J-S15029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: Z.J.J., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

APPEAL OF: T.S., FATHER                         No. 2263 EDA 2015


              Appeal from the Decree entered June 18, 2015,
       in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): CP-51-AP-0000181-2012; CP-51-DP-0000501-2010; FID#
                           51-FN-322315-2009

BEFORE: BENDER, P.J.E., OLSON, and PLATT*, JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 29, 2016

       T.S. (“Father”) appeals from the decree entered on June 18, 2015,

granting the petition1 filed by the Child Advocacy Unit of the Defender

Association of Philadelphia (“CAU” or the “Agency”), seeking to involuntarily

terminate Father’s parental rights to his dependent child, Z.J.J., a/k/a/ Z.J.,

a male born in March of 2009 (“Child”), as well as the order entered on June

18, 2015, granting a petition to change Child’s permanency goal to

adoption.2    We vacate and remand.

       The trial court set forth the relevant history of this case in its

opinion.     See Trial Court Opinion, 9/3/2015, at 1-2 (unpaginated).        We

adopt the trial court’s recitation for purposes of this appeal.    See id.   We



* Retired Senior Judge specially assigned to the Superior Court.
1
  Pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and
(b).
2
    Pursuant to Section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351.
J-S15029-16


reproduce the following facts and procedural history, however, relevant to

the instant appeal, as follows:

          On October 6, 2014, the CAU filed a petition for involuntary
          termination of parental rights [of C.A.J., a/k/a C.J., Child’s
          Mother (“Mother”) and Father].

          On October 24, 2014, [] Father signed a consent and
          petition to voluntarily relinquish his parental rights to
          [Child].

          On October 24, 2014, a termination of parental rights
          hearing for [Child] was held in the matter. The trial court
          found by clear and convincing evidence that [] Mother’s
          parental rights of [Child] should be terminated pursuant to
          the Pennsylvania Juvenile Act [sic]. [] Father’s petition was
          held in abeyance. Subsequently, [] Father revoked his
          voluntary relinquishment petition.

          On June 18, 2015, a termination of parental rights hearing
          for [Child] regarding [] Father was held in this matter. The
          trial court found by clear and convincing evidence that []
          Father’s parental rights of [Child] should be terminated
          pursuant to the Pennsylvania Juvenile Act [sic].
          Furthermore, the court held that it was in the best interest
          of [] [C]hild that the goal be changed to adoption.

Trial   Court   Opinion,   9/3/2015,    at   1-2   (unpaginated)   (superfluous

capitalization omitted).

        In separate decrees dated and entered on June 18, 2015, the trial

court involuntarily terminated the parental rights of Mother and the unknown

father of Child.3    On July 16, 2015, the trial court appointed Attorney Neil

Krum as appellate counsel for Father. On July 20, 2015, Father timely filed


3
  Neither Mother nor the unknown father filed an appeal from the decrees
terminating their respective parental rights, nor is either of these individuals
a party to the present appeal.
                                       -2-
J-S15029-16


a notice of appeal along with a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      In his brief on appeal, Father raises four questions for this Court’s

review, as follows:

     1. Did the court below err in finding that grounds for
        termination of parental rights had been proven by “clear
        and convincing evidence”?

     2. Did the court below err in finding that the [CAU] had met its
        burden in proving grounds under 23 Pa.C.S.A. §
        2511(a)(1), (2), (5) and (8)?

     3. Did the court below err in finding that the [CAU] had met its
        burden to prove that termination would be in [] [C]hild’s
        best interests, under § 2511(b)?

     4. Did the court below err in denying [d]ue [p]rocess and
        [e]qual [p]rotection of [l]aw to Appellant T.S., Father, as
        guaranteed by the Constitutions of the United States and of
        the Commonwealth of Pennsylvania?

Father’s Brief, at 4.

      In reviewing an appeal from an order terminating parental rights, 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., 9 A.3d 1179, 1190 (Pa. 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.; R.I.S., 36 A.3d [567, 572 (Pa. 2011)
         (plurality opinion)]. 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

                                     -3-
J-S15029-16


        also Samuel Bassett v. Kia Motors America, Inc., 34
        A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
        634 (Pa. 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.

