In Re: Adoption of: C., G., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: G.A.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.C., FATHER :
:
:
:
: No. 1248 MDA 2021
Appeal from the Decree Entered August 25, 2021,
in the Court of Common Pleas of York County,
Orphans' Court at No(s): 2021-0004A.
IN RE: H.H.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.C., FATHER :
:
:
:
:
: No. 1249 MDA 2021
Appeal from the Decree Entered August 25, 2021,
in the Court of Common Pleas of York County,
Orphans' Court at No(s): 2021-0005a.
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 2, 2022
In this consolidated matter, Appellant J.C. (Father) appeals from the
respective decrees involuntarily terminating his rights to 6-year-old daughter
G.A.C. and 5-year-old son H.H.C. (collectively, the Children), pursuant to the
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* Former Justice specially assigned to the Superior Court.
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Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (5), (8), and (b). The petition
to terminate Father’s rights was brought by K.S. (Mother) and S.S.
(Stepfather). After careful review, we conclude Father waived his challenges
to the decrees, and we affirm.
Given our disposition, we summarize the relevant factual and procedural
history as follows: Mother and Father married in 2012 and they had the two
subject Children. In March 2017, Mother became concerned that Father
sexually abused their then-2½-years-old daughter, G.A.C. The apparent
disclosure occurred while Mother and G.A.C. were visiting the Maternal
Grandmother’s home. G.A.C. had become upset while talking about a game.
Mother and Maternal Grandmother asked the Child about the game, and
G.A.C. pantomimed male masturbation. Mother tried to ask more questions,
but G.A.C. became embarrassed and would not answer.
Mother then questioned whether G.A.C.’s previous behavior was a result
of sexual abuse. A few weeks earlier, G.A.C. had screamed out in her sleep,
“don’t touch my bum.” When Mother asked the Child who touched her bum,
she indicated that Father does. The Child had also become violent when
playing with her cousins. G.A.C. also regressed in her potty training. Mother
and the Children subsequently moved in with the Maternal Grandparents, and
Father left the marital residence.
After the separation, Father exercised his custody irregularly. Father
would see the Children as much as an hour twice per week, but sometimes he
would not see the Children for weeks. Meanwhile, Mother put G.A.C. in
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counseling, after G.A.C. displayed further acts of aggression, anxiety, and
began acting out sexually.
Mother filed a custody complaint in October 2018, and Father received
interim supervised physical custody. The Child had done well in therapy, but
regressed after Father received interim custody, at which point the therapy
resumed. In March 2019, after the final custody hearing, the trial court
awarded Mother sole physical and legal custody, but directed Father to petition
for modification if he participated in the G.A.C.’s trauma therapy. Father
appealed, and this Court vacated the custody order and remanded the case
back to the trial court for its failure to consider all the custody factors under
23 Pa.C.S.A. § 5328(a).1 After remand, the court considered all the relevant
factors and reinstituted its order on October 28, 2019. Father filed another
appeal (docket at 1922 MDA 2019), but we dismissed that appeal for Father’s
failure to submit a brief. See Per Curiam Order, dated 2/07/20.2 Father has
had no contact with the Children since March 2019.
Father filed a petition to modify custody in October 2020. At the ensuing
conciliation, Father was notified that Mother and Stepfather intended to file a
petition to involuntarily terminate his rights. The orphans’ court held a hearing
on the petitions on May 6 and August 24, 2021.
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1See K.A.C. v. J.W.C., 637 MDA 2019, 2019 WL 5491365 (Pa. Super. 2019)
(non-precedential decision).
2At the termination hearing, Father explained that his brief was never filed
because, unbeknownst to him, his attorney died during the pendency of the
appellate litigation.
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At the termination hearing, Mother claimed Father essentially admitted
to abusing G.A.C., when he told Mother that “he had spoken with demons
while he was in Montana, and they were the ones responsible for abusing
[G.A.C.].” See N.T., 5/6/21 (Day 1) at 58. She also alleged that Father had
done nothing for the Children since losing custody – specifically, that he had
not engaged in trauma therapy with G.A.C. to resume custody, per the
operating custody order. She explained that Father only paid child support
after it was apparent that she sought to terminate Father’s rights.
