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[U] In re J.L.R.

Superior Court of Pennsylvania

February 12, 2014

IN THE INTEREST OF: J.L.R. AND K.M.G.
v.
APPEAL OF: A. V., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree July 3, 2013 in the Court of Common Pleas of Lancaster County Orphans' Court at Nos.: 36-2012-2369; 36-2012-2371

BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, A.V. (Mother), appeals the decree of the Court of Common Pleas of Lancaster County that terminated her rights to her daughters K.M.G., born in March of 2007, and J.L.R., born in May of 2005 (Children).[1]We affirm.

Mother and K.M.G moved in with the mother of N.L.G. (K.M.G.'s Father) (Paternal Grandmother) shortly before J.L.R.'s birth in May of 2005. Maternal Uncle was present for the birth, but Father of J.L.R. was not. N.L.G., Father of K.M.G., was incarcerated in April of 2007. Mother, J.L.R., K.M.G., and Mother's oldest daughter, who now lives in Hawaii with her father, continued to live with Paternal Grandmother.

Mother was incarcerated in August of 2007 on charges of felony criminal trespass, conspiracy to engage in criminal trespass, simple assault, criminal mischief, and corruption of minors. Mother spent twenty-three days in jail. On her release, Mother went to live with her mother rather than return to Paternal Grandmother's house where her three daughters were still living. Mother apparently believed that her work schedule and the possibility of future incarceration justified leaving the Children with Paternal Grandmother. Mother gave birth to a fourth child, a son, during this period.[2]

In September of 2009, Mother pleaded guilty to charges of felony criminal trespass, simple assault, and criminal mischief. She was sentenced to time served and probation, which she completed successfully, but she still owes fines, costs, and restitution in that case.

In September of 2009, when Paternal Grandmother refused to turn the Children over to her, Mother contacted Maternal Uncle and asked him to assist her. The Children began living with Maternal Uncle and his partner after Mother granted Maternal Uncle temporary guardianship of the Children.

Mother had no contact with the Children from the time they began living with Maternal Uncle and his partner until December 24, 2009, when she asked to have them spend Christmas with her. Maternal Uncle and his partner took the Children to Mother's house on December 24, 2009, but picked them up later the same day, at Mother's request.

Paternal Grandmother filed a complaint for custody of the Children in the trial court on December 30, 2009. The trial court granted shared legal custody to Maternal Uncle and Paternal Grandmother, primary physical custody to Maternal Uncle, and partial physical custody to Paternal Grandmother.[3]

Maternal Uncle permitted Mother to have weekend custodial visits with the Children during the spring and summer of 2010. One weekend during the summer of 2010, when Maternal Uncle met Mother to exchange custody of the Children, she appeared to be intoxicated. When Maternal Uncle told Mother she could not take the Children, she pulled them from his car, placed them in her car, and drove away. Maternal Uncle called the Pennsylvania State Police, who looked for Mother's vehicle, but were unable to find it. Maternal Uncle retrieved the Children the next day. This was the final time Mother saw or spoke to the Children. Aside from a few phone calls, Mother had no contact with Maternal Uncle or the Children between the summer of 2010 and January of 2012. Mother never asked to speak to the Children nor did she inquire as to their well-being.

In her final contact with Maternal Uncle, Mother sent him a text message on January 25, 2012, asking him to take custody of her son so she could move to Philadelphia. Since July of 2010, Mother made no attempt to stay in touch with the Children or to provide support for them in any form. She sent no cards or text messages, and made no phone calls for their birthdays or any holidays, in spite of the fact that Mother knew Maternal Uncle's phone number and address.

Mother returned to prison in October of 2012, after being charged with three felony counts of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, and criminal use of a communication facility. Mother remains in prison, where she has failed to communicate with Maternal Uncle or the Children.

