In Re: A.J.R.O., Appeal of: D.C.O. ( 2022 )

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2022 PA Super 23IN THE INTEREST OF: A.J.R.O., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: D.C.O., MOTHER :
:
:
:
: No. 1238 EDA 2021
Appeal from the Decree Entered May 24, 2021
In the Court of Common Pleas of Delaware County Orphans' Court at
No(s): 0033-2020-A,
CP-23-DP-0000163-2015
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
OPINION BY BOWES, J.: FILED FEBRUARY 8, 2022
D.C.O. (“Mother”) appeals from the decree entered on May 24, 2021,1
which terminated her parental rights involuntarily to her son, A.J.R.O., born
in September 2014.2 In addition, Mother appeals from the decree dated
April 28, 2021, changing A.J.R.O.’s permanent placement goal from return to
parent or guardian to adoption. We vacate the termination decree and remand
for proceedings consistent with this opinion.
The record reveals this family has a lengthy history of involvement with
Children and Youth Services of Delaware County (“CYS”) dating back to the
time of A.J.R.O.’s birth when he tested positive for methadone, opiates, and
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1 The decree was dated May 19, 2021, but was not filed until May 24, 2021.
2 The orphans’ court entered a separate decree terminating the parental rights
of A.O. (“Father”), who did not file an appeal.
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benzodiazepines. N.T., 3/24/21, at 95;3 CYS Exhibit 1 (Court Summary).4
CYS later received a report of a domestic violence incident between Mother
and Father in July 2015 during which A.J.R.O. was injured. CYS Exhibit 1.
A.J.R.O. was adjudicated dependent in August 2015, and court supervision
ended in February 2016. N.T., 3/24/21, at 95; CYS Exhibit 1. CYS thereafter
provided in-home services to monitor substance abuse concerns and the
family’s living situation. N.T., 3/24/21, at 96.
CYS received the referral resulting in A.J.R.O.’s current adjudication on
March 12, 2019. Id. at 94. The referral indicated that when Mother and
Father brought A.J.R.O. to the home of paternal aunt, his current foster
mother, she suspected the parents were engaging in substance abuse and
failing to attend to A.J.R.O.’s needs. Id. Thus, A.J.R.O. was adjudicated
dependent for the second time on April 30, 2019. Id. at 23, 96; CYS Exhibit
1. A.J.R.O. has remained in that same foster home continuously since then.
N.T., 3/24/21, at 98.
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3 The title page of the transcript for this proceeding incorrectly states the date
as April 7, 2021. The hearing was held on March 24, 2021, and we utilize that
date in our citations to the transcript of that proceeding.
4 Neither CYS’s petition to terminate Mother’s parental rights, nor the exhibits
admitted into evidence in this matter, appear in the certified record. Mother,
however, included those documents in her reproduced record. As no party
disputes the authenticity of the documents in the reproduced record, we have
considered them. See Commonwealth v. Holston, 211 A.3d 1264, 1276
(Pa.Super. 2019) (en banc) (citing Commonwealth v. Brown, 52 A.3d 1139,
1145 n.4 (Pa. 2012)).
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On September 23, 2020, CYS filed a petition to terminate involuntarily
Mother’s parental rights to A.J.R.O. on the adoption docket, No. 0033-2020-
A. Although not clear from the record before us, CYS also filed a petition to
change A.J.R.O.’s permanent placement goal from reunification to adoption at
the dependency docket, No. CP-23-DP-0000163-2015.5 The orphans’ court
held consolidated termination and goal change hearings on March 24, 2021,
and April 28, 2021.6 Following the hearings, the court issued (1) a decree
terminating Mother’s parental rights, which it entered on the adoption docket
on May 24, 2021; and (2) an order dated April 28, 2021, changing A.J.R.O.’s
goal to adoption on the dependency docket.7
On June 17, 2021, Mother filed a single notice of appeal from both the
termination decree and goal change order. Although her notice of appeal
listed both the adoption and dependency docket numbers, it was only filed at
the adoption docket. In her accompanying concise statement of errors
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5 Since Mother only filed a notice of appeal at the adoption docket, as
discussed infra, we did not receive the dependency record and cannot confirm
whether CYS filed a petition.