Father’s position was that he did all he could for the Children, while
being deprived of custody. He noted that he bought gifts for the Children and
prepared bedrooms for them for when he resumed custody. He argued that
the delay in child support payments was due to the backlog of unemployment
claims during the Covid-19 pandemic. Father also denied the abuse ever
occurred. He noted that the York County District Attorney’s Office declined to
pursue criminal charges, and the York County Office of Children and Youth
Services determined that the allegations were unfounded.
As to why Father never engaged in G.A.C.’s therapy, Father claimed that
he was unaware that he could do so, because his former attorney never
provided him with the custody order. He also argued that that he did not
realize his appeal from the custody order had been denied, until he called his
attorney’s office and discovered that his attorney had died.
The orphans’ court was not persuaded by Father’s testimony, and it
ultimately terminated his rights. The court stated its reasons on the record.
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See generally N.T., 8/26/21 (Day 2) at 252-264. First, the court denied
Mother’s request for termination under Section 2511(a)(2) and Section
2511(a)(10).3 The court then analyzed the three remaining grounds Mother
alleged under Section 2511(a). Regarding Section 2511(a)(1), the court
concluded that Father did not evince a settled purpose to relinquish his
parental claim, but that he refused or failed to perform his parental duties.
The court determined that Father only paid child support and prepared to
resume custody after he received notice of the termination petition.
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3 These sections 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.
[***]
(10) The parent has been found by a court of competent
jurisdiction to have committed sexual abuse against the
child or another child of the parent based on a judicial
adjudication as set forth in paragraph (1)(i), (ii), (iii) or
(iv) or (4) of the definition of “founded report” in section
6303(a) (relating to definitions) where the judicial
adjudication is based on a finding of “sexual abuse or
exploitation” as defined in section 6303(a).
23 Pa.C.S.A. § 2511(a)(2), (10).
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Regarding Section 2511(a)(5) and (a)(8), the orphans’ court observed,
as a threshold matter, that the Children had been “removed from the care of
the parent” by virtue of the custody order awarding Mother sole custody. See
id. at 257; see also 23 Pa.C.S.A. § 2511(a)(5), (a)(8). The orphans’ court
also noted the custody court’s prior finding of abuse, but indicated that its
larger concern was Father’s refusal to take the necessary steps – i.e.,
participate in trauma therapy – to resume custody. The court determined
further that Father’s refusal to parent or remedy the conditions that led to
Mother’s sole custody award applied equally to his son H.H.C., not just to his
daughter G.A.C.
Regarding Section 2511(b), the court found that the Children have not
had contact with Father for 29 months, that termination would best serve the
Children’s needs and welfare, and that termination would not adversely affect
the Children. Thus, the orphans’ court granted the termination petitions under
Section 2511(a)(1), (a)(5), (a)(8) and (b).
Father filed timely notices of appeal. He presents the following issues
for our review:
A. Whether the [orphans’] court erred as a matter of law
and/or abused its discretion by terminating Father’s
rights under [Section] 2511(a)(1) where Father had
satisfied all parental duties he could satisfy after being
granted no legal or physical custody rights, and not
having knowledge that he could participate in trauma
therapy due to [his prior] deceased lawyer never
providing him with custody orders giving him the right
to participate in trauma therapy?
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B. Whether Father was denied due process by not being
provided with notice of custody orders from his
deceased lawyer who also failed to file a brief on his
custody appeal that he could participate in trauma
counseling with his [daughter G.A.C.] and that was
the contributing factor leading to his parental rights
being terminated under Section 2511(a)(1), (a)(5)
and (a)(8).
C. Whether Father’s rights to [son] H.H.C. were
wrongfully terminated since the court only terminated
his parental rights to H.H.C. because it terminated
Father’s rights to G.A.C. which occurred because he
failed to participate in trauma counseling in a
reasonable period of time where Father was never
made aware of having that right due to his lawyer
passing away and not sharing said information with
Father?
Father’s Brief at 5-6 (capitalization adjusted).
We begin with the termination question, mindful of our well-settled
standard of review of such cases:
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 and quotation marks
omitted).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
It is well-settled that we may affirm the orphans’ court decision under
any one subsection of Section 2511(a) in conjunction with Section 2511(b).
