In Re: T.J., a minor, Appeal of: T.C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: T.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.C., NATURAL MOTHER :
: No. 1724 WDA 2014
:
Appeal from the Order Entered October 1, 2014
in the Court of Common Pleas of Butler County
Civil Division, at No. D.P. 56 of 2012
IN RE: T.J., ADOPTION OF T.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
APPEAL OF: T.C., NATURAL MOTHER :
: No. 1725 WDA 2014
:
Appeal from the Decree Entered September 30, 2014
in the Court of Common Pleas of Butler County
Civil Division, at No. D.P. 52 of 2013
IN RE: T.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.J. :
: No. 1893 WDA 2014
:
Appeal from the Decree September 30, 2014
in the Court of Common Pleas of Butler County
Civil Division, at No. D.P. 52 of 2013
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.∗
MEMORANDUM BY PANELLA, J. FILED JUNE 09, 2015
∗
Retired Senior Judge assigned to the Superior Court.
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In these consolidated1 and related appeals, T.C. (Mother) and T.J.
(Father) appeal the decrees of the Court of Common Pleas of Butler County,
entered September 30, 2014, respectively, that terminated their parental
rights to their daughter, T.J. (Child), born in December 2009. Mother also
appeals the trial court order entered October 1, 2014, that changed Child’s
goal to adoption. We affirm.
Butler County Children and Youth Services (CYS) took custody of Child
on June 29, 2012, upon finding that she lacked proper parental care and
control. At the time of her placement, Father was incarcerated, and Mother
had been arrested on charges of possession with intent to deliver a
controlled substance.
Mother did not provide care for Child for nearly a year before CYS
assumed custody, having given guardianship of Child to her maternal
grandmother (Maternal Grandmother) on July 26, 2011. After Maternal
Grandmother decided she was no longer able to care for Child, she placed
Child with a family friend. Child was living with this family friend at the time
she entered placement with CYS. That family friend admitted she would not
be able to pass the required clearances for placement through CYS because
of her criminal background.
1
This Court sua sponte consolidated Mother’s appeals, Docket Nos. 1724
and 1725 WDA 2014. We address Mother’s and Father’s appeals in this
combined memorandum simply for ease of disposition.
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In July 2012, CYS placed Child with the child’s maternal great-
grandmother (Maternal Great-Grandmother) but, about two months later, in
September 2012, CYS removed Child from Maternal Great-Grandmother’s
home and placed her in a foster home, where she remained at the time of
the hearing in this matter. Child has not lived with Mother since July 2011.
At the time of the hearing, Mother had not seen Child since February 2013,
when Child was three years of age.
CYS has been involved with Mother since 2003. Mother has had three
of her other children placed in CYS’s custody, two of whom have been
adopted, and the third who has been placed with the child’s paternal
grandmother.
Mother was arrested the day CYS assumed custody of Child. She
spent approximately two years in jail, and was released in the spring of
2014. During her incarceration, Mother participated in the Parole Program,
money management classes, anger resolution class, Impact of Crime on
Victims, and a drug and alcohol program. Mother did not participate in any
parental care classes or parenting techniques classes while incarcerated.
When Child resided with Maternal Great-Grandmother, Mother had
contact with Child via telephone and letters. Once Child was placed in her
current foster home, the phone calls stopped, but Mother continued to send
Child about one or two letters per month.
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Since her release, the CYS caseworker has not had any contact with
Mother’s parole officer. Mother had not provided the caseworker with any
information regarding the terms of her release or anything regarding her
drug use. Mother has not completed any drug screens with the caseworker,
although she testified that she is completing drug screens with her parole
officer.
Mother called Child’s caseworker on May 13, 2014, and set up a
meeting with the caseworker. Mother, however, did not keep that
appointment, and did not provide a reason for failing to attend. Mother did
not attempt to reschedule.
Mother did not present any evidence that she is complying with her
Permanency Plan. The caseworker has attempted to call Mother and
Mother’s family members, but has been unable to leave any messages due
to their voice mailboxes always being full.
The trial court found the following.
Mother testified that she did not contact the caseworker again
because she was ‘too upset’ and was ‘denied visits’ with Child
and therefore wanted to go through her lawyer. No one on
behalf of Mother ever contacted the caseworker following the
initial contact by Mother to set up the meeting that Mother failed
to attend. Mother claimed the caseworker was lying in her
testimony, and that Mother has done everything she has been
asked to do. Mother places the responsibility on everyone else
and fails to take any responsibility herself. The [c]ourt finds her
testimony as to the caseworker not credible.
Trial Court Opinion 1/6/15, at 4-5.
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At the time of the hearing, Mother was living with Maternal
Grandmother, and her only source of income was public assistance.
Child is currently doing well in her foster home, and is bonded to her
foster parents, whom she calls mom and dad. Child is involved in family
activities and is close to her numerous cousins. Developmentally, Child is
doing well and is on track. Child never mentioned Father in any of her
therapy sessions and only mentions Mother in a negative light. Child is in a
stable, pre-adoptive foster home, where she is thriving.
