In the Interest of: A.M., Appeal of: C.M. ( 2023 )

J-A08029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: C.M., FATHER :
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:
:
: No. 1013 WDA 2022
Appeal from the Decree Entered August 2, 2022
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): No. 42-21-0232
IN THE INTEREST OF: X.S.-M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: C.M., FATHER :
:
:
:
:
: No. 1014 WDA 2022
Appeal from the Decree Entered August 2, 2022
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): No. 42-21-0233
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: May 19, 2023
C.M. (“Father”) appeals from the decrees that granted the petitions filed
by McKean County Children and Youth Services (“CYS”) to involuntarily
terminate his parental rights to his children, A.M. (a daughter born in October
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* Retired Senior Judge assigned to the Superior Court.
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2017, and X.S.-M. (a son born in September 2020) (collectively, “Children”).1
We affirm.
CYS first became involved with this family on July 21, 2020, after
employees at the hotel where Father and A.M. were staying reported concerns
for A.M.’s safety to Bradford police officers. See N.T., 1/26/21, 8-9.2 The
responding officers found Father disheveled in the hotel lobby and scaring
other guests. See id. Father displayed a basic lack of awareness of A.M.’s
status and needs, including that her diaper desperately needed changing. See
id. at 5, 9-10, 15-16, 25. From Father’s confused speech and actions, the
responding officers concluded that he was likely under the influence of
methamphetamine. See id at 20-21.
A subsequent search of Father’s hotel room revealed, inter alia, two
unsheathed machetes within reach of A.M. See id. at 10-11, 13; N.T.,
1/24/22, at 89-97. After being notified of these events, CYS petitioned for
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1 In addition to the orders terminating Father’s parental rights, the Orphans’
Court also entered orders terminating the parental rights of M.S. (“Mother”)
(collectively, “Parents”). Mother did not appeal those determinations or
participate in this appeal.
2 At the hearing on the involuntary termination petition, the court admitted
the full dependency record for Children, which included the record and
transcripts of Children’s 2020 and 2021 dependency hearings. See N.T.,
3/7/22, 7-9.
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emergency custody of A.M., which the court granted in July 2020. After
deeming kinship care unsuitable, CYS placed A.M. with a foster family.
At the time of these events, Mother temporarily resided in a different
Bradford-area hotel. Approximately two months later, Mother gave birth to
X.S.-M., at which time she and X.S.-M. both tested positive for
methamphetamine. See N.T., 1/24/22, at 125-27, 133. Mother disclosed
having used narcotics during her pregnancy. See N.T., 1/26/21, at 46-47,
56.3 Father was at the hospital when CYS sought and obtained emergency
custody of X.S.-M. in October 2020, and placed him with a foster family. See
N.T. 1/24/22, at 125-27.
Following X.S.-M.’s removal from Parents’ custody, CYS pursued
concurrent objectives of adoption and reunification for Children. Father’s
goals required that he: (1) obtain and maintain appropriate housing; (2)
complete a drug and alcohol evaluation; (3) undergo a mental health
evaluation; (4) achieve and sustain sobriety; (5) provide drug screenings
upon request; (6) provide medical releases to the agency; and (7) participate
in visits and communications with Children. See id. at 99-101.
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3Mother later admitted to her continued drug use in 2021. See N.T., 1/24/22,
at 102.
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Father was initially granted supervised visitation rights. However, he
and Mother failed to appear so many times for in-person visits, to which the
Children had been transported, that the assigned CYS visit supervisor “lost
count.” See id. at 143-44.4 On numerous occasions when Father did attend
visits with Children, he appeared to be “under the influence,” slept or argued
with the CYS visit supervisor, and on one visit held X.S.-M. improperly with
one hand so he could simultaneously look at Facebook on his phone. See
N.T., 1/24/22, at 143-47, 155.
Father also often displayed aggressive and dangerous behavior towards
CYS staff and once threatened to take Children. CYS required the intervention
of the Pennsylvania State Police on multiple occasions to control Father. See
id.