6 The court appointed Roger R. Ullman, Esquire, as the guardian ad litem
(“GAL”) during the dependency proceedings to represent A.J.R.O. Ostensibly,
he also acted as legal counsel during the termination proceedings. We note
with disapproval that Attorney Ullman did not file a brief in this appeal
advocating for A.J.R.O.’s legal interests. Instead, Attorney Ullman submitted
a letter joining the orphans’ court’s opinion. The letter does not reference
A.J.R.O.’s preferred outcome.
7 This order does not appear in the certified record, but Mother attached a
copy of it to the docketing statement she filed in this Court.
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complained of on appeal, Mother raised several issues challenging both the
termination decree and goal change order.
In accordance with this Court’s prior practice, we issued a per curiam
order directing Mother to show cause why this appeal should not be quashed
for failure to comply with the Official Note to Pa.R.A.P. 341(a) and
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).8 Specifically, in
Walker, the Pennsylvania Supreme Court mandated “that when a single order
resolves issues arising on more than one lower court docket, separate notices
of appeal must be filed[ and t]he failure to do so will result in quashal of the
appeal.” Walker, supra at 977. Mother responded, asking this Court to
strike the goal change portion of her appeal. Alternatively, she argued quashal
was unnecessary pursuant to Always Busy Consulting, LLC v. Babford &
Company, Inc., 247 A.3d 1033 (Pa. 2021), because the termination and goal
change dockets were “consolidated.” Answer to Order to Show Cause,
7/22/21, at 2-3. Finally, she explained that her counsel relied on the 2019
Pennsylvania Dependency Benchbook when preparing this appeal, which did
not mention Walker or the need to file multiple notices of appeal.
By order of August 4, 2021, this Court discharged the rule to show
cause, but advised that the issue could be revisited by the merits panel, and
that counsel should be prepared to address the panel’s concerns either in their
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8 This Court has applied the holding from Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), to children’s fast track appeals. See In the Interest
of S.D., 257 A.3d 746 (Pa.Super. 2021) (citing In the Matter of M.P., 204
A.3d 976, 981 (Pa.Super. 2019)).
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briefs or at oral argument. Order, 8/4/21. CYS raises the issue in its brief
and urges this Court to quash the appeal pursuant to Walker.
The orphans’ court complied with Pa.R.A.P. 1925(a), and the matter is
ripe for our review. Mother presents the following issues:
1) [Whether] the trial court err[ed] in determining that the agency
provided, by clear and convincing evidence, the requirements
of 23 Pa.C.S. 2511 (a)(1)(2)(5)(8) for the involuntary
termination of the birth mother’s parental rights, in that:
a. The trial court erred as a matter of law in not
applying the time suspension as required by the
Emergency Orders issued by the Hon. Kevin F.
Kelly, President Judge of Delaware County, issued
on 16 March 2020, 23 March 2020, 13 April 2020,
28 April 2020, and 5 May 2020.
b. The trial court erred in ignoring the executive
orders of Governor Wolf to “Stay at Home” from 23
March 2020 to 4 June 2020.
c. The trial court erred in ignoring the Emergency
Orders issued by the Hon. Kevin F. Kelly, President
Judge of Delaware County, that suspended in
person visitation between parents and children in
placement from 23 March 2020 to 17 July 2020 and
the de facto suspension of in person visitation
between parents and children in placement from 23
March 2020 to May 2021.
2) Did the trial court abuse its discretion in finding that [Mother]
abandoned her child when the foster parent threaten[ed] to call
the cops if [Mother] returned to pick up the minor, [A.J.R.O.],
in February 2019[?]
3) Did the trial court err concerning [Mother’s] difficult pregnancy
during the summer and fall of 2020, during the COVID-19
pandemic[?]
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4) Did the trial court abuse its discretion when applying equitable
princi[ples] to the termination of parental rights concerning the
effect and reverberations of the COVID-19 pandemic upon
society, the court, parents, supervised visitation providers, and
[CYS?]
5) Did [t]he trial court abuse its discretion in finding that the
termination of parental rights would best serve the needs and
welfare of [A.J.R.O.] when there is a strong and loving bond
between [Mother] and [A.J.R.O.], and severance of that bond
will cause irreparable harm to [A.J.R.O.?]
6) Did the trial court abuse its discretion by failing to properly
consider and sustain [Mother’s] counsel’s objections and
directing the hearings progress, including, inter alia, the
operational capability of the Courts during the COVID-19
pandemic and the operational capability of [CYS] during the
COVID-19 pandemic[?]
