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[U] In re Q.U.B.

Superior Court of Pennsylvania

August 20, 2013

IN THE MATTER OF: Q.U.B., Appellee APPEAL OF: N.B., MOTHER, Appellant IN THE MATTER OF: S.M.D.B., Appellee APPEAL OF: N.B., MOTHER, Appellant IN THE MATTER OF: Q.N.B.B., Appellee APPEAL OF: N.B., MOTHER, Appellant IN THE MATTER OF: S.M.B., Appellee APPEAL OF: N.B., MOTHER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order November 5, 2012 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000493-2012, CP-51-AP-0000494-2012, CP-51-AP-0000495-2012, CP-51-AP-0000496-2012.

BEFORE: BENDER, BOWES, and STRASSBURGER, [*] JJ.

MEMORANDUM

BOWES, J.

N.B. ("Mother") appeals the November 5, 2012 orders terminating her parental rights to her four daughters, Q.U.B., S.M.D.B., Q.N.B.B., and S.M.B., hereinafter collectively referred to as the children.[1] We affirm.

The Philadelphia Department of Human Services ("DHS") became involved with this family during August 2006, as a result of a general protective services report. Following an investigation, DHS initiated in-home services ("SCOH") for the four children.[2] However, after the services failed to alleviate the underlying issues, DHS obtained protective custody orders ("OPC") during 2009 and placed the children in its care. The children have remained in DHS care since December 1, 2009. They currently reside with their maternal aunt, who is an adoptive resource.[3]

After removing Mother's daughters from her care, DHS fashioned a Family Service Plan that required Mother to obtain adequate housing, complete parenting classes, attend supervised visitation, and complete mental health therapy. These goals have remained consistent throughout DHS's involvement. Mother's compliance with the FSP was substantial. She consistently attended bi-weekly visitation, [4] participated in mental health treatment, completed parenting courses, and eventually obtained adequate housing. Unfortunately for Mother, however, DHS determined that, despite her substantial compliance with the FSP goals, she nevertheless lacked the capacity to parent her daughters.

On October 11, 2012, DHS filed petitions to terminate Mother's parental rights to Q.U.B., S.M.D.B., Q.N.B.B., and S.M.B. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). Counsel was appointed, and an evidentiary hearing occurred on November 5, 2012. During the hearing, DHS presented the testimony of the current DHS caseworker, Ike Onyekere, the girls' foster care caseworker, Julie Collis, and Stephen Miksic, Ph.D., who was qualified as an expert in the field of psychology, parenting capacity, and parental bonding evaluations. Mr. Onyekere outlined Mother's FSP goals and her interaction with the agency. Ms. Collis testified that, while supervising Mother's visitations with the children, she observed Mother's inability to control her daughters' behavior or organize a simple activity for the family without substantial assistance. N.T., 11/5/12, at 59-61. She also testified that the girls would not suffer irreparable harm if Mother's rights were terminated. She explained that all of the children understand that they will maintain a degree of contact with Mother, and the younger children are either "very attached" or "primarily attached" to their caregiver, maternal aunt. Id. at 64, 67-70. Likewise, Dr. Miksic opined within a reasonable degree of psychological certainty that Mother lacked the capacity to parent her daughters and that the children did not share an emotional bond with Mother that would cause them significant emotional harm if Mother's rights were terminated. Id. at 9-12, 16, 19-20. At the close of the termination portion of the hearing, the trial court entered the above-referenced orders terminating Mother's parental rights to the four children pursuant to § 2511 (a)(2), (5), (8), and (b). These timely appeals followed, which we consolidated for argument sua sponte. Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing a statement of errors complained of on appeal concurrent with her notice of appeal.

She presents the following issues for our review:

1. Did the Trial Court err in terminating [Mother's] parental rights under Pa.C.S. Section 2511?
2.Did the Trial Court err in erred in [sic] finding that termination best served the children's developmental, physical and emotional needs under sub-section 2511(b)?

Mother's brief at vii.[5]

The pertinent scope and standard of review of an order terminating parental rights is as follows:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa.Super. 2005). In termination cases, the burden is upon the petitioner to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. Id. at 806.
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." In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa.Super. 2003). 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. In re M.G., 855 A.2d 68, 73–74 (Pa.Super. 2004). If competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003).

