J-A30024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.P., A MINOR                      IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
APPEAL OF: A.S., MOTHER
                                                           No. 1334 MDA 2016


                     Appeal from the Decree of July 3, 2016
              In the Court of Common Pleas of Huntingdon County
                  Orphans' Court at No(s): CP-31-OC-12-2016


BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY OLSON, J.:                               FILED NOVEMBER 22, 2016

       Appellant, A.S., appeals from the decree that was entered on June 23,

2016 and made final on July 3, 2016, which involuntarily terminated

Appellant’s parental rights to her minor child, A.P. (born in October 2013)

(hereinafter “Child”).      We are constrained to remand the case for further

proceedings consistent with this memorandum.

       On March 18, 2016, Huntingdon County Children and Youth Services

Agency     (hereinafter    “the    Agency”),   filed   a   petition   for   involuntary

termination of Appellant’s parental rights (hereinafter “TPR Petition”).1           As

the Agency averred, on August 15, 2014, the trial court entered an order
____________________________________________


1
  On that same date, the Agency filed a petition to involuntarily terminate
the parental rights of Child’s natural father, Z.P. (hereinafter “Father”).
Father was served with the termination petition and the trial court appointed
counsel to represent Father; however, Father did not appear at the
termination hearing. The trial court terminated Father’s parental rights to
Child by decree entered on June 23, 2016 and made final on July 3, 2016.
Father has not filed a notice of appeal from the trial court’s termination
order and Father is not a party to the current appeal.
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finding that Child was dependent and awarding the Agency legal and

physical custody of Child. The Agency averred:

        At the time [Child] was originally placed, [Appellant] had
        overdosed on heroin and was subsequently arrested for
        burglary and placed in jail. Since that time, [Appellant] has
        either remained in jail or in a halfway house in compliance
        with sentences she received through the criminal justice
        system. [Appellant] absconded from the halfway house on
        February 10, 2016. At the time of this petition, a warrant
        for her arrest has been issued. . . .          [H]er present
        whereabouts are unknown.

TPR Petition, 3/18/16, at ¶¶ 3 and 8 (some internal capitalization omitted).

     Within the TPR Petition, the Agency claimed that:         Appellant was

incapable or unwilling to care for Child; Child “has been in placement in

excess of [12] months;” Appellant has “made little, if any progress in

remedying the issues and concerns which led to [Child’s] placement on

August 15, 2014;” and, “[t]he conditions which led to the removal or

placement of [Child] continue to exist and termination of [Appellant’s]

parental rights would best serve the needs and welfare of [Child].” Id. at

¶¶ 10-26.   The Agency sought termination of Appellant’s parental rights

under 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8). Id. at ¶¶ 13-26.

     The trial court appointed counsel to represent Appellant and then

scheduled a termination of parental rights hearing for June 23, 2016.

However, although Appellant’s counsel appeared for the June 23, 2016

hearing, Appellant did not personally appear at the hearing.




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      During the hearing, the Agency presented the testimony of Agency

caseworker Rose Sanders, who was assigned Child’s case. As Ms. Sanders

testified:

         The case came into us on intake on June 2, 2014[,] . . . that
         there were concerns that [Appellant] was hiding from the
         caseworkers and didn’t want to do drug screens. There
         were concerns that she was using heroin.           She was
         neglecting [Child]. There [were] reports that [Child] was
         crying all the time and had diaper rash and that there were
         concerns with home conditions.

                                      ...

         On July 21st of 2014[, Appellant] overdosed . . . on heroin.

N.T., TPR Hearing, 6/23/16, at 4.

      Ms. Sanders testified that, after Appellant’s overdose, “[Appellant] was

arrested for theft[; s]he was caught in the act and [the police] notified [the

Agency] that they were arresting her.” Id. at 5.    As a result, on August 15,

2014, the trial court declared Child dependent and placed Child in a foster

home. Id. at 4-5.

      On August 27, 2014, Child was transferred from the foster home to

the care of Father. Ms. Sanders testified:

         After [Child] was placed with [Father], there were continued
         concerns of him testing positive for drugs but he was living
         with his parents at the time, so there were other caregivers.
                                      ...