Mother’s brief at 4-5 (unnecessary capitalization omitted). Notably, Mother
abandoned her challenges to the goal change order in her brief.
Before we address the merits of Mother’s issues on appeal, we must first
determine whether she has complied with the mandates of the Note to Rule
341 and Walker. CYS maintains that Mother filed a single notice of appeal
from two separate orders, when she should have filed two separate notices of
appeal. Thus, CYS argues, Mother’s appeal should be stricken.
Mother does not address the Note to Rule 341 or Walker in her brief.
Nonetheless, we consider Mother’s request in her response to our rule to show
cause for this Court to strike the offending goal change portion of her appeal,
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as the underlying order was that from which she failed to file a separate notice
of appeal.9
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9 We find Mother’s alternative arguments unpersuasive. First, Mother argued
that the dockets were consolidated below. In Always Busy Consulting, LLC
v. Babford & Company, Inc., 247 A.3d 1033, 1043 (Pa. 2021), our Supreme
Court held that “filing a single notice of appeal from a single order entered at
the lead docket number for consolidated civil matters where all record
information necessary to adjudication of the appeal exists, and which involves
identical parties, claims and issues, does not run afoul” of the Note to Rule
341 or Walker. Here, while the orphans’ court conducted consolidated
hearings on both dockets, the dockets always remained separate for filing
purposes. This distinction is abundantly clear given that Mother’s filing of her
notice of appeal at only the adoption docket resulted in this Court not receiving
the dependency record. Moreover, the adoption record does not include any
of the filings at the dependency docket, including the goal change order that
Mother attempted to appeal. Thus, the adoption record does not contain “all
record information necessary to adjudication of the appeal” and Mother cannot
rely on consolidation to avoid quashal. Id.; see also Commonwealth v.
Young, ___ A.3d ___, 2021 WL 6062566, at *9 (Pa. filed December 22, 2021)
(distinguishing Always Busy where, “regardless of whether there is identity
of parties and claims, the docket numbers were not different ‘sides of the
same coin’ — that is, different ways of litigating the exact same
dispute. . . — and there was no lead docket number”).
Second, Mother argued that any error was excusable because her counsel
relied on the inadequate guidance of the Dependency Benchbook. We are
aware of no legal authority that supports Mother’s proposal, and the only
authority that Mother mentions, In re K.T.E.L., 983 A.2d 745 (Pa.Super.
2009), is inapt. In K.T.E.L., we granted leniency where an appellant in a
children’s fast track appeal failed to file a concise statement of errors
complained of on appeal contemporaneously with a notice of appeal. We did
not address failure to comply with the Note to Rule 341. This Court “may
overlook the requirements of Walker where a breakdown occurs in the court
system, and a defendant is misinformed or misled regarding his appellate
rights.” In the Interest of S.D., 257 A.3d 746, 749 (Pa.Super. 2021)
(cleaned up). However, there is no evidence in the certified record that the
court misadvised Mother or her counsel regarding the correct appellate
procedure. Id. at 751 (“[T]he silence of the trial court with respect to giving
guidance to the parents as to the procedure for filing appeals does not
(Footnote Continued Next Page)
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As noted supra, Mother filed a single notice of appeal from two separate
orders: a decree terminating her parental rights on the adoption docket and
an order changing A.J.R.O.’s permanency goal on the dependency docket.
Mother filed this notice of appeal solely at the adoption docket but purported
to appeal from both dispositions, as evidenced by her inclusion of both dockets
on the notice and challenging both orders in her concise statement.
This Court has since extended “Walker to require quashal when an
appellant files a single notice of appeal from both the dependency docket and
adoption docket as separate notices of appeal are required for discrete
challenges to the permanency goal change order and termination order.” In
the Interest of S.D., 257 A.3d 746, 749 (Pa.Super. 2021) (citing In the
Matter of M.P., 204 A.3d 976, 981 (Pa.Super. 2019)). In S.D., the father
and mother appealed from the orders terminating their parental rights
involuntarily from their children, as well as the separate order changing the
children’s permanency goal. Specifically, the parents jointly filed separate
notices of appeal for each termination order, but therein listed both the
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constitute a breakdown in the court processes. As such, we cannot excuse
[the parents’] non-compliance with Rule 341 and Walker due to a breakdown
in court processes.”); see also In the Interest of K.M.W., 238 A.3d 465,
470 n.2 (Pa.Super. 2020) (en banc) (declining to quash based on a breakdown
in the court system but urging our Supreme Court to consider creating a
special exception for children’s fast track cases where “the technical violation
does not prejudice parties, and does not hamper our ability to review the
appeal”). Moreover, inadequate research on the part of counsel does not
constitute a breakdown in the court system. Whether it constitutes ineffective
assistance that would excuse quashal is a different question, and one that,
given our disposition, is not before this Court.