In re Adoption of M.R.B., 25 A.3d 1247, 1251 (Pa.Super. 2011).

Grounds for termination of a biological parent's parental rights are governed by 23 Pa.C.S. § 2511, which provides in pertinent part 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 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.
. . . .
(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. § 2511.

The test for terminating parental rights consists of two parts. In In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:

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 emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

We need only agree with the trial court's decision as to one subsection of 23 Pa.C.S. § 2511(a) in order to affirm the termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Herein, we agree with the trial court's decision to terminate Mother's parental rights pursuant to subsections 2511(a)(2) and (b). The grounds for terminating parental rights under Section 2511(a)(2) are not limited to affirmative misconduct. To the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002).

In In re Geiger, 331 A.2d 172 (Pa. 1975), our Supreme Court first announced the fundamental test in terminating parental rights pursuant to section 2511(a)(2). According to In re Geiger,

three things must be shown before a natural parent's rights in a child will be terminated: (1) repeated and continued incapacity, abuse, neglect or refusal must be shown; (2) such incapacity, abuse, neglect or refusal must be shown to have caused the child to be without essential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.

Id. at 173-174; see also In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).

After the trial court finds statutory grounds to terminate parental rights pursuant to section 2511(a), it must also determine whether the involuntary termination of parental rights would best serve the children's developmental, physical, and emotional needs and welfare pursuant to subsection 2511(b). In In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into needs and welfare of the child." In addition, we instructed that the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. In re K.Z.S., 946 A.2d 753, 763 (Pa.Super. 2008).

While a parent's emotional bond with his or her child is a major aspect of the subsection 2511(b) best interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child. In re K.K.R.-S., 958 A.2d 529, 533-536 (Pa.Super. 2008). The mere existence of an emotional bond does not preclude the termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial court's decision to terminate parents' parental rights affirmed where court balanced strong emotional bond against parents' inability to serve needs of child). Rather, the trial court must examine the status of the bond to determine whether its termination "would destroy an existing, necessary and beneficial relationship." In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa.Super. 2003). As we explained in In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010),

[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, this Court stated that the trial court should consider the importance of continuity of relationships and whether any existing parent-child bond can be severed without detrimental effects on the child.

After a thorough review of the parties' briefs, pertinent law, and the certified record, we conclude that the trial court cogently and accurately addressed Mother's arguments relating to section 2511(a)(2)[6] and (b) in its well-reasoned opinion entered on April 10, 2013.[7] Therefore, we affirm on the basis of that opinion.

Finally, we also observe that Mother baldly asserts in her statement of the case that the trial court's decision to terminate parental rights was "based solely on her [diminished] intellectual capacity." Mother's brief at viii, xiii. As Mother did not raise this issue before the trial court, it was not addressed in the trial court's opinion. In addition, the claim is waived for several reasons. First, it was not presented in Mother's statement of the issues presented. See Pa.R.A.P. 2116 ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."). Second, the issue was not readily discernible from Mother's Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) ("Any issues not raised in a timely Rule 1925(b) statement will be deemed waived."). Finally, Mother failed to develop the assertion in the argument portion of her brief. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011) ("[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."). Accordingly, the issue that Mother asserted in her statement of the case was not properly raised, preserved, or presented for our review.

Moreover, in addition to being waived, Mother's emotionally-charged insinuation that the trial court terminated her parental rights based upon an improper consideration is disingenuous insofar as it misrepresents the context of the court's comments. In reality, the trial court did not terminate Mother's parental rights simply due to Mother's diminished intellectual capacity. Instead, the court concluded pursuant to § 2511(a)(2), that Mother demonstrated a continued incapacity to parent the children, that the incapacity caused the children to be without essential care and control, and that Mother is unable to remedy the causes of her incapacity to parent. As noted supra, the certified record sustains the trial court's findings regarding Mother's parenting incapacity. Hence, assuming arguendo that Mother preserved this issue, which she did not, no relief is due.

Orders affirmed. Judgment Entered.


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