In The Interest of: X.A.Z v. Appeal of: C.B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: X.A.Z.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.B., MOTHER :
:
:
:
: No. 644 EDA 2018
Appeal from the Decree Entered January 25, 2018
in the Court of Common Pleas of Philadelphia County
Family Court at Nos: 51-FN-00320-2017
CP-51-AP-0000837-2017
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2018
C.B. (“Mother”) appeals from the decree entered on January 25, 2018,
in the Court of Common Pleas of Philadelphia County, which granted the
petition of the Philadelphia Department of Human Services (“DHS”) and
involuntarily terminated her parental rights to her minor daughter, X.A.Z.V.
(“Child”), born in December 2016, pursuant to Section 2511(a)(1), (2), (5),
and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511, and changed the
permanency goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S.A. §
6351.1 After careful review, we affirm.
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1 The parental rights of R.B. (“Father”) were terminated on April 19, 2018.
Father is not a party to this appeal and has not filed his own appeal.
Additionally, we note that Mother does not challenge the goal change, and has
thus waived it for purposes of appeal. See Krebs v. United Refining Co. of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that failure to
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* Retired Senior Judge assigned to the Superior Court.
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We adopt the following factual and procedural history from DHS’
statement of facts, as it was stipulated to by both parties and entered into
evidence. (See DHS Statement of Facts, at 1-4). DHS became involved with
the family in February 2017, after receiving a Child Protective Services (“CPS”)
report that alleged a history of domestic violence between Father and Mother.2
The report alleged that during a domestic dispute, Father punched Mother in
the face and tried to remove Child from Mother’s arms. Father attempted to
remove Child from the home without appropriate clothing, and the police were
contacted. Following the incident, Mother did not obtain a Protection From
Abuse (“PFA”) order pursuant to 23 Pa.C.S.A. §§ 6101-6122, and allowed
Father to return to the home.
On February 7, 2017, DHS visited the family at maternal grandmother
(“Grandmother’s”) home, where Mother was uncooperative and refused to
allow them entry. Grandmother let DHS into the home and confirmed the CPS
report allegations, and additionally stated that Father was in the home, that
domestic violence was ongoing between Father and Mother, and that she did
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preserve issues by raising them both in concise statement of errors
complained of on appeal and statement of questions involved portion of the
brief on appeal results in waiver of those issues).
2 The report also indicated that Mother suffered from an unspecified mental
illness, for which she was receiving treatment. The record does not reveal the
mental illness from which Mother allegedly suffered, nor does it indicate
whether Mother continued to receive appropriate treatment, or whether she
was noncompliant.
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not feel safe in the home. Father came downstairs, but was hostile towards
DHS and stated he would not allow them to take Child. Mother spoke with
DHS and stated that Father had never harmed Child or her sibling, N.B.3 DHS
obtained an order of protective custody (“OPC”) and removed Child and N.B.
from the home. Mother and Father were escorted from the home by the
police.
On February 10, 2017, the court convened a shelter care hearing. The
OPC was lifted and Child’s temporary commitment to DHS was ordered to
stand. A stay-away order was issued against both parents as to
Grandmother’s home, but they were granted supervised visitation with Child
at DHS.
On February 16, 2017, Child, who had initially been placed with
Grandmother, was removed and placed in foster care. Parents’ visitation was
suspended based on a DHS report of aggressive behavior at a supervised visit
and in the courtroom.
On March 9, 2017, Child was adjudicated dependent and fully committed
to the custody of DHS. At that time, the court suspended the visitation of
both parents until they were engaged in dual diagnosis treatment. Both
parents were referred to Achieving Reunification Center (“ARC”). That same
day, both parents attended a single case plan (“SCP”) meeting. Mother’s
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3The record provides no further details regarding N.B.’s age, biological father,
or whether Mother’s parental rights to N.B. also were terminated, either
voluntarily or involuntarily.
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objectives were to: (1) attend domestic violence victim counseling; (2) attend
anger management; (3) develop coping skills to prevent violent outbursts; (4)
attend and complete parenting classes; (5) comply with Community Umbrella
Agency (“CUA”) home assessments; (6) have contact with Child per court
order at DHS for visitation; (7) sign all authorizations and consent forms; (8)
confirm visits within twenty-four hours; (9) complete dual diagnosis
evaluation and follow all recommendations; and (10) to submit to drug
screening and three random drug screens in advance of the next court date.
Neither Mother nor Father reported to ARC, and their referrals were
closed due to their non-participation. In April 2017, DHS attempted to conduct
a home assessment. At first, Father refused to allow entry to the home. When
the assessment was eventually conducted, the home was deemed
inappropriate: both parents had a large quantity of marijuana in plain view,
and they stated they would continue to use it.
