J-S23017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
                                          :
                                          :
 APPEAL OF: M.L., FATHER                  :
                                          :
                                          :
                                          :
                                          :   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
____________________________________
* 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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