In Re: M.Z.T.M.W., a minor, Appeal of: M.W.

J-S24030-17

2017 PA Super 151

IN RE: M.Z.T.M.W., A MINOR : IN THE SUPERIOR COURT OF

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APPEAL OF: M.W., BIRTH MOTHER : No. 1904 WDA 2016

Appeal from the Decree November 17, 2016

In the Court of Common Pleas of Allegheny County

Orphans’ Court at No: CP-02-AP-0000038-2016

IN RE: M.Z.T.W., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

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APPEAL OF: M.W., BIRTH MOTHER : No. 1905 WDA 2016

Appeal from the Decree November 17, 2016

In the Court of Common Pleas of Allegheny County

Orphans’ Court at No: CP-02-AP-0000039-2016

BEFORE: PANELLA, STABILE, JJ., and STEVENS,* P.J.E.

OPINION BY STABILE, J.: FILED MAY 17, 2017

M.W. (“Mother”) appeals from the decrees entered November 17,

2016, in the Court of Common Pleas of Allegheny County, which involuntarily

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*

Former Justice specially assigned to the Superior Court.

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terminated her parental rights to her twin sons, M.Z.T.M.W. and M.Z.T.W.,

born in April 2015.1 After careful review, we affirm.

The record reveals that Allegheny County Children, Youth and Families

(“CYF”) has a lengthy history of involvement with Mother, beginning in 1999.

N.T., 11/17/2016, at 9. M.Z.T.M.W. and M.Z.T.W. are Mother’s seventh and

eighth children, and Mother’s parental rights with respect to her previous six

children have already been terminated.2 Id. at 10. M.Z.T.M.W. and

M.Z.T.W. entered foster care immediately after being discharged from the

hospital, due to Mother’s history of mental health issues, parental incapacity,

drug and alcohol concerns, and intellectual disabilities. Id. at 9, 11, 28-29.

The children have resided in the same pre-adoptive foster home since June

3, 2015. Id. at 28-29. They were adjudicated dependent on June 23, 2015,

and aggravated circumstances were found that same day. Id. at 9, 26.

On March 2, 2016, CYF filed petitions to involuntarily terminate

Mother’s parental rights to M.Z.T.M.W. and M.Z.T.W. The orphans’ court

conducted a termination hearing on November 17, 2016. Following the

hearing, the court entered decrees terminating Mother parental rights.

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1

The decrees also terminated the parental rights of J.D., the putative father

of M.Z.T.M.W. and M.Z.T.W., and the parental rights of any unknown father

that the children may have. Neither J.D. nor any unknown father has

appealed the termination of his parental rights.

2

According to the orphans’ court, Mother gave birth to her ninth child, who

is not relevant to this appeal, in November 2016. Orphans’ Court Opinion,

1/23/2017, at 4 (Findings of Fact at ¶ 3).

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Mother timely filed notices of appeal on December 16, 2016, along with

concise statements of errors complained of on appeal.

When reviewing an appeal from a decree terminating parental rights,

we apply the following standard of review.

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).

Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

Initially, the focus is on the conduct of the parent. The party

seeking termination must prove by clear and convincing

evidence that the parent’s conduct satisfies the statutory

grounds for termination delineated in Section 2511(a). Only if

the court determines that the parent’s conduct warrants

termination of his or her parental rights does the court engage in

the second part of the analysis pursuant to Section 2511(b):

determination of the needs and welfare of the child under the

standard of best interests of the child. One major aspect of the

needs and welfare analysis concerns the nature and status of the

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emotional bond between parent and child, with close attention

paid to the effect on the child of permanently severing any such

bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

In this case, the orphans’ court terminated Mother’s parental rights

pursuant to Sections 2511(a)(2), (5), 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:

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(2) The repeated and continued incapacity, abuse,

neglect or refusal of the parent has caused the child

to be without essential parental care, control or

subsistence necessary for his physical or mental

well-being and the conditions and causes of the

incapacity, abuse, neglect or refusal cannot or will

not be remedied by the parent.

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(5) The child has been removed from the care of the

parent by the court or under a voluntary agreement

with an agency for a period of at least six months,

the conditions which led to the removal or placement

of the child continue to exist, the parent cannot or

will not remedy those conditions within a reasonable

period of time, the services or assistance reasonably

available to the parent are not likely to remedy the

conditions which led to the removal or placement of

the child within a reasonable period of time and

termination of the parental rights would best serve

the needs and welfare of the child.

