J-S75045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: M.B., C.B.,            :   IN THE SUPERIOR COURT OF
    JR.                                        :         PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: R.B.                            :      No. 1175 WDA 2017


                   Appeal from the Order Entered July 24, 2017
               in the Court of Common Pleas of Clearfield County,
                     Orphans’ Court at No(s): OC-3406-2017,
                                 OC-3407-2017

BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 26, 2018

       R.B. (“Mother”) appeals from the Order granting the Petition filed by

M.B. (“Paternal Grandmother”), involuntarily terminating Mother’s parental

rights to her minor children, M.B., a daughter born in September 2006, and

C.B., Jr., a son born in September 2008 (collectively, “the Children”).1 We

affirm.

       The trial court summarized the relevant factual and procedural history

of this case as follows:

       During the hearing in this case, it was established that Paternal
       Grandmother has had sole legal and physical custody of [M.B.]
       since August 2, 2007, when [M.B.] was approximately ten (10)
       months old. Paternal Grandmother obtained custody of [M.B.] as
       a result of Mother’s lack of housing. Mother and Father were,
       thereafter, allowed supervised visits with [M.B.] until 2009, when
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1  By separate Order, the Children’s Father, C.B. (“Father”), voluntarily
relinquished his parental rights. Father is not a party to the instant appeal,
nor did he file a separate appeal.
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       [M.B.] complained of Mother hurting her.        Following [an]
       investigation for sexual abuse, Mother’s supervised visits were
       suspended until [sometime] in 2010. Paternal Grandmother has
       also had sole legal and physical custody of [C.B., Jr.,] since
       January of 2010[,] after the child was placed in the care of
       Children, Youth and Family Services [(“CYFS”)].[2] Mother’s
       periods of supervised visitation with the Children were again
       suspended in 2012. Mother has not seen the Children since that
       time.

Trial Court Opinion, 7/24/2017, at 3-4 (footnote added).

       Paternal Grandmother filed a Petition to involuntarily terminate Mother’s

parental rights to the Children on March 21, 2017. The trial court conducted

a termination hearing on May 30, 2017, during which the Children’s interests

were represented by Courtney L. Kubista, Esquire, the Children’s Guardian ad

litem, and Adrianne M. Peters, Esquire.          During the termination hearing,

Paternal Grandmother testified on her own behalf and presented the testimony

of Yvonne Reedy, Ph.D., a licensed psychologist, and Autumn Bloom, a

licensed clinical social worker.        Mother did not present any evidence or

testimony at the hearing.3 On July 24, 2017, the trial court issued an Opinion

and Order granting Paternal Grandmother’s Petition, and terminating Mother’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b).




____________________________________________


2C.B., Jr., who was fifteen months old at the time, was removed from Mother’s
home by CYFS, after M.B.’s claim of sexual abuse at the hands of Mother was
substantiated. C.B., Jr., was thereafter placed in the care of Paternal
Grandmother.

3Mother failed to appear at the termination hearing, but was represented by
Matthew R. Swisher, Esquire, who cross-examined witnesses on her behalf.

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      Mother timely filed a Notice of Appeal, along with a Pa.R.A.P. 1925(b)

Concise Statement of errors complained of on appeal.          In lieu of filing an

opinion pursuant to Pa.R.A.P. 1925(a), the trial court referred this Court to its

Opinion accompanying the subject Order.

      Mother now raises the following issues for our review:

      1. In the absence of any supporting evidence, did the trial court
         erred [sic] in finding that [Paternal Grandmother] met her
         burden by clear and convincing evidence that [Mother]
         evidenced a settled purpose to relinquish her parental claims
         to the [C]hildren?

      2. Given that [Paternal Grandmother] testified that she
         deliberately excluded [Mother] from having contact with the
         [C]hildren, did the trial court further erred [sic] in finding that
         [Mother] refused or failed to perform any parental duties for
         the statutory period?

Mother’s Brief at 6.

      In reviewing an appeal from an Order terminating parental rights, we

adhere to the following standard:

      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.




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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “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.”

Id. (citation and quotation marks omitted).

      Satisfaction of any one subsection of section 2511(a), along with

consideration of section 2511(b), is sufficient for the involuntary termination

of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). In this case, the trial court terminated Mother’s parental rights under

23 Pa.C.S.A. § 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.

                                      ***

      (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 the parent shall not be terminated solely on the basis of
      environmental factors such as inadequate housing, furnishings,

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      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(a)(1), (b).

      To meet the requirements of section 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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008)

(citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The

court must then consider “the parent’s explanation for his or her conduct” and

“the post-abandonment contact between parent and child” before moving on

to analyze Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M.,

708 A.2d 88, 92 (Pa. 1998)).

      A parent does not perform his or her parental duties by displaying a

“merely passive interest in the development of the child.” In re B., N.M.,

856 A.2d 847, 855 (Pa. Super. 2004) (quoting In re C.M.S., 832 A.2d 457,

462 (Pa. Super. 2003)). Rather,

      [p]arental duty requires that the parent act affirmatively with
      good faith interest and effort, and not yield to every problem, in
      order to maintain the parent-child relationship to the best of his
      or her ability, even in difficult circumstances. 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

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         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.

Id. (citation omitted).