        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, 650
        A.2d 1064, 1066 (Pa. 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). 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 the precise facts in

issue.” Id. quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

      This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of Section


                                     -4-
J-S15029-16


2511(a).     See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).     The trial court terminated Father’s parental rights under Section

2511(a)(1), (2), (5), (8), and (b). See Trial Court Opinion, at 9/22/2015, at

1. Section 2511(a)(1), (2), (5), (8), and (b) provide as follows:

         § 2511. Grounds for involuntary termination

         (a) General rule.--The rights of a parent in regard to a
         child may be terminated after a petition filed on any
         of the following grounds:

         (1) The parent by conduct continuing for a period of at least
         six months immediately preceding the filing of the petition
         either has evidenced a settled purpose of relinquishing
         parental claim to a child or has refused or failed to perform
         parental duties.

         (2) The repeated and continued incapacity, abuse, neglect
         or refusal of the parent has caused the child to be without
         essential parental care, control or subsistence necessary for
         his physical or mental well-being and the conditions and
         causes of the incapacity, abuse, neglect or refusal cannot or
         will not be remedied by the parent.

                                    ***

         (5) The child has been removed from the care of the parent
         by the court or under a voluntary agreement with an agency
         for a period of at least six months, the conditions which led
         to the removal or placement of the child continue to exist,
         the parent cannot or will not remedy those conditions within
         a reasonable period of time, the services or assistance
         reasonably available to the parent are not likely to remedy
         the conditions which led to the removal or placement of the
         child within a reasonable period of time and termination of
         the parental rights would best serve the needs and welfare
         of the child.

                                    ***



                                     -5-
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         (8) The child has been removed from the care of the parent
         by the court or under a voluntary agreement with an
         agency, 12 months or more have elapsed from the date of
         removal or placement, the conditions which led to the
         removal or placement of the child continue to exist and
         termination of parental rights would best serve the needs
         and welfare of the child.

                                     ***

         (b) Other considerations.--The court in terminating the
         rights of a parent shall give primary consideration to the
         developmental, physical and emotional needs and welfare of
         the child. The rights of a parent shall not be terminated
         solely on the basis of environmental factors such as
         inadequate housing, furnishings, income, clothing and
         medical care if found to be beyond the control of the parent.
         With respect to any petition filed pursuant to subsection
         (a)(1), (6) or (8), the court shall not consider any efforts by
         the parent to remedy the conditions described therein which
         are first initiated subsequent to the giving of notice of the
         filing of the petition.

23 Pa.C.S.A. § 2511.

       This Court has explained that the focus in terminating parental rights

under Section 2511(a) is on the parent, but, under Section 2511(b), the

focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.

Super. 2008) (en banc). We will focus our review on Section 2511(a)(1) and

(2).   We note that the trial court relied on its discussion of the facts in

relation to Section 2511(a)(1) to support its analysis under Section

2511(a)(2). See Trial Court Opinion, 9/3/2015, at 1-4 (unpaginated).

       We have explained this Court’s review of a challenge to the sufficiency

of the evidence supporting the involuntary termination of a parent’s rights

pursuant to Section 2511(a)(1) as follows:

                                      -6-
J-S15029-16


         To satisfy the requirements of Section 2511(a)(1), the
         moving party must produce clear and convincing evidence
         of conduct, sustained for at least the six months prior to the
         filing of the termination petition, which reveals a settled
         intent to relinquish parental claim to a child or a refusal or
         failure to perform parental duties.

                                     ***

         Once the evidence establishes a failure to perform parental
         duties or a settled purpose of relinquishing parental rights,
         the court must engage in three lines of inquiry: (1) the
         parent’s explanation for his or her conduct; (2) the post-
         abandonment contact between parent and child; and (3)
         consideration of the effect of termination of parental rights
         on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).