The court adjudicated Children dependent in February 2021.5 The court
also found that Children would face grave risk if Father’s visits continued. See
Juvenile Court’s Order of Adjudication, 3/4/21, at 21; N.T., 2/8/21, at 11-14,
37, 43-47; 1/24/22, at 105-08, 117, 125, 150, 159. The court barred Father
from visiting Children but indicated it would lift the restriction if Father made
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4Of fifty-seven scheduled visits between July 2020 and February 2021, Father
missed at least twenty-three. See N.T. 2/8/21, at 39.
5The juvenile court dated its orders February 26, 2021; however, the orders
were not docketed until March 4, 2021.
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substantial progress on his goals. See Juvenile Court’s Order of Adjudication,
3/4/21, at 21. Father did not petition to have this restriction lifted, but in
March 2021 and April 2021 participated in Mother’s separate visits with
Children in defiance of the court’s restriction. See 1/24/22, at 108-09, 148;
N.T., 3/7/22, at 50-53.
CYS social worker Richard Fry (“Fry”) testified that Father made minimal
progress toward his goals from September 2020 through September 2021,
(when Fry’s involvement in the case ceased), and Father refused to provide
samples for use in drug screening. See N.T., 1/24/22, at 99-100, 103, 122,
132. CYS supervisor, Jonathan Braeger (“Braeger”), testified that since the
inception of the case, Father had not once submitted to a drug screen or
provided releases for services he had received to show that he had made any
changes since the beginning of the case. See N.T. 3/7/22, at 60. CYS case
worker Sarah Glover (“Glover”) noted Father’s unwillingness to provide a
release for records of mental health services, and the difficulty she had finding
or contacting him. See N.T. 6/8/22, at 20-25, 31, 33, 36.
In September 2021, CYS filed petitions to involuntarily terminate
Parents’ parental rights.6 Concerning A.M., CYS sought termination pursuant
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6 The court had appointed Mark J. Hollenbeck, Esquire (“Attorney
Hollenbeck,”), as guardian ad litem (“GAL”) during the dependency
proceeding, and Attorney Hollenbeck continued to represent Children during
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to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and concerning X.M.-S.,
CYS sought termination pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and
(b). The court held hearings on the petitions in January, March, and June
2022. At the hearings, CYS presented testimony from Fry, Glover, Braeger,
and Ashlyn Southard (“Southard”), a CYS case aide who provided
transportation and helped supervise visits with the children. CYS also
presented testimony from Children’s respective foster parents. As of the first
hearing on the involuntary termination petitions in January 2022, A.M. had
lived with a foster family for eighteen months and X.S.-M. had lived with a
foster family for fourteen months, and both had bonded with those families,
not Father. See N.T, 1/24/22, at 106-07, 111, 128, 160. Glover testified at
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the termination of parental rights proceeding without the court entering
separate orders as counsel. Although the Adoption Act requires an Orphans’
Court to appoint children counsel in a contested termination proceeding, see
23 Pa.C.S.A. § 2313(a), “where there is no conflict between a child’s legal and
best interests, an attorney-[GAL] representing the child’s best interests can
also represent the child’s legal interests.” In re T.S., 192 A.3d 1080, 1092
(Pa. 2014). See also Interest of M.V., 203 A.3d 1104, 1109 (Pa. Super.
2019) (stating that “in instances where the child’s preferred outcome is not
ascertainable, such as where the child is very young or is unable to express a
preference, there can be no conflict between the child’s legal and best
interests”).
Here, Attorney Hollenbeck declared Children incapable of expressing a
preferred outcome due to their age, and that he could represent both their
best and legal interests. See N.T., 1/24/22, at 7. The Orphans’ Court agreed.
See id. at 8. Thus, we discern no error. See Interest of M.V., 203 A.3d at
1110. In this Court, Attorney Hollenbeck has filed a brief on behalf of Children
advocating affirmance of the decrees terminating Father’s parental rights.
