In The Interest of: X.A.Z v. Appeal of: C.B.

• Court: Superior Court of Pennsylvania
• Decided: September 17, 2018
• Docket: 644 EDA 2018
• Status: Unpublished

Opinion

J-S48031-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: X.A.Z.V., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: C.B., MOTHER : : : : : No. 644 EDA 2018

Appeal from the Decree Entered January 25, 2018 in the Court of Common Pleas of Philadelphia County Family Court at Nos: 51-FN-00320-2017 CP-51-AP-0000837-2017

BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2018

C.B. (“Mother”) appeals from the decree entered on January 25, 2018,

in the Court of Common Pleas of Philadelphia County, which granted the

petition of the Philadelphia Department of Human Services (“DHS”) and

involuntarily terminated her parental rights to her minor daughter, X.A.Z.V.

(“Child”), born in December 2016, pursuant to Section 2511(a)(1), (2), (5),

and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511, and changed the

permanency goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S.A. §

6351.1 After careful review, we affirm. ____________________________________________

1 The parental rights of R.B. (“Father”) were terminated on April 19, 2018. Father is not a party to this appeal and has not filed his own appeal. Additionally, we note that Mother does not challenge the goal change, and has thus waived it for purposes of appeal. See Krebs v. United Refining Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that failure to

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S48031-18

We adopt the following factual and procedural history from DHS’

statement of facts, as it was stipulated to by both parties and entered into

evidence. (See DHS Statement of Facts, at 1-4). DHS became involved with

the family in February 2017, after receiving a Child Protective Services (“CPS”)

report that alleged a history of domestic violence between Father and Mother.2

The report alleged that during a domestic dispute, Father punched Mother in

the face and tried to remove Child from Mother’s arms. Father attempted to

remove Child from the home without appropriate clothing, and the police were

contacted. Following the incident, Mother did not obtain a Protection From

Abuse (“PFA”) order pursuant to 23 Pa.C.S.A. §§ 6101-6122, and allowed

Father to return to the home.

On February 7, 2017, DHS visited the family at maternal grandmother

(“Grandmother’s”) home, where Mother was uncooperative and refused to

allow them entry. Grandmother let DHS into the home and confirmed the CPS

report allegations, and additionally stated that Father was in the home, that

domestic violence was ongoing between Father and Mother, and that she did

____________________________________________

preserve issues by raising them both in concise statement of errors complained of on appeal and statement of questions involved portion of the brief on appeal results in waiver of those issues).

2 The report also indicated that Mother suffered from an unspecified mental illness, for which she was receiving treatment. The record does not reveal the mental illness from which Mother allegedly suffered, nor does it indicate whether Mother continued to receive appropriate treatment, or whether she was noncompliant.

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not feel safe in the home. Father came downstairs, but was hostile towards

DHS and stated he would not allow them to take Child. Mother spoke with

DHS and stated that Father had never harmed Child or her sibling, N.B.3 DHS

obtained an order of protective custody (“OPC”) and removed Child and N.B.

from the home. Mother and Father were escorted from the home by the

police.

On February 10, 2017, the court convened a shelter care hearing. The

OPC was lifted and Child’s temporary commitment to DHS was ordered to

stand. A stay-away order was issued against both parents as to

Grandmother’s home, but they were granted supervised visitation with Child

at DHS.

On February 16, 2017, Child, who had initially been placed with

Grandmother, was removed and placed in foster care. Parents’ visitation was

suspended based on a DHS report of aggressive behavior at a supervised visit

and in the courtroom.

On March 9, 2017, Child was adjudicated dependent and fully committed

to the custody of DHS. At that time, the court suspended the visitation of

both parents until they were engaged in dual diagnosis treatment. Both

parents were referred to Achieving Reunification Center (“ARC”). That same

day, both parents attended a single case plan (“SCP”) meeting. Mother’s

3The record provides no further details regarding N.B.’s age, biological father, or whether Mother’s parental rights to N.B. also were terminated, either voluntarily or involuntarily.

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objectives were to: (1) attend domestic violence victim counseling; (2) attend

anger management; (3) develop coping skills to prevent violent outbursts; (4)

attend and complete parenting classes; (5) comply with Community Umbrella

Agency (“CUA”) home assessments; (6) have contact with Child per court

order at DHS for visitation; (7) sign all authorizations and consent forms; (8)

confirm visits within twenty-four hours; (9) complete dual diagnosis

evaluation and follow all recommendations; and (10) to submit to drug

screening and three random drug screens in advance of the next court date.

Neither Mother nor Father reported to ARC, and their referrals were

closed due to their non-participation. In April 2017, DHS attempted to conduct

a home assessment. At first, Father refused to allow entry to the home. When

the assessment was eventually conducted, the home was deemed

inappropriate: both parents had a large quantity of marijuana in plain view,

and they stated they would continue to use it.

