In the Int. of: A.G.B., Appeal of: S.B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.G.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.B., FATHER :
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: No. 2410 EDA 2021
Appeal from the Decree Entered October 27, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000276-2021
IN THE INTEREST OF: S.C.B., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.B., FATHER :
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: No. 2411 EDA 2021
Appeal from the Decree Entered October 27, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000277-2021
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 6, 2022
S.B. (“Father”) appeals from the decrees entered on October 27, 2021,
granting the petitions filed by the Department of Human Services (“DHS” or
the “Agency”) to involuntarily terminate his parental rights to his minor son,
S.C.B., Jr. (born in May of 2013), and his minor daughter, A.G.B. (born in
October of 2017) (collectively “Children”), pursuant to sections 2511(a)(1),
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(2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.1, 2 After
careful review, we affirm.
The trial court provided the following summary of the relevant facts and
procedural history in its Pa.R.A.P. 1925(a) opinion:
This family became involved with [DHS] due to concerns regarding
the safety and welfare of both Children.[3]
On August 1, 2017, DHS received a General Protective Services
(GPS) report alleging that … Mother was evicted from her home
[on July 15, 2017], because she owed $8,000.00 in rental
payments, and that she was residing with … Children in the home
of a family friend, which was not appropriate for … Children; that
the drop ceiling in the home was missing; that the ceiling in the
kitchen had a large hole; that the downstairs electric outlets were
inoperable and there were extension cords running to the living
room for electricity; that there was no banister on the stairs; that
the door to Mother’s bedroom had been removed from its hinges;
that multiple individuals visited the home; and that there was
minimal food in the home.[4] The report also alleged that Mother
had not received sufficient prenatal care; that Mother admitted
taking Adderall that she purchased illegally; that Mother had
participated in a Suboxone program but sold the Suboxone to
others; and that Mother stated that she was informed by her
physician that she needed to gain weight and should continue
taking her Suboxone. The report further alleged that … Mother
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1This Court sua sponte consolidated the appeals at Nos. 2410 and 2411 EDA
2021, as the matters involve related parties and issues. See Per Curiam
Order, 12/22/21 (single page); Pa.R.A.P. 513.
2The parental rights of T.C. (“Mother”) were also involuntarily terminated by
separate decrees on the same date. Mother has not filed appeals.
3 At the time, Children’s older sibling, A.R., also resided with Mother. DHS
located A.R.’s biological father, T.R., Jr., and placed A.R. in his father’s care.
Trial Court Opinion (“TCO”), 1/25/22, at 3-4.
4 Father did not reside with Mother. See DHS’s Brief at 5.
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suffers from depression and that she failed to attend an intake
appointment scheduled at Community Organization for Mental
Health and Retardation (COMHAR). This report was determined
to be valid.
… DHS visited [Mother and Children] at the family friend’s home.
DHS confirmed the allegations of the report. DHS observed that
there were also two large dogs, three unidentified adult males and
one unidentified adult female in the home. DHS also observed
drug paraphernalia in the home’s trash receptacle. Mother
informed DHS that she was depressed and had stopped taking her
prescribed Suboxone for 47 days. Mother admitted that she had
taken one Adderall which she had obtained without a
prescription….
On August 1, 2017, DHS located … S.C.B.[,] Jr.’s paternal great
aunt and uncle, A.B. and J.B., who agreed to care for [him]. DHS
implemented a safety plan [in their] home…. On September 27,
2017, [the Community Umbrella Agency (CUA)] held an initial
single case plan (SCP) for [S.C.B., Jr.] The primary goal for …
[him] was identified as reunification, with a concurrent goal of
adoption. The objectives identified for Father were: 1) to submit
[the Clinical Evaluation Unit (CEU)] dual diagnosis assessment; 2)
to follow CEU recommendations; 3) to complete three random
drug screens; 4) to communicate with CUA in regard[] to
obtaining suitable housing; 5) to allow CUA to perform a walk[-
]through after obtaining suitable housing; and 6) to have
supervised visitation as per court order. Mother and Father did
not attend.
