In the Interest of: A.N.P., a Minor Appeal of: E. , 155 A.3d 55 ( 2017 )

J-A28016-16
2017 Pa. Super. 21
IN THE INTEREST OF: A.N.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: E.C.G., MOTHER :
:
:
:
: No. 1188 EDA 2016
Appeal from the Order Entered March 16, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000804-2015
BEFORE: PANELLA, SHOGAN, and PLATT*, JJ.
OPINION BY SHOGAN, J.: FILED JANUARY 30, 2017
E.C.G. (“Mother”) appeals from the decree and order dated and
entered on March 16, 2016, granting the petition filed by the Philadelphia
County Department of Human Services (“DHS” or the “Agency”), seeking to
involuntarily terminate her parental rights to her dependent, minor child,
A.N.P., a daughter born in January of 2012 (“Child”), pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and to change
Child’s permanency goal from reunification to adoption under the Juvenile
Act, 42 Pa.C.S. § 6351.1 We vacate and remand.
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* Retired Senior Judge assigned to the Superior Court.
1
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court stated
that Child’s biological father, D.D., Sr. (“Father”) died in October of 2015.
(Footnote Continued Next Page)
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The trial court set forth the factual and procedural background of this
appeal in its opinion filed pursuant to Pa.R.A.P. 1925(a) on May 16, 2016,
which we incorporate herein. Trial Court Opinion, 5/16/16, at 1–5. Notably,
Child was born prematurely at six months gestation, and, as a result, has
had numerous special needs, including a gastrointestinal (“GI”) feeding tube
for more than four years. Id. On March 20, 2013, the trial court
adjudicated Child dependent and placed her in the legal and physical custody
of DHS.
On November 6, 2015, DHS filed a petition for the termination of
Mother’s parental rights and for a change in Child’s permanency goal from
return to parent or guardian to adoption. On March 16, 2016, the trial court
held a hearing on the termination and goal-change petitions. At the hearing,
the trial court admitted the entire dependency record regarding Child as DHS
Exhibit 2, and a summary of Child’s medical records as DHS Exhibit 3. N.T.,
3/16/16, at 7–8. DHS first presented the testimony of the Community
Umbrella Agency (“CUA”) caseworker, Torshia Admiral. N.T., 3/16/16, at 9.
During the re-cross examination of Ms. Admiral by Mother’s counsel,
_______________________
(Footnote Continued)
Trial Court Opinion, 5/16/16, at 5. This date is apparently a typographical
error. The trial court admitted the certificate of death for Father, which
reflects that Father died in October of 2013, as DHS Exhibit 1. The trial
court, nevertheless, in a decree dated and entered on March 16, 2016, also
involuntarily terminated the parental rights of the unknown putative father
of Child. The unknown father has not filed an appeal from the termination of
his parental rights or the change of Child’s permanency goal to adoption, nor
is he a party to the present appeal.
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Attorney John Capaldi, Mother left the courtroom, claiming she felt ill, and
the trial court excused her. Id. at 36. Her counsel requested a five-minute
recess, which the trial court denied, and the testimony concluded. Id. at 37.
The trial court ruled that Mother had waived her right to present her own
testimony by leaving the courtroom without leave of court, and it refused to
allow her counsel to present her testimony on direct examination to refute
the evidence against her. Id. at 40–42. Although Mother attempted to re-
enter the courtroom, the trial court refused her reentry and rendered its
decision on the petitions without hearing Mother’s testimony, over the
objection of Mother’s counsel. Id. at 42–45.
In the decree and order dated and entered on March 16, 2016, the
trial court granted the involuntary termination petition pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and the petition to change
Child’s permanency goal to adoption under 42 Pa.C.S. § 6351.
On April 15, 2016, Mother timely filed a notice of appeal and concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
On appeal, Mother raises three issues, as follows:
1. Whether the trial court erred in refusing [Mother] to
participate in the hearing and testify and provide evidence on
her own behalf when she returned to the courtroom after briefly
removing herself due to physical illness and emotional upset?
2. Whether the trial court’s ruling to involuntarily terminate
[Mother’s] parental rights to her daughter, A.N.P., was not
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supported by clear and convincing evidence establishing grounds
for involuntary termination?
3. Whether the trial court’s decision to change A.N.P.’s
permanency goal from reunification to adoption was not
supported by clear and convincing evidence that such decision
would best protect the child’s needs and welfare?
Mother’s Brief at 5.
In her first issue, Mother argues that the trial court egregiously erred
and significantly abused its judicial discretion when it denied Mother an
opportunity to participate, testify, and present evidence on her own behalf
after Mother claimed to be ill and left the courtroom. Mother’s Brief at 15.
Mother recounts that the judge became angry because Mother left her
courtroom without asking permission when Mother stated that she felt sick.
