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J-S05001-23
ON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: O.J.K., A MINOR
IN THE SUPERIOR COURT OF
PENNSYLVANIA
PPEAL OF: W.M.C., MOTHER
No. 1105 WDA 2022
Appeal from the Decree Entered August 25, 2022
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
No. 2022 AD8
IN RE: K.W.K., A MINOR
IN THE SUPERIOR COURT OF
PENNSYLVANIA
PPEAL OF: W.M.C., MOTHER
Appeal from the Decree Entered August 25, 2022
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
2022 AD 8A
No. 1106 WDA 2022
EFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BENDER, P.J.E.:
FILED: MARCH 21, 2023
W.M.C. (Mother) appeals from the decrees entered on August 25, 2022,
that granted the petitions filed by the Blair County Children, Youth and
Families (CYF or Agency) to involuntarily terminate Mother’s parental rights
to O.J.K., born in December of 2020, and K.W.K., born in February of 2019,
A
N
A
B
J-S05001-23
appeal.2
stating:
(collectively Children).1 Following our review, we affirm the decrees on
In its opinion, the trial court provided a procedural overview of the case,
The above [C]hildren were subject
to dependency
proceedings in the Juvenile Division of the Court of Common Pleas
of Blair County. During the dependency proceedings, this [c]ourt
entered Orders regarding both [C]hildren on November 19,
2021[,] changing the goals to adoption. Those Orders outlined
the [c]ourt’s factual reasoning for the goal of adoption.
Subsequent[] to the entry of these Orders, the Agency filed
petitions to terminate the parental rights of the parents of the
subject [C]hildren. These petitions were filed against the
biological [M]other and biological [F]ather on March 17, 2022.
Hearings occurred on the Agency’s Petitions for Termination of
Parental Rights on July 7, 2022[,] and August 18, 2022. This
[c]ourt entered Final Decrees regarding both subject [C]hildren on
August 24, 2022[,] granting the Agency’s Petition[s] for
Termination of Parental Rights. The Final Decrees contained this
[c]ourt’s legal conclusions and also indicated that the facts as
contained in the Petitions for Involuntary Termination of Parental
Rights were true. … Neither parent filed a [timely] Concise
Statement of Matters Complained of on Appeal as required by the
Rules of Appellate Procedure. Therefore, this [c]ourt believes that
any issues are waived.
To the extent that the parents’ appeals are not waived, this
[c]ourt believes that our Final Decrees of August 24, 2022[,]
which adopted the facts contained in the Petition for Involuntary
Termination of Parental Rights as well as the factual basis
contained in our goal change Orders of November 19, 2021[,]
provide sufficient factual and legal support for the [c]ourt’s
decision to grant the Agency’s Petitions for Termination of Parental
1 Although C.A.K.’s (Father) parental rights were also terminated in regard to
both Children at the same time Mother’s were terminated, Father is not a party
to this appeal.
This Court consolidated Mother’s two appeals sua sponte by order dated
December 13, 2022.
2
____________________________________________
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Rights. We incorporate our Final Decrees and Dependency
Order[s] of November 19, 2021[,] into this Opinion.
Trial Court’s Opinion (TCO), 11/7/2022, at 1-2.
The Petitions for Termination of Parental Rights, filed by the Agency on
March 1, 2022, outline the facts of this matter, indicating that O.J.K. was
removed from the parents’ care on December 31, 2020, and K.W.K. was
removed from the parents’ care on July 21, 2021. With regard to Mother, the
Petitions, which the trial court found to be factually true, state that Mother
has a history of criminal activity, illicit drug use, and a lack of stable and
independent housing. Although in August of 2021 Mother was successfully
discharged from inpatient drug and alcohol treatment, by October 2021, she
again tested positive for heroin and fentanyl and refused to re-attend inpatient
drug rehabilitation for detoxification and long-term treatment. Mother also
did not cooperate with the Agency and with law enforcement in that she failed
to keep in contact with her probation officer and had outstanding warrants for
her arrest due to a failure to comply with her supervision conditions. Mother
also stopped participating in reunification services with the Agency and
stopped exercising her four-hours-per-week visitation sessions with the
Children.
Following the court’s filing of its decrees terminating Mother’s parental
rights to the two Children on August 25, 2022, Mother filed a pro se appeal to
this Court on September 23, 2022. However, she did not file a concise
statement of errors complained of on appeal concurrently with her appeal.
Rather, her attorney filed a statement on her behalf on September 28, 2022.
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J-S05001-23
Thus, we must first determine whether Mother has waived her issues as the
trial court suggests. We rely on this Court’s reasoning in the case of J.P. v.
S.P., 991 A.2d 904, 907 (Pa. Super. 2010), wherein a mother “failed to file a
concise statement of errors complained of on appeal concurrently with her
notice of appeal[,]” which is required by Pa.R.A.P. 1925(a)(2)(i). The J.P.
opinion explains:
In In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009), this
Court addressed a similar issue and declined to extend the bright-
line waiver rule the Supreme Court adopted in Commonwealth
v. Castillo, 585 Pa. 395, 888 A.2d 775 (Pa. 2005), to deem the
appellant’s issues waived in a children’s fast track case for failing
to comply with the amended rule strictly. Specifically, we held,
he failure of an appellant in a children’s fast track
case to file contemporaneously a concise statement
with the notice of appeal pursuant to rules 905(a)(2)
and 1925(a)(2), will result in a defective notice of
appeal. The disposition of the defective notice of
appeal will then be decided on a case by case basis
under the guidelines set forth in Stout v. Universal
Underwriters Ins. Co., 491 Pa. 601, 421 A.2d 1047,
1049 (Pa. 1980).
t
K.T.E.L., 983 A.2d at 747. In reaching this decision, we
distinguished between a court-ordered Rule 1925(b) statement
and one mandated by a procedural rule. Essentially, we reasoned
that by failing to file the Rule 1925(b) statement concurrently with
the notice of appeal, the appellant violated our rules of appellate
procedure and not a trial court order as in Castillo. Id. at 747
n.1. Accordingly, we concluded that a bright-line application of
the waiver rule was not warranted in that case for violating the
procedure outlined in Pa.R.A.P. 1925(a)(2)(i).