         [T]o be legally significant, the [post-abandonment] contact
         must be steady and consistent over a period of time,
         contribute to the psychological health of the child, and must
         demonstrate a serious intent on the part of the parent to
         recultivate a parent-child relationship and must also
         demonstrate a willingness and capacity to undertake the
         parental role. The parent wishing to reestablish his parental
         responsibilities bears the burden of proof on this question.

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see

also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en

banc).

      Further, regarding the definition of “parental duties,” this Court has

stated as follows:

         There is no simple or easy definition of parental duties.
         Parental duty is best understood in relation to the needs of
         a child. A child needs love, protection, guidance, and
         support. These needs, physical and emotional, cannot be
         met by a merely passive interest in the development of the


                                     -7-
J-S15029-16


        child. Thus, this court has held that the parental obligation
        is a positive duty which requires affirmative performance.

        This affirmative duty encompasses more than a financial
        obligation; it requires continuing interest in the child and a
        genuine effort to maintain communication and association
        with the child.

        Because a child needs more than a benefactor, parental
        duty requires that a parent exert himself to take and
        maintain a place of importance in the child’s life.

        Parental duty requires that the parent act affirmatively with
        good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his or her ability, even in difficult
        circumstances. A parent must utilize all available resources
        to preserve the parental relationship, and must exercise
        reasonable firmness in resisting obstacles placed in the path
        of maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with . . . her physical and
        emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004).

     To satisfy the requirements of Section 2511(a)(2), the moving party

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect or refusal;

(2) such incapacity, abuse, neglect or refusal caused the child to be without

essential parental care, control or subsistence necessary for his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental

rights under Section 2511(a)(2), due to parental incapacity that cannot be

                                    -8-
J-S15029-16


remedied, are not limited to affirmative misconduct; to the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

      Here, in relation to Section 2511(a)(1) and (2), the trial court stated

as follows:

        In the instant case, at the October 24, 2014 hearing, all
        parties stipulated to the facts in the petition for involuntary
        termination of parental rights. (N.T., 10-14-14, p. 4 and 5).
        Additionally, at the June 18, 2015 hearing, the stipulation
        as to the facts in the petition was reiterated. (N.T., 6-18-
        15, p. 3 and 4). [] Father and his counsel were present at
        both proceedings. (N.T., 10-14-14, p. 3; 6-18-15, p. 3).

        It is clear from the record that for a period of six (6) months
        leading up to the filing of the [p]etition for [i]nvoluntary
        [t]ermination, [F]ather failed to perform parental duties for
        [] [C]hild. The facts in the petition state that “Father has
        not been consistent with his visits since 2013. Furthermore,
        [] [F]ather was offered 15 visits and missed 5 during the
        period from August 2013 through the end of December
        2013. Moreover, during the 2014 year, [] [F]ather was
        offered 35 visits.      [F]ather missed 30 of the last 35
        scheduled visits offered to him. (CAU Petition, Statement of
        Facts, p. 7, unpaginated).            Lastly, [a Philadelphia
        Department of Health Services (DHS)] social worker found
        that [] Father does not [have] appropriate housing. He
        does not have enough space in his already overcrowded
        house for [Child] Id. at 7.

                                    ***

        In the instant matter, [] [C]hild has been in placement care
        for over forty-two months. The evidence established []
        [C]hild is currently in a safe environment with [C]hild’s
        needs being met (N.T., 6-18-15, p. 3).

                                    ***



                                     -9-
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           In the present case, [] Father has not remained in contact
           with DHS or New Foundations [foster care] and he has not
           contacted DHS or New Foundations to check on [] [C]hild’s
           welfare.    (CAU Petition, Statement of Facts, p. 7,
           unpaginated).

Trial Court Opinion, 9/3/2015, at 4.