[I]n October [of] 2017, DHS received a GPS report alleging that
Mother gave birth to A.G.B. [that month] at Temple University
Hospital …; that the infant was born full-term, weighing 4 pounds
and 13 ounces, and had Appearance, Pulse, Grimace, Activity and
Respiration (APGAR) scores of 9 and 9; and that Mother did not
receive prenatal care until she was 28 weeks pregnant. The report
also alleged that Mother has a history of depression and anxiety;
that Mother tested positive for marijuana in May of 2017; that she
tested positive for amphetamines in the past; that Mother was
abusing … A.R.’s Adderall prescription pills; that Mother was
currently receiving drug treatment services through North East
Treatment (NET) Center; and that Mother reported that she is
prepared to care for A.G.B. The report alleged that Mother was
evicted from a home and does not have stable, appropriate
housing[,] and that the infant’s siblings are residing with relatives.
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On October 5, 2017, DHS learned that Mother was residing in a
halfway house and that Father … had admitted using marijuana
regularly and that he did not have stable housing and was
currently on probation…. On October 6, 2017, DHS spoke with
Father, who identified a family friend, D.M., as a possible
placement resource for A.G.B. [That same day], DHS obtained an
[order of protective custody (OPC)] for A.G.B. and placed her in
the home of D.M. On October 9, 2017, a shelter care hearing for
A.G.B. was held before Juvenile Court Hearing Officer Betsy Wahl.
The OPC was lifted and [the court] ordered … the temporary
commitment to DHS to stand…. Mother and Father [were] to have
supervised visits twice a week at the [A]gency for 2 hours….
Father did not attend [the] hearing[].
On November 7, 2017[,] adjudicatory hearings were held for both
Children before the Honorable Daine Grey, Jr.[5] Legal custody
[was] transferred to DHS and placement [was] in kinship care.
Mother and Father [were] to have supervised visits with [Children]
at the [A]gency twice per week for 2 hours. Visits [were] to be
separate and [could] be modified by agreement of the child
advocate. Sibling visits [were] to occur…. [The court determined
that] Father [was] … on probation and [did] not … have
appropriate housing for reunification. Mother and Father [were]
referred to … [CEU] for forthwith drug and alcohol screens, dual
diagnosis assessments and monitoring and 3 randoms prior to
[the] next court date. [Mother and Father were] to sign all
release[s] and consents. [They were] referred to ARC for
parenting and housing. Children [were reported] safe as of
[October 9, 2017]. Father did attend [the] hearings.
TCO at 3-7 (unnecessary capitalization, citations to record, and some
paragraph breaks omitted).
The record reflects that Children were placed in foster care with
“Maternal Cousin” in February of 2018 and have remained in that home ever
since. See id. at 18; N.T. Hearing at 10. Permanency review hearings were
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5 The court adjudicated Children dependents based on abuse, neglect, or
dependency. See Petition for Involuntary Termination of Parental Rights,
5/13/21, at Exhibit A ¶q (“Statement of Facts”).
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held on February 6, 2018, May 8, 2018, and August 7, 2018, before Juvenile
Hearing Officer Baxter J. Macon. Id. at 7-8. At each hearing, it was
determined that legal custody remained with DHS and that placement
continued in kinship foster care for Children. Father attended each of these
hearings and was granted weekly, supervised visits. Id. Mother and Father
were both referred to CEU for drug screens and assessment and were required
to submit random drug screens prior to each court date. Id. Father was
referred to ARC for parenting classes. Id. at 8.
On September 11, 2018, CUA NET held a revised SCP for both Children.
The primary goal for Children was identified as reunification, with a concurrent
goal of adoption. Id. at 9. The objectives identified for Father were:
1) to follow CEU recommendations; 2) [to] complete three random
drug screens; 3) [to] attend a drug and alcohol treatment
program and adhere to all recommendations and successfully
complete [the] program; … 5) to complete three random drug
screens; 6) to communicate with CUA in regard[] to obtaining
housing; 7) [to] schedule and complete CEU assessment as per
court order and adhere to all recommendations; 8) to allow CUA
to perform [a] walk[-]through after obtaining suitable housing; …
9) to participate with ARC for housing; 10) to have supervised
visits weekly at the Agency; 11) [to] maintain all visits with
Children and confirm visits 24 hours in advance; 12) [to] attend
ARC for parenting classes or explore alternate parenting classes;
13) [to] provide [his] current work schedule to CUA; and 14) [to]
provide [a] lease or mortgage of stable independent housing.
Mother and Father failed to attend.
Id. (citation to record omitted).