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a later hearing that each Child is bonded with his or her foster parents,
Children’s needs are met, and that she (Glover) would have significant
concerns if Children were returned to Father’s care. See N.T., 6/8/22, at 25-
26. Glover also testified that Father had been evicted from housing in January
2022. See N.T., 6/8/22, at 12-14.
Although Father’s counsel attended all three days of hearing, Father
attended only the June 2022 hearing. He proffered no testimony or evidence
in opposition to the termination petitions.
In separate Memoranda and Decrees filed August 2, 2022, the Orphans’
Court terminated Father’s parental rights to Children. Father filed timely
notices of appeal to this Court. Approximately two weeks later, Father filed
concise statements of errors complained of on appeal.7 The Orphans’ Court
filed brief statements pursuant to Rule 1925(a) referring to the reasoning
presented in its August 2, 2022 Memoranda and Decrees as the basis for its
actions. Thereafter, this Court consolidated these cases sua sponte.
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7 Father failed to comply with Pa.R.A.P. 1925(a)(2)(i) by failing to file a
contemporaneous concise statement of errors with his notice of appeal. Cf.
Pa.R.A.P. 905(a)(2), 1925(a)(2)(1). This oversight renders Father’s notice of
appeal defective, which can result in quashal in “extreme” situations. See In
re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009). Because CYS has not
objected and we discern no prejudice in the delay in the filing of the statement,
we decline to quash this appeal. See id. at 748.
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Father has presented a single issue for consideration in his brief to this
Court:
Has the burden of proof been met by clear and convincing
evidence to show that involuntary termination of parental rights
of [Father] is warranted under 23 Pa.C.S.[A.] § 2511(a)(1), (2)[,]
and (5)?
Father’s Brief at 4.
Father’s issue implicates the involuntarily termination of parental rights.
We review involuntary termination orders for an abuse of discretion, which
requires an error of law or a showing of manifest unreasonableness, partiality,
prejudice, bias, or ill-will. See In re Adoption of L.A.K., 265 A.3d 580, 591
(Pa. 2021) (citation omitted). In applying this standard, an appellate court
must accept the trial court’s findings of fact and credibility determinations if
supported by the record. See Interest of S.K.L.R., 256 A.3d 1108, 1123
(Pa. 2021); see also In re Adoption of C.M., 255 A.3d 343, 358 (Pa. 2021).
Pennsylvania’s Adoption Act (“the Act”) governs involuntary termination
of parental rights proceedings. See 23 Pa.C.S.A. §§ 2101-2938. If the trial
court finds clear and convincing evidence supporting the existence of one of
the grounds for termination set forth in subsection 2511(a), the court must
then consider whether termination would best serve the child under subsection
(b). See In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010).
In considering a petition to terminate parental rights, a trial court must
balance the parent’s fundamental right “to make decisions concerning the
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care, custody, and control” of his or her child with the “child’s essential needs
for a parent’s care, protection, and support.” See In re Adoption of C.M.,
255 A.3d at 358. Termination of parental rights can have “significant and
permanent consequences for both the parent and child.” In re Adoption of
L.A.K., 265 A.3d at 591. Pennsylvania law requires the moving party to
establish the statutory grounds by clear and convincing evidence, evidence
that is so “clear, direct, weighty, and convincing as to enable a trier of fact to
come to a clear conviction, without hesitance, of the truth of the precise facts
in issue.” See Interest of M.E., 283 A.3d 820, 830 (Pa. Super. 2022). “[A]
parent’s basic constitutional right to the custody and rearing of [his] child is
converted, upon the failure to fulfill [his] 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).
Here, the Orphan’s Court terminated Father’s parental rights to A.M.
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and his parental
rights to X.S.-M. pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). We
need only agree with the trial court’s decision as to any one of the grounds
under subsection 2511(a), along with subsection (b), to affirm a decree
terminating parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
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2004) (en banc). We review the evidence relating to section 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.
****
(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), (b).
To prove the application of subsection (a)(2), the party petitioning for
termination must establish: 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 and will not
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be remedied. See In re Adoption of A.H., 247 A.3d 439, 443 (Pa. Super.