      Again, this Court has stated that the focus in terminating parental

rights under Section 2511(a) is on the parent, but it is on the child pursuant

to Section 2511(b).      See In re Adoption of C.L.G., 956 A.2d 999, 1008

(Pa. Super. 2008) (en banc).         In reviewing the evidence in support of

termination under Section 2511(b), our Supreme Court recently stated as

follows:

           [I]f the grounds for termination under subsection (a) are
           met, a court “shall give primary consideration to the
           developmental, physical and emotional needs and welfare of
           the child.” 23 Pa.C.S. § 2511(b). The emotional needs and
           welfare of the child have been properly interpreted to
           include “[i]ntangibles such as love, comfort, security, and
           stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
           In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], [our
           Supreme] Court held that the determination of the child’s
           “needs and welfare” requires consideration of the emotional
           bonds between the parent and child.           The “utmost
           attention” should be paid to discerning the effect on the
           child of permanently severing the parental bond. In re
           K.M., 53 A.3d at 791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

      With regard to Section 2511(b), the trial court stated the following:

           In the instant matter, the social worker from New
           Foundations testified that [] Father and [Child] have no
           parental bond. (N.T. 10/24/14, p. 6). [] [F]ather was
           inconsistent with his visitation with [] [C]hild. He missed 30
           of 35 visits offered to him during the year of 2014.

                                       - 10 -
J-S15029-16


        Furthermore, the DHS social worker stated that “there is no
        parental bond between [Child] and his father. [Child] has
        been taken by DHS to visit with [] [F]ather in Sunbury, PA
        once a month for 2 years. . . [Child] does not know the
        names of the children who live in the house ([Father’s]
        girlfriend’s children), does not know the name of his half-
        brother, and does not even know the name of the dog.”
        Moreover, [] Father has not remained in contact with DHS
        or New Foundations and he has not contacted DHS or New
        Foundations to check on [] [C]hild’s welfare. (CAU Petition,
        Statement of Facts, p. 7, unpaginated).

        The testimony indicated that [Child] would not be adversely
        affected if [] Father’s rights were terminated. (N.T., 10-14-
        14, p. 6) Furthermore, [Child] shares a primary parental
        bond with his current caretaker. [Child] looks to his current
        caretaker for love, safety, security and to have his basic
        needs met. Lastly, [] Father has not remained in contact
        with DHS or New Foundations to check on [] [C]hild’s
        welfare.      (CAU Petition, Statement of Facts, p. 7,
        unpaginated).

        As explained in the initial [c]ourt [o]rder, the [t]rial [c]ourt
        found by clear and convincing evidence that [CAU] met their
        statutory burden pursuant to 23 Pa.C.S.A. § 2511(a) and
        (b) and that it was in the best interest of [] [C]hild to
        change the goal to adoption (N.T. 6/18/15, pg. 5).

                                     ***

        For the preceding reasons, the court finds that [CAU] met
        its statutory burden by clear and convincing evidence
        regarding the termination of parental rights pursuant to 23
        Pa.C.S.A. § 2511(a)(1) and (2) and § 2511(b).
        Furthermore, the court finds that its ruling will not cause
        [Child] to suffer irreparable harm and it is in the best
        interest of [] [C]hild as [the] result of testimony regarding
        [] [C]hild’s safety, protection, mental, physical and moral
        welfare to terminate [] Father’s parental rights.

Trial Court Opinion, 9/3/2015, (unpaginated).




                                     - 11 -
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      In his argument in support of his first issue on appeal, Father asserts

the evidence presented was not clear and convincing and was insufficient to

terminate his parental rights. Specifically, Father asserts that the trial court

erred in relying on: 1) the petition filed by CAU to involuntarily terminate his

parental rights; 2) the stipulation of his trial counsel, which he describes as

rather perfunctory, to the facts in the petition; and 3) “14 lines [of

testimony] in a transcript, comprised of four questions and answers.”

Father’s Brief, at 9, 11. Moreover, Father contends that it is unclear whether

the stipulation relates to the facts stated in the original petition to

involuntarily relinquish his parental rights or a subsequent petition to

voluntarily relinquish his parental rights.   Id. at 12-13.   More specifically,

Father claims upon review of the October 24, 2014 hearing transcript, “it

appears … that petitions to involuntarily terminate parental rights were

under discussion with respect to Mother, as well as to Father, but that a

petition to voluntarily relinquish rights was also under consideration for

Father.” Id. at 12.