On May 18, 2017, the court convened a permanency review hearing and

determined that foster placement continued to be necessary and appropriate,

and that neither parent was in compliance with a permanency plan for

reunification. Both parents tested positive for cannabis and had not completed

screening or a dual diagnosis assessment. Visits remained suspended until

the parents were compliant and engaged in dual diagnosis treatment, and the

court ordered them to engage with previously ordered services.

On August 17, 2017, the court convened a permanency review hearing

and made the same determination regarding foster placement. Both parents

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were in minimal compliance with the permanency plan, and had not engaged

in drug and alcohol treatment, mental health treatment, or domestic violence

counseling, and Mother twice tested positive for cannabis. Although both

parents were attending parenting courses at ARC and Mother was attending

anger management classes, CUA was forced to change the family’s case

manager due to safety concerns following interactions with both parents.4 On

August 21, 2017, DHS filed a petition seeking to terminate Mother’s parental

rights to Child and change her permanency goal to adoption.

In November 2017, the court convened a goal change/termination

hearing. (See N.T. Hearing, 11/09/17, at 1). Mother and Father appeared,

both represented by counsel. Child was represented by William Calandra,

Esquire, as legal counsel, and by Alexandra Adams, Esquire, as guardian ad

litem. (See id. at 2). Mother stipulated to the facts in DHS’ petitions and the

exhibits were admitted. (See id. at 20, 37-38). Braheem Powell, case

manager for Turning Points for Children, testified that Child was in a

confidential foster home, was receiving early intervention, and was being seen

by a hematologist for a low white blood cell count. (See id. at 29-31). At the

time of the hearing, Child had been in pre-adoptive foster care for eight

months. (See id. at 31).

Father’s counsel objected to going forward with the goal change because

the case had only been open nine months and Father had not been properly

4 The nature of these interactions was not apparent from the record.

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served; Mother’s counsel joined in the objection. (See id. at 5). The hearing

was continued so that an additional placement resource, a family friend, could

be explored, and so that voluntary relinquishment forms could be prepared

for both parents. (See id. at 17-22). The court indicated that the forms

should be generated by November 17, 2017, and that the parents would have

until December 8, 2017, to sign them. (See id. at 22).

On January 25, 2018, the court again convened a hearing regarding the

petition as to Child. Mother appeared, represented by counsel. (See N.T.

Hearing, 1/25/18, at 1). Child was again represented by Attorney Calandra

and Attorney Adams as legal counsel and GAL, respectively. (See id.).

Counsel for DHS, Bennette Harrison, Esquire, indicated that her office had

provided CUA with voluntary relinquishment forms on November 10, 2017.

(See id. at 3). Mario D’Adamo, Esquire, representing Mother, informed the

court that Mother was willing to sign the relinquishments. (See id. at 3-4).

The court inquired as to why the forms were not signed when it had been

attempting to call the case for three hours and that the “deadline” to sign the

forms was in December 2017, and refused to allow Mother to sign. (Id. at 4).

The court referenced the testimony of Mr. Powell at the November 2017

listing; Mr. Powell further indicated the Child would not be irreparably harmed

by termination. (See id. at 8-9). No additional testimony was taken. Both

counsel for Child and the GAL joined DHS’ petition seeking to terminate

Mother’s parental rights. (See id. at 7). Mother’s counsel did not object to

the involuntary termination, but did reiterate that his client was willing to sign

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the voluntary relinquishment. (See id. at 11). The court granted the petition

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b), and entered a decree

involuntarily terminating Mother’s parental rights. The court also entered an

order changing Child’s permanency goal to adoption.

On February 26, 2018, Mother contemporaneously filed a timely notice

of appeal and a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b).5 The court filed an opinion on May 4, 2018.

See Pa.R.A.P. 1925(a)(2)(ii).

On appeal, Mother raises the following issues for our review:

1. Whether the trial court erred by disallowing Mother the opportunity to voluntarily relinquish her parental rights?

2. Whether the trial court erred by denying [Mother’s] constitutional rights to voluntarily give up her parental rights under substantive due process analysis?[6]

(Mother’s Brief, at unnumbered page 4) (unnecessary capitalization and

answers omitted).

5Because the thirty-day appeal period from the trial court’s January 25, 2018 order ended on Saturday, February 24, 2018, Mother had until Monday, February 26, 2018, to file her notice of appeal. See 1 Pa.C.S.A. § 1908; Pa.R.A.P. 903(a).

6 Despite identifying a substantive due process analysis as an issue in her statement of questions, Mother does not develop this issue in her brief or cite any case law in support of it. Accordingly, she has waived this issue for purposes of appeal. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011) (noting that appellate brief which fails to provide any discussion of claim with citation to relevant authority or fails to develop issue in meaningful fashion capable of review waives the claim); see also Pa.R.A.P. 2119(a)-(b).