Permanency review hearings were held again, approximately every
three months, which Father attended through October 2019. In February of
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2019, Children were found to be developmentally on target and to be doing
well in their foster home. Statement of Facts at ¶w. Father only missed two
of his weekly, supervised visits due to scheduling issues. Id. His visits were
going well and were modified to community, supervised visits. Id. At the
October 15, 2019 hearing, it was determined that Father was consistent with
visitation and that he had obtained appropriate housing. TCO at 11. Visitation
was modified, granting Father supervised, weekend visits with Children. Id.
The permanency hearing scheduled for January 7, 2020, was continued to
February 25, 2020, as Father was incarcerated, and Mother was unavailable.
Statement of Facts at ¶aa. At the February 2020 hearing, the court was
informed that Father was released from prison; however, Father did not attend
that hearing. TCO at 11.
Additionally, the trial court stated:
On July 24, 2020, CUA NET held a revised SCP for … Children. The
primary goal for … Children was identified as adoption, with a
concurrent goal of permanent legal custody (PLC). The objectives
identified for Father were: 1) to complete three random drug
screens; 2) [to] attend a drug and alcohol treatment program and
adhere to all recommendations and successfully complete [the]
program; 3) to complete forthwith CEU assessment and adhere to
recommendations following his release from prison; 4) to report
for random drug screens when contacted following his release
from prison; 5) [to] maintain all visits with [C]hildren and confirm
visits 24 hours in advance; 6) [to] attend ARC for parenting
classes or explore alternate parenting classes; [and] 7) due to
recent events[,] Father will abide by [the] recent protection from
abuse (PFA) and/or restraining order until otherwise directed by
the court. [Mother and Father] failed to attend.
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Permanency hearings were held for … Children on September 1,
2020, before the Honorable Allan L. Tereshko.[6] Legal custody
remain[ed] with DHS and placement [in kinship foster care]
continue[d]. S.C.B., Jr., [was] up to date with medical and dental.
A.G.B. [was] up to date with medical, but dental need[ed] to be
scheduled. CUA [was] to follow through with Ages and Stages for
her. Visitation with Father[,] once he is released from prison[,]
shall be bi-weekly[,] supervised [visits] at the [A]gency. [Mother
and Father were] referred to CEU for screens and randoms….
[They were] to complete domestic violence counseling[, and a
voluntary relinquishment of parental rights (VOLS) was] to be
explored with [them]. Children [were] safe as of [August 3,
2020]. Father did not attend [the] hearings.
Id. at 11-12 (citations to record and unnecessary capitalization omitted).
At a permanency hearing on January 19, 2021, the court found the
whereabouts of Father to be unknown. Statement of Facts at ¶ff. The court
ordered that Children were to remain committed and placed, and that Father
be referred to CEU for forthwith drug and alcohol screens when he availed
himself. Id. On April 4, 2021, CUA held a revised SCP for Children. The
primary goal for Children was identified as adoption, with a concurrent goal of
PLC. TCO at 13. The objectives for Father remained the same. Id. Father
was not in attendance at this meeting. Id.
On June 1, 2021, a permanency hearing was held, at which legal custody
was ordered to remain with DHS and Children’s placement was to remain
status quo. Id. Children were both up to date on their medical and dental
care. S.C.B., Jr., was attending second grade in the Upper Moreland School
and was receiving therapy at CFAR. A.G.B. was developmentally on target
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6 Father was again reportedly incarcerated. See DHS’s Brief at 6.
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and not in need of services. Id. Father was incarcerated. After finding that
Father had not complied with his objectives, the court ordered him to comply
and to make contact with CUA. Id. The court observed that Father was
convicted of drug-related offenses on August 8, 2002, February 8, 2007,
November 20, 2015, and July 31, 2017. Id.7
On May 13, 2021, DHS filed petitions for involuntary termination of both
Mother’s and Father’s parental rights to both Children, as well as goal change
petitions. A joint hearing was originally scheduled for September 15, 2021,
and was continued to October 27, 2021, due to Mother’s counsel’s failure to
appear. Father was represented by counsel at the continued hearing;
however, Father was not in attendance. Children’s best interests were
represented by a guardian ad litem (“GAL”), and separate legal counsel was
appointed to represent their legal interests. At the conclusion of the hearing,
the trial court found clear and convincing evidence to involuntarily terminate
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),
and (b), and to change Children’s goal from reunification to adoption.