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adoption and dependency dockets. Although the circumstances in S.D. were
not identical to those in Walker, this Court held that pursuant to Rule 341,
“to the extent that [the parents] wished to challenge both the termination
orders on the adoption docket and the goal change orders on the dependency
dockets, they were required to file a notice of appeal from each order for each
child.” S.D., supra at 750. In response to this Court’s rule-to-show-cause
order, the parents argued that they only intended to challenge the termination
order and the dependency docket was erroneously included. However, this
Court found this claim belied by the record, as the parents raised arguments
challenging the goal change order in both their concise statement and
appellate brief. Therefore, we quashed the appeals.
However, we are not bound by the holding in S.D., as our Supreme
Court has since found that “there is another rule with a role to play in matters
like this one: Pa.R.A.P. 902 (manner of taking appeal).” Commonwealth v.
Young, ___ A.3d ___, 2021 WL 6062566, at *9 (Pa. filed December 22,
2021). Rule 902 provides in pertinent part:
Failure of an appellant to take any step other than the timely filing
of a notice of appeal does not affect the validity of the appeal, but
it is subject to such action as the appellate court deems
appropriate, which may include, but is not limited to, remand of
the matter to the lower court so that the omitted procedural step
may be taken.
Pa.R.A.P. 902. Rule 902 was revised in 1986, with the following Note:
The reference to dismissal of the appeal has been deleted in favor
of a preference toward[ ] remanding the matter to the lower court
so that the omitted procedural step may be taken, thereby
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enabling the appellate court to reach the merits of the appeal.
Nevertheless, dismissal of the appeal ultimately remains a
possibility where counsel fails to take the necessary steps to
correct the defect.
Id., Note.
In Young, the Commonwealth submitted one notice of appeal for each
co-defendant, listing the three docket numbers associated with that defendant
on the notice of appeal. In response to this Court’s rule-to-show-cause order,
the Commonwealth argued that it should be permitted the opportunity to
amend the notices of appeal because the error was only a formatting error,
which did not result in prejudice to the defendants or a failure to provide
notice. Although the Commonwealth did not specifically cite Rule 902, our
Supreme Court concluded that the Commonwealth had preserved a claim
based on Rule 902 because “its request for leave to correct any formatting
error in its notices of appeal plainly invoked the remedial, ameliorative and
equitable relief measures prescribed in Rule 902.” Young, supra at *10 n.18.
In considering the interplay between Rules 341 and 902, our Supreme
Court held as follows:
Rule 341 requires that when a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed
from that order at each docket; but, where a timely appeal is
erroneously filed at only one docket, Rule 902 permits the
appellate court, in its discretion, to allow correction of the error,
where appropriate. Accordingly, as there were two timely-filed
notices of appeal in this case, one for each defendant, that listed
additional docket numbers for each defendant, we reverse the
Superior Court’s order quashing the appeals and, pursuant to Rule
902, we remand to that court to reconsider the Commonwealth’s
request to remediate its error, “so that the omitted procedural
step may be taken.” Pa.R.A.P. 902.
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Young, supra at *11 (cleaned up). Accordingly, our Supreme Court
remanded to this Court “to determine, in [our] discretion, whether the
Commonwealth should be granted relief through application of the safe harbor
provision of Pa.R.A.P. 902[.]” Id. at *1.
Mother’s request for this Court to strike the non-compliant portion of
her appeal invokes the equitable measures prescribed in Rule 902, and we
thus consider this argument preserved. Instantly, the orphans’ court entered
two orders resolving issues arising on two separate dockets, and Mother filed
a single notice of appeal from both orders solely on the adoption docket.
