Adoption of: M.J.C., Appeal of: A.J.B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: M.J.C. : PENNSYLVANIA
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APPEAL OF: A.J.B., MOTHER :
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: No. 1388 WDA 2021
Appeal from the Order Dated October 28, 2021
In the Court of Common Pleas of Cambria County Orphans' Court at
No(s): 2021-319 IVT
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: D.A.C., V : PENNSYLVANIA
:
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APPEAL OF: A.J.B., MOTHER :
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: No. 1389 WDA 2021
Appeal from the Order Dated October 28, 2021
In the Court of Common Pleas of Cambria County Orphans' Court at
No(s): 2021-320 IVT
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED: MAY 24, 2022
A.J.B. (“Mother”) appeals from the orders,1 entered in the Court of
Common Pleas of Cambria County, Orphans’ Court Division, terminating her
parental rights to her minor children, D.A.C., V (born 8/2/15) and M.J.C. (born
10/16/18) (collectively, “Children”). Upon careful review, we affirm.
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1 By order dated November 29, 2021, this Court consolidated Mother’s
appeals, sua sponte. See Pa.R.A.P. 513.
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Cambria County Children and Youth Service (“Agency”) first became
involved with this family after receiving a report, in December 2019, that
Parents had failed to follow through with Synagis RSV shots2 for M.J.C.
Following at least four prior unsuccessful attempts to visit the family’s home,
the Agency made contact with Parents3 on February 10, 2020. When Agency
representatives visited the home, they found eight people residing in a two-
bedroom trailer. See N.T. Termination Hearing, 10/20/21, at 13. The home’s
conditions were “deplorable, . . . the trailer was [structurally] unsafe, there
were holes in the floor, . . . ho[a]rding conditions in the home with stuff
everywhere and the children were very dirty.” Id. at 13-14. Although it was
February, there was no water or heat in the home. Id. at 14.
Children were removed from Parents’ care on a safety plan and placed
with their maternal aunt. Parents did not rectify the issues and, after hearings
held on April 28, 2020, Children were found to be dependent by order dated
April 30, 2020. Parents were given permanency goals, which included the
following: (1) psychological evaluations; (2) drug and alcohol assessments;
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2 Synagis is an antibody that helps decrease the risk of serious lung infections
caused by Respiratory Syncytial Virus (RSV). The medicine is given by
injection into the leg muscle, once a month for up to 5 months starting in
November through March, to children under two years old who are at high risk
for serious complications if they should get RSV. The injection is usually given
at the doctor’s office or at home by a nurse.
https://www.childrensmn.org/educationmaterials/childrensmn/article/15829
/synagis-palivizumab (last visited 5/6/22).
3 Father’s parental rights to Children were also terminated. He is not involved
in this appeal.
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(3) random drug screenings; (4) prohibition against consuming illegal drugs
or alcohol; (5) successfully attend and complete parenting classes; (6)
cooperate with Independent Family Services; and (7) maintain a clean, safe,
and adequately furnished residence for a minimum of six months. Trial Court
Order, 10/27/21, at ¶ 5.
A permanency review hearing was held on October 14, 2020, at which
time the juvenile court found Mother to be non-compliant with her
permanency review plan and concluded that no progress had been made
toward alleviating the circumstances that led to the placements. Id. at ¶ 8.
The court made the same finding after a second permanency review hearing
on January 27, 2021; it also found aggravating circumstances due to Parents’
failure to maintain substantial and continuing contact with Children for a
period in excess of six months. Id. at ¶¶ 10, 11. The court changed the
permanency goal for both Children to adoption. Id. at ¶ 11. After a third and
final permanency review hearing on July 21, 2021, the court again found no
compliance or progress and concluded that no further efforts need be taken
to preserve and unify the family. Id. at ¶ 12.
The Agency filed termination petitions as to both parents on March 9,
2021, alleging grounds under 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and
(b). The court appointed counsel for Children; based upon “their respective
ages and representations of counsel, the [c]ourt found no conflict between
each child’s legal . . . and best interest, nor between the children’s interest to
each other.” Trial Court Order, 10/27/21, at ¶ 2.