Mother argues that the trial court, in refusing to allow her to testify or even
re-enter the courtroom and be a participant in the termination proceedings,
violated her constitutional guarantee to due process. Mother alleges that
this violation of her constitutional due-process guarantee, which is included
in the statutory scheme of the Adoption Act, particularly 23 Pa.C.S.
§ 2503(b)(1),2 and the Juvenile Act, 42 Pa.C.S. §§ 6337 and 6338, was a
fundamental deprivation of her right to testify on her own behalf and
participate in the proceedings. Mother’s Brief at 19–23. Mother states that
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2
Mother’s reliance on section 2503(b)(1) is misplaced, as that section
provides for hearings in matters of voluntary relinquishment. Section
2513(b) of the Adoption Act relates to hearings in involuntary termination
matters.
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the trial court’s ruling was especially egregious because, after initially
excusing Mother, the trial court then extinguished Mother’s parental rights to
Child and changed the permanency goal for Child to adoption without
hearing from Mother. Mother asserts that the trial court improperly denied
her counsel’s reasonable request for a brief recess in order to check on the
health of his client and, in the alternative, for a continuance. Mother argues
that the trial court’s preclusion of her from the courtroom effectively allowed
DHS to present its case unopposed, without her presence or participation,
and eliminated the possibility of the court’s receipt of contrary testimony and
evidence by Mother that would weigh on the court’s very important ruling.
Mother asserts that, at no time prior in the three-year history of this case,
had she ever applied for or been granted a continuance in this matter.
Accordingly, Mother contends that the trial court’s unreasonable conduct
denied her a fair and impartial hearing.
Mother then raises her second and third issues in the alternative. In
her second issue, Mother contends that the trial court’s termination decree is
not supported by clear and convincing, competent evidence under 23 Pa.C.S.
§§ 2511(a)(1) and (8).3 Mother’s Brief at 15–16. Mother complains that the
evidence DHS presented at the hearing failed to establish any parental
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3
By failing to present argument on subsection 2511(a)(2) and (5), Mother
has waived any challenge to a termination under those subsections.
Pa.R.A.P. 2119.
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objective plan that Mother had substantially failed to meet or would prohibit
reunification of Child with her. In her third, alternative issue, Mother argues
that the record does not demonstrate the trial court gave primary
consideration to the developmental, physical, and emotional needs and
welfare of Child under 23 Pa.C.S. § 2511(b). Id. at 16. Mother alleges that
DHS presented only superfluous and minimal evidence at the hearing with
regard to whether the termination of her parental rights would meet the best
interests and developmental, physical, and emotional needs and welfare of
Child.
Initially, we will address Mother’s first issue. We note, however, that
all of her issues are interrelated and require our review of the entire
transcript for the events that transpired at the termination and goal-change
proceeding.
At the hearing, Ms. Admiral testified that Child was currently residing
in a medical foster care home with the R.s, who had been certified as
caregivers through Bethanna, a community program. N.T., 3/16/16, at 9.
Child was doing extremely well in the R.s’ home and was attending pre-
school at Good Shepherd three times a week. Id. Previously, Child had
attended Pediatria Specialty, a medical daycare facility, until the week prior
to the hearing, March 10, 2016, when her GI feeding tube was removed.
Id. At the time of the hearing, Child was receiving speech therapy, physical
therapy, occupational therapy, and specialized instruction at the pre-school.
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Id. Child’s foster parents took her to therapy at St. Christopher’s Hospital
and to her medical appointments. Id. at 9–10. Child consistently attended
the therapy appointments and her medical appointments. Id. at 10. Child’s
foster parents took her to her pediatrician and her gastrointestinal specialist
at least three times a month. Id. At the time of the hearing, Child was four
years old. Id. She was current in her medical care, and she was receiving
the services required for her special needs. Id. Ms. Admiral last saw Child
in her foster care home on the date of the hearing; she found that Child
appeared to be safe and that all of her needs were being met. Id. at 11.
Ms. Admiral testified on direct examination and cross-examination that the
R.s are a pre-adoptive home for Child. Id.
On cross-examination by Mother’s counsel, Ms. Admiral testified that,
since Child’s GI tube had been removed, she would not need to be seen as
frequently by her physicians. N.T., 3/16/16, at 12. She also testified that
Child has weekly supervised visits with Mother. Id.
On re-direct examination, Ms. Admiral testified that this case first
came to DHS with a General Protective Services (“GPS”) report made on
February 18, 2013. Having been born premature at twenty-five weeks,
Child was diagnosed with intestinal failure, chronic respiratory disease, and
sleep apnea, and she was developmentally delayed. N.T., 3/16/16, at 12–
13. At that time, Child was residing at St. Christopher’s Hospital, where she
remained for one year. Id. Child was then sent to a medical facility,
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Pediatria Specialty, for one year. Id. Child was placed with the R.s in
September of 2014. Id.
Ms. Admiral further testified that, while Child was initially in St.