Father lived with Child until his arrest in January 2011. That was the
last time Child resided with Father. Father has not provided any monetary
support to Child since his incarceration. Father was incarcerated when Child
entered CYS custody. Father only had contact with Child a couple of times
when she lived with Maternal Grandmother, and that was his only contact
with Child until he was incarcerated. At the time of the hearing, Father was
incarcerated at SCI Mahanoy—and had been for the previous three years.
Prior to that, Father had been incarcerated for a combined total of
approximately nine years; each time the charges were related to drugs and
drug dealing.
Father has participated in a drug and alcohol program and he attends
Narcotics Anonymous meetings once a week. Father has not participated in
any parenting classes, nor has he had any therapy or counseling for his
mental health. He testified that he is not sure if parenting classes are
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available and that his counselor has not spoken to him about any of those
options. Father has not signed any releases for his medical treatments or
counseling. If released from incarceration, Father will be required to live at
a halfway house. He does not know how long he would have to stay at
halfway house, and does not know if Child would be permitted to reside
there as well.
Father’s permanency plan required Father to participate in parenting
programs that may be available to him in jail. Father stated that that he has
not inquired about any parenting classes or additional counseling outside of
the drug and alcohol counseling he was attending. Father failed to sign the
releases that would permit CYS to contact his prison counselor to discuss his
progress.
The trial court found that Father had made minimal to no compliance
or progress towards alleviating the circumstances that necessitated Child’s
placement in that he was not communicating with his attorney or CYS nor
was he complying with the Permanency Plan.
Child’s caseworker, Jessica Fend, testified that she has not had any
contact with Father since her assignment to Child’s case in August 2013, and
she has not received any documentation about Father’s participation in
classes. According to Ms. Fend, Father has not performed any parental
duties since her assignment to Child’s case. The trial court found,
“[A]lthough [his] intentions are good, Father can produce no evidence that
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he has [participated] or will participate in the Permanency Plan or that the
circumstances that led to Child’s detention will be remedied.” Trial Court
Opinion 1/6/15, at 5.
The trial court entered its decree terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5) and (8) on September 30, 2014
and entered its order changing Child’s goal to adoption on October 1, 2014,
and. Mother filed her notice of appeal and concise statement of errors
complained of on appeal on October 21, 2014.
The trial court entered its decree terminating Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8) on September 30,
2014. Father filed his timely notice of appeal and concise statement of
errors complained of on appeal on October 30, 2014.
Our standard of review is as follows.
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court
even though the record could support an opposite result.
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We are bound by the findings of the trial court which have
adequate support in the record so long as the findings do not
evidence capricious disregard for competent and credible
evidence. 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.
Though we are not bound by the trial court’s inferences and
deductions, we may reject its conclusions only if they involve
errors of law or are clearly unreasonable in light of the trial
court’s sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
We note our standard of review of a change of goal is as follows.
When we review a trial court’s order to change the placement
goal for a dependent child to adoption, our standard is abuse of
discretion. In order to conclude that the trial court abused its
discretion, we must determine that the court’s judgment was
manifestly unreasonable, that the court did not apply the law, or
that the court’s action was a result of partiality, prejudice, bias
or ill will, as shown by the record.
In the Interest of S.G., 922 A.2d 943, 946 (Pa. Super. 2007).
Requests to have a natural parent’s parental rights terminated are
governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
...
(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.
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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. In order to affirm the termination of parental
rights, this Court need only agree with any one subsection of Section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires evidence 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 T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted). Further,
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent-
child relationship. Parental rights are not preserved by waiting
for a more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or her
physical and emotional needs.
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In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal
citations omitted).
The fundamental test in termination of parental rights under Section
2511(a)(2) was long ago stated in the case of In re Geiger, 331 A.2d 172
(Pa. 1975). There the Pennsylvania Supreme Court announced that under
what is now Section 2511(a)(2), that the petitioner for involuntary
termination must prove “[t]he 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.” Id., at 173.
The Adoption Act provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.A. § 2511(b). The Act does not make
specific reference to an evaluation of the bond between parent and child but
our case law requires the evaluation of any such bond. See In re E.M., 620
A.2d 481, 484-485 (Pa. 1993). However, this Court has held that the trial
court is not required by statute or precedent to order a formal bonding
evaluation performed by an expert. See In re K.K.R.-S., 958 A.2d 529,
533 (Pa. Super. 2008).
In regard to incarcerated persons, our Supreme Court has stated:
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[I]ncarceration is a factor, and indeed can be a
determinative factor, in a court’s conclusion that grounds for
termination exist under § 2511(a)(2) where the repeated and
continued incapacity of a parent due to incarceration has caused
the child to be without essential parental care, control or
subsistence and that [sic] the causes of the incapacity cannot or
will not be remedied.
In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).
...
[W]e now definitively hold that incarceration, while not a
litmus test for termination, can be determinative of the question
of whether a parent is incapable of providing “essential parental
care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether
“the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,” sufficient
to provide grounds for termination pursuant to 23 Pa.C.S. §
2511(a)(2). See, e.g., Adoption of J.J., [511 Pa. at 605], 515
A.2d at 891 (“[A] parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to perform
the duties.”); [In re:] E.A.P., [944 A.2d 79, 85 (Pa. Super.
