J-A14044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF N.F., A MINOR           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: C.F., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :     No. 4095 EDA 2017


               Appeal from the Decree Entered November 9, 2017
                in the Court of Common Pleas of Monroe County
                      Orphans’ Court at No.: 50 OCA 2017

BEFORE:      GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 07, 2018

       C.F. (Father) appeals from the decree of the Court of Common Pleas of

Monroe County (trial court), entered November 9, 2017, which involuntarily

terminated his parental rights to his daughter, N.F. (Child) (born in July 2008).

We affirm.

       S.W. (Mother) and Father separated in November of 2010.1 The trial

court entered a number of custody orders from then through April 21, 2011,

when the trial court granted Mother sole physical custody of Child and limited

Father’s partial custody to supervised visitation.          (See N.T. Hearing,

10/31/17, at 7-8).       Father availed himself of some supervised periods of

partial custody through March of 2012, when he was arrested and incarcerated


____________________________________________


1   The parties subsequently divorced and Mother has re-married.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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for a period of six months. (See id. at 8).2 Mother did not hear from Father

during this period of incarceration, nor did she hear from him upon his release.

(See id. at 9-10).

       At all times prior to and through the date of Father’s release from prison,

Mother lived at an address in Greentown, Pennsylvania, and maintained the

same telephone number; Father knew both the address and phone number.

(See id. at 7-9).

       Father filed to modify his support obligation between 2012 and 2014.

The trial court terminated his support order in 2014. (See id. at 10-11). At

no time, however, did Father file anything in his custody case, nor did he

resume visitation with Child following his release from prison.

       In October of 2014, some two years after Father’s release from prison,

Mother moved to Fort Bragg, North Carolina. Father had still not made any

effort to contact Child, despite the fact that Mother maintained the same

address and telephone number.             During the two years between Father’s

release from prison and Mother’s move to North Carolina, Father did not call

or send a letter to Child, did not acknowledge Child’s birthday, did not send

Child a gift, nor did anyone in Father’s family have any contact and/or

communication with Child. (See id. at 13-14).




____________________________________________


2 Our review of the record reveals that Father’s short period of incarceration
was not a material contributing factor to his failure or refusal to perform his
parental duties.

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       Mother maintained the same phone number when she moved to North

Carolina, and, since that time, has received approximately three text

messages from Father.          (See id. at 16-17).     The last message that she

received from Father concerning Child was sent in January 2016. (See id. at

17). There was no contact between Father and Child from March of 2012

through the date of the termination hearing. At the termination hearing, Child

had no recollection or knowledge of Father. (See id. at 19, 106-07).

       Mother    filed her     petition to     terminate   Father’s parental rights

involuntarily on June 28, 2017. The trial court held a hearing on that petition

on October 31, 2017, at which a guardian ad litem represented Child.3 Mother,

Father, Child’s stepfather, J.W., and Child testified at that hearing. 4 The trial

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3   This Court has recently held that we will address sua sponte the orphans’
court’s responsibility to appoint counsel pursuant to 23 Pa.C.S.A. § 2313(a).
See In re K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). Our Supreme Court,
in In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017) (plurality), held
that Section 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in a contested involuntary termination
proceeding. The Court defined a child’s legal interest as synonymous with his
or her preferred outcome. The L.B.M. Court did not overrule this Court’s
holding in In re K.M., 53 A.3d 781 (Pa. Super. 2012), that a guardian ad
litem who is an attorney may act as counsel pursuant to Section 2313(a), so
long as the dual roles do not create a conflict between the child’s best interest
and legal interest. See In re K.M., supra at 787-88. In this case, the trial
court appointed attorney Megan Reaser, Esquire, to act as Child’s guardian ad
litem. Our review of the record in this matter leaves us with no doubt that
Child’s preferred outcome is to be adopted by her stepfather. (See N.T.
Hearing, at 106-07). Therefore, we conclude that the trial court fulfilled its
responsibility to appoint counsel pursuant to 23 Pa.C.S.A. § 2313(a).

4   Child testified in camera, with counsel present, but without the parties.



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court entered its decree terminating Father’s parental rights on November 9,

2017. Father filed his timely notice of appeal and concise statement of errors

complained of on appeal on December 11, 2017.5

       Father presents the following issue for our determination: “Whether the

[trial court] abused its discretion and/or committed an error of law in

terminating Father’s parental rights pursuant to 2511(a)(1), (2), (5) and (8)

and 2511(b) of the Adoption Act[?]” (Father’s Brief, at unnumbered page 2).

       Our standard of review in the termination of parental rights 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).

       Here, the trial court terminated Father’s parental rights pursuant to 23

Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).         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), appeal denied, 863 A.2d 1141 (Pa. 2004).

