In the Interest of: M.T.E.L., Jr., etc., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.T.E.L., JR. : IN THE SUPERIOR COURT OF
A/K/A M.L., A MINOR : PENNSYLVANIA
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APPEAL OF: M.L., FATHER :
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:
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: No. 3839 EDA 2017
Appeal from the Order October 31, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0001119-2016,
CP-51-DP-0001360-2015
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
CONCURRING AND DISSENTING MEMORANDUM BY SHOGAN, J.: FILED
JULY 23, 2018
I agree with the Majority that the competent evidence of record supports
termination of Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2).
Majority Memorandum at 14. I am compelled to disagree, however, that
Father’s argument set forth in his brief that the trial court erred in concluding
termination is appropriate under Section 2511(b) is waived. Id. at 15.
The Majority relies upon In re M.Z.T.M.W., 163 A.3d 462, 466 n.3 (Pa.
Super. 2017), where the mother failed to raise an issue regarding
Section 2511(b) in her Rule 1925(b) statement and her statement of
questions involved in her brief. The M.Z.T.M.W. panel found waiver of the
Section 2511(b) issue that the mother presented in her summary of the
argument and argument sections of her brief, despite the trial court having
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* Former Justice specially assigned to the Superior Court.
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analyzed the claim in its findings of fact and conclusions of law. M.Z.T.M.W.,
163 A.3d at 465; M.Z.T.M.W. Trial Court Opinion, 1/23/17, at 8–9. We note,
however, that the M.Z.T.M.W. panel relied on case law outside of the family
law arena to support its finding of waiver. M.Z.T.M.W., 163 A.3d at 466.
Furthermore, the rights involved in a termination-of-parental-rights
case, and the potentially deleterious effect on the child’s well being, are too
important to ignore based on procedural irregularities. In the instant case,
Father devoted one-half of his argument in his brief to the needs and welfare
of Child. Father’s Brief at 17–20. While the Majority acknowledges the
existence of In re C.L.G., 956 A.2d 999 (Pa. Super. 2008) (en banc), it fails
to rely on this en banc Court’s refusal to find waiver therein. Both the majority
and dissenting opinions in C.L.G. considered whether the trial court correctly
analyzed 23 Pa.C.S. § 2511(b), even though the mother therein did not raise
the issue. C.L.G., 956 A.2d at 1010; C.L.G. 956 A.2d at 1014 n.6 (Bender, J.,
dissenting) (“We do not disagree with the Majority that consideration of the
needs and welfare of the child is mandated by section 2511(b) in all
termination cases even when not challenged on appeal to this Court.”)
(emphasis added). Thus, on this point, the en banc court was unanimous.
It bears noting that pursuant to stare decisis principles, “an en banc
panel of an intermediate court is authorized to overrule a three-judge panel
decision of the same court.” McGrath v. Bureau of Professional and
Occupational Affairs, State Board of Nursing, 173 A.3d 656, 661 (Pa.
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2017); see also Commonwealth v. Morris, 958 A.2d 569, 580 n.2 (Pa.
Super. 2008) (en banc) (It is well settled that Superior Court sitting en banc
may overrule a decision of a three-judge panel of Superior Court). Therefore,
it is clear that “precedent (stare decisis) requires” adherence by a Superior
Court panel “until it is reversed either by our Supreme Court or an en banc
panel of Superior Court.” Commonwealth v. Brigidi, 6 A.3d 995, 1001 (Pa.
Super. 2010) (citing Commonwealth v. Crowley, 605 A.2d 1256, 1257 (Pa.
Super. 1992)). “A Superior Court panel is bound to follow the controlling
precedent of the Superior Court . . . [and] has no authority to overrule a
decision of the Superior Court, although the Superior Court, sitting en banc,
may overrule the decision of a three-judge Superior Court panel.” Appellate
Considerations, 16B West’s Pa. Prac., Criminal Practice § 33:23 (footnotes and
internal citations omitted). This Court has stated, “As a court en banc, we are
not bound to follow a superior court panel opinion.” Commonwealth v.
Snyder, 761 A.2d 584, 590 (Pa. Super. 2000) (citing Neilson v. Nationwide
Insurance Co., 738 A.2d 490 (Pa. Super. 1999)). En banc decisions,
therefore, are precedential for three-judge panels of this Court.
We reiterate it is well established that “once the statutory grounds for
termination [of parental rights] have been met under Section 2511(a), the
court must consider whether termination serves the needs and welfare of
the child, pursuant to Section 2511(b).” C.L.G., 956 A.2d at 1009 (emphasis
in original). Therefore, consideration of Section 2511(b) is a prerequisite to a
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trial court’s involuntary termination of parental rights. Similarly, this Court
has indicated that on appeal, we should review whether the trial court’s
evaluation of the needs and welfare of the child are met by termination of
parental rights despite improper preservation of the issue. Id.
Here, Father raised the issue of Section 2511(b) in his brief, Appellant’s
Brief at 11–12, 18–20, and the trial court addressed the claim in its Pa.R.A.P.
1925(a) opinion. Trial Court Opinion, 1/30/18, at 19–21. In reliance on
C.L.G., I would not find waiver. However, because the record supports the
trial court’s determination that termination of Father’s parental rights best
serves Child’s interest, I agree with the Majority that the order should be
affirmed.
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