J-S43030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE T.S. AND E.S., MINORS                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: T.H.-H., NATURAL MOTHER

                                                       No. 364 WDA 2017


                 Appeal from the Orders Dated February 3, 2017
               In the Court of Common Pleas of Allegheny County
                  Orphans’ Court at No(s): CP-02-AP-208-2016
                                           CP-02-AP-209-2016

    IN RE: T.S., E.S., MINORS                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




    APPEAL OF: T.H-.H., NATURAL MOTHER

                                                      No. 365 WDA 2017


                Appeal from the Order Entered February 3, 2017
               In the Court of Common Pleas of Allegheny County
               Orphans' Court at No(s): CP-02-AP-0000208-2016
                                        CP-02-AP-0000209-2016

BEFORE: STABILE, SOLANO, and FITZGERALD, JJ.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 25, 2017

        Appellant, T.H.-H. (“Mother”), appeals the order that involuntarily

terminated her parental rights to her children, T.S. and E.S. (the “Children”),

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S43030-17


born in June 2013 and August 2014, respectively. We affirm the order on the

basis of the trial court’s opinion.

       In its opinion, entered April 5, 2017, the trial court fully and correctly

set forth the relevant facts and procedural history of this case. See Trial Ct.

Op. at 2-6. The Allegheny County Office of Children, Youth and Families

(“CYF”) became familiar with Mother in August 2014 when E.S. was born.

Mother had admitted to marijuana use while pregnant with E.S., and Mother

tested positive for marijuana after the birth of E.S. CYF offered in-home

services to assist Mother with her parenting and substance abuse issues.

Mother continued to use marijuana, admitted to smoking it in the presence

of the Children, and exhibited minimal parenting skills. As a result, an

Emergency Custody Authorization was issued on July 2, 2015, and the

Children were removed from Mother’s care. The Children were adjudicated

dependent on July 14, 2015. On September 15, 2015, the Children were

placed in a foster home, where they have remained to date.

       On November 9, 2016, CYF filed a petition for involuntary termination

of Mother’s parental rights to the Children. The trial court held a hearing on

that petition on February 3, 2017. On that same day, it entered its order

terminating Mother’s parental rights to the Children, pursuant to 23 Pa.C.S.

§ 2511(a)(2), (5), (8) and (b).1           On March 2, 2017, Mother filed timely

____________________________________________
1
  S.T.F.S. was identified as the Father of the Children. On November 9,
2016, CYF also filed a petition for involuntary termination of Father’s
(Footnote Continued Next Page)

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separate appeals with respect to her rights regarding T.S. and E.S. We

consolidated those appeals sua sponte.

        On appeal, Mother raises the following question:

        Did the trial court abuse its discretion and/or err as a matter of
        law in concluding that termination of Appellant’s parental rights
        would serve the needs and welfare of the Children pursuant to
        23 Pa.C.S. § 2511(b)?

Mother’s Brief at 7.

        In the argument section of her brief, Mother raises for the first time an

issue not presented in the trial court or in her Statement of Errors under

Appellate Rule 1925(b): that the Children were entitled to be represented by

appointed legal counsel, separate from the attorney guardian ad litem,

pursuant to In re L.B.M., 161 A.3d 172, 183 (Pa. 2017).

        In L.B.M., a mother’s parental rights to her two children were

terminated by the trial court. At trial, the mother filed a motion requesting

the appointment of independent counsel for the children. In the motion, the

mother cited 23 Pa.C.S. § 2313(a),2 and averred that the guardian ad litem’s


                       _______________________
(Footnote Continued)
parental rights. The trial court terminated Father’s parental rights to the
Children pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b) in its
February 3, 2017 order. Father has not appealed that aspect of the trial
court’s order.
2
    Section 2313(a) states:

        The court shall appoint counsel to represent the child in an
        involuntary termination proceeding when the proceeding is being
        contested by one or both of the parents. The court may appoint
        counsel or a guardian ad litem to represent any child who has
(Footnote Continued Next Page)

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position “may be adverse to the [children's] position.”                In re L.B.M., 161

A.3d at 176. After the trial court denied the mother’s motion, the mother

appealed and this Court affirmed.                The Supreme Court of Pennsylvania

reversed and remanded to this Court, holding that the failure to appoint

counsel for a child in a contested, involuntary termination of parental rights

proceeding was a structural error. Id. at 183.

      Here,    Mother      claims    that    the    trial   court’s   failure   to   appoint

independent counsel was a structural error in the proceedings and that a

remand for a new trial following the appointment of counsel for the Children

therefore is required.       Mother contends that her failure to raise this issue

before now should be excused because the Supreme Court had yet to rule in

L.B.M. at the time of trial and when Mother filed her Rule 1925(b)

Statement.

      On June 23, 2017, the guardian ad litem for the Children filed an

application for leave to file a supplemental brief pursuant to Pa.R.A.P.

