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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: T.J., A MINOR                      :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
APPEAL OF: T.C., NATURAL MOTHER           :
                                          :        No. 1724 WDA 2014
                                          :

                 Appeal from the Order Entered October 1, 2014
                 in the Court of Common Pleas of Butler County
                       Civil Division, at No. D.P. 56 of 2012

IN RE: T.J., ADOPTION OF T.J., A          :    IN THE SUPERIOR COURT OF
MINOR                                     :          PENNSYLVANIA
                                          :
APPEAL OF: T.C., NATURAL MOTHER           :
                                          :        No. 1725 WDA 2014
                                          :

              Appeal from the Decree Entered September 30, 2014
                 in the Court of Common Pleas of Butler County
                       Civil Division, at No. D.P. 52 of 2013

IN RE: T.J.                               :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
APPEAL OF: T.J.                           :
                                          :        No. 1893 WDA 2014
                                          :

                  Appeal from the Decree September 30, 2014
                 in the Court of Common Pleas of Butler County
                       Civil Division, at No. D.P. 52 of 2013

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.∗

MEMORANDUM BY PANELLA, J.                              FILED JUNE 09, 2015




∗
    Retired Senior Judge assigned to the Superior Court.
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      In these consolidated1 and related appeals, T.C. (Mother) and T.J.

(Father) appeal the decrees of the Court of Common Pleas of Butler County,

entered September 30, 2014, respectively, that terminated their parental

rights to their daughter, T.J. (Child), born in December 2009. Mother also

appeals the trial court order entered October 1, 2014, that changed Child’s

goal to adoption. We affirm.

      Butler County Children and Youth Services (CYS) took custody of Child

on June 29, 2012, upon finding that she lacked proper parental care and

control. At the time of her placement, Father was incarcerated, and Mother

had been arrested on charges of possession with intent to deliver a

controlled substance.

      Mother did not provide care for Child for nearly a year before CYS

assumed custody, having given guardianship of Child to her maternal

grandmother (Maternal Grandmother) on July 26, 2011.            After Maternal

Grandmother decided she was no longer able to care for Child, she placed

Child with a family friend. Child was living with this family friend at the time

she entered placement with CYS. That family friend admitted she would not

be able to pass the required clearances for placement through CYS because

of her criminal background.




1
  This Court sua sponte consolidated Mother’s appeals, Docket Nos. 1724
and 1725 WDA 2014. We address Mother’s and Father’s appeals in this
combined memorandum simply for ease of disposition.


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     In July 2012, CYS placed Child with the child’s maternal great-

grandmother (Maternal Great-Grandmother) but, about two months later, in

September 2012, CYS removed Child from Maternal Great-Grandmother’s

home and placed her in a foster home, where she remained at the time of

the hearing in this matter. Child has not lived with Mother since July 2011.

At the time of the hearing, Mother had not seen Child since February 2013,

when Child was three years of age.

     CYS has been involved with Mother since 2003. Mother has had three

of her other children placed in CYS’s custody, two of whom have been

adopted, and the third who has been placed with the child’s paternal

grandmother.

     Mother was arrested the day CYS assumed custody of Child.              She

spent approximately two years in jail, and was released in the spring of

2014. During her incarceration, Mother participated in the Parole Program,

money management classes, anger resolution class, Impact of Crime on

Victims, and a drug and alcohol program. Mother did not participate in any

parental care classes or parenting techniques classes while incarcerated.

     When Child resided with Maternal Great-Grandmother, Mother had

contact with Child via telephone and letters. Once Child was placed in her

current foster home, the phone calls stopped, but Mother continued to send

Child about one or two letters per month.




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      Since her release, the CYS caseworker has not had any contact with

Mother’s parole officer. Mother had not provided the caseworker with any

information regarding the terms of her release or anything regarding her

drug use. Mother has not completed any drug screens with the caseworker,

although she testified that she is completing drug screens with her parole

officer.

      Mother called Child’s caseworker on May 13, 2014, and set up a

meeting with the caseworker.          Mother, however, did not keep that

appointment, and did not provide a reason for failing to attend. Mother did

not attempt to reschedule.

      Mother did not present any evidence that she is complying with her

Permanency Plan.      The caseworker has attempted to call Mother and

Mother’s family members, but has been unable to leave any messages due

to their voice mailboxes always being full.

      The trial court found the following.

      Mother testified that she did not contact the caseworker again
      because she was ‘too upset’ and was ‘denied visits’ with Child
      and therefore wanted to go through her lawyer. No one on
      behalf of Mother ever contacted the caseworker following the
      initial contact by Mother to set up the meeting that Mother failed
      to attend. Mother claimed the caseworker was lying in her
      testimony, and that Mother has done everything she has been
      asked to do. Mother places the responsibility on everyone else
      and fails to take any responsibility herself. The [c]ourt finds her
      testimony as to the caseworker not credible.