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We review cases involving the termination of parental rights according

to the following standards.

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.

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

omitted).

Mother does not challenge the court’s factual findings regarding the

termination. (See Mother’s Brief, at unnumbered pages 7-9). Instead, she

argues that the court erred by refusing to allow her to voluntarily relinquish

her parental rights. (See id. at 9). Due to the involuntary termination of her

rights, Mother would be subject to a finding of aggravated circumstances as

to any future children, relieving DHS from the burden of providing services in

support of reunification. (See id.). She argues that “the time element was

of no moment to the court[’]s consideration[,]” and that it “had no bearing on

whether Mother was willing or not willing to sign.” (Id.).

Mother cites no specific case law in support of the proposition that the

court was required to allow her to sign the voluntary relinquishment. (See

id.). She cites generally to In re A.J.B., 797 A.2d 264 (Pa. Super. 2002), in

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which this Court affirmed the imposition of a reasonableness standard with

respect to the agency’s refusal to consent to mother’s petition for voluntary

relinquishment. (See id.); see also A.J.B., supra at 267-69. In A.J.B., this

Court disapproved of the agency’s refusal solely so that it could impose

aggravated circumstances in the future. See A.J.B., supra at 268 (noting

public policy interest in dispensing with requirement of agency’s consent to

voluntary relinquishment and allowing parents to voluntarily relinquish their

parental rights).

With regard to voluntary relinquishment, the Adoption Act provides, in

pertinent part:

When any child under the age of [eighteen] years has been in the care of an agency for a minimum period of three days or, whether or not the agency has the physical care of the child, the agency has received a written notice of the present intent to transfer to it custody of the child, executed by the parent, the parent or parents of the child may petition the court for permission to relinquish forever all parental rights and duties with respect to their child.

23 Pa.C.S.A. § 2501(a). “Typically, voluntary relinquishment is the

mechanism utilized by parents who believe they are physically or mentally

unable to raise a child and therefore wish to place the child for adoption.” In

re J.F., 862 A.2d 1258, 1260 (Pa. Super. 2004).

Since A.J.B., our Court has noted that an agency’s refusal to consent to

voluntary relinquishment in order to expedite future termination proceedings

is not an improper or impermissible motive, and that only the trial court can

determine the efficacy of either type of petition and find in favor of one

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excluding the other. See In re Adoption of A.M.B., 812 A.2d 659, 667 (Pa.

Super. 2002) (noting that permitting an order of voluntary relinquishment

after sufficient evidence for decree of involuntary termination is presented and

reasonable effort requirements are met is incongruous and contrary to federal

and state policy). Additionally, the agency’s actions should be examined

under a reasonableness standard. See A.J.B., supra at 267-69. “Upon

appellate review of that decision, this Court would exercise its function, as

stated above, to determine if the decision was free of legal error and the

credibility determinations and factual findings are supported by the record.”

A.M.B., supra at 667.

Here, the trial court offered Mother the opportunity to sign the voluntary

relinquishment and DHS consented, generating the voluntary relinquishment

forms. Mother did not sign them within the time provided and, as of the final

termination hearing, still had not signed them. Although there is no time

requirement outlined in the statute, it is within the court’s discretion to

determine which petition—voluntary or involuntary—should be granted. See

id.

A.M.B. provides two further salient considerations. First, that prior to

the filing of the petitions and up to the termination considerations, the parent

is afforded a full panoply of due process rights at all stages, including:

“extensive legal and social work, child welfare and court resources and time

already had been expended, and sometimes initiated years before the

termination proceeding. Filing of dependency petitions, hearings in juvenile

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court, adjudication of the adoptees as dependent children, and following

dispositional hearings, permanency hearings, involuntary termination

petitions . . . .” Id. at 670 (footnotes and emphasis omitted). Second, that

where the agency presents sufficient evidence for a decree of involuntary

termination, and the reasonable effort requirements are met, allowing a

voluntary termination is contrary to policy. See id. at 667.

Here, the court determined that DHS had established by clear and

convincing evidence the statutory grounds for termination. The court was not

required, at that point, to allow Mother to relinquish her rights voluntarily.

See id. Mother had proceeded through the previous stages of the process

delineated above, and by the time the second termination hearing convened,

Mother’s due process rights had been satisfied. See id. Accordingly, we

decline to find an abuse of discretion in the court’s refusal to allow Mother to

sign the voluntary relinquishment paperwork. See id.

Mother does not challenge the court’s findings regarding 23 Pa.C.S.A.

§§ 2511(a) and (b). Accordingly, she has waived these issues for purposes

of appeal. See Krebs, supra at 797; see also In re A.C., 991 A.2d 884,

897 (Pa. Super. 2010) (“[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.”) (citation omitted).

Decree affirmed.

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Judge Dubow did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/18

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