On November 24, 2021, Father filed timely notices of appeal from the
termination decrees, along with concise statements of errors complained of
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7 DHS notes that, in addition to his drug-related convictions, Father was
convicted of reckless endangerment of another person in 2014, unauthorized
use of a motor vehicle, simple assault, and terroristic threats in 2016. DHS’s
Brief at 6-7. DHS further reports that Father was arrested on May 10, 2021,
charged with aggravated assault, conspiracy, simple assault, and
strangulation, and was awaiting trial at the time of the termination hearing.
Id. at 7.
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on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i). Father now presents the
following questions for our review:
A. Whether the trial court committed reversible error and abused
its discretion when it overruled [F]ather’s objection, where DHS
did not properly serve [F]ather with notice of the hearing and
goal change petitions [and, t]hus[, F]ather’s right to due
process was violated by the trial court[?]
B. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act[,] 23 Pa.C.S.[] § 2511(a)(1),
(a)(2), (a)(5), and (a)(8)[,] as [F]ather made progress
towards working [sic] and meeting [his] FSP goals?
C. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights without
giving primary consideration to the effect that the termination
would have on the developmental[,] physical[,] and emotional
needs of [Children,] as required by the Adoption Act[,] 23
Pa.C.S.[] § 2511(b)?
Father’s Brief at 2.
In his first issue, Father “presents a question of law requiring us to
interpret the notice requirements of the Adoption Act and our Rules of Orphan
Court Procedure. Thus, our standard of review is de novo and our scope of
review is plenary.” In re Adoption of K.M.D., 261 A.3d 1055, 1059 (Pa.
Super. 2021) (citation omitted). We are further guided by the following
principles:
The “termination of parental rights implicates a parent’s
Fourteenth Amendment right to due process.” In Interest of
A.N.P., 155 A.3d 55, 66 (Pa. Super. 2017) (citation omitted).
“Due process requires [nothing more than] adequate notice, an
opportunity to be heard, and the chance to defend oneself in an
impartial tribunal having jurisdiction over the matter.” Id.(citation and some punctuation omitted). Although “due process
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is flexible and calls for such procedural protections as the situation
demands,” this Court is “unwilling to allow the termination of
parental rights … without strict compliance with the procedures
set forth by the Legislature.” Id.[] at 66, 68 (citations and some
punctuation omitted). “As in all civil cases, the petitioner … bears
the burden to prove proper service by its affirmative acts.” In re
K.B., 763 A.2d 436, 439 (Pa. Super. 2000) (citation omitted).
In re M.N.K., 268 A.3d 492, 495 (Pa. Super. 2022) (some brackets omitted).
The Adoption Act addresses the notice requirement in matters
concerning the involuntary termination of parental rights and the manner in
which that notice shall be served:
§ 2513. Hearing
(a) Time.—The court shall fix a time for hearing on a petition
filed under section 2512 (relating to petition for involuntary
termination) which shall be not less than ten days after filing
of the petition.
(b) Notice.—At least ten days’ notice shall be given to the
parent or parents, putative father, or parent of a minor
parent whose rights are to be terminated, by personal
service or by registered mail to his or their last known
address or by such other means as the court may require….
23 Pa.C.S. § 2513(a)-(b).
Moreover, Pennsylvania Orphans’ Court Rule 15.4 provides that notice
of the hearing on a petition for involuntarily termination of parental rights shall
be given in accordance with Rule 15.6. Pa.O.C.R. 15.4(d). Rule 15.6 provides,
in relevant part:
Rule 15.6. Notice to Persons; Method; Notice of Orphans’
Court Proceedings Filed on Dependency Docket
(a) Notice to every person to be notified shall be by personal
service, service at his or her residence on an adult member
of the household, or by registered or certified mail to his or
her last known address….
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Pa.O.C.R. 15.6(a).
Instantly, Father claims that the trial court erred in finding he was
properly served with notice of the October 27, 2021 termination hearing,
which deprived him of his right to due process. Father’s Brief at 4. DHS
presented evidence that notice of the hearing was delivered to the front desk
at the Curran-Fromhold Correction Facility (“CFCF”), where Father was
incarcerated, on October 25, 2021, via UPS Next Day service. See N.T.
Hearing, 10/27/21, at 6-7; Exhibit DHS-1. Father argues that delivery by UPS
was an improper method of service and that the notice was untimely, as it
was received only two days prior to the hearing, rather than at least ten days
as required by Section 2513 of the Adoption Act and by the Pennsylvania
Orphans’ Court Rules. Father’s Brief at 4-6 (citing 23 Pa.C.S. § 2513(b);
Pa.O.C.R. 15.4(d), 15.6). Moreover, he avers that DHS improperly served
him with the goal change petitions via UPS service. Id. at 6 (citing Pa.O.C.R.
