19, 40. Therefore, we agree with the trial court that, from February through August 23, 2023, a period exceeding the six-month statutory period, Mother refused to perform her parental duties to Child. J.R.E., 218 A.3d at 925; T.J.J.M., 190 A.3d at 628.
With respect to Mother's explanation for her conduct, the record reflects that Mother generally denied the Agency's allegations. Specifically, Mother attributed her failure to comply with drug and alcohol treatments to issues with insurance coverage. N.T. Hr'g, 11/6/23, at 52. With regard to behavioral health, Mother testified that she regularly saw a social worker at Conemaugh Hospital and was able to get medication as a result. Id. at 53-54. Finally, Mother acknowledged attending only eleven of twenty scheduled visits with Child. Id. at 54. Mother testified that she was unable to find transportation, and that she requested that the Bair Foundation assist with transportation, which was denied. Id. at 54-55. Mother attributed her request to recovery from a cesarian section; however, Mother testified that despite possibly needing "a year or two for a C-section to heal up," she was babysitting for members of her family. Id. at 54-55. The trial court ultimately concluded that "this idea of non-compliance just doesn't make it." Id. at 75; see also S.P., 47 A.3d at 828 (stating that where "a parent does not exercise reasonable firmness in declining to yield to obstacles, [her] other rights may be forfeited" (citation omitted)).
For these reasons, we discern no abuse of discretion by the trial court in concluding that termination was appropriate under Section 2511(a)(1). See T.S.M., 71 A.3d at 267; J.R.E., 218 A.3d at 925; T.J.J.M., 190 A.3d at 628. Accordingly, Mother is not entitled to relief. We, therefore, affirm the trial court's order terminating Mother's parental rights to Child, L.M.S.B.
We reiterate that we need only agree with the trial court as to one subsection of Section 2511(a). See B.L.W., 843 A.2d at 384.
As stated above, the review of a termination of parental rights requires a bifurcated analysis of Sections 2511(a) and (b). See L.M., 923 A.2d at 511. Mother's appeal, however, is limited to Section 2511(a). Mother notes in her Rule 1925(a)(2)(i) statement that the trial court's finding that there was no bond between Mother and Child was against the weight of the evidence, and this statement arguably refers to Section 2511(b). However, Mother does not present any challenge to the termination of her parental rights pursuant to Section 2511(b) in her appellate brief. Accordingly, we are constrained to conclude that any challenge concerning Section 2511(b) is waived on appeal. See In re J.T.M., 193 A.3d 403, 408 n.5 (Pa. Super. 2018); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (reiterating that a claim is waived where an appellate brief fails to provide any discussion of the claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review).
Order affirmed. Jurisdiction relinquished.
Judgment Entered.