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The court also appointed counsel for Mother. Mother was personally
served with notice of the petition and hearing date on August 19, 2021.4 See
Affidavit of Service, 8/19/21.
On the date of the hearing, October 20, 2021, Mother failed to appear.
Prior to the commencement of the hearing, Mother’s counsel requested a
continuance because she had not been able to speak with Mother, who failed
to respond to all correspondence from her. See N.T. Termination Hearing,
10/20/21, at 5. After determining that Mother had been properly served with
notice of the petition and hearing, the court proceeded with the hearing.
May Popovich, casework supervisor with the Agency, testified at the
termination hearing. Popovich testified that, at the time he was declared
dependent, D.A.C., V, had never been in school and was “very behind.” Id.
at 23. He had “horrible dental problems” that, ultimately, required “caps all
over his mouth[.]” Id. at 14. Popovich testified that D.A.C., V, suffers from
speech delays as well as oppositional defiance disorder and “has never really
learned to live by rules.” Id. He is a “very difficult child” who “smears feces
on walls, . . . bedding[,] and things like that.” Id. As to M.J.C., Popovich
testified that she was born 28 weeks premature and was drug-exposed. Id.
at 24. Her behavior is “ok,” although “she’s a biter.” Id. M.J.C. does not
suffer from any developmental delays. Id.
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4 Mother also received Act 101 notice on February 2, 2021. See Letter from
Chloe Barrett and May Popovich, 1/27/21 (receipt acknowledged by Mother’s
signature at bottom of letter on 2/2/21).
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Popovich testified that Mother attended six out of 50 visitations with
Children between April 2020 and June 2021. Id. at 19, 22. Mother was non-
compliant throughout the life of the case and made no progress on her
permanency goals. Id. at 18. Mother “didn’t do any of the things that [she
was] supposed to do in order to get the children back” and had “minimal
contact with the agency and . . . with service providers.” Id. at 19. All of
Mother’s required drug tests were either refused or showed positive results. 5
Id. at 29-30. In the six months prior to the filing of the petition, Popovich
testified that Mother did not contact Children and did not come into the Agency
office. Id. at 27. At the time of the termination hearing, the Agency did not
know where Mother resided. Id. Popovich testified that Mother failed to
remedy any issue that led to Children’s placement and that the conditions that
led to Children’s removal still exist. Id. at 28.
Finally, Popovich testified that the agency had no indication that Mother
was truly bonded to Children, “based on the lack of follow[-]through . . . and
the lack of interest in visitation[.]” Id. at 33. Popovich opined that it would
be in Children’s best interest to have parents’ rights terminated “and be
adopted by a family who can meet their needs,” and that Children would not
be negatively impacted by termination. Id. at 34.
Dennis Kashurba, a licensed psychologist, performed an evaluation of
Mother and was stipulated to be an expert in the field of psychology. Kasurba
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5One test “wouldn’t come up with a control line,” which resulted in the test
being declared invalid. N.T. Termination Hearing, 10/20/21, at 30.
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testified that Mother presented with a “very flat affect, very depressed
demeanor, [and] indicated that her normal level of depression is an 8 or 9 [on
a scale of 0 to 10,] with 10 being an incapacitating amount.” Id. at 59.
Mother’s speech was slurred and she manifested anxiety “by frequent face[-
]picking.” Id. Kashurba diagnosed Mother with
opioid use disorder, other or unknown substance use disorder,
methamphetamine and THC, physical abuse of adult as a victim,
unspecified disruptive impulse control and conduct disorder,
partner relational problem, parent/child relational problem,
dependent personality disorder with histrionic symptoms,
unspecified depressive disorder rule out dysthymia, which is a
chronic low-grade depressive condition, and paranoid personality
disorder.
Id. at 63.
Kashurba concluded that:
[Mother] clearly gave the impression she is not able to
appropriately care for herself at this time, much less two young
children. Interestingly, she never really talked about the children
during the course of [the] evaluation.
* * *
My conclusion . . . is that [Mother] has myriad significant mental
health issues that will adversely affect her [ability] to function
independently in the parent role for the foreseeable future. Until
such time as her mental health issues are addressed and she is
able to extricate herself from her current life circumstances,
there’s little likelihood of her functioning as a competent parent.