Christopher’s Hospital, DHS received a report that Mother was not visiting
Child regularly, at times going ten days without visiting Child in the hospital.
N.T., 3/16/16, at 13–14. When Mother threatened to take Child from the
hospital, DHS obtained an Order of Protective Custody (“OPC”). Id. at 14.
While Child was in the hospital with her extreme medical needs, DHS offered
Mother medical training for those needs. Id. Mother completed only one
day of the three training sessions offered. Id. Mother was inattentive and
unfocused, instead of learning how to care for Child properly. Id.
When Mother did not adequately complete the training sessions, the
hospital requested that DHS obtain an OPC for Child to be removed from
Mother’s care on an ongoing basis. N.T., 3/16/16, at 15. Ms. Admiral was
assigned to this case in January of 2015. Id. When the case initially came
to DHS, DHS established Single Case Plan (“SCP”) or Family Service Plan
(“FSP”) objectives for Mother. Id. at 16. Those objectives were for Mother
to attend the Clinical Evaluation Unit (“CEU”) forthwith. Id. Mother was to
complete drug treatment and mental health treatment; to attend domestic
violence counseling; to be consistent with visitation; and to provide
documentation for any reason she canceled visits. Id. Mother also had
objectives with respect to medical training and attending Child’s medical
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appointments. Id. When Ms. Admiral was assigned to the case, Mother had
not completed any of those objectives, nor had Mother completed them at
the time of the termination/goal change hearing. Id. at 16-17.
Upon her assignment to the case, Ms. Admiral reviewed Mother’s
objectives with her regularly; they were the original objectives established
for Mother. N.T., 3/16/16, at 17. Since the inception of the case, DHS
consistently invited Mother to participate in SCP meetings, which were held
every three months. Id. at 17–18. Mother participated in only one SCP
meeting; that meeting was held after Ms. Admiral assumed the case and
after the birth of Mother’s son in August of 2015. Id. at 18–19.
Prior to Ms. Admiral’s involvement, DHS offered Mother three
supervised visits per week with Child. However, because of her
inconsistencies in visitation, visits were changed to once a week beginning in
November of 2014. N.T., 3/16/16, at 18–19. After Ms. Admiral assumed
the case, DHS offered Mother weekly, supervised visits with Child every
Friday, and Mother was aware of the visitation arrangement offered. Id.
Since January of 2015, Mother’s visits with Child have continued to be
inconsistent, with Mother often missing at least one visit a month, and
sometimes two visits per month. N.T., 3/16/16, at 19. The month of
August of 2015, after Mother gave birth to her son, was the only month that
Mother attended every scheduled visit. Id. In speaking with Ms. Admiral,
Mother did not inform Ms. Admiral that she was pregnant, nor was
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Ms. Admiral otherwise aware of that fact until after Mother had given birth to
a son. Id. at 19–20.
From the time Ms. Admiral acquired the case in January of 2015 until
the termination petition was filed in November of 2015, Mother had attended
twenty-two of the possible forty visits offered her. N.T., 3/16/16, at 20.
Mother had never fully complied with the visitation arrangement since Child
came into care. Id.
Mother was aware of Child’s medical conditions for the duration of the
case, and she has been aware of when and where Child’s appointments
occurred, because she had attended appointments at St. Christopher’s
Hospital. N.T., 3/16/16, at 20–21. Child attends her appointments only at
St. Christopher’s Hospital. Id. at 21. Ms. Admiral notifies Mother of
upcoming appointments. Id. Mother has the phone number of the foster
parents, and she is able to call and receive updates from them. Id.
Mother’s attendance at Child’s medical appointments has remained
inconsistent. Id. at 22. Mother attended three of eight appointments
between August of 2015 and March of 2016, but she left one appointment
early before Child was seen. Id. Prior to August of 2015, Mother did not
attend Child’s medical appointments, and she attended only two out of
approximately twenty doctor’s appointments from the period of January of
2015 to August of 2015. Id.
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When Child was at Pediatria Specialty, Mother was offered medical
training to learn how to care for Child, but she never completed that
training. N.T., 3/16/16, at 23. When Child was at St. Christopher’s
Hospital, Mother was also offered medical training, but again she did not
complete it. Id. Moreover, Bethanna offered Mother medical training, but
she did not participate. Id. Mother has not completed training to care for
Child’s medical needs. Id. Mother never expressed to Ms. Admiral her
desire to be trained to care for Child’s medical needs. Id. Mother did not
disclose to Ms. Admiral that she had any health complications that would
have prevented her from attending visits or training. Id. Mother was not
incarcerated while Ms. Admiral was assigned the case. Id. at 24.
Ms. Admiral believes that, without her assistance or reminders from the
foster parent, Mother would be unable to manage Child’s medical
appointments. Id.