2021). Subsection (a)(2) emphasizes the child’s present and future needs, not
the parent’s refusal to perform their duties and thus “should not be read to
compel courts to ignore a child’s need for a stable home and strong continuous
parental ties. . .. This is particularly so where the disruption of the
family has already occurred and there is no reasonable prospect for
reuniting it.” In re Z.P., 994 A.2d at 1117 (citation omitted) (emphasis in
original). A court may grant involuntary termination of parental rights under
23 Pa.C.S.A. §2511(a)(2) when, a parent, inter alia, does not comply with
court-ordered drug screens and remains non-cooperative with the childcare
agency involved. See Interest of K.M.W., 238 A.3d 465, 475 (Pa. Super.
2020). See also Matter of Adoption of M.A.B., 166 A.3d 434, 443 (Pa.
Super. 2017) (stating that a parent has a duty “to work towards unification
by cooperating with the rehabilitative services necessary for [him] to be able
to perform parental duties and responsibilities”).
Father’s brief fails to support his appellate claim with citations to either
pertinent legal authorities or to the certified record, see Father’s Brief at 10-
13, as Pa.R.A.P. 2119 requires. When a litigant fails to provide this necessary
support, we “will not act as counsel and will not develop arguments on behalf
of an appellant. Moreover, when defects in a brief impede our ability to
conduct meaningful appellate review, we may dismiss the appeal entirely or
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find certain issues to be waived.” In re R.D., 44 A.3d 657, 674 (Pa. Super.
2012) (citation omitted); see also Commonwealth v. Hakala, 900 A.2d
404, 406-07 (Pa. Super. 2006) (holding that setting forth the relevant
standard of review governing an appellate issue, alone, is insufficient to
comply with Rule 2119). Although we could find Father’s claim waived on this
basis, we will not do so because we can resolve the case on the existing record.
Father “denies that any repeated and continued incapacity, abuse,
neglect or refusal has occurred,” and asserts he was very attentive with
Children. Father’s Brief at 11-12. The Orphans’ Court found that Father has
a “long history of substance abuse and addiction” and a “substantial mental
health history” which prevents him from caring for Children, and that Father’s
lack of meaningful progress toward reaching his goals demonstrates his
inability to remedy the cause of his incapacity to properly parent going
forward. See Memoranda and Decrees, 8/2/22, at 3, 17. The court also found
that Father was unable to maintain stable housing. See id. at 12.
Clear and convincing evidence supports the Orphans’ Court’s finding that
section 2511(a)(2) supports involuntary termination of Father’s parental
rights. CYS removed Children from Father’s care due to his substance abuse
and mental health issues as well as his erratic behavior. By repeatedly
refusing to authorize the release of his medical records, or provide drug
screening samples, Father prevented the court from learning the full extent of
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his drug addiction and mental health problems as the record demonstrates.
See N.T., 3/7/22, at 60 (Braeger’s testimony that “[s]ince the inception of
this case, [F]ather has not once, he hasn’t [drug screened] for us, he hasn’t
been able to provide any releases for any services, to show that anything has
changed since the very beginning of the case in which it was determined that
he was a threat and a danger to be around [Children]”); N.T. 6/8/22, at 21-
24, 31-32 (Glover’s testimony that Father displayed a complete inability “to
provide medical releases or drug screens, or to verify his participation in
appropriate mental health and substance abuse services”); N.T., 1/24/22, at
158 (Southard’s testimony that Father “has refused every single [drug] screen
that I have asked.”). Under the circumstances of this case, Father’s failure to
meet his duty to work toward unification by cooperating with the necessary
rehabilitative services is itself sufficient evidence to prove the application of
section 2511(a)(2). See Interest of K.M.W., 238 A.3d at 475; Matter of
Adoption of M.A.B., 166 A.3d at 443. The information Father withheld about
his drug use and mental health is critical here because the Orphan’s Court
previously found that Father presented a grave danger to Children (apart from
having placed two machetes within the reach of then two-year-old A.M.) and
terminated their visits until Father made substantial compliance with his goals.