2008)] (holding termination under § 2511(a)(2) supported by
mother’s repeated incarcerations and failure to be present for
child, which caused child to be without essential care and
subsistence for most of her life and which cannot be remedied
despite mother’s compliance with various prison programs). If a
court finds grounds for termination under subsection (a)(2), a
court must determine whether termination is in the best
interests of the child, considering the developmental, physical,
and emotional needs and welfare of the child pursuant to §
2511(b). In this regard, trial courts must carefully review the
individual circumstances for every child to determine, inter alia,
how a parent’s incarceration will factor into an assessment of the
child’s best interest.
Id., at 830-831.2
2
The Supreme Court cited its decision in In re: Adoption of McCray, 450
Pa. 210, 331 A.2d 652, 655 (1975), for the proposition that termination may
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Our examination of Mother’s brief reveals that she has waived the
issues she raised on appeal. In the argument section of her brief, Mother
does no more than re-examine the facts of this case and asks us to reach a
different conclusion. Mother fails to support her argument by any citation to
legal authority. Mother makes no effort whatsoever to link the facts of her
case to the law. In sum, Mother does not attempt to develop a coherent
legal argument to support her conclusion that the trial court erred in
terminating her parental rights and she has, therefore, waived that
argument. “The failure to develop an adequate argument in an appellate
brief may result in waiver of the claim under Pa.R.A.P. 2119.”
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)
(internal citation omitted). “[A]rguments which are not appropriately
developed are waived. Arguments not appropriately developed include those
where the party has failed to cite any authority in support of a contention.”
Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (internal
citations omitted). See Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa.
Super. 2006) (stating, “[i]t is well settled that a failure to argue and to cite
any authority supporting an argument constitutes a waiver of issues on
appeal”).
be appropriate for an incarcerated parent who has failed to perform his
parental duties for a six-year period. See id., at 828.
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In any event, the record reveals that the trial court’s decision to
terminate Mother’s parental rights under Sections 2511(a)(2) and (b), and
to change Child’s goal to adoption is supported by clear and convincing
evidence, and that there was no abuse of the trial court’s discretion.
Turning to Father’s appeal, with the exception of his final issue, in
which he complains that CYS failed to assist him in maintaining a
relationship with Child, Father has also failed to support his argument in his
first three issues with any citation to legal authority and has waived those
issues. See Commonwealth v. Beshore, supra.; In re Child M., supra.
In his final issue, Father relies on this Court’s decision in In the
Interest of D.C.D., 91 A.3d 173 (Pa. Super. 2014), to argue that we should
reverse the trial court because CYS failed to assist Father to establish and
maintain a relationship with Child. This Court’s decision in D.C.D., did stand
for the proposition that a trial court could consider whether an agency such
as CYS had made reasonable efforts to maintain a parent’s relationship with
a child. This Court’s decision in D.C.D., however, was reversed by our
Supreme Court in In re D.C.D., 105 A.3d 662 (Pa. 2014), in which the
Court stated, “[n]either subsection (a) nor (b) [of 23 Pa.C.S.A. § 2511]
requires a court to consider the reasonable efforts provided to a parent prior
to termination of parental rights.” Id., at 672.
Father argues that CYS failed to assist him because it never offered
him visits with Child while in prison. Father’s argument would fail even if
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this Court’s decision in D.C.D. were still our law. We quote the trial court’s
analysis of this issue, with approval.
Father did not attempt to maintain contact with the
caseworker or Child. He did not reach out and send letters or
gifts to Child nor did he communicate via telephone with her.
CYS gave Father a Permanency Plan which listed all the
requirements Father needed to do in order to maintain a
relationship with Child, but he failed to perform any of the said
requirements. The record does not support the claim that there
was overwhelming evidence that showed the Agency failed to
assist Father establish or maintain a relationship with Child or
that the Agency’s conduct prevented the establishment of any
bond between Father and Child. The record supports the
opposite.
Furthermore, Father was represented by counsel
throughout the Dependency Hearing. At trial, Father failed to
present any evidence that, during any of the Permanency Review
Hearings, he or his counsel expressed a concern about or ever a
question about how to communicate with Child while
incarcerated. In fact, when he participated at the hearing, he
expressed his full understanding and agreement with Child’s
Plan. There is no evidence to support Father’s claim that CYS
impaired his ability to write letters or otherwise communicate
with Child. Rather, Father did nothing to promote a relationship
with Child while incarcerated, and then tried to blame CYS for his
lack [sic].
Trial Court Opinion 1/6/15, at 18.
The record reveals that the trial court’s decree terminating Father’s
parental rights under Sections 2511(a)(2) and (b), and its order changing
Child’s goal to adoption are supported by clear and convincing evidence, and
that there was no abuse of the trial court’s discretion. We, therefore, affirm
the decrees terminating the parental rights of Mother and Father, and the
order changing Child’s permanency goal to adoption.
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Order at 1724 affirmed. Decrees at 1725 WDA 2014 and 1893 WDA
2014 affirmed.
Judge Lazarus joins in the memorandum.
Judge Strassburger files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:6/9/2015
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