Mother has not completed any drug and alcohol treatment. N.T.,
3/16/16, at 24. Mother was participating in the Sobriety Through Outpatient
(“STOP”) intensive outpatient program; however, based on the information
from Community Behavioral Health (“CBH”), Mother stopped attending on
November 25, 2015. Id. at 24–25. Mother was supposed to attend three
times per week, twelve sessions per month, and she was enrolled over a
four-month period. Id. at 25. Mother attended twelve out of forty-eight
sessions with STOP as of November 25, 2015. Id.
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Ms. Admiral testified that Mother never completed a course of mental
health treatment, but she was participating in treatment at John F. Kennedy
Center. N.T., 3/16/16, at 26. Prior to the filing of the termination/goal
change petition, Mother was not receiving any mental health services,
although mental health was an objective for her from the outset of the case.
Id. Mother never completed court-ordered services through Achieving
Reunification Center (“ARC”), and she was discharged for being inactive. Id.
Mother did not complete parenting classes. Id. Mother was directed to
obtain employment services through ARC, but she had not been employed
since Ms. Admiral assumed the case. Id. at 26–27. Ms. Admiral testified
that Mother has not completed any of her objectives. Id. at 27.
Ms. Admiral opined that a permanency goal change to adoption was in
Child’s best interest because Child has improved greatly, developmentally
and medically, as a result of the foster parents’ commitment to her. N.T.,
3/16/16, at 27. Child looks to the foster parents to meet her basic needs.
Id. Ms. Admiral testified that Child’s GI tube is now removed because the
foster parents have been encouraging Child to eat solid food. Id.
Ms. Admiral stated that Child is gaining weight and is doing very well. Id.
The foster parents have taken Child to all of her appointments, and Child has
not required hospitalization since being in their care. Id.
Ms. Admiral stated that the visits between Mother and Child are
supervised and that there is good interaction between Mother and Child.
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N.T., 3/16/16, at 28. Ms. Admiral gave as an example that Mother does
Child’s hair during the visits. Id. Ms. Admiral testified that Child looks at
Mother the same way as she looks at Ms. Admiral, as an individual she sees
regularly. Ms. Admiral opined that, to Child, there is no difference between
Mother being Child’s mother and Ms. Admiral being Child’s case manager.
Id.
With regard to Child’s interaction with the foster parents, Ms. Admiral
testified there is a bond between Child and the foster parents, based on her
observation of their interaction at the foster parents’ home. N.T., 3/16/16,
at 29. Each time Ms. Admiral is at the home of the foster parents, Child has
many toys around her, and the foster parents interact well with Child. Id.
Child is always looking to the foster parents for hugs and kisses. Id. She
seeks the foster parents to meet her basic needs, and they are able to do
so. Id. Ms. Admiral has observed a positive attachment between Child and
the foster parents, which indicates a fuller, more affectionate relationship
and bond than Child’s interaction with Mother. Id. Ms. Admiral testified the
foster parents are ensuring that Child attends her medical appointments and
therapeutic services and receives the care that she needs. Id. at 30.
Ms. Admiral believes that Child would not suffer any adverse effects from the
termination of Mother's parental rights. Id. at 29.
Subsequently, the Child Advocate, Attorney Fegan, conducted re-cross
examination of Ms. Admiral. Ms. Admiral testified that Child is currently
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undergoing physical therapy, speech therapy, and occupational therapy once
per week. N.T., 3/16/16, at 30. Ms. Admiral explained that Child is
functioning at the level of an eighteen-month-old child, as she has speech
delays. Id. at 31. Ms. Admiral also testified that the R.s spend a significant
amount of time on a daily basis helping Child overcome her disabilities. Id.
at 32.
Mother’s counsel then conducted re-cross examination of Ms. Admiral.
During the questioning by Mother’s counsel, Mr. Capaldi, the following
exchange took place:
Q. As you mentioned, Ms. Admiral, you were not the original
worker, correct? You came on in –
THE COURT: She already stated that four times, January, 2015.
MR. CAPALDI: January, 2015, correct.
BY MR. CAPALDI:
Q. When you came onto the case there was already a case file
for this, correct?
A. Yes.
Q. And you had a chance to review all those documents and
become familiar with the case, correct?
A. Yes.
Q. Okay. So you’re aware that prior to being placed with the
[R.s] that [Child] had experienced a burn incident in a prior
foster home where she had severely burned her hand, right?
A. No, I’m not (inaudible)
Q. You’re not aware of this?
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[DHS Attorney] MR. WISE: Objection to relevance.
THE COURT: Yes, where’s the relevance?
MR. CAPALDI: Well the relevance will be, Your Honor, my client
– there’s been testimony that my client, at that time of
placement and thereafter was belligerent at times and things.
THE COURT: I didn’t hear belligerent.
MR. CAPALDI: Well maybe that’s the wrong word.
THE COURT: Let me tell you what I heard. Let me tell you what
I heard.
MR. CAPALDI: Okay.
THE COURT: I heard out of 40 visits she only made 22 visits.