On May 18, 2017, the court convened a permanency review hearing and
determined that foster placement continued to be necessary and appropriate,
and that neither parent was in compliance with a permanency plan for
reunification. Both parents tested positive for cannabis and had not completed
screening or a dual diagnosis assessment. Visits remained suspended until
the parents were compliant and engaged in dual diagnosis treatment, and the
court ordered them to engage with previously ordered services.
On August 17, 2017, the court convened a permanency review hearing
and made the same determination regarding foster placement. Both parents
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were in minimal compliance with the permanency plan, and had not engaged
in drug and alcohol treatment, mental health treatment, or domestic violence
counseling, and Mother twice tested positive for cannabis. Although both
parents were attending parenting courses at ARC and Mother was attending
anger management classes, CUA was forced to change the family’s case
manager due to safety concerns following interactions with both parents.4 On
August 21, 2017, DHS filed a petition seeking to terminate Mother’s parental
rights to Child and change her permanency goal to adoption.
In November 2017, the court convened a goal change/termination
hearing. (See N.T. Hearing, 11/09/17, at 1). Mother and Father appeared,
both represented by counsel. Child was represented by William Calandra,
Esquire, as legal counsel, and by Alexandra Adams, Esquire, as guardian ad
litem. (See id. at 2). Mother stipulated to the facts in DHS’ petitions and the
exhibits were admitted. (See id. at 20, 37-38). Braheem Powell, case
manager for Turning Points for Children, testified that Child was in a
confidential foster home, was receiving early intervention, and was being seen
by a hematologist for a low white blood cell count. (See id. at 29-31). At the
time of the hearing, Child had been in pre-adoptive foster care for eight
months. (See id. at 31).
Father’s counsel objected to going forward with the goal change because
the case had only been open nine months and Father had not been properly
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4 The nature of these interactions was not apparent from the record.
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served; Mother’s counsel joined in the objection. (See id. at 5). The hearing
was continued so that an additional placement resource, a family friend, could
be explored, and so that voluntary relinquishment forms could be prepared
for both parents. (See id. at 17-22). The court indicated that the forms
should be generated by November 17, 2017, and that the parents would have
until December 8, 2017, to sign them. (See id. at 22).
On January 25, 2018, the court again convened a hearing regarding the
petition as to Child. Mother appeared, represented by counsel. (See N.T.
Hearing, 1/25/18, at 1). Child was again represented by Attorney Calandra
and Attorney Adams as legal counsel and GAL, respectively. (See id.).
Counsel for DHS, Bennette Harrison, Esquire, indicated that her office had
provided CUA with voluntary relinquishment forms on November 10, 2017.
(See id. at 3). Mario D’Adamo, Esquire, representing Mother, informed the
court that Mother was willing to sign the relinquishments. (See id. at 3-4).
The court inquired as to why the forms were not signed when it had been
attempting to call the case for three hours and that the “deadline” to sign the
forms was in December 2017, and refused to allow Mother to sign. (Id. at 4).
The court referenced the testimony of Mr. Powell at the November 2017
listing; Mr. Powell further indicated the Child would not be irreparably harmed
by termination. (See id. at 8-9). No additional testimony was taken. Both
counsel for Child and the GAL joined DHS’ petition seeking to terminate
Mother’s parental rights. (See id. at 7). Mother’s counsel did not object to
the involuntary termination, but did reiterate that his client was willing to sign
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the voluntary relinquishment. (See id. at 11). The court granted the petition
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b), and entered a decree
involuntarily terminating Mother’s parental rights. The court also entered an
order changing Child’s permanency goal to adoption.
On February 26, 2018, Mother contemporaneously filed a timely notice
of appeal and a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).5 The court filed an opinion on May 4, 2018.
See Pa.R.A.P. 1925(a)(2)(ii).
On appeal, Mother raises the following issues for our review:
1. Whether the trial court erred by disallowing Mother the
opportunity to voluntarily relinquish her parental rights?
2. Whether the trial court erred by denying [Mother’s]
constitutional rights to voluntarily give up her parental rights
under substantive due process analysis?[6]
(Mother’s Brief, at unnumbered page 4) (unnecessary capitalization and
answers omitted).
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5Because the thirty-day appeal period from the trial court’s January 25, 2018
order ended on Saturday, February 24, 2018, Mother had until Monday,
February 26, 2018, to file her notice of appeal. See 1 Pa.C.S.A. § 1908;
Pa.R.A.P. 903(a).
6 Despite identifying a substantive due process analysis as an issue in her
statement of questions, Mother does not develop this issue in her brief or cite
any case law in support of it. Accordingly, she has waived this issue for
purposes of appeal. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011),
appeal denied, 24 A.3d 364 (Pa. 2011) (noting that appellate brief which fails
to provide any discussion of claim with citation to relevant authority or fails to
develop issue in meaningful fashion capable of review waives the claim); see
also Pa.R.A.P. 2119(a)-(b).