Father’s failure even to attempt to show cooperation with meeting his goals
provided the Orphan’s Court with ample reason to believe Father had a
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continuous inability to care for Children, left them without care and could not
remedy his defects as a parent. See Interest of K.M.W., 238 A.3d at 475;
Matter of Adoption of M.A.B., 166 A.3d at 443.
Additionally, Braeger and Glover testified Father was unable to obtain
consistent housing and was evicted from at least one residence. See N.T.,
3/7/22, at 61; N.T., 6/8/22, at 12-18, 30. Glover also testified succinctly with
respect to Father’s lack of follow-through on his parenting goals:
The children are thriving in their current placement. Father to my
knowledge has not done anything that was requested of him, as
to the mental health evaluation and follow through, drug & alcohol
evaluation and follow through, and providing the Agency with
negative drug screens. Also, at the present time it’s unclear
[Father and Mother] have housing. So, they would not have safe,
stable, and appropriate housing for the children. So, I would be
very concerned if the children were to go back into [Father’s] care
without being able to verify that the circumstances that brought
the children into placement weren’t alleviated.
N.T., 6/8/22, at 26.
Based upon the foregoing evidence, the Orphans’ Court properly
concluded the existence of clear and convincing evidence that Father’s mental
health, substance abuse, and housing issues constituted an incapacity that
caused him to be unable to provide essential parental care to Children and
that he could not remedy those incapacities. See 23 Pa.C.S.A. § 2511(a)(2).
Additionally, the disruption of the family had already occurred and there was
no reasonable prospect for reuniting it. See In re Z.P., 994 A.2d at 1117.
As noted above, we need only find that one subpart of section 2511(a) has
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been satisfied to justify termination. See Interest of M.E., 283 A.3d at 830.
Thus, Father’s only claim for relief lacks merit.
Although an involuntary termination decision also requires a trial court
to consider the best interests of the child under subsection 2511(b) as a
separate analysis from whether there is ground for involuntary termination,
see In re Z.P., 994 A.2d at 1121, neither Father’s statement of questions nor
his argument section in Father’s brief makes any mention of that section. This
Court has found waiver under those circumstances. See In re M.Z.T.M.W.,
163 A.3d 462, 466 n.3 (Pa. Super. 2017).
Even were we to review the court’s ruling on section 2511(b), we would
not find merit to the assertion of error. Our review pursuant to section
2511(b) “focuses on whether termination of parental rights would best serve
the developmental, physical, and emotional needs and welfare of the child.”
In re B.J.Z., 207 A.3d 914, 921-22 (Pa. Super. 2019); see also 23 Pa.C.S.A.
§ 2511(b). We must “discern the nature and status of the parent-child bond,
with utmost attention to the effect on the child of permanently severing that
bond.” See In re Adoption of A.H., 247 A.3d at 444-45. “Importantly, the
question is not merely whether a bond exists, but whether termination would
destroy this existing, necessary and beneficial relationship.” Id. at 445. This
inquiry also focuses upon various “[i]ntangibles such as love, comfort,
security, and stability[.]” Id. at 444.
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The Orphans’ Court concluded that A.M. has a “limited and negative
bond” with Father and that X.M.-S. has “no bond” with Father, and Children
will benefit, rather than be hurt by, the termination of Father’s parental rights.
See Memoranda and Decrees, 8/2/22, at 12, 17.
The record provides clear and convincing evidence for the Orphans’
Court’s conclusions. Southard described Father’s interactions and bond with
Children as “very minimal.” N.T., 1/24/22, at 153-55. Additionally, Glover
testified that Children are happy, well-adjusted, and loved in their respective
foster families. See N.T., 3/7/22, at 88-90. As she succinctly stated: “The
children are thriving . . . . They’re doing well. [They’re] bonded with the
foster parent[s]. [Their] needs are being met.” Id. at 91. Father had no
parental bond with Children, so even had Father asserted a claim based on
Children’s best interests, it would not merit relief.
Decrees affirmed.
Judge Pellegrini joins in this decision.
Judge Stabile concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2023
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