That’s what I heard. I heard that out of eight medical visits she
only made two. Let’s talk about that. We sent her to CEU. She
was at STOP out of 48 visits she only made 12. Speak to that.
Don’t bring up any other investigations, allegations or what
happened to this child in foster care because I’m dealing with
the [R.s] who are a pre-adoptive resource.
MR. CAPALDI: Okay.
THE COURT: So this is your time to [trumpet] the wonderful
things about your client because I need to make a decision and
I’m not going to get into the weeds on this case. So let’s go.
MR. CAPALDI: Okay.
BY MR. CAPALDI:
Q. First off, are the [R.s] -- is this a pre-adoptive home?
A. Yes, it is.
Q. Okay. All right. My client, she relies on public transportation,
correct?
A. Yes.
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Q. Okay. So she needs to use that to make visits, make doctor’s
appointments, things along those lines, correct?
A. Yes.
Q. Okay. Regarding the testimony of her visits which you said
she made a little bit more than half. Did she ever, did she
indicate to you at any times where she had legitimate excuses
for not attending? These are the visits with the child, Your
Honor, not the medical visits. The visits with the child?
A. Yes, she would contact the case aide and say that she won’t,
you know, be able to come.
Q. Okay. So she did follow those protocols, correct?
A. Yes.
Q. And as you mentioned, she did give birth in August of last
year to another child, [A.], correct?
A. Yes.
Q. And that child is actually in the care of her and the father,
who is the gentleman, the fiancé who is outside, correct?
MR. WISE: Your Honor, I’m going to object because that case
was discharged. The child was discharged –
THE COURT: I don’t know why we’re talking about [A.]
MR. WISE: He was discharged into the care of father not mother.
THE COURT: At this point –
MR. CAPALDI: Well, Your Honor –
THE COURT: At this point, so much testimony has been
damaging to your client about inconsistencies even before
August. I mean, so we shouldn’t start there. And if mom --
Mom –
MR. CAPALDI: Mom, mom, mom –
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THE COURT: Okay. No, no –
[MOTHER]: I’m getting sick.
THE COURT: Okay, bye. Your [sic] excused.
Your [sic] excused.
MR. CAPALDI: She’s getting sick.
THE COURT: Whatever. You don’t have a client.
MR. CAPALDI: Well, can I –
THE COURT: You have – I’m giving you seven minutes.
Make your case because now she walked out. She didn’t
ask permission of the Court. That’s disrespectful
considering that this is a critical hearing. So –
MR. CAPALDI: Your Honor, can I ask for a five-minute
recess to see if she –
THE COURT: No, I'm not doing a five-minute recess.
We’re going -- do your case. This case --
MR. CAPALDI: Well I just want to see if she was sick. If
she’s going to vomit or something.
THE COURT: You know what, doesn’t she have her fiancé
out there.[sic] He’ll see to it if she’s sick or not. Let’s go.
Let’s do this case.
MR. CAPALDI: Okay, okay, okay. Very well, Your Honor.
BY MR. CAPALDI:
Q. So of some of the visits that she missed she would
follow the protocol to -- correct?
THE COURT: Whatever. You don’t have a client.
MR. CAPALDI: Well can I –
A. Yeah.
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MR. WISE: Objection, asked and answered.
BY MR. CAPALDI:
Q. Regarding the medical training. Was she, to your knowledge,
was she supposed to be coming to both the Saint Chris
appointments and the GI appointments?
A. Yes. She was –
THE COURT: Okay, let’s stop this. The testimony on direct
because we’re not going to – we’re not going to get into weeds
on this. She did not complete medical training that was offered
at Saint Christopher’s, Pediatria Specialty and Bethanna. If you
have a justification for her missing it, I want an offer of proof
now. If not, we’re just going to keep on going. What’s your
offer of proof with this line of questioning?
MR. CAPALDI: I don’t have one.
THE COURT: Okay.
MR. CAPALDI: I’ll move on.
THE COURT: Move on.
MR. CAPALDI: I’ll move on.
Q. Regarding drug and alcohol, you mentioned that she stopped
her treatment at STOP in November of last year. Up until that
point she had been testing negative, correct?
A. Yes.
Q. Okay. You don’t have any information that from that point --
well I believe the Court’s only interested until that point because
I was (inaudible)
THE COURT: Yes, you can’t talk about anything after the fact.
BY MR. CAPALDI:
Q. Right. Right but up to that point she had been testing
negative, correct?
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MR. WISE: Your Honor, she’s only attended 12 out of 48. She
wasn’t getting adequate screens.
THE COURT: And that’s for argument.
So I get it but I’m going to allow Mr. Capaldi to continue.
BY MR. CAPALDI:
Q. Okay. Regarding mental health. She was receiving mental
health treatment throughout the history of this case up until
November, ’15, correct? Not consistently but –
MR. WISE: Objection, asked and answered, Your Honor. And
that’s not a characterization of testimony.