Maternal Uncle and his partner filed a petition for the involuntary termination of the parental rights of Mother, N.L.G. (Father of K.M.G.), and J.R. (Father of J.L.R.), and for the adoption of K.M.G. and J.L.R., on November 9, 2012.[4]

Mother filed a Petition for Special Relief on April 8, 2013, in which she requested the removal of counsel for Maternal Uncle and his partner. She claimed a conflict of interest on the basis that their counsel had also represented her interests, while Mother was supporting the claims of Maternal Uncle, (her brother), and his partner against the claims of K.M.G.'s parental grandmother. Maternal Uncle and his partner filed an answer on April 10, 2013, which denied Mother's claim. The trial court denied Mother's petition on April 19, 2013. Mother filed a motion for reconsideration, which the trial court denied on May 1, 2013. (See Opinion Sur Appeal, 8/14/13, at 2).

After a hearing, the trial court entered a decree terminating the parental rights of N.L.G. (Father of K.M.G.) and Mother, on July 3, 2013.[5]Mother filed notice of appeal and a statement of errors on July 25, 2013.[6]

Mother raises the following questions on appeal:
A. Whether the [c]ourt erred when it denied Mother's request for special relief without having a hearing[?]
B. Whether the [c]ourt erred when it terminated Mother's rights[?] (Mother's Brief, at 7).
Our standard of review is well-settled:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.
We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. 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. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citations omitted).

Requests to have a natural parent's parental rights terminated are governed by 23 Pa.C.S.A. § 2511. We are mindful that to affirm the termination of parental rights, this Court need only agree with the trial court's decision that any one subsection of section 2511(a) has been proven. See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004); 23 Pa.C.S.A. § 2511. Here, the trial court decided that the totality of the evidence was clear and convincing that the petitioners had met their burden of proof to terminate Mother's parental rights under subsection 2511(a)(1). (See Trial Court Opinion and Decree, 7/03/13, at 13).

Section 2511, provides, in pertinent part:

§ 2511. Grounds for involuntary termination

(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.
(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(emphasis added).

It is well-settled that a party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence, " a standard which requires evidence 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 T.F., 847 A.2d 738, 742 (Pa.Super. 2004). Further,

A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.

In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa.Super. 2008) (internal citations omitted).

Therefore, to terminate parental rights pursuant to section 2511(a)(1), the person or agency seeking termination must demonstrate through clear and convincing evidence that, for a period of at least six months prior to the filing of the petition, the parent's conduct demonstrated a settled purpose to relinquish parental rights or that the parent has refused or failed to perform parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).

With respect to subsection 2511(a)(1), our Supreme Court has held:
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988) (case citation omitted). Further,

the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.

In re B., N.M., 856 A.2d 847, 854-55 (Pa.Super. 2004), appeal denied sub nom. In re Adoption of N.M.B., 872 A.2d 1200 (Pa. 2005) (citations omitted).

The Adoption Act provides that a trial court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. § 2511(b). The Act does not make specific reference to an evaluation of the bond between parent and child but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481, 484-85 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super. 2008).[7]

In regard to incarcerated persons, our Supreme Court recently stated:
[I]ncarceration is a factor, and indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that [sic] the causes of the incapacity cannot or will not be remedied.
[W]e now definitively hold that incarceration, while not a litmus test for termination, can be determinative of the question of whether a parent is incapable of providing "essential parental care, control or subsistence" and the length of the remaining confinement can be considered as highly relevant to whether "the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent, " sufficient to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2). See e.g. Adoption of J.J., [511 Pa. at 605], 515 A.2d at 891 ("[A] parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties."); [In re:] E.A.P., [944 A.2d 79, 85 (Pa.Super. 2008)] (holding termination under § 2511(a)(2) supported by mother's repeated incarcerations and failure to be present for child, which caused child to be without essential care and subsistence for most of her life and which cannot be remedied despite mother's compliance with various prison programs). If a court finds grounds for termination under subsection (a)(2), a court must determine whether termination is in the best interests of the child, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In this regard, trial courts must carefully review the individual circumstances for every child to determine, inter alia, how a parent's incarceration will factor into an assessment of the child's best interest.