See, e.g., In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010).
Instantly, the orphans’ court terminated Father’s rights under Section
2511(a)(1), (5), (8) and (b), which 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:
(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.
[…]
(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
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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.
[…]
(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)(1), (5), (8) and (b).
Before we reach the merits of Father’s appeal, we note that Father’s
statement of questions involved differs from his respective concise statement
of errors complained on appeal. This discrepancy has led to calls of waiver
from not only the Appellees (Mother and Stepfather, and the Children through
their counsel), but also the orphans’ court. See Pa.R.A.P. 302(a) (“Issues not
raised in the trial court are waived and cannot be raised for the first time on
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appeal.”). Thus, we must first identify whether Father has abandoned or
waived any issues.
In his concise statement, Father claimed he was only served with the
petition concerning his daughter G.A.C., but not with a petition regarding his
son H.H.C. He argued that the failure to receive proper notice constituted a
violation of his right to due process. See Father’s Concise Statement, 1249
MDA 2021, at ¶7 and Father’s Concise Statement 1248, at ¶2. But on appeal,
Father has abandoned this issue. Similarly, Father raised several challenges
to the court’s evidentiary rulings as they relate to the custody court’s prior
finding of abuse. See Father’s Concise Statement, 1249 MDA 2021, at ¶¶2-5.
Father has abandoned these issues as well.
We turn now to whether Father waived any issues. After review, we
conclude Father has ultimately waived his challenges to the termination
decrees. We reiterate that the orphans’ court terminated Father’s rights as to
both Children under Sections 2511(a)(1), (a)(5), (a)(8), and (b). Critically,
Father does not challenge the court’s determination under Section 2511(a)(8).
See Father’s Brief at 5; c.f. Father’s Concise Statement, 1249 MDA 2021, at
¶¶1-7 and Father’s Concise Statement 1248, at ¶¶1-3. And nowhere – in
either Father’s concise statement or in his statement of questions involved –
does Father challenge the court’s determinations under Section 2511(b), the
second prong of the bifurcated termination analysis. See In re C.M.K., 203
A.3d 258 at 261-62.
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Again, we observe that we may affirm a termination decree under any
one subsection of Section 2511(a) in conjunction with Section 2511(b). Z.P.,
994 A.2d at 1117. Thus, Father’s failure to raise Section 2511(a)(8) and (b)
means Father has effectively waived his entire appeal as to both Children.4
Because we may affirm the decrees under these sections, Father’s remaining
issues are moot. See In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“An
issue before a court is moot if in ruling upon the issue the court cannot enter
an order that has any legal force or effect.”).5
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4 We question whether – as was the case here – a custody order awarding
sole custody to one parent constitutes the court’s “removal” of that child from
the other parent’s care, pursuant to Section 2511(a)(5) and (a)(8).
Ultimately, we may not address this question. Not only did Father waive his
challenge under Section 2511(a)(8), but he failed to make such an argument
under Section 2511(a)(5). “Where the parties fail to preserve an issue for
appeal, the Superior Court may not address that issue sua sponte.” Berry v.
Berry, 197 A.3d 788, 795 (Pa. Super. 2018) (citations omitted). “Parties may
waive rights, even due process rights and other rights of constitutional
magnitude.” Id. (citations omitted).
5 Even if we were to conclude that Father’s failure to preserve Section
2511(a)(8) had no bearing on his appeal of H.H.C.’s case, we would still find
that Father waived such a challenge. To explain, in Father’s third appellate
issue, Father argues the orphans’ court erred when it terminated his rights to
H.H.C., because the court’s only basis for doing so was the termination of his
rights to G.A.C. However, it is well-established that the failure to develop an
argument with citation to, and analysis of, pertinent authority results in waiver
of that issue on appeal. See Pa.R.A.P. 2119(b); see also C.H.L. v. D.H.L.,
214 A.3d 1272, 1276 (Pa. Super. 2019). Here, Father’s argument on this
point consists of three sentences with no citation to relevant authorities. Thus,
notwithstanding Father’s failure to raise a challenge under Section 2511(a)(8),
we would conclude that Father failure to develop an argument has impeded
our review, and thus we would find the issue waived.
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Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/02/2022
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