         Regarding   subsection     2511(a)(1),4     Mother   argues   that   Paternal

Grandmother failed to present sufficient evidence to prove that “Mother has

made a deliberate decision to terminate the parent-child relationship with

[the] Children at any time within the six months preceding the filing of the

[P]etition.”     Mother’s Brief at 11.         Rather, Mother argues that Paternal

Grandmother thwarted Mother’s attempts at parenting the Children. Id. at

10-12.     Mother asserts that Paternal Grandmother systematically excluded

Mother from the Children’s lives, and thus, “Mother had no opportunity during

the relevant time frame to exercise or demonstrate her parental duties.” Id.

at 14.

         The trial court disagreed, explaining its decision as follows:

         It would appear as though the only consistent parental figure in
         the Children’s lives has been Paternal Grandmother. Paternal
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4 We observe that the Argument section of Mother’s brief is not “divided into
as many parts as there are questions to be argued.” Pa.R.A.P. 2119(a).
Instead, Mother divided her Argument section to separately address various
subsections of section 2511(a). Nevertheless, because Mother’s discussion of
section 2511(a)(1) is fairly suggested by the issues set forth in her Statement
of Questions Involved, we will address her claims. See Pa.R.A.P. 2116(a)
(stating that “[n]o questions will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.” (emphasis
added)). Additionally, because the trial court terminated Mother’s parental
rights under 23 Pa.C.S.A. § 2511(a)(1) and (b), we need not address Mother’s
arguments relating to the remaining subsections of section 2511(a).

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      Grandmother has had sole legal and physical custody of the
      Children for nearly their entire lives. She has provided the
      Children with stability, which includes making sure the Children
      have daily routines, providing for the Children’s daily needs,
      ensuring that the Children are involved in extracurricular
      activities, and taking the Children to visit extended family
      members. Mother, on the other hand, has not performed any
      parental duties for nearly five (5) years. Further, with the
      exception of one letter sent to the Children through Mother’s
      counsel, Mother has also failed to send the Children gifts, cards or
      letters, and has not contacted the Children via telephone.

      Mother claims that Paternal Grandmother has denied Mother any
      contact with the Children; however, Mother’s limited attempts to
      reach out to her Children tell a very different story. It would
      appear that Mother has made virtually no efforts to contact her
      Children, and has otherwise failed entirely at undertaking her
      parental duties. The [c]ourt would further note that Mother did
      not appear at the hearing on this matter, despite having nearly
      five (5) weeks to make transportation arrangements. In this light,
      the [c]ourt is satisfied that Mother has evidenced a settled
      purpose of relinquishing her parental claims to the Children, and
      has refused or failed to perform any parental duties for at least
      six (6) months prior to the filing of the instant Petition.

Trial Court Opinion, 7/24/17, at 4-5.

      Our review of the record supports the trial court’s findings. Paternal

Grandmother obtained custody of Children based upon concerns regarding

Mother’s lack of housing and the substantiated claim that Mother had sexually

abused M.B. Paternal Grandmother testified that Mother has failed to fulfill

her parental duties since her last contact with the Children in 2012. See N.T.,

5/30/2017, at 45.    Specifically, Mother utilized her attorney on only one

occasion to request a picture of the Children from Paternal Grandmother in

February 2017. See id. at 51. By the termination hearing, the Children had

waited over five years for a permanent and stable home. Based upon Mother’s

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absence from the Children’s lives, her relationship with the Children, if any,

lacks security, stability and safety.

       Likewise, we reject Mother’s claim that the trial court erred in

terminating her parental rights because Paternal Grandmother had thwarted

her attempts at exercising or demonstrating her parental duties. “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 re B., N.M., 856 A.2d at 855.

Because Mother failed to act affirmatively in order to maintain her relationship

with Children, even under allegedy difficult circumstances created by Paternal

Grandmother, as well as those she created herself, we find that Paternal

Grandmother proved the statutory elements for termination under section

2511(a)(1).5     See id. (explaining that a parent “must exercise reasonable

firmness in resisting the obstacles” which limit his or her ability to maintain a

parent/child relationship).


____________________________________________


5 Instantly, Mother made no effort to challenge the termination of her parental
rights pursuant to section 2511(b) in the Argument section of her brief, nor
did she include any such challenge in her Concise Statement or Statement of
Questions Involved. Thus, we conclude that Mother waived any challenge as
to section 2511(b). See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super.
2017) (concluding that appellant waived her challenge in regard to section
2511(b) by failing to include it in her concise statement and statement of
questions involved).    Moreover, even if Mother had preserved such a
challenge, we would conclude that the trial court’s determination, i.e., that
the termination of Mother’s parental rights was in the Children’s best interest,
see Trial Court Opinion, 7/24/17, at 5-6, is supported by the record and free
of legal error. See In re T.S.M., 71 A.3d at 267.

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      Thus, the record confirms that Mother refused or failed to perform

parental duties during the six months immediately preceding the filing of the

termination petition. It was within the trial court’s discretion to accept the

testimony of Paternal Grandmother, and to conclude that Mother made no

effort to contact Children during the relevant six months. See In re T.S.M.,

71 A.3d at 267. Because we discern no abuse of discretion or error of law in

the trial court’s determination, we affirm the Order terminating Mother’s

parental rights under section 2511(a)(1) and (b).

      Order affirmed.

      Judge Ott joins the memorandum.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2018




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