In re Adoption of S.P., 47 A.3d 817, 828, 830-31 (Pa. 2012).

Here, in her first issue, Mother asks us to reverse the trial court and disqualify Maternal Uncle's attorney from representing him (and his partner) on the basis of a conflict of interest because she allegedly also represented Mother. In her brief, Mother argues that:

Mother alleged that Attorney Cheuvront had advised her that if [Maternal Uncle] could not obtain standing in the custody matter, that the money her brother paid Attorney Cheuvront would then be used to pay for her representation of [M]other. Based on these and other contacts and representations by Attorney Cheuvront, Mother reasonably believed that Attorney Cheuvront was representing, assisting and looking out for Mother's interests, as well as those of [Maternal Uncle].

(Mother's Brief, at 14-15).

Mother contradicts herself and undermines her own argument when she claims that Attorney Cheuvront told her that, if Maternal Uncle did not have standing to petition for custody, "the money her brother paid Attorney Cheuvront would then be used to pay for her representation of [M]other." (Id. at 14) (emphasis added). Even by Mother's account, therefore, any representation of Mother was contingent on a denial of standing to Maternal Uncle, which, in fact, did not occur. It is clear from a plain reading of Mother's assertion that, even if true, the statement only tends to show that Maternal Uncle retained Attorney Cheuvront to represent him, and that she did not hold herself out as representing Mother.[8]

The trial court denied Mother's petition for special relief reasoning that, "based on the record and review of the custody file, it appeared that [Mother] was never represented by [counsel for Maternal Uncle and Partner]. [Mother] appears to have acted pro se throughout the course of the proceedings." (Opinion Sur Appeal, 8/14/13, at 2). Our review of the docket of the custody proceeding confirms the trial court's finding. Mother's first claim of error lacks merit.

In Mother's second question she raises a general challenge asserting trial court error in the termination of her parental rights. (See Mother's Brief, at 7). We disagree.

Preliminarily, Mother fails to divide her argument into as many parts as there are questions to be argued, with pertinent discussion and citation of authorities, thus failing to comply with Pa.R.A.P. 2119(a), (b). (See Mother's Brief, at 14-20). To the contrary, after devoting most of her argument section to the representation issue raised in her first question, (see id. at 14-19), Mother adds an abbreviated argument of less than two pages on her general claim of trial court error, supported by no authority whatsoever. (See id. at 19-20). Accordingly, Mother's second issue is waived. See Pa.R.A.P. 2119(a), (b) (requiring such discussion and citation of authorities as are deemed pertinent, as well as statement of principle for which authority is cited).

Moreover, her claim would not merit relief. Mother's argument, such as it is, challenges the trial court's assessment of the credibility of Maternal Uncle. (See Mother's Brief, at 19-20). Mother claims the trial court's decision was, therefore, against the weight of the evidence, and not in the best interests of the children. (See id. at 20). We disagree.

Mother disregards our standard of review. "Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result." In re M.G., supra at 73. (citation omitted). Furthermore, as we have already noted:

We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. 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. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.

Id. at 73-74 (citations omitted). As we have also already noted,

[O]ur standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.

In re L.M., supra at 511 (citation omitted).

Here, we conclude that the trial court's findings are supported by the evidence of record. The trial court was 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. We decline Mother's implicit invitation to usurp the trial court's role in assessing credibility, or to re-weigh the evidence.

We also conclude that the trial court properly determined that there was sufficient evidence to find that Mother failed to perform her parental duties, pursuant to subsection 2511(a)(1). We conclude that the trial court did not lack competent evidence to support its findings. The trial court did not abuse its discretion, or make an error of law. Accordingly, we affirm.

Decree affirmed.

Judgment Entered.


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