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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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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)
-2- J-S43030-17
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).
-4- J-S43030-17
___, 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
-9- Circulated 07/31/2017 03:22 PM