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(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

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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)(2), (5), and (b).

Before reaching the merits of Mother’s appeal, we must first consider

whether she has preserved her claims for our review. In her concise

statements of errors complained of on appeal, Mother raises the following

issue:

1. The [orphans’] court abused its discretion and/or erred as a

matter of law in concluding that [CYF] met its burden of proving

by clear and convincing evidence grounds for the involuntary

termination of [] [M]other’s parental rights pursuant to 23

Pa.C.S.[A.] § 2511(a)(2) and 23 Pa.C.S.[A.] § 2511(a)(5) when

such determination is not supported by the record.

Concise Statements of Errors Complained of on Appeal, 12/16/16.

Likewise, in the statement of questions involved section of Mother’s

brief, she raises the following issue:

1. Did the [orphans’] court abuse its discretion and/or err as a

matter of law in concluding that [CYF] met its burden of proving

[b]y clear and convincing evidence grounds for the involuntary

termination of [] Mother’s parental rights pursuant to 23

Pa.C.S.[A.] §[]2511(a)(2) and (5) when such determination is

not supported by the record?

Mother’s Brief at 15.

However, in the summary of argument and argument sections of her

brief, Mother abandons her challenge to Sections 2511(a)(2) and (5), and

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instead focuses solely on Section 2511(b). Mother concedes that CYF

presented sufficient evidence to terminate her parental rights pursuant to

Section 2511(a)(2). Mother’s brief at 19 (“CYF, the petitioner, did clearly

and convincingly establish threshold grounds for termination pursuant to 23

Pa.C.S.[A.] §[]2511(a)(2).”).

It is well-settled that this Court will not review a claim unless it is

developed in the argument section of an appellant’s brief, and supported by

citations to relevant authority. In re W.H., 25 A.3d 330, 339 n.3 (Pa.

Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011) (quoting 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.”’). Here, Mother waived any challenge with respect to

Sections 2511(a)(2) and (5) by failing to develop an argument in her brief,

and by conceding that CYF presented clear and convincing evidence to

terminate her parental rights pursuant to Section 2511(a)(2).

Further, it is well-settled that issues not included in an appellant’s

statement of questions involved and concise statement of errors complained

of on appeal are waived. Krebs v. United Refining Co. of Pa., 893 A.2d

776, 797 (Pa. Super. 2006) (citations omitted) (“We will not ordinarily

consider any issue if it has not been set forth in or suggested by an appellate

brief’s statement of questions involved, and any issue not raised in a

statement of matters complained of on appeal is deemed waived.”). With

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respect to issues not included in a concise statement, our Supreme Court

has instructed that this Court has no discretion in choosing whether to find

waiver. Waiver is mandatory, and this Court may not craft ad hoc

exceptions or engage in selective enforcement. City of Philadelphia v.

Lerner, 151 A.3d 1020, 1024 (Pa. 2016) (quoting Commonwealth v. Hill,

16 A.3d 484, 494 (Pa. 2011)). Because Mother failed to include a challenge

to Section 2511(b) in her statement of questions involved and concise

statements that issue is also waived.3

Accordingly, we conclude that Mother failed to preserve any of her

claims for our review. We therefore affirm the November 17, 2016

termination decrees.

Decrees affirmed.

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3

We acknowledge that panels of this Court have sometimes relied on In re

C.L.G., 956 A.2d 999 (Pa. Super. 2008) (en banc), to address Section

2511(b), even where the appellant has made no effort to present a

challenge regarding that section. In C.L.G., this Court affirmed an order

involuntarily terminating the appellant mother’s parental rights. We initially

analyzed the trial court’s decision to terminate pursuant to Section

2511(a)(8). We concluded that the evidence supported the court’s decision,

and then proceeded to address Section 2511(b), even though the appellant

mother did not present any challenge regarding that section. This Court did

not provide an explanation for its decision to address Section 2511(b). We

merely stated: “Although Mother does not challenge the trial court’s analysis

of Section 2511(b), we proceed to address this issue nonetheless.” Id. at

1010. We do not read C.L.G. to require consideration of Section 2511(b) in

every appeal from a decree involuntarily terminating parental rights. This

Court did not hold that consideration of Section 2511(b) was necessary in

C.L.G., nor did we cite any authority in support of our decision to address

Section 2511(b) sua sponte.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2017

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