MR. CAPALDI: Not consistently but –
THE COURT: Okay. I need an offer of proof. Do you have any
medical documentation?
MR. CAPALDI: I don’t.
THE COURT: Mental health documents?
MR. CAPALDI: I don’t.
THE COURT: For your client? Do you have any information
about the negative drug screens through STOP, Mr. Capaldi?
MR. CAPALDI: Her testimony but she’s -
THE COURT: Oh, and I’m not allowing her to come back in.
So that testimony is out the window because she walked
out without permission of the Court. Even if she was sick
she should have had the courtesy to let me know that. So
her disdain for the Court has been so noted. Keep going.
BY MR. CAPALDI:
Q. Have you been out to her home?
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A. No, we have scheduled several home assessment
appointments and mom hasn’t made herself available to that
end.
Q. And although testimony was she’s not employed and she
didn’t do employment training through ARC you’re aware that
she -- her current situation is that she’s a full-time homemaker
for [A.].
A. No, I did not know that.
Q. You didn’t know that?
A. No.
Q. All right.
MR. CAPALDI: Your Honor, I, unfortunately, have nothing
more for this witness. I would ask the Court for leave to
see if my client is there –
THE COURT: I’m not granting leave. We’re doing this case
now.
MR. CAPALDI: Okay, okay. Well then I have –
THE COURT: She can’t come back in this room.
MR. CAPALDI: Okay.
THE COURT: So she has waived her opportunity to give
testimony in her own hearing because without leave of
the Court she decided to just get out.
MR. CAPALDI: Okay.
THE COURT: So anything else?
MR. CAPALDI: I have nothing else but argument.
THE COURT: Okay. And really I’m not even going to allow
argument because argument is not evidence. Anything
else?
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MR. WISE: I just have argument as well, Your Honor.
THE COURT: Okay. Not allowing argument. All right. So
I’ve heard enough. This is the Court’s order. With clear
and convincing evidence this Court finds that the parental
rights as to [Child] –
Out, out. Stay out.
MR. CAPALDI: Your Honor, can we see if she was sick?
THE COURT: No, no. I’m not -- if she didn’t have the
decency to tell you -- no, you wait until it’s over and then
you can find out if she’s sick. I won’t be long.
Clear and convincing evidence that the rights as to the
mother, [Mother] should be involuntarily terminated at this time.
The basis for the [c]ourt’s decision is the following.
Mother has not complied with any of her objectives that
were present at the time this child was adjudicated dependent
on March 20, 2013. She has not complied with Clinical
Evaluation Unit. Most recently the testimony has been that she
attended STOP and made only 12 out of 48 sessions there. Mom
has no documentation to prove that she’s ever fully complied
with mental health. There’s no indication that mom has
complied with domestic violence training.
In terms of visitation the record, the testimony will reflect
that mom has made 22 out of 40 visits since January, 2015.
And mom has not completed medical training at Saint
Christopher’s, Pediatria Specialty or Bethanna. None of those
three agencies has she completed medical training.
So even if this child could . . . go to -- mom couldn’t
possibly do that because she can’t meet the day to day needs of
this child. The [c]ourt is satisfied that the [R.s] have shown that
they love this child, willing to nurture this child. Most recently
the G-tube has been removed. This child has a lot of needs still
with speech, physical therapy, occupational therapy and
specialized instruction. Mom has not shown enough consistency
in this child’s life with visits or otherwise for this [c]ourt to even
consider remotely the reunification that something that’s going
to happen.
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This case has been open for three years now. So
therefore, it’s clear with this [c]ourt that that’s the proper order
to be made that the rights be involuntarily terminated and that’s
based on 2511(a)1, (a)2, (a)5, (a)8 [sic]. And in terms of the
bond this child looks to the [R.s] to meet her day to day needs
and so 2511(b) has been taken into consideration.
This [c]ourt finds a finding of safety as of 3/16/2016,
reasonable efforts as to the agency. This child is to remain as
committed. The appointment as to Mr. Capaldi is going to be
discharged within 31 days of this hearing.
This [c]ourt’s goal is now adoption. This case can proceed
to the adoption unit for further processing. This case is to be
transferred to the DHS’ unit of adoption within 30 days for
further processing as well. All profiles need to be started.
There’s the child profile and the family profile. And so that is the
order of this [c]ourt.
N.T., 3/16/16, at 33–44 (emphases added).
In reviewing an appeal from an order terminating parental rights or
changing a permanency goal, we adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; [In re]
R.I.S., [36 A.3d 567, 572 (2011)]. As has been often stated, an
abuse of discretion does not result merely because the reviewing
court might have reached a different conclusion. Id.; see also
Samuel–Bassett v. Kia Motors America, Inc.,___ Pa. ___,
34 A.3d 1, 51 (2011); Christianson v. Ely, 575 Pa. 647, 838
A.2d 630, 634 (2003). Instead, a decision may be reversed for
an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
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As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[t]he 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., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
Further, in Krull v. Krull, 344 A.2d 619, 620 (Pa. Super. 1975), this
Court held that a trial court’s grant or denial of a request for a continuance
will not be disturbed absent an abuse of discretion. Thus, we will apply an
abuse-of-discretion standard to this matter.