      At the hearing on October 24, 2014, regarding the petitions to

involuntarily terminate the parental rights of Mother and Father, the

following individuals were present: Attorney Barbara Berry, counsel for CAU;

Attorney Thomas Bryan, counsel for DHS; Attorney Edelina Schumann,

counsel for Mother; and Attorney James King, counsel for Father.            The

following witnesses were present and testified: Brenda Howard, a former


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DHS social worker; Shanna Jones, a New Foundations caseworker; and

Valerie Walker, a DHS social worker.

     The following exchange and testimony occurred:

        MS. BERRY: . . . Your Honor, Child Advocate – I brought the
        petitions today. We’d first like to do a -- I have service on
        both parties. Counsel stipulated to that. [Father] is present
        in the courtroom.

        I served [M]other—do I need to do that? I served [M]other
        at . . . . I’d like to put – both – counsel has stipulated to
        the facts in the petition and we’re proceeding today so that,
        should anything happen with the voluntaries, we don’t have
        to come back again in six months.

        I’m asking that you take the evidence and hold it in
        abeyance until the – until the voluntaries vest, okay? Ms.
        Schumann, do you agree to stipulate to the facts in the
        petition as to [M]other?

        MS. SCHUMAN: So stipulated.

        MS. BERRY: Okay. Your Honor, I’d like to very briefly call
        Brenda Howard for bond issues.

        THE COURT: Okay. Ms. Howard?

                                   ***

        MS. BERRY: Okay. Mr. King, do you stipulate to the facts?

        MR. KING: Yes.

        MS. BERRY: -- as to father?

        MR. KING: Yes.

        MS. BERRY: And I’m going to ask the same questions, but
        I’m going to ask them of Ms. Jones, who supervises the
        visits. Ms. Jones?

        MS. JONES: Yes?

                                   - 13 -
J-S15029-16



       MS. BERRY: Is there a bond between [Child] and his father?

       MS. JONES: No.

       MS. BERRY: Do you feel that if [Father] were not – if visits
       were revoked, that [Child] would [be] adversely affected?

       MS. JONES: No.

       MS. BERRY: Do you believe there’s no parental bond
       between [Father] and [Child]?

       MS. JONES: Yes.

       MS. BERRY: Thank you. That’s all I have.

       MR. BRYAN: No questions.

       THE COURT: All right. Does anybody have anything else?

       MS. SCHUMANN: No.

       THE COURT: Okay.

       MS. BERRY: Okay. Do I need to go? I ask that you hold
       the – that you find that I have met my burden – the child
       advocate has met its burden under 2511A-1, 2, 5 and 8,
       and that you terminate the rights of both . . . [M]other, and
       . . . [F]ather.

       I’d ask that you do so for [M]other today, and that we hold
       in abeyance any decision of [F]ather until such time as the
       voluntaries, which [Father has signed today], vest and are
       accepted.

       THE COURT: Do you have anything regarding [M]other?

       MS. SCHUMAN: Only to be vacated within 31 days.

       THE COURT: All right. With respect to mom, based upon
       the stipulation by and between counsel that if the social
       worker were called to testify, she would testify in
       accordance with the facts in the petition, as well as the

                                  - 14 -
J-S15029-16


        testimony presented in court today, I do find that the
        Department of Human Services has met their burden by
        clear and convincing evidence to involuntarily terminate
        mom’s parental rights, pursuant to 2511A-1, 2, 5, and 8, as
        well as 2511B.

        I’m going to reserve the best interest portion for the next
        hearing, after we handle [F]ather’s portion. We’re going to
        hold [F]ather’s petitions in abeyance.

        MR. BRYAN: And I’m sorry, Your Honor, just one request.
        It’s that child advocate has met their burden.

        THE COURT: Oh, you know what, you are correct.

        MR BRYAN: Thank you, Your Honor.

        THE COURT: I stand corrected – that the child advocate has
        met their burden by clear and convincing evidence. Okay.

                                    ***

        MR. BRYAN: Oh, who has safety?

        MS. HOWARD: We do.

        MS. BRYAN: Miss, when did you last see [] [C]hild in the
        current foster home?