Although the facts of this case are not identical to those in Young, we find
persuasive the Young Court’s rationale for considering Rule 341(a) in
conjunction with Rule 902. Specifically, our Supreme Court
[a]gree[d] with the Commonwealth that there would have been
no prejudice to the defendants had the Superior Court granted its
prompt and clear request for remand to correct the procedural
defect once it was identified. Further, the Commonwealth
convincingly argues that nothing practical is achieved by the
reflexive quashal of appeals for easily corrected, non-jurisdictional
defects. Indeed, Rule 902 is designed specifically to eliminate
such quashals as it “eliminates the ‘trap’ of failure to perfect an
appeal” by making timely notices of appeal “self-perfecting.”
Pa.R.A.P. 902, Note.
We realize permitting parties to rectify non-jurisdictional
procedural missteps relating to notices of appeal will, for all
practical purposes, largely blunt the bright-line rule
the Walker Court sought to impose with respect to Rule 341(a).
However, as we also expressly noted in Walker, “[p]rocedural
rules should be construed to give effect to all their provisions, and
a single rule should not be read in a vacuum, especially where
there is a relationship between different rules.” Walker, 185 A.3d
at 976 (citations omitted).
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Young, supra at *11 (cleaned up).
Based on the foregoing, although it is evident that Mother intended to
appeal both the termination decree and goal change order based upon her
concise statement, we will permit Mother to correct her defective notice of
appeal, which was only filed at the adoption docket, by allowing her to
abandon her dependency docket claims and proceeding solely on her adoption
docket claims. Accordingly, we do not quash Mother’s appeal.
Nonetheless, we do not yet reach the merits of Mother’s appeal as we
must first address sua sponte the representation provided by A.J.R.O.’s GAL.
Consistent with our Supreme Court’s holding in In re Adoption of
K.M.G., 240 A.3d 1218 (Pa. 2020), we verify that the trial court appointed
Attorney Ullman, as noted supra, as the GAL during the dependency
proceedings, to represent A.J.R.O. in the termination proceedings pursuant to
23 Pa.C.S. § 2313(a).10 See id. (reiterating that, absent a conflict between
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10 This subsection provides as follows:
(a) Child.--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 [GAL] to represent any child who has 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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legal interest and best interests, one attorney may serve the dual role of GAL
and § 2313 counsel).
“[W]here the orphans’ court has appointed a single attorney to serve as
[GAL] and legal counsel to represent both the child’s best interests and legal
interests, [our Supreme Court] concluded an appellate court should review
sua sponte whether the court made a determination that those interests did
not conflict.” In re P.G.F, 247 A.3d 955, 964–65 (Pa. 2021). The Court
“cautioned that ‘appellate review of this question does not involve second-
guessing whether GAL/Counsel in fact had a conflict but solely whether the
orphans’ court made the determination in the first instance.’” Id. at 965
(quoting K.M.G., supra at 1235-1236) (cleaned up)).
Presently, there is no indication in the certified record that the orphans’
court made the requisite determination that then-six-year-old A.J.R.O.’s legal
and best interests did not conflict. Since we cannot determine from the
certified record whether the orphans’ court fulfilled its § 2313(a) duty to
“determine whether counsel can represent the dual interests before appointing
an individual to serve as GAL/Counsel for a child[,]” we cannot fulfill our duty
to sua sponte “verify that the orphans’ court indicated that the attorney could
represent the child’s best interests and legal interests without conflict.”
K.M.G., supra at 1236.
Accordingly, we are constrained to vacate the termination decree and
remand for further proceedings. On remand, we direct the orphans’ court to
fulfill its § 2313(a) duty as articulated in P.G.F., supra, and determine
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whether Attorney Ullman may represent the dual interests of A.J.R.O. If the
court determines that no conflict exists, the court shall re-enter its May 24,
2021 termination decree as to Mother.11 If the court determines there is a
conflict between A.J.R.O.’s legal and best interests, the court shall appoint
separate legal counsel and conduct a new termination hearing as to Mother to
provide legal counsel an opportunity to advocate on behalf of A.J.R.O.’s legal
interests.
Decree vacated. Case remanded for proceedings consistent with this
opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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11 We note that such an order would constitute a new, final order, appealable
to this Court. See In re H.S.W.C.-B., 836 A.2d 908, 911 (Pa. 2003) (holding
that “an order terminating or preserving parental rights. . . shall be deemed
final when entered.”).
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