Herein, [the m]other failed to file the Rule 1925(b)
statement concurrent with her notice of appeal. However, mindful
of our holding in K.T.E.L., we decline to find [the m]other’s issues
waived merely for violating the procedural rules outlined in
Pa.R.A.P. 1925(a)(2)(i). Nevertheless, as noted supra, [the
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m]other not only failed to comply with Pa.R.A.P. 1925(a)(2)(i),
but she also failed to comply with the trial court’s order to file a
Rule 1925(b) statement within twenty-one days of the date of the
order. Unlike the reasoning underlying our rationale in K.T.E.L.,
relating to violations of procedural rules, an appellant’s failure to
comply with an order to file a Rule 1925(b) statement in a timely
manner constitutes waiver of all objections to the order, ruling, or
other matter complained of on appeal. See Commonwealth v.
Lord, 553 Pa. 415, 719 A.2d 306 (Pa. 1998); Castillo, supra.
This waiver rule applies to family law cases. In re L.M., 923 A.2d
505, 509 (Pa. Super. 2007).
J. P., 991 A.2d at 907-08 (emphasis in original). Accordingly, in accordance
with J.P., we conclude in the present matter that Mother’s issues were not
waived in that she only violated the pertinent procedural rule but did not fail
to comply with a court order. Thus, we proceed with a review of Mother’s
issues now before our Court.
Mother listed the following in her brief:
I. Whether the court erred in terminating [Mother’s]
parental rights where she had previously made great
strides towards reunification, and was successful in her
efforts for a substantial period of time.
II. Whether the court erred in terminating [Mother’s]
parental rights prior to determining the outcome of her
criminal charges for which she was incarcerated.
Mother’s brief at 4.
following standard:
We review an order terminating parental rights in accordance with the
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must
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J-S05001-23
stand. Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The standard of clear and convincing evidence is defined as
testimony 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.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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. In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result. In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa. Super. 2003).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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
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J-S05001-23
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 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) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
The trial court’s decrees terminated Mother’s parental rights pursuant
to section 2511(a)(2), (5) and (b). We need only agree with the trial court as
to any one subsection of section 2511(a), as well as section 2511(b), in order
to affirm. In re B.L.W., 843 A.2d 380, 284 (Pa. Super. 2004) (en banc).
Here, we analyze the court’s decision to terminate under sections 2511(a)(2),
which provides:
(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:
***
(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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23 Pa.C.S. § 2511(a)(2). To address whether the trial court abused its
discretion by terminating Mother’s parental rights pursuant to section
2511(a)(2), we are further guided by the following:
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
n re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
I
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
With regard to Mother’s first issue, she contends that the evidence
supporting the termination of her parental rights was not clear and convincing.
Specifically, Mother asserts that “[s]he attended visits and focused on drug
rehabilitation efforts, attending multiple rehab programs, including inpatient,
in [an] attempt to stay sober for her [C]hildren.” Mother’s brief at 7. Mother
noted that the care of K.W.K. by her mother, who was using illicit substances,
resulted in the child’s removal. At that time, Mother claims that she herself
was making strides in improving conditions that had led to the finding of
dependency. However, despite this argument, Mother then acknowledges that
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J-S05001-23
since July of 2021, she “severed contact with the Agency and discontinued
services, which ultimately led to the Agency[’s] seeking termination of [her]
parental rights.” Id. Then, Mother asserts that, at the termination hearing,
she argued that “if given the opportunity, she would continue with services
and remedy the conditions noted by the Agency.” Id. Essentially, Mother is
claiming that her earlier efforts should be given substantial weight.3
Having reviewed the record, we conclude that it supports the findings of
the trial court that Mother has not provided Children with the essential
parental care, control and subsistence necessary for their mental and physical
well-being.
While the trial court noted Mother’s earlier, positive
accomplishments, it is clear that Mother will not, or cannot, become a capable
parent for Children at any point in the foreseeable future. Thus, we conclude
that the court’s determination that the Agency carried its burden of proving
the statutory grounds for termination under subsection 2511(a)(2) is
supported by the evidence. Therefore, Mother is not entitled to relief.
In her second issue, Mother argues that little weight should have been
given to her incarcerated status by the trial court, because “very little was
known about what would transpire with regard to [Mother’s] criminal
circumstances.” Mother’s brief at 8. Mother also contends that if she had
been granted reconsideration and admitted into the court’s drug program, her
____________________________________________
3 Mother does not include any argument directed at subsection 2511(b).
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J-S05001-23
“criminal circumstances could have been remedied within a reasonable period
of time.” Id. Mother overlooks the fact that her unresolved drug use in the
past two years has been chronic and that even if she is not incarcerated for
an extensive period of time, she will be required to re-establish her ability to
provide safety and stability for the Children. A child’s life cannot be put on
hold in the hope that the parent will summon the ability to handle the
responsibilities of parenting. In re C.L.G., 956 A.2d 999 (Pa. Super. 2008)
(citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)). Moreover, “[t]he
trial court, as the finder of fact, is entitled to weigh the evidence and assess
its credibility.” Id. It is evident that the trial court here determined that the
Children should not be subjected to an extended period without permanency.
Mother has not convinced this Court otherwise.
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Decrees affirmed.
Judgment Entered.
oseph D. Seletyn, Esq.
Prothonotary
ate: 3/21/2023
J
D