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

governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:

____________________________________________


5  December 9, 2017 was a Saturday. Thus, Father’s notice of appeal, filed
the following Monday, was timely.

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      § 2511. Grounds for involuntary termination

            (a) General rule.—The rights of a parent in regard
            to a child may be terminated after a petition filed on
            any of the following grounds:

                                  *    *    *
            (1) The parent by conduct continuing for a period of
            at least six months immediately preceding the filing of
            the petition either has evidenced a settled purpose of
            relinquishing parental claim to a child or has refused
            or failed to perform parental duties.

                                  *    *    *

            (b)     Other      considerations.—The       court    in
            terminating the rights of a parent shall give primary
            consideration to the developmental, physical and
            emotional needs and welfare of the child. The rights
            of a parent shall not be terminated solely on the basis
            of environmental factors such as inadequate housing,
            furnishings, income, clothing and medical care if found
            to be beyond the control of the parent. With respect
            to any petition filed pursuant to subsection (a)(1), (6)
            or (8), the court shall not consider any efforts by the
            parent to remedy the conditions described therein
            which are first initiated subsequent to the giving of
            notice of the filing of the petition.

23 Pa.C.S.A. §§ 2511(a)(1) and (b).

      To terminate parental rights pursuant to section 2511(a)(1), the person

or agency seeking termination must demonstrate through clear and

convincing evidence that, for a period of at least six months prior to the filing

of the petition, the parent’s conduct demonstrates a settled purpose to

relinquish parental rights or that the parent has refused or failed to perform

parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.

Super. 2003).

      With respect to subsection 2511(a)(1), our Supreme Court has held:

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

Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998)

(citation omitted). Further,

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

In re N.M.B., 856 A.2d 847, 854-55 (Pa. Super. 2004), appeal denied, 872

A.2d 1200 (Pa. 2005) (citations omitted).

      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) (citation 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) (citations

omitted).

      The Adoption Act provides that a trial court “shall give primary

consideration to the developmental, physical and emotional needs and welfare

of the child.”   23 Pa.C.S.A. § 2511(b).    The Act does not make specific

reference to an evaluation of the bond between parent and child but our case

law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481,

484 (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).

      Before we begin our analysis, we must address the shortcomings of

Father’s brief. Father begins the argument section of his brief with citations

to cases that support the general principles of law that guide this Court in

analyzing the termination of parental rights.       (See Father’s Brief, at

unnumbered pages 6-7).      Father then states, “Based on the facts set forth

above, the trial court’s conclusion that termination of parental rights was

appropriate was unreasonable, requiring this Court to reverse the decision

concerning termination.” (Id. at unnumbered page 7). This is Father’s entire

argument. Father does not apply the law he cites to the facts of the case to

develop a legal argument that supports his claim that the trial court abused

its discretion when it terminated his parental rights. In sum, Father does not

attempt to develop a coherent legal argument to support his conclusion that

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the trial court erred in terminating his parental rights.    Therefore, he has

waived his 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), appeal

denied, 982 A.2d 509 (Pa. 2007) (citation and internal quotation marks

omitted); see Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super.

2006) (“It is well settled that a failure to argue and to cite any authority

supporting an argument constitutes a waiver of issues on appeal”) (citation

omitted).

      Moreover, Father’s issue would not merit relief. Father clearly refused

or failed to perform his parental duties. He made no effort to contact Child or

to inquire about Child since his incarceration in 2013, even though he knew

Mother’s phone number and, until she moved to North Carolina, her address.

In spite of the custody order in place in this matter, Father did not attempt to

enforce his right to visitation with Child after his release from incarceration.

The record before us contains sufficient credible evidence to support the trial

court’s finding that Father’s conduct demonstrated a settled purpose to

relinquish his parental rights, and it’s decision to terminate Father’s parental

rights pursuant to 23 Pa.C.S.A. § 2511(a)(1). See In re Adoption of M.E.P.,

825 A.2d 1266, 1272 (Pa. Super. 2003).

      Furthermore, we conclude that the termination of Father’s parental

rights is in Child’s best interest. Child has not seen Father or had any contact

with Father in any form since some time in 2013. When the trial judge asked

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Child if she ever remembered seeing Father before the day of the hearing, she

replied, “No.” (N.T. Hearing, at 107). When the trial judge asked her why

she was in court that day, she replied, “So the father that I live with can adopt

me and he will be my only father.” (Id. at 106). When asked if she looked

at him as her father, she replied, “Yes.” (Id. at 107). Child’s stepfather, J.W.,

testified that he is prepared to adopt Child.    (See id. at 54).    Father is a

complete stranger to Child.       There is no evidence in the record that

terminating Father’s parental rights will have any effect on Child, no less a

detrimental effect.   The trial court did not abuse its discretion when it

terminated Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(b).

      Accordingly, we affirm the decree of the Court of Common Pleas of

Monroe County that terminated Father’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1) and (b).

      Decree affirmed.

      President Judge Gantman joins the Memorandum.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/18




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