Trial Court Opinion 1/6/15, at 4-5.




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     At the time of the hearing, Mother was living with Maternal

Grandmother, and her only source of income was public assistance.

     Child is currently doing well in her foster home, and is bonded to her

foster parents, whom she calls mom and dad.        Child is involved in family

activities and is close to her numerous cousins.    Developmentally, Child is

doing well and is on track.    Child never mentioned Father in any of her

therapy sessions and only mentions Mother in a negative light. Child is in a

stable, pre-adoptive foster home, where she is thriving.

     Father lived with Child until his arrest in January 2011. That was the

last time Child resided with Father. Father has not provided any monetary

support to Child since his incarceration. Father was incarcerated when Child

entered CYS custody. Father only had contact with Child a couple of times

when she lived with Maternal Grandmother, and that was his only contact

with Child until he was incarcerated. At the time of the hearing, Father was

incarcerated at SCI Mahanoy—and had been for the previous three years.

Prior to that, Father had been incarcerated for a combined total of

approximately nine years; each time the charges were related to drugs and

drug dealing.

     Father has participated in a drug and alcohol program and he attends

Narcotics Anonymous meetings once a week. Father has not participated in

any parenting classes, nor has he had any therapy or counseling for his

mental health.   He testified that he is not sure if parenting classes are



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available and that his counselor has not spoken to him about any of those

options. Father has not signed any releases for his medical treatments or

counseling. If released from incarceration, Father will be required to live at

a halfway house.    He does not know how long he would have to stay at

halfway house, and does not know if Child would be permitted to reside

there as well.

      Father’s permanency plan required Father to participate in parenting

programs that may be available to him in jail. Father stated that that he has

not inquired about any parenting classes or additional counseling outside of

the drug and alcohol counseling he was attending. Father failed to sign the

releases that would permit CYS to contact his prison counselor to discuss his

progress.

      The trial court found that Father had made minimal to no compliance

or progress towards alleviating the circumstances that necessitated Child’s

placement in that he was not communicating with his attorney or CYS nor

was he complying with the Permanency Plan.

      Child’s caseworker, Jessica Fend, testified that she has not had any

contact with Father since her assignment to Child’s case in August 2013, and

she has not received any documentation about Father’s participation in

classes.    According to Ms. Fend, Father has not performed any parental

duties since her assignment to Child’s case.         The trial court found,

“[A]lthough [his] intentions are good, Father can produce no evidence that



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he has [participated] or will participate in the Permanency Plan or that the

circumstances that led to Child’s detention will be remedied.”      Trial Court

Opinion 1/6/15, at 5.

        The trial court entered its decree terminating Mother’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5) and (8) on September 30, 2014

and entered its order changing Child’s goal to adoption on October 1, 2014,

and.    Mother filed her notice of appeal and concise statement of errors

complained of on appeal on October 21, 2014.

        The trial court entered its decree terminating Father’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8) on September 30,

2014.     Father filed his timely notice of appeal and concise statement of

errors complained of on appeal on October 30, 2014.

        Our standard of review is as follows.

        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.




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           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).

     We note our standard of review of a change of goal is as follows.

     When we review a trial court’s order to change the placement
     goal for a dependent child to adoption, our standard is abuse of
     discretion. In order to conclude that the trial court abused its
     discretion, we must determine that the court’s judgment was
     manifestly unreasonable, that the court did not apply the law, or
     that the court’s action was a result of partiality, prejudice, bias
     or ill will, as shown by the record.

In the Interest of S.G., 922 A.2d 943, 946 (Pa. Super. 2007).

     Requests to have a natural parent’s parental rights terminated are

governed by 23 Pa.C.S.A. § 2511, which 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:

                                    ...

        (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.



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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.A. § 2511.     In order to affirm the termination of parental

rights, this Court need only agree with any one subsection of Section

2511(a).   See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).

      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) (citations omitted). 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.




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

citations omitted).

      The fundamental test in termination of parental rights under Section

2511(a)(2) was long ago stated in the case of In re Geiger, 331 A.2d 172

(Pa. 1975). There the Pennsylvania Supreme Court announced that under

what is now Section 2511(a)(2), that the petitioner for involuntary

termination must prove “[t]he 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.” Id., at 173.

      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, 484-485 (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.     See In re K.K.R.-S., 958 A.2d 529,

533 (Pa. Super. 2008).

      In regard to incarcerated persons, our Supreme Court has stated:




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            [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.