         [O]n December 18[,] 2014, [Father] got kicked out of his
         parents’ home and he was homeless. So on December 19,
         2014, the Agency filed an EPC and we had to chase [Father]
         all over town for about eight hours until we found him and
         [Child] in the middle of the night in the cold.

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                                      ...

        [Father] was caught by the Mount Union Police and the
        State Police [were] involved. They found him walking down
        the street carrying [Child] in freezing weather at like 12:30
        at night. . . . [Child] was dressed but he was dirty. He was
        hungry, he was thirsty and he was freezing. His face was
        red, beet red, from the cold.

Id. at 5-6 and 22.

      Moreover, Ms. Sanders testified that the authorities had to “chase[]

[Father] all over town” even though Father knew that the Agency was

looking for him.     Id. at 6.   According to Ms. Sanders:    “[Father] was in

communication with us on and off on cell phone and refused to meet with us

and refused to talk to us and meet with us face-to-face to discuss what we

were doing.” Id.

      On December 19, 2014, the Agency placed Child in E.H.’s foster home.

Ms. Sanders testified that: Child has remained in E.H.’s home continuously

since placement; E.H.’s home is pre-adoptive; Child is doing very well in

E.H.’s home and is “part of their family;” Child refers to E.H. as “mom” and

“looks at them as his family;” and, “an adoption and a permanent home for

[Child would] be in [Child’s] best interests.” Id. at 6, 10, and 29.

      Ms. Sanders testified that Appellant was incarcerated at the time Child

was placed in E.H.’s home.        Id. at 7.   However, on August 12, 2015,

Appellant was released to a Harrisburg halfway house and “the Agency




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beg[a]n working with her to have visits [with Child] at the halfway house.”

Id. at 8.

        Ms. Sanders testified that, from August 12, 2015 until October 2015,

Appellant had two failed tests for alcohol at the halfway house and, as a

result, Appellant was not permitted to leave the halfway house to visit Child.

Id. at 11. Therefore, Ms. Sanders testified, the Agency twice traveled from

Huntingdon to Harrisburg, with Child, so that Appellant could visit with Child.

Id. However, Ms. Sanders testified:

          [the last visit] didn’t go too well. It ended sooner than
          expected because [Appellant] had a breakdown of sorts
          when she was requested to change [Child’s] diaper and she
          couldn’t bring herself to do it and cried and asked for the
          foster mom to come back in and do it.

Id. at 17.

        Ms. Sanders testified that she last heard from Appellant in October

2015.     Id.   Further, Ms. Sanders testified, Appellant absconded from the

halfway house on November 10, 2015 and, after a warrant was issued for

her arrest, Appellant was arrested and incarcerated at SCI-Muncy. Id. at 8-

9 and 11. Ms. Sanders testified that Appellant was paroled “approximately a

week or two” prior to the TPR hearing. Id. at 9. Nevertheless, Ms. Sanders

testified that Appellant did not communicate with the Agency or with Child

after her arrest. Id. at 9.

        Ms. Sanders also testified that Appellant: does not have the insight or

ability to care for Child; has not been successful in obtaining and


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maintaining a stable home for Child; and, has not remedied the situation

that led to Child being placed and remaining in placement. Id. at 10-11.

     At the conclusion of the hearing, the trial court entered the following

decree:

                                   DECREE NISI

          NOW, this 23rd day of June, 2016, the [trial] court makes
          the following findings of fact, conclusions of law[,] and
          decree nisi:

                                FINDINGS OF FACT

          1. [Appellant] . . . is the natural mother of [Child].

          2. [Appellant] was duly served by [the] Deputy Sheriff of
          Lycoming County, Pennsylvania, with [] service . . . relative
          to a Petition to Involuntarily Terminate Parental Rights
          regarding [Child].

          3. [Appellant] failed to appear at the termination of parental
          rights hearing held June 23, 2016.

          4. [Appellant] has been represented by counsel since
          [Child] was declared dependent on August 15, 2014.
          Similarly, she was represented by counsel in the
          termination proceeding.