2501(a), which this Court granted. In the supplemental brief, the guardian

ad litem responded to Mother’s appointment-of-counsel issue and argued

that, under this Court’s interpretation of L.B.M. in In re D.L.B., ___ A.3d

                       _______________________
(Footnote Continued)
      not reached the age of 18 years and is subject to any other
      proceeding under this part whenever it is in the best interests of
      the child. No attorney or law firm shall represent both the child
      and the adopting parent or parents.

23 Pa.C.S. § 2313(a).


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___, 2017 WL 2590893 at *5-6 (Pa. Super. 2017), a guardian ad litem may

serve as legal counsel for a child in an involuntary termination proceeding so

long as the child’s legal and best interests are not in conflict. D.L.B., 2017

WL 2590893 at *5. The guardian ad litem added that no conflict has been

identified here.

      In her reply brief, Mother does not argue that the Children’s legal and

best interests were in conflict.   Instead, Mother argues that this Court in

D.L.B. misapprehended the Supreme Court’s holding in L.B.M., and that this

Court should interpret L.B.M. to always require the trial court in an

involuntary termination of parental rights proceeding to appoint independent

legal counsel for the children.

      We respectfully disagree with Mother: a remand is inappropriate in

light of our holding in D.L.B., in which we held that L.B.M. does not require

appointment of independent legal counsel for a child in an involuntary

termination proceeding unless the child’s legal and best interests are in

conflict. D.L.B., 2017 WL 2590893 at *5. Although Mother contends that

D.L.B. was incorrectly decided, this panel is bound by that decision. Mother

does not argue that there was a divergence of the Children’s legal and best

interests in this case. Absent any indication of such a conflict, the court’s

appointment of the guardian ad litem to represent the Children was

appropriate.




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      Turning to Mother’s challenge to the trial court’s termination of her

parental rights, 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.

      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).

      The trial court terminated Mother’s parental rights pursuant to 23 Pa.

C.S. § 2511(a)(2), (5), (8) and (b). On appeal, Mother concedes that CYF

established clear and convincing grounds for termination of her parental

rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8); however, Mother

contends that the trial court abused its discretion and erred as a matter of


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law in concluding that termination of her parental rights would best serve

the needs and welfare of the Children pursuant to 23 Pa.C.S. § 2511(b).

Mother’s Brief at 12. Specifically, Mother asserts that the trial court focused

on her faults as a parent, rather than the welfare of the Children, in

concluding that Mother’s parental rights should be terminated.      Id. at 15.

Mother further argues that the trial court failed to address the effect that

termination of her parental rights would have on the Children. See id.

      Because Mother does not contest proof of grounds for termination of

her rights under Section 2511(a), we shall review the subject orders with

respect to Section 2511(b) only. See Nicholas v. Hoffman, 158 A.3d 675,

688 n.17 (Pa. Super. 2017) (issue not raised in Statement of Questions

Involved is not before us); Krebs v. United Refining Co. of Pa., 893 A.2d

776, 797 (Pa. Super. 2006) (stating that any issue not set forth in or

suggested by an appellate brief’s Statement of Questions Involved is

deemed waived under Pa.R.A.P. 2116(a)). Section 2511(b) provides:

      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(b). Under this provision, the trial court was required to

“give primary consideration to the developmental, physical and emotional

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needs and welfare        of the   child.”    This Court   has explained that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into [these] needs.”     In re C.M.S., 884 A.2d 1284, 1287 (Pa.

Super. 2005) (citation omitted), appeal denied, 897 A.2d 1183 (Pa. 2006).

      In assessing whether to terminate parental rights pursuant to Section

2511(b), “the trial court must take into account whether a natural parental

bond exists between child and parents.” In re C.S., 761 A.2d 1197, 1202

(Pa. Super. 2000) (en banc). However, the mere existence of an emotional

bond does not preclude termination of parental rights. In re E.M., 620 A.2d

481, 482 (Pa. 1993). Rather, the court must determine whether the bond

exists to such an extent that to sever it “would destroy an existing,

necessary and beneficial relationship.” In re C.S., 761 A.2d at 1202.     “In

cases where there is no evidence of any bond between the parent and child,

it is reasonable to infer that no bond exists.       The extent of any bond

analysis, therefore, necessarily depends on the circumstances of the

particular case.”     In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008)

(citation omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Paul E.

Cozza, we conclude that there is no merit to the issue Mother has raised in

her Rule 1925(b) Statement. The trial court’s opinion properly disposes of

the question presented.     See Trial Ct. Op. at 6-9 (finding that (1) Mother


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has never been able to make the progress necessary for the Children to be

returned to her care, (2) Mother has not made it a priority to visit the

Children during their 17 months in foster care and has been unable to

engage the Children or keep them safe during the times that she has visited,

(3) the court-appointed psychologist reported that the Children are largely

indifferent to Mother and have no bond with her, and (4) termination of

Mother’s parental rights meets the needs and welfare of the Children).

Accordingly, we affirm on the basis of the trial court’s opinion. The parties

are instructed to include the attached redacted trial court opinion to any

filings referencing this Court’s decision.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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