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“Due process requires nothing more than adequate notice, an
opportunity to be heard, and the chance to defend oneself in an impartial
tribunal having jurisdiction over the matter.” In re J.N.F., 887 A.2d 775,
781 (Pa. Super. 2005). “Due process is flexible and calls for such procedural
protections as the situation demands.” In re Adoption of Dale A., II, 683
A.2d 297, 300 (Pa. Super. 1996) (quoting Sullivan v. Shaw, 650 A.2d 882,
884 (Pa. Super. 1994)).
It is well settled that termination of parental rights implicates a
parent’s Fourteenth Amendment right to due process. See In the Interest
of A.P., 692 A.2d 240, 242 (Pa. Super. 1997) (stating that parents have a
“fundamental liberty interest . . . in the care, custody, and management of
their children”) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
An individual whose parental rights are to be terminated must be given due
process of law, as the termination of parental rights is a constitutionally-
protected action. See In re Interest of K.B., 763 A.2d 436, 439 (Pa.
Super. 2000) (citing Santosky, supra). DHS bears the burden to prove
proper service by its affirmative act. In re Interest of K.B., 763 A.2d at
439 (citing Leight v. Lefkowitz, 615 A.2d 751, 753 (Pa. Super. 1992)).
Section 2513(b) of the Adoption Act provides that at least ten days’
notice shall be given to the parents, by personal service or registered mail,
to their last known address, or by such other means as the court may
require. Further, the section provides that the notice shall state certain
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language, including the right to representation and how to obtain counsel if
the parents cannot afford counsel. Additionally, the statutory language
requires a warning that, upon failure to appear, the hearing will go on
without the parent, and the parent’s rights to the child in question may be
terminated by the court without the parent’s presence at the hearing. 23
Pa.C.S. § 2513(b).
Rule 5.3 of the Pennsylvania Orphans’ Court Rules provides:
Whenever notice of the intention to do any act is required, such
notice shall be given at least ten days prior to the doing of the
act, unless a different period is specified by a rule adopted by
the Supreme Court or by an Act of Assembly.
Pa.O.C.R. 5.3.
In addition, Rule 15.4(d) of the Pennsylvania Orphans’ Court Rules,
governing involuntary termination of parental rights, provides that notice of
the involuntary termination petition must be given to each parent.
Furthermore, Rule 15.6 sets forth the manner of service, as follows:
(a) Notice to every person to be notified shall be by personal
service, service at his or her residence on an adult or member of
the household, or by registered or certified mail to his or her last
known address. If such service is unobtainable and the
registered mail is returned undelivered, then:
(1) no further notice shall be required in proceedings
under Rules 15.2 or 15.3, and
(2) in proceedings under Rules 15.4 and 15.5, further
notice by publication or otherwise shall be given if required
by general rule or special order of the local Orphans’
Court. If, after reasonable investigation, the identity of a
person to be notified is unknown, notice to him or her shall
not be required.
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Pa.O.C.R. 15.6(a).
When considering a petition for goal change for a dependent child, the
trial court considers:
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances which necessitated the original
placement; the appropriateness and feasibility of the current
placement goal for the child; and, a likely date by which the goal
for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (quoting In re N.C., 909
A.2d 818, 823 (Pa. Super. 2006)).
Regarding the disposition of a dependent child, subsections 6351(e),
(f), (f.1), and (g) of the Juvenile Act provide the trial court with the criteria
for its permanency plan for the subject child. Section 6351(f.2) provides
that the evidence of the conduct of the parent that places the child at risk
shall be presented to the court at any permanency hearing. Pursuant to
those subsections of the Juvenile Act, the trial court is to determine the
disposition that is best suited to the safety, protection, and physical, mental,
and moral welfare of the child.
Similar to the statute governing hearings on termination petitions,
section 6337 of the Juvenile Act provides that a party in a juvenile matter is
entitled to representation by legal counsel at all stages of any proceeding.
Section 6338 of the Juvenile Act, 42 Pa.C.S. § 6338, provides that a party is
entitled to the opportunity to introduce evidence and otherwise be heard on
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his own behalf and to cross-examine witnesses. Further, regarding
permanency hearings, such as a goal-change hearing, Rule 1608(C)(1) of
the Pennsylvania Rules of Juvenile Court Procedure provides that any
evidence helpful in determining the appropriate course of action, including
evidence that was not admissible at the adjudicatory hearing, shall be
presented to the court.