Id. at 60, 62.
Kathy Scaife, an employee of Independent Family Services’ home
management program, testified as to her efforts to assist parents in
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addressing and correcting issues within the home, “such as deplorable housing
conditions and budgeting.” Id. at 70. Scaife testified that “it was very difficult
to even meet with them in the [beginning].” Id. Once she was able to meet
with parents at their residence, she found “[a]bsolute deplorable conditions. .
. . [T]here were holes all through the floors. I would not sit anywhere[,] and
I had trouble standing anywhere in the home.” Id. at 71. Scaife testified that
she “absolutely [would] not” allow children in the home. Id. Scaife stated
that she suggested renting a dumpster to clean out the property and “make
the trailer more livable,” but that parents refused to agree. Id. at 71-72.
Scaife repeatedly attempted to contact parents, to no avail, and “neither
parent made any attempt to . . . reach out to me for help with our services.”
Id. at 72. Scaife testified that
[Mother’s] conversation with me on the one occasion was about
domestic violence and that she did not want me to tell [Father]
that she was filing for public assistance. She wanted to do it on
her own and not have him listed on the application. So I would
say she was more fearful of that relationship than making any
effort to reunify with her children.
Id. at 73.
Finally, Lucas Gumby, a family resource specialist with Justice Works
Youth Care, testified that he was “tasked to help [parents] with parenting
skills [and] to get [them] help connected to community resources.” Id. at 76.
Gumby testified that Parents were “not very” eager to work with him. Id.
Gumby met with the family twice and testified that “[D.A.C., V] was more
interacting with the parents because he knew them more, but [M.J.C.] more
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ran around trying to play with the toys and wanted just to have fun.” Id. at
77. When asked if Children were upset when the visit ended, Gumby testified
that D.A.C., V, was “a little bit, but I guess it was kind of [that] he just wanted
to just stay and play a little bit. But he was ready to go, actually[.]” Id.
Gumby did not observe that either child had a bond with Mother. Id. He
opined that neither child would be harmed in any way if Parents’ rights were
terminated, and that Parents did not appear to have any interest in regaining
custody of Children. Id. at 78.
On October 27, 2021, the trial court entered an order terminating
Mother’s parental rights to both Children pursuant to sections 2511(a)(1), (2),
(5), (8) and (b).6 Mother filed a timely notice of appeal and Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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6The relevant grounds for termination set forth under section 2511(a) are
as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
(Footnote Continued Next Page)
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Mother raises the following issues for our review:
1. Whether the trial court erred as a matter of law and/or
manifestly abused its discretion in determining the Agency
sustained its burden of proving the termination of [Mother’s]
parental rights is warranted under sections 2511(a)(2),[ (5)
and/or (8)] of the Adoption Act?
2. Whether the trial court abused its discretion in denying
[counsel’s] request for a continuance of the hearing . . . so that
counsel could ascertain Mother’s whereabouts, consult with her,
and Mother could attend?
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causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
* * *
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within
a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare
of the child.
* * *
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) & (8).
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Brief of Appellant, at 7 (unnecessary capitalization omitted).7
Our standard of review in cases involving challenges to the involuntary
termination of parental rights is well-settled:
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.
Interest of M.V., 203 A.3d 1104, 1111 (Pa. Super. 2019), quoting In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. The standard of clear and convincing evidence is defined
as testimony that is so “clear, direct, weighty[,] and convincing as
to enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.” It is well
established that a court must examine the individual
circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence in
light of the totality of the circumstances clearly warrants
termination.
In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted). See also In C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party
seeking termination of parental rights bears burden of proving by clear and
convincing evidence that at least one of eight grounds for termination under
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7 Mother submitted identical briefs in both appeals.
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23 Pa.C.S.A. § 2511(a) exists and that termination promotes emotional needs
and welfare of child set forth in 23 Pa.C.S.A. § 2511(b)).
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.
In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).