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

                                       ...

             [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.

Id., at 830-831.2



2
 The Supreme Court cited its decision in In re: Adoption of McCray, 450
Pa. 210, 331 A.2d 652, 655 (1975), for the proposition that termination may


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        Our examination of Mother’s brief reveals that she has waived the

issues she raised on appeal. In the argument section of her brief, Mother

does no more than re-examine the facts of this case and asks us to reach a

different conclusion. Mother fails to support her argument by any citation to

legal authority. Mother makes no effort whatsoever to link the facts of her

case to the law.   In sum, Mother does not attempt to develop a coherent

legal argument to support her conclusion that the trial court erred in

terminating her parental rights and she has, therefore, waived that

argument.     “The failure to develop an adequate argument in an appellate

brief   may   result   in   waiver   of   the   claim   under   Pa.R.A.P.   2119.”

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007)

(internal citation omitted).     “[A]rguments which are not appropriately

developed are waived. Arguments not appropriately developed include those

where the party has failed to cite any authority in support of a contention.”

Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (internal

citations omitted). See Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa.

Super. 2006) (stating, “[i]t is well settled that a failure to argue and to cite

any authority supporting an argument constitutes a waiver of issues on

appeal”).




be appropriate for an incarcerated parent who has failed to perform his
parental duties for a six-year period. See id., at 828.


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      In any event, the record reveals that the trial court’s decision to

terminate Mother’s parental rights under Sections 2511(a)(2) and (b), and

to change Child’s goal to adoption is supported by clear and convincing

evidence, and that there was no abuse of the trial court’s discretion.

      Turning to Father’s appeal, with the exception of his final issue, in

which he complains that CYS failed to assist him in maintaining a

relationship with Child, Father has also failed to support his argument in his

first three issues with any citation to legal authority and has waived those

issues. See Commonwealth v. Beshore, supra.; In re Child M., supra.

      In his final issue, Father relies on this Court’s decision in In the

Interest of D.C.D., 91 A.3d 173 (Pa. Super. 2014), to argue that we should

reverse the trial court because CYS failed to assist Father to establish and

maintain a relationship with Child. This Court’s decision in D.C.D., did stand

for the proposition that a trial court could consider whether an agency such

as CYS had made reasonable efforts to maintain a parent’s relationship with

a child.   This Court’s decision in D.C.D., however, was reversed by our

Supreme Court in In re D.C.D., 105 A.3d 662 (Pa. 2014), in which the

Court stated, “[n]either subsection (a) nor (b) [of 23 Pa.C.S.A. § 2511]

requires a court to consider the reasonable efforts provided to a parent prior

to termination of parental rights.” Id., at 672.

      Father argues that CYS failed to assist him because it never offered

him visits with Child while in prison.   Father’s argument would fail even if


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this Court’s decision in D.C.D. were still our law. We quote the trial court’s

analysis of this issue, with approval.

             Father did not attempt to maintain contact with the
      caseworker or Child. He did not reach out and send letters or
      gifts to Child nor did he communicate via telephone with her.
      CYS gave Father a Permanency Plan which listed all the
      requirements Father needed to do in order to maintain a
      relationship with Child, but he failed to perform any of the said
      requirements. The record does not support the claim that there
      was overwhelming evidence that showed the Agency failed to
      assist Father establish or maintain a relationship with Child or
      that the Agency’s conduct prevented the establishment of any
      bond between Father and Child. The record supports the
      opposite.

            Furthermore, Father was represented by counsel
      throughout the Dependency Hearing. At trial, Father failed to
      present any evidence that, during any of the Permanency Review
      Hearings, he or his counsel expressed a concern about or ever a
      question about how to communicate with Child while
      incarcerated. In fact, when he participated at the hearing, he
      expressed his full understanding and agreement with Child’s
      Plan. There is no evidence to support Father’s claim that CYS
      impaired his ability to write letters or otherwise communicate
      with Child. Rather, Father did nothing to promote a relationship
      with Child while incarcerated, and then tried to blame CYS for his
      lack [sic].

Trial Court Opinion 1/6/15, at 18.

      The record reveals that the trial court’s decree terminating Father’s

parental rights under Sections 2511(a)(2) and (b), and its order changing

Child’s goal to adoption are supported by clear and convincing evidence, and

that there was no abuse of the trial court’s discretion. We, therefore, affirm

the decrees terminating the parental rights of Mother and Father, and the

order changing Child’s permanency goal to adoption.



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     Order at 1724 affirmed. Decrees at 1725 WDA 2014 and 1893 WDA

2014 affirmed.

     Judge Lazarus joins in the memorandum.

     Judge Strassburger files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date:6/9/2015




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