Upon review, we agree with Mother’s position. When the trial court
indicated that Mother was excused from the hearing upon Mother’s assertion
that she was ill, the court did not, and could not properly have, placed any
constraints on Mother’s return to the proceedings. Indeed, the statutory
language of 23 Pa.C.S. § 2513 requires a warning to the parent that, upon
failure to appear, the hearing will proceed without the parent, and the
parent’s rights to the child in question may be terminated by the court
without the parent’s presence at the hearing. Likewise, section 6338 of the
Juvenile Act provides that the parent is entitled to the opportunity to
introduce evidence and otherwise be heard on her own behalf and to cross-
examine witnesses, and Rule 1608(C)(1) of the Pennsylvania Rules of
Juvenile Court Procedure provides that, at a permanency hearing, any
evidence helpful in determining the appropriate course of action, which could
include the parent’s own testimony, shall be presented to the court.
This Court has stated, “Termination of parental rights is a drastic
measure that should not be taken lightly. Not only are [parent’s] rights at
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stake here, but [the child’s] right to a relationship with [his or her parent] is
also at stake.” In re Adoption of K.G.M., 845 A.2d 861, 864 (Pa. Super.
2004) (citing In re Adoption of Stickley, 638 A.2d 976, 980 (1994)).
Further, in K.G.M., this Court opined, “We are unwilling to allow the
termination of . . . parental rights, however, without strict compliance with
the procedures set forth by the Legislature. . . .” K.G.M., 845 A.2d at 865.
Here, we find that the trial court ran afoul of section 2513(b) of the
Adoption Act and sections 6337 and 6338 of the Juvenile Act, as well as Rule
15.4 of the Orphans’ Court Rules, and Pa.R.J.C.P 1608(1). It did so by
excusing Mother from the hearing without informing her that she would not
be permitted reentry to the court proceeding, and then refusing to allow
Mother’s counsel to present any evidence, in the form of Mother’s testimony,
to rebut the evidence that DHS presented against her. Although the trial
court might well have believed that DHS presented overwhelming evidence
against Mother, the trial court violated Mother’s constitutional guarantee to
due process when it precluded her from the opportunity to be heard.
Accordingly, we must vacate the decree and order and remand the
matter for further proceedings before the trial court, which shall include
Mother’s opportunity to have counsel assist her in presenting her case.
Additionally, we caution the trial court to heed the warning previously given
in Commonwealth v. Smith, 69 A.3d 259 (Pa. Super. 2013), as follows:
On remand, and in the future, we remind the trial court that
Canon 3(A)(1) of the Code of Judicial Conduct requires judges to
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“be faithful to the law.” Moreover, Canon 3(A)(3) provides that,
“Judges should be patient, dignified, and courteous to litigants,
jurors, witnesses, lawyers, and others with whom they deal in
their official capacity....” Our courts are forums for the assertion
and vindication of rights. The integrity and independence of our
courts mandate that those who seek to assert those rights
should not be told to “suck it up.” Our trial courts should not
indicate, expressly or implicitly, that they are “not interested” in
a person’s rights, nor should they instruct defendants to “tell the
[Superior Court] about your rights.” N.T., 9/27/2011, at 2–3.
Those who look to our courts to invoke a particular right, even if
incorrectly, should be met with patience, and with fidelity to the
procedures that our law requires, not with intemperance. This
fundamental precept derives not only from the Canons of Judicial
Conduct, but also from our society’s bedrock precept that the
courts are forums of integrity, justice, and equity.
Id. at 267–268.
Additionally, Code of Judicial Conduct Rule 2.8 now provides the
content previously embodied in former Canon 3(A)(1). Rule 2.8 provides as
follows:
(B) A judge shall be patient, dignified, and courteous to litigants,
jurors, witnesses, lawyers, court staff, court officials, and others
with whom the judge deals in an official capacity, and shall
require similar conduct of lawyers, court staff, court officials, and
others subject to the judge’s direction and control.
* * *
Comment: [1] The duty to hear all proceedings with patience
and courtesy is not inconsistent with the duty imposed in Rule
2.5 to dispose promptly of the business of the court. Judges can
be efficient and businesslike while being patient and deliberate.
[2] Commending or criticizing jurors for their verdict may imply
a judicial expectation in future cases and may impair a juror’s
ability to be fair and impartial in a subsequent case.
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Code of Judicial Conduct Rule 2.8 (adopted January 8, 2014, effective July 1,
2014).
When the trial court receives this matter on remand, we expect that
the hearing will be conducted in a manner mindful of Code of Judicial
Conduct Rule 2.8. Moreover, should there be an appeal in this matter, we
expect the trial court’s Rule 1925(a) opinion to be written in a fashion that
sets forth the statutory factors for termination and goal change and ties the
evidence to the statutory requirements, so that this Court may readily
conduct any future appellate review.
Decree and order vacated. Case remanded for further proceedings
consistent with this Opinion. Jurisdiction relinquished.
Judge Panella joins the Opinion.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
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