          5. At the time of the hearing, [Appellant] failed to attend;
          however, her counsel was in the courtroom and available to
          represent her.

          6. Testimony elicited at the termination hearing indicates
          that [Appellant] was recently paroled from SCI-Muncy.

                             CONCLUSIONS OF LAW

          1. The [trial] court was presented with sufficient factual
          evidence/information to support the involuntary termination
          of [Appellant’s] parental rights.


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         2. Termination of the parental rights of [Appellant] is in the
         best interests of [Child].

         3. The petitions, hearings[,] and procedures followed by the
         Agency are in compliance with the Pennsylvania Adoption
         Act.

                                      DECREE NISI

         The parental rights of [Appellant] regarding [Child] . . . are
         hereby terminated nisi.       Huntingdon County Children’s
         Services is directed to obtain [Appellant’s] current address
         from either SCI-Muncy or the Pennsylvania Board of
         Probation and Parole. Thereafter, a copy of these findings
         of fact, conclusions of law[,] and decree nisi shall be served
         on [Appellant] at her address by both certified mail and first
         class mail.

         [APPELLANT] SHALL HAVE TEN [] DAYS FROM THE DATE
         THIS DECREE NISI IS MAILED TO FILE OBJECTIONS OR
         EXCEPTIONS IN THE OFFICE OF THE CLERK OF THE
         ORPHANS’ COURT FOR HUNTINGDON COUNTY.

         IF NO WRITTEN OBJECTIONS OR EXCEPTIONS ARE FILED
         WITHIN THE TIME ALLOWED, THIS DECREE NISI SHALL
         BECOME FINAL WITHOUT THE NEED FOR ANY FURTHER
         ACTION BY THE COURT.

Trial Court Decree, 6/23/16, at 1-3 (some internal capitalization omitted).

       Appellant did not file exceptions to the decree2 and, on July 3, 2016,

the decree became final by its own terms. Id. at 3.

       On July 18, 2016, Appellant (through counsel) filed a timely notice of

appeal from the termination decree.            However, Appellant did not file her
____________________________________________


2
   Appellant did not need to file exceptions to preserve her claim on appeal.
See Pa.O.C.R. 7.1 (effective until October 31, 2016) (providing that the
filing of exceptions is optional).




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statement of errors complained of on appeal with her notice of appeal, as

required   by   Pennsylvania   Rule   of   Appellate   Procedure   1925(a)(2)(i).

Pa.R.A.P. 1925(a)(2)(i) (“[t]he concise statement of errors complained of on

appeal shall be filed and served with the notice of appeal”). The trial court

then issued a Rule 1925(a) opinion, which declared:

        On July 18, 2016, [Appellant] filed an appeal from [the trial
        court’s] June 23, 2016 decree nisi which terminated the
        parental rights of [Appellant].

        Counsel has failed to comply with Pa.R.A.P. 1925(a)(2) due
        to a failure to file a statement of matters complained of on
        appeal, thus [Appellant] has waived all issues on appeal
        pursuant to Pa.R.A.P. 1925(b)(4)(vii).

        We would also note that [Appellant] failed to attend the
        termination hearing, and [the Agency] presented clear and
        convincing evidence that [Appellant’s] parental rights should
        be terminated.

Trial Court Opinion, 8/16/16, at 1 (some internal capitalization omitted).

      On September 1, 2016, Appellant filed, in the trial court, a concise

statement of errors complained of on appeal. The statement declared:

        [The trial court] erred in terminating Appellant’s parental
        rights to [Child] because the evidence presented by [the
        Agency] was insufficient as a matter of law to support a
        termination of her parental rights. The Agency bore the
        burden to prove by clear and convincing evidence that
        termination of Appellant’s parental rights was justified
        pursuant to 23 Pa.C.S.A. § 2511(a)(2), (a)(5), or (a)(8),
        and it failed to do so. Considering the efforts and progress
        made by [Appellant] towards alleviating the conditions that
        led to the placement of [] Child and towards reunifying with
        [] Child, termination of Appellant’s parental rights was not
        in [] Child’s best interests.