15.6 (requiring personal service or service by registered or certified mail)). In
sum, Father claims that DHS failed to establish a good faith effort to notify
him of the termination hearing and that the trial court failed to provide him
with “fundamentally fair procedures” when it overruled his objection to the
method and timeliness of service at the hearing. Id. at 6-8 (citing N.T.
Hearing at 7; Santosky v. Kramer, 455 U.S. 745, 753-54 (1982) (“The
fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the
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State…. When the State moves to destroy weakened familial bonds, it must
provide the parents with fundamentally fair procedures.”)).
First, to the extent that Father alleges improper service of the goal
change petitions, we note that Father appealed from the decrees terminating
his parental rights – not from the orders granting DHS’s requests for a goal
change. Thus, he has waived any claim pertaining to the service of the goal
change petitions. See Pa.R.A.P. 903(a) (requiring the filing of a notice of
appeal within 30 days after the entry of the order from which the appeal is
taken); Porter v. Nikita Lodging, Inc., ___ A.3d 2022___, PA Super 78,
*8-9 (filed May 2, 2022) (concluding that the failure to timely appeal from an
order results in waiver of any issues related to that order, as this Court lacks
jurisdiction to consider such issues).
Additionally, the argument section of Father’s brief is void of any
objection pertaining to the service of the petitions to involuntarily terminate
his parental rights to Children, nor is such an issue raised in his “Statement
of Questions Presented.” Thus, we deem any claim regarding the timeliness
and/or manner of service of the termination petitions to be waived. See
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”);
Commonwealth v. Long, 786 A.2d 237, 239 n.3 (Pa. Super. 2001)
(“Generally, questions not presented in the ‘Statement of Questions Involved’
are deemed waived.”) (citation omitted). Even if we were to consider that a
claim regarding the method of service of the termination petitions may be
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suggested by Father’s first question, we would deem this issue waived for
failure to develop the argument. “The Rules of Appellate Procedure state
unequivocally that each question an appellant raises is to be supported by
discussion and analysis of pertinent authority.” Estate of Haiko v.
McGinley, 799 A.2d 155, 161 (Pa. Super. 2002). See also Pa.R.A.P.
2119(a). “Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately developed are
waived.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014)
(citation omitted). “This Court will not act as counsel and will not develop
arguments on behalf of an appellant.” Id. Hence, our analysis will focus on
whether Father was properly served with notice of the termination hearing,
which is the crux of his argument.
Notably, while Father alleges the trial court erred in finding that DHS
properly served him with notice of the termination hearing, he does not
contest the notice of the originally scheduled termination hearing held on
September 15, 2021. Rather, his argument focuses solely on the notice given
regarding the continued hearing on October 27, 2021. Accordingly, we
conclude that the service provisions outlined in Section 2513 of the Adoption
Act and in Pennsylvania Orphans’ Court Rules 15.4 and 15.6 are not implicated
in this matter. These provisions apply only to notice of the hearing scheduled
upon the original filing of the petition. See In re Adoption of J.N.F., 887
A.2d 775, 781 (Pa. Super. 2005) (concluding that service of the original
petition for involuntary termination of parental rights, which invokes the trial
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court’s jurisdiction over the matter, is sufficient to put a parent on notice of
his rights even when an amended petition is later filed). Instead, we conclude
that the Pennsylvania Rules of Civil Procedure imposed a duty on the
prothonotary to provide notice of the continued hearing. See Pa.R.C.P.
236(a)(2) (providing that the prothonotary shall immediately give written
notice of an order to each party’s attorney of record or, if unrepresented, to
each party). See also Pa.R.C.P. 236, Note (explaining that except in certain
circumstances unrelated to this matter, Rule 236 does not prescribe a
particular method of giving notice).
Instantly, the trial court found that DHS properly served Father with the
original involuntary termination petitions and notice of the September 15,
2021 hearing, on June 8, 2021, more than three months in advance of the
hearing date. TCO at 16. See also 23 Pa.C.S. §2513(b) (requiring at least
ten days’ notice); Exhibit DHS-1 (providing proof of delivery at CFCF on June
8, 2021, via UPS Next Day service). Moreover, counsel for Father was present
at the September 15, 2021 hearing when the trial court announced the
October 27, 2021 continued hearing date. Id. The docket also indicates that
Father’s counsel was served electronically with the continuance order on
September 15, 2021, in accordance with Rule 236. Additionally, Father has
failed to provide any evidence that he notified the court of his desire to
participate in the October 27, 2021 hearing. See In re Adoption of J.N.F.,
887 A.2d. at 781 (noting that it is the burden of the incarcerated parent to
notify the trial court if he desires to participate in a termination hearing).