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We review cases involving the termination of parental rights according
to the following standards.
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).
Mother does not challenge the court’s factual findings regarding the
termination. (See Mother’s Brief, at unnumbered pages 7-9). Instead, she
argues that the court erred by refusing to allow her to voluntarily relinquish
her parental rights. (See id. at 9). Due to the involuntary termination of her
rights, Mother would be subject to a finding of aggravated circumstances as
to any future children, relieving DHS from the burden of providing services in
support of reunification. (See id.). She argues that “the time element was
of no moment to the court[’]s consideration[,]” and that it “had no bearing on
whether Mother was willing or not willing to sign.” (Id.).
Mother cites no specific case law in support of the proposition that the
court was required to allow her to sign the voluntary relinquishment. (See
id.). She cites generally to In re A.J.B., 797 A.2d 264 (Pa. Super. 2002), in
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which this Court affirmed the imposition of a reasonableness standard with
respect to the agency’s refusal to consent to mother’s petition for voluntary
relinquishment. (See id.); see also A.J.B., supra at 267-69. In A.J.B., this
Court disapproved of the agency’s refusal solely so that it could impose
aggravated circumstances in the future. See A.J.B., supra at 268 (noting
public policy interest in dispensing with requirement of agency’s consent to
voluntary relinquishment and allowing parents to voluntarily relinquish their
parental rights).
With regard to voluntary relinquishment, the Adoption Act provides, in
pertinent part:
When any child under the age of [eighteen] years has been in the
care of an agency for a minimum period of three days or, whether
or not the agency has the physical care of the child, the agency
has received a written notice of the present intent to transfer to
it custody of the child, executed by the parent, the parent or
parents of the child may petition the court for permission to
relinquish forever all parental rights and duties with respect to
their child.
23 Pa.C.S.A. § 2501(a). “Typically, voluntary relinquishment is the
mechanism utilized by parents who believe they are physically or mentally
unable to raise a child and therefore wish to place the child for adoption.” In
re J.F., 862 A.2d 1258, 1260 (Pa. Super. 2004).
Since A.J.B., our Court has noted that an agency’s refusal to consent to
voluntary relinquishment in order to expedite future termination proceedings
is not an improper or impermissible motive, and that only the trial court can
determine the efficacy of either type of petition and find in favor of one
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excluding the other. See In re Adoption of A.M.B., 812 A.2d 659, 667 (Pa.
Super. 2002) (noting that permitting an order of voluntary relinquishment
after sufficient evidence for decree of involuntary termination is presented and
reasonable effort requirements are met is incongruous and contrary to federal
and state policy). Additionally, the agency’s actions should be examined
under a reasonableness standard. See A.J.B., supra at 267-69. “Upon
appellate review of that decision, this Court would exercise its function, as
stated above, to determine if the decision was free of legal error and the
credibility determinations and factual findings are supported by the record.”
A.M.B., supra at 667.
Here, the trial court offered Mother the opportunity to sign the voluntary
relinquishment and DHS consented, generating the voluntary relinquishment
forms. Mother did not sign them within the time provided and, as of the final
termination hearing, still had not signed them. Although there is no time
requirement outlined in the statute, it is within the court’s discretion to
determine which petition—voluntary or involuntary—should be granted. See
id.
A.M.B. provides two further salient considerations. First, that prior to
the filing of the petitions and up to the termination considerations, the parent
is afforded a full panoply of due process rights at all stages, including:
“extensive legal and social work, child welfare and court resources and time
already had been expended, and sometimes initiated years before the
termination proceeding. Filing of dependency petitions, hearings in juvenile
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court, adjudication of the adoptees as dependent children, and following
dispositional hearings, permanency hearings, involuntary termination
petitions . . . .” Id. at 670 (footnotes and emphasis omitted). Second, that
where the agency presents sufficient evidence for a decree of involuntary
termination, and the reasonable effort requirements are met, allowing a
voluntary termination is contrary to policy. See id. at 667.
Here, the court determined that DHS had established by clear and
convincing evidence the statutory grounds for termination. The court was not
required, at that point, to allow Mother to relinquish her rights voluntarily.
See id. Mother had proceeded through the previous stages of the process
delineated above, and by the time the second termination hearing convened,
Mother’s due process rights had been satisfied. See id. Accordingly, we
decline to find an abuse of discretion in the court’s refusal to allow Mother to
sign the voluntary relinquishment paperwork. See id.
Mother does not challenge the court’s findings regarding 23 Pa.C.S.A.
§§ 2511(a) and (b). Accordingly, she has waived these issues for purposes
of appeal. See Krebs, supra at 797; see also 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.”) (citation omitted).
Decree affirmed.
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Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/18
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