        MS. WALKER: October 16th.

        Mr. BRYAN: At that time, was the child […]

        MS. WALKER: Yes.

        MR. BRYAN: Basic needs being met?

        MS. WALKER: Yes.

        MR. BRYAN: Thank you.

N.T., 10/24/2014, at 1-9.



                                  - 15 -
J-S15029-16


     At the hearing on June 18, 2015, the following individuals were

present: Attorney Berry on behalf of CAU; Attorney Bryan on behalf of DHS;

Attorney King on behalf of Father; and Maureen Eld, the DHS court

representative were present, as well as Father, and R.W., Child’s foster

parent.   Further, Stefanie Edwards, caseworker for New Foundations, Inc.,

the provider agency for DHS, was present and testified.            The following

exchange occurred:

          THE COURT: Okay, Miss Berry. It’s your petition.

          MS. BERRY: Your Honor, I’m asking that the [c]ourt move
          on the voluntaries [sic] relinquishment of rights petitions
          that [Father] signed back on October 24, 2014.

          At that time we put on a stipulated trial. We have reviewed
          [sic] the [c]ourt record is clear, that the parties stipulated
          to the facts in the petition. [Father] was here, he had
          agreed to stipulate to the facts in the petition, based on
          that, Your Honor, I’ve met my burden, and that the
          voluntary petitions be dismissed.

          THE COURT: Anybody else have anything?

          MR. BRYAN: No, your Honor, I’ll just get safety testimony.

          BY MR. BRYAN:

          Q. Miss [Edwards], where’s the child currently placed?

          A. At New Foundations foster home.

          Q. When did you last see the child in that home?

          A. On June the 10th, 2015.

          Q. At that time was the child safe?

          A. The child was safe.

                                       - 16 -
J-S15029-16



       Q. Child’s basic needs being met?

       A. His basic needs are being met.

       MR. BRYAN: Thank you.

       M[R]. KING: Your Honor, can I just say that on behalf of
       [F]ather, he does object and he cites the fact that after he
       signed the vol’s, he felt that he did not fully understand
       what was explained to him at the time.

       MS. BERRY: Your Honor, there was testimony taken from
       Brenda Howard and Mr. King made a statement on the
       record that they sat with [Father] at the time, they read
       them to him, they were there when he signed them, and
       that at no time did he say he wasn’t understanding what
       was going on. On the other side [sic] though, we’re asking
       that those petitions be set aside, and that we move on the
       involuntary petitions.

       THE COURT: I think at this point we’re at the stipulated
       trial. However, let me see counsel in the back one more
       time, I apologize. I hate to keep making you walk back and
       forth.

                         (Sidebar, off the record.)

       THE COURT: All right. So, just so the record is clear, what
       was the date of the stipulated trial?

       MS. BERRY: October 24, 2014.

       THE COURT: All right. Based upon the previous stipulation,
       by and between counsel, and that stipulation on 10/24,
       2014, was that it was a stipulation by and between counsel
       that if the social worker were called to testify, that she
       would testify in accordance with the facts in the petition, it
       was held in abeyance, I’m going to make a ruling now, I do
       find that the Department of Human Services has met their
       burden by clear and convincing evidence –

       MS. BERRY: actually it would be me, I filed.


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        THE COURT: I’m sorry, that the child advocate it was her
        petition, I stand corrected, has met their burden by clear
        and convincing evidence to involuntarily terminate
        [F]ather’s parental rights pursuant to 2511A-1 and 2, as
        well as 2511B, I do find it’s in the best interest of the child
        to change the goal to adoption, Mr. King’s appointment is
        vacated within 31 days. Mr. King, if [F]ather chooses to
        appeal, either file his notice of appeal for him, or contact
        court administration and make sure that they have
        somebody file his notice of appeal to keep his appellate
        rights intact.

        M[R]. KING: Yes, sir.

        THE COURT: Does that sound reasonable?

        M[R]. KING: Yes.

        THE COURT: Okay. All right.

        MR. BRYAN: Thank you, your Honor. I believe we already
        got to safety.