Appellant’s Concise Statement, 9/1/16, at 1.

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      Appellant now raises the following claim to this Court:

        Did the [trial court] err when it terminated [Appellant’s]
        parental rights to [Child], given that the evidence presented
        was insufficient as a matter of law to support a termination
        of [Appellant’s] parental rights, and that [Appellant] had
        made efforts and progress towards alleviating the conditions
        that led to the placement of [] Child?

Appellant’s Brief at 4.

      In this case, the trial court concluded that Appellant’s claim on appeal

was waived because Appellant failed to comply with Pennsylvania Rule of

Appellate Procedure 1925(a)(2)(i) and file her concise statement of errors

complained of on appeal contemporaneously with her notice of appeal. Trial

Court Opinion, 8/16/16, at 1. In accordance with our binding precedent in

In re J.T., 983 A.2d 771 (Pa. Super. 2009), we conclude that Appellant’s

late filing of her concise statement does not result in the waiver of her claim

on appeal.

      In In re J.T., the trial court terminated the mother’s parental rights to

her child. The mother’s counsel then filed a notice of appeal to this Court,

but counsel failed to include the requisite concise statement with the notice

of appeal. See Pa.R.A.P. 1925(a)(2)(i). The mother’s counsel did, however,

file a concise statement later, in response to the trial court’s order.

      On appeal, this Court held that counsel’s late filing of the concise

statement did not result in the waiver of the mother’s issues on appeal. We

explained:




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          Pennsylvania Rule of Appellate Procedure 1925 . . .
          require[s] that in a Children's Fast Track appeal the [concise
          statement must] be filed and served with the notice of
          appeal. Pa.R.A.P. 1925(a)(2). Appellant did not do so. . . .
          Therefore, we must consider whether the untimely filing
          precludes appellate review.

          In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), the
          Supreme Court of Pennsylvania stated that Rule 1925(b)
          established a clear rule for waiver as it stated that any
          issues not raised in a court-ordered Rule 1925(b) statement
          will be considered waived on appeal. In Commonwealth
          v. Butler, 812 A.2d 631 (Pa. 2002), the Supreme Court
          held that this waiver is automatic and applies regardless of
          whether the opposing party raises the waiver issue and
          regardless of whether the trial court issued an opinion
          addressing the issues on appeal.

          In Commonwealth v. Burton, 971 A.2d 428 (Pa. Super.
          2009) (en banc), this court, based on a recent amendment
          of Rule 1925,[3] held that in criminal cases late filing of the
          statement of errors complained of does not mandate a
          finding of waiver. The Burton decision is premised on the
          concept that late filing is per se ineffectiveness of counsel.
          The client should not be penalized by dismissal of his appeal
          as a result of deprivation of his constitutional right to
          effective counsel.

          The unique nature of parental termination cases has long
          been recognized by the Supreme Court of Pennsylvania.
          Thus, In re Adoption of R.I., 312 A.2d 601 (Pa. 1973),
____________________________________________


3
    Pennsylvania Rule of Appellate Procedure 1925(c)(3) declares:

          If an appellant in a criminal case was ordered to file a
          Statement and failed to do so, such that the appellate court
          is convinced that counsel has been per se ineffective, the
          appellate court shall remand for the filing of a Statement
          nunc pro tunc and for the preparation and filing of an
          opinion by the judge.

Pa.R.A.P. 1925(c)(3).



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        the Supreme Court held that an indigent parent in a
        termination of parental rights case has a constitutional right
        to counsel. The right to counsel in parental termination
        cases is the right to effective assistance of counsel even
        though the case is civil in nature. However, this right is
        more limited than that in criminal cases, as claims of
        ineffective assistance of counsel must be raised on direct
        appeal. We then review the record as a whole to determine
        whether or not the parties received a “fundamentally fair”
        hearing; a finding that counsel was ineffective is made only
        if the parent demonstrates that counsel's ineffectiveness
        was the cause of the decree of termination. If late filing of
        the 1925 statement waived [the m]other's appeal rights in
        this case, there has been per se ineffectiveness of counsel
        just as there was for the appellant in Burton. We conclude
        that, as in Burton, in parental termination cases a late
        filing of a required 1925 statement does not mandate a
        finding of waiver.