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Having determined that Father’s counsel was properly given notice of the
continued hearing date, and that Father was represented by counsel at the
October 27, 2021 hearing, we reject Father’s argument that the trial court
violated his right to due process. See In Interest of A.N.P., 155 A.3d at 66
(“Due process requires nothing more than adequate notice, an opportunity to
be heard, and the chance to defend oneself in an impartial tribunal having
jurisdiction over the matter.”).
Next, we address Father’s claims regarding the involuntary termination
of his parental rights to Children under sections 2511(a)(1), (2), (5), (8), and
(b) of the Adoption Act. We review a decree terminating parental rights in
accordance with the following standard:
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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
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.”
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Id. (quoting 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).
We are further guided by the following: Termination of parental rights
is governed by section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under [s]ection 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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 [s]ection 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 [s]ection 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
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With regard to section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. 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 the 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, in
cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. In re K.Z.S.,
946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Instantly, the trial court terminated Father’s parental rights pursuant to
sections 2511(a)(1), (2), (5), (8), and (b). We need only agree with the trial
court as to any one subsection of section 2511(a), as well as section 2511(b),
in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Herein, we analyze the court’s decision to terminate under section
2511(a)(1) 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:
(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.
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(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(a)(1), (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to section 2511(a)(1).
To satisfy [s]ection 2511(a)(1), the moving party must produce
clear and convincing evidence of conduct sustained for at least the
six months prior to the filing of the termination petition, which
reveals a settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties.
In re C.M.S., 832 A.2d 457, 461 (Pa. Super. 2003) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). In C.M.S.,
we further acknowledged the following statement by our Supreme Court:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A child
needs love, protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely passive
interest in the development of the child. Thus, this [C]ourt has
held that the parental obligation is a positive duty which requires
affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association with
the child.
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Because a child needs more than a benefactor, parental duty
requires that a parent ‘exert himself to take and maintain a place
of importance in the child’s life[.’]
C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.
1977)).
In the case of an incarcerated parent, this Court has stated:
[T]he fact of incarceration does not, in itself, provide grounds for
the termination of parental rights. However, a parent’s
responsibilities are not tolled during incarceration. The focus is
on whether the parent utilized resources available while in prison
to maintain a relationship with his or her child. An incarcerated
parent is expected to utilize all available resources to foster a
continuing close relationship with his or her children…. Although
a parent is not required to perform the impossible, he must act
affirmatively to maintain his relationship with his child, even in
difficult circumstances. A parent has the duty to exert himself, to
take and maintain a place of importance in the child’s life.
Thus, a parent’s basic constitutional right to the custody and
rearing of his child is converted, upon the failure to fulfill his …
parental duties, to the child’s right to have proper parenting and
fulfillment of his … potential in a permanent, healthy, safe
environment. A parent cannot protect his parental rights by
merely stating that he does not wish to have his rights terminated.
In re B., N.M., 856 A.2d 847, 855-56 (Pa. Super. 2004) (internal citations
and quotation marks omitted). “Thus, the fact of incarceration alone neither
compels nor precludes termination of parental rights. Parents must still
provide for the emotional and physical well-being of their children.” In re
Z.P., 994 A.2d 1108, 1120 (Pa. Super. 2010).
Here, Father claims that the trial court erred in terminating his parental
rights under section 2511(a)(1); however, he fails to develop this argument.
Father merely provides a bald statement that he “has not for a period of at
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least six months immediately preceding the filing of the petition evidenced a
settled purpose of relinquishing [his] parental claim or failed to perform
parental duties.” Father’s Brief at 8 (emphasis added). This statement is not
followed by any meaningful discussion or analysis. Thus, we deem Father’s
claim regarding the trial court’s findings under section 2511(a)(1) to be
waived. See Pa.R.A.P. 2119(b); Estate of Haiko, 799 A.2d at 161 (“Without
a reasoned discussion of the law … our ability to provide appellate review is
hampered. It is not this Court’s function or duty to become an advocate for
[the appellant].”).