        THE COURT: All right, we just need a date.       So, Mr. King
        and [F]ather, you two are excused.

N.T., 6/18/2015, at 2-5.

     Initially, we disagree with the argument raised by both CAU and DHS

that Father has waived his first issue.      At the hearing on June 18, 2015,

Father preserved his objection to the trial court’s incorporation of the

stipulation that was entered on the record on October 24, 2014.           Father’s

counsel raised an objection, and asserted that Father did not understand the

stipulation at the earlier hearing. See N.T., 6/18/2015, at 3. Thus, we find

that the issue was properly preserved in the trial court for purposes of

appellate review. See Pa.R.A.P. 302(a) (providing that issues not raised in


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J-S15029-16


the lower court are waived and cannot be raised for the first time on

appeal). We also find that Father raised the issue in his brief with sufficient

specificity to preserve our review. In In the Interest of: T.L.B., 127 A.3d

813, 817 (Pa. Super. 2015), a panel of this Court declined to find waiver in a

juvenile case for failure of the appellant, the Commonwealth, to adequately

develop the challenge in its concise statement.      The panel held that the

concise statement could have been more specific, but the issue was readily

apprehended by the trial court.       Id. at 817 citing Commonwealth v.

Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (holding the appellant had not

waived his sufficiency of the evidence claim in a drug case for failure to

adequately develop it in his concise statement, where the matter was

relatively straightforward, and readily apprehended by the trial court).

      Here, the record created at the hearing on July 18, 2015, consisted of

only the incorporation of the stipulation at the October 24, 2014 hearing,

and a few questions by DHS counsel regarding the safety of Child.            As

explained in its opinion, in rendering its termination decision, the trial court

relied on the facts in the involuntary termination petition to which the DHS

social worker would testify if called as a witness, and to which Father had

stipulated at the October 24, 2014 hearing. Under the circumstances of this

case, however, we find that the trial court erred in relying on the stipulated

facts from the October 24, 2014 hearing. The October 24, 2014 hearing was

held on a petition for Father’s involuntary relinquishment of his parental


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J-S15029-16


rights.   At that time, however, Father indicated that he wished to voluntarily

relinquish his parental rights.4 Accordingly, Father stipulated to the facts in

the involuntary petition filed against him. The trial court later determined

that Father revoked his voluntary relinquishment petition.5        As a result,

Father made the stipulation when he considered voluntarily relinquishing his

rights, but then later revoked his consent to voluntarily terminate, and the

trial court still held Father to the prior stipulation.   The trial court should

have convened a new termination hearing and heard new evidence from

CAU to support its involuntary petition instead of relying on the stipulation of

facts from the prior hearing.

      Additionally, in his fourth issue, Father raises a claim that the trial

court deprived him of his guaranteed due process rights, both substantive

and procedural, under the Fourteenth Amendment to the United States

Constitution.   Father asserts that the trial court denied him adequate and

meaningful notice and hearing. Father’s Brief, at 23. “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

4
   Upon our review of the certified record and trial court docket, there is a
copy of a voluntary relinquishment of parental rights petition with regard to
Father, but no indication it was filed.
5
   There is no indication that Father filed a revocation of his consent to a
voluntary termination of parental rights petition.
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demands.” In re Adoption of Dale A., II, 683 A.2d 297, 300 (Pa. Super.

1996) citing Mathews v. Eldridge, 424 U.S. 319, 334, (1976).

      We agree that the trial court’s incorporation of the prior stipulation into

the record at the October 18, 2015 hearing, and its reliance thereon in

rendering its decision to terminate Father’s parental rights, over his trial

counsel’s objection, deprived Father of due process.        Father lacked truly

meaningful notice and an opportunity to be heard with regard to the

involuntary termination of his parental rights.

      As we are vacating the trial court’s order on the basis of Father’s first

and fourth issues, we do not reach Father’s remaining issues. Accordingly,

we are constrained to vacate the trial court’s decree and order, and remand

the matter to the trial court for further proceedings consistent with this

memorandum.

      Decree and order vacated; appeal remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/29/2016




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