Before filing a petition for termination of parental rights, the
Commonwealth is required to make reasonable efforts to promote
reunification of parent and child. However, the Commonwealth
does not have an obligation to make such efforts indefinitely. The
Commonwealth has an interest not only in family reunification but
also in each child’s right to a stable, safe, and healthy
environment, and the two interests must both be considered.
In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006) (citations
omitted).
Mother first asserts that the trial court erred in terminating her parental
rights, where the Agency failed to meet its burden by clear and convincing
evidence that at least one statutory ground for termination was present. Prior
to addressing the merits of Mother’s claim, we must determine whether she
has waived it.
When briefing the issues that have been preserved for appeal, it is an
appellant’s duty to present arguments that are sufficiently developed for our
review. In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012). “The brief must
support the claims with pertinent discussion, with references to the record[,]
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and with citations to legal authorities.” Id., quoting Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). This Court “will not act as
counsel and will not develop arguments on behalf of an appellant. When
defects in a brief impede our ability to conduct meaningful appellate review,
we may dismiss the appeal entirely or find certain issues to be waived.”
Hardy, 918 A.2d at 771.
Here, Mother begins her argument on this issue by reciting the four
subsections of section 2511(a) relied upon by the trial court for termination,
as well as section 2511(b). She then cites cases discussing the bifurcated
analysis required of this Court on appellate review. Finally, she states the
following:
Mother contends that termination of her parental rights was
improper under an analysis of any of the subsections of the
Adoption Act relied upon by the Agency.
Brief of Appellant, at 13.
Mother’s argument is woefully insufficient, where she has utterly failed
to provide any citations to the record, or to point out any specific errors she
believes to be attributable to the court. Accordingly, we find Mother’s first
claim to be waived.8 Hardy, supra.
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8 Even if Mother’s claim were not waived, we would grant her no relief. It is
readily apparent from the evidence adduced at the termination hearing, and
discussed supra, that the conditions that led to Children’s placement continue
to exist, and that Mother cannot or will not remedy them within a reasonable
period of time. See 23 Pa.C.S.A. § 2511(a)(5); see also In re B.L.W., 843
A.2d 380, 384 (Pa. Super. 2004) (en banc) (we may affirm trial court’s
(Footnote Continued Next Page)
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Finally, Mother claims that the trial court abused its discretion in denying
counsel’s request for a continuance to enable counsel to ascertain Mother’s
whereabouts and consult with her. Counsel asserts that she found out for the
first time at the hearing that Mother had been incarcerated between June of
2021 and September 30, 2021. Following Mother’s release, counsel did not
have contact information for Mother and, therefore, “lacked any information
that would have assisted counsel in her representation of Mother at the
hearing[.]” Brief of Appellant, at 15. Counsel argues that she only found out
subsequent to the hearing that Mother had been in rehabilitation at the time
of the hearing. Accordingly, counsel argues that the trial court abused its
discretion in denying a continuance. Mother is entitled to no relief.
This Court reviews a trial court’s decision to grant or deny a continuance
for an abuse of discretion. Ferko-Fox v. Fox, 68 A.3d 917, 925 (Pa. Super.
2013). “An abuse of discretion is more than just an error in judgment, and,
on appeal, the trial court will not be found to have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the results of partiality, prejudice, bias or ill-will.” Id.(citation omitted).
Here, the record demonstrates that, on August 19, 2021, Mother was
personally served by her caseworker, Chloe Barrett, with notice of the hearing
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decision regarding termination of parental rights with regard to any single
subsection of section 2511(a)). Moreover, there was no evidence of a bond
between Mother and Children, and those witnesses who were asked opined
that termination would be in Children’s best interest.
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and the petition for involuntary termination. See Affidavit of Service,
8/19/21. The notice provided to Mother clearly stated as follows: “You are
warned that even if you fail to appear at the scheduled Hearing, the Hearing
will go on without you and your rights to your [Children] may be ended by the
Court without your being present.” Thus, Mother was aware of the petition,
the date, time, and place on which the hearing would be held, and the possible
consequences of her failure to appear, yet she chose not to contact her lawyer
or appear for the hearing. We can discern no abuse of discretion on the part
of the trial court in its decision to deny a continuance. Ferko-Fox, supra.Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2022
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