Nevertheless, even if this issue had not been waived, we would conclude
that Father’s claim pertaining to section 2511(a)(1) is meritless. While the
record indicates that he had made some progress early on toward his SCP
goals,8 Father has not attended a hearing since October 15, 2019.
“Thereafter, Father became incarcerated and did not comply with SCP
objectives.” TCO at 21. Moreover, the trial court determined that “no
evidence was presented that [Father] utilized resources at his command while
in prison to continue and/or pursue a close relationship with … Children.” Id.See also id. at 20 (noting the testimony of CUA case worker, Alexis Adams,
that Father has not called to speak to Children, nor has he sent them any
letters or birthday gifts); id. at 19 (referencing Ms. Adams’s testimony that
____________________________________________
8See TCO at 11 (noting that Father was consistent with visitation and had
obtained appropriate housing at the time of the October 15, 2019 permanency
hearing).
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she has tried to contact Father at CFCF by mail, but that he has never
responded to any of her correspondence). Based on the foregoing, we would
agree with the trial court that “[t]he evidence is clear and convincing and
uncontradicted that Father abandoned these Children.” Id. at 21.
Finally, Father’s “Statement of Questions Presented” includes the issue
of whether the trial court erred in terminating his parental rights under section
2511(b), but Father appears to abandon this claim in his brief. Pennsylvania
Rule of Appellate Procedure 2119 provides that the argument section of an
appellate brief “shall be divided into as many parts as there are questions to
be argued; and shall have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a). “Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately developed are
waived.” See Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006)
(citation omitted).
Here, Father fails to include a separate argument section in his brief
regarding his claim under section 2511(b). In fact, the only portion of his
argument that could even be construed as relating to this subsection is a single
paragraph at the end of his argument pertaining to section 2511(a), in which
Father merely repeats his assertion that he was not afforded an opportunity
to be heard because DHS failed to effectuate service on him, and avers that
he was “actively endeavoring to reunify with his [C]hildren.” Father’s Brief at
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9-10 (referencing the trial court’s findings that visits with Children were going
well in 2019). However, there is no reference whatsoever to the “best
interests of Children” or to subsection 2511(b) in the body of the argument.
Hence, we deem this issue waived due to Father’s failure to develop his
argument. See Estate of Haiko, supra.Regardless, we would conclude that Father’s claim regarding the trial
court’s findings under section 2511(b) is meritless. As the trial court opined:
These Children have been in placement for about four years, and
it is about what is best for them going forward. The evidence is
clear and convincing and uncontradicted that Father abandoned
these Children. Father had some involvement in the early parts
of the case[,] and there is no evidence presented that the Children
have a relationship []or a bond with Father. The testimony
showed that S.C.B., Jr., would not even recognize Father if he saw
him. A.G.B.[] has never been in Father’s care[,] nor has any
evidence been presented that she is aware of who her [f]ather is.
Father has failed to remedy any of the issues that brought these
Children into [c]ourt, and these Children’s lives cannot be placed
on hold in the hope that Father will summon the ability to handle
the responsibilities of parenting.
TCO at 21.
Additionally, DHS stated that Children “deserve safety, stability, and
permanency.” DHS’s Brief at 24. DHS argues that there is no “unique and
irreplaceable” relationship between Father and Children and that Children
have mostly grown up without him. Id. at 23-24 (citing In re J.W., 578 A.2d
952, 958 (Pa. Super. 1990) (recognizing that a child’s bond with his parent is
“unique and irreplaceable” where the parent has nurtured the relationship,
providing for the child’s basic, physical needs, as well as his emotional
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development)). Maternal Cousin meets all of Children’s daily needs. Id. at
24. They have been placed with her since February of 2018. Father is not
present in their lives. Id. Thus, terminating Father’s parental rights will not
cause Children to suffer irreparable harm and will free them for future
adoption. Id.
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Children’s needs and
welfare, and the absence of any bond with Father, we would conclude that the
court did not abuse its discretion in terminating Father’s parental rights under
section 2511(b). See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa.
2012) (stating that appellate courts must defer to the trial court regarding
credibility determinations and weight assessments, so long as the factual
findings are supported by the record and the court’s legal conclusions are not
the result of an error of law or an abuse of discretion).
Accordingly, we affirm the decrees terminating Father’s parental rights
to Children, pursuant to 23 Pa.C.S. § 2511(a)(1) and (b).
Decrees affirmed.
Judge Dubow did not participate in the consideration or decision of this
case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2022
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