In re J.T., 983 A.2d at 774-775 (some internal citations and quotations

omitted) (internal footnotes omitted).

      In re J.T. applies in full to the case at bar.       Therefore, in this

termination of parental rights case, we conclude that counsel’s late filing of

Appellant’s concise statement does not require the wavier of Appellant’s

claims on appeal. Id.

      On appeal, Appellant claims that the evidence was insufficient to

support the termination of her parental rights.      We have explained our

standard of review:

        In a proceeding to terminate parental rights involuntarily,
        the burden of proof is on the party seeking termination to
        establish by clear and convincing evidence the existence of
        grounds for doing so. 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

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        the precise facts in issue. It is well established that a court
        must examine the individual circumstances of each and
        every case and consider all explanations offered by the
        parent to determine if the evidence in light of the totality of
        the circumstances clearly warrants termination.

        We review a trial court’s decision to involuntarily terminate
        parental rights for an abuse of discretion or error of law.

In re Adoption of G.L.L., 124 A.3d 344, 346 (Pa. Super. 2015) (internal

quotation marks and citations omitted).

     Further, as this Court has held:

        In termination cases, an appellate court employs a broad
        scope of review to ensure that the trial court has
        satisfactorily fulfilled the requirements of examining all
        evidentiary resources. . . .

                                     ...

        Scope of review, relates to the appellate court's duty to
        ensure that the trial court has satisfactorily fulfilled the
        requirements of examining all evidentiary resources,
        conducting a full hearing and setting forth its decision in a
        full discursive opinion. A broad scope of review, therefore,
        requires that the appellate court conduct a comprehensive
        review of the record formulated in and the decision
        formulated by, the lower court.      In other words, in
        reviewing a termination of parental rights order, our
        Court must consider all evidence before the lower
        court as well as the lower court's findings of fact and
        conclusions of law.

In re K.P., 872 A.2d 1227, 1231 (Pa. Super. 2005) (internal quotations,

citations, and emphasis omitted) (internal emphasis added).

     In the case at bar, the trial court did not make any pertinent findings

of fact, did not specify which subsection (or subsections) of 23 Pa.C.S.A.

§ 2511(a) it utilized to terminate Appellant’s parental rights, and did not

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conduct an analysis under either 23 Pa.C.S.A. § 2511(a) or (b).           As we

explained in In re K.P., “[w]e are unable to exercise our broad scope of

review where the trial court fails to exercise its own independent analysis of

the record in a full discursive opinion.” In re K.P., 872 A.2d at 1231.

      Therefore, we must remand this case to the trial court, so that it may

make the requisite factual findings and conduct a proper analysis under 23

Pa.C.S.A. § 2511(a) and (b). Obviously, it is in the best interests of Child

that we resolve this matter promptly.          Accordingly, we shall retain

jurisdiction over this appeal. Within ten days of this memorandum, the trial

court shall issue a Rule 1925(a) opinion that recites its factual findings,

states which subsection of 23 Pa.C.S.A. § 2511(a) it utilized to terminate

Appellant’s parental rights, and applies the facts to the law of 23 Pa.C.S.A.

§ 2511(a) and (b).    Within three days of the trial court’s Rule 1925(a)

opinion, Appellant’s counsel shall notify this Court’s prothonotary via letter

whether additional briefing is necessary. If counsel notifies this Court that

no such additional briefing is necessary (or fails to notify this Court within

the required time period), we will decide the appeal on the basis of the trial

court’s Rule 1925(a) opinion and the briefs filed by Appellant and the

Agency/guardian ad litem. If additional briefing is necessary, Appellant shall

file a supplemental brief with this Court within 10 days of the trial court’s

Rule 1925(a) opinion. The Agency and the guardian ad litem may file a brief




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within ten days of Appellant’s supplemental brief. No reply will be permitted

without leave of Court.

     Case remanded. Jurisdiction retained.




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