In Re: M.Z.T.M.W., a minor, Appeal of: M.W.

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2017 PA Super 151IN RE: M.Z.T.M.W., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: M.W., BIRTH MOTHER : No. 1904 WDA 2016
Appeal from the Decree November 17, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No: CP-02-AP-0000038-2016
IN RE: M.Z.T.W., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: M.W., BIRTH MOTHER : No. 1905 WDA 2016
Appeal from the Decree November 17, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No: CP-02-AP-0000039-2016
BEFORE: PANELLA, STABILE, JJ., and STEVENS,* P.J.E.
OPINION BY STABILE, J.: FILED MAY 17, 2017
M.W. (“Mother”) appeals from the decrees entered November 17,
2016, in the Court of Common Pleas of Allegheny County, which involuntarily
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*
Former Justice specially assigned to the Superior Court.
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terminated her parental rights to her twin sons, M.Z.T.M.W. and M.Z.T.W.,
born in April 2015.1 After careful review, we affirm.
The record reveals that Allegheny County Children, Youth and Families
(“CYF”) has a lengthy history of involvement with Mother, beginning in 1999.
N.T., 11/17/2016, at 9. M.Z.T.M.W. and M.Z.T.W. are Mother’s seventh and
eighth children, and Mother’s parental rights with respect to her previous six
children have already been terminated.2 Id. at 10. M.Z.T.M.W. and
M.Z.T.W. entered foster care immediately after being discharged from the
hospital, due to Mother’s history of mental health issues, parental incapacity,
drug and alcohol concerns, and intellectual disabilities. Id. at 9, 11, 28-29.
The children have resided in the same pre-adoptive foster home since June
3, 2015. Id. at 28-29. They were adjudicated dependent on June 23, 2015,
and aggravated circumstances were found that same day. Id. at 9, 26.
On March 2, 2016, CYF filed petitions to involuntarily terminate
Mother’s parental rights to M.Z.T.M.W. and M.Z.T.W. The orphans’ court
conducted a termination hearing on November 17, 2016. Following the
hearing, the court entered decrees terminating Mother parental rights.
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1
The decrees also terminated the parental rights of J.D., the putative father
of M.Z.T.M.W. and M.Z.T.W., and the parental rights of any unknown father
that the children may have. Neither J.D. nor any unknown father has
appealed the termination of his parental rights.
2
According to the orphans’ court, Mother gave birth to her ninth child, who
is not relevant to this appeal, in November 2016. Orphans’ Court Opinion,
1/23/2017, at 4 (Findings of Fact at ¶ 3).
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Mother timely filed notices of appeal on December 16, 2016, along with
concise statements of errors complained of on appeal.
When reviewing an appeal from a decree terminating parental rights,
we apply the following standard of review.
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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 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
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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).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to Sections 2511(a)(2), (5), 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:
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(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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(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.
***
(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
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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), (5), and (b).
Before reaching the merits of Mother’s appeal, we must first consider
whether she has preserved her claims for our review. In her concise
statements of errors complained of on appeal, Mother raises the following
issue:
1. The [orphans’] court abused its discretion and/or erred as a
matter of law in concluding that [CYF] met its burden of proving
by clear and convincing evidence grounds for the involuntary
termination of [] [M]other’s parental rights pursuant to 23
Pa.C.S.[A.] § 2511(a)(2) and 23 Pa.C.S.[A.] § 2511(a)(5) when
such determination is not supported by the record.
Concise Statements of Errors Complained of on Appeal, 12/16/16.
Likewise, in the statement of questions involved section of Mother’s
brief, she raises the following issue:
1. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in concluding that [CYF] met its burden of proving
[b]y clear and convincing evidence grounds for the involuntary
termination of [] Mother’s parental rights pursuant to 23
Pa.C.S.[A.] §[]2511(a)(2) and (5) when such determination is
not supported by the record?
Mother’s Brief at 15.
However, in the summary of argument and argument sections of her
brief, Mother abandons her challenge to Sections 2511(a)(2) and (5), and
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instead focuses solely on Section 2511(b). Mother concedes that CYF
presented sufficient evidence to terminate her parental rights pursuant to
Section 2511(a)(2). Mother’s brief at 19 (“CYF, the petitioner, did clearly
and convincingly establish threshold grounds for termination pursuant to 23
Pa.C.S.[A.] §[]2511(a)(2).”).
It is well-settled that this Court will not review a claim unless it is
developed in the argument section of an appellant’s brief, and supported by
citations to relevant authority. In re W.H., 25 A.3d 330, 339 n.3 (Pa.
Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C.,
991 A.2d 884, 897 (Pa. Super. 2010)) (“‘[W]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails
to develop the issue in any other meaningful fashion capable of review, that
claim is waived.”’). Here, Mother waived any challenge with respect to
Sections 2511(a)(2) and (5) by failing to develop an argument in her brief,
and by conceding that CYF presented clear and convincing evidence to
terminate her parental rights pursuant to Section 2511(a)(2).
Further, it is well-settled that issues not included in an appellant’s
statement of questions involved and concise statement of errors complained
of on appeal are waived. Krebs v. United Refining Co. of Pa., 893 A.2d
776, 797 (Pa. Super. 2006) (citations omitted) (“We will not ordinarily
consider any issue if it has not been set forth in or suggested by an appellate
brief’s statement of questions involved, and any issue not raised in a
statement of matters complained of on appeal is deemed waived.”). With
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respect to issues not included in a concise statement, our Supreme Court
has instructed that this Court has no discretion in choosing whether to find
waiver. Waiver is mandatory, and this Court may not craft ad hoc
exceptions or engage in selective enforcement. City of Philadelphia v.
Lerner, 151 A.3d 1020, 1024 (Pa. 2016) (quoting Commonwealth v. Hill,
16 A.3d 484, 494 (Pa. 2011)). Because Mother failed to include a challenge
to Section 2511(b) in her statement of questions involved and concise
statements that issue is also waived.3
Accordingly, we conclude that Mother failed to preserve any of her
claims for our review. We therefore affirm the November 17, 2016
termination decrees.
Decrees affirmed.
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3
We acknowledge that panels of this Court have sometimes relied on In re
C.L.G., 956 A.2d 999 (Pa. Super. 2008) (en banc), to address Section
2511(b), even where the appellant has made no effort to present a
challenge regarding that section. In C.L.G., this Court affirmed an order
involuntarily terminating the appellant mother’s parental rights. We initially
analyzed the trial court’s decision to terminate pursuant to Section
2511(a)(8). We concluded that the evidence supported the court’s decision,
and then proceeded to address Section 2511(b), even though the appellant
mother did not present any challenge regarding that section. This Court did
not provide an explanation for its decision to address Section 2511(b). We
merely stated: “Although Mother does not challenge the trial court’s analysis
of Section 2511(b), we proceed to address this issue nonetheless.” Id. at
1010. We do not read C.L.G. to require consideration of Section 2511(b) in
every appeal from a decree involuntarily terminating parental rights. This
Court did not hold that consideration of Section 2511(b) was necessary in
C.L.G., nor did we cite any authority in support of our decision to address
Section 2511(b) sua sponte.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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