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[U] In re J.B.

Superior Court of Pennsylvania

December 10, 2013



Appeal from the Order Entered March 25, 2013 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): CP-51-AP-0000142-2013, CP-51-AP-0000141-2013




In these consolidated appeals, J.B. ("Mother") appeals from the orders terminating her parental rights to her sons J.B. and A.N.[1] We affirm.

The Philadelphia Department of Human Services ("DHS") became involved with the family during 2011 following a violent physical confrontation between Mother and A.N.'s birth father, R.W. A.N. was injured during the altercation, and neither parent could explain the cause of their son's injuries. The subsequent Child Protective Services ("CPS") report identified both Mother and R.W. as indicated perpetrators of abuse. The juvenile court adjudicated the children dependent on December 16, 2011, and placed them in foster care.[2] As of the date of the March 25, 2013 hearing to terminate Mother's parental rights, J.B. and A.N. had resided together in their current pre-adoptive foster home in excess of one year. The children, then ages three and one-half and two and one-half, referred to their foster parents as "Mom" and "Dad."

Mother has an admitted history of drug and alcohol abuse. In addition, she has mental health problems and noted concerns with physical aggression and anger management. In light of these issues, after removing J.B. and A.N. from Mother, DHS fashioned a Family Service Plan ("FSP") that required her to attend supervised visitation, complete domestic violence and anger management programs, submit to evaluation by the Clinical Evaluation Unit ("CEU"), and comply with recommendation to participate in a mental health and substance abuse dual diagnosis program. Additionally, the FSP directed Mother to address parenting issues and obtain adequate housing. Mother's compliance with her FSP goals was inconsistent. While she initially attended visitation, her attendance became erratic after the visitation requirement was combined with the parenting component in a program designed to monitor and manage her interaction with her sons. Similarly, she failed to complete anger management or domestic violence counseling. In addition, Mother submitted positive urine drug screens and failed to participate in random drug screens. Finally, to the extent that Mother engaged in any treatment programs independently, she failed to provide DHS with current releases so that the agency could verify her participation.

On March 7, 2013, DHS filed petitions to terminate Mother's parental rights to J.B. and A.N. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Mother's counsel during the dependency matters continued his representation in the involuntary termination proceedings. The trial court held an evidentiary hearing on March 25, 2013. DHS presented the testimony of the caseworker assigned to the family, Keira Desiree Cole-Littlejohn, and the boys' foster care caseworker, Rosalind Turner. Mother testified and presented the testimony of Regina Holloway, a social worker from the inpatient rehabilitation facility that Mother was attending when the hearing occurred. The trial court, thereafter, entered the above-referenced orders terminating Mother's parental rights to J.B. and A.N. pursuant to §2511(a)(1), (2), (5), (8), and (b). These timely appeals followed, which we sua sponte consolidated for argument. Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing identical statements of errors complained of on appeal which raised four issues. The trial court entered two opinions setting forth the merits of its decisions to terminate Mother's parental rights.[3]

Mother reiterates her claims on appeal as follows:
1. Was there improper failure to provide counsel by the court due to the fact that for several months after the [adjudication] and during the review hearing process Appellant . . . did not have an active attorney on the case?
2. Did the judge erred [sic] by improperly limited [sic] cross exam by not continuing the hearing to allow Appellant's [c]ounsel to receive the family service plan documents that he requested from the City Solicitor's Office [and] was told he would receive [but] never received them?
3. Was original counsel on the case ineffective . . . by not showing up to a review hearing when [s]he is counsel of record and required under law to show up and did not remove himself properly?
4. Did the Judge ruled [sic] in error that the Philadelphia City Solicitor's Office met its burden of proof?

Appellant's brief at 3.

We recently outlined the pertinent scope and standard of review.

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.
The burden is upon the petitioning person or agency to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. Moreover, we have explained:
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.'

The trial court is free to make all credibility

determinations, and may believe all, part, or none of the evidence presented. If the findings of the trial court are supported by competent evidence, we will affirm even if the record could also support the opposite result
In re T.M.T., 64 A.3d 1119, 1125 (Pa.Super. 2013) (citations omitted).

In re Adoption of R.K.Y., 72 A.3d 669, 673-674 (Pa.Super. 2013).

At the outset, we observe that Mother's first and third issues are waived because Mother did not raise those claims before the trial court. In her first issue, Mother complains that she was denied counsel during portions of the juvenile court proceedings and she argues that the lack of representation in those proceedings contributed to her inability to satisfy her FSP goals. Concomitantly, in her third issue, Mother challenges

Attorney Harding's stewardship based on the manner in which she withdrew from representation. Specifically, Mother asserts that counsel failed to attend a dependency hearing on September 5, 2012, and that, even though she was represented by substitute counsel on that occasion, "New counsel did not have time to prep for this hearing." Mother's brief at 9.

Pursuant to Pa.R.A.P. 302(a), "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Herein, Mother never leveled an objection during the termination hearing regarding either the purported intermittent lack of representation throughout the dependency matters or counsel's alleged ineffectiveness. Indeed, Mother did not imply during the termination hearing through testimony, cross-examination, or argument, that she was denied counsel during the proceedings in juvenile court, challenge the propriety of those proceedings, or indicate how counsel's stewardship would affect the trial court's decision to terminate her parental rights. Accordingly, Mother's ...

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